AJAY VAGHJIBHAI KARENA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE appellant was accused before Sessions Court, Rajkot, in Sessions Case No. 5 of 2005, facing charges for offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. He came to be convicted for those offences and was punished as under :-

(2.) THE facts of the case, in brief, are that the appellant kidnapped minor daughter of the first informant, Valjibhai Bhagwanbhai Gohil, from his residence at Rohidaspara, Street No. 11, Rajkot, around 14. 30 hours on 13th August, 2004. He took her to various places and raped her on number of occasions. The first informant lodged his F. I. R. with Rajkot "b" Division Police Station, on the basis of which offence was registered and investigated. The police, having found sufficient evidence, filed charge sheet in the Court of Chief Judicial Magistrate, Rajkot, who, in turn, committed the case to the Court of Sessions, as the offences with which the appellant was charged were triable by the Court of Sessions.

(3.) LEARNED Advocate, Mr. Tolia, for the appellant submitted that the Trial Court has failed to appreciate that the age of the prosecutrix is not proved by the prosecution beyond reasonable doubt and, if the age is not proved, there is no question of kidnapping or abduction. He submitted that, if the evidence of the prosecutrix is seen, it is clear that she was a consenting party to the appellant in the entire episode and, therefore, in absence of proof of age, offence of rape cannot be said to have been established by the prosecution. The Trial Court has overlooked this aspect and has recorded conviction and, therefore, the appeal may be allowed.