Padami Lachchu vs State of Chhattisgarh

Sanjay K. Agrawal, J

This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the impugned judgment dated 22/02/2016 passed by learned Special Additional Sessions Judge (FTC), South Bastar Dantewada in Special Sessions Trial No. 01/2014 whereby he has been convicted for Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter the Act of 2012) read with Section 376 of IPC and has been sentenced to undergo imprisonment for life for each of the offence with a direction to run both the sentences concurrently.

Case of the prosecution, in brief, is that on 25/11/2013 at about 3 PM, the appellant herein committed sexual intercourse with the victim, aged about 3 years and thereby, committed the aforesaid offence.

Further case of the prosecution is that Chhotu Barse (PW-1) lodged a report at Police Station Sukma that appellant used to stay at the house of his brother Raju Barse (PW-3) and worked for him. On the date of the incident at about 3 PM, Chhotu Barse (PW-1) was at the shop of Arjun Podiyami (PW-2) and suddenly, he heard the shouts and cries of his niece (victim herein) and when he reached the house of Raju Barse (PW-3) and went inside the room, he saw that appellant was committing sexual intercourse with the victim, aged about 3 years. On the said report, first information report (Ex. P/1) was registered against the appellant and the matter was taken into investigation. After taking consent from the parents of the victim vide Ex. P/3, she was subjected to medical examination which was conducted by Dr. Manish Goyal (PW-10) and her MLC report (Ex. P/10) was found positive. Frock and underwear of the victim were seized vide Ex. P/4 and P/5 and it was sent for forensic examination and as per FSL report (Ex. P/22), human blood was found in both of these articles. After due investigation, the appellant was charge-sheeted for offence punishable under Section 6 of the Act of 2012 and Section 376 of IPC which was committed to the Court of Special Judge for trial in accordance with law. The appellant abjured his guilt and entered into defence.

In order to bring home the offence, prosecution examined as many as 11 witnesses and brought on record 22 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence and neither brought any document on record.

Learned trial Court, after appreciation of oral and documentary evidence on record, finding the appellant to be the author of crime in question, proceeded to convict him for offence punishable under Section 6 of the Act of 2012 read with Section 376 of IPC and sentenced him as aforesaid.

Mr. Basant Kaiwartya, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence prosecution has not been able to prove the offence beyond reasonable doubt. In alternative, he would submit that the minimum sentence as stood on the date of offence is 10 years, therefore, this appeal be allowed and the appellant be sentenced to the period already undergone as he is in jail since 26/11/2013.

Per contra, Mr. Sameer Uraon, learned State counsel, would submit that prosecution has been able to prove the offence beyond reasonable doubt, as such, the trial Court has rightly convicted the appellant for the offence in question, therefore, it be maintained by dismissing the instant appeal.

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

The first question for consideration is whether the trial Court is justified in convicting the appellant for the offence in question ?

Chhotu Barse (PW-1) and Arjun Podiyami (PW-2) have been cited as eye-witnesses by the prosecution. A perusal of their statements would show that at the time of the incident, Chhotu Barse (PW-1) was standing at the house of Arjun Podiyami (PW-2) and suddenly, they heard the cries of the victim coming from the house of Raju Barse (PW-3) and when they reached to his house and went inside the room, they found that appellant was committing sexual intercourse with the victim and she was injured. Though they have been subjected to some extent of cross-examination but nothing has been extracted to disbelieve their testimony. Moreover, victim was also subjected to medical examination and the MLC report (Ex. P/10) has been found positive and it has been proved by Dr. Manish Goyal (P.W.-10) and furthermore, the frock and underwear of the victim were seized and they were sent for forensic examination and as per the FSL report (Ex. P/22), human blood has been found in both of these articles. As such, considering the entire evidence available on record, particularly considering the statements of eye-witnesses Chhotu Barse (PW-1) and Arjun Podiyami (PW-2) and further considering the MLC report (Ex. P/10) proved by Dr. Manish Goyal (PW-10) as well as the FSL report (Ex. P/22), we are of the considered opinion that the trial Court has rightly convicted the appellant for the offence in question. We hereby affirm the conviction of the appellant as recorded by the trial Court for offence punishable under Sections 6 of the Act of 2012 read with Section 376 of IPC.

Now the next question for consideration is whether, as claimed by learned counsel for the appellant, the appellant is entitled for reduction in the sentences of life imprisonment as awarded by the trial Court for offence punishable under Section 6 of the Act of 2012 and Section 376 of IPC ?

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 the fact that the age of the appellant was 27 years on the date of the offence and further considering that minimum sentence for offence punishable under Section 6 of the Act of 2012 (prior to the amendment w.e.f. 16/08/2019) was 10 years as well as the minimum sentence for offence punishable under Section 376 of IPC is also ten years, we hereby award the sentence of 15 years to the appellant for offence punishable under Section 6 of POCSO Act and for offence punishable under Section 376 of IPC, in place of the sentences of life imprisonment as awarded by the trial Court, by virtue of Section 42 of the Act of 2012.

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

Let a certified copy of this judgment be sent to the concerned trial Court along with the original records as well as to the jail authorities for information and compliance.