State Of Chhattisgarh vs Sanjay Kumar Chouhan on 12 December, 2022

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Chattisgarh High Court

State Of Chhattisgarh vs Sanjay Kumar Chouhan on 12 December, 2022

1. The State of Chhattisgarh - appellant herein, has preferred this appeal under Section 377 of the CrPC questioning the impugned judgment to the extent of sentence awarded to the respondent herein, rather seeking enhancement of the sentence awarded to him on the ground that it is inadequate sentence awarded by the learned Additional Sessions Judge being less than the minimum sentence prescribed for the offence in question, while convicting the respondent herein under Section 376 read with Section 511 Cr.A.No.1154/2013 Page 2 of 10 of the IPC on the following factual backdrop: -

2. The respondent herein was charge-sheeted for offence under Section 376 read with Section 511 of the IPC for attempting to commit rape with a minor victim aged about 4 years on 10-9- 2011 at Gerwaghat Chowki, CSEB, Korba and thereafter, on 13- 8-2012, charge was also framed for the offence under Section 376 read with Section 511 of the IPC, [not for offence under Section 376(2)(f) read with Section 511 of the IPC] and he was tried for the aforesaid offence. After full-dressed trial, the learned Additional Sessions Judge convicted the respondent for offence under Section 376 read with Section 511 of the IPC and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of ₹ 1,000/-, in default of payment to fine to further undergo additional rigorous imprisonment for three months. The learned trial Court has also recorded special reasons in paragraph 18 of the judgment while sentencing the respondent as required under the proviso to sub-section (1) of Section 376 of the IPC to which the appellant herein has taken exception stating that the sentence awarded to the respondent herein is not in accordance with law, particularly as provided in Section 376(1) of the IPC.

3. Mr. Sudeep Verma, learned Deputy Government Advocate appearing on behalf of the State of Chhattisgarh / appellant, would submit that the trial Court has failed to consider that the age of the victim was below 12 years at the time of commission Cr.A.No.1154/2013 Page 3 of 10 of offence, hence, the act of the respondent would come under Section 376(2)(f) of the IPC which is punishable with a minimum term of imprisonment for ten years and by virtue of Section 511 of the IPC, if the attempt has been proved, even in that case, minimum sentence would be five years, as such, the sentence awarded be enhanced by two years, as three years has already been awarded to the respondent. Therefore, the appeal be allowed in light of Section 376(2)(f) read with Section 511 of the IPC and the respondent be sentenced to rigorous imprisonment for five years.

4. None appeared on behalf of the respondent, though served.

5. We have heard learned counsel for the appellant / State and considered the submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well.

6. In order to consider the plea raised on behalf of the appellant herein / State, it would be appropriate to notice Section 376(1) of the IPC (un-amended) as it exists from 25-12-1983 (amended with effect from 3-2-2013). Section 376(1) of the IPC as stood therein states as under: -

"376. Punishment for rape.--(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which case, he shall Cr.A.No.1154/2013 Page 4 of 10 be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years."

7. A careful perusal of the proviso to sub-section (1) of Section 376 of the IPC, as it stood prior to amendment, clearly empowers the court if it imposes less than the minimum sentence of seven years' rigorous imprisonment on an offender of rape to record "adequate and special reasons" in the judgment. Recording of reasons is, therefore, sine qua non or condition precedent for imposing sentence less than the minimum required by law. Moreover, such reasons must be both (i) "adequate", and (ii) "special". What is "adequate" and "special" would depend upon several factors and no straitjacket formula can be laid down as a rule of law of universal application. (See State of M.P. v. Babulal1.)

8. At this stage, it would be appropriate to notice Section 377(1) of the CPC, which states as under: -

"377. Appeal by the State Government against sentence.--(1) Save as otherwise provided in sub- section (2), the State Government may, in any case of conviction on a trial held by any court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy--

(a) to the Court of Session, if the sentence is passed by the Magistrate; and 1 (2008) 1 SCC 234 Cr.A.No.1154/2013 Page 5 of 10

(b) to the High Court, if the sentence is passed by any other Court."

