# Braj Kishore v. State of U.P - **Citation:** (2021) 11 ILRA 100 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-11-10 - **Case number:** Criminal Appeal No. 6194 of 2008 - **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/braj-kishore-v-state-of-u-p-46442 - **Pages:** 6 ## Headnote Criminal Law - Indian Penal Code, 1860 - Section 376- Rape of minor- Imprisonment for life- Quantum of Punishment- Reformative Theory and Doctrine of Proportionality- 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- 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. Keeping in view of theory of 'doctrine of proportionality',the sentence awarded to the appellant seems harsh. Since, the appellant has already served 14 years of sentence and ends of justice would be met if sentence is reduced from life imprisonment to the period of ten years. There were no external injury or there were no external injury were found. The accusedappellant was a young man at the time when he committed the offence. Hence, the sentence awarded to the appellant by the learned trialcourt is modified and is reduced to fourteen years rigorous imprisonment with all remissions and fine default sentence mentioned. 11 All. Braj Kishore Vs. State of U.P. 101 Where the offence was committed by the accused at a young age, there were no external or internal injuries on the person of the victim and the accused has served 14 years of the sentence, hence by way of providing the accused the opportunity of reforming himself and in view of the harshness of the punishment of life sentence awarded to him, the sentence modified to the period undergone by the appellant.( Para 22, 23, 24, 25) Criminal Appeal partly allowed. (E-3) Judgements/ Case law relied upon:- ## Text 100 INDIAN LAW REPORTS ALLAHABAD SERIES trace of spermatozoa and, therefore, no injury marks. She further testified that the prosecutrix had not been subjected to any forcible sexual harassment or intercourse. From beginning it was projected that the girl was minor but the learned trial judge came to the finding that provision of POCSO Act will not be applicable in this case because she was not minor. 17. Offence of rape is not proved, hence, the accused could not have been punished under Section 3(2)(V) of SC/ST Act. We are unable to accept the submission of learned counsel for the State that just because the accused was knowing the prosecutrix belonging to the vulnerable caste cannot itself take the matter in that ambit and it is relevant to mention that when offence of rape is not proved then there is no question of punishment under Section 3(2)(V) of SC/ST Act. 18. Hence, after meticulous appreciation of evidence on record and in the facts and circumstances of this case, we are of the considered view that prosecution has failed to prove the charges against the appellant. Learned trial court did not appreciate the evidence in right perspective as far as the rape is concerned and the accused-appellant was wrongly convicted on the basis of perverse finding. 19. Accordingly, the appeal is likely to be allowed. 20. The appeal is allowed. Conviction and sentence of appellant awarded in this case is hereby set aside. Appellant be set free forthwith if he is not wanted in any case. Fine, if deposited, be refunded to the appellant. Bail bond is cancelled and sureties are discharged, if any. Record of court below be sent back forthwith. ---------- (2021)12ILR A100 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 10.11.2021 BEFORE THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. THE HON'BLE AJAI TYAGI, J. Criminal Appeal No. 6194 of 2008 Braj Kishore ...Appellant Versus State of U.P. ...Respondent Counsel for the Appellant: Sri D.S. Singh, Sri Anand Saurabh, Sri Kashif Zaidi, Sri Noor Mohd. Sri Raghuvansh Misra, Sri Rahul Misra, Sri Shiv Kumar Singh, Sri Sudama Ji Shandlya Counsel for the Respondent: A.G.A. Criminal Law - Indian Penal Code, 1860 - Section 376- Rape of minor- Imprisonment for life- Quantum of Punishment- Reformative Theory and Doctrine of Proportionality- 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- 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. Keeping in view of theory of 'doctrine of proportionality',the sentence awarded to the appellant seems harsh. Since, the appellant has already served 14 years of sentence and ends of justice would be met if sentence is reduced from life imprisonment to the period of ten years. There were no external injury or there were no external injury were found. The accusedappellant was a young man at the time when he committed the offence. Hence, the sentence awarded to the appellant by the learned trialcourt is modified and is reduced to fourteen years rigorous imprisonment with all remissions and fine default sentence mentioned. 11 All. Braj Kishore Vs. State of U.P. 101 Where the offence was committed by the accused at a young age, there were no external or internal injuries on the person of the victim and the accused has served 14 years of the sentence, hence by way of providing the accused the opportunity of reforming himself and in view of the harshness of the punishment of life sentence awarded to him, the sentence modified to the period undergone by the appellant.