# Mohd. Rehan v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1256
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-03
- **Case number:** Criminal Appeal No. 5897 of 2019
- **Bench:** Ashwani Kumar Mishra, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-rehan-v-state-of-u-p-ors-51789
- **Pages:** 8

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 452, 377 & 506 - Protection of
Children from Sexual Offences Act, 2012 -
Section 3/4 - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3(2)(v) -
Code of Criminal Procedure, 1973 -
Sections 313, 374(2) & 437A - Criminal
Appeal Against Conviction and Sentence -
House Trespass - Unnatural Offence - Criminal
Intimidation - Sexual Assault on Minor - SC/ST
Atrocities - Eye-Witness Testimony - Medical
Evidence - Forensic Evidence - Motive -
Reformative
Punishment
-
Doctrine
of
Proportionality
The appellant, Mohd. Rehan, challenged the
judgment dated 26.07.2019 by the First
Additional Session Judge/Special Judge (POCSO
Act), Kaushambi, in Sessions Trial No. 125 of
2016, convicting him under Section 452 IPC (5
years imprisonment, Rs. 5,000 fine), Section
377 IPC (10 years imprisonment, Rs. 10,000
fine), Section 506 IPC (2 years imprisonment,
Rs. 2,000 fine), Section 3/4 POCSO Act (12
years imprisonment, Rs. 12,000 fine), and
Section 3(2)(v) SC/ST Act (life imprisonment,
Rs. 15,000 fine), with 2 months additional
imprisonment for default of fine, all sentences to
run concurrently. The prosecution alleged that
on 20.08.2016, the appellant lured the 11-yearold male victim into a house under the pretext
of offering toffee, committed an unnatural
offence, and threatened the informant (PW-1,
victim's mother) with a knife. The FIR was
lodged on 21.08.2016, supported by PW-1, PW3 (victim), and medical evidence showing anal
injuries. Held: (1) The appeal was partly
allowed, setting aside the conviction under
Section 3(2)(v) SC/ST Act and modifying the
sentence under Section 377 IPC to the period
undergone. (2) No evidence established that the
offence was committed due to the victim's
Scheduled Caste identity or that the appellant
knew of it, rendering the SC/ST Act conviction
unsustainable. (3) PW-1 and PW-3's consistent
testimonies, corroborated by medical evidence
of anal redness and a tear, confirmed the
unnatural offence under Section 377 IPC and
POCSO Act. (4) Minor discrepancies in the place
of occurrence (informant's house vs. accused's
house) were overlooked due to the victim's
young age (10-11 years). (5) The inconclusive
FSL report on DNA evidence did not negate the
prosecution case, as oral and medical evidence
sufficed. (6) Considering the appellant's lack of
prior
criminal
history,
over
8
years
of
incarceration
with
remission,
and
the
reformative theory of punishment, the sentence
under Section 377 IPC was modified to the
period undergone, with fines sustained.

List of Cases cited:

## Text

1256 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction and sentence in Session Trial
No. 98 of 2017, arising out of Case Crime
No. 2246 of 2016 (State Vs. Shama and
others) under Section 302 read with 149
Cr.P.C., is set aside. Since the appellants
are in jail, they shall be released forthwith
and shall be set free, unless are wanted in
any other case, subject to compliance of
Section 437A Cr.P.C.

44. Copy of this judgment shall be
communicated
to
the
Chief
Judicial
Magistrate concerned as also the concerned
Superintendent
of
Jail
for
necessary
compliance. Date: 01.04.2024
----------
(2024) 4 ILRA 1256
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.04.2024
BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 5897 of 2019

Mohd. Rehan ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Shams Tabrez Ali

