HIGH COURT OP CHHATTISQARH, BILASPUR APPBAL N@. 441 ©f2000 Praibhuram Vs. The State ofM.P. (Now Chhattisgarh) Postfor 25.06.2007 Sd/- Sunil Kumar Sinha Judge sr COURT OF CHHATTISGARH. BILASPUR CmMIHAL APPBAL N@. 441 of 2000 Prabhuram S/o Jhariym' Go3id, Aged about 20 years, R/o Nayapai'a Jhuriya, P.S. Jhuri57a, District Rajiian-dgaon Versus RBSPONDSNT State of Madl^a Pradesh (Now Chhattisgarh) throvigh P.S, Jhuiiya, Distiict Rajnandgaon (C,G,) Appearaaee: Siiit, Uslia Chaadrakar, counsel for the appeUaiit. Smt. Madhu Nisha Siiigh, Paiiel La^yer, for the vState. JUDGMBNT (25.06.2007) KUMAR SXWHA. J. (1| This appeal is dtrected agaiiist the judgment ofcoiwiction aiid oider ofsenteuce dated 12. L2000 passed ia Sessious Trial No. 160/1999 by tlie Sessions Judge, Rajnandgaon (C.G), whereb;' tlie appeltantwas convicted under Sections 376, 324 & 506 (part-II) ofI.P.C. and sentenced to zindergo R,I, for 10 yeai's, 6 montlis & 6 montlis respectively wifh a further direction to run tiie seutences concuiTeutly. (2^ The case oftlie proseciition is that on 31,8.1999 at abozit 16.30 hours, the prosecutrix iiaoiely Kzi. Haiiifa Begum (P.W.l), a girl agecl aboiit 18 yea^-s had gone to a Taiik for washiiig clothes aloiig^¥ithher isiother. When she went to answer caU of uature towa^ds a lonely place, leaviag her nioflier at the taak, fhe appelleiit came there, caught hold of her, tlircatened aiid Cr.A. No. 441 of2000 th?m¥her on ftie ground aiid fhereafter comniitted rape against lier. It is allegecl tliat while committmg sexual iiitercourse he had giveu teetli bite 011 the lips and face of tlie prosecutrix. Wlien tlie prosecutrix was released, she cajne back to her isiotlier, narrated tlie stoiy aiid a Fii'st Infoi'mation Report (Ex.P,!) was lodged at about 18.15 hozirs on the sajne day, Durmg tlie course of iiivestigation, the prosecutrix was sent for medical exammation cn 1.9.1999 aiid zvas exaiiimed by Dr.(Smt.)Shail Khare (P.W. 12), who prepai-ed her report Ex. P-17. She found that the gM zvas of an average build, coiiscious aiid uormal, axiUary hairs were scanty developed, breasts were well cleveloped aiid fhere were no mark of exteraal mjuries over fhe body except a sweUiiig aiicl reddishness in the middle of upper lip aiid tendeniess over the back of cliest. On flie local exejiiniatioii, she found fliat pubic hairs were well developed but not Hieltecl. However, ui tiie exajiiniatioD, hymen founcl to be inptured at 9 aiid 3 0" clock position aiid tliere were bleediiigs aiid coniplaiamg paiii iii tlie vagina. Accordiiig to her opiniou, she was subjected to forcible iiitercoiirse. The appella^it ¥7aselso exainiiied by DnS.K. Ahuja (P.W,11), who report Ex. P.15 which shows that he was competeut to perfoi-m sexual iatercourse. Vaiious articles along with the clothes ofthe proseciitrix as well as tlie appeUajit were also seizecl, which were to be contaiiiiiig semen and blood stams. In the clieinical exaoiuiation, tlie underwear, Salvar aiid Kiirta of the prosecutsiK along-x^ith her pubic haii's as well Cr.A. No. 441 of2000 ^ as the underwear offhe appellaait were fozuid to be ^tained with blood, The uudei'wear oftlie prosecutrix, her piibic hair and Iwo prepared from tlie vaginal materieJ of fhe proseciitrix and the iinderwear of the appeUant were also found contammg senieii aiid huiiian spei'matozoa. The report rcceived from tlie Forensic Scieuce Laborator;7 is Ex, P.19. On flirtlier iiivestigatiou, statements ofvarious witnesses were recoi-ded and charge Sheet was uncler flie aforeiaentioned sections ofI,P.C,, to which tlie appelleiit deiiied. Leanied coiuisel for tlie appellant argued tiliat the prosecutrix ancl her parents are unreliable witnesses, fherefore, fhe convictioii based upon their testmionies should be set aside. Alteniatively argued that the appellaiit is coiitiauously ui jaU since 03.9.1999 fliereby he already zuidergone for a period of more thaii 7 yeare, 9 months, therefore, iii case of appeal beiiig dismissed on merits, his sentence be reduced accordmgly, preferably to tlie period ah'ead^7 undergone by him. (4| On fhe other heiid, leeaiie.d State Counsel opposed tliese argumeuts and supportecl tlie judgnient of conviction aiid order of sentence passed by tlie Sessions Court. (51 So fai' as nierits of case ore concerned, fhe proseciitrix (P.W.l) deposed that on 31.8.1999 at about 4.30 p.m., she had gone to fhe taiik alongwith her mofher to wash the clotlies. After a while, when slie went to a particular place to answer the call of nature^ leaviag her niother, tlie appellaiit caiiie tliere, caught holcl ofboth the haiicls and flirew her 011 the ground aad Cr.A. No. 441 of2000 fhereafter he comniitted rapc against her, She lias also deposed that durmg the sexual intercoiirse, he had given teetli bite on her Hps aiid left cheek, due to which, there was swelliag over fliose parts. She furtlier deposed that when fhe appellaiit left her after about haJf aii hour, he had threatened to her Ilfe iii case ofeaiy alarsn or noise rmsed by her. She furfher deposed that theree.fter, she went to her niother aiid narra.ted fhe stoiy, Due to siich act, her clothes were staiaed wifli blood, Her such evidence is supported 'bj the evidence of her mother Shakila (P.W.4) aiid fatlier Amir Khaii (P.W.2). The version of the prosecutrix is furfher supported by the FJ.R., promptly lodged by her on tlie same day m tlie concenied police statiou, Not only this, her version is also supported by the medical evidence of Dr.