# Pawan Kumar Mishra (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 352
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-13
- **Case number:** Criminal Appeal No. 1615 of 2006
- **Bench:** Ramesh Sinha, Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-mishra-in-jail-v-state-of-u-p-46770
- **Pages:** 7

## Headnote

Evidence Law - Indian Evidence Act,
1872-
Section
6-
Res
Gestae-
Admissibility of Evidence- Accused was
also
identified
by
her
during
her
examination before the court and she
further
stated
that
accused
Pawan
Kumar Mishra present in the court had
committed rape to her.- PW-3 - She also
during her examination corroborated the
statement of victim.- PW-1 Virendra
Kumar Agnihotri, the father of the victim
is also the informant also corroborated
the statement of victim in regard to
occurrence as was told by victim to her
parents respectively- The statement of
PW-3 and PW-1 who are parents of the
victim though are not the eye-witness,
yet their evidence is admissible under
Section 6 of the Evidence Act. which
corroborates the substantive evidence of
the testimony of PW-2 .- The conviction
of the accused for the charge under
section 376 and 506 I.P.C., is proved
beyond the reasonable doubt and the
same
is
affirmed
in
view
of
the
appreciation of the evidence.

Where
the
testimony
of
the
witnesses
corroborates the substantive evidence and form
a part of the same transaction, then such
evidence would be admissible.

Criminal Law - Indian Penal Code, 1860-
Section 376- Section 506- Quantum of
sentence- The objective of criminal law in
imposing appropriate sentence must be
judged commensurate with nature of
gravity of the crime and the manner in
which the crime is committed. The twin
objective
of
sentencing
policy
is
deterrence or correction depends upon the
facts and circumstances of each case to
meet the ends of justice. The court should
take into consideration the nature of the
offence, gravity of the crime and other
attending circumstances. The offence of
rape is a social stigma and rape with a
tender age of child is very heinous crime
than that of other adult female.

Settled law that sentence is awarded on the
considerations of the gravity of the offence,
manner of its commission and its impact on the
society. In the facts of the case, as the offence
involves the rape of a minor, hence no
interference in the quantum of sentence
awarded by the trial court is warranted. ( Para
17, 20, 22, 27, 31, 32)

Criminal appeal accordingly rejected. (E-2)

Judgements/ Case law relied upon:-

## Text

352 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment to the learned court below for
information and necessary compliance as
warranted.
----------
(2021)01ILR A352
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH CHAND, J.

Criminal Appeal No. 1615 of 2006

Pawan Kumar Mishra ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sarvesh, Sri Suneel Kumar Mishra

Counsel for the Opposite Party:
A.G.A.

Evidence Law - Indian Evidence Act,
1872-
Section
6-
Res
Gestae-
Admissibility of Evidence- Accused was
also
identified
by
her
during
her
examination before the court and she
further
stated
that
accused
Pawan
Kumar Mishra present in the court had
committed rape to her.- PW-3 - She also
during her examination corroborated the
statement of victim.- PW-1 Virendra
Kumar Agnihotri, the father of the victim
is also the informant also corroborated
the statement of victim in regard to
occurrence as was told by victim to her
parents respectively- The statement of
PW-3 and PW-1 who are parents of the
victim though are not the eye-witness,
yet their evidence is admissible under
Section 6 of the Evidence Act. which
corroborates the substantive evidence of
the testimony of PW-2 .- The conviction
of the accused for the charge under
section 376 and 506 I.P.C., is proved
beyond the reasonable doubt and the
same
is
affirmed
in
view
of
the
appreciation of the evidence.

Where
the
testimony
of
the
witnesses
corroborates the substantive evidence and form
a part of the same transaction, then such
evidence would be admissible.

Criminal Law - Indian Penal Code, 1860-
Section 376- Section 506- Quantum of
sentence- The objective of criminal law in
imposing appropriate sentence must be
judged commensurate with nature of
gravity of the crime and the manner in
which the crime is committed. The twin
objective
of
sentencing
policy
is
deterrence or correction depends upon the
facts and circumstances of each case to
meet the ends of justice. The court should
take into consideration the nature of the
offence, gravity of the crime and other
attending circumstances. The offence of
rape is a social stigma and rape with a
tender age of child is very heinous crime
than that of other adult female.

