Sanjay Kumar Verma 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 20/03/2014 passed by learned Additional Sessions Judge (FTC), Raipur in Sessions Trial No. 69/2014 whereby he has been convicted for offences punishable under Section 450 of IPC, Section 376(2)(i) of IPC (omitted by Amendment Act 22 of 2018 w.e.f. 21/04/2018) and Section 6 of Protection of Children from Sexual Offences Act, 2012 (in short, “POCSO Act”) and sentenced to R.I. for 7 years with fine of Rs. 2000/- in default of payment of fine, further R.I. for 3 months; life imprisonment with fine of Rs. 5000/- in default of payment of fine, further R.I. for 6 months; and life imprisonment with fine of Rs. 5000/- in default of payment of fine, further R.I. for 6 months, respectively.

Case of the prosecution, in brief, is that the appellant herein unauthorizedly trespassed into the house of Hemant Verma and sexually assaulted the physically challenged victim, aged about 5 years and thereby, committed the aforesaid offences.

Further case of the prosecution is that maternal grandfather of the victim namely Bisauha Ram Verma (P.W.-3) lodged a report at Police Station Kharora, District Raipur that after the death of his daughter Anusuiya, his granddaughter (victim), aged about 5 years, who is also physically challenged, had been staying at his house. On 20/11/2013, the victim had gone to his younger brother's house namely Hemant Verma and at about 4 PM, the appellant herein trespassed into his house and committed sexual intercourse with the victim, which was also noticed by Savita Verma (P.W.-2). On his report, first information report was lodged against the appellant for offences punishable under Sections 376 and 450 of IPC vide Ex. P/2. Pursuant thereof, the victim was subjected to medical examination which was conducted by Dr. Aabha Daharwal (P.W.-4) and as per the MLC report (Ex. P/10), signs of sexual assault were found and scratches and abrasion were also found in her body. Thereafter, memorandum statement of the appellant was recorded vide Ex. P/6 and his clothes were seized vide Ex. P/7. Clothes of the victim were seized vide Ex. P/3 and the shields prepared and sealed by the Doctor were seized vide Ex. P/16. The said seized articles were sent for FSL and as per FSL report (Ex. P/23), human blood was found on Articles A,B,C,D1,D2 and D3. After due investigation, the appellant was charge-sheeted for offences punishable under Sections 450 and 376(2)(i) of the IPC 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 9 witnesses and brought on record 23 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt, however, he examined none in his defence.

Learned trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for offences punishable under Sections 450, 376(2)(i) of IPC and Section 6 of POCSO Act and sentenced him as aforesaid.

Mr. Anil Gulati, 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 21/11/2013.

Per contra, Mr. Soumya Rai, 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 was aged about 5 years on the date of offence and she was also physically challenged, 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 5 years on the date of the offence, was examined before the Court and she has clearly supported the case of the prosecution. Moreover, Smt. Savita Verma (P.W.-2) has also been examined and she has clearly stated that on the date of the offence, she was at her home and when she heard the cries of the victim coming from the house of Hemant Verma, she went there and saw that the victim was lying on the cot and she was crying blood was oozing out and the appellant was standing and wearing his clothes. When she shouted for help, the appellant caught her by her hair and thereafter, the neighbours gathered and caught the appellant. Thereafter, victim's maternal grandmother came therein and called her husband Bisauha Ram Verma (P.W.-3) and she narrated the incident to her pursuant to which he lodged the report at the Police Station. Thereafter, victim was also subjected to medical examination and the MLC report (Ex. P/10) has been proved by Dr. Aabha Daharwal (P.W.-4), who has clearly stated that internal injuries were found over the private parts of victim's body and external injuries such as scratches as well as abrasions were also found on her body. As such, considering the entire evidence available on record, particularly considering the MLC report (Ex. P/10) proved by Dr. Aabha Daharwal (P.W.-4) as well as the FSL report (Ex. P/23) in which human blood has been found on the clothes of the victim, 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 24 years on the date of the offence and further considering that minimum sentence for offence punishable under Section 376(2)(i) of IPC (prior to the amendment) was 10 years, we hereby award the sentence of 15 years to the appellant for offence punishable under Sections 376(2)(i) of IPC and Section 6 of POCSO Act, in place of the sentence of life imprisonment as awarded by the trial Court, as he is in jail since 21/11/2013. However, the sentence for offence punishable under Section 450 of IPC is hereby maintained along with the default sentences awarded by the trial Court in all the offences.

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