(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. As both the appeals arise from the common judgment and order passed by the learned Sessions Judge, they are being considered simultaneously.
2. The short facts are that Sureshkumar Durgadas Sharma – PW-2 on 21.10.2005 filed the complaint stating that he is having one daughter and two sons and eldest is Mina – the victim having birth date of August 20, 1991, studying in 10th Standard in Prakash Hindi High School. As per the complainant, on 19.10.2005 when he came back during late night time to his residence, he was informed by his wife that the victim had not returned after tuition since 5.00 p.m. and, therefore, he inquired with the tuition teacher Kamal Sharma on mobile for confirming as to whether the victim had come for tuition or not and he was informed that she had proceeded to go for residence at 3.30 p.m. Therefore, the complainant further inquired with the friend of the victim Rajender Kaur, but she did not properly reply and conveyed that he may inquire on mobile No.9879030462. The complainant when inquired on phone, the accused conveyed to him that he may stop searching the victim and he may not be named and then phone was discontinued. As per the complainant, the accused aged 22 years had kidnapped his daughter and, therefore, the complaint was filed with Naroda Police Station.
3. The aforesaid complaint was investigated by the police and, thereafter, the chargesheet was filed. The case was committed to the Sessions Court being Sessions Case No.442 of 2006. Learned Sessions Judge framed the charge for the offences under sections 363, 366 and 376 of Indian Penal Code, but as the accused did not plead guilty, the trial was conducted. The prosecution in order to prove the guilt of the accused examined 9 witnesses, details of which are mentioned by learned Sessions Judge at page 4 of the judgment. The prosecution also produced documentary evidences of the relevant documents, details of which are also mentioned by learned Sessions Judge at the very paragraph of the judgment. Learned Sessions Judge, thereafter, recorded the statement of the accused under section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) wherein the accused denied the evidence against him and in further statement, he has stated, inter alia, that the victim, because of the dispute at her residence, was to commit suicide, but he tried to save life of the victim and he became emotional and in order to save life of the victim, he acted as per the desire of the victim and he is innocent and no offence is committed by him. On behalf of the defence, one witness was examined and the documentary evidence of pay slip of the Punjab National Bank was also produced. Learned Sessions Judge, thereafter, heard the prosecution and defence and found that the prosecution has not been able to prove the case for the offences under sections 363 and 366 of Indian Penal Code. He also found that sexual intercourse was not with consent of the victim and on the aspect of age, learned Sessions Judge found that even if the evidence of age is considered as doubtful, but as sexual intercourse is without consent of the victim, the case can be said as proved for the offence under section 376 of Indian Penal Code. Learned Sessions Judge, thereafter, acquitted the accused for the offences under sections 363 and 366 read with section 506(2) of Indian Penal Code and convicted the accused for the offence under section 376 of Indian Penal Code. Learned Sessions Judge heard the prosecution and defence for sentence and recorded the reasons that as the victim had left the home, instance of rape is only once and considering the conduct of the victim, it is the case for imposition of sentence less than minimum and, therefore, learned Sessions Judge imposed the sentence of 5 years rigorous imprisonment with fine of Rs.2000/-, and further 3 months simple imprisonment for default in payment of fine. It is under these circumstances, the original accused has preferred the appeal against the conviction being Criminal Appeal No.1144 of 2010. As learned Sessions Judge has imposed the sentence of 5 years only for the offence under section 376 of Indian Penal Code, the State has preferred the appeal for enhancement of sentence being Criminal Appeal No.1408 of 2010. It may also be recorded that the State has not preferred any appeal against acquittal of the accused for the charge of sections 363, 366 and 506(2) of Indian Penal Code.
4. We have heard Mr.Nirav Thakkar, learned counsel appearing for the original accused and Mr.H.K.Patel, learned APP for the respondent State in both the appeals. We have considered the judgment and reasons recorded by learned Sessions Judge and we have also considered the evidence on record.
