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2018 DIGILAW 1904 (ALL)

Shanker Kulkarni v. State of U. P.

2018-08-31

MAHENDRA DAYAL, RITU RAJ AWASTHI

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JUDGMENT : Ritu Raj Awasthi, J. 1. Heard Mr. Jai Pal Singh, learned amicus curiae on behalf of the appellant as well as Mr. Chandra Shekhar Pandey, learned A.G.A. for the State and perused the records. 2. This jail appeal has been filed under Section 383, Cr.P.C. against the judgment and sentence dated 23.2.2007 passed by the learned Additional Sessions Judge/F.T.C, Lucknow in Session Trial No. 1078 of 2006, arising out of Case Crime No. 118 of 2006, under Section 376, I.P.C., P.S. Gosainganj, District Lucknow whereby the appellant has been convicted under Section 376 (2) (f), I.P.C. and has been sentenced to life imprisonment and fine of Rs. 5,000/- and in case of default to undergo six months' additional imprisonment in jail. 3. According to the prosecution case on 21.5.2006 at about 10.45 a.m. the informant Mustafa had lodged a written complaint in the Police Station Gosainganj that he was working in P.B.A. company situated at Deputy Ganj, Lucknow and was living along with his family in a nearby hut. On 20.5.2006 at about 7.30 p.m. his daughter Km. Usma aged about seven and half years was called by the appellant to his room to watch T.V. and he had committed rape after closing the room. When his daughter cried, his wife Smt. Haseena Bibi and other neighbours reached to the room. The appellant thereafter left his daughter and ran away. Since the police station was far away from the place of occurrence, as such he could not go to the police station to lodge the report in the night. On the basis of the said complaint, an F.I.R. was lodged under the aforesaid crime number under Section 376, I.P.C. The Investigating Officer had recorded the statements of the informant (PW-1), his wife Smt. Haseena Bibi (PW-2) and the victim Km. Usma (PW-3) and other witnesses and prepared the site plan. The accused was arrested on the same day at about 3.30 p.m. near the railway crossing and a piece of cloth (Gamcha) was recovered from the possession of the accused which contained semen and blood. The victim was sent to the hospital where she was examined on the same date i.e. 21.5.2006. In order to ascertain the age of victim an x-ray was done and the slide of vaginal smear was prepared to ascertain the presence of semen and gonococci. The victim was sent to the hospital where she was examined on the same date i.e. 21.5.2006. In order to ascertain the age of victim an x-ray was done and the slide of vaginal smear was prepared to ascertain the presence of semen and gonococci. The victim was also sent for rectovaginal fistula repair to the K.G.M.U. The x-ray and pathological report dated 31.5.2006 was prepared, according to which the age of the victim at the time of occurrence was 7 years. As per the pathological report, some dead semen were found in the vagina, however gonococci were absent. As per the medical report the victim was subjected to forceful intercourse. 4. The police had also taken into custody the clothes worn by the victim i.e. her frock, panty which contained spots of semen and blood and prepared fard (Ext. Ka-2). After completion of investigation, the police had submitted the charge sheet against the appellant. The Additional Chief Judicial Magistrate-III taking cognizance had committed the case for sessions trial. Thereafter the session trial was registered and charges were framed against the appellant by the learned Sessions Judge after hearing the parties. The appellant denied the charge and prayed for the trial. 5. It is to be noted that the appellant had not engaged any private counsel during the trial. It is submitted that he is a poor person hailing from some other State, as such he had no one to do necessary pairvi for him. The trial court on his request had appointed an amicus curiae who did pairvi on his behalf and made arguments. 6. In order to prove the case, the prosecution had examined in all 07 witnesses, out of which four were the witnesses of facts. PW-1, Mustafa, informant is the father of the victim, PW-2, Smt. Haseena Bibi is the mother of the victim, PW-3 is Km. Usma, the victim herself and PW-4 is Hanuman Prasad who is a witness of the recovery memo. P.Ws. 5, 6 & 7 are the formal witnesses. 7. The statement under Section 313, Cr.P.C. of the appellant-accused was recorded. The appellant-accused had denied the charge, however he had refused to give any defense evidence. P.Ws. Usma, the victim herself and PW-4 is Hanuman Prasad who is a witness of the recovery memo. P.Ws. 5, 6 & 7 are the formal witnesses. 