# Nadeem v. State of U.P

- **Citation:** (2021) 11 ILRA 1335
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-08
- **Case number:** Criminal Appeal No. 5598 of 2006
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nadeem-v-state-of-u-p-46553
- **Pages:** 6

## Headnote

Penal Code, 1860 -Section 376 - Award of
sentence - rehabilitary & reformative theory in
sentencing - 'doctrine of proportionality' -
Sentence should not be either excessively
harsh or ridiculously low - undue harshness
should
be
avoided
-
criminal
justice
jurisprudence
adopted
in
India
is
not
retributive but reformative and corrective - all
measures should be applied to give them an
opportunity of reformation in order to bring
them in the social stream (12, 13, 14)

Victim child was of four months - doctor St.d that
except internal parts there was no injury, doctor
categorically conveyed that it is not because of sexual
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
intercourse - learned Judge opined that there was
injuries on the private part of the minor - Held -
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 -
court directed to punish accused for a period of 17
years with all remissions and fine enhanced to Rs.
10,000/- to be paid to the parents of the prosecutrix.

Partly Allowed. (E-5)

List of Cases cited:

## Text

11 All. Nadeem Vs. State of U.P.
1335
on incorrect facts in the reports so as to
influence the detaining authority to record his
satisfaction to the effect that the likelihood of
the detenues in indulging in prejudicial activities
after their release from jail was imminent.

35. We may further note that the above
facts make it evident that the detaining
authority
had
proceeded
to
record
his
satisfaction
without
verification
of
the
statement made in the reports of the Incharge
Inspector,
Police
Station
Dakshin
Tola,
District Mau.

It is, thus, clear that the satisfaction
recorded by the detaining authority was not
based on the objective criteria by application
of its independent mind. The incorporation of
non-existent and misconceived ground in the
material placed before the detaining authority
to influence its decision to pass the order of
detention, would make the detention order
invalid. The flaw in the decision making
process in recording satisfaction by the
detaining authority without verification of the
information supplied to it makes the whole
process illegal.

36. Thus, on both the above counts, the
detention orders dated 3.9.2020 of the District
Magistrate, Mau in respect of all other
petitioners herein as also the detention order
dated 8.10.2020 to detain the petitioner
namely Shaharyar in one of the connected writ
petition, passed under Section 3(2) of the
National Security Act, 1980 are liable to be
quashed.

All the writ petitions are allowed.

However, as the detention orders have
outlived their life for the fact that the writ
petitions could be heard only after the expiry
of the maximum period of twelve months as
prescribed in Section 13 of the National
Security Act, 1980, no other direction has to
be issued.

However,
it
is
clarified
that
the
petitioners could not be kept under detention
pursuant to the detention orders passed under
Section 3(2) of the National Security Act,
1980 by the District Magistrate, Mau.
----------
(2021)12ILR A1335
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2021

BEFORE

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

Criminal Appeal No. 5598 of 2006

Nadeem ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Yogendra Mishra, Sri Mahboob Ahmad
Siddiqui, Sri R.K. Rathore, Sri Yogesh Kumar
Srivastava, Sri Faizul Hasan

Counsel for the Respondent:
A.G.A.

Criminal jurisprudence - Punishment - Indian
Penal Code, 1860 -Section 376 - Award of
sentence - rehabilitary & reformative theory in
sentencing - 'doctrine of proportionality' -
Sentence should not be either excessively
harsh or ridiculously low - undue harshness
should
be
avoided
-
criminal
justice
jurisprudence
adopted
in
India
is
not
retributive but reformative and corrective - all
measures should be applied to give them an
opportunity of reformation in order to bring
them in the social stream (12, 13, 14)

Victim child was of four months - doctor St.d that
except internal parts there was no injury, doctor
categorically conveyed that it is not because of sexual
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
intercourse - learned Judge opined that there was
injuries on the private part of the minor - Held -
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 -
court directed to punish accused for a period of 17
years with all remissions and fine enhanced to Rs.
10,000/- to be paid to the parents of the prosecutrix.

