# Bhura @ Bhure (In Jail) v. State of U.P

- **Citation:** (2022) 3 ILRA 342
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-11
- **Case number:** Criminal Appeal No. 745 of 2014
- **Bench:** Suneet Kumar, Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhura-bhure-in-jail-v-state-of-u-p-48193
- **Pages:** 7

## Headnote

Criminal Law- Indian Penal Code- Section
376G, Section 506- Conviction for life
imprisonment-
Code
of
Criminal
Procedure, 1973- Section 389- Criminal
Appeal-
Conviction
upheld-
Point
of
Sentence- It is admitted fact that at the
time of incident the prosecutrix was about
14 years and accused was 19 years. At the
time of incident accused was married
person and prosecutrix married later on
and is leading a peaceful married life. The
appellant is at present 32 years and is
incarceration for 13 years for charge
under Section 376(G) I.P.C. In the present
case life imprisonment would be excessive
punishment and punishment for 13 years
would be adequate punishment which the
appellant
has
already
served
out.
Therefore the sentence is reduced to R.I.
13 years in place of life imprisonment.

As the appellant has already undergone
incarceration
of
thirteen
years
and
the
prosecutrix has married, sentence reduced to
the period undergone by the appellant as the
minimum punishment prescribed is of 10 years,
which does not per se become life sentence.
(Para 31, 32)

Criminal Appeal disposed of. (E-3)

Judgements/ Case law relied upon:-

## Text

342 INDIAN LAW REPORTS ALLAHABAD SERIES

"15. In operating the sentencing
system, law should adopt the corrective
machinery or deterrence based on factual
matrix. By deft modulation, sentencing
process be stern where it should be, and
tempered with mercy where it warrants to
be. The facts and given circumstances in
each case, the nature of the crime, the
manner in which it was planned and
committed, the motive for commission of
the crime, the conduct of the accused, the
nature of weapons used and all other
attending circumstances are relevant facts
which would enter into the area of
consideration.

16. It is the duty of every court to
award proper sentence having regard to
the nature of the offence and the manner in
which it was executed or committed. The
sentencing courts are expected to consider
all relevant facts and circumstances
bearing on the question of sentence and
proceed
to
impose
a
sentence
commensurate with the gravity of the
offence."

16. I have given a thoughtful
consideration on the overall facts and
circumstances. There is nothing on record
that the appellant has any criminal history.
Prosecution has failed to bring on record
any
material
which
disqualifies
the
appellant from his sentence being modified.

17. In these circumstances, I agree
with the arguments of the learned counsel
for the appellant that only by sending the
appellant to jail will not serve the purpose
and on an overall consideration of above
and other attending facts and circumstance,
I am of the view that the period of
imprisonment awarded by the learned trial
court for six months under Section 3/7 of
the Essential Commodities Act, may be
reduced to the period of imprisonment
already undergone and also with a fine of
Rs.20,000/-.

18. In view of the above, the appeal
filed by the appellant is allowed in part,
whereas the conviction of the appellant by
impugned judgment and order is hereby
maintained. His sentence is reduced to the
period of imprisonment already undergone
by him with fine of Rs.20,000/-. The
appellant Mohsin Ali Khan is permitted to
deposit fine within a period of one month
from today, failing which he has to undergo
three
months'
simple
imprisonment.
Concerned court will take all possible steps
for realization of fine.

19. Let a certified copy of this
judgment be sent to the concerned court
immediately for intimation and immediate
compliance. The concerned court shall send
its report immediately after the compliance
of the order of this Court.
----------
(2022)03ILR A342
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.03.2022

BEFORE

THE HON'BLE SUNEET KUMAR , J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 745 of 2014

Bhura @ Bhure ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sharad Malviya, Sri J.H. Khan, Sri M.I.
Farooqui, Sri Gulrej Khan

Counsel for the Respondent:
A.G.A.
3 All. Bhura @ Bhure Vs. State of U.P.
343
Criminal Law- Indian Penal Code- Section
376G, Section 506- Conviction for life
imprisonment-
Code
of
Criminal
Procedure, 1973- Section 389- Criminal
Appeal-
Conviction
upheld-
Point
of
Sentence- It is admitted fact that at the
time of incident the prosecutrix was about
14 years and accused was 19 years. At the
time of incident accused was married
person and prosecutrix married later on
and is leading a peaceful married life. The
appellant is at present 32 years and is
incarceration for 13 years for charge
under Section 376(G) I.P.C. In the present
case life imprisonment would be excessive
punishment and punishment for 13 years
would be adequate punishment which the
appellant
has
already
served
out.
Therefore the sentence is reduced to R.I.
13 years in place of life imprisonment.

