Krishna Chand Sao @ Kushto vs State Of Chhattisgarh
2023 Latest Caselaw 368 Chatt

                                                                              Cr.A.No.12/2014

                                          Page 1 of 7

                                                                                          NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                            Criminal Appeal No.12 of 2014

{Arising out of judgment dated 27-11-2013 in Sessions Trial No.146/2011
      of the Additional Sessions Judge (Fast Track Court), Raigarh}

Krishna Chand Sao @ Kushto, S/o Bhagirathi Sao, aged about 83 years,
R/o Village Bade Hardi, Police Station Pussore, District Raigarh (C.G.)
                                                              ---- Appellant

                                            Versus

State of Chhattisgarh, Through Police Station Pussore, District Raigarh
(C.G.)
                                                       ---- Respondent

--------------------------------------------------------------------------------------------------
For Appellant:          Mr. Abhishek Saraf, Advocate.
For State / Respondent: -
                        Mr. Sudeep Verma, Deputy Government Advocate and
                        Mr. Soumya Rai, Panel Lawyer.
--------------------------------------------------------------------------------------------------

                      Hon'ble Shri Sanjay K. Agrawal and
                     Hon'ble Shri Radhakishan Agrawal, JJ.

Judgment On Board (18-1-2023)

Sanjay K. Agrawal, J.

1. This criminal appeal preferred by the appellant herein under

Section 374(2) of the CrPC is directed against the impugned

judgment of conviction and order of sentence dated 27-11-2013

passed in Sessions Trial No.146/2011 by the Additional Sessions

Judge (Fast Track Court), Raigarh, by which the appellant has been

convicted under Sections 376(1) & 506 Part-II of the IPC and

sentenced to undergo imprisonment for life & pay a fine of ₹

50,000/-, in default, additional rigorous imprisonment for one year

and rigorous imprisonment for five years & fine of ₹ 5,000/-, in Cr.A.No.12/2014

default, additional rigorous imprisonment for six months,

respectively.

2. Case of the prosecution, in short, is that prior to 31-1-2011 at

Village Bade Hardi, Police Station Pussore, District Raigarh, the

appellant has committed sexual intercourse with the minor victim -

his close relative, and thereafter threatened her to kill her and

thereby committed the offence. It is the further case of the

prosecution that 8-9 months prior to 31-1-2011, when the minor

victim got ready to go for school, on some pretext, the appellant

called her and thereafter gave her some eatables which she

consumed and thereafter committed sexual intercourse with her.

The minor victim was taken to Asharfidevi Hospital where she was

found to have become pregnant and thereafter, she delivered a

baby. Thereafter, the FIR was lodged and the offence was

registered against the appellant and he was charge-sheeted.

3. After due investigation, charge-sheet was filed against the appellant

for offence under Sections 376 & 506 Part-II of the IPC before the

Court of jurisdictional criminal court and the case was committed to

the Court of Sessions, Raigarh from where the learned Additional

Sessions Judge (FTC), Raigarh received the case on transfer for

trial.

4. The prosecution in order to bring home the offence, examined as

many as 8 witnesses in support of its case and exhibited 17

documents Exs.P-1 to P-17. Defence has not examined any

witness in its support, however, exhibited two documents Exs.D-1 &

D-2. Statement of the accused / appellant was recorded under Cr.A.No.12/2014

Section 313 of the CrPC in which he abjured the guilt and pleaded

innocence and false implication and claimed to be tried.

5. The trial Court after completion of trial and upon appreciation of oral

and documentary evidence, by its impugned judgment, convicted

and sentenced the appellant as mentioned in the opening

paragraph of this judgment against which he has preferred the

instant appeal under Section 374(2) of the CrPC.

6. Mr. Abhishek Saraf, learned counsel appearing for the appellant,

would submit that the appellant has not committed any offence and

he has been falsely implicated. In alternative, he would submit that

the appellant had undergone more than seven years of sentence

which is the minimum sentence prescribed for the commission of

offence under Section 376(1) of the IPC. He would further submit

that the appellant is 93 years of age and is ailing, therefore, at this

stage, the appellant having undergone minimum sentence of 7

years, the period already undergone by him would be just and

sufficient sentence for him on this exceptional circumstance of his

old age of 93 years.

