Anil Kumar vs State Of U.P.
2017 Latest Caselaw 4884 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

          
 
                                                                                                                 A.F.R.
 
Court No. - 40 
 
Case :- JAIL APPEAL No. - 1435 of 2010
 
Appellant :- Anil Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Abida Syed(A.C.)
 
Counsel for Respondent :- A.G.A.,Pradeep Kumar Bhardwaj
 

 
Hon'ble Bala Krishna Narayana,J
 
Hon'ble Mahboob Ali,J.

(Per Hon'ble Mahboob Ali,J )

This appeal is directed against the judgment and order dated 22.09.2009 passed by learned Additional Sessions Judge, Fast Track Court No.2, District- Ghaziabad by which the appellant has been convicted and sentenced to imprisonment for life under Section 376 IPC with a fine of Rs.10,000/- and in case of default of payment of fine additional imprisonment of one year.

2. Briefly stated the facts of this case are:-

First information report of the incident was lodged by PW-2 Suraj Bhan Singh, father of the victim at P.S. Indrapuram, District Ghaziabad on 14.02.2008 at about 6.35 p.m.

The prosecution story as has been unfolded in the first information report is to the effect that on 13.02.2008 at about 6.30 P.M., accused/appellant Anil Kumar came to the house of the informant and took away his 2 ½ year-old-daughter Aanchal on the pretext to make her play, at that time the informant was in his house alongwith his deaf & dumb wife Manjesh and daughter Aanchal, at about 7.15 P.M. the accused/appellant came back with informant's daughter who was crying and there was bleeding in her private part. Seeing this, the informant Suraj Bhan Singh and his sister Gayatri took the girl first to Minakshi Hospital in Kaushambi and then on the advise of doctor to Lal Bahadur Shastri Hospital, Delhi where the victim was medically examined by PW-1 Dr. Rubi Parveen who prepared the injury report (Ext K-1). On the basis of the written report (Ext K-2) Case Crime No. 201 of 2008 was registered at P.S. Indrapuram, District Ghaziabad under Section 376 I.P.C. against the accused/appellant Anil Kumar. Chick F.I.R. as well as G.D. Entry were prepared by constable Munish Chandra.

The investigation of the case was taken over by S.I. Rajendra Singh Chauhan, who after inspecting the place of occurrence, prepared the site plan (Ext K-4). He had also procured vaginal slides and cloths etc. of the victim and dispatched the same for pathological examination. The report of pathologist is on record.

3. The Investigating Officer after completing the investigation, submitted charge sheet (Ext. Ka-5) against the accused- appellant Anil Kumar u/s 376 I.P.C. before C.J.M., Ghaziabad. Since the offence mentioned in the charge sheet was exclusively triable by the Court of Sessions, the Chief Judicial Magistrate, Ghaziabad committed the case for trial of the accused to the Court of Sessions Judge, Ghaziabad where it was registered as S.T. No. 716 of 2008, State vs. Anil Kumar and made over for trial to the Court of Additional Sessions Judge, Fast Track Court, Court No. 2 Ghaziabad, 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 under Section 376 IPC against the accused- appellant who abjured the charge and claimed trial.

4. The prosecution, in order to prove its case against the accused-appellant, examined as many as four witnesses of whom PW-2 informant Suraj Bhan Singh, father of the victim and PW-3 Smt Gayatri, were examined as witnesses of fact while PW-1 Dr. Ruby Praveen and PW-4 Sub- Inspector Rajendra Singh Chauhan, Investigating Officer, were produced as formal witnesses.

5. The incriminating circumstances and evidence has been put to the accused-appellant by way of his examination u/s 313 Cr.P.C in which he alleged false implication by the complainant to escape liability of paying the money of the accused due from him. The accused did not examine any witness in defense.

6. On conclusion of the trial, learned Additional Sessions Judge, Ghaziabad after considering the submissions advanced before him by the learned counsels 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 with a fine of Rs. 10,000/- out of which half the amount was directed to be paid to the parents of the victim.

7. Hence, this appeal

8. Ms. Abida Syed, learned Amicus Curiae appearing on behalf of the appellant has submitted that the prosecution having miserably failed to prove the charge 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.

9. She has further challenged the quantum of punishment i.e. life imprisonment, awarded to the appellant.

10. According to the learned Amicus Curiae, having regard to all the circumstances which resulted in the conviction of the appellant and further keeping in view the fact that appellant has already undergone more than 9 years imprisonment till date and still continues to remain in jail, in case this Court comes to the conclusion that recorded conviction of the appellant under Section 376(2) I.P.C. is liable to be confirmed, then it should alter the award of life term to a sentence of 10 years.

