Durga Gond vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 28.09.2012 passed by learned Sessions Judge, Bilaspur, in Sessions Trial No.176/ 2011, by which, the appellant herein has been convicted for the offence under Section 376 (unamended as Section 376 suffered amendment w.e.f. 03.02.2013) of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.1000/-, in default of payment of fine amount, 6 months additional simple imprisonment.

Case of the prosecution, in brief, is that on 30.07.2011 at about 11:00 p.m. at village Lakhasar, Police Station Hirri, the appellant committed sexual intercourse with his daughter/ victim, who was aged about 8 years on the date of offence; thereby the offence has been committed. Further case of the prosecution is that, on 30.07.2011, mother of the victim Neeta had gone to village Khamhariya with her husband/appellant, but the appellant came back. Then on the next day, when she came back to her house, the victim informed her that yesterday night at about 11:00 p.m., her father i.e. appellant herein committed rape with her, by which she suffered bleeding. Thereafter, the complainant/ mother of the victim informed the matter to her in-laws and then the matter was reported to the police and FIR was registered vide Ex.P-1. Thereafter, consent of victim’s mother Neeta and that of the victim was taken for medical examination of the victim and she was medically examined by Dr. S.Thakur (PW-10) vide Ex.P-18, according to which the victim was subjected to sexual intercourse. After due investigation, the appellant was charge-sheeted for the aforesaid offences, which was ultimately committed to the Court of Sessions for trial in accordance with law, in which the accused abjured his guilt and entered into defence stating that he has been falsely implicated and he has not committed any offence.

In order to bring home the offence, prosecution examined as many as 10 witnesses and exhibited 19 documents and the appellant-accused in support of his defence has neither examined any witness, nor exhibited any documents.

The trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant herein for the offences as mentioned in the opening paragraph of the judgment, against which the present appeal has been preferred.

Mr. Varunendra Mishra, learned counsel for the appellant, would submit that only on the self-serving statement of the victim and mother of the victim, the appellant has been convicted; therefore, the impugned judgment is liable to be set aside. In alternative, he submits that since the appellant is in jail for more than 11 years, therefore, he may be sentenced to the period already undergone, as such, the appeal deserves to be allowed in part.

Mr. Sudeep Verma, learned State counsel, submits that considering the age of the victim who was minor less than 10 years on the date of offence and also the fact that the appellant being father committed sexual intercourse with his own daughter, the trial Court has rightly convicted the appellant for the aforesaid offences and therefore, the appeal deserves to be dismissed.

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

The age of the victim to be less than 10 years at the time of offence has not been questioned on behalf of the appellant and even otherwise, we find that the said finding that victim was less than 10 years on the date of offence is based on evidence available on record, which is neither perverse nor contrary to the record. Similarly, the victim in her statement before the Court has clearly stated that she was subjected to sexual intercourse by appellant in absence of her mother, which could not be contradicted though she has been subjected to some extent of cross-examination on behalf of the appellant. Even though the statement of the victim is supported by medical evidence and medical examination report of the victim Ex.P-18. Accordingly, we hereby affirm the said finding.

Now, the next question for consideration is, whether, as claimed by learned counsel for the appellant, the appellant is entitled for reduction of sentence awarded by the learned trial Court ?

In this regard, learned counsel for the appellant would submit that in light of the decision rendered by the Supreme Court in the matter of Vipul Rasikbhai Koli Jankher v. State of Gujarat 2022 LiveLaw (SC) 288, the sentence awarded to the appellant by the trial Court is liable to be reduced.

The Supreme Court, in the matter of Vipul Rasikbhai (supra), has relied upon its earlier decisions rendered in the matters of Dharambir v. State of Uttar Pradesh (1979) 3 SCC 645 and Maru Ram v. Union of India (1981) 1 SCC 107 and held in paragraphs 7 and 8 as under :-

“7. In determining the quantum of sentence, the Court must bear in mind the circumstances pertaining to the offence and all other relevant circumstances including the age of the offender. The appellant has undergone actual imprisonment for a period of 11 years as on date. In Dharambir v. State of Uttar Pradesh (supra) a two-Judge Bench of this Corut specifically noted the impact of longer prison sentences on convicts who are young. Justice V R Krishna Iyer, speaking on behalf of the Court had noted the impact of prolonged incarceration:

“2. We, however, notice that the petitioners in this case are in their early twenties. We must naturally give thought to the impact on these two young lives of a life sentence which means languishing in prison for years and years. Such induration of the soul induced by indefinite incarceration hardens the inmates, not softens their responses. Things as they are, long prison terms do not humanise or habilitate but debase and promote recidivism. A host of other vices, which are unmentionable in a judgment, haunt the long careers of incarceration, especially when young persons are forced into cells in the company of callous convicts who live in sex-starved circumstances. Therefore, the conscience of the court constrains it to issue appropriate directions which are policy-oriented, as part of the sentencing process, designed to make the purpose of punitive deprivation of liberty, constitutionally sanctioned, is decriminalisation of the criminal and restoration of his dignity, self-esteem and good citizenship, so that when the man emerges from the forbidding gates he becomes a socially useful individual. From this angle our prisons have to travel long distances to meet the ends of social justice.”

In our view, the ends of justice would be met by directing that instead and in place of the sentence of life imprisonmnet which has been imposed for the conviction under Section 376, the appellant shall stand sentenced to a term of 15 years' imprisonment. We are not inclined to uphold the argument of the respondent-state that only the sentence of life imprisonment would meet the ends of justice. The principles of restorative justice finds place within the Indian Constitution and severity of sentence is not the only determinant for doing justice to the victims. In Maru Ram v. Union of India (supra), Justice V R Krishna Iyer had poignantly highlighted the linkages between victimology and restorative justice :

“74. ….. Some argument was made that a minimum sentence of 14 years' imprisonment was merited because the victim of the murder must be remembered and all soft justice scuttled to such heinous offenders. We are afraid there is a confusion about fundamentals in mixing up victimology with penology to warrant retributive severity by the back-door. If crime claims a victim criminology must include victimology as a major component of its concerns. Indeed, when a murder or other grievous offence is committed the dependants of other aggrieved persons must restore the loss of heal the injury is part of the punitive exercise. But the length of the prison term is no reparation to the crippled or bereaved and is futility compounded with cruelty. “Can storied urn or animated bust call to its mansion the fleeting breath ?” Equally emphatically, given perspicacity and freedom from sadism, can flogging the killer or burning his limbs or torturing his psychic being bring balm to the soul of the dead by any process of thanatology or make good the terrible loss caused by the homicide ? Victimology, a burgeoning branch of humane criminal justice, must find fulfillment, not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn. The State itself may have its strategy of alleviating hardships of victims as part of Article 41. So we do not think that the mandatory minimum in Section 433-A can be linked up with the distress of the dependents.

Following the decision of the Supreme Court in Vipul Rasikbhai (supra) and considering that the age of the accused/ appellant was 38 years on the date of offence and further considering that minimum sentence for offence punishable under Section 376 of I.P.C. (prior to its amendment) was 10 years and further considering the fact that there is no evidence on record that the appellant is hardened criminal or has committed jail offence during incarceration in jail and he is not likely to be a good citizen if sentence already awarded is reduced. In that view of the matter, we hereby award the sentence of 15 years to the appellant for offence punishable under Section 376 of I.P.C, however, the default sentence as awarded by the trial Court is maintained.

Accordingly, this criminal appeal is allowed to the extent indicated herein-above.

Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any.