Gyasoo vs State
2017 Latest Caselaw 1658 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 

 
Court No. - 40
 

 
Case :- JAIL APPEAL No. - 4353 of 2010
 

 
Appellant :- Gyasoo
 
Respondent :- State
 
Counsel for Appellant :- From Jail,Noor Mohammad(A.C.)
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

Case called out in the revised list.

Sri Noor Mohammad, who was appointed as Amicus Curiae to argue this appeal on behalf of the appellant, is not present in the Court.

I, accordingly, revoke his engagement and appoint Sri A.R. Dubey, Advocate, as Amicus Curiae to argue this appeal on behalf of the appellant.

Heard Sri A.R. Dubey, learned Amicus Curiae for the appellant and Sri Saghir Ahmad, learned AGA for the State.

This Criminal Jail Appeal is filed by the accused-appellant Gyasoo against the judgement and order dated 28.05.2010 passed by Special Judge, SC/ST Act, u/s 376 I.P.C., P.S.- Kasna, District- Gautam Budh Nagar in S.T. No. 74 of 2009, State Vs. Gyasoo, arising out of Crime No. 701 of 2008, by which the accused-appellant has been convicted and sentenced to 10 years rigorous imprisonment and a fine of Rs. 20,000/- and in default of payment of fine, six years additional imprisonment u/s 376 I.P.C.

Facts necessary for the disposal of this appeal needed to be mentioned in brief.

As per the prosecution story, P.W.1 informant Raman lodged the written report (Ext.Ka.1) at P.S.- Kasna, District- Gautam Budh Nagar, on 14.11.2008 at 6:20 A.M., alleging therein that he was an employee of global company and was residing within the premises of the company with his wife Reeta, brother Jeevan Lal and his wife Radha, his brothers-in-law, Bhavesh (saala) and Ganesh Ram (jija). On 13.11.2008 at about 9:30 P.M., his son Rahul informed him that he had seen his daughter Priyanka aged about 3 years leaving the company premises with someone who had given her some eatables on which he became suspicious and started searching for his daughter with his wife and on hearing shrieks of a child emanating from a vacant plot near the company, they reached there and on reaching there they saw that a man after removing the underwear of Priyanka was committing rape on her by inserting his organ in her private part. The informant and his wife caught the person on the spot and made a noise on which informant's brother Jeevan Lal, his brothers-in-law, Bhavesh (saala) and Ganesh Ram (jija) also arrived at the place of incident and with their help, they caught the culprit and brought him to their hut. On being questioned, he disclosed his name as Gyasoo. In the morning, the informant with the help of his brother and brothers-in-law took the accused to the police station and lodged the written complaint of the occurrence. On the basis of the written report (Ext.Ka.1), Case Crime No. 701 of 2008 was registered at P.S.- Kasna, District- Gautam Budh Nagar u/s 376 I.P.C. against the accused-appellant Gyasoo. Check F.I.R. (Ext.Ka.6) and the relevant G.D. Entry were prepared by P.W.6 Constable Surendra Pal Singh.

Victim Priyanka was medically examined on 14.11.2008 in District Hospital, Noida. Her vaginal smear was obtained and its slide was sent for pathological examination. The first Investigating Officer of this case P.W.5 S.I. Ravi Shankar Pandey visited the place of occurrence and after inspecting the same, prepared its site plan (Ext.Ka.4). After obtaining the supplementary medical report of the victim Priyanka, the Investigating Officer submitted charge-sheet against the accused-appellant u/s 376/511 I.P.C. and Section 3(2)5 of SC/ST (Prevention of Atrocities) Act, 1989 before the Chief Judicial Magistrate, Noida.

Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Noida committed the case for trial of the accused to the Court of Sessions Judge, Noida where it was registered as S.T. No. 74 of 2009, State Vs. Gyasoo and made over for trial to the Court of Special Judge, SC/ST Act, Gautam Budh Nagar who after hearing the prosecution and the accused-appellant on the point of charge and on the basis of material on record, framed charge u/s 376/511 I.P.C. and Section 3 (2)5 of SC/ST (Prevention of Atrocities) Act, 1989 on 26.05.2010. Later, after the statements of the witnesses were recorded, the charge as originally framed against the accused-appellant was altered to one u/s 376 I.P.C. and Section 3(2)5 of SC/ST (Prevention of Atrocities) Act, 1989. The accused-appellant abjured the charge and claimed trial.

The prosecution in order to prove its case examined P.W.1 informant Raman, P.W.2 Reeta, wife of informant, P.W.3 Bhavesh, brother-in-law (saala) of informant as witnesses of fact while P.W.4 Dr. Anjali Rastogi, P.W.5 S.I. Ravi Shankar Pandey, first Investigating Officer, P.W.6 Constable Surendra Pal Singh and P.W.7 C.O. Rajesh Kr. Singh, second Investigating Officer of this case were produced as formal witnesses.

The accused-appellant in his statement recorded u/s 313 Cr.P.C. denied the prosecution case and further stated that about a week before the incident, the informant had borrowed a sum of Rs. 2,400/- from him and when he demanded the repayment of aforesaid amount from him, he was falsely implicated by the informant in the present case. The accused-appellant did not examine any witness in defence.

The learned Special Judge, SC/ST Act, Gautam Budh 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 awarded aforesaid sentence to him.

Hence, this appeal.

