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2022 DIGILAW 129 (MEG)

Gabriel Kharshandi v. State of Meghalaya

2022-05-24

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The appeal arises out of a judgment of conviction under Section 366 of the Indian Penal Code, 1860. The appellant has been sentenced to the maximum of 10 years' rigorous imprisonment together with a fine of Rs.10,000/-. In default of the payment of the fine, the appellant has to suffer rigorous imprisonment for a further six months. 2. The primary ground urged on behalf of the appellant in assailing the impugned judgment and order of April 27, 2016 is that there is no reason or basis for the maximum punishment being awarded, particularly since there was no harm caused to the four-year-old survivor in question and there can be no dispute that the victim had not been sexually assaulted by the appellant. 3. For the present purpose, the material part of Section 366 of the Penal Code may first be seen. The charge against the appellant was that he had kidnapped or abducted the girl-child in order that she may be forced to illicit intercourse. The material portion of the provision reads as follows: '366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman ... in order that she may be forced ... to illicit intercourse ... shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; ...'. 4. It may also be noticed in this context that for somewhat similar offences of procuration of a minor girl under Section 366A of the Penal Code and for kidnapping or abducting anyone in order to subject the person to grievous hurt under Section 367 thereof, the punishment mandated is the same: of a maximum term of 10 years together with fine. 5. For the purpose of the charge brought against the appellant in this case, the prosecution had to prove beyond reasonable doubt that a woman had been abducted or kidnapped by the appellant herein and also that such woman was likely to be forced to illicit intercourse. Both the ingredients had to be demonstrated for the appellant to be convicted. 6. The first information report came to be filed on November 9, 2014 by a village official of the Durbar Shnong of Porla village in the West Khasi Hills District pertaining to the incident that took place earlier that day. Both the ingredients had to be demonstrated for the appellant to be convicted. 6. The first information report came to be filed on November 9, 2014 by a village official of the Durbar Shnong of Porla village in the West Khasi Hills District pertaining to the incident that took place earlier that day. The FIR was lodged at the police outpost in Riangdo near Nongstoin. According to the complaint, the four-year-old girl was taken by the appellant herein to a nearby jungle and this act was witnessed by five persons from Porla village, some of whom were returning after church service. The persons managed to chase the appellant down and, according to the FIR, 'caught him red handed.' The evidence later revealed that the girl-child was rescued from the appellant herein and the appellant was taken to the headman of the village where the villagers beat him up before filing the FIR which resulted in the appellant being arrested. The FIR alleged that the appellant herein was a habitual offender. 7. At least five eye-witnesses were called on behalf of the prosecution. Each of the eye-witnesses independently indicated that the appellant herein had carried the girl-child to a ditch deep into the jungle where the appellant had pulled down his trousers and held the girl-child in a pose to commence the sexual assault on her when the chasing party reached the spot. The individual descriptions convey the same sense though some of the eye-witnesses recalled that they noticed that the girl's underpants had also been taken down, while the others, in course of their cross-examination, could not recall whether the girl-child's underpants had been brought down. Indeed, one of the eye-witnesses claimed that the appellant herein was slightly bent on the knees in a position where he was poised to thrust himself forward into the minor girl. A more discerning witness asserted that the appellant had applied lip balm on the vaginal lips of the child to ensure a smoother passage for him. 8. All the eye-witnesses, including the persons who were returning from church service and another who was in the village and had noticed the girl-child being carried away towards the jungle, described the incident on similar lines and such evidence could not have been shrugged off, even if the appellant had adduced evidence in his favour. 9. 8. All the eye-witnesses, including the persons who were returning from church service and another who was in the village and had noticed the girl-child being carried away towards the jungle, described the incident on similar lines and such evidence could not have been shrugged off, even if the appellant had adduced evidence in his favour. 9. There can be no dispute as to the appellant's presence at the place of occurrence, as to the appellant being in wrongful possession of the minor survivor and the appellant having pulled his trousers down and being found in a pose poised to begin the act of sexual assault. Both the ingredients of the material part of Section 366 of the Penal Code were established in course of the trial. In addition, several of the witnesses who knew the appellant and were the residents of the same village or of neighbouring villages confirmed that the appellant was a habitual offender. One of the eye-witnesses even complained that his minor daughter had been ravished by the appellant and a complaint in such regard had been filed. 10. It is submitted on behalf of the appellant that he was arrested immediately upon the complaint being lodged and has now remained imprisoned for nearly eight years and, considering the fact that there was no injury to the girl-child or any sexual assault perpetrated on her, the 34-year-old appellant should be let off with the sentence already served as the punishment so that he can live the rest of his life. 11. Ordinarily, when the punishment indicated in the relevant provision covers a range, the court awarding the punishment must indicate some reasons as to why the punishment awarded in a particular case is at the lower end of the spectrum or the punishment meted out in another case is at the higher end of the scale. The discretion which is at large before the trial court has always to be exercised on sound judicial principles and not on extraneous considerations or the personal choice or the individual sense of morality of the trial judge. It is true that when either the minimum term as provided or the maximum term permitted is awarded, some modicum of reasons ought to be incorporated to indicate how the mind was applied to the issue to arrive at the quantum of the sentence. 12. It is true that when either the minimum term as provided or the maximum term permitted is awarded, some modicum of reasons ought to be incorporated to indicate how the mind was applied to the issue to arrive at the quantum of the sentence. 12. However, there are instances where the nature of the offence, the manner in which it was carried out, the gravity thereof or the element of cruelty associated therewith may speak for itself and justify the award of the maximum punishment. In such a scenario, if the punishment awarded is less than the maximum term, a justification in such regard is called for. Conversely, when there are mitigating circumstances that warrant the minimum punishment, any more awarded will call for an explanation. 13. In the present case, a four-year-old girl had been picked up from the village by the appellant and taken to a nearby jungle with the obvious intention of sexually assaulting her. It was by pure chance that he was noticed by a villager who was in the village and by church-goers who were returning from afternoon service. The appellant was caught with his trousers down and when he was all ready to force himself into the four-year-old victim. It is true that one of the eye-witnesses claimed that when the appellant was brought to the headman of the village at the Durbar Shnong, he begged for forgiveness; but the evidence reveals that the villagers had taken the law into their own hands by then and were beating up the appellant. The forgiveness that the appellant was prompted to seek may have been for him to be relieved of the assault by the villagers and may not have been out of remorse for what he had done. 14. Even in course of the appellant's examination under Section 313 of the Code of the Criminal Procedure, 1973, the appellant maintained his stoic stand and did not relent or show any kind of repentance. Despite the oral evidence that the appellant had sat through at the trial, he denied his involvement in the act. 15. Considering the conduct of the appellant, the depraved mind that he possesses and the repeated assertions by co-villagers that he was a habitual offender, there was no room for the trial court in this case to award any sentence less than the maximum permissible under the applicable provision. 15. Considering the conduct of the appellant, the depraved mind that he possesses and the repeated assertions by co-villagers that he was a habitual offender, there was no room for the trial court in this case to award any sentence less than the maximum permissible under the applicable provision. The trial court read the evidence quite appropriately, discussed the legal aspects that were applicable and, considering the circumstances, awarded the punishment that the appellant deserved. Neither the judgment of conviction nor the sentence imposed thereby calls for any interference. 16. Crl.A.No.20 of 2019 is dismissed. 17. A copy of this judgment should immediately be made over to the appellant, free of cost.