Partly allowed

Jagarsingh Patel v. State of Chhattisgarh

Chhattisgarh HC1 Dec 2024CRA/529/2019

Case brief

AI extract

What is this about?

The Division Bench affirmed the conviction of the appellant for rape, Grievous Hurt, and Intentional Injury. Relying on Vibul Rasikbhai Koli Jankher and applicable Supreme Court precedents, the Court reduced the life sentence for rape to 10 years rigorous imprisonment, noting the appellant's age and lack of criminal antecedents, while upholding the concurrent sentences for other offences.

What did the court decide?

Life sentence for rape reduced to 10 years rigorous imprisonment; conviction and sentences for other offences and fine affirmed.

Jagarsingh Patel Vs State of Chhattisgarh — Pension and Retirement Benefits | Chhattisgarh HC (2024)

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Page No.1 of 11 IN CRA-529-2019

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2024:CGHC:47237-DB

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Digitally SAIFAN signed by KHAN SAIFAN KHAN

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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NAFR

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Criminal Appeal No. 529 of 20 19

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[Arising out of judgment dated 22.02.2019, passed in Sessions Case No.09 of 2018 (State of Chhattisgarh v. Jagar Singh Patel), by the Additional Sessions Judge (FTC), North Bastar, Kanker (CG)]

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Jagarsingh Patel, Son of Late Krishna Ram, aged about 52 years, Resident of Village Selegaon, Police Station Korar, District North Bastar, Kanker (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Police Station Korar, District- North Bastar, Kanker (Chhattisgarh)

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---- Respondent --------------------------------------------------------------------------------------------- For Appellant : Mr. P.K. Tulsyan, Advocate For Respondent-State : Mr. Ashutosh Shukla, Panel Lawyer ---------------------------------------------------------------------------------------------

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Division Bench Hon'ble Shri Justice Sanjay K. Agrawal and Hon'ble Shri Justice Radhakishan Agrawal

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Judgment on Board (02.12.2024)

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Sanjay K. Agrawal, J

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(1) This criminal appeal filed by the appellant under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 22.02.2019, passed in Sessions Case No.09 of 2018 (State of Chhattisgarh v. Jagar Singh Patel), by the Additional Sessions Judge (FTC), North Bastar, Kanker (CG), whereby he has been convicted and sentenced as

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Page No.2 of 11 IN CRA-529-2019

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under:

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Conviction	Sen	tence
U/s. 376(2)(f) of IPC	Imprisonment for Rs.2,000/- and, in fine, additional rig for 01year.	life with default of p orous imp	fine of ayment of risonment
U/s. 342 of IPC	Rigorous imprisonm fine of Rs.1,000/- payment of fine, imprisonment for 03	ent for 01 and, in additional months.	year with default of rigorous
U/s. 506 (Part-II) of IPC	Rigorous imprisonm fine of Rs.1,000/- payment of fine, imprisonment for 06	ent for 07 and, in additional months.	years with default of rigorous

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[All the sentences are directed to run concurrently]

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(2) The case of the prosecution, in short, is that on 26.03.2018 at about 01:00 PM in the afternoon, in his own house, situated at Village Selegaon, which comes within the ambit of Police Station Korar, District North Bastar, Kanker (CG), the accused-appellant committed sexual intercourse with the victim (PW-05), who was held to be aged about 18 years on the date of offence by the learned trial Court, against her will and consent and further threatened her to kill if she discloses about the incident to anyone and, thereby, said to have committed the aforesaid offences.

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(3) It is further case of the prosecution that after the incident, when victim (PW-05) lodged written complaint (Ex.P/11), the police registered FIR (Ex.P/12) against the appellant and wheels of investigation started running, in which, spot map and panchnama were prepared vide Ex.P/06. After obtaining necessary consent vide

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Page No.3 of 11 IN CRA-529-2019

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Ex.P/01, the victim (PW-05) was subjected to medical examination, which was conducted by Dr. Preeti Singh (PW-04) and, as per her MLC report Ex.P/02, it has been mentioned that old ruptured hymen was found, injuries and redness were found no her private part of the body and it has also been opined that the victim (PW-05) had sexual intercourse. Further, victim’s vaginal slides and vaginal swab were also prepared and handed over to the police for analysis alongwith her undergarment, which were seized vide Ex.P/03. The accused-appellant was arrested vide Ex.P/05 and sent for medical examination. Appellant’s MLC report is Ex.P/08. Thereafter, aforesaid seized articles were sent for chemical examination and, as per FSL report (Ex.P/26), it has been opined that no stains of human sperm/semen were found on any of the seized articles i.e. victim’s vaginal slides and vaginal swab of the victim (PW-05). Thereafter, statements of witnesses were recorded and, after due investigation, the police filed charge-sheet in the competent criminal court having jurisdiction and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(4) The prosecution in order to prove its case examined as many as 16 witnesses and exhibited 28 documents, whereas the appellant-accused in support of his defence, though not examined

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any witness, but exhibited 01 document.

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(5) The learned trial Court after appreciating the oral and documentary evidence available on record proceeded to convict the appellant for offences under Sections 376(2)(f), 342 & 506 (Part-II) of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence.

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(6) Mr. P.K. Tulsyan, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the aforementioned offences, as the prosecution has failed to prove the said offences beyond reasonable doubt. He further submits that the testimony of the victim (PW-05) is not reliable and trustworthy. The victim (PW-05) was held to be major aged about 18 years on the date of offence by the learned trial Court and, as such, she was consenting party. The forensic evidence also does not support the case of the prosecution, therefore, the appellant is entitled for acquittal on the basis of benefit of doubt. In alternative, learned counsel further submits that though the maximum sentence of imprisonment of life has been awarded to the appellant by the learned trial Court for having committed offence under Section 376(2)(f) of IPC, but neither any special reason nor any mitigating circumstance has been recorded for the learned trial Court for awarding maximum punishment to the appellant.

