Delhi High Court Today has held that since the consent of a girl below the age of 16 years is immaterial, the same cannot be treated as a mitigating circumstance so as to award a sentence lesser than 7 years rigorous imprisonment.
It is argued on behalf of the Accused that the fact that the prosecutrix was in love with the Accused is evident from her letters written which have been proved by the prosecution. Since the prosecutrix was a consenting party, she refused to get her gynaecological examination done when she was produced before the doctor. There are contradictions in the statement of prosecutrix. The identity of the Accused as the person who enticed the prosecutrix has not been established. Even as per the prosecutrix, the appellant had married her and thus the offences of kidnapping and rape are not constituted
But the Court has dismissed the Appeal filed by Accused challenging his conviction and sentence under Sections 363, 366 and 376 IPC and held as follows;
“Section 376 IPC prior to the amendment carried out w.e.f. February 03, 2013, provided that the offence of rape of a woman under 16 years of age with or without her consent was punishable with imprisonment of not less than seven years but which may extend for life or for a term which may extend to ten years and payment of fine, provided, the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. Since the consent of a girl below the age of 16 years is immaterial, the same cannot be treated as a mitigating circumstance so as to award a sentence lesser than 7 years rigorous imprisonment however on the facts and circumstances of the case, the sentence of Rigorous Imprisonment for 10 years for offence punishable under Section 376 IPC and Rigorous Imprisonment for 7 years each for offences punishable under Sections 363 and 366 IPC is on the higher side. Thus, sentence of the appellant is modified to one for Rigorous Imprisonment for 7 years for offence punishable under Section 376 IPC with a fine of `10,000/- and in default of payment of fine to undergo Simple Imprisonment for one month. The sentences for offences punishable under Sections 363 and 366 IPC is also modified to Rigorous Imprisonment for 4 years with a fine of `2000/- on both counts and in default of payment of fine to undergo Simple Imprisonment for one week on both counts. The sentences would run concurrently”.
Justice Mukta Gupta has also dismissed the application filed by the Accused for modification of the order on sentence praying that he be released on the sentence already undergone, holding that as per Section 376 IPC, the minimum sentence prescribed for the offence of rape of a minor below 16 years is 7 years and hence the sentence of the appellant cannot be reduced to the period already undergone. ‘From the evidence on record, the prosecution has proved beyond reasonable doubt that prosecutrix was of 13 years 9 months of age at the time of incident and Raju having allured and enticed the prosecutrix. Thus, her consent was immaterial for the reason she was a minor’, said the Court.
Read the Judgment here.