Virendra vs State Of U.P.
2016 Latest Caselaw 2716 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED ON 09.03.2016 
 
DELIVERED ON 18.05.2016
 
                                                                        (AFR)
 

 

 

 
Case :- CRIMINAL APPEAL No. - 2831 of 2012
 

 
Appellant :- Virendra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Dinesh Kumar Tripathi,Arvind Kumar Srivastava,P.K. Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

This appeal is directed against the judgment and order dated 04.06.2012 passed by the learned Additional Sessions Judge, Court No. 5, Kanpur Nagar in ST No. 967 of 2009 (State Vs. Virendra), arising out of Crime No. 72 of 2009 under Sections 354, 376, 306 IPC, Police Station Sachendi, District Kanpur Nagar whereby the accused appellant was found guilty and sentenced to two years' rigorous imprisonment under Section 354 IPC; seven years' rigorous imprisonment and Rs.5,000/- fine under Section 376 IPC and ten years' rigorous imprisonment and Rs.5,000/- fine under Section 306 IPC with default stipulation.

2. Filtering out the unnecessary details, the prosecution case in brief is that a report was lodged with the concerned Police Station Sachendi, District Kanpur nagar stating that on 09.02.2009, the daughter of informant aged 16 years at 6:00 AM went near her house to attend the call of nature in the fields. When she was returning home after easing herself, on the way she met the accused Virendra who caught her and started sexually molesting her. When the girl raised alarm, many people reached on the spot, at which accused Virendra fled away. When the girl reached home, she sprinkled kerosene oil on her body and set herself ablaze due to shame. The girl was badly burnt. Even thatch of the house was also burnt. Hence the report was lodged. On the basis of this report chik FIR was scribed by PW-7 Mohibuddin Siddiqi, who proved the chik report as Ext. Ka-5 and the copy of the GD as Ext. Ka-6. On 09.02.2009, her dying declaration was recorded by Praveena Agrawal, PW-4, Additional City Magistrate-IV, Kanpur Nagar between 10:55 PM to 11:05 PM. This witness proved the dying declaration as Ext. Ka-2. PW-8 Dr. Kanchan Lata Srivastava medically examined the victim. She did not find any mark of injury on her body, except the upper part of her face on the right side, whole body including the lower part was completely burnt. Foley catheter was found to collect urine. Since the lower part of the body was burnt, she could not be internally examined. Two slides were prepared and sent for pathological examination. The vaginal orifice was admitting one finger. This witness proved the medical report as Ext. Ka-7 and the pathological report as Ext. Ka-8. Dr. R.K. Khanna, PW-11, conducted post-mortem report on the corpse of the deceased. He found the following ante-mortem injuries on the body of the deceased:-

Ante-mortem Injuries:

Superficial to deep burns of the entire body sparing only both soles. Hairs Synged. Burnt areas are partly healed at places interspersed with zones of flaques of pus and slough aloner.

3. On internal examination both the lungs were found congested and flaque of puss was found in both the lungs. The liver was congested. The pleura, spleen and Kidney were found congested. The doctor opined the cause of death septicemia as a result of ante-mortem burn injuries. The doctor proved the post-mortem report as Ext. Ka-9.

4. Dr. SB Mishra is PW-12. He granted the fitness certificate before recording the dying declaration and thereafter, it was recorded. He proved his endorsement on the dying declaration. PW-5 SI Ram Jivan, who conducted investigation. This witness prepared the inquest report on 19.02.2009 at LLR Hospital in the presence of family members of the deceased, Panch were deputed. After preparing the inquest report, the body of deceased was sealed in cloth and sent for post-mortem through Constable Mohd. Ansar. This witness proved the inquest report as Ext. Ka-10 and the accompanying papers as Ext. Ka-11 to Ka-14.

5. SI Ram Jeevan, PW-5, received the information of the incident by RT Set 09.02.2009. When he reached the spot, he came to know that the victim was being taken to the hospital for treatment. He copied the FIR in the case diary. He recorded the statement of chik writer, victim, informant and mother of the victim in the case diary. On the same day, he inspected the spot and prepared the site plan, which was proved by this witness as Ext. Ka-3. After interrogating the victim Section 376 IPC was added.

