Calcutta High Court (Appellete Side)
Raju Das vs The State Of West Bengal on 15 May, 2012
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
Present: The Hon'ble Mr. Justice Girish Chandra Gupta
And
The Hon'ble Mr. Justice Tarun Kumar Gupta
Criminal Appeal No.291 of 2006
Raju Das
Versus
The State of West Bengal
For the appellant: Mr. Milon Mukherjee
Mr. Subir Debnath
For the State: Mr. Sabir Ahmed
Mr. Joy Sengupta
Judgement on: May 15, 2012
Tarun Kumar Gupta, J.:-
This appeal is directed against a judgment and order dated 16th of March, 2006
and 17th of March, 2006 respectively passed by learned Additional Sessions Judge,
Fast Track Court-I, Krishnanagar, Nadia in Sessions Trial No.XIII (March), 2005
arising out of Sessions Case No.7 (10) 2004. By the impugned judgment and order
the learned Trial Judge convicted the present appellant under Section 376 of the
Indian Penal Code and sentenced him to suffer rigorous imprisonment for 10 years
and also to pay a fine of Rs.2000/-, in default, to suffer R. I. for four months.
2
The prosecution case may be summarized as follows:-
One Putul Das lodged a written complaint to the O. C. Nakashipara Police
Station, District - Nadia on 18th of April, 2004 alleging that accused Raju Das used
to mix with her daughter 'X' (name is withheld to keep the identity of the victim
secret) aged about 19 years for last four years and had physical relation with a
promise of marriage resulting 'X' being pregnant for five months. It was further case
that though accused admitted said fact but when the matter was informed to the
villagers, accused Raju Das refused to marry 'X'.
On the basis of said written complaint Nakashipara P. S. case No.90/04 dated
18th April, 2004 under Sections 376/417 of the Indian Penal Code was initiated.
After investigation I. O. submitted charge sheet against the accused under Section
376/417 of the Indian Penal Code. Charges were accordingly framed and accused
faced trial.
The defence case as it is gathered from the trend of cross-examination of
relevant P. W.s. as well as from the statements of accused under Section 313 Cr. P.
C. was that there was never any promise of marriage on the part of the accused and
that accused was not the father of the child of 'X' though 'X' had physical relation
with the accused out of love and with her free consent.
3
In order to prove this case prosecution examined 12 witnesses and also
exhibited certain documents namely exhibits 1 to 8. The defence, however, did not
adduce any evidence, either oral or documentary.
On the basis of evidence on record learned Trial Court convicted the appellant
/ accused only under Section 376 of the Indian Penal Code and passed the sentence
as stated above.
Mr. Milon Mukherjee, learned senior counsel for the appellant accused has
assailed the impugned judgment and order on the following grounds:-
(1) (i) First, the prosecution evidence regarding alleged knowledge of
relation between victim and accused by victim's mother Putul Das was
conflicting in between the evidence of victim (P.W.2) and her mother
(P.W.3) vis-a-vis the F.I.R. (Ext.5).
(ii) Though the victim (P.W.2) deposed about an incident of her abortion
at the instance of the accused but it was neither stated by her to the
Investigating Officer (P.W.12), nor the same found place in the F. I. R.
(2) Secondly, as per medical evidence it was not possible for the victim to
become pregnant for alleged physical relationship with the accused on
the date of 'Durga Dasami' of 2003 as her menstruation started about
four days prior to the day of 'Dasami'.
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(3) Thirdly, the parties had physical relationship out of love without any
promise of marriage.
(4) Lastly, the victim was of the age of 15/16 when she had first physical
relation with the accused and that she was a consenting party to said
physical relation and even if there was any promise of marriage that did
not constitute any misconception of fact within meaning of Section 90
of Indian Penal Code to attract the alleged offence of rape as defined
under Section 375 of the Indian Penal Code.
In support of his last contention he has referred some case laws, namely, S.
