# Kalloo @ Ravi v. State of U.P

- **Citation:** (2021) 11 ILRA 1143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-23
- **Bench:** Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalloo-ravi-v-state-of-u-p-46520
- **Pages:** 7

## Headnote

Indian Penal Code, 1860 - Section 377,
Unnatural Offences - Protection of Children
from Sexual Offences Act, 2012 - Sections 3(A)
& 4 - Sentence - Modification - Trial court
convicted appellant & sentenced under Section
377 I.P.C. for a period of 10 years rigorous
imprisonment and under Section 4 POCSO Act
for a period of 10 years rigorous imprisonment
- Held - at the time of commission of offence
the convict was nearly 17 years of age -
medical report of the victim shows that he did
not sustain any physical injury and there was
no sign of physical violence on him - there is no
previous criminal history of the appellant -
minimum punishment for the offence under
Section 4 POCSO Act is provided for 7 years -
appellant served in jail for a period of more
than 7 years - Considering the age of the
appellant and the period he served in jail, court
took a liberal view - conviction is upheld and
the sentence under Section 377 I.P.C. and
under Section 4 POCSO Act is modified to
already undergone and in default of payment of
fine
appellant
is
to
undergo
additional
imprisonment for a period of two months in
each (Para 29, 30)

Partly Allowed. (E-5)

Cases Relied on:

## Text

11 All. Kalloo @ Ravi Vs. State of U.P.
1143
without authority of law. Further, it has been
observed by this court during pendency of petition
several orders of the court with regard to the
production of child and even to facilitate the
meeting of the mother with the child were flouted
over by the father. This is enough to show that
father not only has taken away the child illegally
from the custody of mother but also he had not left
any opportunity for the child to see his mother or
the mother to see her child. This conduct of the
father if taken with the facts of differences
between the husband and wife i.e., the mother of
the child by reason of which they are separately
residing and the fact that the F.I.R. under Sections
498-A, 336, 506 of I.P.C. and Section 3/4 of
Dowry Prohibition Act is lodged against father
with regard to cruelty in connection with the
demand of dowry and abduction of the child, there
is reason to believe that father in furtherance of his
malice towards mother will also make brain wash
of the child towards his mother that would not be
in the interest and welfare of the child. The mother
is competent enough to take care, maintenance and
upbringing of the child with the love and affection.
She deserves to have custody of the child
removing the same from the father.

85. In view of the above circumstances, the
writ of habeas corpus is required to be issued to
opposite party no.3 to produce the child before this
Court on 20.12.2021 for handing over the same to
the petitioner no.2 (mother), however, he will be at
liberty to get finally decided his rights of exclusive
custody as guardian by the family court or court of
Guardians and Wards Act which are competent to
declare the same in the welfare of the child on the
basis of evidences produced before the said courts.

86. Opposite party no.3 is directed to
produce the child in the court at 2:00 p.m. on
20.12.2021 for handing over the custody of the
child to the petitioner no.2 (mother). The order
regarding the visitation rights of opposite party
no.3 will be passed after the child is produced in
the court.

87. The opposite party no.2, S.H.O. Police
Station Aliganj, Lucknow is directed to ensure the
production of child alongwith opposite party no.3
in the court on the date fixed for implementation of
the order. The expenses for the journey with
companion if any deposited in the court pursuant
to the order dated 20.1.2021 still remains
unexhausted which shall be paid to the opposite
party no.3 by the Senior Registrar of the court after
handing over the child by the opposite party no.3
to petitioner no.2 (mother).

88. The instant writ petition of habeas corpus
is disposed of in the above said terms.

89. Office is directed to list for
implementation of the order on 20.12.2021.

90. The Senior Registrar of the court is
directed to promptly serve the copy of the
judgment to the opposite party no.3 in person in
addition to the service in ordinary process through
e-mail also and to the Superintendent of Police,
Dhanbad for facilitating the implementation of
order through his official Fax and e-mail.