6. The accused was arrested on 10.02.2009 by the SO Rajpal. Statement of accused was recorded by this witness. The victim died on 19.02.2009 at LLR Hospital at 5:50 AM. Hence, Section 306 IPC was added. The dying declaration of the victim (deceased) was perused and copied in the case diary. On 20.02.2009, the medical report of victim was copied in the case diary. After that this witness was transferred. Thereafter, investigation was entrusted to PW-6, SI Rang Bihari Dwivedi perused the case diary scribed by his predecessor and thereafter, on 27.03.2009 he recorded the statement of eye-witness Guddi Devi, Shrawan and other witnesses. He further recorded the statement of Tarawati. Investigation ended into a charge sheet, which was proved by this witness as Ext. Ka-9. Besides these witnesses, the prosecution examined PW-1, Chhote Lal, the informant who proved the written report as Ext. Ka-1. PW-2 is Guddi Devi, who is said to be an eye-witness. PW-3 is Shrawan, who is also said to be the eye-witness. PW-9 is Savita, who is also said to be eye-witness. PW-10 is Tarawati who is also alleged to be an eye-witness.

7. After 12 witnesses were examined by the prosecution, the prosecution closed its evidence.

8. Statement of accused appellant was recorded under Section 313 Cr.P.C., who denied the incident of rape. Further, incident was said not to have been known to the accused and he stated that he has been falsely implicated. However, the accused did not adduce any evidence in defence.

9. I have heard Shri P.K. Singh, learned counsel for appellant, learned AGA for the State and perused the record of the case.

10. After hearing the learned counsel for parties, the learned Trial Court has convicted and sentenced the accused as narrated in para-1 of the judgment.

11. The learned counsel for accused appellant has submitted that all the witnesses of fact were declared hostile. None has supported the prosecution case. Hence, the conviction of the accused is bad in the eyes of law. Per contra, the learned AGA appearing for State has submitted that the dying declaration has been rightly relied upon by the Trial Court. Hence, the appeal deserves rejection.

12. Perusal of the chik report Ext. Ka-5 reveals that the occurrence is said to have taken place on 09.02.2009 at 6:00 AM; whereas the report was lodged on the same day at 13:30 hours, the police station being 12 kilometers away from the place of occurrence. Thus, the first information report is prompt. The first information report has been criticized by the learned counsel for appellant stating that in the FIR there is no allegation of rape against the accused. Hence, the prosecution case has no legs to stand because the whole prosecution case is based on nothing else but improvements.

13. A perusal of the first information report shows that neither the father of deceased was a witness to the occurrence nor as per the FIR he had any conversation with his daughter except that it has been stated that she sprinkled kerosene oil on her body and set herself ablaze.

14. The appellant has been convicted under Section 354, 376 and Section 306 IPC. If conviction under Section 376 IPC is upheld, then, conviction under Section 354 IPC cannot separately be sustained.

15. As far as the allegations of rape are concerned, although as per the first information report, there are no allegations of rape, but this is a strange case in which even the parents thought that their prestige and reputation was not valuable to them than the life of daughter. It appears that they failed to morally support their daughter. I have it in mind that rape is not a medical offence but it is a legal offence. The victim of rape has not been supported by any of the eye-witnesses in as much as PW-1 has stated that the accused even did not molest his daughter. Although in the first information report he has stated that accused molested his daughter. But as I have said earlier, this witness has backed out even from the story of molestation. He was declared hostile by the prosecution and the ADGC proceeded to cross-examine him in which he admitted that during the treatment his daughter died. He had no conversation with his daughter. She was only demanding water. It is really painful to note that when daughter of this witness PW-1, Chhote Lal, was dying and begging for water from her father, even then he did not gather courage to support the first information report which was got written by him. Guddi Devi, PW-2 has stated that she knew accused Virendra. She did not see that accused caught hold of the deceased, made her fall in the fields and was molesting her. I do not understand how this witness has expected the Court to rely on her negative evidence. In fact, statement of this witness that she did not see the act of molestation speaks volume for itself. This witness was also declared hostile by the prosecution, who was cross-examined by the ADGC. In cross-examination, this witness has gone to the extent of stating that the victim, her daughter, did not commit suicide but she died since thatch caught fire. This is absolutely against the whole prosecution case. PW-3, Shrawan, as stated that he did not see the occurrence. This witness was also declared hostile and was cross-examined by the prosecution in which he admitted that the victim died due to burn injuries but he did not know whether the thatch caught fire or the victim committed suicide. Another witness of fact produced by the prosecution is Savita, PW-9 who is also said to be an eye-witness of the fact, who has stated that she did not know whether the victim committed suicide or not, but she only knew that the deceased died due to burn injuries. She could not deny and plead ignorance to the fact that she did not know whether the victim set herself ablaze due to shame.

