# Raj Kumar v. State of U.P

- **Citation:** (2016) 4 ILRA 371
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-01
- **Bench:** Arvind Kumar Tripathi, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-v-state-of-u-p-43638
- **Pages:** 8

## Text

4 All. Raj Kumar Vs State Of U.P.
371
17. Needless to observe here that recently the State Government has issued a Government
Order dated 13.8.2015 whereby it has been provided that persons working on daily wage/work
charge/contractual basis in the department of the State Government, its autonomous bodies, public
undertakings/local bodies, development authorities and Zila Pancahyat, who were engaged upto
31.3.1996 shall be regularized. In these circumstances, there is no justification in not regularizing
the service of the petitioner when it is an admitted fact that the petitioner was engaged as daily
wager before 29.6.1991 and he was continuing on the post on 21.12.2001 and even thereafter. Now,
recently the State Government vide government order dated 24th February, 2016 has changed the
cut of date to 31.12.2001 and has again provided that if the post is not available then necessary
steps be taken for creation of the post.

18. In view of above, a writ of Mandamus is issued to the respondents to consider the case
of the petitioner for regularization under the U. P. Regularization of Daily Wages Appointments on
Group 'D' Rules, 2001, read with Government Orders dated 13.8.2015 and 24th February, 2016 and
in the light of law laid down in Janardan's case [supra] and pass appropriate orders in this regard
within a maximum period of three months from the date of presentation of a certified copy of this
order. The order shall also be communicated to the petitioner.

19. With the aforesaid observations and directions, the writ petition is allowed. Parties to
bear their own costs.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.04.2016

BEFORE

THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 3030 Of 2005

Raj Kumar ...Appellant
Versus
State of U.P. ...Respondent

A.N. Mulla, learned AGA for the State
 The instant Criminal Appeal has been preferred Against the judgment and order of conviction dated
06.06.2005 passed by the Additional Sessions Judge, Court No.3, Bulandshahr, in Session Trial No.302 of
2005 (State Of U.P. Vs. Raj Kumar), arising out of Case Crime No.332 of 2004, under Section 376 I.P.C.
whereby the appellant Raj Kumar has been convicted under Section 376(2)(f) IPC and Sentenced to
imprisonment for life with a fine of Rs.10,000/-, in case of default in payment of fine, the Appellant will have
to suffer additional simple imprisonment For two years.

 In our considered opinion, the maximized sentence of life imprisonment is proportionately justified looking
to the manner and nature of the offence committed in this case and while imposing fine of Rs.10,000/-
372 INDIAN LAW REPORTS ALLAHABAD SERIES
already lenient view was taken by the trial court, therefore, prayer for reducing the sentence prescribed from
the maximized to the period already undergone in jail is refused. The judgment and order of conviction dated
06.06.2005 passed by the Additional Sessions Judge, Court No.3, Bulandshahr, in Session Trial No.302 of
2005 (State of U.P. Vs. Raj Kumar), under Sections 376 (2) (f) IPC, Police Station Anoopshahar, arising out of
Case No.332 of 2004, District Bulandshahr is upheld. Accordingly, the appeal being devoid of merits is hereby
dismissed.

Held: Para-

Case Law discussed:
Guru Basavaraj @ Bennesettapa Vs. State of Karnataka 2012 (8) SCC 734;
Gopal Singh Vs. State of Uttarkhanad 2013(7) SC 4;
Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat (2009) 7 SCC 254;
Jameel Vs. State of U.P. 2010 (12) SCC 532;
 Sevaka Perumal, etc. Vs. State Of Tamil Nadu (1991) 3 SCC 471;

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

1. The instant Criminal Appeal has been preferred Against the judgment and order of
conviction dated 06.06.2005 passed by the Additional Sessions Judge, Court No.3, Bulandshahr, in
Session Trial No.302 of 2005 (State Of U.P. Vs. Raj Kumar), arising out of Case Crime No.332 of
2004, under Section 376 I.P.C. whereby the appellant Raj Kumar has been convicted under Section
376(2)(f) IPC and Sentenced to imprisonment for life with a fine of Rs.10,000/-, in case of default
in payment of fine, the Appellant will have to suffer additional simple imprisonment For two years.

