PRAKASH JAMSU PAWAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellant-orig. convict has preferred present appeal under Section 374 read with Section 386 of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction dated 12th March 2003 passed by the learned Additional Sessions Judge, Navsari, in Sessions Case No.135 of 1998. After conclusion of the trial, the learned trial Judge has imposed rigorous imprisonment for three years and to pay a fine of Rs.500/-, in default to undergo simple imprisonment for one month, against the appellant herein for each offence punishable under Sections 363 and 366 of the Indian Penal Code. So far as the offence punishable under Section 376 of the Indian Penal Code is concerned, the learned trial Judge has imposed rigorous imprisonment for seven years and to pay a fine of Rs.500/-, in default of making payment of fine, he is ordered to undergo simple imprisonment for three months; and the learned trial Judge has ordered to run all the sentences concurrently.

(2.) According to Shri Kinariwala, the learned trial Judge could have acquitted the appellant because number of contradictions which have been brought on record and proved, clearly establish one fact that this is a case of consent and a matter of love affair between the appellant and the victim-girl. The alternative argument advanced by Shri Kinariwala is that the learned trial Judge at least ought to have imposed lesser punishment than the minimum prescribed which is of seven years for the alleged offence punishable under Section 376 of the Indian Penal Code, when the victim girl herself has not stated that the sexual intercourse was against her wish and will. The learned trial Judge has mainly hammered the point of tender age of the victim girl and accepting the documentary evidence i.e. birth certificate issued by village panchayat Ex.42, the appellant is linked with the crime in question. As per the said document Ex.42, the date of birth of the victim is 23rd July 1982 and the date of commission of offence is 19th March 1998, so as such she had not completed the age of 16 years on the date of incident and she was about to complete the age of 16 years. So at least this Court should allow this appeal partly and reduce the punishment to the period already undergone or at least to five years as the appellant is in prison for the last more than 4 years.

(3.) Shri P.D. Bhate, learned Additional Public Prosecutor, considering the oral as well as documentary evidence led by the prosecution has submitted that the learned trial Judge could have imposed imprisonment for the period less than minimum prescribed.