IMPORTANT POINT
Having convicted accused for committing rape, to reduce sentence on ground that accused was either 17 years or 19 years of age or that was an illiterate villager coming from a rural area was neither adequate nor special reason contemplated u/s 376 IPC.

JUDGMENT

Santosh Hegde, J.-Heard learned counsel for the parties.

Leave granted.

2. The State of Madhya Pradesh has preferred this appeal for enhancement of sentence awarded by the High Court of Judicature at Madhya Pradesh in Criminal No. 952 of 1990 dated 7th of August, 2003.

3. The learned Sessions Judge who tried the sessions case No. 36 of 1989 in which the respondent herein was accused of having committed rape of one Kusumbai, having found the accused guilty and after hearing the accused on the question of sentence convicted the respondent for an offence punishable under Section 376 of IPC and awarded a sentence of 7 years rigorous imprisonment and fine of Rs. 1,000/- and in default to undergo further sentence of rigorous imprisonment for a period of one year.

4. In an appeal filed against the said conviction and sentence the High Court by the impugned order while confirming the conviction reduced the sentence of imprisonment to a period already undergone which on the date of the judgment was about 10 months.

5. It is the prosecution case that, on 15th of June, 1988 at about 8.00 o clock in the morning in the village of Dhadhari the respondent herein committed rape on Kusumbai who according to the prosecution was a minor. A complaint in regard to this incident was lodged with the Police Station, Civil Lines, Chhatarpur, on the very same day, which was registered as Crime No. 63/88 under Section 376 of the IPC. The victim - PW 2 was examined by PW 6-Dr. Indira Gupta, who opined that the victim was subjected to sexual intercourse within a period of 24 hours before her examination. PW 6 also recorded reasons for said conclusion.

6. PW 2-the victim in her statement before the court stated that on the date of incident when she was going to work, near a deserted field the appellant dragged her and committed rape on her consequent to which her cloth as well as the respondent s underwear were blood stained. She stated that while committing rape the accused had put a towel in her mouth so that she could not shout.

7. PW 1-Dr. K.L. Wadi who examined the victim-PW2, with reference to her age, after perusing her X-ray opined that for reasons given by him in his evidence the victim appeared 13 years of age but he also stated, in reply to a question in cross examination, that it was possible that the said age may vary upto 3 years.

8. PW 4- father of the victim and PW3- mother of the victim have stated in their evidence that immediately after the incident the victim had complained to them, therefore, they proceeded to the Police Station with the victim and lodged a complaint with PW 5-the Investigating Officer who after recording the complaint took the blood stained cloths of the victim and sent the same for chemical examination and sent her also for medical examination. PW 5 also stated that he arrested the respondent-accused on the very next day and recovered his stained underwear which was also sent for chemical examination and which confirmed that it contained blood stains.

9. Though the defence challenged the age of the victim, the learned Sessions Judge after considering the material on record and other evidence held that the victim was less than 16 years of age at the time of incident. He also negatived the contention that there was consent on the part of the victim and, hence, found the respondent guilty of the offence punishable under Section 376 and awarded the sentence as stated above.

10. In the appeal filed as against the said conviction and sentence, it is seen from the impugned judgment that the learned counsel appearing for the respondent did not challenge findings of conviction and addressed arguments only in regard to the sentence awarded on the ground that the same was excessive because the respondent at the time of incident was aged only 17 years and further being in illiterate villager coming from a rural area ought to be dealt with leniently. Accepting the said submission advanced on behalf of the respondent the High Court