Partly Allowed. (E-5)

List of Cases cited:

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

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

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

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

5. Guru Basavraj Vs St. of Karnatak, [(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]

9. Manoj Mishra @ Chhotkau Vs St. of U.P. dt
08.10.2021

(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the appellant has
challenged the Judgment and order 29.08.2006
passed by court of Additional District and
Sessions Judge/Fast Track Court No. 2,
Firozabad in Sessions Trial No.211 of 2005,
arising out of Case Crime No. 305 of 2004,
under Section 376 I.P.C., Police Station
Ramgarh, District Firozabad whereby the
accused-appellant was sentenced under Section
376 I.P.C. with a sentence of life imprisonment
and fine of Rs.2000/- and in event of default of
payment of fine, to undergo six months' further
imprisonment.

2. The brief facts as per prosecution case
are that on 31.12.2004 at about 3:00 p.m., the
accused-Nadeem
came
to
the
house
of
complainant and started playing with her five
months old daughter and when his wife was
busy with her household work he took her
daughter to his house. After sometime when his
wife did not find her daughter in the house, she
went to the house of accused-Nadeem and saw
that accused-Nadeem was with her daughter and
the daughter was screaming. On the wife's
scream the complainant also rushed to Nadeem
house. The complainant was one of his
neighbours and saw that accused-Nadeem fled
away from the spot and while running he was
seen by other villagers also.

3. On F.I.R being lodged, the investigating
Officer, Nawab Ali tookup the investigation
visited the spot, prepared site plan, recorded
statements of the witnesses and after completing
investigation submitted charge sheet against the
accused.

4. The accused being charge sheeted for
offence triable by court of session, the learned
Magistrate committed the case to the court of
session. The court of session summoned the
accused who pleaded not guilty to the charges
framed and wanted to be tried.

5. The prosecution so as to bring home the
charges examined five witnesses, who are as
under:-

1.
Kamil
P.W.1
2.
Smt. Razia
P.W.2
3.
Dr. S.P.Rawat
P.W.3
4.
Head Moharir Kuldeep Singh
P.W.4
5.
I.O Nawab Ali
P.W.5
11 All. Nadeem Vs. State of U.P.
1337

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.
Ex. Ka-4
2.
Written report
Ex. Ka-1
3.
Injury Report
Ex. Ka-2
8.
Charge Sheet Mool
Ex. Ka-6
9.
Site Plan with Index
Ex. Ka-5

7. Heard learned counsel for the appellant,
learned AGA for the State and also perused the
record.

8. The learned counsel for the applicant
has taken us to the record and has submitted that
the learned Sessions Judge has misread the
testimony of the witnesses and has come to a
wrong conclusion. The evidence of the witnesses
who were examined by the accused have not
been believed. The learned Judge has considered
the case with a tainted eyes and has committed
gross error of facts. The learned Judge has
committed an error of law and fact where by he
has not considered the medical evidence being
such which shows that a child could not have
been subjected to intercourse. It has been
submitted that the finding of facts is perverse
and requires to be upturned.

9. We would now be shifting to the evidence
on record. The provisions of Section 375 read with
Section 376 I.P.C reads as follows:-

[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 nonverbal communication, communicates willingness
to participate in the specific sexual act.
1338 INDIAN LAW REPORTS ALLAHABAD SERIES

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.]

"376. Punishment for rape.--

(1)Whoever, except in the cases
provided for by sub-section (2), commits rape
shall be punished with imprisonment of either
description for a term which shall not be less
than seven years but which may be for life or for
a term which may extend to ten years and shall
also be liable to fine unless the women raped is
his own wife and is not under twelve years of
age, in which cases, he shall be punished with
imprisonment of either description for a term
which may extend to two years or with fine or
with both: Provided that the court may, for
adequate and special reasons to be mentioned in
the
judgment,
impose
a
sentence
of
imprisonment for a term of less than seven
years.

(2) Whoever,--

(a) being a police officer commits
rape--

(i) within the limits of the police
station to which he is appointed; or

(ii) in the premises of any station
house whether or not situated in the police
station to which he is appointed; or

(iii) on a woman in his custody or in
the custody of a police officer subordinate to
him; or
(b) being a public servant, takes
advantage of his official position and commits
rape on a woman in his custody as such public
servant or in the custody of a public servant
subordinate to him; or

(c) being on the management or on the
staff of a jail, remand home or other place of
custody established by or under any law for the
time being in force or of a woman's or children's
institution takes advantage of his official position
and commits rape on any inmate of such jail,
remand home, place or institution; or

(d) being on the management or on the
staff of a hospital, takes advantage of his official
position and commits rape on a woman in that
hospital; or

(e) commits rape on a woman knowing
her to be pregnant; or

(f) commits rape on a woman when she
is under twelve years of age; or

(g) commits gang rape, shall be
punished with rigorous imprisonment for a term
which shall not be less than ten years but which
may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and
special reasons to be mentioned in the judgment,
impose a sentence of imprisonment of either
description for a term of less than ten years."

