SANTOSH BIND ALIAS KALLU VS STATE OF U.P.

There were two appeals against the same judgement by different accused persons. Hence, both the appeals were being decided together. Appellants Santosh Bind Alias Kallu and Vikash Keshri had challenged the judgement and order dated 20.07.2013 passed by learned Additional Sessions Judge, under Sections 363/149, 366/149, 376(G)/149, 506 and 368 IPC, whereby accused/appellant in both appeals was convicted and sentenced under Section 363 r/w section 149 IPC for four years R.I. and fine of Rs.4,000/-, under Section 363 r/w Section 149 IPC for seven years and fine of Rs.7,000/-, under Section 506 IPC for one year R.I. and under Section 376 (2)(G) r/w Section 149 IPC for life imprisonment and fine of Rs.1 lac.

Facts of the prosecution case are that on 17/18.05.2012 when prosecutrix was travelling from Jabalpur (MP) to Mirzapur by train in night. At about 12:15 am, the train stopped at platform No.6 at Allahabad Junction, the prosecutrix alighted at the platform for taking water. One Vikash Keshri and his friend Santosh Kumar Bind @ Kallu were already present on that platform. They took the prosecutrix from platform No.6 to out of railway station by persuading her. The above named persons talked to the complainant on phone and conveyed that they have taken his daughter and will leave her on 26.05.2012. Complainant submitted a Gumshudagi (Missing) report at police station, after lodging report, as conveyed on phone on 26.05.2012, the accused persons left the prosecutrix near her house in Mirzapur in serious condition. The prosecutrix told that Vikash Keshri, Santosh Kumar Bind, Abhishek Singh and Gappu committed rape (forcible sex) with her.

Perusal of the record showed that prosecutrix was medically examined by doctors. Doctor had deposed before the learned trial court that no injury mark was found on the private parts of the prosecutrix. The hymen of prosecutrix was old torn. It is also stated by the doctor that no spermatozoa was found in vaginal swab and supplementary report was filed. Doctor has opined that prosecutrix was habitual for sexual intercourse.

The accused Vikash Keshri had claimed that on the date of said occurrence, he was not at Allahabad station. He had examined Santosh Kumar Yadav in his defence, who had stated that Vikash Keshri was student and he was tenant in his room and from 17.05.2012 to 19.05.2012, he was there in his tenanted room. Learned trial court acquitted the co-accused persons Gappu @ Mahendra, Abhishek Singh and Raghunath from all the charges levelled against them.

The learned counsel for the appellants submitted that as accused were in jail for a long period, he is not pressing this appeal on its merit, but prays for reduction of the sentence as the sentence of life imprisonment awarded to the appellants by the trial court is very harsh and unwarranted. Learned counsel also submitted that appellants are in jail since 10.06.2012.

The case of Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926 was cited, where the apex court while explaining rehabilitary & reformative aspects in sentencing had observed as follows:-

“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.”

The term ‘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’.

Court while keeping in view the facts and circumstances, considered to fall back to what is known as corrective measures. The accused were young and there were certain loop-holes even in the investigation. The factual scenario as narrated also to some extent would persuade to take a different view than that taken by the learned Judge as far as committal of forcible sex is concerned but even if that be shown the age of girl namely, the prosecutrix does not permit to take different view but at the same time the judgements of the Apex Court will permit to fall back on what is known reformative theory of punishment. The conviction of the appellants could be interfered only for the purpose of sentence as keeping the gravity of offence, the punishment of life imprisonment was too harsh.

Perusal of the record also showed that appellants were in jail for past nine years and three months. Court was of the opinion that, ends of justice would be met, if sentence is reduced to the period of 7 years.

Hence, the sentence awarded to the appellants by the learned trial court under Section 376(2)(G) r/w 149 IPC was reduced to the period of seven years R.I. with all remissions and fine is reduced from Rs.1 lac to Rs.10,000/- each. Accordingly, the appeal was partly allowed with the modification of sentence.

Reference:

https://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do

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