Ramesh Kumar Raidas vs State Of U.P.
2023 Latest Caselaw 2879 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 16.1.2023
 
Delivered on 28.1.2023.
 
Court No. 14
 
Case :- CRIMINAL APPEAL No. - 208 of 2020
 
Appellant :- Ramesh Kumar Raidas
 
Respondent :- State of U.P.
 
Counsel for Appellant - Rehan Ahmad Siddiqui
 
Counsel for Respondent -. Govt. Advocate
 

 
Hon'ble Suresh Kumar Gupta,J. 

1. Heard learned counsel for the appellant for appellant and Sri Arvind Kumar Tripathi, learned A.G.A. as well as perused the record.

2. The present appeal has been preferred against the judgment and order dated 16.11.2019 passed by the Special Judge, POCSO Act, Sitapur convicting the appellant in S.S.T. No. 62 of 2015 arising out of case crime no. 89 of 2015, P.S.- Laharpur, District- Sitapur sentencing him 5 years rigorous imprisonment and to pay fine of Rs. 5,000/- under Section 363 I.P.C. and in default of payment of fine to under further imprisonment for a period of 6 months, 7 years rigorous imprisonment and to pay fine of Rs. 7,000/- under Section 366 I.P.C. and in default of payment of fine to undergo further imprisonment for a period of 1 year and 15 years rigorous imprisonment and to pay fine of Rs. 20,000/- under Sections 376 (2) I.P.C. and in default of payment of fine to undergo further imprisonment for a period of 1 year. All the sentences to run concurrently.

3. The brief facts of the present case emerges as such F.I.R. of the alleged incident has been lodged by Khushi Ram with the allegation that his minor daughter/victim, who is aged about 14 years, was abducted on 2.3.2015 at 7:00 p.m. by Khurshed on a red colour motorcycle. This occurrence was seen by Manoj and Nanhu, who are villagers of the village of the complainant. On the basis of the a written report Exbt.- Ka-1 dated 4.3.2015, the F.I.R. was lodged against Khurshed under Section 363, 366 I.P.C. on 4.3.2015 at 15:40 as case crime no. 89 of 2015.

4. Investigation of this case was entrusted to the Investigating Officer. The Investigating Officer prepared site plan and recorded the statement of the witnesses and during the course of the investigation it came into the knowledge of the Investigating Officer that actually the kidnapping was done by the appellant-Ramesh Kumar Raidas. During the course of the investigation, it was disclosed that victim was recovered after 14 days of the kidnapping and after recovery, the statement of the victim was recorded under Section 161 and 164 Cr.P.C. in which she clearly stated that on the date of alleged incident i.e. on 2.3.2015, the appellant and other co-accused persons enticed away her. The appellant and other co-accused extended threat on the gun point to the victim to keep mum. She also stated that without her consent, the appellant committed rape upon her.

5. After competing all the formalities of the investigation, the Investigating Officer filed charge sheet against the appellant. The charge-sheet was filed before the Magistrate court, where it was committed before the court of sessions as S.S.T. No. 62 of 2015 was mentioned and this case was transferred to Additional Sessions Judge, II, Sitapur on 5.5.2015. The case was fixed for framing of charges. The charges were framed against the appellant on 24.8.2015 under Section 363, 366, 376 I.P.C. and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act. 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 witnesses P.W.-1- Khushi Ram, P.W.-2- prosecutrix, P.W.-3 Dr. Tanjeem Kamar, P.W.-4-Lady Constable- Geeta Vishwakarma, P.W. 5- Investigating Officer- Nand Kumar Tiwari, P.W.-6- Manoj Kumar, P.W.-7- Dr. Arun Kumar, P.W.-8- Investigating Officer- Ajai Kumar Singh and P.W.-9- Ashok Kumar Verma, the Principal. The prosecution also relies upon the documents evidence, which are Ext. Ka-1-written report, Ext. Ka-2, recovery memo of the victim, Ext. Ka-3 undergarment of the appellant and prosecutrix, Ext. Ka-4, statements of the victim recorded under Section 164 Cr.P.C., Ext. Ka-5 medical report, Ext. Ka-6-supplementary report, Ext. Ka-7- chik F.I.R., Ext. Ka-8, site plan, Ext. Ka-9, supurdaginama of the victim, Ext. Ka-10-X-ray report of the victim, Ext. Ka-11- charge-sheet, Ext. Ka-12- Transfer certificate of the victim. The prosecution also relied upon other credible documentary evidence, which are material-Ext-1- undergarment of the victim, material-Ext-2- undergarment of the appellant and material-Ext-3- X-ray report of the victim. Thus, in order to prove its case, the prosecution relies upon oral testimony of P.W.-1 to P.W.-8 and documentary evidence as Ext. Ka-1 to Ext. Ka-12 as well document evidence as Ext-1 to Ext-3.

