# Chhotu @ Diwakar @ Karamveer v. State of U.P

- **Citation:** (2021) 11 ILRA 112
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-25
- **Case number:** Criminal Appeal No. 7329 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chhotu-diwakar-karamveer-v-state-of-u-p-46519
- **Pages:** 6

## Headnote

A.G.A.

'Proper Sentence'-
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. the criminal justice
jurisprudence adopted in the country is not
retributive but reformative and corrective. At
the same time, undue harshness should also be
11 All. Chhotu @ Diwakar @ Karamveer Vs. State of U.P.
113
avoided keeping in view the reformative
approach underlying in our criminal justice
system.

The judicial trend is that Sentence must be
proportionate to the offence committed but at the
same time effort should be made to reform the
convict so that he is aligned with the social
mainstream.

Proportionate Sentence-The victim was about
11 years old at the time of occurrence,
therefore, the case is fully covered by clause (f)
of sub-section (2) of Section 376 of IPC and the
sentence awarded cannot be less than 10 years
unless there are adequate and special reasons
for doing so. We do not find any adequate and
special reasons for imposing of sentence less
than 10 years. It appears from perusal of
impugned judgement 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. We substitute the sentence under
Section 452 IPC from seven years to three
years and fine is reduced to Rs.2,000/-.
Additional imprisonment of one year in case of
default of fine shall remain the same. We
substitute the sentence under Section 376 IPC
from
life
imprisonment
to
the
rigorous
imprisonment of 13 years with all remissions
and fine of Rs.40,000/-.

As no adequate and special reasons exist for
modifying the sentence to less than ten years, but
considering the judicial trend of reformation and the
facts of the case, sentence awarded by the trial court
found to be too harsh and therefore appropriately
modified. ( Para 12, 13, 14, 16, 18)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

112 INDIAN LAW REPORTS ALLAHABAD SERIES

54. In the present case, Pappu P.W.-2 and
Kaley P.W.-3 are the natural witnesses. There is
long cross-examination but nothing adverse
came out against prosecution. Both witnesses
were present on the spot, witnessed the
occurrence and informed the father of the
deceased P.W.-1. There is no ground to discard
the evidence of P.W.-2 and P.W.-3 eye
witnesses; their evidences are supported by
medical evidence; the evidence of P.W.-2 and
P.W.-3 is fully reliable and credible. Witnesses
have no enmity with the accused and there is no
ground
to
falsely
implicate
them.
The
submission of defence that witnesses are related
one, is not tenable. This does not affect
prosecution case. Injury inflicted by the accused
on the vital part of the deceased in furtherance of
common intention of both the accused is proved
beyond reasonable doubt. The submission of the
learned counsel for the appellants that the case
of the prosecution comes within the ambit of
Section 304 Part-I of IPC, is not applicable in
present facts, circumstances and evidence of the
case.

55. In our opinion, the guilt of appellants
has been established by the prosecution beyond
reasonable doubt. Death of the deceased Mange
is homicidal one caused by gun shot injury
inflicted by accused Sanjay with active support
of accused Vinod. There is no manifest error or
illegality in the finding of the trial court.

56. On the basis of above discussion, we
are of the view that judgment and order of the
trial
court
dated
18.07.2007
passed
by
Additional Sessions Judge, Fast Track Court-I,
Baghpat in Sessions Trial No. 544 of 2006,
arising out of Case Crime No. 406 of 2006,
Police Station Barot, District Baghpat convicting
and sentencing the appellants to undergo
rigorous life imprisonment under Section 302/34
of IPC with a fine of Rs.25,000/- each, in default
thereof, to undergo two years rigorous additional
imprisonment, is hereby confirmed.

57. During trial, accused Sanjay @ Kalla
remained in judicial custody and accused Vinod
@ Bhura is on bail. The appellant Vinod @
Bhura shall surrender before C.J.M. Baghpat
forthwith to serve the remaining period of
sentence. Bail bond filed by accused Vinod @
Bhura is forfeited and sureties are discharged.

58. The appeals are devoid of merits and
liable to be dismissed. The appeals are,
accordingly, dismissed.
----------
(2021)11ILR A112
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.10.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 7329 of 2011

Chhotu @ Diwakar @ Karamveer ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Hitesh Pachori, Sri Ghan Shyam Dubey, Sri
Noor Mohammad, Sri Rajiv Sharma, Sri Vivek
Mishra, Sri V.C. Mishra

Counsel for the Respondent:
A.G.A.

'Proper Sentence'-
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. the criminal justice
jurisprudence adopted in the country is not
retributive but reformative and corrective. At
the same time, undue harshness should also be
11 All. Chhotu @ Diwakar @ Karamveer Vs. State of U.P.
113
avoided keeping in view the reformative
approach underlying in our criminal justice
system.

The judicial trend is that Sentence must be
proportionate to the offence committed but at the
same time effort should be made to reform the
convict so that he is aligned with the social
mainstream.

Proportionate Sentence-The victim was about
11 years old at the time of occurrence,
therefore, the case is fully covered by clause (f)
of sub-section (2) of Section 376 of IPC and the
sentence awarded cannot be less than 10 years
unless there are adequate and special reasons
for doing so. We do not find any adequate and
special reasons for imposing of sentence less
than 10 years. It appears from perusal of
impugned judgement 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. We substitute the sentence under
Section 452 IPC from seven years to three
years and fine is reduced to Rs.2,000/-.
Additional imprisonment of one year in case of
default of fine shall remain the same. We
substitute the sentence under Section 376 IPC
from
life
imprisonment
to
the
rigorous
imprisonment of 13 years with all remissions
and fine of Rs.40,000/-.

As no adequate and special reasons exist for
modifying the sentence to less than ten years, but
considering the judicial trend of reformation and the
facts of the case, sentence awarded by the trial court
found to be too harsh and therefore appropriately
modified. ( Para 12, 13, 14, 16, 18)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

1. Bavo @ Manubhai Ambalal Thakore Vs St. of Guj.
2012 (1) All JIC 319

2. Rajendra Datta Zarekar Vs St. of Goa 2008 (1) All
JIC 123

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 Ajai Tyagi, J.)

1. Heard learned counsel for the appellant
and learned AGA for the State as well as
perused the record.

2. This appeal has been preferred against
the judgement and order dated 11.11.2011
passed by learned Additional Sessions Judge
court No.1, Agra in S.T. No.853 of 2010 (State
Vs. Chhotu @ Diwakar @ Karamveer) arising
out of Case Crime No.109 of 2010, under
Section 452 and 376 IPC, Police Station-
Khandoli, District- Agra, whereby the accusedappellant was convicted and sentenced under
Section 376 (2) F IPC for life imprisonment and
fine of Rs.50,000/-. He was directed to undergo
further imprisonment for three years in case of
default of fine. He was further convicted and
sentenced under Section 452 IPC for seven years
rigorous imprisonment and fine of Rs.20,000/-
and further simple imprisonment for one year in
case of default of fine. Learned trial court
directed that both the sentences shall run
separately.

3. The brief facts of this appeal are that the
written report was submitted at police station-
Khandoli, District- Agra by Jagdish Singh
stating that on 27.04.2010, he was working in
his field and his wife Usha Devi had gone to
Aligarh. Her daughter (victim) aged about 11
years was alone in the house and was cooking
the food. At about 10 a.m. in the morning, one
Chhotu, resident of his village, aged about 21
years entered his house and committed rape with
his daughter. On the basis of this written report,
Ext. Ka-1, a Case Crime No.109 of 2010 was
registered
against
the
accused
Chhotu.
Investigation of this case was taken up by S.O.
Dharmendra Singh, who recorded the statements
of victim and other witnesses, prepared siteplan. During the course of investigation,
114 INDIAN LAW REPORTS ALLAHABAD SERIES
statement of victim was recorded under Section
164 Cr.P.C. Victim was medically examined and
medical report Ext. Ka-5, supplementary report
Ext. Ka-6 were prepared. Slides of smear swab
were sent for examination. Victim's skirt was
sent to FSL, Agra from where report Ext. Ka-9
was received, which shows that human sperm
and spermatozoa were found on the skirt. After
completing
the
investigation,
investigating
officer submitted charge sheet against the
accused-appellant Chhotu under Section 452 and
376 IPC. The case, being triable by court of
sessions,
was
committed
by
competent
Magistrate to the court of session for trial.
Learned trial court framed charges against the
accused-appellant under Section 452 and 376
IPC and accused was put on trial.

4. The prosecution so as to bring home the
charges examined six witnesses, namely:-

1.
Jagdish Singh
PW1
2.
Victim
PW2
3.
Shibbu
PW3
4.
Mahabir Singh
PW4
5.
Dr. Sheilly Singh
PW5
6.
Dharmendra
Singh
Mutaina
PW6

5. In support of the ocular version of
witnesses, following documents were produced
and contents were proved by leading evidence:

1.
FIR
Ext. Ka-3
2.
Written Report
Ext. Ka-1
3.
Medical
Examination
Report
Ext. Ka-5
4.
Supplementary Report
Ext. Ka-6
5.
Report of Vidhi Vigyan
Prayogshala
Ext. Ka-9
6.
Charge Sheet (Mool)
Ext. Ka-8
7.
Statement u/s 164 Cr.P.C.
of victim
Ext. Ka-2
8.
Site-plan with index
Ext. Ka-7

6. After completion of prosecution
evidence, the accused was examined under
Section 313 Cr.P.C., in which accused told that
false evidence has been led against him and due
to old family enmity, he was implicated falsely
in this case. The accused did not examine any
witness in defence.

