Gautam vs State Of U.P.
2021 Latest Caselaw 3098 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 19.2.2021
 
Delivered on 2.3.2021
 

 
Court No. - 87
 

 
Case :- CRIMINAL APPEAL No. - 6093 of 2017
 

 
Appellant :- Gautam
 
Respondent :- State of U.P.
 
Counsel for Appellant :- R.K. Sinha,R. K. Mishra
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

1. This appeal has been preferred by appellant against the judgement and order dated 30.8.2017 passed by Additional Sessions Judge (Fast Track Court), Court No. 2, Bulandshahar in Sessions Trial No. 704 of 2012 (State Vs. Gautam) in Case Crime No. 306 of 2012, under section 376 I.P.C., Police Station Kotwali Dehat, District Bulandshahar by which appellant was convicted under section 376 I.P.C. and awarded 10 years rigorous imprisonment and Rs. 10,000/- fine in case default of payment of fine he will have to undergo additional imprisonment for three months.

2. As per version of first informant report, father of victim namely, Bhumesh, has lodged an F.I.R. against the appellant namely, Gautam, with allegation that on 25.5.2012 at about 2.30 p.m. when his daughter namely, Shivani, aged about 7 years, was playing near the hand-pump then at that time appellant has taken her away near trees of dates and forcefully raped her. When victim has screamed, brother of the first informant namely, Pappu, reached on the spot and saw the alleged incident. After seeing Pappu, appellant absconded from the place of occurrence.

3. On the basis of above submission, written report of the first informant, first information report was lodged on same day i.e. 25.5.2012 at 16.10 p.m. at police station Kotwali Dehat, Bulandshahar as Case Crime No. 306 of 2012 under section 376 I.P.C.

4. After lodging the F.I.R. under section 376 I.P.C., investigation of this case was entrusted to the investigating officer, Sanjay Kumar Pandey. During investigation, after recording the statement of Constable / Clerk, Investigating Officer has recorded statement of the first informant, Bhumesh, and victim, Shivani, and also entered into gist of medical examination of victim in Case Diary and on pointing out of witness, Pappu, prepared the site plan of the alleged incident. The investigating officer has arrested the appellant / accused on 26.5.2012 and after completing formalities of investigation, charge-sheet was filed on 6.6.2012 under section 376 I.P.C. before the Additional Chief Judicial Magistrate, Bulandshahar where the Additional Chief Judicial Magistrate has taken cognizance and case was committed to sessions court for trial as Sessions Trial No. 704 of 2012. This sessions trial case was transferred to learned Additional Sessions Judge, Court No. 15 for trial. Charge was framed against the appellant on 14.9.2012 under section 376 I.P.C. After framing of charge, the same was read over to the appellant and appellant denied the charge levelled against him by the trial court and claim to be tried.

5. In order to prove its case, prosecution has examined seven witnesses:-

i. PW-1, Bhumesh Kumar, father of victim has stated before the court that the appellant has committed forcefully rape upon her daughter and he proved the F.I.R. as Ex. Ka-1.

ii. PW-2 / Shivani is the victim of this case. For testing her competency, trial court asked some questions to her and after satisfying with the same, victim was examined before the court. She has stated in her statement that appellant has committed rape upon her and when she screamed, her uncle, Pappu, reached there and saw the alleged incident. Due to sexual assault blood was oozing out from internal part of her body.

iii. PW-3 / Dr. Hempratibha Sharma was examined before the court on 19.9.2015. She deposed that she has medically examined the victim on 25.5.2012 at 6.00 P.M. At the time of examination, victim, was fully conscious but there was no internal injury on any part of her body except bleeding which was continued from her private part. Hymen was torn and fresh blood was present and vaginal smear taken by doctor for confirmation of spermatozoa and she was being referred to the Chief Medical Officer for age determination. Due to internal bleeding, victim, was referred to medical college for further treatment. PW-3 has proved the medical report as Ex. Ka-2. On the basis of pathology report and X-ray report supplementary report was also prepared by this witness. As per supplementary report radiological age of victim was about 7 years and as per pathology report no spermatozoa dead or alive found on the vaginal smear of the victim. On the basis of these two reports no definite opinion about rape can be given. Supplementary report is also proved by PW-3 as Ex. Ka-3.

