# Nand Kishore @ Seth Pasi v. State of U.P

- **Citation:** (2014) 2 ILRA 938
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-07
- **Case number:** Criminal Appeal No. 973 of 2006
- **Bench:** Imtiyaz Murtaza, Ashwani Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nand-kishore-seth-pasi-v-state-of-u-p-43046
- **Pages:** 6

## Headnote

Code of Criminal Procedure-Section 374(2)-
Criminal Appeal-against conviction of life
imprisonment with fine of Rs. 10,000/- u/s
376 IPC-Appeal on ground appellant having
no previous criminal history-confined in jail
since 2004-according to medical opinion
age of victims was between 13 to 14 yearsbut in opinion of Court less than 16 yearsCourt has to strike just balance-period of
incarceration-enough punishment modifiedalready undergon-fine imposed by Trail
Court confirmed-compensation to victim-be
paid without delay-in case of default-have
to go 3 years rigorous imprisonment-appeal
disposed of.

Held: Para-22 & 23

## Text

938 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, submitted by Assistant Director
(Saving), is illegal and without jurisdiction. It
would not qualify to be a relevant document
on which an order under Rule 3(5) read with
Proviso to Section 95(1)(g), for cessation of
administrative and financial powers of Gram
Pradhan, could have been passed, in view of
law laid down by Full Bench in Vivekanand
Yadav (supra).

17.

Even
otherwise,
Assistant
Director (Saving) is not a District Level
Officer and, therefore, he would not satisfy
definition of "Enquiry Officer" under Rule
2(c) of Rules, 1997. His report therefore,
also cannot treated to be a "preliminary
enquiry report" submitted by a Enquiry
Officer, as defined in Rules 1997. That
being so, such a report cannot constitute a
valid material to pass an order for cessation
of financial and administrative powers
under Section 95(1)(g) Proviso, read with
Rule 3(5) of Rules, 1997.

18. In the result, the writ petition
succeeds and is allowed. The impugned
order dated 19.12.2013 (Annexure 9 to
the writ petition) being wholly illegal and
without jurisdiction, is hereby quashed.

19. The petitioner shall be entitled to
cost, which I quantify to Rs.5,000/-.
--------
APPELATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.08.2014

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE HON'BLE ASHWANI KUMAR SINGH, J.

Criminal Appeal No. 973 of 2006

Nand Kishore @ Seth Pasi ...Appellant
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Sri Amol Kumar, Sri Brij Mohan Sahai
Sri Mukesh Kumar Tewari, Sri Rajendra
Prasad Mishra, Sri Vinod Kumar Mishra

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure-Section 374(2)-
Criminal Appeal-against conviction of life
imprisonment with fine of Rs. 10,000/- u/s
376 IPC-Appeal on ground appellant having
no previous criminal history-confined in jail
since 2004-according to medical opinion
age of victims was between 13 to 14 yearsbut in opinion of Court less than 16 yearsCourt has to strike just balance-period of
incarceration-enough punishment modifiedalready undergon-fine imposed by Trail
Court confirmed-compensation to victim-be
paid without delay-in case of default-have
to go 3 years rigorous imprisonment-appeal
disposed of.

Held: Para-22 & 23
22. However, having regard to the
extenuating circumstances pointed out
by the learned counsel in the instant
case,
especially,
the
fact
that
the
appellant is in jail for complete ten years
as on today, we feel that present period
of incarceration is enough and he should
not be made to further suffer the
consequences of his bestiality.

23. In view of the law, as discussed
above, and in view of the facts and
circumstances of the case, we find that the
ends of justice would successfully meet if
the appellant is awarded punishment
already undergone by him. The fine
imposed by the trial court is upheld. The
appellant shall pay the fine, if the same
has not already been paid, within sixty
days from the date of receipt of record by
the learned trial Court, which, shall, in
turn,
pay
a
sum
of
7000/-,
as
compensation to the victim, without delay.
In the event of default in payment of fine,
the appellant shall have to undergo
rigorous imprisonment for three years.
2 All]. Nand Kishore @ Seth Pasi Vs. State of U.P.
939
Case Law discussed:
2000 Crl. L.J. 2286: (2000) 6 SCC 168.

