# Mohsin & Anr v. State of U.P

- **Citation:** (2021) 11 ILRA 972
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-23
- **Case number:** Criminal Appeal No. 2978 of 2010
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohsin-anr-v-state-of-u-p-46688
- **Pages:** 5

## Headnote

A.G.A.

It is necessary to avoid undue leniency in imposing
sentence-criminal jurisprudence is reformative and
corrective-undue harshness to be avoided-Appeal not
pressed
on
merit-conviction
upheld-doctrine
of
proportionality-life
imprisonment
is
very
harsh
sentence converted from life imprisonment to 10
years and fine of Rs. 5000/.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

972 INDIAN LAW REPORTS ALLAHABAD SERIES
conclusions." The aforesaid legal principle is
time-tested and is the bedrock of criminal
jurisprudence.

16. In view of the discussion above, we are of
the considered view that the prosecution has failed
to prove the case against the appellant beyond the
pale of doubt. The appellant is therefore entitled to
the benefit of doubt. Consequently, the judgment
and order of the court below in so far as it relates to
the appellant is liable to be set aside. The appeal is
therefore allowed. The judgment and order of
conviction and sentence passed by the trial court as
against the appellant is set aside. If the appellant is
on bail, he need not surrender subject to compliance
of the provisions of Section 437-A CrPC to the
satisfaction of the trial court below.

17. Before parting, we record our
appreciation for the labour put in by Ms. Seema
Pandey, who assisted the Court as an Amicus with
commendable preparation. We, accordingly, direct
that she be paid Rs.10,000/- (ten thousand only) by
the High Court Legal Aid Services Committee for
her efforts.

18. Let a copy of this order be sent to the court
below for information and compliance.
----------
(2021)12ILR A972
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2021

BEFORE

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

Criminal Appeal No. 2978 of 2010

Mohsin & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.K. Dubey, Sri Deepak Kumar Pandey, Sri
Pankaj Kushwaha, Sri Pankaj Kumar Kushwaha,
Sri Rajiv Lochan Shukla, Sri S.C. Kushwaha, Sri
Vinod Tripathi, Sri Uma Dutt Tripathi

Counsel for the Respondent:
A.G.A.

It is necessary to avoid undue leniency in imposing
sentence-criminal jurisprudence is reformative and
corrective-undue harshness to be avoided-Appeal not
pressed
on
merit-conviction
upheld-doctrine
of
proportionality-life
imprisonment
is
very
harsh
sentence converted from life imprisonment to 10
years and fine of Rs. 5000/.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Mohd. Giasuddin Vs St. of A.P., [AIR 1977 SC 1926]

2 Deo Narain Mandal Vs St. of U.P. [(2004) 7 SCC
257]

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

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

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

6. Sumer Singh Vs Surajbhan Singh, [(2014) 7 SCC
323],

7. St. of Punjab Vs Bawa Singh, [(2015) 3 SCC 441],

8. Raj Bala Vs St. of Har., [(2016) 1 SCC 463]
(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the appellants
have challenged the Judgment and order
20.4.2010 passed by court of Additional District
and Sessions Judge/FTC, Court No.2, Ghaziabad
in Session Trial No.393 of 2009 arising out of
Case Crime No.1310 of 2008 under Sections
354, 376 Indian Penal Code, Police Station-
11 All. Ravindra Vs. State of U.P.
973
Sahibabad, District-Ghaziabad whereby the
accused-appellants
were
convicted
under
Section 376 IPC and sentenced to imprisonment
for life with fine of Rs.25,000/- each and Section
354 of IPC convicted for two years rigorous
imprisonment and fine of Rs.3000/-.

2. The brief facts of this case are that
complainant Munni Devi, mother of the
prosecutrix, submitted a written report at Police
Station Sahibabad, District Ghaziabad, Ex.Ka-2
stating that her daughter (prosecutrix) was going
to Happy Public School, Rajendra Nagar for
bringing her cousin sister on 23.8.2008 at about
1.30 p.m. On the way Arshad, Mohsin and
Mansad resident of village Pasaunda met and
they all started molesting her, Arshad tried to
drag her to the Budha Park, she raised alarm and
some of people gathered there. Then they all ran
away from there. On this report, a first
information report was lodged at Police Station
Sahibabad under Section 354 I.P.C. After
lodging the FIR, investigation was started.

3. Investigating Officer recorded the
statements of prosecutrix and other witnesses,
prepared site plan. Medical examination of
prosecutrix was conducted. After completing the
evidence, charge sheet was submitted. The case
being trialbe exclusively by the court of session,
it was committeed to the sessions Court by the
competent Magistrate.

4. Learned Judge framed charges against
the accused- Mohsin and Mansad under Sections
354 and 376 IPC which were read over to the
accused persons. Accused persons denied
charges and claimed to be tried. Accused-Arshad
was declared juvenile and his trial was
separated. The prosecution so as to bring home
the charges, examined six witnesses, who are as
under:-

1.
Prosecution
P.W.1
2.
Munni Devi
P.W.2
3.
Dr. Sunita
P.W.3
4.
Rajendra Singh Chauhan
P.W.4
5.
Bharat Singh
P.W.5
6.
Sahab Singh
P.W.6

5. After completion of prosecution
evidence, the accused was examined under
Section 313 Cr.P.C. in which he denied evidence
against him, two witnesses, namely, D.W.-1
Mohd. Sirajuddin and D.W.-2 Mohd. Waseem
were examined by the accused in defence.