7. The statement under Section 313, Cr.P.C. of the appellant-accused was recorded. The appellant-accused had denied the charge, however he had refused to give any defense evidence. P.Ws. 1 & 2 had given their statements before the Court which are on the similar line as given before the police under Section 161, Cr.P.C. The PW-3 victim had given the statement before the Court which was recorded in camera proceedings. 8. PW-4 Hanuman Prasad had proved the exhibit of recovery memo and stated that it was in his presence that the appellant-accused had taken out a piece of cloth (Gamcha) from his pocket which contained the semen and blood and had given to the police. 9. Learned counsel for the appellant has argued that the police has failed to examine the persons who were residing in the room along with the appellant. No efforts were made by the investigating agency to find out the whereabouts of those persons at the time of occurrence. The D.N.A. test of the appellant was not done and there is no evidence to connect the appellant with the alleged offence. The recovery of cloth (Gamcha) from the appellant is highly doubtful. The said Gamcha was not recovered from the place of occurrence and was allegedly given by the appellant himself after taking out from the pocket. 10. It is also submitted by learned counsel for the appellant that the description of crime by the victim who was a minor, aged about 07 years at the time of occurrence, creates doubt as a child aged about 07 years cannot describe in such detail the manner of crime and it appears that the appellant has been falsely implicated due to some ulterior motive. 11. Learned counsel for the appellant in the last has submitted that the appellant has been in jail since his arrest i.e. on 21.5.2006 and he has not applied for bail during the trial. He has not also applied for bail during pendency of this appeal. He is a poor person having no means to defend himself. 11. Learned counsel for the appellant in the last has submitted that the appellant has been in jail since his arrest i.e. on 21.5.2006 and he has not applied for bail during the trial. He has not also applied for bail during pendency of this appeal. He is a poor person having no means to defend himself. He has completed more than 12 years in jail and considering several judgments of the Apex Court, the sentence awarded to the appellant may be reduced and he may be released on the basis of the period already spent in the jail. 12. Learned counsel for the appellant has relied on the following judgments in support of his arguments. 1. Shankarlal Gyarasilal Dixit v. State of Maharashtra AIR 1981 Supreme Court 765. 2. Appasaheb Maruti Shedge v. State of Maharashtra and another 2005 CriLJ 1503. 3. Rahim Beg and another v. State of U.P. (1972) 3 Supreme Court Cases: ( AIR 1973 SC 343 ). 4. Shyamraj v. The State 1995 Cri LJ 3363. 13. The aforesaid judgments are on the point that in a case of circumstantial evidence the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. 14. Learned A.G.A. appearing for the State, on the other hand, has argued that the appellant is an accused of a heinous crime committed on a child aged about seven and half years. The victim has described the manner in which the crime has been committed on her by the appellant. The evidence on record clearly indicates the commission of offence by the appellant and the trial court has rightly convicted the appellant under Section 376 (2)(f), I.P.C and sentenced him to undergo life imprisonment. It is also submitted that the appellant does not deserve any leniency from the Court. 15. The statement of prosecution witnesses clearly proves the prosecution case. The testimony of the prosecutrix indicates that the appellant had forcefully committed the offence under Section 376, Cr.P.C. and the human blood and semen has been found on the clothes of the victim as well as on the cloth recovered from the appellant. The forensic report confirms the presence of human blood and semen on the said clothes. As such there is no doubt that the offence under Section 376, I.P.C. has been committed on the victim by the appellant. 16. The forensic report confirms the presence of human blood and semen on the said clothes. As such there is no doubt that the offence under Section 376, I.P.C. has been committed on the victim by the appellant. 16. In the case of State of Rajasthan v. Babu Meena (2013) 4 SCC 206 : ( AIR 2013 SC 2207 ), it has been observed by the Apex Court that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. The relevant paragraph is reproduced below: "We do not have the slightest hesitation in accepting the broad submission of Mr. Jain that the conviction can be based on the sole testimony of the prosecutrix, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, namely (i) wholly reliable, (ii) wholly unreliable and, (iii) neither wholly reliable nor wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case prosecution is based on wholly unreliable testimony of a single witness, the court has no option than to acquit the accused." 