# Pintu Gupta (In Jail) v. State of U.P. & Anr

- **Citation:** (2022) 8 ILRA 318
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-28
- **Case number:** Criminal Appeal No. 4083 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pintu-gupta-in-jail-v-state-of-u-p-anr-48763
- **Pages:** 10

## Headnote

Criminal Law- Scheduled Castes and the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989- Section 3 (2) (v) -
Documentary
evidence
showing
what
caste to the offender and the injured
belong has not been brought on record.
For attracting the provisions of Section 3
(2) (v) of SC/ST Act, there should be
corroboration by way of documentary
evidence to prove that the injured, on
whom the act is committed, belongs to
'Scheduled Castes' or 'Scheduled Tribes'-
No
independent
witness
have
been
examined who would depose that the
accused committed the offence on the
ground
that
injured
belonged
to
a
community covered under SC/ST Act. This
omission proves fatal for the prosecution
in such a vital matter where punishment is
for life imprisonment. The learned Judge
has not even discussed the evidence and
only on the basis of caste, he held that the
offence was deemed to be committed.
There is no deeming provision under
SC/ST Act- Conviction and sentence under
Section 3 (2) (v) of the accused-appellant
is, therefore, set aside.

Where the prosecution has failed to prove the
caste of the injured by documentary evidence
and there is no independent corroboration of
the bald allegation that the offence was
committed on the ground that the injured
belonged to the SC/ST community, then the
conviction under Section 3 (2) (v) of SC/ST Act
will be rendered illegal.

Indian Penal Code, 1860- Section 326-The
provisions of Section 326 of IPC relates to
voluntary
causing
grievous
hurts
by
dangerous weapons or means. In this case
the glass bottle filled with acid was used
as weapon of offence and/or substance
which is deleterious to the human body
and, therefore, ingredients of Section 326
of IPC are made out- Section 320, Sixthly,
designate "Permanent disfiguration of the
head or face" as 'grievous hurt' which is
punishable under Section 326 of IPC. The
present offence falls in the said category.

 As the weapon of offence is a glass bottle filled
with acid resulting in grievous hurt to the
injured, hence the offence would fully come
within the purview of Section 326 of the IPC.

Quantum
of
sentence-
Doctrine
of
Proportionality- 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- criminal jurisprudence in
our country which is reformative and
corrective
and
not
retributive-
'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'.
We reduce the sentence to 9 years'
incarceration.

Settled law that punishment should not be
either unduly harsh or ridiculously inadequate
but it ought to be proportionate to the gravity of
the offence as well as other factors. As the
criminal
jurisprudence
of
our
country
is
reformative and not retributive, hence applying
the doctrine of proportionality sentence reduced
to a period of nine years. (Para 21, 23, 26, 27,
28,29, 30)

Criminal Appeal partly allowed. (E-3)

List of Cases cited:

## Text

318 INDIAN LAW REPORTS ALLAHABAD SERIES
his statement has categorically stated that the
accused is dreaded criminal and he is scared of
him. Now this statement of Anirudh Yadav
leads to indicate that if the applicant is released
on bail, he may influence the witnesses. The
offence alleged against the accused is also
grave in nature and if charge is proved the
accused will be liable for severe punishment.

43. Though, it is true that the Court has
always emphasised that the personal liberty of
the person is prime consideration but that
personal liberty has to be exercised within the
bounds of the law and in a manner so that the
peace and tranquillity is not disturbed. The
courts have emphasised that valuable right of
liberty of an individual and the interest of
society in general has to be balanced while
considering bail application.

44. Now coming to the judgments relied
upon by learned counsel for the applicant at
paragraph 19 in the case of Ramakant Yadav
(supra), wherein this Court has held that the
criminal antecedent of the applicant would not
be a ground to refuse the bail to the applicantaccused when he is otherwise entitled to be
enlarged on bail which judgment has been
affirmed by the Apex Court in Maulana
Mohammed Amir Rashadi (supra), but the
facts of the case in Ramakant Yadav (supra)
are different from the facts of the present case
inasmuch in the case of Ramakant Yadav
(supra) the complainant and one more witness
was examined in the Court and in such
circumstances this Court found that chances of
tempering of witness is slender, therefore,
considering the nature of accusation against
the applicant in that case this Court granted
bail to the applicant.

