Sandresh Kumar 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 dated 30.11.2013 passed by learned Additional Sessions Judge (F.T.C.), Ambikapur, in Sessions Trial No.277/2012, by which the appellant herein has been convicted for the offences under Sections 363, 366, 342 & 376(1) of Indian Penal Code and sentenced as under :

Conviction

Jail Sentence

Fine sentence

Default sentence

Sec. 363 of I.P.C.

R.I. for 5 years

Rs.500/-

R.I. for 15 days

Sec. 366 of I.P.C.

R.I. for 5 years

Rs.500/-

R.I. for 15 days

Sec. 342 of I.P.C.

R.I. for 1 year

Rs.200/-

R.I. for 7 days

Sec. 376(1) of I.P.C.

Life Imprisonment

Rs.1000/-

R.I. for 1 month

Case of the prosecution, in short, is that on 16.05.2012 at 7:00 p.m. at Village Gorsa (Baigapara), P.S. Lundra, the appellant kidnapped the minor victim and confined her in the house of Gulab Panika and committed sexual intercourse with her; thereby the aforesaid offences have been committed.

It is the further case of the prosecution that on 16.05.2012, the appellant had visited the house of the victim to witness her uncle's marriage and in the night, finding her alone, the appellant caught hold of her and took her to the house of Gulab Panika and committed sexual intercourse with her. On the next day, it was informed to her mother Dhanaso (PW-2) and Rodhi Bai (PW-3) and thereafter the matter was reported by the victim (PW-1) and wheels of investigation started running and after medical examination vide Ex.P-8, the undergarments and slides were sent for FSL and in FSL report dated 15.05.2013, no sperm or semen was found on Articles A, B, C1 & C2. After usual investigation, the appellant was charge-sheeted for the aforesaid offences, and the case 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 11 witnesses and exhibited 16 documents and the appellant-accused in support of his defence has exhibited only one document as Ex.D-1.

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.

Learned counsel for the appellant submits that the appellant has not committed any offence and he has falsely been implicated. He further submits, even if the conviction is affirmed, the appellant is in jail for more than 10 years and therefore considering the age of the appellant, who was 20 years on the date of offence, he is entitled to be sentenced for the period already undergone.

Learned State counsel submits that the appellant has rightly been convicted for the aforesaid offences, as such, the impugned judgment is well merited and 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 victim (PW-1) was found to be minor on the date of offence vide Ex.P-3, which is proved by S.L.Gadhwal (PW-9) – Assistant Sub Inspector. Furthermore, the act of sexual intercourse has also been proved by the statement of the victim (PW-1), as she has complained swelling and redness over her vaginal part and she has also complained pain. Considering the statements of victim (PW-1), her mother Dhanaso (PW-2), Dr. Manju Ekka (PW-6) and Dr. Santosh Singh (PW-11), we are of the considered opinion that the trial Court has rightly convicted the appellant for the aforesaid offences. We do not find any illegality or perversity in convicting the appellant for the offences under Sections 363, 366, 342 & 376(1) of Indian Penal Code.

Now, it has been argued on behalf of the appellant that he was young boy, aged about 20 years, at the time of offence and the minimum sentence prescribed for the offence is seven years on that date; therefore, sentence be reduced for the period already undergone, which is opposed by the learned State counsel.

Section 376(1) of I.P.C. prior to its amendment with effect from 03.02.2013 by Act No.13 of 2013, stood 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 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.”

(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.

The Supreme Court in the matter of further Vipul Rasikbhai Koli Jankher v. State of Gujarat SLP (Crl) No.7133 of 2019 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, relying upon the decisions of the Supreme Court in Dharambir v. State of Uttar Pradesh (1979) 3 SCC 645 and in Maru Ram v. Union of India (1981) 1 SCC 107.

Following the decision of the Supreme Court in Vipul Rasikbhai Koli Jankher (supra), Dharambir (supra) and Maru Ram (supra), it is quite vivid that in the instant case, the appellant was aged about 20 years on the date of offence and he remained in jail for 10 years and 8 months and the minimum sentence prescribed under Section 376(1) of I.P.C. as on the date when the offence was committed, is seven years. Considering the fact that he was not found involved in any other offence, ends of justice would be served if instead of the sentence of life imprisonment, which was imposed upon the appellant for conviction under Section 376(1) of I.P.C., the appellant is sentenced to 11 years’ imprisonment.

Accordingly, the appeal is partly allowed. For conviction of offence under Section 376(1) of I.P.C., the appellant is sentenced to a term of 11 years’ imprisonment. His conviction sentences for other offences are maintained.