17. In the present case, we have come to the conclusion that the testimony of prosecutrix is fully reliable and worthy of credence, as such the judgments cited by learned counsel for the appellant are of no help to him. 18. It is also to be noted that in the statement of P.W.-4, it has come that at the time of occurrence he had gone to the market and was not present at the place of occurrence. It has also come that two other persons who were also residing in the said room where the incident had taken place had left the room as they had taken another room on rent and were not present at the time of occurrence. Moreover, the statement of victim is very natural and does not in any manner creates any doubt about the occurrence of the offence. 19. Moreover, the statement of victim is very natural and does not in any manner creates any doubt about the occurrence of the offence. 19. Considering the submissions made by the parties' counsel and going through the records, we are of the view that the prosecution has been successful in proving the charge against the appellant and the learned Trial Court considering the evidence on record has rightly convicted the appellant under Section 376(2)(f), I.P.C. 20. Now the question remains with regard to sentence awarded by the Trial Court. As per Section 376 (2)(f), I.P.C, whoever commits rape on a woman when she is under twelve years of age (before amendment) shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. The maximum punishment in such cases has been provided as imprisonment for life. The proviso appended to sub-section (2) makes it clear that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. 21. The Apex Court in the case of Bavo alias Manubhai Ambalal Thakore v. State of Gujarat (2012) 2 Supreme Court Cases 684: ( AIR 2012 SC 979 ), where the age of victim was seven years has altered the sentence and the life imprisonment was modified to rigorous imprisonment for ten years. The quantum of fine was also reduced from Rs. 20,000/- to Rs. 1,000/- and in default one month's rigorous imprisonment. The relevant paragraphs 10, 11, 12, 13, 14, 15 and 16 are reproduced below:- "(10) Section 376 speaks about the punishment for rape. Sub-section (2)(f) makes it clear that whoever commits rape on a woman when she is under 12 years of age shall be punished with RI for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. Proviso appended to subsection (2) makes it clear "that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years". Proviso appended to subsection (2) makes it clear "that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years". (11) It is clear from the above statutory provision that for the offence of rape on a girl under 12 years of age, punishment shall not be less than 10 years but which may extend to life and also to fine shows that the legislature intended to adopt strictness in awarding sentence if the victim is below 12 years of age. No doubt, the proviso to Section 376 (2) lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years. It is settled law that courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. In the absence of any special and adequate reasons, recourse to proviso mentioned above cannot be applied in a casual manner. (12) The learned counsel for the appellant relied on a decision of this Court in Narayanamma v. State of Karnataka (1994) 5 SCC 728 and contended that the life imprisonment is not warranted and sentence may be reduced to the period already undergone. The said decision relates to the rape on a minor girl aged 14 years. While the Trial Judge convicted and sentenced the accused to three years RI, the High Court reversed the same and acquitted the accused. It was challenged before this Court. After considering the entire materials, this Court set aside the order of the High Court and affirmed the conclusion arrived at by the trial Court. Though this Court expressed displeasure in awarding only three years RI for the crime of rape, taking note of length of time, not inclined to enhance it and confirmed the sentence awarded by the Trial Court. (13) The counsel for the appellant relied on another decision of this Court in Rajendra Datta Zarekar v. State of Goa, (2007) 14 SCC 560 : ( AIR 2008 SC 572 ). The said case also relates to the offence under Section 376. The victim was aged about 6 years and the accused was aged about 20 years. (13) The counsel for the appellant relied on another decision of this Court in Rajendra Datta Zarekar v. State of Goa, (2007) 14 SCC 560 : ( AIR 2008 SC 572 ). The said case also relates to the offence under Section 376. The victim was aged about 6 years and the accused was aged about 20 years. Ultimately, this Court confirmed the conviction and sentence of 10 years as awarded by the High Court. However, the fine amount of Rs. 10,000/- awarded under Section 376 (2) (f) being found to be