Counsel for the Respondents:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 452, 377 & 506 - Protection of
Children from Sexual Offences Act, 2012 -
Section 3/4 - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Section 3(2)(v) -
Code of Criminal Procedure, 1973 -
Sections 313, 374(2) & 437A - Criminal
Appeal Against Conviction and Sentence -
House Trespass - Unnatural Offence - Criminal
Intimidation - Sexual Assault on Minor - SC/ST
Atrocities - Eye-Witness Testimony - Medical
Evidence - Forensic Evidence - Motive -
Reformative
Punishment
-
Doctrine
of
Proportionality
The appellant, Mohd. Rehan, challenged the
judgment dated 26.07.2019 by the First
Additional Session Judge/Special Judge (POCSO
Act), Kaushambi, in Sessions Trial No. 125 of
2016, convicting him under Section 452 IPC (5
years imprisonment, Rs. 5,000 fine), Section
377 IPC (10 years imprisonment, Rs. 10,000
fine), Section 506 IPC (2 years imprisonment,
Rs. 2,000 fine), Section 3/4 POCSO Act (12
years imprisonment, Rs. 12,000 fine), and
Section 3(2)(v) SC/ST Act (life imprisonment,
Rs. 15,000 fine), with 2 months additional
imprisonment for default of fine, all sentences to
run concurrently. The prosecution alleged that
on 20.08.2016, the appellant lured the 11-yearold male victim into a house under the pretext
of offering toffee, committed an unnatural
offence, and threatened the informant (PW-1,
victim's mother) with a knife. The FIR was
lodged on 21.08.2016, supported by PW-1, PW3 (victim), and medical evidence showing anal
injuries. Held: (1) The appeal was partly
allowed, setting aside the conviction under
Section 3(2)(v) SC/ST Act and modifying the
sentence under Section 377 IPC to the period
undergone. (2) No evidence established that the
offence was committed due to the victim's
Scheduled Caste identity or that the appellant
knew of it, rendering the SC/ST Act conviction
unsustainable. (3) PW-1 and PW-3's consistent
testimonies, corroborated by medical evidence
of anal redness and a tear, confirmed the
unnatural offence under Section 377 IPC and
POCSO Act. (4) Minor discrepancies in the place
of occurrence (informant's house vs. accused's
house) were overlooked due to the victim's
young age (10-11 years). (5) The inconclusive
FSL report on DNA evidence did not negate the
prosecution case, as oral and medical evidence
sufficed. (6) Considering the appellant's lack of
prior
criminal
history,
over
8
years
of
incarceration
with
remission,
and
the
reformative theory of punishment, the sentence
under Section 377 IPC was modified to the
period undergone, with fines sustained.

List of Cases cited:

1. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926
4 All. Mohd. Rehan Vs. State of U.P. & Ors.
1257
2. Deo Narain Mandal Vs St. of U.P., (2004) 7
SCC 257

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

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

5. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

6. St. of Punj. Vs Bawa Singh, (2015) 3 SCC 441

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

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

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Mohd. Azhar Husain Idrisi, J.)

1. This criminal appeal is directed
against the judgment and order dated
26.7.2019, passed by the First Additional
Session Judge/Special Judge (POCSO Act),
Kaushambi in Sessions Trial No.125 of
2016, arising out of Case Crime No.319 of
2016, under Sections 452, 377, 506 IPC,
Section 3⁄4 POCSO Act and Section 3(2)(v)
SC/ST Act, Police Station Pipari, District
Kaushambi;
whereby
the
appellant
Mohammad Rehan has been convicted
under section 452 IPC and sentenced to
five years imprisonment alongwith fine of
Rs.5,000/-;
sentenced
to
ten
years
imprisonment
alongwith
fine
of
Rs.10,000/-
under
Section
377
IPC;
sentenced to two years imprisonment
alongwith fine of Rs.2,000/- under Section
506 IPC; sentenced to twelve years
imprisonment
alongwith
fine
of
Rs.12,000/- under Section 3⁄4 POCSO Act;
sentenced to life imprisonment alongwith
fine of Rs.15,000/- under Section 3(2)(v)
SC/ST Act and in default of payment of
fine to undergo two months additional
imprisonment, each. All the sentences to
run concurrently.

