# Jitendra @ Gabbar Jatav (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 1203
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-11
- **Case number:** Criminal Appeal No. 1701 of 2013
- **Bench:** Ramesh Sinha, Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-gabbar-jatav-in-jail-v-state-of-u-p-46761
- **Pages:** 14

## Headnote

Criminal Law-Indian Penal Code, 1860-
Section 376(1)- Rape of minor- Question
of sentence- The appellant has served
out minimum sentence of ten years for
the offence under Section 376(1) IPC -
The trial court convicted the appellant
for the offence under Section 376(1) IPC
for
life
imprisonment-
From
the
impugned judgement and order passed
by the trial court, it reveals that while
considering the quantum of sentence for
the offence in question it had gone
through the plight of the victim who was
a minor helpless girl against whom such
a heinous crime was committed by the
appellant who brutally subjected her to
rape and further ramifications of the
offence and it impact on the society has
been considered in great details- Court
has
to
take
balance
between
reformatory theory and principle of
proportionality.

Settled law that the quantum of punishment
depends upon the gravity and heinousness of
the offence, manner of its commission, its
effect upon the victim and impact upon the
society
and
entails
striking
of
balance
between the reformative and retributive
theory of punishment- Minor girl brutally
raped
by
the
accused
hence
sentence
awarded found to be just and proper.

Criminal Appeal accordingly rejected.
(E-2) (Para 33, 34)

Judgements/ Case law relied upon: -

## Text

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1 All. Jitendra @ Gabbar Jatav Vs. State of U.P.
1203
Section 302 IPC and granted the benefit to
the accused by converting his conviction
from Section 302 IPC to Section 304 Part I
IPC and sentenced hm to 10 years rigorous
imprisonment.

28. The last two case laws relied by the
learned counsel for the appellant relate to
offences under Section 302 IPC wherein it
was a case of a single blow. Although in the
present case also, the case is of a single knife
blow, but the same would stand on a different
footing as that of the said two cases as the
present case is of dowry death for which
consistent evidence of demand of dowry and
torture is on record.

29. It is not to be lost sight off that the
present case is a case of dowry death. The
motive for the offence is that of nonfulfillment of the demand of dowry. The death
is unnatural and within seven years of
marriage, to be more precise after 3-1/2 years
of marriage.

30. The Apex Court has in the case of
Hem Chand Vs. State of Haryana : (1994)
6 SCC 727 held that in a case under Section
304-B IPC, awarding extreme punishment of
imprisonment for life should be in rare cases
and not in every case.

31. In the present case the appellant has
been in jail since 23.08.2006 and has served
out about 14 years and 4 months (without
remission) and there is no special and rare
feature attracting maximum punishment.

32. We, accordingly while confirming
the conviction of the appellant under Section
304-B IPC sentence the appellant to 12 years'
(twelve years') rigorous imprisonment and
the sentence imposed by the trial court under
Section 304B I.P.C. is hereby set aside. The
other convictions and sentences passed by the
trial court are, however, confirmed.

33. In the result, the appeal is partly
allowed and the judgment of the trial court is
modified to the above extent.

34. The lower court record along with a
copy of this judgment be sent back
immediately to the trial court concerned for
compliance and necessary action.

35. The party shall file computer
generated
copy
of
such
judgment
downloaded from the official website of High
Court Allahabad before the concerned
Court/Authority/Official.

36. The computer generated copy of
such judgment shall be self-attested by the
counsel of the party concerned.

37. The concerned Court /Authority
/Official shall verify the authenticity of such
computerized copy of the judgment from the
official website of High Court Allahabad and shall
make a declaration of such verification in writing.
----------
(2021)01ILR A1203
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 1701 of 2013

Jitendra @ Gabbar Jatav
 ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Shivam Yadav, Sri Dinesh Kumar
Verma, Sri Rajesh Kumar Mishra

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

Criminal Law-Indian Penal Code, 1860-
Section 376(1)- Rape of minor- Question
of sentence- The appellant has served
out minimum sentence of ten years for
the offence under Section 376(1) IPC -
The trial court convicted the appellant
for the offence under Section 376(1) IPC
for
life
imprisonment-
From
the
impugned judgement and order passed
by the trial court, it reveals that while
considering the quantum of sentence for
the offence in question it had gone
through the plight of the victim who was
a minor helpless girl against whom such
a heinous crime was committed by the
appellant who brutally subjected her to
rape and further ramifications of the
offence and it impact on the society has
been considered in great details- Court
has
to
take
balance
between
reformatory theory and principle of
proportionality.

