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2017 DIGILAW 1440 (ALL)

KRISHAN KUMAR @ KUKKOO v. STATE OF U. P.

2017-05-30

OM PRAKASH VII

body2017
JUDGMENT : Om Prakash-VII, J. The present criminal appeal has been preferred by the accused/appellant against the judgement and order dated 15.12.1988 passed by the VII Additional District & Sessions Judge, Meerut in Session Trial No. 251 of 1986 convicting and sentencing the appellant for the offence punishable under Section 368 IPC for two years rigorous imprisonment. 2. The facts of the case, as unfolded by the informant Prem Singh son of Faqir Chand in the First Information Report (in short 'F.I.R.'), are that the informant was a rickshaw-puller and his wife worked in a school. On 10.12.1985, the informant had gone with his rikshaw and his wife had gone to school. His two daughters, namely, Kamla aged 14 years and Kusum aged 10 years were at the house. At 5.30 P.M. when the complainant came to his house, his younger daughter told him that Ram Bharose and Jai Prakash had taken Kamla at about 2.30 p.m. on the pretext that her father had directed them to take footwear (chappal) for her. The complainant also suspected that Kamal Singh was also having his hand in this occurrence. When the complainant went to enquire about the girl from Kamal Singh, he replied that he did not know anything about her daughter and when the complainant enquired from his father Bhagirath, both his sons beaten their father Bhagirath. These persons had kidnapped his minor daughter by enticing her away from his house. 3. On the basis of the written report (Ext. ka-3), chik First Information Report was registered at Police Station concerned on 10.12.1985 at 10.30 p.m. mentioning all the details as had been described in Ext. Ka-.3. G.D. entry was also made at the same time. 4. Investigation started in the matter. During investigation, Kamla was recovered from the house of the appellant. After completing the investigation, charge-sheet against all the accused was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by sessions court, was committed to the Court of sessions. 5. Accused/appellant appeared and charge under Section 368 IPC was framed. Accused denied the charges framed against him and claimed his trial. 6. Trial proceeded and on behalf of prosecution, four witnesses namely, PW-1 Dr. Vandana Srivastava, who examined the prosecutrix Kamla, PW-2 Kamla, the prosecutrix, PW-3 Prem Singh (complainant) and PW-4 Sub-Inspector R.K. Sharma, the investigating officer, were examined. 7. Accused/appellant appeared and charge under Section 368 IPC was framed. Accused denied the charges framed against him and claimed his trial. 6. Trial proceeded and on behalf of prosecution, four witnesses namely, PW-1 Dr. Vandana Srivastava, who examined the prosecutrix Kamla, PW-2 Kamla, the prosecutrix, PW-3 Prem Singh (complainant) and PW-4 Sub-Inspector R.K. Sharma, the investigating officer, were examined. 7. After closure of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded. Accused person in their statement under Section 313 Cr.P.C. denied the entire allegations levelled by the prosecution and stated that he has been falsely implicated due to enmity. Defence has not produced any evidence in support of its case. 8. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellant beyond reasonable doubt and convicted and sentenced the accused appellant, hence this appeal. 9. I have heard S/Shri Santosh Kumar Shukla and Amod Tripathi, learned counsel for the appellant and Shri R.D. Yadav, learned AGA for the State at length, and perused the entire record carefully. 10. Castigating the impugned judgment and order, learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. Victim was aged about 18 years. Offence under Section 368 IPC is not attracted in the present matter. No specific role has been assigned to the appellant. There are major contradictions on the material points in the prosecution evidence. If the entire prosecution case is taken to be true, then also victim girl was consenting party. She stayed alongwith the co-accused for a long-time but no complaint was made nor she made effort to get herself free from the clutches of the accused. It was further submitted that the appellant was not aware about the offence committed by the co-accused, hence, mens-rea to constitute the offence u/s 368 IPC is lacking. The trial court misinterpreting the prosecution evidence illegally convicted and sentenced the appellant. Until and unless the appellant was aware for the offence committed by the co-accused, he could not be prosecuted/punished. The findings of the trial court are not based on correct appreciation of evidence and law. It was further submitted that only two years rigorous imprisonment has been imposed upon the appellant by the trial court. Until and unless the appellant was aware for the offence committed by the co-accused, he could not be prosecuted/punished. The findings of the trial court are not based on correct appreciation of evidence and law. It was further submitted that only two years rigorous imprisonment has been imposed upon the appellant by the trial court. No minimum sentence is provided for the offence u/s 368 IPC. Hence a lenient view in the matter be taken. In support of his submissions, learned counsel for the appellant has placed reliance on the decision of Apex Court in Puran Singh and another v. State of Bihar, 2001 (43) ACC 1102. 