2. Informant in the present case is
the mother of the eleven year old male
child, who has been subjected to unnatural
offence. The informant (PW-1) is Pasi by
caste and is a vegetable seller. She is a
original resident of village Saiyed Sarawan,
Police Station Charwa, District Kaushambi
and had taken a house on rent in village
Akbarpur where she lived alongwith her
family. On 20.8.2016 the informant had
gone to Mundera Mandi for selling
vegetable whereafter she returned at about
3.00 PM. When she arrived at her house
she was informed by her ten year old son
that he was playing in front of the house
when the accused on the pretext of offering
toffee took him inside the house and
subjected him to unnatural offence. The
minor son of the informant was weeping
outside the house when the informant
returned. Informant then attempted to raise
a protest with the accused, who threatened
her with knife, whereafter the informant
came to the Police Station. On the basis of
such
written
report
(Ex.Ka.1)
First
Information Report came to be lodged at
Police Station Pipari, District Kaushambi
as Case Crime No.319 of 2016 under
Sections 377, 506 IPC, 3⁄4 POCSO Act and
3(2)(v) SC/ST Act. The FIR has been
lodged on 21.8.2016 at 7.30 in the morning
in respect of incident occurred on the
previous
day
i.e.
20.8.2016
during
afternoon
hours.
The
investigation
proceeded in the matter and the blood
sample and underwear of the victim and the
accused was taken and sent for scientific
examination to the FSL. The victim was
also examined by Dr. Himanshu (PW-5) at
the Primary Health Centre, Chail at
Kaushambi. Following injuries have been
found on the victim:-
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
"Injury-
Redness
around
anal
orifice
tear anal orifice inner side 0.5 x 0.1
cm."

3. In the opinion of the doctor the
injury was simple in nature and caused by
hard and blunt object. The victim was
referred to district hospital for expert
opinion
and
further
evaluation.
Investigation
proceeded
further
and
ultimately a charge-sheet came to be
submitted by the Circle Officer, Chail on
27.8.2016. The concerned Magistrate took
cognizance
of
the
charge-sheet
and
committed the case to the court of Sessions
where it got registered as Sessions Trial
No.125 of 2016. The concerned court of
Sessions
framed
charges
against
the
accused appellant on 24.6.2017 under
Sections 452, 377, 506, 3⁄4 POCSO Act and
3(2)(v) of SC/ST Act. The accused denied
the accusations and demanded trial.

4. During the course of trial the
informant appeared as PW-1 and has
supported
the
prosecution
case.
The
informant alleged that she has four
children. She has verified the written report
given to the Police. She has fully supported
the prosecution case including the recovery
of the underwear of the victim. PW-1 has
denied the suggestion that there was some
dispute between her and the accused on
account of non-payment of outstanding
amount due for purchase of fish from the
accused.

5. PW-2 is the Head Constable,
who has proved the police papers.

6. PW-3 is the victim, who has
supported the prosecution case and has
alleged that on the pretext of offering him
toffee the accused took him inside the
house and subjected him to unnatural
offence. During cross-examination PW-3
has stated that he resides at Saiyed
Sarawan. As per him the place of incident
is Akbarpur and the house where the
offence was committed situates within the
market. Victim's brothers and sisters were
playing outside and various persons were
moving on the road.

7. Doctor, who has examined the
victim has been produced in evidence as
PW-5. This witness has found existence of
internal injury in the anal region of the
victim of the size 0.5cmx0.1cm tear.
Redness was also observed on the anal
region. According to the doctor the injury
could have been caused due to unnatural
offence. Other witnesses produced by the
prosecution are the I.O. and other formal
witnesses.

8.

The
accused
has
been
confronted with the evidence adduced by
the prosecution during trial, wherein the
appellant denied the allegation made
against him and has stated that he is
innocent and has been falsely implicated
due to enmity.

9. It is on the basis of above
evidence that the trial court has convicted
the accused appellant of offence under
Sections 452, 377, 506 IPC read with 3⁄4
POCSO Act and 3(2)(v) of SC/ST Act.
Aggrieved by the conviction and sentence
of accused appellant this instant appeal has
been filed before this Court.

