Allahabad High Court
Mohsin And Another vs State Of U.P. on 23 November, 2021
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 45
Case :- CRIMINAL APPEAL No. - 2978 of 2010
Appellant :- Mohsin And Another
Respondent :- State of U.P.
Counsel for Appellant :- S.K. Dubey,Deepak Kumar Pandey,Pankaj Kushwaha,Pankaj Kumar Kushwaha,Rajiv Lochan Shukla,S.C.Kushwaha,Vinod Tripathi
Counsel for Respondent :- Govt. Advocate
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
1. By way of this appeal, the appellants have challenged the Judgment and order 20.4.2010 passed by court of Additional District and Sessions Judge/FTC, Court No.2, Ghaziabad in Session Trial No.393 of 2009 arising out of Case Crime No.1310 of 2008 under Sections 354, 376 Indian Penal Code, Police Station-Sahibabad, District-Ghaziabad whereby the accused-appellants were convicted under Section 376 IPC and sentenced to imprisonment for life with fine of Rs.25,000/- each and Section 354 of IPC convicted for two years rigorous imprisonment and fine of Rs.3000/-.
2. The brief facts of this case are that complainant Munni Devi, mother of the prosecutrix, submitted a written report at Police Station Sahibabad, District Ghaziabad, Ex.Ka-2 stating that her daughter (prosecutrix) was going to Happy Public School, Rajendra Nagar for bringing her cousin sister on 23.8.2008 at about 1.30 p.m. On the way Arshad, Mohsin and Mansad resident of village Pasaunda met and they all started molesting her, Arshad tried to drag her to the Budha Park, she raised alarm and some of people gathered there. Then they all ran away from there. On this report, a first information report was lodged at Police Station Sahibabad under Section 354 I.P.C. After lodging the FIR, investigation was started.
3. Investigating Officer recorded the statements of prosecutrix and other witnesses, prepared site plan. Medical examination of prosecutrix was conducted. After completing the evidence, charge sheet was submitted. The case being trialbe exclusively by the court of session, it was committeed to the sessions Court by the competent Magistrate.
4. Learned Judge framed charges against the accused- Mohsin and Mansad under Sections 354 and 376 IPC which were read over to the accused persons. Accused persons denied charges and claimed to be tried. Accused-Arshad was declared juvenile and his trial was separated. The prosecution so as to bring home the charges, examined six witnesses, who are as under:-
Prosecution
P.W.1
2.
Munni Devi
P.W.2
3.
Dr. Sunita
P.W.3
4.
Rajendra Singh Chauhan
P.W.4
5.
Bharat Singh
P.W.5
6.
Sahab Singh
P.W.6
5. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. in which he denied evidence against him, two witnesses, namely, D.W.-1 Mohd. Sirajuddin and D.W.-2 Mohd. Waseem were examined by the accused in defence.
6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
1.
F.I.R.
Ext. Ka-5
2.
Written report
Ext. Ka-2
3.
Statement of prosecutrix (Mala)
Ext. Ka-1
4.
Injury Report
Ext. Ka-3
5.
Site Plan with Index
Ext. Ka-4
7. Heard Shri Rajiv Lochan, learned counsel for the appellants, learned AGA for the State and also perused the record.
8. Perusal of record shows that occurrence took place at about 1.30 p.m. it means that it was day-light incident. Although in the beginning, the mother of the prosecutrix lodged the FIR only with the averments leading to the offence to the extent of Section 354 IPC only, but in her statement under Section 164 Cr.P.C, the prosecutrix narrated the incident in detail in which she made accusation against the accused-appellants and stated that they committed rape with her one by one after tying her mouth and hands.
9. The story narrated by the prosecutrix under Section 164 Cr.P.C. was repeated by her before learned trial Court as P.W.-1.
10. Learned counsel for the appellants attracted our attention towards some contradictions in the evidence of prosecutrix and in her statement under Section 164 Cr.P.C., but these contradictions do not go to the root of the case.
11. Medical examination of prosecutrix was conducted and medical report was prepared. The evidence of prosecutrix stands on the same footing of injured witness. Prosecutrix was examined at length by the defence but in her cross examination also she had stated that she was raped by the accused persons. PW-2, Munni Devi is mother of the prosecutrix, who submitted written report in Police Station on the basis of which first information report was lodged. In her statement she has formaly proved the above written report. Doctor, who conducted medical examination of the prosecutrix, is also produced by the prosecution as PW-3. The learned trial court convicted and sentenced the appellants for the offence under Sections 376 and 354 IPC.
12. 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 past more than 11 years.
13. 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.]
14. 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."
15. The term '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.
16. 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.
17. 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.
18. Since the learned counsel for the appellant has not pressed the appeal on its merit, however, after perusal of entire evidence on record and judgment of the trial court, we consider that the appeal is devoid of merit and is liable to be dismissed. Hence, the conviction of the appellant is upheld.
19. 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.
20. Learned AGA also admitted the fact which is cited by learned counsel for the appellants that appellants are languishing in jail for the last 11 years. Keeping in view the facts and evidence of this case, we are of considered opinion that ends of justice would be met if sentence for the offence under Section 376 IPC is converted from life imprisonment to the sentence of 10 years.
21. Hence, the sentence awarded to the appellants by the learned trial-court is modified and converted from life imprisonment to period of 10 years rigorous imprisonment and fine of Rs.5,000/-. Accused persons shall undergo additional one year simple imprisonment in case of default of fine. Sentence under Section 354 of IPC shall remain intact. All the sentences shall run concurrently as directed by learned trial court.
22. Accordingly, the appeal is partly allowed with the modification of the sentence, as above.
(Ajai Tyagi, J.) (Dr.Kaushal Jayendra Thaker, J.)
Order Date :- 23.11.2021 / A.N. Mishra
