Koriya, Chhattisgarh v. State Of Chhattisgarh Through The Station House Officer, Police
Case Details
-1- 2025:CGHC:9667 HIGH COURT OF CHHATTISGARH AT BILASPUR NAFR CRA No. 1033 of 2022 Ramu S/o Budhram Aged About 48 Years R/o Sirauli Nawatola, Police Station - Manendragarh, District : Koriya, Chhattisgarh ... Appellant (s) versus State Of Chhattisgarh Through The Station House Officer, Police Station - Manendragarh, District : Koriya (Baikunthpur), Chhattisgarh ... Respondent(s) : For Appellant For Respondent/State : Mr. Varunendra Mishra, Advocate Mr. Bharat Gulbani, Panel Lawyer SB: Hon'ble Shri Ramesh Sinha, Chief Justice Judgment on Board 25/02/2025 Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.03.05 11:10:34 +0530 1. Though, today the present appeal is listed for hearing on I.A. No.01, which is an application under Section 389 of the Code of Criminal -2- Procedure, 1973 (for short, ‘Cr.P.C.’) for suspension of sentence and grant of bail, but with the consent of learned counsel for the parties and considering the age of the appellant and his period of detention, the appeal is heard finally.
Decision
2. Accordingly, I.A. No. 01 stands disposed of. 3. This criminal appeal filed by the appellant/accused under Section 374(2) of Cr.P.C. is directed against the judgment of conviction and order of sentence dated 30.04.2022 passed by learned Additional Sessions Judge, (FTSC), Manendragarh, District- Koria (CG) in Sessions Trial No. 88/2019, whereby the appellant/accused has been convicted and sentenced in the following manner: CONVICTION SENTENCE U/s 376 of IPC Rigorous Imprisonment for 10 years with fine of Rs.500/-, in default of payment of fine 1 year additional RI 4. Case of the prosecution, in brief, is that on 08.04.2002, accused/appellant came to house of the minor victim aged about 6-7 years and fed her chana-batura to her. When mother of the victim started preparing food, accused took the victim towards the kitchen garden and locked the door on the garden side and took the victim near chaff/straw, removed her underwear, lifted the victim on his lap and raped her. When victim’s mother came at the spot and assaulted the accused, accused took the victim down and ran away. On the report of her mother, FIR was lodged against the appellant under Crime No.175/2002 for the offence under Section 376, 511 of Cr.P.C. -3- 5. After completion of investigation, charge-sheet was filed against the accused/appellant under Section 376 of IPC before the Court of Judicial Magistrate First Class, Manendragarh, wherefrom the case was remitted to the Court of Sessions Judge, Koria, Baikunthpur, which in turn, was received for trial to the Court of First Additional Sessions Judge, Manedragarh. Learned trial Court framed charges against the appellant under Section 376 of IPC which was denied by the appellant and he prayed for trial of his case. 6. Prosecution in order to prove its case examined as many as 5 witnesses and exhibited as many as 6 documents i.e. Ex. P-1 to P-6. Statement of accused person was also recorded under Section 313 of Cr.P.C. in which he denied all incriminating evidence appearing against him, pleaded innocence and false implication and he has not examined any witness in his defence. 7. The learned Additional Sessions Judge, (FTSC), Manendragarh, District- Koria after appreciating oral and documentary evidence available on record vide impugned judgment dated 30.04.2022 convicted and sentenced the appellant as mentioned in paragraph-3 of this order. Being aggrieved by the said judgment, the instant appeal under Section 374 (2) of CrPC has been preferred by the appellant. 8. Assailing the impugned judgment of conviction and order of sentence passed by the learned trial Court, learned counsel for the appellant submits that finding recorded by the learned trial Court is baseless, perverse, -4- erroneous and contrary to the materiel evidence available on record. Learned trial Court failed to appreciate the oral and documentary evidence placed before it in its proper perspective. There are material contradictions and omissions in the diary and Court statement of the witnesses which cannot be made basis for conviction of the appellant. Prosecution has not adduced any cogent and reliable evidence to prove the guilt of the appellant. He submits that the trial Court while convicting the appellant for the offence punishable under Section 376 of IPC has sentenced him to undergo RI for ten years, overlooking the provision applicable prior to amendment in the Act, which provided for minimum sentence of seven years but which may be for life or for a term which may extend to ten years for the said offence. He submits that looking to the date of incident which occurred way back in the year 2002, period of detention of the appellant i.e. more than 5 years, there is no criminal antecedents, ends of justice would be served if the appellant is sentenced to undergo minimum sentence of seven years as provided under Section 376 of IPC (unamended). 