Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1239 (ALL)

HARI LAL VISHWAKARMA v. STATE OF U. P.

2016-04-06

RANJANA PANDYA

body2016
JUDGMENT : Hon'ble Mrs. Ranjana Pandya,J. Challenge in this appeal is to the judgment and order dated 08.11.2011 passed in ST No. 570 of 2008 (State Vs. Hari Lal Vishwakarma) arising out of Crime No. 564 of 2008 under Section 376 IPC, PS Kotwali, District Azamgarh whereby accused appellant was found guilty sentenced to undergo ten years' rigorous imprisonment and Rs.10,000/- fine under Section 376 IPC with default stipulation. 2. The prosecution story in brief is that one Badami Devi got lodged a report at the concerned Police Station that she left her daughter at her house and went to the house of her brother. In the mid of 11/12 May, 2008 Hari Lal raped her daughter in her house. On the next day, when she returned home, she came to know about the incident. She along with her brother and daughter went to the police station and lodged report. 3. The prosecution examined as many as six witnesses. PW-1 is Badami Devi, informant of the case. This witness proved the report as Ext. Ka-1. PW-2 is the victim. PW-3 is Dr. Anita Agrawal who medically examined the victim. As per the medical examination report the vagina was admitting one finger. Hymen was torn, old tags was present. The vagina was bleeding. There was no tenderness. She proved the medical examination report as Ext. Ka-2 and supplementary report as Ext. Ka-3 as well as the ossification test report as Ext. Ka-4. PW-4 is Dr. K.N. Pandey who proved the age of victim. PW-5 is Suresh Kumar Mishra, Sub Inspector who conducted the investigation. He copied the first information report, recorded statements of the witnesses, inspected the spot on the pointing out of the victim, prepared the site-plan which was proved by this witness as Ext. Ka-5. The investigation ended into a charge sheet which was proved as Ext. Ka-6. PW-6 is Constable Diwakar Prasad who scribed the chik report, which was proved as Ext. Ka-7. This witness further proved the copy of G.D. as Ext. Ka-8. 4. After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. who denied the incident. However, no evidence in defence was adduced. 5. The learned lower Court after hearing the counsel for parties has convicted and sentenced the accused appellant as indicated in para - 1 of the judgement. 6. Feeling aggrieved, the accused appellants have preferred this appeal. However, no evidence in defence was adduced. 5. The learned lower Court after hearing the counsel for parties has convicted and sentenced the accused appellant as indicated in para - 1 of the judgement. 6. Feeling aggrieved, the accused appellants have preferred this appeal. 7. I have heard Sri Kailash Prakash Pathak, learned counsel for appellant, learned AGA appearing for State and perused the record. 8. learned AGA on behalf of the State supported the impugned judgment of learned lower Court and submitted that the appeal has no force and is liable to be dismissed. However, Sri Kailash Pathak, learned counsel for appellant, stated at the Bar that he does not want to argue the appeal on merits. He only wants to advance his submission on the quantum of sentence imposed upon the accused. 9. 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. 10. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463 , the 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." 11. In the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. 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". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance. 12. Argument in the aforesaid case was that awarding of the maximum sentence of life imprisonment to the accused who is heading towards his old age is too harsh a sentence because the accused does not fall in the category of "rare cases" and the ends of justice could be met if the sentence of accused is reduced from life imprisonment to the period already undergone. 13. Appropriate sentence is the cry of the society. 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. 14. This position was reiterated by a three-Judge Bench of the Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. 13. Appropriate sentence is the cry of the society. 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. 14. This position was reiterated by a three-Judge Bench of the Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat, (2009) 7 SCC 254 , wherein it was observed as follows:- "99.....The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. 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. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large also while considering the imposition of appropriate punishment. 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 both the criminal and the victim belong." 15. In Jameel vs. State of Uttar Pradesh (2010) 12 SCC 532 , this Court 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. 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. 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. In Guru Basavaraj @ Benne Settapa vs. State of Karnataka, (2012) 8 SCC 734 , while discussing the concept of appropriate sentence, this Court expressed that: "It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored." 17. In Gopal Singh vs. State of Uttarakhand JT 2013 (3) SC 444 held as under:- "18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence....." 18. It is not disputed that the accused is continuously in jail from 08.11.2011 for more than four years. The occurrence is said to have taken place on 11/12 May, 2008. The age of accused is about 70 years at present. Keeping the accused in jail now at the age of 70 years would not serve any purpose. 19. It is not disputed that the accused is continuously in jail from 08.11.2011 for more than four years. The occurrence is said to have taken place on 11/12 May, 2008. The age of accused is about 70 years at present. Keeping the accused in jail now at the age of 70 years would not serve any purpose. 19. Thus, considering the law laid down by the Hon'ble Apex Court in the above mentioned case and the facts and circumstances of the case, in my opinion, the end of justice would be met if the custodial of 10 years' rigorous imprisonment of the accused under Section 376 IPC is reduced to six years' rigorous imprisonment without reducing the amount of fine imposed by the trial Court upon the accused appellant. 20. In view of the aforesaid reasons, the appeal is partly allowed. The conviction of appellant under Section 376 IPC is confirmed but the rigorous imprisonment of 10 years under Section 376 IPC is reduced to six years' rigorous imprisonment. But the sentence of fine of Rs.10,000/- under Section 376 IPC is confirmed. 21. The appellant is in jail and would serve out the remainder of his sentence if not already completed. The appellant would get the benefit of remission of his sentence as per Rules. 22. Let certified copy of this judgment be sent forthwith to the concerned Court for sending the modified warrant of accused appellant to the concerned prison.