KANUJI CHAHERAJI THAKORE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal has been filed by the appellant-accused against the judgment and order dated 5.7.1990 passed by learned Additional Sessions Judge, Ahmedabad Rural in Sessions Case No. 103 of 1989, whereby the appellant-accused was convicted for the offence under Sections 363, 366 and 376 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay Rs. 1,000.00 fine for offence under Sections 363 and 366 of the Indian Penal Code. The appellant was convicted and sentenced to rigorous imprisonment for ten years and ordered to pay fine of Rs. 2,000.00 for offence under Sec. 376 of the Indian Penal Code, and in default of payment of fine, simple imprisonment for a period of one year was imposed.

(2.) The case of the prosecution in short is that:-

(3.) It is submitted by Mr. Buddhbhatti, learned advocate for the appellant that had the learned trial Judge gone through decisions of the Apex Court he would not have convicted the accused. He submitted that it is an admitted position that the appellant was hardly 19 years of age and as per the birth record, birth date of the girl was 28.9.1971 and the incident occurred in the year 1988. Therefore, Mr. Buddhbhatti has submitted that the trial Court has committed serious error in not appreciating the fact that the Birth Date of the prosecutrix was proved to be 28-9-71 as per the school Register and she cannot be considered minor at the time of offence. He also submitted that the Court below has gravely erred in putting reliance on Birth Register of Mangrda village where birth date is shown to be 28-12-1972, as no source for recording above date is produced or it was a doubtful entry. He further submitted that the Court below has seriously erred in not appreciating the fact that the prosecutrix was in love with the appellant and she was has stated on oath that at her instance appellant accompanied her. He also submitted that the Court below has seriously erred in taking cognizance of offence of rape which is committed at Surat. It is submitted that Court below has failed to consider the medical evidence which shows the age of the prosecutrix to be 17 years, and, therefore, the evidence also supports defence. He further submitted that the Court below has failed to consider that the prosecutrix was matured enough to understand the act of sexual intercourse and it cannot be said that such act was done with force or coercion. He also relied upon the statement of Natvardan Shankardan Ratnu, Exh.32, who is the Head Master of Viramgam Kumar Shala No. 4. It is stated by the accused that the prosecutrix was studying in the aforesaid school and her date of birth is 28.9.1971. He also stated that Somabhai Shankarbhai, who is Talati-cum-mantri, was also examined by the prosecution, however, since entries regarding date of birth of the prosecutrix are made subsequently by him, such entries cannot be believed and according to school record her date of birth is 28.9.1971 and she cannot be considered as minor. Therefore, he submitted that he has not committed any offence and he may be acquitted.