# Rajiv @ Paji v. State of U.P

- **Citation:** (2021) 11 ILRA 70
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-02
- **Case number:** Criminal Appeal No. 2436 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajiv-paji-v-state-of-u-p-46647
- **Pages:** 6

## Headnote

(A) Criminal Law - The Indian Penal Code,
1860 - Sections 376 & 511 - The Code of
criminal procedure, 1973 - Sections 164 & 313
-appeal against conviction - Rehabilitary &
Reformative aspects in sentencing - proper
sentence - quantum of sentence - doctrine of
proportionality
-
Discretion
of
Court
in
awarding
sentence
cannot
be
exercised
arbitrarily or whimsically - in operating the
sentencing system, law should adopt corrective
machinery or deterrence based on factual
matrix - duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission - striking a
balance between reform and punishment -
criminal justice jurisprudence adopted in the
country is not retributive but reformative and
corrective - undue harshness should be avoided
taking into account the reformative approach
underlying in criminal justice system .(Para -
18,19,20,22)

Accused committed rape with seven years old
daughter
of
complainant
-
accused-appellant
convicted under Section 376 IPC - sentenced to
imprisonment for life with fine of Rs.20,000/-.

HELD:- 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. Sentence
awarded by trial court for life term is very harsh .
Sentence awarded to appellant by trial-court modified
and reduced to ten years rigorous imprisonment.
Imposition of fine and additional imprisonment in case
of default of fine shall remain intact. Rs.15,000/- shall
be paid as compensation to the victim.(Para -
20,23,24)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

70 INDIAN LAW REPORTS ALLAHABAD SERIES
said Aadhar Card is linked before the concerned
Court/Authority/Official.

26. The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the official
website of High Court Allahabad and shall make
a declaration of such verification in writing.
----------
(2021)11ILR A70
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2021

BEFORE

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

Criminal Appeal No. 2436 of 2013

Rajiv @ Paji ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.K. Srivastava, Sri Anuj Srivastava, Sri
Ravendra Singh, Sri V.K. Srivastava

Counsel for the Respondent:
A.G.A., Sri Chetan Chatterjee

(A) Criminal Law - The Indian Penal Code,
1860 - Sections 376 & 511 - The Code of
criminal procedure, 1973 - Sections 164 & 313
-appeal against conviction - Rehabilitary &
Reformative aspects in sentencing - proper
sentence - quantum of sentence - doctrine of
proportionality
-
Discretion
of
Court
in
awarding
sentence
cannot
be
exercised
arbitrarily or whimsically - in operating the
sentencing system, law should adopt corrective
machinery or deterrence based on factual
matrix - duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission - striking a
balance between reform and punishment -
criminal justice jurisprudence adopted in the
country is not retributive but reformative and
corrective - undue harshness should be avoided
taking into account the reformative approach
underlying in criminal justice system .(Para -
18,19,20,22)

Accused committed rape with seven years old
daughter
of
complainant
-
accused-appellant
convicted under Section 376 IPC - sentenced to
imprisonment for life with fine of Rs.20,000/-.

HELD:- 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. Sentence
awarded by trial court for life term is very harsh .
Sentence awarded to appellant by trial-court modified
and reduced to ten years rigorous imprisonment.
Imposition of fine and additional imprisonment in case
of default of fine shall remain intact. Rs.15,000/- shall
be paid as compensation to the victim.(Para -
20,23,24)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

1. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC 1926

2. Deo Narain Mandal Vs St. of U.P., (2004) 7 SCC
257

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

4. Jameel Vs St. of U.P., (2010) 12 SCC 532

5. Guru Basavraj Vs St. of Karnatak, (2012) 8 SCC
734

6. Sumer Singh Vs Surajbhan Singh, (2014) 7 SCC
323

7. St. of Punj. Vs Bawa Singh, (2015) 3 SCC 441

8. Raj Bala Vs St. of Haryana, (2016) 1 SCC 463

(Delivered by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the appellant-
Rajiv @ Paji has challenged the Judgment and
order dated 6.5.2013 passed by court of
Additional
Sessions
Judge,
Court
No.4,
11 All. Rajiv @ Paji Vs. State of U.P.
71
Saharanpur in Session Trial No.78 of 2013
arising out of Case Crime No.341 of 2012, under
Section 376 Indian Penal Code, Police Station-
Rampur
Maniharan,
District
Saharanpur
whereby the accused-appellant was convicted
under Section 376 IPC and sentenced to
imprisonment for life with fine of Rs.20,000/-
and in case of default of payment of fine, to
undergo further imprisonment for six months.

