1.0 Present appeal under Section 374 of the Code of Criminal Procedure has been preferred by the appellantoriginal accused challenging the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Bharuch camp at Ankleshwar passed in Sessions Case No. 45 of 2011 by the learned trial Court has ordered to undergo sentence of 5 years SI and imposed fine of Rs.30,000/ and in default to undergo simple imprisonment of two years.
2.0 That FIR was lodged against applicantoriginal accused with the Umalla Police Station being CRI No.14 of 2011 for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code alleging inter alia that the applicant has kidnapped the victim the girl who is at the relevant time aged 14 years 4 months and 1 day and was having sexual intercourse with her by which she become pregnant. After the investigation was concluded the applicant came to be chargesheeted for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code and the case was committed to the learned Sessions Court, Bharuch. The charge for the aforesaid offences was framed against the appellant. The appellant pleaded not guilty and therefore, he came to be tried in Sessions Case No.45 of 2011. To prove the case, the prosecution examined number of witnesses i.e. original complainant at Exh.24; father of the victim Fatesinh Vasava at Exh.27; victim herself at Exh.28; brother in law of the complainant Prambhbhai Chaturbhai Vasava at Exh.29; one Jasvantiben Fatesinh Vasava at Exh.30; Dr. Sureshnandan Ramnarayan Yadav who examined the victim at Exh.32. The prosecution also examined said witnesses. Number of documentary evidences which were collected during the course of investigation inclusive of medical certificate of the Doctor who examined the victim; panchnama of place of offence etc. also came to be produced which are exhibited. Further statement of the accused also came to be recorded under Section 313 of the Code of Criminal Procedure. It was the case on behalf of the appellant accused that both the appellant and victim were in love and that victim had gone voluntarily with him and therefore, has not committed any offence under Sections 363 and 366 of the Indian Penal Code. It was also the case of the appellant accused that the victim had sexual intercourse with the appellant with consent and therefore, it was requested to acquit him.
2.1. On appreciation of evidence the learned trial Court held that the appellant had not committed any offence under Sections 363 and 366 of the Indian Penal Code. However, considering the fact that the age of the victim at the relevant time was 14 years 4 months and 1 day and he had sexual intercourse with victim who also become pregnant, it was held that the appellant has committed offence under Section 376 of the Indian Penal Code. Consequently the learned trial Court held the appellant guilty for the offence under Section 376 of the Indian Penal Code. The appellant accused was heard by the learned trial Court for sentence and considering the fact that the appellant was married having three children and the age of the victim was 14 years 4 months and 1 day, the learned trial Court has imposed sentence of 5 years SI for the offence under Section 376 of the Indian Penal Code and also imposed fine of Rs.30000/ and in default to undergo further two years S.I. The learned Judge has also recorded that during the trial the victim has delivered child. Therefore, the learned trial Court has directed to pay 25,000/ to the victim out of the fine towards compensation.
2.2. Being aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned trial Court, the appellant hereinoriginal accused has preferred present Criminal Appeal under Section 374 of the Code of Criminal Procedure.
3.0 Shri S.K. Bukhari, learned advocate for the appellant has made only one submissions that as the victim was considering party and when the appellant has been acquitted for the offence under Sections 363, 366 of the Indian Penal Code, the learned trial Court has materially erred in convicting the appellant for the offence under Section 376 of the Indian Penal Code. It is submitted that even the appellant was ready and willing to accept the victim as well as child, the learned trial Court has materially erred in convicting the appellant for the offence under Section 376 of the Indian Penal Code and sentencing to undergo 5 years SI with fine of Rs.30,000/. No other submissions have been made. By making above submission, it is requested to admit/ allow the present Criminal Appeal.
4.0 Present Appeal is opposed by Ms. Shah, learned Additional Public Prosecutor for the respondent State. It is submitted that considering the age of the victim i.e. 14 years 4 months and 1 day and considering Section 375 of the Indian Penal Code, no illegality has been committed by the learned trial Court convicting the appellant for the offence under Section 376 of the Indian Penal Code. It is submitted that as the age of the victim was 14 years 4 months and 1 day at the relevant it is immaterial whether victim was consenting party. It is submitted that considering the fact that the appellant was married and father of three children even the submission on behalf of the appellant that he was ready and willing to accept the girl and the child lacks bonafide and only with a view to get out of conviction and therefore, learned trial Court has not committed any error and / or illegality in convicting the appellant for the offence under Section 376 of the Indian Penal Code. By making above submissions, it is requested to dismiss the present Criminal Appeal.
5.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order of conviction and sentence passed by the learned trial Court and also considered the entire evidence on record from the record and proceedings received from the learned trial Court.
6.0 As stated above, Shri Bukhari, learned advocate for the appellant has made only one submission that as the girl / victim was consenting in party and the appellant was ready and willing to accept the girl as well as child the learned trial Court has materially erred in convicting the appellant for the offence under Sections 376 of the Indian Penal Code. The aforesaid has no substance. On evidence it has been proved that the age of the girl / victim at the relevant was 14 years 4 months and 1 day and therefore, whether the girl / victim was consenting party is immaterial. It is required to be noted at this stage that the age of the victim/ girl has been proved by leading the evidence and that the appellant was having sexual intercourse with the girl/ victim is also proved. Under the circumstances, finding given by the learned trial Court with respect to the age and offence committed by the appellant under Sections 376 of the Indian Penal Code has been proved beyond reasonable doubt. Under the circumstance and considering Section 375 of the Indian Penal Code no illegality has been committed by the learned trial Court in convicting the appellant for the offences under Section 376 of the Indian Penal Code. Considering the fact that the appellant was married having three children and still he committed the offence under Section 376 of the Indian Penal Code and having sexual intercourse with the minor girl aged 14 years 4 months and 1 day only and making the victim pregnant, the learned trial Court has rightly passed an order imposing sentence of 5 years SI with fine of Rs.30,000/.
7. In view of the above and for the reasons stated above, there is no substance in the present appeal which deserves to be dismissed and is accordingly dismissed.
“kaushik”
sd/ ( M. R. Shah, J. )