JUDGMENT S. R. Vyas, J. – 1. This appeal by the above-named appellant is against his convictions under sections 376 and 366 of the Indian Penal Code and sentences of life imprisonment and ten years' imprisonment with a fine of Rs. 1000/- in default of payment of which to further rigorous imprisonment for two years, respectively, awarded thereunder by Shri K.B. Khare, Second Additional Sessions Judge, Gwalior, Both the sentences were ordered to run concurrently. 2. The prosecution case against the appellant in the trial Court was as under :- The accused-appellant and Ku. Basanti (PW. 4), daughter of Shriram (PW.2) were residents of Ramnagar which is within the limits of Gwalior Municipal Corporation Shriram (PW. 2) was an employee of the Gwalior Rayon Mills in Birlanagar, Gwalior. Chhotelal, the younger brother of the accused was running a fuel-wood stall in the neighbourhood of the house of Shriram (PW. 2) Occasionally, the accused also used to sit at this stall and, presumably, was on talking terms with Ku. Basanti (PW.4). 3. On 3-9-1972, Shriram (PW. 2) had gone to the Mills to attend to his duties. During his absence and the absence of his wife Smt. Saraswati (P W. 3), the accused at about 11 A.M. went to Ku. Basanti and represented to her that since her father was not well, she was wanted by him. On this representation, Ku. Basanti left her house, but the accused, instead of taking her to her father, took her in a tempo to Bada, a busy locality in Gwalior where Ku. Basanti enquired from him as to where was the Gwalior Rayon Mill, where her father was employed. The accused then told her that her father had gone to the house of Pappu (another accused discharged by the Committing Magistrate) in Taraganj and when she accompanied the accused to Taraganj she found that her father was not there also. On being asked by Ku. Basanti, accused threatened her and dealt a couple of blows with a stick, Apprehending that the accused, who was previously convicted for murder but acquitted in appeal might kill her also, she remained quiet. 4. At the house of Pappu, the accused put vermilion mark (Sindur) on the head of Ku. Basanti and provided a pair of Bichuas (a silver ornament worn only by married woman). 4. At the house of Pappu, the accused put vermilion mark (Sindur) on the head of Ku. Basanti and provided a pair of Bichuas (a silver ornament worn only by married woman). She was also given new clothes provided by Pappu and during the night the accused and Pappu took her to the Railway Station, Gwalior, from where she was taken to Bhopal, At Bhopal, Ku. Basanti was kept at the house of Gyasiram, brother of the accused, for three days. At the residence of Gyasiram, the accused had sexual intercourse with her both against her will and without her consent. She was then asked by the accused to return to Gwalior, where a marriage ceremony was proposed to be solemnised in Court. Ku. Basanti, believing that at Gwalior she would be able to meet her parents, accompanied the accused and reached Gwalior on 12-9-1972, where the accused took her to the house of Nathusingh (PW. 6). When Ku. Basanti left her house, she had a wrist-watch and a gold necklace which were taken out of her possession by the accused. 5. In the meantime, Shriram (PW. 2), finding his daughter Ku. Basanti and the accused missing from Morar, went out in search for both of them, but, finding that neither of them could be traced, went to the Morar Police Station on 6-9-1972 and lodged the report (Ex. P 7) in which he reported that his daughter and the accused were missing and that he was of the conviction that she must have been taken away by the accused. When on 12-9-1972 the Station House Officer of Morar Police Station received information that the accused had returned to Gwalior and was at the house of Nathusingh (P.W.6), he recovered Ku. Basanti from his house vide Ex. P-4 and the accused was arrested vice Ex. P-11. After recovery of Ku Basanti, she was referred to for medical examination and Dr. (Ku.) Kusum Ghode, who examined her, found that she was about 14 years old and the examination of her private part indicated that she had recent sexual intercourse because Ku. Basanti had an old healed hymen tear of eight' days duration. The co-accused was also examined on 12-9-1972 and it was found that he was capable of having sexual relations. There were, however, no other signs of any recent sexual intercourse by him with any woman. Basanti had an old healed hymen tear of eight' days duration. The co-accused was also examined on 12-9-1972 and it was found that he was capable of having sexual relations. There were, however, no other signs of any recent sexual intercourse by him with any woman. After the accused was remanded to judicial custody from Police custody he was also sent for medical examination and it was found that he had some injuries on his person. 6. On the aforesaid allegations, the accused was prosecuted on charges under S. 366 and 376 of the Indian Penal Code. Toe accused denied the offences for which he was tried by the Additional Sessions Judge. During the trial the charges against the accused were sought to be proved by oral as well as by documentary evidence. The accused did not raise any specific plea except that of complete denial of the prosecution case. 7. The learned trial Judge, on a consideration of the evidence on record, came to the conclusion that on the dale of the offence, Ku. Basanti was 16 years and 6 months and j 2 days old; that she was subjected to forcible sexual intercourse by the accused after she was taken to Bhopal; that she was a victim of abduction on account of force used and inducement offered by the accused and that he was guilty both under section 366 and 376 of the Indian Penal Code For the offence under S. 376 IPC, the learned trial Judge finding that there were no extenuating circumstances for mitigating the gravity of the offence, awarded maximum permissible sentence of life imprisonment and for the offence of abduction a sentence of 10 years rigorous imprisonment with a fine of Rs. 1,000/-, in default of payment of which, to further two years' rigorous imprisonment was awarded. In the event of the amount of fine being realised, a sum of Rs. 1,000/- was directed to be paid to Shriram (P.W. 2), the father of Ku. Basanti (P.W.4). Against this order of convictions and sentences, the appellant has preferred this appeal. 8. In the memorandum of appeal, the appellant has raised a number or grounds the substance of which is that the evidence relied upon by the learned trial Judge was not worthy of reliance and that his convictions were recorded on insufficient and unreliable evidence. Basanti (P.W.4). Against this order of convictions and sentences, the appellant has preferred this appeal. 8. In the memorandum of appeal, the appellant has raised a number or grounds the substance of which is that the evidence relied upon by the learned trial Judge was not worthy of reliance and that his convictions were recorded on insufficient and unreliable evidence. He has also made a grievance about the severity of the sentences awarded by the learned trial Court. 9. Though the accused was represented by a counsel and the State was also represented by the Additional Government Advocate, but when the appeal was heard, we received no assistance from either of them. The circumstances in which the case bad to be reserved for judgment without any assistance from either side have been given by us in the order-sheet dated 9.11.1976. Consequently, we were unable to know as to on what specific grounds the appellant wanted to challenge the judgment of the trial Court as also on what grounds the State wanted to support that judgment. We had, therefore, no option but to peruse the record, examine the evidence adduced at the trial and the reasons given by the learned trial Judge in his judgment for convicting the accused. Even though we particularly wanted to hear the parties on the question of sentences awarded to the accused by the trial Court, but even on this question, we are constrained to observe, we received no assistance from either side. 10. Having perused the record and examined the evidence, we have come to the conclusion that this appeal must be allowed for the reasons given below. 11. The accused was tried on two charges, viz., under S. 376 IPC for having committed the offence of rape on Ku. Basanti (P.W. 4) and under S. 366 IPC for committing the offence of abduction. We first propose to consider the prosecution evidence adduction at the trial in support of the charge under S. 366 IPC. 12. The prosecution case, as deposed to by Ku. Basanti (PW. 4), was that on the date of the incident, viz., 3.9.1972, she was 15 years old and was a student in a school at Morar. She has also stated that since the accused had a fuel-wood stall adjacent to her house, he used to come there and she saw him talking to his father on a couple of occasions. 4), was that on the date of the incident, viz., 3.9.1972, she was 15 years old and was a student in a school at Morar. She has also stated that since the accused had a fuel-wood stall adjacent to her house, he used to come there and she saw him talking to his father on a couple of occasions. These facts, according to her, enabled her to know the accused. She does not say that on any other occasion prior to the date of the incident she either had any talk with the accused or had accompanied him to any place. 13. Regarding the main incident, her version is that on the date of the incident, the accused came to her at about 11 A.M. when neither her father nor her mother was present in the house. The accused then represented to her that since her father was not well, she was wanted by him. On being so informed by the accused, she accompanied the accused in a tempo vehicle and went to the Bada locality of the town which is, admittedly, about 8 K. Ms. away from Morar; the place of her residence. In this journey with the accused she, admittedly passed through a number of crowded localities. According to her Shriram (PW-2), her father, was an employee in the Gwalior Rayon Mill, but she professed that she did not know as to where the Gwalior Rayon Mill is. The Gwalior Rayon Mill is hardly a kilometer away on the northern Side of Morar, the place of her residence, and Bada is about 8 K.Ms. away on the western side of Morar. It is really very surprising that a girl aged about 15 years should not know where the Gwalior Rayon Mill is in which her father was employed. It is, therefore, apparent that she has put forward a false excuse for accompanying the accused under the alleged false representation made to her. 14. From Bada Basanti (PW.4), admittedly, accompanied the accused to Taraganj and there, she says, when she made an enquiry about her father, the accused thereatened her and asked her to keep quiet. It is, therefore, apparent that she has put forward a false excuse for accompanying the accused under the alleged false representation made to her. 14. From Bada Basanti (PW.4), admittedly, accompanied the accused to Taraganj and there, she says, when she made an enquiry about her father, the accused thereatened her and asked her to keep quiet. The reason why she kept quiet, as given by her, is that since the accused was on a previous occasion tried and convicted for the offence of double murder she had no courage to raise her voice and submitted to, the threats extended to her by the accused. One can believe her story if she had been kept confined in the house of the acquitted accused Pappi and had not been allowed to move about until she was rescued by the Police, but the facts, which we shall refer to shortly, will conclusively establish that at every stage the witness has not told the truth but has told deliberate lies. 15. According to Ku. Basanti's own admission, she remained at the house of the acquitted accused Pappi with the appellant where new cloths and some ornaments were bought for her. The vermilion mark was put on her forehead, new clothes were given which she accepted and ornaments were worn by her. Thereafter, like a newly wedded bride she accompanied the accused in a tempo from Taraganj to the Railway Station, Gwalior, then travelled in a train from Gwalior to Bhopal, a distance of about 250 miles, and lived at Bhopal in the house of Nandram (PW. 10), the brother of the acquitted accused Pappi, for ten days During this Stay, the witness alleges, she was subjected to sexual intercourse by the accused both against her will and without her consent. Lastly, on a promise being made by the accused, that, after returning to Gwalior, they will get the marriage formally solemnised before a Court, she returned with the accused to Gwalior and while she was staying with him at the house of Nathusingh (PW.6) she was rescued by the Police. 15. Lastly, on a promise being made by the accused, that, after returning to Gwalior, they will get the marriage formally solemnised before a Court, she returned with the accused to Gwalior and while she was staying with him at the house of Nathusingh (PW.6) she was rescued by the Police. 15. The question is, do the above facts admitted by Ku Basanti (PW.4) herself indicate that she was abducted by the accused or do they indicate that it was she who herself accompanied the accused from her residence to Bada and from Bada to Taraganj, from Taraganj to the Railway Station, Gwalior from the Railway Station, Gwalior to Bhopal, from Bhopal to Gwalior Railway Station and then from Gwalior railway station to the house of Nathusingh (PW.6) ? In our opinion, no inference other than the inference about Ku. Basanti having accompanied the accused of her own free will and with her consent, is possible on the above mentioned facts. 16. As admitted by Ku Basanti (PW.4), she travelled in a tempo vehicle from Morar to Bada a very busy locality of the town of Gwalior, then from Bada to Taraganj and from there to the Gwalior railway station, where she boarded a train for Bhopal. Can anyone even suggest that during all this period till she reached Bhopal she had neither any occasion nor any opportunity to speak to anyone that she was a victim of either force or deception practised upon her by the accused? It is very easy to be wise after the event and make allegations against a person with whom she moved from one place to another. stayed in Bhopal for 10 days and when, ultimately, on the report made by her father Shriram (PW.2), she was recovered by the Police, she comes forth with a story that because of the threats extended to and the deception practised upon her by the accused, she became a victim of these criminal acts committed by the accused. 