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 appellants. 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 party bandi but 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 the appellant was not named in the F.I.R. He vehemently urged that there are several contradictions in the statements of the victim recorded under Section 161 and 164 Cr.P.C. In that light, it is contended that the entire theory of the prosecutrix being kidnapped, enticed or being raped in the manner as has been put forth is not reliable. It is also submitted that the victim was consenting party, as the victim accompanied with the appellant and visited Lakhimpur Kheri with her free will and consent. During the period of 14 days i.e. before her recovery, the victim also visited several places with the appellant but she never raised any alarm. He further submitted that the victim and appellant has performed married with each other. After solemnizing marriage, the victim made physical relationship with the appellant with her free will but when the victim/prosecutrix was recovered on 16.3.2015, due to influence of her family members in her statement recorded under Section 161 Cr.P.C. she clearly stated that the applicant committed wrong act with her against her will while in her statement recorded under Section 164 Cr.P.C. she clearly stated that they talked with each other on phone and on the alleged period of 14 days i.e. from 2.3.2015 to 16.3.2015, she visited several places with her free will and consent. As the victim visited several place with her free will, therefore, no offence under Section 363, 366 I.P.C. is made out against the appellant.

10. Lastly, learned counsel for the appellants submitted that although the charges against the appellant was framed under Section 376 I.P.C. but the leaned trial court convicted the appellant under Section 376 (2) I.P.C. and thus, the learned trial court committed material irregularity while convicting the appellant under Section 376 (2) I.P.C. on the ground of High School certificate, as as per High School certificate at the time of alleged incident the victim was below 12 years. The provisions of Section 376 (2) is read as under:-

"Section 376(2) in The Indian Penal Code

(2) Whoever,--(a)being a police officer commits rape-

(i)within the limits of the police station to which he is appointed; or

(ii)in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii)on a woman in his custody or in the custody of a police officer subordinate to him; or

(b)being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c)being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d)being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e)commits rape on a woman knowing her to be pregnant; or

(f)commits rape on a woman when she is under twelve years of age; or

(g)commits 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: 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. Explanation 1.--Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section."

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Punishment for the offence under Section 376 (2) (f) is rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine 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.

11. So in this context, learned counsel for the appellant submitted that father himself has stated in the F.I.R. that at the time of alleged incident the victim was 14 years. He further submitted that as per radiological report, the age of the victim is 16 years, therefore, age of the victim is more than 12 years and thus the trial court has wrongly convicted the appellant under Section 376 (2) (f) I.P.C. for 15 years. Learned counsel for the appellant submitted that the appellant is in incarceration since 17.3.2015, i.e. for 7 years and 10 months. Therefore, learned counsel for the appellant claimed leniency. The submission of the learned counsel for the appellant is limited only on the quantum of the sentence. In support of his submission, learned counsel for the appellant placed reliance upon a judgment of Hon'ble Supreme Court in the case of Manoj Mishra @ Chhotkau Vs. State of Uttar Pradesh (Criminal Appeal No. 1167 of 2021).

12. 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.

13. 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.

14. 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.

15. 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."

16. 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.

17. 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."

18. 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."

19. 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."

20. 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."

21. 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 17.3.2015. The applicant/appellant has not got any bail during pendency of the trial and even during pendency of appeal after passing of order of conviction dated 16.11.2019. Thus, the appellant is in incarceration since 17.3.2015. Thus, the appellant already served the sentence about 7 years and 10 months.

22. I am of the view that the learned trial court convicted the appellant for 15 years sentence keeping in view that the age of the victim was less than 12 years on the basis of first attendant certificate of the victim while in the F.I.R. and in his statement the complainant stated that age of the victim was 14 years at the time of incident; as per ossification test and radiological test the age of the victim was 16 years. Thus, this fact is fully established that at the time of incident victim was above 12 years. So the conviction under Section 376 (2) (f) is not sustainable and the learned trial court wrongly convicted the appellant under Section 376 (2) (f). If the prosecution story is admitted in toto then the offence does not travel beyond the purview of Section 376 (1) and under Section 376 (l) , the minimum punishment envisaged as 7 years.

23. Considering entire facts and circumstances of the case and the fact that the conviction for 15 years is too much harsh, therefore, end of justice would be served, if the appellant is sentenced for 9 years, therefore, the sentence of 15 years is reduced to 9 years with all remissions. Fine clause shall remain intact. Sentence and conviction under Section 363, 366 I.P.C. shall remain unaltered. If the appellant fails to deposit the amount as stipulated by the trial court, he shall undergo one year simple imprisonment in addition to the above punishment. It is made clear that if fine of Rs. 32,000/- is deposited by the appellant then as per order dated 16.11.2019 of the trial court Rs. 30,000/- be paid to the victim.

24. 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.

25. Thus, the appeal is dismissed on point of conviction and partly allowed on the point of sentence only.

26. 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 :- 28.1.2023

Anuj Singh