10. The child was of four months even if we
consider the medical evidence it is with the
accused. The accused was in good relation with the
complainant and his family. The child was 4.5 kg
in weight, Dr. S.P.Rawat has conveyed that except
the internal parts there was no injuriey.

11. The learned Judge has opined that there
was injuries on the private part of the minor. Dr.
S.P. Rawat has categorically conveyed that it is not
because of sexual intercourse, however these
injuries would atleast bring to force that that
accused is guilty of commission of a lessor
offence.

12. Thus when blood was oozing from the
private parts, the facts are very clear on the basis
of the injuries which have been found on the
private parts of the minor and the fact that
findings are corroborated by P.W.-3. We also
concur with the same, however looking to the
factual scenario and 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:
11 All. Nadeem Vs. State of U.P.
1339

"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.". '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,
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
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.

13. 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.

14. 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
1340 INDIAN LAW REPORTS ALLAHABAD SERIES
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 and in the recent and latest
judgement of the Apex Court in Manoj Mishra
@ Chhotkau Vs. State of U.P. Decided on
08.10.2021 will permit us to punish him for a
period of 17 years with all remissions and fine
enhanced to Rs. 10,000/- looking to condition of
the accused which should be paid to the parents
of the prosecutrix who by now must have
become major.

15. In view of the above, this criminal
appeal is partly allowed.

16. Record and proceedings be sent back to
the trial court.

17. If the accused is not want in any
litigation, he may be set free forthwith.

18. We are thankful to learned counsel for
appellant and learned AGA for the State who
have ably assisted the Court.
----------
(2021)12ILR A1340
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.12.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Criminal Appeal No. 6075 of 2006
with
Criminal Appeal No. 5482 of 2006

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

Counsel for the Appellants:
Sri Desh Ratan Chaudhary, Sri Birendra Singh
Khokher, Sri Pankaj Kumar Tyagi, Sri B.K.
Yadav, Sri F.N. Dubey, Kamla Mishra, Sri Md.
Khalid, Sri Pankaj Bharti, Sri Saurabh Gour, Smt.
Archana Tyagi, Sri Anish Kumar, Sri Santosh
Kumar, Sri A.B.L. Gour, Sri Mohd. Khalid, Sri
Shailendra Kumar Singh

Counsel for the Respondent:
A.G.A., Sri I.K. Chaturvedi

Indian Penal Code, 1860 - Sections 302 & 201 -
Arms Act,1878 - Section 25 - Murder -
Circumstantial evidence - Delayed F.I.R. &
discrepancy regarding date of recovery of dead
body & number of accused - As per F.I.R. dead
body of deceased was found on 20.03.2002 7
thereafter F.I.R. was lodged on 21.03.2002 at
about 12.45 P.M. in the noon but P.W.-1 (first
informant) stated that the deceased was
searched on 20.03.2002 & dead body was found
on 21.03.2002 then F.I.R. was lodged - this
discrepancy regarding recovery of dead body
not explained by the prosecution - Non
examination
llast
seen
witness
effect
-
According to prosecution, deceased was taken
away from the house by accused & last seen by
witnesses, Krishnapal and Sardar Singh -
however relevant witnesses Krishnapal and
Sardar Singh were not examined by prosecution
& no explanation was given for their nonexamination
which
creates
doubt
upon
prosecution story - alleged eye witnesses P.W.-1
and P.W.-3 considered to be unreliable as their
names were not mentioned in F.I.R nor their
names were told by last seen witness Krishnapal
and Sardar Singh to informant - recovery of firearm from accused after about 14 days of
incident from an open space in absence of any
public witness of recovery, is highly doubtful -
possibility of murder of deceased by unidentified
culprits and false implication of appellants in
belated FIR due to enmity - prosecution failed to
prove charges by any reliable, cogent and
independent
evidence
to
the
hilt
beyond
reasonable doubt - accused entitled to the
benefit of doubt. (Para 27, 28, 31)

Allowed. (E-5)