Settled law that the quantum of punishment
depends upon the gravity and heinousness of
the offence, manner of its commission, its
effect upon the victim and impact upon the
society
and
entails
striking
of
balance
between the reformative and retributive
theory of punishment- Minor girl brutally
raped
by
the
accused
hence
sentence
awarded found to be just and proper.

Criminal Appeal accordingly rejected.
(E-2) (Para 33, 34)

Judgements/ Case law relied upon: -

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

2. AIR 2013 Supreme Court 2209 Shyam
Narain Vs St. of NCT of Delhi (relied)

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present Criminal Appeal has
been preferred against the judgment and
order
dated
08.03.2013
passed
by
Additional Session Judge, Court No.6,
Etawah in S.T. No.55 of 2010 convicting
and sentencing the appellant to undergo
for life imprisonment under Section
376(1) IPC and to pay a fine of
Rs.20,000/- in default of payment of fine,
further
imprisonment
for
one
year
additional rigorous imprisonment.

2. The brief facts of the case are that
the informant Indrapal Singh Katheriya
submitted a written report at Police Station
Chaubiya, district Etawah on 23.12.2009
stating that his daughter who was aged
about 10 years and studying in class IVth
had gone to the gram field of Birendra
Singh Jatav, resident of Simariya who was
known to him for taking gram greens
(Chane Ka Saag) and while she was taking
the gram greens, the nephew of Birendra
Singh namely Jitendra @ Gabbar S/o
Rajendra Jatav committed rape on her. His
daughter came to her house crying and
informed about the entire incident to her
mother who in turn informed the informant
then the informant inquired from his
daughter who told him that Jitendra had
dragged her from gram field to mustered
field where he committed rape on her. The
incident has taken at 1 p.m. in the
afternoon. On the basis of written report
submitted at police station Chaubiya Case
Crime No.231 of 2009 under Section 376
IPC was registered on 23.12.2009 at 17.45
hours against the appellant Jitendra @
Gabbar Jatav which was also endorsed in
the G.D. No.19 time 17.45 hours on
23.12.2009 at the said police station.

3. In view of the legislative mandate
as contained in Section 228-A of the Indian
Penal Code and the observation made by
1 All. Jitendra @ Gabbar Jatav Vs. State of U.P.
1205
the Apex Court in it's catena of judgments,
the identity of the prosecutrix/victim is not
being disclosed and she is referred to as 'A'
hereinafter.

4. The investigation of the case was
entrusted to the Investigating Officer who
prepared a site plan of the place of
occurrence and took the clothes of the
prosecutrix/victim "A" (hereinafter referred
as the prosecutrix/victim "A") and prepared
the recovery memo of the same. The
emergency
doctor
Jyotsana
Bhatiya
conducted the medical examination of the
victim
girl
and
Dr.
Dinesh
Singh,
Radiologist conducted the ossification test
of the victim girl. After completing the
investigation of the case the Investigating
Officer submitted a charge sheet against the
appellant Jitendra @ Gabbar Jatav under
Section 376 IPC before the competent
court.

5. The learned Magistrate took the
cognizance of the offence and committed
the case to the court of Sessions. The
learned trial court framed charges against
the appellant Jitendra @ Gabbar Jatav
under Section 376 IPC who denied the
same and claimed trial.

6. The prosecution in support of it's
case produced P.W.1 prosecutrix/victim
"A", P.W.2 Indrapal, P.W.3 Smt. Shiv
Kumari, P.W.4 Dr. Jyotsana Bhatiya,
P.W.5 Sub-Inspector Dharampal Singh
(Investigating Officer), P.W.6 Constable
Clerk Tilak Singh, P.W.7 Alok Prabhakar
Awasthi 2nd Investigating Officer, P.W.8
Constable Clerk Roshan Lal and P.W.9 Dr.
Dinesh Singh Radiologist.

7. The statement of the accused was
recorded u/s 313 Cr.P.C who denied the
prosecution case and has stated that the
police has falsely implicated him in the
present case and the witnesses have falsely
deposed against him and on the date of the
incident he had gone to the house of his
maternal uncle at Mainpuri. It was further
stated by him that Sunil, Rambabu, Pappu,
Ashok, Durgpal, Raj Bahadur, Bhanwarpal
had grabbed his land due to said enmity in
collusion with the Village Pradhan the
appellant has been falsely implicated in the
present case.

