Durg, Chhattisgarh v. 1 - State Of Chhattisgarh Through - Police Station - Chawni, District : Durg
Case Details
1 (CRA No. 253 of 2023) ADITI DIWAN KAIWART Digitally signed by ADITI DIWAN KAIWART Date: 2025.03.29 10:56:38 +0530 2025:CGHC:14319 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 253 of 2023 1 - Rahul Choudhary S/o Naresh Choudhary @ Shastri Aged About 20 Years R/o Camp-1, Adarsh Nagar, Near Durga Mandir, Bhilai, Police Station- Chawni, District : Durg, Chhattisgarh --- Appellant(s) versus 1 - State Of Chhattisgarh Through - Police Station - Chawni, District : Durg, Chhattisgarh --- Respondent(s) (Cause-title taken from the Case Information System) ------------------------------------------------------------------------------- For Appellant :- Mr. Anmol Sharma, Advocate For Respondent-State :- Mr. Amit Buxy, Panel Lawyer ------------------------------------------------------------------------------------- SB - Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 25.03.2025 1. This criminal appeal filed by the appellant under Section 374(2) of Cr.P.C., is directed against the impugned judgment of conviction and order of sentence dated 19.01.2023, passed by the Additional Sessions Judge (I FTC)/Special Judge (POCSO Act), Durg, C.G. in Special Session Trial (POCSO) No.54 of 2021 (State of Chhattisgarh 2 (CRA No. 253 of 2023) v. Rahul Choudhary), whereby he has been convicted and sentenced as under :- Conviction U/s 354 of the IPC U/s 9(m)/10 of POCSO Act Sentence S.I. for 3 years with fine of Rs. 1,000/- and, in default of payment, additional S.I. for one month. R.I. for 7 years with fine of Rs. 2,000/- and, in default of payment, S.I. for two months. 2. The case of the prosecution, in short, is that on 04.04.2021
Legal Reasoning
at about 10:30 AM, at the place mentioned in the FIR (Ex. P/7), which comes within the ambit of Police Station Chhwani, District Durg, Chhattisgarh, the appellant outraged the modesty of the minor victim (PW-04) and also committed aggravated sexual assault within the meaning of Section 9(m), punishable under Section 10 of the POCSO Act and, thereby, said to have committed the aforesaid offences. 3. It is the further case of the prosecution that when mother of the victim (PW-05) reported the matter to the police by lodging written complaint (Ex. P/6), FIR (Ex.P/7) was registered against the appellant and wheels of investigation started running, in which, spot map was prepared vide Ex.P/8. MLC of the victim was conducted vide Ex.P/1, by 3 (CRA No. 253 of 2023) Dr. Geeta Sinha (PW-1), who opined that no sign of injury over the body and private parts of the victim (PW-04) was found. Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was charge- sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated 4. The prosecution in order to prove its case examined as many as 08 witnesses and exhibited 25 documents, whereas the appellant in support of his defence has neither examined any witness nor exhibited any document. 5. The trial Court after appreciating the oral and documentary evidence on record, convicted the appellant for the aforesaid offences under Section 354 of the I.P.C. and Section 9(m)/10 of the POCSO and sentenced him as mentioned in the opening paragraph of this judgment, against which the present appeal has been preferred.
Legal Reasoning
6. Learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in 4 (CRA No. 253 of 2023) convicting the appellant for aforesaid offences, as the prosecution has failed to prove the same beyond the reasonable doubt. However, in alternative he submits that the maximum punishment for offence under Section 10 of the POCSO Act is seven years, whereas the minimum sentence is five years and no reason has been assigned by the trial Court for awarding the maximum sentence to the appellant, as such, the sentence of the appellant for offence under Section 9(m)/10 of the POCSO Act may be reduced to the minimum sentence i.e. five years. Hence, the present appeal deserves to be allowed in full or in part. 7. Per-contra, learned State counsel supports the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature and it is not a case where the sentence of the appellant can be reduced to the minimum. As such, the present appeal deserves to be dismissed. 8. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 9. So far as the conviction of the appellant under Section 354 5 (CRA No. 253 of 2023) of the IPC is concerned, the minor victim (PW-04) at para 9 of her statement before the Court has clearly implicated the appellant for offence under Section 354 of the IPC by stating that the appellant had outraged her modesty, as such, the conviction of the appellant for offence under Section 354 of the IPC is well merited and no interference is called for and, accordingly, I hereby affirm the conviction of the appellant for offence under Section 354 of the IPC. 10. Now, as regards conviction of the appellant for offence under Section 9(m)/10 of the POCSO Act, as per the statement of the mother of the victim (PW-5), date of birth of the victim is 04.05.2014, whereas the date of offence is 04.04.2021, meaning thereby, the victim was minor aged below 12 years of age on the date and time of the offence. In that view of the matter, the appellant has rightly been convicted by the learned trial Court for offence under Section 9(m)/10 of the POCSO Act. 11. The next question for consideration would be as the maximum punishment for offence under Section 10 of the POCSO Act is seven years, whereas the minimum sentence is five years, however, the trial Court has awarded the maximum sentence of seven years to the appellant that too 6 (CRA No. 253 of 2023) without assigning any reason, as contended by the learned counsel for the appellant. 12. In this regard, the definition of term 'Proper Sentence' needs to be noticed. In Deo Narain Mandal Vs. State of UP 1 their Lordships of the Supreme Court have clearly held that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically. 13. Similarly, in Ravada Sasikala vs. State of A.P. 2 , the Supreme Court referred the judgments in Jameel vs State of UP [(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734], Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323], State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] and has reiterated that in operating the sentencing system, law should adopt corrective machinery 1 (2004) 7 SCC 257 2 AIR 2017 SC 1166 7 (CRA No. 253 of 2023) or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop 8 (CRA No. 253 of 2023) under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. 14. Reverting to the facts of the present case, in light of the above principles of law laid down by their Lordships of the Supreme Court, it is quite vivid that the accused appellant is the first offender. There is no criminal history of any prior sexual perversity attributed to the accused appellant. Also, the accused appellant has already undergone incarceration of 03 years, 11 months and 20 days with remission and minimum sentence for offence under Section 9(m)/10 of the POCSO Act is five years. Therefore, keeping in view the criminal jurisprudence which encompasses reformative and corrective theory, as also doctrine of proportionality, it would not be necessary to award maximum sentence to the appellant, who is the first offender. In such circumstances, I am of the view that the maximum sentence awarded to the accused appellant for offence under Section 9(m)/10 of the POCSO Act, 9 (CRA No. 253 of 2023) deserves to be modified with the minimum sentence of five years. However, the conviction of the appellant for offence under Section 354 of the IPC is well merited and is hereby maintained. The sentence for both the convictions shall run concurrently as directed by the trial Court. 15. Accordingly, this criminal appeal is partly allowed to the extent indicated herein-above. 16. Let a certified copy of this judgment along with the original record be transmitted forthwith to the concerned trial Court for necessary information & action, if any. A copy of the judgment may also be sent to the concerned Jail Superintendent forthwith wherein the appellant is suffering the jail sentence. @d!t! Sd/- (Sanjay K. Agrawal) Judge