# Sessions Trial No. 247 of 2017 (State v. Sanjay

- **Citation:** (2021) 11 ILRA 1247
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-06-08
- **Case number:** Criminal Appeal No. 7945 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sessions-trial-no-247-of-2017-state-v-sanjay-46531
- **Pages:** 8

## Headnote

A. Criminal Law - Rape - Indian Penal
Code,1860 - Sections 452, 375, 376 & 506 -
SC/SCT Act, 1989 - Section 3(1)(xii).

Reformative theory of punishment - 'Principle
of Proportionality' - 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. (Para 13)

Law
should
adopt
corrective
machinery
or
deterrence based on factual matrix. 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. 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. (Para 14, 23)

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. (Para 15)

Appellant is in jail for more than 14 years and the
age of appellant at the time of occurrence was
nearly 26/27 years. He has been awarded
punishment u/s 376 IPC for life imprisonment
which is very harsh. Court opined that ends of
justice
would
be
met
if
sentence
of
life
imprisonment awarded u/s 376, I.P.C. is reduced to
the rigorous imprisonment of 15 years and fine Rs.
10,000/-. The appellant shall undergo simple
imprisonment for one year in case of default of
fine. Amount of fine shall be paid to the prosecutrix
as compensation. Conviction and sentence awarded
for the rest of the offences shall remain intact.
(Para 20, 21, 24, 25)

B. Evidence of hosti

## Text

11 All. Eeda Khan Vs. State of U.P.
1247
Officer to the effect that appellant is innocent
but in any of the affidavit it was not mentioned
as to who caused the death of the deceased.
Further, on the basis of the affidavit filed by
Virendra (PW-5), trial court drew an inference
that there was pressure to compromise the
matter. Whereas, PW-5 stated that the affidavit
was typed by the villagers with the help of a
lawyer and his signature was taken without
reading out the contents of the affidavit to him.
Hence, the affidavit cannot be taken as evidence.
Similarly, Smt. Seema (PW-4) in her statement
stated about the affidavit that the affidavit was
prepared by the villagers with the help of a
lawyer and the contents of the affidavit were not
read over to her, therefore, the affidavit filed by
PW-4 could also not be used in the evidence.
The finding of the learned trial court that eye
witnesses only with the intention to save the
appellant did not support the prosecution case
and have not given true facts in their statements
during trial, in our view, is uncalled for and is
also not sustainable, as it is based purely on
surmises and conjectures. The trial court
accepted the report of Forensic Science
Laboratory to connect the firearm, recovered
from the roof of Dev Dutt Sharma with the
empty cartridge. But, admittedly, the country
made pistol was neither recovered from the
possession of appellant nor at his pointing out.
There is no evidence in this regard that the
recovered country made pistol belongs to him,
therefore, it cannot be said that appellant was the
person, who used the country made pistol in the
commission of crime. Thus, conviction of the
appellant under Section 25 of Arms Act is also
unsustainable.

36. From the discussion made above, we
are of the considered view that the prosecution,
in the present case, has failed to prove the guilt
of the appellant beyond all reasonable doubt and
the evidence produced by the prosecution is of
such nature, on the basis of which, the
conviction of the appellant in the present case is
not possible.

37. As a result, the appeal is allowed. The
judgement and order of conviction as well as
sentence recorded by the trial court vide order
dated 8.6.2018 passed by Additional District and
Sessions Judge, Court No.9, Bulandshahar in
Sessions Trial No. 247 of 2017 (State Vs. Sanjay
Sharma) arising out of Case Crime No. 69 of
2016, under Section 302 IPC and Sessions Trial
No.69 of 2018 (State Vs. Sanjay Sharma), under
Section 25 of Arms Act arising out of Case
Crime No. 70 of 2016 are hereby set aside. The
appellant is acquitted of all the charges for
which he has been tried. The appellant (Sanjay
Sharma) is said to be in Jail, he be set at liberty
forthwith, if not wanted in any other criminal
case. The appellant (Sanjay Sharma) will fulfill
the requirement of Section 437-A Cr.P.C. to the
satisfaction of the trial court at the earliest.