(Smt) Shail Khare (P,W.12) who had examiiied her on 01.9,1999 aiid prepared a report Ex.P. 17. According to her, fhe hymen of the girl was inptured at two places aiid fresh bleediiig was comiiig and fhe vagiiia was adniitting one fiiiger witli aiid there was redness 011 the Up. Fuilher fhe chemical examiner's report Ex. P-19 also snpports the version of prosecution as tlie blood staiiis were found 011 the articles like Cheddi, Kurta, SaJvar aad pubic hejr of tlie prosecutrix aad on fhe unden¥ear of fhe appeUmit aiid the semeii and huniaii spermatosoa were also fouiid on tlie underwear of the prosecuti'ix and the appeUaiit as also cn the pzibic hair aiid iwo slides prepm'ed from fhe vagmsd niaterial ofthe prosecutrix. Cr,A. No. 441 of2000 (6| After goiiig through tlie entire evideiice led by tlie prosecutioiz^ iiicludiiig the niedical evidence aiid tlie chemical exaisiiner^s report, I aisi of tlie opuiion tliat the Sessions Court has not committed aiiy eiTor of law while holdiiig the appeUant guilty ofoffence punishable u/ss 376, 324 and 506 (Pai-t-II) IPC. There is 110 force iii the first ed'gunient advaiiced by leanied counsel for the appeUaat, which relates to flie testimonies of tliese prosecution witoesses, pi^iiig for setthig aside the coiiviction aiid sentence, The jzidgment of conviction passecl by the Court below caiiuot be faiilted witli and fhe saoie is hereby confimied. (T| So far as quaiituni of sentence is concenied, leanied couiisel for tlie appellant referred to the decisioii of flie Apex Court renclered m the matter of ^f Chh^ttl^sarh -VB' Derha (2004) 9 B,C.C, 699. In tlie said case, rape was cominitted agaiiist a girl aged about 8 years aiicl the accused agecl about 18 years on the date ofmcident and he had served about 6% yearsj> imprisoument consequent to the senteuce imposed 011 liira aiid was haviiig a family. In such cii'cumstaiices, the Apex Court vide Para 8 of the jziclgment, while allowiug the appeal of flie State aad setting aside the jiidgmeut of the High Court, reduced tlie sentence to 7 yeai-s R.I. The siibmission of leanied couusel for tlie appeUaut was that tlie case of tlie appelledit is on better footiags, thereforc, his sentences should be redziced accordingly, Cr.A.No, 441 of 2000 (8| The priiiciple of proportion befaveen crime aiicl punishment is govemed by the <(Doctriiw of ji^st deseft\ The doctmie is the fouiidation of a ciimmal sentence which is ultimately awarded for a punishment to the wrong doer, What one rceJly deserves should be tlie punishment for haviiig conimitted a ciime is tlie uiideriyiiig priuciple. The puiiishmeut iniist not be disproportioiiately great is a coroUaiy of <<just desef^f which is govenied by tlie saine priiiciple which says fliat there cajinot be a punishnieut without guilt ancl fhe basic elenieut behind tlie principle is tlie proportion befe^een crmie aiid puiiishment. The lesser is the gravity of the ciioie, the snialler would be the punishment and the gi^ater is flie gravity offlie crime, tiie higherwould be the pnnishnieiit, siibject to the aiiciUa^y factors for determiiiing the proportiou of tlie same, thoiigh all fiirtlier subject to tlie statutoiy obligations specificaUy provicled by law ui force, (@| In fhe present case, fhe appeUaat wos aged about 20 years oii the date ofuicident mid the girlwas agecl about 18-°19 years, Bofli were knowu to each other. The appeUant is coiitinuoiisly iii jail siiice 03.9.1999 (tlie first date ofhis anest) and thereby he eJready undergone imprisonment for about more thaa 7 years ajid 9 months aiid m the facts aiid circumstaiices ofthis case, I deeisi it appropriate to rediice his sentence from 10 years to 8 years u/s 376 I.P.C. (10| lu flie result the appeal is partly allowed. The coiwiction "and sentence awarded to the appellaiit u/s 324 and 506(Part II) Cr.A. No. 441 of2000 ^ < IPC sire hereby confirmed. Similaiiy, his conviction u/s 376 is also coiifirmecL However, flie sentence awarded u/s 376 IPC is reduced to 8 yeara RJ, The appellant shall be entitled to set off aiid he shall also be entitled to aay legal remissiou pei-missible ui law for haviiig eJiTkacty sei-vecl fhe above sentence of imprisonment. The order of riuiiiuig the seiitences concurren^ is aJso coiiflraied. Sd/- Sunil Kumar Sinha Judge Rao