10. Sri Shams Tabrez Ali, learned
counsel appearing for the appellant submits
that the accused appellant has been falsely
implicated on account of prior enmity as
the informant had not returned the amount
payable to him for the meat and fish
4 All. Mohd. Rehan Vs. State of U.P. & Ors.
1259
supplied to her by the appellant. It is further
submitted that the injury report on record
does
not
conclusively
establish
the
commissioning of unnatural offence. It is
then submitted that the injury could have
been caused for other reasons also. Learned
counsel further submits that the DNA
sample was taken but the DNA report has
not been produced.

11. The prosecution has however
produced on record the FSL report. As per
it the DNA profile was generated of the
blood sample and underwear of the
victim as well as blood sample and
underwear of the accused. The result of
the examination shows that only partial
DNA profile could be generated and,
therefore, no definite opinion could be
expressed to connect the DNA profile
generated of the accused and the victim.
The FSL report, therefore, does not help
the cause of the prosecution.

12. Further argument advanced
on behalf of the appellant is that the place
of incident indicated by PW-1 is her
house, whereas PW-3 has disclosed the
house of accused to be the place of
incident and this material contradiction
has been overlooked. Learned counsel
also submits that the trial court has
misconstrued the evidence on this aspect
of the matter and has erroneously
overlooked
this
crucial
aspect
by
observing that this is merely an error of
investigation. Sri Ali further argued that
there are no allegations in the FIR or the
evidence adduced during trial that the
offence was committed by the accused on
account of caste identity of the victim nor
is it proved that the accused was aware that
the victim belonged to Scheduled Caste
and, therefore, no offence can be said to
have been made out under the provisions of
Scheduled Caste and Scheduled Tribe
(Prevention
of Atrocities) Act,
1989
(hereinafter referred to as the 'SC/ST Act').

13. It is also argued that no offence
is otherwise made out under the provisions
of Prevention of Children from Sexual
Offences Act, 2012 (hereinafter referred to
as the 'POCSO Act').

14. Lastly it is urged by the
counsel for the appellant that the appellant
has already undergone incarceration of
more than eight years and since no
evidence has been adduced to implicate the
appellant under the SC/ST Act as such it is
alternatively urged that the sentence of the
accused appellant be reduced and he be let
off on the period of incarceration already
undergone.

15. Learned AGA, on the other
hand, supports the finding returned in the
judgment of the court of Sessions on the
basis of evidence led during trial.

16. We have heard learned counsel
for the parties and have perused the
material on record.

17. So far as the conviction and
sentence of the accused appellant under the
provisions of SC/ST Act is concerned, we
find that there is absolutely no evidence led
by any of the witness during trial that the
offence upon the victim was committed on
account of his caste identity. It is also
submitted that the prosecution has not
adduced any evidence to show that the
accused appellant was even aware of the
caste identity of the victim. It is, therefore,
submitted that the conviction and sentence
of the accused appellant under the SC/ST
Act is without any basis and, therefore,
unsustainable.
1260 INDIAN LAW REPORTS ALLAHABAD SERIES
18. The offence, in the present
case, is alleged to have been committed on
20.8.2016. Section 3(2)(v) of the SC/ST
Act as it stood on the date of offence reads
as under:-

"3(2)(v)- commits any offence
under the Indian Penal Code (45 of 1860)
punishable with imprisonment for a term of
ten years or more against a person or
property [knowing that such person is a
member of a Scheduled Caste or a
Scheduled Tribe or such property belongs
to such member], shall be punishable with
imprisonment for life and with fine."

