# Santosh Bind @ Kallu v. State of U.P

- **Citation:** (2021) 11 ILRA 87
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-12
- **Case number:** Criminal Appeal No. 3571 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-bind-kallu-v-state-of-u-p-46660
- **Pages:** 6

## Headnote

A.G.A.

'Proper
Sentence'-
'Principle
of
Proportionality'- 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.

Sentence should be proportionate to the gravity of
the offence, manner of the commission of the offence
and facts of the case as well as the age and sex of
the accused.

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
88 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Perusal of the record also shows
that appellants are in jail for past nine years
and three months. As discussed above that in
view of the facts and circumstances of this case
and keeping in view of the gravity of the
offence, life term imprisonment is very harsh.
In our opinion, ends of justice would be met, if
sentence is reduced to the period of 7 years.

As the criminal jurisprudence of India is reformative
and
corrective
and
is
not
retributive,
hence
opportunity of reforming the accused should be given.
Sentence modified accordingly.

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

11 All. Santosh Bind @ Kallu Vs. State of U.P.
87
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.

33. 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.

34. Learned AGA also admitted the fact
that the appellant is in jail for more than nine
years. Perusal of the record also shows that
appellant is in jail for past nine years.

35. The incident occurred before the
amendment provision of Indian Penal Code. The
incident occurred before the amendment and
incident occurred in the year 2000 which
culminated into the charge sheet and sessions
case was registered in the year 2002. The
accused is in jail since 23.7.2014 and might have
been in custody as under trial the prisoner also,
the minimum sentence in those days was seven
years which would be just and proper.

36. We are aware of the disadvantage
faced by the prosecutrix who is a disabled girl.
Minimum sentence for Section 376 IPC was
seven years and, therefore, in our case, it is not
that heinous crime with life sentence should be
substituted.

37. In such view of the matter, the
conviction and sentence awarded to the
appellant for the offence under Section 3 (2) (v)
of the SC/ST Act, 1989, is hereby set aside.

38. Accordingly, the appeal is partlyallowed with the modification of sentence, as
above.
----------
(2021)11ILR A87
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.11.2021

BEFORE

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

Criminal Appeal No. 3571 of 2013
&
Criminal Appeal No. 4478 of 2013

Santosh Bind @ Kallu ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sunil Dubey, Sri S.K. Dwivedi, Sri Sushil
Kumar Dwivedi, Sri Mohd. Kalim

Counsel for the Respondent:
A.G.A.

'Proper
Sentence'-
'Principle
of
Proportionality'- 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.

Sentence should be proportionate to the gravity of
the offence, manner of the commission of the offence
and facts of the case as well as the age and sex of
the accused.

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
88 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Perusal of the record also shows
that appellants are in jail for past nine years
and three months. As discussed above that in
view of the facts and circumstances of this case
and keeping in view of the gravity of the
offence, life term imprisonment is very harsh.
In our opinion, ends of justice would be met, if
sentence is reduced to the period of 7 years.

As the criminal jurisprudence of India is reformative
and
corrective
and
is
not
retributive,
hence
opportunity of reforming the accused should be given.
Sentence modified accordingly.

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

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

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

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

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

1. These are two appeals against the same
judgement by different accused persons. Hence,
both the appeals are being decided together.

2. By way of these appeals the appellants
Santosh Bind Alias Kallu and Vikash Keshri
have challenged the judgement and order dated
20.07.2013
passed
by
learned
Additional
Sessions Judge, Court No.6, Allahabad in
Session Trial No.213 of 2013 arising from Case
Crime No.241 of 2012, under Sections 363/149,
366/149, 376(G)/149, 506 and 368 IPC, Police
Station- GRP Allahabad, District- Allahabad,
whereby accused/appellant in both appeals was
convicted and sentenced under Section 363 r/w
section 149 IPC for four years R.I. and fine of
Rs.4,000/-, under Section 363 r/w Section 149
IPC for seven years and fine of Rs.7,000/-, under
Section 506 IPC for one year R.I. and under
Section 376 (2)(G) r/w Section 149 IPC for life
imprisonment and fine of Rs.1 lac.

