Chattisgarh High Court
Rishabh Berisal vs State Of Chhattisgarh on 15 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
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CGHC010360332025 2026:CGHC:29925-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1753 of 2025
Rishabh Berisal S/o Vishal Berisal Aged About 20 Years R/o Sankar Nagar,
Behind Vaishali Tower, Torwa, Polic Station- Torwa, District : Bilaspur,
Chhattisgarh
--- Appellant
versus
State Of Chhattisgarh Through The Station House Officer Police Station-
Sarkanda, District : Bilaspur, Chhattisgarh
--- Respondent
For Appellant : Mr. Rohit Sharma, Advocate
For Respondent/State : Mr. Ashish Shukla, Addl. A.G.
CRA No. 380 of 2026
Vinay Malik S/o Late Rajendra Malik Aged About 24 Years R/o Baapu
Nagar, Torwa Police Station Torwa, Bilaspur , District- Bilaspur Chhattisgarh
—Appellant
Versus
State Of Chhattisgarh Through Police Station Sarkanda, District- Bilaspur
Chhattisgarh
VED — Respondent
PRAKASH
DEWANGAN
Digitally signed For Appellant : Ms. Shriya Jaiswal, Advocate
by VED
PRAKASH
For Respondent/State : Mr. Ashish Shukla, Addl. A.G.
DEWANGAN
Date: 2026.07.22
13:14:54 +0530
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Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
15/07/2026
1. Learned counsel for the State submitted that the notice issued to
PW-11, the father of the victim, has been served upon him, however
no one appears on his behalf to make his submission.
2. Although the matter has been listed for consideration on I.A. No. 1 of
2025 (in CRA No. 1753 of 2025) and I.A. No. 1 of 2026 (in CRA No.
380 of 2026), applications for suspension of sentence and grant of
bail), however considering the fact that of the total period of their
sentence awarded by the learned trial Court and their undergone
period, with the consent of the parties, both the appeals have been
heard finally and I.A. No. 1 of 2025 and I.A. No. 1 of 2026 are
disposed of.
3. Both the criminal appeals under Section 21(1) of the National
Investigation Agency Act 2008 have been filed by the respective
appellants against the impugned judgment of conviction and
sentence dated 02.08.2025, passed by the learned Special Sessions
(NIA), Bilaspur, District Bilaspur, in Special Case (NIA) No. 40 of
2024 arising out of Crime No. 316 of 2024, registered at police
station Sarkanda, Bilaspur for the offence under Sections 363, 366,
370, 342, 354 and 34 of IPC and Section 6 of the Protection of
Children from Sexual Offences Act, 2012 (in short ‘POCSO Act‘),
whereby the appellants have been convicted and sentence in the
following manner:-
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For appellant- Rishabh Berisal in CRA No. 1753 of 2025
CONVICTION SENTENCE
Under Section 363 IPC R.I. for four years and fine of Rs.
100/-, in default of payment of fine,
additional R.I. for 15 days.
Under Section 342/34 of IPC R.I. for one year and fine of Rs.
100/-, in default of payment of fine,
additional R.I. for 7 days.
Both the sentences are directed to run concurrently.
For appellant- Vinay Malik in CRA No. 380 of 2026
CONVICTION SENTENCE
U/s 363 of Indian Penal Code Rigorous Imprisonment for 4 years
and fine of Rs. 100/-. In default of
payment of fine, additional 15 days
rigorous imprisonment.
U/s 354 of Indian Penal Code Rigorous Imprisonment for 1 year
and fine of Rs. 100/-. In default of
payment of fine, additional 7 days
rigorous imprisonment.
U/s 342 read with 34 of Indian Rigorous Imprisonment for 1 year
Penal Code and fine of Rs. 100/-. In default of
payment of fine, additional 7 days
rigorous imprisonment.
U/s 8 of Protection of Children Rigorous Imprisonment for 4 years
from Sexual Offences Act, and fine of Rs. 100/-. In default of
2012 payment of fine, additional 15 days
rigorous imprisonment.
All the sentences are directed to run concurrently.
4. The case of the prosecution is that, on 11.03.2024, PW-11/father of
the victim-B (PW-9) logged a missing report to the police station
Sarkanda that his minor daughter aged about 13 years and 9 months
is missing from the night of 10.03.2024 and her whereabouts could
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not be traced out. The missing report (exhibit P-19) was registered by
the police for the offence under Section 363 of IPC against unknown
persons. During the investigation, the mobile location of the victim-B
and suspected accused Vinay Malik was obtained from Cyber cell
and the victim-B was recovered on 12.03.2024 from Hemu Nagar,
Bilaspur and recovery panchnama (exhibit P-18) was prepared.
Along with the victim-B, her two friends PW-7 and PW-8 have also
found with her. With respect to age and date of birth of the victim-B,
the school register has been seized vide seizure memo (exhibit P-5)
and according to the school register, the date of birth of the victim-B
is 30.05.2010 and after retaining its attested true copy (exhibit P-7C),
the original register was returned to the school. From the Cyber
Crime Cell, Bilaspur the CDR and SDR-CAF and location was
obtained by the police, which are exhibit P-9, P-10, P-11, P-12, P-13,
P-29 and the certificate under Section 65-B of Indian Evidence Act,
1872 is exhibit P-14. Spot map (exhibit P-2) was prepared by the
patwari and exhibit P-28 was prepared by the police. Statement of
the victim-B under Section 164 of CRPC and the statements of her
two friends were also recorded. The appellant Vinay Malik has been
arrested on 14.03.2024 and the accused Ritik Kumar (acquitted
accused) was arrested on 08.04.2024. Memorandum statement
(exhibit P-4) of the accused Vinay Malik was recorded and his
criminal antecedents (exhibit P-30) have also been obtained by the
police. Since the another accused Rishabh Berisal was absconding,
charge sheet was filed against two accused persons Vinay Malik and
Ritik Kumar showing the Rishabh Berisal absconding, before the
learned trial Court on 30.05.2024 for the offence under Sections 342,
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354, 363, 366, 370, 34 of IPC and Section 8 of POCSO Act. Rishabh
Berisal has been arrested on 02.08.2024 and a supplementary
charge sheet has been filed against him on 29.08.2024.
5. The learned trial Court framed charge against the accused persons
for the offence under Sections 363, 366, 354, 342/34 and 370/34 of
IPC, Section 8 of POCSO Act. The accused persons denied the
charge and claimed trial.
6. In order to prove the charge against the accused persons, the
prosecution examined as many as 12 witnesses. Statements of the
accused persons under Section 313 CRPC have been recorded, in
which they denied the circumstances appears against them, pleaded
innocence and the accused Vinay Malik submitted that the police
have already arrested him due to hot talk with them and falsely
implicated in the present case, whereas the accused Rishabh Berisal
pleaded false implication.
7. After appreciation of oral and documentary evidence, the learned trial
Court has acquitted the accused Ritik Kumar from all the offences
and has convicted the appellants and sentenced them, as mentioned
in the earlier part of this judgment. Hence this appeal.
8. Mr. Rohit Sharma, learned counsel appearing for the appellant
Rishabh Berisal would submit that, the appellant is not challenging
his conviction under Section 363, 342/34 of IPC, but he is
challenging the sentence awarded to him for the said offences. He
would submit that there is no minimum sentence provided for the
offences for which he is convicted, the appellant Rishabh Berisal is in
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jail since 02.08.2024 and thereby already completed more than one
year and 10 months, therefore, his sentence may be reduced for the
period already undergone by him.
9. Ms. Shriya Jaiswal, learned counsel appearing for the appellant
Vinay Malik would submit that, the prosecution has failed to prove its
case beyond reasonable doubt. The victim-B along with her two
friends were found in night walking near Railway station and to keep
them safe, the appellant provided shelter in the night, so that their
parents may be informed in the morning. The act of the appellant is
quite bona fide, but under the pressure of her parents, the victim-B
made statement against him. She would further submit that had the
victim being kidnapped or abducted, she could have raised alarm or
protested as her two friends were also with her. There are material
omissions and contradictions in the evidence of prosecution
witnesses and their inconsistent evidence is not reliable to hold the
appellant guilty in the offence. There is no allegation of any sexual
molestation. Even the age of the victim has not been proved by the
prosecution by leading cogent evidence that he was less than 18
years of age. In view of the evidence available on record, the
conviction of the appellant suffers from perversity and illegality and
the same is liable to be set aside. In alternative, she further submits
that if the appellant is found guilty for the alleged offence, then his
sentence may also be reduced for the period already undergone by
him considering that the appellant is in jail since 14.03.2024, looking
to the total period of sentence awarded to him and the sentence
prescribed for the alleged offences.