As the appellant has already undergone
incarceration
of
thirteen
years
and
the
prosecutrix has married, sentence reduced to
the period undergone by the appellant as the
minimum punishment prescribed is of 10 years,
which does not per se become life sentence.
(Para 31, 32)

Criminal Appeal disposed of. (E-3)

Judgements/ Case law relied upon:-

1. Dinesh @ Buddha Vs St. of Raj., 2006
Lawsuit SC 162

2. Bavo@Manubhai Ambalal Thakore Vs St. of
Guj. 2012 (2) SCC 684

3. Rajendra Datta Zarekar Vs St. of Goa, (2007)
14 SCC 560

(Delivered by Hon'ble Om Prakash
Tripathi, J.)

1. Heard Shri J.H. Khan, learned
counsel for the appellant, learned A.G.A.
for the State and perused the material on
record.

2. The appellant has preferred this
criminal appeal aggrieved by judgment and
order
dated
21.12.2013
passed
by
Additional Sessions Judge, Court No. 3,
District- Meerut, in Session Trial No. 758
of 2011 (State Vs. Bhura @ Bhure) arising
out of Case Crime No. 112 of 2009, under
Section 376G and 506 I.P.C., Police
Station-
Daurala,
District-
Meerut,
convicting and sentencing the appellant to
undergo imprisonment for life under
Section 376G I.P.C. with a fine of Rs.
5000/-, in default of payment of fine to
undergo one year additional imprisonment
and one year rigorous imprisonment for an
offence punishable under Section 506
I.P.C. with a file of Rs. 1000/- in default of
payment of fine two month additional
imprisonment. All the sentences shall run
concurrently.

3. The case of Rahul was separated
from this case as Rahul was juvenile and
matter has been sent to Juvenile Justice
Board for trial.

4. The prosecution case is as follows:

5. On 03.03.2009 at around 9:00 p.m.
''P' (daughter of complainant), aged about
14 years, went to attend the call of nature in
the vacant residence of M.D.A., where
Rahul and Bhura S/o Virendra, R/o
Village- Palhaida came there and forcibly
picked up complainant's daughter by
holding her face and took her to the fields
and after smelling the intoxicant material,
raped her forcibly. On hearing the noise of
victim, Roshan S/o Samay Singh and
Santari W/o Rajkumar went towards the
fields then both the accused ran away
threatening that if told to any one, they
would kill.
344 INDIAN LAW REPORTS ALLAHABAD SERIES

6. On the basis of the written report
(Exhibit Ka-1), the police registered Case
Crime No. 412 of 2009, under Sections
376, 506 I.P.C. against accused Rahul and
Bhura. Investigation of the case was taken
over by Sub- Inspector Alok Kumar
Sharma. Site inspection was prepared by
the investigator, the relevant documents
were recorded in the case diary and
recorded the statements of the witnesses.

7. After completing the investigation,
Investigating Officer has filed charge sheet
against Rahul and Bhura, under Section
376, 506 I.P.C. Cognizance was taken by
the
Chief
Judicial
Magistrate
and
committed to the court of sessions on
29.06.2021 for trial and thereafter the said
sessions trial has been transferred to the
court of Additional Sessions Judge, Court
No. 3, Meerut for trial.

8. Charge under Sections 376G and
506 I.P.C. has been framed by Additional
Sessions Judge, Court No. 15, Meerut.
Charge was denied by the accused Bhura
@ Bhure. The accused- appellant pleaded
not guilty and claimed to be tried.

