Pawan Kumar Mishra vs State Of U.P.
2021 Latest Caselaw 817 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A F R
 

 
[RESERVED]
 
On  8.1.2021
 
Delivered on 13.1.2021
 
Court No. 47 
 

 
Case :- CRIMINAL APPEAL No. - 1615 of 2006
 
Appellant :- Pawan Kumar Mishra
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sarvesh,Suneel Kumar Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Ramesh Sinha, J.

Hon'ble Subhash Chand,J.

(Per Hon'ble Subhash Chand,J.)

1. The instant Criminal Appeal has been preferred on behalf of the appellant-convict Pawan Kumar Mishra against the State of U.P., against the judgment and order dated 18.2.2006 passed by the Additional Sessions Judge, Court No. 3, Fatehpur in Sessions Trial No. 251 of 2005 (State Vs. Pawan Kumar Mishra) arising out of Case Crime No. 75 of 2004 under Sections 376 and 506 I.P.C., P.S. Jafarganj, District Fatehpur whereby the appellant had been convicted and sentenced to life imprisonment and a fine of Rs. 10,000/- was also ordered to undergo further imprisonment of two years in default of payment of fine and further convicted and sentenced for the offence under section 506 I.P.C with imprisonment of 3 years and a fine of Rs. 1,000/- was also ordered to to undergo further imprisonment of two months in default of payment of fine. All the sentences were to run concurrently.

2. The facts giving rise to this appeal in brief are that the informant Virendra Kumar, son of Jagdev Prasad Agnihotri, resident of village Kamasin, P.S. Jafarganj, District Fatehpur lodged F.I.R. with the concerned police station with these allegations that on 24.10.2004 at 5 p.m., his daughter Luxmi Devi 6 years old was playing under the Plum Tree nearby the house of Uma Shankar, son of Mahabir Pandey and was plucking plums; at the same time Pawan Kumar Mishra, son of Devi Prasad Mishra, 22 years old of the village attracted there and enticed away his daughter in a dilapidated house of Uma Shankar and committed rape to her whereby the blood was also oozing and his weeping daughter came to the house and told in regard to woe-tale to her mother. On this information he also reached to the place of occurrence and found blood there. There may, persons of the village also witnessed the place of occurrence along with him. His daughter was also criminally intimidated by Pawan Kumar Mishra if she disclosed in regard to occurrence. He and persons of the village made search of Pawan Kumar Mishra but he fled away. On this report the Case Crime No. 75 of 2004 was registered against Pawan Kumar Mishra under Section 376 and 506 I.P.C., with the police station concerned.

3. The Investigating Officer after concluding the investigation filed the charge sheet against the accused Pawan Kumar Misrha under Sections 376 and 506 IPC before the court of Chief Judicial Magistrate, Fatehpur who after taking cognizance of the same committed the case to the Court of Sessions for trial which was in turn transferred to the court of Additional Sessions Judge, Court No. 3, Fatehpur.

4. The trial court framed the charge against the accused under sections 376 and 506 I.P.C., and the charge was read over and explained to the accused which was denied by him and claimed for trial.

5. On behalf of prosecution to prove the charge against the accused in documentary evidence filed the written information Exhibit Ka-1 Radiological examination report in regard to age of victim, Exhibit Ka-2, Medical Examination report of victim, Exhibit Ka-3 and Ka-4, Chik F.I.R. Exhibit Ka-5, G.D. Entry, Exhibit Ka-6, Site plan of the place of occurrence Exhibit Ka-7 charge sheet Exhibit Ka-8, Recovery Memo in regard to blood stained clay and plain clay, Exhibit Ka-9, Recovery Memo in regard to taking in possession blood stained panty of the victim, Exhibit Ka-10 and in oral evidence examined PW-1 Virendra Kumar Agnihotri-informant, PW-2 Luxmi Devi, PW-3 Sarojani Devi, PW-4 Dr. M.C. Tiwari, PW-5 Doctor B.K. Sharma, PW-6 Doctor Sudha Kashmiri, PW-7 Head Constable Ishwar Chand and PW-8, Sub-Inspector Sheshmani.

6. The statement of accused under section 313 Cr.P.C., was recorded in which he denied the incriminating circumstances in the evidence against him. No defence evidence was filed on behalf of the accused.

7. The learned trial court after hearing the contentions of the rival parties convicted the accused for the offence under section 376 and 506 IPC and sentenced as said above vide judgment dated 18.2.2006.

