Amar Nath Pasi vs State
2017 Latest Caselaw 1554 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 40
 
Case :- JAIL APPEAL No. - 836 of 2008
 
Appellant :- Amar Nath Pasi
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Amit Tripathi,Prashant K.Srivastava,Vinod Kumar Singh Parmar
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Krishna Pratap Singh,J.

(By the Court)

Heard Sri Vinod Kumar Singh Parmar, learned Amicus Curiae for the appellant and Kumari Meena, learned AGA for the State.

This appeal is directed against the judgement and order dated 30.07.2007 passed by learned Additional Sessions Judge, Fast track Court, Court no.6, Kanpur Nagar by which the appellant has been convicted and sentenced to imprisonment for life u/s 376 I.P.C. with a fine of Rs. 5,000/- and in case of default of payment of fine additional imprisonment of six months.

Briefly stated the facts of this case as emerging out from the perusal of the written report of the incident (Ext.Ka.1) lodged by P.W.1 Karan Pandit, father of the victim Sweety at P.S.- Chakeri, District- Kanpur Nagar on 30.10.2005 at about 2350 hours in respect of an incident which had taken place in the intervening night of 26/27.10.2005 in which it is alleged that accused-appellant Amarnath Pasi and his accomplice had surreptitiously entered into the house of the informant and lifted his minor daughter, Sweety, aged about 4 years, from her bed on which she was sleeping with her parents. When the factum of his daughter having gone missing came to his knowledge, the informant started searching for her and after sometime he found her lying in an injured state in a bush on a plot behind the "tanki". He lifted her up immediately and took her to Ursula Hospital and got her medically examined by P.W.4 Dr. Subha Misra and her injury report was prepared by her which is on record as (Ext.Ka.4). On the basis of the written report (Ext.Ka.1), Case Crime No. 908 of 2005 u/s 354 I.P.C. was registered against the accused-appellant Amarnath Pasi at P.S.- Chakeri, District- Kanpur Nagar. Check F.I.R. (Ext.Ka.2) as well as relevant G.D. Entry (Ext.Ka.3) were prepared by P.W.3 Constable Shiv Pal Singh. The investigation of the case was taken over by P.W.5 S.I. Jitendra Pal Singh, who after inspecting the place of occurrence, prepared its site plan (Ext.Ka.7). He also procured vaginal slides of the victim and dispatched the same for pathological examination. The report of the pathologist is on record as (Ext.Ka.6). Supplementary report of Kumari Sweety is on record as (Ext.Ka.5). The Investigating Officer, after completing the investigation, submitted charge-sheet against the accused-appellant Amarnath Pasi u/s 354/376 I.P.C. before C.M.M. Kanpur Nagar. Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, C.M.M., Kanpur Nagar committed the case for trial of the accused to the Court of Sessions Judge, Kanpur Nagar where it was registered as S.T. No. 198 of 2006, State Vs. Amarnath Pasi and made over for trial to the Court of Additional Sessions Judge, Fast track Court, Court no.6, Kanpur Nagar, who on the basis of material collected during investigation and after hearing the prosecution as well as accused on the point of charge, framed charge u/s 354/376 I.P.C. against the accused-appellant who abjured the charge and claimed trial.

The prosecution in order to prove its case against the accused-appellant examined as many as five witnesses of whom P.W.1 informant Karan Pandit, father of the victim and P.W.2 Km. Sweety, victim herself were examined as witnesses of fact while P.W.3 Constable Shiv Pal Singh, P.W.4 Dr. Subha Misra and P.W.5 S.I. Jitendra Pal Singh, Investigating Officer of the case were produced as formal witnesses. The accused in his examination u/s 313 Cr.P.C. alleged false implication due to village enmity and further stated that he did not even know the victim or her father. The accused did not examine any witness in defense.

The learned Additional Sessions Judge, Kanpur Nagar after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, convicted the appellant u/s 376 I.P.C. and sentenced him to imprisonment for life.