16. Tarawati, PW-10, is also said to be the witness of the incident, who is the mother of the victim and has stated that at the time of occurrence, she was out of the house. When she returned home she saw the victim has set herself ablaze and had died. This is no where a case of the prosecution that the victim died in her house. In fact, it has come on record that the victim died in the hospital due to the burn injuries. This witness Tarawati, PW-10, has also stated that she did not know whether rape was committed with the victim or not. This witness was also declared hostile and cross-examined by the prosecution as well as the defence. When the defence cross-examined this witness, she stated that she did not know why the victim set herself ablaze.

17. It is a trite law that part of evidence of hostile witness can be relied upon, which supports the prosecution theory. In this case, practically none of the hostile witnesses have supported the prosecution theory as such. But dying declaration of the deceased is on record. The dying declaration is Ext. Ka-2. It is being extracted as follows:-

"c;ku dq0 lq"kek mQZ NksVh iq=h Jh NksVs mez 16 o"kZ yxHkx fu0 :Lruiqj fu;j HkSjeiqj Fkkuk lps.Mh dkuiqj uxj us cgks'kksgok'k c;ku fd;k fd ohjsUnz uke ds yM+ds us tks djkSyh xkao ds jguk okyk gS ysfdu esjs xkao esa gh jgrk gS us esjh bTtr [kjkc dj nhA eSa 'kkSp ds fy;s [ksr x;h Fkh mlh le; ohjsUnz us esjh bTtr ywV yhA eSus ?kj ykSVdj viuh eka dks lkjh ckr crk;hA eSus 'keZ ds dkj.k feV~Vh dk rsy Mkydj vkx yxk yhA eSus bl otg ls [kqn dks vkx yxkbZ fd esjh bTtr yqV tkus ls esjs firk th dh ukd dV x;h FkhA ohjsUnz ds firk dk uke ijekesaVh gSA eq>s fdlh us tyk;k ugh gSA c;ku lqudj rLnhd fd;kA" "

18. The learned counsel for appellant has submitted that the dying declaration is not reliable in as much as it has come in evidence that the victim sustained 95% burn injuries, hence, by no stretch of imagination it can be said that the victim was in a condition to give the dying declaration.

19. Section 32 of the Indian Evidence Act which relates to "dying declaration" reads as under:-

Section 32(1) in The Indian Evidence Act, 1872

1. when it relates to cause of death. --"When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."

