Tipu Sultan vs State Of U.P.
2019 Latest Caselaw 3207 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Case :- CRIMINAL APPEAL No. - 3658 of 2018
 
Appellant :- Tipu Sultan
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Wahaj Ahmad Siddiqui
 
Counsel for Respondent :- G.A.,Hiralal
 

 
Hon'ble Pradeep Kumar Srivastava, J.

1. This criminal appeal has been preferred against the judgment and order dated 05.6.2018 passed by Additional Sessions Judge, Court No. 1, Chandauli in S.T. No. 10 of 2013 (State Vs. Tipu Sultan), whereby the learned court below has convicted and sentenced the appellant for ten years rigorous imprisonment awarding fine of Rs.50,000/- under Section ¾ of Protection of Children From Sexual Offences Act, 2012, (hereinafter referred to as 'POCSO Act) and in making default in payment of fine to undergo further rigorous imprisonment of two years. The appellant has been further awarded one year rigorous imprisonment and Rs.1,000/- as fine under Section 506 IPC and in case of default to undergo one month further imprisonment with the direction that all sentences shall run concurrently.

2. Brief facts of the case are that the complainant Subhash lodged an FIR stating that the victim aged about 8 years who was studying in Class II in Primary Pathshala, Godhna, at the time of incident on 04.3.2013 when she was coming to her home, accused Tipu Sultan of the same village took her forcibly in Kabristan and attempted to commit rape on her. When she cried, keeping her alone, he ran away from there. The victim on coming back to her home told about the incident to the wife of the complainant who along with his wife went to the police station. On his written report, FIR was lodged against accused Tipu Sultan under Sections 376/511 IPC and section 3(1)(1) of SC/ST Act. The offence was investigated by the Investigating Officer who prepared site map, underwear of victim was taken in possession and the same was sent for chemical examination, victim was medically examined, her statement under Section 164 Cr.P.C. was also recorded and after taking evidence of other witnesses and completing the investigation, charge sheet was submitted by IO against the accused Tipu Sultan for the offence under Sections 376, 506 IPC, section ¾ POCSO Act and section 3(2)(5) of SC/ST Act.

3. The learned trial court framed charge against accused Tipu Sultan under sections 376, 506 IPC, section ¾ POCSO Act and Section 3(2)(5) of SC/ST Act. The accused denied the charges.

4. In support of prosecution, ten witnesses have been examined. P.W. 1, is the victim who has stated about the offence committed by accused Tipu Sultan, P.W.2-Subhash, P.W.3-Sarita, P.W.4-Mangal, P.W.5-Dr. Ashok Kumar, P.W.6-Dr. Tasmin Kaushar, P.W.7-Sudhakar Yadav, P.W.8-Shri Kant Tiwari, P.W.9-Lalbachchi and P.W.10-Dr. Kanhaiya, have also been examined.

5. Statement of accused-appellant was recorded under Section 313 Cr.P.C., who has stated that he has been falsely implicated and the witnesses have given false evidence on account of enmity. He has not given any evidence in defence.

6. Considering the evidence on record, learned trial court held the accused-appellant guilty for the offence under Section ¾ POCSO Act, Section 506 IPC and sentenced accordingly.

7. Aggrieved by the conviction and sentence, the accused-appellant has filed this appeal submitting that no independent witness was examined by the prosecution whereas it was a day light offence at a busy place and the victim was coming from school along with other children. The medical report has also not supported the prosecution version, all the witnesses are interested witnesses and close relatives, no sign of rape has been found in medical evidence. Offence was not proved by the prosecution. The impugned judgment is against the facts on record and against law, hence the judgment is liable to be set aside and the accused-appellant is entitled for acquittal.

8. It is pertinent to mention here that instead of pressing bail application, the learned counsel for the accused-appellant chose to argue the appeal on merits to which, the learned A.G.A. had no objection and, therefore, both argued the appeal on merit.

9. During the argument, at the very out set, learned counsel for the accused-appellant has confined his arguments to the quantum of sentence. It has been submitted from the side of the appellant that as per statement of accused-appellant under section 313 Cr.P.C., it appears that he has stated his age to be 25 years only. His statement was recorded on 16.2.2018, whereas the offence was committed on 04.3.2013. It goes to show that he was aged about 20 years at the time of offence. On this basis, learned counsel for the appellant has submitted that looking to his young age, a liberal view may be adopted by the Court. Learned counsel for the accused-appellant has further submitted that throughout trial and from the date of incident, the appellant remained in jail and as such, he has been in jail for the last more than six years. He has pointed out that Section ¾ of POCSO Act, provides for a minimum punishment of seven years. He has, therefore, requested that considering the period which he has already spent in jail, the sentence may be modified to the minimum sentence of seven years.

10. Section ¾ of POCSO Act reads as under:

Section 3: Penetrative sexual assault.- A person is said to commit 'penetrative sexual assault' if-

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

Section 4: Punishment for penetrative sexual assault.-Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.

11. In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:

"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by re-culturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."

12. In Sham Sunder vs Puran, (1990) 4 SCC 731, where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:

"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."

13. In State of MP vs Najab Khan, (2013) 9 SCC 509, the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the court observed as follows:

"In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. 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. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."

14. Earlier, "Proper Sentence" was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.

15. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463.

16. In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts, have grown and nurtured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.

17. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced.

18. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society cannot endure long and develop under serious threats of crime and disharmony. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. It is therefore, necessary to avoid undue leniency in imposition of sentence. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.

19. At the time of commission of offence, the convict was nearly 20 years in age and it cannot be said that there is no possibility of reform in him. The medical report of the victim shows that she did not sustain some alarming injury and there was no sign of physical violence on her. There is no criminal history as such of the appellant. The minimum punishment for the offence under section ¾ POCSO Act is seven years. The appellant has been in jail during trial and as such he remained in jail from the last more than 6 years. Considering the age of the appellant and the period he is continuously in jail, this Court is of the opinion that a liberal view should be taken on sentence by reducing the term of imprisonment to 7 years under section ¾ POCSO Act and for default in payment of fine the sentence will be 6 months rigorous imprisonment. Since the sentence under section 506 IPC has been directed to run concurrently, hence, there is no need to disturb the same.

20. The conviction is upheld. The sentence under section ¾ POCSO Act is modified to 7 years rigorous imprisonment and in default of payment of fine, 6 months additional rigorous imprisonment.

21. With the above modification, the appeal is disposed of finally.

22. Office is directed to send the record of the learned lower court along with a copy of this judgment for information and necessary compliance.

Dated: 19.04.2019

RCT/-