—•^ HIGH COURT OF CHHATTISGARH. BILASPUR Cr.Aooeal No.4§9of 2001 APPBLLANT Kiildeep s/o Matiik Raai aged about 22 years, occupation-Busmess, R/o Chhittajhoi-podi, P.S. Podi, Tah. Koriya, Distdct-Koriya Versiis RESPONDBBT State of Clihattisgarli through District Magistrate Koriya Appearasiee: Shri Awadh Tnpatbi, coiinsel for the appellant. Shri Ashish ShuMa, Additional PubUc Prosecutor for fhe State. ORAL JUDGEMENT (14.05.2007) SUNIL KUMAR SINHA. J Heard, This appeal is directed against the judgmeut of conviction aiid order of sentence dated 2<S.3.2001, passed in S.T.No. 50/2000 l3y the First Additioi^al Sessions Judge, Baikirothpur, District- Koriya(CG), whereby, tJie said 03urt convicted the appellant iinder Section 376 (5) IPC aiid sentenced him to undergo RJ, for 10 years, The facts ofthe case are that on 26.10.1999, at about 7.20 iii tlie jiight, the prosecutrix iiamely-Snit.Dewmoon Bai(PW-l), a niarded lady aged about 28 year^ and aiiotiier girl namely-Salko @ Jhaajari(PW-2), aged 13 yeai^, hoth had gone to answer the call of nature near a p1ace, wliich is called as "5 Wo. Dafaf. The allegations are that tliis appellant caioe over tliere and caught hoM of the prosec-atrix arid threw l^er on tlie ground aiid thereafter, coinniitted forceful sexual intercourse against tier. Salko @ Jhajijari(PW~2) has witoessed the occun'ence. Since the hiisbaiid ofthe prosecutrix was in jail at that tinie, she coiild not lodged the Cr.Appeal No.4S9/2001 (i' report iiEiniediately and ultiniately, the FTR was lodged ou 1.11.1999 vide Ex.P/1. Theiieafter, the 1ady was sent for iisedical exaniinatioYi aad Dr. Siat. Kalawati Patel (PW-7) examined her 011 1.11.1999 aiid prepared rcport Ex,P-6/A. She did not found aBy iiijusTy over the face, lips , cheeks, breasts or stomach. Tn the uitemal exajiiiiiiation, she found that tliere was no byiBeii, and valva and vagina were healthy, However, sl^e coiiTd notice one lacerated wound on the back side ofleft thigh in the size of 1/^ x W aiid the prosecutrix was also makiiig complaiuts of pain, Accordiiig to lier report, the prosec^itrix was acciistoD3ed to sexuial uitercourse and there were no syniptoms of forceful sex~aa1 intercourse. After coiiip1etio?a ofthe iiivestigation, cTiarge sheet was filed agaiiist the appellant. DuriDg the courae of tnal, t1~se prosecutrix and the aforesaid gir1 i.e. S-oit, Dewmoon Bei and Salko @ Jharijari were examiiied as PW-1 and PW-2. The 1")iisband ofthe prosecutrix iiaiiiiely- La-ung Sai was also examined as PW-3. The prosecutrix stated that wheu she 1iad goiie to answer the call of natare, the appellaiit caiBe over there and threw her on the ground, on this, she caught the hand of Salko @ tJba?ijari(PW-2), but she could also not save her and the appellaBt coniniitted forcefal sexiial intercourse against her. When she t-ded to make hue aud ciy, the appellant pressed her neck and threateBed her to life. Siiice lier h~asband was not in the liouse, s1ie coiild disclose fhe stoiy to hioi after 2nd - 3rd dav, when he retunied back and thereafter, a report was lodged. She has also ^tated that the appeUant had threatened 1ier for not reporting the matter, saymg tiliat if she goes to Police Statiou, he will get her kidnapped and for tJiis only, slie could not iiiake the report earlier ^jid when the husband canie to house then onty the report was lodged, This evidence of tlie proseciitrix is supported hy fhe evidence of Satko @ Jhaiijari(PW-25 and the saiiie is a1so coiToboi^ited by the evidence of her husband Laxuig Sai(PW-3), Smce the Doctor noticed the iujuiy on the back poi-tiori of thigh of the proseciitrix, the fnal Court, after appreciation of the evidence of these witnesses, he1d Cr.Appeal No.459/2001 tlie appeUaat guilty of the offence piiiiishable zinder Section 376 (1) IPC aud sentenced