# Mukesh @ Jeet Lal @ Jateye (In Jail) v. State of U.P

- **Citation:** (2023) 3 ILRA 738
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-28
- **Case number:** Criminal Appeal No. 5149 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-jeet-lal-jateye-in-jail-v-state-of-u-p-49820
- **Pages:** 8

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 307/34, 504 & 506 - Attempt to
murder - The Code of Criminal Procedure,
1973 - Section 313 - Appeal against
conviction - As per FIR - on 16.10.2009
the informant, his cousin brother and his
uncle had gone to their field for irrigation
- About one year ago a exchange of
abusive terms took place between the
aunt of informant and wife of the accused
and due to that reason there was enmity
between them - Both the accused persons
reached near the field and used filthy
language - Accused shot fired on the back
of Mahesh - Sessions Judge framed
charges - Sentenced to life imprisonment
- No independent witness has been
examined - Doctor mentioned in his
St.ment if proper treatment not been
given then it might be fatal. (Para 2, 3, 5,
6, 11)

Held: The trial court has rightly convicted the
accused persons as there was trustworthy
evidence of PW1 and PW2 against the
accused
persons,
which
were
fully
corroborated by the medical evidence. While
determining the quantum of sentence, the
court should bear in mind the principle of
proportionately. 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.
Considering the facts that substantive period
already undergone by the appellants and both
the appellants are young persons in their mid
forties; there is no bread-earner in their
families and they have realized the mistake
committed by them. (Para 14,18,22)

The appeal is partly allowed. (E-13)

List of Cases cited:

## Text

738 INDIAN LAW REPORTS ALLAHABAD SERIES
the Act by replacing the causation requirement
under Section 3(2)(v) of the Act with a
knowledge requirement making the regime
sensitive to the kind of evidence that is likely to be
generated in cases such as these. 61 However,
since Section 3(2) (v) was amended and Clause
(c) of Section 8 was inserted by Act 1 of 2016
with effect from 26 January 2016 these
amendments would not be applicable to the case
at hand. The offence in the present case has
taken place before the amendment, on 31 March
2011. Therefore, we hold that the evidence in the
present case does not establish that the offence in
the present case was committed on the ground
that such person is a member of a SC or ST. The
conviction
under
Section
3(2)(v)
would
consequently have to be set aside."

19. Even if, we go by the evidence of PW-1
who was 35 years of age has nowhere in her oral
testimony even mentioned that the accused had
kept her captive in their house because she
belonged to a particular community and hence, the
charge itself having not been proved. The accused
could not have been convicted for the charges.
She does not have caste certificate, which would
be be necessary to see by the learned Sessions
Judge for invoking Section 3 (2) (v) of the SC/ST
Act which is also absent in the judgement. Just
because the parents belonged to a particular
community and she was earlier married with one
Ganga Ram Bajpayee, does not mean that it was
proved that the act was committed because she
belonged to a particular community. Thus, the
conviction under Section 3(2)(v) of SC/ST Act
cannot be upheld and is set aside.

20. There is no medical evidence to prove
that she was dragged by the accused when she
was taken to their home. The judgment cited by
the learned counsel for the appellants in Patan
Jamal Vali vs. State of Andhra Pradesh,
Dinesh @ Buddha vs. State of Rajasthan,
Kaini Rajan vs. State Kerala, and in Vishnu
(Supra) would inure for the benefit of the
accused. One more aspect is that PW-1, after
staying for one year, had gone to the
Commissionrate with an advocate, there also she
has not raised any hue and cry. It cannot be said
that she was confined against her wish. Neither
can it be said nor is it proved that there was
forcible sex by the appellants herein with the
prosecutrix. We are unable to accept the
submissions made by learned counsel for the
State that this was a case of rape. The ingredients
of Sections 366, 368 & 375 of IPC are not
proved. The fact that even after her marriage, she
has deserted her three children and she was
staying with the accused. Her evidence does not
proved that she was forced into any kind of
relationship.

21. In view of the above, this appeal is
allowed. The judgment and order impugned in
this appeal is set aside. The accused-appellants
are acquitted from the charges levelled against
them. The accused are on bail pursuant to the
order of this Court dated 10.2.2023. The need not
surrender.

22. Record and proceedings be sent back
to the Trial Court forthwith.
----------
(2023) 3 ILRA 738
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 5149 of 2012
Connected With
Jail Appeal No. 5203 of 2012

Mukesh @ Jeet Lal @ Jateye
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party
3 All. Mukesh @ Jeet Lal @ Jateye Vs. State of U.P.
739
Counsel for the Appellant:
Sri Ratnesh Kumar Jaiswal, Sri Shyam Babu
Vaish, Sri Chetan Chaterjee (A.C.)

