HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 36 AFR Case :- CRIMINAL APPEAL No. - 1771 of 2005 Appellant :- Vijai Kumar @ Jai Singh Respondent :- State Of U.P. Counsel for Appellant :- R.P. Tiwari Counsel for Respondent :- Govt. Advocate Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Pramod Kumar Srivastava,J.
(Delivered by Hon'ble Pramod Kumar Srivastava, J.)
1.This appeal has been preferred against the judgment of conviction and sentences dated 21.06.2000 passed by the IVth Additional Sessions Judge, Badaun in S.T. No. 406 of 1999 (State Vs. Vijay Kumar) under Section 363,376 IPC, p.s Kotwali, Badaun, by which accused Vijay Kumar @ Jai Singh was convicted for the charges under Section 376 and 363 IPC; and was punished for the charge u/s 376 IPC with imprisonment for life and fine of Rs. 2000/- (in default of payment one years rigorous imprisonment) and for the charge u/s 363 IPC with rigorous imprisonment of five years and fine of Rs. 1,000/- (in default of payment, six months further imprisonment); with direction that both the sentences would run concurrently.
2.The prosecution case in brief is that the accused- appellant had kidnapped Shilpi, 7 year old grand-daughter of the informant Ram Prakash on 04.04.1999 at 09:00 p.m. from the hut of the informant and committed rape with her. After this incident, the victim Shilpi was found by one Siyaram who had taken her to the informant. Then informant who then lodged a first information report on 05.04.1999 at 10:00 a.m. in the police station concerned.
3.During investigation, at the time of the medico-legal examination, the doctor had found that there were marks of injuries, scratches and rape on her body. After conclusion of the investigation, charge-sheet was submitted against accused-appellant Vijay Kumar, on the basis of which, S.T. No. 406/1999 (State Vs. Vijay Kumar) u/s 363 and 376 IPC was registered in police station Kotwali, Badaun. On conclusion of the trial, accused appellant was convicted, punished and sentenced as above by the impugned judgment dated 21.06.2000, against which the present appeal has been preferred by the accused.
4.Sri Deepak Kumar Chatterjee, learned amicus curiae nominated by the Legal Cell of the High Court (Legal Services Aid Authority) has appeared on behalf of the appellant; and Sri Sagir Ahmad, learned AGA had appeared on behalf of the State- respondent. We have heard their arguments and perused the records.
5.After hearing the detailed arguments of both sides and the perusal of the evidence adduced in support of the charges, statement of accused and his defence version reveals that the testimony of prosecution witnesses, especially that of the minor victim, was truthful and believable; and the prosecution had been successful in proving the charges u/ss 363, 376 IPC against the accused-appellant.
6.During arguments, learned amicus curiae had fairly stated that he is not challenging the conviction under sections 363, 376 IPC, but questioning the quantum of sentence only for the charge u/s 376 IPC. According to him, taking note of various factors including the age of the elderly appellant-accused being about 47 years at the time of the incident, he being a petty trader of onions and garlic, his family being dependent on him, he is the only bread winner of his house, it is his first guilt and hailing from a poor family; the punishment of life imprisonment and a fine is excessive. Considering his present age of about 63 years, there is no possibility that he may dare to commit such crime or any crime in future. Considering his old age, his responsibilities towards his family and long period of incarceration, his sentence should be mitigated.
7.The learned A.G.A. appearing for the respondent State fairly submitted that the Court is at liberty to impose any appropriate sentence in terms of Section 376 & 363 IPC.
8.We have given our anxious consideration to the rival submissions and perused the material available on record. Learned counsel for both sides have consented for final disposal of the appeal as such we have proceeded to hear the appeal dispensing with the formality of preparation of paper books.
9.In view of the limited submission, there is no need to go into the findings regarding conviction under Sections 363 and376 IPC. The only question to be considered is whether the sentence of life imprisonment and a fine for the charge u/s 376 IPC is reasonable or excessive?
10.Section 376 IPC speaks about the punishment for rape. Sub-section (1) provides for punishment of rape. Sub-section (2) is not applicable in present matter. Sub-section (1) reads as under :
"(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 cases, he shall 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."
