Chattisgarh High Court
Madvi Hidma @ Sonu @ Raju vs State Of Chhattisgarh on 15 April, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
1
2026:CGHC:17114-DB
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 128 of 2024
Madvi Hidma @ Sonu @ Raju S/o Shri Mukka Aged About 35 Years R/o
Tondamarka, Thana Chintagufa, District Sukma (C.G.) Present Address-
Staff Quarter Potacabin Errabore, Thana Errabore, District : Sukuma,
Chhattisgarh
... Appellant
versus
State Of Chhattisgarh Through Police Station Errabore, District : Sukuma,
Chhattisgarh
---- Respondent
(Cause title taken from Case Information System)
For Appellant : Mr. Alok Kumar Dewangan, Advocate
For Respondent/State : Mr. Sourabh Sahu, Panel Lawyer
Hon’ble Shri Ramesh Sinha, Chief Justice
Hon’ble Shri Ravindra Kumar Agrawal, Judge
Judgment on Board
Per Ramesh Sinha, Chief Justice
15/04/2026
VED
PRAKASH
1. Learned counsel for the State submits that the notice issued to the
DEWANGAN
Digitally signed
by VED
mother of the victim (PW-2) has been duly served upon her; however,
PRAKASH
DEWANGAN
Date: 2026.04.20
none appears on her behalf to oppose the appeal/application for
19:07:30 +0530
2
suspension of sentence and grant of bail. Though the matter was listed
for consideration of the application for suspension of sentence and
grant of bail, however, with the consent of the parties, the appeal has
been finally heard.
2. The present appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 (in short ‘Cr.P.C.’) has been filed by the appellant
against the impugned judgment of conviction and order of sentence
dated 21.11.2023, passed by the learned Additional Sessions Judge
(FTC), Dakshin Bastar, Dantewada (C.G.), in Special Sessions Case
No. 46/2023, whereby the appellant has been convicted and
sentenced in the following manner:–
CONVICTION SENTENCE
U/s. 450 IPC R.I. for 10 years with fine of Rs.
1,000/-, in default of payment of
fine, additional R.I. for 01 year.
U/s. 363 IPC R.I. for 03 years with fine of Rs.
1,000/-, in default of payment of
fine, additional R.I. for 01 year.
U/s. 366 IPC R.I. for 03 years with fine of Rs.
1,000/-, in default of payment of
fine, additional R.I. for 01 year.
U/s. 324 IPC R.I. for 03 years with fine of Rs.
1,000/-, in default of payment of
fine, additional R.I. for 01 year.
U/s. 6 of Protection of Children Imprisonment for life, till natural
from Sexual Offences Act, death, with fine of Rs. 5,000/-, in
2012 (in short ‘POCSO Act‘) default of payment of fine,
additional R.I. for 01 year.
All the sentences are directed to run concurrently.
3
3. Brief facts of the case are that on 24.07.2023, the mother of the victim
lodged a report that her minor daughter aged about 6 years 10
months, who was residing in Potacabin Ashram, Errabore, was found
missing during the intervening night of 22.07.2023 and on being found,
she complained about pain and disclosed that one person had taken
her to another room and committed sexual assault upon her. After
lodging of the report, the police registered the offence under
appropriate sections of IPC and Section 6 of the POCSO Act. The
victim was sent for her medical examination to District Hospital,
Sukma, where she was medically examined by PW-7/Dr. Srishti
Barwa, who after her medical examination, gave report (Ex. P-8) and
found bite mark on her cheek and opined regarding attempt of sexual
assault. With respect to the age of the victim, the police have seized
the relevant school record establishing her date of birth as 19.09.2016.
The spot map (Ex. P-5) was prepared and other seizure proceedings
were carried out by the police. The appellant was arrested on
27.07.2023 and he too was sent for his medical examination, wherein
he was found capable of performing sexual intercourse. Statement of
the witnesses under Section 161 Cr.P.C. and statement of the victim
under Section 164 Cr.P.C. have been recorded and identification
proceedings were also conducted during investigation. After
completion of usual investigation, charge-sheet was filed before the
learned trial Court against the appellant for the offence under Sections
450, 363, 366, 324, 376(AB) of IPC and Section 6 of the POCSO Act.
4
4. The learned trial Court has framed charges against the appellant for
the offences under Sections 450, 363, 366, 324 and 376(AB) of IPC
and Section 6 of the POCSO Act. The appellant denied the charges
and claimed to be tried.
5. In order to prove the charge against the appellant, the prosecution has
examined as many as 13 witnesses. Statement of the appellant under
Section 313 of the Cr.P.C. has also been recorded, in which he denied
the circumstances appearing against him, pleaded innocence and
submitted that he has been falsely implicated in the case.
6. After appreciation of oral as well as documentary evidence led by the
prosecution, the learned trial Court has convicted the appellant and
sentenced him as mentioned in the earlier part of the judgment; hence,
this appeal.
7. Learned counsel for the appellant would submit that the prosecution
has failed to prove its case beyond reasonable doubt. It is contended
that there are material omissions and contradictions in the evidence of
the prosecution witnesses and their testimony is not reliable to base
conviction. It is further submitted that the identification of the appellant
is doubtful inasmuch as the victim herself admitted that she was
shown the appellant by the police prior to identification. There is no
independent eyewitness to the incident and most of the prosecution
witnesses have turned hostile. The medical evidence does not support
the case of the prosecution as no internal injury was found on the body
of the victim and the FSL report also does not corroborate the
5
allegation of sexual assault. It is further argued that the statement of
the victim is not wholly reliable and appears to be the result of tutoring.
Therefore, it is submitted that the appellant has been falsely implicated
and is entitled to be acquitted of the charges levelled against him.
8. Per contra, learned State counsel would oppose the submissions
made by learned counsel for the appellant and submit that the
prosecution has successfully proved its case beyond reasonable
doubt. It is contended that the testimony of the victim is cogent,
consistent and inspires confidence, and there is no reason to
disbelieve the same. The age of the victim has been duly proved by
the prosecution on the basis of documentary evidence, establishing
that she was below 12 years of age at the time of the incident. It is
further submitted that even in absence of corroboration, the sole
testimony of the victim is sufficient to sustain conviction in such cases.
The medical evidence and other circumstances on record also lend
support to the prosecution case. Therefore, the learned trial Court has
rightly appreciated the evidence in its proper perspective and has
convicted and sentenced the appellant, which calls for no interference
by this Court.
9. We have heard learned counsel for the parties and considered their
rival submissions made herein above and also gone through the
records of the trial court with utmost circumspection.
6
10. The first and foremost question arises for consideration would be the
age of the victim, as to whether on the date of incident, the victim was
minor and less than 12 years of age or not.
11. The prosecution has relied upon the documentary evidence with
respect to the age of the victim. The date of birth of the victim has
been found to be 19.09.2016, which has been duly considered by the
learned trial Court on the basis of record available in the case. As per
the said document, on the date of incident i.e. 22.07.2023, the victim
was aged about 6 years 10 months and 3 days. In cross-examination,
no material has been brought on record to discredit the said document
nor it has been suggested that the date of birth mentioned therein is
false or incorrect. Further, from the evidence of the victim and her
mother, it is apparent that the victim was of tender age at the time of
incident. The age of the victim has also not been specifically
challenged in their cross-examination. Therefore, from the oral as well
as documentary evidence, it stands duly proved that the victim was
minor and less than 12 years of age at the time of incident.
12. So far as the alleged offence is concerned, we again examined the
evidence available on record. PW-1 is the victim of the offence. After
verifying her competence, as required under the provisions of the
POCSO Act, her evidence has been recorded by the learned trial
Court. She stated in her evidence that while she was sleeping in the
hostel during night, the appellant came there and took her from the
room. Thereafter, the appellant removed her clothes and committed
7
bad act with her by inserting his private part into her private part. She
further stated that the appellant bite her cheek and due to the said act,
she suffered pain and bleeding. After the incident, she ran away and
disclosed the same.
******* In cross-examination, though she stated that at the time of
incident it was dark and she was sleeping, therefore she could not see
as to who had taken her, but in her later statement she firmly stated
that the appellant took her with him and committed rape upon her. She
also stated that the person who committed the offence had beard and
a protruded stomach. She maintained in her cross-examination that
the person who committed the offence can be recognized by her. She
denied the suggestion that she is deposing falsely at the instance of
police or her parents. Despite lengthy cross-examination, nothing
substantial has been elicited to discredit her testimony on the material
particulars of the prosecution case.
