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S.S. Nijjar and S.S. Grewal, JJ. - By judgment dated 11.7.2003, We have convicted Anil Kumar, respondent under Section 361, 366 and 376 of the Indian Penal Code.

41. The convict Anil Kumar has been produced in Court in custody. We have heard the learned counsel for the parties on the quantum of sentence. Mr. Nagpal has submitted that a lenient view be taken in the matter of sentence as a convict-respondent is a first offender. During the pendency of the criminal proceedings, the convict had got married. He has a wife and two small children, both boys, 7 and 4 years respectively. He is a poor man. He ekes out his living by hawking fruit and vegetables. He is an illiterate man and was, therefore, unaware of the gravity of the offence committed by him. In support of the plea of leniency, learned counsel for the respondent-convict has relied on the judgment of the Supreme Court, in the case of State of Himachal Pradesh v. Mango Ram, 2000(3) R.C.R. (Criminal) 752. Leaned counsel has placed particular emphasis on the observations of the Supreme Court contained in paragraph 16 of the judgment which are as under:-

42. Ms. Monga, learned counsel for the State however, submits that in cases of rape, especially where the victim is a minor, the Court should not show any leniency, unless some exceptional circumstances warrants, a deviation from the minimum sentence prescribed. In support of the aforesaid submission the learned counsel has relied on three judgments of the Supreme Court rendered in the cases of State of Rajasthan v. Om Parkash A.I.R. 2002 S.C. 2235; State of Karnakata v. Krishnappa, A.I.R. 2000 S.C. 1470 and State of Andhra Pradesh v. Polamala Raju @ Rajarao, 2000(3) R.C.R. (Criminal) 732.

43. We are of the considered opinion that the facts and circumstances of this case do not leave any scope for showing any leniency to the respondent-convict. The respondent-convict has been convicted under Sections 361, 366 and 376 of the IPC. Punishment for commission of an offence under Section 361 of the IPC is provided under Section 363 of the IPC. The aforesaid sections are as under:-

"361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under (sixteen) years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian is said to kidnap such minor or person from lawful guardianship.
"16. In the instant case, the trial Court gave sufficient and cogent reasons for imposing the sentence of 10 years R.I. for the offence under Section 376 IPC on the respondent. Those reasons have impressed us. The trial Court was rightly influenced by the fact that the respondent was a married man of 49 years of age having his own children and the victim of his sexual lust was an innocent helpless girl of 7/8 years of age. The medical evidence provided by PW6, Dr. Shalini Devi exhibits the cruel nature of the act and the extent of pain and suffering which the victim might have undergone on her genitalia as a result of forcible coitus. The trial Court had, therefore, opined that because of the cruel nature of the act, the accused was not entitled to any leniency.