IN CASES OF DELAY IN LODGING FIR AND ABSENCE OF INJURY ON THE PROSECUTRIX, THE COURT MAY MODIFY THE SENTENCE TO THE PERIOD ALREADY UNDERGONE BY THE ACCUSED.

JUDGMENT :

1. This criminal appeal has been filed by the accused-appellant against the judgment dated 15.7.1987 passed by learned Additional Sessions Judge No.1, Gangapur City (for brevity-‘the learned trial court’) in Sessions Case No.13/1986 whereby, he has been convicted and sentenced as under:

Section 376/511 IPC – 4 years rigorous imprisonment and fine of Rs.500; in default whereof to further undergo six months rigorous imprisonment.

2. The relevant facts in brief are that the complainant Smt. Kamla submitted a written report (Ex.P3) on 29.10.1985 with the Police Station Gangapur City stating therein that at about 2.00 pm on 28.10.1985 when she had gone to her field to cut grass, the accused attempted to commit rape upon her. It was submitted that when she raised hue and cry, Smt. Chhoti, Smt. Dhan Bai and Prakash came running to rescue her on which the accused fled away.

3. The police after investigation filed charge sheet under Section 376/511 IPC against the appellant. The learned trial court framed charge under Section 376/511 IPC against the appellant who pleaded not guilty and demanded trial.

4. The learned trial court vide its judgment dated 15.7.1987 convicted and sentenced the accused-appellant as stated hereinabove.

5. Assailing the impugned judgment dated 15.7.1987, learned counsel for the appellant would contend that there was delay in lodging the FIR which raises doubt about its veracity. He submits that from the material on record, it is apparent that he has falsely been implicated by the prosecutrix inasmuch as he had confronted her on 28.10.1985 when she was committing theft of groundnut crop in his field and had reported the matter to the Panchayat. He submits that the allegation of making an attempt to rape, is not medically corroborated. He submits that although, from the site plan and testimony of some of the eye witnesses, it is established that there was crop/stalk standing at the site; still, absence of any injury on body of the prosecutrix in view of her allegations that she was thrown on the field, creates suspicion about her allegation. Learned counsel submits that the learned trial court has relied upon Ex.P1, his injury report which reflects some scratch marks on his face; but, in absence of putting the same for clarification during his examination under Section 313 Cr.P.C., it could not have been relied upon for recording his conviction. Learned counsel submits that there are material contradictions and improvements in the prosecution story as is reflected from the statements of prosecution witnesses. Lastly, he, however, would submit that the appellant would feel contended if while maintaining the conviction, the sentence awarded to him is modified to the period already undergone. He in support of his submissions relies upon following judgments of this Court:

1) Manju vs. State of Rajasthan & Ors.-RLW 2009 (4) Raj. 3097;

2) Durga Ram vs. State of Rajasthan-MANU/RH/0739/2022.

Per contra, learned Public Prosecutor opposed the prayer.

Heard. Considered.

6. The incident is alleged to have been committed on 28.10.1985 and the FIR was lodged on 29.10.1985. The appellant who was aged about 25 years in the year 1985, is about 63 years old today. He has been facing the agony of this criminal case for last about 38 years. He has remained in custody for a period of about 16 days in all. Taking into consideration, the contentions advanced by the learned counsel for the appellant and the material on record, this Court finds it to be a fit case for modifying the sentence to the period already undergone by the appellant while maintaining his conviction recorded by the learned trial court.

7. In case of Manju (supra), wherein, while recording conviction of the accused under Section 376 read with Section 511 IPC, he was given benefit of probation, modifying the judgment, a coordinate bench of this Court sentenced him to the period already undergone.

8. Similarly, in the case of Durga Ram (supra), this Court held as under