# Gautam (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-02
- **Case number:** Criminal Appeal No. 6093 of 2017
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gautam-in-jail-v-state-of-u-p-47569
- **Pages:** 7

## Headnote

(A) Criminal law
- appeal against
conviction - The Indian Penal Code,
1860 - Section 376 - The Code of
criminal procedure, 1973
- Section
161,313
- Just
punishment is the
collective cry of the society - While the
collective cry has to be kept uppermost
in
the
mind
-

Principle
of
proportionality between the crime and
punishment cannot be totally brushed
aside - Principle of just punishment is
the bedrock of sentencing in respect of
a criminal offence.(Para - 22)

Father (PW-1) of victim (PW-2) lodged an
F.I.R. against appellant - allegation - on
25.5.2012 at about 2.30 p.m. - his daughter
(PW-2 , victim) aged about 7 years - playing
near the hand-pump - appellant has taken
her away near trees of dates & forcefully
raped her - victim screamed - brother of the
first informant reached on the spot - saw the
alleged incident - appellant absconded from
the
place
of
occurrence
-
trial court
convicted the accused-appellant - hence
appeal.

HELD:-The conviction of appellant-accused
under section 376 I.P.C. is confirmed but the
rigorous imprisonment of 10 years reduced
to
period
already
undergone
by
the
appellant-accused in jail but fine clause shall
be unaltered. (Para -25)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

9 All. Gautam Vs. State of U.P.
273
Aadhar Card is linked before the concerned
Court/Authority/Official.

20. The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------
(2021)09ILR A273
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2021

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 6093 of 2017

Gautam ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri R.K. Sinha, Sri R.K. Mishra, Sri Anand
Kumar Mishra

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

(A) Criminal law
- appeal against
conviction - The Indian Penal Code,
1860 - Section 376 - The Code of
criminal procedure, 1973
- Section
161,313
- Just
punishment is the
collective cry of the society - While the
collective cry has to be kept uppermost
in
the
mind
-

Principle
of
proportionality between the crime and
punishment cannot be totally brushed
aside - Principle of just punishment is
the bedrock of sentencing in respect of
a criminal offence.(Para - 22)

Father (PW-1) of victim (PW-2) lodged an
F.I.R. against appellant - allegation - on
25.5.2012 at about 2.30 p.m. - his daughter
(PW-2 , victim) aged about 7 years - playing
near the hand-pump - appellant has taken
her away near trees of dates & forcefully
raped her - victim screamed - brother of the
first informant reached on the spot - saw the
alleged incident - appellant absconded from
the
place
of
occurrence
-
trial court
convicted the accused-appellant - hence
appeal.

HELD:-The conviction of appellant-accused
under section 376 I.P.C. is confirmed but the
rigorous imprisonment of 10 years reduced
to
period
already
undergone
by
the
appellant-accused in jail but fine clause shall
be unaltered. (Para -25)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

1. Sevaka Perumal etc. Vs St. of T.N., AIR 1991
SC 1463,

2. Dhananjoy Chatterjee Vs St. of W. B., [1994]
2 SCC 220,

3. Ravji v. St. of Raj., [1996] 2 SCC 175

4. Ahmed Hussein Vali Mohammed Saiyed &
anr. Vs St. of Guj., (2009) 7 SCC 254

5. Jameel Vs St. of U.P., (2010) 12 SCC 532

6. Guru Basavaraj @ Benne Settapa Vs St. of
Karn. (2012) 8 SCC 734

7. Gopal Singh Vs St. of Uttarakhand, JT 2013
(3) SC 444

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)

1. This appeal has been preferred by
appellant against the judgement and order
dated 30.8.2017 passed by Additional
Sessions Judge (Fast Track Court), Court
No. 2, Bulandshahar in Sessions Trial No.
704 of 2012 (State Vs. Gautam) in Case
Crime No. 306 of 2012, under section 376
I.P.C., Police Station Kotwali Dehat,
District Bulandshahar by which appellant
274 INDIAN LAW REPORTS ALLAHABAD SERIES
was convicted under section 376 I.P.C. and
awarded 10 years rigorous imprisonment
and Rs. 10,000/- fine in case default of
payment of fine he will have to undergo
additional imprisonment for three months.