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10. On the other hand, learned counsel appearing for the State opposes
the submissions made by learned counsel for the respective
appellants and would submit that, the prosecution has duly proved its
case beyond reasonable doubt against the appellants. But for minor
omission or contradiction, the evidence of prosecution witnesses are
reliable and sufficient to hold the appellants guilty for the alleged
offences. The evidence of the victim-B is sufficient and not required
for any corroboration, as she duly supported the prosecution’s case.
From the evidence of victim-B, the manner in which she was
kidnapped and outraging her modesty by the appellant Vinay Malik
and wrongfully confined by the accused persons, have duly
established by the prosecution. The learned trial Court after
appreciating the evidence available on record, has rightly convicted
an sentenced the appellants. The sentence awarded to the
appellants are proportionate to the gravity of the offence, which
needs no interference and the appeals filed by the respective
appellants are liable to be dismissed.
11. We have heard learned counsel for the parties and perused the
entire record with utmost circumspection.
12. The first question which arises for consideration is, whether the
victim-B is minor and less than 18 years of age. To prove the age of
the victim-B, the prosecution relied the school register (exhibit P-7C),
which is sought to be proved by the Headmistress of the school (PW-
5). She stated in her evidence that the police has seized the school
register (exhibit P-7) vide seizure memo (exhibit P-5) and the
attested true copy of school register is exhibit P-7C. As per the
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school register the date of birth of the victim is 30.05.2010. Though,
in cross-examination she admitted that, she is not the author of the
school register, but she denied that she on her own made entries in
the school register. She also denied that the age of the victim was
recorded in the school register after reducing it.
13. PW-9 has been examined on 13.06.2025 and she disclosed her age
as 15 years. Her age has not been disputed by the defence in her
cross-examination. Considering the evidence of the victim about her
age and school register (exhibit P-7C), the learned trial Court has
found that the prosecution has proved the age of the victim-B, is less
than 18 years and she was minor, in which we do not find any
illegality or perversity.
14. So far as the involvement of the appellants in the alleged offence are
concerned, we again examined the evidence of PW-9/victim-B. She
stated in her evidence that PW-7 and PW-8 are her friends. On
11.03.2024, at about 3:30-4:00 a.m. they were going towards
Railway station and when they returning back, two persons came
near Chhat Ghat by their scooty. They asked them to left their house,
but instead of dropping them to their house, they took them towards
Railway station. After a distance, they stopped their vehicle and
stated that they are police persons and thereafter they took them
towards Jairamnagar. They called the appellant Ritik to took them in
a house near Railway gate, thereafter the appellants Vinay and
Rishabh took them to railway quarter at about 2:00-3:00 a.m. The
appellant Vinay Malik shown his intimacy with her and asked her to
marry him and outraged her modesty by touching her legs. With the
9
intervention of her friends scuffled took place between them and then
Vinay left her there. The appellant Vinay described the SIM card of
her and her friends’ mobile phone. At that time, the police persons
came there. In cross-examination, she stated that they came out
from their houses at about 3:00-3:30 a.m. and gathered together at
about 4:00 a.m. It was the early morning time, the peoples are not
visiting. When they were returning from Chhat Ghat, light darkness
were there. She duly identified the accused persons during the
incident and remained firm in her cross-examination. He further
stated that she disclosed to the police that the family members of her
friends PW-8 intended for her marriage without her consent and
therefore, they planned to went away from their house. Though she
could not state as to on which place or date, the appellant Vinay
destroyed their SIM cards, but she firmly denied that the appellant
Vinay has not committed any offence with her. She also denied the
suggestion that the appellant Vinay has not outraged her modesty.
From the evidence of this witness, the defence could not be able to
extract any material from her cross-examination, which makes her
evidence doubtful. She remained firm in material part of her
allegation and there is no reason for the false implication of the
appellants in the defence.
15. The evidence of PW-9/victim-B is supported by the evidence of PW-7
and PW-8, who are her friends and were with the victim-B (PW-9).