38. Let a copy of this order/judgement and
the original record of the lower court be
transmitted to the trial court concerned forthwith
for necessary information and compliance. The
office is further directed to enter the judgement
in compliance register maintained for the
purpose of the Court.
----------
(2021)12ILR A1247
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.12.2021

BEFORE

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

Criminal Appeal No. 7945 of 2007

Eeda Khan ...Appellant
Versus
State Of U.P. ...Opposite Party
1248 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Manoj Singh, Sri Ajay Pal , Sri Anvir Singh,
Sri Shashi Shekhar Mishra, Sri Sukhvir Singh

Counsel for the Opposite Party:
A.G.A., Sri Anup Upadhyay

A. Criminal Law - Rape - Indian Penal
Code,1860 - Sections 452, 375, 376 & 506 -
SC/SCT Act, 1989 - Section 3(1)(xii).

Reformative theory of punishment - 'Principle
of Proportionality' - 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. (Para 13)

Law
should
adopt
corrective
machinery
or
deterrence based on factual matrix. 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. 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. (Para 14, 23)

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. (Para 15)

Appellant is in jail for more than 14 years and the
age of appellant at the time of occurrence was
nearly 26/27 years. He has been awarded
punishment u/s 376 IPC for life imprisonment
which is very harsh. Court opined that ends of
justice
would
be
met
if
sentence
of
life
imprisonment awarded u/s 376, I.P.C. is reduced to
the rigorous imprisonment of 15 years and fine Rs.
10,000/-. The appellant shall undergo simple
imprisonment for one year in case of default of
fine. Amount of fine shall be paid to the prosecutrix
as compensation. Conviction and sentence awarded
for the rest of the offences shall remain intact.
(Para 20, 21, 24, 25)

B. Evidence of hostile witness cannot be
discarded as a whole, and relevant part
thereof, which are admissible in law, can be
used by prosecution or the defence. Evidence
of a hostile witnesses would not be totally rejected
if spoken in favour of the prosecution or the
accused but required to be subjected to close
scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or
defence can be relied upon. (Para 17, 18, 19)

Appellant was held guilty by the Trial Court on the
basis of medical evidence and evidence of PW-3
Jaivir, who turned hostile after supporting the
prosecution case while in examination in chief
evidence of hostile witnesses cannot be discarded
on this ground alone, but reliance can be placed on
the testimony of hostile witnesses to the extent it
supports the case of prosecution or defence. (Para
16)

Occurrence of this case took place on 17.4.2004
and the FIR was lodged on 17.4.2004 at 8.45 p.m.
and medical examination of the prosecutrix (aged 3
years at that time) was conducted in hospital just
after three hours. In medical examination hymen
was fresh torn as evident from the medical report
and there was injury of the size of length of 1 c.m..
It was bleeding also. Doctor expressed the
possibility of rape and clearly stated in her cross
examination that such types of injuries can be
sustained by falling on any blunt object which
includes Lathi or Danda but cannot include wood
sticks. Learned trial court has committed no error
in appreciation of evidence. The appeal is devoid of
merit and is liable to be dismissed. (Para 20)

Appeal partly allowed. (E-4)

Precedent followed:

1. Mohd. Giasuddin Vs State of A.P., AIR 1977 SC
1926 (Para 12)

2. Deo Narain Mandal Vs St. of U.P., (2004) 7 SCC 257
(Para 13)
11 All. Eeda Khan Vs. State of U.P.
1249
3. Ravada Sasikala Vs St. of U.P., AIR 2017 SC 1166
(Para 14)

