Chattisgarh High Court
Vajirnath Alias Khuja vs State Of Chhattisgarh on 26 April, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 11.4.2022
Delivered on 26.4.2022
CRA No. 972 of 2017
• Vajirnath Alias Khuja S/o Mehattar Mahara Aged About 25 Years R/o
Chitapadar, Police Station- Parpa, District- Bastar, Chhattisgarh.
---- Appellant
Versus
• State Of Chhattisgarh Through Police Station- Bodhghat, District Bastar,
Chhattisgarh., Chhattisgarh
---- Respondent
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For applicant : Shri Varunendra Mishra, Advocate
For respondent/State : Shri Praveen Shrivastava, Panel Lawyer
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Hon'ble Shri Justice Naresh Kumar Chandravanshi
CAV Judgment
1. This criminal appeal has been preferred against judgment of
conviction and order of sentence dated 25.02.2017 passed by Additional
Sessions Judge (FTC), Bastar at Jagdalpur in Session Trial No.87/2016,
whereby the learned Additional Sessions Judge after holding the appellant
guilty convicted and sentenced him in the following manner with a direction
to run the sentences concurrently:-
Sl. Conviction under Jail Sentence Fine Default
No. Section Sentence stipulation
01. 363 IPC SI for 07 Rs. 1000/-
years Imprisonment
02. 366 IPC RI for 10 Rs.1000/- for 06 months
years
03. 376 IPC RI for 10 Rs.1000/-
years
2. Brief facts of the case are that on 23.7.2012 at about 9.30 am the
victim (PW-1), who was student of Class-VIII, had gone to school along
with her cousin. Since the school was not opened, they were sitting behind
the school. At that time, the appellant came there and after enticing the
victim (PW-1), took her to his village on his motor cycle and on the way in
the forest area, he sexually abused her on the pretext of marriage.
Brother-in-law of the appellant brought back the victim to her house and
thereafter the victim narrated the incident to her parents. On 25.7.2012 FIR
(Ex-P/1) was lodged against the appellant. The victim was sent for medical
examination. Her undergarments and marksheet were seized (Ex-P/3 & P/
4). The doctor also collected her pubic hair and slides for examination
which were seized by the police vide Ex-P/9 and sent for chemical
examination. After completion of the investigation, charge sheet was filed
in the court of Chief Judicial Magistrate, Jagdalpur who committed the
same to the Court of Sessions, from where, it was received on transfer by
the Additional Sessions Judge (FTC), Bastar at Jagdalpur, who conducted
the trial.
3. The learned Additional Sessions Judge framed charges under
Sections 363, 366, 376 & 506 B of the IPC and after completion of the trial,
acquitted the appellant under Section 506B IPC, while convicted him under
the aforementioned sections of IPC, hence, this appeal.
4. Learned counsel for the appellant argued that the appellant and the
victim were known to each other. The victim had gone with the appellant
with her own will. Concrete evidence in respect of age of the victim has not
been produced by the prosecution, despite that, the learned Court below
held her minor, and has convicted the appellant for the alleged offence. It
is further submitted that this is a case of false implication, therefore, the
appellant should be acquitted of the charges framed against him.
Alternatively, he argued that the appellant was a young boy of 25 years,
both the parties are villagers of tribal District Bastar and belong to same
community, the punishment imposed against the appellant is harsh and
the same should be reduced to the minimum preferably the period already
undergone by him which comes near about 05 years and 06 months as
the appellant is in jail since 21.10.2016.
5. On the other hand, learned counsel for the State opposed the above
arguments. He submitted that the appellant has been rightly convicted for
the aforementioned sections of IPC and no liberal view should be taken in
this case.
6. I have heard learned counsel for the parties at length and have also
perused the record of the sessions trial.
7. So far as the first point regarding age of the prosecutrix is
concerned, the prosecutrix has deposed in her evidence that at the time of
the incident, she was studying in Class-VIII and her date of birth is
18.7.1999. She has also stated in this regard that police has seized her
marksheet vide Ex-P/4 which has been supported by investigating officer
AK Khan (PW-2). Jhitaru @ Lakhmi (PW-4), father of the victim and Guro
(PW-5), mother of the victim, have also supported the statement of the
victim regarding her study and her minority at the time of the incident.
Although they are illiterate persons, they have not stated the date of birth of
the victim. Dr. Govind Singh (PW-7) had conducted ossification test of the
victim on 26.7.2012 and Ex-P/14 is the report prepared by him, wherein, he
has opined that as per the said test, age of the victim was between 12-15
years on the date of her aforesaid examination.
8. In the case of Jayamala vs. Home Secretary, Govt. of Jammu and
Kashmir & Ors. reported in AIR 1982 SC 1297, the Hon'ble Supreme
Court has observed that the margin of error in age ascertained by
radiological examination is two years on either side. Thus, from the date of
birth of the victim mentioned in the school record and ossification test
report (Ex-P/14) prepared by Dr. Govind Singh (PW-7), it is proved that at
the time of incident, the victim prosecutrix was below the age of 15 years.