91. The opposite party no.2, S.H.O., Police
Station Aliganj, Lucknow shall get copy of the
order promptly and constitute a police team to
recover the child with opposite party no.3, so as to
ensure the production of the child before the court
on the date of implementation.
----------
(2021)12ILR A1143
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.10.2021

BEFORE

THE HON'BLE SUBHASH CHANDRA SHARMA, J.

Criminal Appeal No. 5432 of 2017

Kalloo @ Ravi ...Appellant
Versus
State of U.P. ...Respondent
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Mithilesh Kumar Shukla, Sri Avanish Kumar
Shukla, Sri Shive Datta Yadav

Counsel for the Respondent:
A.G.A.

Indian Penal Code, 1860 - Section 377,
Unnatural Offences - Protection of Children
from Sexual Offences Act, 2012 - Sections 3(A)
& 4 - Sentence - Modification - Trial court
convicted appellant & sentenced under Section
377 I.P.C. for a period of 10 years rigorous
imprisonment and under Section 4 POCSO Act
for a period of 10 years rigorous imprisonment
- Held - at the time of commission of offence
the convict was nearly 17 years of age -
medical report of the victim shows that he did
not sustain any physical injury and there was
no sign of physical violence on him - there is no
previous criminal history of the appellant -
minimum punishment for the offence under
Section 4 POCSO Act is provided for 7 years -
appellant served in jail for a period of more
than 7 years - Considering the age of the
appellant and the period he served in jail, court
took a liberal view - conviction is upheld and
the sentence under Section 377 I.P.C. and
under Section 4 POCSO Act is modified to
already undergone and in default of payment of
fine
appellant
is
to
undergo
additional
imprisonment for a period of two months in
each (Para 29, 30)

Partly Allowed. (E-5)

Cases Relied on:

1. Mohd. Giasuddin Vs St. of AP AIR 1977 SC 1926

2. Sham Sunder Vs Puran (1990) 4 SCC 731

3. St. of M.P. Vs Najab Khan (2013) 9 SCC 509

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

5. Guru Basavraj Vs St. of Karn.(2012) 8 SCC 734

6. Deo Narain Mandal Vs St. of U.P. (2004) 7 SCC 257

7. Shyam Narain Vs State (NCT of delhi), (2013) 7
SCC 77
8. Sumer Singh Vs Surajbhan Singh (2014) 7 SCC 323

9. St. of Pun. Vs Bawa Singh (2015) 3 SCC 441

10. Raj Bala Vs St. of Har., (2016) 1 SCC 463

11. Kokaiyabai Yadav Vs St. of Chhattisgarh(2017) 13
SCC 449

12. Ravada Sasikala Vs St. of A.P. AIR 2017 SC 1166

13. Jameel Vs St. of UP (2010) 12 SCC 532

14. Guru Basavraj Vs St. of Karn., (2012) 8 SCC 734

(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. This criminal appeal has been filed
against the judgment and order dated 09.08.2017
passed by learned Additional Sessions Judge,
Court- 16, Kanpur Nagar in Special Session
Trial No.26 of 2014 (State of U.P. Vs. Kallu @
Ravi) arising out of Crime No.32 of 2014, under
Sections 377 I.P.C. and Section 3(A)/4 POCSO
Act, Police Station Kakadeo by which appellant
was convicted and sentenced under Section 377
I.P.C. for a period of 10 years rigorous
imprisonment with fine of Rs.20,000 and under
Section 4 POCSO Act for a period of 10 years
rigorous imprisonment with fine of Rs.20,000
and in default of payment of fine to undergo
additional simple imprisonment for a period of 2
years respectively.

2. Fact in brief are that informant Subodh
Kumar @ Guddu is resident of B-52, Rajapurwa
opposite to Ambedkar Park, Police Station
Kakadeo, District Kanpur Nagar. On 07.02.2014
at about 9:30 P.M. nephew of informant aged
about 8 years was playing
outside the house. Appellant took him into the
Ambedkar
Park
with
bad
intention
and
committed sodomy. Hearing shriek of the
victim, informant and his brother Manoj went
towards the park. Seeing them appellant fled
away by jumping the grill. On the same day a
11 All. Kalloo @ Ravi Vs. State of U.P.
1145
written tehrir was given at the police station
Kakadeo on the basis 2 of which F.I.R. was
lodged at about 10:30 P.M.