19. After the amendment has been
incorporated in SC/ST Act, an offence
punishable with imprisonment for a term of
ten years or more against a person or
property knowing that such person is a
member
of
Scheduled
Castes
and
Scheduled Tribes or such property belongs
to such member is to be punished with
imprisonment for life and with fine. The
necessary ingredients for attracting the
offence under Section 3(2)(v) of SC/ST Act
would thus be that the base offence draws
imprisonment for a term of ten years or
more against the person or property
belonging to Scheduled Castes/Scheduled
Tribes. The other condition for attracting
the offence is that the perpetrator of crime
is aware that the person against whom such
offence is committed is a member of
Scheduled Castes/Scheduled Tribes. In
order to bring home the charge under
Section
3(2)(v)
of
SC/ST
Act
the
prosecution will have to demonstrate on the
basis of evidence led during trial that the
perpetrator of crime knew that the victim
belongs to Scheduled Castes/Scheduled
Tribes. In the facts of the present case, the
entire evidence has been perused by us and
we do not find any evidence on record to
indicate that the accused was even aware of
the caste identity of the victim. Unless such
evidence is led it cannot be said that an
offence under Section 3(2)(v) of SC/ST Act
is made out against the accused appellant.
In such view of the matter, we are inclined
to accept the argument of counsel for the
appellant that on the basis of evidence led
during trial, by the prosecution, no offence
can be said to be made out against the
accused appellant under Section 3(2)(v) of
SC/ST. The conviction and sentence of the
accused appellant under the SC/ST Act is,
therefore, reversed.

20. On merits the main submission
advanced on behalf of the appellant is that
the place of occurrence has not been
fixed/determined by the prosecution. It is
alleged that the version of PW-1 and PW-3
contradicts each other. On this aspect we
have examined the evidence on record.
PW-1 in her testimony has alleged that she
was informed by the victim that accused on
the pretext of offering toffee took him
inside the house where the unnatural
offence was committed. The statement of
PW-3 has also been examined by us. PW-3
has stated that he was playing in front of
his house when the accused on the pretext
of offering toffee called him inside his
house. The exact expression used by PW-3
is reproduced hereinafter:-

"मै पढा निीं िूं। धनिानी अंगूठा
िगाता (का०फा) साि मिीना जानता िूं।
बरसात का मिीना र्था मैं अपने दरिाजे पर खेि
रिा र्था। मेरी मां मुण्डेरा मण्डी गयी र्थी। मेरे
पापा मजदूरी पर गये र्थे। जब मै खेि रिा र्था तो
रेिान मुझे र्ाफी देने के बिाने अपने मेरे घर
बुिा धिया घर के अन्दर िे गया। और मेरे सार्थ
गित काम हकया। हफर मेरी मां आयी तो मैने
4 All. Mohd. Rehan Vs. State of U.P. & Ors.
1261
सारी बात अपने मां को बतायी। मेरी डाक्र्री
िुयी र्थी। पुधिस िािो ने मेरा ियान धिया र्था।
ररपोर्ज मेरी मममी ने धिखाया र्था। मेरी मां
उिािना देने गयी र्थी तो रेिान उसे चाकू िेकर
दौडा धिया र्था।"

21. There appears to be some
discrepancy in the statement of PW-3,
inasmuch as his statement can be construed
differently and an inference could be drawn
that the offence was committed inside the
house of the accused appellant. However,
we are are not inclined to attach much
importance to this aspect of the matter
considering the fact that the victim is only
10-11 years old. The statement of PW-3 in
its entirety suggests that the house where
offence is committed is within the main
market and her sisters and brothers were
playing outside. The statement of PW-3
will have to be read as a whole and an
isolated statement cannot be read out of
context to support the defence case. The
statement that brothers and sisters of the
victim were playing outside the house lends
credence to the stand of learned State
counsel that in fact it was the house of PW1 where the offence was committed. PW-3
during trial has specifically identified the
accused as being the perpetrator of crime.
There is thus not much of a substance
regarding identity of the accused or the
place of occurrence.

