# Shyamveer v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-01
- **Case number:** Criminal Appeal No. 4378 of 2019
- **Bench:** Ashwani Kumar Mishra, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyamveer-v-state-of-u-p-anr-51986
- **Pages:** 9

## Headnote

Criminal Law-Indian Penal Code-1860Sections-323, 376 & 452-The Scheduled
Caste and Scheduled Tribe - Prevention of
Atrocities
Act,
1989-Section
3(2)(v)-
Criminal appeal against the judgment and order
of conviction and sentence of life imprisonmentAccused entered the house of the victim and
subjected her to sexual assault- Victim has been
consistent in implicating the accused appellant of
committing rape upon her during investigation
under Section 161 Cr.P.C. also- By the time
medical examination was conducted, almost 40
hours had expired. In a case of rape, any force
used by the perpetrator to drag the victim or
push her on the ground to commit rape
necessarily need not cause such serious injury
that it would leave a scar even after two days-
No lady would otherwise make a false accusation
against her own dignity merely for getting some
money as compensation- No evidence on record
to show that the offence of rape was committed
by the accused on account of the caste identity
of the victim-Conviction u/s 3(2)(v) SC/ST Act &
u/s 323 IPC reversed-Punishment under Section
376 IPC is modified to 7 years rigorous
imprisonment alongwith fine of Rs.50,000/-.

Appeal disposed of. (E-15)
158 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

5 All. Shyamveer Vs. State of U.P. & Anr.
157
having bushes all around and it was being
used by the villagers for the purposes of
defecation etc. So far as PW-2 is concerned
we find that his testimony cannot be relied
upon as there are material contradictions in
his
version.
There
are
otherwise
improvements made in his testimony from
what was disclosed earlier at the stage of
investigation. We, therefore, do not found
the testimony of PW-2 to be reliable or safe
in order to convict the accused appellants.
These aspects appear to have been
overlooked by the trial court and the
statement of witnesses have been relied
upon routinely without due care and caution.
The conclusions drawn by the trial court on
the aspect of appellants' guilt is thus found
to be contrary to the weight of evidence on
record.

25. Record otherwise shows that
appellant Matgulla @ Ajay is in jail for last
more than eight years, whereas accused
Sanjay has undergone incarceration of
almost six years. Upon evaluation of
prosecution evidence we find that the
accused appellants are clearly entitled to
benefit
of
doubt,
inasmuch
as
the
prosecution
has
not
succeeded
in
establishing its case against the accused
appellants beyond reasonable doubt. The
findings of the trial court that the guilt of
accused appellants are established beyond
reasonable doubt are thus reversed.

26. Consequently, the appeals
succeed and are allowed. The judgment and
orders of conviction and sentence of the
accused appellants Matgulla @ Ajay and
Sanjay are set aside. The appellants shall be
set to liberty unless they are required in any
other case, subject to compliance of Section
437A Cr.P.C.
----------
(2024) 5 ILRA 157
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.05.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 4378 of 2019

Shyamveer ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Suresh Dhar Dwivedi, Bishram Tiwari, Ritesh
Singh, Suresh Singh

Counsel for the Respondent:
G.A.

Criminal Law-Indian Penal Code-1860Sections-323, 376 & 452-The Scheduled
Caste and Scheduled Tribe - Prevention of
Atrocities
Act,
1989-Section
3(2)(v)-
Criminal appeal against the judgment and order
of conviction and sentence of life imprisonmentAccused entered the house of the victim and
subjected her to sexual assault- Victim has been
consistent in implicating the accused appellant of
committing rape upon her during investigation
under Section 161 Cr.P.C. also- By the time
medical examination was conducted, almost 40
hours had expired. In a case of rape, any force
used by the perpetrator to drag the victim or
push her on the ground to commit rape
necessarily need not cause such serious injury
that it would leave a scar even after two days-
No lady would otherwise make a false accusation
against her own dignity merely for getting some
money as compensation- No evidence on record
to show that the offence of rape was committed
by the accused on account of the caste identity
of the victim-Conviction u/s 3(2)(v) SC/ST Act &
u/s 323 IPC reversed-Punishment under Section
376 IPC is modified to 7 years rigorous
imprisonment alongwith fine of Rs.50,000/-.

