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Showing contexts for: section 363,366 ipc in Afjal vs State Of U.P. on 5 May, 2025Matching Fragments
Hon'ble Sandeep Jain,J.
Per: Sandeep Jain,J.
1. This criminal appeal arises out of a judgment and order of conviction and sentence dated 09.01.2014, passed by Additional Sessions Judge, Court No. 5, Ghaziabad in Session Trial No. 1224 of 2012 (State Vs. Afjal and Another), arising out of Case Crime No. 1001 of 2011, under Sections 363, 366, 376 I.P.C., Police Station Sihani Gate, District Ghaziabad, whereby the appellant has been convicted for the offences under Section 363 I.P.C. and sentenced to undergo three years rigorous imprisonment with fine of Rs. 3,000/-. In default of payment of fine to undergo further rigorous imprisonment of six months, to undergo five years rigorous imprisonment with fine of Rs. 5,000/-, for the offence under Sections 366 I.P.C. and in default of payment of fine to undergo further rigorous imprisonment for one year and under Section 376 I.P.C. the appellant has been sentenced to undergo life imprisonment with fine of Rs. 10,000/-, in default to undergo rigorous imprisonment of one year. All the sentences have been ordered to run concurrently.
2. Factual matrix of the case is that on 12.08.2011 the informant 'S' P.W.-1 had gone on her work and at that time her minor daughter,the victim aged about 12 years (examined as P.W.-5 in the trial Court) was along with informant's younger daughter S-1 (examined as P.W.-6 in the trial Court), then at about 05:00 p.m. accused appellant Afjal came to the informant's house and enticed the victim and took her away. The informant searched the victim but when she failed to trace her out, she was of the firm belief that the victim has been enticed by Afjal, Dheeru, Kapil and Makna. The victim was seen in the company of the above accused by Naseer Ahmad (P.W.-2) and this fact was told to informant by P.W.-2. The informant, after failing to trace the victim, has given a written tehrir (Ex. Ka-1) on 18.08.2011 at Police Station Sihani Gate, Ghaziabad, on the basis of which first information report (Ex.Ka-3) was registered on 18.08.2011 at 17:50 hours, being case crime no. 1001 of 2011, under Sections 363, 366 I.P.C. and a corresponding entry in the G.D. was made at serial no. 50 at 17:50 hours. The victim P.W.-5 was recovered on 22.08.2011 at 13:10 hours from near Jakheera Police Booth, Delhi on the information provided by informer. The Recovery Memo is Ex. ka-2. The victim P.W.-5 was taken to District Women Hospital, Ghaziabad on 24.08.2011 for medical examination but she refused to get herself examined. Ultimately, the victim's mother consented for the medical examination of victim on 27.08.2011 and thereafter she was examined by Dr. Sushma Chandra (P.W.-4) on 27.08.2011 at 12:25 p.m. In the medical examination, no internal injury marks on any part of body or private parts was found. The hymen was found torn with pink edges, no bleeding was seen. The vagina of the victim admitted little finger with difficulty. Slides of vaginal smear were prepared for examination of spermatozoa. The medical examination report of the victim is exhibit ka-4.
4. The victim P.W.-5's ossification test was conducted in the District Hospital, Ghaziabad on 23.08.2011. As per the report of C.M.O., Ghaziabad (Ex. Ka-9) dated 24.08.2011, on the basis of x-ray report (Ex. Ka-10) and her general appearance her age was determined to be about 14 years.
5. After investigation charge-sheet (Ex. Ka-7) was submitted by S.S.I. Ved Prakash (P.W.-7) against accused Afjal under Sections 363, 366, 376 I.P.C., against accused Kapil @ Kafeel under Sections 363, 366 I.P.C., on which cognizance was taken. Charge-sheet against accused D (juvenile) under Sections 363, 366 I.P.C. was submitted in juvenile Court. The trial Court had framed charges against accused Afjal under Section 363, 366, 376 I.P.C. and Kapil @ Kafeel under Sections 363, 366 I.P.C. on 03.10.2012, to which the accused had denied and pleaded not guilty and asked for trial.
32. We have considered the submission of the learned Amicus Curiae on reduction of sentence awarded by the trial Court to the accused for committing offence under Section 376 I.P.C. We are in agreement with the sentence imposed by the trial Court on the appellant under Section 363, 366 I.P.C. but the appellant has been convicted under Section 376 I.P.C. with life imprisonment and a fine of Rs. 10,000/- and in default to undergo rigorous imprisonment of one year. In the present case the appellant has till date suffered incarceration of about 13 years in jail. At the time of commission of offence, the accused was about 35 years old. The minimum sentence for offence of rape is 7 years which can be extended upto 10 years or for life imprisonment. The age of the victim was not under 12 years at the time of offence. In view of the above facts, the trial Court has awarded excessive sentence of life imprisonment for offence of rape. We are of the considered opinion that the punishment awarded to the accused for the offence of rape requires reduction and in the facts and circumstances of this case, if the accused is sentenced with the period already undergone in jail and to compensate the victim, if the fine imposed on the accused is enhanced from Rs.10,000/- to Rs.50,000/- and in default the accused is ordered to undergo a further rigorous imprisonment of one year from today, then it will meet the ends of justice. Accordingly, the sentence imposed by the trial Court under Section 376 I.P.C. is modified and reduced to the period already undergone by the accused in jail but the amount of fine is increased from Rs.10,000/- to Rs.50,000/-, in default to undergo rigorous imprisonment of one year. The sentence of the trial Court under Section 363, 366 I.P.C. and the fine imposed under Section 363, 366 I.P.C. is maintained. To this extent, the appeal deserves to be partly allowed.