IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T Ramesh Chand vs. State of Rajasthan Date of Judgment :::: 03.03.2009 S.B. Criminal Appeal No.1010 of 2002 under Section 374 (2) Cr.P.C. against the judgment dated 1.6.2002 passed by Shri Govind Ram Gupta, RHJS, Addl. Sessions Judge (Fast Track) No.1, Kota in Sessions Case No.1/2002. Present HON'BLE MR.JUSTICE BHANWAROO KHAN Mr. Sanjay Tyagi for the appellant Mrs. Rekha Madnani, P.P. By the Court: Ram Prasad Nagar PW.5 submitted a written complaint Ex.P.3 on 26.9.2001 at the police station Sangod regarding the occurrence alleged to have taken place on 25.9.2001. In the written report it was mentioned by the complainant that today i.e. on 26.9.2001 at about 7.00 P.M. when he returned to his house he was informed by his wife Shanti that on 25.9.2001 at about 5.00 P.M. when his daughter (prosecutrix) went to ease herself then Ramesh son of Prabhu Lal Meghwal committed rape on her. Hearing cries of his daughter his son Jugal Kishore arrived at the place of the occurrence but the accused fled away. On the basis of the written complaint the police registered a case under Section 376 IPC vide FIR No.324/2001. The said report after investigation culminated into challan against the appellant under Section 376 IPC. On the basis of the material and evidence collected by the investigating agency, learned trial court framed charge against the appellant under Section 376 IPC to which he denied, pleaded not guilty and claimed trial. To prove its case the prosecution examined as many as 14 witnesses and also got exhibited some documents. In his statement under Section 313 Cr.P.C. the appellant denied the allegations but no defence was led. The learned trial court after recording evidence of the prosecution and hearing both the side and also after discussing the entire evidence and material available on record by the impugned judgment dated 1.6.2002 has convicted the appellant for offence under Section 376 IPC and has sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1000/-. In default of payment of fine to further undergo simple imprisonment for six months. Being aggrieved of the impugned judgment of conviction and order of sentence the appellant has preferred the instant appeal before this Court. Heard learned counsel for the appellant, learned P.P. and perused the material and evidence available on the record of the case. Learned counsel for the appellant without assailing conviction of the appellant under Section 376 IPC simply submitted that the appellant has already suffered the minimum sentence provided for the offence as he is in custody since 4.10.2001 and has already undergone imprisonment for seven years and 5 months. The appellant at the time of commission of offence was of the age of 20 years and has suffered a lot. Therefore, counsel requested that the appellant be set at liberty for the period already undergone by him. Learned P.P. has opposed the prayer and has contended that the Court should respect the legislative mandate in the matter of awarding the sentence in the cases of offence against the women and that crimes of violence upon women need to be severely dealt with. In support thereof, learned P.P. has placed reliance on the judgment of the Supreme Court in the matter of State of Rajasthan Vs. Madan Singh {Appeal (Crl.) 234/2008, decided on 1.2.2008}. It is pertinent to mention here that in this case the victim of the rape was a girl under 12 years of age and the conviction of accused was under Section 376(2)(f) IPC. After hearing learned counsel for the parties, I have gone through the material and evidence available on record, the relevant provisions of law as well as the judgment cited at the Bar. A perusal of the record reveals that at the time of commission of the offence, the appellant was of 20 years of age and he has suffered the minimum sentence as provided for the offence. The appellant was arrested on 4.10.2001 and has been in judicial custody till date. From the medical examination report (Ex.P.11) of the prosecutrix as well as her statement recorded under Section 161 Cr.P.C. it is clear that at the time of commission of the offence the prosecutrix was 16 years of age. The Radiological age of the prosecutrix, as per the certificate (Ex.P.12) was about 16-17 years. Therefore, I am of the opinion that the offence committed by the appellant is punishable under Section 376(1) IPC which is punishable with imprisonment not less than seven years but may be for life or for a term which may extend to ten years provided that the court may for adequate and special reasons to be mentioned in the judgment may impose a sentence of imprisonment for a term of less than seven years. The sentence provided for offence under Section 376(1) IPC is not less than seven years. In the instant case, the accused has already suffered sentence for more than seven years. The learned trial court without going through the age of the prosecutrix and also the age of the appellant has sentenced him for ten years rigorous imprisonment. Therefore, having regard to the young age of the appellant and the fact that the appellant has already suffered the minimum sentence provided by the legislature for the offence, ends of the justice would be met if the sentence already undergone by the appellant be taken as sufficient sentence for the offence committed by him. To this extent the appeal deserves to be allowed. For the discussions hereinabove, the appeal filed by the appellant is allowed in part. While maintaining conviction of the appellant under Section 376 IPC, the sentence of imprisonment (ten years' rigorous imprisonment) imposed by the trial court is reduced to the period already undergone by him. However, the amount of fine so imposed by the trial court is, maintained. If the appellant has deposited the amount of fine and is not required in any other case, he shall be released forthwith. In case the fine amount is not deposited by the appellant he shall undergo sentence of six months simple imprisonment so imposed by the trial court in default of payment of fine. (Bhanwaroo Khan),J. bairwa