MEHTA,J. - (1.) The instant appeal has been preferred by the accused appellant Chhaganlal, who has been convicted and sentenced as below vide the judgment dated 26.10.2012 passed by the learned Additional Sessions Judge (Fast Track) No.1, Udaipur. Offence for Sentence awarded which convicted 376 IPC Imprisonment for life alongwith a fine of Rs.5000/- and in default of payment of fine, further to undergo one month's additional simple imprisonment. 363 IPC Rigorous imprisonment of five years alongwith a fine of Rs.1000/- and in default of payment of fine, further to undergo fifteen day's additional simple imprisonment. 454 IPC Rigorous imprisonment of three years alongwith a fine of Rs.500/- and in default of payment of fine, further to undergo seven day's additional simple imprisonment.
(2.) Facts in brief are that a written report (Ex.P/1) was filed by Shri Ganpatlal with the Superintendent of Police, Udaipur on 26.08.2009 alleging inter alia that six months ago, the accused appellant Chhaganlal entered his house at Chirwa taking advantage of his daughter being alone; took off the clothes of the girl and subjected her to sexual assault. When she started shouting and crying, he threatened her that if she told anyone about the incident, she would be killed. In this manner, Chhaganlal continued to establish forcible sexual relations with her over the period of previous six months. Mst. 'S' conceived because of the forced sexual relations. On 23.08.2009 Chhaganlal took Mst. 'S' to Udaipur in a Jeep and got her aborted in some unknown hospital. In the next morning, he boarded her on to a bus going to Chirwa. When Mst. 'S' returned home, she was quite frightened and was feeling difficulty in moving around. She shared these events with her mother, whereafter, the report came to be lodged. On the basis of this report, an FIR No.180/2009 was registered at the Police Station Sukher for the offences under Sections 452, 376 and 366-A IPC After conclusion of the investigation, a charge-sheet was filed against the accused for the offences under Sections 454, 376 and 363 IPC. The case was committed to the Court of Sessions Judge, Udaipur, from where, the same was transferred for trial to the Court of Additional Sessions Judge (Fast Track) No.1, Udaipur. The trial court framed charges for the above offences against the accused appellant, who pleaded not guilty and claimed trial. The prosecution examined as many as 12 witnesses and exhibited 11 documents in support of its case. The accused appellant, upon being examined under Section 313 CrPC denied the prosecution allegations, but did not lead any evidence in defence. The trial court upon conclusion of the trial proceeded to convict and sentence the appellant as above. Hence, this appeal. Mr. Nishant Bora, learned counsel representing the appellant, did not dispute the fact that sexual relations were established by the accused appellant with the victim. However, his contention was that the relations were consensual and the victim was above 16 years of age on the date of the incident. As per Mr. Bora, the Eighth Standard mark-sheet and the Birth Certificate issued from the Municipality, on which the prosecution relied for proving that the date of birth of the girl is 02.03.1995, are fabricated documents and even if they are considered to be genuine, the same cannot be considered to be providing strict proof of her age. As per Bora, only the school record pertaining to initial admission of the girl in the school should have been produced on record to prove the age of the girl. He contended that as per the medical evidence, the age of the girl was between 16 to 17 years. As per him, if the tenor of statement of the girl is seen, manifestly, the case is one of consensual sexual relations pure and simple. Thus, as per him, the appellant deserves to be acquitted by giving him the benefit of doubt.
(3.) In the alternative, he submitted that as the minimum sentence of 7 years is provided for the offence and the imprisonment for life can only be awarded as an exception and the court would have to record special reasons handing down the maximum sentence. In this regard, he placed reliance on the judgment rendered by Hon'ble Supreme Court in the case of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi) reported in (2014) 4 SCC 375 and Division Bench judgment of this court in the case of Sandeep Vs. State of Rajasthan (D.B. Criminal Appeal No.633/2013 decided on 07.08.2018) and urged as an alternative that the sentence awarded to the appellant may be suitably reduced to a term of 7 years. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by Mr. Bora. He contended that the accused appellant has been held guilty of seducing and raping a minor girl, who was aged about 14 years only on the date of the incident. The sexual ravishment/exploitation of girl continued for a period of six months under a threat that she would be killed, if she told anyone about the incident. He, thus, contended that the learned trial court was perfectly justified convicting and sentencing the appellant and no interference is called for in the impugned judgment. ;