Partly allowed

Karan Yadav v. State Of Chhattisgarh

Chhattisgarh HC12 Jul 2023CRA/443/2015

Case brief

AI extract

What is this about?

High Court upheld conviction for sexual assault and kidnapping under IPC and POCSO. Relying on Vipul Rasikbhai Koli, Court reduced life sentence to 10 years for POCSO offence due to age and minimum term, maintaining remaining sentences.

What did the court decide?

Life sentence reduced to 10 years for POCSO offence; convictions and sentences for IPC Sections 363, 366 affirmed.

Karan Yadav Vs State Of Chhattisgarh — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Criminal Appeal No. 443 of 2015

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Karan Yadav S/o Late Gariba Yadav, Aged about 34 years, R/o Mopka, P.S. Sarkanda, District Bilaspur, Chhattisgarh.

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---Appellant

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Versus

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State of Chhattisgarh through P.S. Sarkanda, District Bilaspur, Chhattisgarh.

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---Respondent

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For Appellant	:-	Mr. Rakesh Jain and Mrs. Kiran Jain,
		Advocates
For State	:-	Mr. Afroz Khan, P.L.

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Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Radhakishan Agrawal

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Judgment on Board 12/07/2023

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Sanjay K. Agrawal, J.

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This criminal appeal under Section 374(2) of CrPC has been preferred by the appellant herein against the impugned judgment dated 20/11/2014 passed by learned Additional Sessions Judge (FTC), Bilaspur in Sessions Trial No. 84/2014 whereby he has been convicted and sentenced as under :-

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Conviction	Sentence
U/s 376(2)(i) of IPC (deleted with effect from 21/01/2018	-
U/s 4 of Protection of Children from Sexual	Imprisonment for life with fine of Rs. 5000/- in default of
Offences Act, 2012	payment of fine, R.I. for 6 months.

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2
U/s 363 of IPC R.I. for 3 years with fine of Rs. 1000/- in default of payment of fine, R.I. for 1 month.
U/s 366 of IPC R.I. for 10 years with fine of Rs. 1000/- in default of payment of fine, R.I. for 1 month.

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Case of the prosecution is that victim (P.W.-1), aged about 13 years, herself lodged a report at Police Station Sarkanda that on 29/12/2013, she was at home and appellant came and told her that her mother has asked her to come for buying bicycle and took her to Chilhati Road on his motorcycle. Thereafter, he parked his motorcycle on the side of the road and forcefully removed the clothes worn by the victim and committed sexual intercourse with her. Then at about 7 PM, he again took her on his motorcycle and left her at the fair and threatened her to kill if she told about the incident to anyone. The victim (P.W.-1) reached her home and told about the incident to her mother (P.W.-7) and her grandmother (P.W.-4).

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On the report of the victim, first information report (Ex. P/1) was lodged against the appellant and nazri naksha was prepared vide Ex. P/2. Permission was sought from the Subdivisional Magistrate for medical examination of the victim vide Ex. P/14 and thereafter, her medical examination was conducted by Dr. Nilima Sharma (P.W.-3) on 30/12/2013 and the MLC report (Ex. P/8) was though found negative but two slides were prepared and they were sent for forensic examination and as per the FSL report (Ex. P/17), spots of semen and human sperm were found on the slides as well as

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on the underwear of the victim. After due investigation, the appellant was charge-sheeted for offence punishable under Sections 363, 366, 376(2)(i) of IPC, Section 4 of POCSO Act and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which was committed with the Sessions Court for trial in accordance with law. The appellant abjured his guilt and entered into defence.

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In order to bring home the offence, prosecution examined as many as 10 witnesses and brought on record 17 documents. Statement of the appellant was taken under Section 313 of CrPC wherein he denied guilt and he examined 1 witness and brought on record 3 documents in his defence.

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Learned trial Court, after appreciation of oral and documentary evidence on record, convicted the appellant for offences punishable under Sections 376(2)(i), 363 and 366 of IPC and Section 4 of POCSO Act and sentenced him as aforesaid.

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Mr. Rajesh Jain, learned counsel for the appellant, would submit that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences as there is no evidence on record upon which his conviction could have been based. In alternative, he would submit that the minimum sentence as stood on the date of offence is 10 years, therefore, this appeal be allowed and the appellant be sentenced to the period already undergone as he is in jail since 09/01/2014.

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Per contra, Mr. Afroz Khan, learned State counsel, would submit that prosecution has been able to prove the offence beyond reasonable doubt, as such, the trial Court has rightly convicted the appellant for the offences in question. He would further submit that apparently victim was aged about 13 years on the date of offence and in that view of the matter, the sentenced awarded by the trial Court is absolutely justified and it be maintained by dismissing the instant appeal.

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We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection.

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The first question for consideration is whether the trial Court is justified in convicting the appellant for the offences in question ?

