1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1021 OF 2005 Rajesh Vasant Prabhu ... Appellant V/s State of Maharashtra ... Respondents Mr. A.G. Toraskar, Advocate for the appellant Mr. Y.M.Nakhawa, AGP for the State Coram: Mrs. Mridula Bhatkar, J. Date : 9th April 2009 JUDGMENT . This appeal is filed against the Judgment and Order dated 31-08-2005 thereby convicting the Petitioner accused for 7 years for the offence of rape u/s. 376 of the Indian Penal Code. 2. Brief facts pertaining to this case are as follows: 3. The prosecutrix and her family members were well acquainted with the accused and his family. The accused used to sell vegetables on the handcart and the prosecutrix and her sister 2 used to buy vegetables every day from him so also they used to visit his house. The prosecutrix in April 2003 was 15 years and 3 months old and was in XIth Standard. Prosecutrix and the accused developed physical intimacy and the first incident of rape was taken place in April 2003, and thereafter the accused had sexual intercourse with the prosecutrix on four to five occasions from April 2003 to December 2003. The wife of the accused had complained about the behaviour of the prosecutrix to her father i.e. PW-1 and the relations of these two families were strained due to the relationship of the prosecutrix and the accused. The accused once took the prosecutrix to the lodge and they stayed together for one day and accused sexually abused the prosecutrix. The prosecutrix thereafter complained to her father and the family members of the prosecutrix went to the house of the accused and they beat the wife of the accused. After all these incidents, father of the prosecutrix lodged F.I.R. against accused at Sangli Police Station on 28-05-2004 and the offence punishable u/s. 376 r/w S. 506 of the Indian Penal Code was registered against the accused. 4. It was a trial consisting of examination of 11 witnesses 3 which ultimately ended into the conviction of the accused for the period of 7 years. Hence this appeal. 5. Prosecution has produced Certificate of Date of Birth below Exh. 16 disclosing birth date as 26-01-1988. Thus, the prosecution has proved that in April 2003, prosecutrix was 15 years and 3 months old and was below 16. The age of consent as per Section 375(6) of the Indian Penal Code for voluntary sexual intercourse is 16 years. In the present case, it is evident on the facts that the prosecutrix has voluntarily kept sexual relations with the accused, not only once but for a longer span i.e. from April 2003 to December 2003. However, the defence of consent cannot stand in view of the statutory requirement of 16 years as laid down in Section 375(6) of the Indian Penal Code. Prosecution had examined the Medical Officer PW-5 who deposed in favour of the prosecution that the physical medical examination of the prosecutrix did show that the prosecutrix was used to sexual intercourse. After going through the entire evidence, the learned Counsel for the Petitioner has fairly conceded with the view expressed by the Court that the accused has no case of clear 4 acquittal. The reasons for the conviction given by the learned Sessions Court are sound and well founded. Therefore, the learned Counsel submitted that his submissions on the point of sentence be considered and leniency be shown for the reduction of the sentence. 6. In the present case, PW-1 father has deposed that during the period of April 2003 to December 2003, the wife of the accused made grievance against the growing intimacy of the prosecutrix and her husband. Thus, the parents of the prosecutrix were aware of such kind of relationship due to this warning. However, they did not take any step against the accused and waited for five months and lodged F.I.R. on 28.05.2004. Thus, timely action would have saved further damage however the parents exhibited irresponsible attitude and approach. 7. The cumulative effect of delay in lodging the F.I.R., age of the prosecutrix, relations between the families of the prosecutrix and the accused as also the casual approach of the parents of the prosecutrix reduces the rigour of the offence to certain degree. 5 The accused has two children and family to look after. Accused has undergone a sentence of four years and ten months till now, and therefore, I am of this considered view that the proviso available u/s. 376 of the Indian Penal Code is to be invoked in view of the factors/reasons mentioned above. Thus, the following order is passed: ORDER a. Appeal is dismissed. b. On the point of sentence, appeal is allowed. c. Sentence of the accused is reduced up to the period undergone in jail and the accused be released forthwith. (Mrs. Mridula Bhatkar, J.) mvp/-S