2. As per version of first informant
report, father of victim namely, Bhumesh,
has lodged an F.I.R. against the appellant
namely, Gautam, with allegation that on
25.5.2012 at about 2.30 p.m. when his
daughter namely, Shivani, aged about 7
years, was playing near the hand-pump
then at that time appellant has taken her
away near trees of dates and forcefully
raped her. When victim has screamed,
brother of the first informant namely,
Pappu, reached on the spot and saw the
alleged incident. After seeing Pappu,
appellant absconded from the place of
occurrence.

3. On the basis of above submission,
written report of the first informant, first
information report was lodged on same day
i.e. 25.5.2012 at 16.10 p.m. at police station
Kotwali Dehat, Bulandshahar as Case
Crime No. 306 of 2012 under section 376
I.P.C.

4. After lodging the F.I.R. under
section 376 I.P.C., investigation of this case
was entrusted to the investigating officer,
Sanjay
Kumar
Pandey.
During
investigation, after recording the statement
of Constable / Clerk, Investigating Officer
has
recorded
statement
of
the
first
informant, Bhumesh, and victim, Shivani,
and also entered into gist of medical
examination of victim in Case Diary and on
pointing out of witness, Pappu, prepared
the site plan of the alleged incident. The
investigating officer has arrested the
appellant / accused on 26.5.2012 and after
completing formalities of investigation,
charge-sheet was filed on 6.6.2012 under
section 376 I.P.C. before the Additional
Chief Judicial Magistrate, Bulandshahar
where
the
Additional
Chief
Judicial
Magistrate has taken cognizance and case
was committed to sessions court for trial as
Sessions Trial No. 704 of 2012. This
sessions trial case was transferred to
learned Additional Sessions Judge, Court
No. 15 for trial. Charge was framed against
the appellant on 14.9.2012 under section
376 I.P.C. After framing of charge, the
same was read over to the appellant and
appellant denied the charge levelled against
him by the trial court and claim to be tried.

5. In order to prove its case,
prosecution
has
examined
seven
witnesses:-

i. PW-1, Bhumesh Kumar, father
of victim has stated before the court that
the appellant has committed forcefully rape
upon her daughter and he proved the F.I.R.
as Ex. Ka-1.

ii. PW-2 / Shivani is the victim of
this case. For testing her competency, trial
court asked some questions to her and after
satisfying with the same, victim was
examined before the court. She has stated
in
her
statement
that
appellant
has
committed rape upon her and when she
screamed, her uncle, Pappu, reached there
and saw the alleged incident. Due to sexual
assault blood was oozing out from internal
part of her body.

iii. PW-3 / Dr. Hempratibha
Sharma was examined before the court on
19.9.2015. She deposed that she has
medically
examined
the
victim
on
25.5.2012 at 6.00 P.M. At the time of
examination, victim, was fully conscious
but there was no internal injury on any part
of her body except bleeding which was
continued from her private part. Hymen
9 All. Gautam Vs. State of U.P.
275
was torn and fresh blood was present and
vaginal
smear
taken
by
doctor
for
confirmation of spermatozoa and she was
being referred to the Chief Medical Officer
for age determination. Due to internal
bleeding, victim, was referred to medical
college for further treatment. PW-3 has
proved the medical report as Ex. Ka-2. On
the basis of pathology report and X-ray
report supplementary report was also
prepared
by
this
witness.
As
per
supplementary report radiological age of
victim was about 7 years and as per
pathology report no spermatozoa dead or
alive found on the vaginal smear of the
victim. On the basis of these two reports no
definite opinion about rape can be given.
Supplementary report is also proved by
PW-3 as Ex. Ka-3.

iv. PW-4 / Sanjay Kumar Pandey,
was examined on 18.1.2016, who has
investigated this case and prove the site
plan as Ex. Ka-4 and during investigation
he has taken blood infested pajami of
victim and prepared the recovery memo
and prove the same as Ex. Ka-5. After
completion of the investigation, chargesheet was filed by the investigating officer
before the court as Ex. Ka-6.