2. The brief facts of the prosecution case
are that in the night 17/18.05.2012 when
prosecutrix was travelling from Jabalpur (MP) to
Mirzapur by train. At about 12:15 am, the train
stopped at platform No.6 at Allahabad Junction,
the prosecutrix alighted at the platform for
taking water. One Vikash Keshri and his friend
Santosh Kumar Bind @ Kallu were already
present on that platform. They took the
prosecutrix from platform No.6 to out of railway
station by persuading her. When the complainant
talked to the prosecutrix on mobile phone, she
conveyed that above persons were taking her
somewhere forcibly. The above named persons
talked to the complainant on phone and
conveyed that they have taken his daughter and
will leave her on 26.05.2012. The accused
threatened the complainant not tell anything to
the
police.
Complainant
submitted
a
Gumshudagi (Missing) report at police station-
GRP Allahabad, after lodging report, as
conveyed on phone on 26.05.2012, the accused
persons left the prosecutrix near her house in
Mirzapur in serious condition. The prosecutrix
told that Vikash Keshri, Santosh Kumar Bind,
Abhishek Singh and Gappu committed rape
(forcible sex) with her.

3. S.I. Shyam Vart Singh took up the
investigation, visited the spot, prepared siteplan. On his transfer, another I.O. completed the
investigation after recording the statements of
witnesses and submitted the charge sheet against
all accused persons. The case being triable by
the court of Session was committed to the court
of Session for trial by the learned Magistrate.

4. The learned trial court summoned the
accused and as accused persons denied the
charges and claimed to be tried, charges were
framed against all the accused persons except
Raghunath Bind under Section 363/149 IPC,
11 All. Santosh Bind @ Kallu Vs. State of U.P.
89
366/149, 376(G) and 506 IPC and charge was
framed under Section 368 IPC against the
accused Raghunath Bind. The prosecution so as
to bring home the charges, examined 11
witnesses, namely:

1.
Shailesh Kumar
PW1
2.
Victim
PW2
3.
Santosh Kumar
PW3
4.
Dr. Vandana Srivastava
PW4
5.
Shaym Vart Singh
PW5
6.
Raghvendra Singh
PW6
7.
Dr.R.N. Gupta
PW7
8.
Dr. S.K. Rai
PW8
9.
Dr. Rajendra Singh
PW9
10.
Paramjeet Kaur
PW10
11.
Arvind Kumar Trivedi
PW11

5. In support of the ocular version of the
witnesses, following documents were produced
and contents were proved by leading oral
evidence:
1.
FIR
Ext. Ka-7
2.
Written report
Ext. Ka-1
3.
Application
Ext. Ka-2
4.
Application
Ext. Ka-3
5.
Application
Ext. Ka-6
6.
Medicolegal Report
Ext. Ka-9
7.
Medicolegal Report
Ext. Ka-10
8.
Radiology
and
Ultrasound Report
Ext. Ka-16
9.
Radiology
and
Ultrasound Report
Ext. Ka-17
10.
Pathology Report
Ext. Ka-18
11.
Charge-Sheet ''Mool'
Ext. Ka-14

6. After completion of prosecution
evidence, accused persons were examined under
Section 313 Cr.P.C. They told the prosecution
evidence is false and Santosh Kumar Yadav was
examined as defence witness being DW1.

7. Heard learned counsel for the appellants,
learned AGA for the State and perused the
record.

8. Perusal of the record shows that
occurrence of ths case took place in the night of
17/18.05.2012 at about 12.15 am when the
prosecutrix alighted at platform from the train to
take water. Out of all some of the accused
persons were already present on the platform.
They took the prosecutrix out of the railway
station by persuading her from where. They took
her with some other accused persons in the van
and kept her in a house for about one week, and
as per prosecution case, the accused forcibly had
sex with prosecutrix several times during this
one week. When the prosecutrix returned home
as the FIR was lodged and investigation had
started, prosecutrix was medically examined by
doctors. Dr. Vandana Srivastava was produced
by prosecution as PW4 but told that she along
with Dr. Tabasum and Dr. Shamim Ahmed
examined the prosecutrix who was brought by
police GRP, Allahabad. Doctor has deposed
before the learned trial court that no injury mark
was found on the private parts of the prosecutrix.
The hymen of prosecutrix was old torn. It is also
stated by the doctor that no spermatozoa was
found in vaginal swab and supplementary report
was filed. Doctor has opined that prosecutrix
was habitual for sexual intercourse. The
prosecutrix was examined under Section 164
Cr.P.C. before the competent Magistrate. Where
she narrated the incident

9.

