KHIRESWAR SAIKIA Vs. STATE OF ASSAM

JUDGEMENT

(1.) The two petitioners were within their teens when they committed rape on Khireswari. This had happened more than 10 years before. The learned Trial Court on being satisfied about the involvement of the two petitioners in the crime found them guilty under Section 376/34 of the Indian Penal Code and sentenced each of them to imprisonment for 21/2 years and to pay a fine of Rs. 300/- each, in default to suffer imprisonment for another six months each. On appeal being preferred the same has come to be dismissed at the hand of the learned Sessions Judge, Lakhimpur. Hence this revision.

(2.) A perusal of the two judgments show that the learned courts below had applied their minds to be entire materials on record and found the petitioners guilty under the aforesaid section of law. Sitting in revision it is not open to this court to re-appreciate the evidence as the findings arrived at by the courts below cannot be said to be in any way unreasonable or untenable. I have therefore heard Shri Choudhury, appearing for the petitioners, as, well as Shri Goswami appearing as Additional Public Prosecutor on the question of sentence.

(3.) Before the question of sentence is gone into it may be pointed out that I heard the learned Counsel of both the sides on the question of giving benefit to the petitioners of Section 360 of the Criminal Procedure Code or under the provisions of the Probation of Offenders Act. Section 376 of the Indian Penal Code being punishable upto imprisonment for life (this was also the position when the offence was committed) the benefit of the aforesaid sections of law cannot be made available to the two petitioners. This being the position it has to be decided as to what should be the sentence to be awarded in the case of the present nature. Shri Choudhury has invited my attention to two decisions of the apex Court and one decision of the Rajasthan High Court. In Phul Singh v. State of Haryana where the accused was aged 22 years and not a habitual offender the sentence under Section 376 was reduced from four years to two years. In Kakoo v. State of Himachal Pradesh the sentence of four years awarded to the appellant who was hardly 13 years old at the time of the occurrence and committed rape on a child of 2 years was reduced to R.I. for one year with a fine of Rs. 2,000/-. The Rajasthan case is that of Sheoji Ram v. State of Rajasthan wherein the offender aged about 15 years committing rape on a girl aged about 5 years was sentenced to two years simple imprisonment.