The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.470 of 2018 In the matter of an Appeal under Section 374 of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 14.05.2018 passed by the learned Additional Sessions Judge-cum-Judge, Special Court, Rayagada, in C.T. Case No.148 of 2015. Sesa Dalpati ---- -versus- …. Appellant State of Orissa …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant -
Legal Reasoning
Mr.Tusar Kumar Mishra, Advocate For Respondent - Mr. S. K. Nayak, Additional Government Advocate CORAM MR. JUSTICE D.DASH Date of Hearing :17.05.2024 : Date of Judgment : 20.05.2024 D.Dash,J. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 14.05.2018 passed by the learned Additional Sessions Judge-cum- Judge, Special Court, Rayagada, in C.T. Case No.148 of 2015, arising out of Ambadola P.S. Case No.117 of 2015. CRLA No.470 of 2018 Page 1 of 6 The Appellant (accused) has been convicted for commission of offence under section 376(2)(i)/511/506 of the Indian Penal Code, 1860 (for short, ‘the IPC’) read with section 8 of the Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”) and he has been sentenced to undergo imprisonment for seven (7) years and pay fine of Rs.10,000/- in default to undergo rigorous imprisonment for two months for commission of offence under section 376(2)(i)/511 of the IPC and sentenced to undergo rigorous imprisonment for one year under section 506 of the IPC with stipulation that the substantive sentences would run concurrently; when no separate sentence has been awarded for the offence under section 8 of the POCSO Act. 2. Prosecution Case:- On 22.09.2015 around 1 pm, the accused being the co- villager of the Informant (father of the victim-P.W.1) asked the victim (P.W.3), the minor daughter of P.W.1 then aged about 9 years to go near the newly constructed house of one Prafulla Rout (P.W.16). It is stated that the accused tied the face of the victim (P.W.3) with napkin and thereafter attempted to commit penetrative sexual assault on her by making her lie on the ground and removing her under-garment. CRLA No.470 of 2018 Page 2 of 6 The matter being informed in writing by the father of the victim (P.W.1) to the Officer-in-Charge of Jagdalpur Police Outpost, the same was treated as FIR and case was registered which triggered the investigation. On completion of investigation, Final Form was submitted placing the accused to face the trial for commission of offence under section 376(2)(i)/511/506 of the IPC and section 8 of the POCSO Act. The accused faced the trial standing charged for the above offences. During trial, prosecution examined in total 21 witnesses, who are P.W.1 to P.W.21 and several documents were also proved from the side of the prosecution, which were admitted in evidence and marked Ext.1 to Ext.15. 3. The Trial Court upon examination of the evidence and the prosecution witnesses mainly P.W.1 to P.W.3 has arrived at a conclusion that the prosecution has established the charges against the accused. Accordingly, the accused has been sentenced as aforestated. 4. Learned counsel for the Appellant (accused) from the beginning without questioning the finding of guilt against the accused as has been returned by the Trial Court holding him guilty for commission of offence under section 376(2)(i)/511/506 of the IPC and section 8 of the POCSO Act on merit; confined his CRLA No.470 of 2018 Page 3 of 6 submission on the quantum of sentence and urged for modification of the sentence to the period already undergone. He submitted that the accused being arrested in the case was forwarded to the Court on 26.09.2015 and released on bail on 01.02.2016 and he again being arrested remained in custody till 18.05.2018 when the judgment was pronounced. He further submitted that in this way, the accused has remained in custody in serving out the sentence for a period of more than six and half years as against the maximum period of sentence of seven years imposed upon him. He, therefore, submitted that since the Appellant has now crossed 45 years of age and he in the meantime has undergone the mental agony of the trial for about nine (9) years since the principal offence is one under section 376(2)(i) read with section 511 of the IPC, interest of justice would met and its end would be served if the accused is sentenced to the period already undergone. 5. Learned counsel for the Respondent-State submitted that the sentence imposed upon the accused commensurate the offence. 6. Considering the submissions made, record being perused, it is seen that the accused at the time of registration of the case, was aged about 38 years. The accused has remained in custody CRLA No.470 of 2018 Page 4 of 6 initially from 26.09.2015 to 31.01.2016 and then he is in custody since 20.01.2018 till now when the fact remains that this Court during pendency of the Appeal even though had granted interim bail to the accused, he has not availed the same. The accused is now aged about 45 years and he is a permanent resident of village Jagdalpur under Ambadola Police Station in the scheduled District of Rayagada. He was then working as a labour and earning his livelihood. No such report is forthcoming about his prior involvement in any criminal activity nor it is said that during bail, the accused has indulged himself in any criminal activity. 7. Cumulatively viewing all these above factors; this Court is of the considered opinion that while maintaining the conviction of the accused for the offences as aforestated if he is sentenced to the period already undergone that would serve and met the ends of justice. Therefore, while maintaining the conviction of the Appellant for commission of offence under section 376(2)(i)/511/506 of the IPC and section 8 of the POCSO Act , the sentence imposed by the Trial Court upon him is hereby reduced to the period already undergone. CRLA No.470 of 2018 Page 5 of 6 8. The Appeal is accordingly allowed in part with the modification of sentence to the extent as indicated above. (D. Dash), Judge. Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Designation: Junior Stenographer Reason: Authentication Location: OHC Date: 21-May-2024 18:27:08 CRLA No.470 of 2018 Page 6 of 6