The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.493 of 2014 In the matter of an Appeal under section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 30th July, 2014 passed by the learned Sessions Judge, Bhadrak in Sessions Trial No.98 of 2013. Abdulla Sk. ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Sk. Zafarulla (Advocate) For Respondent
Legal Reasoning
- Mr.S.K.Nayak, Addl. Government Advocate CORAM: MR. JUSTICE D.DASH MR. JUSTICE SASHIKANTA MISHRA Date of Hearing & Judgement : 11.01.2023 D.Dash,J. The Appellant, in this Appeal, assails the judgment of conviction and order of sentence dated 30th July, 2014 passed by the learned Sessions Judge, Bhadrak in Sessions Trial No.98 of 2013 arising out of G.R. Case No.1 of 2013 corresponding to Chandbali P.S. Case No.1 of 2013 in the Court of the learned Judicial Magistrate First Class (J.M.F.C.), Chandbali. The Appellant (accused) thereunder has been convicted for committing the offence under section 363/377/307/325/201 of the Indian CRLA No.493 of 2014 Page 1 of 7 {{ 2 }} Penal Code, 1860 (for short, ‘the IPC’) and section 4 of Protection of Children from Sexual Offences Act, 2012 (in short, ‘the POCSO Act’) and accordingly, he has been sentenced to undergo rigorous imprisonment for seven (7) years and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for five (5) months for commission of offence under section 363 IPC; rigorous imprisonment for ten (10) years and fine of Rs.6,000/- (Rupees Six Thousand) in default to undergo rigorous imprisonment for six (6) months for commission of offence under section 377 IPC; rigorous imprisonment for seven (7) years and fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for four (4) months for commission of offence under section 307 IPC; rigorous imprisonment for five (5) years and fine of Rs.2,000/- (Rupees Two Thousand) in default to undergo rigorous imprisonment for two (2) months for commission of offence under section 325 IPC; rigorous imprisonment for two (2) years and fine of Rs.1,000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for one (1) month for commission of offence under section 201 IPC; and imprisonment for life and fine of Rs.10,000/- (Rupees Ten Thousand) in default to undergo rigorous imprisonment for eight (8) months for commission of offence under section 4 of POCSO Act with further stipulation that the substantive sentences would run concurrently. 2. Prosecution Case:- The Informant (P.W.1) was staying with her family at Vilage- Sompur within the jurisdiction of Chandbali Police Station in the District of Bhadrak having taken a house on rent. One Gangadhar Samal CRLA No.493 of 2014 Page 2 of 7 {{ 3 }} was constructing a new house adjacent to the house in occupation of the Informant (P.W.1). On 01.01.2013 around 5.00 p.m., the P.W.1’s grandson, i.e., the victim (P.W.7) aged about six years was playing near the house. He did not return home during the evening hours. So, P.W.1 searched for him. She, however, did get any trace and, therefore, started crying. Hearing the cry, many persons of the villager gathered and then, some of them disclosed to have seen few culprits taking the child with them. All of them then searched for P.W.7 and found P.W.7 lying near the bushes behind the half constructed house Gangadhar Samal, in a senseless condition being naked with injuries on his person. The accused persons, being nabbed, confessed that they had taken P.W.7 to the back side of the house, committed carnal intercourse with him and then having pressed his neck, had thrown him. This P.W.7 was then shifted to the Community Health Centre, Chandbali and therefrom, was taken to S.C.B. Medical College & Hospital, Cuttack being so referred. P.W.1 lodged a written report regarding the incident with the Inspector-in-Charge (IIC) of the Chandbali Police Station. On receipt of the report, the IIC registered the case and took up investigation. On completion of the investigation, Final Form was submitted placing this accused with two others to face the trial for commission of offence under section 363/307/377/325/201/34 IPC and section 4 of POCSO Act. 3. In the trial, this accused as also two others, who stood tried together, have taken the plea of complete denial. 4. The prosecution, during trial, has in total examined seventeen (17) witnesses. Out of whom, as already stated, P.W.1 is the Informant and Page 3 of 7 CRLA No.493 of 2014 {{ 4 }} happens to be the grandmother of the victim, who has been examined as P.W.7. P.Ws.2, 3, 4, 11 and 14 are the independent witnesses whereas P.Ws.6 & 10 are the witnesses to the seizures of the incriminating articles. P.Ws.8 and 9 are the mother and father of the victim respectively. P.W.5 is the person, in whose house, this accused and two others were working being engaged in the construction work. The person, who had scribed the FIR (Ext.1) for P.W.1, has been examined as P.W.13. The Doctors, who had examined the victim (P.W.7) have come to the witness box and are P.Ws.12 & 17. The Investigating Officers are P.Ws.15 & 16. 