(PER : HONOURABLE MR.JUSTICE G.R.UDHWANI)

1. Criminal Misc. Application No.16967 of 2012 has been preferred by the original accused under Section 389 of the Code of Criminal Procedure (for short CrPC), for suspension of sentence imposed vide judgment and order dated 27/07/2012 rendered in Sessions Case No.21 of 2012 by the learned 3rd Additional Sessions Judge, Mehsana camp at Visnagar.

1.1 On noticing that the sentence imposed upon the accused for the offence punishable under Section 376 of the Indian Penal Code (for short IPC) is of only two years RI with fine of Rs.2,000/, in default, to undergo two months SI, against which he has already suffered about 1 & ½years, this Court deemed it proper to hear the main appeal preferred by the original accused being Criminal Appeal No.1218 of 2012, as also the Criminal Misc. Application No.13823 of 2012 seeking leave to appeal and Criminal Appeal No.1478 of 2012 seeking enhancement of sentence, preferred by the State of Gujarat.

2. The original accused – appellant in Criminal Appeal No.1218 of 2012 was charged for the offences punishable under Sections 363, 366 and 376 of the IPC and after investigation and committal of the case, the original accused having been tried in the Court of learned 3rd Additional Sessions Judge, Mehsana camp at Visnagar, was ordered to be acquitted for the offences punishable under Sections 363 and 366 of the IPC after extending him benefit of doubt and was convicted and sentenced to two years RI with fine of Rs.2,000/, in default, to undergo two months SI for the offence punishable under Section 376 of the IPC.

3. While the State seeks leave to appeal by filing Criminal Misc. Application No.13823 of 2012 urging for conviction of the original accused for the offences punishable under Sections 363 and 366 of the IPC, as also enhancement of sentence for the offence punishable under Section 376 of the IPC, the original accused urges to acquit him. As it is convenient to decide all the proceedings together by this common oral judgment, they were so head and are being decided.

4. Having considered the arguments advanced by the parties, as also the evidence, it cannot be disputed that insofar as offences punishable under Sections 363 and 366 of the IPC were concerned, the statement of the prosecutrix, at various stages, as compared with the evidence in her examination inchief and cross-examination, gave inconsistent versions. A perusal of the examination inchief of the prosecutrix indicates that she has made half hearted allegations of accused having lured and kidnapped her after promising to her new clothes and marriage; at the same time, she admits of having gone with the accused person to various places. In the cross-examination, she admits of having known the original accused since long, having love affair with him since three years; having persistently met the respondent despite opposition from her parents who did not approve their love affair; having accompanied the respondent in the autorickshaw which was occupied by them with co passengers as well; as also having made a statement before the Police that they had eloped without informing their parents and, therefore, feared returning. Similarly, even before the Doctor, who examined her, she was found to have revealed her voluntary elopement, and having had sexual intercourse with the respondent. Thus, such diverse version given by the prosecutrix during investigation and trial were sufficient enough to question her credibility and, therefore, the trial Court had rightly extended benefit of doubt to the respondent, while acquitting him of the charges for offences punishable under Sections 363 and 366 of the IPC.

4.1 Above admitted facts were clear indication of absence of ingredients of Sections 363 and 366 of the IPC during alleged offence. Therefore, it cannot be said that the trial Court committed any error in extending benefit of doubt to the original accused insofar as offence punishable under Sect