9. In order to prove the charges
framed
against
the
appellant,
the
prosecution
has
examined
witnesses,
detailed as under:-

1.
Smt.
Jagwati
(complainant)
PW-1
2.
Sushil Jain
PW-2
3.
Prosecutrix
PW-3
4.
Dr. Anju Jodha
PW-4
5.
Constable Harpal
Singh
PW-5
6.
S.I.
Tulsiram PW-6
Goswami
7.
Rajhans
(Clerk,
C.M.O. Office)
PW-7
8.
Dr. Pramila Gaud PW-8

10. In spite of ocular version of the
witnesses,
following
documents
were
produced and contents were proved by
leading evidence:-

1.
Written Report
Ext. Ka-1
2.
Recovery
of
memo of clothes
Ext. Ka-2
3.
Statement under
Section
164
Cr.P.C.
Ext. Ka-3
4.
Medical
examination
report
Ext. Ka-4
5.
Supplementary
medical report
Ext. Ka-5
6.
First Information
Report
Ext. Ka-6
7.
Kayami G.D.
Ext. Ka-7
8.
Charge-sheet
Ext. Ka-8
9.
Medical
examination
of
prosecutrix
Ext. Ka-9
10.
Pathology report Ext. Ka-10
11.
X-ray report
Ext. Ka-11
12.
Spot map
Ext. Ka-12 &
13

11. In statement under Section 313
Cr.P.C. the accused has stated that he had
made love marriage with Mausi of victim
due to this enmity he was falsely implicated
in this case.
3 All. Bhura @ Bhure Vs. State of U.P.
345

12. The main question is that whether
accused Bhura @ Bhure has committed
rape with prosecutrix on 03.03.2009 at 9:00
p.m. when she has gone to attend the
nature's call with help of Rahul after
smelling her intoxicant material raped her
forcefully.

13. In F.I.R. the age of the prosecutrix
has been stated as 14 years, after medical
examination the age of the prosecutrix was
found at 16 years as shown in Ex- KA-9.
No spermatozoa seen in the vagina smear,
in Exh. KA-5 shows that no opinion
regarding can be given hymen torn,
bleeding present inside vagina and torn
edge vagina admits two fingers with
difficulty and painful.

14. Prosecutrix PW-3 had deposed in
her statement on oath that she knows accused
Bhura @ Bhure who is her neighbour.
Incident took place prior four years at about
9:00 p.m, she went for nature's call in the
vacant house of M.D.A. then Rahul and
Bhura came there and by holding her face
took her to the field and after subjecting her
to the smell of intoxicant material raped her
forcefully. Rape was committed by both the
accused. She was unable to oppose them due
to intoxication, she made noise then they
threatened her and if this fact was told to
anyone then she shall be killed. After hearing
the scream of PW-3 her maternal uncle
Roshan and Mausi Santari came on the spot
and took her home. She told them about the
incident committed by the accused. PW-3
was medically examined and recovery memo
of her Salwar, Kurta and underwear as
prepared by the police as Exhibit Ka-2. Her
statement was also recorded before the
Magistrate. She narrated entire story before
the court. Witness has also proved the
statement under Section 164 Cr.P.C. as
Exhibit Ka-3. This witness was not cross
examined by the defence despite ample
opportunity,
consequently
the
cross
examination of the witness was closed by the
court. As the statement of witness is not
rebutted by the defence so the evidence is
admissible and relevant for the disposal of
this case.

15. PW-2 is the witness of recovery,
before this witness clothes of the prosecutrix
was sealed and recovery memo was prepared.
He has proved the recovery memo. In the
cross examination the witness has stated that
clothes related to the case are not before him
in the court, at present prosecutrix has been
married.

16. PW-1 mother of the prosecutrix has
deposed on oath that incident took place prior
two and a half year, her daughter had gone
for nature's call at 9:00 p.m. behind the
house. Accused Bhura and Rahul R/o
Village-Palhaida
carried
my
daughter
forcefully by holding her mouth and took her
to the field and inhaled her intoxicating
substance, thereafter, both committed rape
with her daughter. On hue and cry made by
her daughter, Roshan, Santari and other
members of the village came on the spot,
seeing them accused Rahul and Bhura fled
away. Her daughter told the witness about the
incident. First day she was silent due to fear
and on second day lodged F.I.R. The age of
her daughter was 14 years. Witness has
proved written report as Exhibit Ka-1. Police
had also taken the clothes of her daughter and
sealed it.

17. PW-4 Dr. Anju Jodha has proved
medical report and supplementary report as
exhibit Ka-4 & Ka-5.

18. PW-5 Constable Harpal formal
witness has proved chik F.I.R. as exhibit
Ka-6 and Kayami G.D. Ka-7.
346 INDIAN LAW REPORTS ALLAHABAD SERIES

19. PW-6 I.O. who had proved charge
sheet as exhibit Ka-8 and others witnesses
also proved spot map as exhibit Ka-12 &
Ka-13 as secondary evidence.

