BHIMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant, in this appeal, has been convicted for commission of offence under Section 376, IPC read with Section 511, IPC and sentenced to suffer rigorous imprisonment for four years and pay a fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for 3 months by the Sessions Judge, Bhilwara vide judgment and order dated 16.02.1988 passed in Session Case No. 126/1987.

(2.) Challenging the validity of the aforesaid judgment, learned Counsel for the appellant vehemently argued that in this case the FIR was filed on 14.07.1987 at 1.30 PM by Raghunath Gurjar at Police Station Banera (Distt. Bhilwara) alleging that the appellant attempted to commit rape upon her daughter Ghisi. It is the case that as per the document filed by complainant Raghunath, the age of his daughter was at the relevant time 13 years. The alleged occurrence as per the FIR was of 'poornima' dated 11.07.1987. It is stated by learned Counsel for the appellant that the trial Court as per evidence found the age of the girl to be 17 years and age of the appellant to be between 19-20 years and allegation against the appellant is only that he attempted to commit rape. He contended that the learned Sessions Judge called for the report of the District Probation Officer with regard to the conduct and character of the appellant. In the said report, it is submitted, the District Probation Officer recommended that it is first-offence of the appellant and, therefore, he can be given benefit of probation and a lenient view may be taken towards the appellant but, despite that, the trial Judge convicted the appellant and sentenced him as aforenoted.

(3.) In this case, the occurrence is said to have taken place on 11.07.1987 and the FIR was filed after three days, on 14.07.1987 and, as per the FIR, the incident was seen by an eye-witness Mst. Ramu, PW 4, wife of the brother of the prosecutrix. Learned Counsel for the appellant argued that there is no explanation for this delay in filing-the FIR though Mst. Ramu, PW 4 who is close relative of the prosecutrix, claims to have witnessed the incident. Likewise, it is also contended that the trial court has not considered the recommendation of the District Probation Officer in right perspective. He has also contended that at the time of the incident both the prosecutrix and the appellant were teenagers and the appeal is pending before this Court since 1988. He submitted that the appellant is enlarged on bail and he has already remained behind bars from 15.7.1987 to 14.9.1987 and, thereafter, again sent to judicial custody on 14.04.1988 at the time of conviction. His bail application for suspension of sentence was allowed by this Court on 23.05.1988; meaning thereby, the appellant has already remained behind bars for more than three months. Learned Counsel for the appellant argued that in identical situation this Court, in the case of Milkha Singh v. State of Rajasthan, reduced the sentence from 4 years to the sentence already undergone (3 months and 22 days) for similar offence. Learned Counsel for the appellant urged that in the cited case the appeal was heard and decided within 12 years from the date of conviction whereas in the instant case the FIR was registered on 14.07.1987 and the case was decided on 16.02.1988, the appeal was filed before this Court in 1988 and we are running in the year 2006. In the cited case, he submitted, this Court observed that after 12 years of commission of the offence whether the accused should be sent to jail at this distance of time and, therefore, while maintaining the conviction, the sentence was reduced to the one already undergone.