2. The brief facts as per prosecution case
are that on 14.10.2012, a written report was
submitted by Naseem stating therein that today
in the morning his seven years old daughter (
victim) was playing with neighbour Ramesh's
children. At about 1:00 p.m. Rajiv @ Paji, son
of Ramesh, took her daughter to his house and
tried to commit rape with her. A case crime
No.341 of 2012 was registered at Police Station
Rampur Maniharan under Section 376 IPC read
with Section 511 IPC.

3.

S.I.-Dheeraj
Singh
tookup
the
investigation, visited the spot, prepared site plan,
recorded statements of the prosecutrix and
witnesses. Medical examination of prosecutrix
was conducted by the doctor.

4. After completion of investigation,
charge sheet was submitted against appellant -
Rajiv @ Paji under Section 376 IPC. The case
being triable by Court of Sessions, was comitted
by concerned Magistrate to the Court of
Sessions for trial.

5. The learned trial court framed charge
against the appellant under Section 376 IPC. The
accused denied the charge and claimed to be
tried. The prosecution so as to bring home the
charge, examined six witnesses, who are as
under:-

1.
Mohd. Naseen
P.W.1
2.
Imrana
P.W.2
3.
Km. Sahiba
P.W.3
4.
Dr. Renu Sharma
P.W.4
5.
Arvind Kumar Singh
P.W.5
6.
Dheeraj Singh
P.W.6

6. After completion of prosecution
evidence, the accused was examined under
Section 313 Cr.P.C. in which he denied entire
evidence against him and stated that he was
innocent and had been falsely implicated. The
accused did not examine any witness in his
defence.

7. In support of the ocular version of the
witnesses, following documents were produced
and contents were proved by leading evidence:

1.
F.I.R.
Ext. Ka-5
2.
Written report
Ext. Ka-1
3.
Recovery
Memo
of
Clothes
&
Supurdinama
Ext. Ka-8
4.
Medical Examination Report
Ext. Ka-3
5.
Supplementary report
Ext. Ka-4
6.
Charge sheet (Mool)
Ext. Ka-12
7.
Statement U/s 164
Ext. Ka.2
8.
Site Plan with Index
Ex.Ka.10

8. Heard Shri Anuj Srivastava, learned
counsel for the appellant, Sri Janardan Prakash,
learned AGA for the State and also perused the
record.

9. Perusal of record shows that occurrence
of this case took place on 14.10.2012.The
prosecution has alleged that the accused
committed rape with seven years old daughter of
complainant - Naseem. The victim's statement
under Section 164 Cr.P.C. was recorded by the
concerned Magistrate. During the course of
investigation, medical examination of victim
was conducted and the medical report was
prepared. Dr. Renu Sharma, conducted the
medical examination. She has stated in her
72 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence as PW-4 that there was laceration
posterior of size 3 x 2 x 2 mm. Blood clot was
present there which started bleeding on
touching. Hymen was intact. Vaginal smear was
sent for examination and according to

10. The victim was examined by
prosecution as PW-3. In her statement
recorded under Section 164 Cr.P.C., the victim
supported the prosecution version. She was
produced before the Trial Court as PW-3. In
her statement before the Trial Court also, she
supported
the
prosecution
version.
Her
mother- Imrana -PW-2 also supported the case
against accused.

11. Complainant- father of the victim,
Naseem was produced as PW-1. He has
proved the written report as Ex. Ka-1 which
was submitted by him at police station for
registration of the case against accused.

12. Learned counsel for the appellant
tried to establish that as per FIR, this case was
of an attempt to commit rape while on the
basis of legal consultation it was led as the
appellant was successful in committing the
rape and the prosecution was conducted for
the offence under Section 376 IPC.

