Allahabad High Court
Ramesh @ Baba vs State Of U.P. on 25 October, 2021
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 37 Case :- CRIMINAL APPEAL No. - 1673 of 2013 Appellant :- Ramesh @ Baba Respondent :- State of U.P. Counsel for Appellant :- S.N. Verma Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Oral Judgement by Hon'ble Ajai Tyagi, J.)
1. This appeal has been preferred against the judgment and order dated 27.02.2013 passed by Additional Sessions Judge, Court No.6, Ramabai Nagar in Session Trial No.477 of 2011 arising out of Case Crime No.155 of 2011, under Sections 363 and 376 IPC, Police Station- Sikandra, District- Ramabai Nagar, whereby the accused-appellant was convicted under Section 363 and 376 IPC and was awarded sentence under Section 363 IPC for five years R.I. and fine of Rs.3,000/-, one year R.I. was awarded in case of default of fine and under Section 376 IPC life imprisonment was awarded with Rs.45,000/-. Accused was directed to undergo two years R.I. in case of default of fine. It was directed that Rs.40,000/- shall be paid to the victim as compensation.
2. The brief facts of the case are that a written report was submitted at police station- Sikandra, District- Ramabai Nagar by father of the victim stating that in the night of 05.10.2011 his mother Shanti Devi, wife Nisha Devi, Six years old daughter and eight years old son Vishesh had gone to Jawahar Nagar, Sikandra to see Ramleela. At about 1:00 a.m. in the night, his daughter-victim misplaced in the crowd. She was not found anywhere. At about 2:00 a.m. in the night his mother returned to the house and informed him regarding the incident then he also started searching his daughter but no clue was found. Next day in the morning at about 6 a.m., one Manish Kumar informed that his daughter is lying fainted in injured condition near Kali Mathya when he reached the spot, he saw his daughter lying in injured condition and there was injury on her face and blood was found in her private part. In this written report complainant doubted on Istekar @ Rishtedar to be responsible for the crime.
3. Investigation was taken up by S.I. Sanjay Shukla who recorded the statements of victim and other witnesses, visited the spot, preapred site-plan. Medical examination of the victim was conducted. After completing the investigation, investigating officer submitted charge sheet against the accused-appellant Ramesh @ Baba. The matter being triable by court of Sessions was committed to the Session court for trial.
4. The learned trial court framed charges against the accused under Sections 363 and 376 IPC, which were read over to the accused. The accused denied the charges and claimed to be tried. The prosecution so as to bring home the charges, examined 10 witnesses, namely:-
1.
Anil Kumar PW1
2. Daneshwari PW2
3. Dr. Gaurav Katiyar PW3
4. Dr. Rama Sarraf PW4
5. Dr. Rakesh Kumar Tripathi PW5
6. H.C. Govind Hari Verma PW6
7. Smt. Nisha Devi PW7
8. Constable Ram Singh PW8
9. S.I. Sanjay Shukla PW9
10. Victim PW10
5. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. The accused did not examine any witness in defence. In support of the ocular version of the witensses, following documents were produced and contents were proved by leading evidence:-
1.
Written report Ext. Ka-1
2. Information to Ext. Ka-2
3. Medical report of victim Ext. Ka-3
4. Supplementary report Ext. Ka-6
5. Hospital discharge report Ext. Ka-8
6. FIR Ext. Ka-9
7. Recovery memo of clothes Ext. Ka-11
8. FSL report Ext. Ka-12
9. Site-plan Ext. Ka-13
10. Charge sheet Ext. Ka-17
6. Heard Shri S.N. Verma, learned counsel for the appellant and learned AGA for the State as well as perused the record.
7. Perusal of the record shows that occurrence of this case took place sometime in the night of 5/6.10.2011 victim was examined in Sikandra hospital by medical officer Dr. Gaurav Katiyar. In medical examination, several abrasion were found on the face of the victim and blood were found on legs and private part. Victim was complaining of pain in the lower part of the abdomen. Victim was referred to lady Dr. Rama Sarraf but found extensive torn of hymen. Injuries were also found on the private part and blood was oozing from the injuries.
8. The victim was examined as PW10. In her statement she supported the prosecution version. During her statement, the victim identified the accused-appellant in court room before learned trial court. Defence could not extract anything in cross-examination which would adversely impact the prosecution case.
9. Doctor conducting medical examination of the victim, was also orally examined in evidence Dr. Gaurav Katiyar proved medical examination as PW3) as PW3, Dr. Rama Sarraf deposed as PW4 and she had stated in her statement that condition of the victim was very serious at the time of medical examination. In internal examination, doctor found that hymen was badly torn. It was torn at 6 o'clock position. There were several injuries on private part from where blood was oozing. Perusal of the evidence also shows that victim remained hospitalized for 10 days and she had to be operated. The other prosecution witnesses also supported the prosecution case. Learned trial court sentenced the accused-appellant for the offence under Sections 363 and 376 IPC. The accused was awarded life term under Section 376 IPC along with fine of Rs.45,000/-, apart from five years imprisonment under Section 363 IPC and Rs.3,000/- as fine.
10. This appeal is filed in the year 2013 and the appellant is in jail since 07.10.2011. Since the appellant is in jail for nearly last 10 years, we consider this appeal on the view point of the gravity of the offence and sentence in the interest of justice.
11. Learned counsel for the appellant after submitting for clean acquittal 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 10 years.
12. 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.]
13. 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."
14. 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.
15. 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.
16. 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.
17. Since the learned counsel for the appellant has not pressed the appeal on its merit, we have only perused the matter from the view point of gravity of the offence. However, after perusal of the entire evidence on record and judgement 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.
18. 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.
19. Learned AGA also admitted the fact that the appellant is in jail since 07.10.2011.
20. Learned trial court has awarded sentence of life imprisonment under Section 376 IPC which seems to be harsh as discussed above. Hence, we are of the considered view that converting the sentence of life imprisonment under Section 376 IPC into the sentence of a period of 14 years R.I. would meet the ends of justice. It goes without saying that remissions as admissible would be admissible in case of accused.
21. Hence the sentence awarded to the appellant by learned trial court for life imprisonment and fine of Rs.45,000/- is converted into the 14 years R.I. and fine of Rs.25,000/-. In case of default of fine, the appellant shall undergo additional simple imprisonment for one year. Sentence for the offence under Section 363 IPC shall remain intact. On reliazation of fine, the victim shall be paid Rs.25,000/- as compensation. All sentences shall run concurrently.
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 :- 25/10/2021
Ashutosh Pandey