Settled law that sentence is awarded on the
considerations of the gravity of the offence,
manner of its commission and its impact on the
society. In the facts of the case, as the offence
involves the rape of a minor, hence no
interference in the quantum of sentence
awarded by the trial court is warranted. ( Para
17, 20, 22, 27, 31, 32)

Criminal appeal accordingly rejected. (E-2)

Judgements/ Case law relied upon:-

1. St. of U.P. Vs Ramesh (2001) 2 SCC 493

2. Mukhtiyar Singh Vs St. of Punj. AIR 2009
SC 1854

3. S. Ram Krishna Vs St. Rep. by PP, A.P
Hyderabad (2008) 8 SCC 617

4. St. of M.P. Vs Bala @ Bala Ram AIR 2005
SC 3567

5. St. of Karnataka Vs Raju (2007) 11 SCC
490
1 All. Pawan Kumar Mishra Vs. State of U.P.
353
(Delivered by Hon'ble Subhash Chand, J.)

1. The instant Criminal Appeal has
been preferred on behalf of the appellantconvict Pawan Kumar Mishra against the
State of U.P., against the judgment and
order dated 18.2.2006 passed by the
Additional Sessions Judge, Court No. 3,
Fatehpur in Sessions Trial No. 251 of 2005
(State Vs. Pawan Kumar Mishra) arising
out of Case Crime No. 75 of 2004 under
Sections 376 and 506 I.P.C., P.S. Jafarganj,
District Fatehpur whereby the appellant had
been convicted and sentenced to life
imprisonment and a fine of Rs. 10,000/-
was also ordered to undergo further
imprisonment of two years in default of
payment of fine and further convicted and
sentenced for the offence under section 506
I.P.C with imprisonment of 3 years and a
fine of Rs. 1,000/- was also ordered to to
undergo further imprisonment of two
months in default of payment of fine. All
the sentences were to run concurrently.

2. The facts giving rise to this appeal
in brief are that the informant Virendra
Kumar, son of Jagdev Prasad Agnihotri,
resident of village Kamasin, P.S. Jafarganj,
District Fatehpur lodged F.I.R. with the
concerned
police
station
with
these
allegations that on 24.10.2004 at 5 p.m., his
daughter Luxmi Devi 6 years old was
playing under the Plum Tree nearby the
house of Uma Shankar, son of Mahabir
Pandey and was plucking plums; at the
same time Pawan Kumar Mishra, son of
Devi Prasad Mishra, 22 years old of the
village attracted there and enticed away his
daughter in a dilapidated house of Uma
Shankar and committed rape to her
whereby the blood was also oozing and his
weeping daughter came to the house and
told in regard to woe-tale to her mother. On
this information he also reached to the
place of occurrence and found blood there.
There may, persons of the village also
witnessed the place of occurrence along
with him. His daughter was also criminally
intimidated by Pawan Kumar Mishra if she
disclosed in regard to occurrence. He and
persons of the village made search of
Pawan Kumar Mishra but he fled away. On
this report the Case Crime No. 75 of 2004
was registered against Pawan Kumar
Mishra under Section 376 and 506 I.P.C.,
with the police station concerned.

3. The Investigating Officer after
concluding the investigation filed the
charge sheet against the accused Pawan
Kumar Misrha under Sections 376 and 506
IPC before the court of Chief Judicial
Magistrate, Fatehpur who after taking
cognizance of the same committed the case
to the Court of Sessions for trial which was
in turn transferred to the court of
Additional Sessions Judge, Court No. 3,
Fatehpur.

4. The trial court framed the charge
against the accused under sections 376 and
506 I.P.C., and the charge was read over
and explained to the accused which was
denied by him and claimed for trial.

5. On behalf of prosecution to prove
the
charge
against
the
accused
in
documentary evidence filed the written
information Exhibit Ka-1 Radiological
examination report in regard to age of
victim, Exhibit Ka-2, Medical Examination
report of victim, Exhibit Ka-3 and Ka-4,
Chik F.I.R. Exhibit Ka-5, G.D. Entry,
Exhibit Ka-6, Site plan of the place of
occurrence Exhibit Ka-7 charge sheet
Exhibit Ka-8, Recovery Memo in regard to
blood stained clay and plain clay, Exhibit
Ka-9, Recovery Memo in regard to taking
in possession blood stained panty of the
354 INDIAN LAW REPORTS ALLAHABAD SERIES
victim, Exhibit Ka-10 and in oral evidence
examined
PW-1
Virendra
Kumar
Agnihotri-informant, PW-2 Luxmi Devi,
PW-3 Sarojani Devi, PW-4 Dr. M.C.
Tiwari, PW-5 Doctor B.K. Sharma, PW-6
Doctor Sudha Kashmiri, PW-7 Head
Constable Ishwar Chand and PW-8, SubInspector Sheshmani.

