Madhya Pradesh High Court
Smt. Kallo @ Kalavati vs Smt. Vimla Devi on 20 July, 2021
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
1 CRA No.5064/2018
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No.5064/2018
.........Appellants: Smt. Kallo @ Kalavati & Ors.
Versus
.......Respondents : Smt. Vimla Devi & Anr.
-----------------------------------------------------------------------------------------
Shri Atul Gupta, Counsel for the appellants.
Shri P.C. Chandil, Counsel for the respondent No.1.
Shri Manish Nayak, Panel Lawyer for the respondent No.2/State.
----------------------------------------------------------------------------------------
Date of hearing : 08/07/2021
Date of Judgment : 20/07/2021
Whether approved for reporting : No
JUDGMENT
(20/07/2021) (Through Video Conferencing) It is submitted by the counsel for the appellants that instead of considering the application for suspension of sentence filed by the appellants, this appeal may be heard finally.
2. With the consent of the parties, the appeal is heard finally.
3. This criminal appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 28.06.2018 passed by 5 th Additional Sessions Judge, Morena in S.T. No.74/2012 by which the appellants have been convicted and sentenced as under:
Appellant No.1 Smt. Kallo @ Kalavati:2 CRA No.5064/2018
Section Act Imprisonmen Detail of Imprisonment in t fine/if lieu of fine deposited 120-B IPC 5 Years RI 2000/- 6 months RI Appellant No.2 Rajendra Singh:
Section Act Imprisonmen Detail of Imprisonment in
t fine/if lieu of fine
deposited
467 IPC 5 Years RI 2000/- 6 months RI
468 IPC 5 Years RI 2000/- 6 months RI
471 IPC 5 Years RI 2000/- 6 months RI
Appellant No.3 Dharmvir:
Section Act Imprisonmen Detail of Imprisonment in
t fine/if lieu of fine
deposited
467 IPC 5 Years RI 2000/- 6 months RI
120-B IPC 5 Years RI 2000/- 6 months RI
Appellant No.4 Veero:
Section Act Imprisonmen Detail of Imprisonment in
t fine/if lieu of fine
deposited
467 IPC 5 Years RI 2000/- 6 months RI
120-B IPC 5 Years RI 2000/- 6 months RI
4. According to the prosecution case, the complainant Vimla Devi was the sole heir of her parents late Vidyaram and late Anno @ Anandi.
The appellant No.2 Rajendra is the son of Tau of the complainant whereas the appellants No.2 and 3 Dharmvir and Veero are her nephews. The appellant No. 1 Kallo @ Kalavati is the Bhabhi of the appellant No.2 Rajendra Singh. The father of the complainant namely Vidyaram and father of the appellant Rajendra Singh namely Tej Singh were real brothers and co-sharer in the agricultural land. Tej Singh (father of appellant Rajendra Singh) and Vidyaram (father of the complainant) had 3 CRA No.5064/2018 half share in agricultural land bearing survey Nos.342, 405, 406, 414, 415 total area 1.74 hectares situated in village Karola, District Gwalior. It is alleged that after the death of the parents of the complainant, her name was recorded in the revenue record as owner and in possession of half share in the aforementioned property.
5. It appears that the complainant filed a complaint for offence under Sections 420, 463, 464, 467, 468, 470 and 120-B of IPC against the appellants, on the allegations that the appellant no.2, by executing a forged power of attorney has executed a registered sale deed in favor of appellant no.1 Smt. Kallo @ Kalawati whereas the appellants no. 3 and 4 had signed the forged power of attorney and the false sale deed as witnesses.
6. The Trial Magistrate issued summons against the appellants for offence under Sections 420, 467, 468, 471, 120-B of IPC and committed the case to the Sessions Court by its order dated 13.2.2012.
7. The Trial Court by order dated 10.5.2012 framed charges under Sections 467, 468, 471 of IPC against the appellant Rajendra Singh whereas framed the charge under Section 120-B against Smt. Kallo @ Kalawati and under Section 467, 120-B of IPC against the appellant no. 3 Dharamveer and appellant no. 4 Biro.
