High Court
Legal Reasoning
Cri.Appeal No.680/2021:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.680 OF 2021Vishnu Chandrayya YedullaAge 37 years, R/o KhilaganpurTq. Vanaparti, Dist. Mehboobnagar,State - TelanganaNow R/o Kapre-Mala, Akolnear Road,Kedgaon, Ahmednagar… APPELLANTVERSUS1.The State of Maharashtra through Police Inspector,Kotwali Police Station,Dist. Ahmednagar2.X Y Z … RESPONDENTs.......Mr. C.V. Dharurkar, Advocate for appellant (appointed throughLegal Aid)Mrs. S.N. Deshmukh, A.P.P. for respondent ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 12th December, 2024Date of pronouncing judgment : 21st January, 2025J U D G M E N T (PER : R.G. AVACHAT, J.) : The challenge in this appeal is to a judgment andorder of conviction and consequential sentence, passed by the Cri.Appeal No.680/2021:: 2 ::Court for trial of offences under the Protection of Children fromSexual Offences Act (POCSO Act for short), Ahmednagar inSessions Case, No.165/2015, dated 5/1/2018. The materialpart of the order impugned herein reads thus : (1)The accused Vishnu Chandrayya Yedulla is herebyconvicted, as per provisions of Sec.235(2) of Code ofCriminal Procedure, for the offence punishable underSection 376(2)(i) of Indian Penal Code as amendedby Criminal Law (Amendment) Act, 2013 and he issentenced to suffer imprisonment for life till hisnatural death, and to pay a fine of Rs.50,000/- (Rs.Fifty thousand only), in default of payment of fine, heshall suffer S.I. for 1 (one) year.(2)The accused Vishnu Chandrayya Yedulla is furtherconvicted, as per provisions of Sec.235(2) of Code ofCriminal Procedure, for the offence punishable underSection 354-A(1)(i) of Indian Penal Code as amendedby Criminal Law (Amendment) Act, 2013 and he issentenced to suffer Rigorous Imprisonment for threeyears, and to pay a fine of Rs.5,000/- (Rs. Fivethousand only), in default of payment of fine, he shallsuffer S.I. for 1 (one) month.(3)The accused Vishnu Chandrayya Yedulla is alsoconvicted under Section 235(2) of Criminal Procedure Cri.Appeal No.680/2021:: 3 ::Code, for the offence under Section 506 of IndianPenal Code and he is sentenced to suffer RigorousImprisonment for one year.(4)The accused Vishnu Chandrayya Yedulla is alsoconvicted under section 235(2) of Criminal ProcedureCode, for the offence under section 5(j)(ii) and 5(l)punishable under Section 6 of the Protection ofChildren from Sexual Offences Act, 2012.However, no separate punishment is awarded to theaccused for the aforesaid offences under TheProtection of Children from Sexual Offences Act,2012, in view of Section 42 of the said Act.(5)All the above mentioned substantive sentencesimposed on the accused shall run concurrently.(6)The fine amount, if recovered from the accused, theamount of Rs.45,000/- (Rs. Forty-five thousand only)be given to the prosecutrix, by way of compensationunder Section 357(1) of the Code of CriminalProcedure and remaining amount of Rs.10,000/- (Rs.Ten thousand only) be credited in the Account ofGovernment of Maharashtra.2.Learned Advocate for the appellant, who holds hisbrief through Legal Aid, made submissions for reduction in Cri.Appeal No.680/2021:: 4 ::quantum of sentence. According to him, the appellant hailedfrom Telangana. He was 34 years of age while the offencetook place. He has a wife and children to look after inTelangana. According to him, the sentence of imprisonmentfor life till his natural death, was grossly disproportionate to theoffence committed by the appellant. He relied on the followingset of authorities :(1)Mallan @ Rajan Kani Vs. State of KeralaSpecial Leave to Appeal (Crl.) No.7003/2024(2)Adu Ram Vs. Mukna & ors. [(2005) 10 SCC 597](3)Bavo alias Manubhai Ambalal Thakore Vs. State ofGujarat [ AIR 2012 SC 979 ](4)Manoj Mishra alias Chhotkau Vs. State of U.P.(2021) 10 SCC 763(5)Mohd. Firoz Vs. State of Madhya Pradesh(2022) 7 SCC 443 (6)Shivaji Sakharam Madhe Vs. State of Maharashtra& anr. (Cri.Appeal No.432/2022, decided on 19/9/2024)(7)Pradip @ Golu s/o Suresh Dandge Vs. State ofMaharashtra (Criminal Appeal No.419/2019, decided on 2/12/2022)(8)Anil Ramesh Kolhe Vs. State of Maharashtra & ors.(Criminal Appeal No.816/2017, decided on 3/8/2022) Cri.Appeal No.680/2021:: 5 ::3.The learned A.P.P. would, on the other hand,submit that, it is a heinous offence. The offence is not againstan individual but against the society. A minor girl below 12years was deflowered by the appellant in whom the girl (thevictim) had confidence as her father. According to her, thevictim was ravished more than 2-3 times. She even conceivedand delivered a baby. In this factual backdrop, the appellantdoes not deserve leniency. She would further submit that, ifthe sentence is reduced, it may amount to misplacedsympathy. She, therefore, urged for dismissal of the appeal.4.Considered the submissions advanced. Perusedthe evidence on record and the judgment impugned herein aswell. The appellant originally hailed from Telangana. He cameto Maharashtra in search for a work. The mother of the victimwas not residing with her husband. She would stay alonealong with her children. She got acquainted with the appellant.Both of them started residing as husband and wife. The victimhad seen the appellant to have sexual intercourse with hermother. The appellant then took advantage and committedsimilar act with her when she was alone. Such thing happenedmore than twice. The victim had related her woes to her Cri.Appeal No.680/2021:: 6 ::mother. The mother initially turned a blind eye. Due to theappellant committing such act with the victim, she conceivedand delivered a