Chandra Pal vs State Of U.P. on 30 October, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR RESERVED

Court No. :58

Case :- CRIMINAL APPEAL No. – 3240 of 2012

Appellant :- Chandra Pal

Respondent :- State Of U.P.

Counsel for Appellant :- Sanjay Srivastava,Sanjay Singh

Counsel for Respondent :- Govt. Advocate

Hon’ble Amar Singh Chauhan,J.

Challenge in this appeal is to the judgement and order dated 16.4.2012, passed by learned Additional Sessions Judge, (Ex. Cadre), Rampur in Session Trial No. 236 of 2011 (State vs. Chandra Pal) whereby the appellant Chandra Pal has been convicted and sentenced to undergo 5 years’ rigorous imprisonment and a fine of Rs. 5000/- under section 363 IPC, 7 years’ rigorous imprisonment and a fine of Rs. 7000/- u/s 366 IPC and 10 years’ rigorous imprisonment and a fine of Rs. 20,000/- under section 376 IPC with default stipulation.

In short compass, the facts giving rise to the present appeal are that the First Information Report was lodged by presenting a Tehrir with the allegation that informant and her husband alongwith two minor daughters, aged about 11-12 and 5-6 years, had gone to fair of Rathora, as husband of the informant is Mochi (cobbler). In the adjoining one Chhtrapal, son of Phool Singh, stalled the shop of Pakauri. He accompanied with another person who took the liquor and ate Pakauri and came to the husband of the informant by saying that they shall provide food to their girls as food in the Bhandara had been finished. They took away their daughters. The younger daughter came back but elder daughter, aged about 11-12 years, did not return. On being recovered, the victim was got medically examined and her statement under section 164 Cr.P.C. was recorded. The Investigating Officer after concluding the investigation submitted charge-sheet against the appellant, Chandra Pal under sections 363, 366 and 376 IPC. The accused-appellant has been charged under sections 363, 366 and 376 IPC to which he pleaded not guilty and claimed to be tried.

To bring home the guilt of the accused, the prosecution has examined as many as eight prosecution witnesses.

P.W.-1 is the victim. She stated that before the Holi festival she and her sister alongwith parents had gone to the fair Rathaura. Her father is handicapped and doing the work of Mochi. By the site one Chhatrapal stalled the shop of Pakauri. The accused Chandra Pal came there and took liquor and also gave the liquor to her father and at about 9.00 P.M. the accused Chandra Pal and shopkeeper Chhatrapal, on the pretext of providing food, took her alongwith her younger sister. After giving food in the hotel the accused Chandra Pal enticed away to his house and committed rape after disrobing her cloth.

P.W.-2 is Smt. Shakuntla Devi, the mother of the victims. She has stated that she alongwith her two minor daughters had gone to the fair of Rathaura in the month of Falgun. Her husband is handicapped and doing the work of Mochi. Side shopkeeper Chhatrapal and his companion Chandra Pal took away their daughters for providing food. Her younger daughter came back but her elder daughter did not return. The police has recovered her daughter aged about 12 years alongwith the accused Chandra pal.

P.W.-3 is Pooja, the sister of the victim. She also supported the prosecution case by saying that the accused Chandra Pal enticed away her sister on the pretext of providing food. She returned back alongwith Chhatrapal who is the side shopkeeper.

P.W.-4 is Ram Chandra, the father of victims. He has supported the prosecution evidence.

P.W.-5 is Dr. Jyotsna Pant. She has stated that on 07.3.2011 she was EMO in the District Female Hospital, Rampur. She had medically examined the victims at about 10.00 A.M. who were brought by Mahila Constable Vijay Lakshmi and identified the victim. Her height was 140 C.M., weight 29 K.g, teeth 14/14, axillary hair not present, breast developing (only beast buds present). In the internal examination, no mark of injury over perineum, Hymen not torn, Vagina admits tip of little finger, no bleeding, outside of the hymen redness and congestion at 7 o’ clock position present.

P.W.-6 is the constable No. 405 Ranvir Singh. He has stated that he was posted as a constable clerk in the Police Station Milak, District Rampur on 04.03.2011 and on that date at about 16.15 P.M. case was registered bearing Case Crime No. 360/2011 under sections 363, 366, 376 IPC vide Chik FIR No. 62 of 2011. He has prepared the chik report no. 62 of 2011 at case crime no. 360 of 2011 under sections 363, 366, 376 IPC and made a G.D. Entry at Record No. 21. He has proved the Chik FIR, G.D as Exhibit-ka-7 and ka-8.

