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(PER : HONOURABLE MR.JUSTICE KS JHAVERI)

1. Both these appeals arise out of the same judgment and order and hence, they are decided by this common judgment.

2. Challenge in these appeals is to the judgment and order passed by the learned Addl. Sessions Judge, Fast Track Court No.3, Amreli in Sessions Case No.90 of 2004 dated 17.01.2005 whereby, the respondent, original accused, has been convicted for the offences punishable u/s.363 & 366 IPC and has been acquitted of the charge u/s.376 IPC. For conviction u/s.363 IPC, the respondent­accused has been sentenced to undergo RI for six months and fine of Rs.2000/­ and in default, SI for one month; whereas, for conviction u/s.366 IPC, he has been sentenced to undergo RI for seven months and fine of Rs.2000/­ and in default, SI for one month;

Both the sentences were ordered to run Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat May 07 05:06:56 IST 2016 R/CR.A/1503/2005 JUDGMENT concurrently and the sentence already undergone by the accused was given set­off.

2.1 Criminal Appeal No.1502/2005 has been preferred by the State against the acquittal of respondent­accused of the charge u/s.376 IPC; whereas, Criminal Appeal No.1503/2005 has also been preferred by the State seeking enhancement of sentence imposed upon the respondent­accused for conviction u/s.363 & 366 IPC.

3. The facts in brief are as under; The complainant, Mohanbhai Chaganbhai, was a resident of Village Kanuki and was engaged in the business of selling cattle at the time when the alleged incident took place. The complainant has five daughters and two sons.

3.1 It is the case of prosecution that the complainant and his family members used to sleep in the veranda of their house in the night. On 27.06.2004, in the late night hours, Samjuben, the wife of the complainant woke up and found that one of their daughters was not present. Therefore, she woke up her family members and all of them carried out search for Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat May 07 05:06:56 IST 2016 R/CR.A/1503/2005 JUDGMENT her. At around 1000 hrs., one Nanabhai came and informed the complainant that his daughter has been taken away by his son, the appellant herein, under the pretext of marriage.

3.2 A complaint in connection with the aforesaid incident was lodged with Babara Police Station vide I­C.R. No.46/2004. Necessary investigation was done and the accused came to be arrested. At the end of investigation, charge­sheet was filed against the accused before the trial Court. However, since it was a sessions triable offence, the case was committed to Sessions Court and ultimately, trial was initiated.

4. During the trial, the prosecution had examined following witnesses;

5. The prosecution had produced and relied upon several documentary evidence, particularly, the arrest panchnama at Exh.7, panchnama regarding seizure of clothes of survivor at Exh.8, complaint at Exh.12 and Medical Certificate of survivor at Exh.17.

6. At the end of trial, the Court below recorded further statement of accused u/s.313 of Cr.P.C. and thereafter, passed the impugned judgment and order, which has led to the filing of present appeals.

7. Ms. C.M. Shah, learned APP, submitted that the sentence imposed by the Court while convicting the respondent­accused u/s.363 & 366 IPC is on the lower side looking to the gravity of offence. It was submitted that the Court below has not appreciated the evidence of survivor in its proper perspective. Her evidence proves that she was threatened by the respondent­accused and was compelled to stay with him at Surat during which period the respondent committed the offence of rape on her. It was, therefore, prayed that both the appeals deserve to be allowed.

Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat May 07 05:06:56 IST 2016 R/CR.A/1503/2005 JUDGMENT

8. Mr. P.B. Khambholja, learned counsel appearing for the respondent­accused, submitted that insofar as the offence of rape is concerned, the medical evidence on record does not support the prosecution story. There is nothing on record to prove that the respondent­accused committed the said offence on the survivor. Hence, the Court below was justified in acquitting the respondent of the charge u/s.376 IPC.

8.1 It was submitted that the sentence imposed upon the respondent for conviction u/s.363 & 366 is just and appropriate since the accused was of a very young age at the relevant time and it was not proved that he was guilty of the offence u/s.376 IPC. Therefore, the punishment imposed upon the accused is appropriate and the same may not be enhanced.

9. We have heard learned counsel for both the sides and perused the documents on record. The Court below examined the survivor as PW­2. However, her evidence was not found to be reliable and trustworthy inasmuch as in her police statement, she has stated that she was Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat May 07 05:06:56 IST 2016 R/CR.A/1503/2005 JUDGMENT into a relationship with the respondent and that they used to frequently meet at a nearby Temple during the night hours. However, in her evidence before the Court below, she has deposed that the respondent had lured her to run away along with him. However, in her cross­examination, she has admitted that they used to frequently meet at a nearby temple during the night hours without the knowledge of her family members and that her friends also doubted that she was into a relationship with the respondent. Thus, from the cross­ examination of the survivor, it is established that she and the respondent were into a love­ affair, which was not within the knowledge of the complainant or her family members. In fact, it has come out from her cross­ examination that she had willingly accompanied the respondent.

10. Insofar as the offence u/s.376 IPC is concerned, admittedly, the prosecution had not produced any document, viz. Birth Certificate, to prove the age of survivor. As per the Medical Certificates (Exhs.17 & 18), the age of the survivor was found to be some where between 16 to 19 years. Therefore, the sexual Page 7 of 8 HC-NIC Page 7 of 8 Created On Sat May 07 05:06:56 IST 2016 R/CR.A/1503/2005 JUDGMENT act of the survivor with the respondent, if any, has to be termed as consensual and will not constitute rape considering her evidence (Exh.13).

11. Considering the aforesaid aspects of the case, the Court below was justified in convicting respondent­accused for the offences punishable u/s.363 & 366 IPC and in acquitting him of the charge u/s.376 IPC. We are in complete agreement with the reasonings given by and the findings arrived at by the Court below and hence, find no reasons to entertain these appeals.

12. For the foregoing reasons, both the appeals are dismissed. The bail bonds, if any, stand cancelled.

(K.S.JHAVERI, J.) (BIREN VAISHNAV, J.) Pravin/* Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat May 07 05:06:56 IST 2016