J “‘1 h h?K A? .,<-H‘4_A,A HIGH COURT OF CWTISGARH : AT BilASPURo Criminal Appeal No.2626 of 1998. Fran Lal, s/o Mitthu Mochi .. . Appellant VS 9‘, The State OE Madhya Prades . . . Respondent e ****** Judgment By.Hon.Shri R,S.Garg,J. : The appellant being aggrieved by te judgment dated 4.9.98. passed in Sessicns Trial No°9/98, by the learned AddIQSessions Judge, Rajanandgaon, convicting the appellant under Section 376 readwith Section 511 IoP ac “sentencing him to undergo R.I. far 5 years and pay fine of le°1,000/-. and in default of payment 0f fine to undergo further s.I. for 3 months, has filed this appeal o 2). The presecution case in brief is that on 7.5.97, when the Presecutrix Rambai (PVoWA) was plucking the Tendu leaves, the accused went to her and offered her for sex. The Prosecutrix started abusing the accused on which the accused ‘W?ed her mouth and thereafter, fell her on the ground. ‘ Before the accused could do anything, the prosecutrix kicked him and the accused ran away from the spot. The prosecutrix Rambai went to the village and in£ormed¥about i i/ the incident to h h -2- the villagers, neighbours and to her husband after his arrival. The first information report was immediately lodged and thereafter, the police made investigations. After preparing the spot memo, the statements of the witnesses were recorded and the accused was taken into custody. 0n completion of the investigation, the challan was filed. As the accused denied the commission of o££ence, he was put to trial. The learned trial court after ? hearing the parties. convicted and sentenced the accusedas referred to aboveo 3). Smt. Gupta, learned counsel for the appellant submits that the solitary teetimony of ' P.W.1 Rambai is not reliable because from the attending circumstances, it would appear that she was telling lies and trying to fix and frame the accused. she also submits that the sentence awarded by the Court below su£fers with vies of excessiveness and the sentence deserves to be reduced to the period already undergone. 4). On the other hand,learned counsel for the state has supported the judgment and iiindings. 5). P.W.1 Rambai has clearly stated in her> statement that when she had gone to jungle for plucking tendu leaves, the accused approachedher and offered her for sex and on her refusal, fell her on the ground and tried to commit rape. In her cross-examination, nothing substantial has been brought which could persuade, this Court to _ 4 W ,3... dis-credit her testimony. On the aspect that. she had immediately narrated the incident to the villagers , she is supporteé by P.w.7 Rambati, P.w.6 Devkibai. ?°W.2 Ankulram and others . Her husband Radhe la l- P.W.3 has also supported her on the material aspectso 6). After going through the statements of Prosexutrix Rambai (P.W.1) and others, I am unable to hold that the Court below erred in recording the findings against the appellant. On the merits, I am unable to hold in favour of the appellant. 7)° Learned court below on the question o£ sentence,considered the question of award of sentences in para graphs 3 8 , 3 9 ,4 0 and 4 1 . Though , it obs erved that the minimum awardable sentence under Section 376 I.P.C. is 7 years, but as the sentence upto 10 years could be awarded,therefore, for an attempt sentence o£ R.l. for 5 years could be awarded to the appellant. 1n my opinion, the learned Court below , , should have been given some special reasons. when the law provides for award of minimum sentence, then, the Court is obliged to award minimum sentence and it also has jurisdiction to award the sentence over and above the minimum sentence, but for exercising such powers, the Court must assign some good reasons. In the present case, the Court has simply said that as the sentence upto 10 years R.I. can be awarded, award of sentence of 5 years RJ. to the accused wouldbe justified. In my opinion; the said approachjsxnot’propera __; x q;\\' _ 4 - I prgapose to interfere on the question of award of sentence. The substantive jail sentence is reduced to 3V2 years which would be half of the minimum awardable sentence £or an offence under Section 376 I.P¢C. Fine amount and the default sentences are maintained. a 8)o The appeal on the question o£ sentence is allowed. Sdl- \ R.S. Garg Judge 4--2001o . “{‘subbu/ a ”we ‘ CW“ 4