ARVINDBHAI VIRJIBHAI SOLANKI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these appeals have been preferred by the appellants-accused against the judgment and order dated 29.9.2007 passed by learned Presiding Officer, 3rd Fast Track Court, Gondal, Camp at Upleta, in Sessions Case No. 129 of 2007, whereby the appellants-accused were convicted for the offence under Sections 363, 366, 376 and 506 (2) of the Indian Penal Code (for short, "IPC"). The appellants were convicted for offence under Sections 363 and 366 of IPC and were sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay fine of Rs. 5,000/- each, and in default of payment of fine, further imprisonment of six months was imposed. The accused No. 1 was convicted and sentenced to rigorous imprisonment for life and ordered to pay fine of Rs. 15,000/- for offence under Section 376 of the Indian Penal Code, and in default of payment of fine, simple imprisonment for a period of one year was imposed. The accused No. 2 was convicted and sentenced to rigorous imprisonment for ten years and ordered to pay fine of Rs. 10,000/- for offence under Section 376 of the Indian Penal Code, and in default of payment of fine, simple imprisonment for a period of eight months was imposed. The appellants were also convicted for offence under Sections 506 (2) of IPC and were sentenced to undergo rigorous imprisonment for a period of one year. Being aggrieved by the impugned judgment, both these appeals are preferred by the accused persons before this Court.

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

(3.) Mr. Y.S. Lakhani, learned Senior Advocate appearing with Mr. Dave for the appellants-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. Mr. Lakhani submitted that none of the prosecution witnesses have supported the case of the prosecution. He further submitted that it is an admitted position that the victim was above 17 years of age at the time of commission of offence. He further submitted that the Court below has seriously erred in not appreciating the fact that the prosecutrix was in love with the appellant-accused No. 1. He submitted that in view of this no offence under Section 376 of IPC can be said to have been proved against the accused persons. He also submitted that even the victim had stated in her statement that she went with the accused on her own. Therefore, no case of offence under Sections 363 or 366 is made out against the accused persons. He further submitted that the matter was already settled between the parties and they were likely to get married, however, in view of pronouncement of judgment by the trial Court, the settlement could not be acted upon. He further submitted that the Court below has seriously erred in taking cognizance of offence of rape. It is submitted that Court below has failed to consider the evidence on record which shows the age of the prosecutrix was more than 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. Therefore, he submitted that the accused have not committed any offence and they may be acquitted by setting aside the impugned judgment. He further submitted that there was absence of any force or coercion on the part of the appellants and therefore offence of kidnapping is also not made out. He further submitted that Court below has failed to consider that this was a case of love affair, and, therefore this was not a case of rape or kidnapping. He submitted that in view of above, this appeal may be allowed and the judgment and order of the lower Court may be reversed.