Varadarajan vs. State of Madras (AIR 1965 Supreme Court page 942), Jayanti Rani
Panda vs. State of West Bengal and another (1984 CRI. L. J. page 1535), Hari Majhi
vs. The State (1990 CRI. L. J. page 650) and Uday vs. State of Karnataka (2003) 1 C.
Cr. LR (SC) page 555.
Mr. Sabir Ahmed, learned advocate appearing for the respondent State, on the
other hand, submits that but for some omissions and contradictions there is consistent
evidence on record that accused Raju Das had physical relation with the victim with
a false promise of marriage for a long period of four years and that there was one
incident of abortion of pregnancy at the instance of Raju Das and that lastly there
was pregnancy of the victim resulting into delivery of a male child. According to
him, the victim consented to physical relationship with the accused Raju Das under
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false promise of Raju that he will marry the victim in due course and that the victim
was really under a misconception of fact within the meaning of Section 90 of the
Indian Penal Code and that learned Trial Court rightly convicted the accused for
committing offence under Section 376 of the Indian Penal Code. In support of his
contention he also referred to an unreported decision of this Court passed in CRA
No.657 of 2008.
Before analyzing the submissions of learned counsel in the backdrop of the
evidence on record, it will be necessary to note down the gist of evidence of the
witnesses of the case.
P.W.1 Dr. Nripati Roy deposed that on 20th April, 2004 while he was posted in
the district hospital Nadia at Krishnanagar as Superintendent, he examined accused
Raju Das in connection with this case and found the accused to be capable of sexual
intercourse and submitted a report (Ext.1). According to him he also referred the
accused to C.F.S.L., Kolkata for paternity test through DNA test. He accordingly
proved his endorsement (Ext.2) on the application filed by the I. O.
P.W.2 is the victim girl who deposed that while she was a student of Class-VI
she started to mix with the accused Raju Das and had sexual intercourse with him on
being assured that he would marry her. She further deposed that she became
pregnant and that while she was carrying for five months, she asked accused to marry
her but the accused postponed the same on the plea that he was still unemployed and
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advised to go in for abortion. The accused took her to a nursing home of Dr. Lakshi
at Uttar Pikepara under Nakashipara P.S. wherein she was admitted as Anjana Ghosh
and accused registered his name as Raju Ghosh of Debogram and the pregnancy was
aborted. She further stated that even after said incident there was free mixing on the
promise of marriage and that on the day of Durga Dashami accused had physical
relation with her in her house in the absence of her parents on the same promise of
marriage and that she became pregnant. According to her she requested the accused
to marry her but accused refused and then she informed her mother about this and
that a village 'Salish' was held but accused declined to marry her and later on she
gave birth to a child. She also proved her statement recorded by Magistrate being
Exhibit 4.
P.W.3 Jharna Bala Roy is a scribe of the written complaint. According to her
she was pradhan at relevant time and knew the parties of the case and that as per
statement of victim's mother Putul Das she wrote the written complaint whereupon
Putul Das signed. According to her there was also a village 'Salish' but accused then
declined to marry the victim as a result this case was filed.
P.W.4 Basana Das being a co-villager only deposed that she heard that victim
and Raju had relationship of love for long time but did not support the prosecution
case in other points and was declared hostile.
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P.W.5 Gopal Das is another co-villager. He deposed that accused and victim
had free mixing out of love resulting the victim being pregnant.
P. W.6 Putul Das is the defacto complainant as also mother of the victim.
According to her accused Raju used to mix with her daughter with the promise of
marriage resulting her pregnancy and that accused Raju or his family members
declined to give marriage of Raju with victim and that they rather offered
Rs.40,000/- and asked to get her daughter married elsewhere. She further deposed
that there was a village 'Salish' asking the accused to marry the victim but without
any result, and that later on victim gave birth to a male child. She proved the written
complaint.