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10. Victim (P.W.-1), who was a minor aged about 13 years on the date of the offence, was examined before the Court and she has clearly supported the case of the prosecution. Thereafter, victim was also subjected to medical examination which was conducted by Dr. Nilima Sharma (P.W.-3) and though the MLC report (Ex. P/8) has been found negative but the slides recovered from the victim were sent for forensic examination and as per the FSL report (Ex. P/17), spots of semen and human sperm has been found on the slides as well as on her underwear. As such, considering the entire evidence available on record, particularly considering the statement of the victim (P.W.-1) as well as the FSL report (Ex. P/17) which has been found positive, we are of the considered opinion that the trial

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Court has rightly convicted the appellant for the offences in question. We hereby affirm the conviction as recorded by the trial Court.

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11. Now the next question for consideration is whether, as claimed by learned counsel for the appellant, the appellant is entitled for reduction in sentence awarded by the trial Court ?

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12. In this regard, learned counsel for the appellant would submit that in light of the decision rendered by the Supreme Court in the matter of Vipul Rasikbhai Koli Jankher v. State of Gujarat 1, the sentence awarded to the appellant by the trial Court is liable to be reduced.

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13. The Supreme Court, in the matter of Vipul Rasikbhai (supra), has relied upon its earlier decisions rendered in the matters of

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Dharambir v. State of Uttar Pradesh 2 and Maru Ram v.

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Union of India 3 and held in paragraphs 7 and 8 as under :-

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“7. 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. The appellant has undergone actual imprisonment for a period of 11 years as on date. In Dharambir v. State of Uttar Pradesh (supra) a two-Judge Bench of this Corut specifically noted the impact of longer prison sentences on convicts who are young. Justice V R Krishna Iyer, speaking on behalf of the Court had noted the impact of prolonged incarceration:

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“2. We, however, notice that the petitioners in this case are in their early twenties. We must naturally give thought to the impact on these two young lives of a life sentence which means languishing in prison for years and years. Such induration of the soul induced by indefinite incarceration hardens the inmates, not softens their responses. Things as they are, long prison terms do not humanise or habilitate

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1 2022 LiveLaw (SC) 288

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2 (1979) 3 SCC 645

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3 (1981) 1 SCC 107

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but debase and promote recidivism. A host of other vices, which are unmentionable in a judgment, haunt the long careers of incarceration, especially when young persons are forced into cells in the company of callous convicts who live in sex-starved circumstances. Therefore, the conscience of the court constrains it to issue appropriate directions which are policy-oriented, as part of the sentencing process, designed to make the purpose of punitive deprivation of liberty, constitutionally sanctioned, is decriminalisation of the criminal and restoration of his dignity, self-esteem and good citizenship, so that when the man emerges from the forbidding gates he becomes a socially useful individual. From this angle our prisons have to travel long distances to meet the ends of social justice.”

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In our view, the ends of justice would be met by directing that instead and in place of the sentence of life imprisonmnet which has been imposed for the conviction under Section 376, the appellant shall stand sentenced to a term of 15 years' imprisonment. We are not inclined to uphold the argument of the respondentstate that only the sentence of life imprisonment would meet the ends of justice. The principles of restorative justice finds place within the Indian Constitution and severity of sentence is not the only determinant for doing justice to the victims. In Maru Ram v. Union of India (supra), Justice V R Krishna Iyer had poignantly highlighted the linkages between victimology and restorative justice :

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“74. ….. Some argument was made that a minimum sentence of 14 years' imprisonment was merited because the victim of the murder must be remembered and all soft justice scuttled to such heinous offenders. We are afraid there is a confusion about fundamentals in mixing up victimology with penology to warrant retributive severity by the back-door. If crime claims a victim criminology must include victimology as a major component of its concerns. Indeed, when a murder or other grievous offence is committed the dependants of other aggrieved persons must restore the loss of heal the injury is part of the punitive exercise. But the length of the prison term is no reparation to the crippled or bereaved and is futility compounded with cruelty. “Can storied urn or animated bust call to its mansion the fleeting breath ?” Equally emphatically, given perspicacity and freedom from sadism, can flogging the killer or burning his limbs or torturing his psychic being bring balm to the soul of the dead by any process of thanatology or make good the terrible loss caused by the homicide ? Victimology, a burgeoning branch

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of humane criminal justice, must find fulfillment, not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn. The State itself may have its strategy of alleviating hardships of victims as part of Article 41. So we do not think that the mandatory minimum in Section 433-A can be linked up with the distress of the dependents.

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14. Following the decision of the Supreme Court in Vipul Rasikbhai (supra) and considering the fact that the age of the appellant was 34 years on the date of the offence and it is not the case of the prosecution that it is likely that the appellant would convert himself into a hardened criminal further considering that minimum sentence for offence punishable under Section 4 of the POCSO Act at the time of offence was 7 years (enhanced to 10 years w.e.f. 16/08/2019), we hereby award the sentence of 10 years to the appellant for offence punishable under Section 4 of POCSO Act, in place of the sentence of life imprisonment as awarded by the trial Court, as he is in jail since 09/01/2014. However, the sentence for offence punishable under Sections 363 and 366 of IPC is hereby maintained along with the fine sentence and default sentences awarded by the trial Court in all the offences.

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15. Accordingly, this criminal appeal is allowed to the extend indicated herein-above.

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

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Harneet

Karan Yadav v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Karan Yadav v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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