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

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR RESERVED

Court No. – 58

1. Case :- CRIMINAL APPEAL No. – 8186 of 2009

Appellant :- Kapur

Respondent :- State Of U.P.

Counsel for Appellant :- Apul Misra,M.A. Zaidi,P.N. Misra

Counsel for Respondent :- Govt. Advocate,Amit

2. Case :- CRIMINAL APPEAL No. – 83 of 2010

Appellant :- Sunil Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- Rajeev Chaddha,A.M.Zaidi

Counsel for Respondent :- Govt. Advocate,Amit

Hon’ble Amar Singh Chauhan,J.

These are two connected appeals aforementioned have been filed before this court challenging the common judgment and order dated 9.12.2009 passed by the Additional District and Sessions Judge, Fast Track Court No. 3, Bijnor, P.S. Dhampur, District Bijnor in Session Trial No. 153 of 2009 (State Vs. Kapur and another) connected with Session Trial No. 155 of 2009 (State Vs. Kapur) and Session Trial No. 154 of 2009 (State Vs. Sunil) whereby the appellants Kapur and Sunil Kumar have been convicted and sentenced to undergo 14 years rigorous imprisonment with a fine of Rs. 40,000/- each under Section 376(2)(g) I.P.C. with default stipulation.

Since the controversy and facts involved in these appeals are the same, therefore, they are being heard and decided together by a common judgment with the consent of the parties.

In a short compass, the facts which give rise to the present appeals are that the application was moved by the victim with the allegation that she is resident of village Daulatpur Sukhya, Police Station Tehsil Dhampur, District Bijnor and is 18 years old. When she was standing in her courtyard on 9.12.2008 at 7-8 P.M., the appellants Kapur and Sunil Kumar came and on extending threat of causing injury with tamancha and knife, they dragged her inside the house and committed rape. At the time of incident, father of the informant was on his duty at petrol pump as chowkidar and mother of the victim has gone to grocery shop to purchase grocery. On alarm being made, witness Manoj and victim’s mother came and accused persons ran away hurling threat. On the basis of the report, the case was registered being Case Crime Nos. 2506 of 2008 under Section 376(2)(g), 506 IPC, 2508 of 2008 under Section 4/25 Arms Act and 2509 of 2008 under Section 4/25 Arms Act. The Investigating Officer copied the report lodged by the victim and recorded the statement under Section 161 Cr.P.C., prepared a site plan and submitted the charge-sheet against the appellants under Sections 376 and 506 I.P.C., and 4/25 Arms Act. But the trial conducted under Section 4/25 Arms Act ended into acquittal which are not under challenge in these appeals.

To bring home the guilt of the accused, the prosecution has examined as many as seven witnesses. P.W. 1 is the victim. She deposed that on 9.12.2008 at about 7-8 p.m., she was in her courtyard, by then the appellants Kapur and Sunil Kumar came and on extending threat of causing injury with tamancha and knife, they dragged her inside the house and committed rape against her will. She know the meaning the rape by saying that they had penetrated their private part in her private part. She got medically examined in the government hospital.

P.W. 2 Smt. Chandrakiran is the mother of the victim. She deposed that she has gone to buy household articles by the same time, she was informed about the hue and cry from her house, when she reached there, both the accused-appellants Kapur and Sunil Kumar ran away from her house by extending threat. The victim has narrated the story of rape to her.

P.W. 3 Dr. Saroj Arora has stated that victim got medically examined by him. On her body, no injury was found. She was 149 cms of height, weight 43 kgs, teeth 16/16, breast fully developed, hymen old torn, vagina admit two fingers easily, vagina smear was taken for pathology test and as per ossification test report, she was found 18-19 years old.

P.W. 4 S.I. Shyam Veer Singh is the Investigating Officer. He has stated that he copied the chik FIR, tehrir and G.D. in the case diary. He has recorded the statement of victim and tehrir scriber. The victim was sent to women hospital for getting medical examination along with women constable. He copied the medical report in the case diary. Thereafter, the appellants were got arrested and knives were recovered from them. He also prepared the site plan and after concluding the investigation, submitted the charge-sheet no. 365 of 2008 in Case Crime No. 2506 of 2008, under Sections 376, 506 I.P.C.

