PRASHANT KUMAR AGARWAL,J. - (1.) The accused-appellant has preferred this Criminal Appeal under Section 374 Cr.P.C. against the judgement of conviction and order of sentence dated 22.08.2012 passed by the Additional Sessions Judge, Bandikui Camp Mahua (District Dausa) in Sessions Case No.72/2011 whereby the learned trial Court after holding the appellant guilty for offence under Section 366 I.P.C. sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- and in default thereof to further undergo rigorous imprisonment for three months and also holding the appellant guilty for offence under Section 376 I.P.C. sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- and in default thereof to further undergo rigorous imprisonment for three months. It was also directed that both the substantive sentences would run concurrently.
(2.) Brief relevant facts for the disposal of this appeal are that complainant-Shri Umedilal, father of the prosecutrix, submitted written report Ex.P1 at Police Station Mahua on 25.6.2011 with the allegation that on 24.6.2011 when he was away from his home for his work his daughter prosecutrix aged about 16 years was at home alone, one Smt. Madina wife of Shri Gani took her away along with her at about 11-12 a.m. and accused-appellant, who at that time was residing in the house of Shri Gani as tenant, abducted her daughter. It was further alleged in the report that when he came back to his house on 25.6.2011, above incident came into his knowledge. On the basis of this written report, FIR No.306/2011 came to be registered for the offence under Section 366A I.P.C. and investigation commenced. During the course of investigation prosecutrix was recovered on 23.8.2011 in the company of appellant from Katni (Madhya Pradesh) where they were residing together. After investigation charge-sheet was filed against the appellant and charges for offences under Sections 366 and 376 I.P.C. were framed against him. In order to prove the charges, prosecution produced oral as well as documentary evidence whereas appellant in his statement recorded under Section 313 Cr.P.C. denied the evidence produced on behalf of the prosecution and further stated that prosecutrix called him to Gangapur and took him with her initially to Bhopal and subsequently to several other places. Although, in defence no oral evidence was produced but during the cross-examination of prosecution witnesses statements under Section 161 Cr.P.C. were exhibited as D1 to Ex.D4. Learned trial Court after considering the submissions made on behalf of the respective parties and the evidence available on record convicted and sentenced the appellant as already stated.
(3.) Assailing the findings of learned trial Court counsel for the appellant submitted that from the evidence available on record it is more than clear that at the time of the alleged incident prosecutrix was above the age of 16 years and if sexual intercourse took place between appellant and prosecutrix it was with her free will and consent and, therefore, no offence was committed by the appellant, but the learned trial Court did not consider this aspect of the case in a proper perspective. It was submitted that opportunity was available to the prosecutrix at several occasions to resist the act allegedly done by the appellant to raise hue and cry, to escape from the company of the appellant and to complain about the act of the appellant but she did not do so, which is clear indication of the fact that she with her own free will and consent went away with the appellant and physical relation between them took place with her consent. It was also submitted that during the period between 24.6.2011 and 23.8.2011 appellant and prosecutrix resided as husband and wife.;