Khemchand Rohra Vs the State of Chhattisgarh

¶1

1 / 10

¶2

2024:CGHC:46908-DB

¶3

NAFR

¶4

HIGH COURT OF CHHATTISGARH AT BILASPUR

¶5

CRA No. 492 of 2024

¶6

1 - Khemchand Rohra S/o Late Tirath Das Rohra Aged About 64 Years R/o Subhash Nagar, Jayram Bhawan, Near Hanuman Mandir, Telibandha, Thana Telibandha, District : Raipur, Chhattisgarh

¶7

Digitally signed by RAVI SHANKAR MANDAVI

¶8

versus

¶9

... Appellant

¶10

1 - The State Of Chhattisgarh Through P.S. Telibandha, District : Raipur, Chhattisgarh

¶11

... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Parag Kotecha, Advocate For State/Respondent : Mr. Sakib Ahmad, Panel Lawyer

¶12

Hon'ble Shri Justice Ramesh Sinha, Chief Justice

¶13

Hon'ble Shri Justice Amitendra Kishore Prasad, J

¶14

Judgment on Board

¶15

Per Amitendra Kishore Prasad, J

¶16

28/11/2024

¶17

1. This criminal appeal is preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of

¶18

2 / 10

¶19

sentence dated 24.02.2024, passed by the learned Additional Session Judge, FTSC (POCSO), Raipur (C.G.), in Special Criminal Case POCSO No.78 of 2022, by which the appellant has been convicted for the offences punishable under Sections 376 AB of the Indian Penal Code (IPC) and under Section 5(g)/6 of the Protection of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’) and sentenced him to undergo life imprisonment which shall mean imprisonment for remaining of his natural life and fine of Rs.2,000/- in default of payment of fine amount 4 months additional R.I. and no separate punishment has been imposed upon the appellant.

¶20

2. Case of the prosecution, in brief, is that on 15.04.2022 a written complaint was lodged at Police Station-Telibandha District-Raipur by the father of the prosecutrix to the effect that on 15.04.2022, at around 10:00 pm, he had gone for a walk with his younger brother, when his wife called from home and informed that appellant Khem Chand Rohra had forcefully caught hold of their daughter and inserted a finger in her private part and also forcefully kissed her, due to which she is very scared, crying & vomiting and asked them to come quickly. After reaching home, her brother-in-law told her that she was taking a stroll outside the house, the their daughter was riding a bicycle there, on not seeing their daughter, she looked here and there and by the time she saw that the appellant was standing with their daughter behind a car parked on the road, when she called out to their daughter, the appellant fled away, on being questioned by them, the victim was

¶21

3 / 10

¶22

very scared and was continuously crying and was also vomiting, on being asked, the victim told that the appellant was standing behind the car holding her and has pointed towards her private part and has forcefully inserted his finger on her private parts and also that the accused forcefully kissed her on the lips which she felt very dirty due to which she started vomiting. The victim also told that the appellant was telling her not to tell this to anyone and come with him, he will kiss her at the lonely house which is under construction. When her father asked his daughter, the victim told him the same incident which her brother's daughter-in-law had narrated to his brother. Thereafter, on the written report of the victim’s father, a First Information Report (Ex.P/5) was registered against the appellant for the offence under Sections 376 of IPC and Sections 4 of POCSO Act. The victim was sent for her medical examination to District Hospital, Kalibadi, District - Raipur (C.G.), where she was examined by PW-4 Dr. Smt. Sonam Deshmukh, who gave report Ex.P/13A. While examining the prosecutrix the Doctor found no external injury on her body, however on internal examination she found that mild redness seen over private parts (at hymen side) and no other injury seen. Two slides of her vaginal secretion were prepared sealed and handed over to the police for FSL examination. After completion of her examination the Doctor has opined that only sexual assault has been taken place but for recent sexual intercourse chemical analysis of slides are needed. The two slides along with undergarment of the victim were seized vide Ex.P/14A and also

¶23

4 / 10

¶24

sent for chemical examination. The spot map Ex.P/3 was prepared by the Police. With respect to age of the prosecutrix the police has seized School Admission and Discharge Register from the Principal, Holy Hearts Educational Academy, Civil Lines, Raipur (C.G.) and admission form vide Ex.15 and 16 respectively, and after retaining the original register, the attested true copy of the same is annexed as Ex.15C and 16C respectively, the original register was returned to the Principal of the said School wherein the date of birth of the victim is recorded as 13.02.2013.