hiBi to undergo RJ. for 10 years. Leamed counsel for the appellant does not prcss this appeal on mesits. He ouly argues 011 the seiitence. His siihmission is tliat iii the facts ancl circiiHistajiices ofthe case, the sentence awarded to the appellajiit i.e. R.I, for 10 yeas's is too hai^h, which should be reduced to the minimiini. He also siibmits that the appellant is iii jafl since about 6 years aad 4 iiioiiths, thei^eforc^ his sentence be reduced to tlie period ah-eady uisdergone. On tlie otlier haiid, leanied counsel fbr the Stsle opposes this prayer. After goi&ig through fhe facts aiid circunistances ofthecase, particularly after going through the evidence of PW-1- Ssist. Dewiiioon Bai, PW-2-Salko alias Jha-njari and PW-3-Lauiig Sai, along with tilie evidence of PW-7-Dr,Smt Kalewati Patel and furfher after bearing the argumente of leai^ed coiinsel for tbe appeUant and the respondent, I do not flnd any infiniiily iu the judgnient of conviction awai'ded by tlie Sessions Coiii't and the coiivictioii of the appellant "ander Section 376 IPC is awarded by fSie Sessions Court is hereby con&iBecl. Now coiniiig to tiie question ofquantizm of punishment, the priiiciple of propoitloa between crinie and piiiiishment is govemed by the <<Doctrifw ofj^^si desai9. The doctrine is the fozTndation ofa crmiuial sentence which is ultmiately awarcted fbr a punishiiient to fhe wrong doer. What one really desei-ves sliould be the punishment for haviag committed a crime is the underlying priiiciple. The p-onishment miist not be disproportioiiately great is a coroUaiy of <<just desef-f which is govemed by the same principle whicli says ttiat fhere cairaot be a p-anishiiient witliout giult and the basic element behiad the principle is the propoiliou bet^een criine and pzinishnieiit. The lesser is the gravity ofthe criaie, the smallerwould be the punishment and the greater is thegravity of tlie criaie, tilie higher would be tlie puBishment, subject to the anciUaiy factors for determining the proportiou of the same, '-^- Cr.Appeal No.4§9/2001 thozigh all ftirther siibject to the statutosy ohligations speciflcally provided by Isw in force. In flie matter of State of Chh<^tis<iarh Vs. JOerfea, /'3004! 9 SCC 699, i^ape was coiniditted against a girl aged ^hout 8 years aud fhe accused was aged about 18 years on the date of incident ajid he had also served about 6 % years iinprisortment couseqiient to the seutence iniposed on hiiii a?id was havmg a family, Tn sucli circunistaiices, the Apex Court vide Para 8 oftltie jtidgiiieDl, while aUowing the appeal ofthe State and settuig aside the jiidgment of tlie High Court, rcduced the senfence to 7 yeai-s R.T, Ifwe exajiiine the facte ofthe present case/here, adniiftedly, the prosecutrix was a niarried lady, aged ahoiit 28 years and for a-u iiicident, wliicli took place ou 26.10,1999, a report was lodged on 1.11.1999. In cousequence thereof, the appetlant was taken into custody on 2<11.1999 aiid tJiereafter, he reBiained in jail for 70 days during the pendency ofthe Sessions Trial and ft-irther he is m jail suice 28.3,2001 aud thereby, he 1ias undergone fbrabozit 6 years aiid 4 months and -in the peculiar fscts and circumstajices of this case, I deem it proper to reduce the jailsentence froiii 10 years R.I. to7 yeare RJ,, wliichwould serve the ends ofjustice beiag quantum "jus^deserf. t In fhe result, tlie appeal is partty allowed. T1ie coiiviction of the appeUaiit uiider Section 376(1) TPCis coiifinTied. However, his seatence is rediiced from 10 years RJ, to 7 yeai's R.I, The appellaiit shall be entifled to set off for the pes-iod already undergone by hiiii and 1ie shall also be entitled to any legsl reraission pei-niissible in law for faaviiig already sei-ved the al^ove sentence of imprisoiiment ] Sd/- Sunil Kumar Sinha Judge sunita