Allahabad High Court
Badlu Kurmi vs State Of U.P. on 29 March, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 22.03.2023 Delivered on: 29.03.2023 Court No. - 13 Case :- CRIMINAL APPEAL No. - 1881 of 2018 Appellant :- Badlu Kurmi Respondent :- State of U.P. Counsel for Appellant :- Gyanendra Pathak,Shreesh Kumar Mishra Atal Counsel for Respondent :- Govt. Advocate,Ashutosh Bajpai Hon'ble Suresh Kumar Gupta,J.
1. This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 5.9.2018 passed by the Special Judge (POCSO Act)/VIIIth Additional District & Sessions Judge, Bahraich in Sessions Trial No. 47 of 2015 arising out of Case Crime No. 91 of 2015, U/s 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act relating to Police Station- Hardi, District- Bahraich, whereby convicted and sentenced the appellant under section- 3/4 of the Protection of Children from Sexual Offences Act for 15 years rigorous imprisonment with fine of Rs. 50,000/- and in default of payment of fine, one year additional imprisonment.
2. The prosecution story, in brief, is that the complainant lodged the FIR with the allegations that on 07-03-2015 at about 02.00 pm, the sister-in-law (Sali) of the complainant had gone to her field for defecation. While defecating, a person approached her from behind from the side of the road, then she started running away, but the accused caught and committed rape upon her by closing her mouth. Somehow the victim screamed, then the complainant, his brother-in-law (Saadhu) Om Prakash Jaiswal and many other people rushed to the spot and caught the said accused on the spot. They took the said accused person with them to police station and gave a written report. On the basis of written report, the First Information Report was registered at Police Station Hardi, District Bahraich.
3. The investigation of this case was entrusted to the S.H.O. S.P. Yadav. During the investigation of the case, the statement of the victim was recorded under section 161 CrPC and 164 CrPC statement of victim was recorded in court. During course of investigation the material evidence was collected by the investigating officer and after collecting the evidence, the charge sheet was submitted by the investigating officer against the accused Badlu Kurmi U/s 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act to the magistrate court who took cognizance and committed the case to the court of sessions where it was registered as S.T. No. 47/2015 and thereafter, it was transferred to the court of Additional Sessions Judge for trial.
4. The charges were framed against the accused-appellant U/s 376 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act. The charges were read over to the appellant in Hindi, but he denied the charges levelled against him and claimed to be tried.
5. In order to prove its case, following witnesses were examined by the prosecution:
(i) PW-1, Ramesh Kumar Jaiswal, Complainant who supported the prosecution version and proved the written report as Ex-ka-1.
(ii) PW-2, Victim who is the sister-in-law (Sali) of the complainant, also supported the prosecution version.
(iii) PW-3, Dr. Rabia Sultana who deposed that on 7.3.2015 at 6.40 a.m., the victim was brought to the District Hospital (Women), Bahraich for medical examination by a lady constable, Neelam Yadav. The identification mark of the victim was mentioned in the medical examination report. At that time, she was unmarried. The hymen was torn. Fresh bleeding. Further, two slides of vaginal smear were prepared and sent to Pathology Department, District Hospital Bahraich for examination. The victim was referred to Radiologist for X-ray and was further referred to Chief Medical Officer, Bahraich for age determination. Moreover, the said witness proved the original medico-legal report, the Pathology Referral Slip and supplementary medico legal report as Ex-ka-3, Ex-ka-4 and Ex-ka-5, respectively. Besides, age determination certificate issued by C.M.O., Bahraich and FSL report of Lucknow were proved as Ex-ka-12 and Ex-ka-13, respectively.
(iv) PW-4, Shri Shivkumar Yadav who is the investigating officer of the case. He prepared the recovery memo of underwear of the accused-appellant and proved it as Ex-ka-6. He also prepared the site plan on pointing out of the complainant and subsequently, he submitted the charge-sheet against the appellant and proved it as Ex-ka-7 and Ex-ka-8, respectively.
(v) PW-5, Dimple Pandey, Lady Constable who recorded the statement of the victim U/s 161 CrPC on 8.3.2015 and the same was read over to the victim and proved as Ex-ka-9.
(vi) PW-6, Dinesh Pandey, retired A.S.P. who registered the FIR as case crime No. 71 of 2015 on 7.3.2015 on the basis of written report given by the first informant, Ramesh Kumar Jaiswal and proved the chik FIR and copy of G.D. Rapat No. 32 as Ex-ka-10 and Ex-ka-11, respectively.
6. Thus, the prosecution relied on the statement of PW-1 to PW-6 as oral evidence as well as documentary evidence of Ex-ka-1 to Ex-ka-13.
7. After completion of the prosecution evidence, statement of the accused-appellant was recorded U/s 313 CrPC in which he stated that he has been falsely implicated in the case due to enmity. However, he did not choose to lead any evidence in his defence.
8. After hearing both the parties, learned trial court convicted and sentenced the appellant vide order dated 5.9.2018, as aforesaid.
9. Being aggrieved and dissatisfied with this order, this appeal has been preferred by the appellant.
10. I have heard Shri Gyanendra Pathak, learned counsel for the appellant, Mr. Arvind Kumar Tripathi, learned AGA appearing for the State, Shri Ashutosh Bajpai, learned counsel for the complainant and perused the material available on record.
11. Learned A.G.A on behalf of the State supported the impugned judgment of learned trial court and submitted that the appeal has no force and is liable to be dismissed. However, learned counsel for appellant, stated at the bar that he does not want to argue the appeal on merits. He only wants to advance his submission on the quantum of sentence imposed upon the accused.
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 as under:
"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. The 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.
16. 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.
17. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175, in which it has been held 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.
18. 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."
19. 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."
20. 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.
21. 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 as under:
"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."
22. Considering the law laid down by the apex court and the entire facts and circumstances of the case, I am of the view that in pursuance of order dated 6.2.2023, the report regarding total incarceration period of the appellant has been sent from the district jail, Lucknow. As per the report of district jail, Lucknow dated 27.2.2023, the appellant is detained in Central Jail, Varanasi. As on 24.2.2023, the total incarceration period of the appellant with remission is 9 years, 2 months and 8 days. Thus, the appellant is languishing in jail for more than 9 years. So, in the interest of justice, the sentence of 15 years' imprisonment as awarded by the trial court is reduced to 10 years with all remissions. The fine awarded by the trial court shall be deposited by the appellant within one month from the date of his actual release and the same shall be given to the victim, failing which the appellant shall serve out the remaining sentence as awarded by the trial court.
23. The Jail Authority will calculate the period of his incarceration with remission and decide the same in accordance with jail manual.
24. Thus, the appeal is dismissed on the point of conviction and partly allowed on the point of sentence.
25. The trial court record be sent back. A copy of this order be also sent to the court concerned as well as District Superintendent of Jail concerned for necessary compliance.
Order Date :-29.3.2023 Shravan