13. So far as the contention of the defence regarding absence of injuries
and lack of medical corroboration is concerned, it is well settled that in
cases of sexual assault, particularly involving a minor victim, absence
of injury on the private parts of the victim is not decisive. The medical
evidence in the present case indicates that no internal injury was
found, however, a bite mark was present on the cheek of the victim.
The doctor has also opined that in cases of minor girls, even slight
penetration or attempt thereof may not necessarily result in visible
injuries and if there is delay in medical examination, such signs may
8
not be detected. It is a settled principle of law that the testimony of the
victim, if found reliable and trustworthy, does not require corroboration
from medical evidence in all cases. Therefore, merely on the ground
that the medical report does not conclusively establish penetration, the
otherwise cogent and consistent testimony of the victim cannot be
disbelieved.
14. In the case of Satyapal v. State of Haryana, 2009 (6) SCC 635, the
Hon’ble Supreme Court has observed that:
“18. In Modi’s Medical Jurisprudence, 23rd Edn.,
at pp. 897 and 928, it is stated:
“To constitute the offence of rape, it is not
necessary that there should be complete
penetration of the penis with the emission
of semen and the rupture of hymen. Partial
penetration of the penis within the labia
majora or the vulva or pudenda, with or
without the emission of semen, or even an
attempt at penetration is quite sufficient for
the purpose of law. It is, therefore, quite
possible to commit legally, the offence of
rape without producing any injury to the
genitals or leaving any seminal stains.”
9
15. Further, in the case of Appabhai v. State of Gujarat, 1988 Suppl.
SCC 241, the Hon’ble Supreme Court has observed that:
“13. ………..The Court while appreciating the
evidence must not attach undue importance to
minor discrepancies. The discrepancies which do
not shake the basic version of the prosecution
case may be discarded. The discrepancies which
are due to normal errors of perception or
observation should not be given importance. The
errors due to lapse of memory may be given due
allowance. The Court by calling into aid its vast
experience of men and matters in different cases
must evaluate the entire material on record by
excluding the exaggerated version given by any
witness. When a doubt arises in respect of
certain facts alleged by such witness, the proper
course is to ignore that fact only unless it goes
into the root of the matter so as to demolish the
entire prosecution story. The witnesses nowadays
go on adding embellishments to their version
perhaps for the fear of their testimony being
rejected by the court. The courts, however,
should not disbelieve the evidence of such
witnesses altogether if they are otherwise
trustworthy.”
10
16. In the case of ‘State of Himanchal Pradesh v. Sanjay Kumar @
Sunny‘ 2017 (2) SCC 51, it has been held by the Hon’ble Supreme
Court that :
“30. By no means, it is suggested that whenever
such charge of rape is made, where the victim is
a child, it has to be treated as a gospel truth and
the accused person has to be convicted. We
have already discussed above the manner in
which testimony of the prosecutrix is to be
examined and analysed in order to find out the
truth therein and to ensure that deposition of the
victim is trustworthy. At the same time, after
taking all due precautions which are necessary,
when it is found that the prosecution version is
worth believing, the case is to be dealt with all
sensitivity that is needed in such cases. In such a
situation one has to take stock of the realities of
life as well. Various studies show that in more
than 80% cases of such abuses, perpetrators
have acquaintance with the victims who are not
strangers. The danger is more within than
outside. Most of the time, acquaintance rapes,
when the culprit is a family member, are not even
reported for various reasons, not difficult to
fathom. The strongest among those is the fear of
11attracting social stigma. Another deterring factor
which many times prevent such victims or their
families to lodge a complaint is that they find
whole process of criminal justice system
extremely intimidating coupled with absence of
victim protection mechanism. Therefore, time is
ripe to bring about significant reforms in the
criminal justice system as well. Equally, there is
also a dire need to have a survivor centric
approach towards victims of sexual violence,
particularly, the children, keeping in view the
traumatic long lasting effects on such victims.