8. The appellants abjured their guilt and pleaded not guilty.
9. The prosecution in order to prove its case examined Smt. Vimla Devi (PW-1), Naval Singh (PW-2), Om Prakash Batham (PW-3).
10. The appellants examined Alok Kumar Jain (DW-1), Rajendra (DW-
2) in their defence.
4 CRA No.5064/2018
11. The copy of complaint has been exhibited as Ex.P/1, the disputed Power of Attorney as Ex.P/2. The disputed sale deed as Ex.P/3, the judgment passed by the Court of 2 nd Additional District Judge, Morena passed in Civil Suit No.18A/2013 on 4.9.2015 as Ex.P/4, copy of the complaint made to SHO, Police Station Banmore, District Morena is Ex.P/5, original Power of Attorney is Ex.P/6. The thumb impression of the complainant are Ex.P/7 to Ex.P/12 and the report of the Finger Print Expert is Ex.P/13. The photographs of thumb impression are Ex.P/14 to Ex.P/19. Similarly, the appellants have relied upon the report of the Finger Print Expert Ex.D/1 and Ex.D/2. The copy of the application filed under Order 9 Rule 13 of CPC in Case No.47/2015 is Ex.D3, the order dated 1.10.2015 to 19.10.2015 of the Court of Second Additional District Judge, Morena is Ex.D/4 and the order dated 25.7.2017 is Ex.D5 and order dated 17.4.2018 is Ex.D/6.
12. After considering the evidence as well as the documents relied upon by the parties, the Trial Court by impugned judgment and sentence dated 28.6.2018 convicted the appellants for the offence mentioned above and sentenced them accordingly.
13. It is submitted by the counsel for the appellants that the complainant as well as the appellants have entered into a compromise and, accordingly, I.A.No.1000/2020 was filed for compromise. The compromise was duly verified by the Principal Registrar of this Court and submitted his report that according to Section 320 of Cr.P.C., offence under Sections 467, 468, 471, 120-B of IPC are not compoundable but also gave a report that the respondent Smt. Vimla Devi and the appellants 5 CRA No.5064/2018 No.1 to 4 have arrived at compromise voluntarily without any threat, inducement or coercion. It is submitted that it is well established principle of law at the stage of appeal the proceedings cannot be quashed on the basis of compromise but the factum of compromise can be taken into consideration while assessing the quantum of punishment and thus they may be sentenced for a period which has already been undergone by them. Thus, the findings of conviction were not challenged by the Counsel for the appellants.
14. Per contra, the appeal is vehemently opposed by the counsel for the State. It is submitted by the counsel for the State that by creating a forged Power of Attorney, the appellant Rajendra Singh had executed a registered sale deed in favour of the appellant No.1 Smt. Kallo @ Kalawati and thus they deprived her own relative from her share, therefore, it is a serious matter and under these circumstances, the period of sentence undergone by the appellants is not sufficient.
15. The counsel for the complainant expressed that since the complainant has entered into a compromise, therefore, he would leave the question of sentence to the discretion of this Court.
16. Heard the learned counsel for the parties.
17. The Supreme Court in the case of Nagpal Traders vs. Davinder Singh reported in (2017) 11 SCC 431 has held as under:
10. We may also refer to the judgment of this Court in Jeetu where this Court has while considering as to how the appeal should be disposed of by the appellate court when there is no challenge to conviction observed that it is the obligation of the Court to decide the appeal on merits and not accept the concession and proceed to deal with the sentence, 6 CRA No.5064/2018 for the said mode and method defeats the fundamental purpose of the justice delivery system.
This Court further noted that there are many cases where the High Courts after recording the non-
challenge to the conviction, have proceeded to dwell upon the proportionality of the quantum of sentence. It was observed that such a course is impermissible in law and should not be resorted to. We respectfully agree with this view of this Court. We are dealing with one of such cases. In our opinion, the High Court should not have shown leniency to the Respondent. We will have to therefore rectify the error committed by the High Court.
