Mere Delay in Lodging the F.I.R. is Really of no Consequence, If Reason is Explained.

Indian Penal Code, 1860 - Ss. 363, 366, 376 - the victim was aged between 12 to 13 years at the time of occurrence and she was enticed away by the appellant-accused and kept in a room for a long period and appellant committed rape with her, there is no adequate and special reason for reducing the minimum sentence of seven years imposed by learned Trial Court against the appellant-accused under Section 376 I.P.C.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Hon'ble Daya Shankar Tripathi,J.

28.02.2018

JAIL APPEAL No. - 2697 of 2017

Appellant :- Survir @ Tenta @ Govind Respondent :- State Of U.P. 

Counsel for Appellant :- From Jail,Mahesh Kumar Tripathi 

Counsel for Respondent :- G.A. 

Heard Sri Mahesh Kumar Tripathi, learned counsel (Amicus-Curiae) for the appellant-accused, learned AGA and perused the material placed on record.

Appellant has assailed the judgment and order dated 24.05.2016 passed by the Additional District and Sessions Judge (MAHILA SAMBANDHI) (F.T.C.-I), Mathura in Sessions Trial No.67 of 2013 (State Vs. Survir @ Tenta @ Govind) arising out of Case Crime No.189 of 2012, under Sections 363, 366, 376 IPC Police Station Magorra, District Mathura, by which the appellant has been convicted under Sections 363, 366 and 376 IPC and sentenced to rigorous imprisonment of four years and fine of Rs.2,000/- under Section 363 IPC, rigorous imprisonment of six years and fine of Rs.3,000/- under Section 366 IPC and rigorous imprisonment of seven years and fine of Rs.3,000/- under Section 376 IPC (in default of payment of fine, four months additional simple imprisonment).

In the present judgment, I do not propose to mention the name of the victim girl in view of the provisions of Section 228A I.P.C. and in pursuance of the observations made by the Hon'ble Supreme Court in para-4 in the case of State of Himachal Pradesh vs. Shree Kant Shekari, AIR 2004 SC 4404 the prosecutrix (hereinafter referred to as 'victim').

Prosecution case, in brief, is that informant Jagdish son of Late Sri Buddhiram, resident of Village Saunkh, P.S. Magorra, District Mathura submitted a written Tahrir (Ext. Ka-1) before the police station concerned, narrating therein that accused-Survir @ Tenta @ Govind, his brother Shripal, sons of Soran Singh, resident of Summergarhi, Etah had enticed away his daughter (victim) aged about 12 years from Kumher Adda, Saunkh. Brother-in-law of accused-persons, namely Malkhan was also with them who is resident of village Kalai, District Aligarh. Occurrence had taken place on 22.08.2012 at about 4.00 P.M. Information regarding incident was given to Police Chauki Saunkh immediately and complainant was searching the victim at his own level also but victim has not been traced out. Hence, it is requested that his report should be lodged and the victim should be recovered.

On the basis of aforesaid written Tahrir (Ex. Ka-1) of the informant, Case Crime No.189 of 2012, under sections 363, 366 IPC was registered in the Police Station Magorra, District Mathura on 29.08.2012 at 11:00 A.M. and entry of the case was made in the general diary of the police station. Investigation was taken up by Sub-Inspector, Jayendra Prasad Maurya, Investigating Officer (I.O.). Victim was recovered during the investigation, she was medically examined by Dr. Shalini Singh and she was referred for pathological test and X-ray examination. Place of occurrence was inspected by the I.O. and map of spot (Ex. Ka-9) was prepared. After recording statement of witnesses and collecting evidence during the course of investigation, charge sheet (Ext. Ka-10) under sections 363, 366, 376 IPC was submitted by him.

Charges under Sections 363, 366 and 376 IPC were framed by the trial court against the appellant-accused. Appellant-accused denied the charges levelled against him and claimed for trial.

As many as six prosecution witnesses were examined before the trial court.

