Decided on December 26,2008

Vitthalbhai Gokulbhai Rathod Appellant


- (1.) THE present appeal arises out of a judgment and order rendered by Sessions Court, Bharuch in Sessions Case No.18 of 2005 on 12.05.2005 convicting the appellant for the offence of rape and sentencing him to undergo R.I for 10 years and to pay fine of Rs.5000/ - and in default of payment of fine, to undergo S.I for one year.
(2.) THE facts of the present case in brief are that the prosecutrix was a lady of about 27 years of age and was deaf and dumb and mentally retarded. She was however, addicted to smoking bidi. On 6.11.2004, at around 11 a.m., it is alleged that the appellant offered her a bidi and then tried to catch her hand. She however escaped from him. Thereafter, the appellant again offered her a match -box and under that pretext, took her to the courtyard behind the house of Balubhai Gokulbhai Rathod and committed rape on her. Around that time, the appellant and the prosecutrix had gone out, but, the incident was seen by witnesses Hanifaben, Jetunben and Shantaben. One Ranjit also saw the incident. Ranjit was sent to the place of incident to rescue the prosecutrix, but, he was driven away by the accused. The prosecutrix was then tactfully rescued by being informed by a shout that her parents have arrived. Later on the parents of the prosecutrix were informed, who in -turn lodged the FIR with Amod Police Station. The offence was registered and investigated and chargesheet filed in the Court of JMFC, Amod. JMFC, Amod committed the case to the Court of Sessions and Sessions Case No.18 of 2005 came to be registered. The charge was framed at Exh.4. The accused pleaded not guilty of the charge and claimed to be tried. The Sessions Court on considering the evidence, found the accused to be guilty of the charge and recorded his conviction as stated above.
(3.) WE have heard learned advocate Ms.Rekha Kapadia and learned APP Mr.Bhatt. Ms.Kapadia submitted that the evidence is not reliable and consistent. The FSL report is not reliable for the reason that there is no evidence to show that the vaginal swab of the prosecutrix taken by the Doctor was sent to FSL, still there is a report from the FSL as well as the Serologist. Ms.Kapadia submitted further that the conduct of the eye -witnesses make their depositions unreliable, and therefore, the evidence cannot be said to be fool proof or totally reliable. The appeal may, therefore, be allowed. Learned APP Mr.Bhatt has opposed the appeal. According to him there are three independent eye -witnesses to the incident, and their version gets support from the FSL report. He submitted that some discrepancy, even if found, has to be ignored, if the evidence in the whole is found otherwise reliable. He also submitted that the prosecutrix is a lady with unsound mind, aged about 27 years and she has been made victim of the appellant's lust, who has taken undue advantage of her mental condition and has committed a rape on her. Her willingness or consent, unless expressly indicated, could not have been presumed. The trial Court was therefore, justified in recording conviction. The appeal, may therefore be dismissed.;

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