8. Aggrieved by the impugned judgment dated 18.2.2006 this criminal appeal has been preferred on behalf of the appellant-convict Pawan Kumar Mishra on the ground that the conviction of the appellant is against the weight of the evidence on record. The sentence awarded to the appellant is very severe. In Medical Examination Report neither dead or alive supurmetoza was found and there was no injury in the private part of the victim. There was also dispute of the property between informant and the appellant's father. Accordingly, prayed to allow the appeal and set-aside the conviction and sentence by the trial court.

9. We have heard Sri Suneel Kumar Mishra, learned counsel for the appellant, Sri Gaurav Pratap Singh, learned A.G.A., and perused the materials brought on record.

10. Learned counsel for the appellant has submitted that this appeal has been preferred challenging the order of conviction and sentence on merits; but he is arguing this appeal only on reduction of quantum of sentence. The appellant-convict has served out sentence about 16 years. The appellant was 22 years of old at time of occurrence and keeping in view the future prospect of being reformed his sentence may be reduced.

11. Learned A.G.A., vehemently opposed the contentions made on behalf of learned counsel for the appellant and contended that the victim was below 12 years of age at the time of occurrence and keeping in view the nature of the offence which is social stigma contended to uphold the sentence passed by the trial court and to dismiss this appeal.

12. Though this appeal has been preferred challenging the impugned judgment on merits, yet the learned counsel for the appellant argued only on the point of reduction of quantum of sentence. However, keeping in view the grounds taken in this appeal, it will be appropriate to decide this appeal on merits also.

13. On behalf of the prosecution to prove the prosecution examined PW-2 Luxmi who is victim of the occurrence. As per prosecution case victim was 6 years old at the time of occurrence. During her examination she has stated that at the time of occurrence she was plucking plum. Accused was also identified by her during her examination before the court and she further stated that accused Pawan Kumar Mishra present in the court had committed rape to her. The blood was oozing from her private parts. She reached her house and narrated the whole episode to her mother.

14. PW-3 Sarojani Devi is the mother of the victim. She also during her examination corroborated the statement of victim. PW-1 Virendra Kumar Agnihotri, the father of the victim is also the informant proved the written information Exhibit Ka-1 and has stated that on coming to know from her daughter in regard to occurrence he immediately reached to the place of occurrence and saw blood there and also corroborated the statement of victim in regard to occurrence as was told by victim to her parents respectively.

15. This ocular evidence adduced on behalf of the prosecution was also corroborated with medical evidence. PW-4 Doctor M.C. Tiwari, Radiologist proved the radio-logical report Exhibit Ka-2 in regard to ossification test pertaining to age of victim in which age of victim was opined to be 9 years. PW-5 Doctor B.K. Sharma proved the medical examination and referal slip of the victim's examination by lady doctor, Exhibit Ka-3. During examination he found the number of intact RBC Cells and occasional pus cells present in the vagina. PW-6 Doctor Sudha Kashimiri proved the medical examination report of the victim Exhibit Ka-4 and found the breast not developed, blood dried discharge in the valva was seen and also stated that this bloody dried discharge in the valva can be caused due to insertion of hard object, it may be by sexual intercourse also. Therefore, the medical evidence also corroborates the ocular evidence in regard to commission of the rape with the victim.

16. Moreover, as corroborative evidence on behalf of the prosecution also examined PW-8, Investigating Officer Sheshmani who after recording statement of witness and concluding the evidence filed charge sheet. This witness also proved the blood stained Panty of victim which was taken in possession and the recovery memo of the same Exhibit Ka-10. The blood stained clay and plain clay was also taken in possession by the I.O., from the place of occurrence. The recovery memo of the same Exhibit Ka-9 is also proved by the witness.

17. The statement of prosecutrix who is victim of the occurrence is found trust worthy. The statement of PW-3 Sarojani Devi and PW-1 Virendra Kumar who are parents of the victim though are not the eye-witness, yet their evidence is admissible under Section 6 of the Evidence Act.

18. The Hon'ble Apex Court in State of U.P. Vs. Ramesh (2001) 2 SCC 493 the res gestate is an exception to the general rule of hearsay evidence although not in issue directly, yet is so connected with the fact in issue as to form the part of the same transaction. PW-1 eye-witness immediately after the occurrence told to PW-2 in regard to occurrence. The statement of PW-10 is indicating that PW-2 had come to him and told in regard to occurrence is admissible.

19. The Hon'ble Apex Court held in Mukhtiyar Singh Vs. State of Punjab AIR 2009 SC 1854 that the evidence of witnesses who came to the scene of occurrence immediately after the occurrence, though he did not saw the accused persons causing occurrence, but come to know about the same from the eye-witness. Although the information was hearsay yet same corroborated the substantive evidence of eye-witness; therefore was admissible.