6. The statement of accused under
section 313 Cr.P.C., was recorded in which
he denied the incriminating circumstances
in the evidence against him. No defence
evidence was filed on behalf of the
accused.

7. The learned trial court after hearing
the
contentions
of
the
rival
parties
convicted the accused for the offence under
section 376 and 506 IPC and sentenced as
said above vide judgment dated 18.2.2006.

8. Aggrieved by the impugned
judgment dated 18.2.2006 this criminal
appeal has been preferred on behalf of the
appellant-convict Pawan Kumar Mishra on
the ground that the conviction of the
appellant is against the weight of the
evidence on record. The sentence awarded
to the appellant is very severe. In Medical
Examination Report neither dead or alive
supurmetoza was found and there was no
injury in the private part of the victim.
There was also dispute of the property
between informant and the appellant's
father. Accordingly, prayed to allow the
appeal and set-aside the conviction and
sentence by the trial court.

9. We have heard Sri Suneel Kumar
Mishra, learned counsel for the appellant,
Sri Gaurav Pratap Singh, learned A.G.A.,
and perused the materials brought on
record.

10. Learned counsel for the appellant
has submitted that this appeal has been
preferred
challenging
the
order
of
conviction and sentence on merits; but he is
arguing this appeal only on reduction of
quantum of sentence. The appellant-convict
has served out sentence about 16 years. The
appellant was 22 years of old at time of
occurrence and keeping in view the future
prospect of being reformed his sentence
may be reduced.

11. Learned A.G.A., vehemently
opposed the contentions made on behalf of
learned counsel for the appellant and
contended that the victim was below 12
years of age at the time of occurrence and
keeping in view the nature of the offence
which is social stigma contended to uphold
the sentence passed by the trial court and to
dismiss this appeal.

12. Though this appeal has been
preferred
challenging
the
impugned
judgment on merits, yet the learned counsel
for the appellant argued only on the point
of reduction of quantum of sentence.
However, keeping in view the grounds
taken
in
this
appeal,
it
will
be
appropriate to decide this appeal on
merits also.

13. On behalf of the prosecution to
prove the prosecution examined PW-2
Luxmi who is victim of the occurrence. As
per prosecution case victim was 6 years old
at the time of occurrence. During her
examination she has stated that at the time
of occurrence she was plucking plum.
Accused was also identified by her during
her examination before the court and she
further stated that accused Pawan Kumar
Mishra present in the court had committed
rape to her. The blood was oozing from her
1 All. Pawan Kumar Mishra Vs. State of U.P.
355
private parts. She reached her house and
narrated the whole episode to her mother.

14. PW-3 Sarojani Devi is the
mother of the victim. She also during her
examination corroborated the statement of
victim.
PW-1
Virendra
Kumar
Agnihotri, the father of the victim is also
the
informant
proved
the
written
information Exhibit Ka-1 and has stated
that on coming to know from her daughter
in regard to occurrence he immediately
reached to the place of occurrence and saw
blood there and also corroborated the
statement of victim in regard to occurrence
as was told by victim to her parents
respectively.

15. This ocular evidence adduced on
behalf of the prosecution was also
corroborated with medical evidence. PW4 Doctor M.C. Tiwari, Radiologist
proved the radio-logical report Exhibit
Ka-2 in regard to ossification test
pertaining to age of victim in which age
of victim was opined to be 9 years. PW-5
Doctor B.K. Sharma proved the medical
examination and referal slip of the
victim's examination by lady doctor,
Exhibit Ka-3. During examination he
found the number of intact RBC Cells
and occasional pus cells present in the
vagina. PW-6 Doctor Sudha Kashimiri
proved the medical examination report of
the victim Exhibit Ka-4 and found the
breast
not
developed,
blood
dried
discharge in the valva was seen and
also stated that this bloody dried
discharge in the valva can be caused
due to insertion of hard object, it may
be
by
sexual
intercourse
also.
Therefore, the medical evidence also
corroborates the ocular evidence in
regard to commission of the rape with the
victim.

16. Moreover, as corroborative
evidence on behalf of the prosecution also
examined PW-8, Investigating Officer
Sheshmani who after recording statement
of witness and concluding the evidence
filed charge sheet. This witness also
proved the blood stained Panty of victim
which was taken in possession and the
recovery memo of the same Exhibit Ka-10.
The blood stained clay and plain clay was
also taken in possession by the I.O., from
the place of occurrence. The recovery
memo of the same Exhibit Ka-9 is also
proved by the witness.

