High Court · 2012

I have heard Mr. B.D. Goswami, learned counsel for the convict appellant and Mr. D. Das, learned Addl. P.P., Assam, for the State respondent. This appeal has been preferred challenging the judgment dated 10 2. .01.2008 passed by the learned Sessions Judge, Dibrugarh, in Sessions Case No. 2 87/06 whereby appellant has been convicted u/s 376/312 IPC and sentenced to und ergo R.I. for 10 years with fine of ‘2,000/- (Rupees two thousand), in default one month R.I. and further to undergo 2 years R.I. with fine of Rs. 2000/- (Rup ees two thousand), in default for 15 days R.I.

3. The prosecution case is based on an ejahar lodged by the victim girl herself wherein it has been alleged that the accused by taking the chance o f providing treatment of ’dhatu’ disease had illicit sexual intercourse on her i n the month of April and caused pregnancy to her. On 7.8.06 she was brought to Naharani Primary Health Centre where arrangement was made by the appellant to ca use abortion by administering some tablets as well as injection. She came out fr om the Hospital after 4 days but in spite of that the foetus was delivered.

4. Although this appeal has been filed against the conviction and s entence, the appellant would not challenge the conviction. However, he prays for reduction of the sentence from 10 years R.I. to the imprisonment already underg one by the appellant. He submits that the appellate court has the discretion to reduce the sentence on sufficient and reasonable cause. Mr. Das, learned Addl. P.P. countered the above prayer by submit 5. ting that no leniency could be shown to the convict appellant inasmuch as the ap pellant committed serious offence not only against the victim girl but also agai nst the whole society at his old age. He also submits that the prayer for lenien cy is unwarranted as because the victim girl was of the age of his grand daughte r, who was hardly 18/19 years as per medical report at the time of occurrence.

6. For the sake of consideration of the appellant’s prayer for redu cing the sentence to the period already undergone, I would refer myself to a dec ision of the Apex Court in the State of M.P. Vs. Basodi reported in (2009) 12 SC C 318, wherein in paragraph 21 it has been held that in order to exercise the di scretion of reducing the sentence the statutory requirement is that the court ha s to record ’adequate and special reasons’ in the judgment and not in the fancif ul reasons which would permit the court to impose a sentence less than the presc ribed minimum. In this case the appellant was stated to be about 85 years at the time of occurrence and by now he is about 90 years. His age has been calculated as per the age noted at the time of recording his statement u/s 313 CrPC. But t here is no such evidence; medical or otherwise, as regards his actual age. Howev er, his present age may be taken/accepted as 86 years if it is calculated from t he age reflected in the impugned judgment and in any case the appellant is now a bove 80 years and in view of his old age, I am inclined to take a lenient view f or the purpose of reducing the period of sentence. Another factor that may be ta ken into consideration is that in the evidence on record, the victim herself sta ted that after the first incident of deceitful sexual intercourse she had been m aintaining relation with the appellant by enjoying sex with him at least twice i n a month. Moreover, there is no evidence to the effect that she ever protested the accused appellant against such relationship either at the initial stage or a t the subsequent stage until she was in the unwanted advanced stage of pregnancy . There is no doubt that there is a vast age difference between the victim girl and the appellant. Yet the admitted position is that she was above 16 years. As per the medical evidence she was between 18 to 19 years of age. It is clear that she was at the age of consent at the time of first incident. It is also an admi tted position that she maintained unusual relationship with the appellant withou t reporting her parents or protesting the wrongful act of the appellant. What is clear from the evidence is that she was not a consenting party when the first s exual intercourse was committed on her but the subsequent acts were definitely f ound to be with her tacit, if not express consent.

7. appellant is entitled to some leniency in the matter of imposing sentence. In view of the above position, I am inclined to accept that the

8. It has been stated at the Bar by Mr. B.D. Goswami, learned couns el for the appellant, that the victim girl has got married and settled leading a peaceful marital life. In my considered view, above are the ’adequate and speci al reasons’ for reducing the sentence. While reducing the sentence the Court has to maintain the balance between punishment and justice. I am not agreeable to a ccept that by reducing the sentence to the period already undergone the Court wo uld be able to maintain such balance as the minimum prescribed punishment is 7 years in the case of offence under Section 376 CrPC. In the present case the acc used has been sentenced to R.I. for 10 years and whereas the appellant has serve d 4 years sentence and it will not be in the interest of justice to reduce the s entence to the period of 4 years, which he has undergone. The interest of justic e demands that the appellant should at least serve R.I. for 5 years. In view of the above, sentence of 10 years R.I. be reduced to R.I. for 5 years. Ordered acc ordingly.

9. rs. Conviction stands upheld reducing the sentence to R.I. for 5 yea

10. Send down the LCR. The appeal stands partly allowed to the extent indicated above.