20. In view of the above case laws of the Hon'ble Apex Court the statement of PW-1 Virendra Kumar Agnihotri and PW-3 Sarojani Devi are admissible in evidence which corroborates the substantive evidence of the testimony of PW-2 Luxmi Devi.

21. The Hon'ble Apex Court also held in S. Ram Krishna Vs. State represented by PP, Andhra Pradesh Hyderabad (2008) 8 SCC 617 the testimony of prosecutrix of sex offence can not be put at par that of accomplice and the same can be relied upon by the court unless and until she does not have any strong motive to false involvement of the accused.

22. Moreover, the criminally intimidation made by the accused is also proved from the statement of PW-2 victim and the same is also corroborated with the statement of PW-2 Virendra Kumar Agnihotri and PW-3 Luxmi.

23. Therefore, the conviction of the accused for the charge under section 376 and 506 I.P.C., is proved beyond the reasonable doubt and the same is affirmed in view of the appreciation of the evidence.

24. The next question which is to be considered by us is in regard to the reduction of quantum of sentence on which learned counsel for the appellant argued that the sentence awarded to the convict is too severe. The convict was 22 years of age at the time of occurrence and has been languishing in Jail for 16 years and further submitted to reduce the sentence of the convict to the extent which has been undergone by him.

25. The court while awarding sentence would take recourse to the principle of deterrence or reform or to invoke the doctrine of proportionality which depends upon the facts and circumstances of each case. Certain offences touch our social fabric. The sentence, which is the ultimate goal of justice delivery system, the purpose of imposing the same must be kept in mind.

26. In the present case the victim was 7 years of old and the accused/convict was 22 years old at time of occurrence. The convict being 22 years old at the time of occurrence was quite mature. His act of committing rape to 7 years baby is abhorrent.

27. The objective of criminal law in imposing appropriate sentence must be judged commensurate with nature of gravity of the crime and the manner in which the crime is committed. The twin objective of sentencing policy is deterrence or correction depends upon the facts and circumstances of each case to meet the ends of justice. The court should take into consideration the nature of the offence, gravity of the crime and other attending circumstances. The offence of rape is a social stigma and rape with a tender age of child is very heinous crime than that of other adult female.

28. The Hon'ble Apex Court held in State of M.P. Vs. Bala @ Bala Ram AIR 2005 SC 3567 rape is a heinous crime which is against the society and against the human dignity, which reduces a man to an animal. Such an offence once it is proved, lightly is itself an affront to the society. For reduction of the sentence, the reasons must be relevant to exercise the discretion by the court. The age of the offenders by itself is not the adequate reason. Long pendency of trial also can not be adequate reason. Under the guise of reform theory the court can not forget their duty to the society and to the victim as well. The court has to consider the plight of the victim and the social stigma that may follow the victim to grave and particularly ruins to the prospects of normal life of the victim.

29. In State of Karnataka Vs. Raju (2007) 11 SCC 490 Honb'ble the Apex Court held that the physical scar may heal-up but the mental scar will always remain. When a women is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. The judicial response to human rights can not be blunted by legal jugglery.

30. Since the rape was committed to a baby being below the age of 12 years of age in the year 2004, in view of section 376(2) (F) of IPC prior substituted by Act 13 of 2013, section 9, for section 376 (w.r.e.f.3.2.2013) the punishment for the same is rigorous imprisonment for a term which shall not be less than 10 years but it may be for life and shall also liable to fine.

Provided that the court may for adequate special reasons to be mentioned in the judgment impose a sentence of imprisonment of either description for a term less than 10 years.

31. The learned trial court while sentencing the convict with life imprisonment for the charge under section 376 IPC has recorded a finding that the victim was of a tender age and the accused who also lived in the same vicinity and was also uncle in relation committed rape to the child of 7 years innocent girl was heinous and affront to the society.

32. Keeping in view the aforesaid case law of Hon'ble Apex Court and the facts and circumstances of this case, tender age of the victim and matured age of accused, the sentence awarded to the convict by the trial court does not bear any infirmity and same needs no interference.

33. Accordingly, this criminal appeal deserves to be dismissed.

34. This criminal appeal is hereby dismissed. The judgment of conviction and the sentence passed by the trial court in Sessions Trial No. 251 of 2005 (State Vs. Pawan Kumar Mishra) arising out of Case Crime No. 75 of 2004 under Sections 376 and 506 I.P.C., P.S. Jafarganj, District Fatehpur is confirmed. The Appellant/ convict shall serve out sentence as awarded by the trial court.

35. Let the copy of this judgment/order be certified to the court concerned for necessary information and follow up action.

36. The party shall file computed generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked.

37. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

(Subhash Chand, J.)    (Ramesh Sinha,J.) 
 
Dated:13.1.2021
 
SKS