Partly allowed

Kalu @ Rohit Chijwani v. State Of Chhattisgarh

Chhattisgarh HC21 Jul 2023CRA/745/2015

Case brief

AI extract

What is this about?

The High Court convicted the appellant based on the minor victim's sole testimony but allowed the appeal to reduce the life sentence. Citing Supreme Court precedents regarding young offenders, the Court substituted the life imprisonment for 10 years rigorous imprisonment for both offences while maintaining the fine.

What did the court decide?

Life imprisonment reduced to rigorous imprisonment of 10 years for each offence; fine remains intact; sentences to run concurrently.

Kalu @ Rohit Chijwani Vs State Of… — Child Sexual Offences (POCSO) | Chhattisgarh HC (2023)

CRA No. 745 of 2015

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 745 of 2015

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Kalu @ Rohit Chijwani S/o Rajkumar Chijwani, aged about 25 years, R/o Ward No. 13, Police Station Chakarbhatha, Civil and Revenue District Bilaspur, Chhattisgarh.

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---- Appellant

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Versus

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State of Chhattisgarh through Station House Officer, Police of Police Station Chakarbhatha, District Bilaspur Chhattisgarh.

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---- Respondent

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For Appellant :- Mr. Siddharth Shukla, Advocate. For State/Respondent :- Mr. Afroz Khan, 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 (21.07.2023)

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Sanjay K. Agrawal, J

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This criminal appeal under Section 374(2) of the CrPC preferred by the appellant-accused is directed against the impugned judgment of conviction and order of sentence dated 20.03.2015 passed by the learned Additional Sessions Judge (F.T.C.),

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CRA No. 745 of 2015

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Bilaspur, Chhattisgarh in Special Sessions Trial No. 259/2014 by

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which appellant herein has been convicted as under:-

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	Conviction	Sentence
Under IPC	Section 377 of	the Imprisonment for life and fine of ₹2000/-; in default of payment of fine additional R.I. for four months
Under POCS	Section 4 of O Act, 2012	the Imprisonment for life and fine of ₹2000/-; in default of payment of fine additional R.I. for four months

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Both sentences are directed to run concurrently.

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Case of the prosecution, in brief, is that on 28.06.2014, at about 10:00 pm, the appellant enticed the minor victim (PW-2), aged about 6 years at the time of offence, and took him to an under construction building and committed unnatural sexual offence with him and thereby, committed the aforesaid offences.

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Further case of the prosecution is that minor victim (PW-2) is nephew of complainant Bhiman Das Hinduja (PW-1), who used to live with him. On the date of offence, when Bhiman Das Hinduja (PW-1) was sleeping in front of his shop, on the cot, minor victim (PW-2) came there and told him that appellant enticed him and took him to an under construction building near the house and committed unnatural sexual offence. The said incident was reported by Bhiman Das Hiduja (PW-1) to Police Station Chakarbhatha vide Ex.P/1. Crime details form and Spot

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CRA No. 745 of 2015

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Map were prepared vide Ex.P/6 & Ex.P/7. Minor victim (PW-2) was medically examined by Dr. Sharad Gadhewal (PW-8) and his medical report was prepared vide Ex.P/14 and thereafter, underwear of minor victim and black pant of accused / appellant were seized vide Ex.P/3 & Ex. P/5 respectively, 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 9 witnesses and exhibited 24 documents, whereas the appellant in support of his defence has neither examined any witness nor exhibited any document.

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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

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CRA No. 745 of 2015

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questioning the impugned judgment of conviction and order of sentence.

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Mr. Siddhartha Shukla, 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. He also submits that except the testimony of minor victim (PW-2), 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 the trial Court. He further submits that appellant is in jail since 02.07.2014, as such, he deserves to be acquitted and the appeal deserves to be allowed.

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Per contra, Mr. Afroz Khan, 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 minor victim (PW-2), 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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CRA No. 745 of 2015

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10.The first question for consideration is whether the trial Court is justified in convicting the appellant for the offence in question particularly offence under Section 377 of the IPC and Section 4 of the POCSO Act, 2012 ?

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11.The conviction of the appellant is based on the sole testimony of minor victim (PW-2), aged about 6 years at the time of offence. He has clearly stated in his statement before the Court that on the date of offence appellant took him to under construction building and committed unnatural sexual offence, though he has been subjected to some extent of cross-examination, but nothing has been extracted to hold that the appellant has not committed the aforesaid offence with him. As such, we are of the considered opinion that conviction of the appellant recorded on the basis of the statement of minor victim (PW-2) 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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1 2022 LiveLaw (SC) 288

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CRA No. 745 of 2015

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The Supreme Court, in the matter of Vipul Rasikbhai (supra),

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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 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 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, selfesteem and good citizenship, so that when the man emerges from the forbidding gates he becomes a socially useful individual. From this

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2 (1979) 3 SCC 645 3 (1981) 1 SCC 107

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CRA No. 745 of 2015

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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 respondent-state 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

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CRA No. 745 of 2015

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Section 433-A can be linked up with the distress of the dependents.

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Following the decision of the Supreme Court in Vipul Rasikbhai

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(supra) and considering the fact that the age of the appellant was 25 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 IPC and rigorous imprisonment for 10 years for for offence under Section 4 of the POCSO Act, 2012 in place of the sentence of life imprisonment as awarded by the trial Court, as he is in jail since 02.07.2014. However, the fine amount imposed by the learned trial Court shall remain intact and further direction to sentence to run concurrently is hereby maintained.

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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 .

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sentence, forthwith for necessary information and action, if any

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

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Ankit

Kalu @ Rohit Chijwani v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Kalu @ Rohit Chijwani v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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