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Bachu @ Hira Lal vs State Of U.P. on 30 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on 21.08.2019

Delivered on 30.08.2019

Court No. – 79

Case :- CRIMINAL APPEAL No. – 7229 of 2018

Appellant :- Bachu @ Hira Lal

Respondent :- State Of U.P.

Counsel for Appellant :- Ashok Kumar Singh

Counsel for Respondent :- G.A.

Hon’ble Ram Krishna Gautam,J.

1. This appeal, under section 374(2) of Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), has been filed by convict appellant Bachu @ Hira Lal, against judgment of conviction and sentence made therein, dated 20.10.2018, passed by Court of VIII Additional Sessions Judge, Aligarh, in S.T. No. 48 of 2015, State Vs. Bachu @ Hira Lal, arising out of Case Crime No. 320 of 2014, u/s 376, 506 I.P.C. read with Section 4 Protection of Children from Sexual Offences Act, 2012, (hereinafter referred to as POCSO Act) P.S. Chandaus, District Aligarh, wherein convict appellant has been convicted for offences punishable u/s 376, 506 I.P.C. with offence punishable u/s 4 of POCSO Act, 2012. But as the offence punishable u/s 4 of POCSO Act was aggravated form of offence punishable u/s 376 I.P.C., hence, sentence of 10 years R.I. with fine of Rs. 30,000/- and in default six months’ additional imprisonment for offence punishable u/s 4 of POCSO Act with two years R.I. and fine of 10,000/- and in default three months’ additional imprisonment for offence punishable u/s 506 I.P.C. with a direction for concurrent running of sentences and adjustment of previous sentence, if any, was awarded. Memo of appeal contains that the trial court failed to appreciate facts and law placed before it. Appellant was engaged as a contractor at Ganesh brickkiln. He had lent Rs. 35,000/- to informant, as advance, but she and her husband were not working properly. When pressure was exerted, this false concoction was lodged. Dr. Praveen Jahan (PW3), in her testimony, has held that hymen of victim was old torn. She was with no injury nor any spermatozoa was found in Pathological report. Alleged assault was of 30.11.2014, for which report was got lodged by way of presenting an application before the Senior Superintendent of Police, Aligarh, on 8.12.2014 i.e. nine days delayed report, with no explanation, was there. Investigation was not proper. Statement of owner of Ganesh Brickklin was not taken by Investigating Officer. All prosecution witness, examined, were interested witnesses. Impugned judgment of conviction was with no evidence on record and sentence awarded was much severe. Hence, this appeal with a prayer for setting aside the impugned judgment of conviction and sentence therein with a further prayer for acquittal in above trial.

2. Heard Sri Ashok Kumar Singh, learned counsel for appellant, and Sri Munne Lal, learned AGA for the State, and gone through the impugned judgment and record of trial court.

3. Learned counsel for appellant argued that it was a case based on enmity. F.I.R. was lodged at a delay of nine days. Medical evidence was not in support of accusation of rape. There was material contradiction regarding place of occurrence, wherein field of sugarcane and field of wheat was said by prosecution, which was with material contradiction. Statement recorded u/s 164 Cr.P.C., as of victim, was under influence of her parents, who were under debt of convict appellant for which this false accusation was lodged. Detention of four years six months in judicial prison is there. Hence sentence being deterrent and not in consonance with offence, above detention may be deemed to be proper sentence.

4. Learned AGA has vehemently controverted the argument of learned counsel for appellant by arguing that it was a case of rape by convict appellant with a vulnerable girl of 14 years, who was ailing and was taken for giving medical treatment at a clinic of a medical practitioner, where from the convict appellant, who was co-worker at above brickklin and was under acquaintance, took her under deceit and committed rape with her. Victim and her parents being poor vulnerable labourer, reported the matter to brickklin owner, who asked them to be away from brickklin and get the case lodged at their respective police station. Attempt was made by the informant for getting case lodged at Police Station Jalalpur, District Hameerpur, but it was refused to be registered at the police station because of territorial jurisdiction of district Aligarh, where this offence was committed. Then after this victim and her parents appeared before the Senior Superintendent of Police, Aligarh, where her agony was heard and under direction of S.S.P., Aligarh, this case was got lodged at P.S. Women Cell, Aligarh, wherein victim- prosecutrix, her parents along with other witnesses have proved charge beyond doubt. Hence conviction and sentence was with evidence on record. It was a proper sentencing. Hence appeal be dismissed.

