RAJESHKUMAR HASANAND BALVANI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present appeal has been filed by the appellant-accused against the judgment and order dated 30.09.2003 passed by learned Additional Sessions Judge, Court No.18, Ahmedabad in Sessions Case No.226 of 2002, whereby the appellant accused was convicted for the offence under Sections 363 and was acquitted from the charges of Sections 366 and 376 of the Indian Penal Code. The appellant was convicted and sentenced to undergo rigorous imprisonment for a period of five years and ordered to pay Rs.1,500/- fine, for offence under Section 363 of the Indian Penal Code, and in default, rigorous imprisonment of two months was imposed.

(2.) The case of the prosecution in short is that:-

(3.) Learned Senior Advocate Mr.Yogesh S. Lakhani, assisted by Ms.Rinny Kantaria, learned Advocate for the appellant has taken this Court through the entire records and proceedings and argued that the accused came to be acquitted for the major offences punishable under Sections 366 and 376 of the Indian Penal Code, however convicted him under Section 363 of the Indian Penal Code on technical grounds holding that the victim was aged below 18 years, which is not sustainable at law. Ms.Kantaria further argued that no conclusive documents in order to prove the age of the victim was produced on record. According to her submission, the school leaving certificate which came to be produced at Exhibit 14 indicated her date of birth to be 25.05.1980 whereas the incident alleged to have been occurred on 20.12.1997. Consequently therefore, in view of the aforesaid school leaving certificate her age was determined by the learned trial Court to be 17 years and 7 months. However, the learned trial Court on the basis of deposition of the mother of the victim that at the time of school admission her age was undermentioned for about 1 year and even while seeking the school admission, the birth certificate was produced by her father but the same was not produced by the prosecution in order to prove the correct date of the birth which is maintained by the Registrar of Birth and Death Registration.