v. PW-5 / Dr. Aruna Verma was
examined on 25.1.2016, who has submitted
original report of victim which is proved by
her as Ex. Ka-6-A and Ex. Ka-7 and also
proved the original report of the C.M.O. as
Ex. Ka-8.

vi. PW-6 / Dr. Dinesh Kumar was
examined on 19.3.2016 and he prove the xray report of the victim as Ex. Ka-9 and age
determination report of C.M.O as Ex. Ka10.

vii. PW-7 / C.C. 684 Mohd.
Abbas was examined on 12.4.2016 and he
deposed before that he prepared Chek
Report No. 83/12 and prove the same as
Ex. Ka-11 and also prepared the G.D. Entry
and prove the same as Ex. Ka-12.

6. Apart from these witnesses two
more witnesses have been examined as
court witness.

i. CW-1 / Smt. Bala, was
examined on 25.2.2013 and she deposed
that appellant, Gautam, was her son and at
the time of alleged incident, he was minor.

ii. CW-2 / Bhagwati Sharma, was
examined on 15.4.2013, Head Principal of
Primary
Pathashala,
No.
2,
Village
Dariyapur deposed that as per S.R. Report
of appellant, his date of birth is 7.9.1998.
So as per school certificate, age of victim
as per alleged date of incident was about 13
years old.

7. Thus the prosecution relies on the
oral evidence of PW-1 to PW-8 and
documentary evidence as Ex. Ka-1 to Ka12.

8. After completion of prosecution
evidence, statement of accused-appellant
was recorded under section 313 Cr.P.C. in
which he deposed that false F.I.R. was
lodged against him and victim as well as
the first informant has falsely deposed
against him before the court and he was
falsely implicated in this case by the first
informant due to village partibandi and
enmity.

9. Learned trial court after hearing the
prosecution as well as defence side
convicted
the
accused-appellant
as
aforesaid.

10. Feeling aggrieved and unsatisfied
by
the
judgement
and
order
dated
276 INDIAN LAW REPORTS ALLAHABAD SERIES
30.8.2017 of trial court, the accusedappellant has preferred this appeal.

11. I have heard Sri R. K. Sinha,
learned counsel for the appellant, the
learned A.G.A. and perused the record.

12. Learned counsel for the appellant
submits that there is contradiction in the
first information report and statements of
PW-1 and PW-2. In the F.I.R., victim has
mentioned that she was playing near the
hand-pamp but again victim has stated in
her statement that she was playing on the
boundary of Ansar. Learned counsel further
submits that due to village partibandi,
appellant has been falsely implicated in the
abovementioned case. Learned trial court
has
convicted
the
appellant
without
appreciating the evidence available on
record, so impugned judgment and order
dated 30.8.2017, passed by trial court is
perverse and liable to be set aside. Lastly,
counsel for the appellant submits that he
only wants to advance his submission only
on quantum of sentence imposed upon
appellant-accused.

13. Learned AGA on behalf of the
State supported the impugned judgment
and order of learned trial court and
submitted that victim is a minor girl and act
of the appellant is heinous in nature and
trial court after appreciating all the
evidence available on record, rightly
convicted the appellant for the offence
under section 376 I.P.C., The appellant
deserves no leniency, hence appeal has no
force and is liable to be dismissed.

14. Not pressing the criminal appeal
after the conviction of appellant-accused by
the court below is like the confession of the
offence by the accused. The courts
generally take lenient view in the matter of
awarding sentence to an accused in
criminal
trial,
where
he
voluntarily
confesses his guilt, unless the facts of the
case warrants severe sentence.

15. In the case of Sevaka Perumal
etc. Vs. State of Tamil Nadu AIR 1991 SC
1463, the Apex Court in the matter of
awarding proper sentence to the accused in
a criminal trial has cautioned the Courts as
under:

"Undue
sympathy
to
impose
inadequate sentence would do more harm
to the justice system to undermine the
public confidence in the efficacy of law and
society could not long endure under such
serious threats. It is, therefore, 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 etc."

