Chattisgarh High Court
Dinu @ Dinesh Paseriya vs State Of Chhattisgarh on 27 January, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 246 of 2014
Dinu @ Dinesh Paseriya, S/o Kantaprasad Paseriya, aged
about 25 Years, R/o Sweeper Colony Banstal, Thana
Golbazar, District Raipur, C.G.
----Appellant
Versus
State of Chhattisgarh, Through PS Golbazar, District Raipur,
Chhattisgarh.
---- Respondent
For Appellant Mr. Badruddin Khan, Advocate.
For Respondent/State Mr. Ashish Tiwari, Government
Advocate.
Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Radhakishan Agrawal, JJ.
Judgment On Board
(27-01-2023)
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
06.12.2013 passed in Sessions Trial No.96/2013 by the
Additional Sessions Judge (Fast Track Court), Raipur, C.G., by
which the appellant stands convicted & sentenced as under:-
Conviction Sentence
Under Section 376 of Indian Imprisonment for life and fine of
Penal Code (for short, 'IPC') Rs.500/-, in default of payment
on two counts of fine to further undergo
rigorous imprisonment for three
months on each count
Under Section 506 of IPC Imprisonment for six months and
fine of Rs.100/-, in default of
payment of fine to further
undergo rigorous imprisonment
for one month
Under Section 4 of the Imprisonment for life and fine of
Protection of Children from Rs.500/-, in default of payment
Sexual Offences Act, 2012 (for of fine to further undergo
short, 'POCSO Act, 2012) on rigorous imprisonment for three
two counts months on each count
(All sentences were directed to run concurrently)
2. Case of the prosecution, in brief, is that since the parents of
the minor victim left her abandoned, she started staying with
the appellant in his house. After 5-6 days of her staying with
the appellant, on 27.03.2013, the appellant committed sexual
intercourse with her and on 03.04.2013, he committed the act
of penetrative sexual assault with the minor victim against
which FIR Ex.P-3 was lodged and the aforesaid offences were
registered against the appellant. Victim was sent for medical
examination where she was examined by PW-09 Dr. Neela
Kumhare and she gave her MLC report vide Ex.P-10. Slides
were prepared and sent to FSL for chemical examination vide
Ex.P-17 but FSL report (Ex.P-20) was found negative. As per
seizure memo Ex.P-15, date of birth of the victim is
19.01.1998 which shows that on the date of incident, victim
was minor.
3. After due investigation, the appellant was charge-sheeted
before the jurisdictional criminal Court and the case was
committed to the trial Court for hearing and disposal in
accordance with law, in which appellant/accused abjured his
guilt and entered into defence by stating that he has not
committed the offence.
4. The prosecution in order to bring home the offence, examined
as many as 10 witnesses in support of its case and exhibited
20 documents Exs.P-1 to P-20. Defence has examined only
one witness i.e. DW-1 Smt. Ratna Paseriya and exhibited one
document Ex.D-1.
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. Learned counsel appearing for the appellant submits that
there is no legally admissible evidence available on record
against the appellant and only on the statement of victim,
appellant has been convicted for the aforesaid offences. He
also submits that there are major contradictions and omissions
in the statements of victim and other witnesses. He further
submits that medical report does not support the case of the
prosecution and also FSL report has been found negative. No
cogent evidence is available on record for holding the
appellant guilty. Therefore, the impugned judgment of
conviction and order of sentence deserves to be set aside and
the appellant be acquitted of the said charges.
7. Learned counsel for the State supports the impugned
judgment and submits 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 and sentenced for the aforesaid offences.
Moreover, the appellant is alleged to have committed the
offence of rape on a minor girl, therefore, the 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 the statement of victim
(PW-3) has rightly come to the conclusion that appellant
committed sexual intercourse and also committed the act of
penetrative sexual assault with the minor victim and thereby
committed the aforesaid offences and we hereby affirm the
conviction as recorded by the trial Court.
10. Now, the next question is whether the trial Court was justified
in sentencing the appellant to undergo imprisonment for life
under Section 376 of IPC and Section 4 of the Protection of
Children from Sexual Offences Act?
11. Section 4 of the Protection of Children from Sexual Offences
Act suffered amendment with effect from 16.08.2019. Section
4 before amendment stood as under:
Section 4- Punishment for penetrative sexual assault
"Whoever commits penetrative sexual assault
shall be punished with imprisonment of
either description for a term which shall not
be less than seven years but which may
extend to imprisonment for life, and shall also
be liable to fine."
12. Similarly, Section 376(2)(i) IPC (as it was on the date of
offence i.e. on 27.03.2013) provides the following punishment
for rape with victim under 16 years of age prior to amendment
with effect from 21.04.2018. Section 376(2)(i) of IPC before
amendment stood as under:-
"Section 376:- Punishment for rape-
1. ..........
2. Whoever,--
.........................
i. commits rape on a woman when she is under
sixteen years of age; or .........
shall be punished with rigorous imprisonment for a
term which shall not be less than ten years, but
which may extend to imprisonment for life, which
shall mean imprisonment for the remainder of that
person's natural life, and shall also be liable to
fine."
13. The Supreme Court in the matter of Vipul Rasikbhai Koli
Jankher v. State of Gujarat 1 considering the decisions in the
matters of Dharambir v. State of Uttar Pradesh 2 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 35
years and he remained in jail for more than 9 years and 8
months. Following the decisions of the Supreme Court in
Vipul Rasikbhai Koli Jankher (supra) and Santosh Prasad
Alias Santosh Kumar vs. State of Bihar 4, we are of the
considered opinion that 10 years jail sentence would be
adequate punishment in the instant case for committing the
offence under Section 376 of IPC and Section 4 of the
POCSO Act.
15. Consequently, the appeal is partly allowed. Affirming the
conviction of the appellant under Section 376 of IPC and
Section 4 of the POCSO Act, we award him sentence for 10
years rigorous imprisonment by reducing it from life
imprisonment but the fine amount imposed by the learned trial
Court shall remain intact. The conviction under Section 506 of
IPC and sentence awarded thereunder by the learned trial Court
2 (1979) 3 SCC 645
3 (1981) 1 SCC 107
4 (2020) 3 SCC 443
to the appellant is also hereby affirmed.
16. Accordingly, this criminal appeal is allowed in part to the extent
indicated herein-above.
Sd/- Sd/-
(Sanjay K. Agrawal) (Radhakishan Agrawal)
Judge Judge
Akhilesh
