JUDGMENT

1. The appellant has preferred this appeal under section 374 of the Code of Criminal Procedure, 1973 (for short 'the Code') being aggrieved and disgruntled by the judgment dated 31.8.1999 passed by learned 2nd Additional Sessions Judge, District Ujjain (M.P.) in Sessions Trial No. 96/1998, whereby the learned trial Court has convicted the appellant for the offence under sections 366 and 376 of the Indian Penal Code, 1860 (hereinafter referred as to "IPC") and sentenced him to undergo 5 years R.I. and 7 years R.I. with fine of Rs.500/- and Rs.1,000/- and default stipulations.

2. As per prosecution story, on 6.6.1998 at about 4:30, the accused Chandrakant and his mother Geetabai kidnapped the daughter of complainant (Subhash Patidar) whose age of about 16 years from Village Maksi Sarkari Kundi, District Shajapur and when the prosecutrix found, it was revealed that the accused Chandrakant committed rape upon prosecutrix. Initially, the father of prosecutrix, filed an FIR No. 115/1998 against the accused Chandrakant and his mother Geetabai for the offence under sections 363 & 366/34 of IPC and thereafter, when the prosecutrix was found, section 376 of IPC was enhanced. After due invetigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Shajapur.

3. In turn, the case was committed to the Court of Sessions and thereafter, appellant was charged for offence under sections 363, 366/34 and 376 of I.P.C. He abjured his guilt and took a plea that he had been falsely implicated in the present crime and prayed for trial.

4. In support of the case, the prosecution has examined as many as 11 witnesses namely Subhashchandra (PW-1), Mahesh Patidar (PW-2), Narendra Jain (PW-3), Sharad Rawal (PW-4), Dr. Smt. Aruna Vyas (PW-5), Dr. S.K. Soni (PW-6), Prosecutrix (PW-7), Vijay Kumar Jain (PW-8), Rasheedkha (PW9), C.K. Mishra (PW-10) & Hawasingh (PW-11). In defense, 6 witnesses namely C.K. Mishra, Asstt. Sub-Inspector (DW-1), Vishnuprasad Patidar (DW2), Gayatribai (DW-3), Dr. Ramesh Shiva (DW-4), Ramprasad (DW-5), Seema Patidar (DW-6) have been adduced by the appellant.

5. Learned trial Court, on appreciation of the evidence and argument adduced by the parties, pronounced the impugned judgment on 31.8.1999 and finally concluded the case and convicted the appellant for commission of the said offence under the provisions of section 366 and 376 of I.P.C.

6. Learned counsel for the appellant submits that the appellant is innocent and the learned trial Court has convicted the appellant wrongly without considering the evidence available on record. Counsel for the appellant further submits that the appellant has not committed any offence because the prosecutrix was a consenting party as she remained in the relationship with the appellant, she herself went with the appellant. Even, she visited many places with the appellant and other persons and also took photographs. It is also submitted that the appellant had never forced her to make physical relation. It is also submitted that during the time of visiting places, she has not made any alarm or tried to call his relatives. There are some letters given by prosecutrix to the appellant when they were in relationship by which, it can be established that the prosecutrix was a consenting party. It is submitted that no injury was found on the body of prosecutrix. There are material contradictions and omissions in the statements of prosecution witnesses but the learned trial Court has erred in ignoring the same and in convicting the appellant. On these grounds, counsel prayed to set aside the impugned order in favour of appellant.

7. Learned Government Advocate has opposed the prayer, inviting attention of the Court towards the conclusive paragraphs of the impugned judgment and statement of prosecutrix. He has further submitted that the learned trial Court has rightly convicted the appellant by sentencing him appropriately. Hence, he prays for dismissal of the appeal.

8. In the backd