5. Prosecution case, as surfaced from record, is that FIR (Ext. Ka1), under thumb impression of informant Smt. Noorjahan, w/o Rafiq, dated 8.12.2014, was presented before S.S.P., Aligarh, over which an order for registration of case crime number was passed by the S.S.P., Aligarh, on 8.12.2014 itself. This was with contention that informant Smt. Noorjahan, w/o Rafiq, is resident of village Ghauhal Bujurg, P.S. Jalalpur, District Hameerpur. On 30.11.2014 she along with her husband and daughter Km. Fatima, aged about 14 years, was at ‘Ganesh Brickklin’, situate at Chandaus within the area of P.S. Chandaus, District Aligarh, as labourer. Km. Fatima became ill. Her father Rafiq took her on 30.11.2014 at 5.00 P.M. at a clinic of a medical practitioner situated at Chandaus town. Bachu @ Hira Lal, resident of same village of informant, accompanied them. Rafiq after taking prescription left Fatima at above clinic and went in the town for purchasing medicines and some daily needs. In between Bachu @ Hira Lal apprised Fatima that her father had straight away gone to brickklin and she to accompany him to brickklin. This was refused by her. But under persuasion she was taken. On the way, in a sugarcane field, Bachu @ Hira Lal committed rape with her, by showing knife and he extended threat of dire consequences, in case of opening of lips to anyone. This was instantly complained by Fatima to her mother, after reaching at brickklin. Her mother and father went to brickklin owner and lodged complaint. But he asked them for going to their native place and to lodge report at P.S. Jalalpur. She, along with her husband and victim, went at P.S. Jalalpur, District Hameerpur, to lodge report, but the report was not lodged, because of being territorial jurisdiction of district Aligarh. Hence, on 8.12.2014, an application was filed before the S.S.P., Aligarh. Under his direction Case Crime No. 320 of 2014, u/s 376, 506 I.P.C. read with section 3/ 4 POCSO Act, 2012, was got lodged vide chick F.I.R. (Ext. Ka8) at P.S. Mahila Thana, District Aligarh, which was subsequently transmitted to P.S. Chandaus. This registration of case crime number was vide G.D. entry (Ext. Ka9). Prosecutrix was instantly examined, under medical examination, and medico legal report (Ext. Ka4), supplementary report (Ext. Ka5) was there. Her statement u/s 164 Cr.P.C. (Ext. Ka2) was recorded by Magistrate on 16.12.2014. She was produced before Medical Board for her age determination, wherein she was held to be of 15 years in report (Ext. Ka10). Investigation resulted in submission of charge sheet (Ext. Ka7), against convict Bachu @ Hira Lal, for offences punishable u/s 376, 506 I.P.C. read with section 3/ 4 POCSO Act. The court of Magistrate took cognizance over it, vide order dated 3.6.2015. As offences, punishable under these sections, were exclusively triable by Court of Sessions, hence file was committed to the Court of Sessions, from where it was sent to Special Court, exercising jurisdiction under POCSO Act, 2012.

6. After hearing learned public prosecutor as well learned counsel for accused, Trial Judge levelled charges against accused Bachu @ Hira Lal, vide order dated 16.1.2016 for offences punishable u/s 376, 576 I.P.C. and 3/ 4 POCSO Act, which were read over and explained to accused, who pleaded not guilty and claimed for trial.

