Sahab Lal and Others vs The State of U.P.

Surendra Vikram Singh Rathore, J.—1. Shri Anoop Kumar Upadhyay, learned counsel for the appellants, and Shri Mohd. Yusuf Ansari, learned AGA for the State were heard.

Both the above-mentioned criminal appeals arise out of a common judgment and order dated 24.07.2006 passed by Additional Sessions Judge, Fast Track Court No. 1, Unnao, in Sessions Trial No. 110 of 2002 arising out of Case Crime No. 154 of 2000, Police Station Safipur, District Unnao, whereby present appellants namely Sahab Lal and Ram Munish were convicted for the offence under Section 376 IPC and were sentenced to undergo imprisonment for life and also with fine of Rs. 10,000/- each with default stipulation of three months'' additional imprisonment. Accused Sahab Lal was further convicted for the offence under Section 342 IPC and was sentenced to undergo rigorous imprisonment for a period of three years''. All the sentences were directed to run concurrently.

In brief, the case of the prosecution was that the complainant Neeraj lodged a first information report at the police station Safipur, District Unnao on 13.07.2000 at 00.45 AM alleging therein that on 12.07.2000 at about 6.00 PM one Ram Sakhi granddaughter of appellant Sahab Lal had taken the victim to the house of appellant Sahab Lal. In the house of Sahab Lal, Ram Munish was also present. Both these persons closed the doors of the house and Ram Munish committed rape with her. Appellant Sahab Lal also remained present there. When the victim did not return for some time then her mother went to call her and she found that doors were closed from inside and the victim was crying. The mother of the victim came back and told it to her family members. In the meantime, several persons of the village assembled there. Victim and both the appellants were found in the house. Ram Munish was apprehended by the public. However, Sahab Lal made good his escape. Appellant Ram Munish was handed over to the police.

On the basis of this information, the case was registered, investigation proceeded, the place of occurrence was inspected and the victim was referred for her medical examination which took place on 13.07.2000 at 08.45 PM at Women Hospital, Unnao. According to the medical examination report, no mark of injury was present on any part of the body. Breasts were developed, axillary and pubic hairs were present. On internal examination, no mark of injury was found on the body. Vagina admitted two fingers. Vaginal smear slides were prepared and sent for pathological test and the victim was referred for X-ray examination for determination of her age. On the basis of the aforesaid tests, the victim was reported to be habitual of sexual intercourse and her radiological age was reported to be above 18 years.

After completing the investigation, charge sheet was filed against the appellants.

The case of the defence was that they have been falsely implicated because of the enmity with the Pradhan and the witnesses are giving false evidence.

In order to prove its case, the prosecution has examined PW-1 Neeraj the complainant, PW-2 the victim, PW-3 Constable Kamlesh Kumar, PW-4 Dr. Satya Prakash, PW-5 Dr. Anju Dubey, PW-6 SI Hafijurrahman, PW-7 Head Constable Bhagauti Prasad Maurya and PW-8 Principal Smt. Shiv Kumari.

As CW-1 Ram Sakhi was examined, who is granddaughter of appellant Sahab Lal. She has stated that on the relevant date she had not gone to call the victim on the pretext that Chachi is calling her. She has expressed her ignorance about appellant Ram Munish. As CW-2 Smt. Krishnawati was examined, who is the mother of the victim. She has stated that the age of the victim was about 14 years. A suggestion was given to this witness that the victim was caught on the shop of Ram Munish along with Ram Munish and subsequently this false case was concocted.

No evidence in defence was adduced on behalf of the appellants.

After appreciating the evidence on record, learned trial court has convicted the appellants, as above, hence, the aforesaid criminal appeals.

Learned counsel for the appellants has submitted that he does not want to challenge the conviction of the appellants and has restricted his argument only on the point of sentence. It is submitted that it is not a case of extreme brutality which calls for imprisonment for life and the sentence imposed by the learned trial court is very excessive.

Learned AGA has submitted that there was voluminous evidence against the appellants to connect them with the offence and the learned trial court has rightly convicted the appellants. The judgment of the trial court is well reasoned and needs no interference.

Though learned counsel for the appellants has not challenged the conviction but in spite of that, being the Court of first appeal, we have gone through the entire evidence of all the witnesses and also the impugned judgment. After careful perusal of the same, we are of the considered opinion that the conviction recorded by the learned trial court was in accordance with law and by no stretch of imagination it can be said to be a wrong conviction. The victim in her evidence has supported the case of the prosecution. Appellant Ram Munish was apprehended by the public on the spot. In such nature of cases, evidence of the victim stands at a better footing than the evidence of an injured witness. So, keeping in view the evidence of the victim, we are of the considered opinion that the conviction of the appellants was in accordance with law.

Now the point of appropriate sentence comes for our consideration. Radiological age of the victim was reported by the doctor to be above 18 years. Under Section 376(2)(g) IPC the punishment for gang rape is provided and under law such offence is punishable with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to life and also with fine. A proviso is attached to the above section and the Court has been empowered to inflict lesser punishment than the minimum sentence for adequate and special reasons to be mentioned in the judgment. Thus, in cases of gang rape the sentence as it was prescribed under law at the relevant point of time gives a very huge discretion to the Court which may be 10 years minimum sentence or it may be less than 10 years and it may extend up to imprisonment for life also. So, a vast discretion was given to the Court to inflict appropriate sentence. Thus, appropriate sentence would depend upon the facts and circumstances of each case. In the cases of extreme brutality where such an offence is committed with extreme cruelty, extreme penalty of imprisonment of life is to be imposed but appropriate sentence has to be decided keeping in view the facts and circumstances of each case. In the facts of the instant case, radiological age of the victim was reported to be above 18 years and not even a single injury on any external part of her body or on her private parts was reported in her medical examination report. So by no stretch of imagination it can be said that the offence was committed with extreme cruelty. So, in our considered opinion, it was a fit case where a minimum sentence of 10 years provided under law would be the adequate sentence.

Thus, both the appeals deserve to be partly allowed and are hereby partly allowed. Conviction of both the appellants under Section 376 is hereby confirmed. However, the sentence of imprisonment for life is hereby reduced to a period of ten years'' rigorous imprisonment and also with fine of Rs. 10,000/- each with default stipulation of one year''s additional imprisonment. Conviction and sentence awarded by the learned trial court to appellant Sahab Lal under Section 342 IPC is also hereby confirmed. Appellants are in custody. They shall serve out their sentence as modified by this Court. Sentences of Sahab Lal shall run concurrently.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.