11. Per contra Sri J.K. Upadhaya and Sri Saghir Ahmad, learned A.G.A. for the State submitted that prosecution case stood proved beyond all reasonable doubt on the basis of the evidence of P.W.-I Dr. Rubi Praveen, corroborated by the medical evidence and other documentary evidence, the evidence of PW-2 Suraj Bhan Singh, father of the victim and PW-3 Smt. Gayatri, paternal aunt of the victim. The medical evidence on record, fully corroborated the ocular version of prosecution witnesses.

12. Learned A.G.A. next submitted that the appellant does not deserve any leniency from this Court as he has been convicted for having committed a heinous crime of rape with a very small child barely, two and a half year old. Thus, sentence of life imprisonment awarded to him is in consonance with the gravity of the offense committed by him.

13. We have heard learned Amicus Curiae Ms. Abida Syed, learned A.G.A Sri J.K. Upadhaya and Sri Saghir Ahmad for the State and perused the entire record of the lower court.

14. The record reveals that the incident is alleged to have occurred in the evening of 13.02.2008 between 6.30 to 7.15. The written report of the occurrence (Ext. K-2) was lodged by P.W.-2 Suraj Bhan Singh, father of the victim at P.S. Indrapuram, District Ghaziabad on 14.02.2008 in which it was stated that on 13.02.2008 he was in his house with his deaf & dumb wife Manjesh and 2 ½ year old daughter Aanchal, at about 6.30 P.M. his neighbour appellant Anil Kumar who lives in a Jhuggi behind Indian School, came to his house and took away his daughter, Aanchal for making her to play and at about 7.15 p.m. when he brought his daughter back, she was crying and her private part was bleeding, then he and his sister Gayatri (PW-3) took the girl to Minakshi Hospital, Kaushambi where doctor observed that the girl has been raped and advised them to take the girl to Lal Bahadur Shastri Hospital, Delhi where the victim Aanchal was medically examined by P.W.-I Dr. Rubi Praveen on 13.02.2008, who had noted following injuries on her person:-

External Examinatioin

Female Child

Pulse Rate -76/ Min.

B.P.-- 90/50 MMT

No external mark of injury on any part of body.

Internal Examination

Mark of sexual assault on the private part of the body.

Bleeding from tear present.

No internal injury.

Legs and Thighs stained with blood.

Two vaginal smear slides and one vaginal swab slide, taken.

15. Ms. Abida Syed, learned Amicus Curiae appearing on behalf of the appellant has confined her submission only to one ground i.e. quantum of sentence, she expressly gave up her challenge to the finding of the court below so far as the conviction of the appellant under Section 376 I.P.C. is concerned. In other words, learned Amicus Curiae accepted the finding of the conviction on merits and she challenged the quantum of punishment (life imprisonment) awarded to the appellant.

16. According to learned Amicus Curiae, having regard to all circumstances which resulted in appellant's conviction and further keeping in view of the fact that appellant has already undergone over 9 years imprisonment till date and still continues to remain in jail, this court may reduce the award of the life imprisonment to a term of 10 years.

17. Learned Amicus Curiae submits that although Section 376(2) I.P.C. prescribes award to the imprisonment for a term which shall not be less than 10 years but which may extend to life imprisonment, the First proviso to section 376(2) I.P.C. empowers the Court, for adequate and special reasons to be recorded in the judgment, to impose a sentence of the imprisonment of either description for a term of less than 10 years.

18. According to learned Amicus Curiae, this is not a case where trial court should have awarded life imprisonment to the appellant. She urged that a term of 10 years would meet the ends of justice and this Court should allow this appeal to this extent by modifying the impugned judgment insofar as quantum of punishment is concerned and reduce the same from life imprisonment to a term of 10 years.

19. Sri Saghir Ahmad, learned A.G.A. appearing for the State while countering the submissions made by the learned Amicus Curiae for the appellant, submitted that having regard to the totality of the circumstances emerging from the evidence and the fact that the accused has committed rape with a minor girl of 2½ years, rigour of Section 376(2) of I.P.C. is clearly attracted to the fact and circumstances of the present case. The award of life imprisonment of the appellant is fully justified and calls for no interference by this Court.

