NARAYAN IRANNA POTKANTHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE Assistant Sessions Judge, Nanded, had convicted the present revision-petitioner of an offence punishable under S. 376 of the Indian Penal Code, in Sessions Case No. 37/1990 and had sentenced him to suffer R. I. for five years and to pay a fine of Rs. 1,000/-, in default, to suffer further R. I. for three months. An Appeal was carried in Criminal Appeal No. 46/90 to the Sessions Judge and the learned II Additional Sessions Judge, Nanded dismissed that appeal on 16-1-1993. The revision-petitioner was, then, taken in custody for undergoing the sentence. It was through Jail that he had sent a letter-cum-appeal to this Court for considering the matter because, according to him, the decision of the case was not correct according to the true facts and the Courts below had not given him a proper chance to submit his evidence. It was also contended that the decision was given without hearing his side and that the sentence was awarded merely on suspicion.

(2.) IN view of the gravity of the offence, Shri. D. R. Pole, a senior advocate, was requested to appear for the present revision-petitioner and to argue the matter. In the course of his arguments, Mr. Pole, invited our attention to the points urged on behalf of the petitioner in the Courts below, namely, that the first information report in question was a delayed FIR and that neither the clothes of the petitioner nor the clothes of the victim girl were found to bear stains of semen. It was also pointed out that the learned Assistant Judge had committed, while recording the evidence, an error in omitting to record his satisfaction that the victim, who was a child witness was aware or was made aware of her duty to tell the truth though no oath could be administered to her on account of the fact that she was unable to understand the sanctity of oath. It was, therefore, submitted that these points deserved consideration at the hands of this Court while deciding the revision application. It was also submitted that the evidence adduced by the prosecution was not necessarily worthy of safe-reliance though, it was fairly conceded that if believed, the same could warrant a conviction of the revision-petitioner for the offence in question. Mr. Pole did not press the point that in view of the S. 6 of the Probation of Offenders Act, the petitioner deserved to be considered for under that Act, because, he rightly pointed out that under S. 376 (2) (f) of the Indian Penal Code, the offence would be punishable with rigorous imprisonment for a term which was not less than 10 years, but which might extend to imprisonment for life. It was, however, submitted that looking to the young age of the petitioner, it may be considered, whether he deserved any leniency in the matter of quantum of sentence.

(3.) THE learned A. P. P. supported the decision of the Court below.