Asraf vs State Of U.P.
2016 Latest Caselaw 1031 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 

 
Court No. - 27
 

 
Case :- CRIMINAL APPEAL No. - 5539 of 2015
 

 
Appellant :- Asraf
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Vidit Narayan Mishra
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. Challenge in this appeal is to the judgment and order dated 31.10.2015 passed by the learned Additional Sessions Judge/Fast Track Court, Gautam Budh Nagar in Sessions Trial No. 513 of 2012 arising out of Case Crime No. 574 of 2012, under sections 307, 376/511 IPC, PS Sector 20, NOIDA, Gautam Budh Nagar, whereby the appellant Asraf has been convicted and sentenced to three years' rigorous imprisonment and a fine of Rs. 25,000/- under section 307 IPC; four years' rigorous imprisonment and a fine of Rs. 25,000/- under section 376/511 IPC with default stipulation.

2. Filtering out the unnecessary details, the prosecution case is that a written report Ext. Ka-1 was given by the victim-PW 1 (elder daughter of the accused) after getting the same scribed by Saleem Akhtar, resident of Kani Nagar, Gali No. 5, to the Station Officer, Sector 20, NOIDA, Gautam Budh Nagar mentioning therein that his father has been harassing her mother Sultana for the last five years. He also beat her. Her father also pressurized her for making sexual relation. He also has an evil eye on his younger sister. On resistance, today i.e. 28.06.2012 at 11.00 a.m. her father, in order to kill, assaulted her mother on her neck by knife. When her mother tried to save herself, she received injuries of knife on her hand and body. When the victim, PW-1 tried to save her mother, she was kicked on her stomach by her father and threatened to kill her. It is also mentioned in the report that her father stays with pick pocketer. It is also mentioned that she came to lodge the report after getting her mother hospitalized. On the basis of the aforesaid report, a chik FIR, Ext. Ka-7 was registered at 14.40 hours on 28.06.2012, on the basis of which case crime No. 574 of 2012, under section 307, 376/511 IPC was registered, which was entered into G.D. vide report No. 35, Ext. Ka-8.

3. After registration of the case, the investigation of the case was entrusted to S.I., Balwan Singh, PW-5. He copied the chik report, written report and FIR in the case diary and recorded the statement of chik writer, victim, PW-1 and another victim, PW-3, (the younger daughter of the accused ) and inspected the spot and prepared the site plan and proved it as Ext. Ka-5. On 29.06.2012, he arrested the accused and recorded his statement. On 22.09.2012, he perused the medical report of the victim, wife of the accused, PW-2 and after completing the investigation, he submitted the charge sheet against the accused, Ext. Ka-6.

4. The victim, PW-2, wife of the accused, who was in the hospital, was medically examined by Dr. Arvind, PW-4, who was posted at District Hospital, NOIDA, Gautam Budh Nagar, who found the following injuries on the person of the victim:

"1- dVk gqvk fu'kku 5x8 lseh0] mYVs gkFk ds ihNs dh rjQ] ekal rd xgjk rktk [kwu cg jgk Fkk] tks fd dykbZ ds 14 lseh0 Åij FkkA

2- dVk gqvk fu'kku 3.5x.5 lseh0] mYVs gkFk ij ckgj dh rjQ] ekal rd xgjk] rktk [kwu cg jgk Fkk tks pksV la[;k&1 ls 12 lseh0 mij FkkA

3- dVk gqvk ?kko 3x.5 lseh- b.MSDl fQaxj ij] gM~Mh rd xgjk] rktk [kwu cg jgk Fkk vkSj Hk;kud nnZ crk jgh FkhA bl pksV ds fy, ,Dljs ,MokbZt fd;k x;k

4- dVk gqvk fu'kku 2x0.5 lseh0] gkFk ds chp dh maxyh esa gM~Mh rd xgjk] rktk ftlls [kwu cg jgk FkkA blds fy, Hkh ,Dljs dh lykg nh x;hA

5- rktk dVk ?kko 3.5x0.2 lseh-] lh/ks gkFk esa dykbZ ls 3 lseh-] Åij ekal rd xgjk] ftlls [kwu cg jgk FkkA

6- dVk gqvk ?kko 2x .5 lh/ks gkFk ds vaxwBs ds Åij] gM~Mh rd xgjk] rktk [kwu cg jgk FkkA blds fy, Hkh ,Dljs dh lykg nh x;h FkhA

7- rktk dVk gqvk ?kko 13x0.1 isV ij ukHkh ls Åij] tks Ldzhu Mhi Fkk] rktk [kwu cg jgk FkkA tks fdlh rst /kkjnkj gfFk;kj ls vkuk laHko FkkA"

5. The doctor has opined that all the injuries are simple in nature except injury Nos. 3, 4 and 6. He proved the medical report as Ext. Ka 2. The victim Smt. Sultana was kept under observation. Her Bed Head Ticket was prepared by this witness, which was proved as Ext. Ka-3.

6. Dr. Arvind, PW-4 has also examined the victim PW-1, who was brought by Constable 1231 Sushila on the same day. According to doctor, the victim, PW-1 was complaining of pain. No visible injury was found on her body. Injury report of the victim, PW-1 was prepared by the doctor, which was proved as Ext. Ka-4.