(Delivered by Hon'ble Ashwani Kumar
Singh, J.)

1. This appeal under Section 374(2)
Cr.P.C. has been preferred by appellant Nand
Kishore @ Seth, son of Ram Dheraj against
the judgment and order dated 01.05.2006
passed
by
Special
Judge(S.C./S.T.)
Act/Addl. Sessions Judge Court No.2,
Balrampur in Sessions Trial No108/2004
(State of U.P. v. Nand Kishore @ Seth)
convicting and sentencing the appellant
under Section 376 I.P.C. for imprisonment of
life and a fine of Rs.10,000/- and in default
of payment of fine to further undergo R.I. of
three years. Out of the amount of fine,
Rs.7000/- was to be paid as compensation to
the victim.

2. Briefly stated, the prosecution case
is that victim (name withheld by us) daughter
of complainant, Chinkau @ Radhey Shyam,
was aged about 10 years, on 29.6.2004 at
about 5:00 p.m. was playing at the door;
Appellant Nand Kishore @ Seth, son of Ram
Dheraj, whose house situates next to the
house of complainant Chinkau @ Radhey
Shyam, enticed the victim and took her to his
house; he committed rape on the victim who
came back to her house crying. Complainant
Chinkau @ Radhey Shyam, who was present
at the house, saw blood oozing out from
victim's private parts and when he enquired,
she narrated that appellant Nand Kishore @
Seth
after
removing
her
underpants,
committed sexual intercourse with her and
when she started weeping she was left.

3. The first information report(Ext.
'Ka'-4) of the present incident was lodged
on the same day, i.e. 29.6.2004 at 22:00
hours. The victim was examined at M.I.K.
Female Hospital, Balrampur on 30.6.2014 at
about 1:30 a.m. by P.W.6 Dr.Arunima
Srivastava.
On
1.7.2014
P.W.7
Dr.O.PSrivastava,Dental Surgeon took X-ray
of mandible lateral/view and opined the
victim's dental age to be 10-12 years(Ext.
'KA'-9). Dr.Y.P.Gupta(P.W.8) also X-rayed
right elbow, right wrist of victim; epiphysis of
Head of radius and lower end of radius & ulna
and medial epicondyle of the humerus and
found that they were not fused(Ext. 'Ka'-8).

4. The investigation was conducted
by S.I.Rajendra Prasad; the accused was
arrested on 1.7.2004; after completion of
the
investigation,
charge-sheet
was
submitted to the court of Chief Judicial
Magistrate. The court proceeded with
other
legal
formalities
and
then
committed the case to the Court of
Sessions. The accused denied charge
framed against him for the offence
punishable under Section 376 I.P.C. and
claimed to be tried.

5. The prosecution, to prove its case,
examined Chinkau @ Radhey Shyam
(P.W.1); Ram Pooran (P.W.2); the victim
(P.W.3);
Investigating
Officer
S.I.
Rajendra Prasad((P.W.4); H.C. Ashok
Kumar Singh(P.W.5); Dr. Smt. Arunima
Srivastava (P.W.6); Dr. O.P.Srivastava
(P.W.7) and Dr. Y.P.Gupta (P.W.8).

6. Ram Narain and accused Nand
Kishore @ Seth were examined as D.W. 1
and 2 respectively.

7. I have heard learned counsel for
the parties and perused the record of the
trial court.

8. The Medical Report of the victim
examined
by
P.W.6
Dr.Arunima
Srivastava - the general examination
940 INDIAN LAW REPORTS ALLAHABAD SERIES
revealed - the girl child is of 27 kg Wt.,
Ht. 127 c.m., teeth 6/6; 6/6. pubic and
axillary hairs absent. No injury seen over
the body but due to internal bleeding her
Salwar and lower side of the back flap of
Kurta is soaked in blood.