Therefore, before considering the submissions of the counsel for the appellants on the question of sentence, it is necessary for this Court to consider the merits of the case.
18. The complainant Vimla Devi (PW-1) has stated that her father had already expired about 15 years back. Her father was an agriculturist and he was having agriculture lands in village Karola as well as in village Susara. After the death of her father, her name was mutated in the revenue records alongwith her mother. Her mother has expired about two years back and after her death, the name of the complainant was recorded in the Revenue records in respect of the entire land. The appellant Rajendra Singh is the son of her Tau and the appellants Dharmvir and Veero are her nephew. The appellant Rajendra Singh, with an intention to grab the land of the complainant, prepared a forged power of attorney and on the basis of same, he executed a sale deed in favour of his Bhabhi. She got the information of the said registered sale deed in the Tehsil Gwalior and thereafter, she made a complaint to the police but no action was taken, therefore, complaint Ex.P/1 was filed. The copy of Power of Attorney is Ex.P/2 and the copy of registered sale deed is Ex.P/3. It was alleged that 7 CRA No.5064/2018 Power of Attorney,Ex. P/2/P/6, do not contains her signatures. She came to know about these forged documents only after she received a notice from Gwalior. It was further pleaded that the complainant had instituted a civil suit, which she has won and the copy of judgment and decree passed by the Court of Second Additional District Judge, Morena was exhibited as Ex.P/4. The written complaint made by the complainant to SHO, Police Station Bamore, District Morena is Ex.P/5. It was further pleaded that during the course of investigation, the police had collected the thumb impressions of her fingers, which were sent for examination by finger print expert. On enquiry, it was found that the thumb impressions found on the Power of Attorney and the original thumb impression of the complainant do not match with each other.
19. The witness were cross-examined by the Counsel for the appellant extensively. She stated that her father were two brothers namely Tej Singh and her father Vidyaram. Nathu Singh, Gopal Singh, Ramvilas and Rajendra Singh (appellant) are four sons of Tej Singh and whereas Dulari and Jaldevi are two daughters of Tej Singh. Gopal Singh has three sons, namely, Dharmvir (appellant), Ranveer and Dashrath. Nathu Singh has four children namely, Sanjay, Veeru, Banti and Gajraj. Ramvilas has four sons namely, Dalveer, Manoj, Sikandar and Kallo. Rajendra Singh (appellant) has two sons namely, Vivek and Jitendra. She further stated that she has never gone to the school and she can only put her signatures. She further stated that 10 bigha of land situated in village Susera in which her father had half share i.e. five bigha, is recorded in the name of the complainant and similarly 4.25 bigha of land situated in village Karola is 8 CRA No.5064/2018 also recorded in the name of the complainant whereas remaining 4.25 bigha of land is in share of the appellants. She further stated that she has four sons and one daughter. She further claimed that prior to the incident, she was on visiting terms with the appellants. However, she denied that the appellant Veero and Rajendra Singh were also on visiting terms with the complainant. She further claimed that during the life time of her mother, there was no dispute with regard to the land. She further denied that she had taken the consideration amount from the appellants. She further denied that the appellant Rajendra Singh had got a Power of Attorney executed from the complainant in order to save the stamp duty for registered sale deed. She further denied that she had put thumb impressions on the Power of Attorney. She further denied that on 26.6.2008, she went to Morena Court along with appellants Rajendra Singh, Veero and Dharmvir. She further denied that she executed the Power of Attorney Ex. P/2 in the office of Sub-Registrar, Morena. It is further denied that as the prices of land has increased, therefore, she is making allegations with a dishonest intention. She further claimed that her thumb impression was taken by the police personnel. She further denied that she has obtained the false finger print report in connivance with the police party. She further claimed that she came to know about the cheating when she went to the field for cutting her mustard crop and then, the appellants had shown the documents. She further stated that immediate after two days of the execution of forged Power of Attorney the appellant Rajendra Singh executed a sale deed in favour of the appellant No.1 Smt. Kallo alias Kalawati. She further stated that 9 CRA No.5064/2018 although, she had come to know about cheating, but she did not convene any Panchayat. She further stated that the complaints were made by her husband and she used to put her signatures on the complaint. She further stated that she always come to the Court along with her husband and she put her signatures on the documents on which she is instructed to do so by the Counsel. She further denied that prior to recording of her evidence, she was tutored by her Counsel.