Prosecutrix
was
examined
by
prosecution as PW2, in her statement, she has
stated that she was forcibly taken away by the
accused persons from railway station Allahabad
and she was kept somewhere in the room and
accused persons Vikash Keshri, Santosh Kumar
90 INDIAN LAW REPORTS ALLAHABAD SERIES
Bind and two others had sexaul intercourse with
her continously for one week without her
consent. She was kept under threat. Later on
accused Santosh Kumar Bind left her near her
house in Mirzapur. Complainant, the father of
the prosecutrix was examined as PW1. He
reiterated what was stated in FIR and proved the
same and the said document was exhibited.

10. The accused Vikash Keshri has
claimed that on the date of said occurrence, he
was not at Allahabad station. He has examined
DW1- Santosh Kumar Yadav in his defence,
who has stated that Vikash Keshri was student
and he was tenant in his room and from
17.05.2012 to 19.05.2012, he was there in his
tenanted room. Learned trial court relied on the
evidence, led by the prosecution only in
connection with the accused Vikash Keshri and
Santosh Bind and convicted them as aforesaid.
Learned trial court acquitted the co-accused
persons Gappu @ Mahendra, Abhishek Singh
and Raghunath from all the charges levelled
against them.

11. After argument on merits, the learned
counsel for the appellants submitted that as
accused are in jail for a long period, he is not
pressing this appeal on its merit, but prays for
reduction of the sentence as the sentence of life
imprisonment awarded to the appellants by the
trial court is very harsh and unwarranted.
Learned counsel also submitted that appellants
are in jail since 10.06.2012.

12. 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.

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 non-verbal communication, communicates
11 All. Santosh Bind @ Kallu Vs. State of U.P.
91
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.]

13. In case cited Mohd. Giasuddin Vs.
State of AP, AIR 1977 SC 1926, the Apex Court
while explaining rehabilitary & reformative
aspects in sentencing has observed as follows:-

"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."

14. The term '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.

15. 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
92 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

16. 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.

17. Keeping in view the facts and
circumstances, we will have to fall back what is
known as corrective measures. The accused were
young as narrated above. There were certain loopholes even in the investigation. The factual scenario
as narrated also to some extent would persuade us to
take a different view than that taken by the learned
Judge as far as committal of forcible sex is concerned
but even if that be shown the age of girl namely, the
prosecutrix does not permit us to take different view
but at the same time the judgements of the Apex
Court will permit us to fall back on what is known
reformative theory of punishment. The conviction of
the appellants can be interfered only for the purpose
of sentence as according to us keeping the gravity of
offence, the punishment of life imprisonment is too
harsh.

18. 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.

19. Learned AGA also admitted the fact that
the appellants are languishing in jail for more than
nine years. Perusal of the record also shows that
appellants are in jail for past nine years and three
months. As discussed above that in view of the
facts and circumstances of this case and keeping in
view of the gravity of the offence, life term
imprisonment is very harsh. In our opinion, ends of
justice would be met, if sentence is reduced to the
period of 7 years.

20. Hence, the sentence awarded to the
appellants by the learned trial court under Section
376(2)(G) r/w 149 IPC is reduced to the period of
seven years R.I. with all remissions and fine is
reduced from Rs.1 lac to Rs.10,000/- each.
Appellants have to undergo simple imprisonment for
one year in case of default of fine. Rest of sentences
in other offences shall remain intact and all the
sentences shall run concurrently as directed by
learned trial court.

21. Accordingly, the appeal is partly allowed
with the modification of sentence, as above.
----------
(2021)11ILR A92
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 4399 of 2015

Ramji Yadav ...Appellant
Versus
State of U.P. ...Respondent