^ A /r"- (i^ v^.. ^-- HIGH COURT OF CHHATTISGARH. BILASPUR Cslmlmi ABpeal No.887 of 2002 tu/s 374 ofthe Code of Qruninal Procedurel AppeIIant: Respondent: Lainbodar@ Panneshwar Chandra, s/o Yadram Chaadra, aged about 20 years, R/o village Thuthi, P.S. Jaijaipur, Distt. Jaajgu- Champa (C.G) Vs. State of Chliattisgarh Appeaaraace; Shri Heinant Kesarwani, counsel for the appellant. Shn Arun Sao, Govt. Advocate for fhe State. JUDGMBNT (16.04.3007) SunU Kunaar Sinlia. J, (1) This appeal is directed ^ainst (he judgment of conviction aud order of sentence dated 29.6.2002 passed by the Addl. Sessions Judge, Sakti, in Scssions Trial No.5/2001, whercby the leamed A.S.J., afier holdiag the appeBant guilly of fhe offl-nce punishable u/ss 363, 366 and 376(2)(f) I.P.C. senteaced him to undei^o R.I. for 3 years and fine of Rs. 500/- in default of payment of fine to farther tmdei^o R.I. for 3 months; R.I. for 5 years aad Gse'of Rs.lOOO/- in default of payiaent of fine to further undei^o R.I. for 6 inonths and R.I. for 10 yeara and fine of Rs.2000/- ia default ofpaynient offine to further undei^o R.I. for one year respecttyely, with an oricr to run the sentences concurrentiy. WSS^SR^ (2) The brieffacts are that on 03.03.2000 at about 15.30 hra, Ku. Ranu Chandra, a minor girl ^ed about 10 yeara, was retumiag to her house aftcr answering the caB of nahire. On fhe way, the appellant inet her aad gave her some sweets and fhereaflter on the pretext fhat he wfll get her leamt to run the Bicycle, took her to his house and after closing the doors of the house got her laid down on the cot and thereafter committed sexual interc'ourse against her. The father of the pmsecutrix namely Jeetmani (P.W.2) had seen that tfae appellant is taking his daughter, therefore, oa suspicion; he went to the house of the appellant. On his call, the appellant opened the door and on being asked about the prosecutrix, he told that the prosecutrix is not there. However, the prosecutruc came out fmm. the house of tbe appellaat and the father aoticed that soine seinen Uke stains were fhere on the fiock of the prosecutrix aad the prosecutrix herself told him fhat the appeUant has committed sexual iatercourse against her. The father took the prosecutrix to the house aad he narrated the stoiy to the grand father nainely Ratiram (P.W.6) and thereafter a report was lodged in the Police station at about 17.45 hours vide Crime No.29/2000. The prosecutrix was sent for medical examination, her fiock & underwear were seized aad were seut fbr chemical exammation and after completion ofthe nwest^ation, charge sheet was filed in ttie Court ofJudicial Magistrate Firat Class, Sakti, who registered criminal case No.519/2000 and conunitted the same to tfae court ofsessions on 22.10.2000, fininwhere, itwas received on transfer by the Addl. Sessions Judge, Sakti, who oonducted the triaL ^^' isteieseii.ss, •iSiSS. (3) The leamed Sessions Judge, fi-amed charges u/s 450, 363, 366 & 376(2)(^ I.P.C. and after completion of the trial, acquitted the appellant u/s 450 whfle convicting him under the aforeinentioned sections of I.P.C. The coavietion is based upon the testimony of the prosecutrix Ranu Chandra (P.W.l), her fafher Jeetmani (P.W.2) supported by fhe evidence of Doctor Ku.S. Kachhap (P.W.4), who examined fhe prosecutrix, and Dr. P.R. Dewaagaa (P.W.3) who examined the appellaat and also the grand father Rati Ram (P.W.6). (4) Leamed counsel for the appeUaat argued fhat in fact fhe prosecution has been fafled to prove that the prosecutrix was below 12 yeazs ofage on the date ofincideut, therefore, an oflfence u/s 376(2)tfl ofI.P.C. would not be inade out. He furttier argued that this is the case of false iinplicatiou and ftie appellaat should be acquitted of the charges fi-ained ^amst him. Altematively, he argued fhat the appeUant was a young boy aged about 20 years and fhe punishinent imposed agaiast him is harsh which shozild be isduced to minimiiTn preferably the period already undei^one by him which coines nearly 6 years and 4 inonfhs as the appellantis nijailsmce 17.12.2000. (5) On the other hand, leamed State Cotinsel opposed fhe above ai^uments. He submitted that the appellaat has been r^htly convicted iinder fhe aforementioned sectfons ofI.P.C. aud no Hberal view should be taken in this case. I have heard leamed counsel for the parties at length and Bave also perused fbe rccoids offhe Sessions Trial. 4 ,,.,itfS®!iia iwtss^SS ^^.^t.\i.5s^K:{' (7) So far as the firat point regarding age of the prosecutrix is concemed, it has coine in the evidence of father ttiat on fhe date of his examinatiou in Court i.e., 29.3.2001, his daughter was studyiug in Class-VI. He has niore specificatly inentfoned vide Para 1 that on fhe said date, she was runniag 11th year. There is no cross exanunation on this point. Apart fiom that, the contents ofthe F.I.R., Ex.P.1, would show that in the said report, the gjrl has said herself to be aged about 10 yeara aad in fhe M.L.C. report of the girl also, on the basis of clinical observations, her age is mentioned as 10 yeare. Not only ttus, the contents of the inedical report Ex.P.8 would show that Auxfliary and Pubic hairs of the girl were absent and the breaste were alsp aot developed. On fhe basis ofan un-assailed testunony of the fafher supported by above material on record, it fa estabUshed that tfae giri was aged about 