A.P. Ravani, J.
1. Admit. Mr. J.U. Mehta, P.P., waives service on behalf of the State. Mr. A.H. Mehta, the learned advocate for the appellant-accused, has confined his arguments only with regard to sentence and has not raised any contention against the conviction.
2. The appellant-accused has been convicted for the offences punishable under Section 366 and 376 of the Indian Penal Code in Sessions Case No. 53 of 1982 and has been sentenced to undergo R.I. for three years on each count and the substantive sentence of imprisonment imposed on the accused on each count is ordered to run concurrently. The learned Sessions Judge, Surendranagar, declined to take a lenient view of the matter probably on the ground that the virginity of the prosecutrix has been affected permanently and her reputation has been tarnished for the whole life. This is bound to happen in any rape case. The circumstances of the case clearly show that both, the accused as well as the prosecutrix, are of immature age and the prosecutrix used to meet the accused often and on. She willingly participated in elopement from the house (at village Chotila) and went to Ahmedabad and then to Surendranagar. There she stayed with the accused for about 8 days. Of course, the age of the prosecutrix being less than 16 years (to be precise 15 years, 5 months and 5 days on the date of incident) her consent cannot be a defence but this factor may certainly be taken into consideration while imposing sentence. The accused is also of immature age (i.e. around 21 years of age). In immaturity if the accused has been led away and if he has fallen to temptation, he should not be treated like a sex-maniac.
3. As regards the age of the prosecutrix is concerned it does not appear that the prosecutrix has stated on oath in an affidavit sworn by her before the Mamlatdar that she was aged about 20. This fact has been deposed to by the Mamlatdar who has been examined in the case. Thus the girl might be appearing to be of more than 18 years of age. But as the evidence stands it is proved that on the date of incident she had crossed the age of 15 years and had not completed 16 years of age on the date of the incident.
4. The sex offences of this nature are required to be considered from the view point of the following facts and circumstances:
1. Was the accused in a position to influence the girl and take advantage of her inferior position such as that the girl being in service under the accused or the girl being under some obligation of the accused?
2. Is the relationship between the accused and the girl that of an employer and an employee or that of a teacher and a student or that of a person in authority and a subordinate or that of a police officer and a citizen who is required to be protected by the former?
3. There may not be any relation whatsoever between the accused and the girl and it may be that the accused might be taking the advantage of the situation that existed at the time of the incident.
4. The respective ages of the accused and the girl. Is the accused fairly advanced in age and the girl is comparatively of younger age?
5. Was the girl forcibly raped? Were there any marks of injury on the girl or the person of the accused?
6. The accused and the girl being in the same age groups - say teen agers or in their early twenties - might have come nearer on account of natural physical attraction towards each other. In such a situation has the boy (i.e. the accused) become prey to temptation of indulging in unlawful sexual activity? And is there no element of force in such unlawful sexual activity?
5. If the case falls in the last category, i.e. No. 6 then it does not require to be treated on par with the cases of sexual offences narrated in the abovementioned first 1 to 5 categories. The present case falls in the last category. In such cases also even for a moment it cannot be said that the accused has not committed any offence whatsoever. But while imposing sentence in such type of cases if lenient view is taken, it would rather meet the ends of justice inasmuch as the accused who has committed the offence in his youthful exuberance may have a sense of self-restraint in future. The present case cannot be put on par with others where the accused may be called sex-maniacs who are out to satisfy their lust or sexual hunger anyhow. Having regard to all the facts and circumstances of the case. I think that the ends of justice would be met if the sentence is reduced to 1 1/2 (one and a half) years R.I. from three years R.I. Hence the order of sentence is substituted as follows:
6. The accused is sentenced to undergo R.I for 1 1/2 (one and a half) years for the offences punishable under the Sections 366 and 376 of the Indian Penal Code, i.e., on both the counts.
The appeal is allowed to the aforesaid extent. Four weeks time is granted to the accused to surrender.