Firoj Alam vs State Of U.P.
2023 Latest Caselaw 12659 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 818 of 2000
 

 
Appellant :- Firoj Alam
 
Respondent :- State of U.P.
 
Counsel for Appellant :- From Jail,S.M.Munis Jafari
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard learned counsel for the appellant, learned AGA for the State and perused the record.

2. The present criminal appeal has been filed against the judgement and order dated 1.11.1999 passed by VIIIth Additional Sessions Judge, Faizabad in S.T. No. 660 of 1998 under Section 376/511 IPC, P.S. Kotwali Nagar, District Faizabad whereby the appellant has been convicted under section 376 read with section 511 IPC and sentenced to 5 years rigorous imprisonment with fine of Rs. 10,000/- in case of default of payment of fine the appellant was directed to undergo 6 months further rigorous imprisonment. Trial Court further directed that 75 percent of the fine shall be paid to the victim.

3. In short, the prosecution case is that in the intervening night of 13/14.9.1998 at about 12.00 p.m. Ram Sumer Kevat (complainant) was sleeping outside his house below 'chhappar' along with his sons, namely, Rajit Ram and Ramavtar. His daughter Kusuma Devi who aged about 14 years was sleeping on 'takhat' inside the house. At about 12.00 p.m. someone entered into the home then the complainant awake his sons and Surendra Kumar Mourya and went inside where they saw that one person was trying to commit rape of his daughter. He made a noise and caught hold the accused person who told his name Feroz Alam son of Wali Mohammad resident of Badi Bua, P.S. Kotwali. Ram Sumer Kevat along with the accused and his daughter went to the police station and lodged the report.

4. On the basis of the report a case under section 376/511 IPC was registered and the police after due investigation submitted the chargesheet against the accused.

5. The trial court framed the charges under section 376 read with section 511 IPC against the appellant, who denied the charges levelled against him and claimed to be tried.

6. The prosecution in support of this case examined Ram Sumer Kevat (PW-1), who is the complainant of the case, Kusuma Devi (PW-2) who is victim and Rajit Ram (PW-3). The prosecution also produced written report as Ex-Ka-2, G.D. Entry as Ex-Ka-3 and cite plan as Ex-Ka-6.

7. After recording all the evidence of the prosecution witnesses, the statement of the accused under section 313 CrPC was recorded wherein he stated that he has been falsely implicated as there was a dispute with respect to land and on the said date, an altercation had taken place at about 8.00 p.m. The trial court after considering the prosecution evidence and other material on record came to the conclusion that the prosecution has successfully been able to prove its case against the accused and as such convicted and sentenced him, as stated above.

8. Aggrieved by the aforesaid conviction, the appellant has filed the present appeal. It has been argued that finding of guilt recorded by the trial court are wholly false and erroneous, the trial court committed an error in not considering the fact that in the medical report neither the common opinion of rape has been come nor any injury was found on the body of the victim. Moreover, no spermatozoa was found in medical examination. It has also been argued that trial court did not appreciate the evidence version and gave too much weight to the prosecution evidence overlooking the fact that the witnesses are not independent and non partisan witnesses. Lastly, it has been argued that the appellant has never been convicted in any criminal case and after investigation of the case he has remained in jail for a long time.

9. On the other hand, learned AGA has submitted that the trial court has recorded the findings after appreciating the evidence on record and it cannot be said that the findings recorded by the trial court are perverse or against the material on record.

10. The main goal of the criminal justice system is to prevent the occurrence of crime, to punish the transgressors, the criminals, to rehabilitate the transgressors and the criminals, to compensate the victim as far as possible, to maintain law and order in the society and to deter the offenders from committing any criminal act in the future. Thus, the main object of sentencing should be to achieve above mentioned goal of our justice system.

11. In Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648, Hon'ble Supreme Court observed that ;

"One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."

12. Apex court has held in various decisions that the theory of proportionality, deterrence, seriousness and rehabilitation should be taken into account while exercising discretion in sentencing. In Dhananajay Chaterjee vs State of W.B 1994 (2) SCC 220 ; Apex 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.

13. In State of M.P. v. Bablu Natt, (2009) 2 SCC 272, Hon'ble Apex Court held that;

"In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the court's verdict in the measure of punishment. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 year old girl shakes our judicial conscience. The offence was inhumane. There are no extenuating or mitigating circumstances available on the record which may justify imposition of sentence less than the minimum prescribed by the legislature under Section 376(1) of the Act."

14. Hon'ble Apex Court in State of Madhya Pradesh vs Mehtab, (Cri. appeal No. 290/2015, dated 13.02.2015) has observed that;

"We find force in the submission. It is the duty of the Court to award just sentence to a convict against whom charge is proved. While every mitigating or aggravating circumstance may be given due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and the society."

15. In Brajendra singh v. State of M.P., (2012) 4 SCC 289, the Hon'ble Apex Court held that;

"The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] and thereafter, in Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681] . The aforesaid judgments, primarily dissect these principles into two different compartments one being the ''aggravating circumstances' while the other being the ''mitigating circumstances'. The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) CrPC."

16. In State of M.P. v. Surendra Singh, (2015) 1 SCC 222, based on the Theory of Proportionality, it is laid down by Hon'ble Apex Court that ;

"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. 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. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment.

Meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter productive in the long run and against the interest of the society. One of the prime objectives of criminal law is the imposition of adequate, just proportionate punishment which commensurate with gratity, nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime.

The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers. Imposition of sentence must commensurate with gravity of offence."

17. Thus, considering the law laid down by Hon'ble Apex Court in above mention case and the fact and circumstances of the case, this fact is undisputed that the accused was arrested on 14.9.1998 and was released on bail under the orders of the Court on 29.1.1999. Again after conviction, the appellant remained in jail from 1.11.1999 to 14.5.2002. Thus, the appellant remained in jail for a total period of 2 years and 11 months. In other words, the appellant has served out more than half of the period of the sentence awarded to him.

18. It is relevant to find out that it may be pointed out that the trial court while passing the impugned order has observed that in this case under section 376 IPC, rape is established when penetration of penis takes places in the internal part of the woman but in the instant case there is no evidence that there was any penetration of penis. However, from the above circumstances it is proved that appellant has made unsuccessful attempt to commit rape and as such appellant was convicted under section 376 IPC read with section 511 IPC but prima facie offence against the appellant does not travel beyond the purview of Section 354 IPC to outrage the modesty of minor girl. Learned trial court without considering this aspect convicted the appellant under section 376/511 IPC.

19. Considering the facts in its entirety, coupled with the fact that the appellant is on bail since 21.1.2002 and there is no reporting that he has misused the liberty of bail so granted to him in any manner and the alleged incident is said to have taken place 24 years ago, I am of the view that the ends of justice would be suitably met by reducing the sentence to the period already served out by the appellant.

20. Accordingly, the appeal is dismissed on point of conviction, however, on the point of sentence the appeal is allowed and the period of sentence from five years is reduced to the period already undergone (two years and eleven months).

21. Office is hereby directed to communicate the judgement and order of this Court to the trial court as well as jail concerned for necessary compliance. The trial court record be also transmitted.

Order Date :- 25.4.2023

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