9. A careful perusal of Section 377(1) of the CrPC would reveal that an appeal against the sentence on the ground of its inadequacy would lie to the High Court at the instance of the State Government.

10. However, the Supreme Court in the matter of Bed Raj v. State of Uttar Pradesh2 has held that in a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment. Interference is only called for when it is manifestly inadequate. It has been observed by their Lordships in paragraph 15 of the report as under: -

"(15) A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment;

see for example the observations in - 'Dalip Singh v. State of Punjab', AIR 1953 SC 364 at pp. 367-368 (A) and - 'Nar Singh v. State of Uttar Pradesh', AIR 1954 SC 457 at pp. 458-459 (B).

In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment. Interference is only called for when it is manifestly inadequate. In our opinion, these principles have not been observed. It is impossible to hold in the circumstances described that the Sessions Judge did not impose a substantial sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence, manifestly inadequate.

                In   the    circumstances,       bearing      all   the
2 AIR 1955 SC 778
                                                     Cr.A.No.1154/2013

                           Page 6 of 10

considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence) should be allowed and that the sentence imposed by the High Court should be set aside and that of the Sessions Court restored. Ordered accordingly."

11. Now, the question is, what sentence could have been awarded to the respondent herein for the offence under Section 376 read with Section 511 of the IPC, for which it will be appropriate to notice Section 511 of the IPC which states as under: -

"511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both."

12. A reading of Section 511 of the IPC would show that the maximum punishment for the offence under Section 376(2)(f) of the IPC is imprisonment for life and the minimum punishment is shall not be less than 10 years imprisonment and may also extend to life.

13. Minimum punishment awardable for offence under Section 376(1) of the IPC (unamended) would be 7 years and one-half of the same as prescribed in Section 511 of the IPC would be 3 years 6 months which would be the minimum sentence awardable to the Cr.A.No.1154/2013 Page 7 of 10 respondent herein, but the trial court has awarded 3 years only as the respondent has been convicted for offence under Section 376 read with Section 511 of the IPC and he has not been charged and convicted for offence under Section 376(2)(f) read with Section 511 of the IPC. Therefore, for the purpose of awarding sentence to the respondent herein, the punishment prescribed in Section 376(1) of the IPC would apply.

14. Now, the question would be, whether adequate and special reasons as required under Section 376(1) of the IPC have been recorded or not?

15. A careful perusal of the judgment of the trial Court would show that in paragraph 18, following special reasons have been recorded for awarding less sentence than the minimum sentence to the respondent herein, by the learned Additional Sessions Judge, which state as under:

18- vfHk;qDr ,oa muds vf/koDrk dks n.M ds iz'u ij lquk x;kA vfHk;qDr dk dguk gS fd mldk izFke vijk/k gS] xjhc ifjokj dk gS] 21 o"kZ ls de mez dk uo;qod gS] ekQ fd;k tkosA fuosnu ij fopkj fd;k x;kA izdj.k esa vfHk;kstu dh vksj ls is'k nLrkost fxjQ~rkjh i=d esa vfHk;qDr ds vkpj.k ,oa d`R; ds laca/k esa dksbZ foifjr Vhi vafdr ugha gSA ftlls vfHk;qDr dk izFke vijk/k gksuk izrhr gksrk gSA bl laca/k esa vfHk;kstu }kjk vfHk;qDr ds iwoZ nks"k"flf) ds laca/k dksbZ nLrkost is'k ugha gSA vkjksfir vijk/k 4 o"kZ dh ckfydk ds lkFk ?kfVr gksus ds dkj.k mldh xaHkhjrk dks n`f"Vxr j[krs gq;s xaHkhj lkekftd ,oa pkfjf=d vijk/k gksuk ik;s tkus ls ekQ fd;s tkus ij fof/k dh ea'kk iwjk gksuk izrhr ugha gksrh gSA ifj.kker% vfHk;qDr dks Bgjk;s x;s fl)nks"k"dh /kkjk 376@511 Hkk0na0fo0 ds rgr fujks/kkRed #i ls n.Mkfn"V fd;k tkuk vko';d Cr.A.No.1154/2013 Page 8 of 10 ikrs gq;s mls mDr vijk/k esa 3 o"kZ dk lJe dkjkokl ,oa 1000 #i;s ds vFkZn.M ls nf.Mr d;k tkrk gSA vFkZn.M dh jkf'k vnk u djus ij mls 3 ekg dk vfrfjDr lJe djkokl Hkqxrk;h tkosA

