Rajesh Tondar 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 25/02/2015 passed by learned Additional Sessions Judge (FTC), Bilaspur in Special Sessions Trial No. 222/2013 whereby he has been convicted and sentenced as under with a direction to run all the sentences concurrently :-

Conviction

Sentence

U/s 376(2)(i) of IPC (deleted with effect from 21/01/2018) & Section 4 of Protection of Children from Sexual Offences Act, 2012

Life imprisonment with fine of Rs. 5000/- in default of payment of fine additional R.I. for 6 month.

U/s 363 of IPC

R.I. for 3 years with fine of Rs. 1000/- in default of payment of fine, R.I. for 1 month.

U/s 366 of IPC

R.I. for 10 years with fine of Rs. 1000/- in default of payment of fine, R.I. for 1 month.

Case of the prosecution, in brief, is that the appellant herein abducted minor victim, aged about 14 years, from her legal guardians and on the pretext of marriage, committed sexual intercourse with her and thereby, committed the aforesaid offence.

Further case of the prosecution is that victim (P.W.-1) lodged a report at Police Station Chakarbhata that on the night of 12/05/2014, she was sleeping in the courtyard with her mother (P.W.-3) in separate cots and her father had left the house to attend a marriage. At about 12:30 AM, the appellant came inside her house and told her that her father had met an accident and he forcefully took her on her motorcycle near village Hardi and started outraging her modesty. When the victim tried to oppose, the appellant assaulted her with hands and fists and after threatening her to kill, he committed sexual intercourse with her. Thereafter, he left her near her house and absconded. Victim informed about the incidents to her relatives who took her home. On the said report, first information report was lodged against the appellant vide Ex. P/1 and nazri naksha was prepared vide Ex. P/3. Spot map was prepared by the Patwari vide Ex. P/5. Victim was subjected to medical examination which was conducted by Dr. Nilima Sharma (P.W.-2) and slides were prepared and her underwear was seized and it was sent for forensic examination. After due investigation, the appellant was charge-sheeted for offence punishable under Sections 363, 366, 376(2)(i) of IPC and Section 4 of POCSO Act which was committed to the Court of Sessions 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 10 witnesses and brought on record 27 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence and only brought one document on record.

Learned trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for offences punishable under Sections 376(2)(i), 363 and 366 of IPC and Section 4 of POCSO Act and sentenced him as aforesaid.

Mr. Dheerendhra Pandey, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences as there is no evidence on record upon which his conviction could have been based. 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 13/05/2014.

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 offences in question. He would further submit that apparently victim was aged about 14 years on the date of offence and in that view of the matter, the sentenced awarded by the trial Court is absolutely justified and 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 offences in question ?

Victim (P.W.-1), who was a minor aged about 14 years on the date of the offence, was examined before the Court and she has clearly supported the case of the prosecution. Thereafter, victim was also subjected to medical examination which was conducted by Dr. Nilima Sharma (P.W.-3) and in the MLC report (Ex. P/8), it is mentioned that there was swelling on her chest and her nose and scratches near her eyes. As such, considering the entire evidence available on record, particularly considering the statement of the victim (P.W.-1) as well as her MLC report (Ex. P/8), we are of the considered opinion that the trial Court has rightly convicted the appellant for the offences in question. We hereby affirm the conviction as recorded by the trial Court.

Now the next question for consideration is whether, as claimed by learned counsel for the appellant, the appellant is entitled for reduction in sentence awarded by the 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 the fact that the age of the appellant was 22 years on the date of the offence and it is not the case of the prosecution that it is likely that the appellant would convert himself into a hardened criminal further considering that minimum sentence for offence punishable under Section 4 of the POCSO Act at the time of offence was 7 years (enhanced to 10 years w.e.f. 16/08/2019), we hereby award the sentence of 10 years to the appellant for offence punishable under Section 4 of POCSO Act, in place of the sentence of life imprisonment as awarded by the trial Court, as he is in jail since 13/05/2014. However, the sentence for offence punishable under Sections 363 and 366 of IPC is hereby maintained along with the fine sentence and default sentences awarded by the trial Court in all the offences.

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 as well as the jail authorities for necessary information and compliance.