Internal Examination : - Index finger
passed with difficulty into the Vagina.
There is a linear tear in the right wall of
the Vagina.

Investigation - (1) Referred to the
Dental
Surgeon
Memorial
Hospital,
Balrampur for exact Dental age of the
child. (2) Referred to the Radiologist for
X-ray of Rt. Elbow - Rt.Wrist for
radiological evaluation of the age. (3)
Vag. Smear prepared and sealed and sent
to the Pathologist, Dufferin Hospital,
Gonda. (4) Blood soaked clothes sealed
and sent to Pachperwa, Kotwali.

X-ray report was given by Dr.
O.P.Srivastava, Dental Surgeon(P.W.7)
and Dr.Y.P.Gupta(P.W.8), Radiologist.
Both the Doctors opined age of the victim
to be 10-12 years.

9. The evidence adduced by
Dr.Arunima Srivastava (P.W.6) indicates
that, looking to the report (Ext. 'Ka'-8) of
Radiologist and report(Ext. 'Ka'-9) of
Dental
Surgeon
and
from
physical
appearance, the victim appeared to be of
12 years. She also stated that it could be
in between 13-14 years as well. She also
stated that she found blood oozing out
from vagina. She has stated in her
examination-in-chief that she was playing
in front of house of Vishwanath, which is
near to her house. Appellant Nand
Kishore called her and took her to his
house and committed sexual intercourse
with her. She wept and raised alarm, she
came to her house and narrated the whole
incident to her father. This witness further
stated that she was medically examined
and her statement was recorded in Court.
This witness was cross-examined but
nothing could be evolved in favour of the
defence.

10. For the narrowed compass of
consideration in this case i.e. whether the
accused was the rapist, the most decisive
evidence is the testimony of the victim
herself, none else will be more competent
than her to tell the Court as to who raped
her. The aforesaid materials, i.e. medical
evidence and statement of the victim are
sufficient to show, beyond any spec of
doubt, that the victim was sexually
ravaged by appellant Nand Kishore @
Seth.

11. The scrutiny of the total
evidence as well as discussions made by
learned court below suggests that the
learned trial court has analysed the
evidence in a pragmatic manner and has
reached to the correct conclusion. The
learned trial court has wisely discussed
and intelligently reached to the conclusion
that the offence punishable under Section
376 I.P.C. is made out against appellant
Nand Kishore @ Seth.

12. Learned counsel does not
dispute the complicity of the appellant in
the
present
crime
but
prays
for
considering the sentence awarded to the
appellant by the court below. In the
present case, appellant Nand Kishore @
Seth has been sentenced for life for the
offence committed by him. Thus, while
considering the sentence, we have to bear
in mind that the offence was committed
after the enforcement of Criminal Law
Amendment Act (CLAA) No.43 of 1983.
2 All]. Nand Kishore @ Seth Pasi Vs. State of U.P.
941
So the provision prescribing more rigorous
sentence must apply if the offence falls
within the purview of sub-section (1) of
Section 376, and then he "shall be punished
with imprisonment of either description for a
term which shall not be less than seven
years". If the offence falls under sub-Section
(2)(f) "commits rape on an woman when she
is under 12 years of age" the offender is
liable to 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."

13. The question of age of victim is,
therefore, important in this area. If she
was below the age of 12, on the date of
occurrence the minimum sentence would
be rigorous imprisonment for 10 years.

14. P.W. 5, Dr.(Smt.)Arunima
Srivastava in her cross-examination has
stated that the victim could be of 13-14
years in age.

15. P.W.8 Dr. Y.P.Gupta in his
examination-in-chief has stated that the
victim was less than 16 years and could
be aged in between 10-12 years.