5. Learned counsel appearing for both the sides have taken us to the entire evidence on record and it appears that the complainant – PW-2 has fully supported the case of the prosecution and the defence has not been able to bring about any material contradiction in the cross examination on the aspect of birth date. The said witness Sureshkumar PW-2 - Exh.29 has stated that he positively remembered the birth date of his daughter because just prior thereto, his brother had expired in the accident. However, he confessed that registration was not made of the birth. He also stated that he had gone to the school for admission of his daughter and horoscope (janmakshar) was produced in the school for showing birth date of his daughter as August 20, 1991. As in the present appeal, we are only required to examine the relevant evidence for the offence under section 376 of Indian Penal Code and the evidence to that extent shall be considered hereinafter, but other part of the evidence for the offences under sections 363 and 366 of Indian Penal Code for which there is already acquittal granted by learned Sessions Judge, against which, the State is not in appeal, the evidence is not required to be discussed since the same would not be of much relevance for the present appeals.
6. PW-3 victim Exh.31 has also supported the case of the prosecution. In her testimony, she has stated that on 22.10.2005 when the sister of the accused Archanaben had gone to leave his son to the school and for purchasing vegetables, she and accused were alone in the house and the accused took the benefit thereof by closing the door and started molestation and at that time, salvar was also torn from stitches and the injury was also caused on the thigh with nail and thereafter, the accused forcibly committed rape. She has referred to threat and she has identified Salwar/Payjama which was recovered as case property–article No.2. In the cross examination of the said witness, she has not contradicted the statement made in the examination in chief for the incident happened at Yavatmal between her and the accused. She has admitted of giving medical history to the Doctor. The school register for recording of the birth date of the victim as August 20, 1991 has come on record by the deposition of Tikekar Sanjay Mulchandbhai – PW 5 - Exh.37.
7. The testimony of Ramlakhan Nunmal Baranwal - PW 6 - Exh.40 says that he was Doctor who examined the victim while he was on duty in the Civil Hospital, Ahmedabad. As per his testimony, the medical history was given by the victim stating that she had voluntarily left the home and also had visited Yavatmal with the accused, but in the said medical history, she has stated that on 21.10.2005 at about 8.00 night, the accused had sexual intercourse with her against her will. As per the testimony of the said Doctor, there were abrasions found on the left thigh of the victim being reddish in colour having the size of 2.5 cm x 0.5 cm. There were no other apparent injury marks, but the said Doctor thereafter had referred the victim to Dr.Tejal Patel, Gynecologist for further examination and it was found that hymen patulous was intact, but inside her private part, there was one abrasion with mild inflammation. The certificate issued by Dr.Tejal Patel has also come on record at Exh.41. The defence has not been able to bring about any material contradiction except that if the female is not consenting for sexual intercourse, there are possibility of injury to both the persons.
8. The testimony of Dr.Bhavin Shayamal Shah - PW 7 - Exh.49 shows that when he was on duty on 24.10.2005, the victim was brought for ossification test and she was referred to the Radiologist and as per the ossification test, her age was opined as that of exceeding 16 and less than 17 years. It may be recorded that the testimony of PW 6 Exh.40 Doctor on duty further shows that he had also examined the accused when was brought by the police on 24.10.2005 and he had given medical history which was recorded by him in the certificate Exh.42 and the said certificate shows that the Doctor has recorded the medical history given by the accused wherein he has stated that on 21.10.2005 during night time, he had sexual intercourse, no injury marks were found on the body of the accused. The medical papers have also come on record as per the evidence of the said Doctor.
9. The evidence of Investigating Officer Navinchandra Vitthalbhai Desai - PW 8 Exh.55 is also supporting the case of the prosecution and the defence has not been able to bring about any material contradiction which may frustrate the case of the prosecution.