20. Having heard learned counsel for the parties, and on perusal of the entire record of the case, we are inclined to allow this appeal in part upon finding some force in the submissions made by Ms. Abida Syed, learned Amicus Curiae.

21. Though the appellant has not made any attempt to assail the finding of his conviction on merits, yet with a view to satisfy ourselves as to whether the finding of the court below of conviction is legally sustainable or not we have perused the record and are satisfied that no case is made out to interfere in the finding of the court below on merits for the following reasons:-

Firstly, PW-2 Suraj Bhan Singh, father of the victim who lodged F.I.R. of the incident has fully supported the prosecution version of the first information report regarding the fact that he was in his house with his wife and daughter Aanchal (the victim), when his neighbour accused Anil Kumar came to his house on 13.02.2008 at 6.30 in the evening and took away his daughter on the pretext of making her play and when he brought his daughter back at about 7.15 p.m. she was crying and her private part was bleeding, then he and her sister Gayatri (PW-3) took the girl to hospital and got her medically examined then a written report (Ext. Ka-2) was lodged by him regarding the incident.

Secondly, PW-3 Gayatri paternal aunt, of the victim also supported the prosecution version that when the appellant Anil Kumar brought the victim back, she was crying and her private part was bleeding, seeing this she and her brother Suraj Bhan Singh (PW-2) took the girl to Meenakshi Hospital and on the advise of the doctor to Lal Bahadur Shastri Hospital where she was medically examined.

Thirdly, PW-1 Dr. Rubi Parveen who examined the victim deposed before the trial court that in the internal examination of the victim there were marks of the sexual assault on the private part of the victim and there was bleeding also. The witness also stated that legs and thighs of the victim were blood stained and the incident appeared to be fresh. In her cross examination Dr. Rubi Parveen clearly stated that nature of the injury shows that the injuries were caused by the sexual assault.

Fourthly, the oral account of the witnesses is corroborated by the medical report (Ext K-I).

22. We, therefore, uphold the finding of the conviction of the appellant under Section 376 I.P.C. recorded by the trial court.

23. Now, the question arises as to whether the appellant's sentence should be reduced and if yes, to what extent?

24. In order to appreciate the aforesaid submission made by learned Amicus Curiae Ms. Abida Syed appearing on behalf of 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 woman 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".

25. In the present case since the appellant has been convicted for having committed rape on a 2½ year old girl, Section 376(2)(f) shall be attracted while sentencing him. Section 376(2) of I.P.C. stipulates that where a person has been convicted for having committed rape with female belonging to any of the category enumerated under sub-section (2) of Section 376 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. The proviso of sub-section (2) of Section 376 of I.P.C. empowers the court for adequate and special reasons to be recorded in the judgment, to impose 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 the 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 woman 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 offense under Section 376(2) of I.P.C. and court can award the 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 the sentence of imprisonment of either description for a term of less than 10 years under Section 376(2) of I.P.C. for the reason to be recorded in the judgment.

26. Thus, the question which arises for consideration of this Court is that whether under the facts and circumstances of the case, the sentence of life imprisonment awarded to the appellant by the trial court after holding him guilty under Section 376 I.P.C. can be reduced by this Court in exercise of its power under the proviso of Section 376(2) of I.P.C.

27. In our view, this case does not fall in the category of a case so as to award the appellant the sentence for imprisonment of life.

28. The Apex Court in several cases which arose out of Section 304-B of I.P.C. r/w Section 498-A 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 but 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. Hon'ble Apex Court observed as under:-

"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."

29. 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 should be awarded in rare cases and not in every case.

30. After examining the evidence on record very carefully, we do not find that the present case is one of extreme brutality or any attending circumstance which may prevent this Court from altering the awarded sentence.

31. Record in question shows that on the date of incident, the age of accused-appellant according to the statement recorded under Section 313 Cr. P.C. on 01.07.2009, was 20 years. He was a young man, he does not have any criminal antecedent. Although he is in jail for the last more than 9 years, there is no complaint against his conduct. Record further shows that the appellant is so poor that he could not engage a counsel to get himself bailed out.

32. 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 be met, if the sentence of appellant is reduced from life imprisonment to that of Rigorous Imprisonment for 14 years. 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 Rigorous Imprisonment for 14 years. No interference is made with respect to the sentence of fine.

To this extent impugned judgment and order stands modified.

There shall, however, be no order as to costs.

Order Date :- 23.09.2017

T.S.