STATE OF GUJARAT Vs. SHANKERBHAI KALUBHAI RAVAL

JUDGEMENT

(1.) THE present appeal has been filed under Section 11 of the Probation of Offenders Act by the State of Gujarat against the order dated 8.6.1992 passed by the learned Assistant Sessions Judge, Rajkot in Sessions Case No. 28 of 1990 whereby the learned trial Judge has convicted the respondent accused for the offences punishable under Sections 363 and 366 of the Indian Penal Code and released the respondent accused on probation.

(2.) IT is the case of prosecution that the accused abducted Mukti Gandubhai (PW 3) who was staying in his neighbourhood on 9.12.1989 in the afternoon when her family members had gone out by promising to marry her. Thereafter, the accused had taken Mukti towards Kutch -Mandvi and had stayed with her for 15 days. During this period the accused established sexual relationship with Mukti. It is further the prosecution case that victim Mukti was only 15 years of age at the time of incident and therefore any consent given by her for having intercourse is inconsequential.

(3.) MUKTI who has been examined as a witness by the prosecution, has herself admitted that she was in love with the accused Shanker and had gone away with her on 25.12.1989. She has further stated that she had married Shankar prior to their leaving the house. She has also admitted that she stayed with Shankar for 15 days somewhere in Mandvi area. She has however denied having any physical relationship with Shankar. The medical evidence produced by the prosecution also does not indicate any injury on her genitals. However, Dr. Reeta Patel PW -1 who examined victim Mukti on 25.12.1989 has stated in her evidence that possibility of the girl having had sexual intercourse cannot be ruled out. In view of the admission made by Mukti of having gone with accused Shankar, the trial Court convicted the accused for offence punishable under Section 363 and 366 of the Indian Penal Code. The trial Court, relying on the testimony of victim Mukti that she did not have any sexual intercourse with accused, acquitted the accused of the charge under Section 376 of the Indian Penal Code. As regards sentence, the learned trial Judge released the accused on probation of Offenders Act, primarily for the reason that during the pendency of trial the accused had married victim Mukti.