Z.K. Saiyed, J. - (1.) BY way of present Appeals, the appellants challenge the judgment and order dated 30.5.1996 passed by the learned Additional Sessions Judge, Vadodara, in Sessions Case No. 186 of 1993, whereby the learned Sessions Judge has convicted the appellants -accused persons for offences punishable under Sections 363, 376 and 366 of the Indian Penal Code. The learned Sessions Judge ordered the appellant -accused No. 1 (Criminal Appeal No. 414 of 1996) to undergo sentence for a period of seven years rigorous imprisonment for the offence punishable under Section 363 of the Indian Penal Code and to pay fine amount of Rs. 1000/ -, in default of payment of fine, further simple imprisonment of one year. The appellant No. 1 (Criminal Appeal No. 416 of 1996) (original accused No. 2) was ordered to undergo sentence for a period of 10 years rigorous imprisonment and to pay a fine of Rs. 1000/ -, in default of payment of fine, simple imprisonment for one year, for the offence punishable under Section 376 of the Indian Penal Code. The appellant Nos. 2 to 4 (Criminal Appeal No. 416 of 1996) were ordered to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 1000/ - and in default of payment of fine, further simple imprisonment of one year, for the offence punishable under Section 366 and 114 of the Indian Penal Code. Here in this case, the accused -Babubhai has expired. Therefore, the appeal is abetted qua the said accused.
(2.) SHORT facts of the case of the prosecution are such that on 25.11.1991, the complainant Jubedaben Vajesinh Rana lodged complaint with Jawaharnagar Police Station, Dist. Baroda, stating that on 5.11.1991, her daughter Hasina aged 16 years, had gone to fetch water at the public tap situated near Refinery Cross Road, at abut 5:30 in the morning and same day was "Kalichaudash day". The daughter Hasina did not return for considerable time, the complainant went to make inquiry and she did not find her near the tap. At that time, she noticed light switched on at the house of original accused No. 1 -Dilipsinh and therefore, she went there. The said house was closed on front side, therefore, she went on the back side and peeped into the house through the window, where she saw three persons colouring the wall and she noticed that her daughter was there. Therefore, she entered into the house through back door and scolded her daughter as to why she did come there. There were four persons in the house. She got scared and went out. In the meanwhile, she saw that the original accused Dilipsinh going away on the scooter and her daughter Hasina was sitting on the pillion seat. As per the complainant, she made search for her daughter for a considerable long time at several places like Bajva, bus stand etc. but she did not find her and so ultimately, she was compelled to file the complaint. According to the complainant, she did not approach the police immediately because she felt that it might harm the reputation of the family and her daughter Hasina. After filing of the complaint, the police started investigation and arrested the accused No. 1, but Hasina could not be found. 2.1. As per the case of the prosecution, on that day of "Kalichaudas" the accused -Dilipsinh took the daughter of the complainant at the house of accused -Rashmibhai Himmatlal Dave at Gujarat Refinery Quarters and told the victim to stay with accused -Rashmibhai and said accused would buy her a car and bungalow and keep her nicely. It is also the case of the prosecution that the other accused were present in the house and the accused committed rape on victim on that day. Thereafter, the said appellant took victim to another quarter situated at Refinery township and she was made to stay for a day. On the next day, the victim was taken to the S.T. Bus stand at Baroda under the threats of being killed and from Baroda, the appellants i.e. accused -Anitaben Babubhai and Manishaben Rashmibhai took the victim to Bhavnagar and then she was taken to the house of appellant -accused Rashmibhai's father and she was made to stay there for one and half months. Thereafter, the accused brought her from Bhavnagar to village Sunav in the S.T. Bus and at Sunav, she was made to stay at the house of father of accused Anitaben, where the victim was not allowed to move out of the house. It is further case of the prosecution that thereafter, the accused i.e. appellant Nos. 1,3 and 4 (Criminal Appeal No. 416 of 1996) brought the victim to Balva at the house of brother of the accused -Rashmibhai, where she was made to stay for about 3 months. Subsequently, the accused took the victim to Indore at the house of accused -Anitaben's sister, where she had stayed for one month and thereafter, the victim was again brought to village Sunav at the place of father of accused -Rashmibhai, where the victim had stayed for period of a week. 2.2. As per the case of the prosecution, thereafter, the appellant Nos. 1,3 and 4 (Criminal Appeal No. 416 of 1996) brought her back to residential quarter of accused -Rashmibhai, where she was kept for a month. According to the case of the prosecution, during that period of one month, the appellant No. 1 -Rashmibhai committed rape on the victim and at that time, the accused -Anitaben and