Manwar vs State Of U.P.
2017 Latest Caselaw 1719 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 

 
Court No. - 40
 

 
Case :- JAIL APPEAL No. - 1265 of 2012
 

 
Appellant :- Manwar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Noor Mohammad,Shivam Yadav
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bala Krishna Narayana,J.

(By the Court)

Heard Sri Bimla Prasad, learned Amicus Curiae for the appellant Manwar and Sri Rajeev Gupta, learned AGA for the State.

This appeal is directed against the judgement and order dated 07.02.2012 passed by VIth Additional District and Sessions Judge, Gautam Budh Nagar in S.T. No. 615 of 2010, State Vs. Manwar u/s 376, 506 I.P.C. (Case Crime No.334 of 2010), P.S.- Phase-II, District- Gautam Budh Nagar by which the appellant has been convicted and sentenced to 12 years rigorous imprisonment and a fine of Rs. 10,000/- and in default of payment of fine, six months additional simple imprisonment u/s 376(2)(f) I.P.C. and one year rigorous imprisonment and a fine of Rs. 1,000/- and in default of payment of fine 15 days additional simple imprisonment u/s 506(2) I.P.C.

Briefly stated, the facts of this case are that P.W.2 informant Shahnaz gave a written report (Ext.Ka.1) at P.S.- Phase-II, District- Gautam Budh Nagar, on 07.06.2010 at 1530 hours, alleging therein that she was residing along with her husband P.W.4 Shamshad in a rented accommodation belonging to one Suresh Tyagi in village Bhangel. Her husband was working as a tailor in Phase-II, Noida. She had three children of whom her 8 year-old daughter Aysha was residing with her. On the date of the incident at about 12 noon while the informant was engaged in performing the daily chores and Aysha was playing in the house, accused-appellant Manwar, son of Valval who was also residing as a tenant in a different portion of the same house, forcibly took her daughter Aysha to his room and committed rape on her. When her daughter started screaming on account of pain suffered by her, she reached to the room of accused-appellant Manwar and saw that accused-appellant Manwar was holding her daughter Aysha and blood was oozing out from her private part. She somehow managed to save her daughter from the clutches of accused-appellant Manwar. The incident was witnessed by several other tenants. Threatening the informant with dire consequences, in case she attempted to lodge any report of the occurrence, the accused-appellant made good his escape from the place of incident. On the basis of the written report (Ext.Ka.1), Case Crime No.334 of 2010 u/s 376, 506 I.P.C. was registered against the accused-appellant Manwar at P.S.- Phase-II, District- Gautam Budh Nagar. Check F.I.R. and necessary G.D. Entry vide rapat no.36 at 1530 hours dated 07.06.2010 were prepared by P.W.7 Constable Jai Pal Singh copies whereof were brought on record and marked as (Ext.Ka.6) and (Ext.Ka.8).

After registration of the case, its investigation was entrusted to P.W.8 S.I. Lokesh Kumar Sharma who visited the place of occurrence and after inspecting the same, prepared its site plan (Ext.Ka.9) at the instance of the informant. He also collected blood-stained bed-sheet and accused's underwear and sealed the same and prepared the recovery memo of the aforesaid articles (Ext.Ka.3). The victim was medically examined on 07.06.2010 at about 10:20 P.M. at Dr. Bhim Rao Ambedkar Multi Speciality Hospital, Gautam Budh Nagar, U.P. by P.W.5 Dr. Archana Tyagi who prepared her injury report (Ext.Ka.4).

The supplementary report of the victim is on record as (Ext.Ka.5). The victim was subjected to x-ray for determination of her age. Her x-ray report is on record as (Ext.Ka.6). According to (Ext.Ka.6), the age of the victim on the date of the incident was about 8 years. The pathology report of the slides of vaginal smear of the victim which was obtained by the Investigating Officer indicates that no spermatozoa was seen in the supplied smear. The Investigating Officer, after completing the investigation, submitted charge-sheet against the accused-appellant Manwar u/s 376/506 I.P.C. before 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 Sessions Judge, Noida where it was registered as S.T. No. 615 of 2010 and made over for trial to the Court of VIth Additional District and Sessions Judge, Gautam Budh Nagar who on the basis of material on record and after hearing the prosecution and the accused-appellant on the point of charge, framed charge u/s 376(2)(f) and 506(2) I.P.C. against the accused-appellant Manwar. The accused-appellant Manwar abjured the charge and claimed trial.

