CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE M.R. SHAH)

1.0. As both these appeals arise out of the impugned judgment and order passed by the learned Special Court and as such, both these appeals can be said to be cross appeals, they are disposed of by this common judgment and order.

2.0. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 28.04.2017 passed by the learned Additional Sessions Judge (Special Judge), POCSO, Dev Bhoomi Dwarka at Khambhaliya passed in Special POCSO Case No.2/2016 (Old Special Case No.28/2014), the State has preferred Criminal Appeal No.1153 of 2017 in so far as challenging the impugned order passed by the learned Special Court in not imposing any sentence whatsoever for the offence punishable under Section 376 of the Indian Penal Code and also for enhancement of sentence imposed by the learned Special Court and convicting the original accused for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code and under Sections 3(A) and 4 of the Protection of Children from Sexual Offences Act, 2012.

2.1. Criminal Appeal No. 394 of 2018 has been preferred by the original accused challenging the impugned judgment and order passed by the learned Special Court (POCSO) in Special POCSO Case No.2/2016 (Old Special Case No.28/2014), convicting the original accused for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code and under Sections 3(A) and 4 of the Protection of Children from Sexual Offences Act, 2012hereinafter referred to in short as ‘the POCSO Act’).

3.0. At the outset, it is required to be noted that by the impugned order, the learned trial Court has held the original accused guilty for the offences punishable under Section 363, 366 and 376 of the Indian Penal Code and under Sections 3(a) and 4 of the POCSO Act, however has been pleased to sentence the respondent- original accused as under:

 :

No separate sentence has been imposed by the learned Special Court for the offences punishable under Section 376 of the Indian Penal Code though the original accused has also been held guilty for the offences punishable under Section 376 of the Indian Penal Code.

4.0. The facts leading to the present Appeals in nutshell are as under:

4.1. The First Information Report being I-C.R. No.36/2014 came to be filed at Jamkhambaliya Police Station by the informant - Sanjaybhai Govindbhai Parmar on 22.03.2014 for the offences under Section 363 and 366 of the Indian Penal Code alleging that his daughter (hereinafter referred to in short as ‘the prosecutrix’) who was to attend the SSC Board Examination at a Centre had left the house at 9.00 am for her examination Centre and was supposed to return after the Exam at around 2.30 pm. As she did not return, the informant made an enquiry at the Exam Centre, where he was informed that his daughter had remained absent in the examination. The informant made an enquiry with the neighbours as well as with the relatives. He came to know that the accused – Ashok Mavjibhai who was residing in the neighborhood was also missing at around the same time. Enquiry was also made about him from the relatives and neighbours and ultimately, it was found that the prosecutrix had eloped with Ashok.

4.2. In the meantime, on 25.03.2014, at around 11.45 pm, the prosecutrix called up the informant and told him that she was with Ashok and immediately disconnected. It is in these facts and situation, the First Information Report came to be registered.

4.3. The investigation was undertaken and upon recording of the statement of the witnesses, it was disclosed that other offences have also been committed, as a result of which, the report invoking in separate the provisions of the POCSO was submitted and upon the arrest of the accused, medical examination of the prosecutr