16. PW-7 has stated that on the date of incident, she along with her two
friends had gone for morning walk. The appellant Vinay Malik came
there in his scooty, introduced himself to be a policeman and
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threatened them that they are roaming alone and should have go to
police station. He took them in his scooty towards jungle side and
kept them in a house. During that the police came there and took
them back. She also stated that the appellant Vinay Malik threatened
the victim-B and pressurized her for marriage. In cross-examination
she too remained firm in allegation that the appellant Vinay took them
and confined in the house. From the cross-examination of this
witness, the defence could not rebut the allegation leveled against
them.
17. PW-8, who is another friend of the victim-B, has also stated that on
the date of incident, when they were in morning walk, the appellant
Vinay met them on the way, introduced himself to be a policeman
and took them for police station, but instead thereof, he took them
towards Jairamnagar and in the next night at railway quarter, from
where the police recovered them. She too remained firm in her cross-
examination regarding the allegation made against the present
appellant. But for minor omission or contradiction, which are trivial in
nature, her evidence is supporting the evidence of the victim-B (PW-
9).
18. PW-11 is the father of victim-B and complainant. He stated in his
evidence that on the date of incident, his daughter had gone to
morning walk, but the appellant kidnapped her and her friends. He
chased them up to 5 KMs, but they had gone towards Hemu Nagar
and then he could not chased them. In cross-examination, though he
admitted that he chased the appellant, but due to dogs on the road,
11
he could not catch them. His evidence is supporting only to the fact
that he lodged a missing report of the victim-B (PW-9).
19. PW-6, Sub-Inspector Prakash Tiwari, posted at the Cyber Cell,
Bilaspur, deposed that on receipt of the requisition dated 13.05.2024
from the Station House Officer, Sarkanda, he sent e-mails to the
Nodal Officers of Airtel, Reliance Jio, Vodafone Idea and BSNL
seeking the Call Detail Records (CDRs), Subscriber Detail Records
(SDRs) and Customer Application Forms (CAFs) pertaining to the
specified IMEI numbers and mobile numbers for the period from
10.03.2023 to 13.03.2023. He proved the e-mail correspondence
with the respective service providers as Exhibits P-9 to P-13 and
explained the details received from each operator, including the
mobile numbers found active on the relevant IMEI numbers and the
subscriber particulars of mobile numbers 7580093613 and
9882627754 as reflected in the CAFs. He further proved the
certificate under Section 65-B of the Indian Evidence Act (Exhibit P-
14), certifying the electronic records furnished by the service
providers. In his cross-examination, nothing material was elicited to
discredit his testimony except a suggestion, which he denied, that he
had prepared the report on the oral instructions of the Investigating
Officer. His evidence establishes that the CDRs, SDRs and CAFs
were obtained directly from the concerned service providers in the
ordinary course and were duly supported by the statutory certificate
under Section 65-B of the Evidence Act.
20. PW-12, the Investigating Officer, deposed that on 11.03.2024, on the
information furnished by the prosecutrix’s father regarding her
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disappearance, he registered the missing person report (Ex.P-21)
and made the corresponding Rojnamcha Sanha entry No. 53/2024.
Thereafter, he registered FIR No. 316/2024 (Ex.P-19) against an
unknown person under Section 363 of the IPC. During investigation,
after tracing the prosecutrix, he prepared the recovery memo (Ex.P-
18) in the presence of witnesses on 12.03.2024 and, after her
recovery, handed over her custody to her father under the
Supurdnama (Ex.P-20). On the same day, he recorded the statement
of the prosecutrix. He further stated that accused Vinay Malik was
taken into custody and, in the presence of witnesses Manoj Jaiswal
and Hemant Srivastava, his memorandum statement (Ex.P-4) was
recorded. Upon finding sufficient evidence, accused Vinay Malik and
Ritik Kumar were arrested under arrest memos (Ex.P-23 and P-26,
respectively). On 14.03.2024, he prepared the spot map (Ex.P-28)
and also addressed a requisition (Ex.P-29) to the In-charge, Cyber
Cell, Bilaspur, seeking the Call Detail Records and subscriber
information relating to IMEI Nos. 862448056424482 and
862448056424490. He further recorded the statements of the
prosecutrix and her friends during the course of investigation.
Significantly, the testimony of this witness remained unshaken in
cross-examination, and no material contradiction or omission could
be elicited to discredit the investigation conducted by him.
