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2020 DIGILAW 1455 (ALL)

Kanhaiya Lal v. State of U. P.

2020-12-08

VIPIN CHANDRA DIXIT

body2020
JUDGMENT : 1. The present jail appeal has been preferred by the appellant from jail against the impugned judgment and order dated 31.3.2018 passed by Additional Sessions Judge, Court No.9/POCSO Court, Varanasi in Sessions Trial No.65 of 2014 (State of U.P. Vs. Kanhaiya Lal) arising out of Case Crime No.161 of 2014, under Sections 363, 366-A, 376 and 120-B I.P.C. and Section 5/6 POCSO Act, P.S. Cholapur, District Varanasi, whereby the accused-appellant Kanhaiya Lal has been convicted under Sections 363, 366-A and 376 I.P.C. and Section 5/6 POCSO Act and sentenced with rigorous imprisonment for a period of 3 years and fine of Rs.3,000/-under Section 363 I.P.C. and in case of default in payment of fine with imprisonment for additional period of one month, sentenced with rigorous imprisonment for a period of 5 years and fine of Rs.5,000/-under Section 366-A I.P.C. and in case of default in payment of fine with imprisonment for additional period of two months, sentenced with rigorous imprisonment for a period of 12 years and fine of Rs.20,000/-under Sections 376 I.P.C. and Section 6 of POCSO Act and in case of default in payment of fine with imprisonment for additional period of six months and all the sentences have been directed to run concurrently. 2. The brief facts of the case are that the complainant Munni Devi (P.W.-2) had filed a complaint to Senior Superintendent of Police, Varanasi (Exhibit Ka-2) with the allegations that her daughter aged about 13 years went to the school on 3.5.2014 along with her friends but did not return back and on enquiry became aware of the fact that appellant-accused enticed her daughter along with other co-accused persons. She went to the Police Station and moved complaint on 7.5.2014 but F.I.R. was not registered by the police. On the complaint (Exhibit Ka-2) of complainant Munni Devi the S.S.P., Varanasi directed S.H.O., Cholapur on 20.5.2014 to register the case. F.I.R. was registered (Exhibit Ka-12) and an entry was made in the general diary (Exhibit Ka-13). The Investigating Officer during investigation recorded statement of victim under Section 161 Cr.P.C. and statements of other witnesses. The statement of victim was also recorded under Section 164 Cr.P.C. and Investigating Officer had submitted the charge-sheet (Exhibit Ka-10) on 31.7.2014. 3. The file of present appellant was separated with other co-accused vide order dated 14.8.2014. The Investigating Officer during investigation recorded statement of victim under Section 161 Cr.P.C. and statements of other witnesses. The statement of victim was also recorded under Section 164 Cr.P.C. and Investigating Officer had submitted the charge-sheet (Exhibit Ka-10) on 31.7.2014. 3. The file of present appellant was separated with other co-accused vide order dated 14.8.2014. The charges against appellant were framed on 15.9.2014 under Sections 363, 366-A, 376 I.P.C. and Section 5/6 POCSO Act. The appellant-accused has denied the charges and claimed to be tried. 4. The prosecution has produced victim as P.W.-1, complainant Munni Devi as P.W.-2, Dr. Anupama Singh as P.W.-3, I.O. Arvind Kumar Pandey as P.W.-4, Nargis Bano, Principal as P.W.-5 and Constable Rudal Sharma as P.W.-6. 5. The statement of accused-appellant was recorded under Section 313 Cr.P.C. in which he denied allegations and pleaded that he is innocent and has been falsely implicated in this case. It is further stated that marriage of victim was solemnized with him but under confusion the report was lodged against the appellant. The victim was medically examined by Dr. Anupama Singh (P.W.-3) and as per medical report no internal injury was seen and as per supplementary medical report (Exhibit Ka-5) she was two months into pregnancy. Her age was assessed as 16-17½ years and P.W.-3 had proved the medical report as Exhibit Ka-3 and supplementary medical report as Exhibit Ka-5. The statement of victim was recorded under Section 164 Cr.P.C. in which she stated that she went with the accused-appellant to Punjab on her own will and there they lived as husband and wife. The victim has appeared as P.W.-1 before the trial court and has stated in her statement that my parents are illiterate and they could not disclose her actual date of birth at the time of her admission. Her date of birth 12.7.2001 was written by a Teacher itself. It is further stated by the victim as P.W.-1 that she was in love with accused-appellant and went with him to Punjab on 3.5.2014 on her own will where they lived as husband and wife and sexual relations were developed with her consent. It was also stated that after return from Punjab she was pregnant and gave birth to a child. It is also stated by the victim that she has no complain with accused Kanhaiya Lal and she wants to live with him. It was also stated that after return from Punjab she was pregnant and gave birth to a child. It is also stated by the victim that she has no complain with accused Kanhaiya Lal and she wants to live with him. The same statement was also given by the complainant Munni Devi (P.W.