Mohammad Rehan vs State Of U.P. on 3 April, 2024

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Allahabad High Court

Mohammad Rehan vs State Of U.P. on 3 April, 2024

1. This criminal appeal is directed against the judgment and order dated 26.7.2019, passed by the First Additional Session Judge/Special Judge (POCSO Act), Kaushambi in Sessions Trial No.125 of 2016, arising out of Case Crime No.319 of 2016, under Sections 452, 377, 506 IPC, Section ¾ POCSO Act and Section 3(2)(v) SC/ST Act, Police Station Pipari, District Kaushambi; whereby the appellant Mohammad Rehan has been convicted under section 452 IPC and sentenced to five years imprisonment alongwith fine of Rs.5,000/-; sentenced to ten years imprisonment alongwith fine of Rs.10,000/- under Section 377 IPC; sentenced to two years imprisonment alongwith fine of Rs.2,000/- under Section 506 IPC; sentenced to twelve years imprisonment alongwith fine of Rs.12,000/- under Section ¾ POCSO Act; sentenced to life imprisonment alongwith fine of Rs.15,000/- under Section 3(2)(v) SC/ST Act and in default of payment of fine to undergo two months additional imprisonment, each. All the sentences to run concurrently.

2. Informant in the present case is the mother of the eleven year old male child, who has been subjected to unnatural offence. The informant (PW-1) is Pasi by caste and is a vegetable seller. She is a original resident of village Saiyed Sarawan, Police Station Charwa, District Kaushambi and had taken a house on rent in village Akbarpur where she lived alongwith her family. On 20.8.2016 the informant had gone to Mundera Mandi for selling vegetable whereafter she returned at about 3.00 PM. When she arrived at her house she was informed by her ten year old son that he was playing in front of the house when the accused on the pretext of offering toffee took him inside the house and subjected him to unnatural offence. The minor son of the informant was weeping outside the house when the informant returned. Informant then attempted to raise a protest with the accused, who threatened her with knife, whereafter the informant came to the Police Station. On the basis of such written report (Ex.Ka.1) First Information Report came to be lodged at Police Station Pipari, District Kaushambi as Case Crime No.319 of 2016 under Sections 377, 506 IPC, ¾ POCSO Act and 3(2)(v) SC/ST Act. The FIR has been lodged on 21.8.2016 at 7.30 in the morning in respect of incident occurred on the previous day i.e. 20.8.2016 during afternoon hours. The investigation proceeded in the matter and the blood sample and underwear of the victim and the accused was taken and sent for scientific examination to the FSL. The victim was also examined by Dr. Himanshu (PW-5) at the Primary Health Centre, Chail at Kaushambi. Following injuries have been found on the victim:-

"Injury- Redness around anal orifice tear anal orifice inner side 0.5 x 0.1 cm."

3. In the opinion of the doctor the injury was simple in nature and caused by hard and blunt object. The victim was referred to district hospital for expert opinion and further evaluation. Investigation proceeded further and ultimately a charge-sheet came to be submitted by the Circle Officer, Chail on 27.8.2016. The concerned Magistrate took cognizance of the charge-sheet and committed the case to the court of Sessions where it got registered as Sessions Trial No.125 of 2016. The concerned court of Sessions framed charges against the accused appellant on 24.6.2017 under Sections 452, 377, 506, ¾ POCSO Act and 3(2)(v) of SC/ST Act. The accused denied the accusations and demanded trial.

4. During the course of trial the informant appeared as PW-1 and has supported the prosecution case. The informant alleged that she has four children. She has verified the written report given to the Police. She has fully supported the prosecution case including the recovery of the underwear of the victim. PW-1 has denied the suggestion that there was some dispute between her and the accused on account of non-payment of outstanding amount due for purchase of fish from the accused.

5. PW-2 is the Head Constable, who has proved the police papers.

6. PW-3 is the victim, who has supported the prosecution case and has alleged that on the pretext of offering him toffee the accused took him inside the house and subjected him to unnatural offence. During cross-examination PW-3 has stated that he resides at Saiyed Sarawan. As per him the place of incident is Akbarpur and the house where the offence was committed situates within the market. Victim's brothers and sisters were playing outside and various persons were moving on the road.

7. Doctor, who has examined the victim has been produced in evidence as PW-5. This witness has found existence of internal injury in the anal region of the victim of the size 0.5cmx0.1cm tear. Redness was also observed on the anal region. According to the doctor the injury could have been caused due to unnatural offence. Other witnesses produced by the prosecution are the I.O. and other formal witnesses.

8. The accused has been confronted with the evidence adduced by the prosecution during trial, wherein the appellant denied the allegation made against him and has stated that he is innocent and has been falsely implicated due to enmity.

