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2017 DIGILAW 1177 (ALL)

SHIV CHANDRA SINGH v. STATE OF U. P.

2017-05-03

RAJUL BHARGAVA, TARUN AGARWALA

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JUDGMENT : (Per: Justice Rajul Bhargava) 1. Heard Sri Kamlesh Kumar Tripathi, learned counsel for the appellants and Sri Syyed Ali Murtaza, learned Additional Government Advocate appearing for the State-respondent. 2. The present criminal appeal is directed against judgment and order dated 6.6.2006 passed by Additional District and Sessions Judge, Court No. 6, Kanpur Dehat in Sessions Trial No. 278 of 2004 (State vs. Shiv Chandra Singh and Another), whereby he convicted and sentenced appellants under Section 376 I.P.C. to undergo imprisonment for life with fine of Rs. 10,000/- each with default stipulation. In the default of payment of fine, they were further directed to undergo one year's imprisonment. 3. The prosecution version in brief as narrated in the First Information Report lodged by PW 1 Ravendra Singh on 9.5.2004 at 4.45 P.M. at Police Station Shivli, District Kanpur Dehat is regarding an alleged incident which took place on 9.5.2004 at about 2.30 P.M. It is stated that on 9.5.2004 at about 2.30 P.M. his mother, Smt. Kalawati and sister, Km. Shalini were present at their house and he along with other family members had gone in connection with some work. His sister Km. Shalini went to respond the call of nature outside the house when she did not return, his mother went in her search and she saw that accused Jagvir Singh had caught hold the hands of the victim, Km. Shalini and co-accused Shiv Chandra Singh and Leeter Singh were committing rape on her turn by turn. The accused also tried to strangulate her. On the alarm being raised by her, several persons reached at the spot and thereafter accused fled away. The informant immediately took his sister to the police station wherefrom she was sent for medical examination. The prosecutrix was medically examined on 9.5.2004 at about 10.15 P.M. by Dr Alka Shukla and Dr Sanjeev Agrawal, PW 3 and 4. 4. We find from medical report that the victim had sustained several injuries on her private parts. The hymen was torn. Fresh tear was present at 6 O'clock position, oozing of blood was present, one finger admitted with difficulty. Besides it, several other injuries on various parts of body of prosecutrix were also noted by the doctor. 5. The investigation was carried out and the Investigating Officer, Ved Prakash, PW 7 ultimately submitted charge sheet against the appellants and co-accused Jagvir Singh. Besides it, several other injuries on various parts of body of prosecutrix were also noted by the doctor. 5. The investigation was carried out and the Investigating Officer, Ved Prakash, PW 7 ultimately submitted charge sheet against the appellants and co-accused Jagvir Singh. We find from the judgment of the trial court that during investigation itself co-accused-Jagvir Singh absconded and despite processes issued against him under Sections 82 and 83 Cr.P.C. he could not be apprehended and put to trial. Therefore, only the present appellants who were arrested on 11.5.2004 were put to trial. 6. In order to establish its case, the prosecution examined seven witnesses out of them PW 1, Ravendra Singh was the first informant-brother of the prosecutrix. PW 2, Km. Shalini is the victim in the present case. Rest of the witnesses are formal in nature. PW 3, 4 and 6 are the doctors who have medically examined the victim and PW 7 is the Investigating Officer of the case. 7. After examining the prosecution witnesses, the evidence of the appellants was recorded under Section 313 Cr.P.C. in which they denied the allegations levelled against them by the prosecution. They have stated that they have been falsely implicated in the case on account of village party fraction. The trial judge after scanning the evidence on record observing with the demeanour of the victim PW 2 and other evidence on record recorded the conviction of the appellants as stated above. 8. At the very outset the appellants' counsel on the instructions of client fairly conceded and informed the Court that the appellants have opted out to give up challenge to the conviction recorded by the trial court under Section 376 I.P.C. and prayed that a lenient view may be taken and sentence of life imprisonment may be modified. Based mainly on two grounds, learned counsel for the appellants seeks for reduction of maximum sentence of life imprisonment imposed by the trial court firstly, that the appellants were young lads aged about 20 and 18 years respectively. This fact also finds support from the age noted by the trial court while recording statement of the appellants under Section 313 Cr.P.C. It is further submitted that the incident took place about 13 years' back and the appellants are languishing in jail since 11.5.2004, meaning thereby that they are in jail for past 13 years. This fact also finds support from the age noted by the trial court while recording statement of the appellants under Section 313 Cr.P.C. It is further submitted that the incident took place about 13 years' back and the appellants are languishing in jail since 11.5.2004, meaning thereby that they are in jail for past 13 years. It is also submitted that the appellants have aged parents and there is no one in the family to look after them. It is their first guilt and they hail from a very poor family. In view of said mitigating circumstances, the award of life imprisonment is too excessive punishment. Learned counsel has further pointed out that attending facts and circumstances of the case, tender age of the accused and other mitigating circumstances were presented before the trial court at the time of hearing on the point of quantum of sentence but the same were not considered in the right perspective by the trial court and without assigning any special reason maximum possible punishment for the offence punishable under Section 376 I.P.C. has been awarded which may be reduced in the present case. 9. Learned A.G.A. appearing for the State-respondent fairly submitted that the Court is free to impose appropriate sentence in terms of Section 376 I.P.C. 10. In the light of limited relief prayed, there is no need to go into the factual aspects relating to the conviction and sentence. We have carefully gone through the testimony of prosecutrix including her medical reports which in our considered opinion fully corroborates and proves the case of the prosecution against the appellants without any shadow of reasonable doubt that they have committed gang rape and findings recorded by the trial court are perfectly justified. 