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 307/34, 504 & 506 - Attempt to
murder - The Code of Criminal Procedure,
1973 - Section 313 - Appeal against
conviction - As per FIR - on 16.10.2009
the informant, his cousin brother and his
uncle had gone to their field for irrigation
- About one year ago a exchange of
abusive terms took place between the
aunt of informant and wife of the accused
and due to that reason there was enmity
between them - Both the accused persons
reached near the field and used filthy
language - Accused shot fired on the back
of Mahesh - Sessions Judge framed
charges - Sentenced to life imprisonment
- No independent witness has been
examined - Doctor mentioned in his
St.ment if proper treatment not been
given then it might be fatal. (Para 2, 3, 5,
6, 11)

Held: The trial court has rightly convicted the
accused persons as there was trustworthy
evidence of PW1 and PW2 against the
accused
persons,
which
were
fully
corroborated by the medical evidence. While
determining the quantum of sentence, the
court should bear in mind the principle of
proportionately. 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.
Considering the facts that substantive period
already undergone by the appellants and both
the appellants are young persons in their mid
forties; there is no bread-earner in their
families and they have realized the mistake
committed by them. (Para 14,18,22)

The appeal is partly allowed. (E-13)

List of Cases cited:

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 UP (2004) 7 SCC
257

7. Shyam Narain Vs St. (NCT of delhi), (2013) 7
SCC 77

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

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

10. Raj Bala Vs St. of Har.a, (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 Karnatak, (2012) 8
SCC 734

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

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

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

(Delivered by Hon'ble Ajit Singh, J.)

1. Heard Sri Chetan Chaterjee and
Miss Nishi Mehrotra, learned Amicus
Curiae for the appellants-accused, learned
A.G.A. appearing on behalf of the State
and perused the record.
740 INDIAN LAW REPORTS ALLAHABAD SERIES

2. This criminal appeal has been
preferred against the judgment and order
22.10.2012 passed by Special Judge (E.C.
Act), Mirzapur in Sessions Trial No. 14 of
2010 (State vs. Hari Narayan and others),
arising out of Case Crime No. 1096 of
2009, whereby the appellants have been
convicted and sentenced under section
307/34 IPC for life imprisonment and fine
of Rs. 3000/- and in default of payment of
fine the accused shall undergo one year
additional imprisonment, one year R.I.
Each under section 504 I.P.C. and fine of
Rs. 1000/- each and in default of payment
of fine accused shall further undergo three
months R.I., 4 years months R.I. under
section 506 I.P.C. and a fine of Rs. 2,000/-
each and in default of payment of fine the
accused shall further undergo eight months
additional R.I. All the sentences shall run
concurrently.

3. The FIR of this incident was lodged
by Hari Kumar Gaur, informant on
16.10.2009 at Police Station Chunar,
District-Mirzapur and it was mentioned in
the FIR that on 16.10.2009 at about 8:30
p.m, the informant his cousin brother
Yogesh Kumar and his uncle Sadanand
Gaur had gone to their field for irrigation.
At about 9:16 p.m. accused Hari Narain @
Devganda @ Jhinguri son of Shyama Bind,
who used to work as labour, was residing at
his in-laws house along with his wife and
kids. About one year ago a slanging match
(exchange of) abusive terms. took place
between the aunt of the informant and the
wife of the accused Hari Narain @
Devganda @ Jhinguri and due to that
reason there was enmity between them. The
accused threatened with dire consequences
but the informant did not take it seriously.
The other accused Mukesh used to come to
village-Deogauda, that's why he was
known to the informant. At about 9:15 p.m.
both the accused persons reached near the
field on their motorcycle. Upon seeing the
brother of the informant, both the accused
used filthy language and at that point of
time the accused Mukesh put off his pistol
and as an when brother of the informant
Mahesh tried to run away, the accused Hari
Narain @ Devganda @ Jhinguri shot fired
on the back of Mahesh. We were afraid and
ran away towards the field. Mahesh fell on
the ground. After attacking Mahesh both
the accused fled away from the scene on
their motorcycle. The injured was taken to
Mirzapur Hospital from where he was
referred to B.H.U. Hospital after first aid.

4. The case was registered against the
accused persons. After investigation, the
police
submitted
charge-sheet
under
sections 307, 504 and 506 IPC. The learned
Magistrate summoned the accused persons
and committed them to Court of Sessions
as prima facie charges were for offences
under Sections 307, 504 and 506 I.P.C.

