[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.48 OF 2007 Vendnath @ Baijnath ] Mohan Chauhan ] Convict No. C/1521 ] Kolhapur Central Prison ] Kalamba ]..Appellant Vs. State of Maharashtra ..Respondent ... Ms.Nasreen Ayubi advocate (appointed) for Appellant Mr. V.B.Konde-Deshmukh A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : JUNE 04, 2008 DATE : JUNE 04, 2008 DATE : JUNE 04, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. The appellant-original accused has challenged the judgment and order dated 6.3.2002 passed by the learned IVth Additional Sessions Judge Thane in Sessions Case No. 325 of 2000. By the said judgment and order, the learned Sessions Judge convicted the appellant under Sections 363, 366 and 376 of IPC. For each of the offences, the appellant was separately sentenced to RI for seven years and fine of Rs.5000/- i/d RI for 22 months. The learned Judge directed that the substantive [-2-] sentence of imprisonments under all the three heads, shall run concurrently. 2. The appellant and the prosecutrix knew each other before the incident. Prosecution case is that the prosecutrix was 13 years of age at the time of the incident. PW 1 Paramjeet Kaur mother of the prosecutrix, filed missing complaint regarding her daughter Deepkiran (PW 4) on 19.4.2000 at Kalwa Police Station. Thereafter, she came to know that the accused was seen with her daughter near Kalwa Railway Station. Hence, on 27.4.2000 she filed her complaint against the accused. During the enquiry, it was learnt that accused had taken the prosecutrix to his native village in Uttar Pradesh and hence, the Investigating Agency went to Uttar Pradesh, they traced the prosecutrix and the accused and brought them back to Kalwa. After completion of investigation, the charge sheet came to be filed. 3. Charge came to be framed against the accused under Sections 363, 366 and 376 of IPC. Accused pleaded not guilty and claimed to be tried. It is the defence of the accused that he was married to [-3-] prosecutrix and they were residing at his native place as husband and wife. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph 1 above. Hence, this appeal. 4. I have heard the learned advocate for the appellant and the learned APP for the State. I have also perused the impugned judgment and order as well as the evidence in the present case. 5. At this stage, I would like to refer to the Appeal Memo. The accused had not prayed for acquittal but his only prayer is that sentence of imprisonment and fine imposed on him, be reduced. As far as conviction of the appellant under Section 376 of IPC is concerned, the medical evidence and the evidence of the prosecutrix clearly shows that she had sexual relations with the accused. Hence, in such case, the prosecutrix being below 16 years of age, her consent is immaterial. In such case, offence under Section 376 of IPC is made out. 6. As far as offence under Sections 363 and 366 is [-4-] concerned, the prosecution has reliably brought on record the age of the prosecutrix was 13 years at the time of incident. According to the prosecutrix, the accused had promised her that he would marry her and saying so, he induced her to accompany him to his native place. The prosecution has brought on record the age of the prosecutrix through the School Leaving Certificate as well as the evidence of PW 1 Paramjeet Kaur the mother of prosecutrix and PW 3 Pushpamla who is the Head Mistress of the TMC Primary School. Looking to the evidence of prosecutrix and other evidence on record, the offence under Sections 363 and 366 is also made out against the appellant. Thus, the learned Sessions Judge rightly convicted the appellant for the offence under Sections 363 and 366 of IPC. 7. Now the only question which remains for consideration is the quantum of sentence imposed on the appellant. 8. From the evidence on record, it is seen that the victim girl was in love with the appellant and therefore, she has accompanied him to Uttar [-5-] Pradesh. While travelling to Uttar Pradesh by train, she has not made any attempt to seek any help nor she has tried to run away. So also while going to the railway station from where she and the accused boarded the train to go to Uttar Pradesh, she has not made any attempt to seek any help from any other person. It is known fact that at the railway station, police personnel are posted round the clock. However, the victim girl has not tried to escape nor she has not tried to seek any help from the police or anyone else. It appears that she has willingly and voluntarily accompanied the accused. However, the fact remains that she was 13 years at the time of the incident. The accused has indulged in sexual intercourse with her which is admitted by him in his statement under Section 313 of the Cr.P.C. As the witness was under 16 years of age, her consent cannot be taken into consideration. From the record, it appears that whatever has happened, has happened with the consent of the victim girl. Looking to this fact, I am inclined to consider the prayer of the appellant for reduction of the sentence of imprisonment which is imposed on him in default of payment of fine. The appellant had already [-6-] undergone about 7 years of imprisonment including remission. In such case, if the in default sentence is reduced, the appellant should get substantial relief. 9. In the result, the conviction of the appellant held by the learned IVth Additional Sessions Judge, Thane by judgment and order dated 6.3.2002 in Sessions Case No.325 of 2000 for the offence under Sections 363, 366 and 376 of IPC is maintained. The substantive sentence of imprisonment thereunder and the fine amount is also maintained. However, in default sentence under each head is reduced to one month each. 10. Appeal is partly allowed. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]