In the cross examination, the aforesaid evidence has not been rebutted on
behalf of the appellant, hence, this Court find that the the learned trial
Court has rightly held that at the time of the incident, the victim was minor.
9. The victim has deposed in her statement that when she had gone to
school with Anil, there the appellant came and enticed her to go for
roaming and he took her to his village on his motor cycle and on the way in
forest between village Dumarguda and Chitapdar, he committed rape with
her on the pretext of marriage. In the cross-examination also, the victim
affirmed her earlier statement. She has also stated that brother-in-law (jijaji)
of the appellant had brought her back to her home. Anil Netam (PW-6),
who had gone to the school with the victim, has also supported her
statement that the appellant had taken her on his motor cycle, though she
was refusing to go with him. Jhitaru @ Lakhmi (PW-4) and Guro (PW-5),
who are father and mother of the victim, have also supported the statement
of their daughter.
10. Dr. Manisha Goel (PW-10), who examined the victim, has deposed
that on examination, no injury was found on the private parts of the victim,
her hymen was found old ruptured. She has also deposed that no injury
was found on her vagina, but she was in menstrual period, hymen torn at 3
o'clock to 9 o' lock position, vagina admitting two finger with difficulty. She
has also opined that no definite opinion can be given regarding rape. She
has also stated that she prepared two vaginal slides and also collected
sample of pubic hair for chemical examination. Ex-P/13 is the report of
chemical examination wherein, it has been reported that in Article A
(undergarment of the victim) and in article B (slides prepared from the
vagina of the victim) presence of semen stain and human spermatozoa
were found. The defence has not been able to demolish all these
evidence available on record and the evidence of the victim appears to be
fully reliable and inspires confidence of this Court so as to hold the
appellant guilty of the aforementioned sections of IPC. Moreover, as
stated above, her evidence is well supported by the evidence of her father,
mother, cousin Anil Netam and also supported by the report of FSL.
Therefore, the trial Court has rightly held that the appellant was guilty of
the aforesaid offence and the arguments pertaining to the false implication
of the applicant cannot be entertained.
11. Coming to the argument of learned counsel for the appellant
regarding punishment, learned counsel for the appellant referred to the
decision of the Apex Court in the matter of State of Chhattisgarh vs.
Dehra reported in (2004) 9 SCC 699. In that case, rape was committed
with a girl aged about 08 years and the accused was aged about 18 years
at the time of the incident. He had also served about 6 ½ years of
imprisonment consequent to the sentence awarded to him and was having
a family. In such circumstances, the Apex Court vide para 8 of the
judgment, while allowing the appeal of the State and setting aside the
judgment of the High Court, reduced the sentence to 7 years RI. The
statement of learned counsel for the appellant was that almost similar
circumstances are also here and the same benefit should also be extended
to the present appellant.
12. The principle of proposition between crime and punishment is
governed by the "Doctrine of just desert". The doctrine is the foundation of
a criminal sentence which is ultimately awarded for a punishment to the
wrong doer. What one really deserves should be the punishment for
having committed a crime is the underlying principle. The punishment
must not be disproportionately great is a corollary of ' just desert' which is
governed by the same principle which says that there cannot be a
punishment without guilt and the basic element behind the principle is the
proportion between crime and punishment. The lesser is the gravity of the
crime, the smaller would be the punishment and the greater is the gravity of
the crime, the higher would be the punishment, subject to the ancillary
factors for determining the proportion of the same, though all further
subject to the statutory obligations specifically provided by law in force.
13. In the instant case, at the time of the incident, the appellant was said
to be aged about 25 years and the victim was aged about below 15 years,
both are villagers of Bastar district and belong to same community. The
appellant is in jail from the beginning, i.e. from 21.10.2016 (first date of his
arrest) and thereby he has already undergone the imprisonment for about
05 years and 06 months. In the facts and circumstances of this case, I
deem it appropriate to reduce the sentence from SI for 7 years to SI for 03
years for offence under Section 363 IPC; RI for 10 years to RI for 07 years
for offence under Sections 366 & 376 IPC each, which would serve the
ends of justice being quantum 'just deserve'.
14. In the result, the appeal is partly allowed. Conviction part of the
judgment is hereby affirmed, however, sentences awarded to the appellant
are modified in the following manner:-
Sl. Conviction under Jail Sentence Fine Default
No. Section Sentence stipulation
01. 363 IPC RI for 03 Rs. 1000/-
years Imprisonment
02. 366 IPC RI for 07 Rs.1000/- for 06 months
years
03. 376 IPC RI for 07 Rs.1000/-
years
The appellant shall be entitled to set off and he shall also be entitled
to any legal remission permissible in law for having already served the
above sentence of imprisonment. The order of running the substantive jail
sentences concurrently is also confirmed.
Sd/-
(N.K. Chandravanshi)
JUDGE
Bini