17. The statement of prosecutrix who
is victim of the occurrence is found trust
worthy. The statement of PW-3 Sarojani
Devi and PW-1 Virendra Kumar who are
parents of the victim though are not the
eye-witness,
yet
their
evidence
is
admissible under Section 6 of the Evidence
Act.

18. The Hon'ble Apex Court in State
of U.P. Vs. Ramesh (2001) 2 SCC 493 the
res gestate is an exception to the general
rule of hearsay evidence although not in
issue directly, yet is so connected with the
fact in issue as to form the part of the same
transaction. PW-1 eye-witness immediately
after the occurrence told to PW-2 in regard
to occurrence. The statement of PW-10 is
indicating that PW-2 had come to him and
told in regard to occurrence is admissible.

19. The Hon'ble Apex Court held in
Mukhtiyar Singh Vs. State of Punjab AIR
2009 SC 1854 that the evidence of
witnesses who came to the scene of
occurrence
immediately
after
the
occurrence, though he did not saw the
accused persons causing occurrence, but
come to know about the same from the eyewitness. Although the information was
356 INDIAN LAW REPORTS ALLAHABAD SERIES
hearsay
yet
same
corroborated
the
substantive
evidence
of
eye-witness;
therefore was admissible.

20. In view of the above case laws of
the Hon'ble Apex Court the statement of
PW-1 Virendra Kumar Agnihotri and PW-3
Sarojani Devi are admissible in evidence
which
corroborates
the
substantive
evidence of the testimony of PW-2 Luxmi
Devi.

21. The Hon'ble Apex Court also held
in S. Ram Krishna Vs. State represented
by PP, Andhra Pradesh Hyderabad (2008)
8 SCC 617 the testimony of prosecutrix of
sex offence can not be put at par that of
accomplice and the same can be relied
upon by the court unless and until she does
not have any strong motive to false
involvement of the accused.

22.

Moreover,
the
criminally
intimidation made by the accused is also
proved from the statement of PW-2 victim
and the same is also corroborated with the
statement
of
PW-2
Virendra
Kumar
Agnihotri and PW-3 Luxmi.

23. Therefore, the conviction of the
accused for the charge under section 376
and 506 I.P.C., is proved beyond the
reasonable doubt and the same is
affirmed in view of the appreciation of
the evidence.

24. The next question which is to be
considered by us is in regard to the
reduction of quantum of sentence on which
learned counsel for the appellant argued
that the sentence awarded to the convict is
too severe. The convict was 22 years of age
at the time of occurrence and has been
languishing in Jail for 16 years and further
submitted to reduce the sentence of the
convict to the extent which has been
undergone by him.

25. The court while awarding
sentence would take recourse to the
principle of deterrence or reform or to
invoke the doctrine of proportionality
which
depends
upon
the
facts
and
circumstances
of
each
case.
Certain
offences touch our social fabric. The
sentence, which is the ultimate goal of
justice delivery system, the purpose of
imposing the same must be kept in mind.

26. In the present case the victim was
7 years of old and the accused/convict was
22 years old at time of occurrence. The
convict being 22 years old at the time of
occurrence was quite mature. His act of
committing rape to 7 years baby is
abhorrent.

27. The objective of criminal law in
imposing appropriate sentence must be
judged commensurate with nature of
gravity of the crime and the manner in
which the crime is committed. The twin
objective of sentencing policy is deterrence
or correction depends upon the facts and
circumstances of each case to meet the ends
of justice. The court should take into
consideration the nature of the offence,
gravity of the crime and other attending
circumstances. The offence of rape is a
social stigma and rape with a tender age of
child is very heinous crime than that of
other adult female.

28. The Hon'ble Apex Court held in
State of M.P. Vs. Bala @ Bala Ram AIR
2005 SC 3567 rape is a heinous crime
which is against the society and against the
human dignity, which reduces a man to an
animal. Such an offence once it is proved,
lightly is itself an affront to the society. For
1 All. Pawan Kumar Mishra Vs. State of U.P.
357
reduction of the sentence, the reasons must
be relevant to exercise the discretion by the
court. The age of the offenders by itself is
not the adequate reason. Long pendency of
trial also can not be adequate reason. Under
the guise of reform theory the court can not
forget their duty to the society and to the
victim as well. The court has to consider
the plight of the victim and the social
stigma that may follow the victim to grave
and particularly ruins to the prospects of
normal life of the victim.

29. In State of Karnataka Vs. Raju
(2007) 11 SCC 490 Honb'ble the Apex
Court held that the physical scar may healup but the mental scar will always remain.
When a women is ravished, what is
inflicted is not merely physical injury but
the deep sense of some deathless shame.
The judicial response to human rights can
not be blunted by legal jugglery.