5. On being summoned, the accusedappellants pleaded not guilty and claimed
to be tried. The learned Sessions Judge
framed charges under Sections 307, 504
and 506 I.P.C.

6. The Trial started and the
prosecution examined 6 witnesses who are
as follows:

1
Hariom
PW1
2
Mahesh Kumar
Gaur
PW2
3
Dr.
A.K.
Pandey
PW3
4
Constable
Shyam Sunder
PW4
5
Dr.
Prem
Shankar
PW5
6
S.I.
Pannag PW6
3 All. Mukesh @ Jeet Lal @ Jateye Vs. State of U.P.
741
Bhushan

7. In support of ocular version
following documents were filed and
proved:

1
Complaint
Ex.Ka-1
2
Fard Recovery
Ex.Ka-2
3
Medical
Examination
Report
Ex.Ka-3
4
FIR
Ex.Ka-4
5
Copy of G.D.
Ex.Ka-5
6
Admission Slip
Ex. Ka-6
7
Patient History
Ex.Ka-7
8
Operative Notes
Ex.Ka-8
9
Medical
Examination
Report
Ex. Ka-9
10
Discharge Note
Ex.Ka-10
11
X-ray Report
Ex. Ka-11
12
X-ray Report
Ex. Ka-12
13
Site Plan
Ex. Ka-13
14
Charge-sheet
Ex. Ka-14
15
Fard Recovery
Ex. Ka-15

8. At the end of the trial and after
recording the statements of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted
the
accused-appellants
as
mentioned above.

9. The trial court recorded statement
of the witnesses and after hearing the
argument of both the sides, convicted the
appellants as aforesaid.

10. This Court has perused the
evidence
available
on
record.
The
complainant Hariom Gaur PW1, who had
seen the occurrence, has deposed against
the accused persons and PW2 Mahesh
Kumar Gaur who sustained injuries in the
incident, has specifically nominated the
accused persons and their evidence has
been corroborated by medical evidence of
PW3 Dr. A.K. Pandey.

11. Learned counsel for the appellants
has specifically stated that no independent
witness has been examined in this matter.
He has further submitted that the injured
Mahesh Kumar Gaur had not received
injuries which could be said that they were
fatal to life and doctor has nowhere
mentioned in his statement that the injuries
sustained by the injured were fatal to life in
normal circumstances. The doctor has only
mentioned that if proper treatment had not
been given then injury might be fatal.
Learned counsel for the appellant has
further submitted that the incident has
happened due to previous enmity between
both factions and incident had happened at
the spur of moment and the accused
persons had not inflicted the injuries with
intention to cause death to the injured
Mahesh Kumar Gaur. He further submits
that on the exhortation of accused Mukesh
@ Jeet Lal @ Jetaye , other accused Hari
Narain @ Devganda @ Jhinguri fired at the
injured, which was hit on his back. The
injured sustained injuries on his non-vital
part. The injuries received by the injured
were although grievous but were not fatal
to life. The appellants could not have been
convicted under section 307 IPC but they
were convicted as per the evidence only
under section 324 read with 34 IPC.

12. Learned counsel for the appellants
has submitted that the incident took place
in the year 2009. Accused Mukesh @ Jeet
Lal @ Jetaya is in jail since 19.10.2009 and
accused Hari Narain @ Devganda @
Jhinguri is in jail since 22.10.2012. Both
the accused persons were convicted in the
742 INDIAN LAW REPORTS ALLAHABAD SERIES
year 2012. He further submitted that the
accused persons have suffered mental and
physical agony of incarnation and they
have suffered mentally agony of criminal
trial and after conviction since year 2012.

13. Learned A.G.A. has vehemently
opposed the arguments advanced by the
learned counsel for the appellants and has
submitted that the accused Hari Narain @
Devganda @ Jhinguri had fired at the injured
Mahesh Kumar Gaur, causing grievous injury
to him and as per doctor opinion the injury
sustained by the injured was dangerous and
fatal to life. The shot was hit at the centre
back of the injured and they have been rightly
convicted by the trial court under section 307
read with 34 IPC.

14. We have perused the entire material
available on record and considered the
evidence minutely, we are of the opinion that
the trial court has rightly convicted the
accused persons as there was trustworthy
evidence of PW1 informant and PW2 injured
against the accused persons, which were fully
corroborated by the medical evidence. The
accused are in jail since 19.10.2009 and
22.10.2012 respectively. The old counsels for
appellants have prayed for considering
alternative prayer to consider is called up to
modify the sentence, considering the various
decisions of the Apex Court and the young
age of accused and the manner in which
incident occurred. Reference to the following
decision would be necessary.

