ORAL JUDGMENT

1.The appeal arises out of judgement and order dated 4.9.1997 passed by learned Additional Sessions Judge, Ahmedabad(Rural) in Sessions Case No.129/1994.

2.The appellant was the original accused. He was charged for having kidnapped a minor girl Urmila on 9.5.1993 and also having committed sexual intercourse against her wish. He was therefore, charged with offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. By the impugned judgement, learned Additional Sessions Judge came to the conclusion that the accused did not forcibly take minor Urmila for nor did he commit any act of sexual intercourse against her wish. Learned Judge therefore, acquitted the appellant of offences punishable under Sections 366 and 376 of the Indian Penal Code. Learned Judge however came to the conclusion that Urmila was aged about 16 years and 9 months on the date of incident. The appellant having taken her away from the legal guardianship of her parents, had committed offence punishable under Section 363 of the Indian Penal Code.

3.It may be noted that during the course of trial, Urmila expired due to health reasons before her evidence could be recorded.

4.Complainant Tejabhai Sodabhai-PW1 was examined at exh.12. He stated that on 9.5.1993 there was a marriage of his elder brother's daughter. At night at about 10 O' clock when he and other family members were chatting after dinner, they realised that Urmila was missing. After waiting for half an hour, they started looking for her. They searched for her on several places but did not found her. He lodged complaint before the Chief Judicial Magistrate being Inquiry Case No.65/1993 on 14.5.1993 which was produced at exh.13. Ultimately, upon some information, he along with other family members went to Odhav where near the bus stand they could trace Urmila who was found to be unconscious. He therefore, took her to Civil Hospital. He found that Urmila had consumed some poisonous medicine. She was treated in Civil hospital as an indoor patient for six days. They thereafter, took Urmila to the police station and then to their house. He stated that date of birth of Urmila is 21.8.1976. She was therefore, aged about 16 years and 8 months on the date of incident.

4.1 In the cross examination, he agreed that he has four other daughters besides Urmila. He however, could not state the date of birth of any of his daughters. Significantly, in his written complaint to the Magistrate, he has joined Urmila as one of the accused and charged her for having committed theft in his house.

5.Similar version has been given by Jairambhai Laljibhai Parmar-PW2 (relative of the complainant) at exh.14, Kanjibhai Sodabhai-

PW3(elder brother of the complainant) at exh.15 and also by Kankuben Tejabhai-PW5(wife of the complainant) at exh.17.

6.To prove the age of girl, prosecution examined Sanabhai Jivabhai-PW7 at exh. 20. He was the Talati-cum-mantri of village Kathvada. He produced birth certificate of Urmila showing her date of birth as 21.8.1976. From his evidence, it comes on record that birth of the daughter of the complainant and his wife was recorded on 30.8.1976. Regarding the name of the daughter who was born on 21.8.1976, column was left blank at that time. He admitted that name of Urmila was entered in the Birth Register only on 8.9.1993. He however, could not state as to on what basis this entry was made or who made the entry.

7.Dr. Belaben Amitbhai Patel-PW12, exh.35 had carried out the medical check up of Urmila. She had taken out her X-rays to asses her age. As per her opinion considering the X-ray of girl she was estimated to be between 18 and 20 years of age.

8.As noted earlier, learned Additional Sessions Judge in his impugned judgement came to the conclusion that the girl Urmila was not taken away forcibly nor intercourse done by the appellant against the wish of the girl. Short question therefore, calls for consideration is despite these conclusions which are not challenged by the State,