3. Majrubi chitthi was prepared in the
police station and victim was sent to L.L.R.
Hospital for medical examination.

4. Medical examination was done by
Medical Officer, L.L.R. Hospital, Kanpur Nagar
on 08.02.2014 at about 1:15 P.M. Detail of
which is as under :-
'

(I) Anal mucosal tears present on interior
and posterior wall of anus at 12 O'clock and 6
O'clock position, fresh bleeding coming out
during pushing of anal wall in opposite
direction.

(II) Yellowish white material present on
anal opening. Slide prepared for examination of
semen/spermatozoa and handed over to the
police.

(III) Opinion :- patient admitted u/o of Dr.
Pawan
Singh
for
expert
opinion
and
management as a case of sexual assault by male
partner. Injury no.1 caused by sodomy, fresh in
duration and kept under observation, slide
preparation
done
for
examination
of
semen/spermatozoa of yellowish while material
and handed over to police. On microscopic
examination of swab/slide smears were negative
for spermatozoa.

5. Investigation of the case was handed
over to S.I. Ramakant Dubey who took in
possession the clothes of victim, made spot
inspection, prepared site plan and recorded
statements of victim and of other witnesses. On
the material collected during the investigation he
prepared charge-sheet and submitted before the
court concerned.

6. The court concerned took cognizance of
the offences and in compliance of Section 207
Cr.P.C. necessary copies of police 3 papers were
given to the appellant.

7. On the basis of material on record
charge under Section 377
I.P.C. and Â3⁄4 POCSO Act was framed which
was read over and explained to the appellant
who did not plead guilty but denied and claimed
for trial.

8. In support of its case, prosecution
adduced PW-1 Subodh Kumar informant, PW-2
victim as witness of fact, PW-3 Constable
Satyendra Singh who prepared the F.I.R., PW-4
Dr. Vinay Kumar who examined the victim,
PW-5 S.I. Ramakant Dubey who investigated
the case and PW-6 Dr. Looba Khan the
pathologist, PW-7 Manoj (uncle of the victim) a
witness of fact.

9. After conclusion of prosecution
evidence statement of appellant under Section
313 Cr.P.C. was recorded in which he stated
about the incident to be false and the witnesses
deposing falsely. In defence he produced DW-1
Pradeep Yadav, DW-2 Sunil and DW-3 Radha.

10. After hearing the arguments made by
learned counsel for the appellant as well as
learned counsel on behalf of the State and on
perusal of record, learned trial court passed the
judgment and order dated 09.08.2017 while
convicting and sentencing the appellant as
aforesaid. Being aggrieved with the judgment
and order he has preferred this appeal.

11. Heard Sri Shive Datta Yadav, learned
counsel for the appellant as well as learned
A.G.A. for the State.

12 . Learned counsel for the appellant
submits that no independent witness was
examined by the prosecution whereas the
alleged incident took place in a park that is an
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
open public place. The medical report has also
not supported the prosecution 4 version, all the
witnesses are interested witnesses and close
relatives
of
the
victim.
No
semen
or
spermatozoa was found on the anus and on the
clothes of the victim during pathological
examination. In this way, the prosecution could
not prove it's case beyond reasonable doubt. The
judgment under challenge is against the facts on
record and also against the law. Without
considering these facts, the learned trial court
has awarded severe punishment to appellant.

13. At the outset, learned counsel for the
appellant confined his argument to the quantum
of sentence only without challenging the
impugned judgment and order on merits. He has
further submitted that as per statement of
appellant recorded under Section 313 Cr.P.C. his
age was 18 years at the time of recording the
statement on 04.06.2015 whereas the incident
took place on 07.02.2014, which shows that he
was aged about 17 years at the time of
occurrence. Considering the tender age of the
appellant, a liberal view may be taken by the
court. He has further submitted that appellant
remained in jail throughout the trial from the
date of incident and as such he has been in jail
for the last more than 7 years. Minimum
sentence provided under Section Â3⁄4 POCSO
Act is 7 years he, therefore, requested that
considering the period already served in the jail,
the sentence awarded to the appellant, may be
modified to the minimum as provided under the
Act.

