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IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
Ramesh Sinha, Sanjay K. Agrawal, JJ.
In Reference of State of Chhattisgarh Through Police Station Rajhara - Applicant
Versus
Jhaggar Singh Yadav S/o Late Shri Jeevan Lal - Respondent
CRREF No. 1 of 2019, CRA No. 489 of 2019
Decided On : 27-04-2023
Protection of Children from Sexual Offences Act, 2012 - Section 5(1)(m) - Indian Penal Code,1860 - Section 302,363, 376(2)(i)(n) and 201 - Criminal Procedure Code, 1973 - Section 366 - Rape and aggravated penetrative sexual assault on minor girl - Kidnapping - Whether he was capable of performing sexual intercourse or not gave its report stating that the person was fully developed male capable of performing sexual act - Held, Supreme Court is quite vivid that trial Court has convicted convict/appellant and sentenced him to death - Trial Court has not taken into consideration probability of convict/appellant to be reformed and rehabilitated and has only taken into consideration crime and manner in which it was committed and has not given effective opportunity of hearing on question of sentence to appellant - No evidence was brought on record on behalf of prosecution to prove to court that convict/appellant cannot be reformed or rehabilitated by producing material about his conduct in jail and no opportunity of hearing was given to convict/appellant to produce evidence in that respect - No jail offence(s) has been said to have been committed by accused/appellant though appellant has committed offence of kidnapping minor victim girl from guardianship of her father and subjecting her to sexual intercourse - No criminal antecedents have been shown against him - Though it shocks conscious of society at large but yet in of case upon thoughtful consideration court are of view that extreme sentence of death penalty is not warranted of case - Appeal Allowed.
JUDGMENT :
Ramesh Sinha, J.
1. Criminal Appeal No. 489 of 2019 is preferred by the convict/appellant against the judgment of conviction and order of sentence dated 18.02.2019 passed by the Sessions Judge (Incharge-F.T.C.) District Balod, Chhattisgarh, in Sessions Trial No. 80/2017 awarding the following sentences to the appellant, which were to run concurrently and the fine amount to be realised separately:
| Conviction U/s. | Sentence |
| Section 302 of the Indian Penal Code | Death sentence and fine of Rs. 3000/-. In default of payment of fine, additional rigorous imprisonment for six months. |
| Section 363 of the Indian Penal Code | Five years rigorous imprisonment and fine of Rs. 1000/-. In default of payment of fine, additional rigorous imprisonment for two months. |
| Section 376(2)(i)(n) of the Indian Penal Code | Imprisonment for life and fine of Rs. 3000/-. In default of payment of fine, additional rigorous imprisonment for six months. |
| Section 201 of the Indian Penal Code | Seven years rigorous imprisonment and fine of Rs. 1000/-. In default of payment of fine, additional rigorous imprisonment rigorous imprisonment for three months. |
| Section 5(1)(m) of the Protection of Children from Sexual Offences Act, 2012 | Imprisonment for life and fine of Rs. 2000/-. In default of payment of fine, additional rigorous imprisonment for six months. |
2. The learned Sessions Judge (Incharge-Fast Track Court), Balod, District Balod, in exercise of power conferred under Rule 273(b) of the Rules and Orders (Criminal) and Section 366 of the Code of Criminal Procedure, 1973, (for short, the Cr.P.C) after passing the sentence of death submitted the proceedings to this Court for confirmation and this is how this death reference is before us for consideration along with the appeal preferred by the convict/ appellant, being Cr.A. No. 489/2019.
3. The prosecution story, in nutshell, is that on 05.06.2017, the convict/appellant is alleged to have taken away a minor girl aged 12 years away from the lawful guardianship of her parents from Ward No. 7, Teachers Colony, Dallirajhara, towards the Kharritola Murum Khadan-Jungle of Chilklakasa and thereafter committed rape and aggravated penetrative sexual assault upon her more than once and committed murder of the minor girl and thereafter caused murder by using stone and also caused disappearance of evidence.
4. The First Information Report (FIR) (Exhibit P/1), bearing Crime No. 139/2017 was lodged on 06.06.2017 at about 16:45 hours, by Renuka Sahu (PW-1), mother of the deceased, at Police Station, Rajhara, District Balod, regarding missing of her minor daughter, stating that she works as a labourer. On 06.06.2017 at about 8:00 a.m., her mother-Jamuna Sahu (maternal grandmother of the prosecutrix/deceased) came to her house and asked about the deceased upon which PW-1 stated that when the deceased resides with her, she must be knowing where she was. Upon hearing this, Jamuna Sahu told PW-1 that since yesterday i.e. 05.06.2017 at about 3:00 pm, the deceased had gone out of the house and thereafter she did not came back. She went out in search of her when she met Savitri Kunjam (PW-4), wife of Chamar Singh, who told her that the deceased was sitting in her house. At that time, the appellant came who was in a drunken condition and asked the deceased to sit on his bi-cycle. Wife of Chamar Singh restrained the convict/appellant from taking the deceased with her stating that he was in a drunken condition but till that time, the deceased went towards Arjun Cycle Stores. When she went towards the cycle stores and asked about the deceased, the owner of the cycle stores told that he was unaware about the deceased. Later on, while searching the deceased, Sonu Yadav (PW-2) informed her that yesterday, at about 4:45 p.m., he had seen the convict/appellant taking the deceased on
Circumstantial evidence, particularly the 'last seen' principle, can suffice for conviction in rape and murder cases yet demands rigorous scrutiny for reliability.
(1) Evidence is only to be weighed and not to be counted – It is essentially, for prosecution to decide as to how many witnesses are to be examined to establish its case on any particular point.(2) D....
The sufficiency of circumstantial evidence to establish guilt and the principle that the accused must provide a satisfactory explanation for incriminating evidence.
Life sentence is rule and death sentence is an exception.
The court ruled that the death penalty is not warranted in this case, emphasizing the need for a balance between aggravating and mitigating circumstances, ultimately commuting the sentence to 30 year....
Death sentence – Standardisation of sentencing would not be possible because no two criminal cases are identical and standardisation would leave no room for judicial discretion.
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