Reserved on : 15.02.2018 Delivered on : 22.02.2018
Court No. - 12
Case :- CRIMINAL APPEAL No. - 1219 of 2013
Appellant :- Imran
Respondent :- State Of U.P.
Counsel for Appellant :- Amit Singh,A.K. Mishra,M.P. Yadav,Rahul Chaturvedi
Counsel for Respondent :- Govt. Advocate
Hon'ble Daya Shankar Tripathi,J.
Heard Sri A.K. Mishra, learned counsel for the appellant, learned AGA and perused the record.
Appellant has assailed the judgment and order dated 12.02.2013 passed by the Additional Sessions Judge, Mathura (Court No.11), in Sessions Trial No.450 of 2011 (State Vs. Imran and others) arising out of Case Crime No.87 of 2011, under Sections 376, 452, 323, 504 and 506 I.P.C., Police Station Chhata, District Mathura, by which appellant has been convicted and sentenced under Section 376 I.P.C. with rigorous imprisonment of ten years and fine of Rs.5,000/- (in default of payment of fine, six months' additional imprisonment), under Section 452 I.P.C. with rigorous imprisonment of five years and fine of Rs.3,000/- (in default of payment of fine, three months' additional imprisonment), under Section 323/34 I.P.C. with simple imprisonment of one year and under Section 506 I.P.C. with rigorous imprisonment of five years and fine of Rs.3,000/- (in default of payment of fine, three months' additional imprisonment).
In the present judgment, I do not propose to mention the name of the victim girl in view of the provisions of Section 228A I.P.C. and in pursuance of the observations made by the Hon'ble Supreme Court in para-4 in the case of State of Himachal Pradesh Vs. Shree Kant Shekari (AIR 2004 SC 4404) the prosecutrix (hereinafter referred to as 'victim').
Prosecution case, in brief, is that complainant/victim submitted a written report (Ex. Ka-1) before the police station concerned, stating therein that she was present in her house and someone knocked the door. When she opened the door, accused-Imran asked about her mother. She stated that her mother has gone to Delhi and accused entered into the house and committed rape with her. Hearing alarm raised by the victim, wife of her brother came and saw the occurrence and accused ran away from there. When brother of the victim came back, he was informed about the incident and he went to the house of accused-Imran to complain about the incident, accused-Imran alongwith his brothers Jakir and Farid abused him and entered into his house and committed MARPEET with the victim and her brother. Hearing the hue and cry, neighbours came there and accused persons went from there, intimidating to kill. Occurrence took place on 24.03.2011 at 6.30 P.M. Mother of the victim was informed on telephone, who came back from Delhi and went to police station to lodge the report.
On the basis of aforesaid written Tahrir (Ex. Ka-1), Case Crime No.87 of 2011 under Sections 376, 452, 323, 504 and 506 I.P.C., was registered in Police Station Chhata, District Mathura on 25.03.2011 at 15.30 hours and entry of the case was made in the general diary of the police station. Investigation of the case was taken up by Sub-Inspector, Yadram Singh. Victim was medically examined. Place of occurrence was inspected by Investigating Officer ('I.O.') and map of the spot was prepared. After recording statement of witnesses and collecting evidence during the course of investigation, charge-sheet (Ex. Ka-7) was submitted by the I.O. against appellant-accused and other co-accused persons under Sections 376, 452, 323, 504 and 506 I.P.C.
Charges under Sections 376, 452, 323/34, 504 and 506 I.P.C. were framed by the Trial Court against appellant- accused, Imran and charges under Sections 452, 323/34, 504 and 506 I.P.C. were framed against co-accused Zakir, Farid and Furkan. Accused denied the charges levelled against them and claimed for trial.
As many as 05 prosecution witnesses were examined before the Trial Court.
PW-1, (victim) has been examined, who has supported the prosecution version and proved written report (Ex. Ka-1).
PW-2, Smt. Monika Sahni (wife of victim's brother), has been examined who has supported the prosecution version.
PW-3, Dr. Shalini Singh, has been examined, who has deposed that she had medically examined the victim on 25.03.2011 and proved medical examination report of the victim (Ex. Ka-2). She has further stated that the victim was referred for pathological test and x-ray examination and proved supplementary report (Ex. Ka-3). She has further stated that age of the victim was above 18 years at the time of occurrence.
PW-4, Constable, Suresh Chandra, has been examined, who has proved Chik F.I.R. (Ex. Ka-4) and copy of general diary (Ex. Ka-5).
