Kuber Ram vs State Of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal preferred by the appellant herein under Section 374(2) of the CrPC is directed against the impugned judgment of conviction and order of sentence dated 8-1-2014 passed in Sessions Trial No.148/2012 by the Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj, by which the appellant has been convicted under Sections 376 & 506 Part-II of the IPC and sentenced to undergo imprisonment for life & pay a fine of Rs. 500/-, in default, additional rigorous imprisonment for six months and rigorous imprisonment for three years & fine of Rs. 500/-, in default, additional rigorous imprisonment for six months, respectively.

Case of the prosecution, in short, is that on 13-3-2012 at 07.00 p.m., at Village Kodwa, Police Station Kusmi, the appellant has threatened the major victim and committed sexual intercourse with her and thereby committed the offence. It is the further case of the prosecution that the victim's husband has deserted her, therefore, she was living separately along with her parents in Village Kodwa and on the fateful day, she has gone for work as daily wager along with Bholaram (PW-2) and his wife Sakun Devi (PW-4), then the appellant under the influence of liquor, caught hold of the victim and taken her near Brick factory of Pankeshwar and committed sexual intercourse with her. Immediately, the matter was informed to the police pursuant to which FIR was registered and the victim was medically examined vide Ex.P-10 by the Community Health Centre, Shankar Garh, District Surguja.

After due investigation, charge-sheet was filed against the appellant for offence under Sections 376 & 506 Part-II of the IPC before the Court of Chief Judicial Magistrate, Ramanujganj and the case was committed to the Court of Sessions, Balrampur-Ramanujganj from where the learned Additional Sessions Judge, Ramanujganj received the case on transfer for trial.

The prosecution in order to bring home the offence, examined as many as 13 witnesses in support of its case and exhibited 14 documents Exs.P-1 to P-14. Defence has not examined any witness in its support, however, exhibited one document Ex.D-1. Statement of the accused / appellant was recorded under Section 313 of the CrPC in which he abjured the guilt and pleaded innocence and false implication and claimed to be tried.

The trial Court after completion of trial and upon appreciation of oral and documentary evidence, by its impugned judgment, convicted and sentenced the appellant as mentioned in the opening paragraph of this judgment against which he has preferred the instant appeal under Section 374(2) of the CrPC.

Mr. Dhiraj Kumar Wankhede, learned counsel appearing for the appellant, would submit that the victim is major and consenting party and as such, offence under Section 376 of the IPC has not been proved beyond reasonable doubt. Even if conviction is upheld, the appellant is already in jail for more than ten years and the minimum sentence as stood on the date of offence is seven years, whereas he had already suffered ten years of imprisonment in jail, therefore, the period already undergone by the appellant would be just and sufficient sentence for the appellant.

Ms. Ruchi Nagar, learned Deputy Government Advocate appearing for the State/respondent, would support the impugned judgment and submit that the prosecution has brought home the offences against the appellant and has proved the case beyond reasonable doubt and thus, the appellant has rightly been convicted under Sections 376 & 506 Part-II of the IPC and sentenced to suffer imprisonment for life.

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

It is admitted position on record that the victim on the date of offence was major and a deserted woman living and staying with her parents and the appellant was seen by Sakun Devi (PW-4) while dragging the victim and thereafter, the appellant is said to have committed sexual intercourse with the victim (PW-1). In the statement before the court, the victim has supported the case of the prosecution that the appellant has committed sexual intercourse with her after dragging her, under the influence of liquor which is supported by Bholaram (PW-2) & Sakun Devi (PW-4). Dr. Smt. Jagrani Kujur (PW-9) has examined the victim medically after the report and has noticed number of injuries all over the body viz., one contusion and three scratches which are signs of struggle on the part of the victim. Though no chemical analysis report is available on record, but taking into consideration the statement of the victim supported by Dr. Smt. Jagrani Kujur (PW-9) and further taking into consideration the statements of Bholaram (PW-2) & Sakun Devi (PW-4), it is held that the trial Court has rightly held that the appellant has committed sexual intercourse with the victim and thereby committed the offence, and we hereby affirm the conviction as recorded by the trial Court.

Now, the next question is, whether the trial Court is justified in sentencing the appellant to undergo imprisonment for life under Section 376 of the IPC?

Section 376 of the IPC suffered amendment with effect from 3-2-2013. Prior to amendment, Section 376 states 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 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 unless the women raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of 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.

(2) Whoever,—

(a) being a police officer commits rape-

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed, or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:”

A careful perusal of Section 376 of the IPC (prior to amendment), would reveal that 7 years minimum sentence has been prescribed which may extend to ten years. The Supreme Court in the matter of Vipul Rasikbhai Koli Jankher v. State of Gujarat Cr.A.No.407 of 2022, decided on 11-3-2022 considering the decisions 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 has held that 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, and in that case sentenced the appellant therein for a term of 15 years’ imprisonment.

Following the decision of the Supreme Court in Vipul Rasikbhai Koli Jankher (supra), ends of justice would be served if the appellant is sentenced for a period of 11 years’ imprisonment, as he is in jail from 23-3-2012, in place of the sentence of life imprisonment as awarded by the trial Court.

Consequently, the appeal is partly allowed. Affirming the conviction of the appellant under Sections 376 & 506 Part-II of the IPC, we hereby sentence him to 11 years’ imprisonment i.e. the period already undergone by him. The appellant is in jail. He be released forthwith, if not required in any other offence.