# Baba Kuberanand @ Kalu Ram v. State of U.P

- **Citation:** (2021) 11 ILRA 47
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-09
- **Case number:** Jail Appeal No. 485 of 2018
- **Bench:** Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/baba-kuberanand-kalu-ram-v-state-of-u-p-46092
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections 363, 366, 376(2) I, 376(2) J &
Section 4 POCSO Act, 2012 -challenge toconviction-no external injury and victim denied
for her internal medical examination, therefore
commission of rape could not be proved-Chief
Medical Officer assessed her age as 17 years
and as per migration certificate her age was 16
year 5 months-she stated on oath as PW-1 that
she went with the appellant on motorcycle
with her own will-other witnesses stated the
version of F.I.R.-sentence awarded to the
appellant is modified and is reduced to the
period already undergone.(Para 1 to 18)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

11 All. Baba Kuberanand @ Kalu Ram Vs. State of U.P.
47

36. Accordingly, the appeal is allowed.

37. The appellant Pramod Kumar is
acquitted of the charges levelled against him and
he be set at liberty forthwith if not required in
any other case.
----------
(2021)12ILR A47
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2020

BEFORE

THE HON'BLE VIPIN CHANDRA DIXIT, J.

Jail Appeal No. 485 of 2018

Baba Kuberanand @ Kalu Ram ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Lalji Chaudhary

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Sections 363, 366, 376(2) I, 376(2) J &
Section 4 POCSO Act, 2012 -challenge toconviction-no external injury and victim denied
for her internal medical examination, therefore
commission of rape could not be proved-Chief
Medical Officer assessed her age as 17 years
and as per migration certificate her age was 16
year 5 months-she stated on oath as PW-1 that
she went with the appellant on motorcycle
with her own will-other witnesses stated the
version of F.I.R.-sentence awarded to the
appellant is modified and is reduced to the
period already undergone.(Para 1 to 18)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Sattan Sahani Vs St. of Bih. & ors.. (2002) 45 ACC
1134 SC
2. Uthem Rajanna Vs St. of A.P. (2005) 11 SCC 531

3. Neelam Bahal & anr. Vs St. of U.K. (2010) 2 SCC
229

4. B.G. Goswami Vs Delhi Administration (1973) AIR
1457

(Delivered by Hon'ble Vipin Chandra Dixit, J.)

1. The present jail appeal has been
preferred by the appellant Baba Kuberanand @
Kaluram from jail against the impugned
judgment and order dated 18.3.2016 passed by
Special Judge, POCSO Act/Additional Sessions
Judge, Court No.4, Ghaziabad in Sessions Trial
No.17 of 2014 (State of U.P. Vs. Baba
Kuberanand alias Kaluram). The accusedappellant has been convicted and sentenced with
rigorous imprisonment for 5 years with fine of
Rs.5,000/- under Section 363 I.P.C. and in
default thereof he shall undergo additional
imprisonment for two months, sentenced with
rigorous imprisonment for 7 years and fine of
Rs.10,000/- under Section 366 I.P.C. and in
default thereof he shall undergo additional
imprisonment for three months, sentenced with
rigorous imprisonment for 10 years and fine of
Rs.10,000/- under Sections 376(2) J of I.P.C.
and in default thereof he shall undergo
additional imprisonment for three months,
sentenced with rigorous imprisonment for 7
years and fine of Rs.10,000/- under Section 4 of
POCSO Act and in default thereof he shall
undergo additional imprisonment for three
months. All these sentences have been directed
to be run concurrently.

2. Factual matrix of the case are that the
F.I.R. (Exhibit Ka-5) was lodged by complainant
Pratap Singh (P.W.-2) in Police Station
Dhaulana, District Hapur that her daughter, age
15 years, was missing since evening of
13.1.2014 and he suspects Baba Kuberanand,
Harish, Rinku and Sushil for the same. The case
was registered as Case Crime No.21 of 2014,
48 INDIAN LAW REPORTS ALLAHABAD SERIES
under Sections 363 & 366 I.P.C. The case was
investigated by S.I. Vinod Kumar Sharma
(P.W.-5) who submitted the charge-sheet
(Exhibit Ka-8) on 8.2.2014. Learned trial court
had framed charges against appellant on
3.5.2014 under Sections 363, 366, 376(2) I,
376(2) J of I.P.C. and Section 4 of POCSO Act.
The appellant-accused has denied the charges
and pleaded for trial.