Appeal disposed of. (E-15)
158 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Patan Jamal Vali Vs The St. of Andhra
Pradesh (2021) 16 SCC 225

2. Babu Vs St. of U.P. Criminal Appeal No.2878
of 2013, decided on 15.7.2022

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This appeal is directed against
judgment and order of conviction and
sentence dated 25.5.2019, passed by the
Special Judge (SC/ST Act), Shahjahanpur in
Sessions Trial No. 1936 of 2003 (State Vs.
Shyamveer), arising out of Case Crime No.
75 of 2000, Police Station Madanapur,
District Shahjahanpur, whereby the accused
appellant Shyamveer has been convicted
and
sentenced
to
life
imprisonment
alongwith fine of Rs.50,000/- under Section
376 IPC read with Section 3(2)(v) SC/ST
Act and on failure to deposit fine to undergo
additional simple imprisonment for one
year; five years rigorous imprisonment
alongwith fine of Rs.10,000/- under Section
452 IPC and on failure to deposit the fine to
undergo additional simple imprisonment for
two months; and six months rigorous
imprisonment alongwith fine of Rs.500/-
under Section 323 IPC and on failure to
deposit fine to undergo additional simple
imprisonment for fifteen days. Sentences are
to run concurrently.

2. Informant in the present case is
the husband of the victim, who has reported
that on 21.5.2000 he had gone for work and
his wife and children were at home. At about
8.00 in the evening accused Shyamveer, a
resident of the same village, entered the
house; assaulted his wife and ultimately
dragged her inside a Kothari (small room)
and subjected her to sexual assault. On
raising of alam by the victim Udaiveer and
informant's son came; challenged the
accused; saved the victim; whereafter the
accused fled. This written report is dated
23.5.2000 in respect of incident of
21.5.2000. First information report was
lodged at 12.20 afternoon on 23.5.2000, as
Case Crime No.75 of 2000, under Section
452, 376, 323 IPC & Section 3(1)12 SC/ST
Act, at Police Station Madanapur, District
Shahjahanpur. The victim was medically
examined at 3.25 pm on 23.5.2000. No
external or internal injuries were found. The
victim herself reported that she was carrying
pregnancy of 20 weeks. Supplementary
medical report has also been submitted,
wherein no cardiac activity was seen in the
fetus. The doctor opined that the pregnancy
was of 8 weeks 6 days but the fetus was not
alive. Doctor in his cross-examination has
stated that though pregnancy was disclosed
as of 20 weeks but in fact the pregnancy was
of 8 weeks 6 days. Statement of witnesses
were recorded, and thereafter a chargesheet
was submitted under Section 452, 323, 376
IPC & Section 3(2)(v) SC/ST Act on
26.7.2000 by the Investigating Officer. The
Magistrate
took
cognizance
of
the
chargesheet and committed the case to the
court of sessions, where accused was
charged of offences under Section 452, 323,
376 IPC and Section 3(2)(v) SC/ST Act.

3. During the course of trial,
documentary evidence have been adduced
by the prosecution in the form of FIR as
Ex.Ka-6; written report as Ex.Ka-1; medical
examination
report
as
Ex.Ka-2;
supplementary
report
as
Ex.Ka-3;
chargesheet as Ex.Ka-4; and site plan with
Index as Ex.Ka-5.

4. In addition to above, the
informant has been produced in evidence as
PW-1 by the prosecution. He has supported
the prosecution case and has also proved the
5 All. Shyamveer Vs. State of U.P. & Anr.
159
written report. Accused Shyamveer lived at
a distance of about 100 Kilometre (wrongly
recorded, as the accused is of same village
and 100 meters appears to have mentioned
as 100 kms). Ompal, Ramanpal sons of
Rampal and Sadhu Singh are residents of
village against whom various cases of
Dacoity, loot etc. are pending. In his further
cross-examination he has stated that report
was got scribed by the Investigating Officer
Pramod Kumar and he had merely affixed
his thumb impression. He has denied the
suggestion
that
only
for
receiving
Rs.50,000/- compensation from the State
that a false report has been lodged.

