Gujarat High Court
State Of Gujarat vs Vinubhai Batukbhai Vagheliya on 1 October, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1732 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Approved for Reporting Yes No
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STATE OF GUJARAT
Versus
VINUBHAI BATUKBHAI VAGHELIYA
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Appearance:
MR ROHANKUMAR H RAVAL, APP for the Appellant(s) No. 1
NOTICE UNSERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 01/10/2025
ORAL JUDGMENT
1. The jail remarks shows that the accused had undergone six months and twenty three days of imprisonment, and a set-off of seven days was granted. The punishment was for six months and Rs.10,000/- fine and in failure of payment of fine, thirty days of further imprisonment. It appears that the accused could not pay the fine amount, thus had undergone the sentence as Page 1 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined ordered.
2. The appeal is filed by the State under Section 377 of the Criminal Procedure Code, 1973 (Cr.P.C.) against the order of the sentence passed by the learned Sessions Judge, Amreli on 05.07.2004 in Sessions Case no.57 of 2004 challenging as insufficient sentence and praying for enhancing the sentence.
3. The respondent no.1 about 18 years was tried for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (IPC). By the order dated 05.07.2004. The learned Sessions Judge was pleased to convict the accused under Section 363 IPC and sentenced him to undergo six months rigorous imprisonment and also to pay a fine of Rs.5,000/-, in default of fine, to further undergo fifteen days simple imprisonment. Further, the learned Sessions Judge was also pleased to convict the accused for the offence punishable under Section 366 IPC Page 2 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined and sentenced him to undergo six months rigorous imprisonment to pay a fine of Rs.5,000/- with the default stipulation of undergoing fifteen days simple imprisonment on non-payment of fine. Both the sentences were to run concurrently. While the learned Sessions Judge was pleased to acquit the accused for the offence punishable under Section 376 IPC.
4. The learned APP, Mr. Rohan H. Raval has submitted that taking into consideration the age of the victim-girl as of 15 years, as deposed by the victim herself, the sentence to the accused is insufficient and the accused has not been appropriately punished. Learned APP Mr. Raval submitted that the victim-girl herself had stated that she was taken away from the legal guardianship of the father by the accused and with an intent to have illicit intercourse. Learned APP submitted that the evidence of the victim-girl is corroborated by the evidence of Page 3 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined the father who has himself stated that the victim-girl was taken away by the accused from his legal guardianship and at that time, the girl was 13 years of age.
4.1 Learned APP, Mr. Raval submitted that when the offence under Sections 363 and 366 of IPC was proved before the Trial Court, then the penal provision should be applied and no mercy can be granted. Mr. Raval submitted that sentencing is not an informal exercise, but an exercise of judicial discretion and submitted that when the provision makes a limit to the punishment, then the maximum sentence is required to be ordered. Mr. Raval submitted that the order of sentence against the accused is very lenient and hence, urged to enhance the same.
5. Section 377 Cr.P.C. reads as under:-
"377. Appeal by the State Government against sentence.--
(1) Save as otherwise provided in Page 4 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined sub-section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy--
(a) to the Court of Session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court.
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy--
(a) to the Court of Session, if the sentence is passed by the Magistrate; and
(b) to the High Court, if the sentence is passed by any other Court.
(3) When an appeal has been filed Page 5 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined against the sentence on the ground of its inadequacy, the Court of Session or, as the case may be, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."