8. The accused in his defence has
produced
D.W.1
Nand
Ram,
D.W.2
Rajeshwar Dayal and D.W.3 Dr. Ravindra
Kumar Gupta.

9. The prosecutrix/victim "A" in her
deposition before the trial court has stated
that she had gone from her house to a field
where she was all alone while taking gram
greens (chane ka saag), the accused
Jitendra @ Gabbar Jatav suddenly came
there and squeezed her mouth and further
put a country-made pistol on her and
slapped her and threatened her that if she
raise any alarm she would be killed by
country-made pistol. Thereafter he carried
her forcibly to a mustered field and put off
her clothes and sat on her and committed
rape on her. Blood started oozing from her
vagina
and
it
also
pained.
While
committing rape on her, the accused had
pressed her mouth. The incident has taken
place at 1 p.m. in the afternoon and while
he was committing rape, ''Shit' (faecal
matter) of the victim also came out.

10. The accused told her to go and
attend
call
of
nature.
The
prosecutrix/victim "A" came to her house
and narrated the entire incident to her
mother. At the time of the incident her
father had gone on work. Her father had
took her to the police station where he
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
lodged the FIR and on the same day she
was sent to the district hospital by the
police where she was medically examined.
She was admitted in the District Hospital
Etawah. The Investigating Officer had
recorded her statement and inquired about
the incident.

11. The P.W.2 Indrapal who is the
informant and father of the victim had stated
before the trial court that at the time of the
incident the age of the victim was ten years
and she was studying in class 4th. She had
gone to village Simariya in the field of
Birendra Singh Jatav for taking chaney ka
saag where the nephew of Birendra Singh
Jatav
had
committed
rape
on
prosecutrix/victim "A". After the incident his
daughter came to her house crying and
narrated the entire incident to her mother. His
wife had informed about the incident and
thereafter the witness inquired about the same
from his daughter who reiterated the version
which has been given by her in the FIR as
well as before the trial court. Thereafter this
witness took his daughter to the police station
Chaubia and got the report written from one
Anoj Kumar of his village and gave the same
at the said police station. Anoj Kumar had
written the report on the dictation given by
P.W.2 Indrapal which was read over to him
and he put his signature on the same on the
basis of which the FIR was registered against
the accused appellant. The witness has
proved paper no.5 Ka to be the written report
which he he got written by Anoj Kumar and
identified his signature on the same and he
proved the said report as Ext. Ka-1. He
deposed that the incident had taken place at 1
p.m. in the afternoon. The incident was
narrated by the prosecutrix/victim "A" to him
which he got written in the report.

12. P.W.3 Smt. Shiv Kumari who is
the mother of the prosecutrix/victim "A"
(P.W.1) has deposed before the trial court
that her daughter was studying in class 4th.
At about 10 a.m. in the morning her
daughter had gone to the field of Birendra
Singh Jatav for taking gram greens (chane
ka saag) and when she did not return then
she sent her husband to search her out and
when her husband had gone to search her
daughter, then her daughter was coming
from the field. When her daughter came to
her house, her clothes were blood-stained
and she was crying and told her that when
she had gone to take gram greens (chane ka
saag) then accused Jitendra @ Gabbar Jatav
came there and pressed her mouth in the
mustard field and committed rape on her.
Blood was oozing out from her private
parts and she tried to console her and put
the clothes etc. for stopping blood. She
informed her husband as has been told by
her daughter the prosecutrix/victim "A".
Her husband had gone to trace out accused
Jitendra @ Gabbar in the field but he was
not there. Thereafter her husband had gone
to the concerned police station for lodging
the FIR. She also had accompanied her
husband
along
with
her
daughter
prosecutrix/victim "A". Besides them her
father-in-law Subedar and Sister-in-law had
also gone to the police station. After the
registration of the FIR the police had sent
all of them including her daughter to the
District Hospital, Etawah for medical
examination where the same was conducted
and
for
medical
treatment
prosecutrix/victim "A" was admitted. Her
X-Ray was also conducted on the next day.
There was no enmity between the accusedappellant Jitendra @ Gabbar Jatav with his
family prior to the incident.

13. The Investigating Officer has
recorded her statement under Section 161
Cr.P.C. Her daughter remained in the
hospital for about 10 to 11 days.
1 All. Jitendra @ Gabbar Jatav Vs. State of U.P.
1207

14. P.W.4 Dr. Jyotsana Bhatiya was
examined by the trial court and she deposed
that on 23.12.2009 she was posted at
women hospital as a medical officer. She
examined the prosecutrix/victim "A" at
10.30 p.m. and she was brought by
constable Anar Singh and C.P.M Constable
Shiv Kumari. She has proved the medical
examination
report
of
the
prosecutrix/victim "A" as Ext. Ka-2 which
was in his handwriting and signature. On
medical examination she found following
injuries
on
the
person
of
the
prosecutrix/victim "A".