9. It is on the basis of above evidence that the trial court has convicted the accused appellant of offence under Sections 452, 377, 506 IPC read with ¾ POCSO Act and 3(2)(v) of SC/ST Act. Aggrieved by the conviction and sentence of accused appellant this instant appeal has been filed before this Court.

10. Sri Shams Tabrez Ali, learned counsel appearing for the appellant submits that the accused appellant has been falsely implicated on account of prior enmity as the informant had not returned the amount payable to him for the meat and fish supplied to her by the appellant. It is further submitted that the injury report on record does not conclusively establish the commissioning of unnatural offence. It is then submitted that the injury could have been caused for other reasons also. Learned counsel further submits that the DNA sample was taken but the DNA report has not been produced.

11. The prosecution has however produced on record the FSL report. As per it the DNA profile was generated of the blood sample and underwear of the victim as well as blood sample and underwear of the accused. The result of the examination shows that only partial DNA profile could be generated and, therefore, no definite opinion could be expressed to connect the DNA profile generated of the accused and the victim. The FSL report, therefore, does not help the cause of the prosecution.

12. Further argument advanced on behalf of the appellant is that the place of incident indicated by PW-1 is her house, whereas PW-3 has disclosed the house of accused to be the place of incident and this material contradiction has been overlooked. Learned counsel also submits that the trial court has misconstrued the evidence on this aspect of the matter and has erroneously overlooked this crucial aspect by observing that this is merely an error of investigation. Sri Ali further argued that there are no allegations in the FIR or the evidence adduced during trial that the offence was committed by the accused on account of caste identity of the victim nor is it proved that the accused was aware that the victim belonged to Scheduled Caste and, therefore, no offence can be said to have been made out under the provisions of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'SC/ST Act').

13. It is also argued that no offence is otherwise made out under the provisions of Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Act').

14. Lastly it is urged by the counsel for the appellant that the appellant has already undergone incarceration of more than eight years and since no evidence has been adduced to implicate the appellant under the SC/ST Act as such it is alternatively urged that the sentence of the accused appellant be reduced and he be let off on the period of incarceration already undergone.

15. Learned AGA, on the other hand, supports the finding returned in the judgment of the court of Sessions on the basis of evidence led during trial.

16. We have heard learned counsel for the parties and have perused the material on record.

17. So far as the conviction and sentence of the accused appellant under the provisions of SC/ST Act is concerned, we find that there is absolutely no evidence led by any of the witness during trial that the offence upon the victim was committed on account of his caste identity. It is also submitted that the prosecution has not adduced any evidence to show that the accused appellant was even aware of the caste identity of the victim. It is, therefore, submitted that the conviction and sentence of the accused appellant under the SC/ST Act is without any basis and, therefore, unsustainable.

18. The offence, in the present case, is alleged to have been committed on 20.8.2016. Section 3(2)(v) of the SC/ST Act as it stood on the date of offence reads as under:-

"3(2)(v)- commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine."

19. After the amendment has been incorporated in SC/ST Act, an offence punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of Scheduled Castes and Scheduled Tribes or such property belongs to such member is to be punished with imprisonment for life and with fine. The necessary ingredients for attracting the offence under Section 3(2)(v) of SC/ST Act would thus be that the base offence draws imprisonment for a term of ten years or more against the person or property belonging to Scheduled Castes/Scheduled Tribes. The other condition for attracting the offence is that the perpetrator of crime is aware that the person against whom such offence is committed is a member of Scheduled Castes/Scheduled Tribes. In order to bring home the charge under Section 3(2)(v) of SC/ST Act the prosecution will have to demonstrate on the basis of evidence led during trial that the perpetrator of crime knew that the victim belongs to Scheduled Castes/Scheduled Tribes. In the facts of the present case, the entire evidence has been perused by us and we do not find any evidence on record to indicate that the accused was even aware of the caste identity of the victim. Unless such evidence is led it cannot be said that an offence under Section 3(2)(v) of SC/ST Act is made out against the accused appellant. In such view of the matter, we are inclined to accept the argument of counsel for the appellant that on the basis of evidence led during trial, by the prosecution, no offence can be said to be made out against the accused appellant under Section 3(2)(v) of SC/ST. The conviction and sentence of the accused appellant under the SC/ST Act is, therefore, reversed.

