1. This is a jail appeal preferred by the appellant-accused No. 1 (hereinafter referred to as the 'appellant') challenging the judgment and order dated 22-1-1982 passed by the learned Additional Sessions Judge, Greater Bombay, in Sessions Case No. 438 of 1980 convicting and sentencing him for an offence of rape punishable under section 376 of the Indian Penal Code (hereinafter referred to as the 'Penal Code') to rigorous imprisonment for two years and to pay a fine of Rs. 1000/-, in default to undergo further rigorous imprisonment for 3 1/2 years.
2. The appellant was charged along with three others for committing various offences. The allegations were that he and one more, on or about 30-5-1980 at about 11.00 a.m. at B.D.D. Chawl No. 8, N. M. Joshi Marg, Bombay, kidnapped Kum. Alka Vasudeo Rana, a minor girl under 18 years of age, from lawful guardianship of her mother Smt. Pramila Vasudeo Rana, an offence punishable under Section 363 r/w. Section 34 of the Penal Code, and two other accused persons were charged for aiding and abetting the commission of the said offence and further that in the course of the same transaction they kidnapped Kum. Alka with intent that she may be compelled to marry the appellant against her will, an offence punishable under section 366 r/w Section 34 of the Penal Code. Further allegations against the appellant were that in the course of the same transaction, between 3-6-1980 and 11-6-1980 he wrongfully concealed or confined Kum. Alka at room No. 15, Mhaske Chawl No. 2, Bhatwadi, Ghatkopar, knowing that she had been kidnapped, an offence punishable under Section 368 of the Penal Code, and also that in the course of the same transaction he committed rape on the said Kum. Alka, an offence punishable under section 376 of the Penal Code. And lastly the appellant along with the three other accused persons stood charged that in the course of the same transaction between 30-5-1980 to 11-6-1980 having actual control over the said Kum. Alka under the age of 18 years caused or encouraged the seduction and the acts of sexual intercourse with her by the appellant and thereby committed an offence punishable under section 56 of the Bombay Children Act, 1948 r/w Section 109 of the Penal Code.
3. On these allegations, after a full length trial, the appellant stood convicted and sentenced as stated hereinabove. The other three accused persons were acquitted of all the charges framed against them. Feeling aggrieved, the appellant preferred this appeal from Jail.
4. On behalf of the appellant I heard Mrs. Pingulkar and she submitted that she does not want to challenge the conviction of the appellant but would only canvass for reduction in the sentence. Mrs. Pingulkar took me through the evidence of the prosecutrix Alka Vasudeo Rana and submitted that in the facts and circumstances of this case the offence of rape which is proved against the appellant is only a technical offence inasmuch as the prosecutrix seems to have been a willing party all throughout. Therefore, Mrs. Pingulkar, urged that the sentence imposed on the appellant be suitably reduced. Mrs. Keluskar learned Public Prosecutor appearing on behalf of the State, fairly conceded and submitted that this is certainly not a case where a harsh sentence as imposed on the appellant is called for.
5. On going through the evidence of prosecutrix Alka and after perusal of the impugned judgment and order passed by the learned trial Judge I am convinced that this is not one of those cruel cases of rape where an accused person should be deterrentdealt with. Normally, a person indicted of an offence of rape does not deserve any sympathy and I for one would be inclined to deal with him with a heavy hand unless there are extenuating circumstances. But the record in this case clearly shows that Alka who was aged about 15-16 at the relevant time had left the house of her mother and had joined the acquitted accused persons. She had then travelled by a taxi up to Parel Railway Station from where she went to the house of one of the acquitted accused persons at Kurla. They all travelled by a local train. She stayed there for three days. Thereafter one of the acquitted accused persons and his wife went there and with others took her to the house of this appellant at Ghatkopar. The appellant stayed there with his mother, brother and one of the acquitted accused persons. Alka and the appellant slept in the hut and all others slept outside. And the appellant took sexual intercourse with her on four nights. It is true that she deposed that when the appellant had desired to have sexual intercourse with her she had requested him not to do so on the ground that she was too young but even then the appellant did it against her will and on all the four nights. She may say that she was not willing for sexual act with the appellant but the facts and circumstances as above do indicate that she was a willing party all throughout. In fact, there was a proposal for her marriage with the appellant but her mother had rejected the offer on the ground that she was too young. It is only because she was below the age of sixteen years that under clause fifthly of Section 375 of the Penal Code the appellant can be said to have committed the offence of rape because sexual intercourse with a woman under the age of sixteen years with or without her consent amounts to rape. It is under these facts and circumstances that I am inclined to show some leniency to the appellant.
6. Any way, the appellant having been convicted on January 22, 1982 and sent to jail and the fact that he has been in custody from that day till today being January 23, 1984, he has already undergone sentence of two years. Therefore, nothing can be now done for reducing the substantive sentence. However, the amount of fine imposed upon him being Rs. 1,000/- can certainly be reduced. I feel that the ends of justice will be served if the sentence of fine is reduced to a fine of Rs. 100/- and in default of payment of fine of Rs. 100/- further rigorous imprisonment for 10 days. It appears that the appellant was in jail for 10 days as an under-trial prisoner. He was rightly given benefit of set off by the learned trial Judge for those 10 days under Section 428 of the Criminal P.C. Hence even if he does not pay fine of Rs. 100/- he shall be entitled to be released forthwith as he gets remission of 10 days from the substantive sentence under section 428 of the Criminal P.C.
7. Before parting with the judgment I have to painfully point out certain disturbing features of this case. Thus the beginning of judgment as recorded by the learned trial Judge is indicative as if it was dictated on 21-1-1981. When I saw this date I felt flabbergasted as to how is it that although three years were already over and yet the appellant was in jail in a case where he was sentenced for a term of two years. I called for the original record and noticed that although it is noted in the beginning of the judgment that it was dictated on 21-1-1981 it was not so because the concluding portion of the judgment revealed that the judgment was in fact dictated on 22-1-1982. Since this was all a confusion I went through the original roznamas. It was noticed that after arguments were heard the matter was adjourned to 18-1-1982 on which day it was adjourned to 21-1-1982 and then it was adjourned to 22-1-1982. The impugned judgment and order were actually recorded on 22-1-1982. Had the learned trial Judge been bit careful all this confusion would have been avoided. Then it is not understood as to how and under what circumstances the learned trial Judge inflicted a sentence of rigorous imprisonment for 3 1/2, years if the appellant was to make default in payment of fine of Rs. 1000/-. It is surprising that when the substantive sentence itself was only for a period of 2 years the learned trial Judge inflicted a sentence of 3 1/2 years in default of payment of fine. He could have well advised himself by the provisions of Section 65 of the Penal Code which reads as under :
'65. Limit to imprisonment for nonpayment of fine, when imprisonment I and fine awardable. - The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine.'
Now, the offence of rape is punishable under section 376 of the Penal Code with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine ............ The learned trial Judge had not thought it necessary to sentence the appellant with imprisonment for life and so far so good so long as this case is concerned. He proceeded to punish the appellant under the latter part of the punishment provisions of Section 376 of the Penal Code, i.e., the imprisonment of either description for a term which may extend to ten years and also to fine which is the maximum punishment for the offence alternatively. When that was so, the punishment which the learned trial Judge could have inflicted on the appellant in default of payment of fine should have been one-fourth of the term of the imprisonment of 10 years which would come to 2 1/2 years and not 3 1/2 years. But let us assume that the learned trial Judge must have felt that the maximum sentence for an offence of rape is imprisonment for life and further he must have thought that life imprisonment means sentence for 14 years and one-fourth of it would be 3 1/2 years and that is how he must have imposed a sentence of 3 1/2 years on the appellant in default of payment of fine. Even then the learned trial Judge committed an error because life imprisonment does not mean sentence of 14 years. It means imprisonment for the rest of the life of the convict. 3 1/2 years cannot be the one-fourth of the remaining period of life of any particular convict. And who knows the span of anybody's life Again, a convict sentenced to life imprisonment although is bound to serve the remainder of his life in prison, he can be released earlier if the appropriate authority remits or commutes his terms of sentence.
8. In the premises of what I have stated above, I confirm the order of conviction passed by the learned trial Judge on the appellant for an offence of rape punishable under section 376 of the Penal Code and also the substantive sentence imposed on him to undergo R.I. for two years. However, the sentence of payment of fine of Rs. 1000/- in default to further undergo R.I. for 3 1/2 years is set aside and instead he is sentenced to pay a fine of Rs. 100/-, in default to further undergo R.I. for 10 days. The appellant is granted the benefits of set off for a period of 10 days in his substantive sentence under section 423 of the Criminal P.C. Hence even if he does not pay a fine of Rs. 100/- he shall be set at liberty forthwith unless required in some other case. Appeal is thus partly allowed.
9. Appeal partly allowed.