1982 INSC 0162
                                               Fazal Rab Choudhary

                                                           Vs

                                                    State of Bihar

                                        Criminal Appeal No. 479 of 1982

                                   (D. A. Desai, A. P. Sen, Baharul Islam JJ)

                                                      13.09.1982

                                                        ORDER

1. Special leave limited to the question of sentence only.

2. Appellant is convicted for having committed an offence under Section 377, IPC, in that he
committed and unnatural offence upon a young boy who had come to his house to take a syringe.
The learned Magistrate convicted him for the aforementioned offence and sentenced him to suffer
RI for three years. While recording the order of sentence, the learned Magistrate observed :

                  Although no previous conviction is proved against the accused but I think accused is
                  entitled to get any benefit of probation in this case because offence is serious and
                  heinous. I, therefore, sentence the accused to undergo RI for three years.

The appellant preferred an appeal which was heard by Additional Judicial Commissioner, Ranchi.
The appellate court affirmed the finding of the trial court and accordingly confirmed the conviction.
The learned Judge has not discussed the question of adequacy or otherwise of the sentence imposed
upon the appellant. When the matter was taken to the High Court in revision at the instance of the
appellant, the learned Judge of the High Court dismissed the revision in limine, observing that the
case has been proved and the revision is without merits.

3. The offence is one under Section 377, IPC, which implies sexual perversity. No force appears to
have been used. Neither the notions of permissive society nor the fact that in some countries
homosexuality has ceased to be an offence has influenced our thinking. However in judging the
depravity of the action for determining quantum of sentence, all aspects of the matter must be kept
in view. We feel there is some scope for modification of sentence. Having examined all the relevant
aspects bearing on the question of nature of offence and quantum of sentence, we reduce the
substantive sentence to RI for six months. To the extent of this modification in the sentence, the
appeal is allowed.

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