16. The trial court has given a
finding, after considering the evidence of
P.W.6, P.W.7, and P.W.8, that the age of
the victim was in between 10-12 years.
The trial court ought to have weighed the
evidence of age by considering the
statement of P.W.6 Dr.(Smt.)Arunima
Srivastava given in her cross-examination
where she had stated that the victim could
be of 13-14 years of age and also the
evidence of P.W.8 Dr.Y.P.Gupta who
stated in his examination-in-chief that the
victim was less than 16 years. Therefore,
we feel that it would not be unsafe if we
say that the victim had crossed 12 years in
age but was less than 16 years.

17. Learned counsel for the
appellant has made a serious endeavour to
reduce the sentence to the sentence
already undergone and to compensate the
victim financially.

18. So far as the sentence in the
present case is concerned, the court has to
strike a just balance. In the present case,
the occurrence took place on 29.6.2004,
i.e. ten years back, when the appellant
was 23 years of age.

19. We are informed that the
appellant
has
no
other
criminal
antecedent. The appellant is in jail since
1.7.2004 and the record reveals that he
has not come out from jail even for a
single day. These are some of the factors
which we need to take into consideration
while imposing appropriate sentence on
appellant.

20. Learned counsel states that in
view of the above special mitigating
circumstance, which exists in favour of
the appellant, this Hon'ble Court may take
a sympathetic view of the matter.

21. In a reported case, T.K.Gopal @
Gopi v. State of Karnataka (2000 Crl. L.J.
2286: (2000) 6 SCC 168), Hon'ble the
Supreme Court observed in paras 13, 14,
15 & 18 as under :

"13. In the matter of punishment for
offence committed by a person, there are
many approaches to the problem. On the
commission of crime, three types of
reactions may generate: the traditional
reaction of universal nature which is
942 INDIAN LAW REPORTS ALLAHABAD SERIES
termed as punitive approach. It regards
the criminal as a notoriously dangerous
person who must be inflicted severe
punishment to protect the society from his
criminal assaults. The other approach is
the therapeutic approach. It regards the
criminal as a sick person requiring
treatment, while the third is the preventive
approach which seeks to eliminate those
conditions from the society which were
responsible for crime causation."

"14. Under the punitive approach,
the rationalisation of punishment is based
on retributive and utilitarian theories.
Deterrent theory which is also part of the
punitive approach proceeds on the basis
that the punishment should act as a
deterrent not only to the offender but also
to others in the community."

"15. The therapeutic approach aims
at curing the criminal tendencies which
were
the
product
of
a
diseased
psychology. There may be many factors,
including family problems. We are not
concerned
with
those
factors
as
therapeutic approach has since been
treated as an effective method of
punishment which not only satisfies the
requirements of law that a criminal
should be punished and the punishment
prescribed must be meted out to him, but
also reforms the criminal through various
processes, the most fundamental of which
is that in spite of having committed a
crime, maybe a heinous crime, he should
be treated as a human being entitled to all
the basic human rights, human dignity
and human sympathy. It was under this
theory that this Court in a stream of
decisions, projected the need for prison
reforms, the need to acknowledge the vital
fact that the prisoner, after being lodged
in jail, does not lose his fundamental
rights or basic human rights and that he
must be treated with compassion and
sympathy. [See: Sunil Batra v. Delhi
Admn. [(1978) 4 SCC 494 : 1979 SCC
(Cri) 155 : AIR 1978 SC 1675 : (1979) 1
SCR 392] , Sunil Batra (II) v. Delhi
Admn. [(1980) 3 SCC 488 : 1980 SCC
(Cri) 777 : AIR 1980 SC 1579 : (1980) 2
SCR 557] , Charles Sobraj v. Supdt.,
Central Jail, Tihar [(1978) 4 SCC 104 :
1978 SCC (Cri) 542 : AIR 1978 SC 1514]
and
Francis
Coralie
Mullin
v.
Administrator, Union Territory of Delhi
[(1981) 1 SCC 608 : 1981 SCC (Cri) 212
: AIR 1981 SC 746 : (1981) 2 SCR 516]
.]"

