DAMO Vs. STATE

JUDGEMENT

(1.) The appellant has been convicted for offence under section 376 Penal Code by Addl. Sessions Judge, Gangapur-City vide his judgment, dated Oct. 13, 1984 and is sentenced to 10 years rigorous imprisonment and a fine of Rs. 500.00 and in default of payment of fine he is further to undergo six months R. I.

(2.) The petitioner has been convicted for commission of rape on one Mst. Kamla alleged to be a girl of about 12 or 13 years of age on Dec. 16, 1983 in jungle where she had gone to graze her cattle. The accused-appellant, who was a young boy, caught hold of her and committed rape against her will. I am not giving the details of the prosecution story and am also refraining from discussing the evidence as the learned counsel has not challenged the conviction of the accused-appellant and in my opinion rightly so because Mst. Kamla, prosecutrix's statement stands corroborated by the medical evidence and the report of Forensic Science Laboratory. The only point canvassed before me is about reduction of sentence. In normal course cases of rape have to be strictly dealt with and heavy punishment should be imposed, but still at times circumstances are such where the court has to use its discretion in awarding a shorter sentence. In the instant case the trial court, as mentioned above, sentenced to 10 years R. I. but in my opinion it is excessive in the circumstance of the case, the accused-appellant has given his age to be within 16 to 17 years while the court has given assessment as 21 years. Be that as it may the accused was decidedly below 20 years on the date of the occurrence. The incident had taken place at a place where the accused and the prosecutrix has gone for grazing the cattle. The prosecutrix's age was about 12 to 13 years and the accused, in perversion, sought an opportunity of pouncing upon her forgetting that he has been recently married. His sexual instinct could not be controlled by him. He not only lend himself in trouble and caused harm to the prosecutrix not also brought miseries to his newly married young wife, who for no fault on her part is suffering the pangs of separation for about 2 years. This case has arisen before the law was amended and I am informed that subsequent to the filing of this case the prosecutrix has also got married somewhere else. The learned counsel for the petitioner has relied on Samarias Vs. State, 1977 RCC 79 wherein four years sentence was maintained. In that case the prosecutrix was 7 years old and the accused was 36 to 40 years. That case also arose from the court wherefrom this case has arisen. Yet in another case Babulal Vs. State; S. B. Criminal Appeal No. 476/84 decided on 5.8.86 almost in similar circumstances I reduced the sentence of imprisonment in a case where rape was committed with a minor girl.

(3.) Consequently I allow this appeal in part, maintain the conviction of the accused-appellant and reduce the substantive sentence of imprisonment from 10 years to 4 years and maintain the fine. The accused is in jail, an amended warrant shall be sent to the jail authorities by concerned Court. Appeal partly allowed.