22. So far as the commissioning of
offence is concerned, the statement of
doctor as well as the medico-legal report
clearly shows existence of redness around
anal orifice and there is a tear in the inner
anal orifice of the size 0.5cmx0.1cm. The
medical examination of the victim has been
conducted on 21.8.2016 at 1.40 PM which
is within 24 hours of the incident. The
victim as well as her mother both are
specific
in
implicating
the
accused
appellant of committing the offence. Upon
evaluation of the oral evidence led by the
prosecution in the form of statement of
PW-1 and PW-3 coupled with the medicolegal report on record we are inclined to
concur with the opinion expressed by the
court below that in fact the ten year old
minor victim was subjected to unnatural
offence. The finding returned by the court
of Sessions in that regard is sustained.

23. Learned counsel for the
appellant
has
lastly
urged
that
the
punishment imposed upon the accused
appellant in the facts and circumstances of
the case is highly excessive. It is submitted
that the punishment specified under Section
377 IPC is life or up to ten years and fine.
At the time when the offence was
committed the minimum punishment under
POCSO Act was seven years. It is
submitted that accused appellant has no
criminal history and has actually remained
in jail for over 71⁄2 years and with remission
the period of incarceration would be above
eight years. Learned counsel, therefore,
submits that this is the first offence of the
accused appellant and it would not be
necessary to award maximum punishment
for the offence established against the
accused appellant. It is submitted that the
incarceration of more than eight years with
remission would adequately sub-serve the
interest of justice.

24. On the aspect of sentencing we
may refer to a recent judgment of this
Court in Criminal Appeal No.2878 of
2013:-

"14.
While
coming
to
the
conclusion
that
the
accused
is
the
perpetrator of the offence, whether sentence
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
of life imprisonment and fine is adequate or
the sentence requires to be modified in the
facts and circumstances of this case and in
the light of certain judicial pronouncements
and precedents applicable in such matters.
This Court would refer to the following
precedents, namely, 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."
15. '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.
16. 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
4 All. Abhay Kumar @ Dheeraj Ojha Vs. Rakesh Kumar Verma & Ors.
1263
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 avoided
keeping in view the reformative approach
underlying in our criminal justice system.
17. 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.
18. As discussed above, ''reformative
theory of punishment' is to be adipted and for
that reason, it is necessary to impose
punishment keeping in view the ''doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded by
learned trial court for life term is very harsh
keeping in view the entirety of facts and
circumstances of the cases 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."

25. We have carefully examined the
submission in that regard and we find that the
accused appellant is the first offender. There
is no criminal history of any prior sexual
perversity attributed to the accused appellant.
The accused appellant has also undergone
incarceration of more than eight years with
remission. Minimum punishment for the
offence under the POCSO Act is seven years.
Keeping in view the criminal jurisprudence
which
encompasses
reformative
and
corrective theory, as also the doctrine of
proportionality, it would not be necessary to
award maximum sentence to the appellant,
who
is
the
first
offender.
In
such
circumstances, we are of the view that the
sentence awarded to the accused appellant
under Section 377 IPC deserves to be
modified and substituted with the sentence
already undergone by him. The appeal,
accordingly, is partly allowed. The fine
imposed by the accused appellant, however,
is maintained. The judgment and order passed
by the court below in Sessions Trial No.125
of 2016, arising out of Case Crime No.319 of
2016, under Sections 452, 377, 506 IPC,
Section 3⁄4 POCSO Act and Section 3(2)(v)
SC/ST Act, Police Station Pipari, District
Kaushambi is modified, accordingly. The
appellant shall be released, forthwith, on the
period undergone by him and upon deposit of
fine or completion of default sentence in lieu
of fine unless he is required in any other case,
subject to compliance of Section 437A
Cr.P.C.
----------
(2024) 4 ILRA 1263
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.04.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Election Petition No. 6 of 2022

Abhay Kumar @ Dheeraj Ojha ...Petitioner
Versus
Rakesh Kumar Verma & Ors.
 ...Respondents

Counsel for the Petitioner:
In Person, Amol Kumar Srivastava, Chetan
Kumar Tiwari, Kuldeep Pati Tripathi, Pramod
Kumar Pandey, Sakshi Singh, Shivanshu Mishra