ASHOKBHAI PUNJABHAI KALASWA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present appeal has been filed by the appellant -accused against the judgment and order dated 24.10.1997 passed by learned Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.27 of 1997, 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.3,000/ - fine for offence under Sections 376 of the Indian Penal Code and in default of payment of fine, rigorous imprisonment for a period of one year was imposed. The appellant was convicted and sentenced to rigorous imprisonment for three years and ordered to pay fine of Rs.1,000/ - for offence under Section 366 of the Indian Penal Code, and in default of payment of fine, rigorous imprisonment for a period of three months was imposed. The appellant was convicted and sentenced to rigorous imprisonment for one year and ordered to pay fine of Rs.500/ - for offence under Section 363 of the Indian Penal Code, and in default of payment of fine, rigorous imprisonment for a period of two months was imposed.

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

(3.) ON the last occasion, accused was present before this Court and since he stated that he has married the prosecutrix, he was asked to keep the prosecutrix present. Since Mr.Japan Dave was present in the Court, he was asked to assist the Court as an amicus curiae. Today, Mr.Dave has produced on record death certificate of the prosecutrix in which accused is shown to be her husband. Mr.Japan Dave, learned advocate for the appellant submitted that had the learned trial Judge gone through decisions of the Apex Court he would not have convicted the accused. It is submitted that it is an admitted position that neither the complainant nor her husband were knowing the exact age of the prosecutrix, therefore, their statement cannot be relied. No proof regarding date of birth of the prosecutrix is also produced on record and learned trial Judge has erred in relying on school register only, wherein date of birth of the prosecutrix was recorded as per the say of the complainant. It is also submitted that such certificate cannot be relied in view of Section 35 of the Indian Evidence Act. It is submitted that in view of various love letters written by the prosecutrix to the accused, it is clear that she left the house on her own volition and the accused did not induce her. Since the accused had married the prosecutrix, it is submitted that a false case of rape is filed against the accused. It is further submitted that the Court below has seriously erred in not appreciating the fact that the prosecutrix was in love with the appellant and they have got married also. It is further submitted that there was absence of any force or coercion on the part of the appellant and therefore offence of kidnapping is also not made out. It is also contended that the delay in lodging the complaint is not explained satisfactorily. It is also submitted that the Court below has seriously erred in not weighing the evidence on record and has failed to appreciate the admitted facts which were in favour of the appellant. It is further submitted that Court below has failed to consider that this was a teen -age affair; that both were of the same cast and were known to each other since long; that therefore this was not a case of rape or kidnapping. He relied on the following authorities, in support of his submission.