31. After thorough analysis of all relevant and
attendant factors, we are of the opinion that none
of the grounds, on which the High Court has
cleared the respondent, has any merit. By now it
is well settled that the testimony of a victim in
cases of sexual offences is vital and unless there
are compelling reasons which necessitate looking
for corroboration of a statement, the courts
should find no difficulty to act on the testimony of
the victim of a sexual assault alone to convict the
accused. No doubt, her testimony has to inspire
confidence. Seeking corroboration to a statement
before relying upon the same as a rule, in such
12cases, would literally amount to adding insult to
injury. The deposition of the prosecutrix has, thus,
to be taken as a whole. Needless to reiterate that
the victim of rape is not an accomplice and her
evidence can be acted upon without
corroboration. She stands at a higher pedestal
than an injured witness does. If the court finds it
difficult to accept her version, it may seek
corroboration from some evidence which lends
assurance to her version. To insist on
corroboration, except in the rarest of rare cases,
is to equate one who is a victim of the lust of
another with an accomplice to a crime and
thereby insult womanhood. It would be adding
insult to injury to tell a woman that her claim of
rape will not be believed unless it is corroborated
in material particulars, as in the case of an
accomplice to a crime. Why should the evidence
of the girl or the woman who complains of rape or
sexual molestation be viewed with the aid of
spectacles fitted with lenses tinged with doubt,
disbelief or suspicion? The plea about lack of
corroboration has no substance {See Bhupinder
Sharma v. State of Himachal Pradesh, (2003) 8
SCC 551}. Notwithstanding this legal position, in
13the instant case, we even find enough
corroborative material as well, which is discussed
hereinabove.”
17. PW-2, the mother of the victim, has supported the prosecution case in
material particulars. She has deposed that after the incident, the victim
was found in a disturbed condition and immediately disclosed the
occurrence to her. She has further proved that a report was lodged
promptly thereafter. Her evidence provides immediate post-occurrence
corroboration to the version of the victim and strengthens the
credibility of the prosecution case by ruling out any possibility of
deliberation or false implication after an unexplained delay.
18. PW-7, Dr. Srishti Barwa, who medically examined the victim, has
proved the medical report (Ex. P-8). The medical examination revealed
the presence of a bite mark on the left cheek of the victim. Though no
internal injuries or forensic confirmation of semen or spermatozoa
were found, the medical officer has opined that in cases involving
minor victims, particularly where there is delay in examination and
possibility of post-incident cleaning or washing, absence of such
biological traces is not unusual. It is settled law that medical evidence
is only corroborative in nature and cannot override the credible and
trustworthy testimony of the victim.
19. With respect to identification of the appellant, the record reflects that
identification proceedings were conducted during investigation.
However, PW-1 has admitted in cross-examination that the appellant
14
was shown to her by the police prior to such proceedings. This does
affect the evidentiary value of the test identification parade.
Nonetheless, it is equally well settled that identification of the accused
in Court during trial constitutes substantive evidence, and conviction
can safely be based upon such identification when it is supported by
reliable testimony of the victim and other surrounding circumstances.
20. The age of the victim stands proved through documentary evidence,
particularly the school record showing her date of birth as 19.09.2016.
On the date of incident i.e. 22.07.2023, the victim was approximately 6
years 10 months and 3 days old. The said documentary evidence has
remained unchallenged in cross-examination. The oral evidence of
PW-1 and PW-2 also supports that the victim was of tender age at the
relevant time. Thus, the minority of the victim stands conclusively
established.
21. The defence has argued that absence of internal injuries and non-
confirmatory FSL report creates doubt in the prosecution case.
However, in offences of sexual assault, particularly involving a child
victim, absence of physical injuries or biological traces cannot be
treated as determinative. The nature of medical evidence in the
present case does not contradict the prosecution version; rather, it
only indicates absence of certain forensic findings, which, in the facts
of the case, does not dilute the consistent and cogent ocular testimony
of the victim.
15
22. On a cumulative appreciation of the evidence of PW-1 (victim), PW-2
(mother), PW-7 (medical officer), and the documentary evidence
regarding age, this Court finds that the prosecution has successfully
established the substratum of its case. The testimony of the victim is
cogent and substantially consistent on material particulars. The minor
discrepancies pointed out by the defence do not go to the root of the
matter so as to dislodge the prosecution case. The learned trial Court
has, therefore, rightly appreciated the evidence in its correct
perspective.
