Allahabad High Court
Prabhat Singh @ Kalu Ram @ Javed vs State Of U.P. on 31 January, 2020
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 84 Case :- CRIMINAL APPEAL No. - 2327 of 2015 Appellant :- Prabhat Singh @ Kalu Ram @ Javed Respondent :- State of U.P. Counsel for Appellant :- Radhey Shyam,Gyanendra Kumar Singh Counsel for Respondent :- Govt.Advocate Hon'ble Ajit Singh,J.
1. Heard learned counsel for appellant, Shri Radhey Shyam and learned AGA Shri Shamsher Bahadur Maurya and Shri Ram Adhar Ram appearing for the State.
2. This Criminal Appeal under Section 374 (2) of Cr.P.C. has been filed by the appellant against judgment and order dated 02.02.2015 passed by learned Additional District and Sessions Judge, Fast Track Court, Farrukhabad, District Farrukhabad in Session Trial No. 376 of 2013 (Case Crime No. 258/2013), under Sections 366/376 of IPC, Police Station Mau Darwaja, District - Farrukhabad (State Vs. Prabhat Singh @ Kalu Ram @ Javed) convicting and sentencing the appellant for the offence under Sections 366/376 IPC, five years' RI for the offence under Section 366 IPC and also imposed a fine of Rs. 5,000/-, in default of payment of fine three months further RI, 10 years' RI for the offence under Section 376 IPC and also imposed a fine of Rs. 25,000/-, in default of payment of fine one year further R.I. All the sentences were directed to run concurrently.
3. In brief prosecution case is that Seema Begum, daughter-in-law of complainant Lal Mohammad, was sick of ghost. Accused appellant was called by complainant's son to remove ghost and accused started doing treatment/exorcise. On 18.08.2013 the accused stayed at the house of complainant. In the morning on 19.08.2013 he took with him the complainant's daughter-in-law Seema Begum and his daughter Km. Yasmeen aged about 14 years to Ghatiyaghat on the pretext of doing exorcise/treatment. The accused asked the complainant's daughter-in-law to sit on the side of Gangapul and took Seema Begum across the bridge to remove the ghost. Accused enticed away the daughter of complainant (Km. Yasmeen) and the complainant started search of his daughter. His daughter-in-law returned home and informed the complainant about the incident that Prabhat Sngh took away the complainant's daughter. FIR (Ex. Ka-1) was registered in this matter and charge sheet was submitted after investigation of the matter against accused.
4. On 15.01.2014 charge was framed against the accused appellant under Sections 363, 366, 376 of IPC. The accused appellant denied the charges and claimed for trial.
5. Lal Mohammad was examined as PW -1, Km. Yasmeen was examined as PW - 2, Dr. Krishna Bosh was examined as PW-3 and SI Gyan Prakash Singh as PW-4.
6. Under Section 313 Cr.P.C. the accused has stated that he has been falsely implicated in this case on false and fabricated evidence. He also stated that mobile phone of Yoonush was recovered from Yasmeen and her secret was revealed. Being annoyed with this, this prosecution story was cooked up by the complainant. On the date of incident Yoonush had taken away Yasmeen. However, accused denied to adduce defence evidence although he was allowed opportunity for the same. He did not adduce defence evidence. Therefore, the its opportunity was closed on 16.01.2015.
7. PW-1, Lal Mohammad has supported the prosecution story and deposed against the accused that he was informed by her daughter-in-law that accused appellant has taken away her and her sister-in-law Yasmeen to Ghatiyaghat on the pretext of doing exorcise and asked Yasmeen to sit before Gangapul and took the complainant's daughter-in-law across the bridge.
8. PW-2, Km. Yasmeen, has also supported the prosecution story in her examination-in-chief and stated that she was having confusion in mind and accused Javed was called out by her brother Sayed to do exorcise. Accused was doing treatment of her and her bhabhi. On 18th August, he stayed at the house and in the next morning he took her and her bhabhi to Ghatiyaghat and accused Javed asked her bhabhi to sit this side of the bridge and took her across the next side of the bridge where Javed fed her some prasad. After taking the same, her mental faculty was not working well. She does not know where she was taken away by Javed. He did bad work with her in room. Javed kept her for 10-12 days in room. She does not know any identity of the room. In that room Javed did bad work with her by putting her all clothes off. She understands the meaning of bad work. He penetrated his urine pipe into her urine place. After 8-10 days at the Jasmayee Gate police caught her and Javed.