21. In the case of “Rohtash Kumar v. State of Haryana” 2013 (14) SCC
434, the Hon’ble Supreme Court has held that the Court is not
supposed to give undue importance to omissions, contradictions and
13
discrepancies which do not go to the heart of the matter and shake
the basic version of the prosecution witness. It has been held that:-
“24. It is a settled legal proposition that while
appreciating the evidence of a witness, minor
discrepancies on trivial matters which do not
affect the core of the case of the prosecution,
must not prompt the court to reject the evidence
in its entirety. Therefore, unless irrelevant, details
which do not in any way corrode the credibility of
a witness should be ignored. The court has to
examine whether evidence read as a whole
appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary
for the court to scrutinise the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find
out whether it is against the general tenor of the
evidence given by the witnesses and whether the
earlier evaluation of the evidence is shaken, as to
render it unworthy of belief. Thus, the court is not
supposed to give undue importance to omissions,
contradictions and discrepancies which do not go
to the heart of the matter, and shake the basic
version of the prosecution witness. Thus, the
court must read the evidence of a witness as a
whole, and consider the case in light of the
entirety of the circumstances, ignoring the minor
discrepancies with respect to trivial matters,
which do not affect the core of the case of the
prosecution. The said discrepancies as
mentioned above, should not be taken into
consideration, as they cannot form grounds for
rejecting the evidence on record as a whole. (See
14State of U.P. v. M.K. Anthony, State v. Saravanan
and Vijay v. State of M.P.)”
22. After appreciation of the entire evidence available on record, we are
satisfied that the findings recorded by the learned trial Court are
based on proper appreciation of evidence and do not suffer from any
perversity or infirmity. The evidence of the victim-B (PW-9) is natural,
cogent and trustworthy and stands substantially corroborated by the
evidence of PW-7 and PW-8. The prosecution has also proved that
the victim was a minor on the date of the incident. The evidence
establishes that the appellants had taken minor victims away from
their lawful guardianship of their parents and wrongfully confined
them, thereby attracting the offence punishable under Sections 363
and 342 read with Section 34 of the IPC. It is further established that
the appellant Vinay Malik, with sexual intent, touches the legs of the
victim-B, thereby committing sexual assault within the meaning of
Section 7 of the POCSO Act, punishable under Section 8 of the
POCSO Act, besides committing the offence under Section 354 of
the IPC. The discrepancies highlighted by the defence are minor and
trivial and do not create any dent in the otherwise consistent
prosecution case. We therefore concur with the findings of the
learned trial Court and affirm the conviction of the appellants for the
offence for which they have been held guilty.
23. So far as sentence awarded to the appellants are concerned, the
Hon’ble Supreme Court in “Mohammad Giasuddin Vs. State of
Andhra Pradesh” 1977 (3) SCC 287 has laid down the law with
respect to awarding sentence to the accused persons. In paragraph
9 it was held as under :-
15
“9. Western jurisdiction and ‘sociologists, from
their own angle have struck a like note. Sir
Samual Romilly, critical of the brutal penalties
in the then Britain, said in 1817 : “The laws of
England are written in blood”. Alfieri has
suggested : ‘society prepares the crime, the
criminal commits it. George Micodotis, Director
of Criminological Research Centre, Athens,
Greece, maintains that ‘Crime is the result of
the lack of the right kind of education.’ It is thus
plain that crime is a pathological aberration,
that the criminal can ordinarily be redeemed,
that the State has to rehabilitate rather than
avenge. The sub-culture that leads to anti-
social behaviour has to be countered not by
undue cruelty but by re-culturisation. Therefore,
the focus of interest in penology is the
individual, and goal is salvaging him for society.
The infliction of harsh and savage punishment
is thus a relic of past and regressive times. The
human today views 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 social defense. We,
therefore consider 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.
In the words of George Bernard Shaw : ‘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’. We may permit ourselves the liberty to
quote from Judge Sir Jeoffrey Streatfield : ‘If
16you are going to have anything to do with the
criminal courts, you should see for yourself the
conditions under which prisoners serve their
sentences.’ In the same strain a British
Buddhist-Christian Judge, speaking to a BBC
reporter underscored the role of compassion :
“Circuit Judge Christmas Humphreys told the
BBC reporter recently that a judge looks ‘at the
man in the dock in a different way : not just a
criminal to be punished, but a fellow human
being, another form of life who is also a form of
the same one life as oneself.’ In the context of
karuna and punishment for karma the same
Judge said : ‘The two things are not
incompatible. You do punish him for what he
did, but you bring in a quality of what is
sometimes called mercy, rather than an
emotional hate against the man for doing
something harmful. You feel with him; that is
what compassion means.”
