Eeda Khan vs State Of U.P.
2021 Latest Caselaw 11478 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 21
 

 
Case :- CRIMINAL APPEAL No. - 7945 of 2007
 

 
Appellant :- Eeda Khan
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Manoj Singh,Ajay Pal,Anvir Singh,Shashi Shekhar Mishra,Sukhvir Singh
 
Counsel for Respondent :- Govt. Advocate,Anup Upadhyay
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Oral Judgment by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the appellant- Eeda Khan has challenged the Judgment and order 16.11.2007 passed by Special Judge (SC/ST Act), Etah in Session Trial No.406 of 2004 (State v. Eeda Khan) arising out of Case Crime No.116 of 2004 under Sections 452, 376, 506 Indian Penal Code (hereinafter referred to as, ''IPC') and under Section 3(1)(xii) of SC/SCT Act, Police Station-Aliganj, District-Etah whereby the accused-appellant was convicted and sentenced to undergo rigorous imprisonment for a period of four years under Sections 452, 506 IPC and 3(1)(xii) SC/ST Act and life imprisonment under Section 376 IPC. All the sentences were directed to run concurently.

2. The brief facts as per written report dated 17.4.2004, submitted by complainant, father of the prosecutrix at Police Station Alignaj, District Etah are that today on 17.4.2004 at about 7.30 p.m. his daughter (prosecutrix) aged about two and half years was lying in the courtyard of his house and wife of his elder brother Anjali was cooking the food. His wife Reena had gone to the shop nearby his house. By that time accused Eeda Khan of his village entered his house and raped his daughter (prosecutrix). On listening to her cry, Anjali came out and saw that accused was raping his daughter. On her hue and cry, his wife Reena and elder brother Mahaveer came there and then accused ran away from the house. When they tried to catch him, he showed countrymade pistol and fled away by giving life threat to them. On the basis of aforesaid written report, a first information report was lodged at Police Station Aliganj, District Etah as Case Crime No.116 of 2004.

3. Investigation was taken up by C.O., Aliganj. Investigating Officer visited the spot, prepared site plan and he recorded the statements of witnesses under Section 161 of Cr.P.C.. Medical examination of prosecutrix was conducted and medical as well as supplementary report was prepared. Pathologist's reports were also made part of the case diary. After completing the investigation, charge sheet was submitted by Invesigating Officer agianst the accused-appellant. The case being exclucively triable by court of sessions was committed to Sessions Court by competent Magistrate for trial.

4. The learned trial court framed charges against the accused-appellant under Sections 452, 376, 506 IPC and Section 3(1)(xii) SC/ST Act. The accused denied the charges and claimed to be tried. The prosecution so as to bring home the charges, examined eight witnesses, who are as under:-

Anjali

P.W.1

2.

Mahavir

P.W.2

3.

Jaivir

P.W.3

4.

Reena

P.W.4

5.

Prosecutrix

P.W.5

6.

Rajveer Singh

P.W.6

7.

Dr. Surendar Patkar

P.W.7

8.

Dr. Sunita Sagar

P.W.8

5. In support of ocular version prosecution filed following documentary evidence and get it proved by leading evidence:

1.

F.I.R.

Ext. Ka-2

2.

Written report

Ext. Ka-1

3.

Injury Report (22.4.2004)

Ext. Ka-4

4.

Injury report (18.4.2004)

Ext. Ka-5

5.

Supplementary Report

Ext. Ka-6

6.

Site Plan with Index

Ext. Ka-7

6. After completion of prosecution evidence, statement of accused was recorded under Section 313 of Cr.P.C. in which he said that he was falsely implicated in this case. No witness was examined in defence.

7. Heard Shri Sukhvir Singh, learned Amicus Curie for the appellant; learned AGA for the State; and also perused the record.

8. Learned counsel for appellant first of all submitted that in this case all prosecution witnesses of fact have turned hostile and nobody has supported the prosecution version. Learned counsel submitted that as per prosecution case, Smt. Anjali wife of Mahavir, who is elder brother of complainant, said to be the eye witness of this occurrence. She has been produced by prosecution as PW-1, but she has not supported the case as alleged by the prosecution. Learned counsel has submitted that PW-1 Smt. Anjali has specifically denied the factum of rape by appellant rather she has specifically stated that prosecutrix was playing inside the house and fall on wood sticks due to which she sustained injuries on her private parts. Learned counsel for the appellant also submitted that rest of the witnesses of fact, namely, PW-2 Mahavir, PW-3 Jaivir and PW-4 Smt. Reena are not eye witnesses although they have also turned hostile. Hence no witness has supported the prosecution case but learned trial court has convicted the appellant on the basis of medical evidence only.