-2) that her daughter was pregnant and they had solemnized marriage in temple and now she has no complain with the accused and when the accused will be released from jail she will send the victim with the accused. 5. The trial court had recorded the findings that as per school certificate the date of birth of victim was 12.7.2001 and as such on the date of incident she was minor therefore the charges against accused under Sections 363, 366-A, 376 I.P.C. and Section 5/6 POCSO Act were established and convicted the accused accordingly. 6. Feeling aggrieved with the judgment and order of trial court the present jail appeal has been preferred by the accused-appellant before this Court. 7. Heard Sri Ashwini Kumar, learned counsel for appellant, Sri Raj Kamal Srivastava, learned A.G.A. for the State and perused the judgment and order as well as record of the present case. 8. At the very outset, learned counsel for appellant, on instructions, stated that he does not propose to challenge the impugned judgment and order on its merit. He, however, submitted that from the evidence and materials which are available on record, it is apparent that victim is consenting party and went with appellant on her own will. As of now there is no complaint either by the victim or by the complainant and the marriage of victim was solemnized with accused-appellant and one child is also born and as such taking sympathetic view the order of conviction may be modified for the period already undergone by the appellant. 9. Learned Additional Government Advocate representing the State has stated that he has no objection if the Court considers the mitigating circumstances. 10. Since the learned counsel for the appellant has given up challenge to the findings of conviction and the victim was minor as per school leaving certificate on the date of incident, the conviction of the appellant for the aforesaid offence stands affirmed. 11. 10. Since the learned counsel for the appellant has given up challenge to the findings of conviction and the victim was minor as per school leaving certificate on the date of incident, the conviction of the appellant for the aforesaid offence stands affirmed. 11. However, on the quantum of sentence, learned counsel for the appellant has argued that the appellant is not a previous convict, he is the sole bread-earner of his family and at present there is no complaint either by the victim or by the complainant (mother of victim) against the appellant-accused. 12. Learned counsel for the appellant further submits that the appellant was awarded rigorous imprisonment maximum for 12 years and he has already undergone more than 6 years as he is in jail since 8.7.2014. 13. While dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, held as under: "Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs-200/-to Rs. 400/-. Period of imprisonment in case of default will remain the same." 14. In the case of Bankat and another vs State of Maharshtra, 2004(50) ACC 953 (SC), accused were convicted under section 326 IPC and sentenced to one year imprisonment with fine. The Apex Court reduced the sentence to the period already undergone on the ground that the parties have settled the dispute outside the court and that 10 years had elapsed from the date of incident. 15. Considering the facts and circumstances of the case and the substantive period already undergone by the appellant in this case and the fact that the appellant had already solemnized marriage with the victim and victim gave birth to a child. The victim is still ready to live with the appellant, I am of the view that the appellant should be given a chance to reform himself and maintain his wife (victim) and child. 16. Consequently, the conviction of the appellant stands affirmed. The sentence is modified and the period already undergone by the appellant in this case, i.e. 6 years 5 months is taken as his substantive sentence. 17. The appeal stands partly allowed. 18. The appellant is in jail. He shall be released forthwith if not wanted in any other case. It is further directed that the appellant shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of Section 437-A Cr.P.C. 19. 17. The appeal stands partly allowed. 18. The appellant is in jail. He shall be released forthwith if not wanted in any other case. It is further directed that the appellant shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of Section 437-A Cr.P.C. 19. Office is directed to send back the record of the trial court immediately. 20. It is directed that in case certified copy of this judgment is not issued due to COVID-19 pandemic, the copy of the judgment downloaded from the official website of the Allahabad High Court shall be acted upon.