Arjun Singh vs State Of U.P.
2015 Latest Caselaw 1911 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 36	
 

 
Case :- CRIMINAL APPEAL No. - 714 of 2008
 

 
Appellant :- 	Arjun Singh
 
Respondent :- 	State of U.P.
 

 
Counsel for Appellant :- Noor Mohammad, R.B. Saxena, Sanjay Yadav 
 
Counsel for Respondent :- A.G.A.
 

 
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 punishment dated 28.11.2007 passed by Additional Sessions Judge, Court No. 13, Aligarh in S.T. No. 488 of 2005 (State Vs. Arjun Singh) under Section 323, 376 IPC in case crime no. 148 of 2004, p.s. Gonda, Aligarh. By this judgment accused-appellant had been convicted for charge under section 376 IPC and sentenced to imprisonment for life and fine of Rs. 5000/- (in default of payment additional imprisonment for six months).

2.The prosecution case in brief is that the minor daughter (about 14 year) of the informant was raped by accused Arjun Singh (about 27 years) on 26.11.2004 at about 2.00 p.m., and when the witnesses saw them, the accused fled away. Victim's father lodged a FIR on the basis of which case crime number 148/ 2004 was registered. During investigation the doctor reported in the medico-legal examination that 'no opinion about rape can be given', but after completion of investigation charge-sheet was submitted, on the basis whereof Sessions Trial No. 488/ 2005 was held, and after its conclusion accused was acquitted of the charge of section 323 IPC, but convicted as above for offence u/s 376 IPC. This judgment is under challenge in the present appeal.

3.The learned counsel appearing for the appellant fairly states that he is not challenging the conviction but questioning the quantum of sentence only. According to him, taking note of various factors including the age of the young appellant-accused being about 26-27 years at the time of the incident, his old mother being dependant on him, he is the only bread winner of his house, it is his first guilt and hailing from a poor family, award of life imprisonment and a fine of Rs. 5000/- in default, to further undergo RI for six months is excessive. He pointed out that these points were mentioned in the judgment of the trial Court at the time of hearing on point of quantum of sentence, but were not considered at the time of awarding punishment; and without assigning any reason maximum possible punishment for the said offence were awarded,which should be mitigated in the present case.

4.The learned A.G.A. appearing for the respondent State fairly submitted that the Court is at liberty to impose an appropriate sentence in terms of Section 376 IPC.

5.We have given our anxious consideration to the rival submissions and perused the material available on record.

6.In view of the limited submission made at the bar there is no need to go into the findings regarding conviction under Sections 376 IPC. The only question to be considered is whether the sentence of life imprisonment and a fine of Rs 5,000/- is reasonable or excessive?

7.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."

8.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.

9.The Section 235 of the Criminal Procedure Code, 1973 reads

"(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law".

10.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."

11.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."

12. 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."

13.In the present case after the verdict of conviction the accused appellant had, at the time of hearing on the point of quantum of sentence, placed all relevant factors which should have been well thought out for determining the appropriate amount of sentence. But the trial Court, after mentioning them in the order, has not considered them, and without assigning any special reason the Sessions Judge had awarded maximum possible punishment. Thus the Sessions Judge, in the instant case, complied with the form and letter of the obligation which Section 235(2) imposes, forgetting the spirit and substance of that obligation.

14.There is no justification for the trial court while convicting accused-appellant for offence under Section 376 IPC to sentence him to life imprisonment. Only because Section 376 IPC provides life imprisonment as the maximum sentence, does not mean that the court should mechanically proceed to impose the maximum sentence, more particularly when there is no proof that any injury was caused during the incident. There is no justification for awarding the maximum sentence of life imprisonment in the present case.

15.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."

16.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."

17.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. In the present case the trial Court had chosen to award maximum punishment to appellant without considering the points which should have been taken into account at the time of per-punishment hearing. This had infringed legal rights of appellant available to him under section 235(2) CrPC. Therefore the impugned judgment warrants interference in the exercise of appellate jurisdiction.

18.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 the facts and circumstances of the case before us, as regards aggravating circumstance is concerned it is clear that appellant had found a girl of about 14 years of age in a lonely place, considered 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. So far as mitigating circumstances are concerned, taking note of various factors including the age of the young appellant-accused being about 26-27 years at the time of the incident which cannot be treated as very mature, his old mother being dependent on him, he is the only bread winner of his house, it is his first guilt and hailing from a poor family, award of life imprisonment and a fine of Rs. 5000/- in default, to further undergo RI for six months is excessive. These points were mentioned in judgment by the trial Court at the time of hearing on point of quantum of sentence, but were not considered at the time of awarding the punishment; and without assigning any reason maximum possible punishment for the said offence were awarded,which should be mitigated on the facts of the present case. This contention of the learned counsel for the appellant cannot be ignored that during trial and then after conviction appellant has suffered sufficient time in incarceration (about 11 years) which would have taught him an appropriate lesson to refrain from such overt acts.

19.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."

20.In the aforesaid case the Supreme Court had, for the reasons presented by defence side, had mitigated the punishment for rape of a girl below 7 years to 10 years' imprisonment. But in said case appellant was in incarceration for long time. In 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, was more dismaying. Appellant was aged about 26-27 years and was not too young.

21.While we see no reason to differ with the findings recorded by the trial court regarding the charged offence, we do see some substance in the argument 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 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 present case the sentence should not exceed more than 12 years' imprisonment and lesser fine.

22.In view of above facts and discussion, the order of conviction u/s 376 IPC imposed on the appellant is hereby confirmed. But the sentence of imprisonment for life is modified to rigorous imprisonment of 12 years with a fine of Rs. 2000/-, in default to further undergo RI for one month. With this modification of sentence, the appeal stands disposed off.

23.Let the copy of this judgment be sent to Sessions Judge, Aligarh of ensuring compliance.

Dated: 20.08.2015

Sanjeev