2026:CGHC:4851 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1051 of 2001 Ramcharan Sahu, S/o Puniram Sahu, Aged About 26 Years, resident of Girsa Thana- Sarsiwan, District – Raipur (C.G.) ... Appellant (s) versus State of Chhattisgarh through the District Magistrate, Baloda Bazar, District- Raipur (C.G.) ... Respondent For Appellant : Ms. Aditi Singhvi, Advocate. For Respondent : Mr. Krishna Gopal Yadav, Dy. Govt. Advocate. Hon'ble Shri Justice Narendra Kumar Vyas Judgment on Board 29.01.2026 1. Despite the efforts made by the prosecution to serve warrant upon the appellant, the warrant has not been served upon the appellant. Hon’ble the Supreme Court in case of Mohd. Sukur Ali Vs. State of Assam [(2011) 4 SCC 729] has held that the criminal case cannot be decided against an accused in absence of the counsel and if the lawyer is absent, the Court must appoint an amicus curiae to ensure a fair trial, as the accused should not suffer for his/her counsel's negligence. Hon’ble the Supreme Court has held in paragraph 17 as under:- “17. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2026.02.02 15:22:51 +0530 appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him. If on the next date of hearing the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non-appearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the accused to either engage another counsel or the Court may proceed with the hearing of the case by the counsel appointed as amicus curiae.” 2. Hon’ble the Supreme Court in case of K. Muruganandam & others Vs. State represented by the Deputy Superintendent of Police & another [Criminal Appeal No. 809/2021 (decided on 12.08.2021)] considering the law in case of Mohd. Sukur Ali (supra) has held in paragraph 8 as under:- “8. It is well settled that if the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case only after appointing an amicus curiae, but cannot dismiss the appeal merely because of non-representation or default of the advocate for the accused (see Kabira vs. State of Uttar Pradesh1 and Mohd. Sukur Ali vs. State of Assam).” 3. In view of the law laid down by Hon’ble the Supreme Court aforestated, the High Court Legal Aid Committee has appointed Ms. Aditi Singhvi, Advocate as counsel to defend the matter on behalf of the appellant. 4. This appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 against judgment dated 18.10.2001 passed by learned Second Additional Sessions Judge, Baloda Bazar, District- Raipur (C.G.) in Sessions Trial No. 273/2000, whereby the appellant stands convicted and sentenced as under:- Conviction Sentence U/s 363 of IPC : R.I. for 2 years and fine of Rs. 500/- and in default of payment of fine, additional R.I. for 3 months. Page 3 of 9 U/s 366 of IPC : R.I. for 3 years and fine of Rs. 500/- and in default of payment of fine, additional R.I. for 5 months (Both the sentences to run concurrently) 5. The case of the prosecution, in brief, is that on 26.12.1999, the victim along with two sisters went to village- Girsa to watch video programme but did not return to home for 2-3 days, therefore, a missing report bearing No. 12/1999 was lodged by victim’s father at Police Station- Sarsiwan on 30.12.1999. The victim was recovered from possession of the appellant on 01.06.20002 and stated that the appellant had taken her by alluring victim and committed sexual intercourse with her, therefore, on the basis of statement of the victim, the offence under Sections 363, 366 & 376 of IPC were registered against the appellant. The prosecution after usual investigation, submitted charge-sheet before learned trial Court which has been registered as Session Trial No. 276/2001. 6. Learned trial Court on the basis of evidence and material available on record vide judgment dated 18.12.2001 has acquitted the appellant for commission of offence under Section 376 of IPC but convicted him for the offence under Sections 363 & 366 of IPC aforestated. The learned trial Court has acquitted the another accused namely Baba Thakur @ Amarjeet Singh from the said charges. 7. In order to bring home the above-stated offence, the prosecution examined as many as 15 witnesses namely victim as PW-1, Jawahar Lal (PW-2), Chanda Bai (PW-3), Bisahu Das (PW-4), Jiwanlal Sahu (PW-5), Dr. B. Chaurasia (PW-6), Derha Singh Vinayak (PW-7), Manbodh Singh (PW-8), Geeta Bai (PW-9), Kanhaiya Lal (PW-10), Ishwar Lal (PW-11), C.P. Mishra (PW-12), Minakshi Barade (PW-13), Shrawan Lal Jarva (PW-14) & S.S. Parihar (PW-15). Statement of the accused/appellant was recorded under Section 313 of the Cr.P.C., in which he denied his guilt and has taken the stand that he has been falsely implicated in this case. 8. The victim (PW-1) in her examination-in-chief has not supported case of the prosecution and stated that other family members provoked her parents regarding their relationship, therefore, they tortured her thereafter she asked the appellant to take away from home otherwise they will kill her and the appellant once refused the proposal made by her but she forced him to take her away which has compelled him to take away. She has further stated that they went from Girsa to Shivrinarayan by truck and from Shivrinarayan to Bilaspur and thereafter from Bilaspur to Jamnagar by train where they worked there and solemnized marriage in temple. She resides in the house of the accused. 9. Learned counsel for the appellant would submit that the finding recorded by the trial Court is contrary to the evidence, material on record as the statement of the victim has not been taken into consideration in its true prospect. She would further submit that there are mitigating factors available on record as the incident took place on 26.12.1999 and more than 25 years have already been lapsed and the appellant has already remained in custody from 01.06.2000 to 17.08.2000 i.e. for 2 months 16 days and after releasing on bail he never misused the liberty granted to him and according to the State counsel, the appellant/accused has no past criminal antecedents. She would further submit that the appellant and the victim are living as husband and wife and from their wedlock, a child was also born. In such facts, she would submit that looking to the conduct of the appellant and also considering the fact that accused and the victim are living together have one child also and if accused is directed to undergo to service out the remaining jail sentence, the family life of the appellant, victim and the child will be adversely affected, as such she would pray that the sentence may be reduced to the period already undergone by the appellant. To substantiate her submission, she would refer to the judgment rendered by Hon’ble the Supreme Court in case of Tilku alias Tilak Singh Vs. State of Uttarakhand [2025 SCC OnLine SC 353]. 