Balla Bandhe vs State Of Chhattisgarh

Sanjay K. Agrawal, J

(1) This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 10.09.2013, passed by the Court of learned Addl. Sessions Judge, Bhatapara, District Raipur (C.G.) in S.T. No.03/2013, whereby the appellant-accused has been convicted for offences: under Section 376 of IPC and sentenced to undergo life imprisonment with fine of Rs.2,000/- and, in default of payment of fine, additional rigorous imprisonment of 01 year; under Section 450 of IPC and sentenced to undergo rigorous imprisonment of 05 years with fine of Rs.1,000/- and, in default of payment of fine, additional rigorous imprisonment of 06 months; under Section 506(Part-II) of IPC and sentenced to undergo rigorous imprisonment of 01 year with fine of Rs.500/- and, in default of payment of fine, additional rigorous imprisonment of 02 months and under Section 323 of IPC and sentenced to undergo rigorous imprisonment of 06 months with fine of Rs.500/- and, in default of payment of fine, additional rigorous imprisonment of 02 months.

(2) The case of the prosecution, in short, is that on 16.01.2013 at about 10:00 PM in the night, at Village Bardih, the appellant-accused unauthorizedly trespassed the house of the prosecutrix/victim (PW-01), who at the relevant point of time was aged about 75 years, and committed sexual intercourse with her and, thereby, committed the offences under Sections 376, 450, 506 (Part-II) & 323 of IPC.

(3) The further case of the prosecution, in brief, is that: prosecutrix/victim (PW-01) used to live alone at Village Bardih, as her husband died 05-06 years ago; prosecutrix/victim (PW-01) was issueless, therefore, her nephew, namely, Santkumar (PW-11) used to take care of her; on the date of incident i.e. on 16.01.2013 at about 07:00 PM, prosecutrix/victim (PW-01) went to sleep after having her food/dinner and, at about 10:00 PM in the night, accused-appellant unauthorizedly entered into her house and slept with her after taking out his clothes; thereafter, appellant assaulted the prosecutrix/victim (PW-01), threatened her and further caused bite injury on her breast by forcibly tightening her hands and legs and, ultimately, committed sexual intercourse (rape) with her; thereafter, the prosecutrix/victim (PW-01) in the night itself went outside from her house and informed about the said incident to Rajkumar (PW-10), who in turn, informed the said incident to Santram (PW-11) and Firtu (PW-03). Thereafter, around 03:00 AM in the early morning, the matter was reported to the police, pursuant to which, FIR (Ex.P/13) was registered; thereafter, spot map was prepared vide Ex.P/01 and from the place of occurrence/incident, one blanket and a piece of ‘sari’ of the prosecutrix/victim (PW-01) were seized vide Ex.P/03 & P/04 respectively; further, one full-pant of the accused-appellant was also seized by the police vide Ex.P/05. Thereafter, accused-appellant was arrested vide Ex.P/10 and ‘panchnama’ was also prepared vide Ex.P/12. The prosecutrix/victim (PW-01) was medically examined by Dr. Anita Verma (PW-08) vide Ex.P/07 and her vaginal slides and swab were seized vide Ex.P/16. Further, the accused-appellant was also medically examined vide Ex.P/15. The aforesaid seized articles were sent for FSL examination and in the FSL report (Ex.P/C-1) it was opined that stains of semen/human sperm were found on the blanket seized from the spot vide Ex.P/03, as also on the vaginal slides and swab of the prosecutrix/victim (PW-01) seized vide Ex.P/16. Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet in the Court of Judicial Magistrate First Class, Simga (CG) and, thereafter, the case was committed to the Court of Sessions for trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

(4) The prosecution in order to prove its case examined as many as 15 witnesses and exhibited 19 documents apart from FSL report (Ex.P/C-1), whereas the appellant-accused in support of his defence has neither examined any witness nor exhibited any document.

(5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant for offences under Sections 376, 450, 506(Part-II) & 323 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

(6) Mr. Dhirendra Mishra, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the aforementioned offences, as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that the appellant is innocent and has been falsely implicated. Though the maximum sentence of life imprisonment has been awarded by the learned trial Court, but neither any special reason nor any mitigating circumstance has been recorded to connect the appellant with the said offences. He also submits that at the time of alleged incident, the appellant was aged about 28 years and it was his first offence, which aspect has not at all been considered by the learned trial Court. Further, the prosecutrix/victim (PW-01) died during the course of trial and her cross-examination could not be done, as such, her version cannot be relied upon. Therefore, he submits that looking to the facts and circumstances of the present case, the sentence of life imprisonment awarded to the appellant by the learned trial Court deserves to be reduced. Hence, the present appeal deserves to be allowed in full or in part.

(7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. The learned trial Court has rightly convicted the appellant for the offences mentioned hereinabove. It is not the case where sentence of appellant requires to be reduced, as the accused-appellant has committed rape with an old aged widow. Thus, the present appeal deserves to be dismissed.

