JUDGMENT : K.J. Thaker, J. The present appellant has preferred this appeal under section 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 22.3.2010 passed by the learned Addl. Sessions Judge & Fast Track Judge, Gandhinagar in Sessions Case No. 75/2008, whereby, the learned trial Judge has convicted the accused no.1 under section 376 of IPC and sentenced to undergo R/I for seven years and to pay a fine of Rs.1000/-, in default, to undergo further R/I for one year. The accused no. 1 convicted under section 506(2) of IPC and sentenced to undergo R/I for one year and to pay a fine of Rs.1000/-, in default, to undergo further R/I for one month. The accused no. 1 is convicted under section 342 and 114 of IPC and sentenced to undergo R/I for one year and to pay a fine of Rs.250/-, in default, to undergo further R/I for one month. The accused no. 2 is convicted under section 342 of IPC and sentenced to undergo R/I for one year and to pay a fine of Rs.1000/-, in default, to undergo R/I for three months, which is impugned in this appeal. 2. At the out-set, as per the order passed by this Court (Coram: Z.K. Saiyed, J.), it is to be mentioned that appellant-accused no. 1 has already completed his sentence and he has been released from jail. Hence, the present appeal is qua appellant-accused no. 2 only. 3. The brief facts of the prosecution case is as under: 3.1 That on 16.7.2008, the complainant has lodged complaint that the complainant victim girl was studying in the 10th Std. and before two months as per the say of the complainant that the mind of the father of victim girl was disturb and he had beaten the mother and brother of the victim girl and due to the conduct of her father, the victim girl had stayed at the maternal uncle of her father i.e. accused no. 1. The accused no. 2 was also staying with the accused no. 1 and it is a story of prosecution that the victim girl was staying at the home of accused no. 1 with the consent of her parents and as per the say of victim girl that at the relevant time accused no. 1. The accused no. 2 was also staying with the accused no. 1 and it is a story of prosecution that the victim girl was staying at the home of accused no. 1 with the consent of her parents and as per the say of victim girl that at the relevant time accused no. 2 had harassed and forcibly raped upon the victim girl before one and half month prior to the complaint and also stated that the victim girl had been threatened by the accused no. 2, and therefore, filed the complaint under section 376, 342, 506(2) and 114 of IPC. The Investigating Officer, on completion of the investigation, submitted charge-sheet in the Court of learned 8th Addl. Senior Civil Judge & Judicial Magistrate First Class, Gandhinagar. As the case was exclusively triable by the Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions, which was numbered as Sessions Case No. 75/2008. 4. The accused was charged vide Ex. 14. The appellant - accused no.2 pleaded not guilty and claimed to be tried. 5. In order to bring home the charge levelled against the appellant-accused, the prosecution has examined the following witnesses: 1. Dr. Gitanjali Keshavlal Kukan Ex. 18 2. Rinaben Umedchandra Sharma Ex. 23 3. Maheshchandra Baburav Yadav Ex. 24 4. Ashokbhai Babulal Dhobi Ex. 28 5. Radhaben Umeshchandra Sharma Ex. 30 6. Shobhan Narayan Kutty Ex. 32 7. Rajnikant Shantilal Ex. 35 8. Shyamkumar Rampratit Ex. 40 9. Maheshbhai Ganpatbhai Parmar Ex. 45 10. Jayantilal Harjivandas Pandya Ex. 48 11. Dr. Vipula Dushyant Pandya Ex. 54 6. The prosecution has also produced the following documentary evidence before the trial Court. 1. Medical certificate of victim Ex. 20 2. Medical certificate of Yogeshbhai Ex. 22 3. Bona fide certificate of victim Ex. 26 4. Certified copy of Bona fide certificate Ex.27 5. Complaint Ex. 31 6. Panchnama of scene of offence place Ex. 33 7. Panchnama of person of victim Ex. 36 8. Panchnama of person of accused-Yogesh Ex.41 9. Ravangi Nondh Ex. 49 10. Receipt of FSL Ex. 50 11. Letter of FSL to P.I. Adalaj Ex. 51 12. FSL Report Ex. 52 13. Serology report Ex. 53 14. Medical certificate of victim Ex. 56 15. Refer Note Ex. 55 7. Thereafter, after examining the witnesses, further statement of the appellant-accused no. Panchnama of person of accused-Yogesh Ex.41 9. Ravangi Nondh Ex. 49 10. Receipt of FSL Ex. 50 11. Letter of FSL to P.I. Adalaj Ex. 51 12. FSL Report Ex. 52 13. Serology report Ex. 53 14. Medical certificate of victim Ex. 56 15. Refer Note Ex. 55 7. Thereafter, after examining the witnesses, further statement of the appellant-accused no. 2 under section 313 of CrPC was recorded in which the appellant-accused no. 2 has denied the case of the prosecution. 