Chhattisgarh HC Reduces Man's Sentence U/S 377 IPC For Sodomising Friend After Watching Porn, Says He Deserves Some Repreive

The Chhattisgarh High Court has recently reduced the sentence of a man convicted for having unnatural/anal sexual intercourse with a friend after watching certain pornographic contents on his mobile phone.Justice Rajani Dubey, though maintained the conviction under Section 377 (Unnatural offences) IPC, was of the view that the accused-appellant deserves some reprieve, especially considering his incarceration for the last five years. The Bench observed –“Considering the facts and circumstances of the case, overall evidence adduced by the prosecution, the mode and manner in which the incident had taken place, in my view, some reprieve in the matter of sentence deserves to be given to him.”The court however set aside the man's conviction under Section 4 (Punishment for penetrative sexual assault) of POCSO after observing that the prosecution "failed to prove" that the victim was a minor at the time of the incident. It however said, "but for the offence punishable under Section 377 of the IPC, he shall be required to undergo rigorous imprisonment for 07 years. The amount of fine for the offence under Section 377 of IPC as imposed by the learned trial Court will remain the same and in default of payment thereof, he shall be required to undergo six month's rigorous imprisonment.The criminal appeal is allowed in part with the above modification in the sentence". Case BackgroundOn October 15, 2020, the victim/complainant lodged a complaint with the police informing that on the same day, at around 11.00 AM, he had visited the quarter of his neighbour, i.e. the appellant. At that time, the appellant was watching his mobile in his room. The victim being a friend also sat on the bed of the appellant and started watching the appellant's mobile. It was alleged that the appellant was watching pornographic movie/clips by putting a pen drive in the mobile. After a few while, when the victim/complainant was leaving the appellant's room to return to his quarter, the appellant caught hold of his hand and forcefully laid him down on his bed, pulled down his (victim's) pant and committed unnatural sex inserting his penis in victim's anus which caused immense pain to the victim. Following the registration of FIR, the medical examination of the appellant as well as of the victim was conducted. Upon finding prima facie material against the appellant, the police filed charge-sheet against him for commission of offences under Section 377 of IPC and Section 4 of the POCSO Act.After appreciation of evidence of record, the trial Court found the appellant guilty for both the charges and sentenced him to undergo 10 years rigorous imprisonment for each of the offences and also imposed the fine amounts. Both the sentences were directed to run concurrently. Being aggrieved, the appellant filed this criminal appeal challenging the findings of the trial Court.Court's ObservationsThe Court went through the birth certificate which indicated the date of birth of victim to be March 09, 2003. However, it noted that the said birth certificate was issued on August 31, 2013 after 10 years of the birth of victim. The question which arose for consideration was whether the birth certificate issued with such a long delay can be relied upon for determination of age of victim in criminal cases.It held that the birth certificate is a strong proof for determination of the age of a person. For regulating the registration of births and deaths and matters connected therewith, the Parliament enacted the Registration of Births and Deaths Act, 1969. Section 13(3) thereof provides as follows –“Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.”The father of the victim admitted that the victim was born in Jamuna, Kotma, District Anuppur (Madhya Pradesh) and his birth certificate was issued by the competent authority of Korba in the year 2013. Further, the prosecution did not file any document of Kotwar of Jamuna, Kotma, District Annuppur (M.P.) nor it filed any documents regarding the inquiry proceeding of competent authority of Korba regarding delay in registration of date of birth in view of Section 13(3).The Principal of a primary school, which was previously attended by the victim, was also examined as a prosecution witness. She admitted that at the time of admission of the victim in class 6, the date of birth was recorded in the Dakhil Kharij Panji on the basis of date of birth written in transfer certificate of class 5th. She pleaded lack of knowledge as to from which school the victim had come after studying 5th class. She also could not tell about documents, if any, which were brought by the victim at the time of his admission in her school in order to prove his date of birth.The Court relied upon the case of Alamelu & Anr. v. State,...

Chhattisgarh HC Reduces Man's Sentence U/S 377 IPC For Sodomising Friend After Watching Porn, Says He Deserves Some Repreive

Jyoti Prakash Dutta

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