Dwarpal Yadav Vs State of Chhattisgarh

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Page No.1 of 10 IN CRA-1280-2019

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Digitally signed by SAIFAN SAIFAN KHAN KHAN Date:2025.01.10 13:32:35 +0530

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2025:CGHC:634-DB

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Criminal Appeal No. 1280 of 20 19

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[Arising out of judgment dated 25.07.2019, passed in Special Criminal Case No.02 of 2019 (State of Chhattisgarh v. Dwarpal Yadav), by the Special Judge POCSO (FTC), District Dhamtari (C.G.)]

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Dwarpal Yadav, S/o Late Ramlal Yadav, aged about 35 years, R/o Village Bhendra, Police Station Bhakhara, District Dhamtari (Chhattisgarh)

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---- Appellant (In Jail)

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Versus

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State of Chhattisgarh, through Station House Officer, Police Station Bhakhara, District Dhamtari (Chhattisgarh)

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---- Respondent

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For Appellant : Mr. Anand Kumar Gupta, Advocate For Respondent : Mr. HAPS Bhatia, Panel Lawyer

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

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Judgment on Board (06.01.2025)

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Sanjay K. Agrawal, J

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(1) This criminal appeal filed by the accused-appellant under Section 374(2) of CrPC is directed against the impugned judgment of conviction and order of sentence dated 25.07.2019, passed in Special Criminal Case No.02 of 2019 (State of Chhattisgarh v. Dwarpal Yadav), by the Special Judge, constituted under the

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Page No.2 of 10 IN CRA-1280-2019

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provision of the Protection of Children from Sexual Offences Act, 2012 (for short the “POCSO Act”) [Fast Track Court], District Dhamtari (C.G.), whereby he has been convicted and sentenced as under:

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	Conviction		Sentence
U/s.	376 of IPC	r/w Imprisonment	for life	with fine of
S.06	of POCSO	Act, Rs.500/- and,	in default	of payment of
2012		fine, additiona	l rigorous	imprisonment
		for 03 months.
[How	ever, senten	ced
only	U/s. 376 of IPC]

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(2) The case of the prosecution, in short, is that between 02.11.2018 to 10.11.2018, at Village Bhendra, which comes within the ambit of Police Station Bhakhara, District Dhamtari (CG), the accused-appellant committed sexual intercourse with the minor victim (PW-11), who was below 16 years of age, time and again, due to which, she became pregnant, and, thereby, said to have committed the aforesaid offences.

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(3) The further case of the prosecution is that the Chairman (Incharge) of Girls Home, Singarbhat, Kanker, namely, Smt. Neela Sahu (PW-01) reported the matter to the police by lodging written complaint (Ex.P/01) to the effect that the victim (PW-11), who is originally resident of Village Bhendra has started living in Girls Home, Singarbhat, Kanker from June, 2018. On 02.11.2018, the mother of the victim (PW-03) submitted an order passed by the

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Page No.3 of 10 IN CRA-1280-2019

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Child Welfare Committee, Dhamtari for taking the victim (PW-11) to her house at Bhendra on the festival of Deepawali. Thereafter, from 02.11.2018 to 11.11.2018 the victim (PW-11) stayed in her house at Village Bhendra. After returning to Girls Home, Singarbhat, on 14.11.2018, the victim (PW-11) was subjected to routine medical checkup and, on 03.12.2018, when the victim (PW-11) fell ill, it was found that the victim (PW-11) is carrying pregnancy of 01 month 06 days. Pursuant to which, upon query, the victim (PW-11) informed that during the period from 02.11.2018 to 10.11.2018, while she was residing in her house at Bhendra, her father (appellant herein) committed sexual intercourse with her time and again. It is also stated in the said complaint that the victim (PW-11) informed that when she was in Class-III, her father (appellant herein) used to commit sexual intercourse with her.

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(4) On the basis of aforesaid report/complaint, FIR (Ex.P/02) was registered by the police against the appellant and wheels of investigation started running, in which, spot map was prepared vide Ex.P/17. After obtaining necessary consent vide Ex.P/07, the victim (PW-11) was subjected to medical examination, which was conducted by Dr. Hemlata Sahu (PW-13) and, as per her MLC report (Ex.P/19 to P/23), it has been mentioned that the victim (PW-11) was pregnant at the time of the medical examination. The accused-appellant was arrested vide Ex.P/09 and sent for medical examination. Appellant’s MLC report is Ex.P/16. Further, DNA

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Page No.4 of 10 IN CRA-1280-2019

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test/profiling of the fetus of the victim (Article-A) with that of the blood samples of the victim (Article-B) and the appellant (Article-C) was also conducted and, as per DNA report (Ex.P/45) it has been opined that the Article-A (fetus) is the biological offspring of Article B (blood sample of the victim) and Article-C (blood sample of the appellant). In order to ascertain correct age of the victim, copy of her school admission register (Ex.P/12C) and progress report (Ex.P/05) were obtained/seized, wherein her date of birth has been recorded as 04.09.2003, meaning thereby the victim (PW-11) was minor aged about 15 years 02 months (i.e. below 16 years) on the date of offence. Thereafter, statements of witnesses were recorded and, after due investigation, the appellant was charge-sheeted for the aforesaid offences in the competent criminal Court having jurisdiction, which was thereafter committed to the Court of Sessions for hearing and trial in accordance with law, in which, the appellant abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated.