4. Jameel Vs St. of U.P., (2010) 12 SCC 532 (Para 14)

5. Guru Basavraj Vs St. of Karnatak, (2012) 8 SCC
734 (Para 14)

6. Sumer Singh Vs Surajbhan Singh, (2014) 7 SCC
323 (Para 14)

7. St.of Pun. Vs Bawa Singh, (2015) 3 SCC 441 (Para
14)

8. Raj Bala Vs St. of Har., (2016) 1 SCC 463 (Para 14)

9. Koli Lakhmanbhai Chandabhai Vs St. of Guj., 1999
(8) SCC 624 (Para 17)

10. Ramesh Harijan Vs St. of U.P., 2012 (5) SCC 777
(Para 18)

11. St. of U.P. Vs Ramesh Prasad Misra & anr., AIR
1996 SC 2766 (Para 19)

Present appeal challenges judgment and order
dated 16.11.2007, passed by Special Judge,
SC/ST. Act, District -Etah.

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

1. By way of this appeal, the appellant-
Eeda Khan has challenged the Judgment and
order 16.11.2007 passed by Special Judge
(SC/ST Act), Etah in Session Trial No.406 of
2004 (State v. Eeda Khan) arising out of Case
Crime No.116 of 2004 under Sections 452, 376,
506 Indian Penal Code (hereinafter referred to
as, ''IPC') and under Section 3(1)(xii) of SC/SCT
Act,
Police
Station-Aliganj,
District-Etah
whereby the accused-appellant was convicted
and sentenced to undergo rigorous imprisonment
for a period of four years under Sections 452,
506 IPC and 3(1)(xii) SC/ST Act and life
imprisonment under Section 376 IPC. All the
sentences were directed to run concurently.

2. The brief facts as per written report
dated 17.4.2004, submitted by complainant,
father of the prosecutrix at Police Station
Alignaj, District Etah are that today on
17.4.2004 at about 7.30 p.m. his daughter
(prosecutrix) aged about two and half years was
lying in the courtyard of his house and wife of
his elder brother Anjali was cooking the food.
His wife Reena had gone to the shop nearby his
house. By that time accused Eeda Khan of his
village entered his house and raped his daughter
(prosecutrix). On listening to her cry, Anjali
came out and saw that accused was raping his
daughter. On her hue and cry, his wife Reena
and elder brother Mahaveer came there and then
accused ran away from the house. When they
tried to catch him, he showed countrymade
pistol and fled away by giving life threat to
them. On the basis of aforesaid written report, a
first information report was lodged at Police
Station Aliganj, District Etah as Case Crime
No.116 of 2004.

3. Investigation was taken up by C.O.,
Aliganj. Investigating Officer visited the spot,
prepared site plan and he recorded the
statements of witnesses under Section 161 of
Cr.P.C.. Medical examination of prosecutrix was
conducted and medical as well as supplementary
report was prepared. Pathologist's reports were
also made part of the case diary. After
completing the investigation, charge sheet was
submitted by Invesigating Officer agianst the
accused-appellant. The case being exclucively
triable by court of sessions was committed to
Sessions Court by competent Magistrate for
trial.

4. The learned trial court framed charges
against the accused-appellant under Sections
452, 376, 506 IPC and Section 3(1)(xii) SC/ST
Act. The accused denied the charges and
claimed to be tried. The prosecution so as to
bring home the charges, examined eight
witnesses, who are as under:-

1.
Anjali
P.W.1
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
2.
Mahavir
P.W.2
3.
Jaivir
P.W.3
4.
Reena
P.W.4
5.
Prosecutrix P.W.5
6.
Rajveer
Singh
P.W.6
7.
Dr.
Surendar
Patkar
P.W.7
8.
Dr. Sunita
Sagar
P.W.8

5. In support of ocular version prosecution
filed following documentary evidence and get it
proved by leading evidence:

1.
F.I.R.
Ext. Ka-2
2.
Written report
Ext. Ka-1
3.
Injury
Report
(22.4.2004)
Ext. Ka-4
4.
Injury
report
(18.4.2004)
Ext. Ka-5
5.
Supplementary
Report
Ext. Ka-6
6.
Site Plan with
Index
Ext. Ka-7

6. After completion of prosecution
evidence, statement of accused was recorded
under Section 313 of Cr.P.C. in which he said
that he was falsely implicated in this case. No
witness was examined in defence.

