1 2025:CGHC:5931 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 676 of 2021 Ramdhan S/o Sahettar Kosle Aged About 27 Years R/o Village Pendri, Police Station Pamgarh District Janjgir Champa Chhattisgarh ... Appellant(s) versus State Of Chhattisgarh Through The Station House Officer, Police Station Pamgarh District Janjgir Champa Chhattisgarh ... Respondent(s) For Petitioner(s) : Shri Ashutosh Trivedi, Advocate For Respondent/State : Shri G.L.Uikey, PL (Hon’ble Shri Justice Arvind Kumar Verma) Judgment on Board 31/01/2025 This appeal is directed against the judgment dated 19.02.2021 passed by the Additional Sessions Judge (FTC) Janjgir, District Janjgir- Champa in S.T. No. 15/2019 whereby the appellant has been convicted for the offence punishable under Sections 450 & 376 IPC and sentenced to undergo RI for 5 years and 10 years respectively, to pay fine of Rs. 1,000/- on each count with default stipulations. 2. Case of the prosecution in brief is that a written report (Ex.P-1) was lodged by the mother of the prosecutrix alleging that on 2 23.02.2017, at about 9.00 am, she had gone to village Sendri leaving her daughter in the house who is physically challenged and in the evening at about 5.00 pm. when she returned home, she saw her daughter scared. On the next day ie. 24.02.2017, she narrated that on 23.02.2017, at about 2.00 pm when she was watching TV, the appellant entered the house and committed rape on her after gagging her mouth. On the basis of the said complaint FIR (EX.P-2) was lodged against the appellant under Sections 376,450 IPC and Section 6 of the POCSO Act. Spot map (Ex.P-3) was prepared and after taking consent vide Ex.P-5, prosecutrix was medically examined vide Ex.P-8 at Community Health Centre, Pamgarh. The school admission and discharge register Ex.P-7 was seized vide Ex.P-6, slides were prepared, sealed vide Ex.P-9. The appellant was arrested and he was medically examined vide Ex.P-10 wherein the doctor has opined that he was found capable of performing sexual intercourse. and the seized articles were sent to FSL, Bilaspur. Statements of the witnesses were recorded and after completion of investigation, the charge sheet for the offence under Sections 450, and 376 IPC and 6 of the Protection of Children from Sexual Offences Act was filed before the learned Special Judge,Pamgarh. The appellant abjured his guilt and claimed for trial. 3. In order to establish the charge against the appellant, the prosecution has examined as many as 11 witnesses. Statement under Section 313 of the Cr.P.C. of the appellant had been recorded in which he denied the material appearing against him and pleaded his innocence and false implication in the case. 4. After appreciation of the oral as well as documentary evidence available on record, the learned trial Court has convicted the appellant 3 and sentenced him as mentioned in para 1 of the judgment. Hence, this appeal. 5. Learned counsel for the appellant would argue that the appellant is innocent and has been falsely implicated in the case. He submits that the trial court has failed to appreciate the statement of Dr.Shwetalal (PW-6) who has medically examined the prosecutrix and opined that there were no external or internal injuries found on the person of the prosecutrix. The trial court has gravely erred in convicting the appellant only on the basis of the testimony of the interested witnesses without there being any clinching or cogent evidence. He submits that the prosecution witnesses have not supported the case of prosecution and tuned hostile. He further submits that the findings recorded by the trial court is baseless, perverse, erroneous and contrary to the material available on record. He further argued that the learned trial Court did not appreciate the evidence on record in the right perspective and unduly attached too much importance to the statement of the prosecutrix. 6. On the other hand, learned State counsel supports the impugned judgment and submits that the conviction and sentence awarded by the learned Special Judge do not warrant any interference by this Court. He submits that the victim was physically disabled (cerebral palsy) who has been subjected to rape by the appellant. The evidence of the victim itself is sufficient to hold guilty of the appellant which has been supported by the other evidence also. Therefore, there is no merit in the appeal filed by the appellant and the same is liable to be dismissed. 7. Having heard learned counsel for the parties and considering the points urged and the grounds made out, the following points would 4 arise for consideration is as to whether the evidence led by the prosecution, the victim (PW-01) has stated in her evidence that she is physically disabled. On the date of incident when her mother had gone to another village for Dashgatra, she was alone in her house and at that time the appellant entered her house and after gagging her mouth committed rape upon her. When her mother came in the evening she was scared and in the evening informed to her mother and thereafter, the report has been lodged. In cross-examination though the suggestion has been given to this witness that her father was having some money dispute with the appellant but she denied. She has stated that she informed the incident to her mother and thereafter her mother lodged the report to the police. From the evidence of this witness the defence could not extract any material, which makes her evidence doubtful that on the date of incident the appellant has not committed any offence with her or she has levelled allegation against the appellant falsely. There is no reason for false implication of the appellant reflects from the evidence of this witness, merely outstanding of the some amount does not find sufficient to falsely implicate the appellant in the offence in question. 8. The victim was sent for her medical examination to Dr. Shwetalal (PW-6), who found the hymen was found ruptured and she has not found any external or internal injury on the private parts. She has opined that the victim was mentally and physically disabled (cerebral palsy) and was not able to speak properly, she was unable to recognize the household things and finger counting and. From the statement of the victim which has been translated by Mariya Ekka who is a special Translator/Instructor of B.Ed and D.Ed in Mental Retardation, was 5 recorded as per Section 118 of the Evidence Act for understanding the questions put to her by signs made in the court and allegation made by her that she was subjected to rape by the appellant, it is found proved that the victim was subjected to rape by the appellant. On the basis of the facts mentioned in appeal, the guilt of the accused is proved. It is noteworthy that the appellant was aged about 27 years at the time of commission of crime and that the victim was a aged about 17 years. The accused is so immoral person that he committed rape on a physically disabled women. In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926], explaining rehabilitation & reformative aspects in sentencing it has been observed by the Supreme Court: "Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries." 42. The term, 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP, [(2004) 7 SCC 257 by observing that sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, 6 age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically. 9. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, Supreme Court referred its earlier judgments rendered in Jameel vs State of UP [(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734], Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323], State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The Supreme Court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and 7 wrongdoers. 10. In the wake of foregoing discussion, the conviction of the appellant as recorded by the trial court under Sections 450 and 376 IPC committed on a mentally disabled women does not warrant any interference in this appeal. However, as stated above, the prosecutrix was subjected to forcible sexual intercourse by the appellant without her consent, and that too, after gaining forceful entry in the house of the prosecutrix, thus, his conviction under Sections 450 and 376 is maintained. 11. The accused/appellant is in jail since 05.01.2019 and has completed 6 ½ years, this Court is of the opinion that ends of justice would be served if his sentence is reduced to 7 years from that of 10 years. Since the appellant is in jail, he shall serve the remaining part of the sentence imposed on him. 19. In the result, the appeal is partly allowed. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.23 17:17:23 +0530