( Para 22, 23, 24, 25) Criminal Appeal partly allowed. (E-3) Judgements/ Case law relied upon:- 1. Manoj Mishra @ Chhotkau Vs The St. of U.P ( Crl. Appeal No.1167 of 2021) dec. on 8th Oct.r, 2021 2. Mohd. Giasuddin Vs St. of AP, [AIR 1977 SC 1926] 3. Deo Narain Mandal Vs St. of UP [(2004) 7 SCC 257] 4. Ravada Sasikala Vs St. of A.P. AIR 2017 SC 1166 (Delivered by Hon'ble Dr. Kaushal Jayendra Thaker, J.) 1. By way of this appeal, the appellant- Braj Kishore has challenged the Judgment and order dated 25.08.2008 passed by court of Additional Sessions Judge, Court No.3, Jhansi in Session Trial No.87 of 2007 arising out of Case Crime No.131 of 2006, under Section 376 Indian Penal Code ( hereinafter referred to as 'IPC'), Police Station- Mauranipur, District Jhansi whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for life. 2. The brief facts as per prosecution case are that on 17.12.2006, a written report was submitted by Raj Kumar stating therein that on 16.12.2006 at about 4:30 p.m. the prosecutrix, a girl of 10 years of age, was returning to her House. On the way the accused-appellant met her. He took her in his house, committed rape with the prosecutrix and when she raised hue and cry, the accused- appellant ran away. The report of the incident was lodged on the next day at 1:20 a.m. i.e. in the night between 16/17.12.2006. A case crime No.131 of 2006 was registered at Police Station Mauranipur, District Jhansi under Section 376 IPC. 3. S.I.-Ram Naresh Singh took the investigation, visited the spot, prepared site plan, recorded statements of the prosecutrix and witnesses. Medical examination of prosecutrix was conducted by the doctor. 4. After completion of investigation, charge sheet was submitted against appellant - Braj Kishore under Section 376 IPC to the Magistraterial Court. The case being triable by Court of Sessions, was comitted by concerned Magistrate to the Court of Sessions for trial. 5. Trial Court framed charges against the appellant under Section 376 IPC. The accused denied the charge and claimed to be tried. The prosecution so as to bring home the charge, examined seven witnesses, who are as under:- 1 Kasturi Devi P.W.1 2. Prosecutrix P.W.2 3. Raj Kumar P.W.3 4. Ram Prakash P.W.4 5. Dr. Alpana Bratariya P.W.5 6. Ram Naresh Singh P.W.6 7. R.L. Kureshi P.W.7 6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence: 1. F.I.R. Ext. Ka-3 2. Written report Ext. Ka.2A 3. Staement of prosecutrix Ext. Ka-2 4. Recovery memo Ext. Ka-9 5. Recovery memo Ext. Ka-1 6. Injury report Ext. Ka-6 102 INDIAN LAW REPORTS ALLAHABAD SERIES 7. Injurty report of prosecutrix Ext. Ka-5 8. X-Ray Report Ext. Ka-10 9. Site plan Ext. Ka-7A 7. Heard Shri Rahul Misra assisted by Sri Raghuvansh Misra, learned counsels for the appellant, learned AGA for the State and also perused the record. 8. Perusal of record shows that occurrence of this case took place on 16.12.2006. The prosecution has alleged that the accused committed rape on ten year old daughter of complainant-Raj Kumar. The victim's statement under Section 164 Cr.P.C. was recorded by the concerned Magistrate. During the course of investigation, medical examination of victim was conducted and the medical report was prepared. Dr. Alpana Brtariya, conducted the medical examination. She in her evidence as PW-5 has stated that no spermatozoa was seen in the set smears. In her opinion, no definite opinion regarding rape could be given. Considering the x-ray report, the age of prosecutrix is 9-12 years. 9. The victim was examined as prosecution as PW-2. She reiterated what she had stated in her statement recorded under Section 164 Cr.P.C., the victim supported the prosecution version. In her statement before the Trial Court, she supported the prosecution version. Her mother- Kasturi Devi -PW-1 also supported the case against accused. 10. Complainant- father of the victim, Raj Kumar was examined as PW-3. He has proved the written report as Ex. Ka-2A which was submitted by him at police station for registration of the case against accused. 11. Learned counsel for the appellant would contend that on perusing the FIR, it was only a case of attempt to commit murder. However, on further statement of witness the police had filed charge sheet against the accused under Section 376 IPC also. 12. Learned AGA submitted that the age of victim at the time of commission of offence was just twelve years and as per the medical examination, she was found aged between 912 years. She has supported prosecution version in her statement and her testimony is supported with medical evidence. . It is submitted that prosecution case is proved beyond doubt and accused is rightly convicted by the trial Court. 13. 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. 