17. We are very much surprised that even on these admitted facts, the learned trial Judge was persuaded to accept her version that she being absolutely innocent and helpless, was a victim of the force and deception practised upon her by the accused. 17. We are very much surprised that even on these admitted facts, the learned trial Judge was persuaded to accept her version that she being absolutely innocent and helpless, was a victim of the force and deception practised upon her by the accused. Even if a most liberal view is taken of her evidence and even if she had not been subjected to any cross-examination, even then it would not be possible for any Court to conclude that she was a victim of either forced or fraud practised upon her by the accused, It was presumably for these reasons that nothing was attempted to be urged before this Court on behalf of the prosecution to support the judgment under appeal, Accordingly, in our opinion, we have to say that the conviction of the appellant on the charge under S. 366 IPC was devoid of any merits and is wholly unjustified. 18. There is yet another aspect of the matter which has not even been considered by the learned trial Judge, and that was about the offence of kidnapping punishable under S. 363 IPC committed by the accused. According to this section, whenever a female below the age of 18 years is kidnapped from her lawful guardianship, the accused becomes punishable with rigorous imprisonment upto 7 years. The offence of kidnapping has been defined in S. 361 IPC, according to which, whoever takes or entices a female under 18 years of age out of the keeping of her lawful guardian without the consent of such guardian, is said to commit the offence of kidnapping. We have, therefore, to see as to whether on the date of the offence, Ku. Basanti (P.W. 4) was under 18 years of age. 19. The learned trial Judge has found that according to the entries made in the Admission Register of the School, where Ku. Basanti (P.W. 4) was a student, her date of birth has been recorded as 1-7-1956 and consequently, on the date of the incident she was 16 years, 2 months and 2 days old. The only person who could give reliable evidence about the date of her birth was either her father Shriram (P.W. 2), or her mother Smt. Saraswati Bai (P.W. 3) or any other person who had knowledge about her date of birth. The prosecution examined Smt. Shobha Joshi (P.W.5), Head Mistress of the Middle School Tikonia, Morar where Ku. The only person who could give reliable evidence about the date of her birth was either her father Shriram (P.W. 2), or her mother Smt. Saraswati Bai (P.W. 3) or any other person who had knowledge about her date of birth. The prosecution examined Smt. Shobha Joshi (P.W.5), Head Mistress of the Middle School Tikonia, Morar where Ku. Basanti was a student. She has produced two documents. viz., the Progress Book (Ex. P-3) and a copy of the entry from the School Admission Register (Ex-P-10), showing that Ku. Basanti was admitted in the School on 5-10-1963 and she left it on 1-7-1967. In that register also her date of birth is shown as 1-7-1956. Shriram (P.W. 2), the father of Ku. Basanti, and Smt. Saraswati Bai (P.W. 3) her mother, have not said a word as to the month or the year in which Basanti was born. Shriram has, however, stated that his daughter was about 14 or 15 years old, while Smt Saraswati Bai has stated that her daughter was 15 or 16 years old on the date of the incident. There is not an iota of evidence as to who made the entry in the Register of Admissions of the School produced by Smt. Shobha Joshi (P.W. 5) in which Basanti's date of birth has been recorded as 1-7-1956. Admittedly, this was not an entry made by Smt. Shobha Joshi (P.W. 5), but was made by her predecessor in-office. Even Shriram (P.W. 2) has not stated that when he got his daughter Basanti admitted in the school, it was he who specified 1-7-1956 as the date of his daughter's birth. Thus, we do not know who was the person responsible for specifying the aforesaid date as the date of birth of Basanti. The best evidence, as already stated above, is not forth-coming. Under these circumstances, we cannot hold that 1-7-1956 is the true and correct date of birth of Ku. Basanti (P.W. 4). The finding of the learned trial Judge that on the date of the alleged offences, Ku. Basanti was 16 years, 2 months and 2 days old is, therefore, based on evidence and this finding is, consequently, liable to be set aside. 20. In this connection we may also refer to the evidence given by Dr. (Miss) Kusum Ghode (P.W. 13) to whom Basanti (P.W. 4) was referred to for medical examination on 12-9-1972. Basanti was 16 years, 2 months and 2 days old is, therefore, based on evidence and this finding is, consequently, liable to be set aside. 