P.W.7 Dr. R. C. Biswas deposed that on 24.04.2004 while he was posted at
Nadia district hospital as a medical officer in the capacity of radiologist, he
performed ultra-sonography test of the abdomen of victim to find that she was
carrying for about 31 weeks and submitted a report (Ext.6).
P.W.8 L. Das was a co-villager and deposed about free mixing of Raju with
victim resulting into pregnancy of the victim.
P.W.9 C. M. Das was a co-villager and expressed his ignorance about the
incident.
8
P.W.10 Dr. P. K. Roy deposed that on 19.04.2004 while he was posted at
district sadar hospital at Krishnanagar as a gynaecologist he examined the victim and
found her to be pregnant for about 28 weeks and issued a report (Ext.1/1).
P.W.11 Makhan Das is the father of victim and deposed in support of the
prosecution case.
P.W.12 S. I. Arup Kumar Pal was the investigating officer of this case.
According to him during investigation he examined the victim and other witnesses,
took steps for medical examination of victim and accused and that accused did not
appear for giving his blood sample for DNA test to determine the paternity of the
child of the victim and that after completion of investigation he submitted the charge
sheet.
There is no denial that there were apparent inconsistencies in the evidence of
victim P.W.2 and her mother Putul Das (P.W.6) as well as in between the evidence
of defacto complainant Putul Das (P.W.6) and her written complaint (Ext.5). The
victim P.W.2 deposed "When I was carrying for nine months, my mother could know
and I narrated all the occurrence to her." Whereas on this point her mother (P.W.6)
deposed in cross-examination that "I knew that my daughter used to menstruation
every month. I came to know from my daughter that her menstruation stopped for
2/3 months." In the written complaint made by victim's mother Putul Das (P.W.6) it
was stated as follows:-
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".......Raju Das S/o Sailen Das of her neighbourhood has been having an illicit
relationship with my daughter .....aged about 19 years, educated upto Class VI for
the last four years. I forbade both regarding this but they continued to mix together.
Raju promised to marry my daughter and had illicit intercourse with her resulting my
daughter becoming five months pregnant." So admittedly there is conflicting
evidence on the part of victim as well as her FIR maker mother as to exact time of
pregnancy of victim when the matter came to the knowledge of victim's mother.
The victim (P.W.2) deposed regarding abortion as follows:-
"....about four years ago the accused assured me that he would marry me and
committed sexual intercourse with me. After one month of that cohabitation I
conceived. I then reported the fact to the accused. He expressed his inability to
marry me as he was unemployed and he asked me for abortion when I was carrying
for five months. The accused took me to the Nursing home of Dr. Lakshi at Uttar
Pikepara under Nakashipara P.S. He admitted me there in the name of Anjana
Ghosh and he registered his name as Raju Ghosh and he disclosed the address as
Debogram. My pregnancy was terminated in the nursing home against my will."
During cross-examination the suggestions were given to the victim that those
statements were false but the same was denied by the victim. It was nowhere
mentioned during the said cross-examination that victim did not make any such
statement to the Investigating Officer during her examination. The Investigating
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Officer was not also examined regarding said alleged omission on the part of victim
in her statements made before the Investigating Officer. However, it is true that said
allegation did not find any place in the written complaint (Ext.5). It came out from
the evidence of Investigating Officer (P.W.12) that during investigation the
Investigating Officer seized the connected xerox certificate of the concerned nursing
home regarding abortion as alleged by the victim but the same was not exhibited as
the original was not seized on the ground that the same was seized in connection with
another case. This is certainly a lapse on the part of the investigating agency. The
Investigating Officer should have prayed before the Trial Court for calling for said
document from the concerned Court for the purpose of proving the document in
connection with this case. For not proving the same accused may claim benefit
alleging that the fact of alleged abortion of victim in said nursing home at the
instance of accused was not proved according to law. But this cannot altogether
throw away the oral evidence of victim on this score. In our country a village girl is
hardly expected to describe herself falsely as a girl who for premarriage relationship
became pregnant and had abortion.
