1 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEA NO. 972 OF 2004 Kailash Shankar Harne .. Applicant Vs. The Senor Inspector of Police and another .. Respondents Shri Arfan Sait, Amicus Curie for the Applicant Shri J. P. Kharge, APP for the Respondent-State CORAM :SMT. MRIDULA BHATKAR, J. DATE : 31st August, 2009. ORAL ORDER 1. Heard learned Counsel for the parties. 2. The Learned Additional Sessions Judge, Bombay has convicted the accused for the offence of rape punishable u/s 376 of the Indian Penal Code. By its order and judgement dated 20th July, 2004. The accused is sentenced to undergo rigorous imprisonment (RI) for a period of 10 years and to pay fine of Rs.5000/-, in default of which he has to undergo further RI of two years. The amount of fine was order to be paid to the victim as compensation. Being aggrieved with the said judgment and order, this appeal is filed by the appellant accused, who is in the prison. 2 3. Learned Counsel appearing for the appellant accused has submitted that FIR was not lodged immediately but it was lodged after 12 hours. He has further submitted that learned Judge has erred in relying and accepting the hearsay evidence of the father to whom the prosecutrix has not told about the incident. It is further argued that the medical examination of the girl was also conducted nearly after 15 hours. He has further submitted that in the cross of the girl-prosecutrix has admitted that she was asked by the Police and her father to depose and accordingly she has given the evidence. 4. Learned APP appearing for the State has submitted that the conviction is to be maintained as the prosecutrix was mentally retarded girl and the judgment and order passed by the Ld. Sessions Judge is just and legal. 5. The Prosecutrix in the present case is a mentally retarded 18 to 19 years old girl. The family of the accused and the Prosecutrix knew each other. The Prosecutrix has deposed about the incident of rape in her examination in chief and her admission that she was asked to depose by her father and so she has stated these facts cannot be labelled as false and tutted as the prosecutrix is not in a position to grasp the implied meaning of the questions in the cross examination. Further, the objection of the hearsay evidence is also not sustainable as the evidence of the mother of the 3 prosecutrix corroborates the ocular evidence of the prosecutrix. The ld. Judge has taken into account the oral as well as medical evidence and has dealt with it in a right perspective. There is no good ground to interfere with the findings of the conviction of the learned Sessions Judge. 6. On the point of quantum of punishment, the learned counsel appearing for the accused submits that the incident has taken place on 21st April, 2001. Thereafter the accused was on bail and then he was taken in the custody and is in jail since 20th July, 2004 i.e. from the date of the conviction. He has submitted that the till now accused has undergone sentence of five years and four months. He has submitted that the accused did not have any criminal record and he is having a family consisting of wife and a daughter. On these ground he prays that the sentence be reduced. 7. Considering the facts of the case and the family responsibility of the accused and also the fact that the does not have any other criminal antecedents, the sentence of 10 years RI is reduced to 7 years, so also the sentence in default to pay fine of Rs. 5000/- is reduced to three months from two years. 8. The period of remission is to be calculated as per the rule and the prison manual. 4 9. Appeal is partly allowed in the above terms. 10. The accused is in jail and he is represented by amicus curie. So the Registry and Prosecutor s office both are directed to send copy of ’ the operative part of this Judgement to the Superintendent, Nashik Road Central Prison. (MRIDULA BHATKAR, J.)