10. The aforesaid evidence laid by the prosecution goes to show that on the aspect of age of the victim, there were two evidences, one was of the school register stating birth date of August 20, 1991, whereas other evidence was of ossification test as per the opinion of the Doctor was above 16 years and less than 17 years. If the evidence of the school register is considered and accepted, the victim would be less than 16 years, whereas if the opinion of the Doctor based on ossification test is considered and believed, the victim would be above 16 years. Therefore, if the Court has to conclude on the aspect of age, it can be said that there were two evidences available for age of the victim. Had it been the case where birth of the victim was registered under the Births and Deaths Registration Act at the relevant point of time, the matter may stand on different footing and different consideration, but it is based on the school record. An attempt is made by the prosecution to show the age as less than 16 years, but at the same time, the prosecution has also laid the evidence for the opinion of the Doctor based on ossification test as that of above 16 years and less than 17 years. Under these circumstances, when two evidences are available, one of the school record and another of the medical opinion based on ossification test, it is difficult to record conclusion that the victim was aged less than 16 years at the time of incident and even otherwise also when two views are possible on the aspect of age, the Court would lean in favour of the accused so as to extend the benefit to the accused. Under these circumstances, we find that the prosecution has not been able to prove the case beyond reasonable doubt that the age of the victim at the relevant point of time was less than 16 years and consequently the accused can be said as entitled to get the benefit thereof.
11. The aforesaid would lead us to examine the second aspect as to whether it was a case of commission of sexual intercourse with consent or not. It may be recorded that had it been a case where the age of the victim was proved beyond reasonable doubt by the prosecution that the victim was less than 16 years, the aspect of consent may be inconsequential, but as recorded earlier, since the prosecution has not been able to prove beyond reasonable doubt about the aspect of age of the victim as that of less than 16 years, the aspect of consent would be of vital importance to trace the guilt of the accused for offence under section 376 of Indian Penal Code. The aspect of commission of sexual intercourse by the accused with the victim is proved and the circumstances are that in the medical history given by the accused before the Doctor, he himself has admitted of having sexual intercourse with the victim, but with consent. In the normal circumstances, the Court may not record conviction or may not hold the accused guilty for the commission of crime just on mere medical history recorded by the Doctor, but if genuineness of the medical history is to be tested, one may trace for corroborative evidence to further examine as to whether the statement made before the Doctor by the accused for admission of crime is correct or not. If the evidence of the victim is considered, she has clearly stated of having commission of sexual intercourse by the accused with her. Further, semen is found as per the FSL report from the underwear of the victim. It is true that group of semen has remained undecided. In the same manner, even the sample of semen which was taken has also remained undecided, but stains of semen on the underwear of the victim are proved by the scientific evidence. There is no explanation coming on record by the accused in the statement under section 313 of the Code. Further, it has come on record through the medical evidence that there was inside abrasion on the deep internal private part of the victim with mild inflammation. Such would normally in a case where there may be penetration. Under these circumstances, when there is statement of the victim with
able to prove that sexual intercourse was committed by the accused with the victim.
12. On the aspect of consent, the evidence shows that Payjama/Salwar of the victim was torn. Second circumstance is that injury marks of nail are found on the thigh of the victim; the internal injury found deep on the private part of the victim showing mild inflammation. These circumstances would lead to show that some degree of force applied for commission of sexual intercourse. The aforesaid evidence is to be considered in light of other evidence coming on record that the victim was at the house of the sister of the accused and both had love affairs too. In our view, it is not possible to record conclusion that sexual intercourse was with consent of the victim. Had it been a case of consent, such circumstance that of medical evidence would not come on record.
13. Learned counsel for the accused appellant did contend that the fact that as per the evidence of the Doctor, hymen was not raptured and was intact would show that there was no penetration and, therefore, it can be said that sexual intercourse had not taken place so as to bring the case under section 376 read with section 375 of Indian Penal Code.
14. Had it been a mere case where hymen was found to be intact and no other evidence was laid by the prosecution, the matter may be required to be examined differently, but in the facts of the present case, hymen is found to be intact as per the opinion of the Doctor with other injury marks found deep on the private part-vagina of the victim with mild inflammation. This can be said as sufficient to show penetration and the said evidence is also to be appreciated with semen found on the underwear of the victim. Therefore, contention raised by learned counsel for the accused appellant cannot be accepted.