23. From the evidence on record, it has clearly come that the victim was
residing in the Potacabin Ashram at the relevant time and the
appellant was also present in the said premises during the intervening
night of the incident. The victim (PW-1) has consistently stated that the
appellant came to the room, took her away and committed sexual
assault upon her, and she has also referred to the bite injury caused
on her cheek during the occurrence. The testimony of PW-2, the
mother of the victim, further establishes that after the incident the
victim disclosed the occurrence to her, whereupon prompt action was
taken and the matter was reported to the police. It is not the case of
the defence that there exists any material on record to demonstrate
that the victim was tutored or falsely implicated at the instance of her
mother or any other person. The plea of false implication raised by the
appellant remains a bald assertion, unsupported by any cogent or
reliable evidence. The alleged suggestion regarding tutoring or police
influence has not been substantiated by any material particulars so as
16
to discredit the consistent version of the victim and the corroborative
testimony of the mother. In absence of any credible evidence
suggesting animosity or motive for false implication, the consistent and
cogent testimony of the victim, duly supported by the evidence of PW-
2 and medical evidence, inspires confidence and does not suffer from
any material infirmity warranting rejection.
24. From all the aforesaid evidences on record, it clearly emerges that the
learned trial Court has rightly held that the appellant has committed
the offence against the victim and that the victim was subjected to
sexual assault by the appellant. The findings recorded by the learned
trial Court are based upon a proper and lawful appreciation of the oral
and documentary evidence available on record, particularly the
consistent testimony of the victim, corroboration by her mother and
medical evidence, as well as the settled principles of law governing
appreciation of evidence in cases of sexual offences involving minor
victims. This Court finds no perversity or illegality in the findings
recorded by the learned trial Court warranting interference in the
conviction of the appellant.
25. Minute examination of the evidence makes it clear that the appellant
has committed the offence against the minor victim and subjected her
to sexual assault, for which he has been rightly held guilty by the
learned trial Court. This Court finds that the findings recorded by the
learned trial Court with regard to conviction are based on proper
appreciation of evidence and do not suffer from any illegality or
17
perversity warranting interference. Accordingly, the conviction of the
appellant is hereby affirmed.
26. In the case of State of Punjab v. Gurmit Singh, 1996 (2) SCC 384,
the Hon’ble Supreme Court has held that :
“21. Of late, crime against women in general and
rape in particular is on the increase. It is an irony
that while we are celebrating women’s rights in all
spheres, we show little or no concern for her
honour. It is a sad reflection on the attitude of
indifference of the society towards the violation of
human dignity of the victims of sex crimes. We
must remember that a rapist not only violates the
victim’s privacy and personal integrity, but
inevitably causes serious psychological as well as
physical harm in the process. Rape is not merely a
physical assault – it is often destructive of the
whole personality of the victim. A murderer
destroys the physical body of his victim, a rapist
degrades the very soul of the helpless female. The
Courts, therefore, shoulder a great responsibility
while trying an accused on charges of rape. They
must deal with such cases with utmost sensitivity.
The Courts should examine the broader
probabilities of a case and not get swayed by
18minor contradictions or insignificant discrepancies
in the statement of the prosecutrix, which are not
of a fatal nature, to throw out an otherwise reliable
prosecution case. If evidence of the prosecutrix
inspirers confidence, it must be relied upon
without seeking corroboration of her statement in
material particulars. If for some reason the Court
finds it difficult to place implicit reliance on her
testimony, it may look for evidence which may
lend assurance to her testimony, short of
corroboration required in the case of an
accomplice. The testimony of the prosecutrix must
be appreciated in the background of the entire
case and the trial court must be alive to its
responsibility and be sensitive while dealing with
cases involving sexual molestations.”
27. Further, in the case of Prahlad v. State of Haryana, 2015 (8) SCC
688, the Hon’ble Supreme Court has observed in para 17 and 18 that :
“17. It has to be borne in mind that an offence of
rape is basically an assault on the human rights of
a victim. It is an attack on her individuality. It
creates an incurable dent in her right and free will
and personal sovereignty over the physical frame.