Manishaben caught the victim with a view to facilitate the accused -Rashmibhai. As per the case of the prosecution, the accused -Rashmibhai tried to take the victim on scooter to Dakor after committing rape and when they reached near Vasan, the mother of the victim saw them and she asked the victim by waving hand as where she was going. After travelling at some distance, the victim Hasina asked the appellant No. 1 -Rashmibhai for stopping the scooter, as she wanted to answer nature's call. Therefore, the accused -Rashmibhai stopped the scooter near the temple of Mahadev at Atlavadi, where the victim got down from the scooter and went for answering the nature's call. After sometime, as the victim did not return, the said accused -Rashmibhai followed her. In the meanwhile, mother of victim reached the place in rickshaw and started shouting for help. According to the case of the prosecution, on hearing the shouts of mother of the victim, the people gathered and caught the said accused. Thereafter, the mother of the victim took the victim at Jawaharnagar Police Station and informed the police that the said accused -Rashmibhai was at village Atlawadi. Thereafter, said accused was arrested and then all the accused were also arrested. Thereafter, the statements of mother Jubedaben and her daughter victim Hasina were recorded and the police started investigation and thereafter, accused persons were arrested and thereafter, charge -sheet was filed against the accused before the learned Judicial Magistrate First Class, Baroda, who in turn committed the case to the Court of Sessions as the same was exclusively triable by the Court of Sessions. The accused pleaded not guilty to the charge and claimed to be tried. The main defence of the accused was that they were falsely implicated in alleged offence. 2.3. To prove the case against the accused, the prosecution examined following witnesses: 2.4 The prosecution has also produced documentary evidence, which are as under: 2.5. Thereafter, statements under Section 313 of the Code of Criminal Procedure were recorded, wherein the accused stated that they are innocent and they have not committed alleged offence and the evidence are not reliable, acceptable and trustworthy. After hearing at length and on perusal of the evidence on record, the learned Sessions Judge observed that the prosecution has proved the case against the accused beyond reasonable doubt and therefore, learned Sessions Judge pass the order of conviction as stated hereinabove. Heard learned advocates Mr. Doctor, Mr. Atul Mehta, Mr. Manav Mehta for the appellants in Criminal Appeal No. 416 of 1996 and learned advocate Mr. learned advocate Mr. M.J. Buddhbhatti for learned advocate Mr. Adhvaryu for the appellant in Criminal Appeal No. 414 of 1996.
(3.) LEARNED advocate Mr. Mehta for the appellants read the charge at Exhibit 6 and submitted that for proving the allegations levelled in the charge, the prosecution has examined only two material witnesses for the alleged offences of kidnapping and rape and they are (1) complainant Jubedaben, mother of the victim and (2) victim herself but there is no any independent witness examined by the prosecution. He read the oral evidence of P.W. 1 -complainant -Jubedaben at Exhibit 31, she is mother of victim and submitted that as per the complainant which was lodged by herself, in which the age of the victim is stated as 15 years and in her evidence, she stated that the victim was aged about 15 to 16 years at the time of incident, therefore, evidence of the complainant is not acceptable on this count only because the exact age of the victim is required to be taken into consideration for the proving alleged offences against the accused persons. He further submitted that so -called incident was taken place on 5.11.1991 and thereafter, after 21 days, the complaint is filed, therefore, as per his submission, the complaint is filed at belated stage and the prosecution has not explained about such delay in filing the complaint and therefore, the same is fatal the case of the prosecution. He also submitted that the accused -Dilipsinh is simply owner of the garage and his name was wrongly implicated in the commission of the alleged offence. He further submitted that it is prima facie established that the story narrated by the complainant in the complaint is false, concocted and as per his submission, the learned Sessions Judge, while passing the judgment and order of conviction, has not considered the provisions of law and has not accepted the defence made out by the accused and learned Sessions Judge has wrongly believed the story of the prosecution and committed grave error by passing impugned judgment and order of conviction. He further submitted that the Headmaster of the school, in which the victim studied, is examined as P.W. 3 at Exhibit 8, Bhailalbhai Motibhai Mistri and submitted that as per the evidence of this witness, this witness has no personal knowledge regarding the age of the victim and he only stated the age of the victim from the school leaving certificate, which was prepared on the basis of general register of the school. Therefore, as per his submission, the exact age of the victim is not proved by the prosecution.;