20. Naval Singh (PW/2), the husband of the complainant has also stated in the same line.
21. Om Prakash Batham (PW/3) is Finger Print Expert and is posted as Inspector in Police Line, Morena. He has proved the finger print report , Ex.P.13 and has stated that the thumb impressions found on the Power of Attorney Ex. P/6 does not contain the thumb impressions of the complainant. This witness was also cross-examined in detail. In the cross examination he explained the reasons for coming to a conclusion that the disputed Power of Attorney Ex.P/6 does not contain the thumb impression of the complainant. He further denied that the disputed Power of Attorney Ex.P/6 contains the thumb impression of the complainant Vimla Devi.
22. The appellants have examined Alok Kumar Jain (DW/1) their finger print expert, who has claimed that the disputed Power of Attorney contains the thumb impression of the complainant Vimla Devi. The report given by this witness is Ex. D/1.
23. The appellant Rajendra Singh entered in the witness box and examined himself as DW/2. He claimed that the disputed Power of 10 CRA No.5064/2018 Attorney Ex. P/6 was executed by the complainant, who is his cousin sister. He further admitted that the complainant had filed a civil suit against the accused persons, which has been decreed ex-parte in favour of the complainant.
24. The trial Court after considering the evidence led by the parties, came to a conclusion that the prosecution has succeeded in establishing that the disputed Power of Attorney Ex. P/6 does not contain the signatures of complainant Vimla Devi.
25. Om Prakash Batham (PW/3) who is posted as Inspector in police line Morena is an expert of finger printing science has duly proved that the thumb impressions found on the disputed Power of Attorney Ex. P/6 does not contain the thumb impression of the complainant.
26. Furthermore the complainant had also filed a Civil Suit against the appellants for declaration of title as well as for declaration of sale deed as null and void and suit was decreed by judgment and decree dated 07.09.2015 passed by Second Additional District Judge, Morena in Civil Suit No. 18-A/2013. Although the appellants had filed certain order sheets of the trial Curt to show that the application filed by them under Order 9 Rule 13 of CPC is pending but the outcome of the said application is not known.
27. Be that whatever it may be.
28. One thing is clear that there is a declaration by the civil Court in favour of the complainant that the disputed Power of Attorney, Ex. P.6 does not contain her thumb impression and it is a forged document. Although, the appellants/defendants had earlier appeared in the said Civil 11 CRA No.5064/2018 Suit and filed their written statement but for the reasons best known to them, they decided not to appear before the trial Court and ultimately, they were proceeded ex-parte.
29. Be that whatever it may.
30. Further, in the disputed sale deed Ex. P/3 there is no recital with regard to payment of consideration amount to the complainant. The disputed sale deed Ex. P/3 contains recital that the complainant has already received the entire consideration amount of Rs.1,94,000/- prior to execution of the sale deed. The appellants have not examined any witness to show that the said amount was paid to the complainant. No statement of the bank was filed to show that the amount as mentioned in the sale deed was ever paid to the complainant. Even appellant Rajendra Singh who had appeared as defence witness has also not stated that on what date the entire consideration amount was paid to the complainant. It is true that Rajendra Singh was one of the accused, but once he has decided to appear as a witness, then he has to explain each and every circumstance against him. Even in the examination-in-chief of Rajendra Singh (DW/2), he has not uttered a single word with regard to payment of consideration amount.