11.It is clear from the above statutory provision that for the offence of rape on a woman, punishment shall not be less than 7 years but which may extend to life and also to fine shows that the legislature intended to adopt strictness in awarding sentence. No doubt, the proviso to Section 376(2) lays down that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years. It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. In the absence of any special and adequate reasons, recourse to the proviso mentioned above cannot be applied in a casual manner.
12.Learned amicus curiae, reiterating the above mentioned grounds, submitted that the accused is in jail since year 1999, that is for about 16 years, and had already suffered a lot during his very long incarceration. So considering his present age of about 63 years, there is no possibility that he may dare to commit such crime or any crime in future. Considering his old age, his responsibilities towards his family and long period of incarceration, his sentence may be mitigated.
13.Learned AGA contended that the medico legal injury reports had proved that at the time of charged incident, appellant was a matured person, but he had treated the 7 years victim with cruelty, and not only raped her but had inflicted many injuries on the different parts of her body. He also pointed out that after arrest in this case, accused-appellant had misinformed the police about his correct name and played dirty tricks during the trial to escape justice, and had never been accommodating the Court for conclusion of the trial. He pointed out that the gravity of the offence can be assessed from the fact that he had committed rape of a minor girl for about one hour. Considering the gravity and nature of the act committed by the appellant, sentence of imprisonment for life is appropriate.
14.In Dagdu and Ors. v. State of Maharashtra, (1977) 3 SCC 68 Hon'ble Apex Court had held that :
"The imperative language of Sub-section (2) leaves no room for doubt that after recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition under Section 360. The right to be heard on the question of sentence has a beneficial purpose, for a variety of facts and considerations bearing on the sentence can, in the exercise of that right, be placed before the Court which the accused, prior to the enactment of the Code of 1973, had no opportunity to do. The social compulsions, the pressure of poverty, the retributive instinct to seek an extra-legal remedy to a sense of being wronged, the lack of means to be educated in the difficult art of an honest living, the parentage, the heredity- all these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence. The mandate of Section 235(2) must, therefore, be obeyed in its letter and spirit."
15.In Muniappan v. State of Tamil Nadu, AIR 1981 SC 1220 Hon'ble Supreme Court had held :
"The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) he Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under Section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction."
16. In "Hazara Singh v. Raj Kumar, (2013) 9 SCC 516" Hon'b'e Apex Curt had held that :
"it is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."
"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
17.In the present case after the verdict of conviction the accused-appellant had, at the time of hearing on point of quantum of sentence, placed all relevant factors which should have been well studied for determining the appropriate amount of sentence. But the trial Court, after mentioning them in order, had not assigned any special reasons for awarding maximum possible punishment. Thus the Sessions Judge, in the instant case, complied with the form and letter of the obligation which Section 235(2) CrPC imposes, forgetting the spirit and substance of that obligation.
18.There is no justification for the trial court while convicting the accused-appellant for the offence under Section 376 IPC to sentence him to life imprisonment without appreciating the mitigating and aggravating circumstances placed by both sides, and without assigning special reasons. Only because Section 376 IPC provides for life imprisonment as the maximum sentence does not mean that the Court should mechanically proceed to impose the maximum sentence without explaining the circumstances for awarding maximum punishment by a reasoned order.
19.In Hem Chand v. State of Haryana, (1994) 6 SCC 727 Hon'ble Apex Court had held that :
"As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case."
20.In Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 Hon'ble Apex Court had held :
"While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced."
21.In considering the adequacy of the sentence which neither be too severe nor too lenient the court has, therefore, to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and situation in life of the offender. In awarding the sentence the judge, when he is free, is still not wholly free. He is to draw his inspiration from consecrated principles. There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case. There is need to adopt such guidelines in order to minimize uncertainty in awarding sentences. The higher courts, recognizing the absence of such guidelines, have provided judicial guidance in the form of principles and factors that courts must take into account while exercising discretion in sentencing. It lies in the discretion of the trial court to choose a particular sentence within the available range from minimum to maximum; and in the present case the discretion has not been judiciously applied.
