The main legal point established in the judgment is the consideration of leniency based on the circumstances of the case and the legal provisions related to the age of consent for sexual intercourse.

JUDJMENT - H.H. KANTHARIA, J.:---This is a jail appeal preferred by the appellant-accused No. 1 (hereinafter referred to as the 'appellant') challenging the judgment and order dated 22-1-1982 passed by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No. 436 of 1980 convicting and sentencing him for an offence of rape punishable under section 376 of the Indian Penal Code (hereinafter referred to as the 'Penal Code') to rigorous imprisonment for two years and to pay a fine of Rs. 1000/- in default to undergo further rigorous imprisonment for 3½ years.

2. The appellant was charged along with three others for committing various offences. The allegations were that he had and one more, on or about 30-5-1980 at about 11.00 a.m. at B.D.D. Chawl No. 8, N.M. Joshi Marg, Bombay, kidnapped Kum. Alka Vasudeo Rana, a minor girl under 18 years of age from lawful guardianship of her mother Smt. Pramila Vasudeo Rana, an offence punishable under section 363 r/w section 34 of the Penal Code, and two other accused persons were charged for aiding and abetting the commission of the said offence and further that in the course of the same transaction they kidnapped Kum. Alka with intent that she may be compelled to marry the appellant against her will, an offence punishable under section 366 r/w section 34 of the Penal Code. Further allegations against the appellant were that in the course of the same transaction, between 3-6-80 and 11-6-80 he wrongfully concealed or confined Kum. Alka at room No. 15, Mhaska Chawl No. 2, Bhat wadi, Ghatkopar, knowing that she had been kidnapped, an offence punishable under section 368 of the Penal Code, and also that in the course of the same transaction he committed rape on the said Ku. Alka, an offence punishable under section 376 of the Penal Code. And lastly, the appellant, along with the three accused persons stood charged that in the course of the same transaction between 30-5-80 to 11-6-80 having actual control over the said Kum. Alka under the age of 18 years caused or encouraged the seduction and the acts of sexual intercourse with her by the appellant and thereby committed an offence punishable under section 56 of the Bombay Children Act, 1948 r/w section 109 of the Penal Code.

3. On these allegations, after a full length trial, the appellant stood convicted and sentenced as stated hereinabove. The other three accused persons were acquitted of all the charges framed against them. Feeling aggrieved the appellant preferred this appeal from jail.

4. On behalf of the appellant I heard Mrs. Pingulkar and she submitted that she does not want to challenge the conviction of the appellant but would only canvass for reduction in the sentence. Mrs. Pingulkar took me through the evidence of the prosecutrix Alka Vasudeo Rana and submitted that in the facts and circumstances of this case the offence of rape which is proved against the appellant is only a technical offence inasmuch as the prosecutrix seems to have been a willing party all throughout. Therefore, Mrs. Pingulkar, urged that the sentence imposed on the appellant be suitably reduced. Mrs. Keluskar, learned Public Prosecutor appearing on behalf of the State, fairly conceded and submitted that this is certainly not a case where a harsh sentence as imposed on the appellant is called for.

5. On going through the evidence of the prosecutrix Alka and after perusal of the impugned judgment and order passed by the learned trial Judge, I am convinced that this is not one of those cruel cases of rape where an accused person should be deterrently dealt with. Normally, a person indicated of an offence of rape does not deserve any sympathy and I for one would be inclined to deal with him with a heavy hand unless there are extenuating circumstances. But the record in this case clearly shows that Alka who aged about 15-16 at the relevant time had left the house of her mother and had joined the acquitted accused persons. She had then travelled by a taxi

Click Here to Read the rest of this document