High Court
Case Details
Crl.A. 85/2006 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. B M Choudhury, learned counsel for the appellant and Mr. D Das, learne d Public Prosecutor, Assam appearing for the respondent State. 2. This appeal is directed against judgment and order dated 23.02.2006 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 76/05 convicting t he appellant under Section 376 IPC and sentencing him to undergo rigorous impris onment (RI) for a period of ten years with fine of Rs. 5,000/-, in default, to s uffer further RI for one year, period in custody to be set off. 3. At the outset, Mr. Choudhury, learned counsel for the appellant submits that he would confine his submission to alteration of the sentence imposed, to o ne of period already undergone. He submits that the appellant was arrested on 1 6.06.2005 and during the period of investigation, trial and appeal, he continued to remain in detention. Considering the fact that he is in custody for more th an 71/2 years as on date, he prays for alteration of the sentence to one of the period already undergone. 4. Before coming to the above aspect of the matter, the facts of the case m ay be briefly noted. 5. An FIR was lodged by the prosecutrix on 16.06.2005 stating that on 14.06 .2005 at about 3 P.M. she had gone to the residence of one Kaliram Nath of her v illage but since no body was there, she decided to come back to her house. On t he way back, the accused called her to his house and being from the same village , she on good faith went to his house. Then the accused taking advantage of the absence of other family members, committed rape on her. On the basis of the sa id FIR, Mikirbheta P.S. Case No. 59/05 under Sections 376/506 IPC was registered . Police investigated the matter and after completion of the investigation, sub mitted charge sheet against the accused under Section 376/506 IPC. Case being s essions triable one, it was committed to the Court of Sessions for trial. Learn ed trial Court framed charge against the accused under the aforesaid Sections wh ich were read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 6. In the course of trial, prosecution examined as many as eight witnesses, i ncluding two doctors. Prosecutrix examined herself as PW 2. Court also examine d one witness i.e. Head Master of the school where the prosecutrix had studied, who proved the school certificate of the prosecutrix. Defence adduced three wit nesses. The statement of the accused was also recorded under Section 313 Cr.P.C . 7. Relying on the evidence of the prosecutrix, learned trial Court convicted the accused under Section 376 IPC and sentenced him for the period as indicated above. 8. From the materials on record, it is seen that accused was arrested on 16 .06.2005 and from the date of his arrest, he is in custody. 9. Mr. Das, learned Public Prosecutor submits that the finding arrived at b y the learned Court below is fully justified. He submits that there was no reas on to disbelieve the testimony of the victim who was consistent in her evidence by saying that the accused had committed rape on her. He, however, fairly submi ts that as the accused is in custody since 16.06.2005 and has already served mor e than 7 1/2 years of his sentence, Court may consider alteration of the senten ce to the period already undergone, keeping in view the age of the accused at t he time of commission of the offence. 10. According to her school certificate, which was exhibited and proved, the date of birth of the prosecutrix is 01.03.1991. Therefore, on the date of occurr ence i.e. 14.06.2005, she was slightly more than fourteen years of age. 11. Prosecutrix in her evidence as PW 2 narrated about the incident in resp ect of which she had lodged the FIR. In her examination-in-chief, she categoric ally stated that accused had committed sexual intercourse with her inspite of he r resistence and, thereafter, threatened her not to disclose about the incident to anybody else, which was the reason for delay in lodging of the FIR. Though s he was subjected to cross-examination at length, she remained steadfast in her d
Legal Reasoning
eposition and her testimony could not be dislodged. 12. It is settled law that conviction for the offence of rape can be based on the sole testimony of the victim, provided her testimony is found to be reliabl e and inspires confidence of the Court. In the instant case, the defence could not place any material on record which could cast aspersions on the testimony of the victim. There is no reason to disbelieve the testimony of the prosecutrix. Though, as per medical evidence, the hymen of the prosecutrix was found to be i ntact, rapture of the hymen is not required to be proved in a case of rape. The sine-quq-non for commission of the offence of rape is penetration and not ejacu lation. Partial penetration is sufficient to constitute the offence of rape. A fter perusing the materials on record, this Court finds no error in the view tak en by the learned trial Court in convicting the accused under Section 376 IPC. 13. That brings us to the question of sentence. 14. Section 376 (1) IPC provides that the minimum sentence for committing an o ffence under the said Section is not less than seven years but may extend to lif e imprisonment, though the Court may for adequate and special reasons mentioned in the judgment impose a sentence lesser than seven years. 15. From the case reco6rd, it is seen that the accused was about 19 years of age at the time of commission of the offence. He was arrested on 16.06.2005 a nd continued to remain in custody since then for more than 7 1/2 years. There i s also nothing on record to show anything adverse against the appellant while h e is serving his sentence. 16. Further, from the record it does not appear that the appellant was a hab itual offender. 17. Having regard to the above and considering the fact that appellant has a lready undergone detention for a period which is more than the minimum sentence prescribed, the Court is of the view that it would meet the ends of justice if the sentence imposed on the appellant is altered to one of sentence for the peri od already undergone. 18. In view of above, while maintaining the conviction of the appellant, the sentence is modified to the extent as indicated above. Accordingly, the appell
Decision
ant be released forthwith, if not required in any other case. 19. Appeal stands disposed of. 20. Office to send down the case record.