Hence, this appeal.

Sri Vinod Kumar Singh Parmar, learned Amicus Curiae, appearing on behalf of the appellant has submitted that the prosecution having miserably failed to prove the charge framed against the accused-appellant, by any reliable and cogent evidence, the recorded conviction of the appellant and the sentence awarded to him cannot be sustained.

He has further challenged the quantum of punishment (life imprisonment awarded to the appellant).

According to Sri Vinod Kumar Singh Parmar, learned Amicus Curiae, having regard to all circumstances which resulted in appellant's conviction and further keeping in view the fact that the appellant has already undergone more than 11 years and 7 months till date and still continues to remain in jail, in case this Court comes to the conclusion that the recorded conviction of the appellant u/s 376 (1) I.P.C. is liable to be confirmed, then it should alter the award of life sentence to that of the one already undergone by the appellant.

Per contra Kumari Meena, learned AGA for the State submitted that the prosecution case stood proved beyond all reasonable doubts on the basis of the evidence of P.W.2 Km. Sweety victim herself who has fully corroborated the prosecution case as spelt out in the F.I.R. The medical evidence on record fully corroborates the ocular version of the occurrence as narrated by the victim P.W.2 Sweety.

She next submitted that the appellant is not entitled to any leniency from this Court as he has been convicted for having committed the heinous crime of rape with a 4-year-old girl. Thus, life sentence awarded to him is in consonance with the gravity of the offence committed by him.

We have heard the learned counsel for the parties and perused the entire lower court record.

Record shows that the incident is alleged to have taken place in the intervening night of 26/27.10.2005 in a plot behind "tanki" in village B-block, Kanpur Nagar. The written report of the occurrence (Ext.Ka.1) was lodged by P.W.1 Karan Pandit, father of the victim at P.S.- Chakeri on 30.10.2005 at 2350 hours in which it was stated that the appellant along with one unknown person had entered into his house surreptitiously in the intervening night of 26/27.10.2005 and lifted his 4-year-old daughter Sweety with the object of outraging her modesty. P.W.1 Karan Pandit on waking up in the morning, found his daughter missing. He went out in search of her daughter and found her lying in a bush on a plot behind "tanki". He immediately took her to Ursula Hospital, Kanpur Nagar from where she was referred to Dufferin Hospital. The victim P.W.2 Sweety was medically examined in Dufferin Hospital by P.W.4 Dr. Subha Misra on 27.10.2005 at 3 P.M. who had noted following injuries on her person:-

Physical Examination:-

An average built girl in fully conscious condition. Weight- 15 kg, Height- 105 cm, Teeth- 10/10

Breast not developed. Axillary and pubic hairs not present. Injury present over the neck which was noted at Ursula Hospital.

Private part examination:-

Hymen torn. Redness over vagina. Tenderness over vagina present. Bleeds on touching vagina and tip of finger. Vaginal slides taken, made and sent to Ursula Hospital, Pathology Department for detection of any dead sperm.

The girl was sent to radiology department for x-ray of rt. wrist joint.

For determination of her age, P.W.4 Dr. Subha Misra advised her x-ray. Her vaginal slides were procured and sent for pathological examination. The supplementary report of Km. Sweety which was brought on record and proved as (Ext.Ka.5) indicates that no spermatozoa was found and according to her radiological examination, her age was found to be about 4 years. The supplementary report further spelts out that possibility of rape could not be ruled out and the injury found on person of victim could have been caused by a blunt object and duration was stated to be about 12 hours.

P.W.4 Dr. Subha Misra has in her evidence tendered before the trial court has deposed that the possibility of the victim being raped could not be ruled out.

Record further shows that the prosecution in order to bring home the charge framed against the accused had examined P.W.1 Karan Pandit and P.W.2 Km. Sweety as witnesses of fact.