45. In the instant case, the trial has not
yet commenced, and that the statement of the
witnesses has not yet been recorded by the
Court, therefore, keeping in view the criminal
antecedent of the accused, there is every
likelihood that he can influence or tamper the
evidence. Therefore, the judgment relied upon
by the learned counsel for the applicant is not
applicable in the facts of the present case.

46. Now so far as the issue of parity is
concerned, it is pertinent to note that this Court
while granting the bail to Ashraf @ Akhtar
Katra, Abrar Mulla @ Mohammad Abrar
Khan and Alok Sinha has not considered the
law of criminal history and further the orders
passed on bail application against the said coaccused person do not disclose as to what was
the criminal history of those accused persons,
therefore, this fact itself distinguishes the fact
of the applicant-accused against all the coaccused who have been granted bail by this
Court.

47. In such view of the fact, this Court
applying the principles elucidated by the Apex
Court is of the view that applicant is not
entitled to be enlarged on bail by this Court.
Accordingly, the bail application of applicantDilip Mishra is hereby rejected. Any
observation made hereinabove shall not
prejudice the trial of the accused-applicant.
----------
(2022) 8 ILRA 318
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2022

BEFORE

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

Criminal Appeal No. 4083 of 2017

Pintu Gupta ...Appellant (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
8 All. Pintu Gupta Vs. State of U.P. & Anr.
319
Sri Dharmendra Kumar Singh, Sri Rajesh
Yadav.

Counsel for the Opposite Parties:
G.A.

Criminal Law- Scheduled Castes and the
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989- Section 3 (2) (v) -
Documentary
evidence
showing
what
caste to the offender and the injured
belong has not been brought on record.
For attracting the provisions of Section 3
(2) (v) of SC/ST Act, there should be
corroboration by way of documentary
evidence to prove that the injured, on
whom the act is committed, belongs to
'Scheduled Castes' or 'Scheduled Tribes'-
No
independent
witness
have
been
examined who would depose that the
accused committed the offence on the
ground
that
injured
belonged
to
a
community covered under SC/ST Act. This
omission proves fatal for the prosecution
in such a vital matter where punishment is
for life imprisonment. The learned Judge
has not even discussed the evidence and
only on the basis of caste, he held that the
offence was deemed to be committed.
There is no deeming provision under
SC/ST Act- Conviction and sentence under
Section 3 (2) (v) of the accused-appellant
is, therefore, set aside.

Where the prosecution has failed to prove the
caste of the injured by documentary evidence
and there is no independent corroboration of
the bald allegation that the offence was
committed on the ground that the injured
belonged to the SC/ST community, then the
conviction under Section 3 (2) (v) of SC/ST Act
will be rendered illegal.

Indian Penal Code, 1860- Section 326-The
provisions of Section 326 of IPC relates to
voluntary
causing
grievous
hurts
by
dangerous weapons or means. In this case
the glass bottle filled with acid was used
as weapon of offence and/or substance
which is deleterious to the human body
and, therefore, ingredients of Section 326
of IPC are made out- Section 320, Sixthly,
designate "Permanent disfiguration of the
head or face" as 'grievous hurt' which is
punishable under Section 326 of IPC. The
present offence falls in the said category.

 As the weapon of offence is a glass bottle filled
with acid resulting in grievous hurt to the
injured, hence the offence would fully come
within the purview of Section 326 of the IPC.

Quantum
of
sentence-
Doctrine
of
Proportionality- 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- criminal jurisprudence in
our country which is reformative and
corrective
and
not
retributive-
'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'.
We reduce the sentence to 9 years'
incarceration.