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Furthermore, the appellant is a dumb person and at the time of commission of the offence he was aged about 52 years and, therefore, his chances of reformation cannot be rulled out, which aspect has not at all been considered by the learned trial Court. The appellant is in jail since 28.03.2018 i.e. for around 06 years 08 months, therefore, in light of the decision of the Supreme Court rendered in Vipul Rasikbhai Koli Jankher v. State of Gujarat1 coupled with the facts and above mentioned circumstances of the case, the appellant be sentenced to the period already undergone by him for the offences in question. Hence, the present appeal deserves to be allowed in full or in part.

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(7) Per-contra , learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offences beyond reasonable doubt by leading evidence of clinching nature. The victim (PW-05) has clearly supported the case of the prosecution, which is further supported by medial and other evidence available on record, thus, the learned trial Court has rightly convicted the appellant for the offences mentioned hereinabove. Furthermore, it is not the case where sentence of the appellant requires to be reduced, as the accusedappellant has committed forcible sexual intercourse with the victim (PW-05) aged about 18 years. Thus, the present appeal deserves to be dismissed.

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1 2022 LiveLaw (SC) 288

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(8) 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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(9) In view of the above, two questions arise for consideration before us: (01) whether the learned trial Court has rightly held the appellant guilty for offences under Sections 376(2)(f), 342 & 506 (Part-II) of IPC ? and, if yes, (02) whether the punishment awarded to the appellant for the said offences by the learned trial Court is in accordance with law or it can be reduced ?

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As regards Question No.01:

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(10) In the case at hand, true it is that the learned trial Court has held the victim (PW-05) to be major aged about 18 years on the date of offence, but considering her statement before the Court, 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 the appellant called her to his house for cleaning the utensils and, when she reached to the house of the appellant, he committed forcible sexual intercourse with her. The aforesaid statement of the victim (PW-05) has duly been supported the medical evidence available on record i.e. her MLC report (Ex.P/02), wherein it has clearly been mentioned that old ruptured hymen was found, injuries and redness were also found no the private part of the body of the victim (PW-05) and it has also been opined that the victim (PW-05) had sexual intercourse, which has

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duly been supported and proved by Dr. Preeti Singh (PW-04), who has medically examined the victim and gave MLC report (Ex.P/02). Further, the victim (PW-11) was also subjected to lengthy crossexamination, 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 intercourse with the victim (PW-05) and further threatening her, is strictly in accordance with law. We do not find any illegality or perversity in findings recorded by the learned trial Court and, therefore, the appellant has rightly been held guilty for committing offences under Section 376(2(f), 342 & 506 (Part-II) of IPC. Accordingly, we hereby affirm the said finding. We hereby hold accordingly.

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As regards Question No.02:

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(11) Now, the next question for consideration would be whether the sentence of imprisonment for life awarded to the appellant for the offence under Section 376(2)(f) by the learned trial Court is in accordance with law or same can be reduced in light of the decision rendered by the Supreme Court in Vipul Rasikbhai Koli Jankher (supra), as contended by learned counsel for the appellant ?

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(12) The Supreme Court in the matter of Vipul Rasikbhai Koli Jankher (supra) has relied upon its earlier decisions rendered in the

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matters of Dharambir v. State of Uttar Pradesh2 and Maru Ram v.

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Union of India3 and held in Paras-07 & 08 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, (1979) 3 SCC 645 , a two-Judge Bench of this Court 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 life of the sentence inside jail restorative of his crippled psyche. One of the principal purposes 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 angle our prisons have to travel long distances to meet the ends

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2 (1979) 3 SCC 645

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3 (1981) 1 SCC 107

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of social justice.”

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8. In our view, the ends of justice would be met by directing that instead and in place of the sentence of life imprisonment 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 find 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, (1981) 1 SCC 107 , 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 or other aggrieved persons must receive reparation and the social responsibility of the criminal to restore the loss or 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 fulfilment, not through barbarity but by compulsory recoupment by the wrongdoer of the

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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 dependants.”

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( emphasis supplied )”

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(13) Reverting to the facts of the present case in light of the principles of law laid down by their Lordships of the Supreme Court in Vipul Rasikbhai Koli Jankher (supra), it is quite vivid that in the instant case, since the appellant is a dumb person and he was aged about 52 years at the time of commission of offence which took place on 27.03.2018 and, therefore, his chances of reformation cannot be ruled out and further there is no material brought on record to hold that the appellant herein had any other criminal antecedents, therefore, we are of the considered opinion that 10 years’ RI (i.e. the minimum sentenced prescribed) would be adequate punishment in the instant case for the appellant for having committed offence under Section 376(2)(f) of IPC. We hereby hold accordingly.

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(14) Consequently, while affirming the conviction of the appellant under Section 376(2)(f) of IPC, we award him the sentence for 10 years’ rigorous imprisonment by reducing it from imprisonment of life, but the fine sentence imposed by the learned trial Court shall remain intact. The conviction and their respective sentences

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alongwith the fine amount, as imposed by the learned trial Court on the appellant, for having committed offences under Sections 342 & 506 (Part-II) of IPC, alongwith the direction of the learned trial Court that all the sentences shall run concurrently, shall also remain intact/as it is.

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

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(16) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.

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

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s@if

Jagarsingh Patel v. State of Chhattisgarh

Case brief

What is this about?

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Jagarsingh Patel v. State of Chhattisgarh

Case brief

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What did the court decide?

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