24. Further, in the matter of “Raj Bala Vs. State of Haryana & Others“
2016 (1) SCC 463 in paragraph 1 & 2 the Hon’ble Supreme Court
has held as under :
“1. In Gopal Singh v. State of Uttrakahand[1],
while focusing on the gravity of the crime and
the concept of proportionality as regards the
punishment, the Court had observed:-
“18. Just punishment is the collective
cry of the society. While the collective
cry has to be kept uppermost in the
mind, simultaneously the principle of
proportionality between the crime and
17punishment cannot be totally brushed
aside. The principle of just punishment
is the bedrock of sentencing in respect
of a criminal offence. A punishment
should not be disproportionately
excessive.
The concept of proportionality allows a
significant discretion to the Judge but
the same has to be guided by certain
principles. In certain cases, the nature
of culpability, the antecedents of the
accused, the factum of age, the
potentiality of the convict to become a
criminal in future, capability of his
reformation and to lead an acceptable
life in the prevalent milieu, the effect –
propensity to become a social threat or
nuisance, and sometimes lapse of
time in the commission of the crime
and his conduct in the interregnum
bearing in mind the nature of the
offence, the relationship between the
parties and attractability of the doctrine
of bringing the convict to the value-
based social mainstream may be the
guiding factors. Needless to
emphasise, these are certain
illustrative aspects put forth in a
condensed manner.We may hasten to
add that there can neither be a
straitjacket formula nor a solvable
theory in mathematical exactitude. It
would be dependent on the facts of the
case and rationalised judicial
discretion. Neither the personal
18perception of a Judge nor self-adhered
moralistic vision nor hypothetical
apprehensions should be allowed to
have any play. For every offence, a
drastic measure cannot be thought of.
Similarly, an offender cannot be
allowed to be treated with leniency
solely on the ground of discretion
vested in a court.The real requisite is
to weigh the circumstances in which
the crime has been committed and
other concomitant factors which we
have indicated hereinbefore and also
have been stated in a number of
pronouncements by this Court. On
such touchstone, the sentences are to
be imposed. The discretion should not
be in the realm of fancy. It should be
embedded in the conceptual essence
of just punishment.”
[Emphasis supplied]
2. Seven years prior to that, in Shailesh
Jasvantbhai v. State of Gujarat [2], it has
been held that:-
“7. The law regulates social interests,
arbitrates conflicting claims and demands.
Security of persons and property of the
people is an essential function of the State. It
could be achieved through instrumentality of
criminal law. Undoubtedly, there is a cross-
cultural conflict where living law must find
answer to the new challenges and the courts
are required to mould the sentencing system
19to meet the challenges. The contagion of
lawlessness would undermine social order
and lay it in ruins. Protection of society and
stamping out criminal proclivity must be the
object of law which must be achieved by
imposing appropriate sentence. Therefore,
law as a cornerstone of the edifice of “order”
should meet the challenges confronting the
society.
Friedman in his Law in Changing Society
stated that:
“State of criminal law continues to be-as it
should be-a decisive reflection of social
consciousness of society.” Therefore, in
operating the sentencing system, law should
adopt the corrective machinery or deterrence
based on factual matrix. By deft modulation,
sentencing process be stern where it should
be, and tempered with mercy where it
warrants to be. 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.
8. Therefore, undue sympathy to impose
inadequate sentence would do more harm to
the justice system to undermine the public
confidence in the efficacy of law, and society
could not long endure under such serious
20threats. It is, therefore, 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, etc. This position was
illuminatingly stated by this Court in Sevaka
Perumal v. State of T.N.[3]”
[Emphasis supplied]
And again:- “The court will be failing in its
duty if appropriate punishment is not
awarded for a crime which has been
committed not only against the individual
victim but also against the society to which
the criminal and the victim belong. The
punishment to be awarded for a crime must
not be irrelevant but it should conform to and
be consistent with the atrocity and brutality
with which the crime has been perpetrated,
the enormity of the crime warranting public
abhorrence and it should “respond to the
society’s cry for justice against the criminal”.”