Settled law that punishment should not be
either unduly harsh or ridiculously inadequate
but it ought to be proportionate to the gravity of
the offence as well as other factors. As the
criminal
jurisprudence
of
our
country
is
reformative and not retributive, hence applying
the doctrine of proportionality sentence reduced
to a period of nine years. (Para 21, 23, 26, 27,
28,29, 30)

Criminal Appeal partly allowed. (E-3)

List of Cases cited:

1. Crl. Appeal No. 707 of 2020 Hitesh Verma Vs
St. of U.K & anr. decd. on 5.11.2020

2. Crl. Appeal No. 1283 of 2019 Khuman Singh
Vs St. of M.P decd. on 27.8.2019

3. Crl. Appeal No. 8196 of 2008 Jai Karan @
Pappu Vs St. of U.P.) decd. on 10.11.2021
320 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Crl. Appeal No. 204 of 2021 Vishnu Vs St. of
U.P. decd. on 28.1.2021

5. Ram Das Vs St. of U.P., AIR 2007 SC 155

6. Dharmendra Vs St. of U.P., 2011 Cri LJ 204
(All)

7. St. of Guj. Vs Munna, 2016 Cri LJ 4097 (Guj)

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

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

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

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

12. Guru Basavraj Vs St. of Kar. [(2012) 8 SCC
734]

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

14. State of Punj. Vs Bawa Singh, [(2015) 3 SCC
441]

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

1. Heard Sri Rajesh Yadav, learned
counsel for the accused-appellant and Sri
Nagendra Srivastava, learned A.G.A.
assisted by Sri Akhilesh Kumar Tripathi,
learned A.G.A. for the State.

2. This appeal challenges the
judgment and order dated 13.6.2017
passed by IIIrd Additional Sessions
Judge, Court No.4, Jaunpur in Sessions
Trial No.74 of 2011 convicting accusedappellant, Pintu Gupta, under Sections
326
of
Indian
Penal
Code,
1860
(hereinafter referred to as 'IPC') and
Section 3 (2) (v) of Scheduled Castes and
the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred
to as SC/ST Act). The accused-appellant
was sentenced to rigorous imprisonment
of 10 years with fine of Rs. 25,000/-
under Section 326 of I.P.C. and was
sentenced to imprisonment for life with
fine of Rs.10,000/- under Section 3 (2)
(v) of SC/ST Act. Default sentences for
both the offences were one-year rigorous
imprisonment each. The date of sentence
was 14.6.2017.

3. Brief facts as culled out from the
record are that on the basis of the written
report, the F.I.R. came to be lodged
against the accused on 29.1.2011 by the
father of the injured as the injured was
hospitalized. The injured was caused burn
injuries by hitting him with a bottle in
which there was some liquid which is
said to be acid and the injured was taken
for medical treatment. The F.I.R. states
that the age of the accused-Pintu Gupta
was 20 years and that of the injuredSanju Kumar Benvanshi, namely the son
of the informant was 18 years at the time
of incident. It was further alleged in the
F.I.R. that looking to the incident there
was commotion in the public and public
started running here and there. As the
accused sprinkled acid on the face of the
injured, his face was badly burnt and for
some time his eyesight was lost. The First
Information
Report
was
lodged
on
29.1.2011. The incident occurred at 6.30
in the evening when people were sitting
in shops and were having their tea. Ladies
with their children were purchasing
vegetables and other grocery items.

4. The police, after recording
statements of P.W.2 namely the injured,
medical professionals namely, Dr. Prabha
Shankar Chaturvedi who had treated the
8 All. Pintu Gupta Vs. State of U.P. & Anr.
321
injured and the police authorities, laid the
charge-sheet
against
the
accused
on
4.2.2011.

5. The accused was committed to the
Court of Session as the case was triable by
the Court of Session. The learned Sessions
Judge framed charges on the accused on
27.4.2012. The accused pleaded not guilty
and wanted to be tried.

