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4 Whether This Case Involves A … vs State Of … on 23 September, 2017

R/CR.A/1733/2013 JUDGMENT






1 Whether Reporters of Local Papers may be allowed
to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of
the judgment ?

4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?

STATE OF GUJARAT….Opponent(s)/Respondent(s)

HCLS COMMITTEE, ADVOCATE for the Appellant(s) No. 1
MR NK MAJMUDAR, ADVOCATE for the Appellant(s) No. 1
MR KL PANDYA AGP for the Opponent(s)/Respondent(s) No. 1


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R/CR.A/1733/2013 JUDGMENT

Date : 23/09/2017



1. Present is a Criminal Appeal under Section 374 of the
Criminal Procedure Code, 1973 against the judgment and
order of conviction passed by learned 8th Additional
Sessions Judge (Ad-hoc), Vadodara dated 26.8.2011 in
Sessions Case No.23 of 2010 vide which the accused has
been convicted for offence punishable under Section 376(2)
(F) of Indian Penal Code and under Sections 3(1)(10) and
3(1)(11) of the Atrocities Act.

2. Brief facts of this case are that, on 31.5.2010,
there was a marriage ceremony of son of Udesinh Bariya. A
dinner was being organized in the nearby farm. Therefore,
the complainant went to attend the dinner with her
granddaughter, Nisha and grandson, Satish and after
dinner, they returned back to their home. At about 9 p.m.
when husband of the complainant reached home, he made
inquiry with regard to granddaughter, Nisha. The
complainant went to nearby lake and heard cries of Nisha.
At that time, she saw that one person was doing
intercourse with Nisha. On shouts being raised by the
complainant, Dinesh (son of the complainant) and other
neighbors also reached the spot and caught the accused. An
ambulance was summoned and Nisha was taken to the
Government Hospital, Dabhoi and FIR came to be registered
being C.R.No.I-101 of 2010 with Dabhoi Police Station for
offence punishable under Section 376 of Indian Penal Code
and under Section 3 (1) (10) and 3(1)(11) of the

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Atrocities Act.

3. After registration of FIR, investigation was started
by the concerned Investigating Officer. The vicitm, Nisha
was taken to Hospital for medical examination in injured
condition. Her preliminary examination was conducted and
thereafter, she was referred to a Gynaecologist who
further examined her. The clothes having blood stains were
sent for chemical examination. The accused was arrested
and after completing formalities, challan was presented in
the Court.

4. Charge was framed. Accused pleaded not guilty and
claimed trial. Medical Certificate as well as report of
the FSL were obtained.

5. In order to succeed, prosecution has examined as many
as 19 witnesses. However, material witness amongst them
are PW-1, Manjulaben, the complainant, who is grandmother
of the victim. PW-2, Naaresh R.Vasava, the neighborer, who
was present near the place of occurrence. PW-3, Kokilaben
Vasava, who had seen the victim being brought back while
under unrest. PW-6, Dr.Gudiya Rani, who medically examined
accused and found him capable of doing intercourse. PW-11,
Dr.Ajaykumar Chandrikaprasad, who conducted MLR, examined
the victim and gave medical certificate in this regard.
PW-13, Prosecutrix (victim), who is about 6 years of age.
PW-15, Dr.Maitri C.Shah, Gynecologist, who has also
examined the victim. PW-53, Brijlal Patel, Investing
Officer. Prosecution has also tendered into the evidence

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Exh.60 i.e. FSL Report.

6. After taking into account the evidence of the eye-
witnesses in the form of PW-1, Manjulaben, evidence of the
victim, which is further corroborated by the evidence of
PW-11, Dr.Ajaykumar Chandrikaprasad and that of PW-15,
Dr.Maitri C.Shah. Court came to the conclusion that an
incident has taken place wherein 6 years old girl has been
sexually assaulted by the accused and accordingly,
convicted and sentenced the accused to undergo
imprisonment for life. The accused was further held guilty
under the Atrocities Act. However, no separate punishment
under the Atrocities Act was awarded.

7. We have heard learned counsel for the petitioner and
learned APP for the State and have also gone through the
evidence produced before us.

8. After going through the evidence and the manner in
which incident has taken place, learned counsel for the
appellant is fair enough to concede that he has very
limited arguments to offer on behalf of the accused.
Accordingly, he has confined his arguments regarding the
quantum of sentence having been awarded to the accused who
was of 26 years of age at the time of incident.

9. We have considered the contention and submission made
by counsel for the appellant. This is very unfortunate
incident in which 6 years old girl has been subjected to

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10. The fact regarding rape having been committed upon
the girl is proved from the evidence of eye-witness,
PW-1, Manjulaben, who is grandmother of the victim. In her
deposition, she stated that, while she along with other
family members were searching for their granddaughter-
Nisha, the accused was seen lying over her granddaughter,
her clothes were removed and she was crying at that time.
The other members of family as well as residents of the
area also heard the cries of Nisha. PW-2- Naresh Vasava,
who had gone to attend the nature’s call at that time, has
also witnessed the incident and PW-3, Kokilaben had seen
the victim being brought back home without any clothes on
her body. The incident is further proved from evidence of
PW-11, Dr.Ajay Prasad, who have examined, Nisha, and his
observations are reproduced as under:-

Certificate Regarding examination of Alleged
Sexual Assault Victim

It is certified that above mentioned patient
brought by 108 Ambulance Dabhoi Location on
31.5.2010 at 11.15 p.m. Along with Bhikhiben
Kachanbhai Vasava, Dineshbhai Bhayjibhai Vasava,
Kokilaben (Asha Worker) With H/O Alleged Sexual
Assault by person from Tarasana by around 9.30
to 10.00 p.m. At or near morpura pond.
On Examination finding is follows
Examination conducted in presents of Female
Staff Nurse Mitaben M.Patel after taking
consents from her father Dineshbhai Bhayjibhai
Vasava simultaneously inform to Dabhoi Police
Station regarding case history and to perform
needful act.

Patient conscious oriented with Vigraously
crying bears old Kurta and payzama stand with
blood over Perineum buttock Portiom of Payzama

Local Examination Patient having

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1. Bleeding per vagina there is abrasion over
perineum linear in shape size about 2 cm. Start
from posterior aspect of vagina up to anal
office. edge are irregular and separated muscle
and mucosar exposed.

2. Patient having abrasion mark over fact
irregular in shape and size.

After giving the primary treatment and informing
to police as per telephonic request, I collected
requested sample from Patient after taking
consent from parents.

11. Incident is further proved from own statement of
prosecutrix, evidence of PW-14 Dr.Rajenben Chudasama and
PW-15, Dr.Maitri Shah, who is gynaecologist and has
examined the victim.

12. In view of the aforementioned evidence, there is no
doubt that the accused has committed a heinous crime of
rape upon a girl of 6 years of age. It is further
unfortunate that such rape has been committed on the
victim belonging to lower strata of the society.

13. Accused is stated to have undergone imprisonment of
about 7 years and 1 month so far. This Court is also
conscious of the fact that accused was 26 years of young
age at the relevant time. While undergoing sentence,
accused must have realized his guilt and must be repenting
for his shameful act.

14. Keeping in view the totality of circumstances,
including the report of the FSL, we are of the view that
punishment for imprisonment for life will be too harsh for
the accused. Purpose can be served by awarding
imprisonment of 10 years in place of life. Accordingly,
the conviction of accused under Section 376 as well as

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under Atrocities Act is confirmed and upheld. However, the
sentence is reduced from life to 10 years.

15. With this modification, this appeal stands disposed



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