SANJAY Vs. STATE

JUDGEMENT

(1.) The Appeal is directed against a judgment dated 25.07.2012 and an order on sentence dated 08.08.2012 passed by the learned Additional Sessions Judge("ASJ") in Sessions Case No.90/2011 FIR No.280/2011 P.S. Burari whereby the Appellant was held guilty for the offences punishable under Sections 366 and 376 IPC. He was sentenced to undergo RI for five years and to pay a fine of Rs. 5,000/- or in default to undergo SI for one month for the offence punishable under Section 366 IPC. He was further sentenced to undergo RI for seven years and to pay a fine of Rs. 10,000/- or in default to undergo SI for two months for the offence punishable under Section 376 IPC.

(2.) On the last date of hearing, at the request of the learned counsel for the Appellant production warrants were issued for appearance of the Appellant. The Appellant is present in custody in pursuance of the production warrants.

(3.) On instructions from the Appellant, the learned counsel for the Appellant does not want to address any arguments on merits. The only plea raised by the learned counsel for the Appellant is that the Appellant's case falls in the proviso to Section 376(1) IPC and a lenient view may be taken while awarding sentence to him. It is urged that the age of the prosecutrix on the date of the commission of the offence was established to be 15 years and 08 months. The prosecutrix accompanied the Appellant in a bus and in a train and then stayed with him at Lucknow for three days. She admitted that the Appellant went out to bring food for her and he also got a sari for her from the market. He urges that the prosecutrix did not raise any alarm and thus it was a case of consensual sexual intercourse. The learned counsel urges that in fact the prosecutrix had married the Appellant but he was unable to prove the factum of marriage and thus since the prosecutrix was less than 16 years of age, the Appellant is guilty of the offence of rape but he may be awarded punishment less than the minimum prescribed.