1. This criminal appeal has been filed against the judgment and order dated 16.06.2015 passed by Special Judge, POCSO Act/Additional Session Judge, Court No.8, Moradabad in S.T. No.133 of 2014 (State of U.P. vs. Faizan) arising out of Crime No.194 of 2013, Police Station Mughalpura, District Moradabad by which appellant has been convicted and sentenced under Section 363 I.P.C. for a period of 7 years rigorous imprisonment with fine of Rs.20,000 and in default 1 year additional simple imprisonment; under Section 420 I.P.C. for a period of 5 years rigorous imprisonment with fine of Rs.10,000 and in default 6 months additional imprisonment; under Section 467 I.P.C. for a period of 10 years rigorous imprisonment with fine of Rs.25,000 and in default 2 years additional simple imprisonment; under Section 468 I.P.C. for a period of 7 years rigorous imprisonment with fine of Rs.20,000 and in default 1 year additional simple imprisonment; under Section 471 I.P.C. for a period of 7 years rigorous imprisonment with fine of Rs.20,000 and in default 1 year additional simple imprisonment and under Section ¾ POCSO Act for a period of 10 years rigorous imprisonment with fine of Rs.25,000 and in default 2 years additional simple imprisonment. It has also been directed that all the sentences will run concurrently.
2. Prosecution story in brief is that on 23.10.2013 at about 9:30 P.M. appellant kidnapped the son of informant Furkan. On his shriek, the informant with Mohd. Shahid, Shakeel Ahmad and Dr. Margub Ali ran towards Indira Chowk and caught appellant Faizan who fell on the road while running and sustained injuries on his person. He was handed over to the police at Police Station with black colored Activa bearing no. UP-21 AF 8090. It was stated by the victim that he was taken by appellant on the pretext of playing video game and he made him (victim) suck his penis in his mouth. On written tehrir, F.I.R. was lodged on the same day at 11:00 P.M. in the night at police station Mughalpura as Crime No.194 of 2013 under Section 363 I.P.C. and under Section ¾ POCSO Act.
3. On 24.10.2013 victim was medically examined at about 2:50 P.M. No any injury was found on his person. Two slides were prepared from the cavity and gums for the test of semen and sperm and sent to pathology.
4. On the same day appellant was also medically examined. Traumatic swelling 2.5 x 1.5 cm was found on the middle of nose with bleeding from nostrils. There was complaint of pain on back of upper shoulder. He was under the affect of some sedative drug and was not fully conscious. Injury no.1 was kept under observation and advised for x-ray. Duration was about fresh and it was caused by some hard and blunt object.
5. Investigation of the case was handed over to S.I. Dheeraj Singh and thereafter to S.I. Pawan Kumar who proceeded to the place of occurrence, recorded statement of informant and also prepared the site plan. After recording statement of other witnesses concluded the investigation and submitted charge-sheet against the appellant Faizan under Sections 363, 420, 467, 468, 471 I.P.C. and under Section ¾ POCSO Act.
6. The court concerned supplied necessary prosecution papers to the appellant in compliance of Section 207 Cr.P.C. and took cognizance of the offences. On the basis of material collected by I.O. during investigation learned trial court framed charge against the appellant which was read over to him. He did not plead guilty but denied the charge and claimed for trial.
7. In support of its case the prosecution adduced PW-1 victim, PW-2 Shahid, PW-3 Shakeel Ahmad, PW-4 Furkan Ali, PW-5 Arbaz @ Arman as witnesses of fact, PW-6 S.I. Dheeraj Singh, PW-7 S.I. Pawan Kumar who investigated the case, PW-8 Dr. Tarun Kumar Yadav, medical Officer who medically examined the victim and prepared the medical report.
8. After conclusion of prosecution evidence statement of appellant under Section 313 Cr.P.C. was recorded in which he has denied the prosecution version and stated that witnesses have deposed falsely and explained that none assaulted him. He fell down and sustained injuries. He took medicine for pain but did not take sedative drug and further stated that evidence in this regard is wrong. He has not adduced any evidence in his defence.
9. After hearing the arguments on behalf of the State as well as the appellant and on perusal of record learned trial court passed the judgment and order dated 16.06.2015 convicting and sentencing him as aforesaid.
10. Being aggrieved with the conviction and sentence he has filed this appeal against the judgment and order under challenge.
11. Heard Sri Umesh Pal Singh, Advocate holding brief of Ms. Pooja Singh, learned counsel for the appellant and Sri Dinesh Chandra Dwivedi, learned A.G.A. for the State and perused the record.
12. Learned counsel for the appellant submitted that in this case appellant has been implicated falsely. There is no any evidence to support the prosecution version. The evidence on record is very weak. No any injury or the evidence was found relating to the alleged act. There are material contradictions in the testimony of prosecution witnesses even though learned trial court has convicted and sentenced the appellant arbitrarily without considering the nature of evidence and awarded severe punishment against the appellant who is languishing in jail from the very outset of the case.
13. At the very outset, the learned counsel for the appellants, on instructions, has submitted that he does not propose to challenge the impugned judgement and order on its merits. He, however, prays for modification of the order of the sentence for the period already undergone by the appellants.
14. Learned Additional Government Advocate representing the State has stated that he has no objection if the Court considers the mitigating circumstances.
15. Since the learned counsel for the appellants has given up challenge to the findings of conviction and there is ample evidence including eyewitness account and medical report to base conviction, accordingly, the conviction of the appellants for the aforesaid offence stands affirmed.
16. However, on the quantum of sentence, learned counsel for the appellant has argued that he is not previous convict. It is further submitted by the learned counsel on behalf of the appellant that he has been in jail for more than eight years. He next submits that he is young man and he is married and having small children to look after. It would be in the interest of justice that his sentence is modified by the sentence already undergone by him.
17. While dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, held as under:
"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole.
Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their officiousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs- 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same."
18. 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 re-culturization. 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."
19. In Sham Sunder vs. Puran, (1990) 4 SCC 731, where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:
"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."
20. In State of MP vs Najab Khan, (2013) 9 SCC 509, the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the court observed as follows:-
"In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."
21. Earlier, "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 proportionately. 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.
22. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in 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.
23. In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.
24. 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.
25. 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.
26. Looking into the evidence oral as well as documentary, which is available on record, this Court is of the opinion that learned trial court has rightly convicted the appellant as there is clear and cogent evidence against him, which is corroborated by the testimony of eye witness PW-5 Arwaz.
28. Considering the facts and circumstances of the case and the substantive period of 8 years already undergone by the appellant in this case and the fact that the appellant is married and having small children to look after; there is no bread winner in his family and that he has realized the mistake committed by him and is remorseful of his conduct to the society to which he belongs and now he wants to transform himself, I am of the considered opinion that the accused appellant should be given a chance to reform himself and be allowed to give his better contribution to the society to which he belongs to.
29. Consequently, the sentence is modified by the sentence already served out and undergone by the appellant and the amount of the total fine imposed by the learned court below was Rs.120000/- which is reduced to Rs.25,000/- and it is to be deposited by appellant, in case he fails to deposit the amount of fine, he will have to serve three months additional imprisonment.
30. With the above modifications, the appeal is partly allowed.
31. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.
Order Date :- 22nd October, 2021 Ashok Gupta (Subhash Chandra Sharma,J.)