31. Further, it is clear that the power of attorney Ex.P/6 and sale deed Ex.P/3 were executed within a span of two days. If the complainant Vimla Devi was in a position to come to the office of Sub Registrar, Morena, then there was no occasion for her not to execute the sale deed directly. Why a lady would execute a power of attorney in favour of the appellant No.2 Rajendra Singh, specifically when she herself went to the office of 12 CRA No.5064/2018 Sub Registrar.
32. Thus, in the light of the evidence of the complainant of Vimla Devi (PW/1) and Om Prakash Batham (PW/3), this Court is of the considered opinion that disputed Power of Attorney Ex. P/6 does not contain thumb impression of the complainant Vimla Devi and accordingly, on the strength of said forged Power of Attorney, the appellant Rajendra Singh executed a sale deed in favour of appellant Smt. Kallo alias Kalawati. Accordingly, it is held that the appellant Rajendra Singh prepared a false Power of Attorney on the strength of the forged thumb impression of the complainant Vimla Devi and on the strength of the said forged Power of Attorney Ex. P/6, the disputed sale deed Ex. P/3 was executed in favour of the appellant No. 1 Smt. Kallo alias Kalawati.
33. It is also clear that by using the forged power of attorney as a genuine document, he assumed the powers to execute the sale deed on behalf of the complainant Vimla Devi and thus executed the disputed sale deed Ex.P/3.
34. So far as the role played by the appellants No.3 and 4 is concerned, they had signed the false registered sale deed Ex.P/3 as well as forged power of attorney, Ex.P.6 as witnesses.
35. Under these circumstances, it is held that not only, the appellants No. 3 and 4 Dharamvir and Veero had played prominent role in execution of forged power of attorney Ex.P/6 by signing the same as a witness but also a prominent role in executing the sale deed Ex.P/3 on 28.06.2008 in favour of appellant No.1 Smt. Kallo @ Kalawati.
36. So far as the role of appellant No.1 Smt. Kallo @ Kalawati is 13 CRA No.5064/2018 concerned, the allegation against her is that the sale deed Ex.P/3 was executed in her favour and played a prominent role in execution of the sale deed dated 28.06.2008 Ex.P/3. The sale deed Ex.P/3 contains the photograph of the appellant No.1 Smt. Kallo @ Kalawati and also bears her thumb impressions. Thus, it is clear that the appellant No.1 Smt. Kallo @ Kalawati had also accompanied appellants No.2 to 4 to the office of Sub Registrar, Morena for execution of the sale deed.
37. Furthermore, it was mentioned in the sale deed that the entire consideration amount of Rs.1,94,000/- has been paid to the complainant Smt. Vimla Devi. However, as already pointed out there is nothing on record to show even a single penny was paid to Smt. Vimla Devi. Thus, it is clear that the appellant No.1 Smt. Kallo @ Kalawati was a member of the conspiracy hatched by the appellants No.2 to 4 and also played an important role.
38. Considering the allegations made against the appellants, the Trial Court has convicted the appellant No.1 Smt. Kallo @ Kalawati for offence under Section 120-B IPC whereas the appellant No.2 Rajendra Singh has been convicted for offence 467, 468, 471 of IPC and the appellant No.3 and 4 Dharamvir and Veero have been convicted for offence under Section 467/120-B of IPC. The conviction of the appellants for the above mentioned offences is hereby affirmed.
39. So far as the question of sentence is concerned, the appellants and the complainant had filed an I.A.No.1000/2020 under Section 320(1) Cr.P.C. for compromise. The Principal Registrar after recording the statements of the witnesses gave the following report:- 14 CRA No.5064/2018
After verifying from complainant/ respondent Smt. Vimla Devi and accused/appellant No.1 to 4 that they have arrived at compromise voluntarily, without any threat, inducement and coercion.
According to Sec. 320 of Cr.P.C. The offences U/S Sec. 467, 468, 471 and 120-B of IPC are not compoundable.
