The court applied sentencing principles of deterrence and correction, considering medical evidence and discrepancies in the prosecution's story to reduce the appellant's sentence.

JUDGMENT

Pushpendra Singh Bhati, J. - This criminal appeal under Section 374 (2) Cr.P.C. has been preferred claiming the following reliefs:

"It is, therefore, respectfully prayed that the appeal may kindly be allowed and the impugned judgment dated 28.8.93 passed by the learned Addl. Sessions Judge, Barmer may kindly be quashed and set aside and the accused-appellant may kindly be acquitted of the offences under Section 376 and 323 IPC."

2. The matter pertains to an incident which occurred in the year 1991 and the present appeal has been pending since the year 1993.

3. Learned counsel for the appellant submits that this Criminal Appeal has been preferred against the impugned judgment dated 28.08.1993, passed by the learned Additional Sessions Judge, Barmer in Sessions Case No. 96/1991, whereby the appellant was convicted for the offences under Sections 323 & 376 IPC; under Section 323 IPC, the appellant was sentenced to undergo six months' R.I. and a fine of Rs. 500/-, in default of payment of which he was ordered to further undergo two months' S.I.; under Section 376 IPC, the appellant was sentenced to undergo seven years' R.I. and a fine of Rs. 1000/-, in default of payment of which he was ordered to further undergo three months' S.I.

4. Learned Amicus Curiae, appearing on behalf of the appellant submits that the incident took place on 21.09.1991 when the prosecutrix had taken her cattle for grazing and was intercepted by the appellant, who allegedly committed rape upon her. Learned counsel points out that the real sister of the prosecutrix, who has been examined as PW-10, was nowhere in picture in the FIR as an accomplished to the victim. Learned counsel further submits that the story was developed and PW-10 has been later on taken as an eyewitness as if she was there at the site, which is a huge discrepancy and causes suspicion in the version of the prosecutrix.

5. Learned counsel also submits that though there are injuries, but at the same time, the doctor who was examined as PW-3 Dr. Mridula Goyal, in Gynecological examination, has categorically proved that there was no external injury in the genital region. She has further deposed that when examined with the angle of rape, her opinion is that the rape was not committed and the hymen is intact.

6. Learned counsel further submits that the moment such empathetical statement made by doctor on the basis of medical examination, the corroborative evidence goes in reverse causing a serious doubt in the prosecution story. Learned counsel also suggested that even if the injuries are taken into count and some incidents might have happened, but it was not rape.

7. Learned counsel further submits that the sentence so awarded to the appellant was however suspended by this Hon'ble Court, vide order dated 28.10.1993 passed in S.B. Criminal Misc. Application No. 350/1993.

8. Learned counsel however, makes a limited submission that without making any interference on merits/conviction, the sentence awarded to the present appellant may be substituted with the period of sentence already undergone by him.

9. Learned Public Prosecutor opposes the submissions.

10. This Court is conscious of the judgments rendered in, Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 and Haripada Das v. State of W.B. (1998) 9 SCC 678 wherein the Hon'ble Apex Court observed as under:-

Alister Anthony Pareira (Supra)

"There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances." Haripada Das (Supra)

"...considering the fact that the respondent had already undergone detention for some period and the case is pending for a pretty long time for which he