Everyone in any civilised society has to show
19respect for the other individual and no individual
has any right to invade on physical frame of
another in any manner. It is not only an offence
but such an act creates a scar in the marrows of
the mind of the victim. Anyone who indulges in a
crime of such nature not only does he violate the
penal provision of the IPC but also right of
equality, right of individual identity and in the
ultimate eventuality an important aspect of rule of
law which is a constitutional commitment. The
Constitution of India, an organic document,
confers rights. It does not condescend or confer
any allowance or grant. It recognises rights and
the rights are strongly entrenched in the
constitutional framework, its ethos and philosophy,
subject to certain limitation. Dignity of every citizen
flows from the fundamental precepts of the
equality clause engrafted under Articles 14 and
right to life under Article 21 of the Constitution, for
they are the “fon juris” of our Constitution. The
said rights are constitutionally secured.
18. Therefore, regard being had to the gravity of
the offence, reduction of sentence indicating any
imaginary special reason would be an anathema
to the very concept of rule of law. The perpetrators
20of the crime must realize that when they indulge in
such an offence, the really create a concavity in
the dignity and bodily integrity of an individual
which is recognized, assured and affirmed by the
very essence of Article 21 of the Constitution.”
28. So far as the sentence awarded to the appellant is concerned, the
appellant has been convicted under Section 6 of the Protection of
Children from Sexual Offences Act, 2012, which provides for
punishment for aggravated penetrative sexual assault, prescribing
imprisonment for a term which shall not be less than twenty years, and
which may extend to imprisonment for life, meaning imprisonment for
remainder of natural life, along with fine. The offence in the present
case, as found proved, falls within the ambit of aggravated penetrative
sexual assault having regard to the age of the victim and the nature of
allegations established on record. It is necessary to quote here the
punishment provided for aggravated penetrative sexual assault under
Section 6 of the POCSO Act, which reads as under:-
“6. Punishment for aggravated penetrative
sexual assault.–
(1) Whoever commits aggravated penetrative
sexual assault shall be punished with rigorous
imprisonment for a term which shall not be less
than twenty years, but which may extend to
imprisonment for life, which shall mean
21imprisonment for the remainder of natural life of
that person and shall also be liable to fine, or with
death.
(2) The fine imposed under sub-section (1) shall
be just and reasonable and paid to the victim to
meet the medical expenses and rehabilitation of
such victim.”
29. In this regard, learned counsel for the appellant would submit that in
light of the decision rendered by the Supreme Court in the matter of
Vipul Rasikbhai Koli Jankher v. State of Gujarat, 2022 LiveLaw
(SC) 288, the sentence awarded to the appellant by the trial Court is
liable to be reduced.
30. The Hon’ble Supreme Court, in the matter of Vipul Rasikbhai (supra)
relying upon its earlier decisions rendered in the matters of Dharambir
v. State of Uttar Pradesh, (1979) 3 SCC 645 and Maru Ram v.
Union of India, (1981) 1 SCC 107 held in paragraphs 7 and 8 as
under :-
“7. In determining the quantum of sentence, the
Court must bear in mind the circumstances
pertaining to the offence and all other relevant
circumstances including the age of the offender.
The appellant has undergone actual
imprisonment for a period of 11 years as on date.
22In Dharambir v. State of Uttar Pradesh (supra)
a two-Judge Bench of this Court specifically
noted the impact of longer prison sentences on
convicts who are young. Justice V R Krishna Iyer,
speaking on behalf of the Court had noted the
impact of prolonged incarceration:
“2. We, however, notice that the petitioners
in this case are in their early twenties. We
must naturally give thought to the impact
on these two young lives of a life sentence
which means languishing in prison for
years and years. Such induration of the
soul induced by indefinite incarceration
hardens the inmates, not softens their
responses. Things as they are, long prison
terms do not humanise or habilitate but
debase and promote recidivism. A host of
other vices, which are unmentionable in a
judgment, haunt the long careers of
incarceration, especially when young
persons are forced into cells in the
company of callous convicts who live in
sex-starved circumstances. Therefore, the
conscience of the court constrains it to
issue appropriate directions which are
23policy-oriented, as part of the sentencing
process, designed to make the purpose of
punitive deprivation of liberty,
constitutionally sanctioned, is
decriminalisation of the criminal and
restoration of his dignity, self-esteem and
good citizenship, so that when the man
emerges from the forbidding gates he
becomes a socially useful individual. From
this angle our prisons have to travel long
distances to meet the ends of social
justice.”