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(5) The prosecution in order to prove its case examined as many as 26 witnesses and exhibited 50 documents apart from Final report, whereas the appellant in support of his defence neither examined any witness nor exhibited any document.

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(6) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant for offence punishable under Sections 376 of IPC read

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Page No.5 of 10 IN CRA-1280-2019

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with Section 06 of the POCSO Act, 2012 and sentenced him as 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.

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(7) Mr. Anand Kumar Gupta, learned counsel for the appellant would submit that the learned trial Court is absolutely unjustified in convicting the appellant for the aforesaid offence. In view of questions framed and answers given by the victim (PW-11) in her statement before the Court, the learned trial Court has erred in law while holding the appellant guilty for the 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 he have not committed any jail offence, his sentence for imprisonment for life be reduced to 10 years’ RI. Hence, the present appeal be allowed in full or in part.

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(8) 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-11), wherein she has clearly narrated

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1 (2019) 18 SCC 77

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Page No.6 of 10 IN CRA-1280-2019

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the incident and implicated appellant herein to be the author of the crime in question, coupled with other evidence available on record i.e. MLC report of the victim and DNA report (Ex.P/45), the trial Court has rightly convicted the appellant for the offence mentioned herein-above. Learned State counsel by referring to a very recent judgment of the Supreme Court rendered in the matter of Ravinder Singh v. State Government of NCT of Delhi2 , submits that in an identical case, 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 liable to be dismissed.

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(9) 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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(10) In the instant case, considering the statement of the victim (PW-11), wherein she has clearly narrated the incident in question and implicated the appellant herein to be the author of the crime by stating that from 02.11.2018 to 11.11.2018, while she was staying in her house at Village Bhendra, her father (appellant herein) used to commit sexual intercourse with her time and again, due to which, she became pregnant. Further, the victim (PW-11) was also subjected to some length of cross-examination, but she

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2 (2024) 2 SCC 323

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Page No.7 of 10 IN CRA-1280-2019

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remain consistent in her version and, therefore, her testimony appears to be reliable and inspire confidence. The said stand of the victim (PW-11) is also in conformity with other evidence available on record i.e. (i) MLC report of the victim (Ex.P/19 to Ex.P/23), wherein it has clearly been mentioned that the victim (PW-11) was pregnant at the time of the medical examination, which is duly supported by the statement of Dr. Hemlata Sahu (PW-13), who has medically examined the victim (PW-11) and (iii) DNA report (Ex.P/45), wherein it has been mentioned that Article-A (fetus of the victim) is the biological offspring of Article B (blood sample of the victim) and Article-C (blood sample of the appellant). Moreover, according to victim’s school admission register (Ex.P/12C) and progress report (Ex.P/05), her date of birth has been recorded as 04.09.2003, meaning thereby the victim (PW-11) was minor aged about 15 years 02 months (i.e. below 16 years) on the date of offence. 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 minor victim (PW-11), is strictly in accordance with law. We do not find any illegality or perversity in findings recorded by the learned trial Court. Accordingly, we hereby affirm the said finding.

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(11) Now the question would be whether the learned trial Court is justified in awarding sentence for imprisonment for life to the appellant for having committed offence under Section 376 of IPC

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Page No.8 of 10 IN CRA-1280-2019

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read with Section 06 of the POCSO Act, 2012 or same can be modified/reduced ?

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(12) In the matter of Ravinder Singh (supra) their Lordships of the Supreme Court while dealing with an identical case where the accused committed sexual assault with his minor daughter converted the sentence for imprisonment for life to 20 years’ RI and observed in Paras-23 to 25 as under:

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“ 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 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.

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24. In the case on hand, the appellant was found guilty of one of the most monstrous and horrific of

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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.

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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 e 1973, or any other enacted law . We, accordingly, direct so. Imposition of fines and imprisonment in default of payment thereof shall stand confirmed.”

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[ emphasis supplied ]

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(13) 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. less than 16 years and the medical evidence available on record in the shape of MLC report and DNA report (Ex.P/45) and specially considering

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Page No.10 of 10 IN CRA-1280-2019

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the fact that the appellant has committed the crime in question with his daughter (minor victim), while affirming the conviction of the appellant for offence under Section 376 of IPC read with Section 06 of the POCSO Act, we deem it appropriate to sentence him for a period of 20 years’ RI by reducing it from imprisonment for life. However, the fine sentence and default stipulation, as imposed by learned trial Court, shall remain intact.

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

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(15) Let a certified copy of this judgment 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.

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Sd/Sd/- (Sanjay K. Agrawal) (Sanjay Kumar Jaiswal) Judge Judge

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s@if

Dwarpal Yadav v. State of Chhattisgarh

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Dwarpal Yadav v. State of Chhattisgarh

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