Chattisgarh High Court
Sandresh Kumar vs State Of Chhattisgarh on 23 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 112 of 2014
Sandresh Kumar, S/o. Kartik Ram Gond, Aged About 22 Years,
R/o. Village Gersa, P.S. Lundra, Distt. Surguja, Revenue & Civil
Distt. Surguja, Chhattisgarh
---Appellant
Versus
State of Chhattisgarh, Through P.S. Lundra, Distt. Surguja,
Chhattisgarh
---Respondent
For Appellant :- Mr. Vikas Pandey, Advocate.
For State/Respondent :- Mr. Sudeep Verma, Dy. Govt. Advocate
with Mr. Afroz Khan, Panel Lawyer.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
(23.01.2023)
Sanjay K. Agrawal, J.
1. This criminal appeal preferred by the appellant under Section
374(2) of Cr.P.C. is directed against the impugned judgment
dated 30.11.2013 passed by learned Additional Sessions Judge
(F.T.C.), Ambikapur, in Sessions Trial No.277/2012, by which the
appellant herein has been convicted for the offences under
Sections 363, 366, 342 & 376(1) of Indian Penal Code and
sentenced as under :
Conviction Jail Sentence Fine Default sentence
sentence
Sec. 363 of I.P.C. R.I. for 5 years Rs.500/- R.I. for 15 days
Sec. 366 of I.P.C. R.I. for 5 years Rs.500/- R.I. for 15 days
Sec. 342 of I.P.C. R.I. for 1 year Rs.200/- R.I. for 7 days
Sec. 376(1) of I.P.C. Life Imprisonment Rs.1000/- R.I. for 1 month
2. Case of the prosecution, in short, is that on 16.05.2012 at 7:00
p.m. at Village Gorsa (Baigapara), P.S. Lundra, the appellant
kidnapped the minor victim and confined her in the house of
Gulab Panika and committed sexual intercourse with her;
thereby the aforesaid offences have been committed.
3. It is the further case of the prosecution that on 16.05.2012, the
appellant had visited the house of the victim to witness her
uncle's marriage and in the night, finding her alone, the
appellant caught hold of her and took her to the house of Gulab
Panika and committed sexual intercourse with her. On the next
day, it was informed to her mother Dhanaso (PW-2) and Rodhi
Bai (PW-3) and thereafter the matter was reported by the victim
(PW-1) and wheels of investigation started running and after
medical examination vide Ex.P-8, the undergarments and slides
were sent for FSL and in FSL report dated 15.05.2013, no
sperm or semen was found on Articles A, B, C1 & C2. After
usual investigation, the appellant was charge-sheeted for the
aforesaid offences, and the case was ultimately committed to
the Court of Sessions for trial in accordance with law, in which
the accused abjured his guilt and entered into defence stating
that he has been falsely implicated and he has not committed
any offence.
4. In order to bring home the offence, prosecution examined as
many as 11 witnesses and exhibited 16 documents and the
appellant-accused in support of his defence has exhibited only
one document as Ex.D-1.
5. The trial Court, after appreciation of oral and documentary
evidence on record, convicted the appellant herein for the
offences as mentioned in the opening paragraph of the
judgment, against which the present appeal has been preferred.
6. Learned counsel for the appellant submits that the appellant has
not committed any offence and he has falsely been implicated.
He further submits, even if the conviction is affirmed, the
appellant is in jail for more than 10 years and therefore
considering the age of the appellant, who was 20 years on the
date of offence, he is entitled to be sentenced for the period
already undergone.
7. Learned State counsel submits that the appellant has rightly
been convicted for the aforesaid offences, as such, the
impugned judgment is well merited and the appeal deserves to
be dismissed.
8. We have heard learned counsel for the parties, considered their
rival submissions made herein-above and went through the
records with utmost circumspection.
9. The victim (PW-1) was found to be minor on the date of offence
vide Ex.P-3, which is proved by S.L.Gadhwal (PW-9) - Assistant
Sub Inspector. Furthermore, the act of sexual intercourse has
also been proved by the statement of the victim (PW-1), as she
has complained swelling and redness over her vaginal part and
she has also complained pain. Considering the statements of
victim (PW-1), her mother Dhanaso (PW-2), Dr. Manju Ekka
(PW-6) and Dr. Santosh Singh (PW-11), we are of the
considered opinion that the trial Court has rightly convicted the
appellant for the aforesaid offences. We do not find any
illegality or perversity in convicting the appellant for the offences
under Sections 363, 366, 342 & 376(1) of Indian Penal Code.
10. Now, it has been argued on behalf of the appellant that he was
young boy, aged about 20 years, at the time of offence and the
minimum sentence prescribed for the offence is seven years on
that date; therefore, sentence be reduced for the period already
undergone, which is opposed by the learned State counsel.
11. Section 376(1) of I.P.C. prior to its amendment with effect from
03.02.2013 by Act No.13 of 2013, stood 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 cases, he shall be punished with
imprisonment or 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 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.
12. The Supreme Court in the matter of further Vipul Rasikbhai
Koli Jankher v. State of Gujarat 1 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, relying upon
the decisions of the Supreme Court in Dharambir v. State of
Uttar Pradesh2 and in Maru Ram v. Union of India3.
13. Following the decision of the Supreme Court in Vipul Rasikbhai
Koli Jankher (supra), Dharambir (supra) and Maru Ram
2 (1979) 3 SCC 645
3 (1981) 1 SCC 107
(supra), it is quite vivid that in the instant case, the appellant
was aged about 20 years on the date of offence and he
remained in jail for 10 years and 8 months and the minimum
sentence prescribed under Section 376(1) of I.P.C. as on the
date when the offence was committed, is seven years.
Considering the fact that he was not found involved in any other
offence, ends of justice would be served if instead of the
sentence of life imprisonment, which was imposed upon the
appellant for conviction under Section 376(1) of I.P.C., the
appellant is sentenced to 11 years' imprisonment.
14. Accordingly, the appeal is partly allowed. For conviction of
offence under Section 376(1) of I.P.C., the appellant is
sentenced to a term of 11 years' imprisonment. His conviction
sentences for other offences are maintained.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Aks
