Dalveer vs State Of U.P. on 30 October, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR RESERVED

Court No. – 58

Case :- CRIMINAL APPEAL No. – 1966 of 2014

Appellant :- Dalveer

Respondent :- State Of U.P.

Counsel for Appellant :- Anurag Pathak,Noor Mohammad,Ramanuj Tripathi

Counsel for Respondent :- Govt. Advocate

Hon’ble Amar Singh Chauhan,J.

Challenge in this appeal is to the judgment and order dated 17.4.2014 passed by the learned Additional Sessions Judge, Court No. 4, Aligarh in Sessions Trial No. 691 of 2012 arising out of Case Crime No. 477 of 2011, under Sections 376, 452, 506(1) IPC, Police Station Gandhi Park, District Aligarh, whereby the accused appellant has been convicted and sentenced to 10 years rigorous imprisonment and a fine of Rs. 5,000/- under section 376 IPC; 5 years rigorous imprisonment and a fine of Rs. 3,000/- under section 452 IPC and 1 years rigorous imprisonment under section 506(1) IPC with default stipulation.

In a short compass, the facts which give rise to the present appeal are that the application was moved by the father of the victim which was addressed to the S.S.P. Aligarh on 27.6.2011 with the allegation that his daughter aged about 14 years old had passed the Class VIII. The accused Dalveer of his village came to the house at night ten days ago and forcibly committed rape with his daughter. On hue and cry, the complainant reached there and found that the accused Dalveer was committing rape. The accused-appellant was apprehended on the spot but he fled away by extending threat to kill. On this application, the case was registered bearing Case Crime No. 477 of 2011, under Sections 452, 504, 506, 376 IPC which was entered into G.D. After the registration of the case, the investigation was entrusted to Inspector Veer Singh. The victim got medically examined and after concluding the investigation, charge-sheet was submitted against the appellant under Sections 452, 504, 506, 376 IPC. The charges were framed in the aforesaid sections 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 five witnesses. P.W. 1 is the complainant Mohan Lal. He has deposed that at the time of occurrence, his daughter was 14 years old and in the night near about one and a half year ago, they were sleeping in the court yard of the house. On hue and cry of his daughter, he reached at the place of occurrence and found that the appellant was committing rape. When he tried to apprehend, appellant slapped him three to four times and also extended threat to kill by tamancha and ran away.

P.W. 2 is the victim and she has stated that when she was sleeping in the court yard, the accused-appellant came there and after disrobing and gagging her mouth, he has committed rape against her will. When she cries after removing cloth from her mouth, he extended threat to kill by putting tamancha.

P.W. 3 Dr. Amita Rani Gupta and she has stated that on 30.6.2011 she was working as Emergency Medical Officer in the Mohan Lal Gautam Women Hospital, Aligarh. The victim got medically examined by her at 11:35 A.M. She has 4 feet 10 inches of height, weight 40 kgs, teeth 16/16, breast fully developed, auxiliary and pubic hair present, hymen old torn, vagina admit one finger easily, vaginal smear was taken for pathology test but no spermatazoa was found. In the internal examination, no injury was found. The age of the victim was found 16 years old.

P.W. 4 Constable Abhinendra Sharma stated that he was posted as Constable Clerk on 29.6.2011 at Police Station Gandhi Park, Aligarh. He has prepared the chik report no. 347 of 2011 and registered the case bearing no. 477 of 2011, under Sections 452, 504, 506, 376 IPC which was entered into G.D. no. 2 at 00:50 o’ clock.

P.W. 5 Inspector Veer Singh is the Investigating Officer. He has stated that the case was handed over to him on that very date. He copied the chik FIR and G.D. in the case diary. He also recorded the statement of the complainant and arrested the accused-appellant and recorded his statement in the C.D. The medical report and the statement under Section 164 Cr.P.C. also copied in the C.D. On 14.7.2011, statement of Dr. Anita Singh and Smt. Ramwati were recorded and submitted the charge-sheet. He proved the charge-sheet as Exhibit Ka-7.

After concluding the prosecution evidence, statement of the accused-appellant was recorded under Section 313 Cr.P.C., in which he denied prosecution story and also stated that earlier to the so called incident altercation took place with the father of the victim and on account of this he has been falsely implicated in this case.

Learned Additional Sessions Judge, Court No. 4, Aligarh, 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 Shri Noor Mohammad as counsel for the appellant and learned Additional Government Advocate for the State and perused the record of the case.

Learned counsel for the appellants 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 Sections 376, 452, 506(1) IPC. It is submitted by learned counsel for the appellant that the custodial sentence of 10 years 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 above 16 years old in the medical examination and sexual intercourse, if any was consensual.

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 16 years old in the ossification test report and she was competent to give her consent. Moreover no mark of injury was found on private part. Hymen was found 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, the appeal is partly allowed and the conviction of the appellant under Sections 376, 452, 506(1) IPC are confirmed but the sentence under Section 376 IPC is reduced to period of 7 years but the fine was extended to Rs. 50,000/- as it would meet the end of justice and the rest sentence of the appellant under Sections 452 and 506(1) IPC shall remains intact. Out of the above fine, 3/4th will 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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