Dilip Giri vs State Of U.P. on 30 October, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR RESERVED

Court No. – 58

Case :- CRIMINAL APPEAL No. – 5874 of 2015

Appellant :- Dilip Giri

Respondent :- State Of U.P.

Counsel for Appellant :- Brij Raj Singh

Counsel for Respondent :- G.A.

Hon’ble Amar Singh Chauhan,J.

Challenge in this appeal is to the judgment and order dated 17.11.2015 passed by the learned Additional District and Sessions Judge, F.T.C. Court No. 1, Muradabad in Sessions Trial No. 98 of 2011 (State Vs. Dilip Giri) arising out of Case Crime No. 115 of 2010, under Section 376 IPC, Police Station Hazrat Gadi, District Muradabad, whereby the appellant Dilip Giri has been convicted and sentenced to 14 years rigorous imprisonment and a fine of Rs. 50,000/- with default stipulation.

In a short compass, the facts which give rise to the present appeal are that first information report was lodged by the informant on 14.7.2010 at about 15:10 hrs with the allegation that on the said date in the morning, he was doing work in the sugar cane field. The informant’s sister came there with meal. After having food and finishing work, he returned to the house but his sister gone to collect woods and did not return back. Again he reached the field at 1:00 P.M. and found that his sister was crying in the sugarcane field and accused Dilip Giri was committing rape. He tried to apprehend him but could not succeed and appellant fled away. After the registration of the case, the investigation was entrusted to Investigating Officer who prepared the site plan, got victim medically examined, took possession of the salvar and chunni and sent to the forensic laboratory for obtaining reports, prepared recovery memo, copied the chik FIR and G.D. in the case diary and after concluding the investigation, charge-sheet was submitted against the appellant under Section 376 IPC. The charges was framed in the aforesaid section to which accused appellant denied and claimed to be tried.

To bring home the guilt of the accused, the prosecution has examined as many as six witnesses. P.W. 1 is the informant Sugar Pal Singh. He has stated that he was doing work in the sugar cane field on 14.7.2010. His sister came there with meal and after taking food and finishing the work, he returned to the house but his sister gone to collect woods. When he returned at 1:00 P.M. at the field he found that his sister was crying and accused-appellant after committing rape fled away.

P.W. 2 is the victim. She has stated that two years ago when she went to the field of sugarcane to give meal to her brother and from there she went to collect woods, then the accused-appellant Dilip Giri, resident of her village, dragged her to the field of sugar cane and committed rape against her will.

P.W. 3 is the Suresh, the eye-witness but he did not support the prosecution case and declared hostile by stating that he could not see the accused on the place of occurrence and he was out of the village on the said date.

P.W. 4 is Constable Virendra Kumar who is scriber of the FIR and stated that he was posted as Constable Clerk, prepared the chik report and also made entry in the G.D. and proved the same.

P.W. 5 Dr. Manisha Verma has stated that on 14.7.2010, she was working as Emergency Medical Officer in the District Hospital, Moradabad. The victim got medically examined by her at 08:45 P.M. The victim has 149 cms of height, teeth 14/14, breast fully developed, hymen old torn, vagina admit one finger, vagina smear was taken for pathology test. No injury was found on the private part of the body. In the ossification test report, the age of the victim was found 16 years old. No opinion about the rape can be given.

P.W. 6 S.I. Sartaj Ali is the Investigating Officer of the case. He has stated that he copied the chik FIR and the G.D. in the case diary and recorded the statement of the complainant and victim. He has also prepared the site plan and took in possession of the under-garments of the victim and also copied the statement under Section 164 Cr.P.C. in the case diary. After completing the investigation, he has submitted the charge-sheet.

The accused-appellant in his statement under Section 313 Cr.P.C. had denied the occurrence. He has stated that on account of village enmity and old land dispute, he has been falsely implicated in this case.

Learned Additional District and Sessions Judge, F.T.C. Court No. 1, Muradabad after perusing the record and hearing the counsel for the parties came to the conclusion that the prosecution has established the charge of rape against the appellant and, therefore, convicted and sentenced him as has already mentioned hereinabove vide judgment and order, hence this appeal questioning the said judgment.

Feeling aggrieved, the accused appellant has come up in this appeal.

I have heard learned counsel for the appellant and learned Additional Government Advocate for the State and perused the record of the case.

Learned counsel for the appellant mainly assailed the impugned judgment on the point of sentence and stated that he does not want to quash the appeal with regard to the conviction in the offence punishable under Section 376 IPC. It is submitted by learned counsel for the appellant that the custodial sentence of 14 years R.I. is quite harsh, excessive and hypothetical because no injury was found on any part of the body of the victim and hymen was found old torn. It is further submitted that victim was found 16 years old in the medical examination and sexual intercourse, if any was consensual. It is further argued that appellant is labour facing his daily routine as hand to mouth and unable to deposit the fine as imposed.

Before adverting to the claim of the parties, it is necessary to reproduce the Section 375 of the I.P.C.

Section 375 (as is stood before the Criminal Law Amendment Act 2013) of the IPC 1860 states-

“A man is said to commit ‘rape’, except in the case hereinafter accepted, as sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

……………………………

Sixthly with or without her consent, when she is under 16 years of age.”

In the instant case, the victim was found above 16 years old and she was competent to give her consent. Moreover no mark no injury was found on private parts. Hymen was old torn and vagina admit a finger easily. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu, AIR 1991 SC 1463, the Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:

“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 etc.”

In the case of Dhananjoy Chatterjee Vs State of W.B., [1994] 2 SCC 220, this 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 credibility. 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. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175.

It has been held in the said case 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.

This position was reiterated by a three-Judge Bench of the Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein it was observed as follows:-

“99…..The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

100. 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 victim of the crime but the society at large also while considering the imposition of appropriate punishment. 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 both the criminal and the victim belong.”

In Jameel vs. State of Uttar Pradesh (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus:-

“15. 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.

16. 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.”

In Guru Basavaraj @ Benne Settapa vs. State of Karnataka, (2012) 8 SCC 734, while discussing the concept of appropriate sentence, the Court expressed that:

“It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored.”

In Gopal Singh vs. State of Uttarakhand JT 2013 (3) SC 444 held as under:-

“18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence….”

So far as the sentence is concerned, the Apex Court in the case of Dinesh @ Buddha Vs. State of Rajasthan in Criminal Case No. 263 of 2006 decided on 28.10.2006 reported in MANU SC 80 78/2006 states that:

The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. 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. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are no extenuating or mitigating circumstances available on record which may justify imposition of any sentence less than the prescribed minimum on the appellant. To show mercy in the case of such a heinous crime would be travesty of justice and the plea of leniency is wholly misplaced.

In view of what has been discussed above, appeal is partly allowed. The conviction of appellant under Section 376 IPC is confirmed but the sentence of 14 years rigorous imprisonment under Section 376 IPC is reduced to period of 8 years and the fine was reduced to Rs. 20,000/- as it would meet the end of justice. Out of the above fine, 2/3rd will be paid to the victim.

Let the certified copy of this judgment be sent to the court concerned for preparing and forwarding the modified conviction warrant of the accused-appellant to the concerned jail.

Order dated: 30.10.2017

Prakhar

 

 

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