6. In the case of the State of Rajasthan v. Mohan Lal & Another in Criminal Appeal No.959 of 2018, while deciding the leniency, the Hon'ble Supreme Court had observed that the High Court was too lenient in imposing the sentence of six days only which was the period already undergone by the accused in confinement. Thereafter, the Hon'ble Supreme Court imposed a sentence of six months rigorous imprisonment and fine of Rs.25,000/- for the offence under Section 325 of IPC and in case of default of payment of fine, the accused was ordered to undergo further rigorous imprisonment for 3 months. The Hon'ble Supreme Court has referred to the case of Soman Page 6 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined vs. State of Kerala, reported in (2013) 11 SCC 382 and Alister Anthony Pareira v. State of Maharashtra reported in (2012) 2 SCC 648 and has made observations in Paragraphs 10, 11, 12, 13 and 14 as under:-
"10. Currently, India does not have structured sentencing guidelines that have been issued either by the legislature or the judiciary. However, the Courts have framed certain guidelines in the matter of imposition of sentence. A Judge has wide discretion in awarding the sentence within the statutory limits. Since in many offences only the maximum punishment is prescribed and for some offences the minimum punishment is prescribed, each Judge exercises his discretion accordingly. There cannot, therefore, be any uniformity. However, this Court has repeatedly held that the Courts will have to take into account certain principles while exercising their discretion in sentencing, such as proportionality, deterrence and rehabilitation. In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness.Page 7 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025
NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined
11. This Court in the case of Soman Vs. State of Kerala [(2013) 11 SCC 382] observed thus :
"27.1. Courts ought to base sentencing decisions on various different rationales - most prominent amongst which would be proportionality and deterrence.
27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint 27.3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.
27.5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer. Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor."Page 8 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025
NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined
12. The same is the verdict of this Court in Alister Anthony Pareira Vs. State of Maharashtra [(2012) 2 SCC 648] wherein it is observed thus:
"84. Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."
13. From the aforementioned observations, it is clear that the principle governing the imposition of punishment will depend upon the facts and circumstances of each case. However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending Page 9 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined circumstances have to be borne in mind while imposing the sentence. The Court cannot afford to be casual while imposing the sentence, inasmuch as both the crime and the criminal are equally important in the sentencing process. The Courts must see that the public does not lose confidence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resorts to private vengeance.
14. In the matter at hand, it is proved that the victim has sustained a grievous injury on a vital portion of the body, i.e. the head, which was fractured. The doctor has opined that the injury was life threatening. Hence, in our considered opinion, the High Court was too lenient in imposing the sentence of six days only which was the period already undergone by the accused in confinement."
6.1 In Bed Raj v. State of Uttar Pradesh reported in 1955 (2) SCR 583, the Hon'ble Supreme Court has concluded that the question of sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate Page 10 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined court should not interfere to the detriment of the accused person except for very strong reasons, which must be disclosed on the fact of judgment. It was further held that in a matter of enhancement, there should not be interference when the sentence passed imposes substantial punishment. Here in this case, the accused No.1 has already suffered imprisonment of one year and thirteen days.
7. As provided under sub-section (3) of Section 377 Cr.PC, when a prayer is made by way of an appeal against the sentence on the ground of inadequacy, the sentence shall not be enhanced, except giving to the accused a reasonable opportunity of showing cause against such enhancement. While showing cause, the accused may plead for his acquittal or for the reduction of the sentence. In light of the provision of sub-section (3) of Section 377 Cr.P.C., the argument raised by learned APP Mr. Raval has to Page 11 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined be considered, where the accused would have the right to plead his acquittal or even for reduction of the sentence.
8. The prosecution case against the accused is as per the complaint of Velsibhai Hathibhai, resident of Dhari, who was having a business of cattle, who has six daughters and two sons. He lodged a complaint accusing that on 09.02.2004, at about 02.30 hours in the noon, the sons of the complainant - Kanubhai and Rajeshbhai informed the complainant that one Shantuben, wife of Batukbhai along with Vinubhai Batukbhai, Rajubhai Savabhai and Bharatbhai Batukbhai came to the house of the complainant and they lured away the prosecutrix promising that they would arrange her marriage with the accused and thereby, abducted her forcibly in a loading rickshaw.
9. On hearing the facts from the son, the complainant started search of her daughter and Page 12 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined also made an inquiry at the house of the said Shantuben. However, the complainant did not receive any response and therefore, he filed a complaint on 10.02.2004 at Dhari Police Station for the offence punishable under Sections 363 and 366 of the IPC.