Even if we admit for argument's sake that there were some discrepancies in
between the evidence of victim (P.W.2) and defacto complainant mother (P.W.6)
regarding the exact time of having knowledge of the mother regarding pregnancy of
victim through accused, or that prosecution failed to establish that there was earlier
11
abortion of the victim after being pregnant by accused and that said pregnancy was
terminated at the instance of the accused, still these become irrelevant to a great
extent in view of the specific defence stand that there was physical relation between
the parties out of love. As such, having physical relation in between victim and
accused is not denied by the accused. The only plea taken is that said relation was
out of love and not on account of any promise of marriage and that accused was not
the father of the child of the victim and that even if there was any promise of
marriage that did not constitute any misconception of fact to attract the alleged
offence of rape.
Learned counsel for the accused has submitted that medically it was not
possible for the victim to become pregnant through the accused as, according to
victim, they had last physical relation on Durga Dashami and that only few days
prior to said Durga Dashami her menstruation started. In this connection learned
counsel for the accused drew our attention to the cross-examination of Dr. Biswas
(P.W.7) and Dr. Roy (P.W.10). P.W.7 stated "there is no chance of conceiving any
pregnancy if a woman cohabits on the third day of her menstruation period." P.W.10
deposed "there is no chance of conceiving if a lady has sexual intercourse on the
third date of her menstruation period."
We did not find wherefrom it was found by the defence that Durga Dashami
was the third day of the menstruation period of the victim. The victim (P.W.2) has
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categorically stated during her cross-examination on this point "we had sexual
intercourse on a number of occasion but the last of which took place on the day of
Durga Dashami in the year 2003. About four days prior to the date of Dashami my
menstruation started." From said cross-examination of victim it is clear that she did
not state anywhere that said date of Durga Dashami was the third day of her
menstrual period. Rather it came out from her cross-examination that about four
days prior to the date of Dashami her menstruation started. The term "about four
days" (stress added) does not specifically mean four days. It may be 5 days or 6
days. As such from said cross-examination it cannot be presumed that Durga
Dashami fell on the third day of the menstruation of the victim. Rather it appears
that said Durga Dashami fell at least on the fourth day if not fifth or sixth day after
starting of her menstruation. As such the medical evidence as referred by learned
counsel of the accused is of no help to the defence to show that there is no possibility
of the victim conceiving due to physical relationship with the accused on said date of
Durga Dashami of 2003.
In this connection another thing may also be taken into consideration. The
prosecution took steps for ascertaining the paternity of the child of the victim by
DNA test of both the victim and the accused as well as the child. It came out from
the evidence on record that the accused did not give his blood for the DNA test. An
adverse inference may easily be drawn against the accused in this count.
13
Apart from that it is an admitted fact that victim and accused were co-villagers.
There is no evidence, not to speak of any allegation or even suggestion either to
victim or to any of the witnesses that victim was a girl of easy virtue or was in the
habit of mixing with other boys or had any chance of being pregnant through any
other person. In this connection it is also pertinent to note that one Gopal Das
(P.W.5) categorically deposed that accused Raju was his friend and that he was co-
villager to both accused and victim and that Raju and victim had free mixing
resulting victim becoming pregnant. It is true that in cross-examination he was
candid to say that he had no personal knowledge about the paternity of the child of
the victim, but statements in the examination-in-chief as stated above were not
denied by the defence. It is settled law that if statements made in chief are not denied
during cross-examination then it has to be accepted that those statements were not
refuted by the other side. So the evidence on record, as stated above, together with
the conduct of the accused in this connection lead us to one, and only one conclusion
that accused was the father of the child of the victim.
The definition of rape under Section 375 of the Indian Penal Code stands as
follows:-
"A man is said to commit "rape" who, except in the case hereinafter excepted,
has sexual intercourse with a woman under the circumstances falling under any of
the six following descriptions:-
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First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her
or any person in whom she is interested in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband,
and that her consent is given because she believes that he is another man to whom
she is or believes herself to be lawfully married.