14. He further submitted that learned trial
court has awarded separate sentence under
Section 377 I.P.C. and under Section 4 POCSO
Act whereas on the analogy of Section 42 of
POCSO Act accused be awarded sentence under
the law which provides greater punishment. In
view of this legal position learned trial court
might have awarded sentence either under
Section 377 I.P.C. or under Section 4 POCSO
Act.
5

15. Learned A.G.A. on behalf of the State
supported the impugned judgment and order of
learned trial court and submitted that victim is a
minor boy 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 offences under Section 377
I.P.C. & Section 4 POCSO Act. The appellant
deserves no leniency, hence appeal has no force
and is liable to be dismissed.

16. Section 3⁄4 of POCSO Act reads as
under:

Section 3: Penetrative sexual assault.-
A person is said to commit 'penetrative sexual
assault' if- (a) he penetrates his penis, to any
extent, into the vagina, mouth, urethra or anus
of a child or makes the child to do so with him
or any other person; or (b) he inserts, to any
extent, any object or a part of the body, not
being the penis, into the vagina, the urethra or
anus of the child or makes the child to do so
with him or any other person; or (c) he
manipulates any part of the body of the child so
as to cause penetration into the vagina, urethra,
anus or any part of body of the child or makes
the child to do so with him or any other person;
or (d) he applies his mouth to the penis, vagina,
anus urethra of the child or makes the child to
do so to such person or any other person.

Section 4: Punishment for penetrative
sexual assault.-Whoever commits penetrative
sexual
assault
shall
be
punished
with
imprisonment of either description for a term
which shall not be less than seven years but
which may extend to imprisonment for life, and
shall also be liable to fine.

17. Section 377 I.P.C. reads as under :-
11 All. Kalloo @ Ravi Vs. State of U.P.
1147

 377. Unnatural offences.- Whoever
voluntarily has carnal intercourse against the
order of nature with any man, woman or animal,
shall be punished with 1[imprisonment for life],
or with imprisonment of either description for a
term which may extend to ten years, and shall
also
be
liable
to
fine.
Explanation.-
Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in
this section.

18. Section 42 of POCSO Act reads as
under :-

42. Alternate Punishment:- Where an
act
or
omission
constitutes
an
offence
punishable under this Act and also under
sections 166A, 354A, 354B, 354C, 3540, 370,
370A, 375, 376, 376A, 376C, 3760, 376E or
section 509 of the Indian Penal Code, then,
notwithstanding anything contained in any law
for the time being in force, the offender found
guilty of such offence shall be liable to
punishment under this Act or under the Indian
Penal Code as provides for punishment which is
greater in degree.

19. Regarding submission made by learned
counsel for the appellant that on the analogy of
Section 42 of POCSO Act, the learned trial court
might have awarded sentence either under
Section 377 I.P.C. or under Section 4 POCSO
Act, which provides greater punishment, it is to
note that the offence mentioned under Section
42 of POCSO Act does not include offence
under Section 377 I.P.C., therefore, Section 42
of the Act cannot be taken recourse with, while
awarding sentence.

20. While dealing with the quantum of
sentence, it is expedient to go through the legal
position in this regard.

21. 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 re-culturization. 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."

22. In Sham Sunder vs Puran, (1990) 4
SCC 731, where the 7 high court reduced the
sentence for the offence under section 304 part I
into undergone, the supreme court opined that
the sentence needs to be enhanced being
inadequate. It was held:

"The court in fixing the punishment for
any
particular
crime
should
take
into
consideration the nature of offence, the
circumstances in which it was committed, the
degree of deliberation shown by the offender.
The
measure
of
punishment
should
be
proportionate to the gravity of offence."