The prosecution in order to bring home the charge framed against the accused-appellant, examined P.W.1 Aysha (victim), P.W.2 Shahnaz, mother of the victim, P.W.3 Taj Mohammad and P.W.4 Shamshad as witnesses of fact while P.W.5 Dr. Archana Tyagi, who had prepared the injury report of the victim, P.W.6 Dr. Ajit Kumar, who had conducted the x-ray of the victim for determination of her age, P.W.7 Constable Jai Pal Singh, who had proved the check F.I.R. (Ext.Ka.6) and the G.D. Entry (Ext.Ka.8) and P.W.8 S.I. Lokesh Kumar Sharma, the Investigating Officer of the case, who after completing investigation had submitted charge-sheet against the accused-appellant Manwar, were produced as formal witnesses.

The accused-appellant Manwar in his statement recorded u/s 313 Cr.P.C. denied the prosecution case. He however did not examine any witness in defence.

Learned VIth Additional District and Sessions Judge, Gautam Budh Nagar after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the entire evidence on record, convicted the accused-appellant Manwar u/s 376(2)(f) and 506(2) I.P.C. and awarded aforesaid sentences to them.

Hence, this appeal.

Sri Bimla Prasad, learned Amicus Curiae appearing on behalf of the accused-appellant has submitted that the prosecution has miserably failed to prove by any cogent and reliable evidence that the accused-appellant had committed rape on Aysha, and hence the recorded conviction of the appellant and the sentences awarded to him by the trial court cannot be sustained and are liable to be set-aside.

He has further challenged the quantum of punishment (12 years rigorous imprisonment) awarded to the appellant.

According to Sri Bimla Prasad, 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 about seven years imprisonment 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(2)(f) and 506(2) I.P.C. is liable to be confirmed, then it should alter the award of sentence of 12 years rigorous imprisonment to that of the one already undergone by the appellant or to 10 years imprisonment and a fine of Rs. 10,000/- and in default of payment of fine, one month additional rigorous imprisonment.

Per contra Sri Rajeev Gupta, learned AGA submitted that it is fully proved from the evidence adduced by the prosecution during the trial that it was the accused-appellant who had committed the rape on the 8 year-old victim Aysha. The finding of guilt recorded by the trial court is based upon cogent evidence and the sentence awarded to him is supported by relevant considerations. No interference with the impugned judgement and order is warranted.

He 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 on a 8 year-old girl. Thus, sentence of 12 years rigorous imprisonment awarded to him is in consonance with the gravity of the offence committed by him. This appeal lacks merit and is liable to be dismissed.

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

The only question which arises for the consideration of this Court in this appeal is that the prosecution has been able to prove its case against the accused-appellant Manwar beyond all reasonable doubts or not.

Record shows that the accused-appellant Manwar in this case was tried for having committed rape on a 8 year-old girl Aysha at about 12 noon on 07.06.2010 in his room which he had taken on rent from Suresh Tyagi and the victim was also residing with her parents in a different portion of the same house on rent. The F.I.R. of the incident was lodged by P.W.2 Shahnaz, mother of the victim Aysha without any inordinate delay on the same day at about 1530 hours. The victim was medically examined by P.W.5 Dr. Archana Tyagi on the same day at about 10:20 P.M. who prepared her injury report (Ext.Ka.4) and noted following injuries on the person of the victim:-

External Examination:-

Height- 3'11" ; Weight- 19 kg ; Teeth- 12/12

No marks of injury on external part of body

Secondary served characters not developed.

Internal Examination:-

Hymen torn at 6 o'clock portion. IInd vaginal tear present. Vaginal smear taken on 2 slides for HPE & before like dressing done. Slight bleeding present.