40. It is submitted by the counsel for the appellants that all the appellants were granted anticipatory bail by this Court by order dated 29.12.2011 passed in MCRC No.9425/2011 and therefore, they did not remain in jail during the trial. However, the appellants No.2 to 4 are in jail from the date of judgment i.e. 28.06.2018, which comes to three years and 12 days. It is further submitted that so far as the appellant No.1 Smt. Kallo @ Kalawati is concerned, she was granted bail by order dated 25-8- 2020 and thus, she has remained in jail for a period of 2 years and 2 months.
41. It is submitted that so far as the appellants No.2 to 4 are concerned, they have already served more than half of the jail sentence whereas the appellant No.1 has served jail sentence of 2 years and 2 months. It is submitted that since, no minimum sentence is provided for offence under Sections 467, 468, 471 and 120-B of IPC, therefore, the appellants may be awarded jail sentence already undergone by them.
42. Per contra, the prayer made by the counsel for the appellants is vehemently opposed by the counsel for the State. It is submitted that the cardinal principle of sentencing policy is to deter the wrong doer. In the present case, all the appellants are closely related to the complainant and had their share in the property but by preparing a forged power of 15 CRA No.5064/2018 attorney of the complainant Smt. Vimla Devi, the appellants tried to deprive her from her valuable rights in a dishonest manner. It is submitted that under these circumstances, no leniency should be shown.
43. Considered the submissions made by the counsel for the parties.
The Supreme Court in the case of Shyam Narain Vs. State (NCT of Delhi) reported in (2013) 7 SCC 77 has held as under :
14. Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent.
True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
15. In this context, we may refer with profit to the pronouncement in Jameel v. State of U.P., wherein this Court, speaking about the concept of sentence, has laid down that 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.
16. In Shailesh Jasvantbhai v. State of Gujarat the Court has observed thus: (SCC p. 362, para 7) "7. ... Friedman in his Law in Changing Society 16 CRA No.5064/2018 stated that: 'State of criminal law continues to be--as it should be--a decisive reflection of social consciousness of society.' Therefore, 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."
17. In State of M.P. v. Babulal, two learned Judges, while delineating about the adequacy of sentence, have expressed thus: (SCC pp. 241-42, paras 23-24) "23. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.
24. The object of punishment has been succinctly stated in Halsbury's Laws of England (4th Edn., Vol. 11, Para 482), thus:
'482. Object of punishment.--The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation 17 CRA No.5064/2018 of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided.'"
(emphasis in original)
18. In Gopal Singh v. State of Uttarakhand, while dealing with the philosophy of just punishment which is the collective cry of the society, a two-Judge Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors.
19. The aforesaid authorities deal with sentencing in general. As is seen, various concepts, namely, gravity of the offence, manner of its execution, impact on the society, repercussions on the victim and proportionality of punishment have been emphasised upon. In the case at hand, we are concerned with the justification of life imprisonment in a case of rape committed on an eight year old girl, helpless and vulnerable and, in a way, hapless. The victim was both physically and psychologically vulnerable. It is worthy to note that any kind of sexual assault has always been viewed with seriousness and sensitivity by this Court.
The Supreme Court in the case of Raj Bala Vs. State of Haryana reported in (2016) 1 SCC 463 has held as under :
4. We have commenced the judgment with the aforesaid pronouncements, and our anguished observations, for the present case, in essentiality, depicts an exercise of judicial discretion to be 18 CRA No.5064/2018 completely moving away from the objective parameters of law which clearly postulate that the prime objective of criminal law is the imposition of adequate, just and proportionate punishment which is commensurate with the gravity, nature of the crime and manner in which the offence is committed keeping in mind the social interest and the conscience of the society, as has been laid down in State of M.P. v. Bablu, State of M.P. v. Surendra Singh and State of Punjab v. Bawa Singh.
* * * * * * * * A court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio-cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective.
