1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No.611 OF 2003. Vishwas @ Vishu Vijay Haldankar, age 36 years,presently lodged at Yerwada Central Prison, Pune. ..Appellant/Orig.Accused. vs. The State of Maharashtra ..Respondent. (at the instance of Tardeo Police Station, C.R.No.188/1998) Mrs Smita Gaidhani, Advocate (appointed) Dr F.R. Shaikh,A.P.P. for the Respondent. CORAM: BILAL NAZKI, AND A.R.JOSHI,JJ DATED : 7TH SEPTEMBER, 2009 ORAL JUDGMENT (Per Bilal Nazki,J) 1. The appellant-accused was tried for an offence punishable under Sections 324, 506(II), 307, 342 and 376 of the Indian Penal Code (IPC) 2 in Sessions Case No.1094 of 1998 by the learned Additional Sessions Judge, Greater Bombay(the Trial Court for short). The appellant has been awarded sentence of imprisonment for life and fine Rs.5,000/-under Section 376 of the IPC, and one year of imprisonment and fine of Rs.1000/- under Section 342 of the IPC. However, the accused was acquitted for the offence punishable under Sections 324, 506(II) and 307 of the I.P.C. 2. He was charged for the aforesaid offences on the allegations that on 28th July, 1998 he wrongfully confined Prachi P.W.6, a minor, his cousin sister and also raped her. He pleaded not guilty and claimed to be tried. Prosecution examined seven witnesses and exhibited several documents. The appellant-accused has been in custody right from the beginning. He was not bailed out during the trial. He is also in jail after conviction. 3. We have heard the learned counsel appearing on behalf of the appellant as well as the learned Additional Public Prosecutor. Perused 3 the paper book in Sessions Case No.1094 of 1998. 4. The facts of the case are that the alleged victim had lost her parents and she along with her other sister and brother was living in uncle s house. The appellant-accused who is son of the uncle of the victim, during one night committed rape on the victim. The victim Prachi P.W.6 has vividly stated in her statement as to what happened. She stated that during the night of the incident she was sleeping in a room on the sofa and the mother of the accused- appellant,Kunda P.W.4, was sleeping on the floor of the house. The other inmates were not in the house. They had gone to sleep somewhere. Whereas her uncle who was employed somewhere had gone on night duty. During the night of the incident, at about 3:00 a.m., the accused entered the house. He was drunk. P.W.4, his mother, got up. The accused forced her to go out of the house. She went out of the house due to his fear. Then accused raped the victim P.W.6. Substantially, this statement is corroborated by the mother of 4 the accused also who testified as P.W.4 that she was sleeping with her niece when her son  accused came back at home at 3.00 a.m. He forced her to go out of house, bolted the door from inside. When she entered back, after some time, he opened the door, she saw Prachi P.W.6 was weeping and in the morning she told her aunt that she was raped. Dr Patil P.W.2 found hymen intact but also found hymnal orifice admits tip of little finger. 5. Therefore, we find that the Trial Court was right in convicting the accused-appellant for the offence under Section 376 of the IPC but on the question of sentence we find that the Trial Court has been harsh on the appellant by sentencing him to imprisonment for life. The appellant is in jail for the last 11 years and therefore considering the facts of this case while up-holding the conviction under Section 376 of the IPC and also under section 342 of the IPC, we reduce the sentence to a sentence of ten years instead of imprisonment for life. Hence, we pass 5 the following order:- ORDER. 1. The conviction of the accused appellant for the offence under Sections 376 and 342 of the I.P.C.,is upheld, however, the sentence of imprisonment for life is reduced to a sentence of ten years. The fine amount with default stipulation is maintained. The accused-appellant has already served sentence beyond ten years, therefore, fine amount shall not be recovered from him and the period of sentence served beyond ten years shall be taken as sentence in lieu of fine. 2. Since the appellant has been in jail for more than ten years, therefore, we direct that he should be released forthwith, if not required in any other case. The appeal is allowed to the aforesaid extent. Appeal is disposed of accordingly. Sd/- (BILAL NAZKI,J) Sd/- (A.R.JOSHI,J) 6