10 years on the date of incident and she was studying in Class-V. (8| Thc second point ai^ued about the false iinpUcation also does not appear to be an appealiag factor. The prosecutrix (P.W. 1) has deposed wide Paras 1 & 2 ofher evidence that she was taken by the appeBant to his house and after shutting the doors, the appeUaat reinoved her uaderwear and fhereafter he penetrated his Penice in her private part. When she felt pains she tried to ciy, on which, fhe appeUant resisted and at that tirne, her father canie over fhere to whom she narrated fhe story. This veraion of the prosecutrix is supported by the First Information Report, lodged by her vide Ex.P. 1. She has signed fhis document and has adiuitted vide para. 3 ofhcr deposition that she had lodged such a report in the concemed polfce station. She has also deposed vide para 4 that she was sent for medical exanubnation and her ficck and underwear were seized. In the F.I.R. the prosecutrix has given a deteiled version and no relevant part has been omitted on wtuch that should be disbeUeved. The lady Doctor namely S. Kachhap (P.W.4) has also deposed that she had exammed the girl on 04.03.2000 at about 10.00 a.m. Her report Ex.P-8 would show that the hyinen of fhe gul was ruptured and tears were present which were congested and mflamed and fhe Vagina was also red aad inflamed. It was admittiag one finger with pains and fhe girl was subjected to sexual intercourse. Admittedly, fhe underwear and fiock of the prosecutrix were sent to the State Forensk: Science Laboratoiy, Sagar, for cheiaical examination. The report of the said Laboratoiy has been proved on record as Ex. P.17. It contains that on bofh the articles i.e., underwear (Ardcle A-l) and Frock (Article A-2) semen and human spermatozoa were present. The defeace has not been able to deniolish all fhis evidence on record and the evidence of the prosecutrbc appears to be fiilty reUable aad it iaspires confidence of this Court so as to hold fhe appeUant guilly of fhe aforementioned sectioas of I.P.C. Moreover, as stated above, her evideuce is supported by fhe evidence of herjfather aad grand father and also the evidence of lady doctor furfher supported by the report of F.S.L., Sagar. Therefore, the trial Court has r%htly held that the appeUant was guilty of the aforesaid ofFence and the ar^uinents pertaming to false iinplication oftitie appellaut cannot be entertained. 7 Coming to ftie last point regarding punishiaent, leamed counsel for the appeUant referred to fhe decision of the Apex Court rendered in the matter of State ef ChhatlSafiarh -Vs- JDerha (2004) 9 S.C.C. 699. In the said case, rape was committed ^ainst a girl aged about 8 yeai^ and the accused was aged about 18 years on the date of iacideut aad he had also served about Wi years' iaiprisoninent consequent to the senteuce imposed on hi'm and was haviug a faauty. In such circumstances, fhe Apex Court vide fara 8 offhe judginent, while aBowing the appeal of fhe State and setting aside the judgment of the High Court, reduced the sentence to 7 years R.I. The subinission of learaed counsel for tfae appeBant -was tfaat ahnost similar circumstances are also here and fhe same beaefit should be extended to tfus appeUant. (10| The prmciple of proportion between cmne and punishinent is goveraed by fhe "Doctrine of just deserf. The doctrine is the fouiidation of a criminal sentence which is ultimately awarded for a punistunent to the wrong doer. What one realfy deserves should be fhe puiushment for having cominitted a crime is the iinderlying principle. The pumshDient must not be disproportionatety great is a coroUary of "jusl deserf whk-h is govemed by the saiae prmciplc which says fhat there cannot be a punishment without giult and fhe basic element behind the principle is the proportk>n between criine smd punishment. The lesser is the gravity of the cnme, fhe sinaBer would be the punishment and fhe greater is the gravity ofthe crune, the higher would be fhe punishmeut, subject to the ancillaiy factors for 8lissg:talBi5!F determinmg the proportion of fhe same, fhough all fiirther subject to the statutory obUgations specificatly pronded by law in force. (11) In case on hand, admittedty the appeUant was aged about 20 yeara and fhe giri was aged about 10 years and were residents of the same localily. The appeUant is in jail fi'oin the veiy beguuiiag i.e., fixim 17.12.2000 (the first date ofhis arrest) aad thereby he has already undergone iinprisoniacnt for about 6 years & 4 months and m the facts aad circuinstances of this case, I deem it appropriate to reduce his sentence from 10 years R.I. to 7 yeare which would serve the ends ofjustice being the quantum "jusl deserf. (12| In the result the appeal is partty aDowed. The conviction aud sentence awarded to the appeDant u/s 363 & 366 IPC are herebycoitfirmed. Siaularfy, hfa conviction u/s 376(3)fff I.P.C. is also confinned. However, the sentence awarded u/s 376(2)(fl is reduced to 7 yeare R.I. Fiae of Rs.2000/- is maiutained. In default ofpayment offme, the appellaat shall further undergo R.I. for one year. The appeBaat shall be entifled to set oflTand he shaU also be entitled to any lcgal reiaission penxussible in law for having already served the above scntence of imprisonment. The order ofruaniugthe sentences conciirrentfy is also confirmed. Sd/- Sunil Kumar Sinha Judge S<m