P.W. 7 is the Dr. R.K. Sharma, Senior Radiologist. He has stated that x-ray was conducted by technician in his supervision at plate no. 305. Her right elbow, right knee and epiphysis of right wrist were not found fused. Pisiform bone was appeared in corporal bone of right wrist.

P.W.-8 S.I. Vijendra Singh is the I.O. of the case. He has stated that on 04.3.2011 he was posted at S.I. at Police Station Milak, District Rampur. On that date the investigation of this case was handed over to him. He copied the chik FIR and G.D. He also recorded the statement of chik writer on 05.3.2011. He has recorded the statement of mother and father of the victim and also prepared the site plan. On the said date the victim was arrested alongwith accused Chandra Pal. The statement of victim as well as accused was recorded under section 161 Cr.P.C. On 06.3.2011, the victim was got medically examined and also got recorded the section 164 Cr.P.C. After copying x-ray pathology report in the C.D., he also recorded the statement of younger sister of the victim and submitted the charge-sheet.

The accused in his statement under section 313 has denied the incident and said that the victim has sustained the injury on being collided with his motorcycle. No defence evidence was given by the accused.

Learned Sessions Judge (Ex-Cadre) after perusing the record and hearing the counsel of the parties came to the conclusion that prosecution has established its charges of kidnapping and rape and therefore convicted and sentenced him as has already been mentioned hereinabove by judgement and order. Hence this appeal questioning the said judgement.

Feeling aggrieved the accused-appellant came up in this appeal.

I have heard learned counsel for the appellant and learned AGA for the State.

Learned counsel for the appellant mainly assailed the impugned judgement of conviction and sentence on three counts. Firstly, the First Information Report is delayed by 2 days and explanation has not been given by the prosecution. Secondly, the medical report does not support the prosecution case and no sign of rape was found. Thirdly, quantum of sentence is too excessive and unjust and the case could not travel beyond the purview of the section 354 IPC.

In response, learned AGA contends that 11 years old girl was severely ravished by the appellant. In the medical examination, redness and congestion was found outside the hymen in the position 7 o’ clock and appellant does not deserve for any sympathy.

Before adverting the claim of the parties, it is necessary to reproduce the section 375 IPC:

375. Rape.–A man is said to commit “rape” if he

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment of either description for a term of less than ten years.

In the instant case, the occurrence took place on 02.03.2011 but the victim was got medically examined on 07.03.2011. It is opined that no mark of injury over perineum was found, Hymen not torn, Vagina admits tip of little finger, redness and congestion at 7 o’ clock position outside the hymen present which suggests that penetration was got done but however it may be partial penetration which also constitutes the offence of rape.

So far as the delay in lodging the FIR is concerned, the occurrence took place on 02.3.2011 and Tehrir was given on 04.3.2011. The informant was busy in tracing out her girl. Therefore, she lodged the report after two days of the occurrence which cannot be said that FIR was lodged without plausible explanation. The Hon’ble Supreme Court in the case of Harpal Singh vs. State of Himachal Pradesh, AIR 1981 SC 361 held that “the complainant had given reasonable explanation for the delay. It is further held that as honour of the family was involved, its members had to decide whether to take the matter to the court or not. It is not uncommon that such considerations delay action on the part of the near relations of a young girl who is raped. The prosecutrix has narrated her story before the committing Magistrate as well as Sessions Judge. Leaving aside minor contradictions here and there her testimony is consistent. Both the High Court and the Sessions Judge have believed it and it is corroborated by the evidence of her own brother and father to whom she had related the details of the occurrence without delay after she was rescued”.

So far as awarding proper sentence to the appellant is concerned, the Hon’ble Apex Court in the case of Sevaka Perumal etc. Vs. State of Tamil Nadu, AIR 1991 SC 1463 held 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.

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 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…..”

In the instant case, hymen was not found torn. The doctor opined that no opinion about rape can be given. The proviso to under section 376(2) of course lays down that the Court may, for adequate and special reasons to mention in the judgement, impose a sentence of imprisonment of either description for a term of less than ten years. In view of the attendant and extenuating or mitigating the circumstances, it is to justify the imposition of sentence less than prescribed minimum on the appellant.

In view of the above discussion, the appeal is partly allowed. The conviction of the appellant under section 376 IPC is confirmed but the sentence of 10 years is reduced to 8 years but the imposition of fine will remain intact. Out of the deposited fine one half of the fine shall be given to the victim.

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

Order Date :- 30.10.2017

Puspendra

 

 

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