Allowed

Kalachand Sahu @ Maldiha v. State Of Chhattisgarh

Chhattisgarh HC20 Jul 2023CRA/722/2015

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh allowed the criminal appeal to the extent of reducing the life sentence awarded for rape to 10 years rigorous imprisonment. The Court affirmed the conviction based on the sole testimony of the victim, relying on Supreme Court precedents regarding sentence rationality and the impact of prolonged incarceration on offenders.

What did the court decide?

Appellant's sentence reduced to 10 years rigorous imprisonment; fine reduced to Rs. 5000/-; appeal allowed to that extent.

Kalachand Sahu @ Maldiha Vs State Of Chhattisgarh — Chhattisgarh HC (2023) — LawSathi Research

CRA No. 722 of 2015

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 722 of 2015

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Kalachand Sahu @ Maldiha S/o Tarkeshwar Sahu @ Talebar, aged about 35 years, R/o Village Malda, Police Station Pusour, District Raigarh Chhattisgarh, present address house of Natthu Sahu, Tamnar, District Raigarh Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh, through the Station House Officer, Police Station Tamnar, Civil and Revenue District Raigarh Chhattisgarh.

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---- Respondent

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For Appellant :- Ms. Laxmin Tondey, Advocate. For State / Respondent :- Mr. Soumya Rai, Panel Lawyer.

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Division Bench

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

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Judgment On Board (20.07.2023)

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Sanjay K. Agrawal, J

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This criminal appeal under Section 374(2) of the CrPC preferred

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by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 23.03.2015 passed by the learned Additional Sessions Judge Fast Track Court, Raigarh, Chhattisgarh in Sessions Trial No. 197/2014 by

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CRA No. 722 of 2015

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which appellant has been convicted for offence under Section 376 of the IPC and sentenced to undergo imprisonment for life and pay fine of ₹ 50,000/- (Fifty Thousands Rupees); in default of payment of fine additional R.I. for six months.

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Case of the prosecution, in brief, is that on 02.07.2014 at about 1:30 pm at Police Station Tamnar, District Raigarh, behind the Tehsil office the appellant confined the victim (PW-1) and committed sexual intercourse with her and thereby, committed the aforesaid offence.

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Further case of the prosecution is that victim (PW-1) with her mother Savitri Bai (not examined) used to stay on rent in the house of Natthu Sahu (not examined) and appellant is the son-inlaw of Natthu Sahu. It is further case of the prosecution that on the date of offence i.e. 02.07.2014 when the victim (PW-1) was going to take bath, the appellant came there and forcefully took her into his room and committed sexual intercourse with her and when victim (PW-1) was trying to save herself, appellant assaulted her mother by stick. Appellant's wife and mother-in-law were also present there at the time of incident. The said incident was reported by victim (PW-1) to Police Station Tamnar vide Ex.P/1. Nazari Naksha was prepared vide Ex.P/2. Victim (PW-1) was medically examined by Dr. Savitri Tigga (PW-4) and her medical report was prepared vide Ex.P/6 to 8 and thereafter,

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CRA No. 722 of 2015

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victim's underwear and lungi of accused were seized vide Ex.P/4 & Ex.P/14 respectively, and slides of the victim (PW-1) were also taken and all the items were sent for chemical analysis to the FSL, but the FSL report has not been brought on record for the reasons best known to the prosecution.

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After due investigation, appellant was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. Statement of the appellant was taken under Section 313 of CrPC wherein, appellant / accused abjured his guilt and entered into defence stating that he has not committed the offence.

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In order to bring home the offence, prosecution has examined as many as 6 witnesses and exhibited 22 documents, whereas the appellant in support of his defence has not examined any witness and exhibited one document (Ex.D/1).

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The learned trial Court after appreciating the oral and documentary evidence available on record, convicted the appellant for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred questioning the impugned judgment of conviction and order of sentence.

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CRA No. 722 of 2015

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Ms. Laxmin Tondey, learned counsel for the appellant, submits that the trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence by recording a finding which is perverse to the record as there is no evidence on record upon which his conviction could have been based. She also submits that except the testimony of victim (PW-1), no other evidence is available on record and the medical evidence, FSL report, connecting the appellant in crime in question is also not available and the appellant is entitled for reduction in sentence awarded by

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the trial Court. She further submits that appellant is in jail since 06.07.2014, as such, he deserves to be acquitted and the appeal deserves to be allowed.

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Per contra, Mr. Soumya Rai, learned State counsel, would support the impugned judgment and submit that prosecution has been able to prove the offence beyond reasonable doubt. He further submits that conviction of the appellant is based on the testimony of victim (PW-1), who is a reliable witness, 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 gone 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 offence in question?

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CRA No. 722 of 2015

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The conviction of the appellant is based on the sole testimony of victim (PW-1), who was major on the date of offence. She has clearly stated in her statement before the Court that on the date of offence appellant took her in his room and committed sexual intercourse though she has been subjected to lengthy crossexamination but nothing has been extracted to hold that the appellant has not committed sexual intercourse with her. As such, we are of the considered opinion that conviction of the appellant recorded on the basis of the statement of victim (PW-1) is well merited and does not call for interference.

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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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In this regard, learned counsel for the appellant submits that in the light of the decision rendered by the Supreme Court in the 1

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matter of Vipul Rasikbhai Koli Jankher v. State of Gujarat , sentence awarded to the appellant by the trial Court is liable to be reduced.

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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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1 2022 LiveLaw (SC) 288

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CRA No. 722 of 2015

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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 twoJudge 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 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 sexstarved 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

2 (1979) 3 SCC 645

3 (1981) 1 SCC 107

CRA No. 722 of 2015

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 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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CRA No. 722 of 2015

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Following the decision of the Supreme Court in Vipul Rasikbhai (supra) and considering the fact that the age of the appellant was 35 years on the date of the offence and there is no evidence available on record that the appellant is hardened criminal and he is not likely to be a good citizen if the sentence is reduced by this Court and there is no evidence that he has committed jail offence during his incarceration, we hereby reduce the sentence of the appellant and award him rigorous imprisonment for 10 years for offence under Section 376 of the

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IPC, as he is in jail since 06.07.2014 and the fine amount is reduced to ₹ 5000/- (Five Thousand Rupees).

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

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Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for necessary information and action, if any.

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

Kalachand Sahu @ Maldiha v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kalachand Sahu @ Maldiha v. State Of Chhattisgarh

Case brief

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What did the court decide?

What the court decided

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