(8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

(9) In view of the above, two questions arise for consideration before us: (i) whether the learned trial Court has rightly held guilty to  the appellant for offences under Sections 376, 450, 323 & 506 (Part-II) of IPC ? and, if yes, (ii) whether the punishment awarded to the appellant for the said offences is in accordance with law ?

(10) In order to prove the offences under Sections 376, 450, 323 & 506 (Part-II) of IPC, the prosecution has examined the prosecutrix/victim (PW-01), who in her statement before the Court has clearly stated that the appellant has committed sexual intercourse with her, as on the fateful day, in the night hours while she was sleeping the accused-appellant unauthorizedly entered into her house, undressed himself and slept alongwith her and, thereafter, the accused-appellant assaulted her, threatened her and gave a bite injury on her breast and, in furtherance, thereof, committed sexual intercourse (rape) with her, which incident was informed by her to Rajkumar (PW-10). The aforesaid statement of the prosecutrix/victim (PW-01) was recorded on 01.05.2013, but, due to her sudden ill-health the matter was adjourned for 02.05.2013 and, thereafter, time to time other witnesses were examined, but the prosecutrix/victim (PW-01) could not be examined though she was summoned on 19.08.2013 and, ultimately, she died on 24.05.2013, which fact is recorded in the order-sheet of the learned trial Court dated 29.08.2013. Thus, the prosecutrix/victim (PW-01) could not be examined. Apart from this, Dr. Anita Verma (PW-08), who has medically examined the prosecutrix/victim (PW-01) and gave MLC report (Ex.P/07), has clearly stated before the Court that she has seen sign of struggle, number of small contusions over left knees and breast and a bit injury on breast of the prosecutrix/victim (PW-01). As such, Dr. Anita Verma (PW-08) has supported the case of the prosecution and she has further collected the vaginal slides and swab of the prosecutrix/victim (PW-01) and handed over the same to the police to be sent for FSL examination. Not only this, in the FSL report (Ex.P/C-1) stains of semen/human sperm are found on the blanket seized from the spot vide Ex.P/03 and also on the vaginal slides and swab of the prosecutrix/victim (PW-01). Therefore, though the prosecutrix/victim (PW-01) could not be examined on account of her death, but the medical evidence available on record is sufficient to connect and hold guilty the appellant for the offences in question. Accordingly, we hold that the learned trial Court is absolutely justified in holding the appellant guilty for offences under Sections 376, 450, 323 & 506 (Part-II) of IPC.

(11) Now the question for consideration would be whether the punishment awarded to the appellant for the said offences is in accordance with law ?

(12) It has been vehemently contended by the learned counsel for the appellant that the maximum sentence of life imprisonment has been awarded to the appellant for the offence under Section 376 of IPC. Prior to the amendment in the year 2013 (Act 13 of 2013) i.e. prior to 03.02.2013, Section 376 of IPC provides that if a person 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 and which 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 terms 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 women raped is his own wife and is not under twelve years of age, in which, cases, he shall be punished with imprisonment or 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 sentence of imprisonment for a term of less than seven years.”

(12) Further, the learned trial Court relied upon the decision of the Supreme Court in the matter of State of M.P. v. Babulal 2008 (1) SCC 234, in which it has been held as under:

“30. Once a person is convicted for an offence of rape, he should be treated with a heavy hand. An undeserved indulgence or liberal attitude in not awarding adequate sentence in such cases would amount to allowing or even to encouraging “potential criminals”. The society can no longer endure under such serious threats. Courts must hear the loud cry for justice by society in cases of heinous crime of rape and impose adequate sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. (Dinesh v. State of Rajasthan (2006) 3 SCC 771).”

(13) Reverting to the facts of the present case in light of the above-quoted provision contained under Section 376 (unamended) of IPC and decision of the Supreme Court in the matter of Babulal (supra), it is quite vivid that in the instant case the appellant was aged about 28 years at the time of commission of offence, i.e. on 16.01.2013, which is approximately 10 years from today and further considering that the prosecutrix/victim (PW-01) died on 24.05.2013 during the course of trial and her cross-examination could not be done, therefore, we are of the considered opinion that 10 years’ jail sentence would be adequate punishment in the instant case for committing offence under Section 376 of IPC.

(14) In that view of the matter, while affirming the conviction of the appellant under Section 376 of IPC, we award him sentence for 10 years’ rigorous imprisonment by reducing it from life imprisonment, but the fine amount imposed by the learned trial Court shall remain intact and rest of the conviction under Sections 450, 323 & 506 (Part-II) of IPC and their respective sentences awarded by the learned trial Court to the appellant are also hereby affirmed. Accordingly, as the appellant is in jail since 17.01.2013, i.e. almost 10 years, he be released from jail forthwith, if not required in any other matter.

(15) Consequently, this criminal appeal is allowed to the extent indicated herein-above.