Dinesh vs State Of U.P.
2023 Latest Caselaw 4792 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 31.1.2023
 
Delivered on 14.2.2023.
 
Court No. 14
 
Case :- JAIL APPEAL No - 1047 of 2021
 

 
Appellant :- Dinesh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Jail Appeal,Hari Kunwar Rai,Janardan Prasad
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J. 

1. Heard Ms. Manju Singh, Advocate holding brie of Mr. Janardan Prasad, learned counsel for appellant, Mr. S.P. Tiwari, learned A.G.A. for the State and perused the trial court record. .

2. The present appeal has been preferred against the judgment and order dated 25.3.2021 passed by the Special Judge, POCSO Act, Court no. 14 Sitapur convicting the appellant in S.S.T. No. 109 of 2014 arising out of case crime no. 43 of 2014, under Section 376/511 I.P.C. and Section 10 of the Protection of Children from Sexual Offences Act P.S.- Mishrikh, District- Sitapur sentencing him 10 years rigorous imprisonment and to pay fine of Rs. 25,000/- under Sections 376 (2) (i) I.P.C. and in default of payment of fine to undergo further imprisonment for a period of 1 year.

3. The brief facts of the present case emerges as such F.I.R. of the alleged incident has been lodged by mother of the victim by means of the application filed under Section 156 (3) Cr.P.C. before ACJM-II, Sitapur with allegation that on 24.6.2013 at about 4:30 p.m. when husband of the first informant was not present at the house. On the alleged time of incident her minor children i.e. her minor daughter victim aged about 3 years and son- Saurab aged about 9 months was at her house. When the complainant had gone to feed the animal then appellant- Dinesh took away minor daughter of the first informant inside his room. When the first informant returned to her house then Vimla told her that your daughter had been taken away by the appellant -Dinesh. When the complainant and Vimla went to house of the appellant-Dinesh then she saw that her minor daughter was lying naked on the floor. On seeing Vimla, Dinesh became scared and immediately started closing chain of his pant. Had there been some delay then surely Dinesh will commit sexual assault with the minor daughter of the first informant. The complainant immediately rushed to the police station for lodging the F.I.R. but no action was taken by the police official. Thereafter, by means of application under Section 156 (3) Cr.P.C., the F.I.R. was lodged against the appellant under Section 376/511 I.P.C. and 3/4 of the POCSO Act.

4. Investigation of this case was entrusted to the Investigating Officer. The Investigating Officer prepared site plan on the pointing out of the complainant. The Investigating Officer also recorded the statement of the complainant, witnesses and victim.

5. After competing all the formalities of the investigation, the Investigating Officer filed charge sheet against the appellant before the Magistrate court. The Special Judge, POCSO court framed the charges against the appellant under Sections 376/511 I.P.C. on 30.9.2014. The charges were read over to the appellant in Hindi to which he denied all the allegations levelled against him. The appellant claimed to be tried.

6. In order to prove his case, the prosecution examined following prosecution witnesses:-

(i) P.W.-1-complainant- Smt. Anita, (ii) P.W.-2- Smt. Vimla (iii) P.W.-3- Victim, (iv) P.W.-4- Constable- Vinod Kumar, and (v) P.W.-5- S.I. Pramod Kumar Mishra and (vi) P.W.-6- S.I. Ram Das.

The prosecution has also relied on the following documentary evidence:-

(i) Ext. Ka-1- Application under Section 156 (3) Cr.P.C., (ii) Ext. Ka-2- Chik F.I.R., (ii) Ext. Ka-3-G.D. (vi) Ext. Ka-4- Charge-sheet and (v) Ext. Ka-5- Site plan.

Thus, in order to prove its case, the prosecution relies upon oral testimony of P.W.-1 to P.W.-5 and documentary evidence as Ext. Ka-1 to Ext. Ka-5.

7. After recording the testimony of the witnesses, the statements of the accused/appellants were also recorded under Section 313 Cr.P.C. by the trial court explaining the entire evidence and other incriminating circumstances against the appellant. In the statement recorded under Section 313 Cr.P.C. , the appellant denied the entire prosecution story in toto. He stated that he has falsely been implicated in the present case due to previous enmity, as the prosecution wants to grab the land of the appellant, which is situated in front of his house. The appellant has made the above submission but the appellant has not chosen to lead any evidence.

8. After hearing learned counsel for both the sides and appreciating the oral and documentary evidence available on record, the learned trial court convicted the accused/appellant as aforesaid. Being aggrieved with this conviction order, the present appeal has been preferred by the appellant. The appellant has assailed the said judgment.

9. Learned counsel for the appellant submitted trial court convicting the appellant without appreciating evidence available on record. He further submitted that only on the basis of the statement of the complainant/first informant and the victim, who is minor, the trial court convicted the appellant under Section 376 I.P.C. and sentenced the appellant for imprisonment of 10 years, thus, the sentence awarded to the appellant for a period of 10 years is too much harsh.

10. Lastly, learned counsel for the appellant submitted that as per provision of Section 376 (2) (i) I.P.C. a person who commits rape, ommits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine and it is also provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. The present appellant is in jail for more than 5 years, therefore, learned counsel for the appellant claimed leniency.

11. Learned A.G.A. submitted that the trial court after considering the facts and circumstances of the present case and considering the material available on record rightly convicted the appellant, therefore, the appeal is liable to dismissed.

12. Not pressing the criminal appeal after the conviction of the accused/appellant 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.

13. 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.

14. 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."

15. 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.

16. 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."

17. 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."

18. 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."

19. 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."

20. 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 15.8.2014 and bail of the appellant was allowed on 11.11.2016. Thus, initially at the stage of investigation as well as trial, the appellant was remained in jail about 2 years, 2 months and 27 days. Again, the appellant was sent to jail on 8.1.2019 and he has got bail on 15.2.2019. Thus, again during trial the appellant was in jail for about 2 months 7 days. Due to absence of the accused before the trial court, the trial court issued the non bailable warrant against the appellant. In pursuance of the non bailable warrant, the appellant was again sent to jail on 23.10.2019 and the judgment was pronounced on 25.3.2021. Thus, the appellant is in jail since 23.10.2019 to till today, so now the appellant was in jail for 3 years and 3 months and 210 days. Thus, the total incarceration period of appellant is about 5 years and 8 months.

21. I am of the view that the learned trial court convicted the appellant for 10 years sentence. As per provision of Section 376 read with Section 511 I.P.C. punishment for imprisonment for life or imprisonment not exceeding half of the longest term, or fine or both is prescribed. In the present case, the learned trial court calculate the term as 20 years and punishes the appellant accordingly.

22. Considering entire facts and circumstances of the case and the fact that the conviction for 10 years is too much harsh, therefore, I am of the considered opinion that the appellant has served out sufficient period of sentence. On quantum of sentence this court thinks that end of justice would be met if the appellant is sentenced to imprisonment of six years under 376/511 I.P.C.

23. All the sentences shall run concurrently. Jail authority shall calculate the sentence period along with remission. The period already spent in jail shall be set off from the sentence awarded by the trial court.

24. Thus, the appeal is dismissed on the point of conviction and partly allowed on the point of sentence. The sentence is reduced from 10 years to imprisonment for the period of six years with all remissions but the fine clause shall be unaltered.

25. 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 :- 14.2.2023

Anuj Singh