2. Briefly stated factual matrix of this case, as discernible From the record appears to be
that the complainant Smt. Meena wife of Naresh Singh, resident of village-Garhara Lodged a
written report at police station Kotwali Anoopshahr on 30.11.2004 at 2.00 a.m. whereby it was
Alleged that in her village Garhara, 'Rasleela' (stage show On Lord Rama and Krishna) was about
to commence. On 29.11.2004, the appellant Raj Kumar, a friend of her Husband, came to his house
around 8.30 p.m. and took away her daughter Aarti aged about 7 years with him for Watching
'Rasleela'. The complainant sent her daughter With the appellant Raj Kumar, who took the victim
behind The 'Madai' (hut) of Yogendra Singh in the village and Committed rape upon her forcibly.
During course of Commission of offence, the victim screamed, whereupon The two persons
Harkesh son of Krishna Pal and Satpal son Of Pahalvan Singh, who were going to see 'Rasleela',
were Attracted to the spot from where shrieks was raised. As Soon as they arrived at the spot, they
saw the appellant Raj Kumar forcibly committing rape upon the victim. They Caught the appellant
Raj Kumar on the spot and also Rescued the victim, who was seeped in blood. They came Back to
village along with victim and the appellant where The villagers after coming to know about the
crime gave Severe beating to appellant Raj Kumar, thereafter report Was written and lodged at the
concerned police station and The appellant was also taken to the police station along with the
victim. It was requested that report be lodged and Proper action be taken.

3. This written report is Exhibit Ka-3 on record. Entry Whereof was made in the relevant
Chik FIR registered at Case Crime No.332 of 2004, under Section 376 on 30.11.2004 at 2.00 a.m.
4 All. Raj Kumar Vs State Of U.P.
373
The Chik FIR is Exhibit Ka-4. Thereafter relevant entries were made in the concerned GD And the
case was registered and the investigation was Carried out.

4. The Investigating Officer took the clothes of the Appellant particularly paint, shirt, vest
etc. And prepared Memo of the same on 30.11.2004, which is Exhibit Ka-7 on Record. The
Investigating Officer also took into possession the cloths, which were allegedly worn by the victim
at the Time of the incident from her house and prepared a memo of the same, which is Exhibit Ka-8
on record.

5. The victim was medically examined by Dr. Meenakshi Viz, Medical Officer at K.M.C.
Hospital, Bulandshahr on 30.11.2004 at 1 p.m.

6. General Examination- she is fully conscious at the Time of examination. No mark of
injury over her body. Pubic and axillary hair absent. Breast not developed. Height 110 cm, Weight
15kg and Teeth 12/12.

7. Internal Examination- Two perineal tear present, Ist On right side at 7 O' clock position
1.5 cm long, muscle Deep. Bleeds on touch. 2nd on left side at 4 O clock Position. 1 cm long,
muscle deep. Bleeds on touch.

8. Hymen torn, bleeds on touch. Parauethral area is Congested. Vagina admits tip of a
finger. Two slids of Vaginal smear were prepared, sealed and sent to Pathologist, B.B.D. Hospital,
Bulandshahr for Histopathological examination. She was sent to Radiologist B.B.D. Hospital
Bulandshahr for plain x-ray of wrist, joint Specially for carpal bones, elbow and knee joint, for age
Determination.

9. The Medical Examination Report is Exhibit Ka-1 on Record.

10. During course of investigation, the Investigating Officer also got recorded statement of
the victim under Section 164 Cr.P.C. on 8.12.2004. Supplementary medical Report was also
prepared and her age was assessed to be About five years. This supplementary report is Exhibit Ka2 On record. Vaginal smear report is Exhibit Ka-12 on record. Appellant-accused Raj Kumar was
also medically examined on 30.11.2004 at 3.50 a.m. by Medical Officer, Primary Health Centre
Anoopshahr, wherein the following injuries Were found on his person:-

1. Complained of pain on right side chest but no visible Injury seen.

2. Contusion 5 cm x 5 cm on left arm 10 cm above left Elbow joint.

3. Complaint of pain on left side back but no visible injury Seen.

4. Abrasion 8 cm x 8 cm on right knee joint.
374 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Abrasion 5 cm x 4 cm on right lower limb. 9 cm above Right ankle joint.

