Mahendra Prajapati vs State Of U.P. on 30 October, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR RESERVED

Court No.: 58

Case :- CRIMINAL APPEAL No. – 7451 of 2010

Appellant :- Mahendra Prajapati

Respondent :- State Of U.P.

Counsel for Appellant :- Prashant Vyas,Amit Saxena,Bharat Bhushan Paul,D.M.Singh,Dwivedi S.C.,Ekansh Verma,G.S. Chaturvedi,M.C. Chaturvedi,Prashant Kumar,Yogesh Srivastava

Counsel for Respondent :- Govt. Advocate

Hon’ble Amar Singh Chauhan,J.

Challenge in this appeal is to the judgement and order dated 06.10.2010, passed by learned Sessions Judge, Jhansi in Session Trial No. 87 of 2008 (State of U.P. vs. Mahendra Prajapathi) whereby the accused-appellant Mahendra Prajapati was convicted and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 50,000/- for the offence of rape under section 376 of the Indian Penal Code, committed on 05.11.2006 with default stipulation and was also further convicted and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 50,000/- for the offence of rape, committed on 12.11.2006, under section 376 of the Indian Penal Code with default stipulation. Appellant Mahendra Prajapati is also convicted and sentenced to undergo rigorous imprisonment for one year for the offence under section 506 of the Indian Penal Code. All the sentences shall run consecutively to wit one after the other. Out of the fine, so deposited, 50% shall be paid to the victim as compensation.

In short compass the facts giving rise to the present appeal are that on 05.11.2006 the victim was going to visit to the house of her friend, namely, Honey near Shahni Colony. The co-accused Sunny, the brother of Honey, intervened while sitting in a Marauti Car. He offered the victim to drop her at her residence by his Car. The victim agreed and boarded the car. Sunny was accompanied with other co-accused Kapil inside the car. When the car was not taken to the right direction then the victim objected. The accused Mahendra Prajapati also joined with the other co-accused. The car was bolted from inside. The music system was switched on at a very high volume. The car was taken towards Orchha forest and when it was moving the victim was forcibly disrobed and raped by all accused. During rape video C.D. was framed by mobile having camera facility. After quenching their sexual thirst, all the three accused dropped the victim to her residence. She received mobile calls from the accused persons that the video C.D. about the entire act of rape has been prepared. They called upon the victim for giving C.D. at a place near Shahni Colony where she was again forcibly sexually ravished by the three accused persons. They did not hand over the video C.D. The victim in the protest got her hand injured with the use of blade. Under the fear of threat extended by the accused persons and their stigmatic public exposure, the victim and her parents decided not to lodge the report and they kept mum. After the incident, on 27.7.2007, the video C.D. alongwith the news of nasty and abominable act of rape reached to the Star News Channel which telecasted the C.D. at about 8.40 P.M. When the accused Mahendra Prajapati got identified by the police and entry was made in the G.D., he was arrested on 27.7.2007 from the house of Bala Ram Yadav at Shivgarh. He confessed the guilt and also stated that the C.D. of rape was prepared by accused Sahil Srivastava and Amit Yadav, who have sold it for good money. During investigation from the possession of the appellant, C.D. Player, two blue film C.Ds, 200 other C.Ds about different movies and songs, which were dubbed, were recovered. From the possession of co-accused Sahil Srivastava and Amit Yadav, one laptop, mouse and C.D., monitor, key board, C.P.U., lead and 87 different CDs were recovered but they were got declared juvenile and the case was separated from the present appellant. During investigation, the victim was examined under section 164 Cr.P.C. After concluding the investigation the charge-sheet was submitted against the appellant. Charges were framed against the appellant under section 376 IPC for rape on different dates i.e. 05.12.2006 and 11.12.2006. Charges under sections 506 and 292 IPC, 4 of the Indecent Representation of Women (Prohibition) Act, and 63/68 of Copyright Act were also framed.