7. Mr. Sudeep Verma, learned Deputy Government Advocate

appearing for the State/respondent, would support the impugned

judgment and submit that the prosecution has brought home the

offences against the appellant and has proved the case beyond

reasonable doubt and thus, the appellant has rightly been convicted

under Sections 376(1) & 506 Part-II of the IPC and sentenced to

suffer imprisonment for life. Moreover, the appellant is alleged to

have committed the offence of rape on a minor girl, therefore, the Cr.A.No.12/2014

appeal deserves to be dismissed.

8. We have heard learned counsel for the parties and considered their

rival submissions made herein-above and also went through the

record with utmost circumspection.

9. The trial Court upon appreciation of oral and documentary evidence

on record relying upon Ex.P-5 and the statement of victim's mother

Purnima Sao (PW-2) and also relying upon the victim's statement

and the medical evidence of Dr. (Mrs.) J.K. Choudary (PW-6), has

rightly come to the conclusion that the victim was minor on the date

of offence, which is a pure and simple finding of fact based on the

evidence available on record, it is neither perverse nor contrary to

the record.

10. Furthermore, the trial Court relying upon the statements of the

victim, her mother Purnima Sao (PW-2), Abhimanyu Sah (PW-3),

Padmanlal Gupta (PW-4) and investigating officer Dinesh Kumar

Kurre (PW-8) and also relying upon the medical evidence of Dr.

(Mrs.) J.K. Choudary (PW-6), has rightly come to the conclusion

that the appellant has committed sexual intercourse with the minor

victim and thereby committed the offence, which is a pure and

simple finding of fact based on the evidence available on record, it

is neither perverse nor contrary to the record. It is, therefore, held

that the trial Court has rightly held that the appellant has committed

sexual intercourse with the minor victim and thereby committed the

offence and we hereby affirm the conviction as recorded by the trial

Court.

11. Now, the next question is, whether the trial Court is justified in Cr.A.No.12/2014

sentencing the appellant to undergo imprisonment for life under

Section 376(1) of the IPC?

12. Section 376 of the IPC suffered amendment with effect from 3-2-

2013. Prior to amendment, Section 376 states as under: -

"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 years 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 case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,--

(a) being a police officer commits rape-

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed, or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape Cr.A.No.12/2014

on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape,

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:"

13. A careful perusal of Section 376 of the IPC (prior to amendment),

would reveal that 7 years minimum sentence has been prescribed

which may extend to ten years. The Supreme Court in the matter

of Vipul Rasikbhai Koli Jankher v. State of Gujarat1 considering

the decisions in the matters of Dharambir v. State of Uttar

Pradesh2 and Maru Ram v. Union of India3 has held that in

determining the quantum of sentence, the Court must bear in mind

the circumstances pertaining to the offence and all other relevant

circumstances including the age of the offender, and in that case

sentenced the appellant therein for a term of 15 years'

imprisonment.

14. It appears that the appellant, at present, is aged about 93 years and

he remained in jail for more than seven years. Following the

decision of the Supreme Court in Vipul Rasikbhai Koli Jankher

2 (1979) 3 SCC 645 3 (1981) 1 SCC 107 Cr.A.No.12/2014

(supra), ends of justice would be served if the appellant is

sentenced for the period already undergone by him, as he was in

jail from 5-8-2011 to at least till 15-1-2021, in place of the sentence

of life imprisonment as awarded by the trial Court.

15. Consequently, the appeal is partly allowed. Affirming the conviction

of the appellant under Sections 376(1) & 506 Part-II of the IPC, we

hereby sentence him to the period already undergone by him, as he

was in jail from 5-8-2011 to 15-1-2021. The appellant is on bail. He

need not surrender. However, his bail bonds shall remain in force

for a period of six months in view of the provision contained in

Section 437A of the CrPC.

                 Sd/-                                           Sd/-
          (Sanjay K. Agrawal)                        (Radhakishan Agrawal)
                Judge                                          Judge

Soma