20. In this connection we may also refer to the evidence given by Dr. (Miss) Kusum Ghode (P.W. 13) to whom Basanti (P.W. 4) was referred to for medical examination on 12-9-1972. In her medical examination report (Ex P.-4), the doctor had specifically stated that for confirmation or Basanti's age; she was referred to the X-ray department. It is really a matter of great surprise that either the investigating officer did not get her radiologically examined, as advised by the doctor, or if he had in fact got her examined, the radiological examination report was withheld for reasons which were not explained. 21. In the above• named circumstances, we must, therefore, hold that neither on the oral nor on the documentary evidence, there is any justification to conclude that on the date of the alleged offence Basanti (P.W. 4) was under 18 years of age. 22. This is not a case where we can say that Ku. Basanti (P.W. 4) has been proved to be so young that she could not be treated as having completed 18 years of age. According to her parents, she was about 16 years old on the date of the offences. The reports about her medical examination are incomplete. The entries in the School Admission Register have not been proved. The burden was on the prosecution to prove by reliable evidence that on the date of the alleged offences, she was below 18 years of age and that she was either taken out from the lawful guardianship of her parents or was enticed to go with the accused. On the question of taking the girl away, the evidence is against the prosecution and when the facts admitted by her are to be examined in the light of the decision of their Lordships of the Supreme Court in Varadrajan v. State of Madras, AIR 1966 SC Page 942, it must be held that Ku. Basanti, who was a girl of mature understanding, was neither taken nor enticed her away by the accused, but she willingly accompanied the accused under some prior arrangement, so that she could marry and live with him as his wife. Basanti, who was a girl of mature understanding, was neither taken nor enticed her away by the accused, but she willingly accompanied the accused under some prior arrangement, so that she could marry and live with him as his wife. In this connection, we may refer to the evidence given by the Nathu Singh (P.W. 6) and Nandram (P.W. 10) with whom the accused and Ku. Basanti lived. In his statement, Nandram (P.W. 10) admitted that when the accused and Ku. Basanti came to him, both of them represented that they were husband and wife. The evidence of Nathusingh (P.W. 6) also indicates that when the accused and Ku. Basanti returned to Gwalior and stayed at his residence till Basanti was recovered by the Police, no complaint was made by her about any force or fraud being practised upon her by the accused. 23. Thus, on a consideration of the entire prosecution evidence, both with regard to the offences of abduction, punishable under S. 366 IPC, as also the offence of kidnapping. punishable under S. 363 IPC. our conclusions are that on the date of the alleged offences, Ku. Basanti (PW.4) is not proved to be under 18 years of age; that neither she was kidnapped nor enticed by the accused, that neither any force nor any fraud was practised upon her by the accused, and that she willingly accompanied the accused and lived with him for 10 days both of her own free will and with her consent. 24. Having come to the aforesaid conclusions, we have now to see as to whether Ku. Basanti was subjected to any act of forcible sexual intercourse by the accused either without her consent or against her will. Even according to the prosecution, she had completed 16 years of age and if she had any sexual relations with the accused willingly and with her consent; then the accused would not be guilty for that. The medical examination of the girl done by Dr. (Miss) Kusum Ghode (PW.13) shows that Basanti, though unmarried, was used to sexual intercourse. She left Gwalior on 3.9.1972 and returned from Bhopal to Gwalior on 12.9.1972. During this period of stay with the accused at Bhopal, she says, she was subjected to sexual acts by the accused practically every day. The medical examination of the girl done by Dr. (Miss) Kusum Ghode (PW.13) shows that Basanti, though unmarried, was used to sexual intercourse. She left Gwalior on 3.9.1972 and returned from Bhopal to Gwalior on 12.9.1972. During this period of stay with the accused at Bhopal, she says, she was subjected to sexual acts by the accused practically every day. Even according to her, she was living at the residence of the brother of the acquitted accused Pappi, which was not a lonely or an isolated place, where she had no opportunity to make any complaint to anyone. Her conduct clearly establishes that the sexual relations, if any, which she had with the