Rajesh H. Shukla, J.

1. The present appeal is filed by the appellant-original accused under Section 374 of the Code of Criminal Procedure, 1973 challenging the impugned judgment and order rendered in Sessions Case No. 81/2010 by the Sessions Judge, Amreli dated 21.07.2011 recording conviction and sentence as stated in detail in the impugned judgment.

2. The fact of the case briefly summarized are as follows:--

"2.1 On 09.06.2010 at about 02:00 p.m., the appellant-accused along with other co-accused is said to have enticed away the complainant aged about 16 years from the lawful custody of the parents with an intention to marry and/or to have intercourse and thereby committed the offence as stated in detail under Sections 363, 366 read with Section 114 and also for the offence under Section 376 read with Section 114 of the Indian Penal Code. The complaint came to be lodged by the complainant-victim being C.R. No. I-86/2010 for the alleged offences under Sections 363, 366, 376 read with Section 114 of the Indian Penal Code with Amreli Taluka Police Station.

2.2 On the basis of the complaint, the investigation was made and chargesheet came to be filed. However as the offences were triable by the Court of Sessions, it was committed to the Court of Sessions.

2.3 Thereafter, the Court below proceeded with the trial and recorded the evidence of the prosecution witnesses.

2.4 After recording of the evidence of the prosecution witnesses was over, the Court below recorded further statement of the appellant-original accused No. 1 under Section 313 of the Code of Criminal Procedure, 1973.

2.5 After hearing learned APP as well as learned advocate for the defence, the Court below recorded conviction of the appellant-original accused No. 1 for the offence under Sections 363, 366 and 376 of the Indian Penal imposing sentence as stated in the impugned judgment and recorded acquittal of original accused Nos. 2 and 3."

3. It is this judgment and order which has been assailed in the present appeal on the grounds stated in the memo of appeal.

4. Heard learned advocate, Shri F.B. Brahmbhatt for the appellant-accused and learned APP Ms. Hansa Punani for the respondent-State.

5. Learned advocate, Shri Brahmbhatt referred to the charge at Exh. 3 and also testimony of Dr. Gondaliya, PW-1 at Exh. 9. He also referred to the medical certificate at Exh. 12 regarding the age and submitted that on examination, he has opined that the age of the victim would be between 15-17 years. Learned advocate, Shri Brahmbhatt also referred to the birth certificate produced at Exh. 64 and submitted that the date of birth is 06.02.1994 and the date of incident is 09.06.2010, meaning thereby, the victim was aged more than 16 years. Learned advocate, Shri Brahmbhatt, therefore, submitted that as it transpires from the testimony of the victim, PW-2 at Exh. 18, it is a case of affair, where she had voluntarily left though she has stated about the act against her will and, hence, it has to be considered with reference to the medical evidence. For that purpose, learned advocate, Shri Brahmbhatt referred to the testimony of Dr. Jadav, PW-3 at Exh. 21 and submitted that as referred to in the case papers, Exh. 24, there are no marks of injuries found. Learned advocate, Shri Brahmbhatt, therefore, submitted that absence of any mark of external injury would suggest that there was no resistance offered and the act was with consent. He submitted that therefore history, which has been recorded by the doctor as stated by the victim that it was against the will, may not be accepted at the face value. He submitted that in fact, the history could have been given by the parents. Learned advocate, Shri Brahmbhatt also referred to the testimony of PW-4, mother of the victim at Exh. 26 and submitted that it has been clearly stated as to what transpired and it has also been stated that there was some compromise arrived at and they had decided not to lodge any complaint. He submitted that as it w