Adil vs State Of U.P.
2021 Latest Caselaw 1292 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on : 25.11.2020
 
Delivered on : 21.01.2021
 

 
Court No. - 87
 

 
Case :- CRIMINAL APPEAL No. - 1042 of 2019
 

 
Appellant :- Adil
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Adesh Kumar,Vivek Kumar Srivastava
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

1. This appeal has been preferred by the appellant-Adil against the judgement and order dated 11.12.2018 passed by Special Judge, POCSO Act/8th Additional Sessions Judge, Meerut in POCSO case No. 38 of 2015 (State Vs. Adil) arising out of case crime No. 858 of 2014, under Section 363, 366, 376 IPC & ¾ POCSO Act, P.S. Kharkhauda, District Meerut, and convicting the appellant under Sections 363 IPC, five years with rigorous imprisonment and fine of Rs. 5,000/- in case default of payment of fine he will have to undergo additional imprisonment for six months, convicting the appellant u/s 366 of IPC seven years with rigorous imprisonment and fine of Rs. 5,000/- in case default of payment of fine he will have to under go additional imprisonment for six months, convicting the appellant u/s 376 of IPC ten years with rigorous imprisonment and fine of Rs. 5,000/- in case default of payment of fine he will have to under go additional imprisonment for six months and convicting the appellant u/s ¾ POCSO Act ten years with rigorous imprisonment and fine of Rs. 5,000/- in case default of payment of fine he will have to under go additional imprisonment for six months.

2. Brief facts of the case is that Mohd. Kaushar-informant who is the father of the victim lodged the first information report against the appellant that on 12.12.2014 at about 1:30 PM, the daughter of the informant namely Aksa Parveen went at shop but she did not return till 4:00 PM then informant searched and during search, it has come to know that the appellant enticed away to his daughter. With these allegations, FIR was lodged as case crime No. 858 of 2014, under Section 363, 366 IPC and ¾ POCSO Act at P.S. Kharkhauda, District Meerut on the same day.

3. After lodging the FIR under Section 363, 366 IPC and ¾ POCSO Act, case was handed over to the Investigating Officer, S.I. Satendra Singh and during investigation, Investigating Officer recovered the victim on 1.12.2014 and the statement of the victim was recorded under Section 161 Cr.P.C. in which she stated that the appellant eloped her by administering intoxicated cold drink and took her away to Jaipur where the appellant committed rape upon her in hotel and when the appellant returned back from Jaipur Hotel for Meerut then victim as well as appellant were recovered from Jubaida Masjid. After recording 161 Cr.P.C. statement of the victim and statement under Section 164 Cr.P.C. was also recorded, in which she supported the allegations of the FIR.

4. In order to prove its case, prosecution examined eight witnesses. PW-1 father of the victim who proved the written report as exhibit Ka 1; PW-2 is the victim, she narrated the entire version and proved statement recorded under Section 164 Cr.P.C. as Exhibit Ka 2; PW-3 Shabhnoor is the mother of the victim; PW-4 Ruksana; PW-5 Constable Jaypal Singh who proved the Chik FIR as Exhibit Ka 3 and G.D. as Exhibit Ka 4; PW-6 Sub Inspector Satendra Singh who proved the site plan as Exhibit Ka 4 and chargesheet as Exhibit Ka 5; PW-7 Dr. Kiran Singh (C.M.O.) who conducted the medical examination of the victim, in her statement, she stated that no external injuries found of the body of the victim, hymn old torned, vaginal smear slide prepared and sent to the pathological examination, proved the medical report as exhibit Ka-6 and Ka-7, PW-8 Dr. Pramila Gaud (radiologist), she stated before the Court that in microscopic examination of the smear, spermatozoa present in vaginal smear slide who proved the pathological report as Exhibit Ka-8. Thus, the prosecution relies on oral evidence of PW-1 to PW-8 and documentary evidence as exhibit Ka-1 to Ka-8.

5. After close of prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C., in which, he stated that the informant borrowed Rs. 80,000/- from the appellant for purchasing a plot which was not returned by the informant after repeated demand. When the appellant strongly demanded his money, he was falsely implicated. In his defence, defence witness Sabir was examined as DW-1.

6. D.W.1 Sabir in his statement stated that complainant took the loan of Rs. 80,000/- from the appellant for purchasing a plot and when the appellant pressurize to return the money then he extended threat to the appellant to implicate him in false case of rape.

7. Learned trial court after hearing the prosecution as well as defence side convicted the accused-appellant as aforesaid.

8. Feeling aggrieved and unsatisfied by the judgement of the trial court, the accused-appellant has preferred this appeal.

9. I have heard Sri Adesh Kumar learned counsel for the appellant, learned AGA and perused the record.

10. Learned AGA on behalf of the State supported the impugned judgment of learned lower Court and submitted that the appeal has no force and is liable to be dismissed. However, learned counsel for appellant, stated at the Bar that he does not want to argue the appeal on merits. He only wants to advance his submission on the quantum of sentence imposed upon the accused.

11. Not pressing the criminal appeal after the conviction of the accused by the court below is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.

12. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463, the Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:

"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."

13. In the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.

14. Argument in the aforesaid case was that awarding of the maximum sentence of life imprisonment to the accused who is heading towards his old age is too harsh a sentence because the accused does not fall in the category of "rare cases" and the ends of justice could be met if the sentence of accused is reduced from life imprisonment to the period already undergone.

15. Appropriate sentence is the cry of the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

16. This position was reiterated by a three-Judge Bench of the Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein it was observed as follows:-

"99.....The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.

The court must not only keep in view the rights of the victim of the crime but the society at large also while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."

17. In Jameel vs. State of Uttar Pradesh (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus:

"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 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.

It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

18. In Guru Basavaraj @ Benne Settapa vs. State of Karnataka, (2012) 8 SCC 734, while discussing the concept of appropriate sentence, this Court expressed that:

"It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."

19. In Gopal Singh vs. State of Uttarakhand JT 2013 (3) SC 444 held as under:-

"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence....."

20. It is not disputed that the accused is continuously in jail from 14.12.2014 for more than six years. The occurrence is said to have taken place on 12.12.2014. Keeping the accused in jail since long would not serve any purpose.

21. Thus, considering the law laid down by the Hon'ble Apex Court in the above mentioned case and the facts and circumstances of the case, in my opinion, the end of justice would be met if the custodial of 10 years rigorous imprisonment of the accused under Section 376 IPC is reduced to seven years rigorous imprisonment without reducing the amount of fine imposed by the trial Court upon the accused appellant.

22. In view of the aforesaid reasons, the appeal is partly allowed. The conviction of appellant under Section 363, 366, 376 and ¾ POCSO Act, is confirmed but the rigorous imprisonment of 10 years under Sections 376 IPC and ¾ POCSO Act is reduced to seven years rigorous imprisonment with all remissions. All the sentences run concurrently but fine clause shall be unaltered.

23. Record of this case be transmitted to the trial court for necessary compliance.

Order Date :- 21.1.2021

Ankita