The key legal point established in the judgment is the court's consideration of the proviso of Section 376 IPC for reducing the sentence based on adequate and special reasons.

JUDGMENT

Pushpendra Singh Bhati, J. - In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned.

2. This criminal appeal under Section 374 Cr.P.C. has been preferred claiming the following reliefs:

"It is, therefore, most respectfully prayed that the appeal of the appellant may kindly be allowed and the judgment dated 21.3.90 passed by the learned Sessions Judge, Churu may kindly be quashed and the appellant may kindly be acquitted from the charges levelled against him."

3. The matter pertains to an incident which occurred in the year 1986 and the present appeal has been pending since the year 1990.

4. Mr. Vikas Bijarnia, appearing as Pro Bono, on behalf of the appellant, submits that this Criminal Appeal has been preferred against the impugned judgment dated 21.03.1990, passed by the learned District and Sessions Judge, Churu in Sessions Case No. 58/96 whereby the appellant was convicted for the offences under Section 376 IPC and sentenced to undergo three years R.I. and a fine of Rs. 5000/-, default of payment of which he was ordered to further undergo six months R.I.

4.1. Learned counsel further submits that as regards the alleged injury sustained by the prosecutrix, the same has not been proved against the present appellant, as Dr. Anil Chawla PW-4, in his statement made a clear deposition, in the form of medical opinion, that as per injury report (Ex.P-12), there is every possibility that such injury could be sustained from the firewood, and the same is further fortified from the fact that on the day of the alleged incident, the prosecutrix was carrying firewood on her head; such medical opinion given by the expert is creating doubt.

4.2. Learned counsel further submits that apart from the above, the prosecution has even failed to establish any connection between the injury alleged to have been sustained by the prosecutrix with the alleged incident, so as to attribute any role to the present appellant; this is more so when Dr. P.K. Rathore, who had medically examined the prosecutrix, particularly her genitals, was not produced by the prosecution for rendering his evidence; the same also casts a serious doubt upon the prosecution case.

4.3. Learned counsel also submits that the prosecution has also failed to derive strength from any other evidence, so as to held the appellant liable for the alleged offence, which also, amongst others, is clearly detrimental to the case of the prosecution.

4.4. Learned counsel further submits that from the above as well as on a perusal of the record, it a clear case of consensual relationship, but the same, later on, had been given a colour of the commission of the offence under Section 376 IPC.

4.5. Learned counsel also submits that at the time of the alleged incident, the appellant was 20 years of age and the prosecutrix was 19 years of age.

4.6. Learned counsel thereafter submits that though there was a minimum punishment provided under Section 376 IPC (as it then stood) but there was a proviso thereto, which provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term less than seven years. Section 376 IPC, as it then stood, reads as under:

"376. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentenc