JUDGMENT (PER : HONOURABLE MR.JUSTICE G.R.UDHWANI) 1. Criminal Misc. Application No.16967 of 2012 has been preferred by the original accused under Section 389 of the Code of Criminal Procedure (for short CrPC), for suspension of sentence imposed vide judgment and order dated 27/07/2012 rendered in Sessions Case No.21 of 2012 by the learned 3rd Additional Sessions Judge, Mehsana camp at Visnagar. 1.1 On noticing that the sentence imposed upon the accused for the offence punishable under Section 376 of the Indian Penal Code (for short IPC) is of only two years RI with fine of Rs.2,000/, in default, to undergo two months SI, against which he has already suffered about 1 & ½years, this Court deemed it proper to hear the main appeal preferred by the original accused being Criminal Appeal No.1218 of 2012, as also the Criminal Misc. Application No.13823 of 2012 seeking leave to appeal and Criminal Appeal No.1478 of 2012 seeking enhancement of sentence, preferred by the State of Gujarat. 2. The original accused – appellant in Criminal Appeal No.1218 of 2012 was charged for the offences punishable under Sections 363, 366 and 376 of the IPC and after investigation and committal of the case, the original accused having been tried in the Court of learned 3rd Additional Sessions Judge, Mehsana camp at Visnagar, was ordered to be acquitted for the offences punishable under Sections 363 and 366 of the IPC after extending him benefit of doubt and was convicted and sentenced to two years RI with fine of Rs.2,000/, in default, to undergo two months SI for the offence punishable under Section 376 of the IPC. 3. While the State seeks leave to appeal by filing Criminal Misc. Application No.13823 of 2012 urging for conviction of the original accused for the offences punishable under Sections 363 and 366 of the IPC, as also enhancement of sentence for the offence punishable under Section 376 of the IPC, the original accused urges to acquit him. As it is convenient to decide all the proceedings together by this common oral judgment, they were so head and are being decided. 4. As it is convenient to decide all the proceedings together by this common oral judgment, they were so head and are being decided. 4. Having considered the arguments advanced by the parties, as also the evidence, it cannot be disputed that insofar as offences punishable under Sections 363 and 366 of the IPC were concerned, the statement of the prosecutrix, at various stages, as compared with the evidence in her examination inchief and cross-examination, gave inconsistent versions. A perusal of the examination inchief of the prosecutrix indicates that she has made half hearted allegations of accused having lured and kidnapped her after promising to her new clothes and marriage; at the same time, she admits of having gone with the accused person to various places. In the cross-examination, she admits of having known the original accused since long, having love affair with him since three years; having persistently met the respondent despite opposition from her parents who did not approve their love affair; having accompanied the respondent in the autorickshaw which was occupied by them with co passengers as well; as also having made a statement before the Police that they had eloped without informing their parents and, therefore, feared returning. Similarly, even before the Doctor, who examined her, she was found to have revealed her voluntary elopement, and having had sexual intercourse with the respondent. Thus, such diverse version given by the prosecutrix during investigation and trial were sufficient enough to question her credibility and, therefore, the trial Court had rightly extended benefit of doubt to the respondent, while acquitting him of the charges for offences punishable under Sections 363 and 366 of the IPC. 4.1 Above admitted facts were clear indication of absence of ingredients of Sections 363 and 366 of the IPC during alleged offence. Therefore, it cannot be said that the trial Court committed any error in extending benefit of doubt to the original accused insofar as offence punishable under Sections 363 and 366 of the IPC were concerned and the arguments of learned APP, to the contrary, deserve to be rejected. 5. So far as offence punishable under Sections 376 of the IPC is concerned, as seen above, it was borne out from the testimony of the Doctor that a disclosure was made before him by the prosecutrix of accused having had a consensual sexual intercourse with her. 5. So far as offence punishable under Sections 376 of the IPC is concerned, as seen above, it was borne out from the testimony of the Doctor that a disclosure was made before him by the prosecutrix of accused having had a consensual sexual intercourse with her. Even, the prosecutrix in her testimony deposed of the accused having had a sexual intercourse with her for about two or three times, against her wishes. On consideration of the deposition of the doctor, it appears that although there was an evidence of sexual intercourse with the prosecutrix, the possibility of respondent having used physical force, was ruled out in view of lack of injury marks on the person of the prosecutrix which normally would be found in the eventuality of use of force by the assailant. Therefore, on overall consideration of the evidence, it can be said that respondent had a consensual sexual intercourse with the prosecutrix, particularly when taking of prosecutrix out of lawful guardianship or enticing her away by original accused could not be established. Thus, the arguments advanced by the learned Advocate for the original accused that there was no evidence to establish sexual intercourse with the prosecutrix, has no merits. 