Fifthly.- With her consent, when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by him personally or
through another of any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under sixteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape.
Exception.- Sexual intercourse by a man with his own wife, the wife not being
under fifteen years of age, is not rape."
Section 90 of the Indian Penal Code stands as follows:-
"A consent is not such a consent as is intended by any section of this Code, if
the consent is given by a person under fear of injury, or under a misconception of
15
fact, and if the person doing the act knows, or has reason to believe, that the consent
was given in consequence of such fear or misconception; or
if the consent if given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of that to which he
gives his consent; or
unless the contrary appears from the context, if the consent is given by a
person who is under twelve years of age."
Learned senior counsel on behalf of the accused submits that consent
given by a girl of 15 years or above to have physical relation against a promise of
marriage cannot be said to be misconception of fact within the meaning of Section 90
of the Indian Penal Code to attract the alleged offence of "rape" as defined under
Section 375 of the Indian Penal Code.
In the referred case of S. Varadarajan (supra) there was also an incident of
having physical relation in between a girl and accused boy with a promise of
marriage and Hon'ble Court held as follows:-
"....She was not a child of tender years who was unable to think for herself but, as
already stated, was on the verge of attaining majority and was capable of knowing
what was good and what was bad for her. She was no uneducated or unsophisticated
village girl but a senior college student who had probably all her life lived in modern
16
city and was thus far more capable of thinking of herself and acting on her own than
perhaps an unlettered girl hailing from a remote area."
In Jayanti Rani Panda's case (supra) it was held by this Court as follows:-
"The failure to keep the promise at a future uncertain date due to reasons not
very clear on the evidence does not always amount to a misconception of fact at the
inception of the act itself. In order to come within the meaning of misconception of
fact, the fact must have an immediate relevance. If a full grown girl consents to the
act of sexual intercourse on a promise of marriage and continues to indulge in such
activity until she becomes pregnant it is an act of promiscuity on her part and not an
act induced by misconception of fact. S.90, IPC cannot be called in aid in such a
case to pardon the act of the girl and fasten criminal liability on the other, unless the
Court can be assured that from the very inception the accused never really intended
to marry her."
In Hari Majhi's case (supra) it was held as follows:-
"The accused had frequent sexual intercourse with the girl for more than a year
before she conceived. Even if it is assumed that she agreed to sexual intercourse
with the accused on account of promise of the marriage, the charge under Section
417 could not be substantiated in the absence of any evidence to show that the said
representation by the accused was false to the knowledge of the accused at the time it
was made."
17
In Uday's case (supra) it was held by Hon'ble Apex Court as follows:-
"In the instant case, the prosecutrix was a grown-up girl studying in a college.
She was deeply in love with the appellant. .............She must have known the
consequences of the act, particularly when she was conscious of the fact that their
marriage may not take place at all on account of caste considerations. All these
circumstances lead us to the conclusion that she freely, voluntarily and consciously
consented to having sexual intercourse with the appellant."
In Uday's case (supra) Hon'ble Apex Court referred various case laws over
this issue including the cases of Jayanti Rani Panda and Hari Majhi and ultimately
observed in para 21 as follows:-
"It, therefore, appears that the consensus of judicial opinion is in favour of the
view that the consent given by the prosecutrix to sexual intercourse with a person
with whom she is deeply in love on a promise that he would marry her on a later
date, cannot be said to be given under misconception of fact. A false promise is not a
fact within the meaning of the Code. We are inclined to agree with this view, but we
must add that there is no straitjacket formula for determining whether consent given
by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a
misconception of fact. In the ultimate analysis, the tests laid down by the Courts
provide at best guidance to the judicial mind while considering a question of consent,
but the Court must, in each case, consider the evidence before it and the surrounding
18
circumstances, before reaching a conclusion, because each case has its own peculiar
facts which may have a bearing on the question whether the consent was voluntary,
or was given under a misconception of fact. It must also weigh the evidence keeping
in view the fact that the burden is on the prosecution to prove each and every
ingredient of the offence, absence of consent being one of them."
