By way of appeal, the appellant- Rajiv @ Paji had challenged the Judgment and order dated 6.5.2013 passed by court of Additional Sessions Judge, whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for life with fine of Rs.20,000/- and in case of default of payment of fine, to undergo further imprisonment for six months. The facts of the case as per prosecution were that on 14.10.2012, a written report was submitted by Naseem stating therein that in the morning his seven years old daughter was playing with neighbour Ramesh’s children. Rajiv @ Paji, son of Ramesh, took her daughter to his house and tried to commit rape with her.
The Court heard learned counsel for the appellant, learned AGA for the State and also perused the record. Perusal of record showed that occurrence of this case took place on 14.10.2012. During the course of investigation, medical examination of victim was conducted and the medical report was prepared. Dr. Renu Sharma, conducted the medical examination. She had stated in her evidence that there was laceration posterior of size 3 x 2 x 2 mm. Blood clot was present there which started bleeding on touching. Hymen was intact. Vaginal smear was sent for examination and according to supplementary medical report, no spermatozoa was found.
Learned counsel for the appellant tried to establish that as per FIR, this case was of an attempt to commit rape while on the basis of legal consultation it was led as the appellant was successful in committing the rape and the prosecution was conducted for the offence under Section 376 IPC.
Learned AGA submitted that the age of victim at the time of commission of offence was just seven years and as per the medical examination, she was found aged between 9-12 years. She had supported prosecution version in her statement and her testimony is supported with medical evidence. There was recovery of blood stained cloth of victim. It is also submitted that the appellant remained silent in his statement under Section 313 Cr.P.C. regarding the circumstances under which he was implicated in this case.
Learned Trial Court relied on the testimony of witnesses, mainly the testimony of victim coupled with medical evidence, convicted and sentenced the accused appellant for life imprisonment and fine under section 376 IPC.
Learned counsel for the appellant submitted that he was not pressing this appeal on its merit, but he prayed only for reduction of the sentence as the sentence of life imprisonment awarded to the appellant by the trial court was very harsh. Learned counsel also submitted that appellant is languishing in jail for past more than 9 years.
In the case of Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:
“Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an ‘in terrorem’ outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries.”
‘Proper Sentence’ was explained in Deo Narain Mandal Vs. State of UP [(2004) 7 SCC 257] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the ‘principle of proportionality’. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considered that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.
Since the learned counsel for the appellant has not pressed the appeal on its merit, however, after perusal of entire evidence on record and judgment of the trial court, Court considered that the appeal was devoid of merit and was liable to be dismissed. Hence, the conviction of the appellant was upheld. In view of the Court it appeared from perusal of impugned judgment that sentence awarded by learned trial court for life term was very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon’ble Apex Court, had held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.
Learned AGA also admitted the facts that appellant is languishing in jail for the last more than 9 years. Keeping in view of theory of ‘doctrine of proportionality’, the sentence awarded to the appellant seems harsh. Since, the appellant had already served 9 years of sentence and ends of justice would be met if sentence is reduced from life imprisonment to the period of ten years.
Hence, the sentence awarded to the appellant by the learned trial-court was modified and was reduced to ten years rigorous imprisonment. Imposition of fine and additional imprisonment in case of default of fine remained intact.
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