Court No. - 12
Reserved on: 19.02.2018
Delivered on: 27.02.2018
Case :- CRIMINAL APPEAL No. - 1852 of 2013 Appellant :- Nake Pal Respondent :- State Of U.P.
Counsel for Appellant :- V.S. Shukla,Alok Kumar Srivastava,Amod Pandey,Rakesh Pati Tiwari,Sukhvir Singh,Vichitra Kumar Chandel Counsel for Respondent :- Govt. Advocate
Hon'ble Daya Shankar Tripathi,J.
Heard Sri Sukhvir Singh, learned counsel for the appellant and learned AGA and perused the record.
Appellant has assailed the judgment and order dated 05.04.2013 passed by the Special Judge (E.C. Act)/Additional Sessions Judge, Bareilly in Sessions Trial No.1249 of 2010 (State Vs. Nake Pal and another) arising out of Case Crime No.603 of 2010, under Sections 376/120-B/506 I.P.C., Police Station Bhamaura, District Bareilly, by which appellant has been convicted and sentenced under Section 376 I.P.C. with rigorous imprisonment of ten years and fine of Rs.10,000/- (in default of payment of fine, six months additional imprisonment), under Section 506 I.P.C. with rigorous imprisonment of three years.
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-Surendra son of Karan Singh, resident of Village Islamabad, Police Station Bhamaura, District Bareilly, submitted a written report (Ex. Ka-1) dated 30.05.2010 before the police station concerned, stating therein that his daughter (victim) aged about 13 years had gone for purchasing sugar from the shop of Harveer son of Vedram resident of complainant's village on 25.05.2010 at 8.00 A.M., appellant-accused called his daughter in the shop and after closing the door, he committed rape with the victim and co-accused Harveer was standing outside the shop with licensee rifle. After committing the incident, accused intimidated to kill her and her family members, if complaint of the incident is made by her. When the victim came to home and told about the incident to the complainant, she was weeping.
On the basis of aforesaid written Tahrir (Ex. Ka-1), Case Crime No.603 of 2010, under Sections 376/120-B/506 I.P.C. was registered in the police station concerned on 30.05.2010 at 13.10 hours and entry of the case was made in the General Diary (G.D.) of the police station. Investigation of the case was taken up by Sub-Inspector, Satyadev Singh. Victim was medically examined. Place of occurrence was inspected by Investigating Officer ('I.O.') and map of the spot was prepared. Thereafter, further investigation was conducted by S.I. Rajesh Kumar Tiwari and statement of witnesses were recorded by him and charge sheet (Ex. Ka-10) was submitted against the appellant-accused and co-accused Harveer under Sections 376, 506, 120-B I.P.C.
Charges under Sections 376, 120-B and 506 I.P.C. were framed against appellant-accused, Nake Pal and charges under Sections 506, 120-B I.P.C. were framed against co-accused- Harveer. Accused persons denied the charges levelled against them and claimed for trial.
As many as 10 prosecution witnesses were examined before the Trial Court.
PW-1, Surendra (complainant), has been examined, who has supported the F.I.R. version and proved written report (Ex. Ka-1).
PW-2, (Victim), has been examined, who has supported the prosecution version and deposed that the appellant- accused had committed rape with her. She has further stated that she was medically examined and she has further proved her date of birth certificate (Ex. Ka-2), according to which her date of birth is 12.02.1998.
PW-3, Dr. Snehlata Singh, has been examined, who has deposed that victim was medically examined by her on 30.05.2010 and the victim was referred for pathological test and x-ray examination and she has proved the medical examination report (Ex. Ka-3) and supplementary report (Ex. Ka-4).
PW-4, Smt. Kitab Shree (mother of the victim), has been examined who has supported the prosecution version.
PW-5, Vijay Pathak (Head Moharrir), has been examined, who has proved the Chick F.I.R. (Ex. Ka-5) and carbon copy of G.D. (Ex. Ka-6).
PW-6, Sub-Inspector, Satyadev Singh (I.O.), has been examined, who has deposed that investigation of this case was conducted by him. After inspecting the place of occurrence, map of spot (Ex. Ka-7) was prepared by him. He has further proved that statement of witnesses were recorded by him during the course of investigation and further investigation of this case was conducted by Sub-Inspector Rajesh Kumar Tiwari.
PW-7, Narendra Singh (uncle of the victim), has been examined who has supported the prosecution version.
PW-8, Dr. (Smt.) Neeta Chandel, has been examined, who has proved pathological report of the victim (Ex. Ka-8).
PW-9, Dr. Ram Manohar, has been examined, who has proved x-ray report of the victim (Ex. Ka-9) and x-ray plate (material Ex.-1).
PW-10, Sub-Inspector, Rajesh Kumar Tiwari, has been examined, who is subsequent Investigating Officer of this case. He has proved charge sheet (Ex. Ka-10) submitted by him against the appellant-accused under Sections 376, 120-B and 506 I.P.C.
Statement of appellant-accused and co-accused under Section 313 Cr.P.C. was recorded by the Trial Court. Accused- persons stated that the prosecution evidence is false and they have been falsely implicated in the case.
DW-1 Rakesh Singh, DW-2 Zhandu Singh, DW-3 Virendra Singh and DW-4 Bhoore Singh were examined on behalf of accused-persons before the Trial Court in their defence.
After giving opportunity of hearing to both the parties, judgment and order dated 05.04.2013 was passed by learned Trial Court, by which co-accused, Harveer was convicted under Sections 120-B and 506 I.P.C. and appellant-accused, Nake Pal was convicted under Sections 376, 120-B and 506 I.P.C. and sentenced as stated above.
It is this impugned judgment and order of conviction and sentence passed against the appellant-accused 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- accused under Sections 376 and 506 I.P.C.
Learned counsel for the appellant submitted that the victim was above the age of 12 years at the time of occurrence as per school certificate. He further 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 25.05.2010 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 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. 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 detained in jail for about six months during trial and after conviction recorded by the Trial Court on 05.04.2013, he has undergone about five years of sentence imposed against him. Accordingly, he has submitted that the appellant-accused has undergone imprisonment of about five and half years. He further submitted that there is no previous criminal history of the appellant-accused. 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 complainant (PW-1), victim (PW-2), mother of the victim (PW-4) and uncle of the victim (PW-7) have fully supported the prosecution version, no material contradiction has appeared in their cross-examination, their testimony is trustworthy and it is corroborated by medical evidence of PW-3, PW-8 and PW-9 and evidence of I.O. (PW-6 and PW-10) and charges under Sections 376, 120-B 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 detention undergone by the 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 to minimum sentence of seven years and fine as imposed by learned Trial Court under Section 376 I.P.C. Accordingly, the appeal deserves to be partly allowed.
Appeal is partly allowed. Impugned order of conviction dated 05.04.2013 passed by the Trial Court against the appellant-accused is affirmed. Order of sentence passed by the Trial Court is modified. Appellant-accused is sentenced with imprisonment of seven years and fine as imposed by the Trial Court under Section 376 I.P.C. and in default of payment of fine as imposed by the Trial Court under Section 376 I.P.C., he will have to undergo additional imprisonment of three months. Rest of the sentences imposed by the Trial Court under Sections 120B and 506 I.P.C. against the appellant-accused will remain intact.
Appellant-accused is in jail. He shall remain in jail to serve out the remaining part of sentence. 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 and record of Trial Court be sent back 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:- 27.02.2018 Atul