11. Per contra, the learned AGA appearing for the State has submitted that appellant was involved in the present matter. He was fully aware about the offence committed by the co-accused and gave shelter/asylum to them. No information was given by the appellant to the parents of the victim girl nor he made any effort to send the girl to her house. Police arrested the accused and victim girl from the house of the appellant. The findings of the trial court are based on the evidence available on record. There is no illegality, infirmity or perversity in the said findings warranting interference by this Court. Since the trial court has taken a lenient view on the point of imposing sentence, the sentence imposed upon the accused appellant cannot be reduced. 12. I have considered the rival submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence. 13. In this matter, as is evident from the record, the victim girl was aged 18 years at the time of the incident in question. Charge framed under Section 363 IPC was not found proved. PW-2 victim girl and PW-3 father of the victim have supported the prosecution case. It has also come in the statement of the witnesses examined on behalf of the prosecution that the victim girl was recovered from the house of the accused appellant and at that time the appellant was not present in his house. PW-2 victim girl has also stated that she again and again asked/requested the appellant to send the victim to her house but he did not do the same. PW-2 victim girl has also stated that she again and again asked/requested the appellant to send the victim to her house but he did not do the same. It has also come in the evidence that the distance between the house of the victim girl and the appellant was about 70 yard. Co-accused took the victim girl on the pretext of providing foot-wear (chappal) but she was kept in the house of the appellant instead of providing her chappal and meeting with her parents. Appellant and victim girl both were known to each other. Thus, in the above background of the case, it is to be decided as to whether having knowledge of commission of the present offence, the appellant provided shelter to the victim girl in his house and mens-rea is available to constitute the offence u/s 368 IPC. 14. Before dealing with the submissions made by the learned counsel for the parties, it will be useful to refer to the law laid down by the Apex Court in Puran Singh Case (supra). Paragraph 3 of the said decision is as under: "3. We shall first take up the case of appellants Puran Singh and his wife Lakhbir Kaur (appellants in crl. appeal no. 622/2000). The entire evidence against them revolves around the statement made by the informant PW-8. According to her, she was taken to Haidargarh in a car by Narendra Singh who was accompanied by his mother and sister as also daughter of his sister. There she was confined in a room in the house of Puran Singh where the windows had been covered by plastic sheets. She stayed in that room for almost 5 months. The sine qua non for attracting provisions of section 368 IPC is that a person who either wrongfully conceals or confines the victim, must have the knowledge that, the victim had been kidnapped or had been abducted and on proof of that, the accused can be punished in the same manner as if he had kidnapped or abducted the victim with the same intention or knowledge, or for the same purpose as that with which he concealed or detained the victim. In vain have we searched through the record for any allegation, let alone proof that either of the appellants knew that PW-8 had been kidnapped or abducted by Narendra Singh. In vain have we searched through the record for any allegation, let alone proof that either of the appellants knew that PW-8 had been kidnapped or abducted by Narendra Singh. It is not the case of PW-8, the informant that she had told so at any point of time to either Puran Singh or his wife. The prosecution has also while recording the statement of these two appellants under section 313 Cr. P.C. not put to them that either of them had knowledge that PW - 8 had been kidnapped or abducted, and with that knowledge they had wrongfully concealed or confined PW - 8 in their room. There is no material at all on the record which can bring home the guilt of the appellants Puran Singh and Lakhbir Kaur for on offence under section 368 IPC. Even it be assumed for the sake of arguments, that PW-8 was taken to the house of Puran Singh and confined there in a room by Narendra Singh, the possibility that Puran Singh and his wife thought that PW-8 was in fact the wife of Narendra Singh cannot be ruled out. According to the prosecutrix herself, she had gone to the house of Puran Singh with sindoor in the parting of her hair. He, therefore, could have no reason even to suspect that PW-8 had either been kidnapped or abducted. In the absence of any evidence to connect these two appellants with the requisite knowledge their conviction and sentence for an offence under section 368 IPC cannot be sustained. Both the appellants are, therefore, entitled to be given benefit of doubt, which we do hereby give them. Consequently, their appeal succeeds. Their conviction and sentence are set aside. Their bail bonds shall stand discharged. Fine, if any, paid by them shall be refunded to them." 15. Now the Court proceeds to deal with the submissions made by the learned counsel for the parties. 