Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 290

IN THE HIGH COURT OF ALLAHABAD
BACHCHOO LAL, SUBHASH CHANDRA SHARMA, JJ.
Munna Alias Teerathraj - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No.4080 of 2007
Decided on : 20-05-2021

Advocates:
Advocate Appeared:
For the Appellant : Vinay Saran, Balwant Singh

Point of law: Rape case - Conviction - Sentence of life imprisonment set aside - No justification for the trial court while convicting accused-appellant for offence under Section 376 IPC to sentence him for life imprisonment. Only because Section 376 IPC provides life imprisonment as the maximum sentence, does not mean that the court should mechanically proceed to impose the maximum sentence, more particularly when there is no proof that any injury was caused during the incident.

Headnote:
Indian Penal Code, 1860 - Section 376, 506 - Code of Criminal Procedure, 1973 - Sections 313, 207 - Offence of Rape - Order of Conviction - Appellant went on pretext of sprinkling insecticide, took her in the field of sugarcane and there he committed rape with victim. - She became unconscious and younger brother of appellant, brought her to his home where his mother gave some treatment to her. - At that time parents of victim were not at home. - Father of victim returned and then they went to police station and lodged an F.I.R. against accused-appellant as Case Crime under Sections 376 & 506 IPC - Criminal appeal emanates from judgment and order passed by Additional Sessions Judge/F.T.C.-2, under Section 376 of Indian Penal Code, by which appellant has been convicted and sentenced under Section 376(1) IPC with life imprisonment and fine of Rs.50,000/-. out of which 80 percent amount was to be given to victim and amount was to be realized as arrears of land revenue - No additional sentence for imprisonment was provided in case of default in making payment of fine -
Finding of the Court:
While Court see no reason to differ with findings recorded by trial court regarding charged offence, Court do see some substance in argument raised on behalf of appellants that keeping in view prosecution evidence, above mentioned aggravating and mitigating attendant circumstances, age of accused and fact that he has already been in jail for a considerable period, Court should take a balanced view as far as quantum of sentence is concerned. - Offences having been proved against accused and keeping in view attending circumstances, Court is of considered view that ends of justice would be met, if punishment awarded to appellant is reduced. - So, it appears appropriate that, in present case sentence should not exceed more than 14 years' imprisonment and lesser fine- Order of conviction u/s 376 IPC imposed on appellant is hereby confirmed. - But sentence of imprisonment for life is modified to imprisonment of 14 years and fine of Rs. 50,000/- to Rs. 30,000/- out of which 80 percent amount is to be given to victim. -
Result: Appeal Disposed off.

JUDGMENT :

(Delivered by Hon'ble Subhash Chandra Sharma,J.)

1. This criminal appeal emanates from the judgment and order dated 23.05.2007 passed by learned Additional Sessions Judge/F.T.C.-2, Kushi Nagar at Padrauna in Session Trial No. 111 of 1999 (State Vs. Munna Alias Teerathraj) arising out of Crime No. 142 of 1996, under Section 376 of Indian Penal Code, Police Station Kotwali Hata, District Kushinagar by which appellant has been convicted and sentenced under Section 376(1) IPC with life imprisonment and fine of Rs.50,000/-. out of which 80 percent amount was to be given to the victim and the amount was to be realized as arrears of land revenue. No additional sentence for imprisonment was provided in case of default in making payment of fine.

2. The prosecution case in brief is that on 19.06.1996, victim aged about 8 years was alone at her house at about 2 p.m. Appellant Munna Alias Teerathraj went there and on the pretext of sprinkling insecticide, took her in the field of sugarcane and there he committed rape with the victim. Consequently, she became unconscious and younger brother of appellant, Raj Kumar brought her to his home where his mother gave some treatment to her. At that time parents of victim were not at home. Father of victim returned on 20.06.1996 and then they went to police station and lodged an F.I.R. on 21.06.1996 at 11.15 o'clock at Police Station Kotwali Hata against accused-appellant as Case Crime No. 142 of 1996 under Sections 376 & 506 IPC.

3. Victim was taken to Women Hospital, Padrauna where she was medically examined. The detail of medical examination is as under:-

General Examination: Height 129 c.m. Weight 20 Kg. Number of teeth upper jaw 13 and lower jaw 11. The incident as narrated by uncle (maternal) Bhikhu of the patient has occurred at about 2 p.m. on 19.6.1996.

Injuries: No marks of external injury present over any part of body. A linear tear, margin of tear is whitish in colour. Vascularisation, seen, about 2 c.m. present at posterior wall at the midline of fornix. Vagina admits little finger. Hymen not present. Uterus very small in size. Bleeding on finger examination. Vaginal smear taken and handed-over to constable Prem Shankar Singh C.P. for vaginal smear test to District Hospital Deoria for pathological examination for presence of spermatozoa and gonococci. Girl was also sent to District Hospital, Deoria for x-ray examination of right knee, right ankle, right elbow and right shoulder joint for verification of age. Duration about 3-4 days old.

Opinion: Vaginal injury is caused by some hard and blunt object by forceful penetration. Opinion about rape is to be given after the pathological report.

Supplementary report of the victim: All the epiphysis around ankle, knee, elbow and wrist joint are not fused. Carpal bones 7 in number present.

Pathological report: No spermatozoa and gonococci are seen in vaginal smear as reported by Dr. L.P. Gupta, Pathologist, District Hospital, Deoria. Opinion: Evidence of rape is found.

4. One piece of trouser worn by victim was taken into possession by the police which was already washed but some blood stains were seen to be present on its miyani. Memo was prepared.

5. The investigation of the case was handed-over to Sub-Inspector R.N. Tandon, who after recording the statements of informant and other witnesses including victim, visited the place of occurrence and prepared site plan. Prima-facie commission of offence under Section 376 IPC was found to be established against the accused appellant Munna Alias Teerathraj and charge-sheet was submitted.

6. The court concerned, took cognizance of the offence and having provided essential papers to the appellant in compliance of Section 207 Cr.P.C, committed the case to the court of Sessions for trial.

7. The learned Sessions Judge framed charge under Section 376 IPC against the appellant on the basis of material on record which was read-over and explained to the appellant. He did not plead guilty but claimed for trial.