Admittedly P.W.1 Karan Pandit is not the eye-witness of the occurrence. He is only witness of her recovery from a bush on a plot behind "tanki" and her being taken to the hospital for medical examination and also of the fact that in the intervening night of 26/27.10.2005, she was sleeping in her house with her parents.

P.W.2 Km. Sweety, the victim has stated in her examination-in-chief that while she was sleeping on a cot in her house on the night of the incident, she was taken away by accused-appellant Amarnath Pasi behind a bush and thereafter, he had removed her underwear on which she started bleeding. Thereafter, accused-appellant Amarnath Pasi mounted on her and slapped her on her legs and hands and threatened her with dire consequences in case she disclosed anything to her father. He also pressed her neck. She further deposed that her father on finding her lying behind the bush, lifted her whereupon she narrated the whole incident to him. It is significant to note that P.W.2 Km. Sweety in her examination-in-chief has neither stated that she had felt any pain when the accused-appellant Amarnath Pasi had mounted on her nor that the accused-appellant Amarnath Pasi had tried to penetrate.

Thus, upon a conjoint reading of the statements of P.W.2 victim Km. Sweety and P.W.4 Dr. Subha Misra and the injury report and supplementary report of the victim Km. Sweety in (Ext.Ka.4 and Ka.5), it is fully proved that the accused-appellant had committed rape with the victim although it is debatable whether he had actually penetrated or not.

Now, the next question arises as to whether the appellant's sentence should be reduced and if so to what extent as urged by the learned counsel for the appellant.

In order to appreciate the submission made by the learned counsel for the appellant, it would be useful to extract Section 376 (1) and (2) of I.P.C. along with the provisos and the explanations as hereunder :-

Section 376:- Punishment for rape--

(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.

(2) Whoever,--

(a) being a police officer commits rape--

	(i) within the limits of the police station to 	     which he is appointed; or
 
	(ii) in the premises of any station house                	     whether or not situated in the police  	     station to which he is appointed; or
 
	(iii) on a woman in his custody or in the 	      custody of a police officer subordinate 	      to him; or
 
	(b) being a public servant, takes 	   	     advantage of his official position and 	     commits rape on a woman in his 	 	     custody as such public servant or in 	     the custody of a public servant 	  	     subordinate to him; or
 

 
(c)being on the management or on the   	staff 	of a jail, remand home or other    place of custody established by or under        any law for the time being in force or of a woman's or children's institution takes advantage of his official position and 	    commits rape on any inmate of such jail,  remand home, place or institution; or
 

 
	(d) being on the management or on the 	     staff of a hospital, takes advantage of 	     his official position and commits rape 	     on a woman in that hospital; or
 

 
	(e) commits rape on a woman knowing 	     her to be pregnant; or
 

 
	(f) commits rape on a woman when she is 	    under twelve years of age; or
 

 

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided 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 ten years. Explanation 1.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub- section. Explanation 2.--"Women's or children's institution" means an institution, whether called an orphanage or a home for neglected woman or children or a widows' home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.--"Hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

In the present case, since the appellant has been convicted for having committed rape on a 4 year minor girl, section 376 (2) sub-clause (f) shall be attracted while sentencing the appellant. Section 376 (2) of the I.P.C. stipulates that where a person has been convicted for having committed rape with female belonging to any of the categories enumerated under sub-section (2) of Section 376 of I.P.C., he shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. The proviso to sub-section (2) of Section 376 of I.P.C. empowers a Court for adequate and special reasons to be mentioned in the judgement impose a sentence of imprisonment of either description for a term of less than 10 years. Thus, sub-section (2) of Section 376 of I.P.C. provides a minimum sentence of rigorous imprisonment for a term which shall not be less than 10 years but which may be for life for a person who has been convicted for having committed rape on a women covered under sub-section (2) of Section 376 of I.P.C. The word "may" occurring in sub-section (2) of Section 376 of I.P.C. indicates the intention of the legislature that it is not mandatory for the Court in every case to award life imprisonment to the accused once he is found guilty of offence u/s 376 sub-section (2) of I.P.C. and the Court can award sentence, in exercise of its discretion, of 10 years rigorous imprisonment. The proviso of sub-section (2) of Section 376 of I.P.C. further empowers the Court to impose a sentence of imprisonment of either description for a term of less than 10 years u/s 376 (2) of I.P.C. for reasons to be recorded in the judgement.

