Hon'ble Ajai Tyagi,J.
(Per: Hon'ble Ajai Tyagi, J.)
1. Heard learned counsel for the appellant and learned AGA for the State as well as perused the record.
2. This appeal has been preferred against the judgement and order dated 11.11.2011 passed by learned Additional Sessions Judge court No.1, Agra in S.T. No.853 of 2010 (State Vs. Chhotu @ Diwakar @ Karamveer) arising out of Case Crime No.109 of 2010, under Section 452 and 376 IPC, Police Station- Khandoli, District- Agra, whereby the accused-appellant was convicted and sentenced under Section 376 (2) F IPC for life imprisonment and fine of Rs.50,000/-. He was directed to undergo further imprisonment for three years in case of default of fine. He was further convicted and sentenced under Section 452 IPC for seven years rigorous imprisonment and fine of Rs.20,000/- and further simple imprisonment for one year in case of default of fine. Learned trial court directed that both the sentences shall run separately.
3. The brief facts of this appeal are that the written report was submitted at police station- Khandoli, District- Agra by Jagdish Singh stating that on 27.04.2010, he was working in his field and his wife Usha Devi had gone to Aligarh. Her daughter (victim) aged about 11 years was alone in the house and was cooking the food. At about 10 a.m. in the morning, one Chhotu, resident of his village, aged about 21 years entered his house and committed rape with his daughter. On the basis of this written report, Ext. Ka-1, a Case Crime No.109 of 2010 was registered against the accused Chhotu. Investigation of this case was taken up by S.O. Dharmendra Singh, who recorded the statements of victim and other witnesses, prepared site-plan. During the course of investigation, statement of victim was recorded under Section 164 Cr.P.C. Victim was medically examined and medical report Ext. Ka-5, supplementary report Ext. Ka-6 were prepared. Slides of smear swab were sent for examination. Victim's skirt was sent to FSL, Agra from where report Ext. Ka-9 was received, which shows that human sperm and spermatozoa were found on the skirt. After completing the investigation, investigating officer submitted charge sheet against the accused-appellant Chhotu under Section 452 and 376 IPC. The case, being triable by court of sessions, was committed by competent Magistrate to the court of session for trial. Learned trial court framed charges against the accused-appellant under Section 452 and 376 IPC and accused was put on trial.
4. The prosecution so as to bring home the charges examined six witnesses, namely:-
1. Jagdish Singh PW1
2. Victim PW2
3. Shibbu PW3
4. Mahabir Singh PW4
5. Dr. Sheilly Singh PW5
6. Dharmendra Singh Mutaina PW6
5. In support of the ocular version of witnesses, following documents were produced and contents were proved by leading evidence:
1. FIR Ext. Ka-3
2. Written Report Ext. Ka-1
3. Medical Examination Report Ext. Ka-5
4. Supplementary Report Ext. Ka-6
5. Report of Vidhi Vigyan Prayogshala Ext. Ka-9
6. Charge Sheet (Mool) Ext. Ka-8
7. Statement u/s 164 Cr.P.C. of victim Ext. Ka-2
8. Site-plan with index Ext. Ka-7
6. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C., in which accused told that false evidence has been led against him and due to old family enmity, he was implicated falsely in this case. The accused did not examine any witness in defence.
7. perusal of record shows that occurrence of this case took place in day light, i.e., at 10 am in the morning in the house of victim when she was alone and cooking the food. After the occurrence, the father of victim took her to District Women Hospital, Agra where she was medically examined by Dr. Sheilly Singh. As per medical report of victim, it was found that fresh and dried blood was present on her legs which was oozing from her vagina. During the course of internal examination, it was found there was torn hymen of second degree at 6 o'clock position. Vagina and muscles were found torn. Injury was fresh and there was excess bleeding due to injury. Slides of smear swab were prepared and sent for examination. No spermatozoa was seen in supplementary report. Doctor opined that no definite opinion for rape could be given but it was opined that there was some insertion of some hard blunt object in the vagina and that hard blunt object could be male sex organ. Forensic Science Laboratory report shows that human spermatozoa was present on the victim's skirt.