25. The appellant Vinay Malik has also been convicted under Section 8
of the POCSO Act. Section 8 of the POCSO Act provided punishment
for sexual assault. The appellant Vinay Malik is found guilty of sexual
assault as defined in Section 7 of the POCSO Act, as he touched the
legs of the victim-B with sexual intent. The sentence provided under
Section 8 of the POCSO Act is as under:-
“8. Punishment for sexual assault.–Whoever,
commits sexual assault, shall be punished with
imprisonment of either description for a term
which shall not be less than three years but which
21may extend to five years, and shall also be liable
to fine.”
26. Having upheld the conviction of the appellants, the question that
remains is with regard to the quantum of sentence. Sentencing is a
matter of judicial discretion, which is required to be exercised by
balancing the gravity of the offence with the mitigating circumstances
of the accused. In the present case, the incident does not disclose
the use of any weapon or extreme physical violence, and the act
attributed to appellant Vinay Malik, though constituting “sexual
assault” within the meaning of Section 7 of the POCSO Act, is
confined to the act proved on record. The appellants have faced the
ordeal of criminal prosecution for a considerable period. Having
regard to the nature and degree of culpability, the age of appellant
Vinay Malik at the time of the incident, the attendant facts and
circumstances of the case, and the principles governing sentencing
enunciated by the Hon’ble Supreme Court in Giasuddin (supra)
and Raj Bala (supra), this Court is of the considered opinion that the
ends of justice would be served by reducing the substantive
sentence imposed upon the appellants by enhancing the fine
amount.
27. Thus, the sentences of the appellants are reduced as given
hereinbelow:-
For appellant- Rishabh Berisal in CRA No. 1753 of 2025
CONVICTION SENTENCE
Under Section 363 IPC For the period already undergone by
the appellant with fine of Rs.
15,000/-, in default of payment of
fine, additional R.I. for 15 days.
22
Under Section 342/34 of IPC Rigorous Imprisonment for 1 year
and fine of Rs. 100/-. In default of
payment of fine, additional 7 days
rigorous imprisonment.
(conviction maintained, however
awarded sentence already
undergone)
Both the sentences are directed to run concurrently. The fine
amount imposed by this Court are in addition to the fine amount,
which has been imposed by the learned trial Court. The fine
amount, so awarded by this Court, shall be paid within two months
from today. After deposition of the enhanced fine amount of total Rs.
15,000/- shall be paid to the victim (PW-9) as compensation as
provided under Section 395 of the Bhartiya Nagarik Suraksha
Sanhita, 2023.
For appellant- Vinay Malik in CRA No. 380 of 2026
CONVICTION SENTENCE
U/s 363 of Indian Penal Code For the period already undergone by
the appellant with fine of Rs. 100/-.
In default of payment of fine,
additional 15 days rigorous
imprisonment.
U/s 354 of Indian Penal Code Rigorous Imprisonment for 1 year
and fine of Rs. 100/-. In default of
payment of fine, additional 7 days
rigorous imprisonment.
(conviction maintained, however
awarded sentence already
undergone)
U/s 342 read with 34 of Indian Rigorous Imprisonment for 1 year
Penal Code and fine of Rs. 100/-. In default of
payment of fine, additional 7 days
rigorous imprisonment.
(conviction maintained, however
awarded sentence already
undergone)
U/s 8 of Protection of Children Rigorous Imprisonment for 3 years
from Sexual Offences Act, and fine of Rs. 100/-. In default of
2012 payment of fine, additional 15 days
rigorous imprisonment.
All the sentences are directed to run concurrently.
23
28. The appellant Vinay Malik is reported to be in jail since 14.03.2024.
He shall serve the entire sentence as modified/reduced by this Court.
The appellant Rishabh Berisal is also reported to be in jail since
02.08.2024. He shall be released forthwith, if not required in any
other case, subject to payment of fine amount as awarded by this
Court.
29. Registry is directed to send a copy of this judgment to the concerned
Superintendent of Jail where the appellant Vinay Malik (in CRA No.
380 of 2026) is undergoing his jail sentence to serve the same on the
appellant informing him that he is at liberty to assail the present
judgment passed by this Court by preferring an appeal before the
Hon’ble Supreme Court with the assistance of High Court Legal
Services Committee or the Supreme Court Legal Services
Committee.
30. Let a copy of this judgment and the original records be transmitted to
the trial Court concerned forthwith for necessary information and
compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
ved