PW-1 Jagdish (complainant) has been examined, who has supported the F.I.R. version and proved written Tahrir (Ext. Ka-1).

PW-2 (victim) has been examined, who has supported the prosecution version and deposed that she was enticed away by the appellant-accused and she was kept in a room for about 25 days in Hathras and appellant-accused committed rape with her during the period in which she was kept there. She was brought from Hathras to Mathura by Train by the appellant-accused on 15.09.2012 and he stated her that he is coming back after purchasing ticket, but he did not turn up. She waited for him for the whole night and she was going to Bus Stand. In the meanwhile, she met with her father and police and she was brought to Police Station Magorra and her undergarment (PETICOT) was taken into possession by the police and its memo was prepared and she had proved her signature on memo (Ex. Ka-2). She has further deposed that she was medically examined and her statement under Section 164 Cr.P.C. was recorded before the Magistrate and she has proved her statement recorded under Section 164 Cr.P.C. (Ex. Ka-3).

PW-3 Devesh Kumar Sharma, Assistant Teacher has been examined, who has proved that the victim was student of class 1 to 5 in his school and he has proved the photocopy of her Admission Form (Ex. Ka-2) and photocopy of S.R. Register (Ex. Ka-3). He has proved that the date of birth of the victim is 27.11.1999, as per school records.

PW-4 Dr. Shalini Singh, has been examined, who has deposed that the victim was brought before her by a Lady Constable 77 Meena Kumari on 17.09.2012 and she was medically examined by her. She has further proved the medical examination report of the victim (Ex. Ka-4). Relevant portion of the report is reproduced below:-

"General Examination: Height 5 feet, teeth 7+7 / 7+7. Axillary and pubic hairs present. Breast developed. No mark of injury are over body. According to her statement, her last MC was on 4/9/12.

Internal examination: Hymen torn, old healed. Vagina admit two fingers easily. No BPV. No tear. No mark of injury over private parts. Vaginal smear taken. Uterus seems normal.

Advice: (i) x-ray knee, wrist and elbow for age determination.

(ii) Vaginal smear examined for presence of spermatozoa."

She has further deposed that the victim was referred for pathological test and X-ray examination and she has proved supplementary report (Ex. Ka-5) and reference slip (Ex. Ka-6). Relevant portion of the supplementary report is reproduced below:-

"x-ray report: elbow joint - epiphysis around elbow fused.

Wrist joint: Epiphysis around wrist in process of fusion.

Knee joint: Epiphysis around knee fused.

Pathology report: S.No. - 156/2012 - Spermatozoa not seen.

P. No. - B-17 Date - 18/9/12 Opinion (1) No definite opinion regarding rape can be given.

(2) According to radiological findings her age is between 17 to 18 years."

PW-5 H.C.P. Raksha Pal Singh has been examined, who has proved Chick FIR (Ext. Ka-7) and carbon copy of G.D.(Ext. Ka-8).

PW-6 Sub-Inspector, Jayendra Prasad Maurya, (I.O.) has been examined, who has deposed that investigation of this case was conducted by him. He has further deposed that place of occurrence was inspected by him and its map (Ex. Ka-9) was prepared by him. He has further stated that statement of witnesses were recorded by him during the course of investigation. Undergarment (PETICOT) of the victim was taken into possession and its memo (Ex. Ka-2) was prepared by him and identified the PETICOT (material Ex.-1). He has further deposed that the victim was sent for medical examination and her statement under Section 164 Cr.P.C. was recorded before the Court and after collecting the evidence during the investigation, charge sheet (Ex. Ka-10) was submitted against the appellant-accused under Section 363, 366 and 376 I.P.C.

Statement of appellant-accused under Section 313 Cr.P.C. was recorded by the trial court. He has stated that prosecution evidence is false and he has been falsely implicated in this case due to enmity. He has also stated that father of the victim was demanding money from him, failing which false case was lodged against him.

No witness was examined on behalf of the appellant-accused in his defence.