20. PW-7 senior clerk in C.M.O.
office, Meerut has proved X-ray report as
exhibit Ka-10 and X-ray material as
exhibited 1,2 & 3.

21. PW-8 Dr. Pramila Gond has also
proved slide report as exhibit Ka-11 and
stated that there was no spermatozoa in the
slide.

22. Prosecutrix PW-3 had supported
the prosecution case in her statement under
Section 164 Cr.P.C. proved as exhibit Ka3, statement of prosecutrix under Section
164 Cr.P.C. is as follows:-

" On 03.03.2009 at about 9:00
p.m., she went for nature's call behind her
home then suddenly Rahul and Bhura came
there. Rahul gagged her mouth so she could
not make a noise. They took her in the field
and put a handkerchief on her face so she
became unconscious, Rahul and Bhura
committed rape with her. After sometime
she became conscious she make hue and
cry then accused threatened her that they
will kill her, if, she told about the incident.
After hue and cry, her maternal uncle and
aunt came there and brought her to the
house where she told the story to her
mother."

23. Prosecutrix after marriage had
also supported the prosecution version in
her examination-in-chief before the trial
court, but despite ample opportunity to the
defence for cross examination, no cross
examination was done by the accused.
After closing the cross examination no
application for recall was moved for cross
examination of the witness. No revision has
been filed against the said order so in
absence of rebuttal entire evidence of PW-3
is fully reliable. PW-1 had also supported
the prosecution case and there is nothing in
her
cross
examination
by
which
prosecution evidence can be belied. PW-1
is also an illiterate lady, she has supported
the prosecution case and stated that what
was told by her daughter on the date of
incident.

24.

Incident
took
place
on
03.03.2009,
F.I.R.
was
lodged
on
04.03.2009. Medical examination of the
prosecutrix was conducted on 04.03.2009
in which it has been opined that no mark of
injury of external part of the body, hymen
torn, bleeding present from inside vagina
and edge vagina admits two fingers with
difficulty and painful as shown in Exhibit
Ka-4 & Ka-5. Ka-9 is her age certificate by
which it is evident that age of the
prosecutrix was 16 years. From the perusal
of the supplementary report, it appears that
no spermatozoa seen in the slide taken from
vagina smear. Thus medical report exhibit
Ka-4 & Ka-5 supports and corroborates
prosecution case. Evidence of PW-3 is
corroborated by medical evidence exhibit
Ka-4 & Ka-5.

25. From the perusal of the record, it
appears that in this case defence counsel
had cross examined PW-1, PW-2, PW-6,
PW-7, PW-8 but the learned counsel for
defence had not cross examined PW-3,
PW-4, PW-5 after been given ample
opportunity. He had not also participated in
the argument knowingly with intent to
delay the trial. It is also praiseworthy that
prosecutrix had fully supported prosecution
version even after marriage. Such sort of
courage is appreciated. Her evidence is like
an injured witness and is fully credible and
3 All. Bhura @ Bhure Vs. State of U.P.
347
trustworthy supported by medical evidence.
We do place confidence in the deposition
of PW-1 and PW-3. F.I.R. was promptly
lodged on the next day from the date of
incident, there is no grudge to falsely
implicate accused appellant. On the basis of
fully reliable evidence prosecution has
proved beyond reasonable doubt that
accused Bhura @ Bhure has committed
rape with prosecutrix on 03.03.2009 at 9:00
p.m. when she had gone to attend the
nature's call as narrated by the prosecutrix.
Thus the trial court had rightly held the
accused guilty for the charges under
Section 376(G) and 506 I.P.C. Thus we
confirm the conviction of the appellant. It
is evident that in judgment of the trial court
at page 1 & 17, the date of incident has
been typed inadvertently 08.03.2009 which
shall be read as 03.03.2009.

26. The main emphasis placed before
us is on the point of sentence by the learned
counsel for appellant. The submission is
that at the time of incident accused was 19
years of age, he is a labour and is in
incarceration for about 13 years and at
present he is 32 years. He is married
person. Prosecutrix has also married and
living peaceful happy married life.

27. Learned counsel for the appellant
relied on Dinesh @ Buddha Vs. State of
Rajasthan, 2006 Lawsuit SC 162, decided
on 28.02.2006 by Supreme Court of India
in which it has been held that the sentence
provided in Section 376(2)(f) I.P.C. does
not per se become life sentence. Learned
counsel for State submitted that even in a
case covered under Section 376 (2) (f)
I.P.C., imprisonment for life can be
awarded. It is to be noted that minimum
sentence of ten years has been statutorily
provided and considering the attendant
circumstances the imprisonment for life in
a given case is permissible. Neither the trial
court nor the High Court has indicated any
such factor. Only by applying Section
3(2)(v) of the Atrocities Act the life
sentence was awarded. Therefore, the
sentence of life imprisonment was reduced
to 10 years.

