BADRUBHAI BAVKUBHAI DARIYA KATHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS appeal arises out of the judgment and order rendered by the Ld. Addl. Sessions Judge, F. T. C. No. 4, Bhavnagar, in Sessions Case No. 119 of 2004 on 2/4/2005 convicting the appellant for offences punishable under sections 363, 366 and 376 of the Indian Penal Code [ipc] and sentencing him as under : 1. U/s. 363 of IPC -R. I for two years and fine of Rs. 1,000/-, i/d. S I for ten months, 2. U/s. 366 of IPC -R. I for three years and fine of Rs. 1,000/-, i/d. S I for ten months, 3. U/s. 376 of IPC -R. I for ten years and fine of Rs. 3,000/-, i/d. S I for twenty months.

(2.) AS per the prosecution case, the appellant kidnapped the daughter of one Dayaram Purandas Dudhrejia, who according to the prosecution, was aged 15 years and 3 months on the day of the incident. According to the prosecution, the appellant raped the prosecutrix on number of occasions after kidnapping her. The uncle of the prosecutrix - Kandas Purandas Dudhrejia lodged an FIR on 11/4/2004, initially for the offences punishable under sections 363 and 366 of the IPC, on basis of which offence was registered and investigation started. The prosecutrix and the appellant were traced by the police on 2/5/2004 and came to be apprehended. Both were subjected to to medical examination and on basis of the medical examination, offence punishable under section 376 of the IPC also was added. The police having found sufficient evidence against the accused - appellant, filed charge-sheet in the Court of the Judicial Magistrate First Class, Botad, who in turn committed the case to the Court of the Sessions at Bhavnagar as the offences were triable by Court of Sessions. Sessions Case No. 119 of 2004 thus came to be registered.

(3.) LD. Advocate for the appellant Ms. Nita Merchant submitted that the conviction is based on a premise that the prosecutrix was under-aged, but if the evidence is seen, the evidence regarding her age is doubtful. She has drawn our attention to the birth certificate issued by the Local Health Authority exh. 28, where name of the child born is not indicated. In the column of sex of child, female is scored out and column no. 5 indicates that child is born at CHC Botad. She has then turned our attention to the deposition of mother of the prosecutrix, wherein she stated that prosecutrix was born at Botad at home and not at the hospital and she then submitted that the school leaving certificate and the extract of general register of the school though indicate the date of birth of the prosecutrix to be 15/12/1988, they are not the conclusive evidence of date of birth and, therefore, the evidence regarding age of the prosecutrix being less than 16 years is doubtful. She submitted that the conduct of the prosecutrix would clearly go to show that she was a consenting party. The prosecutrix has admitted that earlier also she had gone away with the appellant on 2 to 3 occasions, but no complaint was made. This time also the prosecutrix had gone with the appellant and stayed together for a period of about 20 days, during which she has not made any complaint nor has she tried to escape from the appellant. She, therefore, submitted that the prosecutrix was consenting party and, therefore, no offence can be said to have been constituted punishable under section 376 or section 366 of the IPC. She submitted that the sentence awarded by the trial Court is even otherwise on higher side and, therefore, appeal may be appropriately allowed.