After giving opportunity of hearing to both the parties, judgment and order dated 24.05.2016 was passed by learned trial court, by which appellant-accused Survir @ Tenta @ Govind was convicted under Sections 363, 366 and 376 IPC, and sentenced as stated above.

It is this impugned judgment and order of conviction and sentence passed against the appellants-accused, which is under challenge to this criminal appeal.

Learned counsel for the appellant-accused submitted that First Information Report has been lodged after considerable delay, due to which prosecution version is not trustworthy. He further submitted that according to medical evidence, age of the victim was 17 to 18 years, in which two years variation is possible on either side and the victim was major at the time of incident. He further submitted that statement of victim is not supported by evidence of any other witness. He further submitted that contradictions have appeared in the ocular evidence of prosecution witnesses, due to which prosecution version is doubtful. He further submitted that prosecution version is not supported by medical evidence. He further submitted that there are laches in the investigation conducted by I.O. It is further submitted that the victim is a consenting party. He further submitted that prosecution case is not proved beyond doubt, hence, the appeal deserves to be allowed and the impugned judgment of conviction and sentence is liable to be set aside.

Learned counsel for the appellant has lastly submitted that if findings of conviction recorded by learned Trial Court are upheld by this Court, the appellant-accused may be sentenced with period of detention undergone by him.

Learned AGA submitted that plausible explanation has been given for delayed F.I.R. He further submitted that according to school certificate of the victim, she was minor on the date of occurrence. He further submitted that conviction of an accused can based on single testimony of the victim, if it is trustworthy. He further submitted that prosecution version cannot be thrown away on the basis of minor contradictions appearing in evidence of prosecution witnesses. He further submitted that prosecution version is supported by medical evidence and laches on the part of the I.O. cannot be made basis of acquittal. He further submitted that consent of the victim is immaterial as she was minor on the date of occurrence. There is no special and adequate reason to reduce the minimum sentence of seven years imposed against the appellant-accused under Section 376 I.P.C. He lastly submitted that the appeal lacks merit and it is liable to be dismissed.

It is borne out from the record that PW-2 (victim) has supported the prosecution version and deposed that the appellant-accused had enticed away her by motorcycle from market of Saunkh and took her to Hathras, where she was kept in a room for about 25 days and appellant-accused had committed rape with her during the period when she was kept there and thereafter he brought her from Hathras to Mathura and got her seated on Railway Station, saying that he is going to bring ticket and coming back, but he did not return and after waiting for whole night, she was going to Bus Stand and met her father alongwith Police. She further deposed that she was medically examined and her statement under Section 164 Cr.P.C. was recorded before the Court. She has proved her statement recorded under Section 164 Cr.P.C. (Ex. Ka-3). PW-1 (complainant) has supported the prosecution version and proved written report (Ex. Ka-1). He has further proved the manner in which the victim was recovered. PW-3 (Assistant Teacher) has proved the copy of Admission Form of victim (Ex. Ka-2) and photocopy of S.R. Register (Ex. Ka-3) and proved that the date of birth of the victim is 27.11.1999, as per school records, according to which victim was minor on the date of occurrence. PW-4, Dr. Shalini Singh has deposed that the victim was medically examined by her on 17.09.2012 and she has proved her medical examination report (Ex. Ka-4) and stated that the victim was referred for pathological test and x-ray examination and proved supplementary report (Ex. Ka-5). PW-6, Investigating Officer has deposed that after inspection, map of spot (Ex. Ka-9) was prepared by him and victim was got medically examined and her statement under Section 164 Cr.P.C. was got recorded and after completing the investigation, charge sheet (Ex. Ka-10) was submitted by him. Perusal of map (Ex. Ka-9) reveals that same place of occurrence has been shown by the I.O. in this map which is narrated by the victim and the complainant. These prosecution witnesses have been put to lengthy cross-examination, but no material contradiction has come out in their testimony.

