Court No. - 12
Reserved on: 19.02.2018
Delivered on: 27.02.2018
Case :- CRIMINAL APPEAL No. - 3364 of 2013 Appellant :- Tejveer Singh Respondent :- State Of U.P.
Counsel for Appellant :- Ashutosh Gupta,Pramod Kumar Kesarwani,Smt. Vandana Gupta Counsel for Respondent :- Govt. Advocate,V.K.Tripathi Connect with Case :- CRIMINAL APPEAL No. - 4941 of 2013 Appellant :- Kali Respondent :- State Of U.P.
Counsel for Appellant :- Ashutosh Gupta,Vandana Gupta Counsel for Respondent :- Govt. Advocate
Hon'ble Daya Shankar Tripathi,J.
Heard Sri Ashutosh Gupta, learned counsel for the appellants and learned AGA and perused the record.
Since both the criminal appeals have arisen from the same and common judgment of conviction dated 14.06.2013 and order of sentence dated 15.06.2013, hence both the appeals are decided by common judgment and order.
Appellants have assailed the judgment of conviction dated 14.06.2013 and order of sentence dated 15.06.2013 passed by the Additional Sessions Judge, Court No.3, Mathura in Sessions Trial No.397 of 2009 (State Vs. Ramveer and others) arising out of Case Crime No.481 of 2008, under Sections 363, 366, 376, 109 I.P.C., Police Station Mahaban, District Mathura, by which appellants have been convicted and sentenced under Section 363, 366Ka and 376 (2) (G) I.P.C.
with rigorous imprisonment of ten years and fine of Rs.25,000/- (in default of payment of fine, one year and six months additional simple imprisonment) under Section 376 (2) (G) I.P.C., with rigorous imprisonment of seven years and fine of Rs.5,000/- (in default of payment of fine, six months additional simple imprisonment) under Section 366Ka I.P.C., and with rigorous imprisonment of five years and fine of Rs.5,000/- (in default of payment of fine, six months additional imprisonment) under Section 363 I.P.C.
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 X' and 'victim Y').
Prosecution case, in brief, is that complainant, Om Prakash son of Hukum Singh, resident of Village Kishanpur, Police Station Baldev, District Mathura, submitted a written report (Ex. Ka-1) before the police station concerned, stating therein that his daughters (victim 'X' and victim 'Y') had gone to collect cotton (KAPAS) in the feild on 30.09.2008 at about 10.00 A.M. In the meanwhile, four accused persons, Ramveer son of Dalchand, resident of his own village and his brother-in-laws Tejveer and Kali, sons of Kehri, residents of village Nangla Sanja, Police Station Baldev, District Mathura, including one woman came there by motorcycle. One of the motorcycle was bearing Registration No.-U.P. 80 AE 0416 and other motorcycle was without number plate. All the miscreants entered into the field and enticed away both the victims on their motorcycle. Occurrence has been seen by Shyam Sundar Sindhi and other villagers. Complainant searched his daughters, but in vain. When, he enquired from wife of accused-Ramveer, she replied that his daughters are with them and whatever he wants he can do. He has doubt that the accused-persons will sell the victims.
On the basis of aforesaid written Tahrir (Ex. Ka-1), Case Crime No.481 of 2008, under Sections 363, 366, 109, 376 I.P.C. was registered in the police station concerned on 02.10.2008 at 15.05 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, Ashok Kumar. Victims were recovered on 03.10.2008 and they were medically examined. Place of occurrence was inspected by Investigating Officer ('I.O.') and map of the spot was prepared. After recording statement of witnesses and collecting evidence during the course of investigation, charge-sheets (Ex. Ka-11 and Ex. Ka-12) were submitted by the I.O. against the appellants-accused, under Sections 363, 366, 376 I.P.C.
Charges under Sections 363, 366Ka and 376 I.P.C. were framed against accused-Ramveer, Kali and Tejveer and charges under Section 363, 366Ka and 376 read with section 511 I.P.C. were framed against co-accused-Smt. Kamlesh. Accused persons denied the charges levelled against them and claimed for trial.
As many as 07 prosecution witnesses were examined before the Trial Court.
PW-1, Om Prakash (complainant) has been examined, who has supported the prosecution version and proved written report (Ex. Ka-1).
PW-2, (Victim 'X'), has been examined, who has supported the prosecution version and deposed that she and victim 'Y' were enticed away by accused-persons and appellant- accused, Ramveer, Tejveer and Kali had committed rape with her and accused Smt. Kamlesh was involved in enticing her away. She has further stated that she was medically examined and her statement under Section 164 Cr.P.C. was recorded before the Magistrate.