16. In the case of Dhananjoy
Chatterjee Vs. State of W. B. [1994] 2 SCC
220,
this
Court
has
observed
that
shockingly large number of criminals go
unpunished
thereby
increasingly,
encouraging the criminals and in the
ultimate
making
justice
suffer
by
weakening the system's creditability. The
imposition of appropriate punishment is the
manner in which the Court responds to the
society's cry for justice against the criminal.
Justice demands that Courts should impose
punishment befitting the crime so that the
Courts reflect public abhorrence of the
crime. The Court must not only keep in
view the rights of the criminal but also the
rights of the victim of the crime and the
society at large while considering the
imposition of appropriate punishment.
Similar view has also been expressed in
Ravji v. State of Rajasthan, [1996] 2 SCC
175. It has been held in the said case that it
9 All. Gautam Vs. State of U.P.
277
is the nature and gravity of the crime but
not the criminal, which are germane for
consideration of appropriate punishment in
a criminal trial. The Court will be failing in
its duty if appropriate punishment is not
awarded for a crime which has been
committed not only against the individual
victim but also against the society to which
the criminal and victim belong. The
punishment to be awarded for a crime must
not be irrelevant but it should conform to
and be consistent with the atrocity and
brutality with which the crime has been
perpetrated, the enormity of the crime
warranting public abhorrence and it should
"respond to the society's cry for justice
against the criminal". If for extremely
heinous crime of murder perpetrated in a
very
brutal
manner
without
any
provocation, most deterrent punishment is
not given, the case of deterrent punishment
will lose its relevance.

17. Argument in the aforesaid case
was that awarding of the maximum
sentence of life imprisonment to the
accused who is heading towards his old age
is too harsh a sentence because the accused
does not fall in the category of "rare cases"
and the ends of justice could be met if the
sentence of accused is reduced from life
imprisonment
to
the
period
already
undergone.

18. Appropriate sentence is the cry of
the society. It is therefore, 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.

19. This position was reiterated by a
three-Judge Bench of the Apex Court in
Ahmed Hussein Vali Mohammed Saiyed
and Anr. vs. State of Gujarat, (2009) 7
SCC 254, wherein it was observed as
follows:-

"99.....The object of awarding
appropriate sentence should be to protect
the society and to deter the criminal from
achieving the avowed object to law by
imposing appropriate sentence. It is
expected that the courts would operate the
sentencing system so as to impose such
sentence, which reflects the conscience of
the society and the sentencing process has
to be stern where it should be. Any liberal
attitude by imposing meager sentences or
taking too sympathetic view merely on
account of lapse of time in respect of such
offences will be
result-wise
counter
productive in the long run and against the
interest of society which needs to be cared
for
and
strengthened
by
string
of
deterrence
inbuilt
in
the
sentencing
system.

100.
Justice
demands
that
courts
should
impose
punishment
befitting the crime so that the courts
reflect public abhorrence of the crime.

The court must not only keep in
view the rights of the victim of the crime
but the society at large also while
considering the imposition of appropriate
punishment. The court will be failing in
its duty if appropriate punishment is not
awarded for a crime which has been
committed not only against the individual
victim but also against the society to
which both the criminal and the victim
belong."

20. In Jameel vs. State of Uttar
Pradesh (2010) 12 SCC 532, this Court
reiterated the principle by stating that the
punishment must be appropriate and
proportional to the gravity of the offence
committed. Speaking about the concept of
sentencing, this Court observed thus:
278 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.

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."

21. In Guru Basavaraj @ Benne
Settapa vs. State of Karnataka, (2012) 8
SCC 734, while discussing the concept
of appropriate sentence, this Court
expressed that:

"It is the duty of the court to
see that appropriate sentence is imposed
regard being had to the commission of
the crime and its impact on the social
order. The cry of the collective for
justice,
which
includes
adequate
punishment cannot be lightly ignored."