9. Learned AGA submitted that it is correct to say that prosecution witnesses of fact have turned hostile but the complainant PW-3 Jaivir is father of the prosecutrix and he has fully supported the prosecutrix case in his examination in chief. His testimony fully corroborates the medical evidence also. Learned trial court has rightly appreciated the evidence and convicted the accused appellant.

10. After some arguments, learned counsel for the appellant submitted that he is not pressing this appeal on its merit, but he prays only for reduction of the sentence as the sentence of life imprisonment awarded to the appellant by the trial court is very harsh. Learned counsel also submitted that appellant is languishing in jail for the last more than 14 years.

11. This case pertains to the offence of 'rape', defined under Section 375 IPC, which is quoted as under:

[375. Rape.- A man is said to commit "rape" if he-

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

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

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

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions :-

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind of intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.- With or without her consent, when she is under eighteen years of age.

Seventhly.- When she is unable to communicate consent.

Explanation 1.- For the purposes of this section, "vagina" shall also include labia majora.

Explnation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.- A medical procedure or intervention shall not constitute rape.

Excpetion 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

12. 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 reculturization. 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."

13. '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 proportionality'. 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.

14. 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. 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 could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.

15. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.

16. Learned trial court has made the evidence of PW-3 Jaivir and medical evidence as the basis of holding the appellant guilty. Perusal of record shows that PW-3 Jaivir has turned hostile after supporting the prosecution case while in examination in chief evidence of hostile witnesses cannot be discarded on this ground alone, but reliance can be placed on the testimony of hostile witnesses to the extent it supports the case of prosecution or defence.

17. Hon'ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat [1999 (8) SCC 624], as held that evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.

18. In Ramesh Harijan vs. State of U.P. [2012 (5) SCC 777], the Hon'ble Apex Court has also held that it is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether.

19. In State of U.P. vs. Ramesh Prasad Misra and another [1996 AIR (Supreme Court) 2766], the Hon'ble Apex Court held that evidence of a hostile witnesses would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. Thus, the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole, and relevant part thereof, which are admissible in law, can be used by prosecution or the defence.

20. It is very relevant to mention that occurrence of this case took place on 17.4.2004 and the FIR was lodged on 17.4.2004 at 8.45 p.m. and medical examination of the prosecutrix was conducted in hospital just after three hours. In medical examination hymen was fresh torn as evident from the medical report Ext. Ka-5. Dr. Sunita Sagar conducted the medical examination is produced before trial court as PW-8. She has stated in her statement that at the time of internal medical examination of prosecutrix hymen was found fresh torn and there was injury of the size of length of 1 c.m.. It was bleeding also. The age of prosecutrix was found three years. PW-8, Dr. Sunita Sagar has very clearly stated in her cross examination that such types of injuries can be sustained by falling on any blunt object which includes Lathi or Danda but cannot include wood sticks. She has expressed the possibility of rape in supplementary report. After perusal of medical evidence and other supporting evidence in this case, we are of the considered view that learned trial court has committed no error in appreciation of evidence. Hence we consider that the appeal is devoid of merit and is liable to be dismissed. Hence, the conviction of the appellant is upheld. But since the learned counsel for appellant has not pressed this appeal on merit, we threadbare considered the principles of proportionality regarding the imposition of sentence by learned trial court. It is submitted by learned counsel for the appellant that appellant is in jail for more than 14 years and he has been awarded punishment under Section 376 IPC for life imprisonment which is very harsh.

21. It is also submitted by learned counsel for appellant that appellant is in jail for more than 14 years and the age of appellant at the time of occurrence was nearly 26/27 years.

22. Learned AGA also admitted the fact that appellant is in jail for more than 14 years.

23. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.

24. It is admitted fact that appellant is in jail for more than 14 years. Having in view the offence committed by the appellant, life sentence seems to be very harsh. Hence keeping in view the harshness of sentence of life term awarded to the accused-appellant, we are of the considered view that it should be reduced to a fixed term sentence. Hence, we opine that ends of justice would be met if sentence of life imprisonment awarded for the offence under Section 376 of I.P.C. is reduced to the rigorous imprisonment of 15 years and fine Rs.10,000/-.

25. Hence, the sentence awarded to the appellant by the learned trial court for the offence under Section 376 IPC is reduced to 15 years rigorous imprisonment and fine Rs.10,000/-. The appellant shall undergo simple imprisonment for one year in case of default of fine. Amount of fine shall be paid to the prosecutrix as compensation. Conviction and sentence awarded for the rest of the offences shall remain intact.

26. Accordingly, the appeal is partly allowed with the modification of the sentence, as above.

(Ajai Tyagi, J.)       (Dr.Kaushal Jayendra Thaker, J.)
 
Order Date: 15.12.2021
 
A.N. Mishra