15. 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."

16. In Sham Sunder vs Puran, (1990)
4 SCC 731, where the 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."

17. 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 supreme court restored
3 All. Mukesh @ Jeet Lal @ Jateye Vs. State of U.P.
743
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."

18. 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
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

19. 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.

20. 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
nartured into citizens with a desire to live a
fruitful life in the outside world, have the
capacity of humanising the world.

21. 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
744 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

22. Considering the facts and
circumstances
of
the
case
and
the
substantive period already undergone by
the appellants in this case and the fact that
considerable period has already been
served by the accused persons in this case
and the fact is that both the appellants are
young persons in their mid forties; there is
no bread-earner in their families and by so
far
they
have
realized
the
mistake
committed by them and are remorseful to
their conduct and feel it necessary to serve
with their polite and cooperative behaviour
to the society which they belong to and
now they want to transform themselves into
a law abiding citizen, I am of the
considered opinion that they should be
given a chance to reform themselves and
extend their better contribution to the
society to which they belong to.

23. Considering the facts and
circumstances of the case, considering the
evidence
available
on
record
and
considering the nature of injury, this Court
deems it fit to alter the conviction to
already undergone by the accused persons.

24.

Consequently,
taking
into
consideration the period already undergone
in prison by the appellants in this case as
well as considering that they have suffered
physical and mental agony of trial and after
conviction for a long period of 10 years, the
sentence awarded to them under Section
307/34 is converted to already undergone
by them in prison with a fine of Rs. 2000/-
each.

25. Accused-appellants are directed to
deposit the fine of Rs. 2,000/-each before
lower judiciary within three months from
the date of passing of the judgement and
their released and in default of payment of
fine as directed above, they shall undergo
simple imprisonment for a period of fifteen
days.
3 All. Shahid Vs. State of U.P.
745

26. Appeal is partly allowed in the
above terms.

27. Office is directed to transmit a
copy of this order to the learned Sessions
Judge, Mirzapur for compliance.

28. Office is also directed to send
back the record of the trial court
immediately.

29. Sri Chetan Chaterjee and Miss
Nishi Mehrotra, learned Amicus Cuarie
have argued this appeal on behalf of
appellants, Mukesh @ Jeet Lal @ Jetaye
and Hari Narain @ Devganda @ Jhinguri
and they shall be paid a sum of Rs. 15,000/-
each as remuneration by High Court Legal
Aid Committee.
----------
(2023) 3 ILRA 745
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 5303 of 2008

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

Counsel for the Appellant:
Sri S.K. Gupta, Sri Ambrish Kumar Kashyap,
Sri Hafeez Khan, Sri S.K. Vidyarthi, Sri S.R.
Verma

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 376 - Punishment for Rape -
Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989
- Section 3 (2) (v) - The Code of Criminal
Procedure, 1973 - Sections 313, 433 -
Appeal against conviction - As per FIR - on
03.12.2006, when the prosecutrix was
playing
outside
the
house,
accused
allured her into his house and committed
rape - Trial Court framed charges -
Prosecution has examined 12 witnesses -
No documentary evidence proved that the
injured belongs to SC or ST produced
either before Investigating Officer or
Sessions Court - No independent witness
has been examined - Both prosecutrix and
P.W.1 did not know the accused - P.W.1
has denied commission of rape - No
internal/external injury was found (Para
2, 3, 5, 6, 9, 10)

Held: Evidence on record depicts the theory of
commission of rape on the ground that the
prosecutrix belong to a particular community.
Neither the FIR nor oral testimony have
suggested the same. It is not worth believing
that a person who wants to commit sexual
offence would enquire from the prosecutrix her
name, caste and then commit the unlawful act.
The prosecutrix is four years old child and the
incident has been properly explained by the
prosecutrix and, therefore, there is possibility of
such act being committed. Accused has been
rightly
convicted
under
Section
376
-
'Reformative theory of punishment' is to be
adopted
and it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. Hence, acquitted from charges
leveled under SC/ST Act. (Para 14, 15, 17, 24,
25)

Appeal is partly allowed. (E-13)

List of Cases cited:

1. Vishnu Vs St. of U.P (Criminal Appeal No. 204
of 2021)

2. Pintu Gupta Vs St. of U.P (Criminal Appeal
No. 4083 of 2017)

3. Ved Prakash Vs St. of Har., JIC 1996 SC 18

4. Patan Jamal Vali Vs St. of Andhra Pradesh,
2021 SCC OnLine SC 343