6. Contusion 4 cm x 3 cm on left lower limb. 20 cm above Left knee joint.

7. Complaint of pain of left thigh but no visible injury seen.

11. The clothes of victim and the appellant, which were Taken into possession by the
Investigating Officer were sent To the Forensic Science Labrotary, Agra for chemical Examination
and from where report was obtained, which Report is dated 29.1.2005 and the same is marked as
Exhibit Ka-10 on record. The Investigating Officer also took Various steps and recorded the
statement of the witnesses And also prepared the site plan of the occurrence, which is Exhibit Ka-6
on record and after completing the Investigation, he submitted the charge-sheet in the matter,
Which charge-sheet is Exhibit Ka-9 on record.

12. Thereafter the case was committed to the court of Sessions from where it was made
over for trial to the Concerned trial court where the accused was heard on the Point of charge and
prima facie ground was existing for Framing charge under Section 376(2)(f) IPC. The charge was
read over and explained to the accused in Hindi, who Denied the charge and opted for trial.

13. The prosecution was asked to adduce its testimony in Order to prove charge,
whereupon the prosecution got Examined as many as six witnesses, reference of the same Is as here
under:

14. P.W.1 is Dr. Minakshi Viz, who medically examined the Victim on 30.11.2004 at 1
p.m. She has proved the medical Report as Exhibit Ka-1 and Exhibit Ka-2 and she has Assessed the
age of the victim to be 5 years. P.W.2 is Meena, who is the complainant and mother of the victim.
She has proved the written report Exhibit Ka-3. P.W.3 is Satpal Singh, eye-witness of the incident
and he has Narrated the incident. P.W.4 is victim herself. The trial court Before examining the
victim as witness tested her Competency and after scrutiny found that she is competent To depose
before the trial court. She has narrated the Incident. P.W.5 is Constable Ram Prakash. He has
proved Chik FIR as Exhibit Ka-4 and carbon copy of G.D. No.5 Dated 30.11.2004 as Exhibit Ka-5.
P.W.6 is S.I. Veer Sain. He has proved the various steps taken in completing the Investigation and
also proved the site plan Exhibit Ka-6 and The charge-sheet Exhibit Ka-9 submitted by him against
the Appellant.

15. Thereafter the evidence for the prosecution was closed And statement of appellant was
recorded under Section 313 Cr.P.C., wherein he has stated that he has been falsely Implicated in
this case on the basis of the fabricated and Concocted story as narrated in the first information
report, Due to personal grudge and vengeance. The complainant's Husband had taken Rs.45,000/-
one and half year ago and also purchased cloths worth Rs.7000/- on credit when Demand for
payment was made, the appellant was beaten Up and has falsely been implicated in the case. It has
Further been stated that the appellant was performing Pooja at Panch Peepal temple in the village.
4 All. Raj Kumar Vs State Of U.P.
375
He was beaten Up and was compelled to leave the village but later on, he Started performing pooja
in the temple due to which the Villagers and the complainant became inimical to him.

16. The trial court after hearing both the sides on merits Passed aforesaid judgment and
order dated 06.06.2005 in Sessions Trial No.302 of 2005 (State of U.P. Vs. Raj Kumar), under
Sections 376(2)(f) I.P.C. convicting and Sentencing him to imprisonment for life with a fine of
Rs.10,000/- in case of default he will have to suffer Additional simple imprisonment for two years.

17. Consequently, this appeal.

18. Heard Sri Raj Kumar Pandey and Sri V.K. Sharma, Learned counsel for the appellant
and Sri M.S. Yadav and Sri A.N. Mulla, learned AGA for the State and perused the Records.

19. Learned counsel for the appellant has vehemently Contended that it is a case of
personal vengeance and Because of personal grudge and enmity, the complainant in Order to
overhaul the situation manipulated the things in Collusion with the police. The offence in question
was never Committed by the appellant. He in fact had no occasion to Commit rape upon a child
like the present one. The Investigating Officer wrongly prepared memo of clothes. The villagers
after beating the appellant caused injuries Due to which blood oozed out from his body and this
blood Was wrongly taken by the Investigating Officer. The so called witness of fact are the partisan
and interested Witnesses and they are on inimical terms with the Appellant. The prosecution has
not been able to prove its Charge beyond reasonable doubt and the same is not Supported by the
circumstances of the case.

20. Sri A.N. Mulla, learned AGA vehemently opposed the Submissions so made and
submitted that scrutiny of Evidence on record cumulatively reveals that the offence Was committed
by the appellant taking advantage of his Intimacy with the father of the victim and the victim
Herself has narrated about the incident in innocuous terms. The appellant was caught by the
villagers and was given Beating by the villagers for committing such ghastly crime Against minor
girl at the tender age of five years.