"Height 127 cm, weight 20 kg,
teeth 12/12. No mark of injury on external
surface of body. Breasts not developed.
Pubic axillary hair not developed."

The witness on the internal
examination of the prosecutrix/victim "A"
found that her hymen was torn and it was
bleeding. There was blood clot and vagina
admits one finger and after removing the
blood clot, vaginal smear was taken and
sent to pathological report. There was
perennial tear at 6 ''O' clock position which
was stitched laceration on lateral vaginal
wall."

15.

She
also
prepared
a
supplementary medico legal report of the
prosecutrix/victim "A" on the same day and
has proved the same as Ext.Ka-3, which is
reproduced as under:-

"A black mole on left side of
abdomen 7 cm. away from umbilicus.

Pathology
report-
Given
by
pathologist
District
Hospital
Etawah
No.89, dated 24.12.2009 No alive or dead
Spermatozoa seen.

Radiology
report-
Given
by
radiologist
District
Hospital
Etawah
No.1004/09 dated 24.12.2009.

X-Ray Elbow A.P- Epiphyses of
elbow joint are not fused.

X-Ray Wrist Joint A.P- Epiphyses
of lower and of radius, ulna and 1st
metacarpal
not
fused
Plsiform
not
appeared.

X-Ray Knee joint- Epiphyses of
knee joint are not fused.

Opinion- Injury is simple and
caused by insertion of some hard and blunt
object. Duration of injury about 24 hours.
The age of the girl is below 11 years."

16. As per pathological report no.89
dated 24.12.2009, there was no live or dead
Spermatozoa was found. As per X-Ray
report bones of elbow, wrist and knee were
not found to be fused. As per opinion of the
doctor, the injuries sustained on the internal
examination injury was found to be simple
and caused by insertion of hard and blunt
object and duration of the injury was 24
hours. The age of the prosecutrix/victim
"A" was below 11 years and she further
stated that the said injuries could be caused
on 23.12.2009 in the afternoon at 1 p.m.
She further deposed that if a male person
aged about 22 to 25 years commits rape on
a girl then the injury which has been caused
to the prosecutrix/victim is possible. She
has proved the supplementary report which
is paper no.9 Ka/3 as Ext.Ka-3. The
prosecutrix/victim "A" was admitted in the
district hospital for medical examination as
her wounds were stitched.

17. P.W.5 S.I. Dharmpal Singh in his
deposition before the trial court has stated
that he was posted on 23.12.2009 at P.S.
Chaubia on the post of Sub-Inspector. On
the said day the FIR was registered on the
written report submitted by the informant
Indrapal Singh against Jitendra @ Gabbar
Jatav which was registered as Case Crime
No.231 of 2009 under Section 376 IPC.
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
The investigation of the said case was
entrusted to him. He recorded the statement
of the informant Indrapal Singh at village
Beena who met him at his house and at the
pointing out of the informant, he visited the
place of occurrence and prepared the siteplan in his handwriting and signature and
proved the same as Ext.Ka-4. He also
recorded the statement of the persons of the
nearby field. The said Investigating Officer
was transferred, hence the investigation
was entrusted to P.W.7 S.I. Alok Prabhakar
Awasthi thereafter.

18. P.W.6 Constable Clerk Tilak
Singh has stated that on 24.12.2009 he was
posted at police station on the said post. On
the said date Constable Anar Singh and
woman constable Shiv Kumari has handed
over underwear of blue colour, one white
salvar (terricot), one kurta green and one
piece of old saari and one piece of white
clothe which was torned and blood stained
were found on the same were submitted at
the police station which was sealed in a
bundle as the same was police property
which he prepared in his handwriting and
signature and also prepared recovery memo
of the same and proved the same as
material Ext.-1 which was opened in the
court and was again proved as material Ext.
2 to 6 and the same was thereafter sent to
Vidhi Vigyan Prayogshala, Agra for
Chemical analysis report.

19. P.W.7 Alok Prabhakar Awasthi
who was produced before the trial court has
stated that on 27.12.2009 he was posted at
police station Chaubia on the post of SubInspector and on the said date, he had taken
over the investigation of the case from the
earlier Investigating Officer S.I. Dharmpal
Singh who was transferred. He recorded the
statement of the accused Jitendra @ Gabbar
Jatav on 27.12.2009 and further recorded
the statement under Section 161 Cr.P.C. of
Smt. Shiv Kumari. He also recorded the
statement of other witnesses under Section
161 Cr.P.C. including Dr. Jyotsana Bhatiya
and thereafter submitted the charge sheet
against the accused-appellant under Section
376 IPC and proved the same as Ext.Ka-6.
He also received the report of the Vidhi
Vigyan Prayogshala on 26.3.2010 which is
on record as paper no.33 Ka/1. According
to the chemical analysis report on material
Ext.1 underwear Spermatozoa was found
and on the underwear, salvar, kurta and
piece of cloth which was material Ext.1 to
4 human blood was found and in material
Ext.1 human semen was found and he has
proved the chemical analysis report as Ext.
Ka-7.

