IMPORTANT POINT
Mere existence of a discretion by itself does not justify its exercise.

JUDGMENT

S.B. Sinha, J. —

1.Leave granted.

2.On 26.03.2000, Respondent bought paddy husk for a sum of Rs. 500/- from the father of the prosecutrix whereafter they were said to have become acquainted with each other. Respondent and his friend Mohan Bangali, who came with him, at their request were allowed to sleep in the Khalihan. However, in the middle of the night, he took the prosecutrix away with him. On the next day, i.e., on 27.03.2000, a First Information Report (FIR) was lodged by Shaktideen, father of the prosecutrix. The prosecutrix was a minor but a married woman. She was recovered on 27.7.2000. Respondent was arrested on 28.7.2000. Charges for commission of offences punishable under Sections 366 and 376 of the Indian Penal Code (‘IPC’ for short) were framed.

3.Respondent in his defence raised a plea that prosecutrix was a consenting party. He also raised a plea that she was major. In support of the said contention, he produced an affidavit purported to have been affirmed by her stating where her age to be 18.

Further contention of the respondent was that he had arranged the second marriage of Shaktideen, the father of the prosecutrix, subject to the condition that Lilawati (prosecutrix) would be married with him and that is why both the families were on visiting terms and Lilawati eloped with respondent voluntarily and had undergone a court marriage.

4.The learned Sessions Judge found that he had committed sexual intercourse with the prosecutrix without her consent and against her will. But even if it is accepted that she was a consenting party, as she was not more than 13 years of age, such purported consent was of no moment. Accused was found to have committed sexual intercourse with the prosecutrix on more than one occasion against her will and without her consent between 26th and 27th March, 2000 till the date of her recovery, i.e, 27.7.2000, and, thus, is guilty of commission of offences punishable under Sections 366 and 376 of IPC. The learned Sessions Judge, upon considering the materials on record, found that respondent had taken away the prosecutrix from the lawful custody of her lawful guardian Shaktideen - her father - without his consent, with the intention that she be forced to illicit sexual intercourse. It was further held that the appellant had knowledge that the prosecutrix was married but even then he took her away with himself and committed sexual intercourse with the prosecutrix against her will and without her consent.

Upon hearing respondent on the question of sentence, it was held:

“22.It was argued on behalf of accused that this is his first offence therefore he should be pardoned. Argument and request was heard and considered. As has been found above that being well aware of the fact that prosecutrix is married and a minor, even then he took away prosecutrix from the lawful keeping of guardianship of her father without the consent of the father for committing illicit sexual intercourse with her and committed sexual intercourse with prosecutrix against her will and without her consent. In such a circumstance, the above-proved act of the accused does not deserve any pardon. But as the accused is a young man of 20 years therefore, accused Bablu Natt is sentenced to undergo 7-7 years of rigorous imprisonment (for each offence) and with a fine of Rs.500/-, 500/- (five hundred) (for each offence) for committing offences punishable under Section 366/376 of IPC. In case of default of payment of fine, accused had to further undergo 2-2 years of rigorous imprisonment for default of payment of each amount of fine.”

5.An appeal was preferred thereagainst. The High Court, by reason of the impugned judgment, while upholding the judgment of conviction interfered with the quantum of sentence, stating:

“11.Yet there is another facet of the case. True, the prosecutrix was minor and did not attain the age of majority. But it is equally true that she is sensible girl having age of 15 years, she did not complain to anybod