23. In State of MP vs Najab Khan, (2013)
9 SCC 509, the high court, while upholding
conviction, reduced the sentence of 3 years by
already undergone which was only 15 days. The
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
supreme court restored the sentence awarded by
the trial court. Referring the judgments in
Jameel vs State of UP (2010) 12 SCC 532,
Guru Basavraj vs State of Karnatak, (2012) 8
SCC 734, the court observed as follows:

"In operating the sentencing system,
law should adopt the corrective machinery or
the deterrence based on factual matrix. 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. We also reiterate
that undue sympathy to impose inadequate
sentence would do more harm to the justice
dispensation system to undermine the public
confidence in the efficacy of law. It is the duty of
court to award proper sentence having regard
to the nature of offence and the manner in which
it was executed or committed. The courts must
not only keep in view the rights of victim of the
crime but also the society at large while
considering the imposition of appropriate
punishment."

24. Earlier, "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 proportionately. 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 8
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

25. In subsequent decisions, the supreme
court has laid emphasis on proportional
sentencing by affirming the doctrine of
proportionality. In Shyam Narain vs State (NCT
of delhi), (2013) 7 SCC 77, it was pointed out
that sentencing for any offence has a social goal.
Sentence is to be imposed with 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
realize that the crime committed by him has not
only created a dent in the life of the victim but
also a concavity in the social fabric. The purpose
of just punishment is that the society may not
suffer again by such crime. The principle of
proportionality between the crime committed
and the penalty imposed are to be kept in mind.
The impact on the society as a whole has to be
seen. Similar view has been expressed in 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.

26. In Kokaiyabai Yadav vs State of
Chhattisgarh(2017) 13 SCC 449, it has been
observed
that
reforming
criminals
who
understand their wrongdoing, are able to
comprehend their acts, have grown and nurtured
into citizens with a desire to live a fruitful life in
the outside world, have the capacity of
humanising the world.

27. 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 9
adopt corrective machinery or deterrence based
on factual matrix. Facts and given circumstances
in each case, nature of crime, manner in which it
11 All. Narendra Kumar Upadhyay Vs. State of U.P. & Ors.
1149
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.

28. 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 cannot endure
long and develop under serious threats of crime
and disharmony. Thus, the criminal justice
jurisprudence adopted in the country is not
retributive but reformative and corrective. It is
therefore, necessary to avoid undue leniency in
imposition of sentence. At the same time, undue
harshness should also be avoided keeping in
view the reformative approach underlying in our
criminal justice system.

29. In the present case at the time of
commission of offence the convict was nearly 17
years of age. It cannot be said that he was
mature and there is no possibility of reform in
him. The medical report of the victim shows that
he did not sustain any physical 10 injury and
there was no sign of physical violence on him.
There is no previous criminal history of the
appellant. The minimum punishment for the
offence under Section 4 POCSO Act is provided
for 7 years. The appellant has been in jail from
the outset. As such he served in jail for a period
of more than 7 years and there is no minimum
limit provided under Section 377 I.P.C.
Considering the age of the appellant and the
period he served in jail, this Court is of the
opinion that a liberal view should be taken on
sentence by reducing the term of imprisonment
already undergone by the appellant in this case
and for default in payment of fine he will
undergo additional imprisonment for a period of
two months for each.

30. Consequently, the conviction is upheld
and the sentence under Section 377 I.P.C. and
under Section 4 POCSO Act is modified to
already undergone and in default of payment of
fine he is to undergo additional imprisonment
for a period of two months in each.

31. With the above modifications, the
appeal is partly allowed.

32. Copy of this judgment alongwith
original record of Court below be transmitted to
the Court concerned for necessary compliance.
A compliance report be sent to this Court within
one month. Office is directed to keep the
compliance report on record.
----------
(2021)12ILR A1149
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2021

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Spl. Appl. No. 1601 of 2012

Narendra Kumar Upadhyay ...Appellant
Versus
State of U.P. & Ors. ...Respondents