22.In the present case the trial Court has chosen to award maximum punishment to the appellant without explaining the points which should have been taken into account at the time of pre-punishment hearing. This had infringed the legal rights of the appellant available to him under section 235(2) CrPC. Therefore the impugned judgment, on point of quantum of punishment and sentence for offence u/s 376 IPC, warrants interference in exercise of appellate jurisdiction.
23.Now the matter is limited to the sentence for the offence u/s 376 IPC, and we have to consider about the appropriate sentence for the appellant in this case. For it aggravating circumstances relating to the crime while mitigating circumstances relating to the criminal has to be considered. From facts and circumstances of the case before us, as regards aggravating circumstance is concerned it is clear that a mature appellant had found a girl of about 7 years of age in a lonely place, found himself stronger than her and then given in to his sexual desire, used criminal force to satisfy his lust, without considering the effect of his act on the poor helpless girl and her life in future. Medico-legal injury report and evidence of doctor had proved that the appellant had not only used brutal criminal force against the little victim but had mercilessly raped her, which will have lifelong adverse effect on the personality of the victim. So far as mitigating circumstances are concerned, taking note of various factors including the age of the elderly appellant-accused being about 47 years at the time of the incident, is an old man of about 63 years who is in jail for about 16 years because he had once surrendered to his sexual lust, his family being dependent on him, he is the only bread winner of his house, he has no criminal history, it is his first guilt and hailing from a ordinary family, award of life imprisonment and a fine is excessive. Some of these points were mentioned in the judgment by the trial Court at the time of hearing on point of quantum of sentence, but without assigning any special reason maximum possible punishment for the said offence was awarded, which should be mitigated in the present case. This contention of the learned counsel for the appellant cannot be ignored that during trial and then after conviction appellant had suffered sufficient time in incarceration (about 16 years) which would have taught him an appropriate lesson to refrain from such overt acts.
24.In Bavo v. State of Gujarat, (2012) 2 SCC 684 Hon'ble Apex Court had held as :
"14. Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years. The learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years.
15. Coming to the quantum of fine, in the case on hand, the learned trial Judge has imposed Rs 20,000, in default, to undergo RI for three years. The learned counsel for the appellant submitted that the accused hails from a poor family and was working as an agricultural labourer and is not in a position to pay such a huge amount as fine which is not disputed by the State. Taking note of all these aspects, we reduce the fine of Rs 20,000 to Rs 1000, in default, to further undergo RI for one month.
16. In view of the above discussion, the conviction imposed on the appellant herein is confirmed. However, the sentence of life imprisonment is modified to RI for 10 years with a fine of Rs 1000, in default, to further undergo RI for one month.
17. With the above modification of sentence, the appeal stands disposed of."
25.In the aforesaid case the Hon'ble Supreme Court had, for the reasons presented by the defence had mitigated the punishment for rape of a girl below 7 years to 10 years' imprisonment. But in the present case the circumstances presented before the Sessions Judge, at the time of hearing under section 235(2) CrPC on point of quantum of sentence, were more dismaying. Appellant was aged about 47 years and was mature enough to know the consequences and implications of his overt act.
26.While we see no reason to differ with the findings recorded by the trial court regarding commission of the charged offences, we do see some substance in the arguments raised on behalf of the appellants that keeping in view the prosecution evidence, the above mentioned aggravating and mitigating attendant circumstances, the age of the accused and the fact that he has already been in jail for a considerable period, the Court should take a lenient view as far as the quantum of sentence for offence u/s 376 IPC is concerned. The offences having been proved against the accused and keeping in view the attending circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellant is reduced. So, it appears appropriate that, in the present case the sentence should not exceed more than 20 years' imprisonment.
27.In view of above facts and discussion, the order of conviction u/s 376 and 363 IPC imposed on the appellant is hereby confirmed. The punishment and sentence for charge u/s 363 IPC, as well as the direction that both sentences would run concurrently, is also confirmed. But the sentence of imprisonment for life for the charge u/s 376 IPC is modified to rigorous imprisonment of 18 years. With this modification of sentence, the appeal stands disposed off.
28.Let the copy of this judgment be sent to Sessions Judge, Budaun of ensuring compliance.
Order Date :- 21.8.2015 Sanjeev