3. So as to hold the accused-appellant
guilty, the prosecution had produced six
witnesses which are as follows:-

1. P.W.-1 victim

2. P.W.-2 Pratap, informant (father of
victim)

3.
P.W.-3
Bhujveer,
nephew
of
informant

4. P.W.-4 Constable Kamal Singh,
scriber of F.I.R.

5. P.W.-5 S.I. Vinod Kumar Sharma,
Investigating Officer

6. P.W.-6 Dr. Tina Khanuja

4. The statement under Section 313 Cr.P.C.
of accused-appellant was recorded in which he
denied the allegations and pleaded that he has
been falsely implicated in this case on account
of enmity with informant. It is stated that a
quarrel took place on 4.1.2014 with father of
victim and other villagers and as such for that
reason he has been falsely implicated in this
case. He has denied to produce any witness in
support of his defence.

5. The victim was medically examined and
as per medical report there was no external
injury on any part of the body of victim and the
victim had denied for her internal medical
examination. The age of the victim was assessed
as 17 years by Chief Medical Officer, Hapur.

6. The victim appeared as P.W.-1 before
trial court and stated on oath that she went with
accused-appellant to Himachal Pradesh from
Meerut on motorcycle but she has not stated that
she was enticed or forcibly took away by
appellant-accused. The informant has appeared
as P.W.-2 who is father of victim and has stated
the same story as stated in F.I.R. The other
witness of fact produced by prosecution was
Bhujveer who appeared as P.W.-3 and supported
the prosecution case. Constable Komal Singh
appeared as P.W.-4 and proved the F.I.R.
Investigating Officer Vinod Kumar Sharma
appeared as P.W.-5 and proved the filing of
charge-sheet. Dr. Tina Khanuja appeared as
P.W.-6 and proved the medical report (Exhibit
Ka-10). P.W.-6 had stated that victim denied for
her internal medical examination and therefore
commission of rape could not be proved.

7. The learned trial court on the basis of
evidence adduced by the prosecution had
recorded the findings that as per migration
certificate the age of victim is 16 years 5 months
as her date of birth is mentioned as 15.8.1997.
As per report of Chief Medical Officer, Hapur
dated 4.2.2014 the age of victim was 17 years
and as such she was minor on the date of
incident, therefore, the charges against accusedappellant were established and convicted the
accused-appellant under Sections 363, 366 and
376 (2) J of I.P.C. and Section 4 of POCSO Act.

8. Heard Sri Lalji Chaudhary, learned
counsel for appellant, Sri R.K. Srivastava,
learned A.G.A. for the State and perused the
impugned judgment and order as well as record
of the present case.

9. Learned counsel appearing for appellant
states that he does not propose to challenge the
judgment and order of trial court on its merit.
He,
however,
submitted
that
there
are
contradictions in the statements of witnesses
produced by prosecution and the trial court has
ignored the evidence of doctor who appeared as
P.W.-6 that internal medical examination was
11 All. Baba Kuberanand @ Kalu Ram Vs. State of U.P.
49
refused by the victim thus commission of rape
could not have been proved. It is further
submitted that from the evidence adduced by the
prosecution it is apparent that victim went to
Himachal Pradesh with accused-appellant on
motorcycle without raising any alarm and lived
there till 24.1.2014 which itself proved that she
was consenting party and went with appellant
with her own will but on account of enmity with
informant the appellant has been falsely
implicated in this case.

10. Learned counsel for appellant has
submitted that maximum sentence awarded by
learned trial court is 10 years and the appellant
has already undergone more than 6 years 10
months and as such the matter be considered
sympathetically and the order of sentence may
be reduced to the period already undergone by
the appellant. It is next submitted that
appellant is not a previous convict. Learned
Additional Government Advocate has no
objection if the Court reduces the quantum of
punishment.

11. The findings of fact has been
recorded by trial court that on the date of
incident the victim was minor and that
findings have not been challenged by the
appellant, hence, the conviction of appellant
stands affirmed.

12. Learned counsel for appellant pleads
that appellant is in jail for last about 7 years
whereas the maximum punishment awarded to
the appellant is 10 years and as such the
appeal may be decided sympathetically and
the sentence may be reduced to the period
which had already undergone by the appellant.

13. In the case of Sattan Sahani vs State
of Bihar and others, 2002 (45) ACC 1134
(SC), accused were sentenced to three years'
rigorous imprisonment under section 326 IPC.
In appeal, the Apex Court reduced the
sentence to the period already undergone on
the ground that the incident took place two
decades
back
and
parties
have
also
compromised.