28. In the case of Bavo@Manubhai
Ambalal Thakore Vs. State of Gurarat
2012 (2) SCC 684 decided on 03.02.2012
by Supreme Court in which it has been held
that on the date of incident victim was
seven years age and accused was in the age
of 18/19 years and that the incident
occurred ten years ago, the award of life
imprisonment
which
is
maximum
prescribed was not warranted and also in
view of the mandate of Section 376 (2)(f)
I.P.C., the court felt that the ends of justice
would be met by imposing rigorous
imprisonment for ten years. The appellant
had already served nearly ten years. The
sentence of life imprisonment was modified
to rigorous imprisonment for ten years.

29. Rajendra Datta Zarekar Vs. State
of Goa, (2007) 14 SCC 560, the victim was
aged about six years and the accused was
aged about 20 years. Ultimately, the
Supreme Court confirmed the conviction
and sentence of 10 years as awarded by the
High Court. However, the fine amount of
Rs.10,000/- awarded under Section 376
(2)(f) being found to be excessive was
reduced to Rs.1000/-.

30. Learned A.G.A. submitted that
accused appellant should be punished
severely without relaxation. The offence of
rape is serious offence. The physical scar
may heal, but the mental scar will always
remain. When a woman is ravished, what is
inflicted is not merely physical injury but
the deep sense of some deathless shame.
348 INDIAN LAW REPORTS ALLAHABAD SERIES
Judicial response to human rights cannot be
blunted by legal jugglery. A girl of 14 years
who is raped is not an accomplice. The
measure of punishment in a case of rape
cannot depend upon the social status of the
victim or that accused. It must depend upon
the conduct of the accused, the state and
age of the sexually assaulted female and the
gravity of the criminal act. Crimes of
violence upon women need to severely
dealt with. Protection of society and
deterring the criminal is the avowed object
of law and this is required to be achieved
by imposing appropriate sentence. The
sentencing Courts are expected to consider
all relevant facts and circumstances bearing
on the question of sentence and proceed to
impose a sentence commensurate with the
gravity of the offence. The court must hear
the loud cry for justice by the society in
cases of the heinous crime of rape on
innocent helpless girl of tender years.
Public abhorrence of the crime needs
reflection
through
imposition
of
appropriate sentence by the court. To show
mercy in the case of such heinous crime
would be travesty of justice and the plea for
leniency is wholly misplaced.

31. It is admitted fact that at the time
of incident the prosecutrix was about 14
years and accused was 19 years. At the
time of incident accused was married
person and prosecutrix married later on and
is leading a peaceful married life. The
appellant is at present 32 years and is
incarceration for 13 years for charge under
Section 376(G) I.P.C. So in the present
facts and circumstances and the law laid
down by the Apex Court, we are of the
view that in the present
case life
imprisonment
would
be
excessive
punishment and punishment for 13 years
would be adequate punishment which the
appellant has already served out. Therefore
the sentence is reduced to R.I. 13 years in
place of life imprisonment. We feel that
ends of justice would suffice by imposing
R.I. for 13 years which has been served by
the appellant already. However, fine
amount of Rs.5000/- being found to be
excessive reduced to Rs.3000/- in default,
to further undergo R.I. for one month.

32. In view of the above discussion
the conviction imposed on the appellant
herein is confirmed. However, the sentence
of life imprisonment is modified to R.I. for
13 years with a fine of Rs.3000/- in default
of further undergo R.I. for one month. The
conviction and sentence imposed on the
appellant under Section 506 I.P.C. is
confirmed. All the sentences shall run
concurrently.

33. With the above modification of
sentence, the appeal stands disposed of.

34. Office is directed to send copy of
this judgment alongwith original record to
the Court concerned for necessary action
and compliance in accordance with law.
----------
(2022)03ILR A348
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.03.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 1268 of 2015

Jeetu Niranjan ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.C. Dwivedi, Sri M.C. Chaturvedi,Sri Prabhat
Kumar, Sri Siddharth Niranjan, Mrs. Swati