PW-3, (Victim 'Y'), has been examined, who has deposed the similar version as stated by victim 'X'.
PW-4, Dr. Kalyani Mishra, has been examined, who has deposed that she had medically examined both the victims on 04.10.2008 and proved medical examination reports of both the victims (Ex. Ka-4 and Ex. Ka-6). She has further stated that both the victims were referred for pathological test and x-ray examination and she has further proved supplementary report of both the victims (Ex. Ka-5 and Ex. Ka-7). She has further proved that victim 'X' was found about 18 years of age and victim 'Y' was found about 15 years of age.
PW-5, Sub-Inspector, Ashok Kumar (I.O.), has been examined, who has deposed that investigation of this case was conducted by him. He has proved Chick F.I.R. (Ex. Ka-8) and copy of G.D. (Ex. Ka-9), in the capacity of secondary witness. He has further proved the map of spot (Ex. Ka-10) and charge sheets (Ex. Ka-11 and Ex. Ka-12).
PW-6, Dr. R.K. Gupta, has been examined who has proved reference slip for pathology test (Ex. Ka-13).
PW-7, Constable Mahaveer Singh, has been examined, who has proved Chick F.I.R. (Ex. Ka-8) and carbon copy of G.D. (Ex. Ka - 9).
Statement of accused-persons 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, Krishna Kumar Sharma has been examined on behalf of accused-persons before the Trial Court in their defence.
After giving opportunity of hearing to both the parties, judgment of conviction dated 14.06.2013 and order of sentence dated 15.06.2013 was passed by learned Trial Court, by which appellants-accused and co-accused were held guilty under Sections 363, 366Ka, 376 (2) (G) I.P.C. and sentenced as stated above.
It is this impugned judgment and order of conviction and sentence passed against the appellants which is under challenge to this criminal appeal.
Learned counsel for the appellants has not pressed on the merit of appeal and point of conviction recorded by the Trial Court against the appellants. He has confined his arguments only on the point of sentence imposed against the appellants- accused.
Learned counsel for the appellants-accused submitted that appellants-accused have been convicted under Sections 363, 366Ka and 376(2)(G) I.P.C. and sentenced with imprisonment five years, seven years and ten years respectively alongwith fine. He further submitted that appellants are detained in jail since 04.10.2008 and they have undergone about nine and half years of imprisonment imposed against them. He further submitted that there is no criminal history of appellants-accused and appellant Tejveer is aged about 31 years and appellant-accused Kali is aged about 28 years and they are poor persons. He further submitted that additional imprisonment imposed against the appellants-accused under Sections 363, 366Ka and 376 (2) (G) I.P.C., in default of payment of fine, is harsh and unjustified. He lastly submitted that impugned order of additional imprisonment imposed by learned Trial Court against the appellants-accused should be reduced adequately.
Learned AGA submitted that appellants-accused have been found guilty under Sections 363, 366Ka, 376 (2) (G) I.P.C. and after considering the facts and circumstances of this case, they have been sentenced with imprisonment of five years, seven years and ten years respectively alongwith fine. 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 appellants.
It is borne out from the record that complainant (PW - 1), victims (PW-2) and (PW-3) 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-4 and PW-6 and evidence of I.O. (PW-5) and charges under Sections 363, 366, 376 I.P.C. are proved against the appellants-accused. Considering the fact that the appellants-accused have undergone about nine and half years of sentence imposed against them and entire facts and circumstances of this case, I am of the opinion that additional imprisonment imposed by learned Trial Court against the appellants-accused, in default of payment of fine, is quite disproportionate and ends of justice will be served, if appellants-accused are sentenced to additional imprisonment of three months, three months and twelve months, in default of payment of fine imposed by learned Trial Court under Sections 363, 366Ka and 376(2)(G) I.P.C. respectively. Accordingly, the appeal deserves to be partly allowed.
Appeal is partly allowed. Impugned order of conviction dated 14.06.2013 passed by the Trial Court against the appellants-accused is affirmed. Order of sentence passed by the Trial Court is modified. Appellants-accused are sentenced to additional imprisonment of three months, three months and twelve months, in default of payment of fine imposed by the Trial Court under Sections 363, 366Ka and 376 (2) (G) I.P.C. respectively. Rest of the sentences imposed by the trial court against the appellants-accused, will remain intact. If, amount of fine imposed by the Trial Court is deposited by the appellants- accused, 75% of the same shall be payable as compensation to the victim.
Jail Authorities are directed to consider and provide the benefit of remission to appellants-accused, for which they are 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