GARG, J. - (1.) THIS appeal has been preferred by the accused appellant against the judgment and order dated 19. 7. 2001 passed by learned Additional Sessions Judge No. 2, Bhilwara in Criminal Case No. 37/2000 by which he while acquitting the accused appellant for offence under Section 363 and 366 IPC convicted the accused appellant for offence under Sections 376 IPC and sentenced him as under: Offence Sentence awarded 376 IPC 10 years' RI and a fine of Rs. 1000/- in default to further undergo 3 months' SI.
(2.) THIS appeal arises in the following circumstances: (i) On 15. 7. 99, P. W. 1 Prem Singh lodged a written report Ex. P/1 with the police Station Jahajpur stating that on 9. 7. 99, her daughter P. W. 6 Nandu (hereinafter referred to as the prosecutrix) aged 12 to 13 years was enticed and kidnapped by the accused appellant against her will. On 15. 78. 99 he came to know that the accused appellant had taken P. W. 6 Nandu somewhere, therefore, he lodged this report. That on this report, police chalked out regular FIR Ex. P/2 and started investigation and during investigation, P. W. 6 Mst. Nandu was got recovered from Jaipur on 11. 10. 99 from one house at Murlipura through Fard Ex. P/4. P. W. 6 Mst. Nandu was got medically examined by P. W. 8 Dr. Uttam Prakash for the purpose of determination of her clinical as well as radiological age, x-rays of her elbow and knee joint were taken. Her Age certificate is Ex. P/7 which shows that her age was near about 16 to 17 years and the bony age of the prosecutrix was also got medically examined by P. W. 7 Dr. Kavita for the purpose of ascertaining whether rape was committed with her or not and that report is Ex. P/8 which shows that P. W. 6 Nandu was habitual to sexual intercourse. After usual investigation, challan for offence under Sections 363, 366 and 376 IPC was filed against the accused appellant. On 23. 12. 99 the learned trial Judge framed charges for offence u/secs. 376, 363 & 366 IPC against the accused appellant who pleaded not guilty and claimed trial. During trial, 14 witnesses have been produced by the prosecution and thereafter statement of accused appellant under Section 313 Cr. P. C. was recorded and no evidence was led in defence by the accused.
(3.) AT the conclusion of the trial, the learned Additional Sessions Judge vide his judgment and order dated 19. 7. 2001 while acquitting accused appellant for offence under Sections 363 and 366 IPC convicted and sentenced the accused appellant for offence under Section 376 IPC inter alia holding that: (i) On the date of occurrence P. W. 6 Nandu was above the age of 18 years, therefore, no offence under Sections 363 and 366 IPC was found proved. (ii) Even the offence of rape at Jaipur was not found proved by the learned Additional Sessions Judge as per the findings of the learned additional Sessions Judge, she was consenting party at Jaipur, but when she had first sex with the accused appellant in Jungle, for that incident the learned Additional Sessions Judge came to the conclusion that she was raped by the accused appellant and thus he convicted the accused appellant for offence under Section 376 IPC. Aggrieved from the said judgment, this appeal has been filed by the accused appellant. In this appeal, the following submission has been made by the learned counsel for the appellant: when the learned Additional Sessions had disbelieved the major part of the statement of prosecutrix that she was not kidnapped or abducted against her will and even at Jaipur she was living with the accused appellant with her own will and, therefore, the findings of learned Additional Sessions Judge that she was raped in the very beginning are erroneous one and should be set aside and appeal of the accused appellant should be allowed and he should be acquitted. ;