6. However, it was only on technical ground of the prosecutrix being below age of 16 years, that original accused was held guilty of rape, which was otherwise a consensual sexual intercourse. While this fact cannot be pressed into service for acquittal, it will certainly have a bearing on the sentence to be imposed in a given case. In State of Punjab Vs. Rakesh Kumar [ (2008) 12 SCC 33 ], in almost similar circumstances, the Apex Court on consideration of the age of the prosecutrix being less than 16 years at the time of occurrence, as also the fact as to her consensual intercourse with the accused, as also the affidavit of father of the prosecutrix conceding to adoption of a liberal view by the Court, fixed three years of RI and a fine of Rs.10,000/as appropriate sentence. 7. 7. In the instant case, the learned trial Judge, apart from the age of the original accused (21 years) and that of the prosecutrix (less than 16 years), considered the facts like the original accused being the only male members in the family having five sisters as special circumstances for imposing the punishment shorter than the minimum of seven years prescribed under Section 376 (1) of IPC by invoking proviso thereto. 8. It is required to be appreciated that above proviso confers a discretion upon the Court, to be exercised judiciously. One of the consideration for such judicious exercise of discretion can be motive or mindset of the accused in committing the offence. An offence of rape involving violence and offending the modesty and dignity of victim as also violating her personal freedom as a person stands on a footing different from the incident of two consenting and willing persons jointly arranging an escapade for fulfilling their physical desires stemming from basic instincts, in ignorance of law and in defiance of social norms. In such cases, it has to be carefully examined whether it is proved beyond reasonable doubt that the accused compelled or enticed the alleged victim out of keeping of the lawful guardian and whether the accused had sexual intercourse with the victim under any of the six circumstances related in Section 375 of the IPC. When the only one condition of the woman being under 16 years of age is fulfilled, the offence of rape is committed. However, when the ingredients of force, violence, enticement and lack of will or consent are absent in evidence led before the Court, the Court must consider those circumstances as adequate and special reasons for not imposing the minimum sentence as prescribed in subsection (1) of Section 376 of IPC. The other relevant circumstances to be considered as extenuating circumstances in such cases may also be the age of the accused and the victim, their level of literacy and culture as also the impact of the offence and punishment on the parties concerned. In absence of mens rea or past record of criminality, a fair chance of rehabilitation in society must be given to the accused and the imprisonment must be just adequate to serve its purpose of having deterrent and reformative effect. In absence of mens rea or past record of criminality, a fair chance of rehabilitation in society must be given to the accused and the imprisonment must be just adequate to serve its purpose of having deterrent and reformative effect. Where sentence of long period of rigorous imprisonment is not likely to serve those purposes and instead likely to impoverish the accused or ruin his career and prospect in life in the prime of his youth, that may provide adequate and special reasons for making a departure from imposing minimum prescribed sentence. How much sentence and fine would serve the ends of justice would of course depend upon the facts and circumstances of each case; and there cannot be slide rule or straitjacket formula for that purpose. The Court may lean in favour of minimum justifiable fine and period of imprisonment, particularly in case of ignorant, poor, backward and young people where the important and major ingredients of the otherwise very serious offences are absent in evidence. It is high time that some sentencing guidelines are evolved in India on the lines they are issued by the United States Sentencing Commission; and alternative modes of punishment are devised to ease some of the avoidable burden on the prisons. 9. Under the above circumstances, on one hand reducing the sentence below two years may not be justified, enhancing the sentence may cause miscarriage of justice in the peculiar facts of the case. 10. Under the circumstances, neither the application seeking leave to appeal need to be granted; nor the appeal seeking enhancement of sentence and the appeal preferred by the original accused seeking acquittal can be allowed. Consequently, all the three appeals and application for leave to appeal fail and are dismissed. Since the main proceedings are disposed of as above, Criminal Misc. Application No.16967 of 2012 for suspension of sentence does not survive. Accordingly, it is also disposed as dismissed.