MAHENDRABHAI @ MAHILO RAIJIBHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order dated 22.06.2015 passed by learned 3rd Additional Sessions Judge, Nadiad, in Sessions Case No.28 of 2014, whereby the appellant-original accused is held guilty for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. For the offence under Section 363 of IPC, the accused was ordered to undergo five years' rigorous imprisonment with fine of Rs.500/- and, in default of payment of fine, to undergo further rigorous imprisonment of month. For the offence under Section 366 of IPC, the accused was ordered to undergo seven years' rigorous imprisonment with fine of Rs.1,000/- and, in default of payment of fine, to undergo further rigorous imprisonment of two months. For the offence under Section 376 of IPC, the accused was ordered to undergo ten years' rigorous imprisonment with fine of Rs.1,000/- and, in default of payment of fine, to undergo further rigorous imprisonment of two months. All the sentences were ordered to run concurrently.

(2.) As per the case of the complainant, the complainant is residing in his field and on 21.7.2013, his daughter-Laxmiben went to the village for grinding of the flour, however, she did not return till evening and, therefore, he went on to inquire about her but she was not found. It is stated by the complainant in the complaint that his daughter is aged about 17 years and 8 months and has studied upto 7th standard. As she did not return home, the complainant lodged a Janjvjog entry with police on 24.7.2013. Thereafter, on 29.7.2013, complaint was lodged wherein it is stated that the accused Mahendra @ Mahilo Raijibhai Parmar was used to come to the house of his maternal uncle Kalabhai Hemabhai and since the complainant was having doubt on him, he along with his family members went to the house of the accused, upon which one Arvindbhai told them that the accused had borrowed Rs.200 from him on 21.7.2013 and since then he went away from the village. The victim was also not found from 21.7.2013, therefore, it appeared to the complainant that the accused had taken away his daughter. Though the accused is a married person, on 21.7.2013, he kidnapped the daughter of the complainant, who was 17 years and 8 months old at the relevant time and by taking her to various places on the false promise of marrying her committed rape on her several times. With these allegations, complaint was filed against the accused being I-C.R.No.50 of 2013 before Kapadvang Police Station.

(3.) The appellant-accused has, inter alia, contended that he is innocent and has been wrongly convicted by the Trial Court. While referring the evidence of prosecution witnesses, it is contended that the complainant has admitted in his crossexamination that he has no personal knowledge about the incident and has not seen anyone going with the prosecutrix. According to the appellant, the complainant has also stated that his daughter has returned after 2 months and this witness has not given any positive evidence against the appellant. Regarding medical evidence, it is contended that the doctors who have examined prosecutrix have clearly stated that the prosecutrix has given history to the effect that willingly she had intercourse with the appellant for many times and last such intercourse was before medical examination. The appellant has also contended that according to the medical evidence, the prosecutrix appeared to be major and there was no mark of use of any force. While referring to the evidence of the prosecutrix, it is contended by the appellant that initially the prosecutrix was hesitant to talk with the appellant and thereafter relationship was developed between them and she was aware that the appellant is already married. It is also contended by the appellant that she has stated in her deposition that she voluntarily had physical relationship with the appellant and she had stayed with the appellant for 2 to 2 months. It is also contended that the prosecutrix had travelled with him to various places like Himmatnagar, Nanagar, Vijapur, etc. It is also contended that the prosecutrix has stated in her evidence that she had refused to get married with the appellant and the entire conduct of the prosecutrix suggests that there was consent on the part of the prosecutrix in having sexual relations with the appellant.