44. This Court has already come to a conclusion that the appellant No.2 Rajendra Singh had not only prepared a forged Power of Attorney 19 CRA No.5064/2018 Ex.P/6 but thereafter on the strength of the said forged Power of Attorney he executed a false sale deed in favour of appellant No.1 Smt. Kallo @ Kalawati by projecting that an amount of Rs.1,94,000/- has been paid to the complainant by way of consideration amount. The appellants No.3 and 4 namely Dharmvir and Veero also actively assisted the appellant No.2 in preparing the forged Power of Attorney Ex.P/6 and also in executing a false sale deed Ex.P/3 in favour of the appellant No.1 Smt. Kallo @ Kalawati.
45. Under these circumstances, no leniency can be shown to them.
Accordingly, the jail sentence of R.I. of 5 years and fine of Rs. 2000/-
with default imprisonment of 6 months awarded to the appellant no. 2 for offence under Sections 467, 468 and 471 of I.P.C. and to appellants no. 3 and 4 for offence under Sections 467/120-B of IPC are hereby affirmed.
46. So far as the appellant No.1 Smt. Kallo @ Kalawati is concerned, it is submitted by the counsel for the appellants that she had a faith on the appellant No.2 Rajendra Singh who is her Devar. She is an illiterate lady and without sensing any foul play on the part of appellants No.2 to 4 she put her thumb impression on the documents on which she was asked to do so. In fact she has also become a victim of misdeeds of the appellants No.2 to 4. It is submitted that the complaint was filed by the complainant in the year 2009 and in the cause title, the age of the appellant No.1 Smt. Kallo @ Kalawati was mentioned as 45 years and thus it is submitted that even if it is presumed that the appellant No.1 was of 45 years in the year 2009, then it is clear that at present she is around 56-57 years of age.
Under these circumstances, she may be awarded jail sentence for the 20 CRA No.5064/2018 period already undergone by her. It is further submitted that the appellant No.1 is ready and willing to pay the enhanced fine amount.
47. Considered the submissions made by the counsel for the appellant.
48. So far as the appellant No.1 Kallo @ Kalawati is concerned, it has already been observed that there is nothing on record to show that she had played any role in preparation of forged Power of Attorney Ex.P/6.
The only role assigned to her was that she had appeared before the Office of Sub Registrar, Morena as purchaser of the land in dispute and put her thumb impression on the false sale deed Ex.P/3 and the appellant No.1 has also been convicted for offence under Section 120-B of IPC only.
49. Under these circumstances, as the appellant No.1 Smt. Kallo @ Kalawati is a lady aged about approximately 57 years, this Court is of the considered opinion that some leniency can be shown while awarding the jail sentence to her.
50. Accordingly, she is awarded jail sentence which has already been undergone by her subject to payment of fine of Rs.1,00,000/- within a period of one month from today.
51. It is made clear that if the fine amount is not deposited, then the jail sentence of rigorous imprisonment of five years with fine of Rs.2000/-
with default imprisonment of six months rigorous imprisonment shall automatically get revived and the Trial Court shall be obliged to issue warrant of arrest against the appellant No.1 Smt. Kallo @ Kalawati for undergoing the remaining jail sentence.
52. With aforesaid modification, the judgment and sentence dated dated 28.6.2018 passed by 5th Additional Sessions Judge, Morena in S.T. 21 CRA No.5064/2018 No.74/2012 is hereby affirmed.
53. The appeal so far as it relates to the appellant No.1 Smt. Kallo @ Kalawati is partially allowed to the extent mentioned above and the appeal filed by the respondents No.2 Rajendra Singh, appellant No.3 Dharmvir and appellant No.4 Veero is hereby dismissed. The jail sentence awarded to the appellants no. 2 to 4 shall run concurrently.
54. Since the appellants No.2 to 4 are in jail, therefore free copy of the judgment be supplied to them for their information.
(G.S. Ahluwalia) Judge (alok) ALOK KUMAR 2021.07.21 12:18:34 +05'30'