5. The Trial Court, upon detail examination of the evidence of the Informant P.W.1, parents of the victim (P.Ws.8 & 9) and more importantly, the evidence of the victim (P.W.7), has held this accused guilty for committing the offence under section 363/377/307/ 325/201 of IPC and section 4 of POCSO Act. The other two accused persons, who were facing the trial with this accused, however, have been acquitted of the charges as the evidence against them, were found to deficient. The Trial Court’s finding is that the prosecution, by leading clear, cogent and acceptable evidence, has established the charges against this accused beyond reasonable doubt. In course of discussion of the evidence, the Trial Court has not only held that the evidence of the victim (P.W.7) is trustworthy, but also has said that the said evidence of the victim (P.W.7) receives due corroboration, most importantly from the evidence of the experts, who are the Doctors, who had the occasion to examine the victim (P.W.7). CRLA No.493 of 2014 Page 4 of 7 {{ 5 }} 6. Mr.Zafarulla, learned counsel for the Appellant (accused), at the outset, instead of questioning the finding of guilt returned by the Trial Court as against this accused holding him guilty for commission of the offences, as above, confines his submission as to reduction of the sentence for the offence under section 4 of POCSO Act. He further submits that in the facts and circumstances of the case, with the attending factors concerning the accused, the sentence of imprisonment of life for the offence under section 4 of POCSO Act is highly disproportionate and according to him, that needs appropriate reduction. In this connection, he also submits that the stringency as to the provision of sentence, as it is now in the statute, after the Amendment Act 25 of 2019 came into force with effect from 16.08.2019 as to the minimum period of imprisonment was not there on the date of commission of offence. According to him, it is not a case where imposition of maximum sentence is called for in so far as the offence under section 4 of POCSO Act is concerned. He submits that looking at the age of this accused and the background from which he hails, the quantum of sentence, as has been awarded by the Trial Court for the offence under section 4 of POCSO Act, does not commensurate the offence as proved. 7. Mr.S.K.Nayak, learned Additional Government Advocate for the Respondent-State, on the other hand, submits all in favour of the quantum of sentence, as has been awarded, by the Trial Court. According to him, when the evidence of the victim (P.W.7) finds full corroboration from medical evidence and those being cumulatively viewed with the manner in which the offence is said to have been committed, the sentence of imprisonment for life is just and proper. CRLA No.493 of 2014 Page 5 of 7 {{ 6 }} 8. Keeping in view the submissions made, We have carefully gone through the impugned judgment passed by the Trial Court. 9. In the trial, in total, three accused persons had faced the trial and two of them have been acquitted whereas this accused has alone been convicted since the victim has identified this accused to have committed the crime against her. This accused is a resident of State of West Bengal situated in one of its remote districts, i.e., Murshidabad. As per the prosecution case, he had come to work here in the State of Odisha and at the relevant time, he was engaged in the construction work going on in the house of P.W.5, who is a co-villager of the victim (P.W.7). This accused, then at the time commission of offences, was within his thirties. It is in evidence that he had come to this far off place to earn his livelihood, as a wage earner. The punishment prescribed for commission of the offence for which this accused has been held guilty at that relevant time prior to the Amendment Act No.25 of 2019 coming into force on on 16.08.2019 was imprisonment of either description for a term, not less than seven years extending to imprisonment for life and fine, which has undergone the change that the minimum sentence has to be for a period, not less than ten years when the victim is not below sixteen years of age extending to imprisonment for life and in case, the victim is below sixteen years of age; the minimum sentence would have to be twenty years extending to imprisonment for life. The provision as to sentence as it was on the date of commission of the offence thus would govern this case. The accused, as submitted at the Bar, has served out the sentence for a considerable length of time and he has thus been away from his CRLA No.493 of 2014 Page 6 of 7 {{ 7 }} native place for quite a long length of period when it is there in the evidence that he has his family at his native place in the district of Murshidabad situated in the State of West Bengal. Cumulatively viewing all these circumstances and striking a balance, We are of the considered view that imposition of substantive sentence of rigorous imprisonment for a period of ten (10) years for commission of offence under section 4 of POCSO Act commensurate with the proven offence and thus would serve the ends of justice. Accordingly, We hereby order for modification of the substantive sentence only for the commission of offence under section 4 of the POCSO Act. 10. The Appeal stands accordingly disposed of. The judgment of conviction dated 30th July, 2014 passed by the learned Sessions Judge, Bhadrak in Sessions Trial No.98 of 2013, which is impugned in this Appeal, being confirmed, the order of sentence stands modified only in so far as the commission of offence under section 4 of POCSO Act by the accused is concerned and that too with regard to the substantive sentence to the extent, as aforementioned. Sashikanta Mishra I agree. (D. Dash) Judge. (Sashikanta Mishra) Judge. Basu CRLA No.493 of 2014 Page 7 of 7