11. In other words, the only question to be considered in this appeal is "whether the appellants-accused have made out a case for imposition of lesser sentence than life imprisonment." 12. The crucial stage in every criminal proceeding is the stage of sentencing. It is the most complex and difficult stage in the judicial process. The Indian legal system confers ample discretion on the judges to levy the appropriate sentence. The crucial stage in every criminal proceeding is the stage of sentencing. It is the most complex and difficult stage in the judicial process. The Indian legal system confers ample discretion on the judges to levy the appropriate sentence. However, this discretion is not unfettered in nature rather various factors like the nature, gravity, the manner and the circumstances of the commission of the offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute as the yardsticks for the judges to decide on the sentence to be imposed. Indisputably, the sentencing Courts shall consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the crime committed. 13. Before we evaluate the case at hand in the light of above established principle that all punishments must be directly proportionate to the crime committed, it is imperative to comprehend the legislative intent behind Section 376 IPC which is as under: "376. Punishment for rape:- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. 14. A perusal of the above provision shows that the legislative mandate is to impose a sentence, for the offence of gang rape, for a term, which shall not be less than 10 years, but it may extend to life and shall also be liable to fine. The proviso to Section 376(2) IPC, of course, lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where gang rape is committed is not less than 10 years though in exceptional cases, the Court by giving "special and adequate reasons" can also award the sentence of less than 10 years. 15. Thus, the normal sentence in a case where gang rape is committed is not less than 10 years though in exceptional cases, the Court by giving "special and adequate reasons" can also award the sentence of less than 10 years. 15. From a bare perusal of Section 376 (2)(g) I.P.C. i.e. gang rape it is found that Legislature had already undertaken the aggravating circumstances of trauma of the victim of rape by legislating ten years minimum sentence which too can be diluted as envisaged in the proviso to Section 376 (2) I.P.C. 16. We may record that there is no justification for the trial court while convicting the accused-appellants for the offence under Section 376 I.P.C. to sentence them to life imprisonment without assigning adequate reasons. Only because Section 376 I.P.C. provides for life imprisonment as the maximum sentence, it does not mean that the Court should mechanically proceed to impose the maximum sentence. There should be some justification to award the maximum sentence which should be well thought out after consideration of all aspects and the circumstances of the victim and the accused. 17. Now the matter is limited to the sentence for the offence under Section 376 I.P.C. and we have to consider about appropriate sentence for the appellants in this case. For it, aggravating circumstance relating to the crime while mitigating circumstance relating to the criminal has to be examined. From the evidence on record, it is clear that the victim who was young girl of 16 years, was brutally gang raped by the appellants-accused and his associate, on account of which she suffered several injuries. Of course, the trauma which she suffered at the time of the incident, the same is not easily forgettable or erasable from memory through out her life. So far as the mitigating circumstances are concerned, taking note of various injuries including young appellants being aged about 20 and 18 years at the time of the incident which cannot be treated to be that of a very matured person, it is their first guilt and they are languishing in jail for about 13 years which, in our opinion, itself would be a deterrent for the appellants to indulge in any such act in future. There is nothing on record to indicate that there had been any criminal antecedents and they have criminal propensity. 18. There is nothing on record to indicate that there had been any criminal antecedents and they have criminal propensity. 18. While we see no reason to differ with the findings recoded by the trial court regarding the charge offence, we do see some substance in the argument advanced on behalf of the appellants that keeping in view the prosecution evidence, the abovementioned aggravating and mitigating attending circumstances, age of the accused and the fact that they have been in jail for a considerable period, the Court should take a lenient view as far as the quantum of sentence is concerned. We may record that imprisonment of sentence longer than the minimum taking into account the trauma suffered by the victim, the ends of justice would be met by sentencing the appellants to 14 years' rigorous imprisonment and by increasing the fine imposed by the trial court from Rs. 10,000/- each to Rs. 60,000/- each. In this behalf learned counsel for the appellants has submitted that enhancement of fine shall not be treated as an enhancement of sentence of the appellants. 19. In view of above fact and circumstances of the case and discussion, the order of conviction under Section 376 I.P.C. against the appellants is hereby affirmed but sentence of life imprisonment is modified to the imprisonment for 14 years and the fine of Rs. 10,000/- each is enhanced to Rs. 60,000/- each. In default of payment of fine, the appellants shall have to undergo two years' further rigorous imprisonment. 20. Under the facts and circumstances of the case, we deem it fit and proper to award compensation to the victim to the tune of Rs. 50,000/- from each of the appellants (total amount of Rs. 1,00,000/-) out of amount of fine so realized from the appellants. The amount of fine as imposed upon the appellants shall be deposited before the court concerned within three months from the date of their release from jail. The trial court is directed to ensure that the amount of compensation of Rs. 1,00,000/- is paid to the victim. 21. With the above modification of sentence, the appeal of the appellants stands disposed of. 22. Let a copy of this order be sent to the Sessions Judge, Kanpur Dehat for ensuring compliance.