Allahabad High Court
Harishankar vs State Of U.P. on 13 February, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 20.01.2023 Delivered on: 13.02.2023 Court No. 14 Case :- CRIMINAL APPEAL No. - 799 of 2021 Appellant :- Harishankar Respondent :- State of U.P. Counsel for Appellant :- Ambica Tripathi,Avnish Kumar Tiwari,Kirti Vardhan Singh Counsel for Respondent :- G.A. And Case :- JAIL APPEAL DEFECTIVE No. - 901 of 2021 Appellant :- Harishankar Respondent :- State of U.P. Counsel for Appellant :- Jail Appeal Counsel for Respondent :- G.A. Hon'ble Suresh Kumar Gupta,J.
1. Since both the aforesaid appeal has been filed by the same accused against the same judgment and order, therefore, the same are being disposed of by a common order.
2. Heard Mr. Avnish Kumar Tiwari, learned counsel for appellant, Mr. Arvind Kumar Tripathi, learned A.G.A. for the State and perused the trial court record.
3. Both the appeals have been preferred by appellant against the judgment and order dated 25.03.2021 passed by learned Additional Sessions Judge, Court No. 16, (Created under the Protection of Children from Sexual Offences Act), Hardoi in Special Sessions Trial No. 39 of 2015, arising out of Case Crime No. 823 of 2014, under Section 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012, Police Station Atrauli, District Hardoi. By the said judgment, the appellant has been convicted and sentenced for offence under Section 376 IPC for fifteen years rigorous imprisonment and fine of Rs.20,000/-. In default of payment of fine, the appellant was to undergo further three months additional imprisonment.
4. The appellant was not sentenced under Section 3/4 of the Protection of Children from Sexual Offences Act, 2012.
5. Brief facts of this case emerges out as under:-
A written report was submitted by mother of the victim with the allegation that she is the resident of Mahua Danda, Polcie Station Atrauli with the allegation that on 21.10.2014 at 3:00 p.m. her daughter aged about 16 years went to attend the call of nature in the field situated near her house. Her younger brother Sonu was standing at a some distance away from the prosecutrix. Meanwhile, co-accused Pannu grabbed her son and companion of Pannu, appellant Harishankar took the victim to his house on the gunpoint and committed rape upon her. On the hue & cry of Sonu, her brother-in-law Nanke and Naresh son of Mishri, Ramnath son of Dwarika Maurya reached the house of appellant where the daughter of first informant was found. Immediately the appellant ran way from the spot waving the gun.
6. With this allegation, the FIR of this case was lodged after six days of the incident on 5.11.2015 in Police Station Atrauli, where it was registered as Case Crime No. 121 of 2014, under Section 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012.
7. After lodging the FIR, the investigation of this case was entrusted to Investigating Officer Uttam Singh. After lodging the FIR, he recorded the statement of Constable Clerk Rajeshwari Devi, on the pointing out of first informant site plan was prepared and statement of the victim under Section 161 Cr.P.C. was recorded. She was sent for medical examination. Thereafter the investigation was entrusted to other Investigating Officer. The statement of the victim under Section 164 Cr.P.C. was recorded on 28.1.2015. After collecting the medical paper, charge sheet was filed against the appellant under Section 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 on 8.4.2015. Thereafter learned Additional Sessions Judge framed charge against the appellant on 25.4.2015 under SEction 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act.
8. The charge was read over to the appellant in hindi. He denied the charges levelled against him and claimed to be tried.
9. The prosecution in order to prove its case produced PW-1 complainant mother of the prosecutrix, who fully supported the prosecution case. She proved the written report as Ex. Ka-1.
10. PW-2 is the prosecutrix herself. She fully supported the prosecution case and has stated that the appellant committed rape upon her on the point of gun. She clearly stated that she is minor. Further she has stated that she received no injury. She further stated before the court that she did not falsely implicated the appellant.
11. PW-3 Constable Rashmi, who proved the check FIR as Ex. Ka-3.
12. PW-4 Smita Singh in her statement dated 18.4.2018 has stated that she had medically examined the prosecutrix at that time. No injury either on internal part or external part of the body of the victim was found. During internal examination although no injury was found but hymen was old torn and ruptured. No bleeding was present. The vaginal smear was taken and the same was sent for pathological test. As per supplementary report, smear negative for spermatozoa & Gonococci. Pregnancy test was negative. She proved the medical report as Ex. Ka-4.
13. PW-5 Awadhesh Kumar Verma proved the age of the prosecutrix. On the basis of school register, the date of birth of the victim was 2.5.1997. Thus the victim was about seventeen years and six month months at the time of alleged incident.
14. PW-6 is the Radiologist, who proved the x-ray report and x-ray plate as Ex. Ka5 and Material Ex. -1.
15. PW-7 Ram Bhuwan Singh is the third Investigating Officer. He proved the charge sheet as Ex. Ka-6.
16. PW-8 Uttam Singh Rathore is the first Investigating Officer, who proved the site plan as Ex. Ka-7.
17. PW-9 Sanjay Maurya is the second Investigating Officer, who stated before the court that statement of the prosecutrix was recorded by the learned Magistrate on 28.01.2015. He collected the Transfer Certificate of prosecutrix and he got recorded statement of the victim under Section 164 Cr.P.C.
18. The prosecution relied upon oral evidence of PW-1 to PW-9 and documentary evidence as Ex. Ka-1 to Ka-7 and material Ex.-1.
19. Subsequent to closure of prosecution evidence, statement of appellant under Section 313 Cr.P.C. was recorded by trial court explaining entire evidence and other incriminating circumstance. In statement recorded under Section 313 Cr.P.C., the accused appellant denied prosecution version and stated that he has been falsely implicated in this case on account of enmity. Further stated that all witnesses deposed before the court are false. Lastly he has stated that due to parti-bandi, he has been falsely implicated. In defence, he did not choose to lead any evidence.
20. After hearing both the parties and appreciating entire oral and documentary evidence available on record, the trial court convicted the accused appellants as aforesaid.
21. Learned counsel for appellants has submitted that the appellants are innocent and have falsely been implicated in this case. Further submission is that the trial court only on the basis of Transfer Certificate of the victim admitted that the victim was minor while as per report of radiologist, the age of the victim was found 18 years. It is further submitted that that the prosecution miserably failed to proved its case beyond reasonable doubt. The FIR of this case was lodged after six days of the incident and there is no plausible explanation regarding the delay in lodging the FIR, which creates serious doubt regarding the genuineness of the prosecution story. There are major contradictions in the statements of the witnesses of facts as well as other witnesses. The judgment of the trial court is based on the conjectures and surmises. The trial court failed to appreciate the evidence available on record in correct perspective and has wrongly convicted the appellant. Further submission is that the appellant is in jail since 12.03.2015 and about eight years have passed. Due to poor condition of the appellant, he could not engage counsel of his own choice. It is further submitted that lenient view may be taken while sentencing the appellant.
22. Mr. Arvind Kumar Tripathi, learned A.G.A. for the State has supported the judgment of the trial court. It is further submitted that trial court has rightly passed the impugned judgment and appeal filed by the appellant has no force and is liable to be dismissed.
23. Learned counsel for appellant has submitted at the bar that he does not want to press this appeal on merits
24. Not pressing the criminal appeal after the conviction of the appellant by the court concerned is like the confession of the offence by the accused-appellant. 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.
25. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463, the Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:
"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 etc."
26. In the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, this 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.
27. Appropriate sentence is the cry of the society. 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.
28. This position was reiterated by a three-Judge Bench of the Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein it was observed as follows:-
"99.....The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
100. 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 victim of the crime but the society at large also while considering the imposition of appropriate punishment. 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 both the criminal and the victim belong."
29. In Jameel vs. State of Uttar Pradesh (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus:
"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
It is 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."
30. In State of Madhya Pradesh Vs. Surendra Singh, (AIR) 2015 SC 3980, 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 criminal but also the rights of the victim of the crime and 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 against the interest of the society. One of the objectives of criminal law is the imposition adequate,just, proportionate punishment end prime of which commensurate with gravity, 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 its hocks 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".
31. Considering the entire facts and circumstances of the case, the appellant is very poor. The matter pertains to year 2015 and thus, about 8 years have already elapsed. Thus, I am of the view that the end of justice shall be served to punish the appellant for the period already undergone i.e. about eight years and the minimum sentence under Section 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 is provided seven years. In this case the trial court has awarded sentence fifteen years rigorous imprisonment.
32. In view of the aforesaid discussion, I am of the view that if the sentence of fifteen years rigorous imprisonment be reduced to nine years rigorous imprisonment with fine. The jail authority is directed to calculate the period of incarceration of the appellant along with remission. If the jail authority arrives at the conclusion that with remission nine years of incarceration of the appellant already passed, then he may be immediately released. Keeping in view the fact that the appellant is a very poor person, therefore, in my considered opinion, fine imposed by the trial court is hereby waived off. Therefore, the appellant shall serve out nine years rigorous imprisonment with remission.
33. Therefore, the appeal is dismissed on the point of conviction under Section 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 and partly allowed on the point of quantum sentence. The appellant is in jail. The Jail Superintendent concerned is directed to calculate period of incarceration of nine years of the appellant with remission.
All pending applications in both the appeals are also disposed of.
Office is directed to send back lower court record for necessary compliance.
Order Date :-13.02.2023 Virendra