¶25

3. The further case of the prosecution is that in order to ascertain correct age of the victim (PW-1), the attested true copy of the School Admission and Discharge Register from the Principal, Holy Hearts Educational Academy, Civil Lines, Raipur (C.G.) and admission form vide Ex.15 and 16 respectively were annexed as Ex.15C and 16C, wherein her date of birth has been recorded as 13.02.2013, meaning thereby, the victim (PW-1) was minor aged about 09 years (i.e. less than 12 years) on the date of offence. The appellant was arrested on 16.04.2022 and he was sent for his medical examination to District Hospital, Raipur, where PW-3 Dr. Pavan Gautam has examined him and gave his report Ex. P/11A. After his examination the Doctor has not found him capable to perform any sexual activity. The FSL examination report was received from State FSL, Raipur vide Ex.P/27 and as per FSL report no semen and sperm were found on the articles A, B & C prepared seized and sent for chemical examination. Thereafter, statement of victim under Section 164 of CrPC have been

¶26

5 / 10

¶27

recorded vide Ex. P/1. Statement under Section 164 of CrPC of the witnesses have also been recorded. After completion of usual investigation charge sheet was filed before the Court of learned Judicial Magistrate First Class, Raipur which was thereafter committed to the Court of Sessions for hearing and trial of the offence under Sections 376-AB of IPC and Section 5(g)/6 of POCSO Act, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated in the case.

¶28

4. The prosecution in order to prove its case examined as many as 06 witnesses and exhibited 29 documents, whereas the appellant has neither examined any witness in support of his defence nor exhibited any document.

¶29

5. The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict and sentence the appellant for offences mentioned in the opening paragraph of this judgment, against which this appeal has been preferred by the appellant/accused questioning the impugned judgment of conviction and order of sentence.

¶30

6. Mr. Parag Kotecha, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offences who is about 64 years old. In view of questions framed and answers given by the victim (PW-1) in her statement before the Court, the learned trial Court has erred in law while holding the appellant guilty for the

¶31

6 / 10

¶32

offences in question. In alternative, learned counsel for the appellant submits that in light of the decision rendered by the Supreme Court in the matter of Thongam Tarun Singh v. State of Manipur1 , considering that there is no other criminal antecedents reported against the appellant herein and at the time of commission of the offence, he is attaining age of 64 years, his sentence for imprisonment for life be reduced to 10 years’ rigorous imprisonment. Hence, the present appeal be allowed in full or in part.

¶33

7. Per-contra , learned State counsel would submit that prosecution has been able to prove the offences beyond reasonable doubt by leading evidence of clinching nature. It is further submitted on behalf of the respondent-State that in view of statement of the victim (PW-1), wherein she has clearly narrated the incident and implicated appellant herein to be the author of the crime in question, coupled with other evidence available on record, the trial Court has rightly convicted the appellant for the offence mentioned herein-above. Learned State counsel by referring to the judgment of the Supreme Court rendered in the matter of Ravinder Singh v. State Government of NCT of Delhi2 , submits that the Supreme Court has imposed sentence for a period of 20 years’ RI by modifying the same from imprisonment for life and, therefore, the appellant herein shall not be awarded sentence for a period less than 20 years RI. Therefore, the present appeal is

¶34

liable to be dismissed.

¶35

1 (2019) 18 SCC 77

¶36

2 (2024) 2 SCC 323

¶37

7 / 10

¶38

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

¶39

9. In the instant case, considering the statement of the victim (PW1), wherein she has clearly narrated the incident in question and implicated the appellant herein to be the author of the crime by stating that on the date and time of the offence, when she was riding a bicycle in front of her house, she saw that the appellant was standing near the car and suddenly he holds her and has pointed towards her private part and forcefully inserted his finger on her private parts and also that the accused forcefully kissed her on her lips which she found very bad due to which she started vomiting. The victim also stated that the appellant was telling her not to tell this to anyone and come with him, he will kiss her at the lonely house which is under construction and thus committed sexual assault on her. The aforesaid statement of the victim (PW1) has duly been supported by her father/complainant (PW-2), who has lodged FIR (Ex.P/5) and reported the matter to the police. Further, the victim (PW-1) was also subjected to some length of cross-examination, but she remain consistent in her version and, therefore, her testimony appears to be reliable and inspire confidence. As such, on the basis of aforesaid evidence available on record, the finding recorded by the learned trial Court that the appellant is guilty of having committed sexual assault on the minor victim (PW-1), is strictly in accordance with law. We do

¶40

8 / 10

¶41

not find any illegality or perversity in findings recorded by the learned trial Court. Accordingly, we hereby affirm the said finding.