9. On the other hand, learned State Counsel opposing the prayer of learned counsel for appellant, would submit that looking to the nature and gravity of offence, age of the victim on the date of incident, and conduct of the appellant, the punishment imposed upon him is proportionate to the act committed and therefore there is no justification in reducing the same. 10. I have heard learned counsel for the parties and also perused the records of the trial Court including the impugned judgment. 11. Statement of the victim/prosecutrix (PW1) is recorded before the trial -5- Court on 02.03.2020. In her statement she stated that on the date of incident when her mother was preparing food and she was playing, accused/appellant came there and fed her sweets, took her to kitchen garden, removed her clothes and committed sexual intercourse with her. After 10-15 minutes when her mother came searching for her in the kitchen garden, accused had lifted her on his lap. Seeing this, her mother assaulted the accused by footwear (slipper) and then the accused fled away. Her mother took her to police station to lodge complaint. Her medical examination was conducted. In her cross-examination, she remained very firm and nothing could be elicited which makes her testimony doubtful. Her evidence is also corroborated by the evidence of her mother Tijiya Bai (PW2). In her cross-examination, she denied the suggestion that accused did not commit any sexual intercourse with her daughter. She further denied the suggestion that because of any previous dispute, accused/appellant has been falsely implicated in the crime. 12. Anita Prabha Minj (PW4), Investigating Officer of the case has duly supported the prosecution case. 13. Dr. Nirmala Yadav is the person who medically examined the prosecutrix vide Ex.P-7. According to this witness there was no external injury on the body of the prosecutrix; there was no mark of semen or blood in her vagina, no injury was found in vagina; hymen was found intact. She stated that no definite opinion can be given regarding commission of rape. In her cross-examination, she stated that it is not necessary that in every case of rape of minor of aged 6 years injury may come in the vagina part. She further stated that it is correct to say that if a 6 years old girl is raped then her genitals may get injured. -6- 14. I have heard learned counsel for the parties and also perused the record of the trial Court including the impugned judgment. 15. Close scrutiny of the evidence of prosecutrix makes it clear that on the fateful day while she was playing, accused/appellant came there, took her to kitchen garden and there committed sexual intercourse with her. The incident was witnessed by mother of the prosecutrix who was examined as PW2, who has duly supported the version of the prosecutrix. Statement of the prosecutrix also gets corroboration from the promptly lodged FIR (EX.P-2). There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In this case, prosecutrix has given a vivid account of the entire episode as to how the accused/appellant committed sexual intercourse on her. Moreover, nothing has been elicited by the defence as to why the appellant has been falsely implicated in the crime and thus the stand of false implication taken by the accused/appellant is also not worth acceptance. Thus, conviction of the accused/appellant under Section 376 of IPC suffers from no illegality and the same is hereby maintained. 16. The question which now arises for consideration of this Court is as to what would be appropriate sentence to be awarded upon the appellant ? 17. Provision under Section 376 IPC has been amended by Act 13 of 2013 (with retrospective effect from 03.02.2013). Prior to substitution, it reads thus: -7- “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 yeas 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 of either description for term which may extend to two years or with fine or with both.” x x x x x x 18. Considering the fact that the incident occurred way back in the year 2002, prosecutrix was examined before the trial Court on 02.03.2020, the judgment of the trial Court has been delivered on 30.04.2022 convicting the appellant for the offence punishable under Section 376 of IPC, there is no criminal antecedents of the appellant, he has already undergone more than 5 years of jail sentence, this Court is of the opinion that the ends of justice would be met if the appellant is sentenced to undergo RI for 7 years i.e. the minimum sentence prescribed under Section 376 of IPC (unamended). 19. In the result, the appeal is partly allowed. While maintaining conviction of accused/appellant under Section 376 of IPC, the sentence imposed on him under that section is reduced to 7 years RI, which is the minimum -8- sentence awardable under Section 376 of IPC (prior to amendment). The fine sentence imposed by the learned trial Court shall remain intact. 20. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ramesh Sinha) Chief Justice Praveen