The Apex Court in several cases which arose out of Section 304-B of I.P.C. r/w Section 498-B of I.P.C. wherein the Apex Court while interpreting the expression "may" occurring in Section 304-B I.P.C. which also upon conviction u/s 304-B I.P.C. empowers a Court to punish a person who commits dowry death with imprisonment for a term which shall not be less than 7 years but which may extend to imprisonment for life, held that it is not mandatory for the Court in every case to award life imprisonment to the accused once he is found guilty of offence u/s 304-B. It was held that the Court could award sentence in exercise of its discretion between 7 years to life imprisonment depending upon the facts of each case. It was held that in any case it could not be less than 7 years and that extreme punishment of life term should be awarded in rare cases but not in every case.

In the case of Hem Chand Vs. State of Haryana, 1994 6 SCC 727, the Courts below had awarded life term to the accused u/s 304-B r/w Section 498-A but this Court reduced it to 10 years. This was also a case where the accused was a police officer who had suffered life imprisonment. This Court held as under:

"7. the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B I.P.C. 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.

8. Hence, we are of the view that a sentence of 10 years' RI would meet the ends of justice. We, accordingly while confirming the conviction of the appellant u/s 304-B I.P.C., reduce the sentence of imprisonment.

Similarly this Court in State of Karnataka Vs. M.V. Manjunathegowda and Anr., 2003 2 SCC 188, while convicting the accused u/s 304-B awarded 10 years imprisonment in somewhat similar facts.

In G.V. Siddaramesh Vs. State of Karnataka, 2010 3 SCC 152, this Court while allowing the appeal filed by the accused only on the question of sentence altered the sentence from life term to 10 years on more or less similar facts. Hon'ble H.L. Dattu, J. (as His Lordship then was) speaking for the Bench held as under:

"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted u/s 304-B I.P.C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We, accordingly while confirming the conviction of the appellant u/s 304-B I.P.C., reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."

Thus, what follows from reading of the aforesaid authorities is that where the statute provides a minimum sentence or conviction for having committed a particular offence with a discretion to the Court to award sentence for a description for a term which may extend to life, the extreme punishment of life term should be awarded in rare cases and not in every case.

The trial Judge while awarding the extreme punishment of imprisonment for life to the accused-appellant in the present case has not assigned any reason. Admittedly, the accused-appellant has no criminal antecedent and at the time of the occurrence, he was aged about 27 years and he had a responsibility of looking after his aged parents who are now reported to be dead. Record further shows that the appellant is so poor that he could not engage a counsel to get himself bailed out.

Applying the principle of law laid down in the aforementioned cases and having regard to the totality of facts and circumstances of this case, we are of the considered opinion that the ends of justice would meet, if the sentence of appellant is reduced from life imprisonment to that of the one already undergone by him which is about 11 years and 7 months. In our view, this case does not fall in the category of a "rare case" as envisaged by the Apex Court so as to award the appellant the life imprisonment. In the light of the foregoing discussion, the appeal succeeds and is allowed in part.

The conviction of the appellant u/s 376 I.P.C. is upheld. However, the sentence (life imprisonment) awarded to the appellant is altered and is accordingly reduced to 11 years and 7 months rigorous imprisonment.

To this extent, the impugned judgement and order stands modified.

The accused-appellant Amarnath Pasi is in jail. He shall be released forthwith unless he is wanted in some other case subject to his complying with Section 437-A of Cr.P.C.

There shall be however no order as to costs.

Order Date :- 1.6.2017

KS