The present appeal is directed against the judgment and order dated 14.10.205 rendered in Sessions Case No.22 of 2002, recording the conviction of the accused for the offences under Sections 363, 366 and 376 of IP Code and imposing sentence of rigorous imprisonment for five years and fine of Rs.5000/-, in default, simple imprisonment for six months for the offence under Section 363 of IP Code and further rigorous imprisonment for seven years and fine of Rs.5000/-, in default, simple imprisonment for one year for the offence under Section 376 of IP Code. But, no separate sentence has been awarded for the offence under Section 366 of IP Code and the sentences have been ordered to run concurrently.

2. The facts of the case, briefly summarised, are as follows:

3. It is the prosecution case that on 22.5.2001 at about 7.30 in the evening the son of brother-in-law informed to come to his village and that his daughter (victim) has gone away somewhere. Thereafter, he made a search with his relatives and as the victim could not be traced, he had also made inquiry about the accused who was also residing in his neighbourhood who had come from Surat was not found for seven days. It is also stated that the accused had sprinkled Gulal during the Holy on the daughter and therefore there was some quarrel for which the complaint was given in the police. Therefore, he had felt that his minor daughter (victim) may have been taken away by the accused for which the complaint was filed with Bilkha Police Station, Junagadh on 23.5.2001 which has been registered as I-CR No. 14 of 2001 for the offences under Sections 363, 366 and 376 of IP Code.

4. On the basis of the complaint given by the complainant, the aforesaid was registered. After the investigation was over, the charge sheet came to be filed. However, as the case was triable exclusively by the Court of Sessions, it was committed to the Court of Sessions and the learned Sessions Judge framed the charges against the accused and proceeded with the trial.

5. In order to bring home the charges levelled against the accused, the prosecution has examined the witnesses and also produced the documentary evidence which shall be referred in the judgment as and when required.

6. After recording of the evidence of the prosecution witnesses was over, the learned Sessions Judge, Junagadh recorded the further statement of the accused under Section 313 of the Code of Criminal Procedure.

7. After hearing the learned APP and the learned advocate for the defence, the learned Sessions Judge, Junagadh recorded the conviction of the accused and sentenced him as stated hereinabove.

8. It is this judgment and order which has been assailed on the grounds set out in the memo of the appeal inter alia that the learned Judge has failed to appreciate the material and evidence on record and has failed to consider the defence raised with regard to the consent. Learned advocate Mr.Tolia referred to the testimony of PW.7 at Exh.28 and submitted that her evidence requires close scrutiny as it is not believable. He submitted that it transpires that she was taken away from place to place where she had the liberty to raise shouts and therefore, the allegations for the offence under Section 376 of IP Code cannot be believed. Learned advocate Mr.Tolia submitted that there was an affair and she had voluntarily accompanied the accused which is also evident from the testimony of the victim PW.7 at Exh.28 and the testimony of Investigating Officer – PW.12 at Exh.41 wherein the said fact is proved by the evidence. He emphasised that the Investigating Officer has in his further statement recorded stated as to what has transpired and the victim had voluntarily accompanied the accused.

8.1 Learned advocate Mr.Tolia submitted that another aspect which is required to be examined is the evidence regarding the age of the victim. He submitted that though the victim was minor below the age of 18 years, the evidence would clearly suggest that she w