The fact of the above referred cases materially differ with the fact of the
present case. In almost all those cases the alleged victims were matured persons and
not a girl coming from village with little education and from a poor family. It came
out from evidence on record that father of the victim was a rickshaw puller (cross-
examination of victim), and she sewed blouse at home after taking order from local
tailoring shop (cross-examination of victim). It also came out from the evidence on
record that father of the accused retired from army 2 / 3 years ago (cross-examination
of victim). The case must be judged by its own facts and circumstances in the
backdrop of the evidence on record. The evidence on record is overwhelming to
establish that the accused had physical relationship with the victim under a promise
of marriage for over a period of 3 / 4 years which he never intended to perform and
that ultimately victim became pregnant and that on account of refusal on the part of
accused to marry victim, victim was compelled to disclose about her pregnancy to
her mother followed by village 'Salish' wherein accused was asked to marry victim
but without any result and that accused ultimately left village and his father proposed
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to give Rs.40,000/- to the victim or to her family to hush up the matter and for
arranging marriage of victim in some other place. There is no denial that the
financial status of accused was much higher than that of victim. The accused should
have known and knew very well that his father being a military personnel and well-
off will not agree to the proposal of marriage of accused with victim and that in spite
of said knowledge accused continued to mix with victim and had physical relation
with a promise of marriage. If we go by Section 90 of the Indian Penal Code which
defines a free consent, we find that consent of the victim to have physical relation
with the accused was given by the victim in view of the promise of marriage of the
accused who knew from very beginning that the said promise was false one, and
hence consent of the victim was not a free consent and was rather a consent under
misconception of fact within the meaning of Section 90 of the Indian Penal Code and
amounted to "without her consent" as made out under Section 375 of the Indian
Penal Code. In this connection it also came out from the evidence on record that
whenever victim asked the accused to marry her, accused took the plea that he was
unemployed and that on getting employment he would marry her and continued to
have physical relation with her with that promise of marriage.
In the unreported decision of this Court in the case of Manik Roy alias Bishadu
versus State of West Bengal in CRA No.657 of 2008 this Court came to the
conclusion that in a given case the act of having sexual relation with a false promise
20
of marriage may amount to commission of rape within the meaning of Section 375 of
the Indian Penal Code.
In view of the discussions as made above we are of opinion that present
appellant was guilty of committing offence under Section 376 of the Indian Penal
Code and that the order of conviction does not call for any interference by this Court.
Learned counsel for the appellant submits that appellant is a young man of
about 29 years of age and that the incident occurred around 2003 while he was much
younger (21 years of age) and that a lenient view may be taken regarding sentence of
the accused. According to him, learned Trial Court sentenced the accused to
rigorous imprisonment for 10 years and also to pay a fine of Rs.2000/-, in default, to
suffer rigorous imprisonment for four months for committing offence under Section
376 of the Indian Penal Code and that said period of substantive sentence is too
harsh.
Mr. Mukherjee further submits that accused already served a sentence of about
five years and that considering the age and other antecedents of the accused his
sentence, if conviction is sustained, be restricted to the period already undergone.
There is no denial that at the time of the incident accused was a young man of
about 21 years of age and that presently he is aged about 29 years. As per
submission of Mr. Mukherjee this accused petitioner has already undergone about
five years' imprisonment. Admittedly, this petitioner accused is not a hardened
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criminal. He is coming from a middle class family having values though in the
exuberance of the young age he committed the offence. At the same time it is also
true that victim girl of this case is coming from a very poor family and that she
becoming an unmarried mother has to face difficulties not only in her life but also in
the matter of rearing her minor son. The appellant cannot shake off his responsibility
altogether in the matter, particularly when he refused to marry the victim girl who is
still willing to marry him only to provide her son with a social recognition.