The first and foremost argument advanced by learned counsel for the appellant is that the occurrence is said to have taken place on 22.08.2012 and its F.I.R. has been lodged after delay of 07 days on 29.08.2012. Accordingly, he has submitted that F.I.R. has been lodged after delay of 07 days, due to which prosecution version is highly doubtful. It is noteworthy that it is mentioned in the first information report (Ex. Ka-1) itself that information regarding the incident was given to Police Chauki immediately and complainant was searching the victim at his own level also. Complainant (PW-1) has proved the aforesaid fact in his deposition before the Court also and it is borne out from the record that the victim was recovered by the Police and complainant was present at the time of recovery. Accordingly, it is established from record that plausible explanation has been given by the prosecution for delay in lodging the F.I.R. In such a circumstance, aforesaid delay in lodging the F.I.R. cannot be held to fatal for prosecution.

In the case of Mukesh Vs. State of Chhattisgarh reported in (2014) 10 SCC 327, it has been held by Hon'ble Apex Court that mere delay in lodging the F.I.R. is really of no consequence, if reason is explained. Relevant portion of the report is reproduced below:

"22. In this regard reliance has been placed on the decision of this Court in Sri Narayan Saha v. State of Tripura, which states as under: (SCC pp. 777 & 778, paras 5 & 10) 

"5.We wish to first deal with the plea relating to the delayed dodging of the FIR. As held in a large number of cases, mere delay in lodging the FIR is really of no consequence, if the reason is explained. In the instant case, the evidence of PW 3, the victim and that of her husband, PW 4, clearly shows that there was initial reluctance to report the matter to the police by PW 4. he, in fact, had taken his wife to task for the incident and had slapped her. In Karnel Singh v. State of M.P. it was observed that a woman who was a victim of sexual violence, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of a culprit. Therefore, the rule of prudence that her evidence must be corroborated in material particulars, has no application. At the most, the court may look for some evidence which lends assurance."

In the case of Mohd. Ali alias Guddu Vs. State of Uttar Pradesh reported in (2015) 7 SCC 272, it has been held by Hon'ble Apex Court that delay in lodging F.I.R. in cases under Section 376 I.P.C. would depend upon facts of each case. Relevant portion of the report is reproduced below:

"27. Be it clearly stated here that delay in lodging FIR in cases under Section 376 IPC would depend upon facts of each case and this Court has given immense allowance to such delay, regard being had to the trauma suffered by the prosecutrix and various other factors, but a significant one, in the present case, it has to be appreciated from a different perspective. The prosecutrix was missing from home. In such a situation, it was a normal expectation that either the mother or the brother would have lodged a missing report at the police station. The same was not done. This action of PW 2 really throws a great challenge to common sense. No explanation has been offered for such delay. The learned trial Judge has adverted to this facet on an unacceptable backdrop by referring to the principle that prosecutrix suffered from trauma and the constraint of the social stigma. The prosecutrix at that time was nowhere on the scene. It is the mother who was required to inform the police about missing of her grown-up daughter. In the absence of any explanation, it gives rise to a sense of doubt."

In the case of Deepak Vs. State of Haryana reported in (2015) 4 SCC 762, it has been held by Hon'ble Apex Court that the delay in lodging the F.I.R. in a case of rape can occur due to various reasons. Relevant portion of the report is reproduced below:

"15. The courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by the victim or by any member of her family. Indeed, this has been the consistent view of this Court as has been held in State of Punjab vs. Gurmit Singh."

Considering the aforesaid facts and circumstances of this case and law laid down by Hon'ble Apex Court in the aforesaid cases, explanation given by the prosecution for delay in lodging the F.I.R. in the present case, appears to be plausible. Hence, there is no force in the aforesaid argument advanced by learned counsel for the appellant.

Learned counsel for the appellant further submitted that according to medical evidence, age of the victim is between 17 to 18 years, in which two years variation is possible on either side and variation of two years which is beneficial to appellant-accused, should be accepted. Accordingly, he submitted that the victim was major at the time of incident. It is borne out from record that PW-3 has been examined who has proved the photocopy of Admission Form (Ex. Ka-2) and photocopy of S.R. Register (Ex. Ka-3) and stated that date of birth of the victim is 27.11.1999, as per school records.

According to Rule 12 (3) of Juvenile Justice (Care and Protection) Rules, 2007, age of a juvenile is to be determined on the basis of evidence by obtaining:

"(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school); first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;"

It is settled principle of law that age of the victim is also determined in the same method as provided under Rule (3) of Rule 12 of the Rules for determining the age of a juvenile. Hence, the aforesaid School Certificate of the victim is to be preferred over the medical evidence of the victim. Hence, aforesaid date of birth 27.11.1999 is acceptable, according to which age of the victim was 12 to 13 years and she was minor on the date of occurrence. Accordingly, there is no force in the aforesaid argument advanced by learned counsel for the appellant that the victim was major at the time of occurrence.

Learned counsel for the appellant further submitted that evidence of victim is not supported by evidence of any other witness. There is no witness of the fact that any other person had seen the victim while being enticed away by the appellant on motorcycle. Accordingly, he submitted that evidence of sole witness (victim) cannot be relied upon, without corroboration of any other witness. But it is settled principle of law that evidence of victim is treated at par with the evidence of an injured witness and her testimony can be relied even without corroboration of any other witness, if it is found to be trustworthy.

In the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat reported in AIR 1983 SC 753, it has been held by Hon'ble Apex Court that conviction of an accused can be based solely on the evidence of victim provided her evidence is worthy of reliance.

In the case of Alamelu Vs. State reported in AIR 2011 SC 715, It has been held by Hon'ble Apex Court that conviction can be recorded on the uncorroborated evidence of the victim provided her evidence does not suffer from any basic infirmities or improbabilities.

Considering the facts and circumstances of this case, evidence of victim and principles laid down by Hon'ble Apex Court in the aforesaid cases, there is no force in the aforesaid argument advanced by learned counsel for the appellant.

Next argument advanced by learned counsel for the appellant is that contradictions have appeared in the ocular evidence of prosecution witnesses, due to which their testimony is not trustworthy.

It is borne out from the record that some minor contradictions have appeared in the testimony of prosecution witnesses regarding the manner in which the victim was missing, manner in which she was enticed away by the appellant-accused, manner in which she was recovered and the manner in which she was kept by appellant-accused in Hathras. It is settled law that evidence of witnesses cannot be thrown away merely on the basis of minor discrepancies appeared in their testimony.

In the case of State of U.P. Vs. Anil Singh reported in 1989 SCC (Cri) 48, it has been held by the Apex Court that testimony of prosecution witnesses can not be discarded, unless there is reason to believe that the inconsistencies or falsehood are so glaring as to destroy confidence in the prosecution witnesses. Relevant portion of the report is reproduced below:

"Invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if there is a ring of truth in the main. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as to utterly destroy confidence in the witnesses."

In the case of Sucha Singh Vs. State of Punjab reported in (2003) 7 SCC 643, it has been held by the Apex Court that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno, falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main.

Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.

In the case of Yogesh Singh Vs. Mahabeer Singh and others reported in 2017 CRLJ 291 SC, it has been held by Hon'ble the Apex Court that conclusion of trial in the case cannot be allowed to depend solely on probity of investigation. Relevant portion of report is reproduced below:

"30. In C. Muniappan v. State of T.N. reported in (2010) 9 SCC 567, this Court explained the law on this point in the following manner: (SCC p. 589, para 55)

55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."

Considering the principles laid down by Hon'ble Apex Court in the aforesaid cases and evidence available on record, testimony of prosecution witnesses cannot be discarded merely on the basis of minor discrepancies appearing in their testimony. Accordingly, there is no force in the argument advanced by learned counsel for the appellant.

