IMPORTANT POINT
Suspension of sentence – Considering period of incarceration and that there is very little possibility of early hearing and disposal of appeal, sentence can be suspended and bail can be granted.

JUDGMENT

Arijit Banerjee, J.—This is an application for suspension of sentence in an appeal filed by the petitioner against the judgment and order dated November 29/30, 2024, passed by the Additional District and Sessions Judge, Kurseong in Special Case No. 01 of 2023, whereby the petitioner was convicted of offence punishable under Section 10 of the POCSO Act 2012 and under Sections 448/376(2)(c)/511 of IPC and was sentenced to undergo rigorous imprisonment for 12 years and to pay fine of Rs. 50,000/-.

2. The petitioner says that he has been falsely implicated. The evidence on record does not support the charge of attempted rape. Even if the evidence of the victim girl, the de-facto complainant, the examining Doctor and other witnesses are taken at face value, the conviction cannot be sustained. He is in custody for about 2 years 4 months. There is no possibility of an early hearing of the appeal.

3. Learned Advocate for the petitioner further submitted that at the highest, without penetration, offence under Section 376 IPC cannot be made out. In this connection, learned Advocate relied on decisions of the Hon’ble Supreme Court in the cases of Tarkeshwar Sahu v. State of Bihar (North Jharkhand), reported at (2006) 8 SCC 560, Aman Kumar v. State of Haryana, reported at (2004) 4 SCC 379 and Bibhishan v. State of Maharashtra, reported at (2007) 12 SCC 390. Learned Advocate further referred to the decision in the case of State of M.P. v. Mahendra @ Golu reported at (2022) 12 SCC 442 to argue that there is a difference between the stages of preparation and attempt in a rape case. The stage of preparation consists of deliberation, devising or arranging the means or measures which would be necessary for commission of an offence. Attempt starts from the next stage. In the present case, the evidence on record does not even support a charge of attempt to commit rape. At the highest, the prosecution may be able to make out a case of aggravated sexual assault under Section 10 of the POSCO Act for which the punishment prescribed is imprisonment between 5 and 7 years. The petitioner has served out a substantial part of the prescribed period and should be enlarged on bail.

4. Arguments and counter arguments had been advanced by learned Counsel for the petitioner and the State on the point as to whether or not the learned Trial Judge could impose a sentence of 12 years imprisonment on the petitioner for commission of offence under Sections 376/511 IPC. According to learned Counsel for the petitioner, Sections 376 (rape) and 511 (attempt to commit an offence) read with Section 57 of the IPC would indubitably indicate that the maximum term imprisonment that could be imposed is 10 years. This is because Section 57 IPC provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. Section 511 IPC provides that whoever attempts to commit an offence punishable with imprisonment for life or imprisonment and in such attempt does any act towards the commission of the offence, he shall, where no express provision is made by the Code for punishment of such attempt, be punished with imprisonment for a term which may extend to one-half of the imprisonment for life or as the case may be, one-half of the longest term of imprisonment provided for that offence. One-half of imprisonment for life would necessarily mean one-half of 20 years as otherwise no specific term can be computed since no one can predicate how long a convict is going to live.

5. Learned State Counsel, relying on the decision of the Hon’ble Supreme Court in Gopal Vinayak Godse v. State of Maharashtra, reported at AIR 1961 SC 600 argued that life imprisonment means imprisonment for the convicts’ entire natural life, unless commuted or remitted by the appropriate authority. Section 57 IPC does not limit life imprisonment to 20 years. What is used solely for computing fractions of terms of punishment.

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