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2023 Supreme(Chh) 416
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
SANJAY K. AGRAWAL, ARVIND SINGH CHANDEL, JJ.
In Reference of State of Chhattisgarh – Appellant
Versus
Madanlal Tekam S/o Ram Tekam – Respondent
Criminal Reference No. 3 of 2018, Criminal Appeal No. 1889 of 2018
Decided On : 07-07-2023
Act Referred
EVIDENCE ACT : S.27
INDIAN PENAL CODE : S.300, S.302, S.363, S.376(2)(i)
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT : S.42, S.6
Headnote
Indian Penal Code, 1860 – Section 302, 363, 376(2)(i) – Criminal Procedure Code, 1973 – Section 374(2), 313, 371, 366(1) – Protection of Children from Sexual Offences Act, 2012 – Section 6 – Criminal Case – Offence of murder, kidnapping – Power to examine the accused – Held, Considering jail reports and further considering that no criminal antecedents has been shown against Appellant, further considering young age of Appellant, upon thoughtful consideration, Court are of view that extreme sentence of death is not warranted in this case – In facts and circumstances of case, court are of view that this is not rarest of rare cases in which major penalty of death has to be confirmed – In court view, imprisonment for life would completely be adequate and would meet the ends of justice, court direct commutation of death sentence into imprisonment for life – Court further direct that life sentence must extend to imprisonment for remainder of natural life of Appellant – Appellant partly allowed.
Advocate Appeared:
For the Appellant : Amrito Das.
For the Respondents: D.K. Gwalre, Reena Singh, Anil Pillai.
JUDGMENT :
ARVIND SINGH CHANDEL, J.
1. The Special Judge for trial of the cases under the Protection of Children from Sexual Offences Act, 2012 (henceforth ‘the POCSO Act’) Bhanupratappur, Uttar Bastar Kanker vide judgment dated 30.10.2018 passed in Special Criminal Case (POCSO Act, 2012) No. 17 of 2017 convicted and sentenced the accused/Appellant as under:
| Conviction | Sentence |
| Under Section 363 of the Indian Penal Code | Rigorous imprisonment for 7 years and fine of Rs. 500 in default of payment thereof additional rigorous imprisonment for 3 months |
| Under Section 376(2)(i) of the Indian Penal Code | Imprisonment for life and fine of Rs. 1000 in default of payment thereof additional rigorous imprisonment for 6 months |
| Under Section 302 of the Indian Penal Code | Death sentence and fine of Rs. 1000 in default of payment thereof additional rigorous imprisonment for 6 months |
| Under Section 6 of the POCSO Act | In view of the provisions contained in Section 42 of the POCSO Act alternatively greater sentence is awarded under Section 376(2)(i) of the Indian Penal Code |
| All the jail sentences are directed to run concurrently | |
2. The Special Judge, in exercise of the powers conferred under Section 366(1) of the Code of Criminal Procedure, after passing the sentence of death, has submitted the proceedings to this Court for confirmation and this is how the instant reference is before us for consideration along with an appeal being Criminal Appeal No. 1889 of 2018 moved by the Appellant whereby he has challenged the conviction and sentence imposed upon him by the Special Judge.
3. According to the case of prosecution, at the time of incident, the victim girl child (deceased) was aged about 4½ years. On 4.3.2015, PW4 Jaitaram, grandfather of the victim reported that the accused/Appellant kidnapped the victim at about 7 p.m. On the basis of the said, a missing report of the victim under Section 363 of the Indian Penal Code was registered at Police Station Durgkondal, District Uttar Bastar Kanker. Accordingly, search was made and during investigation the Appellant was taken into custody on 7.3.2015. His disclosure statement (Ex.P1) was recorded under Section 27 of the Indian Evidence Act and at his instance body of the victim was recovered vide Ex.P2. The body was duly identified by Complainant PW4 Jaitaram vide identification panchnama (Ex.P3). The inquest panchnama (Ex.P10) was prepared. From the spot, a green colour legging, blood stained soil and plain soil were seized. The dead body of the victim was sent for post mortem examination, which was conducted by PW9 Dr. Bhagyalaxmi Kosma. Post mortem examination report is Ex.P17. It was opined by the doctor that death of the victim was homicidal in nature. It was further opined that the victim was subjected to sexual offence and ultimately it was opined that cause of death was asphyxia due to upper airway obstruction. Vaginal slide, swab, blood stained frock were also seized. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. The undergarment stained with semen and blood, which was worn by the Appellant at the time of incident, was also seized. The Appellant was also examined by PW10 Dr. A.K. Dhruw. Accordingly, semen slides were prepared and seized. The seized articles were sent to the Forensic Science Laboratory for chemical examination. FSL Report is Ex.P37. On completion of the investigation, a charge-sheet was filed.
4. The Trial Court framed charges. The prosecution examined as many as 11 witnesses and exhibited 37 documents. In examination under Section 313 Cr.P.C. the Appellant denied the guilt and pleaded innocence. However, no defence witness was examined. After conclusion of the trial, the Special Judge convicted and sentenced the Appellant as mentioned earlier in this judgment.
5. Being agg
