Jaggo and Another vs State of U.P.

Naheed Ara Moonis, J.—The instant appeal has been filed by the Appellants challenging the judgment and order dated 18.2.2006 passed by the Additional Sessions Judge Court No. 3 Aligarh in Sessions Trial No. 394 of 2003 u/s 376 read with Section 342 IPC wherein the Appellants Jaggo and Shyam were convicted & sentenced ten years rigorous imprisonment with a fine of Rs. 10,000/-each for the offence u/s 376 IPC and in default of payment they had to under to go one year further imprisonment and u/s 342 IPC, accused Appellants were further directed to serve out sentence of six months rigorous imprisonment each. All the sentences awarded by the learned Additional Sessions Judge were directed to run concurrently.

The genesis of the prosecution story giving rise to the present case is that a first information report was lodged on 26.12.2002 at 8.00 p.m. by Prem Pal who was the Jeth of the victim Kamlesh wife of Pappu. It is narrated in the first information report that on 23.12.2002 in between 6 to 7 p.m. in the evening , the victim Kamlesh along with mother of the complainant and the wife of his elder brother had gone to attend nature''s call in the field of Deen Dayal . The Appellants Shyam ,Jaggo and an unknown person appeared and forcibly dragged Kamlesh ,the wife of his younger brother. The malfactors were duly recognised by the mother of the complainant in the light of the torch flashed by her. The victim raised alarming voice for help but the Appellants and the unknown malfactor disappeared taking the victim. On hearing the shriek and cry of the victim, co-villagers gathered and made their best efforts to search out the victim but the victim could not be traced . On 24.12.2002, the mother of the complainant had informed on telephone with respect to the said incident. The complainant came back to his house on 24.12.2002 in the evening. On 24.12.2002, the victim was found in an unconscious condition near the house of Indrapal . On resuming the consciousness, the victim narrated that she was raped by Jaggo, Shyam and an unknown miscreant several times.

On the report of the complainant, a Case Crime No. 365 of 2002 under Sections 376/342 IPC was lodged. The investigation was handed over to Jashvir Singh S.I. P.W. 6. The victim was admitted in Malkhan Singh hospital where she was medically examined . The investigating officer had recorded the statement of the witnesses and had prepared the site plan . The investigating officer after collecting convincing and credible evidence submitted charge sheet against the Appellants . The charges were framed against the Appellants Jaggo and Shayam under Sections 376/342 IPC . The Appellants abjured the charges and claimed trial. To prove its case, the prosecution had examined Prem Pal (P.W.1) the complainant, Smt. Kamlesh (PW.2) who was the victim, Smt. Brijesh (P.W.3) ,Jethani of the victim, Dr. V.P. Singh, P.W.4, P.W.5 Constable Ram Ratan , P.W.6 S.I. Jagvir Singh, P.W.7 Dr. Poonam Sharma . The accused Appellants were also examined. Their statement u/s 313 Code of Criminal Procedure was recorded wherein they had denied the prosecution version and stated that they were maliciously being prosecuted in the presence offence on account of village rivalry and partibandi. In support of their stand, Smt. Dropa (D.W.1) who was mother in law of the victim was examined .

The trial court after thread bare analysis of the evidence collected during investigation and also taking into account the entire materials brought on record arrived at the conclusion that the Appellants had committed rape on the victim against her volition. The Appellants were therefore, convicted and sentenced under Sections 376/342 IPC.

Sri Abhishek Mayank, learned Counsel appearing on behalf of the Appellants only submitted that the Appellants are in jail since the date of their conviction i.e. 18.2.2006. The Appellants have served a considerable period of sentence therefore, they may be released computing the period of imprisonment already undergone. The trial court was neither justified in awarding the sentence of ten years as the entire prosecution version is not reliable nor the fact witnesses are wholly reliable. Therefore, there are sufficient reason to reduce the sentences of the Appellants.

Per contra Sri R.K. Singh learned AGA submitted that in the instant case, the statement of the prosecutrix is sufficient to convict the Appellants who had committed rape upon her and requires no further corroboration. The other circumstances that the first information report lodged after inordinate delay will not topple down the entire prosecution version. There was no source of light but the mother in law of the victim (D.W.1) who had accompanied while going to attend nature''s call flashed the torch and in the light of the torch the miscreants were fully recognised cannot be overshadowed in any manner. The medical evidence has amply portrayed that the victim was subjected to coitus several times stands fully corroborated by P.W. 4 Dr. V.P. Singh and P.W.7 Dr. Poonam Sharma . There is no reason to implicate the innocent persons on false charges by staking the honour of a house lady leaving the actual culprit. The scar of the prosecutrix cannot be healed by long incarceration . The Appellants had committed very serious offence by dragging a lady forcibly and committing the rape against her volition which has brought indelible stigma throughout her life. The ravishment of the prosecutrix stands proved by her own statement . The Appellants having outraged the modesty of a respectable lady who was helpless at that time do not deserve any indulgence . The trial court had considered the entire material on the basis of which the Appellants were rightly convicted for ten years rigorous imprisonment. After giving due consideration to the facts and the circumstances of the case for deciding the just and appropriate sentence to be awarded for the offence and imposing meagre sentence by taking too lenient view merely on account of poverty, illiteracy or any other ground in such offences will result in counter productive against the interest of society. The Apex Court has dealt with stringently in a similar case State of M.P. v. Basodi reported in 2009 (3) S.C.C. 501 wherein the judgment of the High Court was set aside upholding the conviction of the accused for an offence u/s 376 IPC . In the aforesaid case, High Court had reduced the sentence on the ground of already undergone holding that the accused was illiterate labourer and belonged to scheduled tribe . The Apex Court had also cited a catena of decisions with regard to appropriate sentences awarded for such an offences. Justice demands that the court should impose appropriate punishment befitting to the crime so that it may entail public abhorrence towards the commission of such offences. The court has not only to keep in view the right of the criminals but also to safeguard the right of the victim of the crime and the society at large . In Sub-section (1) and (2) of Section 376 IPC, minimum punishment prescribed are ten years . In Sub-section (1) (2) of Section 376 IPC, the court has discretion to impose the sentence of imprisonment less than for specified minimum for adequate and special reason. If the court does not mention any such reason in the judgment , there is no scope of awarding a sentence lesser than prescribed period. What is an adequate or special circumstances would depend upon several factors including the nature as well as gravity of the offence. No straight jacket formula can be evolved. What is applicable to the trial court to record valid reasons for reducing the sentence , the same is equally applicable to this Court also. While awarding ten years imprisonment to the Appellant ,the court below has not committed any illegality or vulnerability therefore, the submission of learned Counsel for the Appellant that the Appellant has already undergone more than half of the sentence does not carry any justification. A physical scar will heal up but the mental scar will always remain unhealed when the chastity of a women has been ravished. The Appellant has been given minimum sentence of ten years which is just and proper sentence having regard to the gravity of the offence and the manner in which the victim was subjected to rob her most valuable and priceless dignity which will leave an indelible scar on her chastity.

In these circumstances this Court does not find any justifiable ground to reduce the sentence of the Appellant on the dint of already undergone. Having considered the rival submissions advanced by learned Counsel for the parties since no other grounds raised on merits ,this Court does not find any justifiable grounds to reduce the sentence of the Appellants who had undergone incarceration of about 6''1/2 years only, therefore, the prayer for reducing the sentence is refused. The Appellants will serve out the remaining period of sentence in terms of the order dated 18.2.2006 passed by the Additional Sessions Judge Court No. 3 Aligarh in Sessions Trial No. 394 of 2003 u/s 376/342 IPC.

In the result this appeal fails and is accordingly dismissed.