To bring home the guilt of the accused, the prosecution has examined as many as twelve witnesses. After closing of the prosecution evidence, the appellant was examined under section 313 Cr.P.C. in which he has stated that he has been falsely roped in this case on the pressure of the police. Nothing incriminating article was recovered from the possession of the appellant. The C.D. is neither exhibited nor any forensic report was called on. Besides this, C.D. was not produced before the court. No evidence in defence was adduced by the appellant.

P.W.-1 Mukesh Verma is the public witness of the recovery made by the police party. He has stated that on 28.7.2007 he went to the police station Sipri Bazar, Jhansi. No recovery was made before him by the police party.

P.W.-2 Dipak is the other public witness of the recovery. He has also denied any recovery by the police before him.

P.W.-3 S.I. Vivek Chaturvedi is the PRO with SSP, Jhansi. He has stated that on the date i.e. 27.7.2007, news was flashed over Star News whereby a girl was shown being raped by few boys. She was crying and requesting for mercy to leave her. He was directed by the superior officer to follow up of the action. He made an entry in the G.D. and proceeded to the place of occurrence. At Rash Bahar Tiraha, the informer pointed out that one person, who has committed rape, has been recognized as Mahendra Prajapati and is present at the house of Bala Ram Yadav. The accused-appellant Mahendra Prajapati was arrested and from his possession one Nokia 1100 mobile was recovered. On the confession of the accused-appellant, C.D and another articles were recovered.

P.W.-4 Smt. Madhu Srivastava is the mother of the victim. She has stated that the victim was student of Hari Kishan Degree College, Jhansi. She found the injury in the hand of the daughter and blood was oozing. Her daughter deposed that the accused persons have extended threats not to make disclosure to the public otherwise they would be killed. She also disclosed that the accused persons have also prepared video C.D and threatened to public exposure. Later on, T.V. News flashed that the accused persons were arrested. The victim narrated of the story to her.

P.W.-5 is the victim herself. She has deposed that on 05.11.2006 she was going to meet her friend Honey at Sipri Bazar, Jhansi. On the way one blue Maruti Car intercepted. Sunny, the brother of Honey was driving the car. He offered her to drop at her residence. When she got seated inside the car, Kapil was also sitting there. The car was turned to different direction she objected but the accused Kapil caught hold of her and extended threats to her. The blasses, which were black in colour, were slided up. Her cries could not be heard outside. The car was taken to the bus stand where accused Mahendra Prajapati joined. Thereafter the car was taken towards Orchha and she was forced to take wine and to smoke. They forcibly dragged her and committed rape inside the car. C.D. was also prepared and on the pretext of returning back the C.D. to her they also committed rape on 12.11.2006. The C.D. about her rape was flashed over the T.V. She came to know that the accused persons have been arrested.

P.W.-6 Kotu Ram is the formal witness, who has scribed the G.Ds. Copy whereof have been proved as Ex-ka-5 and ka-6. He has also proved that on 28.7.2007 the case was registered as Crime No. 1166 of 2007 against accused Mahendra Prajapati and others and the articles which were recovered by the police party from the possession of the accused, were lodged to the police station in sealed condition.

P.W.-8 S.I. Dinesh Kumar Verma is the Investigating Officer. He has stated that the statement of the victim and other witnesses was recorded on 27.8.2007, who supported the prosecution case. He also recorded the statements of the other witnesses, copied of the statement of the victim under section 164 Cr.P.C. and submitted charge sheet against all the accused.

P.W.-9 Balbir Singh Gaur is the S.O. at Sipri Bazar, Jhansi. He has stated that on 27.7.2007 at about 8.40 P.M. he viewed at Star News TV that one girl was being forcibly sexually ravished by three miscreants in a Maruti Car. It was also telecasted that due to fear the victim has neither lodged FIR nor has moved the higher authority. One accused Mahendra Prajapati was arrested who disclosed the name of other co-accused. The police party raided and from the house of Bala Ram Yadav the accused-appellant Mahendra Prajapati was arrested.

P.W.-10 Pranav Mahajan is legal Manager of Star News. He was directed to produce the C.D. of the news about the rape flashed on 27.7.2007. He has stated that such C.D. remains in safe custody of the channel for 90 days only and thereafter it is destroyed. Since the occurrence is of two years back, he does not have any record or the C.D. of the same.