13. Learned AGA submitted that the age
of victim at the time of commission of offence
was just seven years and as per the medical
examination, she was found aged between 912 years. She has supported prosecution
version in her statement and her testimony is
supported with medical evidence. There is
recovery of blood stained cloth of victim. It is
also submitted that the appellant remained
silent in his statement under Section 313
Cr.P.C. regarding the circumstances under
which he was implicated in this case.
Prosecution case is proved beyond doubt and
accused is rightly convicted by the trial Court.

14. Learned Trial Court relied on the
testimony of witnesses, mainly the testimony
of victim coupled with medical evidence,
convicted and sentenced the accused appellant
for life imprisonment and fine under section
376 IPC.

15. After some arguments, learned
counsel for the appellant submitted that he is
not pressing this appeal on its merit, but he
prays only for reduction of the sentence as the
sentence of life imprisonment awarded to the
appellant by the trial court is very harsh.
Learned counsel also submitted that appellant
is languishing in jail for past more than 9
years.

16. This case pertains to the offence of
'rape', defined under Section 375 IPC, which is
quoted as under:

[375. Rape.- A man is said to commit
"rape" if he-

(a) penetrates his penis, to any extent,
into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any
other person; or

(b) inserts, to any extent, any object or
a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or
makes her to do so with him or any other
person; or

(c) manipulates any part of the body of
a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or
any other person; or

(d) applies his mouth to the vagina,
anus, urethra of a woman or makes her to do so
with him or any other person,

under the circumstances falling under
any of the following seven descriptions :-

First.- Against her will.

Secondly.- Without her consent.
11 All. Rajiv @ Paji Vs. State of U.P.
73

Thirdly.- With her consent, when her
consent has been obtained by putting her or any
person in whom she is interested, in fear of death
or of hurt.

Fourthly.- With her consent, when the
man knows that he is not her husband and that her
consent is given because she believes that he is
another man to whom she is or believes herself to
be lawfully married.

Fifthly.- With her consent when, at the
time of giving such consent, by reason of
unsoundness of mind of intoxication or the
administration by him personally or through
another of any stupefying or unwholesome
substance, she is unable to understand the nature
and consequences of that to which she gives
consent.

Sixthly.- With or without her consent,
when she is under eighteen years of age.

Seventhly.- When she is unable to
communicate consent.

Explanation 1.- For the purposes of this
section, "vagina" shall also include labia majora.

Explnation 2.- Consent means an
unequivocal voluntary agreement when the woman
by words, gestures or any form of verbal or nonverbal communication, communicates willingness
to participate in the specific sexual act.

Provided that a woman who does not
physically resist to the act of penetration shall not
by the reason only of that fact, be regarded as
consenting to the sexual activity.

Exception 1.- A medical procedure or
intervention shall not constitute rape.

Excpetion 2.- Sexual intercourse or
sexual acts by a man with his own wife, the wife
not being under fifteen years of age, is not rape.]

17. In Mohd. Giasuddin Vs. State of AP,
[AIR 1977 SC 1926], explaining rehabilitary &
reformative aspects in sentencing it has been
observed by the Supreme Court:

"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."

18. '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.

19. 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
74 INDIAN LAW REPORTS ALLAHABAD SERIES
factual matrix. Facts and given circumstances in
each case, nature of crime, manner in which it
was planned and committed, motive for
commission of crime, conduct of accused, nature
of weapons used and all other attending
circumstances are relevant facts which would
enter into area of consideration. Further, undue
sympathy in sentencing would do more harm to
justice dispensations and would undermine the
public confidence in the efficacy of law. It is the
duty of every court to award proper sentence
having regard to nature of offence and manner
of its commission. The supreme court further
said that courts must not only keep in view the
right of victim of crime but also society at large.
While considering imposition of appropriate
punishment, the impact of crime on the society
as a whole and rule of law needs to be balanced.
The judicial trend in the country has been
towards striking a balance between reform and
punishment. The protection of society and
stamping out criminal proclivity must be the
object of law which can be achieved by
imposing appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain order
and peace, should effectively meet challenges
confronting the society, as society could not
long endure and develop under serious threats of
crime and disharmony. It is therefore, necessary
to avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective. At the
same time, undue harshness should also be
avoided keeping in view the reformative
approach underlying in our criminal justice
system.

