STATE OF GUJARAT Vs. VISHNUBHAI PITAMBARBHAI

JUDGEMENT

(1.) STATE has filed Miscellaneous Criminal Application No.11923 of 2011 for condonation of delay of 40 days in preferring Criminal Appeal No.1032 of 2011. The Criminal Appeal No.1032 of 2011 has been preferred for enhancement of sentence.

(2.) IT would be apposite to consider in brief profile of relevant facts of the case in brief. Accused No.1 eloped with the victim daughter of complainant on 19.11.2009 from her school. The victim was a school going girl and as found by the Trial Court on evidence, she was about 16 years of age. It was the case that accused No.2 had been waiting at Bus Stand and he also accompanied the two. They traveled to different places from Gita Mandir Bus Stand and Accused No.1 and victim stayed together in one room at village Koth and at Bhuj amongst other places, where accused No.1 established physical relationship with victim and had intercourse with her on more than one occasions. The Trial Court upon appreciation of evidence before it found that accused No.1 having established physical relationship with minor victim, whose consent was irrelevant, offence of rape under section 376 was made out against him. Accused No.2 was found involved in abetting the offence by kidnapping and convicted under section 363 and 366. Both the accused were sentenced in the manner indicated above.

(3.) LEARNED Additional Public Prosecutor, advancing submissions for enhancement of sentence imposed upon accused persons, argued that evidence on record established that the victim was minor girl studying in school and was immature to realize about the crime committed on her. Referring to deposition of the victim taken in camera, wherein though she admitted to have gone with accused No.1, also stated inter -alia that she was not aware as to what was love, he submitted that it was a clear case where accused No.1 had taken advantage of the victim. It was further submitted that the offences under section 376 of IPC having been convincingly established against accused No.1, Trial Court ought to have imposed maximum punishment of imprisonment for ten years, and in not doing so and by imposing only minimum sentence of seven years prescribed for the offence, the trial Court showed undue leniency in sentencing.