Next argument advanced by learned counsel for the appellant-accused is that no external or internal injury has been found in the medical examination report of the victim and no spermatozoa has been found in the pathological report, hence, evidence of victim is not supported by medical evidence. Accordingly, it has been submitted that prosecution version is not reliable. But, it is settled principle of law that mere absence of spermatozoa on the materials sent for examination and lack of injury on the body of the victim cannot cast a doubt on correctness of prosecution case.

In the case of Dastagir Sab & Anr. Vs. State of Karnataka reported in (2004) 3 SCC 106, it has been held by Hon'ble Apex Court that presence of injury on the body of the victim is not a sine-qua-non to prove the charge of rape. In the said case, the facts showed that medical examination was conducted after a month of the alleged offence. The medical opinion was that abrasion or marks of violence would be visible for twenty four hours and thereafter the same may disappear.

In the present case, occurrence is said to have taken place on 22.08.2012 and the victim has been recovered after about 25 days and thereafter she has been medically examined on 17.09.2012. Hence, in the light of aforesaid principles laid down by Hon'ble Apex court in the case of Dastagir Sab (supra), it is quite possible that marks of injury might have disappeared when the victim was medically examined and spermatozoa may not be found after such a long gap. Considering the facts and circumstances of this case, prosecution version cannot be disbelieved on the basis that no mark of injury on the body of the victim and no spermatozoa in the pathological report was found. Accordingly, there is no force in the aforesaid argument advanced by learned counsel for the appellant-accused.

Learned counsel for the appellant-accused further submitted that the victim is said to have been enticed away by motorcycle, while I.O. has shown in the map (Ex. Ka-9) that the victim was enticed away by Tempo. He further submitted that undergarments (PETICOT) of the victim has been taken into possession by I.O. but it was not sent for chemical examination by Forensic Science Laboratory. Accordingly, he submitted that there are laches on the part of I.O. in conducting the investigation, hence, the prosecution version cannot be relied.

In the case of Allarakha K. Mansuri Vs. State of Gujarat reported in 2002 CRI. L. J. 1489, it has been held by Hon'ble Apex Court that defective investigation by itself cannot be made a ground for acquitting the accused.

In the case of Prithvi Vs. Mam Raj reported in (2004) 13 SCC 279, it has been held by Hon'ble Apex Court that site plan is not a ground to disbelieve the otherwise credible testimony of eye-witnesses.

In the case of Dhanaj Singh alias Shera and others Vs. State of Punjab reported in (2004) 3 SCC 654, it has been held by Hon'ble Apex Court that an accused cannot be acquitted on the sole ground of defective investigation, to do so would be playing in the hands of I.O.

In the case of Sambhu Das alias Bijoy Das and another Vs. State of Assam reported in (2010) 10 SCC 374, it has been held by Hon'ble Apex Court that if direct evidence is credible, defect or negligence in investigation cannot adversely affect the prosecution case.

Considering the aforesaid principles laid down by Hon'ble Apex Court and evidence available on record, testimony of prosecution witnesses cannot be discarded merely on the basis of defective investigation conducted by the I.O. Hence, aforesaid argument advanced by learned counsel for the appellant has no leg to stand.

Learned counsel for the appellant further submitted that the victim has traveled a long distance from the place of occurrence to the place where she was kept in a room and thereafter she was brought from Hathras to Mathura by Train but she has not raised any alarm and no external or internal injury has been found in the medical examination report of the victim. Accordingly, it has been submitted that the victim is a consenting party, hence, no conviction under Section 376 I.P.C. can be recorded against the appellant-accused. It is noteworthy that age of the victim was between 12 to 13 years, as per school records and she was minor on the date of occurrence. Hence, consent of the victim is immaterial.

In the case of Satish Kumar Jayanti Lal Dabgar Vs. State of Gujarat reported in (2015) 7 SCC 359, it has been held by Hon'ble Apex Court that consent of a minor for sexual intercourse is not material. Relevant portion of report is reproduced below:

"14. The first thing which is to be borne in mind is that the prsecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 IPC would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows:

"375. Rape.- A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions--

Sixthly,- With or without her consent, when she is under sixteen years of age.

Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."

15. The legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance."

Considering the principles laid down by Hon'ble Apex Court in the aforesaid case and the fact that the victim was minor on the date of occurrence, consent of the victim is not material. Hence, aforesaid argument advanced by learned counsel for the appellant does not find any favour to him.

Last submission advanced by learned counsel for the appellant is that the appellant-accused is detained in jail for about five and half years, there is no criminal history of the appellant-accused, he is aged about 28 years and he is a poor person having occupation of labour, hence, he should be sentenced with period of detention undergone by him. It is noteworthy that the appellant-accused has been convicted and sentenced with imprisonment of seven years under Section 376 I.P.C. and according to provisions of 376 (1) I.P.C. minimum sentence of seven years is mandatory and such minimum sentence may be reduced for adequate and special reasons to be mentioned in the judgment.

In the case of State of J&K Vs. Vinay Nanda reported in (2001) 2 SCC 504, it has been held by Hon'ble Apex Court that 'special reasons' have to be distinguished from 'good' or 'other reasons'. Relevant portion of the report is reproduced below:-

"15........Where the mandate of law is clear and unambiguous, the Court has no option but to pass the sentence upon conviction as provided under the statute........

16. The mitigating circumstances in a case, if established, would authorise the Court to pass such sentence of imprisonment or fine which may be deemed to be reasonable but not less than the minimum prescribed under an enactment

17.....For imposing the minimum sentence the Court has to record special reasons. 'Special reasons' have to be distinguished from 'good' or 'other reasons'. The fact that the convict had reached his superannuation is not a special reason. Similarly pendency of criminal case for over a period of time can also not be treated as a special reason.........."

In the case of State of Karnataka Vs. Krishnappa reported in (2000) 4 SCC 75, it has been held by Hon'ble Apex Court that the social status of the victim or the accused cannot be special reasons. Relevant portion of the report is reproduced below:-

"18....The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence."

In the case of State of M.P. Vs. Santosh Kumar reported in (2006) 6 SCC 1, it has been held by Hon'ble Apex Court that reason for reducing the minimum punishment should not be only adequate but also special. Relevant portion of the report is reproduced below:-

"18. In order to exercise the discretion of reducing the sentence, the statutory requirement is that the court has to record adequate and special reasons in the judgment and not fanciful reasons which would permit the court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but also special. What is adequate and special would depend upon several factors and no straitjacket formula can be indicated."

Considering the law laid down by Hon'ble Apex Court in the aforesaid cases, the fact that the victim was aged between 12 to 13 years at the time of occurrence and she was enticed away by the appellant-accused and kept in a room for a long period and appellant committed rape with her, there is no adequate and special reason for reducing the minimum sentence of seven years imposed by learned Trial Court against the appellant-accused under Section 376 I.P.C. Hence, the aforesaid argument advanced by learned counsel for the appellant-accused has no leg to stand.

For all the reasons mentioned hereinabove, I am of the considered opinion that findings recorded by learned trial court are based on proper appreciation of evidence available on record and reasoning. There is no legal infirmity in the impugned judgment and order passed by learned trial court. Appeal is devoid of merit and it is liable to be dismissed.

Accordingly, the jail appeal is dismissed. Impugned judgment and order of conviction and sentence passed by the trial court, is affirmed.

The appellant-accused is in jail. He shall remain in jail to serve out the remaining sentence imposed by the trial court. Jail Authorities are directed to consider and provide benefit of remission to the appellant-accused, for which he is entitled, under the rules.

Let two copies of this judgment and record of trial court be sent back to the court concerned forthwith, for information and necessary follow up action. Trial court is directed to send one copy of judgment to the Superintendent of Jail concerned for communicating the result of appeal to the appellants-accused and apprise them for legal remedy available against the judgment. Trial court is also directed to submit compliance report within eight weeks.