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

1.
F.I.R.
Ext. Ka-5
2.
Written report
Ext. Ka-2
3.
Statement of prosecutrix
(Mala)
Ext. Ka-1
4.
Injury Report
Ext. Ka-3
5.
Site Plan with Index
Ext. Ka-4

7. Heard Shri Rajiv Lochan, learned
counsel for the appellants, learned AGA for the
State and also perused the record.

8. Perusal of record shows that occurrence
took place at about 1.30 p.m. it means that it was
day-light incident. Although in the beginning, the
mother of the prosecutrix lodged the FIR only with
the averments leading to the offence to the extent
of Section 354 IPC only, but in her statement
under Section 164 Cr.P.C, the prosecutrix narrated
the incident in detail in which she made accusation
against the accused-appellants and stated that they
committed rape with her one by one after tying her
mouth and hands.

9. The story narrated by the prosecutrix
under Section 164 Cr.P.C. was repeated by her
before learned trial Court as P.W.-1.
974 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Learned counsel for the appellants
attracted
our
attention
towards
some
contradictions in the evidence of prosecutrix and
in her statement under Section 164 Cr.P.C., but
these contradictions do not go to the root of the
case.

11. Medical examination of prosecutrix
was conducted and medical report was prepared.
The evidence of prosecutrix stands on the same
footing of injured witness. Prosecutrix was
examined at length by the defence but in her
cross examination also she had stated that she
was raped by the accused persons. PW-2, Munni
Devi is mother of the prosecutrix, who
submitted written report in Police Station on the
basis of which first information report was
lodged. In her statement she has formaly proved
the above written report. Doctor, who conducted
medical examination of the prosecutrix, is also
produced by the prosecution as PW-3. The
learned trial court convicted and sentenced the
appellants for the offence under Sections 376
and 354 IPC.

12. After some arguments, learned counsel
for the appellant submitted that he is not
pressing this appeal on its merit, but he prays
only for reduction of the sentence as the
sentence of life imprisonment awarded to the
appellant by the trial court is very harsh.
Learned counsel also submitted that appellant is
languishing in jail for the past more than 11
years.

13. This case pertains to the offence of
'rape', defined under Section 375 IPC, which is
quoted as under:

[375. Rape.- A man is said to commit
"rape" if he-

(a) penetrates his penis, to any extent,
into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any
other person; or

(b) inserts, to any extent, any object or
a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or
makes her to do so with him or any other
person; or

(c) manipulates any part of the body of
a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or
any other person; or

(d) applies his mouth to the vagina,
anus, urethra of a woman or makes her to do so
with him or any other person,

under the circumstances falling under
any of the following seven descriptions :-

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- With her consent, when her
consent has been obtained by putting her or any
person in whom she is interested, in fear of
death or of hurt.

Fourthly.- With her consent, when the
man knows that he is not her husband and that
her consent is given because she believes that he
is another man to whom she is or believes
herself to be lawfully married.

Fifthly.- With her consent when, at the
time of giving such consent, by reason of
unsoundness of mind of intoxication or the
administration by him personally or through
another of any stupefying or unwholesome
substance, she is unable to understand the
nature and consequences of that to which she
gives consent.

Sixthly.- With or without her consent,
when she is under eighteen years of age.

Seventhly.- When she is unable to
communicate consent.

Explanation 1.- For the purposes of
this section, "vagina" shall also include labia
majora.

Explnation 2.- Consent means an
unequivocal voluntary agreement when the
woman by words, gestures or any form of verbal
or non-verbal communication, communicates
11 All. Ravindra Vs. State of U.P.
975
willingness to participate in the specific sexual
act.

Provided that a woman who does not
physically resist to the act of penetration shall
not by the reason only of that fact, be regarded
as consenting to the sexual activity.

Exception 1.- A medical procedure or
intervention shall not constitute rape.

Excpetion 2.- Sexual intercourse or
sexual acts by a man with his own wife, the wife
not being under fifteen years of age, is not rape.]

14. 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 ante-social
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. The term '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 challenges
976 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Since the learned counsel for the
appellant has not pressed the appeal on its merit,
however, after perusal of entire evidence on record
and judgment of the trial court, we consider that
the appeal is devoid of merit and is liable to be
dismissed. Hence, the conviction of the appellant is
upheld.

19. As discussed above, 'reformative theory
of punishment' is to be adopted and for that reason,
it is necessary to impose punishment keeping in
view the 'doctrine of proportionality'. It appears
from perusal of impugned 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 case and gravity of offence.
Hon'ble Apex Court, as discussed above, has held
that undue harshness should be avoided taking into
account the reformative approach underlying in
criminal justice system.

20. Learned AGA also admitted the fact
which is cited by learned counsel for the
appellants that appellants are languishing in jail
for the last 11 years. Keeping in view the facts
and evidence of this case, we are of considered
opinion that ends of justice would be met if
sentence for the offence under Section 376 IPC
is converted from life

21. Hence, the sentence awarded to the
appellants by the learned trial-court is modified
and converted from life imprisonment to period
of 10 years rigorous imprisonment and fine of
Rs.5,000/-. Accused persons shall undergo
additional one year simple imprisonment in case
of default of fine. Sentence under Section 354 of
IPC shall remain intact. All the sentences shall
run concurrently as directed by learned trial
court.

22. Accordingly, the appeal is partly
allowed with the modification of the sentence,
as above.
----------
(2021)12ILR A976
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 55436 of 2017

Head
Const.
Ravindra
Mishra
(P
No.
810630129) ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Compulsory retirement -
Constitution of India - Article 226, 311 - The
order of compulsory retirement is neither
punitive nor stigmatic. It is based on subjective