IMPORTANT POINT
Consent of a minor to sexual intercourse, even if existing, is of no consequence.
Sentence should also be deterrent.

Judgment

A.K. SIKRI, J.

Though, this Court vide order dated 18.09.2012 appointed Mr. Parmanand Katara as Amicus Curiae, he has not appeared. This is an unfortunate situation and we do not appreciate the same. However, on our request, Mr. Mohan Pandey, learned counsel who was present in the Court pertaining to other case agreed to assist the Court. He was given time to go through and prepare the matter. Thereafter, the matter was heard when he was fully ready with the same.

2) This appeal arises out of the judgment dated 04.04.2011 passed by the High Court of Gujarat in Criminal Appeal No.2158/2005, whereby the High Court has partly allowed the said appeal. The appellant herein was put on trial and convicted for offences under Sections 363, 366 as well as 376 of the Indian Penal Code (for short the 'IPC') and was sentenced to undergo rigorous imprisonment for committing the aforesaid offences as under:

(a) For committing the offence punishable under Section 363 IPC, the trial court sentenced him to undergo imprisonment for a period of three years and also imposed a fine of Rs.2,000/- with the clause that in default of payment of fine, the appellant will have to undergo simple imprisonment for a period of one month.

(b) Qua the conviction recorded for the offence punishable under Section 366 of the IPC, sentenced imposed by the trial court was five years imprisonment with fine of Rs.3,000/-and in default of payment of fine, sentenced to undergo simple imprisonment for a period of two months.

(c) For committing the offence punishable under Section 376 of the IPC, the appellant was imposed rigorous imprisonment for a period of seven years and also fine of Rs.45,000/-with the stipulation that in the event, appellant defaults in paying the fine, he would have to undergo simple imprisonment for a period of one year.

The aforesaid amount of Rs.45,000/-, if payable by the appellant as fine, was ordered to be paid to the victim as a compensation. All the sentences were to run concurrently.

3) In the appeal preferred by the appellant against the aforesaid conviction, the High Court has affirmed the conviction, as accorded by the trial court. However, at the same time, it has modified the sentence by reducing it to rigorous imprisonment for a period of 4½ years instead of 7 years for the offence punishable under Section 376 of the IPC. With this solitary modification resulting into partial allowing of the appeal, rest of the judgment and sentence dated 15.09.2005 passed by the learned Additional Sessions Judge, Sabarkantha, 4th Fast Track Court, Modasa, Gujarat has been affirmed.

4) The appellant was implicated and charged under Sections 363, 366 and 376 of the IPC under the following circumstances. On 01.09.2003 at about 17.15 hours when wife of the complainant returned from the market purchasing vegetable, she could not find her daughter at home. On inquiring from one Hansaben, she came to know that the knowledge that the appellant had come to their house and had a talk with their daughter. Thereafter, the appellant went towards the market and after sometime, prosecutrix also went towards the market. The complainant inquired from the shop of the uncle of the appellant and he was told that the appellant and the prosecutrix had gone towards Modasa Bus Stand. The complaint rushed to the Modasa Bus Stand, but could not find the appellant or the prosecutrix there. It is also the case of the prosecution that son of the uncle of the appellant told that he had seen the appellant and the prosecutrix -Anita at the Modasa Bus Stand some time ago. Since the prosecutrix could not be traced, a complaint to the said effect was registered by the complainant on 05.09.2003 with Meghraj Police Station. Two days after the said complaint, the appellant surrendered himself before the Police on 07.09.2003. Thereafter, necessary panchnama came to be drawn and sta