PANKAJKUMAR CHHANALAL SHAH Vs. KANUBHAI DEVRAJI FULAN

JUDGEMENT

(1.) As both the appeals arise from the common judgment and order passed by the learned Sessions Judge, they are being considered simultaneously.

(2.) The short facts are that Sureshkumar Durgadas Sharma PW-2 on 21.10.2005 filed the complaint stating that he is having one daughter and two sons and eldest is Mina the victim having birth date of August 20, 1991, studying in 10th Standard in Prakash Hindi High School. As per the complainant, on 19.10.2005 when he came back during late night time to his residence, he was informed by his wife that the victim had not returned after tuition since 5.00 p.m. and, therefore, he inquired with the tuition teacher Kamal Sharma on mobile for confirming as to whether the victim had come for tuition or not and he was informed that she had proceeded to go for residence at 3.30 p.m. Therefore, the complainant further inquired with the friend of the victim Rajender Kaur, but she did not properly reply and conveyed that he may inquire on mobile No.9879030462. The complainant when inquired on phone, the accused conveyed to him that he may stop searching the victim and he may not be named and then phone was discontinued. As per the complainant, the accused aged 22 years had kidnapped his daughter and, therefore, the complaint was filed with Naroda Police Station.

(3.) The aforesaid complaint was investigated by the police and, thereafter, the chargesheet was filed. The case was committed to the Sessions Court being Sessions Case No.442 of 2006. Learned Sessions Judge framed the charge for the offences under sections 363, 366 and 376 of Indian Penal Code, but as the accused did not plead guilty, the trial was conducted. The prosecution in order to prove the guilt of the accused examined 9 witnesses, details of which are mentioned by learned Sessions Judge at page 4 of the judgment. The prosecution also produced documentary evidences of the relevant documents, details of which are also mentioned by learned Sessions Judge at the very paragraph of the judgment. Learned Sessions Judge, thereafter, recorded the statement of the accused under section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") wherein the accused denied the evidence against him and in further statement, he has stated, inter alia, that the victim, because of the dispute at her residence, was to commit suicide, but he tried to save life of the victim and he became emotional and in order to save life of the victim, he acted as per the desire of the victim and he is innocent and no offence is committed by him. On behalf of the defence, one witness was examined and the documentary evidence of pay slip of the Punjab National Bank was also produced. Learned Sessions Judge, thereafter, heard the prosecution and defence and found that the prosecution has not been able to prove the case for the offences under sections 363 and 366 of Indian Penal Code. He also found that sexual intercourse was not with consent of the victim and on the aspect of age, learned Sessions Judge found that even if the evidence of age is considered as doubtful, but as sexual intercourse is without consent of the victim, the case can be said as proved for the offence under section 376 of Indian Penal Code. Learned Sessions Judge, thereafter, acquitted the accused for the offences under sections 363 and 366 read with section 506(2) of Indian Penal Code and convicted the accused for the offence under section 376 of Indian Penal Code. Learned Sessions Judge heard the prosecution and defence for sentence and recorded the reasons that as the victim had left the home, instance of rape is only once and considering the conduct of the victim, it is the case for imposition of sentence less than minimum and, therefore, learned Sessions Judge imposed the sentence of 5 years rigorous imprisonment with fine of Rs.2000/-, and further 3 months simple imprisonment for default in payment of fine. It is under these circumstances, the original accused has preferred the appeal against the conviction being Criminal Appeal No.1144 of 2010. As learned Sessions Judge has imposed the sentence of 5 years only for the offence under section 376 of Indian Penal Code, the State has preferred the appeal for enhancement of sentence being Criminal Appeal No.1408 of 2010. It may also be recorded that the State has not preferred any appeal against acquittal of the accused for the charge of sections 363, 366 and 506(2) of Indian Penal Code.