20. P.W.8 Constable Clerk Roshan
Lal has stated that while he was posted at
police station Chaubia on the said post on
23.12.2009, the informant Indrapal Singh
on the said day had submitted a written
report
against
the
accused-appellant
Jitendra @ Gabbar Jatav on the basis of
which the present case was registered under
Section 376 IPC and he has prepared the
Chik FIR in his handwriting and signature
and proved the same as Ext.Ka-8. He
further endorsed the said FIR in the G.D
No.19 at 17.45 hours on 23.12.2009 in his
hand and signatures. A carbon copy of the
same which is on record and proved the
same as Ext.Ka-9.

21. P.W.9 Dr. Dinesh Singh, has
stated before the trial court that on
24.12.2009 he was posted on the post of
Radiologist in the District Hospital Etawah
and on the said date, he conducted the XRay of the prosecutrix/victim "A" who was
brought by woman constable Shiv Kumari
and constable Amar Singh of police station
Chaubia and on X-Ray report following
1 All. Jitendra @ Gabbar Jatav Vs. State of U.P.
1209
features were noticed which are reproduced
here under

"(ossification test): X-Ray Elbow
A.P- Epiphyses of elbow joint are not fused.

X-Ray Wrist joint A.P- Epiphyses
of lower end of radius, ulna and Ist
Metacarpal not fused. Dissiform not
appeared.

X-Ray right knee joint A.P-
Epiphyses and knee joint are not fused."

22. He has proved the same as
Ext.Ka-10
in
his
handwriting
and
signatures. The X-Ray plates have been
marked as material Ext.1.

23. The accused-appellant in his
defence has produced three witnesses in
support of his case i.e. D.W.1 Nand Ram,
D.W.2 Rajeshwar Dayal and D.W.3 Dr.
Ravindra Kumar Gupta.

24. D.W.1 Nand Ram has stated
before the trial court that adjacent to his
field there is a field of Dayaram, Birendra,
Rajesh and Visheshwar in which there is
crop of Potato, Onion and Garlic. On
23.12.2009 when he was working on his
Garlic field, there were five other labours
working with him. The water engine in the
field of Birendra was running because of
which the water was coming in the field of
Garlic and nearby persons Gangaram,
Visheshwar, Rajeshwar and Shyam Babu
were also there and there was agricultural
work going on in their field and in the said
field also there were 25 labours working.
From 6 a.m. to 6 p.m. he was working in
his field and others were also present till
the evening in the field. They had taken
their lunch in the field and in the nearby
area, there was no field of Mustard. From 6
a.m. till 6 p.m. in the evening the daughter
of Indrapal had not come to the field of
Birendra Singh. In the field of Birendra
Singh, there was crop of Garlic. Jitendra @
Gabbar Jatav had gone to his maternal
uncle four days prior to the incident and
was not present at village Simariya. The
plot of the father of Jitendra which was in
village Beena was grabbed by Dragpal
Singh and others with the help of the
informant Indrapal Singh and the said
persons have falsely implicated the accused
Jitendra @ Gabbar Jatav after bribing the
police. The Village Pradhan has also given
a plot to the informant Indrapal as an
allurement and thereafter the said plot was
also allotted in the name of informant
Indrapal. In the evening he heard that
daughter of Indrapal had gone to the field
of Arhar where she received injuries on her
private part. The accused Jitendra @
Gabbar is innocent and he has been falsely
implicated in the present case due to deep
rooted conspiracy.

25. D.W.2 Rajeshwar Dayal has
stated before the trial court that his
agricultural field is near the field of
Dayaram and he too reiterated the version
given by D.W.1.

