Reserved on 07.07.2018 Delivered on 31.07.2018
Case :- CRIMINAL APPEAL No. - 1355 of 2004
Appellant :- Medai Singh
Respondent :- State Of U.P.
Counsel for Appellant :- Rajesh Kumar Singh,Sushil Kumar Dwivedi
Counsel for Respondent :- Govt. Advocate
Hon'ble Om Prakash-VII,J. Hon'ble Ifaqat Ali Khan, J.
1. This criminal appeal has been preferred by the accused / appellant against the judgment and order dated 20.1.2004 passed by the Additional District & Sessions Judge, Court No.18, Allahabad in Session Trial No. 813 of 2001 convicting the appellant Medai Singh for the offence punishable under Section 376 IPC and sentencing him to undergo rigorous imprisonment of life and a fine of Rs. 5,000/-. In default of payment of fine, appellant was also directed to undergo additional rigorous imprisonment of one year.
2. The facts of the case, in nutshell, as unfolded by the informant Vijay Bahadur son of Sarju Patel in the First Information Report (in short 'F.I.R.'), are that on 18.12.2000 when his daughter, the victim girl, aged about 10 years, had gone to cut grass, at about 11 a.m. one Medai son of Chhinnu Singh, resident of same village, took her away forcibly in the suger-cane field and committed rape upon her due to which blood was oozing from her private part. The incident was witnessed by the women working there. Upon noise, he got knowledge of the incident.
3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-9) was registered at Police Station concerned mentioning all the details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time.
4. Investigation of the matter was entrusted to Prabhunath Singh, Sub-Inspector. The Investigating Officer started investigation. He inspected the place of occurrence and prepared site plan (Ext. ka-4). One bloodstained underwear and piece of dupatta of the victim also took into custody and prepared a memo Ext. ka-5. Underwear of the accused was also taken into custody which is Ext. ka-6. The Investigating Officer recorded the statement of the witnesses. Injured was medically examined. Injury report is Ext. ka-2 and supplementary injury report is Ext. ka-3.
5. On examination in Dufferin Hospital, dry blood streak on medial side of both thighs was found present. Blood clots present in the vagina and a leaner tear 1 cm long ¾ cm deep on post vaginal wall at 6 O'clock position. Victim was referred to MLN Hospital.
6. In the opinion of the doctor at MLN Hospital, victim was aged about thirteen years and vaginal injury caused by blunt object was found but definite opinion about rape was not given.
7. After completing the investigation, charge-sheet (Ext. ka-7) against the accused appellant was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by session court, was committed to the Court of sessions.
8. Accused/appellant appeared and charge under Section 376 IPC was framed. Accused has denied the charge framed against him and claimed his trial.
9. Trial proceeded and on behalf of prosecution, 7 witnesses, namely, PW-1, Vijay Bahadur, PW-2 victim girl, PW-3 Dr. Smt. Raj Bala Gupta, PW-4 Prabhunath Singh, Sub-Inspector, the Investigating Officer, PW-5 Dr. D. Dwivedi, PW-6 Head Constable Bebi Shanti and PW-7 Gulab Chandra were examined.
10. After closure of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded.
11. Accused appellant in his statement under Section 313 Cr.P.C. denied the entire allegations levelled by the prosecution and stated that since he had given vote against the village Pradhan, the witnesses had given false statement on his instigation.
12. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellant beyond reasonable doubt and convicted and sentenced the accused appellant, hence this appeal.
13. We have heard Shri Sushil Kumar Dwivedi, learned counsel for the appellant and Shri J.K. Upadhaya, learned AGA for the State at length, and perused the entire record carefully.
14. Learned counsel for the appellant has submitted that in this matter the appellant is in jail since the date of his arrest. Incident is of dated 18.12.2000. Thus, the appellant has served out more than 17 years punishment against the sentence imposed upon him. Minimum sentence provided for the offence under Section 376 IPC is 7 years and maximum sentence is life imprisonment. Appellant's case clearly comes under sub-section (1) of Section 376 IPC. There is no criminal antecedent of the appellant nor he was previously convicted. He was aged about 32 years on 19.12.2003. Thus, now he is aged about 45 years. It was further submitted that the appellant be released on the basis of imprisonment already undergone as he has served-out more period than the minimum sentence provided for the alleged offence. At this juncture, learned counsel for the appellant also referred to the statement of the witnesses recorded during trial as well as the medical evidence.
15. On the other hand, learned AGA appearing for the State submitted that although the appellant has served out more than seventeen years against the imprisonment imposed upon him, yet maximum sentence imposed upon him is life imprisonment. Victim was minor at the time of commission of the offence. Hence, no leniency be extended to the appellant. It was further submitted that the prosecution has proved its case beyond reasonable doubt. There is no illegality or perversity in the findings recorded by the trial court in the impugned judgment and order.
16. In this matter, as is evident, though the learned counsel for the appellant has confined his submission only on the point of sentence, yet we have perused the entire record including the impugned judgment and order carefully and on close scrutiny of entire evidence in consonance of the findings recorded by the trial court and also in view of the settled legal position, this Court is of the view that the prosecution was able to establish the guilt of the accused appellant beyond reasonable doubt for the offence under Section 376 IPC and the said findings recorded by the trial Court in the impugned judgment and order are correct and do not require interference by this Court.
17. Now before dealing with the submission on the point of sentence, we find it necessary to quote the provisions of Section 376 IPC, which are as under:
“376. Punishment for rape.—
(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,—
(a) being a police officer commits rape—
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.”
18. So far as the submission regarding sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
19. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. 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 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'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
20. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence.
21. The Apex Court in the case of G. V. Siddaramesh Versus of State of Karnataka; 2010 (87) AIC 43 (SC), while allowing the appeal of the appellant, altered the sentence. Paragraph 31 of the said judgment is reproduced below:
"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I. P. C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We accordingly, while confirming the conviction of the appellant under Section 304-B, I. P. C., reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."
22. Seven years minimum sentence has been provided for the offence under Section 376 IPC. The trial court vide impugned judgment and order has imposed sentence of imprisonment for life upon the appellant.
23. Applying the principle laid down by the Apex Court in the aforesaid judgment and having regard to the totality of the facts and circumstances of the case particularly the fact that the offence was committed in the year 2000, the appellant is in jail since then and minimum sentence for the offence under Section 376 IPC is seven years and the appellant has served out more than 17 years of the imprisonment imposed upon him as also keeping in view the age of the appellant, we are of the considered view that the ends of justice would meet if the sentence of the appellant awarded to him for the offence under Section 376 is reduced / modified to the imprisonment already undergone including the additional imprisonment imposed upon him in case of default in payment of fine.
24. In the light of foregoing discussions, the appeal is liable to be allowed in part. Conviction of the accused appellant for the offence punishable under Sections 376 is liable to be upheld. The impugned judgment and order dated 20.1.2004 is liable to be modified to the extent as discussed above.
25. Accordingly, criminal appeal is allowed in part and the conviction of the appellant under Sections 376 IPC is upheld. The sentence of imprisonment awarded to the appellant for his conviction under Section 376 IPC is altered and reduced to the imprisonment already undergone. Appellant is in jail. He be released forthwith, if not wanted in any other case. It is clarified that additional imprisonment in lieu of default of payment of fine is included in the period already undergone, hence, the appellant need not be detained to realize the fine amount.
26. Let a copy of this judgment along with lower court record be sent to the Sessions Judge, Allahabad for compliance. A compliance report be sent to this Court.
Order date : 31.07.2018
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