20. In AIR 2000 SC 2602, Sudhakar and another Vs. State of Maharashtra the Apex Court has observed that :

"Section 32 of the Evidence Act is an exception to the general rule of exclusion of the hearsy evidence. Statement of a witness, written or verbal, of relevant facts made by a person who is dead or cannot be found or who has become incapable of giving evidence or whose attendance cannot procured without an amount of delay or expense, are deemed relevant facts under the circumstances specified in Sub- sections 1 to 8. Sub-section (1) of Section 32 with which we are concerned, provides that when the statement is made by a person as to the cause of his death or as to any circumstances of the transaction which resulted in his death, being relevant fact, is admissible in evidence. Such statements are commonly known as dying declarations. Such statements are admitted in evidence on the principle of necessity. In case of homicidal deaths, statements made by the deceased is admissible only to the extent of proving the cause and circumstances of his death. To attract the provisions of Section 32 for the purposes of admissibility of the statement of a deceased, it has to be proved that: (a) The statement sought to be admitted was made by a person who is dead or who cannot be found or whose attendance cannot be procured without an amount of delay and expense or is incapable of giving evidence. (b) Such statement should have been made under any of the circumstances specified in sub-sections 1 to 8 of Section 32 of the Evidence Act. As distinguished from the English Law Section 32 does not require that such a statement should have been made in expectation of death. Statement of the victim who is dead is admissible in so far as it refers to cause of his death or as to any circumstances of the transaction which resulted in his death. The words "as to any of the circumstances of the transaction which resulted in his death" appearing in Section 32 must have some proximate relation to the actual occurrence. In other words the statement of the deceased relating to the cause of death or the circumstances of the transaction which resulted in his death must be sufficiently or closely connected with the actual transaction. Due weight is required to be given to a dying declaration keeping in view the legal maxim "Nemo moriturus praesumitur mentire" i.e. a man will not meet his Maker with a lie in his mouth. To make such statement as substantive evidence, the person or the agency relying upon it is under a legal obligation to prove the making of a statement as a fact. If it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who heard the deceased making the statement. However, in cases where the original recorded dying declaration is proved to have been lost and not available, the prosecution is entitled to give secondary evidence thereof. In this case the statement of the prosecutrix Exhibit P-59 does not directly state any fact regarding the cause of her death. At the most it could be stretched to say referring to "circumstances of the transaction" resulting in her death. The phrase "circumstances of the transaction" were considered and explained in Pakala Narayana Swami Vs. Emperor [AIR 1939 PC 47]: "The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular persons, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. "Circumstances of the transaction" is a phrase no doubt that coveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae". Circumstances must have some proximate relation to the actual occurrence: though, as for instance, in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose. It will be observed that "the circumstances" are of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility of the evidence is that "the cause of (the declarant's) death comes into question".

21. The 'death' referred to in Section 32 (1) of Evidence Act includes suicidal death besides homicidal death. I would like to depict that Indian Law on the question of nature and scope of dying declaration has made a distinct departure from the English Law where only the statements which directly relate to the cause of death are admissible. The second part of Clause (1) of Section 32 vig., "The circumstances of transaction which resulted in his death, in cases in which the cause of that person' death comes into question", is not found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar Vs. State, AIR 1960 Punjab 310 where the following observations were made:-

"Clause (1) of Section 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead, ....are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to why of the circumstances of the transaction which resulted in his death... It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death."

22. As distinguished from the English Law Section 32 of the Evidence Act does not requires that such a statement should have been made in expectation of death. But the words "as to any of the circumstances of the transaction which resulted in his death", appearing in Section 32 of the Evidence Act must have some proximate relation to the actual transaction which resulted in his death, must also be sufficiently or closely connected with the actual transaction. Due weight is required to be given to a "dying declaration" keeping in view the legal maxim "NEMO MORITURUS PRAESUMITUR MENTIRE" which means that a man will not meet his maker with a lie in his mouth. To make such a statement as substantive evidence, the person or the agency relying upon it is under an obligation to prove the making of statement as a fact. If it is in writing, the scribe must be produced in the Court.

23. PW-4 Praveena, an Additional City Magistrate, has specifically stated that the dying declaration of the victim was recorded in LLR Hospital, Kanpur. At that time, the injured was in complete sense. She was recognizing people and was mentally fit to depose. The doctor had given the certificate in the presence of this witness and signed in her presence. The victim had told this witness that Virendra had raped her. She narrated the whole incident to her mother when she returned home and due to shame she sprinkled kerosene oil on herself and set her ablaze. She had further stated to this witness that since she was raped, her father's reputation was ruined. After the statement was recorded, thumb impression of the victim was put on the dying declaration. This witness was put to the test of cross-examination in which she has specified that the doctor had given the fitness certificate prior to and after that her statement was recorded. The victim was lying down before and after her statement was recorded. This witness further clarifies that there was no police personnel when she went to record the statement. No police personnel was inside the room when the dying declaration was being recorded. Only the doctor was present. She had questioned the victim in Khariboli and the statement was recorded in the language in which the victim had given the answers. It took her about 10 minutes to record the statement. Since the victim was having trouble in her hand, she could not put signatures on the dying declaration. This witness thought that it was not necessary to mention this averment in the dying declaration. I agree that there was absolutely no necessity of mentioning this fact in the dying declaration because it would be nothing but overdoing things. This witness PW-4 Praveena, the Additional City Magistrate, has further clarified that even the family members of the victim were not present when the dying declaration was being recorded. Her statement was recorded in the room where she was being treated.