7. Heard Shri Sukhvir Singh, learned
Amicus Curie for the appellant; learned AGA
for the State; and also perused the record.

8. Learned counsel for appellant first of all
submitted that in this case all prosecution
witnesses of fact have turned hostile and nobody
has supported the prosecution version. Learned
counsel submitted that as per prosecution case,
Smt. Anjali wife of Mahavir, who is elder
brother of complainant, said to be the eye
witness of this occurrence. She has been
produced by prosecution as PW-1, but she has
not supported the case as alleged by the
prosecution. Learned counsel has submitted that
PW-1 Smt. Anjali has specifically denied the
factum of rape by appellant rather she has
specifically stated that prosecutrix was playing
inside the house and fall on wood sticks due to
which she sustained injuries on her private parts.
Learned counsel for the appellant also submitted
that rest of the witnesses of fact, namely, PW-2
Mahavir, PW-3 Jaivir and PW-4 Smt. Reena are
not eye witnesses although they have also turned
hostile. Hence no witness has supported the
prosecution case but learned trial court has
convicted the appellant on the basis of medical
evidence only.

9. Learned AGA submitted that it is correct
to say that prosecution witnesses of fact have
turned hostile but the complainant PW-3 Jaivir is
father of the prosecutrix and he has fully
supported
the
prosecutrix
case
in
his
examination in chief. His testimony fully
corroborates the medical evidence also. Learned
trial court has rightly appreciated the evidence
and convicted the accused appellant.

10. 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 the last more
than 14 years.

11. This case pertains to the offence of
'rape', defined under Section 375 IPC, which is
quoted as under:
11 All. Eeda Khan Vs. State of U.P.
1251

[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
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.]

12. 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
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

13. '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.

14. 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 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.

15. 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.

16. Learned trial court has made the
evidence of PW-3 Jaivir and medical evidence
as the basis of holding the appellant guilty.
Perusal of record shows that PW-3 Jaivir has
11 All. Eeda Khan Vs. State of U.P.
1253
turned hostile after supporting the prosecution
case while in examination in chief evidence of
hostile witnesses cannot be discarded on this
ground alone, but reliance can be placed on the
testimony of hostile witnesses to the extent it
supports the case of prosecution or defence.

17. Hon'ble Apex Court in Koli
Lakhmanbhai Chandabhai vs. State of
Gujarat [1999 (8) SCC 624], as held that
evidence of hostile witness can be relied upon to
the extent it supports the version of prosecution
and it is not necessary that it should be relied
upon or rejected as a whole. It is settled law that
evidence of hostile witness also can be relied
upon to the extent to which it supports the
prosecution version. Evidence of such witness
cannot be treated as washed off the record. It
remains admissible in the trial and there is no
legal bar to base his conviction upon his
testimony if corroborated by other reliable
evidence.

18. In Ramesh Harijan vs. State of U.P.
[2012 (5) SCC 777], the Hon'ble Apex Court
has also held that it is settled legal position that
the evidence of a prosecution witness cannot be
rejected in toto merely because the prosecution
chose to treat him as hostile and cross-examined
him. The evidence of such witness cannot be
treated as effaced or washed off the record
altogether.

19. In State of U.P. vs. Ramesh Prasad
Misra and another [1996 AIR (Supreme
Court) 2766], the Hon'ble Apex Court held
that evidence of a hostile witnesses would not
be totally rejected if spoken in favour of the
prosecution or the accused but required to be
subjected to close scrutiny and that portion of
the evidence which is consistent with the case
of the prosecution or defence can be relied
upon. Thus, the law can be summarized to the
effect that evidence of a hostile witness cannot
be discarded as a whole, and relevant part
thereof, which are admissible in law, can be
used by prosecution or the defence.