10. It was the case of the complainant as per the statement recorded on 12.02.2004 by the police that the accused had taken his daughter on the pretext of marriage, lured the victim. Such incident had occurred at Village Bhad of Khambha Taluka. It was also alleged that the accused took the victim in the farm of Arjanbhai of Savarkundla and had established sexual intercourse with the victim-girl.
11. The Trial Court on appreciation of evidence has acquitted the accused for the offence punishable under Section 376 IPC i.e. for the rape on the ground of benefit of doubt. The observation has been narrowed down to the age of the victim-girl Page 13 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined considering that being less than 18 yeas, the victim would not be in a position to give her free consent for establishing sexual relation beyond marriage. The learned Trial Court Judge was of an opinion that even if the permission was granted to take away from the legal guardianship, such consent cannot be considered as free and legal. The learned Trial Court Judge, on appreciation of the evidence of the complainant, came to the conclusion that the deposition of the complainant - Velsibhai at Exhibit 8 proves that at the time of incident, the victim was taken to Bagsara and later on, the accused took away the victim-girl who was thereafter found in the field of Arjanbhai at Savarkundla. The victim was found with the accused and the observation was of the learned Trial Court Judge that the victim was taken away in the absence of the father from his legal guardianship and for about 20 days, the accused had kept the victim in his custody, which as Page 14 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined observed gets corroborated from the evidence of the victim-girl herself.
12. The incident is dated 13.02.2004. The provision of Section 375 refers to the age of the female girl, to give her consent for sexual relation at the age of 16. The provision under Section 375, thus, considers that any consent given by the female above the age of 16 would not be considered as rape. While Section 361 of IPC makes kidnapping punishable from the lawful guardianship if the female was under 18 years of age. Here, in the present matter, no documentary evidence with regard to the age has been produced.
13. In case of Mahadeo son of Kerba Maske v. State of Maharashtra & Anr., (2013) 14 SCC 637, reference has been made about Rule 12(3) of the Juvenile Justice (Care and protection of Children), Rules 2007) applicable in determining the age. Para 12 of the said judgment reads as Page 15 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined under:-
"12. We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under
Rule 12(3) of the said Rules, it is stated that:
12(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, by the Committee by seeking 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;"
Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rules 12(3)(a)(i) to Page 16 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined
(iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well."
14. In the referred judgment, it has been concluded that the yardstick applicable to determine the age of juvenile can be followed even for victim. The determination of the age is to be done by following the procedure laid down in Rule 12(3). Here, the deposition of the victim-girl recorded at PW1 refers to her age as being 15 years. She stated that after her inquiry by the police, she was taken to the Government Dispensary at Khambha as well as Amreli. The evidence of the victim-girl was that the accused had allured her under false pretext by stating that her father was calling her, the accused took her to Savarkundla, where they stayed for about three to four days, there the accused entered into Page 17 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined physical relations with her. She further stated that the accused had taken her without the permission of her parents, since her father had given the complaint, so she had returned back and she had no interest in staying with the accused.
15. The chief examination does not show that the physical relation established by the victim and the accused was without the permission and consent of the victim-girl. In her deposition, she is not stating that when she was at Savarkundla for three to four days and that the accused had forcibly entered into physical relation. In the cross-examination, it has been brought on record that in the farm at Savarkundla, where they were residing together, the victim-girl was cooking and all the household items were purchased from the village. She used to go along with the accused. However, she has denied of any statement to the police Page 18 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined that because of the love relation, she had gone with the accused. At that time, her father had gone to Bagasra Village and mother was at Village Niran and almost 20-23 days ago, in the afternoon, she and accused had come at the bus stand of Bhad Village and had sat in bus going to Village Savarkundla.
16. The Investigating Officer-PW4-Purushottambhai Rathod stated that he received the investigation on 14.01.2004. He had recorded the statement of the complainant and the victim as well as the witnesses. In the cross-examination, the Investigating Officer admitted that the victim and the accused together had appeared in the police station jointly.
