MP 1 APEAL1114_07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1114 OF 2007 Mr. Siddharaya Guranna Loni Age. 25 years, Occ: Agriculturist, R/at. Village Lavangi, Tal. South Solapur, District: Solapur (presently detained at Central Jail, Solapur) ... Appellant Versus The State of Maharashtra Through P.S.O., P.S. Mandrup, South Solapur, District: Solapur ... Respondent Mr. Sudhir Halli, Advocate for the Appellant. Smt. G. P. Mulekar, APP for the Respondent State. CORAM : J. H. BHATIA, J. DATE : 28TH SEPTEMBER 2011 ORAL JUDGMENT : The accused has preferred this appeal challenging the order passed by the Ad-hoc Sessions Sessions Judge, Solapur in Sessions Case No. 117 of 2006 whereby the appellant was convicted for the offences punishable under Sections 376, 313 and 506 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years, five years and one year respectively with fine. 2. The prosecution case in brief is that the prosecutrix was the distant cousin of the accused-appellant. She used to work in agricultural field. On one day, the accused dragged her towards the sugarcane crop and forcibly committed sexual intercourse with her. He threatened her not to disclose this fact to anybody. After the incident, the prosecutrix returned to her house but did not disclose this fact to anybody. About a month or two after that, again she was subjected to the sexual intercourse against her consent by the accused. Still she did not disclose this fact to anybody. When she missed her menstruation cycle, it was found that MP 2 APEAL1114_07 she was already pregnant for two months. After that, she disclosed the above facts to her mother and other relatives, and then, a report of the incident was lodged on 09.03.2006 at the police station. In the report, she also alleged that she was made to abort in a private hospital by the accused. After the investigation, a charge-sheet was filed and case was committed to Court of Sessions. After hearing the evidence led by the prosecution, the Trial Court convicted and sentenced the accused as stated above. 3. The learned Counsel for the accused-appellant does not want to press the appeal on merits of the case. However, in view of certain facts of the case, he prays for leniency in respect of the sentence. Learned APP pointed out that the accused was in custody since 13.03.2006 till the end of the trial, and since 06.10.2007 when he was convicted, he is continuously undergoing the sentence. As per the report dated 27.09.2011 from the Superintendent, Yerwada Central Prison, Pune, the accused-appellant has actually undergone sentence of six years, six months and twenty-seven days excluding the period of parole and including the period of remission granted as per the rules. Fine amount is already deposited. The learned Counsel prayed that the appellant may be sentenced to imprisonment as already undergone. 4. The prosecution evidence reveals that there was no record about the date of birth of the prosecutrix. She was admitted in Zilla Parishad School, Patil Nagar on 15.07.1999 in III Standard. The date of birth was recorded as 01.06.1991. P.W.13 Mahadeo Malkari Kamale, the head-master of the said school admitted that in the absence of any documentary evidence about the date of birth of the student, 1st June is recorded as the date of birth, presuming that the child is six years old, which is a minimum required age for the purpose of admission in the I Standard. As she was admitted in that school in the year 1999 in the III Standard, she must have been admitted in the I Standard in the year 1997, and on the basis of that, the date of her birth appears to have been recorded as 01.06.1991. As per the F.I.R., she was subjected to sexual intercourse by the MP 3 APEAL1114_07 accused about four months prior to lodging of the report. The report was lodged on 09.03.2006, and therefore, the first incident must have occurred sometimes by the end of November or December, 2005. As per the date of birth recorded in the school, she was aged about fourteen and half years. However, the medical evidence shows that as per the ossification test, her age could be between fourteen to seventeen years with margin of error of two years. In view of this, possibility of her being aged more than sixteen years at the time of incident cannot be completely ruled out. 5. In spite of the fact that she was subjected to sexual intercourse on several occasions, she did not disclose the facts to anybody for a long time. She disclosed this fact only after it was revealed that she was already pregnant for two months. The accused was her distant cousin. The learned Counsel for the accused contended that the possibility of consent cannot be ruled out. Anyhow, as the appeal is not pressed on the merits of the case, it is not necessary to enter into the question whether she was or was not a willing and consenting party. The accused was also a young boy aged about twenty four years at the time of the incident. It is true that as per the provisions of Section 376, the minimum sentence of imprisonment shall be seven years, however, in special circumstances, less than the prescribed minimum sentence may be awarded. In my opinion, taking into consideration the facts and circumstances as noted above, it will be in the interests of justice to reduce the sentence as already undergone. 5. Therefore, the appeal is partly allowed. While the conviction of the accused for all the charges is maintained, the sentence is reduced to the period as already undergone and he be released forthwith, if not required in any other case. (J. H. BHATIA, J)