Allahabad High Court
Raju vs State Of U.P. on 23 August, 2022
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 89
Case :- JAIL APPEAL No. - 344 of 2018
Appellant :- Raju
Respondent :- State of U.P.
Counsel for Appellant :- From Jail,Rashmi Srivastava
Counsel for Respondent :- A.G.A.
Hon'ble Krishan Pahal,J.
1. Heard Ms. Rashmi Srivastava, learned amicus curiae appearing for the appellant and Shri Surat Singh, learned AGA for the State.
2. The present jail appeal has been preferred by the accused-appellant Raju against the judgement and order dated 19.02.2016 passed by Additional District & Sessions Judge/F.T.C, Hapur relating to Case Crime No. 303 of 2014, under Sections 366 & 376 IPC, Police Station Kotwali Nagar, District Hapur convicting and sentencing the accused-appellant for the offence under Section 366 IPC to undergo five years rigorous imprisonment with the fine of Rs. 3000/- and under Section 376 IPC to undergo ten years rigorous imprisonment with the fine of Rs. 5000/-. In default of payment of fine, he had to undergo one year further rigorous imprisonment. All the sentences were run concurrently.
Prosecution Story:-
3. As per the allegation made in the F.I.R., the appellant alongwith the co-accused is said to have enticed away the minor daughter of the informant on 03.06.2014 at about 08:00 AM as she had gone out to graze her goats. An F.I.R. was lodged by the father of the victim on 05.06.2014 at about 03:10 PM. The victim was recovered on 14.06.2014. Her statement was recorded under Section 164 Cr.P.C. wherein she has stated that she was subjected to forcefully sexual assault by the accused-appellant twice. A charge sheet under Sections 366 & 376 IPC was filed by the Investigating Officer after recording the statement of witnesses and collecting the evidence.
Trial:-
4. Trial Court had framed charges against the appellant under Sections 366 & 376 IPC on 27.02.2015. The accused-appellant is in jail since the date of conviction. The appellant was on bail during trial and was convicted by the trial court vide order dated 19.02.2016. The trial court had examined seven witnesses i.e. PW-1 victim, PW-2 Ranveer Singh, PW-3 Suraj, PW-4 S.I. Yogendra Singh, PW-5 Dr. Mamta, PW-6 S.I. Om Pal Sharma and PW-7 C.C. Jagmal Singh. The statement of the victim recorded under Section 164 Cr.P.C. was proved as Ex.Ka-1. The written report (complaint) lodged by the informant is Ex.Ka-2, memo of handing over the victim to her parents is proved as Ex.Ka-3, Site plan have been proved as Ex. Ka-4 & Ka-6, memo of recovery of victim is Ex. Ka-5, injury report is Ex. Ka-7 and supplementary report is Ex. Ka-8, Charge sheet is Ex. Ka-9 and F.I.R. is Ex. Ka-10. The statement of the victim recorded under Section 164 Cr.P.C. has corroborated the prosecution story. There are no material contradictions in her statement. Her statement stands corroborated by the statements of PW-2, PW-3 & PW-4. As per the statement of PW-5 Dr. Mamta, no visible internal or external injury was found on the body of the victim.
Rival Contentions:-
5. Learned counsel for the appellant stated that he has been falsely implicated in this matter. He and victim belong to different castes. It is further submitted that the victim is the consenting party and no evidence of sexual violence has been noted by the doctor who has examined the victim. It is further submitted that fake and frivolous allegations have been levelled against the appellant that he has taken control of the victim by conducting some magic. It is further submitted that the victim herself has stated that she had gone alongwith the appellant in a Car and had remained in a room and she has not raised any alarm whatsoever during the said journey and the room of the hotel. It is further submitted that the victim was recovered on 14.06.2014 from the railway station Hapur and even at that place of recovery, she has not raised any alarm. It is further submitted that the F.I.R. is delayed by two days and there is no explanation of said delay in lodging it. The appellant is in jail since 19.02.2016. As per the report of radiologist, the age of the victim is 20 years and she herself has stated in the statement recorded under Section 164 Cr.P.C. that her age is 21 years, thus the victim is a consenting party.
6. Per contra, learned AGA has opposed the prayer and submitted that the victim has levelled serious allegations against the appellant in her statement recorded under Section 164 Cr.P.C. which is duly proved by PW-1 the victim as Ex. Ka-1. It is further submitted that there is no material contradiction in her statement recorded under Section 164 Cr.P.C., to that recorded in Court.
Conclusion:-
7. I have considered the rival submissions advanced by learned counsel for the parties and have gone through the entire record carefully.
8. The accused-appellant has been convicted by the trial court vide order dated 19.02.2016 and is in jail since then. The age of the victim is about 20 years as per the medical report and she herself has stated that her age is 21 years in the statement recorded under Section 164 Cr.P.C.. The accused-appellant is incarcerated is in jail since more than six years.
9. The Apex Court in the case of Ramesh Vs. State of U.P. AIR 1992 SC 664 had reduced the sentence to the period already undergone along with fine, which was to be paid to the complainant as compensation.
10. Considering the facts that the accused-appellant is in jail since the date of conviction and he was awarded the maximum sentence of ten years and he has served more than six years. It would be appropriate and proper seing the circumstances of the case that the accused-appellant be sentenced to the period already undergone and the amount of fine enhanced.
11. Applying the law laid down by the Apex Court in the aforesaid judgments and having regard to the totality of the facts and circumstances of the case particularly the fact that in this case the appellant faced trial for the offence under Sections 366 & 376 IPC and he was in jail since the date of conviction, maximum sentence imposed upon the appellant is of ten years, thus, I am of the considered view that if the sentence of the appellant awarded to him under Section 366 & 376 IPC is reduced to the period already undergone.
12. In the light of foregoing discussions, this appeal is liable to be allowed in part and the conviction of the appellant under Sections 366 & 376 IPC is liable to be upheld but the impugned judgment and order dated 19.02.2016 is liable to be modified to the extent as discussed above.
13. Accordingly, the appeal is allowed in part. Conviction of the appellant Raju under Section 366 & 376 IPC is upheld but the sentence of ten years rigorous imprisonment awarded to the appellant shall stand reduced and modified to the extent of period already undergone by the appellant.
14. The fine is enhanced to Rs. 10,000/- as a whole, which shall be paid to the victim. The accused-appellant shall deposit the said amount of fine of Rs. 10,000/- before the lower court at the time of applying for release, which shall be paid to the victim, if she is alive. In case, the victim has died, the same shall be paid to her legal heirs.
15. Let a copy of this judgement along with lower court record be sent to the Sessions Judge concerned for compliance.
16. The Registrar General of this Court is directed to pay an honorarium of Rs. 15,000/- to Ms. Rashmi Srivastava, learned Amicus Curiae for rendering effective assistance in the matter.
Order Date:-23.08.2022
Sanjeet