6. For bringing home the charge, the
prosecution has examined 7 witnesses who
are as under:

1
Rajendra Benvanshi
PW1
2
Sanju Kumar Benvanshi
PW2
3
Dr.
Prabha
Shankar
Chaturvedi
PW3
4
Dr. R.A. Chakravarti
PW4
5
Jayantri Lal
PW5
6
Vijendra Giri
PW6
7
Narendra Pratap Singh
PW7

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

1
F.I.R.
Ex.Ka.9
2
Written Report
Ex.Ka.1
3
Recovery Memo of
Pieces of Bottle of
acid and half burnt
grass
Ex. Ka.5
4
Search
Memo
&
Recovery of Pant
Ex.Ka.6
5
Injury Report
Ex.Ka.2
6
Bed Head Ticket
Ex. Ka.3
7
Charge-sheet
Ex.
Ka.
12
8
Site Plan with Index
Ex. Ka.11

8. The Court has also examined a
witness namely Kayam Mehndi. The
accused-appellant was examined under
Section 313, Cr.P.C. and the judgment of
the Sessions Judge was delivered on
13.6.2017 and the sentence was ordered on
14.6.2017.

9. This appeal came to be filed in
July, 2017 and was admitted by this Court.
The accused is in jail since 2.2.2011,
meaning thereby, he was under trial
prisoner and during trial he was not
enlarged on bail.

10. As far as factual aspects are
concerned,
learned
counsel
for
the
appellant has submitted that Section 326 of
IPC is not made out as injuries are not such
which would fall within the purview of
Section 326 of IPC. It is further submitted
by learned counsel for the appellant that
even if it is proved that the offence under
Section 326 IPC is made out, the
punishment is on higher side which
requires to be modified.

11. As far as commission of offence
under Section 3 (2) (v) of SC/ST Act is
concerned, it is submitted by learned
counsel that the F.I.R. nowhere states that
the
injured
belongs
to
a
particular
community. No documentary evidence to
prove the same is there. The documentary
evidence, so as to prove that the injured
belongs to Scheduled Caste or Scheduled
Tribe, has not been produced either before
Investigating Officer or Sessions Court.
The F.I.R. also according to the counsel for
the appellant does not state anything about
the same though the incident is said to have
occurred it was in public place. No
independent witness has been examined by
the prosecution except the father of the
injured whose presence at the place of
incident is very doubtful as in his
examination-in-chief, he has opined that he
does not know why the incident had
322 INDIAN LAW REPORTS ALLAHABAD SERIES
occurred.
In
his
statement,
he
has
mentioned that he is not aware whether
accused-appellant, Pintu was also injured.
It is his categorical statement that the police
officer inquired of his son but he has
denied the fact, in his oral testimony, he
has not mentioned that as he belongs to a
particular community, the incident had
occurred. It is further submitted that P.W.2,
the injured has also not mentioned that the
incident
occurred
because
of
his
community. It is further submitted that
P.W.2, in his oral testimony, has opined
that before the said incident, the accusedappellant used to meet him regularly. He
has also opined that when the incident
occurred, there were people who were
having tea in shop and ladies were buying
vegetables at the place of incident. It is
stated that before the police authority,
under Section 161 of Cr.P.C., P.W.2 has
only stated that accused-appellant, Pintu
Gupta, had beaten him and, therefore also,
no case is made out under Section 3 (2) (v)
of SC/ST Act. It is further submitted that
the finding of fact by the learned Sessions
Judge is based on surmises and conjectures.

12.
Learned
counsel
for
the
appellant has relied on decisions of the
Apex Court in Criminal Appeal No. 707
of 2020 Hitesh Verma Vs. State of
Uttarkakhand and another decided on
5.11.2020 and on Criminal Appeal No.
1283 of 2019 (Khuman Singh vs. State
of
Madhya
Pradesh)
decided
on
27.8.2019 & learned counsel for the for
the appellant has also pressed the
decisions of this Court in Criminal
Appeal No. 8196 of 2008 (Jai Karan @
Pappu vs. State of U.P.) decided on
10.11.2021 and in Criminal Appeal No.
204 of 2021 (Vishnu vs. State of U.P.)
decided on 28.1.2021 so as to contend
that provisions of Section 3 (2) (v) of
SC/ST Act are not made out and accused
requires to be acquitted as there is no
mention either in F.I.R. or testimony that
the incident occurred because the injured
belonged to Scheduled Caste. Learned
counsel
further
submitted
that
the
ingredients to invoke Section 3 (2) (v) of
SC/ST Act are not proved and decision
only holds that the accused guilty as
injured belongs to Scheduled Caste.