9. PW-3 Dr. Krishna Bosh in his examination in chief has stated that he could not give definite opinion about rape. The injury in the vagina of victim could be caused by hard blunt object. The injury was possible to be caused by human sex organ also. He opined that probably the girl was 18 years of age. He further stated that supplementary report was prepared by him with his own writing and signature and was marked as Ex. Ka-4. In his examination in chief Dr. Krishna Bosh, PW-3, has stated that on the basis of pathology report dated 10.09.2013 No. 428/13 there were no sperm.
10. Before the learned Trial Court the accused appellant has relied upon the decision in the case of Krishan Kumar Malik Vs. State of Haryana, 2011 (2) 68 CALT SC 978 to set up a case of defence that since there were no sperm reported in the pathology report, no case of rape would be made out against the appellant. The defence set up by the accused was disbelieved by the learned Trial Court in view of the statement of victim Yasmeen who has stated that accused had committed rape upon her. Moreover, the learned Trial Court has also inferred from the statement of Dr. Krishna Bosh, PW-3 that the injury caused in the vagina of the victim was caused by the sex organ of the accused as he had established physical relationship with the victim.
11. After finding the accused appellant guilty, the learned Trial Court has convicted and sentenced the appellant by the impugned judgment and order.
12. The learned counsel for the accused appellant has argued that the learned Trial Court has committed error of law in passing the impugned order of conviction and has not taken into consideration the defence set up by the accused appellant. He has further argued that the daughter-in-law was not examined in trial proceeding by the prosecution for the reasons best known to them, who is alleged to have gone with the victim along with accused on the date of incident. Thus, a vital piece of evidence was neither produced nor looked into by the Trial Court and it cannot be said that the charges levelled upon the accused were proved by the prosecution beyond reasonable doubt. Therefore, the appeal is liable to be allowed and the impugned judgment and order deserves to be quashed by this Court. Learned counsel for the appellant further submits that the appellant was awarded maximum sentence of ten years and that he has already been in jail since 30.08.2013 i.e. since before the order of conviction dated 02.02.2015 passed by the learned Trial Court. At last the learned counsel has argued that the deceased was given 10 years' punishment and he has already served more than six and half years in imprisonment by now and he is a young person and he has to support his family. A lenient view be taken by this Court on the quantum of sentence of the accused.
13. On the other hand, the learned AGA, Shri Shamsher Bahadur Maurya and Shri Ram Adhar Ram have supported the impugned judgment and order passed by the learned Trial Court and have submitted that there is no infirmity or illegality in the impugned judgment and order. It is based on cogent evidence of complainant, PW-1, victim, PW-2 as well as the PW-3, the doctor who examined the victim. The appeal lacks merit and is liable to be dismissed. However, the learned AGA have submitted that there have no objection if this Court considers the mitigating circumstances.
14. While dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, held as under:
"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole.
Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs- 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same."
15. 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 re-culturization. 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."
16. In Sham Sunder vs Puran, (1990) 4 SCC 731, where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:
"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."
17. In State of MP vs Najab Khan, (2013) 9 SCC 509, the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the court observed as follows:-
"In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. 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. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."
18. Earlier, "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 proportionately. 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.
19. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with 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 realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in 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.
20. In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.
21. 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 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.
22. Considering the facts and circumstances of the case and the substantive period of sentence of more than six and half years already undergone by the appellant in this case and the fact that the appellant is a young person; there is no bread winner in the family of the appellant and that he has realized the mistake committed by him and is remorseful of his conduct to the society to which he belongs and now he wants to transform himself, I am of the considered opinion that he should be given a chance to reform himself and he be allowed to give his better contribution to the society to which he belongs.
23. Consequently, the sentence is modified to the period already undergone by the appellant in this case and the fine imposed by the trial court is confirmed.
24. The appeal stands partly allowed as aforesaid. The appellant is in jail. He will be released forthwith if he deposits the amount of fine as imposed aforesaid.
25. Office is directed to transmit a copy of this order to the learned Sessions Judge, Farrukhabad for compliance.
26. Office is also directed to send back the record of the trial court immediately.
Order Date :- 31.1.2020 LBY