1. Challenge in is appeal is to the judgment and order dated 20.11.2015, passed by Additional Sessions Judge / Fast Track Court, Fatehpur, in Sessions Trial No. 480 of 2010 (State vs. Tahir Ali @ Ali Bhai and two others), registered as Case Crime No. 176 of 2010, under Sections 363, 366, 376, 504 and 506 I.P.C., Police Station Kotwali Fatehpur, District Fatehpur, whereby the accused Kalloo @ Badruddin Shah and Smt. Julekha were acquitted for the charges framed against them, whereas accused appellant Tahir Ali @ Ali Bhai was found guilty and sentenced to five years rigorous imprisonment along with fine of Rs. 1000/- under Section 363 I.P.C.; five years rigorous imprisonment along with fine of Rs. 1000/- under Section 366 I.P.C. and seven years rigorous imprisonment along with fine of Rs. 2000/- under Section 376 I.P.C. with default stipulation.
2. Filtering out the unnecessary details, the prosecution story in brief is that a first information report was lodged at the police station on 29.04.2010 about the incident which took place in the intervening night of 12/13.04.2010, stating that the informant lodged a report at the police station that he is running a tea shop in district Fatehpur near his house. The appellant Tahir Ali @ Ali Bhai used to come to the shop of the informant to drink tea. Tahir Ali @ Ali Bhai used to do the work of conjuration while staying at the house of his relative Kalloo. Tahir Ali @ Ali Bhai used to go to his maternal house also. In the intervening night of 12/13.04.2010, the informant was sleeping at his tea shop. His daughter, the victim aged about 15 years who was appearing in High School was sleeping in the house with her mother Raisa Bano. The accused appellant did some conjuration on the victim due to which the victim became mentally disturbed. The appellant enticed away the girl. When the wife of the informant woke up, she found her daughter missing from the house. She went to the shop of the informant and told him about the missing of the daughter. The informant went to the house of Kalloo and Julekha and asked about his daughter. At which Kalloo and Julekha started abusing him and told him that the accused appellant had taken his daughter to Ghazipur at the house of Sadik Ali. At this, the informant went to the house of Sadik Ali, who told him that Tahir Ali @ Ali Bhai had brought one girl. The informant stay at the house of Sadik at which Sadik and his family driven away the informant after abusing him. The informant went to the house of brother-in-law of Tahir Ali @ Ali Bhai, who told the informant that Tahir Ali @ Ali Bhai had brought a girl who had just left his house. Tahir Ali @ Ali Bhai also threatened the informant at his mobile no. 9889280864 by his mobile nos. 9795974769 and 9616827197. The informant moved the applications at the police station on 13.04.2010 and 15.04.2010 but his report was not lodged, hence an application was moved to S.S.P., Fatehpur to register the case. Thereafter, the report was lodged.
3. On the basis of the report, investigation was entrusted to PW-8 S.I. Shambhu Dayal Awasthi, who conducted the investigation. He copied the chik FIR in the case diary and proved the FIR as Exhibit Ka-10, G.D. as Ka-11. The chik was scribed by PW-8 Shambhu Dayal Awasthi. Investigation was entrusted to PW-10 Vinod Kumar Vaish who recorded the statements of Nasir Ali Khan, Smt. Raisa Bano and inspected the spot and on the pointing out of the informant and his wife, prepared the site plan which was proved by this witness as Exhibit Ka-5. He recorded the statements of Mohd. Izhar, Mobin Khan, Sabir, Sakir and Syed Najim Uhssain on 30.04.2010. He interrogated Shiv Sagar regarding the age of the victim whose date of birth revealed to be 25.06.1994. The victim was recovered by this witness. The recovery memo was proved as Exhibit Ka-16. The investigation was ended into the charge sheet which was proved as Exhibit Ka-19.
4. Medical examination of the victim was conducted by Dr. Rekha Rani, who found the secondary sexual character well developed. She did not find any mark of injury on the body of the victim. Vagina was admitting two fingers easily. She prepared two slides and sent them for examination. She proved her report as Exhibit Ka-3, the ossification report as Exhibit Ka-4, the pathological test report as Exhibit Ka-5 and the supplementary report as Exhibit Ka-6.
