(HONOURABLE MR.JUSTICE A.L.DAVE)

1. The appellant came to be tried by Sessions Court, Bhavnagar for offences punishable under Sections 363, 366 read with Section 114, Section 376 read with Section 114 and Section 506(2) read with Section 114 of the Indian Penal Code ('IPC', for short) along with co-accused Arvindbhai Anandbhai Khasiya in Sessions Case No.123 of 2007. At the end of the trial, co-accused Arvindbhai Anandbhai Khasiya came to be acquitted by the sessions Court, and the present appellant came to be convicted for offences punishable under Sections 363, 366, 376 and 506(2), all read with Section 114 of the IPC and sentenced as under:-

Sections Punishment

U/s.363 r/w.Sec.114 of the IPC R.I for two years and fine of Rs.1000/-, in default R.I for one month.

U/s.366 r/w.Sec.114 of the IPC R.I for three years and fine of Rs.3000/-, in default R.I for three months.

U/s.376 r/w.Sec.114 of the IPC R.I for ten years and fine of Rs.5000/-, in default R.I for six months.

U/s.506(2) r/w.Sec.114 of the IPC R.I for one year and fine of Rs.1000/-, in default R.I for one month.

The judgment was rendered on 15.11.2007 and all the sentences were ordered to run concurrently.

2. The facts of the case, in brief, are that the appellant co-accused happen to be distant cousins interse, and they also happen to be distant cousins of the father of the prosecutrix i.e. Shri Kanabhai Bachubhai Khasiya. The prosecutrix is the daughter of Kanabhai Bachubhai Khasiya and his wife Labhuben Kanabhai Khasiya. According to the prosecution case, the father of the prosecutrix, who is also the first informant and the appellants stay in their respective house, located in vicinity of each other. On 31.1.2007, mother of the prosecutrix noticed that the prosecutrix had bouts of vomitting. On being asked, the prosecutrix did not give any detail and was taken to a Gynecologist at Bhavnagar, who upon examination diagnosed that the prosecutrix was pregnant of four months. After returning home, on intensive questioning by the mother, the prosecutrix is said to have told the mother that the appellant as well as the co-accused Arvindbhai lured her by promising gold and silver ornaments etc. and entered into coitus repeatedly for ten to fifteen times, as a result, she had become pregnant. On this disclosure by the prosecutrix, the father lodged an FIR on 31.1.2007 with Vartej Police Station, implicating both the accused persons. An offence was registered and investigation started. The prosecutrix as well as both the accused persons were subjected to medical examination and samples for deoxyribonucleic acid ('DNA', for short) matching were also taken and sent to Forensic Science Laboratory ('FSL', for short). The FSL found that the DNA results did not match with co-accused Arvindbhai and submitted a report that the DNA profiles of Arvindbhai Anandbhai excluded him as biological father of the foetus of the prosecutrix, whereas the test concluded that DNA profiles of the present appellant was consistent as biological father of the foetus of the prosecutrix. The police having found sufficient material against the accused persons, filed chargesheet in the Court of JMFC, Bhavnagar, who in turn committed the case to the Court of Sessions and Sessions Case No.123 of 2007 came to be registered.

2.1 The charge was framed against the accused persons at Exh.5, and both the accused pleaded not guilty and claimed to be tried.

3. During the course of trial, the prosecution examined the first informant, his wife, the prosecutrix, the Doctor who took samples, and who examined the accused persons, and the FSL expert, besides the I.O. as major witnesses. The mother of the prosecutrix did not support the prosecution case and was declared hostile. The father of the prosecutrix and prosecutrix herself also did not support the prosecution case against the accused persons. They were, however, not treated as witnesses hostile to the prosecution.

3.1 The trial Court upon considering the ev