1. The instant criminal appeal, under Section 374(2) of Code of Criminal Procedure, 1973 (in short 'Code') has been preferred against the judgment and order dated 21.4.2016, passed by Additional Sessions Judge, Court No.2, Ambedkar Nagar, in Special Session Trial No.2 of 2005 (State vs. Mohd. Saleem Khan), arising out of Case Crime No.263 of 2004, Police Station Bewana, District Ambedkar Nagar, whereby appellant Mohammad Saleem Khan @ Guddu has been convicted and sentenced for offence under Section 376 IPC for ten years rigorous imprisonment with fine of Rs.20,000/- and for offence under Section 506 IPC two years rigorous imprisonment with further direction that in default of payment of fine for offence under Section 376 IPC, the appellant has to undergo one year additional rigorous imprisonment. It is further provided that appellant has to pay compensation of Rs.50,000/- to victim.
2. The prosecution case, in brief, is that victim (P.W.1) on 05.11.2004 had gone to pick up the stray woods to cook food along with one Anita. Meanwhile, at about 1:00 p.m. appellant Saleem Khan @ Guddu followed her. When the victim objected to follow him, he threw her on the ground and committed rape with her. Anita, on seeing the occurrence, making hue and cry fled away from the place of occurrence. In the meantime, Ram Kishore, co-villager who was also present near the place of occurrence and cutting the grass came there but the appellant fled away from the spot.
3. On 06.11.2004, First Information Report (Ex.Ka-1) was lodged at about 10:15 a.m. and victim was sent for medico-legal examination. She was medically examined at Women Hospital, Faizabad and was sent for ultrasound. Smear slide was also prepared and sent for examination. In ultrasound examination, it was found that victim was pregnant by 23 weeks. No external or internal injury was found on the person of the victim although she was complaining pain in her private parts.
4. During investigation, the Investigating Officer visited the place of occurrence, prepared site plan (Ex-Ka5), arrested the accused-appellant on 07.11.2004, recovered his clothes (pant) as well as petticoat of the victim and sent to Forensic Science laboratory for forensic examination where it was found that semen was present on the clothes of the victim.
5. After investigation, charge sheet (Ex.Ka.6) was submitted against the appellant under Sections 376, 506 IPC and Section 3 (1) (12) and 3 (2) (5) SC/ST Act.
6. The learned trial Court, after hearing learned counsel for both the parties, framed charges for the offence under Sections 376, 506 IPC and Section 3 (1) (12) and 3 (2) (5) SC/ST Act against the appellant, who denied the same and claimed for trial.
7. Prosecution, in order to prove its case, examined the victim (P.W.1), Ram Kuber (P.W.2), Ram Vilas Yadav (P.W.3), Dr. C.D. Tripathi (P.W.4) R.S. Chaurasia-Investigating Officer (P.W.5), S.I. Om Prakash Yadav (P.W.6), Dr.R.P. Gupta (P.W.7).
8. After conclusion of prosecution witness, the statement of appellant was recorded under Section 313 of the Code, who denied the prosecution story and stated that he has been falsely implicated.
9. In support of his defence, to rebut the prosecution story, Ramraj as (D.W.1) and Shafeeullah Khan as (D.W.2) were examined by the appellant as defence witness.
10. Upon conclusion of trial, the trial Court vide impugned judgment and order dated 21.04.2016, convicted and sentenced the appellant as above. Aggrieved by the said judgment and order, the appellant has preferred this appeal.
11. Heard Shri Firoz Ahmad Khan, learned counsel for appellant, Shri Brijendra Singh, learned AGA -1 assisted by Shri Jyoti Prakash, brief holder for the State.
12. Learned counsel for appellant submitted that appellant is innocent and has been falsely implicated in this case but he is not pressing this appeal on merits. Learned counsel further submitted that appellant is a poor person, he was aged about only 27 years at the time of occurrence. Learned counsel further submitted that victim was major and married lady. Learned counsel further submitted that the alleged sexual intercourse happened with the consent of victim, since victim's husband is a member of Scheduled Caste and Scheduled Tribes, due to pressure caused by member of his community and co-villager, a false information was lodged. Learned counsel further submitted that at present, the appellant is aged about more than 45 years. He has no criminal history. He is a married person. Learned counsel further submitted that the learned trial Court has not convicted the appellant under Section 376 (2) IPC and offence was committed in the year 2004 hence, a linent view may be adopted.
13. Per contra, learned AGA vehemently opposed the submission advanced by learned counsel for the appellant but did not dispute the factual submission of learned counsel for the appellant. Learned AGA further submitted that in view of gravity of offence, the appellant is not entitled for any linency.
14. For offence under Section 376 (1), as it was in the year 2004 i.e. at the time of occurrence, accused could be convicted for a sentence 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 also shall be liable to fine; whereas for offence under Section 376(2), the accused could be punished for rigorous imprisonment for a term which shall not be less than ten years but which may extend for life and also be liable to fine. It was further provided that the Court may, for adequate/special reasons, mentioned in the judgment, impose a sentence for imprisonment for a term less than seven years for offence under Section 376 (1) and for a term less than ten years for offence under Section 376(2) IPC.
15. Admittedly, victim was major and a married lady at the time of occurrence, she was having a pregnancy of 23 weeks and 05 days. In medical examination, no external or internal injury was found on the body of the victim although she was only complaining for pain in her private parts. In addition to above, occurrence had taken place in the broad day light but the prosecution has not produced any independent witnesses Anita and Ram Kishore, present at the time of occurrence and also named in FIR. First Information Report was lodged by delay of one day at about 10:15 a.m. The appellant has been convicted for offence under Section 376 IPC and the trial Court at the time of passing the sentence has considered only Section 376 (1) and Section 506 IPC which shows that appellant has not been convicted for offence under Section 376 (2) IPC. The offence occurred in the year 2015 i.e. 15 years ago when the appellant was aged about 27 years old. Record shows that the appellant is languishing in jail since 2016, and learned counsel for the appellant has also submitted that appellant is a very poor person having no criminal history.
16. 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".
17. 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."
18. Looking into the facts and circumstances of the case, I am of the view that the conviction of appellant for the aforesaid offence requires no interference and is accordingly, maintained. But in view of the law laid down by Hon'ble Supreme Court in Saleem @ Chamaru (supra) and Ramashraya (supra), the sentence of ten years rigorous impirsonment awarded to the appellant for offence under Section 376 IPC is modified and reduced to rigorous imprisonment of seven years with further direction that rest part of the sentence, passed vide impugned judgment and order, requires no interference.
19. Hence, the appeal is partly allowed. The conviction of the appellant for offences punishable under Sections 376 and 506 IPC is confirmed but the quantum of sentence is modified and is reduced to the aforesaid extent.
20. Let a copy of this judgment along with lower court record be transmitted to the trial Court concerned forthwith for necessary compliance.
Order Date :- 12.1.2021 P.s.