7. Prosecution examined PW1- informant Smt. Noorjahan, PW2- victim Km. Fatima, PW3- Dr. Smt. Praveen Jahan, PW4- Investigating Officer Inspector Ramdarash Yadav and PW5- Constable Clerk 1339 Priti.

8. With a view to have explanation, if any, and version of accused over incriminating evidence furnished by prosecution, he was examined and his statement u/s 313 Cr.P.C. was recorded, wherein the accusation was denied with contention of false testimonies of PW1, PW2 and PW4, but testimonies of PW3- Dr. Smt. Praveen Jahan and PW5- Constable Clerk Priti were answered to be not under his knowledge. He stated that he was a contractor at above brickklin and there was money due against informant. With a view to grab the same, this false accusation was got lodged.

9. No evidence in defence was given by convict appellant.

10. Learned trial judge, after hearing learned counsel for both sides, passed the impugned judgment of conviction, as above, and after hearing over quantum of sentence, awarded sentences, as above.

11. PW5 is Constable Clerk Priti, who stated that after receiving original first information report of Smt. Noorjahan, w/o Rafiq, containing order of S.S.P., Aligarh, dated 8.12.2014, she got case crime number registered and this chick F.I.R. was entered in General Diary entry. At that time Noorjahan- informant along with victim Fatima, aged about 14 years, and her brother Imran was present at police station. In cross-examination, she has reiterated her previous statement by saying that she was posted at Mahila Thana, Aligarh, on 8.12.2014 as constable clerk, when this typed F.I.R. with order of S.S.P., Aligarh, was received. She registered it as Case Crime No. NIL of 2014, u/s 376, 506 I.P.C. read with section 3/ 4 POCSO Act at P.S. Mahila Thana, Aligarh, against Bachu @ Hira Lal. Chick F.I.R. No. 137 of 2014, under handwriting and signature of this witness, was proved and exhibited as Exhibit Ka8. This, registration of case crime number, was entered in the G.D. entry at 4.40 P.M. of 8.11.2014; under handwriting and signature of this witness; proved and exhibited as Exhibit Ka9. This G.D. entry was prepared under one and common process, under carbon copy, and it was in accordance with original G.D., brought by the witness, before the court, at the time of recording of her testimony. There is no contradiction, exaggeration and embellishment in her testimony. Not only this, when asked about this testimony, under statement recorded u/s 313 Cr.P.C., it was neither disputed nor admitted by accused. Rather ignorance of same was answered.

12. Occurrence was of 30.11.2014 and this was a case registered under direction of S.S.P., Aligarh, passed over Exhibit Ka1, submitted by informant, before him. The reason of delay has been said in this report itself that informant and victim being poor, downtrodden labourer, made a complaint to brickklin owner, who asked them to get the case lodged at their police station. They went there at P.S. Jalalpur, district Hameerpur. But owing to territorial jurisdiction, they again came back at Aligarh and then after this case could be got lodged under the direction of S.S.P., Aligarh. Thus, reason of delay has been properly explained. This informant (PW1), though not being an eyewitness account of the occurrence, is the witness of getting FIR lodged. She, in her statement on oath under examination in chief, has categorically stated that her daughter Fatima, aged about 14 years, was suffering under ailment. Her husband Rafiq took her at a clinic at Chandaus for getting medicine for her. Bachu @ Hira Lal, who was resident of village of informant and was at work at above brickklin, accompanied them. When her husband went to have medicine from Medical Store in the Town, Bachu @ Hira Lal, under deceit, took her daughter with him and on the way, he committed rape with her. This was under threat of dire consequences and by show of knife. She came at brickklin and instantly complained to her. They went to brickklin owner, who asked them to lodge FIR at P.S. Jalalpur, District Hameerpur. They went there and again came back to Aligarh and got the case lodged. Statement of her daughter was recorded by the Magistrate and she was examined by Medical Officer. Though, in cross-examination, she has categorically said that she was not eyewitness of occurrence. Whatever was narrated by the victim, was under her knowledge. As the victim herself has been examined, this hearsay witness is of no avail. Regarding her testimony recorded under examination in chief, there is no contradiction, exaggeration or embellishment in examination in cross. She is fully intact.