P.W. 5 Chaman Singh is the Constable. He has stated that both the accused-appellants were arrested by the police party and recovery memo was prepared before him.

P.W. 6 S.I. Manish Pandey has stated that the case under Section 4/25 Arms Act was investigated by him. After concluding the investigation, he has submitted the charge-sheet.

P.W. 7 Vijay Pal Singh is the Constable. He has stated that on the basis of tehrir report, he prepared the chik report at Case Crime No. 2506 of 2008, under Sections 376 and 506 I.P.C., and made G.D. entry at report no. 42. He has also proved the chik FIR and G.D.

After concluding the prosecution evidence, statement of the accused-appellants were recorded under Section 313 Cr.P.C., in which they denied charges by saying that they have been falsely implicated in the case. The police has arrested them when they were doing labour work and roped in this case. However, they did not adduce any evidence in their defense.

Learned Additional District and Sessions Judge, Fast Track Court No. 3, Bijnor, after perusing the record and hearing the counsel for the parties came to the conclusion that the prosecution has established the charge of rape and, therefore, convicted and sentenced them as has already mentioned hereinabove vide judgment and order, hence these appeals questioning the said judgment.

Feeling aggrieved, the accused appellants have come up in these appeals.

I have heard Shri Apul Mishra as counsel for the appellants and learned Additional Government Advocate for the State and perused the record of the case.

Learned counsel for the appellants mainly assailed on the ground that as per prosecution case, the victim was dragged by the accused-appellants but the medical report does not indicate any sign of injury either external or internal. The bearing clothes were not torn during entire incident while it is surprising that when a girl will make struggle then the clothes will remain safe which indicate consensual intercourse, if any. As per ossification test report, she was found major i.e. about 18-19 years old. It is also argued that the appellant Sunil Kumar is the brother-in-law of the appellant Kapur, therefore, they cannot commit such type of offence by entering into the house of the victim in presence of neighbours and the manner in which the appellants have been implicated is quite impropable. It is further argued that the sentence imposed is not commensurate with the gravity of the offence as the victim was said to be habitual for sexual relationship. The alleged incident is said to have been taken place on 9.12.2008 and the first information report was lodged on 10.12.2008 at 9:25 P.M., Police Station Dhampur, District Bijnor which is highly belated and has been lodged after thought and due deliberation.

Per Contra, learned Additional Government Advocate for the State contends that it is a case of gang rape and there are no extenuating or mitigating circumstances available on record which may justify the imposition of any sentence less than than the prescribed minimum in the Section 376 I.P.C. but concede that in view of circumstances of the case, the minimum sentence can be awarded.

In the case of Harpal Singh Vs. State of Himachal Pradesh AIR (1981) SC 361 in which it has been held that there are danger of defamation in the society, parent think over the matter again and again for lodging of the FIR.

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, hymen was found old torn and vagina admit two fingers easily. In the ossification test report, she was found 18-19 years old. She was competent to give her consent as no injury was found on her private part but the allegation in this case is to commit gang rape against the appellants. Therefore, the chance of consensual sexual intercourse is too rare.

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 the case in hand, victim was found 19 years old. No mark of injury was found on private part of the victim, vagina admit two fingers easily which indicate she is habitual for sexual intercourse. The delay in lodging the FIR is not fatal in this case as the report was lodged when her father came to the house. It is to be noted that minimum sentence of 10 years has been statutorily provided and considering the attendant and extenuating or mitigating circumstances, imposition of prescribed minimum sentence of 10 years will serve the end of justice.

In view of what has been discussed above, both of the criminal appeals are partly allowed, and the conviction of the appellants under Section 376(2)(g) IPC is upheld, however, sentence of the appellants under Section 376(2)(g) IPC is reduced to 10 years but the imposition of fine shall remains intact. Half of the fine being deposited shall be given to the victim.

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

Order dated: 30.10.2017

Prakhar

 

 

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