22. In Gopal Singh vs. State of
Uttarakhand JT 2013 (3) SC 444 held
as under:-

"18. Just punishment is the
collective cry of the society. While the
collective cry has to be kept uppermost
in the mind, simultaneously the principle
of proportionality between the crime and
punishment cannot be totally brushed
aside. The principle of just punishment
is the bedrock of sentencing in respect of
a criminal offence....."

23. It is not disputed that the
accused is continuously in jail since
26.5.2012 and the occurrence is said to
have
taken
place
on
25.5.2012.
Appellant is languishing in jail about 9
years. Keeping the accused in jail since
long would not serve any purpose.

24. Thus, considering the law laid
down by the Hon'ble Apex Court in the
above mentioned case and the facts and
circumstances of this case, in my
opinion, that the appellant-accused serve
out about 9 years rigorous imprisonment
as awarded by sessions court so end of
justice would be met if the imprisonment
of the appellant-accused under Section
376 IPC for period has already been
undergone in jail without reducing the
amount of fine imposed by the trial
Court upon the accused-appellant.

25. In view of the aforesaid reasons,
the appeal is partly allowed. The
conviction of appellant-accused under
section 376 I.P.C. is confirmed but the
rigorous imprisonment of 10 years
reduced to period already undergone by
the appellant-accused in jail but fine
clause shall be unaltered.

26.

Record
of
this
case
be
transmitted to the trial court for necessary
compliance.
----------
9 All. Sayeed @ Sahid & Anr. Vs. State of U.P.
279
(2021)09ILR A279
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 6693 of 2010

Sayeed @ Sahid & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Smt. Nayan Shri, Sri I.M. Khan, Sri
Sudhanshu Srivastava

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

(A)
Criminal Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Section 302/34 , 307/34 - The Code of
criminal procedure, 1973 - Section 313,
Arms Act, 1959 - Sections 25/4 - oral
testimony
of
a
witness
cannot
be
discarded or ignored merely on the
ground that he is an interested witness
or a related witness - witness cannot be
totally disbelieved merely because there
is some false statement in his testimony
- entire oral testimony is to be
appreciated as a whole and only then
any
conclusion
about
his
trustworthiness can be drawn - defects
in the investigation itself cannot be a
ground
for
acquittal
so
these
discrepancies or omissions will not in
any
way
adversely
affect
the
prosecution case - in case of direct
evidence, motive becomes irrelevant but
if the prosecution assigns any motive
then it has to prove it.(Para -12,
14,18,20)

Complainant (PW-1) along with his father &
3 brothers - after offering Namaz - coming
out from the Mosque - accused-persons
armed with knives/ chhura - saying that
today no one should be let alive suddenly
with the intention to kill, attacked them - All
the four accused persons seriously injured
three brothers of complainant - Injured
brothers were taken to the District Hospital
by the complainant and his father with the
aid of other villagers - 2 brothers dead -
PW-2 (another brother) under treatment -
incident witnessed by complainant and his
father and other villagers in the electric
light. (Para - 3)

HELD:-Oral testimony of accused informant/
eye witness (P.W.-1) and injured witness
(P.W.-2) is reliable, both these witnesses
have supported the prosecution case and
have corroborated the FIR version and their
oral testimony is fully corroborated by medical
evidence and there is no contradiction
between the two. Eye witness account of the
incident produced by the prosecution is
reliable and trustworthy and also gets support
from the medical evidence. Weapons used in
the incident have been recovered at the
instance of the accused and recovery is also
proved
which
further
corroborates
the
prosecution case. So from evidence on record
the prosecution case stands proved. No
perversity or illegality in the findings recorded
by the trial court. Findings of conviction
recorded by trial court are liable to be upheld.
Sentence awarded is also appropriate and
needs no interference. Criminal appeal is
liable to be dismissed.(Para - 22)

Criminal Appeal dismissed. (E-7)

List of Cases cited:-

1. Abdul Sayeed Vs St. of M.P., (2010) 10 SCC
259

2. Jarnail Singh Vs St. of Pun., (2009) 9 SCC
719

3. Baleshwar Mahto Vs St. of Bihar, (2017) 2
SCC (crl.26)

4. Rajesh Singh Vs St. of U.P., (2011) 11 SCC
(page-144)