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2004 DIGILAW 409 (GAU)

Bad Uddin @ Badu Uddin v. State of Assam

2004-06-21

AMITAVA ROY

body2004
JUDGMENT Amitava Roy, J. 1. This appeal has been directed against the judgment and order dated 1.2.03 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 97/2002 (G.R. Case No. 567/2000) convicting the Appellant Under Section 376 IPC and sentencing him to suffer R.1. for 10 years and also to pay an amount of Rs. 5000/- as compensation to the victim in default to undergo R.1 for another one year. 2. The prayer for bail was rejected by this Court and the Appellant continues to serve the sentence. 3. I have heard Mr. A.S. Choudhury, learned Counsel for the Appellant and Mr. D. Goswami, learned P.P. Assam. 4. Briefly stated the facts are than on 9.11.2000 one Ali Akbor lodged an FIR with the Officer-in-charge, Lahorighat P.S. Complaining that on 8.11.2000 at about 3.30 P.M. the Appellant had taken away his minor daughter Rejia Begum, aged about 7 years and forcibly committed rape on her. On the FIR, the Police registered Laharighat P.S. Case No. 90/2000 and after the investigation, a charge sheet under Section 376 IPC was laid against the Appellant. The case was committed to the Court of Sessions. The Appellant denied the charge under the above provision of law. 5. The prosecution examined 7 witnesses including the victim girl-P.W. 1, and the P.W. 6 Dr. Anup Kumar Barua. On the completion of the evidence of the prosecution witnesses, the statement of the Appellant was recorded Under Section 313 Code of Criminal Procedure. By the impugned judgment and order the Appellant was convicted and sentenced as above. 6. The only submission made by Mr. Choudhury, learned Counsel for the Appellant hinges on the question of sentence. According to him, the Appellant at the time of commission of the offence was aged 16 years, 10 months and, therefore, the sentence imposed on him does not have the sanction of law. He therefore, contends that the impugned judgment and order is liable to be interfered with. The sustain his argument the learned Counsel has placed reliance on a decision of the Allahabad High Court in Bire alias Bir Bahadur Singh, Revisionist v. State of U.P. Opposite Party 2000 CRI L.J.87. He therefore, contends that the impugned judgment and order is liable to be interfered with. The sustain his argument the learned Counsel has placed reliance on a decision of the Allahabad High Court in Bire alias Bir Bahadur Singh, Revisionist v. State of U.P. Opposite Party 2000 CRI L.J.87. He further argued that keeping in view the provisions of the Probation of Offenders Act, 1958 (hereinafter referred to as the Act) and Section 360 of the Code of Criminal Procedure the sentence ought not to have been inflicted upon the Appellant in view of the spotless antecedents of the Petitioner. In the alternative Mr. Choudhury argued that the appellant has already served the sentence for almost 2 years and therefore, the rest of the sentence be waived. 7. Mr. Goswami on the other hand, submitted that the manner in which the offence has been committed does not call for any leniency. According to the learned Counsel, on a consideration of the materials on record, the court below has rightly convicted and sentenced the accused. He further submitted that the necessary pre-conditions for exercise of power under Section 360 Code of Criminal Procedure being absent in the present case, the Appellant is not entitled to any benefit thereunder. 8. I have perused the judgment and order under scrutiny. The learned trial court has arrived at the findings of the appellant's guilt on an exhaustive analysis of the evidence on record. The conviction of the Appellant, therefore, cannot be faulted with. 9. The only indication about the minority of the Appellant can be gathered from the particulars furnished by him at the time of his examination Under Section 313 Code of Criminal Procedure. If the age quoted by him is accepted them on the date of occurrence he was aged 16 years, 10 months and therefore a minor. The conviction Under Section 376 IPC is punishable with imprisonment which may either be for life or for a term which may extend for 10 years and fine. It is therefore an offence punishable with imprisonment for life as contemplated Under Section 360 of the Code of Criminal Procedure. 10. In that view of the matter, as the Petitioner claims to be a minor on the date of commission of the offence, he cannot be extended the benefit of the provisions of the Act. It is therefore an offence punishable with imprisonment for life as contemplated Under Section 360 of the Code of Criminal Procedure. 10. In that view of the matter, as the Petitioner claims to be a minor on the date of commission of the offence, he cannot be extended the benefit of the provisions of the Act. Any consideration with regard to the character and antecedents of the Petitioner in view of the above fact is insignificant. 11. Section 4 of the Probation of Offenders Act 1958 provides for release of certain offenders on probation of good conduct. The benefit is available to a person found guilty of offence not punishable, with death or imprisonment for life. In view of the section of law under which the Petitioner has been convicted no benefit under the above Act can be granted to him. 12. As a matter of fact, the learned trial court while selecting the sentence had examined this aspect of the matter. Though Mr. Choudhury has strenuously argued, endeavoring to highlight the unblemished past of the Appellant, his age and future prospects in life, having regard to the materials on record, I do not feel persuaded to interfere with the sentence as imposed. The Appellant has been found guilty of an offence which reflects his moral depravity at such a young age. The punishment in such cases has to be deterrent. The learned trial court while imposition the sentence was conscious of the above aspect. I do not find any good or sufficient reason either in law or on facts to take a different view. The authority relied upon by the learned Counsel for the Appellant has no application to the facts of the present case. The appeal therefore fails and is dismissed. Appeal dismissed