16. Not only this, against the impugned judgment convicting the respondent for the offence under Section 376 read with Section 511 of the IPC, the respondent herein preferred an appeal being Cr.A.No.1026/2012 in which he was granted bail by suspending the sentence by order dated 14-3-2014, but he could not be released on bail as he could not furnish bail bonds and his appeal came to be dismissed recording therein that he could not furnish bail bonds and he was released after he served the entire jail sentence imposed upon him which is apparent from order dated 7-4-2015 passed in Cr.A.No.1026/2012. Paragraphs 2 & 3 of the order dated 7-4-2015 state as under: -

"2. Learned counsel for the appellant submits that the appellant was in custody from 30-04-2012 to 22- 05-2012 and thereafter again from the date of judgment i.e. 28-09-2012. By filing this criminal appeal the appellant also filed an application under Section 389 of the Cr.P.C. whereby he prayed for suspension of sentence and grant of bail during pendency of the appeal which was allowed by the order of this Court dated 14-03-2014 whereby and whereunder it was ordered that jail sentence imposed upon the appellant shall remain suspended during the pendency of this appeal and he shall be released on bail if the appellant furnishes a personal bond in the sum of Rs.50,000/- with two sureties in like sum to the satisfaction of the trial Court for his appearance before the Registry of this Court on 08th September 2014 and thereafter on such other dates as may be fixed in this behalf. But, the appellant not furnished the bail bond and remained in custody for serving the remainder of sentence. This Court vide order dated 22-09-2014 called report from Cr.A.No.1154/2013 Page 9 of 10 the concerned trial Court and the Chief Judicial Magistrate, Korba. Both courts below communicated the Registry vide memo dated 14-10-2014 and 17-10- 2014. As per the communication, the appellant not furnished bail bond. The learned counsel further submits that, as instructed, the appellant served the entire sentence and as directed, they do not want to assail the judgment of conviction awarded to the appellant by the trial Court on its merit. Hence, the appeal may be dismissed as not pressed and for the fact that the appellant served the entire sentence awarded to him.

3. As the appellant does not want to press this appeal on merit and the appellant has served the entire sentence, also upon perusal of the evidence and the judgment impugned, I do not see any illegality or infirmity committed by the trial Court by convicting the appellant as mentioned above, the appeal is liable to be dismissed."

17. As such, the finding recorded by the trial Court that the respondent is a person belonging to poor strata is reinforced by the fact that he could not furnish bail bonds and he could not be released on bail even after suspension of sentence and grant of bail by this Court and resultantly, he served the entire jail sentence imposed upon him by the trial Court. In our considered opinion, reasons recorded by the trial Court are not only adequate but also special reasons and answer the prescription envisaged in the proviso to sub-section (1) of Section 376 of the IPC. However, it would be appropriate to mention here that this Court is not unoblivious of the fact that it is a case of attempt to rape committed by the respondent herein against a minor victim which has to be dealt with sternly and adequate sentence has to be awarded to the accused / respondent herein, but considering Cr.A.No.1154/2013 Page 10 of 10 the fact that special and adequate reasons have been recorded by the trial Court for awarding lesser punishment to the respondent, which were also found supported by the order of this Court passed in the criminal appeal filed by the respondent herein that he could not furnish bail bonds and he could not be released despite order of this Court and resultantly, he served the entire jail sentence imposed upon him by the trial Court. Therefore, six months' lesser sentence awarded by the trial Court to the respondent for commission of offence under Section 376 read with Section 511 of the IPC is in accordance with law. We hereby affirm the sentence so awarded by the trial Court.

18. In that view of the matter, we do not find any good ground to enhance the sentence awarded to the respondent herein. Accordingly, this appeal is dismissed.

                Sd/-                                         Sd/-
          (Sanjay K. Agrawal)                      (Rakesh Mohan Pandey)
               Judge                                        Judge

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Chattisgarh High Court