P.W.-11 S.I. Uma Shanker has conducted the investigation in part.

P.W.-12 is S.I. Brijesh Kumar Mishra, who also conducted the investigation in part. He has simply collected the gangster chart against the accused persons.

Learned Sessions Judge, Jhansi after perusing the record and hearing the counsel for the party came to the conclusion that prosecution has established the charge of rape and sentenced him as has already mentioned hereinabove by the judgement and order, hence this appeal questioning the said judgement.

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

I have heard Sri Yogesh Srivastava, learned counsel for the appellant and learned AGA for the State.

Learned counsel for the appellant has mainly assailed the impugned judgement only on the question of sentence. By raising the doubt of occurrence as incident has been shown to be happened on 05.11.2006 but the victim did not disclose about the incident. Second phase of incident has been shown to be happened on 12.11.2006 in which victim had gone with the accused persons on telephonic call and also she did not inform to her parents nor she tried to inform the police and such type of conduct of victim shows that there was some illicit relation of the victim with co-accused Sunny and when the mother was highlighted then the entire prosecution story was framed by the local police only to show his good work. The Investigating Officer has not collected any call details of mobile phone of victim or accused persons to verify the correctness of the incident and it appears that whole prosecution story has been based on video C.D. which is a secondary evidence but the C.D. was not sent for any forensic test nor any investigation in this regard was made that an interpolation was made with the C.D or not. It is admitted by the victim in her statement that her clothes were not torn during the entire incident while it is very surprising that when a girl will make struggle with three persons then her cloths will remain safe. The appellant Mahendra Prajapati was seen by the victim for the first time at the time of occurrence but no identification parade was got done.

In this regard, the Trial Court has convicted the appellant and imposed sentence of 10 years R.I. imprisonment for each of the two stages of the same offence i.e. rape with fine of Rs. 50,000/- for each of two occasions. It is to be noteworthy that appellant Mahendra Prajapati was convicted and sentenced as above and rest of the accused were found to be juvenile and their cases were separated. No FIR was lodged by the victim or any member of her family. The victim was got medically examined. The whole case is based on video clipping of the C.D. and could not establish that video was of either 06.11.2006 or 12.11.2006. From the statement of the victim it has established without corroboration that rape was committed by the appellant Mahendra Prajapati in which main role of abduction and rape were assigned to the co-accused who have got declared juvenile. The Trial Court as such convicted and sentenced twice for the rape at two stages i.e. 06.11.2006 and 12.11.2006 which requires interference.

Before assailing the sentence, it is necessary to reproduce the section 31 Cr.P.C. and section 71 IPC which runs as follows:

31. Sentence in cases of conviction of several offences at one trial.

1. When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code, 1860 (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.

2. In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court:

Provided that-

(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;

(b) the aggregate punishment shall not exceed twice of punishment which the Court is to inflict for a single offence.

3. For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence”

Section 71 IPC runs as follows:

“Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his of­fences, unless it be so expressly provided. Where anything is an offence falling within two or more sepa­rate definitions of any law in force for the time being by which offences are defined or punished, or

where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,

the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences”

The relative aspect of both sections give rise to the conclusion that when offence is made up of parts any of his part is itself an offence, the offender shall not be punished with punishment more than one for such offence, unless it be so specifically provided.

Hon’ble Supreme Court in the case of State of Maharashtra and another vs. Najakat Alia Mubark Ali, 2001 (6) SCC 311 held that it is appropriate to point out very often it happens when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each such count, all such sentences are directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect be imprisonment for other count as well.

The Hon’ble 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…..”

In view of what has been discussed above, the appeal is partly allowed. Conviction of the appellant under section 376 IPC is confirmed but the sentences in two stages running consecutively is hereby set aside with the direction that the appellant Mahendra Prajapati shall undergo the sentence of ten years and fine of Rs. 50,000/- only for the offence of rape under section 376 IPC. Remaining other sentence under section 506 IPC with default stipulation and payment of the fine to the victim also remain intact.

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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