accused, were of her own free will and with her consent. There is, thus, no question of the accused being found guilty for the offence of rape punishable under section 376 of the Indian Penal Code. 25. The learned trial Judge has found the accused guilty of the offence of rape committed on Ku. Basanti on different dates between 3.9.1972 and 12.9.1972 at Bhopal. We are again constrained to observe that this conclusion drawn by the learned trial Judge is wholly unjustified and is evidently based on considerations other than judicial. The conclusions drawn by the learned trial Judge, in our opinion, could never have been drawn in the circumstances and on the facts of the case admitted by Ku. Basanti herself. Accordingly, in our opinion, the conviction of the appellant for the offence of rape under S. 376 of the Indian Penal Code cannot be sustained on any legal ground. 26. Having come to the conclusion that the convictions of the appellant both for the offences under S. 366 and 376 IPC are wholly unjustified; we must allow this appeal and set aside the convictions and sentences passed against the accused by the learned trial Judge. 27. Before we do so, we have to make one more observation regarding the sentence awarded by the learned trial Judge. 28. The maximum sentence for an offence under S. 366 IPC is 10 years rigorous imprisonment, and the maximum sentence for the offence under S. 376 IPC is life imprisonment. The learned trial Judge, has for reasons, which we are unable to accept awarded the maximum sentences under both the sections. 28. The maximum sentence for an offence under S. 366 IPC is 10 years rigorous imprisonment, and the maximum sentence for the offence under S. 376 IPC is life imprisonment. The learned trial Judge, has for reasons, which we are unable to accept awarded the maximum sentences under both the sections. This is the first case which has come to our notice where an accused found guilty under S. 376 IPC has been awarded the maximum punishment of life imprisonment. If the learned trial Judge had taken care to go through some decided cases, where the question of sentence for an offence under S. 376 IPC has been considered, we are sure be would have found that such a sentence on the facts alleged in this case could never have been imposed on any legal consideration. 29. In a Full Bench decision of the Bombay High Court in Emperor v. Mahadeo Tatya, AIR 1942 Bom. 121, where the facts were that a Police Constable induced a girl to go with him on the pretext that he was in need to purchase some ghee, which the victim was offering for sale, and then committed the offence of rape behind closed doors, Beaumont, C.J., while considering the question of sentence, observed as under :- “I may say at once that to our minds the sentence of transportation is indefensible for an offence of this nature. The ordinary sentence for rape varies from three years to five years. In a very bad case seven years is sometimes given. But I have never myself known a sentence of transportation for life, and Mr. Velinker says that in his fifty years experience at the criminal bar he has never heard of such a sentence in a rape case. The learned Judge took the view that the case was a particularly grave one because the accused was a police constable. No doubt the complainant may have been induced to go to the accused's room more readily because she knew he was a police constable, but he was not on duty at the time when the offence is alleged to have been committed. It is not a case of a police constable taking advantage of his official position to rape a woman placed in his charge. It is certainly not a case so grave as that reported in 35 Bom. It is not a case of a police constable taking advantage of his official position to rape a woman placed in his charge. It is certainly not a case so grave as that reported in 35 Bom. LR 474, where the complainant had been allowed to spend the night in Sub Inspector's office, because she had no home to go to, and two police constables took the opportunity to rape her. In that case the sentence passed was four years. Had we considered the conviction justified, we should certainly have very materially reduced the sentence." 