30. Since the rape was committed to a
baby being below the age of 12 years of
age in the year 2004, in view of section
376(2) (F) of IPC prior substituted by Act
13 of 2013, section 9, for section 376
(w.r.e.f.3.2.2013) the punishment for the
same is rigorous imprisonment for a term
which shall not be less than 10 years but it
may be for life and shall also liable to fine.

Provided that the court may for
adequate special reasons to be mentioned
in the judgment impose a sentence of
imprisonment of either description for a
term less than 10 years.

31. The learned trial court while
sentencing
the
convict
with
life
imprisonment for the charge under section
376 IPC has recorded a finding that the
victim was of a tender age and the accused
who also lived in the same vicinity and was
also uncle in relation committed rape to the
child of 7 years innocent girl was heinous
and affront to the society.

32. Keeping in view the aforesaid
case law of Hon'ble Apex Court and the
facts and circumstances of this case, tender
age of the victim and matured age of
accused, the sentence awarded to the
convict by the trial court does not bear any
infirmity and same needs no interference.

33. Accordingly, this criminal appeal
deserves to be dismissed.

34. This criminal appeal is hereby
dismissed. The judgment of conviction and
the sentence passed by the trial court in
Sessions Trial No. 251 of 2005 (State Vs.
Pawan Kumar Mishra) arising out of Case
Crime No. 75 of 2004 under Sections 376
and 506 I.P.C., P.S. Jafarganj, District
Fatehpur is confirmed. The Appellant/
convict shall serve out sentence as awarded
by the trial court.

35.

Let
the
copy
of
this
judgment/order be certified to the court
concerned for necessary information and
follow up action.

36. The party shall file computed
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person(s)
(preferably
Aadhar
Card)
mentioning the mobile number(s) to which
the said Aadhar Card is linked.

37.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
358 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)01ILR A358
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 2183 of 2011

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

Counsel for the Appellant:
Sri Jai Singh, Anjum Vishakarma, Sri Lav
Srivastava, Sri Rupak Chaubey, Sri Anshul
Tiwari, Sri V.P. Srivastava

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Indian Penal Code -
Section 302 - Murder of wife - No
witnesses
except
Police
and
Doctor
supported the prosecution - Recovery of
bloodstained cloth - Not proved - Effect -
Circumstantial
evidence
-
Medical
evidence rather the ocular version of the
Doctor has been brushed aside by the
learned
Trial
Judge

-
Doctor
has
categorically stated in his oral deposition
that the injuries could have been caused
not only by scissors but by other weapons
also - Statement of the accused under
Section
313
Cr.P.C.
has
not
been
considered by the Court below - No
forensic expert's evidence - Evidence Act,
1872 - Ss. 27 and 114 - Presumption -
Conviction order of life imprisonment set
aside. (Para 15, 16, 19 and 23)
Criminal Appeal allowed. (E-1)
Cases relied on :-
1. Tarseem Kumar Vs Delhi Administration, 1994
SCC (Crl.) 1735
2. Joga Gola Vs St. of Guj., AIR 1982 SC 1227
3. Gambhir Vs St. of Mah., AIR 1982 SC 1157
4. Pulukuri Kottaya Vs King Emperor, Cr.L.J.
1947 (533)
5. Bakshish Singh Vs St. of Pun., AIR 1971 SC
2016
6. Union Territory of Goa Vs Boaventrua
D'Souza & anr., 1993 Cri. L.J. 181
7.
Criminal
Appeal
No.
437
of
2003,
Chetankumar Dahyabhai Patel Vs St. of Gujarat
decided by Gujarat High Court on 3.9.2013

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
& Hon'ble Gautam Chowdhary, J.)

1. Heard Sri V.P. Srivastava, learned
Senior Advocate assisted by Sri Anshul
Tiwari, learned Advocate for the appellant
and learned A.G.A. for the State.

2. At the outset, it is submitted that
the accused-appellant is in jail. This appeal
challenges the judgment and conviction
dated 11.2.2011 passed by the Additional
Sessions Judge, Court No.5, Varanasi in
Sessions Trial No. 546 of 2009 convicting
appellant under Sections 302 of Indian
Penal Code, 1860 (hereinafter referred to as
'I.P.Code') for life imprisonment with fine
of Rs.10,000/- and in default of payment of
fine, to undergo further six months
imprisonment.

3. Information came to be lodged
on 14.7.2009 which was converted into
investigative
F.I.R.
which
was
propelled by the father of the deceased.
The accused is the husband of the
deceased.