13. Learned A.G.A. has taken us
through the testimony of P.W.2 & P.W.3 so
as to contend that provisions of Section 3
(2) (v) of SC/ST Act is made out as the
injured and the father of the injured belong
to scheduled caste and, therefore conviction
under the aforesaid section is just and
proper and the judgment cited by counsel
for the appellant in Khuman Singh, Jai
Karan & Vishnu (Supra) would not apply
to the facts of this case and the conviction
under SC/ST Act be maintained.

14. Section 3 (2) (v) of SC/ST Act
reads as under:

"3. Punishments for offences of
atrocities.--

(1).....................xx...............xx.......

(2) Whoever, not being a member
of a Scheduled Caste or a Scheduled
Tribe,--

(i).....................xxx..........

(ii)....................xx...........

(iii)...............xxx...........

(iv)..............xxx...............

(v) commits any offence under the
Indian Penal Code (45 of 1860) punishable
with imprisonment for a term of ten years
or more against a person or property on
the ground that such person is a member of
a Scheduled Caste or a Scheduled Tribe or
such property belongs to such member,
8 All. Pintu Gupta Vs. State of U.P. & Anr.
323
shall be punishable with imprisonment for
life and with fine."

15. Normally, we do not discuss the
importance of F.I.R. but, this is a classic
case where discussion on contents and
importance of F.I.R. is necessary. Section
154 of Cr.P.C. will be necessary which
reads as under:

" 154. Information in cognizable
cases.

(1) Every information relating to
the commission of a cognizable offence, if
given orally to an officer in charge of a
police station, shall be reduced to writing
by him or under his direction, and be read
Over to the informant; and every such
information, whether given in writing or
reduced to writing as aforesaid, shall be
signed by the person giving it, and the
substance thereof shall be entered in a
book to be kept by such officer in such form
as the State Government may prescribe in
this behalf.

(2) A copy of the information as
recorded under sub- section (1) shall be
given forthwith, free of cost, to the
informant.

(3) Any person aggrieved by a
refusal on the part of an officer in charge
of a police
station
to
record
the
information referred to in subsection (1)
may
send
the
substance
of
such
information, in writing and by post, to the
Superintendent of Police concerned who,
if satisfied that such information discloses
the commission of a cognizable offence,
shall either investigate the case himself or
direct an investigation to be made by any
police officer subordinate to him, in the
manner provided by this Code, and such
officer shall have all the powers of an
officer in charge of the police station in
relation to that offence."

16. The F.I.R., in the case at hand,
was lodged by the father of the injured.
Whether it can be said that the incident
which occurred in broad day light was on
the ground that the injured belong to a
particular community falling in the term
'Scheduled Castes' or 'Scheduled Tribes' so
as to attract the provision of Section 3 (2)
(v) of SC/ST Act. The F.I.R. is silent
about this aspect. Documentary evidence
showing what caste to the offender and the
injured belong has not been brought on
record. For attracting the provisions of
Section 3 (2) (v) of SC/ST Act, there
should be corroboration by way of
documentary evidence to prove that the
injured, on whom the act is committed,
belongs to 'Scheduled Castes' or 'Scheduled
Tribes'. Just because a person belongs to
and says so, will it be a piece of evidence?
It is nobody's case that the appellant
committed this crime on the ground that the
injured belong to a particular community.
Even if we believe that there is no
documentary evidence and that the injured
belongs to the community which he states
then also can it be said that the offence has
been committed as he belongs to a
particular
community?
This
is
moot
question which arises before us.

17. In Ram Das vs. State of U.P.,
AIR 2007 SC 155 wherein there was rape
on woman belonging to Scheduled Caste, it
was held that these could be no ground to
convict the accused under Section 3 (2) (v)
when there was no evidence to support the
charge under Section 3 (2) (v) of SC/ST
Act. Mere fact that victim happened to be a
girl belonging to Scheduled Caste did not
attract provisions of SC/ST Act.

