1. The instant criminal appeal, under Section 374 (2) Code of Criminal Procedure (in short 'Code'), has been preferred against the judgment and order dated 21.07.2008, passed by Additional Sessions Judge, FTC-VIII, Lucknow, in Session Trial No.133 of 2008, whereby the appellant Annu @ Mobin has been convicted for five years rigorous imprisonment with fine of Rs.500/- only for offence under Section 363 of Indian Penal Code (in short 'IPC') and in default of payment of fine, the appellant has to further undergo one month simple imprisonment.
2. The prosecution case, in brief, is that victim (P.W.1), aged about 15 years at the time of occurrence, was kidnapped by the appellant and was ravished thereafter by confining her in a room. First Information Report (hereinafter referred to as 'FIR') was lodged by Asif, brother of victim (P.W.1). It is alleged that on 13.08.2007, at about 9 p.m. night, victim (P.W.1) had gone to purchase milk nearby Red Mosque but did not return. On 14.08.2017, a missing report was registered at 17:30 hours and after investigation, charge sheet was filed. Appellant was tried and charges were framed for offence under Sections 363, 366, 376 IPC.
3. In order to substantiate prosecution case, three witnesses were examined from the side of prosecution namely victim (P.W.1), Hasim (P.W.2), Wafatan (P.W.3) and also relied on documentary evidence FIR (Ex.Ka.1), Medical examination report of victim (Ex.Ka.2), Chik FIR (Ex. Ka.3), G.D. Entry (Ex.Ka.4), Charge sheet (Ex.Ka.9).
4. After conclusion of prosecution evidence, the statement of appellant was recorded under Section 313 of the Code, who denied the prosecution story and claimed for trial.
5. After conclusion of trial, the trial Court vide impugned judgment and order dated 21.07.2008 acquitted the appellant from offence under Sections 366 and 376 IPC but convicted and sentenced him for offence under Section 363 IPC. Aggrieved by the said judgment and order, the appellant has preferred this appeal.
6. Heard Shri Anil Kumar Tiwari, holding brief of Shri Raghvendra Singh, learned counsel for appellant and Shri Ajay Kumar Pandey, learned AGA for the State and perused the record.
7. Learned counsel for appellant submitted that though the appellant is innocent and has been falsely implicated in the instant case, but he is not pressing this appeal on merits of the conviction. Learned counsel for the appellant further submitted that appellant was tried by trial Court for offence under Sections 363, 366, 376 IPC but he has been acquitted for the offence under Sections 366 and 376 IPC and he has been convicted only for offence under Section 363 IPC. Learned counsel further submitted that at the time of occurrence, the appellant was aged about 19-20 years whereas victim was aged between 17-18 years. Learned counsel further submitted that appellant is law abiding person having no criminal history. Learned counsel further submitted that at the time of occurrence, appellant was young age and is languishing in jail for six months hence, a linent view be adopted for the appellant by reducing the sentence of the appellant because he was confined in jail for 14 months earlier also during trial.
8. Per contra, learned AGA vehemently opposed the submission advanced by learned counsel for the appellant but did not dispute the factual submission advanced by learned counsel for appellant.
9. Record shows that appellant had disclosed the age in his statement under Section 313 of the Code recorded on 04.07.2008 i.e. after one year of occurrence as 21 years. Thus, it appears that at the time of occurrence, appellant was aged about 20 years only. According to learned counsel for appellant, appellant has no criminal history.
10. It is settled principle of sentencing and penology that undue sympathy in awarding sentence with accused is not required. The object of sentencing in criminal law should be to protect society and also to deter criminals by awarding appropriate sentence. In this regard, Court in State of Madhya Pradesh Vs. Saleem @ Chamaru, AIR 2005 SC 3996, has said as under:-
"10. 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".
11. In Ramashraya Chakravarti vs. State of Madhya Pradesh AIR 1976 SC 392, reducing the sentence of young accused, aged about 30 years, convicted for offence under Section 409 I.P.C., from two years to one year, has observed as under:-
"In judging the adequacy of a sentence the nature of the offence, the. circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts. Trial courts in this country already over-burdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice presentence investigation may be of great sociological value. Through out the world humanitarianism is permeating into penology and the courts are expected to discharge their appropriate roles."
12. In view of the above facts and circumstances of the case, as the appellant has been convicted only for the offence under Section 363 IPC and has no criminal history and also he was young man aged about 20 years at the time of occurrence but he is languishing in jail due to his poverty, as submitted by learned counsel for the appellant and also looking into the COVID-19 pandemic situation, I am of the view that linent view is required to be adopted in this case.
13. Accordingly, conviction of the appellant for the aforesaid offence requires no interference and is maintained. But in view of the law laid down by Hon'ble Supreme Court in Saleem @ Chamaru (supra) and Ramashraya (Supra), the sentence of five years rigorous imprisonment, awarded to the appellant for offence under Section 363 IPC., is modified and reduced to rigorous imprisonment of one year nine months with further direction that rest part of the sentence i.e. fine, passed vide impugned judgment and order, requires no interference.
14. Hence, the appeal is partly allowed. The impugned judgment and order is modified. The conviction of the appellant for the aforesaid offence is confirmed but the quantum of sentence is modified and reduced to the aforesaid extent.
15. Let a copy of this judgment along with lower court record be transmitted to the trial Court concerned forthwith for necessary compliance.
Order Date :- 13.1.2021 P.s.