MUKESHBHAI DURGAPRASAD KANOJIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is an appeal arising from the judgment and order passed in Sessions Case No. 84 of 2010, whereby, the learned 2nd Additional Sessions Judge, Surat (for short, 'trial Court') convicted the present appellant-original accused for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860, and sentenced him to undergo rigorous imprisonment for the period of 3 years, 5 years and 7 years so also to pay fine of Rs.1,000/-, Rs.2,000/- and Rs.3,000/- for the respective offence. All the sentences were ordered to run concurrently. The appellant period of sentence undergone by the appellant, as an under-trial prisoner, was to be remitted, as provided under Section 428 of the Code of Criminal Procedure, 1973 (for short, 'the Code').

(2.) The brief facts leading to the filing of the present appeal needs reference at this stage. The case of the prosecution is that the first informant-Satyabhan Dharmraj Rajput, is originally hailing from the State of Uttar Pradesh and is presently residing at Surat along with his family. The eldest daughter of the first informant is aged 15 years and after her there are two sons and another daughter, i.e. total four children and his wife resided as a family at Surat. His eldest daughter was studying in Sharda Hindi School in Standard-10.

(3.) Aggrieved appellant is, therefore, before this Court urging inter alia that serious error has been committed by the learned trial Judge in not appreciating the evidence properly. It is also, further, urged that the prosecutrix had accompanied him on her own in the autorickshaw on a public road, and therefore also, to say that she was abducted is nothing but a mockery. It is also his say that the evidence of the prosecutrix is also not palatable, as she stayed with the appellant for more than 15 days. She had not only gone voluntarily with the appellant but also she had purposely left with the appellant, till the course of law took its turn and the appellant came to be arrested for the FIR, which had been lodged by the father of the prosecutrix. The entire story of illegal confinement is ridiculous, according to the appellant. It was a clear case of love affair between the appellant and the prosecutrix, who both were young. The age of the prosecutrix is not proved by the prosecution beyound in accordance with law. The only person examined, to prove the age of the prosecutrix, is the Principal of the School, where she had studied and on the basis of the same, the Court concluded that she was below 18 years of age. It is, further, the say of the appellant that the amendment is carried out, where the age of the prosecutrix is enhanced to 18 years from 16 years to constitute an offence under Section 375 of the IPC, whereas, the relevant age in this case would 16 years and not 18 years.