DILIPBHAI GANESHBHAI MAKWANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These appeals are preferred against the judgment and order dated 21.2.2005 passed by learned Additional Sessions Judge, Vadodara, in Sessions Case No. 167 of 2002. By the impugned judgment, accused No. 1 was held guilty for the offences punishable under Ss. 363, 366 and 376 of the Indian Penal Code (for shot, "IPC") and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 1,000/ - and, in default of payment of fine, further imprisonment of one month was imposed for each offence. All the sentences were ordered to run concurrently. Accused No. 2 was acquitted of all the charges levelled against him. Feeling aggrieved by the impugned judgment, accused No. 1 has preferred Criminal Appeal No. 677 of 2005, Criminal Appeal No. 1231 of 2005 is preferred by the State for enhancement of sentence imposed upon accused No. 1, while Criminal Appeal No. 1233 of 2005 is preferred against acquittal of accused No. 2.

(2.) The facts in brief giving rise to the filing of present appeal are as under: - -

(3.) At the time of hearing of these appeals, Mr. B.S. Patel, learned advocate for the appellant of Criminal Appeal No. 677 of 2005 -accused No. 1 has taken us through the evidence and tried to establish that the prosecution has miserably failed to prove its case against the appellant. Mr. Patel submitted that the victim has stated during investigation that she was not taken away forcefully and she was neither raped nor any threat was given to her, therefore, there is contradiction in her statement before the police and the deposition recorded before the Court. He also submitted that the learned trial Judge has erred in relying on the evidence of the prosecutrix, as there are serious omissions and contradictions in her statement. He further submitted that this is a case of love affair and the victim had gone with the accused willingly and there was no force on the part of the accused. He further submitted that as per the prosecution case the victim was taken to different places by train or bus, therefore, she had a chance to run away or to make hue and cry, however, nothing is done by her. He also submitted that as per the medical evidence there were no injuries on the body of the victim, therefore, it is difficult to believe that the alleged offence is committed by the accused. He also submitted that for proving the age of the prosecutrix birth certificate is not produced and a certificate of Principal of a school is produced, which could not have been treated as a conclusive evidence. He further submitted that even ossification test has not been performed on the prosecutrix to ascertain her age. In view of these submissions, he prayed that this appeal may be allowed by setting aside conviction of accused No. 1.