13. PW3- Dr. Praveen Jahan, in her examination in chief, has said that while being posted as E.M.O. at M.L.G. District Woman Hospital, Aligarh, on 8.12.2014, she had examined Km. Fatima, D/o Rafiq, R/o Ghauhal Bujurg, P.S. Jalalpur, District Hameerpur, at 3.40 P.M., brought by police personnel Constable Suman Sharma of Police Women Cell, Aligarh. She was of average body built; with height of 152 cm and weight of 36 Kg. There was no mark of external injury over her person. Hymen was old torn and intact. Vaginal smear slide, for checking spermatozoa, was prepared and she was referred to C.M.O., Aligarh, for her age determination, with request for D.N.A. examination. Medico legal report, under thumb impression of victim; under handwriting and signature of this witness, was got prepared at the time of examination, which is on record as Exhibit Ka3. In accordance with pathological report (Ext. Ka4) supplementary report was prepared by this witness. There was no spermatozoa seen and prosecutrix was of 15 years of age. Exhibit Ka5 has been formally proved by this witness. In cross-examination, she reiterated the victim to be of 15 years of age and not being major. Regarding her testimony, while put u/s 313 Cr.P.C., no dispute was made by accused or his counsel. She is fully intact formal witness.

14. PW2- Fatima, victim, in her examination in chief, has categorically stated that she was of 13 years. When at about one and half years back from the date of evidence, at 5.00 P.M., she, along with her father, was at a clinic at Chandaus for taking medicine. Her father was brickklin labour. Accused Bachu @ Hira Lal was also a labour at that brickklin. She was left by her father at the clinic, till he comes back after taking medicine and some daily need things from town. She was there when Bachu @ Hira Lal came and asked her to be with him, which was denied. Again he persuaded by saying that her father had gone straight way to brickklin and she was to accompany him. Under belief, she went with him. But he committed rape with her in a sugarcane field, while being on way to brickklin. When she protested, threat of dire consequences by show of knife was extended. She complained the occurrence to her mother, after reaching at brickklin, who got this case lodged. She was medically examined and got her statement recorded before Magistrate, which was opened in Court at the time of her testimony and was with her photograph and thumb impression over it. The contents were admitted and this was exhibited as Exhibit Ka2. In cross-examination she has said that accused Bachu is resident of same village and he had come at above brickklin together to them for doing work of labour. There had been no quarrel or any dispute previously amongst them. Though, she could not raise rescue call because her mouth was shut by him and threat by show of knife was given by him. She complained to her mother at brickklin. Though, no one met, while on the way, nor she complained to anyone, otherwise she would have faced consequences by Bachu. This was complained to brickklin owner, but he did not help them and asked them to go to Hameerpur. Though, this witness has been cross-examined at length, but in over all appreciation of her testimony, there is no contradiction, exaggeration or embellishment, which be treated to be material one. Rather minor discrepancies and variance establishes her to be a natural witness.

15. Learned counsel for appellant has vehemently argued about crop of wheat and crop of sugarcane, as was shown in site map (Ext. Ka6), wherein ‘Khet Gehun’ has been written by Investigating Officer. But this court takes notice that occurrence was of 30.11.2014 and in the month of November there remains showing of wheat. It can never be a crop of wheat. Moreso, such type of variance was not a material variance at all. Rather a variation, owing to perception of a child witness, who had suffered mental agony of sexual assault by one, who was under belief, because of being native of same village, that too in the evening at about 5-6 P.M. of the month of November, which results in sunset and such variance under above facts and circumstances is natural variance.

16. Learned counsel for appellants has vehemently argued by way of hair splitting of fact. Whereas there is catena of judgment of this court as well as of Apex Court that illiterate, rustic and vulnerable witnesses, put under fatigue cross-examination, are bound to say with variations and those variations are natural variations proving them to be natural witness.

