Bhagelu Harijan vs State of U.P.

Ranjana Pandya, J

Challenge in this appeal to the judgment and order dated 01.04.2002 passed by Additional Sessions Judge, Fast Track Court No. 4, in Sessions Trial No. 349 of 2001 (State v. Bhagelu Harijan), arising out of Case Crime No. 27 of 2001, under Sections 363, 366 and 376 I.P.C., P.S. Mirzamurad, District Varanasi, whereby the appellant had been convicted for the offence punishable under Section 376 I.P.C. and sentenced to undergo R.I. for life coupled with fine of Rs. 5000/-, under Section 366 I.P.C. for ten years R.I. coupled with fine of Rs. 5000/- and under Section 363 I.P.C. for seven years R.I. coupled with fine of Rs. 5000/- with default stipulation. All the sentences were to run concurrently out of the amount of fine which was Rs. 15,000/-, Rs. 10,000/- was directed to be paid to the father of the victim namely Ravi Shankar Maurya.

Shorn of details of prosecution story was that the informant was residing as tenant in the house of Kishore Yadav and was doing the work of labourer. The accused Bhagelu Harijan was also doing the job of labourer with him. Bhagelu Harijan used to come to the house of informant. On 22.02.2001, the informant and his wife Parwati had gone to do labour. His daughter namely Suman aged about 10 years was present in the house. His two other children were also present in the house. At 05:45 P.M., when the informant came back to his house along with his wife, his daughter Suman was not present there. Mohan Yadav told the informant that the accused Bhagelu Harijan had taken Suman on his cycle towards his house. When the informant along with his wife and Mohan Yadav were going towards the house of Bhagelu Harijan, he heard the shrieks of his daughter near the garden of Ram Lakhan at 06:30 P.M. He went in the garden and saw that the accused Bhagelu Harijan was committing rape on his daughter. He tried to apprehend him but the accused fled away, hence the report was lodged.

On the basis of this written report, a case at Case Crime No. 27 of 2001, under Sections 363, 366 and 376 I.P.C. was registered against the accused appellant. The investigation was taken up by S.I. Anil Chandra Tiwari PW-7. Dr. Mridula Malik, PW-2 had conducted the medical examination of the victim Suman on 23.03.2001 at 12:05 in the afternoon and did not find any external injury. On internal examination the hymen was found partially torn. No bleeding was present. The vagina did not admit tip of the little finger. Dr. Mridula Malik has proved the medical report as Exhibit Ka-1. Dr. D.D. Mishra, PW-3 has medically examined the accused. He proved the medical report as Exhibit Ka-2. He also stated that the accused has confessed before him that he had penetrated his penis into the vagina of the girl due to which the accused sustained the following injuries on his person:--

"(i) Dry blood stains were found on his pant, shirt, underwear and vest.

(ii) Abrasions, three in number, were each of 5 cm x 0.5 cm. All the three were oblique and parallel to each other. Red in colour and epidermis was folded on the lower edge. All these were on the left side of the neck.

(iii) The foreskin of penis was folded towards the back side and blood and water mixed secretion was present on the hair of front part of the penis and also on the inner layer of its foreskin.

(iv) Skin deep ulcer 2.5 cm x 1.5 cm on the tip of the penis and on its exterior whose colour was red.

(v) Skin deep ulcer 1.5 cm x 1 cm of red colour on the front and exterior part on the left side of the penis.

(vi) An abrasion and reddening was present on the urinating part of the penis."

PW-6 is Constable Lallan Prasad who prepared the chick report and G.D. and proved it as Exhibits Ka-4 and Ka-5. Anil Chandra Tiwari, PW-7 has conducted the investigation. He took into possession, the cycle of the accused and proved the recovery memo as Exhibit Ka-6. He arrested the accused, prepared the site plan and proved it as Exhibit Ka-7. He got the statement of the victim recorded under Section 164 Cr.P.C., submitted charge sheet against the accused and proved it as Exhibit Ka-8. PW-1 is the informant Ravi Shankar Maurya, father of the victim who proved the first information report. PW-4 is Dr. A.K. Goswami who proved the supplementary report as Exhibit Ka-3 and X-ray plate as material Exhibit-1. PW-5 is victim Suman. PW-8 is Santosh Kumar Srivastava, A.C.J.M., Northern Railway, Varanasi who proved the statement of the prosecutrix under Section 164 Cr.P.C. as Exhibit Ka-10.

The statement of the accused was recorded under Section 313 Cr.P.C. in which he denied the occurrence and has said that he used to do the work on contract basis with the informant. His money was due on the informant, when he demanded his money the informant has falsely implicated him. However, he has not produced any defence evidence.

Learned trial court after hearing the counsel for the parties has convicted and sentenced the accused appellant as indicated above.

We have heard Sri Ravindra Nath Rai, learned counsel for the appellant, Sri Chandrajeet Yadav, learned A.G.A. and perused the original record of the trial court.

During the course of hearing, learned counsel for the appellant Sri Ravindra Nath Rai has submitted that he does not want to press the appeal with regard to the conviction of the appellant for the offences punishable under Sections 363, 366 and 376 I.P.C. on merits but wants to submit before this Court only on the question of sentence. However, he has vehemently argued that the custodial sentence of life imprisonment is quite harsh and excessive, because the accused who was then in his 30''s, is now proceeding towards his old age and presently is about 45 years of age. His further submission is that during the trial also, the accused had been in jail and even now he is in prison. He remained in jail for more than 14 years. Thus, the accused has already suffered imprisonment for more than 14 years and 10 months. It has lastly been submitted that the accused appellant be sentenced to imprisonment for the period already undergone by him. Learned A.G.A. has however, opposed the prayer made by the counsel for the appellant.

Not pressing the criminal appeal after the conviction of the accused by the court below is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.

In the case of Sevaka Perumal etc. v. State of Tamil Nadu , AIR 1991 SC 1463, the Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:

"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, 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 etc."

In the case of Dhananjoy Chatterjee v. State of W. B. , [1994] 2 SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system''s creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society''s cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, , [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. 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 with 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". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.

Counsel for the appellant has vehemently argued that awarding of the maximum sentence of life imprisonment to the present applicant who is heading towards his old age is too harsh a sentence because the present accused does not fall in the category of "rare cases" and the ends of justice could be met if the sentence of appellant is reduced from life imprisonment to the period already undergone i.e. 14 years and 10 months.

Appropriate sentence is the cry of the society. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, 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.

This position was reiterated by a three-Judge Bench of the Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. v. State of Gujarat, , (2009) 7 SCC 254, wherein it was observed as follows:--

"99.....The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. 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. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.

The court must not only keep in view the rights of the victim of the crime but the society at large also while considering the imposition of appropriate punishment. 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 both the criminal and the victim belong."

In Jameel v. State of Uttar Pradesh , (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus:--

"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 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.

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 sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

In Guru Basavaraj @ Benne Settapa v. State of Karnataka, , (2012) 8 SCC 734, while discussing the concept of appropriate sentence, this Court expressed that:

"It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."

In Gopal Singh v. State of Uttarakhand , JT 2013 (3) SC 444 held as under:--

"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence....."

It is not disputed that the accused appellant has already undergone 14 years and 10 months of imprisonment which is a long period of incarceration.

Thus, considering the law laid down by the Hon''ble Apex Court in the above mentioned cases, in the facts and circumstances of the case, in our opinion, the ends of justice would be met if the custodial sentence of life imprisonment of the accused under Section 376 I.P.C. is reduced to the period already undergone i.e. 14 years and 10 months, without reducing the amount of fine imposed by the trial court against the accused appellant under all the Sections.

In view of the afore stated reason, the appeal is partly allowed. The conviction of the appellant under Section 363, 366 and 376 I.P.C. is confirmed and the R.I. of life imprisonment under Section 376 I.P.C. is reduced to the period already undergone i.e. 14 years and 10 months but the sentence of fine of Rs. 5000/- under Section 376 I.P.C. is maintained. The remaining sentences with default stipulation is also maintained.

The appellant is in jail and would serve out the remainder of his sentence if not already completed.

Let certified copy of this judgment be sent to the concerned court immediately for sending modified conviction warrant of the accused appellant to the concerned prison.