"18.
Here,
in
India,
statutory
provision for psychotherapic treatment
during the period of incarceration in the
jail is not available, but reformist
activities are systematically held at many
places with the intention of treating the
offender psychologically so that he may
not repeat the offence in future and may
feel repentant of having committed a
dastardly crime."

22. However, having regard to the
extenuating circumstances pointed out by
the learned counsel in the instant case,
especially, the fact that the appellant is in
jail for complete ten years as on today, we
feel that present period of incarceration is
enough and he should not be made to
further suffer the consequences of his
bestiality.

23. In view of the law, as discussed
above, and in view of the facts and
circumstances of the case, we find that the
ends of justice would successfully meet if
the appellant is awarded punishment
already undergone by him. The fine
imposed by the trial court is upheld. The
2 All]. Ram Chandra-II Vs. State of U.P. & Ors.
943
appellant shall pay the fine, if the same
has not already been paid, within sixty
days from the date of receipt of record by
the learned trial Court, which, shall, in
turn,
pay
a
sum
of
7000/-,
as
compensation to the victim, without
delay. In the event of default in payment
of fine, the appellant shall have to
undergo rigorous imprisonment for three
years.

24. The Office is directed to send
the lower court record along with copy of
the judgment to the learned trial court,
without delay, so as to ensure that it
reaches the learned trial court within
twenty days from today.

25. With the above observations, the
appeal is disposed of, in such a fashion
that it is partly allowed. The conviction is
confirmed but the sentence is modified to
the extent, as stated above.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.08.2014

BEFORE
THE HON'BLE SANJAY MISRA, J.
THE HON'BLE BRIJESH KUMAR
SRIVASTAVA-II, J.

Writ Petition No. 1458(S/B) of 2011

Ram Chandra-II... Petitioner
Versus
State of U.P. & Ors. ... Respondents

Counsel for the Petitioner:
Sri O.P. Srivastava, Sri Virendra Kumar
Dubey

Counsel for the Respondents:
C.S.C., Sri Manish Kumar

Constitution
of
India,
Art.-311(2)-
Dismissal from service-challenged on
ground of violation of principle
of
Natural
Justice-finding
recorded
by
enquiry officer not found in any manner
perverse-dismissal
order
neither
arbitrary
not
could
be
termed
as
disproportionate-warrant
no
interference-petition dismissed.

Held: Para-36
From the perusal of above noted laws and
factual position of the case, it is evident
that the departmental proceeding has
been concluded in a lawful manner and the
petitioner has been provided with an
opportunity
of
being
heard
and
to
participate
in
the
departmental
proceedings. As discussed earlier, charge
nos. 1 and 2 have been found proved
though
the
petitioner
denied
his
involvement with the car in question, but
the finding of the Enquiry Judge was
recorded otherwise based on materials
available on record. Hence, the stand
taken by the petitioner that the rules of
natural justice has been violated while
conducting the enquiry is not at all tenable
in the eyes of law. The order passed by the
State
Government
dated
15.04.2011,
dismissing the petitioner from service,
cannot be faulted with in any manner.

Case Law discussed:
[2013 (31) LCD 762]; (2010) 12 SCC 783;
(2011) 11 SCC 324; (1997) 6 SCC 339; (1993)
2 SCC 56.

(Delivered by Hon'ble B.K. Srivastava-II, J.)

1. The petitioner was selected by the
Lok Sewa Ayog Uttar Pradesh and he
joined
as
Judicial
Officer
(Munsif
Magistrate) on 06.04.1981. The petitioner
was promoted in the Uttar Pradesh Higher
Judicial Services on 15.05.2001 and
posted as Additional District Judge. In
June, 2009, the petitioner was transferred
as Additional District Judge, Agra where
he resumed his charge on 09.06.2009. The
petitioner was placed under suspension
vide
order
dated
03.08.2009
in