ORAL JUDGMENT

(PER : HONOURABLE MS JUSTICE SONIA GOKANI)

1. Both these appeals were on board yesterday i.e. on 27.11.2014 and were posted on 2.12.2014. However, with a joint request made by both the sides, both these appeals have been taken up today from a separate board, which has been created. Accordingly, these two appeals arising from the common judgment and order are taken up for final hearing. Both the appeals have been preferred by the State challenging the judgment and order passed in Sessions Case No.231 of 2003 where the respondent accused has been convicted and punished to undergo rigorous imprisonment for the period of three years and fine of Rs.1000/- and in default to undergo rigorous imprisonment for six months for the offence punishable under section 376 of the Indian Penal Code, whereas for the offence under sections 363 and 366 of the Indian Penal Code, the accused has been given benefit of doubt. Criminal Appeal No.2151 of 2004 is preferred for enhancement, whereas Criminal Appeal No.2153 of 2004 is against the acquittal under section

363 and 366 of the Indian Penal Code.

2. We have heard learned Additional Public Prosecutor Ms. Chetna Shah who has taken us through the entire record of trial Court. It is emphatically argued by the learned Additional Public Prosecutor that the Court committed a serious error convicting the accused under sections 363 and 366 of the Indian Penal Code after having heard that the prosecutrix victim was below 16 years of age and having committed rape under section 376 of the Indian Penal Code.

3. She has urged that it was not even a case of consent by the prosecutrix, who was below 16 years of age. She, in fact, was called by Kantaben, who was an acquaintance and was working in the very factory and at her instance, she had gone to the place from where she was abducted by the respondent accused. At no stage, it emerges from the record that she had been a willing and consenting party. She further urged that considering her own age, it is very unlikely that she may raise even cry and would be able to call her parents. On the aspect of age, she has urged that the entry made in the school shall have to be considered admissible and section 35 of the Indian Evidence Act would not only make it admissible but would also lent evidentiary value to such entry. She further urged that mother may not have remembered her birth date at the time of her deposition, but that would not take away the truthfulness of such entry as the mother was the one, who had got her admitted in the school and at her say, the entry was registered. She, therefore, urged that the age of the prosecutrix was 14 years and 7 months at the time of the incident. The law, when has contemplated protection to the young girls, the Court in the appellate forum may intervene and punish the respondent for maximum period of time. She urged the Court to consider the age of the respondent accused while considering the appeal for enhancement.

4. Learned advocate Mr. Prakit Barot appearing for the respondent in both the appeals in legal aid, has forcefully urged the Court that it is only a technical offence considering the conduct of the prosecutrix, who continued to be with the accused for more than two months period without raising any hue and cry. He also urged that she was working in the same factory where the respondent accused was working and both have chosen to elope the day on which the factory was closed. It is also further urged that the school register though is indicative of the age of the prosecutrix to be below 16 years of age, the Court shall have to consider the probative value of such entry and in absence of any categorical deposition of either of the parents in respect of the birth date of the prosecutix, the trial Court committed an error in believing the age of the prosecutrix to be below 16 years of age. He also further urged that the boy was unmarried and it is a case of love affair between the two young people. There