30. In Mian Gul v. Emperor, AIR 1932 Lah. 483, in a very very bad case, the sentence of three years was enhanced to five years with the following observations :- "When the act of the accused was an extremely high-handed one and they were armed with deadly weapons and by a show of brute force they overawed the girl and dragged her away practically at these point of the gun to some remote hills and raped her in circumstances of great brutality, exemplary punishment should be given. Such person are a disgrace to society and the children of poor parents who have to work in all kinds of wild and out of the way places for the purpose or seeking out their living must be protected from ruffians of this type. Therefore the sentence of three years rigorous imprisonment was enhanced to five years under S. 376;" 31. There is also a case of this Court in State of M.P. v. Surendra Prasad Dave, 1969 JLJ 992 =1970 MPLJ 242, where the facts were that the accused, after a number of children playing in his house had finished their play and had gone away, asked the victim Pramila Kumari to go by a particular door. While she was going, he immediately closed the doors and committed the offence of rape on her. The girl was of tender age so much so that because of the sexual act committed by the accused the girl started bleeding from her private part. While she was going, he immediately closed the doors and committed the offence of rape on her. The girl was of tender age so much so that because of the sexual act committed by the accused the girl started bleeding from her private part. Even in such a case, the observation at page 1005 regarding sentence was under :- "As regards the sentence, we feel that if an adult commits a rape on a child of tender years who dose not even understand the implication of the sexual act, an action calls for no leniency but a deterrent sentence so as to prevent the reocurrence of such an event. If this were not done, the very safety of children of tender years in the society would be in danger. From this point or view, we sentence the respondent to rigorous imprisonment for 5 (five) years." 32. Even with regard to the sentence awarded by the learned trial Judge under S. 366 of the Indian Penal Code, we are constrained to observe that it was absolutely unjustified. Even if we bad come to the conclusion that Ku. Basanti was between 16 and 18 years of age, i.e., below 18 years of age, even then on the admitted and proved facts of this case, the maximum sentence of 10 years could, under no circumstances, have been awarded to the accused for the offence under S. 366 IPC. Accordingly, what we have said above with regard to the sentence of life imprisonment awarded by the learned trial Judge to the accused under S. 376 IPC, holds good with regard to this sentence under S. 366 IPC, also. 33. The Indian Penal Code has made different provisions for punishment for different offences. With regard to some offences, the minimum sentences is provided for, but, in most of the remaining cases, the discretion is left to the Court to award sentence of imprisonment which may extend to a particular period. The very nature of these provisions requires that Judge, while awarding sentences, have to exercise their discretion and determine the quantum of sentence to be awarded on the basis of the facts of the case, the gravity of the offence, the mitigating or the extenuating circumstances of the case and other circumstances; which may justify the award of the lesser or the maximum sentence. This case, admittedly, was not one of those cases, where the maximum permissible sentence could on any legal ground have been imposed. 34. This is not a case of the nature, where a helpless minor child of immature age and understanding was subjected to acts of forcible sexual intercourse both against her will and without her consent. We have already held above, that Ku. Basanti willingly accompanied the accused and lived with him for more than 10 days both at Gwalior as well as at Bhopal. She never raised her voice about any fraud or force being practised upon her, and it was for these reasons that we have to set aside the appellant's convictions. In any event, even if, on the facts proved in this case, the accused was found guilty on any technical ground, the sentences awarded by the learned trial Judge could under no circumstances be held as justified on any legal ground whatsoever. We have, therefore, no hesitation in saying that the sentences awarded by the learned trial Judge were, firstly, not at all called for and, secondly, were awarded against all principles of judicial propriety and appear to have been awarded on considerations other than judicial. It may be that precisely for these reasons, the learned counsel for the State was unable to oppose the appeal both on merits as well as on the question of legality and extent of the sentences. In the circumstances of this case, we direct that a copy of this judgment shall be forwarded to Shri K.B. Khare, Additional District and Sessions Judge at the present plact of his posting. 35. Accordingly, for the reasons given above, we allow this appeal set aside the appellant's convictions both under Ss. 376 and 366 of the Indian Penal Code and the sentences of life imprisonment and ten years rigorous imprisonment respectively awarded thereunder, and we acquitu him of both the aforesaid charges. The appellant is directed to be set at liberty forthwith unless his imprisonment is necessary in some other case.