14. After some arguments, learned counsel for the appellant submitted that he is not pressing this appeal on merits but prays for reduction of the sentence as the sentence of life imprisonment awarded to the appellant by the trial court is very harsh. Learned counsel for the appellant further contended that the medical evidence categorically showed that alleged incident took place on 16.12.2006 at 4:30 p.m.. There is a belated FIR. Seven witness who have been examined go to show that the FIR was ante timed and hence the sanity of FIR is also doubtful. The presence of PW1 and PW-3 are doubtful at the scene of occurrence. There is offence of opinion of rape that there were not external or internal injuries are found. The recovery of undergarment of accused and the victim is also very doubtful. The statement of victim was recorded under Section 164 Cr.P.C. The presence of PW-1 and PW-3 at the time of occurrence is not proved. 11 All. Braj Kishore Vs. State of U.P. 103 15. Learned counsel for the appellant has relied on the decision of Supreme Court in Rahim BEG & Another Vs. State of U.P. (1972) 3 Supreme Court Cases 759 and Bavo Alias Manubhai Ambalal Thakore Vs. State of Gujarat, (2012) 2 Supreme Court Cases 684 and contended that the case does not fall within the parameters for commission of rape and punishment for the said offence. 16. This case pertains to the offence of 'rape', defined under Section 375 IPC, which is quoted as under: [375. Rape.- A man is said to commit "rape" if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions :- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind of intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under eighteen years of age. Seventhly.- When she is unable to communicate consent. Explanation 1.- For the purposes of this section, "vagina" shall also include labia majora. Explnation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.- A medical procedure or intervention shall not constitute rape. Excpetion 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.] 17. Factual scenario goes to show that the accused has been named in the FIR. It is not proved that there was any enmity between the parties, though there is some doubt. Learned counsel for the appellant contended that he would press for commutation of sentence from life to a lesser sentence. 18. A very recent judgment of Hon'ble Supreme Court titled as Manoj Mishra @ Chhotkau Vs. The State of Uttar Pradesh ( 104 INDIAN LAW REPORTS ALLAHABAD SERIES Criminal Appeal No.1167 of 2021) decided on 8th October, 2021 is also considered by us. The facts were similar and, therefore, we cannot disagree with the finding of facts of the Court below but at the same time considering the factual scenario and sentencing the policy will permit us to reduce the life imprisonment to lesser punishment of incarceration as far as Section 376 IPC is concerned. 19. In 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." 20. '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. 21. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP [(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734], Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323], State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of 11 All. Ram Sharan Jatav Vs. State of U.P. & Ors. 105 crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. 22. 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 considers 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. 23. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system. 24. Learned AGA also admitted the fact that appellant is languishing in jail for the last more than 14 years. Keeping in view of theory of 'doctrine of proportionality' as discussed above, the sentence awarded to the appellant seems harsh. Since, the appellant has already served 14 years of sentence and ends of justice would be met if sentence is reduced from life imprisonment to the period of ten years. 25. We find that there were no external injury or there were no external injury were found. The accused-appellant was a young man at the time when he committed the offence. Hence, the sentence awarded to the appellant by the learned trial-court is modified and is reduced to fourteen years rigorous imprisonment with all remissions and fine default sentence mentioned. 26. Accordingly, the appeal is partly allowed with the modification of the sentence, as above. Record be sent back to the Court below forthwith. 27. Release order be sent to the Jail Authority without waiting for detailed judgment. ---------- (2021)12ILR A105 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 17.12.2021 BEFORE THE HON'BLE MRS. SADHNA RANI (THAKUR), J. Criminal Appeal No. 6822 of 2019 Ram Sharan Jatav ...Appellant Versus State of U.P. & Ors. ...Respondents Counsel for the Appellant: Sri Aay Sengar Counsel for the Respondents: A.G.A., Sri Rajiv Kumar Tripathi Criminal Law - Code of Criminal Procedure, 1973- Sections 154, 156(3) & 190- Rejection of Application Under Section 156(3)- The registration of first information report is mandatory under Section 154 Cr.P.C. if the information discloses the commission of cognizable offence and no preliminary inquiry is permissible in such a situation. However, if the information received does not disclose the commission of cognizable offence but indicates necessity for inquiry the preliminary inquiry may be conducted in order to ascertain whether cognizable offence is disclosed or not.