Prosecutrix : The Delhi High Court in Raju Kumar Verma @ Raju Vs. State 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.
However on the facts and circumstances of the case, Justice Mukta Gupta observed that, 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.
the Judgment said
# Consent of Prosecutrix
As per the prosecution case, the prosecutrix left with the appellant on September 10, 2011 and stayed with him till March 19, 2012. It is the case of the prosecutrix that they resided at various places and at no place she made any hue and cry showing that she was not living willingly with the appellant.
Challenging the conviction, learned counsel for the appellant Mr.S.K. Sethi with Ms. Dolly Sharma, Advs. contended that the date of birth of the prosecutrix has not been proved in accordance with law. The fact that the prosecutrix was in love with the appellant 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 appellant 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.
APP for the State on the other hand contended that the age of theprosecutrix has been proved by the school leaving certificate according to which she was 13 years 9 months old at the when she was enticed away thus her consent, if any, is immaterial.
The prosecutrix has clearly stated that it was the appellant who took her away contrary to her wishes and subjected her to sexual intercourse which is also evident from the fact that she was pregnant when she was recovered. Hence the appeal be dismissed.
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 theprosecutrix. Thus, her consent was immaterial for the reason she was a minor.
the Court said.
# Case Law Reference
- Thakorlal D. Vadgama Vs. The State of Gujarat, (1973) 2 SCC 413
- State of Haryana Vs. Raja Ram, (1973) 1 SCC 544