PW-5, Sub-Inspector, Yadram Singh (I.O.), has been examined, who has deposed that investigation of this case was conducted by him. He has further deposed that place of occurrence was inspected by him and its map (Ex. Ka-6) was prepared by him. He has further stated that after recording statement of witnesses and collecting evidence during the course of investigation, charge-sheet (Ex. Ka-7) under Sections 376, 452, 323, 504 and 506 I.P.C. was submitted against the appellant-accused and other co-accused-persons.
Statement of accused under Section 313 Cr.P.C. was recorded by the Trial Court. Accused stated that the prosecution evidence is false and they have been falsely implicated in the case.
DW-1 Saleem, DW-2 Mohd. Yusuf, DW-3 Vikrant Tyagi and DW-4 Lal Chand Bhati have been examined on behalf of the appellant and co-accused persons in their defence.
After giving opportunity of hearing to both the parties, judgment and order dated 12.02.2013 was passed by learned Trial Court, by which appellant-accused was held guilty under Sections 376, 452, 323/34, and 506 I.P.C. and sentenced as stated above, co-accused Zakir and Farid were convicted and sentenced under Sections 452, 323/34 and 506 I.P.C. and co- accused Furkan was acquitted from the charges leveled against him.
It is this impugned judgment and order of conviction and sentence passed against the appellant-accused Imran, which is under challenge to this criminal appeal.
Learned counsel for the appellant has not pressed on the merit of appeal and point of conviction recorded by the Trial Court against the appellant. He has confined his arguments only on the point of sentence imposed against the appellant under Sections 376 I.P.C. He submitted that appellant-accused has been convicted and sentenced under Section 376 I.P.C. and not under Section 376 (2) I.P.C. He further submitted that date of occurrence is 24.03.2011 and provisions of Section 376 I.P.C. were applicable before the commencement of the Criminal Law (Amendment) Act, 2013, which came into force from 03.02.2013. He further submitted that this case does not fall within the ambit of Section 376 (2) of unamended I.P.C., according to which ten years of minimum sentence is mandatory. He has relied on law laid down by Hon'ble Apex Court in the case of Mahendra Subhashbhai Vankhede Vs. State of Gujarat and another reported in [2017 (101) ACC 276]. He further submitted that minimum sentence of seven years is mandatory under Section 376 (1) I.P.C. There was no such material before learned Trial Court that appellant-accused was required to be sentenced for more than minimum sentence of seven years under Section 376 I.P.C. Hence, sentence of ten years imposed by the Trial Court is harsh, perverse and liable to be set aside. He further submitted that appellant-accused was arrested on 04.04.2011 and since then he is continuously detained in jail and he has undergone about seven years of sentence imposed by the Trial Court against him. He further submitted that there is no previous criminal history of the appellant-accused, he is aged about 28 years and he is a poor person having occupation of Auto Driver. He lastly submitted that impugned order of sentence passed by the Trial Court against the appellant-accused should be modified to minimum sentence of seven years under Section 376 I.P.C.
Learned AGA submitted that appellant-accused has been found guilty under Section 376 I.P.C. and after considering the facts and circumstances of this case, he has been sentenced with imprisonment of ten years under Section 376 I.P.C. Appeal is devoid of merit and it is liable to be dismissed, but he has not disputed the aforesaid facts as submitted by learned counsel for the appellant.
It is borne out from the record that the victim (PW-1) and eye-witness (PW-2) have fully supported the prosecution version, their testimony is trustworthy and it is corroborated by medical evidence of PW-3 and evidence of I.O. (PW-5) and charges under Sections 376, 452, 323, 504 and 506 I.P.C. are proved against the appellant-accused. Considering the minimum sentence of seven years prescribed under Section 376 I.P.C., period of sentence undergone by appellant-accused and entire facts and circumstances of this case, I am of the opinion that ends of justice will be served, if appellant-accused is sentenced with minimum imprisonment of seven years under Section 376 I.P.C. Accordingly, the appeal deserves to be partly allowed.
Appeal is partly allowed. Impugned order of conviction dated 12.02.2013 passed by learned Trial Court against the appellant-accused is affirmed. Order of sentence passed by the Trial Court is modified. Appellant-accused is sentenced with seven years of imprisonment under Section 376 I.P.C. Amount of fine imposed by the Trial Court under Section 376 I.P.C. and sentences under Sections 452, 323/34 and 506 I.P.C. imposed by the Trial Court against the appellant-accused will remain intact.
Jail Authorities are directed to consider and provide the benefit of remission to appellant-accused, for which he is entitled, under the rules.
Let two copies of this judgment be sent to the court concerned forthwith, for information and necessary follow up action. Trial Court is directed to send one copy of judgment to the Superintendent of Jail concerned for communicating the result of appeal to the appellant-accused and apprise him for legal remedy against the judgment. Trial Court is also directed to submit compliance report within eight weeks.
Order Date:- 22.02.2018 Atul