STATE OF GUJARAT Vs. PRAKASHBHAI NANSING SOLANKI

JUDGEMENT

(1.) A judgment was rendered by learned Additional Sessions judge, Surat, on 238th September, 1993, convicting the present respondent for offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. The respondent was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/ - for the offences punishable under Sections 363 and 366 of I. P. C. and to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,000/ - for the offence punishable under Section 376 of I. P. C.

(2.) LEARNED Additional Public Prosecutor, Mr. Bhatt, has submitted that the age of the prosecutrix was less than 15 years. She was taken out of custody of her parents under the pretext of marrying, but the respondent did not marry her even after a lapse of more than three months. The respondent, during that time, had coitus with the prosecutrix against her will. Learned Additional Public Prosecutor submitted that all these factors are recorded by the Trial Court while recording conviction and even while awarding sentence. Still, however, the Trial Court awarded a punishment lesser than what is prescribed by Section 376 of I.P.C., namely, seven years, so far as the offence of rape is concerned. So far as the offences punishable under Sections 363 and 366 are concerned, the learned Additional Public Prosecutor submitted that the sentence awarded is inadequate and, therefore, the appeal may be appropriately allowed.

(3.) LEARNED Advocate, Mr. Raval, has opposed this appeal. He has drawn our attention to the medical evidence, which indicates that the Medical Officer was unable to give any specific opinion about recent intercourse after examining both the prosecutrix and the respondent -convict. Mr. Raval submitted that this was a case of inter -community love affair and the prosecutrix was free to raise objection and to raise shouts for help, which she did no do and, therefore, she was a consenting party and, therefore, the Trial Court awarded punishment lesser than prescribed by law, which is just, legal and proper and, therefore, the appeal may be dismissed. Mr. Raval submitted that the order of sentence may not be happily worded, but the fact remains that the element of love affair seems to have weighed with the learned Trial Judge.