Point of Law :
Sentence less than minimum sentence can be awarded in exercise of the powers conferred under Article 142 of the Constitution.

JUDGMENT :

1. The Appellant Accused has filed this Appeal under Section 374 (2) of the Code of Criminal Procedure (“the Code” for short) being aggrieved and dissatisfied with the conviction and sentence as below vide judgment and order dated 5.7.2002 passed by the learned Sessions Judge, Mahesana in Sessions Case No. 98 of 2000:

2. Heard learned Advocate Mr. R.J.Goswami for the Appellant and learned APP Ms. Jirga Jhaveri for the Respondent – State of Gujarat.

Facts of the Case:

3. The original Complainant Kanchanben Popatlal Patel has filed FIR on 27.05.1999 before the Kalol Taluka Police Station, District Mehsana. The said complaint was registered as I-CR No. 196 of 1999 for the offence punishable under Sections 363 and 366 of the IPC.

3.1 As per the case of the prosecution, on 27.5.1999, Kanchanben, who is the mother of prosecutix, lodged an FIR alleging that she and her husband are staying at Borisana, Taluka Kalol, District Mehsana, and her husband Popatlal is a partner in one factory named as Mahalaxmi Factory in G.I.D.C. Estate. She has one daughter, who is aged about 16 years. That on 26.5.1999 at about 4 O’ Clock in the afternoon, her daughter (hereinafter referred to as “the prosecutrix”) told her that she is going to Kalol vegetable market for buying vegetables and since she had to go to her maternal Aunt (Maasi) in the evening and she requested her mother to keep her bag ready. Her daughter went to buy vegetables. It is the case of the prosecution that after her daughter left, the Appellant Accused Prajapati Shaileshkumar Naranbhai followed her. She was having a doubt that her daughter was having an affair relation with the Appellant Accused and since the prosecutrix did not return till about 6 O’Clock in the evening, she started inquiring of her from the neighbours and at that point of time, one Darji Natubhai Maganlal met them and told them that in the evening at about 7:15 pm when he was returning to his society, at that point of time, their daughter Amita and the Appellant Accused were going towards Kalol. Knowing so, they came to know that their daughter was kidnapped by the Appellant Accused.

3.2 After completion of the investigation, the Investigating Officer has filed a charge sheet before the Judicial Magistrate First Class, Kalol. The said charge sheet is registered as Criminal Case No. 80 of 2000. Learned JMFC, Kalol has committed the case under Section 209 of the Code to the Sessions Court, Mehsana because the same is Sessions Triable Case. The case is registered as Sessions Case No. 98 of 2000. That the learned Trial Court has framed charge at Exh. 4 for the offence punishable under Section 363, 366, 376 of the IPC on 27.12.2001. The Appellant Accused denied the charges and claim for trial. The prosecution has examined 10 witnesses and produced 10 documentary evidence before the learned Trial Court. Thereafter further statement of the accused was recorded under Section 313 of the Code, wherein the accused has stated that false case is filed against him. That the prosecutrix was taken away by her consent. The arguments of the learned APP and the learned advocate for the defence were heard and learned Trial Court has passed the impugned order.

Arguments for the Appellant Accused:

4. Learned Advocate for the Appellant Accused has argued that the age of the prosecutrix as per the ossification test is between 18 and 20. The victim has not resisted, the victim had n