21. Learned AGA has further submitted that the Forensic Science Labrotary, Agra has also
proved presence of Human sperm and blood on the clothes of victim as well as Of appellant. There
was no need of such false implication Because the blood was coming out on touch from private
Part of the victim. Moreso, it is admitted that the victim Was of very tender age less than 7 years.
She has deposed As P.W.4 in this case and has identified the appellant in Court. The testimony of
eye-witness P.W.3 Satpal Singh Sufficiently proved the case of the prosecution. The Appellant was
caught on the spot, therefore, his presence Cannot be doubted. Testimony of P.W.3, eye-witness,
Reflects that the incident is stated to have taken place on 29.11.2004, around 9 p.m. This witness
along with Harkesh Was going to watch 'Rasleela', on way when they arrived Near field of Suresh
then they heard about some scream of The girl, who was voicing behind 'Madai' (hut) of Yogendra
Singh. They were attracted towards the spot, whereupon They saw Raj Kumar committing rape
upon the victim. Harkesh caught Raj Kumar and also saved the victim. The Private part of the
376 INDIAN LAW REPORTS ALLAHABAD SERIES
victim was bleeding. The accused and The victim were taken to house of Naresh Singh. Few
Persons arrived at the spot after coming to know about the Incident. Report was got written and
lodged at the police Station. The victim and Raj Kumar were medically Examined at the Hospital.
The clothes of victim and the Appellant were taken and memos whereof were prepared, Which are
Exhibit ka-7 and Ka-8 on record, respectively.

22. Even medical examination of victim shows hymen torn And bleeds on touch. Two
slides of vaginal smear prepared And this medical was conducted on 30.11.2004 at 1 p.m.
Thereafter supplementary report was prepared and age of The victim was assessed to be five years.

23. Injuries have also been caused to the appellant Raj Kumar and he was also examined on
30.11.2004 at 3.50 a.m., therefore, all these circumstances vis-a-vis the testimony on record
reasonably prove the case of prosecution beyond reasonable doubt and consequently the charge
against accused appellant under Section 376 (2)f IPC. Therefore, in so far as conviction part of the
judgment Passed by the learned trial court is concerned the same Does not suffer from any error
latent or patent, which may Warrant any interference at this stage.

24. However, arguments have been raised that in case the Conviction is found to be
sustainable then the quantum of Punishment may be sympathetically considered looking to The
aggravating and mitigating circumstances of the case And the same may be reduced to the period
already undergone till date and it has been claimed that the Appellant is in jail since 30.11.2004 and
he has already Spent more than 11 years in jail.

25. At this stage, learned AGA submitted that in such a Ghastly crime committed against
the girl who is of tender Age, which is not less barbaric and adversely giving wrong Message in the
society, therefore, sentence should be Extended to the maximum limit as prescribed for offence of
Rape. The appellant has not only committed the barbaric And gruesome crime against a female
child but also put to Shame even intimate relationship, which he had with the Father of the victim
and such things should not be viewed With leniency but should be viewed sternly by the Courts.
Need of the society is that interest of at least female child And females should be protected from
dangerous sexual Assault. Therefore, the sentence imposed in this case is Reasonably justified.

26. In support of his claim, learned counsel has cited case Of Guru Basavaraj @
Bennesettapa Vs. State of Karnataka 2012 (8) SCC 734. In this case, the Hon'ble Apex Court
elaborated the sentencing system so as to Impose such sentence which reflects the conscience of the
Society and the sentencing process has to be stern where it Should be.

27. Considered above submissions on point of quantum of Sentence. Now in this case it is
obvious that crime of rape Was committed on a helpless and innocent female child of Tender age -
say- about five years and she was brutally Raped at a lonely place after the sun set in the night of
29.11.2004. If the witness had not intervened at the Relevant point of time, the situation could have
worsened. There is no reason of false implication. Apart from mother P.W.2 and independent
witness Sat Pal P.W.3, the victim After five years have also supported the FIR version to the Effect
4 All. Raj Kumar Vs State Of U.P.
377
that rape was committed upon her. The medical Report and the report of the Forensic Science
Labroratory, Agra have also corroborated the prosecution case. Human Blood, sperm and semen
were found on clothes of the Victim and accused appellant. In view of the evidence the Prosecution
has proved the case beyond reasonable doubt Because accept minor and natural discrepancies in
cross- Examination of victim there are no material discrepancies And contradictions.