16. In the instant matter, if the statement of the prosecution witnesses are analyzed minutely, it emerges that the appellant and victim girl were known to each other. Co-accused took the victim to the house of the appellant and kept her there for about two days. It is also evident from the statement of the witnesses that the victim's house and the house of the appellant are situated in same locality. Co-accused took the victim to the house of the appellant and kept her there for about two days. It is also evident from the statement of the witnesses that the victim's house and the house of the appellant are situated in same locality. The appellant never tried to get free the victim girl from the clutches of the co-accused. Whenever the victim girl asked to leave her, the appellant refused. Co-accused and victim girl were not married. Offence of rape was committed by the co-accused in the knowledge of the appellant. Merely on the basis that the victim did not leave the house of the appellant by using force, it cannot be said that the appellant had no knowledge about the offence committed by the co-accused. Mens-rea required to constitute the offence under Section 368 IPC is available in the present matter. Prosecution was able to prove that the appellant wrongfully concealed and confined the victim having knowledge that she was kidnapped/abducted. Therefore, the findings recorded by the trial Court in the impugned judgment and order holding guilty to the accused appellant for committing offence under Section 368 IPC are correct and do not require interference by this Court. 17. So far as the submission regarding sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 18. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, 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. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, 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. 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 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'. [Vide : (Sumer Singh v. Surajbhan Singh and others, (2014) 7 SCC 323 , Sham Sunder v. Puran, (1990) 4 SCC 731 , M.P. v. Saleem, (2005) 5 SCC 554 , Ravji v. State of Rajasthan, (1996) 2 SCC 175 ]. 19. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence. 20. The Apex Court in the case of G.V. Siddaramesh v. of State of Karnataka; 2010 (87) AIC 43 (SC), while allowing the appeal of the appellant, altered the sentence. Paragraph 31 of the said judgment is reproduced below: "31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I.P.C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We accordingly, while confirming the conviction of the appellant under Section 304-B, I.P.C., reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed." 21. We accordingly, while confirming the conviction of the appellant under Section 304-B, I.P.C., reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed." 21. No minimum sentence has been provided for the offence under Section 368 IPC. The trial court vide impugned judgment and order has imposed two years sentence upon the appellant. 22. Applying the principle laid down by the Apex Court in the aforesaid judgement and having regard to the totality of the facts and circumstances of the case particularly the fact that the accused appellant was in jail for some time and the impugned judgment and order was passed in the year 1988, I am of the considered view that the ends of justice would meet if the sentence of the appellant awarded to him for the offence under Section 368 IPC is reduced/modified to the imprisonment already undergone. 23. In the light of foregoing discussions, the appeal is liable to be allowed in part. Conviction of the accused appellant for the offence punishable under Section 368 IPC is liable to be upheld. The impugned judgment and order dated 15.12.1988 is liable to be modified to the extent as discussed above. 24. Accordingly, criminal appeal is allowed in part and the conviction of the appellant under Section 368 IPC is upheld. The sentence of imprisonment awarded to the appellant for his conviction under Section 368 IPC is altered and reduced to the imprisonment already undergone. 25. Let a copy of this judgement along with lower court record be sent to the Sessions Judge, Meerut for compliance. A compliance report be sent to this Court.