For determination of the age of victim Aysha, she was subjected to x-ray. Her x-ray report dated 08.06.2010 is on record as (Ext.Ka.6). The supplementary report of the victim dated 04.08.2010 which was prepared by P.W.5 Dr. Archana Tyagi indicates her age to be below 14 years. P.W.5 Dr. Archana Tyagi in her examination-in-chief apart from proving the injury report and supplementary report of victim as (Ext.Ka.4 and Ka.5 respectively), has categorically deposed that although she had written in the supplementary report (Ext.Ka.5) that age of the victim was below 14 years but her age could be anywhere between 7 and 8 years. She further deposed that the possibility of rape being committed on victim Aysha as per the pathology report of the victim cannot be ruled out and the injuries noted by her on the person of the victim Aysha in her injury report (Ext.Ka.4) could have been caused to her on 07.06.2010. P.W.5 Dr. Archana Tyagi further vehemently denied the suggestion given by the defence counsel to her in her cross-examination on page 36 of the paper book that no rape was committed on the victim Aysha and she had fabricated a false injury report.

Record further shows that the prosecution in order to prove its case against the accused-appellant Manwar had produced as many as four witnesses of fact namely P.W.1 Aysha, P.W.2 Shahnaz, P.W.3 Taj Mohammad and P.W.4 Shamshad.

P.W.1 victim Aysha in her examination-in-chief has fully supported the prosecution case as spelt out in the F.I.R.

P.W.2 Shahnaz, mother of the victim, in her evidence tendered before the trial court fully corroborated the evidence of P.W.1 victim Aysha on all material points relating to the occurrence.

P.W.3 Taj Mohammad, in his examination-in-chief deposed that the police constable had seized one blood-stained bed-sheet and one underwear from the place of occurrence and sealed the same in his presence and prepared its recovery memo and then obtained the signatures of the witnesses on the same. P.W.3 Taj Mohammad proved the recovery memo of the blood-stained bed-sheet and the underwear as (Ext.Ka.2). P.W.4 Shamshad, father of the victim is not the eye-witness of the occurrence. He is witness of the fact that he had taken his daughter to the hospital for treatment after he had reached his home on being informed about the occurrence by his wife on 07.06.2010.

Both the P.W.1 victim Aysha and P.W.2 Shahnaz were subjected to gruelling cross-examination by the defence counsel but he failed to elicit anything out of them which may persuade this Court to doubt the veracity of the facts deposed by them in their evidence tendered before the trial court. It is fully proved from the evidence of P.W.1 and P.W.2 that the accused-appellant Manwar had committed rape on P.W.1 Aysha in his room on 07.06.2010 at about 12 noon.

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 aforesaid submission made by the learned counsel for the appellant, 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 8 year-old 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 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 or imprisonment for a term exceeding the minimum sentence prescribed 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 and 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 the Apex Court reduced it to 10 years. This was also a case where the accused was a police officer who had suffered life imprisonment. The Apex 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 the Apex 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, the Apex 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 on 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 or imprisonment for a term exceeding the minimum sentence should not be awarded in every case.

The trial Judge while awarding the punishment of imprisonment for a term exceeding the minimum sentence on conviction u/s 376(2) I.P.C. has not assigned any reason. Admittedly, the accused-appellant has no criminal antecedents. 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, I am of the considered opinion that the ends of justice would meet, if the sentence of appellant is reduced from 12 years rigorous imprisonment to that of 10 years rigorous imprisonment and a fine of Rs. 10,000/- and in default of payment of fine, one month additional rigorous imprisonment.

Thus, upon a wholesome appraisal of the facts of the case and a careful evaluation of the facts on record, both oral as well as documentary, this Court is of the view that the prosecution fully succeeded in bringing home the charge framed against the accused-appellant by the trial court and hence the recorded conviction of the appellant u/s 376(2)(f) and 506(2) I.P.C. and the sentence awarded to him by the trial court u/s 506(2) I.P.C. do not warrant any interference by this Court but the sentence of 12 years rigorous imprisonment awarded to him calls for modification.

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

The conviction of the appellant u/s 376(2)(f) and 506(2) I.P.C. and the sentence awarded to him u/s 506(2) I.P.C. are upheld. However, the sentence (12 years rigorous imprisonment) awarded to the appellant is altered and is accordingly reduced to 10 years rigorous imprisonment and a fine of Rs. 10,000/- and in default of payment of fine, one month additional rigorous imprisonment.

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

The accused-appellant Manwar is in jail. He shall be released after serving out the remaining part of his modified sentence.

Sri Bimla Prasad shall be paid a sum of Rs. 10,000/- within six weeks towards his remuneration for assisting the Court ably.

There shall be however no order as to costs.

Order Date :- 15.6.2017

KS