Sri A.R. Dubey, learned Amicus Curiae appearing on behalf of the appellant has confined his submission only to one ground. He expressly gave up his challenge to the finding of the Court below so far as the conviction of the appellant u/s 376 I.P.C. is concerned. In other words, the learned Amicus Curiae accepted the finding of conviction on merits. Apparently, finding no merit therein, he challenged the quantum of punishment (10 years rigorous imprisonment) awarded to the appellant.

According to Sri A.R. Dubey, having regard to all circumstances which resulted in appellant's conviction and further keeping in view the fact that the appellant has already undergone 8 years and 7 months imprisonment till date and still continues to remain in jail, this Court may alter the award of life imprisonment to that of the one already undergone by the appellant. Sri A.R. Dubey submitted that although Section 376 of I.P.C. prescribes award of imprisonment for a term which shall not be less than 7 years but which may extend to life imprisonment but the first proviso to Section 376(2) of I.P.C. empowers the Court for adequate and special reasons to be recorded in the judgement to impose a sentence of imprisonment of either description or a term of less than 10 years. According to him, this is not a case where the trial court should have awarded 10 years rigorous imprisonment to the appellant. Learned Amicus Curiae urged that any term of more than 7 years would meet the ends of justice and since in this case, 8 years and 7 months of imprisonment has already been undergone by the appellant, this Court should allow this appeal to this extent and by modifying the impugned judgement in so far as the quantum of sentence is concerned, reduce the same from 10 years rigorous imprisonment to that of 8 years and 7 months.

Sri Saghir Ahmad, learned AGA appearing for the State while countering the submissions made by the learned counsel for the appellant, submitted that having regard to the totality of circumstances emerging from the evidence and the fact that the accused has committed rape with a minor girl aged about 3 years, rigor of Section 376(2) is clearly attracted to the facts and circumstances of the present case and the award of sentence of 10 years rigorous imprisonment to the appellant is fully justified and hence this Court should not interfere with the quantum of sentence.

Having heard learned counsel for the parties and on perusal of entire record of the case, I am inclined to allow this appeal in part upon finding some force in the submission made by Sri A.R. Dubey, learned Amicus Curiae.

Though the appellant has not made any attempt to assail the finding of his conviction on merits, yet with a view to satisfy myself as to whether the finding of the Court below of conviction is legally sustainable or not, I perused the record and especially therein having so perused, I am satisfied that no case is made out to interfere in the finding of the Court below on merit for the following reasons:-

Firstly, the F.I.R. of the occurrence which had taken place on 13.11.2008 at about 9:30 P.M. was lodged without any inordinate delay on 14.11.2008 at about 6:20 A.M. The delay in lodging the F.I.R has been satisfactorily explained.

Secondly, there is eye-witness account of the occurrence of P.W.1 Raman and P.W.3 Bhavesh who have fully supported the prosecution case as spelt out in the F.I.R.

Thirdly, it is proved from the injury report and supplementary report of victim Priyanka which have been brought on record as (Ext.Ka.2 and Ka.3) and proved as such by P.W.4 Dr. Anjali Rastogi that the possibility of rape committed on the victim could not be ruled out.

I, therefore, uphold the finding of conviction of the appellant u/s 376 I.P.C. recorded by the trial court.

Now, the question arises as to whether the appellant's sentence should be reduced and if so, to what extent, as urged by Sri A.R. Dubey, learned Amicus Curiae.

In order to appreciate the aforesaid submission made by Sri A.R. Dubey, learned Amicus Curiae, it would be useful to extract Section 376(1) & (2) of I.P.C. along with it's proviso 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 3 year-old girl, section 376 (2) sub-clause (f) shall be attracted while sentencing him. 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 recorded in the judgement to 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 to 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.

Thus, the question which arises for the consideration of this Court is that whether under the facts and circumstances of the case, the sentence of 10 years rigorous imprisonment awarded to the appellant by the trial court after holding him guilty u/s 376 I.P.C. can be palliated to a sentence for a term of lesser period of imprisonment by this Court in the exercise of its power under proviso to Section 376(2) of I.P.C. In my view, this case does not fall in the category of a case so as to award the appellant 10 years rigorous imprisonment.

After examining the evidence on record very carefully, I do not find that the present case is one of extreme brutality or any other attending circumstance which may prevent this Court from exercising its power under the proviso to Section 376(2) I.P.C. in favour of the appellant.

Record further shows that on the date of the incident, the accused-appellant, according to his age mentioned in his statement u/s 313 Cr.P.C. which was recorded on 13.04.2010 was about 18 years and 7 months. He was a young man who had barely become major. He does not have any criminal antecedents. Although he is in jail for the last more than 8 years and 7 months, there has never been any complaint against his conduct.

Thus, having regard to the totality of the facts and circumstances of this case, this Court is of the considered opinion that the ends of justice would meet if the sentence of the appellant is reduced from 10 years rigorous imprisonment to that of the one already undergone by him which is about 8 years and 7 months.

In the light of the foregoing discussion, the appeal succeeds and is allowed in part.

The conviction of the appellant Gyasoo u/s 376 I.P.C. is upheld. However, the sentence (10 years rigorous imprisonment) awarded to the appellant is altered and is accordingly reduced to that of the one already undergone by him.

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

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

There shall however be no order as to costs.

Order Date :- 12.6.2017

KS