Adequate and special reasons under proviso to Section 376(2)(g) IPC permit sentence reduction to period already undergone where substantial custody served, complainant non-objection, and personal hardships exist, balancing offence gravity with justice ends.

JUDGMENT (ORAL)

VIMAL KUMAR YADAV, J.

1. The present appeal is directed against the Judgment of conviction dated 02.06.2008 and the Order on Sentence dated 03.07.2008 passed by the learned Trial Court, whereby the Appellant was convicted for offences punishable under Sections 363/366/376 of Indian Penal Code 1860 (IPC). For offence under Section 363 , he was sentenced to undergo Rigorous Imprisonment (RI) for a period of 4 years and to pay a fine of Rs. 1000/-, in default of payment he was to undergo RI for a period of 6 months and for the offence punishable under Section 366 , he was sentenced to undergo RI for a period of 5 years and a fine of Rs. 2000/-, in default of payment he was to undergo RI for a period of 1 year and for the offence punishable under Section 376 , he was sentenced to undergo RI for a period of 7 years and a fine of Rs. 2000/-, in default of payment, he was to undergo RI for a period of 1 year.

2. The prosecution’s case, in brief, is that on 03.09.2002, the prosecutrix, a minor aged about 15 years, left her residence for school but did not return. The complainant, her father, lodged a report expressing suspicion that the Appellant, who was earlier a tenant in the same premises, had enticed and taken her away. During investigation, it emerged that the Appellant had taken the prosecutrix in his vehicle from near her school and travelled with her to various places including Haldwani, Almora, Kausani and Nainital. The prosecutrix, in her statement recorded under Section 164 Cr.P.C., alleged that she was rendered unconscious and thereafter subjected to sexual intercourse/acts against her will during their stay at different locations. Appellant and the prosecutrix on the way met with an accident at Haldwani, owing to the Appellant’s rash driving following which they proceeded to stay at multiple hotels at multiple locations in hills. The prosecution relied upon testimonies of hotel staff, documentary records, medical evidence and other materials to substantiate its case. On 15.09.2002, the Appellant and the prosecutrix were traced and apprehended at Mall Road, Nainital and brought back to Delhi. The prosecutrix was medically examined and her statement was recorded.

3. The scope of the appeal has now been confined to the aspect of the sentence awarded vide order on sentence dated 03.07.2008. It has been submitted on behalf of the Appellant that he has already undergone 5 years, 9 months and 19 days of incarceration. It is further submitted that he has lost his Government employment and is currently surviving on the meager income by giving tuitions and is facing financial hardship. The Appellant has a marriageable daughter too; therefore, it is sought that the sentence may be reduced to the period of custody already undergone by him. He has faced the agony and tribulations of a Criminal Trial and Appeal for 24 years. The proviso to Section 376(2)(g) IPC has been invoked for the reduced sentence and aforesaid grounds have been put forth as special and adequate reasons.The Appellant has expressed his willingness to deposit the fine.

4. In support of his arguments, learned counsel for the Appellant has placed reliance on Baldev Singh & Ors. v. State of Punjab, (2011) 13 SCC 705, the relevant portion of which is reproduced hereunder:

“3. Admittedly, the appellants have already undergone about three-and-a-half years' imprisonment each. The incident is 14