8. Victim was examined before learned trial court as PW2. She has stated in her statement that on the date of occurrence, she was alone in the house. At about 10 am, accused entered her house and forcibly committed rape with her. Victim has stated the occurrence in detail in her statement and also said that her vagina was started bleeding. On her hue and cry, her aunt Usha and younger brother Shibbu came to the spot and accused fled away. In her cross-examination, she had also supported the prosecution case. Nothing was extracted by the defence which could affect the prosecution case adversely. She remained hospitalized for five days. Her younger brother Shibbu, who is eye-witness of the crime has deposed as PW3. He has supported the prosecution case in his statement and narrated the story, seen by him. Complainant of this case is father of the victim. He is examined as PW1. He has proved written report submitted by him at police station. The version of aforesaid witnesses is fully corroborated with medical evidence on record.
9. After some arguments, learned counsel for the appellant submitted that he is not pressing this appeal on its merit but he prays only for reduction of sentence as the sentence of life imprisonment awarded to the appellant by the trial court is very harsh. Learned counsel for the appellant relied on judgements in case of Bavo @ Manubhai Ambalal Thakore Vs. State of Gujarat Saudan 2012 (1) All JIC 319 and Rajendra Datta Zarekar Vs. State of Goa 2008 (1) All JIC 123, in which Hon'ble Apex has reduced the sentence in the specific facts and circumstances of above case.
10. This case pertains to the offence of 'rape', defined under Section 375 IPC, which is quoted as under:
[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
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions :-
First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind of intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under eighteen years of age.
Seventhly.- When she is unable to communicate consent.
Explanation 1.- For the purposes of this section, "vagina" shall also include labia majora.
Explnation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
Exception 1.- A medical procedure or intervention shall not constitute rape.
Excpetion 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.]
11. In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
12. 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP [(2004) 7 SCC 257] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
13. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP [(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734], Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323], State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.
14. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.
15. Learned counsel for the appellant further submitted that the sentence of life imprisonment awarded by the trial court is very severe and same may be reduced along with other sentence awarded under Section 452 IPC. It may be pertinent to mention that Section 376 (2)F of IPC specifically provides that whereby the victim has less than 12 years of age, the sentence awarded shall not be less than 10 years but it may be for life and the accused shall also be liable to fine. Here the victim was about 11 years old at the time of occurrence, therefore, the case is fully covered by clause (f) of sub-section (2) of Section 376 of IPC and the sentence awarded cannot be less than 10 years unless there are adequate and special reasons for doing so. We do not find any adequate and special reasons for imposing of sentence less than 10 years. Since the learned counsel for the appellant has not pressed the appeal on its merit, however, after perusal of entire evidence on record and judgement of trial court, we consider that the appeal is devoid of merit and is liable to be dismissed. Hence, the conviction of the appellant is upheld.
16. As discussed above, ''reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the ''doctrine of proportionality'. It appears from perusal of impugned judgement that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.
17. In the FIR of this case, the age of accused is shown 21 years. Keeping in view the entire facts and circumstances of this case and evidence on record, we are of the considered view that ends of justice would be met if sentence is reduced.
18. Hence, we substitute the sentence under Section 452 IPC from seven years to three years and fine is reduced to Rs.2,000/-. Additional imprisonment of one year in case of default of fine shall remain the same. We substitute the sentence under Section 376 IPC from life imprisonment to the rigorous imprisonment of 13 years with all remissions and fine of Rs.40,000/-. Additional imprisonment in case of default of fine shall remain the same. Out of the amount of fine, Rs.40,000/- shall be paid to the victim as compensation.
19. It is made clear that both the sentences shall run concurrently.
20. Accordingly, the appeal is partly allowed with the modification of sentence as above.
Order Date :- 25.10.2021 Ashutosh Pandey