8. After considering the oral as well as documentary evidence and after hearing the parties, learned Addl. Sessions Judge & Fast Track Judge, Gandhinagar, vide impugned judgment and order dated 22.3.2010 held the appellant - accused no. 2 guilty to the charge levelled against him under section 342 and 114 of IPC and convicted and sentenced the appellant accused, as stated above. 9. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Addl. Sessions Judge, Gandhinagar, the present appellant-accused no. 2 has preferred this appeal. 10. The learned advocate for the appellant was absent on 11.3.2015, and therefore, this Court has issued non-bailable warrant against the present appellant-accused no. 2 which has not been served. However, accused no. 2 is on bail, and his learned advocate appears to be uninterested in conducting the matter. 11. I have heard learned APP Ms Monali Bhatt appearing for the respondent-State. Learned APP Ms. Bhatt has taken this Court through the entire evidence on record and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Ms. Bhatt learned APP further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused, and therefore, the present appeal deserves to be dismissed. 12. I have gone through the oral as well as documentary evidence produced on the record. I have read the oral evidence of prosecution witness-complainant and prosecutrix and also perused the charge framed against the appellant-accused no.2. The evidence goes to show the present appellant-accused no. 2 has not played a major role. The finding of the learned trial Judge in para-18 of the judgment are that the as per the evidence of PW-11 Dr. Vipula Dushyant Pandya Ex. The evidence goes to show the present appellant-accused no. 2 has not played a major role. The finding of the learned trial Judge in para-18 of the judgment are that the as per the evidence of PW-11 Dr. Vipula Dushyant Pandya Ex. 54, the prosecutrix had a sexual intercourse with accused no. 1 was with consent. The age of the prosecutrix was more than 18 years. In that view of the matter, the finding recorded by the learned trial Judge in para-18 of the judgment is very clear, and therefore, it cannot be said that any overt-act was committed by the appellant-accused no. 2. The appellant-accused no. 2 had only given the place on rent and, therefore, it cannot be said that section 114 was attracted and his conviction under section 342 and 114 of IPC could not have been sustained and the learned trial Judge has rightly acquitted the present appellant-accused no. 2 for the offence under section 376 and 506(2) of IPC and has convicted him under section 342 and 114 of IPC which requires to be up-turned. I an unable to persuade myself to submissions made by the learned APP and the impugned judgment and order of conviction and sentence qua appellant-accused no. 2 requires to be quashed and set aside. 13. In view of the aforesaid discussion, this Court is of the view that the Court below has committed a serious error in law as well as on facts in convicting the appellant-accused no. 2 for the alleged offences. The findings recorded by the Trial Court are not only unjust but also improper and hence, the impugned judgment and order of conviction and sentence dated 22.3.2010 passed by the learned Addl. Sessions Judge & Fast Track Judge, Gandhinagar in Sessions Case No. 75/2008 requires to be quashed and set aside qua present appellant-accused no. 2. 14. In the result, this appeal is allowed qua appellant-accused no.2, as appellant-accused no. 1 has already completed his sentence and released from jail. The impugned judgment and order of conviction and sentence dated 22.3.2010 passed by the learned Addl. Sessions Judge & Fast Track Court, Gandhinagar in Sessions Case No. 75/2008 is quashed and set aside qua appellant-accused no.2. The appellant-accused no. 2 is acquitted from all the charges levelled against him. He is on bail, he need not surrender. His bail and bail bond stands cancelled. Sessions Judge & Fast Track Court, Gandhinagar in Sessions Case No. 75/2008 is quashed and set aside qua appellant-accused no.2. The appellant-accused no. 2 is acquitted from all the charges levelled against him. He is on bail, he need not surrender. His bail and bail bond stands cancelled. R & P to be sent back to the trial Court.