Mitlal @ Mitwa Yadav Vs State of Chhattisgarh

The present appeal arises out of the impugned judgment of conviction and order of sentence dated 29.02.2020 passed by the learned Additional Sessions Judge, Second Fast Track Special Court, Bilaspur (C.G.), in Special Criminal (POCSO Act) No. 38/2018, whereby the learned Sessions Judge has convicted and sentenced the appellant as under :

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Conviction		Sentence
U/s. 376 of IPC as also	R.I. for i	10 years with fine of Rs.
U/s. 4 of the POCSO Act,	10,000/ i	-, in default of payment of fine
2012.	amount	additional imprisonment for 6
(However, in light of	months.
Section 42 of the POCSO
Act, sentenced/punished
only U/s 376 of IPC)
	S.I. for i	2 years with fine of Rs.
U/s 506 of IPC	1,000/-, i amount months.	in default of payment of fine additional imprisonment for 2

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As per the prosecution, the complainant is the mother of the prosecutrix, who resides in the village of Amali with her family. The complainant is a housewife and has seven children, comprising two sons and five daughters. The prosecutrix is her fourth child and at that time was studying in seventh class. Her husband is unwell. The accused, Mitlal alias Mitwa Yadav, lives in their neighborhood, and his wife passed away 3–4 years ago. On February 17, 2018, at around 6:00 PM, her daughter (the prosecutrix) and her younger daughter were playing outside the house. The complainant called the prosecutrix to light the lamp. At this point, her younger daughter informed her that the accused, Mitlal alias Mitwa Yadav, had taken the prosecutrix with him under the pretext of giving her medicine. The complainant waited for about half an hour, but when her daughter did not return, she called Tirath Ram, the brother of Mitlal alias Mitwa Yadav, to inquire about him. Tirath Ram tried contacting the accused on his mobile phone, but the phone was switched off. The complainant, along with her neighbors—Prakash Das, Laharam, Bheem Jaiswal, Hemu Yadav, and Badri Sahu—

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searched for her daughter but could not find her or the accused. Later, they all gathered at her house. At around 9:20 PM, her daughter (the prosecutrix) returned home crying. Upon inquiry, she narrated that Mitlal alias Mitwa Yadav had approached her near their house and told her he had medicine for her father. He asked her to accompany him. He then took her towards Belbandhiya Khar, forced her to remove all her clothes, and threatened to kill her when she tried to scream. He made her lie on the ground, kissed her, removed her pants, and pressed her chest with both hands. She also mentioned that her underwear was left at the scene. Somehow, she managed to escape and return home. Her neighbors heard her narration of the incident. The accused, Mitlal alias Mitwa Yadav, forcibly took the victim, a minor, to Belbandhiya Khar and committed rape. Following this, the complainant went to Kota police station with her daughter on February 17, 2018 itself and lodged a report. Based on the above, crime was registered against the Appellant. Thereafter, the prosecutrix was medically examined. Statements of witnesses were recorded. After due investigation, charge sheet was filed against the appellant.

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So as to hold the appellant guilty, the prosecution has examined as many as 20 witnesses and exhibited 23 documents. The statement of the appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pleaded innocence and false implication in the case. However, no defence witness has been examined by the appellant in his defence.

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After hearing the parties, vide impugned judgment of conviction and order of sentence dated 29.02.2020, learned Judge has convicted and sentenced the appellant for the

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offence as mentioned in para-1 of this judgment. Hence, the present appeal.

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Learned counsel for the appellant submits that he does not want to press this appeal on merits and confines his argument only on reduction of sentence part. He further submits that the appellant is in jail since 19.02.2018 and already served about 6 years 10 months 15 days and he is still serving jail sentence. The incident took place in year 2018 i.e. about 7 years, and since then the appellant if facing the lis. The Counsel further submits that amendment in Section 376 of IPC came into effect on April 21, 2018, the date of incident is February 17, 2018 and before the amendment, the minimum sentence for offence under Section 376 of the IPC was 7 years. Hence, it is prayed that the sentence of the appellant for the offence punishable under Section 376 of IPC may be reduced from 10 years to 7 years in the interest of justice.

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Per contra, learned counsel appearing for the State, supported the impugned judgment, opposed the arguments advanced on behalf of the appellant.

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Heard learned counsel for the parties and perused the material on record including the impugned judgment.

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Having gone through the material available on record and the evidence of Prosecutrix (PW-1), Dr. Renuka Samuel (PW-7) and her report Ex.P-10, Dr. Katlam Singh Dhurve (PW-8), mother of the prosecutrix (PW-2), Laharam (PW-5), Prakash Das (PW-9) & Sanjay Kumar Yadav (PW10), establish the involvement of the appellant in the crime in question. This Court does not see any illegality in the findings recorded by the Trial Court as regards the conviction of the appellant for the offences punishable under Sections 376 & 506 of IPC.

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As regards the sentence, considering the facts and

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circumstances of the case and also considering that the appellant is facing the lis since 2018, the incident had taken place in the month of February, 2018 and the amendment in IPC came into effect on April, 2018 and the amendment in POCSO Act came into effect on 16.08.2019, keeping in view the fact that before amendment the minimum sentence for offence under Section 376 was 7 years, in considered opinion of this Court, it would be appropriate to reduce the sentence of the appellant from R.I. for 10 years to R.I. for 7 years for offence punishable under Section 376 of IPC. However, the fine amount of Rs. 10,000/- imposed upon the appellant by the trial Court shall remain intact. Furthermore, the sentence and fine imposed upon him for the offence under Section 506 of IPC is also remain as it is.

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Consequently, the appeal is allowed in part to the extent indicated herein above.

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The appellant is in jail from 19.02.2018 i.e. 6 years 10 months 15 days. The period already undergone by him shall be adjusted in the period of the sentence imposed upon him today.

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Let a certif i ed copy of this judgment along with the original record be transmitted to the trial Court concerned and to the Superintendent of Jail where the appellant is lodged and suf f ering jail sentence, forthwith for information and necessary action, if any.

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Sd/(Sanjay Kumar Jaiswal) JUDGE

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Shubham

Mitlal @ Mitwa Yadav v. State of Chhattisgarh

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Mitlal @ Mitwa Yadav v. State of Chhattisgarh

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