excessive reduced to Rs. 1,000/-. (14) Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376 (2) (f), IPC, we feel that the ends of justice would be met by imposing RI for 10 years. Learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years. (15) Coming to the quantum of fine, in the case on hand, the learned Trial Judge has imposed Rs. 20,000/-, in default, to undergo RI for three years, learned counsel for the appellant submitted that the accused hails from a poor family and was working as an agricultural labourer and is not in a position to pay such a huge amount as fine which is not disputed by the State. Taking note of all these aspects, we reduce the fine of Rs. 20,000/- to Rs. 1,000/-, in default, to further undergo RI for one month, (16) In view of the above discussion, the conviction imposed on the appellant herein is confirmed. However, the sentence of life imprisonment is modified to RI for 10 years with a fine of Rs. 1,000/-, in default, to farther undergo RI for one month". 22. In the Case of Bhavanbhai Bhayabhai Panella v. State of Gujarat (2015) 11 Supreme Court Cases 566 : (2015 AIR SCW 3733), the Apex Court has reduced the life sentence to rigorous imprisonment for ten years. 1,000/-, in default, to farther undergo RI for one month". 22. In the Case of Bhavanbhai Bhayabhai Panella v. State of Gujarat (2015) 11 Supreme Court Cases 566 : (2015 AIR SCW 3733), the Apex Court has reduced the life sentence to rigorous imprisonment for ten years. The sentence of fine and compensation as also the default sentence and direction for recovery of the amount payable as compensation were, however maintained. In the said case the age of the victim was 11 years. The relevant paragraphs 3, 6 & 7 are reproduced below:- "3. At the trial, the prosecution examined the prosecutrix, her mother, the medical officer and the Investigating Officer and on the basis of the evidence led, the Trial Court held the case of the prosecution proved. Accordingly, the Trial Court convicted the appellant under Section 376 (2)(f) IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, in default to undergo RI for three months. The Trial Court also awarded compensation of Rs. 1,00,000/- (One lakh) to the victim under Section 357 (3). It was directed that on failure of the accused to pay compensation, his property will be liable to be sold for recovery of the amount. The conviction and sentence have been affirmed by the High Court. 6. The only question which survives for consideration is the sentence to be awarded. We have been informed that the appellant has been in custody for about ten years. Our attention has been drawn to the custody certificate dated 27th July, 2012 according to which the appellant had completed sentence of seven years, five months and ten days. Thereafter, a period of two and a half years has gone by. Thus, the appellant has already undergone the sentence of about ten years. 7. Having regard to the totality of circumstances, we are of the view that ends of justice will be met if the sentence awarded to the appellant is reduced to RI for ten years. However, sentence of fine and compensation as also default sentence and direction for recovery of the amount payable as compensation are maintained. Ordered accordingly. The appeal is disposed of." 23. However, sentence of fine and compensation as also default sentence and direction for recovery of the amount payable as compensation are maintained. Ordered accordingly. The appeal is disposed of." 23. In the present case, we do not find any special and adequate reason to apply the proviso to Section 376(2), I.P.C. and impose the sentence of imprisonment of either description for a term of less than ten years. However, considering the entire facts and circumstances of the case and keeping in mind the law laid down by the Apex Court as noted above and considering the fact that the appellant has been in jail for more than 12 years, we feel it appropriate that the sentence awarded to the appellant shall be reduced to the period already spent in jail. 24. Thus, the appeal deserves to be partly allowed and is hereby partly allowed. 25. The conviction imposed on the appellant under Section 376 (2)(f), IPC. is confirmed. The sentence of life imprisonment awarded to the appellant is modified to the period already undergone by the appellant in jail. The sentence of fine imposed by the Trial Court is confirmed with default stipulation of six months additional imprisonment in jail. The appellant shall be released from jail, if not warranted in any other case, provided he deposits the fine imposed within a period of one month from the date of release, failing which he shall be arrested and sent to jail to serve six months' simple imprisonment. 26. Office is directed to transmit this judgment forthwith to the Court concerned and to send back the lower court record to ensure compliance.