26. D.W.3 Dr. Ravindra Kumar Gupta
in his deposition before the trial court has
stated that on 27.12.2009, he was posted on
emergency duty in District Hospital Etawah
and at 3.30 p.m. Constable Mohar Singh
and Constable Shiv Prakash of police
station Chaubia had brought the accusedappellant Jitendra @ Gabbar Jatav aged
about 18 years for medical examination. In
the medical examination he did not find
any injuries on his private part and there
was no Spermatozoa or blood found on his
person who had not weared any underwear
which could also be examined. He was
referred to the pathologist for smear
examination on the basis of chitthi
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
majroobi his medical examination report
was prepared which was brought by
constable Shiv Prakash which is on record.
He had stated about the age of accusedappellant Jitendra @ Gabbar to be 18 years
of his appearance and that can be a margin
of 1-1/2 years plus and minus. He stated
that the opinion about the age is given by
the CMO on the basis of an X-Ray report.
He has identified the appellant before the
court. He has produced the original register
of the medical examination before the trial
court as paper no.16-Kha/1 and proved the
same as Ext.Kha-1.

27. The trial court after scanning the
prosecution as well as defence evidence
came to a conclusion that it was the
appellant who had committed rape on the
prosecutrix/victim "A" and has convicted
and sentenced him under Section 376(1)
IPC for life imprisonment. Aggrieved by
the impugned judgement and order, the
appellant has preferred the instant appeal.

28. Heard Sri Rajesh Kumar Mishra,
learned counsel for the appellant and Mrs.
Archana Singh, learned AGA for the State
and perused the record.

29. The learned counsel for the
appellant has confined his argument and
addressed the Court only on the question of
sentence. He argued that the appellant has
served out minimum sentence of ten years
for the offence under Section 376(1) IPC as
he is in jail for last eleven years since
27.12.2009 and be released on this count.
He submitted that the maximum sentence
which has been provided by the trial court
for the offence under Section 376(1) IPC
for life imprisonment is too severe and
should be set-aside and the appellant be
released to the period already undergone. In
support of his argument he has placed
reliance on the judgement of the Apex
Court in the case reported in 2012 (1) All
JIC 319 Bavo @ Manubhai Ambalal
Thakore Vs. State of Gujarat wherein The
Apex Court has considered the question of
sentence where the said accused was
sentenced to life imprisonment by the trial
court which was maintained by the High
Court and the accused was released as he
had served out minimum sentence of 10
years where the victim was 7 years old
minor girl.

30. The learned AGA on the other
hand has vehemently opposed the argument
of learned counsel for the appellant on the
question of sentence and has argued that
the present case is a case where a minor girl
aged about 10 years was subjected to rape
by the appellant and the prosecution has
further proved it's case beyond reasonable
doubt
against
the
appellant
for
his
conviction under Section 376(1) IPC and
the trial court has rightly convicted him and
sentenced for life imprisonment for the said
offence and it has also categorically given
cogent reason for awarding sentence of life
imprisonment to the appellant which does
not call for any interference by this Court
and the appeal may be dismissed by this
Court. She in support of her argument has
placed reliance of a judgement of the Apex
Court reported in AIR 2013 Supreme
Court 2209 Shyam Narain Vs. State of
NCT of Delhi has stated that the
proposition of law for imposition of
sentence in offence of rape has been dealt
by the Apex Court considering the impact
of such offences on the society as a whole
and
its
ramifications
on
immediate
collection as well as reparations on the
victim. She pointed out that in the said case
the victim girl was eight years who narrated
the incident and the threat given to her by
the accused. The deposition of
the
1 All. Jitendra @ Gabbar Jatav Vs. State of U.P.
1211
prosecutrix corroborated by testimony of
treating physician and medical evidence
conviction of the accused was upheld by
the Apex Court and further the sentence
awarded to him for life imprisonment by
the trial court, upheld by the High Court
and confirmed by the Apex Court.

31. The learned counsel for the
appellant fairly states that he is not
challenging the conviction but questioning
the question of sentence only and State has
opposed the argument of learned counsel
for the appellant on the quantum of
sentence in view of the limited submissions
we deem it that there is no need to go into
the finding regarding the conviction under
Section 376(1) IPC and the only question to
be considered is whether the sentence of
life imprisonment and fine of Rs.20,000/- is
reasonable or excessive. Section 376
speaks about the punishment for rape. SubSection 2(F) makes it clear that who ever
commits rape on a women under ten years,
shall be punished rigorous imprisonment
for a term which shall not be less than ten
years but which may be for life and shall
also be liable to fine. Proviso appended to
Sub-Section (2) makes it clear that the
Court may, for adequate and special
reasons to be mentioned in the judgement
impose a sentence of imprisonment of
either descriptions for a term of less than
ten years. It is clear from the above
statutory provision that for the offence of
rape on a girl under twelve years of age,
punishment shall not be less than ten years
but which may extend to life and also to
fine shows that the legislature intended to
adopt strictness in awarding sentence if the
victim is below twelve years of age. No
doubt, the provision of Section 376(2) IPC
lays down that the Court may, for adequate
and special reason to be mentioned in the
judgement,
impose
a
sentence
of
imprisonment of either description for a
term of less than ten years, it is settled law
that
Courts
are
obliged
to
respect
legislative mandate in the matter of
awarding of sentence in all such cases. In
the absence of any special and adequate
reasons, recourse to proviso mentioned
above cannot be applied in casual manner.