20. On merits the main submission advanced on behalf of the appellant is that the place of occurrence has not been fixed/determined by the prosecution. It is alleged that the version of PW-1 and PW-3 contradicts each other. On this aspect we have examined the evidence on record. PW-1 in her testimony has alleged that she was informed by the victim that accused on the pretext of offering toffee took him inside the house where the unnatural offence was committed. The statement of PW-3 has also been examined by us. PW-3 has stated that he was playing in front of his house when the accused on the pretext of offering toffee called him inside his house. The exact expression used by PW-3 is reproduced hereinafter:-

"मै पढा नहीं हूं। निशानी अंगूठा लगाता (का०फा) साल महीना जानता हूं। बरसात का महीना था मैं अपने दरवाजे पर खेल रहा था। मेरी मां मुण्डेरा मण्डी गयी थी। मेरे पापा मजदूरी पर गये थे। जब मै खेल रहा था तो रेहान मुझे टाफी देने के बहाने अपने मेरे घर बुला लिया घर के अन्दर ले गया। और मेरे साथ गलत काम किया। फिर मेरी मां आयी तो मैने सारी बात अपने मां को बतायी। मेरी डाक्टरी हुयी थी। पुलिस वालो ने मेरा वयान लिया था। रिपोर्ट मेरी मम्मी ने लिखाया था। मेरी मां उलाहना देने गयी थी तो रेहान उसे चाकू लेकर दौडा लिया था।"

21. There appears to be some discrepancy in the statement of PW-3, inasmuch as his statement can be construed differently and an inference could be drawn that the offence was committed inside the house of the accused appellant. However, we are are not inclined to attach much importance to this aspect of the matter considering the fact that the victim is only 10-11 years old. The statement of PW-3 in its entirety suggests that the house where offence is committed is within the main market and her sisters and brothers were playing outside. The statement of PW-3 will have to be read as a whole and an isolated statement cannot be read out of context to support the defence case. The statement that brothers and sisters of the victim were playing outside the house lends credence to the stand of learned State counsel that in fact it was the house of PW-1 where the offence was committed. PW-3 during trial has specifically identified the accused as being the perpetrator of crime. There is thus not much of a substance regarding identity of the accused or the place of occurrence.

22. So far as the commissioning of offence is concerned, the statement of doctor as well as the medico-legal report clearly shows existence of redness around anal orifice and there is a tear in the inner anal orifice of the size 0.5cmx0.1cm. The medical examination of the victim has been conducted on 21.8.2016 at 1.40 PM which is within 24 hours of the incident. The victim as well as her mother both are specific in implicating the accused appellant of committing the offence. Upon evaluation of the oral evidence led by the prosecution in the form of statement of PW-1 and PW-3 coupled with the medico-legal report on record we are inclined to concur with the opinion expressed by the court below that in fact the ten year old minor victim was subjected to unnatural offence. The finding returned by the court of Sessions in that regard is sustained.

23. Learned counsel for the appellant has lastly urged that the punishment imposed upon the accused appellant in the facts and circumstances of the case is highly excessive. It is submitted that the punishment specified under Section 377 IPC is life or up to ten years and fine. At the time when the offence was committed the minimum punishment under POCSO Act was seven years. It is submitted that accused appellant has no criminal history and has actually remained in jail for over 7½ years and with remission the period of incarceration would be above eight years. Learned counsel, therefore, submits that this is the first offence of the accused appellant and it would not be necessary to award maximum punishment for the offence established against the accused appellant. It is submitted that the incarceration of more than eight years with remission would adequately sub-serve the interest of justice.

24. On the aspect of sentencing we may refer to a recent judgment of this Court in Criminal Appeal No.2878 of 2013:-

"14. While coming to the conclusion that the accused is the perpetrator of the offence, whether sentence of life imprisonment and fine is adequate or the sentence requires to be modified in the facts and circumstances of this case and in the light of certain judicial pronouncements and precedents applicable in such matters. This Court would refer to the following precedents, namely, 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."

15. '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.

16. 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.

17. 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.

18. As discussed above, ''reformative theory of punishment' is to be adipted 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 cases 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."

25. We have carefully examined the submission in that regard and we find that the accused appellant is the first offender. There is no criminal history of any prior sexual perversity attributed to the accused appellant. The accused appellant has also undergone incarceration of more than eight years with remission. Minimum punishment for the offence under the POCSO Act is seven years. Keeping in view the criminal jurisprudence which encompasses reformative and corrective theory, as also the doctrine of proportionality, it would not be necessary to award maximum sentence to the appellant, who is the first offender. In such circumstances, we are of the view that the sentence awarded to the accused appellant under Section 377 IPC deserves to be modified and substituted with the sentence already undergone by him. The appeal, accordingly, is partly allowed. The fine imposed by the accused appellant, however, is maintained. The judgment and order passed by the court below in Sessions Trial No.125 of 2016, arising out of Case Crime No.319 of 2016, under Sections 452, 377, 506 IPC, Section ¾ POCSO Act and Section 3(2)(v) SC/ST Act, Police Station Pipari, District Kaushambi is modified, accordingly. The appellant shall be released, forthwith, on the period undergone by him and upon deposit of fine or completion of default sentence in lieu of fine unless he is required in any other case, subject to compliance of Section 437A Cr.P.C.

 
Order Date :- 3.4.2024
 
RA
 

 

 
(Mohd. Azhar Husain Idrisi,J.)         (Ashwani Kumar Mishra, J.)

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Allahabad High Court