1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPEAL NO.803 OF 2010 WITH CRIMINAL APPLICATION NO.1323 OF 2010 Deepak @ Joravar Ramkaran Yadav Age: 19 yrs., Res: Vishal Pande Nagar, Nallasopara, Tal: Vasai, Dist. Thane, At present lodged in Thane Central Jail ...Appellant. v/s. The State of Maharashtra (At the instance of Nallasopara Police Station, Dist. Thane.) ...Respondent. Mr. K.S.Patil ,adv. For the Appellant. Mr. Y.M.Nakhawa, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : AUGUST 25, 2011. ORAL JUDGMENT: 1 The appeal against conviction and sentence is already admitted and the accused, who is in jail since the date of arrest has also filed application for bail, which is on board today. In view of the nature of the offence , sentence awarded and the period of sentence already undergone, the learned counsel for the appellant made a prayer that instead of deciding the application for bail, the appeal itself may be finally disposed off. Therefore, the appeal itself is taken up for final hearing with consent of the learned counsel for the parties. 2 2 Appeal was preferred by the accused/appellant against the order dated 1.10.2010 passed by the learned Additional Sessions Judge Vasai, District: Thane. Sessions Case No.18 of 2008 whereby the accused was convicted for the offences punishable under Sections 376 r/w Section 511 of the I.P.C. and was sentenced to undergo imprisonment for five years and to pay fine of Rs.3,000/-. 3 According to the prosecution, on 4.11.2007 at about 3.00 p.m. mother of the prosecutrix had asked her to bring water from the hand pump and accordingly, the prosecutrix, who was a girl aged about 7 years at the relevant time, went towards the hand pump. At about 3.30 p.m. one Asmin, who was neighbour, went running to the mother of the prosecutrix and informed that the accused had done something wrong with her daughter and she was crying. Therefore, mother of the prosecutrix went to the bore well to see her. The prosecutrix informed her mother that the accused had caught hold of her hands, had taken her to the temple, had asked her to remove her nicker, had made her lie on the ground and had done some bad act. Mother examined private part of the girl and found it wet. On search, accused was not found at his house. During the following night, the mother of the prosecutrix informed her husband and thereafter the matter was reported to the police. 3 4 The learned counsel for the appellant pressed the appeal only on the point of sentence. According to him, the accused is a young boy, who was aged about 19 years at the time of the incident and it is the case of attempt to commit rape. He is in custody since 5.11.2007, when the offence was registered. He was never granted bail. He was convicted on 1.10.2010 and the period of custody till then was to be set off under Section 428 of the Cr.P.C. The learned counsel made a prayer that taking into consideration the facts and circumstances and the age of the accused, sentence may be reduced to the sentence as already undergone. The learned APP, however, objects to the same. According to him, in view of the provisions of Section 376(2)(f) r/w Section 511, minimum sentence of imprisonment, which may be awarded could be five years and, therefore, it needs no relaxation. 5 Offence of rape on a girl aged below 12 years is punishable under Section 376(2)(f) with R.I. for a term, which shall not be less than 10 years. Section 511 provides that in case of attempt to commit an offence, for which no specific sentence is provided, sentence for the attempt shall be half of the sentence , which may be awarded for the offence if committed. In view of this, minimum sentence for the attempt to commit rape would be five years imprisonment and fine. However, 4 proviso to Sub-section 376(2) shows that the Court may, for adequate and special reasons to be mentioned in the judgment, may impose sentence of imprisonment for a term of less than 10 years. In view of this, sentence for attempt to commit rape may also be awarded , which may be less than 5 years imprisonment provided there are sufficient and adequate reasons. In the present case, applicant was a young boy aged about 19 years only. There is nothing to show that there was any previous criminal antecedents of the boy. He is already in custody since 5.11.2007 and thus, he is actually in jail for the last about 3 years, 9 months and 20 days from the date of judgment of conviction. He is also entitled to certain remission on the sentence actually undergone. If his period of remission is counted, total period of sentence undergone itself may be more than four years. Record reveals that no injury was suffered by the girl. Accused attempted to penetrate but as soon as girl shouted, he ran away. Accused has already deposited fine amount before the trial Court. In view of the above circumstances, in my opinion, sentence of less than five years may be awarded to the accused. 6 Therefore, the Appeal is partly allowed only in respect of sentence. While conviction for the offence punishable under Section 376 r/w section 511 of the I.P.C. is maintained, the sentence of imprisonment 5 is hereby reduced to as already undergone since 5.11.2007. As he has already paid fine , he be set at liberty forthwith if not required in any other case. 7 As the appeal itself is finally disposed off, Criminal Application No.1323 of 2010 for bail does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)