The power of the Appellate Court in case of an appeal from a conviction has
been laid down in Section 386 (b) as follows:-
"..............(i) reverse the finding and sentence and acquit or discharge the
accused, or order him to be re-tried by a Court of competent jurisdiction subordinate
to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the
nature and extent, of the sentence, but not so as to enhance the same;"
Considering the facts and circumstances of the case and the respective social
status of the parties we are of opinion that justice will be subserved if petitioner
accused is sentenced to undergo the substantive sentence already undergone and to
pay a fine of Rs.3,50,000/- , I. D., to suffer R. I. for two and half years (2½) and the
entire amount of fine if realized is directed to be paid to the victim girl towards
22
compensation. We are aware that monetary compensation is no compensation for the
loss suffered by the victim girl as well as ignominy already faced and to be faced in
future by the victim girl. Still, we hope that the amount of compensation will at least
give some solace and assistance in her struggle for life with a minor son having no
legitimate father.
Now the question is whether this order of payment of sentence of
Rs.3,50,000/- can be treated as a case of enhancement of sentence within the
meaning of Section 386(b)(iii) of the Code of Criminal Procedure.
As per original sentence the accused was sentenced to undergo rigorous
imprisonment for 10 years and also to pay a fine of Rs.2000/-, in default, to suffer R.
I. for four months. Now in the proposed sentence we have limited substantive
sentence of the petitioner accused to the period already undergone which is reported
to be five years, with direction to pay a fine of Rs.3,50,000/-, I. D., to suffer R. I. for
two and half years. Let us see whether this can be branded as enhancement of
sentence within the meaning of mischief of said Section 386 (b) (iii) of the Code of
Criminal Procedure. Whether a sentence is enhanced or not has to be judged from
the composite sentence of the Trial Court vis-à-vis the composite sentence of the
Appellate Court. As per Trial Court judgment the accused had to undergo rigorous
imprisonment for 10 years leaving aside sentence of imprisonment for non-payment
of the amount of fine awarded therein. But by this judgment of the Appellate Court
23
the substantive sentence of the accused has been limited to the period already
undergone (around five years) together with a period of two and half years' rigorous
imprisonment in case of non-payment of fine amount of Rs.3,50,000/-. As such, if
the petitioner accused does not pay the revised amount of fine as awarded by this
Court and chooses to suffer imprisonment in that case his total imprisonment period
will be the period already undergone (about five years) plus two and half years under
the default clause totaling around 7 ½ years which is much less than the substantive
sentence of 10 years awarded by the Trial Court. As such, the proposed combined
sentence cannot be termed as enhancement of sentence of the appellant accused.
Accordingly, we dispose of the appeal by maintaining the conviction of the
accused petitioner but alter his sentence to the tune that he will suffer rigorous
imprisonment for the period already undergone and will pay a fine amount of
Rs.3,50,000/-, I. D., to suffer R. I. for two and half years and that victim will be
entitled to get the entire realized fine amount towards compensation. The petitioner
accused is directed to deposit the entire fine amount to the learned Trial Court within
six weeks failing which he must surrender before learned Trial Court just on expiry
of said six weeks from this date to serve out the period of imprisonment awarded in
default of payment of fine amount. If petitioner accused fails to pay the fine amount
within the stipulated time frame or fails to appear before learned Trial Court just on
expiry of said period of six weeks in case of non-payment of fine amount, Learned
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Court concerned shall take coercive steps to ensure attendance of the accused
petitioner for serving out the period of sentence awarded in default of payment of
fine amount.
Let Lower Court records with a copy of this judgment be sent down to the
Court concerned forthwith.
Urgent photostat certified copy of this judgment, if applied for, be delivered to
the learned advocates for the parties, upon compliance of all formalities.
(Tarun Kumar Gupta, J.)
Girish Chandra Gupta, J.
I agree