32. Thus in the light of the above
mandate of law we proceed to consider the
argument of learned counsel for the appellant
regarding the quantum of sentence awarded
to the appellant for the offence for which he
has been convicted i.e. under Section 376(1)
IPC. It is evident from the prosecution case
that the prosecutrix/victim "A" was aged
about ten years at the time of incident and she
was studying in class 4th. While she had gone
in the field of one Birendra Singh Jatav for
taking gram greens (chane ka saag) then the
appellant Jitendra @ Gabbar Jatav suddenly
came and dragged the deceased towards the
mustard field by pressing her mouth and
committed rape on her. The medical evidence
of the prosecutrix/victim "A" shows that her
hymen was torn which was also bleeding,
vagina admits one finger, smear was taken
perennial tear at 6 ''O' clock position which
was stitched, lacerations present on the lateral
vaginal wall. As per the supplementary
medical report of the prosecutrix/victim "A",
she was also found to be below 11 years of
age. On her underwear spermatozoa was
found where on her clothes i.e. underwear,
salvar, kurta and piece of clothe blood stains
were found. The prosecutrix/victim "A" in
her deposition before the trial court has
categorically stated that it was the appellant
who had committed rape on her and she after
the incident went crying and informed her
mother P.W.3 Smt. Shiv Kumari about the
entire incident who further informed her
husband i.e. P.W.2 Indrapal on which the
P.W.2 immediately lodged an FIR of the
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
incident on the same day at 7.45 hours. As
per prosecution case the incident has taken
place on 23.12.2009 at 1 p.m. in the
afternoon which is 16 km. away from the
place of occurrence. It is further noteworthy
to mention here that the prosecutrix/victim
"A" in her deposition before the trial court
has stated that because of the rape being
committed by the appellant, she felt pain in
her private part and her faecal matter also
came out and the accused told her to go and
attend the call of nature. The appellant had
led evidence in defence showing his false
implication in the present case on account of
the fact that 10 to 14 years back, he had left
the village because some people of the village
namely Drag Pal, Sunil, Rambabu, Pappu and
Raj Bahadur had grabbed the plot of his
father on account of which in collusion with
the village Pradhan the appellant has been
falsely implicated in the present case. The
appellant has further taken a defence that he
was not present at the time time and place of
the occurrence as he was at Mainpuri and
gone to the house of his maternal uncle. In
this regard he has produced the defence
witness D.W.1 and D.W.2 and further D.W.3
Doctor Ravindra Kumar Gupta who had
examined the appellant. When the appellant
was brought on 27.12.2009 by the police
constable in the present case and he did not
find any injuries on the private part of the
appellant and no Spermatozoa or blood was
found on his person. He was not wearing any
underwear which could be taken for
examination. The appellant was examined on
the basis of Chitthi Majroobi brought by the
two constables. The appellant was aged about
18 years as per the said Doctor. The defence
taken by the appellant was rightly rejected by
the trial court giving sound reasons.