17. PW4 is Ram Darash Yadav, Investigating Officer. He, in his examination in chief, has said about registration of case crime number, investigation deputed to him and investigation performed by him. He has formally proved preparation of site map (Ext. Ka6), under his handwriting and signature filed on record, and filing of charge sheet (Ext. Ka7), for above offence under his handwriting and signature. In cross-examination, no question regarding investigation made by him or preparation of Exhibits Ka6 and Ka7, under his handwriting and signature, has been put to this witness nor any question regarding ‘wheat crop’ or ‘sugarcane crop’ or previous statement recorded u/s 161 Cr.P.C. as of witnesses have been put to this witness. He has proved his investigation as formal witness.

18. The purpose for legislation of a special Act for protection of children from sexual offences has been given by Legislature itself in the POCSO Act, 2012.

“An Act to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto.” This object is with reference and context given by Legislature itself.

“WHEREAS clause (3) of article 15 of the Constitution, inter alia, empowers the State to make special provisions for children;

AND WHEREAS, the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child;

AND WHEREAS it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;

AND WHEREAS it is imperative that the law operates in a manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;

AND WHEREAS the State parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent-

(a) the inducement or coercion of a child to engage in any unlawful sexual activity;

(b) the exploitative use of children in prostitution or other unlawful sexual practices;

(c) the exploitative use of children in pornographic performances and materials;

AND WHEREAS sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.

BE it enacted by Parliament in the Sixty-third Year of the Republic of India as follows.”

Meaning thereby for the best interest and for ensuring healthy physical, emotional, intellectual and social development of the child and preventing them from being exploited sexually or otherwise this Act has been legislated in furtherance of responsibility owned vide International covenants and this enactment came in operation on 14.11.2002 vide S.O. 2705(E), dated 9th November, 2012, published in the Gazette of India, Extra, Pt. II, Sec. 3(ii), No. 2250, dated 9th November, 2012. In the present case, the occurrence is of 30.11.2014 i.e. after operation of this enactment.

19. Section 2(d) of this Act provides definition of child. “Child” means any person below the age of eighteen years”. In medical examination, as per Exhibits Ka3, Ka4 and Ka5, prosecutrix, in the present case, has been held to be of 15 years of age. Though, her mother and she herself had narrated her age to be of 13 years and there are catena of citations about two years either way in medical age, hence this medico legal determination of age of 15 years may be two years either way. But towards lesser side i.e. 13 years is supported by testimonies of PW1 and PW2, who are mother of the victim and victim herself. But even if it is not being accepted, adding two years in positive way comes to 17 years, which is below 18 years of age. Hence this poor vulnerable victim PW2 was a child on the date of occurrence.

20. Chapter II of POCSO Act, 2012, provides for penetrative sexual assault and punishment therefor.

“3. Penetrative sexual assault.-

A person is said to commit “penetrative sexual assault” if-

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

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

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.”

21. Section 4 of POCSO Act, 2012, provides:

“4. Punishment for penetrative sexual assault.- Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.”

Meaning thereby, this section provides for punishment for penetrative sexual assault, which provides that whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term, which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

22. Learned counsel for appellant vehemently argued that there was no injury over the person of victim or her private organ and no spermatozoa was there. These injuries or presence of spermatozoa are not the condition precedent or sine qua non for constituting offence of penetrative sexual assault, written as above. It constitutes offence even by applying mouth to private organs, which never causes any injury or ejaculation. Hence the argument of learned counsel for appellant is of no avail.

23. Section 29 of the Act provides as under:

“29. Presumption as to certain offences.- Where a person is prosecuted for committing or abetting or attenuating to commit any offence under sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.”

Meaning thereby, this section provides for presumption as to certain offences. It provides that where a person is prosecuted for violating any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved.

