1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPEAL NO. 373 OF 2004 AND CRIMINAL APPEAL NO.191 OF 2006 Raju Panchdev Vishwakarma ...Appellant Vs. The State of Maharashtra ...Respondent Mr.Rakesh Kumar i/b. M/s. Legal Vision Advocate for the Appellant Mrs.A.A. Mane, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 9TH DECEMBER, 2009 P.C. 1.The accused in a criminal prosecution under Section 376(f) of the I.P.C has challenged the conviction and sentence of the learned Additional Sessions Judge, Greater Mumbai dated 23 rd February 2004 in Sessions Case No.1174/1995 sentence of 7 years passed earlier. 2.The prosecution has also challenged the said sentence and applied for enhancement. 2 3.The case made out by the prosecution was rape of a victim girl of 7 years by a boy of 18 years. Both the victim as well as the accused lived in the same building. 4.The accused has been in jail since 28 th February 2004. He has been released on 1 st July 2009 upon the premise that he has completed his sentence. The accused has produced the certificate of the Superintendent of Nashik Road, Central Prison dated 1 st July, 2009. The Advocate for the accused has produced xerox copies of certain certificates showing the education undertaken by him and certain arts learnt by him whilst he was in jail. 5.The learned Judge has exercised discretion under the proviso to Sub-section 2 of Section 376 of the I.P.C to show the adequate and special reason for imposing sentence of imprisonment of less than 10 years. The material factor is the age of the accused. 6.The Advocate for the accused has shown various other reasons relating to his parents which are not impressive and which do not deserve to be considered. 7.The only material aspect is that the accused himself 3 had just attained the majority at the time of the incident. 8.The accused has been married since the year 1997 which was pending the trial in the Sessions Court. The wife of the applicant has produced her pan-card and her election identity card showing her as the wife of the accused. 9.The victim girl is stated to be residing at the same address in Kandivali, Mumbai. The accused has shifted his address from Kandivali, Mumbai to Kurla, Mumbai. 10.The position in life of the accused, his wife as well as the victim child would required to be considered. 11.Taking into account the aforesaid facts and the facts that the accused and his wife as well as the victim child are yet of young age, it would be reasonable and appropriate to allow them to lead their lives independently of one another. Consequently the Appeal of the State for enhancement of sentence is dismissed. 12.The Appeal of the accused against conviction has become infructuous. 13.The accused shall not go to the locality of Kandivali, 4 Mumbai where the victim resides. 14.Both the Appeals are disposed off accordingly. 15.Xerox copy of the Certificate issued by the Superintendent of Nashik Road, Central Prison dated 1 st July, 2009 is taken on record. (SMT. ROSHAN DALVI, J.)