PRAVIN @ KANA AMRUTLAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant-orig.accused no.1 (hereinafter referred to as 'the appellant') has preferred the present appeal under Section 374 of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction and sentence dated 30th November 2005, passed by the learned Additional Sessions Judge, Fast Track Court No.1, Bhavnagar, in Sessions Case No.18 of 2006, whereby the learned trial Judge has held the orig. accused persons guilty for the charge of offences punishable under Sections 363, 366 and 376 read with Section 114 of the Indian Penal Code, and sentenced the appellant to undergo rigorous imprisonment for two years and a fine of Rs.1000/-; rigorous imprisonment for three years and a fine of Rs.2000/- and rigorous imprisonment for seven years and a fine of Rs.5000/- for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code respectively. The indefault punishment i.e. on non-payment of amount of fine, is prescribed as six months, one year and two years for all these offences respectively.

(2.) Shri P.K. Shukla, learned counsel appearing for the appellant, has taken me through the judgment and order under challenge and the oral as well as documentary evidence led during the course of trial, and has submitted that the victim girl had left her parental home with her neighbours-orig. accused persons i.e. present appellant and his wife Sonalben. The said Sonalben was joined as orig.accused no.2 and she was also held guilty for inducing the victim girl to leave the shelter of guardianship of her parents. According to Shri P.K.Shukla, the orig.accused no.2-Sonalben who was held guilty for the offences punishable under Sections 363, 366 and 376 read with 114 of the Indian Penal Code, was not awarded any additional punishment than the period already undergone by her as an under-trial prisoner. No appeal has been preferred by the respondent-State under Section 377 of the Code of Criminal Procedure, 1973 against the said orig.accused no.2-Sonalben. On careful reading of the judgment under challenge, it emerges that both the accused persons were residing in the neighbourhood of the family of the victim girl and as the present appellant was to go out during night hours, at the request of Sonalben, the victim girl was going to the residence of the appellant so that she could give company to orig.accused no.2-Sonalben; and the parents of the victim girl were sending the victim at the residence of the accused persons. The victim girl was engaged with a boy and it is the case of the prosecution that the appellant was condemning the boy with whom the victim was engaged and simultaneously tempting her to develop relations with him and on the date of incident, the appellant kidnapped the victim girl. Both of them had moved to some places and thereafter, they had started residing at Rajkot. During this period, the appellant had raped the victim against her wish and will. Thereafter, the appellant left Rajkot and ultimately, fetched Sonalben i.e. orig.accused no.2. Thereafter, all the three (orig.accused persons and victim) were residing at Rajkot. It is in evidence that the appellant is physically handicapped person and he used to beg flour. They were consuming the said flour and the remaining/additional flour was being sold by them and thereby they were maintaining themselves. During the stay of victim with the appellant and orig.accused no.2, the appellant had committed rape on her against her wish and will.

(3.) The learned trial Judge on evaluation of evidence has held that some element of consent emerging from the conduct of the victim has no relevance because there is ample evidence to show that the victim was below 15 years of age.