Firoze Alias Sanjay vs State Of U.P.
2021 Latest Caselaw 3159 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on : 20.01.2021
 
 Delivered on : 05.03.2021
 
Court No. - 87
 

 
	Case :- CRIMINAL APPEAL No. - 3 of 2016
 

 
	Appellant :- Firoze Alias Sanjay
 
	Respondent :- State of U.P.
 
	Counsel for Appellant :- Raj Kumar Ojha,Shami Ullah,Surendra Singh
 
	Counsel for Respondent :- G.A.
 

 
	Hon'ble Suresh Kumar Gupta,J.

1. This criminal appeal has been preferred by the appellant-Firoze @ Sanjay against the judgement and order dated 30.09.2015 passed by Sri Ashutosh, Fast Track Court No.2/Additional District and Session Judge, Ghaziabad in S.T. No.452 of 2012 (State of U.P. Vs. Firoze alias Sanjay), arising out of Case Crime No. 137 of 2012, under Sections 363, 376, 307 and 325 IPC, P.S. Kotwali, District Ghaziabad, and convicting the appellant under Sections 363 IPC, five years with rigorous imprisonment and fine of Rs. 5,000/-, convicting the appellant u/s 376 of IPC 12 years with rigorous imprisonment and fine of Rs.20,000/- and convicting the appellant u/s 307 of IPC 7 years with rigorous imprisonment and fine of Rs.10,000/-.

2. Brief facts of the case are that the father of the victim had lodged an FIR with the allegation that daughter of the first informant namely; Nagma aged about 8 years was missing on 05.02.2012 and she did not return to her home, then informant searched his daughter and during search, it has come in his knowledge that daughter of the first informant was reportedly found at Chipyana railway gate on 06.02.2012 with grievous injuries and someone admitted her in M.M.G. Hospital, Ghaziabad. Further allegation is that unknown person had hoodwinked his daughter on false promise. On this information, FIR was lodged against unknown person on 06.02.2012, which was registered as Case Crime No.137 of 2012, under Sections 363, 376, 307 and 325 I.P.C, Police Station Kotwali, District Ghaziabad.

3. After lodging of the FIR against unknown person, investigation of this case handed over to Manohar Lal, Investigating Officer and thereafter, on 08.02.2012, investigation of this case handed over to S.I. Hom Singh. During the investigation, the name of the accused Firoze was surfaced in the statement of the victim recorded under Section 161 Cr.P.C. Investigating Officer has also recorded the statement of the informant and informant has given the clothes of the victim to the Investigating Officer. Investigating Officer prepared Fard recovery of the clothes of the victim as well as the site plan. On 11.02.2012 accused was arrested and during investigation, medical report of the alleged victim was also collected. In the statement of the victim, she has stated that accused kidnapped her and committed rape upon her and due to forceful commission of rape, she got injury on her person, thereafter accused thrown the victim at railway line from Chipyana bridge.

4. After collection of the evidence, Investigating Officer has filed the charge sheet on 19.02.2012 against the accused under Sections 363, 376, 307 and 325 I.P.C. Learned A.C.J.M. Court No.7, Ghaziabad took the cognizance on 18.03.2012 and afterwards this case committed to the court of sessions, which was registered as S.T. No.451 of 2012, where the trial of this case has commenced with and charges were farmed against the accused. Charges read over to the accused and accused deny the same and claimed for trial.

5. In order to prove this case, prosecution examined eight witnesses. PW-1 father of the victim who proved the written report as Exhibit Ka-1, he narrated the entire version of the prosecution and submitted that her daughter told him the entire story of the incident; PW-2 is Kallan, who deposed before the court that he saw the victim on 06.02.2012 at 7.00 AM near Chipyana railway line; PW-3 Nawab another witness of fact; PW-4 Afsar is also examined as witness of fact, who deposed in his statement that on 05.02.2012 he saw the victim alongwith Firoze at Tempo Stand; PW-5 Nagma, who herself is the victim of this case, narrated the entire version of the prosecution and in her statement, she deposed when she was playing in her street, accused came there and asked her that your mother calling you and took away in his room and committed rape upon her and due to forceful sexual assault blood oozed from her private part and her cloths were soaked with blood. On assurance of treatment he took her but did not admit her for treatment in any hospital. Thereafter, accused thrown the victim at railway line from Chipyana bridge, due to which she suffered grievous injuries and she also supported the statement recorded under Section 164 Cr.P.C. and proved the statement under Section 164 Cr.P.C. as Exhibit Ka-2; PW-6 Dr. Sushma Chandra, who medically examined the victim and clearly stated when she examined the victim, she was unable to walk and sexual character was not developed with her at the time of examination. In physical examination, there was a swelling on her left thigh and in the internal examination perineum vagina hymen was found torn, no fresh bleeding seen from wound but clotted blood was present. Vaginal swab taken by swab stick and two slides prepared and sent to pathology M.M.G. Hospital for spermatozoa. She advised the police to preserve clothes for forensic examination. Victim referred to M.M.G. Hospital for treatment of orthopedic injury. Medical examination report prepared by PW-6 and proved the medical examination of victim as exhibit Ka-3. It is also stated by the doctor that in the supplementary report of victim, no spermatozoa seen in supplied smear. This witness opines that spermatozoa was not found in slide of smear, so it was not said definitely that physical intercourse done in this matter. Supplementary report proved by P.W.-6 as exhibit Ka-4. P.W.-7 S.I. Manohar Lal, Investigating Officer. P.W.-8 S.I. Hom Singh, he deposed in his statement that he prepared the site plan on the pointing out of P.W.-2 Kallan, site plan proved as exhibit Ka-5. It is also submitted by the Investigating Officer that after performing the formalities of the investigation, he filed charge-sheet against the accused, which is proved as exhibit Ka-6. He also proved the recovery memo of clothes of the victim as exhibit Ka-7 and forensic report of cloth of the victim as exhibit Ka-8. Chick FIR of Case Crime No.137 of 2012 proved as exhibit Ka-9 and G.D. entry of this case proved as exhibit Ka-10. Thus, the prosecution relied on the oral statement of P.W.1 to P.W.6 and documentary evidence as exhibit Ka-1 to Ka-10.

6. After closure of prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C., in which he stated that he has falsely been implicated in this case due to enmity with the father of the victim that's why he stated against him. No defence witness examined on behalf of defence side.

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 before this Court.

9. I have heard Sri Raj Kumar Ojha, learned counsel for the appellant, learned AGA for the State and perused the material available on 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 appellant-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 11.02.2012 for more than nine years. The occurrence is said to have taken place on 05.02.2012. 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 12 years rigorous imprisonment of the accused under Section 376 IPC is reduced to 10 years rigorous imprisonment and maintaining the sentence awarded under Sections 363 and 307 I.PC., 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, 376 and 307 I.P.C., is confirmed but the rigorous imprisonment of 12 years under Sections 376 IPC is reduced to 10 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 :- 05.03.2021

P.S.Parihar