24. A strange suggestion was put to this witness which she denied and said that she did not write the dying declaration on the telling of the doctor. I fail to understand why the doctor would get a false dying declaration recorded when he has nothing to do with the matter. Dr. SB Mishra has certified that he granted the fitness certificate on the dying declaration before and after it was recorded. When the dying declaration was recorded, the victim was in complete sense, she had understanding about the place, time and the persons. She was mentally fit to give the statement. This witness was also put to the test of cross-examination in which he has stated that on the basis of questioning, he concluded that the injured was fit to give the dying declaration. But he did not get this fact recorded in the dying declaration. I do not think that there was any necessity of it being mentioned in the dying declaration as to how the doctor ascertained that the injured was fit before and after the recording of dying declaration. After all, the doctor is an expert. He is not a layman who has to explain each and every minute detail of how he came to a particular conclusion. Doctor SB Mishra, PW-12 has further stated in the cross-examination that throughout the recording of the statement, he was present. Nobody was present near the patient when the statement was being recorded. Only Doctor and Magistrate were present. He was not treating the patient and he did not know when the patient died after the statement was recorded. He has specified that he granted the certificate on the basis of his experience. I think that there could not be a better dying declaration than the present one. The present dying declaration has fulfilled all the requirements of law.

25. Thus, as per the dying declaration which is wholly reliable and safe to rely, it is established that the accused committed rape on the victim. Although she was so badly burnt that the doctor could not examine the signs of rape on her body.

26. Thus, the learned lower Court committed no illegality in finding the accused guilty under Section 376 IPC.

27. As far as conviction of the accused under Section 306 IPC is concerned, the law of abetment has been laid down in (2010) 1 SCC (Cri) 917 Gangula Mohan Reddy Vs. State of Andhra Pradesh in which it has been observed in para - 7 as follows:

"The word suicide in itself is nowhere defined in the Indian Penal Code, however its meaning and import is well known and requires no explanation. 'Sui' means 'self' and 'cide' means 'killing', thus implying an act of self-killing. In short a person committing suicide must commit it by himself, irrespective of the means employed by him in achieving his object of killing himself."

28. The learned counsel for appellant has placed reliance on the aforesaid case law. In para - 7 onward of the aforesaid judgment the Apex Court has held that the word 'suicide' in itself is nowhere defined in the Indian Penal Code. However, its meaning and import is well known and requires no explanation. 'Sui' means 'self' and 'cide' means 'killing', thus implying an act of self killing. In short, a person committing suicide must commit it by himself irrespective of means employed by him in achieving his object of killing himself. Abetment has been defined under Section 107 of the Code. Section 107 is reproduced as follows:-

"107. Abetment of a thing - A person abets the doing of a thing, who -

First - Instigates any person to do that thing; or

Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes places in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly - Intentionally aides, by any act or illegal omission, the doing of that thing."

Explanation 2 which has been inserted along with Section 107 reads as under :

"Explanation 2 - Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."

29. In State of West Bengal Vs. Orilal Jaiswal & Another, (1994) 1 SCC 73, this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

30. This court in Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi): AIR 2010 SC 1446 had an occasion to deal with this aspect of abetment. The court dealt with the dictionary meaning of the word "instigation" and "goading". The court opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the others. Each person has his own idea of self esteem and self respect. Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.

31. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.

32. The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide.

33. A perusal of the dying declaration makes it clear that the victim has specifically stated that she proceeded to end her life because she was raped by the accused and due to which, the repute of her family was also ruined. She has specifically stated that she was not burnt by anybody. This statement was recorded on the date of the occurrence itself.