5. The prosecution examined as many as ten witnesses. PW-1 is the victim who proved her statement under Section 164 Cr.P.C. as Exhibit Ka-1. PW-2 is informant Nasir, who proved the report as Exhibit Ka-2. PW-3 is Raisa Bano, the mother of the victim and wife of the informant. The statements of PW-4 Dr. Rekha Rani, PW-8 S.I. Shambhu Dayal Awasthi and PW-10 Vinod Kumar Vaish have earlier been discussed. PW-5 is Rama Devi, Principal, who proved the copy of school admission register as Exhibit Ka-7. PW-6 is Subhash Chandra Singh, Pharmacist, who has proved the X-ray report as Exhibit Ka-8 and X-ray plate as material Exhibit-1. PW-7 is Dr. B.C. Budhani, who examined the vaginal slides. PW-9 is Indra Pal Singh, Principal who proved the copy of transfer certificates as Exhibit Ka-12, Ka-13 and Ka-14.
6. After closure of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. in which all the accused have denied the occurrence. The accused appellant Tahir Ali @ Ali Bhai has stated that the victim was having love affairs with him. She was major at the time of incident. She went with the appellant on her own accord. However, he did not produce any evidence in defence.
7. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgment.
8. Feeling aggrieved, the accused has come up in appeal.
9. Heard Sri Vikas Singh, learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the lower court record.
10. During the course of argument, learned counsel for the appellant Sri Vikas Singh has submitted that he does not want to press this appeal with regard to the conviction of the appellant for the offences on merit but he wants to submit his arguments only on the quantum of sentence. However, he has vehemently argued that the custodial sentence of maximum seven years rigorous imprisonment is too harsh and excessive sentence because at the time of occurrence the accused appellant Tahir Ali @ Ali Bhai was 27 years of age. Even presently he has not even completed 33 years of age. It has further been submitted that during the trial, the accused was all through in jail. Even presently he is in jail since 15.05.2010. Thus, he will be completing six years of continuous imprisonment on 15.05.2016. Only one year of his sentence is remaining unserved. It has lastly been submitted that the accused appellant be sentenced to imprisonment for the period already undergone by him.
11. Learned A.G.A. has opposed the prayer made by counsel for the appellant.
12. Not pressing the criminal appeal after the conviction of the accused by the court below is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.
13. In case of Sevaka Perumal etc. Vs. State of Tamil Nadu, AIR 1991 SC 1463, the Hon'ble Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:-
"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
14. Appropriate sentence is the cry of the society. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.
15. In Jameel vs. State of Uttar Pradesh, (2010) 12 SCC 532, the Hon'ble Apex Court has reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus: -
"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 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.
16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
16. It is not disputed that the accused appellant has undergone 5 years and more than 10 months of imprisonment which is a long period of incarceration as he has also undergone his maximum period of his sentence.
17. Thus, considering the law laid down by Hon'ble Apex Court in the above mentioned cases, in the facts and circumstances of the case, in my opinion, the ends of justice would be met if the custodial sentence of 7 years rigorous imprisonment under Section 376 I.P.C is reduced to 6 years rigorous imprisonment without reducing the amount of fine imposed against the accused appellant under all other sections.
18. In view of the aforestated reasons, the appeal is partly allowed.
19. The conviction of the appellant under Sections 363, 366 and 376 I.P.C. is confirmed and 7 years rigorous imprisonment under Section 376 I.P.C. is reduced to 6 years rigorous imprisonment but the sentence of fine of Rs. 2000/- under Section 376 I.P.C. is maintained. The remaining sentences with default stipulation is also maintained.
20. The appellant is in jail and would serve out the remainder of his sentence if not already completed.
21. Let certified copy of this judgment be sent to the concerned court immediately for sending modified conviction warrant of the accused appellant to the concerned prison.
Order Date :- 04.04.2016 sailesh