10. On the other hand, learned counsel for the State supporting the impugned judgment passed by the learned trial Court would submit that the prosecution has brought home the offence against the appellant and has proved the case beyond reasonable doubt, thus the appellant has rightly been convicted and sentenced for the aforesaid offence. He would further submit that the findings and the approach of the trial court in this regard being based on proper appreciation of the evidence are in conformity with law, the same does not require any interference by this Court and would pray for dismissal of this appeal. 11. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 12. From the statements of the prosecution witnesses, it is proved that the victim was recovered from possession of the appellant and the victim was below 18 years at the of incident, therefore, offence under Sections 363 & 366 of IPC is proved against the appellant beyond reasonable doubt by the prosecution. Page 6 of 9 13. In such situation, this Court is examining the alternate submission made by learned counsel for the appellant with regard to mitigating factors for reducing the sentence imposed by the trial Court. The facts as stated by learned counsel for the appellant could not be refuted by the State counsel as such, it has to be accepted. Thus, the sentence deserves to be reduced to the extent already undergone coupled with the fact that during pendency of criminal case only, the appellant and the victim have already solemnized marriage and from their wedlock, one child was born and they must be settled in the life. Thus, there are mitigating factors available on record. 14. The mitigating factors are always subject to examination by Hon’ble the Supreme Court and various High Courts. Hon’ble the Supreme Court in case of State of M.P. Vs. Najab Khan [(2013) 9 SCC 509] has held in paragraph16 as under:- “16. In view of the above, we reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Courts must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment.” 15. Hon’ble the Supreme Court in case of Raj Bala Vs. State of Haryana & others [(2016) 1 SCC 463] has held in paragraph 16 as under: “16 A Court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the Court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio-cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the “finest part of fortitude” is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective.” 16. Again Hon’ble the Supreme Court in case of Kokaiyabai Yadav Vs. State of Chhattisgarh [(2017) 13 SCC 449] has held in paragraph 6 as under:- “6. If the object of our justice system is to reform the criminal, the appellant's exemplary conduct has aptly fit the bracket. Punishment can be used as a method of reducing the incidence of criminal behaviour either by incapacitating and preventing them from repeating the offence or by reforming them into law- abiding citizens. Reforming criminals who understand their wrongdoing, are able to comprehend their acts, have grown and nurtured into citizens with a desire to live a fruitful life in the outside world have the capacity of humanising this world. The crime was a result of a conflict between the motive of the mother and her character, with the motive triumphing. However, the 13 years she has spent in the prison, she has built her character moulding it by educating herself and learning the ways of life. The reformed appellant will be able to add value to the life of her now 15-year old son, by taking what she has learnt in these past few years and living by it.” 17. In light of the law laid down by Hon’ble the Supreme Court and the facts of the case, it is quite vivid that the appellant and the victim have already solemnized marriage and from their wedlock, one child was born and they must be settled with the life and further considering the fact that the prosecution has also not placed any material on record indicating the criminal antecedents of appellant, he has been regularly attending the trial Court after releasing by this Court on bail and has not misused the liberty granted to him while granting bail by this Court, I am of the view that there are sufficient mitigating factors are available on record to reduce the sentence imposed by the trial Court.. Hon’ble Supreme court in the case of Sandeep Singh Thakur vs. State of Madhya Pradesh and another [2025 SCC Online SC 2927] has quashed the conviction of the appellant for commission of offence under Section 376 of IPC. The Hon’ble Supreme Court has held in paragraph No. 12, 13, 14 & 15 as under:- “12. Learned counsel for the appellant as well as the second respondent also submitted that the appellant and the second respondent are since married and residing together, in the interest of justice criminal proceedings may be quashed. 13. Learned counsel for the standing counsel for the first respondent-state submitted that having regard to the facts of this case, appropriate orders may be made in this appeal. 14. Taking note of the submissions made by the learned counsel for the respective parties and the developments that have taken place in this appeal, we think interest of justice would be sub- served if the FIR No. 29 of 2021 dated 02.11.2021 lodged with Women Police Station, District Sagar and the judgment of the I Additional Sessions Judge, Sagar and the order of conviction and sentence passed dated 12.04.2024 therein, stand quashed. 15. Consequently, CRA No. 4869 of 2024 pending on the file of the Madhya Pradesh High Court is rendered infructuous.” 18. Accordingly, affirming the conviction under Section 363 & 366 of IPC, the sentence is reduced to the period already gone by the appellant. Page 9 of 9 19. Consequently, the instant appeal is partly allowed to the extend indicated hereinabove. 20. From the records, it appears that the appellant is on bail and his bail bonds shall continue for a further period of six months from today in view of Section 437-A of the Code of Criminal Procedure, 1973. 21. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance. Sd/- (Narendra Kumar Vyas) Judge Arun