8. In our view, the ends of justice would be met
by directing that instead and in place of the
sentence of life imprisonment which has been
imposed for the conviction under Section 376, the
appellant shall stand sentenced to a term of 15
years’ imprisonment. We are not inclined to
uphold the argument of the respondent-state that
only the sentence of life imprisonment would
meet the ends of justice. The principles of
restorative justice finds place within the Indian
Constitution and severity of sentence is not the
only determinant for doing justice to the victims.
In Maru Ram v. Union of India (supra), Justice V
24
R Krishna Iyer had poignantly highlighted the
linkages between victimology and restorative
justice :
“74. ….. Some argument was made that a
minimum sentence of 14 years’
imprisonment was merited because the
victim of the murder must be remembered
and all soft justice scuttled to such heinous
offenders. We are afraid there is a
confusion about fundamentals in mixing up
victimology with penology to warrant
retributive severity by the back-door. If
crime claims a victim criminology must
include victimology as a major component
of its concerns. Indeed, when a murder or
other grievous offence is committed the
dependants of other aggrieved persons
must restore the loss of heal the injury is
part of the punitive exercise. But the length
of the prison term is no reparation to the
crippled or bereaved and is futility
compounded with cruelty. “Can storied urn
or animated bust call to its mansion the
fleeting breath ?” Equally emphatically,
given perspicacity and freedom from
25sadism, can flogging the killer or burning
his limbs or torturing his psychic being
bring balm to the soul of the dead by any
process of thanatology or make good the
terrible loss caused by the homicide ?
Victimology, a burgeoning branch of
humane criminal justice, must find
fulfillment, not through barbarity but by
compulsory recoupment by the wrongdoer
of the damage inflicted, not by giving more
pain to the offender but by lessening the
loss of the forlorn. The State itself may
have its strategy of alleviating hardships of
victims as part of Article 41. So we do not
think that the mandatory minimum in
Section 433-A can be linked up with the
distress of the dependents.
31. In the matter of “Rajabala v. State of Haryana and others” 2016 (1)
SCC 463, the Hon’ble Supreme Court has observed in para 1 and 2
that:-
“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:-
26“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
punishment 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
27doctrine 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 perception 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
28discretion 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 to
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
29“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
30serious threats. 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”.”
32. The learned trial Court has sentenced the appellant for the offences
under Sections 450, 363, 366 and 324 of the IPC and Section 6 of the
31
Protection of Children from Sexual Offences Act, 2012. For the offence
under Section 6 of the POCSO Act, the appellant has been sentenced
to imprisonment for life till remainder of natural life along with fine.
Under Section 6 of the POCSO Act, the minimum sentence prescribed
is rigorous imprisonment for twenty years, which may extend to
imprisonment for life, meaning imprisonment for remainder of natural
life. The sentences awarded under the IPC provisions are within the
statutory limits prescribed for the respective offences. Having regard to
the peculiar facts and circumstances of the present case, the age of
the victim, the nature of evidence on record, and the overall
circumstances in which the offence was committed, this Court is of the
considered view that it would meet the ends of justice if the sentence
awarded to the appellant under Section 6 of the POCSO Act is
reduced from imprisonment for remainder of natural life to rigorous
imprisonment for the period of twenty years. The fine sentence and
default stipulation awarded under Section 6 of POCSO Act is
maintained. The conviction and sentences awarded under Sections
450, 363, 366 and 324 of the IPC is also maintained. All the sentences
are directed to run concurrently.
33. The appeal is partly allowed to the extent indicated hereinabove.
34. The appellant is reported to be in jail. He shall serve the entire
sentence as modified by this Court. He shall be entitled to the benefit
of set-off of the period already undergone by him during investigation,
trial as well as during the pendency of the present appeal.
32
35. Registry is directed to send a copy of this judgment to the concerned
Superintendent of Jail where the appellant 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.
36. 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
alok/ved
33
HEAD NOTE
******* In cases of rape, the offence causes an incurable
dent in the victim’s personal sovereignty; her testimony,
if found credible and trustworthy, can be relied upon
without corroboration, as she stands on a higher
pedestal than an injured witness, and conviction can be
sustained even in the absence of physical injuries on
her body.