33. The suggestion was also given by
the defence to the victim that she received
some injury on her private part due to fall
on a pointed substance in the Arhar field
which she has categorically denied and has
stated that it was the appellant who has
committed rape on her. It has come in the
evidence of P.W.2 Indrapal and P.W.3 Smt.
Shiv Kumari who are the father and mother
prosecutrix/victim "A" that they had no
enmity prior to the incident with the
appellant. The defence witnesses i.e. P.W.1
Nand Ram and D.W.2 Rajeshwar Dayal
were disbelieved by the trial court on the
ground that the two defence witnesses were
the uncle of the appellant and they had just
given evidence to save the appellant from
the present case. The evidence of P.W.4 Dr.
Jyotsana Bhatiya who has examined the
prosecutrix/victim "A" has categorically
stated before the trial court that the nature
of
injury
sustained
by
the
prosecutrix/victim "A" on her private part
could be caused by hard and blunt object
i.e. of erect of penis and if a person of 20 to
25 years commits such an offence against a
victim till such injury as has been received
by the prosecutrix/victim "A" is quite
possible. She has further stated that the
victim was admitted in the hospital as her
wounds were stitched and she remained in
the hospital for about 10 to 11 days. The
injuries found on the prosecutrix/victim
"A" was fresh one. She further denied the
suggestion given by the defence that the
victim could have received injuries on
account of fall on a pointed wood. She
identified the victim of whose medical
examination she conducted after the
incident. Thus the trial court arrived at a
conclusion convicting the appellant for the
offence under Section 376(1) IPC for life
imprisonment.
From
the
impugned
judgement and order passed by the trial
court, it reveals that while considering the
quantum of sentence for the offence in
question it had gone through the plight of
the victim who was a minor helpless girl
1 All. Jitendra @ Gabbar Jatav Vs. State of U.P.
1213
against whom such a heinous crime was
committed by the appellant who brutally
subjected
her
to
rape
and
further
ramifications of the offence and it impact
on the society has been considered in great
details. The judgement cited by the learned
counsel for the appellant in the case of
Bavo @ Manubhai Ambalal Thakore Vs.
State of Gujarat (Supra) wherein the
Apex Court considered the quantum of
sentence has considered that the award of
life imprisonment which is maximum
prescribed is not warranted taking into
account that the accused was aged about
18/19 years and the incident has occurred
nearly ten years ago and awarded him
sentence of ten years R.I and further
considered the imposition of fine of
Rs.20,000/- by the trial court which was
reduced to Rs.1,000/- as the accused belong
to poor family and working as agricultural
labour was not in a position to pay such
huge amount and, therefore, the present
appellant is also entitled to be sentenced for
ten years R.I as he had already undergone
eleven years in jail as stated to be in jail
since 27.12.2009.

34. We have very humbly considered
the judgement of the Apex Court as has
been cited by the learned counsel for the
appellant but we cannot lose sight of
another judgement of the Apex Court as
has been relied upon by the learned AGA
in the case of Shyam Narayan Vs. State of
NCT Delhi (Supra) where the victim girl
was aged about eight years and the Apex
Court confirmed the conviction of the said
accused for the offence under Section
376(2) (F) IPC by the trial court which
sentenced him for life imprisonment and
High Court also upheld the said sentence
imposed by the trial court and further the
Apex Court confirmed the said sentence of
life imprisonment on the said accused
observing that sentencing has a social goal
awarding just sentence is complex exercise.
Court has to take balance between
reformatory
theory
and
principle
of
proportionality. While considering the
quantum of sentence in the said case, the
Court has very widely considered various
aspects of the matter such as the plight of
the victim, social ramifications of the
offence on the society. In this regard it
would be not out of place to mention to
quote paragraphs 11, 12, 13, 14, 15, 17, 18,
19, 20, 21 of the said judgement which are
reproduced here as under:-

11. Primarily it is to be borne in
mind that sentencing for any offence has a
social goal. Sentence is to be imposed
regard being had to the nature of the
offence and the manner in which the
offence
has
been
committed.
The
fundamental purpose of imposition of
sentence is based on the principle that the
accused must realise that the crime
committed by him has not only created a
dent in his life but also a concavity in the
social
fabric.
The
purpose
of
just
punishment is designed so that the
individuals in the society which ultimately
constitute the collective do not suffer time
and again for such crimes. It serves as a
deterrent. True it is, on certain occasions,
opportunities may be granted to the convict
for reforming himself but it is equally true
that
the
principle
of
proportionality
between an offence committed and the
penalty imposed are to be kept in view.
While carrying out this complex exercise, it
is obligatory on the part of the Court to see
the impact of the offence on the society as a
whole
and
its
ramifications
on
the
immediate collective as well as its
repercussions on the victim.

12. In this context, we may refer
with profit to the pronouncement in Jameel
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
v. State of Uttar Pradesh[1], wherein this
Court, speaking about the concept of
sentence, has laid down that 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."

13. In Shailesh Jasvantbhai and
another v. State of Gujarat and others[2],
the Court has observed thus:

"Friedman
in
his
Law
in
Changing Society stated that: "State of
criminal law continues to be - as it should
be
-a
decisive
reflection
of
social
consciousness of society." Therefore, 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".

14. In State of M.P. v. Babulal[3],
two learned Judges, while delineating about
the adequacy of sentence, have expressed
thus : -

"19. Punishment is the sanction
imposed
on
the
offender
for
the
infringement of law committed by him.
Once a person is tried for commission of an
offence and found guilty by a competent
court, it is the duty of the court to impose
on him such sentence as is prescribed by
law.
The
award
of
sentence
is
consequential
on
and
incidental
to
conviction. The law does not envisage a
person being convicted for an offence
without
a
sentence
being
imposed
therefore.

20.