15. In view of the aforesaid, we find that learned Sessions Judge has rightly held that sexual intercourse was not with consent of the victim. Once sexual intercourse is found to be not with consent of the victim, even if treated as the age above 16 years, then also it can be said that offence under section 376 of Indian Penal Code is committed and, therefore, it appears to us that learned Sessions Judge has not committed any error in convicting the accused for the offence under section 376 of Indian Penal Code. Hence, we find that ultimate finding recorded by learned Sessions Judge for convicting the accused for the offence under section 376 of Indian Penal Code deserves to be confirmed and hence confirmed.
16. However, on the aspect of sentence imposed by learned Sessions Judge, learned counsel for the accused appellant contended that it is not the matter where the Court has no discretion to award the sentence less than minimum prescribed of 7 years, but in his submission, it is for the Court to record special reasons and circumstances for awarding of sentence less than minimum prescribed by the statute of 7 years. It was submitted by learned counsel for the accused appellant that reasons recorded by learned Sessions Judge for imposing of sentence of 5 years, i.e. less than minimum prescribed of 7 years are sufficient and, therefore, this Court may not interfere with the discretion so exercised by learned Sessions Judge. Whereas, learned APP in the appeal preferred by the State for enhancement of sentence contended that when the statute has provided for minimum sentence of 7 years in a case of offence under section 376 of Indian Penal Code, the Court should have awarded 7 years imprisonment. He also submitted that considering facts and circumstances, learned Sessions Judge ought to have awarded the sentence of life imprisonment or at least 10 years and, therefore, it is the case where this Court may enhance the sentence imposed by learned Sessions Judge upto the life imprisonment or at least 10 years.
17. The aforesaid contention would lead us to examine two aspects, one would be whether it was a case where the sentence would be life imprisonment or 10 years or minimum sentence of 7 years and another aspect is that whether it was a case where the sentence could be less than minimum prescribed by the statute for exercise of discretion by the Court.
18. It is by now well settled that gravity of the offence is one of the major relevant circumstances for quantum of sentence to be imposed upon the offender. In the case of heinous crime, maximum sentence may be called for, whereas if gravity of the offence is less, it may call for the sentence for lesser period or minimum sentence. There cannot be any straight-jacket formula, but on the aspect of proportionality of the punishment and sentence, the aforesaid are the broad principles. The circumstances as they have come on record go to show that the victim and the accused had love affairs. The victim had dispute with her family members i.e. parents and, therefore, she had voluntarily left home. She wanted to commit suicide, but the accused due to love affairs mentally supported her and accompanied her to move at another place and it has been rightly found by learned Sessions Judge that the case for offence under sections 363 and 366 of Indian Penal Code was not proved. It is in this light of the evidence that the accused psychologically supported the victim not to commit suicide even if she was desirous to be away from her parents and also provided shelter at the place of his sister, the gravity of the offence is to be considered. It is true that psychological support or existence of love affairs is not the licence to commit rape, but at the same time, the conduct is considered, in the medical history given before the Doctor and that there was no shouting or serious resistance by the victim at the time of incident. Therefore, it cannot be said that gravity of offence is to the ultimate level keeping in view the facts and circumstances that the accused and the victim had love affairs. Considering the facts and circumstances of the case, we find that it was a case where learned Sessions Judge could consider for imposition of minimum sentence of 7 years subject to further aspect as stated hereinafter, but we do not agree with the contention of learned APP that the case did call for imposition of sentence of life imprisonment or imprisonment for 10 years.
19. Therefore, we find that there is substance in the appeal preferred by the State for enhancement of sentence, but such can be to the extent of minimum sentence provided and not for the imprisonment for life or imprisonment for 10 years. Our aforesaid observation is not in exclusion of discretion available to the Court for reduction of the sentence less than minimum keeping in view the special facts and circumstances, but including the power available with the Court to impose sentence less than minimum by recording of special reasons for such purpose.