7. perusal of record shows that occurrence
of this case took place in day light, i.e., at 10 am
in the morning in the house of victim when she
was alone and cooking the food. After the
occurrence, the father of victim took her to
District Women Hospital, Agra where she was
medically examined by Dr. Sheilly Singh. As
per medical report of victim, it was found that
fresh and dried blood was present on her legs
which was oozing from her vagina. During the
course of internal examination, it was found
there was torn hymen of second degree at 6
o'clock position. Vagina and muscles were
found torn. Injury was fresh and there was
excess bleeding due to injury. Slides of smear
swab were prepared and sent for examination.
No spermatozoa was seen in supplementary
report. Doctor opined that no definite opinion
for rape could be given but it was opined that
there was some insertion of some hard blunt
object in the vagina and that hard blunt object
could be male sex organ. Forensic Science
Laboratory
report
shows
that
human
spermatozoa was present on the victim's skirt.

8. Victim was examined before learned
trial court as PW2. She has stated in her
statement that on the date of occurrence, she was
alone in the house. At about 10 am, accused
entered her house and forcibly committed rape
with her. Victim has stated the occurrence in
detail in her statement and also said that her
vagina was started bleeding. On her hue and cry,
her aunt Usha and younger brother Shibbu came
to the spot and accused fled away. In her crossexamination, she had also supported the
prosecution case. Nothing was extracted by the
11 All. Chhotu @ Diwakar @ Karamveer Vs. State of U.P.
115
defence which could affect the prosecution case
adversely. She remained hospitalized for five
days. Her younger brother Shibbu, who is eyewitness of the crime has deposed as PW3. He
has supported the prosecution case in his
statement and narrated the story, seen by him.
Complainant of this case is father of the victim.
He is examined as PW1. He has proved written
report submitted by him at police station. The
version
of
aforesaid
witnesses
is
fully
corroborated with medical evidence on record.

9. After some arguments, learned counsel
for the appellant submitted that he is not
pressing this appeal on its merit but he prays
only for reduction of sentence as the sentence of
life imprisonment awarded to the appellant by
the trial court is very harsh. Learned counsel for
the appellant relied on judgements in case of
Bavo @ Manubhai Ambalal Thakore Vs. State
of Gujarat Saudan 2012 (1) All JIC 319 and
Rajendra Datta Zarekar Vs. State of Goa 2008
(1) All JIC 123, in which Hon'ble Apex has
reduced the sentence in the specific facts and
circumstances of above case.

10. 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 nonverbal 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.
116 INDIAN LAW REPORTS ALLAHABAD SERIES

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.]

11. 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 antesocial 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."

12. '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.

13. 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
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
11 All. Jai Karan @ Pappu Vs. State of U.P.
117
avoided keeping in view the reformative
approach underlying in our criminal justice
system.

14. 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.

15. Learned counsel for the appellant further
submitted that the sentence of life imprisonment
awarded by the trial court is very severe and same
may be reduced along with other sentence awarded
under Section 452 IPC. It may be pertinent to
mention that Section 376 (2)F of IPC specifically
provides that whereby the victim has less than 12
years of age, the sentence awarded shall not be less
than 10 years but it may be for life and the accused
shall also be liable to fine. Here the victim was about
11 years old at the time of occurrence, therefore, the
case is fully covered by clause (f) of sub-section (2)
of Section 376 of IPC and the sentence awarded
cannot be less than 10 years unless there are adequate
and special reasons for doing so. We do not find any
adequate and special reasons for imposing of
sentence less than 10 years. Since the learned counsel
for the appellant has not pressed the appeal on its
merit, however, after perusal of entire evidence on
record and judgement of trial court, we consider that
the appeal is devoid of merit and is liable to be
dismissed. Hence, the conviction of the appellant is
upheld.

16. 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 judgement 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.

17. In the FIR of this case, the age of accused is
shown 21 years. Keeping in view the entire facts and
circumstances of this case and evidence on record,
we are of the considered view that ends of justice
would be met if sentence is reduced.

18. Hence, we substitute the sentence under
Section 452 IPC from seven years to three years and
fine
is
reduced
to
Rs.2,000/-.
Additional
imprisonment of one year in case of default of fine
shall remain the same. We substitute the sentence
under Section 376 IPC from life imprisonment to the
rigorous imprisonment of 13 years with all
remissions and fine of Rs.40,000/-. Additional
imprisonment in case of default of fine shall remain
the same. Out of the amount of fine, Rs.40,000/- shall
be paid to the victim as compensation.

19. It is made clear that both the sentences shall
run concurrently.

20. Accordingly, the appeal is partly allowed
with the modification of sentence as above.
----------
(2021)11ILR A117
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. 8196 of 2008

Jai Karan @ Pappu ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant: