B N Karia, J. - (1.) The judgment and order dated 5th January 2002 passed by the learned Additional Sessions Judge, Bharuch in Sessions Case No. 210 of 1998 convicting the appellant-original accused for an offence punishable under Section 376 of the Indian Penal Code ["IPC" for brevity] as also sentencing him to suffer rigorous imprisonment for a term of seven years and to pay fine of Rs. 500/-; and in default thereof, to undergo further simple imprisonment for a month, is assailed in this Appeal preferred under Section 374 [2] of the Code of Criminal Procedure, 1973 ["CrPC" for brevity].
(2.) Facts emerging from the available record; in nutshell, read thus - On 6th July 1998, witnesses-Police Constable Yakub Ali Patel and another Police Constable named Rameshbhai Parshottam, when were on patrolling duty near BharuchDahej Bypass, they had on their arriving near Dahej Bypass at about half past five O'clock in the evening, noticed that one rickshaw, bearing registration No. GJ-16-T-2377 was parked on the eastern side of the road. Therefore, both the police constables went closer and saw that the rickshaw driver [accused of the present appeal] was committing rape on a beggar and mentally retarded lady. Both constables arrested the accused and the said lady and upon asking, the accused had stated his name and address, but as the said lady [which was looking like a beggar] had not replied as she was mentally retarded and was not in condition to reply and therefore, both these constables brought the accused and the said lady at Bharuch LCB Police Station and produced them before SubInspector Ukkadbhai Kalabhai and stated him about the incident.
(3.) As the said lady was not in condition to state anything about herself, on the basis of the facts declared by police constable Yakub Alibhai Patel, Police Sub-Inspector Ukkadbhai had submitted a written report to the Police Inspector, Bharuch City 'B' Division about the incident and on the basis of the said report, Bharuch City 'B' Division Police registered an offence; went to the spot with Police Constable Yakubbhai and drew panchnama of the scene of offence and sent the victim lady and the accused for physical examination at Civil Hospital, Bharuch. Their clothes and samples were collected after their physical examination and thereafter, statements of the witnesses were recorded. The accused was arrested for the said offence and muddamal were sent to F.S.L. Upon receipt of medical certificate and report from F.S.L. and on finding the evidence against the accused of committing rape on mentally retarded lady, Bharcuh City 'B' Division Police filed a chargesheet in the court of Chief Judicial Magistrate Court at Bharuch against the accused for the offence punishable under Section 376 IPC.;