iv. PW-4 / Sanjay Kumar Pandey, was examined on 18.1.2016, who has investigated this case and prove the site plan as Ex. Ka-4 and during investigation he has taken blood infested pajami of victim and prepared the recovery memo and prove the same as Ex. Ka-5. After completion of the investigation, charge-sheet was filed by the investigating officer before the court as Ex. Ka-6.

v. PW-5 / Dr. Aruna Verma was examined on 25.1.2016, who has submitted original report of victim which is proved by her as Ex. Ka-6-A and Ex. Ka-7 and also proved the original report of the C.M.O. as Ex. Ka-8.

vi. PW-6 / Dr. Dinesh Kumar was examined on 19.3.2016 and he prove the x-ray report of the victim as Ex. Ka-9 and age determination report of C.M.O as Ex. Ka-10.

vii. PW-7 / C.C. 684 Mohd. Abbas was examined on 12.4.2016 and he deposed before that he prepared Chek Report No. 83/12 and prove the same as Ex. Ka-11 and also prepared the G.D. Entry and prove the same as Ex. Ka-12.

6. Apart from these witnesses two more witnesses have been examined as court witness.

i. CW-1 / Smt. Bala, was examined on 25.2.2013 and she deposed that appellant, Gautam, was her son and at the time of alleged incident, he was minor.

ii. CW-2 / Bhagwati Sharma, was examined on 15.4.2013, Head Principal of Primary Pathashala, No. 2, Village Dariyapur deposed that as per S.R. Report of appellant, his date of birth is 7.9.1998. So as per school certificate, age of victim as per alleged date of incident was about 13 years old.

7. Thus the prosecution relies on the oral evidence of PW-1 to PW-8 and documentary evidence as Ex. Ka-1 to Ka-12.

8. After completion of prosecution evidence, statement of accused-appellant was recorded under section 313 Cr.P.C. in which he deposed that false F.I.R. was lodged against him and victim as well as the first informant has falsely deposed against him before the court and he was falsely implicated in this case by the first informant due to village partibandi and enmity.

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

10. Feeling aggrieved and unsatisfied by the judgement and order dated 30.8.2017 of trial court, the accused-appellant has preferred this appeal.

11. I have heard Sri R. K. Sinha, learned counsel for the appellant, the learned A.G.A. and perused the record.

12. Learned counsel for the appellant submits that there is contradiction in the first information report and statements of PW-1 and PW-2. In the F.I.R., victim has mentioned that she was playing near the hand-pamp but again victim has stated in her statement that she was playing on the boundary of Ansar. Learned counsel further submits that due to village partibandi, appellant has been falsely implicated in the abovementioned case. Learned trial court has convicted the appellant without appreciating the evidence available on record, so impugned judgment and order dated 30.8.2017, passed by trial court is perverse and liable to be set aside. Lastly, counsel for the appellant submits that he only wants to advance his submission only on quantum of sentence imposed upon appellant-accused.

13. Learned AGA on behalf of the State supported the impugned judgment and order of learned trial court and submitted that victim is a minor girl and act of the appellant is heinous in nature and trial court after appreciating all the evidence available on record, rightly convicted the appellant for the offence under section 376 I.P.C., The appellant deserves no leniency, hence appeal has no force and is liable to be dismissed.

14. Not pressing the criminal appeal after the conviction of appellant-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.

15. 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."

16. 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.

17. 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.

18. 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.

19. 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."

20. 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."

21. 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."

22. 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....."

23. It is not disputed that the accused is continuously in jail since 26.5.2012 and the occurrence is said to have taken place on 25.5.2012. Appellant is languishing in jail about 9 years. Keeping the accused in jail since long would not serve any purpose.

24. Thus, considering the law laid down by the Hon'ble Apex Court in the above mentioned case and the facts and circumstances of this case, in my opinion, that the appellant-accused serve out about 9 years rigorous imprisonment as awarded by sessions court so end of justice would be met if the imprisonment of the appellant-accused under Section 376 IPC for period has already been undergone in jail without reducing the amount of fine imposed by the trial Court upon the accused-appellant.

25. In view of the aforesaid reasons, the appeal is partly allowed. The conviction of appellant-accused under section 376 I.P.C. is confirmed but the rigorous imprisonment of 10 years reduced to period already undergone by the appellant-accused in jail but fine clause shall be unaltered.

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

Order Date:-2nd March, 2021

Vibha Singh