- (1.)THE present Criminal Appeal is directed against judgment and order dated 02.04.2009 passed by learned Additional Sessions Judge, 3rd Fast Track Court, Mehsana, in Sessions Case No. 147 of 2008. The appellant -accused was tried for the offences under Sections 363, 366 and 376 of the Indian Penal Code, 1860. As per the impugned judgment and order, the appellant came to be convicted for the said offences.
1.1 In respect of conviction recorded under Section 363, IPC, the appellant came to be sentenced to rigorous imprisonment for 5 years and to pay fine of Rs.1,000/ -, in default of payment of fine, he was required to undergo further rigorous imprisonment for 1 year and 3 months. For the conviction recorded under Section 366, IPC, the appellant came to be sentenced to rigorous imprisonment for 7 years and to pay fine of Rs.1,000/ -, in default of payment of fine, he was required to undergo further rigorous imprisonment for 1 year and 9 months. As far as conviction recorded under Section 376, IPC, the appellant came to be sentenced to rigorous imprisonment for 10 years and to pay fine of Rs.50,000/ -, in default of payment of fine, he was required to undergo further rigorous imprisonment for 2 years and 6 months. Out of the fine amount, it was directed that Rs.45,000/ - shall be paid to the victim under Section 357(3) of the Code of Criminal Procedure, 1973 by way of compensation, whereas remaining amount of Rs.5,000/ - be retained as fine. All the sentences were directed to run concurrently with benefit of set off.

(2.)THE case of the prosecution revealing from the complaint (Exh.22) was that on the date of incident, that is, on 03.06.2008 in the morning hours at around 8 o'clock, husband of the complainant had gone for some work, whereas the complainant and his son had gone to nearby Wada, where their house was being constructed. Their daughter was at home for completing household works. At that time, the talks of marriage of the daughter were going on. The son went back to the house and brought tea prepared by the daughter.
The construction work in the Wada got over at about 10.30 a.m., and thereafter, they went back to their house. At that time, they found that the daughter was missing while the vegetables was being cooked on the stove. Inquiries in the village about whereabouts of the daughter did not yield any result. When the husband of the complainant came to the house, he was informed. At around 7 o'clock in the evening, an inhabitant of the village known to the complainant informed to the complainant that he showed the appellant at around 10 o'clock in the morning going from Kanzari towards Kadi Sanand on his bike and the daughter of the complainant was a pillion rider on his bike. It was thus the case that the appellant enticed and fled with the daughter.

(3.)FIRST Information Report being C. R. No. I 50 of 2008 in respect of offences punishable under Sections 363, 366 and 376, IPC, was registered.
3.1 Preliminary investigation was undertaken by the police, statements of the complainant and other related witnesses were recorded. In the meantime, the appellant -accused and the victim girl had on their own and voluntarily presented themselves. The motorcycle used by the appellant was seized. The girl was sent for medical examination. The medical evidence was sent for examination to the Forensic Science Laboratory. The police also carried out panchnama of the house at village Ambai Taluka Sillod District Aurangabad in Maharashtra, where the duo stayed together.

3.2 The charge -sheet came to be filed. The case was thereafter committed to the Court of Sessions under Section 209, Cr.PC, as it was triable by the Sessions Court. The case was registered as Criminal Case No. 147 of 2008. The prosecution in order to prove its case examined 11 witnesses, which oral evidence comprised of the evidence of Dr. Prakashbhai Patva (Exh.10), the victim (Exh.15), the complainant (Exh.21), two witnesses (Exh.23 and Exh.24), panchwitnesses (Exh.26 and Exh.32), police personnel (Exh.30) and Investigating Officers (Exh.34, Exh.35 and Exh.36). It appears that application under Section 311, Cr.PC, was filed on behalf of the accused to recall the victim for examination, which was allowed and the victim deposed again. The letters addressed by the victim to the accused were produced and exhibited at Exh.50 to Exh.53.

This Court went through the relevant and material evidence on record. Having regard to the factor of age of the victim, which was established to be below 16 years, the conviction recorded by the learned Judge under Section 376, IPC, has to be held not warranting interference. Learned advocate also, in course of the hearing of the Appeal, made a statement on instructions from the appellant that the appellant was giving up challenge to the part of the judgment and order recording conviction, and keeping his challenge confined to the part of the sentence for quantum of the sentence. In view of limiting of the challenge, going into and discussing the evidence on merits is not considered necessary.

4.1 Learned advocate for the appellant submitted that almost 7 years have been suffered by the appellant in jail out of total sentence of 10 years rigorous imprisonment imposed on him under the impugned judgment and order. He submitted that from the facts and evidence on record, it clearly emerged that the victim and the accused had a love affair and they had fled at the behest of the victim herself. It was submitted that the victim was a consenting party. Learned advocate highlighted various facts and circumstances emanating from the evidence on record in this regard.

4.2 Learned Additional Public Prosecutor Mr. N. J. Shah produced jail report of the appellant which reflected that the period of substantive sentence imposed in respect of conviction under Sections 363 and 366, IPC, has already been suffered by the appellant. When the present Appeal is heard in respect of sentence for the offence under Section 376, IPC, the appellant has already suffered more than 6 years and few days in the jail out of the total sentence. His conduct in jail was mentioned to be generally good.

4.3 For the offence of rape under Section 375, IPC, the punishment is provided under Section 376. The section inter alia says that the offender who commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than 7 years, but extent to imprisonment for life, and shall also be liable to pay fine. The section as applicable in the present case contains a Proviso which says that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 7 years. In other words, the minimum sentence required to be imposed is of 7 years, which could be of less period provided adequate and special reasons exit for justifying the sentence for period less than minimum.