34. PW-5 SI Ram Jivan has stated that he did not take the ashes of burnt thatch in possession. I do not think any such shortcomings on the part of the Investigating Officer would give benefit of any kind to the accused. This witness has further stated that the injured was 95% burnt. I am aware that the proximity of time between the alleged act of rape and the incident of setting herself ablaze by the deceased is of much importance and as is the case in hand, the accused is said to have committed rape on the victim, she returned home and at once she set herself ablaze. There was proximity of time between the incident of rape and the suicide committed by her and it is close enough to lead to the conclusion that it was because of rape that the victim was compelled to commit the suicide and there was no other reason for the victim to set herself ablaze except that she was raped and felt extremely ashamed of that.

35. Thus, the learned lower Court correctly found the accused guilty under Section 306 IPC too.

36. The learned counsel for accused appellant has submitted that the accused is consistently in jail since 10.02.2009. He has been in jail for more than seven years. He further submits that custodial sentence of 10 years under Section 306 IPC is too harsh sentence, hence the accused appellant may be sentenced to the period already undergone i.e. seven years' rigorous imprisonment under Section 306 IPC. The learned counsel for the appellant has also placed reliance upon (2013) 3 SCC(Cri) 608, Gopal Singh Vs. State of Uttarakhand in which relying upon the judgment of Santa Singh Vs. State of Punjab (1976) 4 SCC 190, the Apex Court has observed as under :-

"...... a proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances -- extenuating or aggravating -- of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and, therefore, the legislature felt that, for this purpose, a separate stage should be provided after conviction when the court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused."

37. In (2010) 12 SCC 532: Jameel Vs. State of U.P., the Apex Court speaking about the concept of sentencing observed as under:-

"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."

38. In Shailesh Jasvantbhai Vs. State of Gujarat, (2006) 2 SCC 359, the Apex Court has observed thus :

"The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be - as it should be -a decisive reflection of social consciousness of society." Therefore, 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".

39. In Guru Basavaraj Vs. State of Karnataka, (2012) 8 SCC 734 while discussing the concept of appropriate sentencing the Apex Court has 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 [pic]which includes adequate punishment cannot be lightly ignored."

40. In Gopal Singh Vs. State of Uttarakhand, (2013) 3 SCC (Cri) 608, the Apex Court has made the following observations:

"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. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a strait-jacket formula nor a solvable theory in mathematical exactitude. It would be dependant on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.

19. A Court, while imposing sentence, has to keep in view the various complex matters in mind. To structure a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of Court in such situations becomes a complex one. The same has to be performed with due reverence for Rule of La, the collective conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a priori notion."

41. In the present case, a young girl lost her life which is because of the accused who satisfied his lust on this young girl and she did not have the moral support and courage to face her family members and the society.

42. In the above background of the case, the learned counsel for accused appellant has submitted that in 2012 when the statement of accused was recorded, he was 20 years of age, hence, at the time of occurrence he was a young lad of only 17 years. Hence, the sentence awarded to him under Section 306 IPC may be reduced.

43. Keeping in view the totality of the circumstances, the manner in which the offence was committed, the age of the deceased and the age of the accused, I think the custodial sentence of 10 years' rigorous imprisonment under Section 306 IPC should be reduced to 8 years' rigorous imprisonment.

44. In view of the aforesaid reasons, the appeal is partly allowed. The conviction of appellant under Section 354 IPC is set aside. The conviction and sentence of appellant under Section 376 IPC is confirmed. The conviction of appellant under Section 306 IPC is confirmed. But the custodial sentence of 10 years' rigorous imprisonment under Section 306 IPC is reduced to 8 years' rigorous imprisonment. The fine imposed on both the counts shall remain as it is.

45. The appellant is in jail. He shall serve the remainder of his sentence.

46. Let a certified copy of this judgement be sent to the Court concerned immediately for sending a modified conviction warrant of the accused appellant to the concerned jail.

47. Compliance report be submitted to this Court within six weeks.

Order Date :- 18.5.2016

LBY