24. The cardinal principle of criminal jurisprudence is, unless proved, presumption of innocence is there and prosecution is to prove charge beyond doubt, whereas accused is to prove exceptions, given under the Code, or lack of any essential ingredient of that particular offence to the extent of preponderance of probabilities. If he succeeds in creating situation of existence of preponderance of probabilities, then benefit of doubt is to be given to him i.e.; the prosecution failed to prove its case beyond reasonable doubt. But in this special legislation, this principle has been done away. Here, if the victim is child, below the age of 16 years, the presumption is in favour of prosecution and the defence is to prove contrary to it. But no evidence in defence has been laid by accused. Except a statement of false concoction, that owing to advance of Rs. 35000/- lent to informant has been said in statement recorded u/s 313 Cr.P.C. Whereas PW1 and PW2 both have proved that this accused is resident of same village of informant and he too is a labourer at brickklin, situated at Chandaus, District Aligarh, where he along with informant and other labourers had gone from district Hameerpur to do work of labour. Moreso, this plea was taken by convict-appellant and he was required to prove it that he had advanced money. He was a banker or money lender or was not a poor downtrodden labourer category and he had been running business of money lending. There was dues of Rs. 35000/- against informant for which she got this case registered. But not even a single iota of evidence has been given by convict-appellant. Whereas victim- prosecutrix, a child witness, has proved charge, levelled against convict-appellant, and this was substantiated and corroborated by formal witnesses.

25. Section 506 I.P.C. provides that whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.–And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.

26. The essential ingredient for offence punishable under this section is offence of criminal intimidation defined under section 503 I.P.C. Section 506 I.P.C. provides punishment for it and essential ingredients for offence punishable u/s 506 I.P.C. i.e. criminal intimidation – (1) threatening a person (i) with any injury to his person, reputation or property; or (ii) to the person or reputation of any one in whom that person is interested. (2) the threat must be with intent; (i) to cause alarm to that person, (ii) or to cause that person to do any act which he is not legally bound to do, as the means of avoiding the execution of such threat; (iii) or to omit to do any act which that person is legally entitled to do, as the means of execution of such threat.

27. To bring home an offence punishable u/s 506 I.P.C. the prosecution has to prove that accused threatened the victim to injure his person, reputation or property or to the person or reputation of any one in whom that person is interested. In the present case PW2- victim, in her testimony, has said that while she protested for rape, the convict-appellant intimidated her by show of knife for killing her in case of opening of lips to anyone or protesting such rape. She was criminally intimidated and assaulted for sexual assault. For this, there is no contradiction or exaggeration or embellishment. Rather full corroboration is there. Hence this too has been fully proved.

28. So far as sentence regarding appellants is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual case.

29. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of Court to constantly remind itself that right of victim, and be it said, on certain occasions persons aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that Courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against individual victim but also against society to which criminal and victim belong. 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, enormity of crime warranting public abhorrence and it should ‘respond to society’s cry for justice against the criminal’. [Vice Sumer Singh Vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder Vs. Puran, (1990) 4 SCC 731, M.P. Vs. Saleem, (2005) 5 SCC 554, Ravji Vs. State of Rajasthan, (1996) 2 SCC 175].

30. Hence, applying the principles laid down by the Apex Court in the aforesaid judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it was executed or committed, I find that punishment imposed upon the appellant by Trial Court in impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the mater on the point of punishment imposed upon them.

31. In view of the above facts and circumstances, impugned judgment and order dated 20.10.2018 deserves to be affirmed and appeal is liable to be dismissed.

32. In the result, the Criminal Appeal is dismissed. Impugned judgment and order dated 20.10.2018, detailed above, is hereby confirmed/affirmed. The appellant, who is in jail, shall serve out the sentence awarded to him by the Trial Court.

33. Copy of this order along with lower Court record be sent to Court concerned forthwith.

34. A copy of this order be also sent to appellant through concerned Jail Superintendent.

Order Date :-30.8.2019

Pcl

 

 

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