20. 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.

21. Since the learned counsel for the appellant
has not pressed the appeal on its merit, however,
after perusal of entire evidence on record and
judgment of the trial court, we consider that the
appeal is devoid of merit and is liable to be
dismissed. Hence, the conviction of the appellant is
upheld.

22. 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.

23. Learned AGA also admitted the facts that
appellant is languishing in jail for the last more than
9 years. Keeping in view of theory of 'doctrine of
proportionality' as discussed above, the sentence
awarded to the appellant seems harsh. Since, the
appellant has already served 9 years of sentence and
ends of justice would be met if sentence is reduced
from life imprisonment to the period of ten years.

24. Hence, the sentence awarded to the
appellant by the learned trial-court is modified and
is reduced to ten years rigorous imprisonment.
Imposition of fine and additional imprisonment in
case of default of fine shall remain intact.
Rs.15,000/- shall be paid as compensation to the
victim out of the fine imposed as directed by learned
Trial Court.

25. Accordingly, the appeal is partly
allowed with the modification of the sentence,
as above.
11 All. Ved Prakash @ Danny @Raju @ Bona Vs. State of U.P.
75
----------
(2021)11ILR A75
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.10.2021

BEFORE

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

Criminal Appeal No. 3038 of 2005

Ved Prakash @ Danny @ Raju @ Bona
 ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Aditya Prasad Mishra, Sri Noor Muhammad,
Sri Yogesh Srivastava

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - The Indian Penal Code,
1860 - Sections 376 & 376(2)(f) -appeal
against conviction - Rehabilitary & Reformative
aspects in sentencing - proper sentence -
quantum
of
sentence
-
doctrine
of
proportionality
-
Discretion
of
Court
in
awarding
sentence
cannot
be
exercised
arbitrarily or whimsically - in operating the
sentencing system, law should adopt corrective
machinery or deterrence based on factual
matrix - duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission - striking a
balance between reform and punishment -
criminal justice jurisprudence adopted in the
country is not retributive but reformative and
corrective - undue harshness should be avoided
taking into account the reformative approach
underlying in criminal justice system.(Para -
18,19,20,23)

Incident occurred on 8.11.2003 at 5:00 am in the
morning - prosecutrix at the time of incident was 8
years of age - accused was seen committing the
offence - ran away - saw accused in light of bulb -
daughter of the complainant was in precarious
condition - Trial Court held appellant guilty of offence
u/s 376(2)(f) IPC whereby the accused-appellant was
convicted under Section 376 IPC - sentenced to
imprisonment for life with fine of Rs.10000/-

HELD:- 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. Sentence
awarded by trial court for life term is very harsh .
Sentence awarded to the appellant by the learned
trial-court is modified and is reduced to 15 years
rigorous imprisonment. Fine of Rs.10,000/- imposed
by Trial Court modified to Rs.20,000/- payable as
compensation to the victim.(Para-21,23,25)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

1. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC 1926

2. Deo Narain Mandal Vs St. of U.P., (2004) 7 SCC
257

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

4. Jameel Vs St. of U.P., (2010) 12 SCC 532

5. Guru Basavraj Vs St. of Karnatak, (2012) 8 SCC
734

6. Sumer Singh Vs Surajbhan Singh, (2014) 7 SCC
323

7. St. of Punj. Vs Bawa Singh, (2015) 3 SCC 441

8. Raj Bala Vs St. of Har., (2016) 1 SCC 463

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

1. By way of this appeal, the appellant has
challenged the Judgment and order dated
28.5.2005 passed by court of Sessions Judge,
Bulandshahar in Sessions Trial No.106 of 2004,
State Vs. Ved Prakash @ Danny @ Raju arising
out of Case Crime No.74 of 2003, under Section
376 IPC, Police Station Narora, District
Bulandshahar by which learned Trial Court was