baby. These are the facts not in dispute.5.The question is, whether imprisonment for lifewhich shall mean till the end of natural life of the appellant, isdisproportionate to the crime committed by the appellant. Oneneed not refer to the theories of punishment such as retributivetheory or reformative as well.6.Admittedly, the appellant was 34 years of age atthe relevant time. He hailed from the State of Andhra Pradesh.He came to Maharashtra in search for a job. He gotacquainted with the mother of the victim. The mother was notstaying with her husband. The acquaintance developed intoemotional relationship between the appellant and the victim’smother. In the F.I.R., the victim gave her age as 13 years.True, the victim was just below 12 years of age while she wasdeflowered by the appellant.7.We are informed that a person convicted foroffence of rape is not granted (not entitled) for furlough.Meaning thereby, the appellant would be completing 10 years Cri.Appeal No.680/2021:: 7 ::of imprisonment, without being out of jail for a single day.While the offence was committed, the same was punishablewith rigorous imprisonment for a term which shall not be lessthan 10 years, but which may extend to imprisonment for life,which shall mean imprisonment for the remainder of natural lifeand shall also be liable to fine.8.The record indicates that, the appellant did nothave means to pay the fine. The fine remained unpaid. Hehas a family (wife and children) in the State of AndhraPradesh.9.In case of Mallan (supra), the appellant therein wasconvicted for the offence punishable under Section 376 of theIndian Penal Code and sentenced to life imprisonment withfine of Rs.2 Lakhs. The appellant therein was step father ofthe victim. He had raped the victim more than once. The ApexCourt, therefore, did not interfere with the order of conviction.The appellant therein was 40 years of age and had alreadyundergone 8 years of sentence, his financial condition wassuch that he would not be able to pay the fine amount.Considering these facts and circumstances, the Apex Court Cri.Appeal No.680/2021:: 8 ::reduced the quantum of sentence to 10 years, retaining thefine amount, but reducing the default sentence from 2 years to1 year.10.In case of Adu Ram (supra), it has been observed :“Criminal Trial – Sentence – Proportionality –sentence should be commensurate with gravity ofoffence – Relevant factors to be taken into accountwhile determining proper sentence – Held, noformula of a foolproof nature is possible that wouldprovide a reasonable criterion in determining a justand appropriate punishment – Due considerationshould be given to facts and circumstances of case,having regard to various factors including nature ofoffence and manner in which it was executed orcommitted, motive for the crime, conduct of accusedand all other attendant circumstances – Aggravatingand mitigating factors should be delicately balanced–Discretion in determination of quantum ofpunishment is required to be exercised judiciouslyand judicially.”11.In case of Bavo alias Manubhai (supra), 10 yearsR.I. was imposed for an offence of rape on a 7 year old girl.True, the appellant therein was 18-19 years of age at therelevant time.12.The Division Bench of this Court, in case of Pradip@ Golu (supra), has observed :- Cri.Appeal No.680/2021:: 9 ::“24. Since the punishment prescribed for the offencepunishable under Section 376[2][i] of the IndianPenal Code is greater in degree than the punishmentprescribed for the offence punishable under Sections4 and 10 of the POCSO Act, the accused is to besentenced for the offence punishable under Section376[2][i] of the Indian Penal Code. As observedabove, at the relevant time the offence under Section376[2][i] was punishable with rigorous imprisonmentfor a term which shall not be less than 10 years, but,which may extend to imprisonment for life, whichshall mean imprisonment for remainder of thatperson’s natural life and shall also be liable to fine.The Section has put a minimum rider ofimprisonment for 10 years, which may extendfurther. The Legislature purposefully left the judicialdiscretion to the Court to award punishment with arider of minimum sentence. The purpose behindleaving discretion with the Court is to mould thesentence in accordance with the prevailingcircumstances befitting to the crime and all otherrelevant factors.”13.Considering the background of the appellant andkeeping on mind the observations made in the aforesaidauthorities, we are of the opinion that, rigorous imprisonmentfor 11 years would meet the ends of justice. With this, wepartly allow the appeal in terms of the following order :O R D E R(i)The Criminal Appeal is partly allowed.
Legal Reasoning
Cri.Appeal No.680/2021:: 10 ::(ii)Conviction of the appellant for the offence punishableunder Section 376(2)(i) of the Indian Penal Code vide orderdated 5/1/2018, passed by learned Judge, Special Court(POCSO Act), Ahmednagar in Sessions Case No.165/2015 ismaintained. However, the sentence of imprisonment for life tillhis natural death is reduced to rigorous imprisonment foreleven (11) years. The quantum of amount of fine to standunaltered. In default of payment of fine, the appellant shallsuffer S.I. for one month.(iii)The appellant is entitled to set off, as per provisions ofSection 428 of the Code of Criminal Procedure.(iv)Rest of the terms of the impugned order to standunaltered.(v)Fees of learned Advocate Mr. Dharurkar, who wasappointed through Legal Aid, is quantified at Rs.10,000/-(Rupees ten thousand). (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-