7. In support of its case, the prosecution has examined as many as six witnesses. PW-1 Anjum Malik, elder daughter of the accused. PW-2 Smt. Sultana, wife of the accused appellant. PW-3, Sabista, younger daughter of the accused appellant. PW-4, Dr. Arvind, who medically examined the victim Smt. Sultana. PW-5 is S.I., Balwan Singh, the Investigating Officer of the case. PW-6 is Constable 548, Virendra Kumar.

8. PW-1 is the victim and daughter of the accused-appellant. She has reiterated the versions given in the FIR.

9. PW-2 is the victim and wife of the accused-appellant. She has stated that she used to do the work of tailoring in the house, but now she is working in a boutique. Her husband wants to make illegal sexual relation with her daughter, PW-1 due to which there was a quarrel between her and her husband. Her husband also tried to make sexual relation with her younger daughter, PW-3. She also made a complaint about this misdeed of the accused to the father and brother-in-law (Bahnoi) of the accused, who came on 27.6.2012 and reprimanded and slapped the accused.

10. PW-3 is the victim and younger daughter of the accused. She also stated about making of illegal sexual relation by the accused with her.

11. PW-6 is Constable 548 Virendra Kumar, who has proved the chik FIR as Ext Ka-7 and copy of report No. 35 as Ext-8.

12. The evidence of PW-4, Dr. Arvind and PW-5, SI Balwan Singh has already been discussed above.

13. After the close of the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C., in which he has stated that he has falsely been implicated in this case due to conspiracy. He has stated that as the victim, PW-2 wants to take divorce from him due to which they used to quarrel. He has also produced one witness in his defence as DW 1. The accused himself has been examined as DW-2.

14. DW-1 is Akram, the brother of the accused. He has stated that the accused and victim, PW-2 used to quarrel for the last about 2-3 years. PW-2 wants to take divorce from the accused, but accused was not ready for divorce as the children have grown up and he was worried about their marriage. On the date of incident, on being called by victim PW-2, he visited the house of the accused along with his father and brother-in-law (Bahnoi), where PW-2 was adamant for divorce. This witness has further stated that he did not see the injury on PW-2 as the incident has not taken place before him.

15. DW-2, is the accused of the case. He has stated that his wife, PW-2 wants to take divorce from him as she had illegal relation with one Siraj. He also complained about this illgal relation to the brother of PW-2. He also tried to get the PW-2 understand, but she was adamant on divorce and ultimately she has falsely implicated him in this case.

16. Learned lower court after hearing the learned counsel for the parties and perusing the record, found the accused guilty and convicted him as specified in para 1 of the judgment.

17. Feeling aggrieved, the accused-appellant has come in appeal.

18. Heard Shri Vidit Narayan Mishra, learned counsel for the appellant and learned Additional Government Advocate for the State.

19. During the course of hearing, learned counsel for the appellant Shri Vidit Narayan Mishra submitted that he does not want to press the appeal as regards the conviction of the appellant for the offence punishable under sections 307, 376/511 IPC on merits, but he wants to submit before the Court only on the quantum of sentence. He has vehemently submitted that sentence of four years imprisonment is quite harsh and excessive. The accused is in jail since 29.6.2012.

20. Lastly, it has been submitted that the accused-appellant be sentenced to imprisonment for a period already undergone by him as the accused has already undergone about three years and nine months.

21. Not pressing the criminal appeal after the conviction of the accused by the court below is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.

22. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu, AIR 1991 SC 1463, the Hon'ble Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:

"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, 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 etc."

23. In the case of Dhananjoy Chatterjee Vs. State of W. B., [1994] 2 SCC 220, the Hon'ble Supreme Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.

24. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.

25. This position was reiterated by a three-Judge Bench of the Hon'ble Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein it was observed as follows:-

"99.....The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.

The court must not only keep in view the rights of the victim of the crime but the society at large also while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."

26. In Jameel vs. State of Uttar Pradesh (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus: -

"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 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.

16. 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 sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

27. In Guru Basavaraj @ Benne Settapa vs. State of Karnataka, (2012) 8 SCC 734, while discussing the concept of appropriate sentence, this Court expressed that:

"It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."

28. In Gopal Singh vs. State of Uttarakhand, JT 2013 (3) SC 444 held as under:-

"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence....."

29. Learned counsel for the appellant has also submitted that the accused-appellant had undergone substantial part of the sentence and only three months remained.

30. In the facts and circumstances of the case, I think the end of justice would be met if the sentence of four years of the accused under sections 376/511 IPC is reduced to the period already undergone, i.e. three years and nine months.

31. In view of the above, the appeal is partly allowed. The conviction of the appellant under sections 376/511 IPC is confirmed and the sentence of four years imprisonment is reduced to the period already undergone, i.e. three years and nine months.

32. The appellant is in jail. He shall be set at liberty forthwith unless wanted in any other case.

33. However, the appellant is directed to deposit the fine awarded by the lower court within two months from the date of release.

34. Let certified copy of this judgement be sent to the court concerned immediately for requisite compliance.

Order Date :- 29.3.2016

Sazia