Sonia Gokani, J. - (1.)This is an appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short, 'the Code'), against the judgment and order passed by the learned Special Judge, Sessions Court, Patan, Dated: 10.09.2015, rendered in Special POCSO Case No. 34 of 2015 (Old No. Sessions Case No. 22 of 2014), whereby, it convicted the appellant for the offence punishable Sections 363, 366, 376, 506(2) and 114 of the Indian Penal Code and Sections 3(a) and 4 of the Protection of Children from Sexual Offences Act, 2012
(2.)The brief facts in the instant case are as under:
It is the case of the prosecution that the complainant-prosecutrix gave a complaint before the Patan Taluka Police Station on 25.03.2013, wherein, she stated that, on 22.03.2013, there was a function, in the evening, at the house of her uncle, namely Rupsangji, where her entire family had gone and she alone had remained at home to feed the cattle. It is also her case that the appellant, namely Sanjay @ Chakaji Sovanji Thakor, intimated the complainant that he had come to pick her up as her parents had called her at her uncle's place. The appellant being her neighbour, she was familiar with him and chose to accompany him. The complainant-prosecutrix was also familiar with the co-accused, Jenaji Mafaji Thakor, who was standing on the road with an autorickshaw. After the complainant boarded the autorickshaw along with the appellant and the co-accused, the appellant asked the autorickshaw driver to take the autorickshaw towards Balisana and at that time the prosecutrix had protested such a move. However, she was threatened by the appellant and the co-convict of dire consequences, and therefore, she did not raise alarm.

2.1 It is, further, the case of the prosecution that when the autorickshaw reached near Patan cross-roads, the appellant and the coconvict had purchased some snacks from a hotel. Thereafter, the autorickshaw was taken towards Balisana and it was stopped near a borewell situated beside a large canal, lying between Balisana and Sunder villages, in the late night at about 01:30 a.m.. A couple was residing in a room constructed near the borewell. They appeared to be familiar with the appellant, who took the prosecutrix into room, where he is alleged to have raped her two to three times that night. At that time, the said couple and the co-convict had stayed outside the room. On the next day also, the appellant committed rape on her two to three times at late night. Then, on the third day, at about 10:00 p.m., the appellant and the coconvict hired a passenger jeep and dropped the prosecutrix near her house.

2.2 In the meantime, the prosecutrix was being searched for by her parents. On her return on 25.03.2013, a complaint being I-C.R. No. 53 of 2013 came to be lodged with the Patan Taluka Police Station for the offence punishable under Sections 363, 366, 376, 506 and 114 of the IPC and Section 17 of the POCSO Act.

The present appellant and the co-convict came to be arrested on 29.03.2013, whereas, the autorickshaw driver, i.e. original accused No.3, came to be arrested on 01.04.2013. Later on, accused Nos. 2 and 3 came to be released on bail by the trial Court concerned, whereas, the appellant has been in judicial custody, since then.

2.3 The IO filed the first charge-sheet before the Chief Judicial Magistrate, Patan, on 27.05.2013 and the case was initially registered as Criminal Case No. 1615 of 2013. However, since, the case was exclusively triable by the Court of Sessions, it was transferred to Sessions Court, Patan, and was renumbered as Sessions Case No. 22 of 2014. It appears that the IO concerned, subsequently, filed supplementary charge-sheet and the case was, therefore, again renumbered as Special POCSO Case No. 34 of 2015.

2.4 At the time of trial, since, the accused did not plead guilty, the prosecution examined as many as 12 witnesses to bring home the charges levelled against the accused persons.

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2.5 Over and above the oral evidence, the prosecution also adduced the following documentary evidences:

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Letter written for obtaining cellphone call details

2.6 On completion of the recording of the evidence, further statements of the accused came to be recorded under Section 313 of the Code and eventually the trial Court convicted the appellant and the co-accused No.2, namely Jenaji Mafaji Thakor, whereas, accused No.3-autorickshaw driver, namely Nazruddin Husainbhai Sindhi, was acquitted by the trial Court by giving him the benefit of doubt.

(3.)So far as the present appellant is concerned, he is convicted for the offence punishable under Sections 363, 366, 376, 506(2) and 114 of the IPC and under Sections 3(A) and 4 of the POCSO Act.