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2017 DIGILAW 1114 (ALL)

SAMSUL QAMAR v. STATE OF UTTAR PRADESH

2017-04-26

RAJUL BHARGAVA, TARUN AGARWALA

body2017
JUDGMENT : TARUN AGARWALA, RAJUL BHARGAVA, JJ. 1. Heard Sri Rajeev Sawhney, learned counsel for the appellants and Sri Ali Murtaza, learned AGA for the State-respondents. 2. These connected appeals, arising out of the same case crime number are being disposed of by a common order. 3. The instant criminal appeals have been preferred against the impugned judgment and order dated 02.09.2009 passed by Additional Sessions Judge, Court No. 2, Bijnor in S.T. No. 301 of 2009 convicting the appellant Samsul Qamar u/s 376, 506 IPC and sentencing him to undergo imprisonment for life u/s 376 IPC and to pay fine of Rs. one lac. In default of payment of fine, to further undergo one year simple imprisonment; 3 years R.I. under section 506 IPC along with fine of Rs. 5,000/- and in case of default of payment of fine, the appellant would have to further undergo one month simple imprisonment. The appellant Shahnaz has been convicted u/s 376 read with 120B IPC and sentencing her to undergo imprisonment for life u/s 376 IPC and to pay fine of Rs. one lac. In default of payment of fine to further undergo one year simple imprisonment. Three years R.I. under section 506 IPC along with fine of Rs. 5,000/- and in case of default of payment of fine the appellant would have to undergo one month simple imprisonment. 4. The prosecution case in brief is that the prosecutrix lodged a first information report against the appellants stating therein that she was married to one Firoz. Her husband Firoz and father-in-law were working in a Bakery at Pune and she was living with her mother-in-law Smt. Shahnaz (appellant) in village Kalyanpur in the same Haveli. It is stated that her mother-in-law had illicit relations with the appellant Samsul Qamar and he frequently used to visit her house. On 11.01.2009 Samsul came at the house of the prosecutrix and stayed in the night. At about 11.00 p.m. Samsul and her mother-in-law Shahnaz entered her room and thereafter her mother-in-law left the room and closed the door from the outside. Then Samsul committed rape upon her against her consent and wishes and she could not resist the same as she was pregnant. 5. At about 11.00 p.m. Samsul and her mother-in-law Shahnaz entered her room and thereafter her mother-in-law left the room and closed the door from the outside. Then Samsul committed rape upon her against her consent and wishes and she could not resist the same as she was pregnant. 5. The said first information report was registered as Case Crime No. 329 of 2009, under sections 376, 506, 120B IPC at Police station Nageena, District Bijnor on 9.3.2009 at 11.00 a.m. After the investigation charge-sheet was submitted against the appellants and after committal they were put to trial in the aforesaid session trial. After conclusion of the trial the said appellants were convicted for the charge as noted above. The judgment is under challenge in the present appeals. 6. Learned counsel for the appellants advanced many arguments doubting the credibility of the testimony of PW-1 the prosecutrix. However, after some arguments, he fairly conceded that he is not challenging the conviction but questioning the quantum of sentence only. According to him, taking note of various factors including the old age of the appellant Smt. Shahnaz, who is now 58 years of age and the appellant Samsul, who is now 72 years of age and both of them have already undergone about 9 years of incarceration, the sentence of life imprisonment is too excessive. He pointed out that these points were presented before the trial court at the time of hearing on the point of quantum of sentence but were not considered by the trial court while awarding punishment and without assigning any special reasons for awarding maximum possible punishment for the offence u/s 376 IPC, which, in the facts and circumstances of the case, should be mitigated in this case. 7. Learned AGA appearing for the State-respondents fairly submitted that the Court is free to impose appropriate sentence in terms of section 376 IPC. 8. We have given our anxious consideration to the rival submissions and perused the material available on record. In view of the limited submission on the quantum of punishment there is no need to go into the finding regarding conviction u/s 376, 120B, 506 IPC. Only question is to be considered whether the sentence of imprisonment for life is reasonable or excessive in the facts and circumstances of the present case. Section 376 IPC speaks about the punishment of rape. Sub-section (1) provides for punishment of rape. Only question is to be considered whether the sentence of imprisonment for life is reasonable or excessive in the facts and circumstances of the present case. Section 376 IPC speaks about the punishment of rape. Sub-section (1) provides for punishment of rape. It envisages that the imprisonment to be awarded shall not be less than 7 years but may for life or for a term which may extend for 10 years. Under sub-section (2) the minimum sentence to be awarded is not less than 10 years. 9. In "Hazara Singh v. Raj Kumar, (2013) 9 SCC 516 " Hon'ble Apex Court held: "17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. 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. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. 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 court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment." 10. We may record that there is no justification for the trial court while convicting accused-appellant for offence under Section 376 IPC to sentence them to life imprisonment without assigning adequate reasons only because Section 376 IPC provides life imprisonment as the maximum sentence, does not mean that court should mechanically proceed to impose the maximum sentence. There should be some justification for awarding the maximum sentence which should be well thought out after consideration of all aspects of the facts and circumstances of the case. 11. There should be some justification for awarding the maximum sentence which should be well thought out after consideration of all aspects of the facts and circumstances of the case. 11. While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attending circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attending circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced. 12. In view of the facts and discussions, the order of conviction u/s 376, 506 IPC so far as Samsul is concerned, and 376, 120B, 506 IPC concerning Smt. Shahnaz is hereby confirmed but the sentence of imprisonment for life is modified to rigorous imprisonment of 10 years u/s 376 IPC. However the sentence u/s 506 IPC and fine awarded upon them will remain the same, out of which Rs. one lac shall be paid to the victum of this case viz Smt. Imrana as provided u/s 457 Cr.P.C. 13. With this modification of sentence the appeal stands disposed of. 14. Let a copy of the order be sent to Sessions Judge, Bijnor for ensuring compliance.