¶42

10. Now the question would be whether the learned trial Court is justified in awarding sentence for imprisonment for life i.e. till his natural death to the appellant for having committed the offence in question or same can be modified/reduced ?

¶43

11. In the matter of Ravinder Singh (supra) their Lordships of the Supreme Court while dealing with a case where the accused committed sexual assault with his minor girl (victim) held that the law laid down with regard to special category sentencing to life imprisonment in excess of 14 years by fixing a lengthier term would be available to the High Court and the Supreme Court, even in cases where the maximum punishment, permissible in law and duly imposed, is life imprisonment with nothing further and observed in Paras-23 to 25 as under:

¶44

“ 23. The above observations manifest the applicability of the same principle in cases where the maximum punishment prescribed by law is imprisonment for life with nothing further. Even in such cases, it would be a parody of justice to allow the convicts so sentenced to avail the benefit of remissions and the like, liberally conferred by the State, and cut short the length of their life sentence to a mere 14 years. We are, therefore, of the considered opinion that the law laid down in Swamy Shraddananda (2) v. State of Karnataka [(2008) 13 SCC 767] and Union of India v. V. Sriharan [(2016) 2 SCC (Cri) 695] with regard to special category sentencing to life imprisonment in excess of 14 years by fixing a lengthier term would be available to the High Courts and this Court, even in cases where the maximum punishment, permissible in law and duly imposed, is life imprisonment with nothing further. We must, however, hasten to add that exercise of such power must be restricted to grave cases, where

¶45

9 / 10

¶46

allowing the convict sentenced to life imprisonment to seek release after a 14-year-term would tantamount to trivialising the very punishment imposed on such convict. Needless to state, cogent reasons have to be recorded for exercising such power on the facts of a given case and such power must not be exercised casually or for the mere asking.

¶47

24. In the case on hand, the appellant was found guilty of one of the most monstrous and horrific of offences, viz. the physical violation of his own daughter, who was not even in the first flush of youth. In the event he secures release after putting in just 14 years in jail, his possible re-entry into his daughter's life, while she is still in her twenties, may cause her further trauma and make her life difficult. His incarceration for a sufficiently long period would not only ensure that he receives his just deserts but also allow his daughter more time and maturity to settle down and move on with her life, even if her villainous father is set at liberty. We are, therefore, of the opinion that this is a fit and deserving case for exercise of the power vesting in this Court to impose a modified special category sentence of fixed-term life imprisonment. As pointed out by this Court in Madan Gopal Kakkad v. Naval Dubey [(1992) 3 SCC 204], Judges who bear the sword of justice should not hesitate to use that sword with utmost severity to the full and to the end, if the gravity of the offence so demands.

¶48

25. The ends of justice would be sufficiently served if the life imprisonment of the appellant is for a minimum of 20 years of actual incarceration before he can seek remissions under the provisions of the Code of Criminal Procedure 1973, or any other enacted law . We, accordingly, direct so. Imposition of fines and imprisonment in default of payment thereof shall stand confirmed.”

¶49

[ emphasis supplied ]

¶50

12. In that view of the matter and considering the principles of law laid down by their Lordships of the Supreme Court in the matter of Ravinder Singh (supra) and further considering the age of the victim at the time of commissions of the offence i.e. 09 years (less than 12 years) and her consistent version before the Court, which

¶51

10 / 10

¶52

is duly supported by her father (PW-2), who lodged the FIR (Ex.P/5) and reported the matter to the police, while affirming the conviction of the appellant for the offences in question, we deem it appropriate to sentence him for a period of 20 years’ rigorous imprisonment by reducing it from imprisonment for remaining period of life. However, the fine sentence and default stipulation, as imposed upon the appellant by the learned trial Court shall remain intact.

¶53

13. Consequently, this criminal appeal is partly allowed to the extent indicated herein-above.

¶54

14. The trial court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.

¶55

15. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail term, to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon'ble Supreme Court with the assistance of the High Court Legal Services Committee or the Supreme Court Legal Services Committee.

¶56

Sd/Sd/-

¶57

(Amitendra Kishore Prasad) ( Ramesh Sinha ) Judge Chief Justice

¶58

Ravi Mandavi

Khemchand Rohra v. the State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Khemchand Rohra v. the State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Premkumar Saluja Vs State of Chhattisgarh

Mahavir Prasad Agrawal Vs State of Chhattisgarh and Ors.

Arti Saluja Vs State of Chhattisgarh

Bahoran Singh and Ors. Vs State Of Chhattisgarh and Ors.

Pradeep Shukla and Anr. Vs State Of Chhattisgarh and Ors.

Ashish Kumar Bose Vs State of Chhattisgarh