20. It is very relevant to mention that
occurrence of this case took place on 17.4.2004
and the FIR was lodged on 17.4.2004 at 8.45
p.m.
and
medical
examination
of
the
prosecutrix was conducted in hospital just after
three hours. In medical examination hymen was
fresh torn as evident from the medical report
Ext. Ka-5. Dr. Sunita Sagar conducted the
medical examination is produced before trial
court as PW-8. She has stated in her statement
that at the time of internal medical examination
of prosecutrix hymen was found fresh torn and
there was injury of the size of length of 1 c.m..
It was bleeding also. The age of prosecutrix
was found three years. PW-8, Dr. Sunita Sagar
has very clearly stated in her cross examination
that such types of injuries can be sustained by
falling on any blunt object which includes Lathi
or Danda but cannot include wood sticks. She
has expressed the possibility of rape in
supplementary report. After perusal of medical
evidence and other supporting evidence in this
case, we are of the considered view that learned
trial court
has
committed
no
error in
appreciation of evidence. Hence we consider
that the appeal is devoid of merit and is liable
to be dismissed. Hence, the conviction of the
appellant is upheld. But since the learned
counsel for appellant has not pressed this
appeal on merit, we threadbare considered the
principles of proportionality regarding the
imposition of sentence by learned trial court. It
is submitted by learned counsel for the
appellant that appellant is in jail for more than
14 years and he has been awarded punishment
under Section 376 IPC for life imprisonment
which is very harsh.

21. It is also submitted by learned counsel
for appellant that appellant is in jail for more
than 14 years and the age of appellant at the time
of occurrence was nearly 26/27 years.
1254 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Learned AGA also admitted the fact
that appellant is in jail for more than 14 years.

23. 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.

24. It is admitted fact that appellant is in
jail for more than 14 years. Having in view the
offence committed by the appellant, life
sentence seems to be very harsh. Hence keeping
in view the harshness of sentence of life term
awarded to the accused-appellant, we are of the
considered view that it should be reduced to a
fixed term sentence. Hence, we opine that ends
of justice would be met if sentence of life
imprisonment awarded for the offence under
Section 376 of I.P.C. is reduced to the rigorous
imprisonment of 15 years and fine Rs.10,000/-.

25. Hence, the sentence awarded to the
appellant by the learned trial court for the
offence under Section 376 IPC is reduced to 15
years
rigorous
imprisonment
and
fine
Rs.10,000/-. The appellant shall undergo simple
imprisonment for one year in case of default of
fine. Amount of fine shall be paid to the
prosecutrix as compensation. Conviction and
sentence awarded for the rest of the offences
shall remain intact.

26. Accordingly, the appeal is partly
allowed with the modification of the sentence,
as above.
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(2021)12ILR A1254
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.11.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal From Order No. 44 of 2013

Shiv Prasad & Ors. ...Appellant
Versus
Deo Nrain Singh & Ors. ...Respondents

Counsel for the Appellant:
R.P. Shukla, A.K. Shukla

Counsel for the Respondents:
Kumwar Bahadur Singh, Waquar Hasim

Civil Law - Motor Accident Claim - Motor
Vehicles Act, 1988 - Section 173 - Claim
petition by widow of deceased - Insurance
Company did not lead any evidence - Claim
petition dismissed - Tribunal answered issue
about the factum of the accident involving
the offending vehicle against the claimant -
Tribunal rejected evidence of PW-2 eye
witness on the ground he did not carry the
victim to the hospital soon after accident,
number of the offending vehicle not figured
in
FIR,
witness
in
not
chasing
and
apprehending the bus, makes his presence
doubtful - security personnel employed by
the brick kiln, the Students' Hostel or the
Mahendra Tractor Agency, not being called as
witnesses by the claimant to prove the
factum of accident - Held - once PW-2 had
testified as an eye-witness to the accident, it
was imperative for the Insurance Company to
have
produced
evidence
to
rebut
the
claimants' case - Tribunal, in the absence of
any evidence led by the Insurance Company,
or by the driver or the owner, has committed
a manifest error of law in disbelieving the
claimants'
case
-
Matter
remanded
to
Tribunal to try and decide claim petition
afresh (Para 23, 24, 28 )

Allowed. (E-5)