18. In Dharmendra vs. State of U.P.,
2011 Cri LJ 204 (All), the Court has held
that there was no evidence on record to
324 INDIAN LAW REPORTS ALLAHABAD SERIES
show that incident was caused by the
accused on the ground that victim belonged
to Scheduled Caste. Fact of victim,
belonging to Scheduled Caste by itself was
not sufficient ground to bring case within
the purview of Section 3 (2) (v) of Act.
Conviction under Section 3 (2) (v) was
improper.

19. In State of Gujarat v. Munna,
2016 Cri LJ 4097 (Guj), the Court held as
under:

"In the instant case, so far as the
charge against the accused for the offence
punishable under Section 3 (2) (v) of the
Atrocity Act, 1989 was concerned, from the
deposition of the witnesses it had not come
out that the accused committed the offence
against the deceased on the ground that
deceased was a member of Scheduled
Caste or Scheduled Tribe. In absence of
such evidence it could not be said that the
original accused had committed the offence
punishable under Section 3 (2) (v) of the
Atrocity
Act,
1989.
Under
the
circumstances on the basis of the evidence
of record the accused could not be held
guilty for the aforesaid offence."

20. Decision of the Division Bench of
this Court in case of Vishnu (Supra)
penned by one of us (Dr. K.J. Thaker, J.)
held as under:

"38. Section 3(2)(v) of Scheduled
Casts and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is concerned, the FIR
and the evidence though suggests that any
one or any act was done by the accused on
the basis that the prosecutrix was a member
of Scheduled Castes and Scheduled Tribes
then the accused can be convicted for
commission of offence under the said
provision. The learned Trial Judge has
materially erred as he has not discuss what is
the evidence that the act was committed
because of the caste of the prosecutrix. The
sister-in-law of the prosecutrix had filed such
cases, her husband and father-in-law had
also filed complaints. We are unable to
accept the submission of learned AGA that
the accused knowing fully well that the
prosecutrix belongd to lower strata of life
and therefore had caused her such mental
agony which would attract the provision of
Section 3(2)(v) of the Atrocities Act. The
reasoning of the learned Judge are against
the record and are perverse as the learned
Judge without any evidence on record on his
own has felt that the heinous crime was
committed because the accused had captured
the will of the prosecutrix and because the
police officer had investigated the matter as a
attrocities
case
which
would not
be
undertaken within the purview of Section
3(2)(v) of Atrocities Act and has recorded
conviction under Section 3(2)(v) of Act which
cannot be sustained. We are supported in our
view by the judgment of Gujarat High Court
in Criminal Appeal No.74 of 2006 in the case
of Pudav Bhai Anjana Patel Versus State of
Gujarat decided on 8.9.2015 by Justice M.R.
Shah and Justice Kaushal Jayendra Thaker
(as he then was).

39. Learned Judge comes to the
conclusion that as the prosecutrix belonged
to community falling in the scheduled caste
and the appellant falling in upper caste the
provision of SC/ST Act are attracted in the
present case.

40. While perusing the entire
evidence beginning from FIR to the
statements of PWs-1, 2 and 3 we do not find
that commission of offence was there because
of the fact that the prosecutrix belonged to a
certain community.

41. The learned Judge further has
not put any question in the statement
recorded under Section 313 of the accused
8 All. Pintu Gupta Vs. State of U.P. & Anr.
325
relating to rape or statement which is
against him.

42. In view of the facts and
evidence on record, we are convinced that
the accused has been wrongly convicted,
hence, the judgment and order impugned is
reversed and the accused is acquitted. The
accused appellant, if not warranted in any
other case, be set free forthwith."