17. The father in the deposition stated that her daughter had informed him that by showing a knife, forcibly the accused had taken her away. The further evidence in the cross-examination would refer that his age was 70 years and wife Page 19 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined was 60 years. His eldest son was aged about 30 years, while another daughter was 35 years, 25 years and his second son was between 17-18 years, while he stated that the birth of the victim was at home and the birth was never registered. In view of the fact and as per provision under Rule 12, it comes on record that the victim-girl has never had any schooling. The father clarifies that he does not remember the date of birth of any of his children. No documentary evidence showing the registration of the birth, nor any leaving certificate from the first school attended, could be produced since the birth was never registered, nor the victim- girl had entered any school for formal education. In view of the referred fact, in accordance to the provision of Rule 12, the medical evidence with regard to the age could be relied upon.
18. In the deposition of the Doctor examined as PW3, Page 20 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined Dr. Kamlesh Vithlapara who had examined the victim-girl, has given his deposition that there was a hymen tear of the victim and for the determination of the age, they had requested the radiologist at Bhavnagar, inspite of that, according to his opinion, the age of the victim- girl was between 15 to 17 years. The radiologist's report of the victim-girl was received and the Doctor deposed that x-ray of the victim-girl was taken and as per the radiologist's report, the age would be between 15 to 17 years.
19. In the cross-examination, the Doctor could state that there could be one or two years variation in the age and referring to the x-ray plate- Exhibit 20, the Doctor stated that the radius and ulna were joined and as per the Doctor, such progress of infusion of the bones could occur only after the age of 17. Thus, the Doctor could not deny that the age of the victim could be 17 Page 21 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined or more than 17.
20. In the case of Jarnail Singh v. State of Haryana reported in (2013) 7 SCC 263, the Hon'ble Supreme Court was of the view that though Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007, was strictly applicable only to determine the age of the child in conflict with law, Rule 12 as a statutory provision should be the basis for determining the age even of a child who is victim of crime.
21. As laid down in the case of Jarnail Singh (supra), in scheme of Rule 12(3) matriculation or equivalent certificates of the child concerned is the highest rated option. In case such certificate is available, no other evidence can be relied upon. Rule 12(3) envisages consideration of the date of birth entered in the first school attended by the child. When no such documents as noted in (i), (ii), or (iii) Page 22 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined of Clause (a) of Rule 12(3) has been produced on record to prove the date of birth, Clause (b) of Rule 12(3) provides that in absence of the aforesaid, the determination of the age could be made on the basis of medical opinion.
22. In case of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir, (1982) 2 SCC 538, the Hon'ble Supreme Court while considering the evidentiary value of the radiological test, determining the age of the person, has confirmed that two years of either side can be accepted while appreciating opinions of the expert Doctor, ascertaining age of the person on the basis of the radiological test.
23. In Rajak Mohammad v. State of Himachal Pradesh reported in (2018) 9 SCC 248, while considering the age of the victim-girl and the radiologist's report, it was noted that the age determined on the basis of radiological examination may not be an accurate determination and sufficient margin Page 23 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined either way has to be allowed, yet the totality of the facts stated read with the report of the radiological examination, gives room for ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt naturally must go in favour of the accused and in view of such observation of the Hon'ble Supreme Court, here when the age of the victim is considered to be between 15 to 17 years, then two years variation on the higher side would determine the age of the victim as 19 years. If that age, as per the medical report, gives the benefit in favour of accused is considered, then no offence would fall under Sections 366 or 363 of the IPC.
24. In view of the above analysis of the evidence, the appeal of the State would fail merits. This Court, thus, does not find any reason to entertain the appeal of the State, which is for the prayer for enhancing the sentence. Hence, Page 24 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025 NEUTRAL CITATION R/CR.A/1732/2004 JUDGMENT DATED: 01/10/2025 undefined the appeal stands dismissed. Record and proceedings to be sent back to the concerned Court.
(GITA GOPI,J) PARMAR KRISH Page 25 of 25 Uploaded by PARMAR KRISH JAYESH(HC02348) on Mon Oct 06 2025 Downloaded on : Tue Oct 07 00:01:25 IST 2025