14. In the case of Uthem Rajanna vs State
of Andhra Pradesh, 2005 (11) SCC 531,
accused was convicted and sentenced to six
months' simple imprisonment under section 304A IPC along with fine of Rs. 500/- and three
months' simple imprisonment under section 338
IPC and also to pay a fine of Rs. 500/- under
section 337 IPC. The Apex Court in appeal has
reduced the sentence to the period already
undergone.

15. In the case of Neelam Bahal and
another vs State of Uttarakhand, 2010 (2) SCC
229, the accused was convicted and sentenced to
undergo seven years' rigorous imprisonment
under section 307 IPC. The Apex Court has
convicted the accused under section 326 IPC and
reduced the sentence to the period already
undergone, i.e. almost one year.

16. The Hon'ble Supreme Court has
reduced the sentence of accused to the period
already undergone in the case of B.G. Goswami
Vs. Delhi Administration, 1973 AIR 1457. The
relevant
paragraph
of
the
judgment
is
reproduced as under:

"Now the question of sentence is
always a difficult question, requiring as it does,
proper adjustment and balancing of various
considerations, which weigh with a judicial
mind in determining its appropriate quantum in
a given case. The main purpose of the sentence
broadly stated is that the accused must realise
that he has committed an act, which is not only
harmful to the society of which he forms an
integral part but is also harmful to his own
future, both as an individual and as a member of
the society. Punishment is designed to protect
society by deterring potential offenders as also
50 INDIAN LAW REPORTS ALLAHABAD SERIES
by preventing the guilty party from repeating the
offence; it is also designed to reform the
offender and reclaim him as a law abiding
citizen for the good of the society as a whole.
Reformatory, deterrent and punitive aspects of
punishment thus play their due part in judicial
thinking while determining this question. In
modern civilized societies, however, reformatory
aspect is being given somewhat greater
importance. Too lenient as well as too harsh
sentences both lose their efficaciousness. One
does not deter and the other may frustrate
thereby making the offender a hardened
criminal. In the present case, after weighing the
considerations already noticed by us and the
fact that to send the appellant back to jail now
after 7 years of the annoy and harassment of
these proceedings when he is also going to lose
his job and to earn a living for himself and for
his family members and for those dependent on
him, we feel that it would meet the ends of
justice
if
we
reduce
the
sentence
of
imprisonment to that already undergone but
increase the sentence of fine from Rs- 200/- to
Rs. 400/-. Period of imprisonment in case of
default will remain the same."

17. In the present case the appellant is in
jail since 25.1.2014 and had served the sentence
for 6 years 10 months. In view of aforesaid facts
the sentence awarded to the appellant is
modified and the sentence is reduced to the
period already undergone by the appellant in this
case.

18. The present jail appeal is partly
allowed. The appellant is in jail. He shall be
released forthwith if not wanted in any other
case. It is further directed that the appellant shall
furnish bail bonds with sureties to the
satisfaction of the court concerned.
----------
(2021)12ILR A50
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 13.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Criminal Appeal No. 1588 of 2021

Indra Pratap Tiwari ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Dhirendra Kumar Mishra

Counsel for the Respondent:
G.A., Anuj Pandey, Sushil Kumar Singh

A. Bail - Objectors - The Court held that such
objectors, as in the present case, can only be allowed
to interject under the supervision of AGA/Public
Prosecutor. The objectors brought forth the criminal
antecedents of the appellant which is necessary fact
to be looked into at the time of grant of bail to the
appellant post Conviction by the Trial Court. (Para 70)

B. Criminal Law - Joint Trial - Joint Trial can be
held as the college where the three accused were
studying was one, its Principal had lodged First
Information
Report
regarding
the
similar
interpolations in mark sheets by the three accused on
the basis of same record of results maintained by it in
its ordinary course of business and the very same
evidence was to be produced to bring home the
charge in the case of each of the accused and the
prosecution witnesses who were examined to prove
the charges were also the same. (Para 72)

The Court rejected the bail application of the
applicant on finding that he had submitted fake proof
of identity and residence for procuring arms license,
and in taking the Courts for a ride in submitting bail
papers and sureties on the basis of fake residential
address and also removing Court records of criminal
case pending against him. (Para 73)

Bail Application Rejected. (E-10)

List of Cases cited:

1. Ashwini kumar Upadhyay Vs U.O.I . & ors. Writ
Petition Civil No. 699 of 2016