20. Therefore, aspect would require further consideration as to whether learned Sessions Judge was justified in imposing the sentence less than minimum in view of the reasons stated by learned Sessions Judge or not and further if no sufficient reasons were recorded by learned Sessions Judge for imposition of the sentence less than minimum, whether any other facts and circumstances exist for imposition of the sentence less than minimum or not.
21. A perusal of the reasons recorded by learned Sessions Judge on the aspect of sentence shows that three grounds had weighed with learned Sessions Judge, i.e. (i) the victim had left home on her own, (ii) rape was committed once only and (iii) conduct of the victim. In our view, none of the aforesaid reasons could be said as valid grounds for imposition of the sentence less than minimum prescribed for the simple reason that leaving of home by the victim herself has relevance for commission of crime for offence under sections 363 and 366 of Indian Penal Code for which acquittal is already granted by learned Sessions Judge. The ground of commission of rape once only is absurd on the face of it. By no stretch of discretion available, one can say that if rape is committed once, it would be a case for imposition of the sentence less than minimum. Therefore, we find that on the said aspect, learned Sessions Judge has committed grave error. On the aspect of conduct of the victim, learned Sessions Judge has not at all recorded satisfactory reasons about which conduct of the victim and in what manner, it can be said as valid for imposition of the sentence less than minimum prescribed. Hence, we are not at all satisfied with the reasons recorded by learned Sessions Judge for imposition of the sentence upon the accused less than minimum prescribed by section 376 of Indian Penal Code.
22. The aforesaid would lead us to further examine as to whether there are any special circumstances which can be recorded as valid reasons for imposition of the sentence less than minimum or not.
23. At this stage, it may also be recorded that learned counsel for the accused appellant contended that the accused would be entitled to the benefit of set off for the period during which he remained as under trial prisoner of another case being Sessions Case No.65 of 2009. He submitted that in connection with another Sessions Case No.65 of 2009, the accused was arrested on 5.12.2008 and thereafter, he was not granted bail and remained in jail and he has been subsequently acquitted on 3.11.2010, but for the fact that he has been convicted on 19.5.2010 in the present case, he is not praying for set off upto 3.11.2010, but at least upto 19.5.2010, i.e. upto the date on which the accused has been convicted in the present case. He also submitted that the accused in the present case was arrested on 23.10.2005 and he came out from the custody on bail on 22.2.2006, but it is on account of another Sessions Case No.65 of 2009, he was again arrested on 4.12.2008. The contention of learned counsel for the accused appellant is that as per the provisions of section 428 of the Code, the accused is entitled to the period of set off during the period when he remained in custody as undertrial prisoner. He submitted that as per section 428 of the Code, the accused is entitled to the period of set off of the period of detention undergone by him during investigation, inquiry or trial of the same case and in the submission of learned counsel for the accused appellant, such benefit should be available to the person who has undergone detention may be in another case where he remained in custody and thereafter acquitted. He submitted that essential purpose is to see that the convict has undergone detention during the investigation, inquiry and trial is ameliorated for the period undergone by him when he is ultimately convicted. He submitted that if such benefit is available of set off to a person when he is convicted, the same benefit should be made available to a person who has been subsequently acquitted in a different case because a person who has been acquitted after undergoing detention as undertrial prisoner stands on better footing in comparison to one who is convicted in the same case or even another case. He submitted that section 427 of the Code does provide for power with the Court to observe for undergoing of sentence concurrently even for different case and, therefore, in his submission, as the accused remained in custody as undertrial prisoner in respect of another Sessions Case No.65 of 2009 for the period from 4.12.2008 to 19.5.2010, the accused would be entitled to the benefit of set off in the present case. In the submission of learned counsel for the accused appellant, learned Sessions Judge at the relevant point of time when he convicted the accused and imposed the sentence upon the accused on 19.5.2010, such circumstance did not exist because acquittal is on 3.11.2010 in Sessions Case No.65 of 2009. However, he submitted that even if it is circumstance post conviction, this Court sitting in appeal can extend the benefit of set off to the convict. He submitted that aforesaid facts were stated in Criminal Misc. Application No.10272 of 2011 for suspension of sentence and regular bail and the said application though was withdrawn on 23.1.2012, the question raised in the said application for set off has not been decided. Therefore, he submitted that this Court at the time of final decision in the appeal may decide the question of entitlement of the accused appellant for set off of the period of detention as undertrial prisoner in another case. He also submitted that had the bail bond in the present case was cancelled on account of arrest of the accused on 4.12.2008, he would have been entitled to set off in the present case for the period from 4.12.2008 till 19.5.2010, but merely because the bail bond was not cancelled, the accused cannot be deprived of the benefit of set off available under section 428 of the Code. He submitted that it was the duty of the Court to cancel the bail because since the accused was already arrested on 4.12.2008 and was in custody in Sessions Case No.65 of 2009. In the submission of learned counsel for the accused appellant, it was the duty of the then Public Prosecutor to bring it to the notice of the Court for cancellation of the bail and lapse on the part of the Public Prosecutor could not be said as valid ground to deprive the accused from the benefit of section 428 of the Code. Hence, learned counsel for the accused appellant submitted that the benefit be extended to the accused as available under section 428 of the Code to any accused when he is convicted in the same case.
24. The aforesaid contention would not detain us further since the issue is no more res-integra. Section 428 of the Code reads as under.
“428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.- Where an accused person has, on conviction, been sentenced to imprisonment for a term [not being imprisonment in default of payment of fine] the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
[Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section.]”
25. The language of section is clear and unambiguous. For application of Section 428 of the Code and for availability of the benefit, requirement is that the accused should have been convicted in the same case. The Apex Court in the recent decision in the case of Atul Manubhai Parekh Vs. Central Bureau of Investigation, [(2010) 1 SCC 603] had occasion to consider the said aspect as to whether a person who has been convicted in several cases and has suffered detention or imprisonment in connection therewith would be entitled to set off in separate case for the period of detention or imprisonment undergone by him in other case. The Apex Court, after considering all its earlier decisions, has observed at paragraph 14 thus :
“Wording of Section 428 is, in our view, clear and unambiguous. The heading of the section itself indicates that the period of detention undergone by the accused is to be set off against the sentence of imprisonment. The section makes it clear that the period of sentence on conviction is to be reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. It is quite clear that the period to be set off relates only to pre-conviction detention and not to imprisonment on conviction.”
The Apex Court further observed at paragraphs 15 to 19 as under.
“15. Let us test the proposition by a concrete example. A habitual offender may be convicted and sentenced to imprisonment at frequent intervals. If the period of pre- trial detention in various cases is counted for set-off in respect of a subsequent conviction where the period of detention is greater than the sentence in the subsequent case, the accused will not have to undergo imprisonment at all in connection with the latter case, which could not have been the intention of the legislature while introducing Section 428 in the Code in 1973.
16. The reference made in the several decisions cited before us to Section 427 CrPC appears to be a little out of focus since the same deals with several sentences passed in the same case against the same accused on different counts which are directed to run concurrently. Section 428 CrPC deals with a different situation, where the question of merger of sentence does not arise and the period of set-off is in respect of each separate case and the detention undergone by the accused during the investigation or trial of such case.
17. The philosophy of Section 428 CrPC has been very aptly commented upon by this Court in Govt.of A.P. v. Anne Venkatesware in the following terms : (SCC p.303, para 5) “5. ... Section 428 provides that the period of detention of an accused as an undertrial prisoner shall be set off against the term of imprisonment imposed on him on conviction.”(emphasis supplied)
18. In fact, a similar situation arose in Maliyakkal Abdul Azeez v. Collector wherein it was sought to be argued on behalf of the petitioner that he was entitled to the benefit of set-off under Section 428 CrPC for the period of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. While deciding the said case, the Hon'ble Judges observed that Section 428 CrPC had been brought on the statute book for the first time in 1973 and was incorporated in the light of the proposal put forward by the Joint Select Committee which noticed that in many cases the accused persons were kept in prison for a very long period as undertrial prisoners and in some cases the period spent in jail by undertrial prisoners far exceeded the sentence of imprisonment ultimately awarded. It was also noticed by the Select Committee with concern that a large number of prisoners in the overcrowded jails of the country were undertrial prisoners and that Section 428 CrPC was introduced to remedy the unsatisfactory state of affairs by providing for setting off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on the accused.
19. The decision in Maliyakkal Abdul Azeez was rendered after the decision in Najakat Alia case and we respectfully follow the same as it reiterates the law laid down in the earlier cases such as in Anne Venkatesware, Raghbir Singh and Champalal Punjaji Shah.”
In view of the language of section 428 of the Code read with the aforesaid recent decision of the Apex Court, it is clear that the accused can claim the benefit of section 428 of the Code only in a case where he has been convicted in the same case.
26. Even if the contention of the learned counsel for the accused appellant is considered for the sake of examination, then also, the accused is not claiming the set off for the period of detention as undertrial prisoner in the same case and for such detention in the same case, the benefit is already granted by the learned Sessions Judge. However, for additional benefit of set off as under trial prisoner in another case, such benefits are outside the scope and ambit of section 428 of the Code. Therefore, the contention of learned counsel for the accused appellant for extending the benefit of set off for the period of detention as undertrial prisoner in another case i.e. Sessions Case No.65 of 2009 cannot be accepted.
27. An attempt was made to contend that if the accused is convicted for any offence, he is entitled to set off as per the provisions of Section 427 of the Code since the Court has power to observe that the sentence would be undergone concurrently if convicted in more than one case, and therefore there is no reason for deprivation of the benefit to the accused when he is undergoing period of detention and subsequently he has been acquitted. In our view the contention cannot be countenance for two reasons, one is that the language of section 428 of the Code is clear and unambiguous that the said benefits are available only when there is conviction in the same case and another is that constitutional validity or validity of section 428 of the Code is not an issue to be examined, in the present case. It is by now well settled that when the language of section or any statute is clear and unambiguous, the same is to be considered as it exists without stretching any further on the said aspect. The entitlement of the benefit to the accused who has been convicted in two cases has been considered in the above referred recent decision of the Apex Court in the case of Atul Manubhai (supra) and it made clear that it is only when the accused is convicted for the same case, section 428 of the Code would apply and the benefit would be available, but not in other case. If such interpretation is accepted, it may result into conferring the benefit to the offender which has not been expressly granted by the Parliament while enacting the Code.
28. The aforesaid would lead us to further examine as to whether there are any other special circumstances which can be said as valid for imposition of the sentence less than minimum prescribed as ultimately imposed by learned Sessions Judge or not. Learned counsel for the accused appellant did contend that the victim after the incident has married and she is settled with her husband, but he fairly stated that such marriage has taken place as per the instructions of the accused after his conviction. Learned APP stated that he is not having any information as to whether the victim has married after conviction and is staying with her husband or not.
29. In our view, there is peculiar circumstance. It has come on record for which the prosecution also cannot dispute that hymen of the victim is not raptured during commission of alleged sexual intercourse/crime. This would show that if the accused wanted to take more undue advantage of the position of the victim, he could have done so. Therefore, such being peculiar circumstances, we find that imposition of the sentence of 5 years being less than minimum prescribed does not call for interference.
30. Under the circumstances, the appeal preferred by the accused appellant being Criminal Appeal No.1144 of 2010 is dismissed. Criminal Appeal No.1408 of 2010 shall also stand disposed of accordingly.
(Jayant Patel,J) (Mohinder Pal,J) pathan