21. In the case at hand, no
independent witness have been examined
who would depose that the accused
committed the offence on the ground that
injured belonged to a community covered
under SC/ST Act. This omission proves
fatal for the prosecution in such a vital
matter where punishment is for life
imprisonment. The learned Judge has not
even discussed the evidence and only on
the basis of caste, he held that the offence
was deemed to be committed. There is no
deeming provision under SC/ST Act. In
view of the above, we cannot concur with
the learned Sessions Judge as the evidence
which has been laid before the learned
judge has been misread by learned Sessions
Judge and he has misconstrued the
provision of Section 3 (2) (v) of SC/ST
Act. Conviction and sentence under Section
3 (2) (v) of the accused-appellant is,
therefore, set aside

22. This takes us to the commission
of offence under Section 326. Section 326
of IPC reads as under:

"326.
Voluntarily
causing
grievous hurt by dangerous weapons or
means--Whoever, except in the case
provided for by section 335, voluntarily
causes grievous hurt by means of any
instrument for shooting, stabbing or
cutting, or any instrument which, used as a
weapon of offence, is likely to cause death,
or by means of fire or any heated
substance, or by means of any poison or
any corrosive substance, or by means of
any explosive substance, or by means of
any substance which it is deleterious to the
human body to inhale, to swallow, or to receive into the blood, or by means of any
animal,
shall
be
punished
with
1[imprisonment
for
life],
or
with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine."

23. The evidence in this matter of
P.W.1 and P.W.2 coupled with the medical
evidence and the fact that the injured had
sustained burn injuries on the face, show
that the injures had sustained grievous
injuries. The provisions of Section 326 of
IPC relates to voluntary causing grievous
hurts by dangerous weapons or means. In
this case the glass bottle filled with acid
was used as weapon of offence and/or
substance which is deleterious to the
human body and, therefore, ingredients of
Section 326 of IPC are made out. Section
320,
Sixthly,
designate
"Permanent
disfiguration of the head or face" as
'grievous hurt' which is punishable under
Section 326 of IPC. The present offence
falls in the said category and, therefore, we
are unable to subscribe to the submission of
the counsel for the appellant that no case is
made out under Section 326 of IPC.

24. This takes us to the alternative
submission of learned counsel for the
appellant that the quantum of sentence is
too harsh and requires to be modified. In
this regard, we have to analyse the theory
of punishment prevailing in India.

25. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
rehabilitary & reformative aspects in
326 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

26. 'Proper Sentence' was explained in
Deo Narain Mandal Vs. State of UP [(2004)
7 SCC 257] by observing that Sentence
should not be either excessively harsh or
ridiculously low. While determining the
quantum of sentence, the court should bear in
mind the 'principle of proportionality'.
Sentence should be based on facts of a given
case.
Gravity
of
offence,
manner
of
commission of crime, age and sex of accused
should be taken into account. Discretion of
Court in awarding sentence cannot be
exercised arbitrarily or whimsically.

27. 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
8 All. Archana Devi Vs. State of U.P. & Ors.
327
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.

28. 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.

29. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

30. In view of the above, as far as
offence under Section 326 of IPC is
concerned,
punishment
of
10
years
imprisonment is too harsh and the fine of
Rs.25000/- is also too harsh. We reduce the
sentence to 9 years' incarceration and fine
to Rs.2000/-, reason being, the complainant
and
the
injured
would
have
been
adequately
compensated
by
the
Government
as
they
have
invoked
provisions of Section 3 (2) (v) of SC/ST
Act. We do not direct refund of the said
amount though we record clean acquittal
under Section 3 (2) (v) of SC/ST Act. We
also reduce the default sentence to one
month.

31. The accused-appellant is in jail. If
9 years of incarceration is over, he shall be
set free immediately, if not warranted in
any other offence. The default sentence will
be given effect to after completion of 9th
year of incarceration and if the period of
default sentence is also over, he need not
pay fine. Record be transmitted to Trial
Court.
----------
(2022) 8 ILRA 327
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.07.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Crl. Misc. Application Defective (Leave To
Appeal) No. 01 of 2014
(U/s 372 Cr.P.C.)
IN
Criminal Appeal No. NIL of 2013

Archana Devi ...Appellant (Informant)
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri P.K. Singh

Counsel for the Respondents:
Govt. Advocate, Sri Apul Mishra, Sri Rakesh
Dubey

Criminal
Law
-
Code
of
Criminal
Procedure,1973 - Section 372 - Appeal for
enhancement of punishment-not maintainable.

Appeal dismissed. (E-9)