28. In the case of Gopal Singh Vs. State of Uttrakhand 2013(7) SC 4, it has been
observed by the Hon'ble Apex Court "Just punishment is the collective cry of The society. While
the collective cry has to be kept Uppermost in the mind, simultaneously the principle of
Proportionality between the crime and punishment cannot Be totally brushed aside. The principle
of just punishment Is the bedrock of sentencing in respect of a criminal Offence.

29. In the case of Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of
Gujrat (2009) 7 SCC 254, it was held by the Supreme Court "The object of Awarding appropriate
sentence should be to protect the Society and to deter the criminal from achieving the Avowed
object to law by imposing appropriate sentence. It Is expected that the courts would operate the
sentencing System so as to impose such sentence which reflects the Conscience of the society and
the sentencing process has To be stern where it should be. Any liberal attitude by imposing meager
sentences or taking too sympathetic view merely on account of lapse of time in respect of such
offences will be result-wise counter productive in the long run and against the interest of society
which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing
system.

Justice demands that courts should impose punishment befitting the crime so that
the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of
the victim of the crime but the society at large while considering the imposition of appropriate
punishment. The court will be failing in its duty if appropriate punishment is not awarded for a
crime which has been committed not only against the individual victim but also against the society
to which both the criminal and the victim belong."

30. In the case of Jameel Vs. State of U.P. 2010 (12) SCC 532, the Hon'ble Apex Court
held that "punishment must be appropriate and proportional to the gravity of the offence
committed.

31. Considering the above guidelines of the Hon'ble Supreme Court and on careful perusal
of the entire material and circumstances of the case, we come to conclusion that in this case the
maximum sentence provided for the offence in question is appropriate and not disproportionate to
offence and any lesser punishment would adversely effect not only the individual concerned but
also the society as a whole.

32. Even in the case of Sevaka Perumal, etc. Vs. State of Tamil Nadu (1991) 3 SCC
471, the Hon'ble Supreme Court held that "Undue sympathy to impose inadequate sentence would
do more harm to the justice system to undermine the public confidence in the efficacy of law and
378 INDIAN LAW REPORTS ALLAHABAD SERIES
society could not long endure under serious threats. If the courts did not protect the injured, the
injured would then resort to private vengeance. It is, therefore, the duty of every court to award
proper sentence having regard to the nature of the offene and the manner in which it was executed
or committed etc."

33. While we glance over the entire facts and circumstances of the case and the sentence
awarded by the trial court which is life imprisonment with a fine of Rs.10,000/-, we uphold that the
punishment imposed by the trial court is not disproportionate to the offence proved, which cannot
be categorized and confined to less than the maximum sentence prescribed for the offence in
question. Moral depravity of a kind like the present one if perpetrated on innocent child of about
five years and she is brutally raped then certainly the conscious of the entire society will be shaken
and crisis of faith will arise. Any leniency will have serious repercussion on the well being of the
society itself. Societal interest demand that appropriate stern sentence should be imposed in cases
involving brutality and moral depravity.

34. In our considered opinion, the maximized sentence of life imprisonment is
proportionately justified looking to the manner and nature of the offence committed in this case and
while imposing fine of Rs.10,000/- already lenient view was taken by the trial court, therefore,
prayer for reducing the sentence prescribed from the maximized to the period already undergone in
jail is refused. The judgment and order of conviction dated 06.06.2005 passed by the Additional
Sessions Judge, Court No.3, Bulandshahr, in Session Trial No.302 of 2005 (State of U.P. Vs. Raj
Kumar), under Sections 376 (2) (f) IPC, Police Station Anoopshahar, arising out of Case No.332 of
2004, District Bulandshahr is upheld. Accordingly, the appeal being devoid of merits is hereby
dismissed.

35. Appellant is in jail. He will serve out remaining part of the sentence.

36. Let this order be certified to the court concerned to ensure the compliance of the order
and information.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2015

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.

Matters Under Article 227 No.- 3109 Of 2015

Neelu Alias Nilesh Kumar Pandey ...Petitioner
Versus
Smt. Chabbi Devi & Ors. ...Respondents