5. PW-2 is the victim and wife of
the informant. She is Khatik, which is a
scheduled caste. She has supported the
prosecution case and has alleged that while
she was dragged inside a small room and
pushed on the floor to commit rape, she
sustained injuries and her bangles got
broken. Accused also carried a firearm by
which she was threatened. She has stated
that the written report was got scribed by
Pramod Kumar. In her cross-examination
PW-2 has stated that Shyamveer is a
resident of same village and had taken a
house close by. At the time of incident she
was cooking food and her elder son was
playing on the roof along with her other
four children. The door was open.
Accused came abruptly and gagged her, so
that she could not raise an alarm. She did
not remember as to for how long the
accused continued to gag her. Victim
claims to have been physically assaulted
by the accused. The accused was also
drunk. Accused was naked. Prior to this
incident accused has never come to her
house. She has denied the suggestion that
on account of enmity with Ompal,
Ramanpal and Sadhu Singh, they have got
the accused implicated under Section 376
IPC.

6. Mukesh is the son of victim, aged
about 14 years, and has been produced as
PW-3. He has supported the prosecution
case, as per which his mother was dragged
inside the room and subjected to sexual
assault. The witness himself has seen the
incident alongwith Udaiveer. In the crossexamination he has stated that he was
playing on the roof. Accused was naked. On
raising of alarm by his mother, PW-3 came
downstairs by when Udaiveer also arrived,
whereafter accused fled.

7. Dr. Deepa Dixit (PW-4) was
posted at Women Hospital at Shahjahanpur
and had conducted the medical examination
of the victim. She had certified that there
were no external or internal injuries on the
victim. In the pathological report, no dead or
live spermatozoa was found. As per
ultrasound the victim was pregnant by 8
weeks 6 days but the fetus had no cardiac
activity. No definite opinion with regard to
rape has been expressed. She has stated that
initially on the disclosure of the victim
pregnancy was assessed of 20 weeks but on
examination the pregnancy was of only 8
weeks 6 days.

8. PW-5 is the Circle Officer
M.M.Verma, who was the Investigating
Officer of the present case. He has proved
the police papers as also the chargesheet.
Head Constable Ram Sewak was produced
as PW-6 who has proved the GD.

9. Udaiveer, who is stated to be the
only independent eye-witness, has been
produced as PW-7. This witness has not
supported the prosecution case and has been
declared hostile.
160 INDIAN LAW REPORTS ALLAHABAD SERIES
10. It is on the basis of above
evidence that statement of accused has been
recorded under Section 313 Cr.P.C. The
accused has stated that he has been falsely
implicated on account of enmity.

11. Court of sessions on the basis of
evidence led in the matter has ultimately
concluded that prosecution has established
its case beyond reasonable doubt relying
upon the testimony of victim as well as other
witness of fact namely PW-3.

12. On behalf of appellant, it is
submitted that the accused appellant has
been falsely implicated on account of village
enmity, and that the incident is imaginary.
Learned counsel for the appellant further
submits that the implication of accused
appellant is for the purposes of securing
compensation from the State. Submission is
that at the instigation of villagers Ramanpal,
Ompal and Sadhu, who were implicated in
various serious offences of dacoity, loot,
murder etc., the appellant is falsely
implicated. Learned counsel further submits
that the medical evidence does not support
the commissioning of rape. It is also stated
that the prosecution story is otherwise
wholly improbable.

13. Learned AGA, on the other
hand, has supported the judgment of the
court of sessions, under challenge, whereby
accused appellant has been convicted and
sentenced as per above.

14. We have heard Sri Ritesh Singh,
learned counsel for the appellant and Sri
Surendra Singh, learned AGA for the State
and have perused the material placed on
record including the original record of the
Trial Court. Mrs. Abhilasha Singh has also
appeared for High Court Legal Services
Authority.
15. As per the prosecution case, the
incident occurred on 21.5.2000 at about 8.00
in the evening. According to the victim she
was cooking food in her house and her five
children were playing on the roof of the
house. The accused was living nearby and
he entered the house and subjected her to
sexual assault. This incident is sought to be
proved with the aid of oral and documentary
evidence, which has already been referred to
above.

16. The evidence on record has
been examined by us. Victim has explained
before the court the manner in which the
accused entered the house; dragged her
inside the room and subjected her to sexual
assault. She has been consistent in
implicating the accused appellant of
committing
rape
upon
her
during
investigation under Section 161 Cr.P.C.
also. Her testimony is supported by the
version of PW-3, who is the son of the
informant. According to PW-2 (victim), she
raised an alarm whereafter PW-3 and
Udaiveer rushed to the rescue of the victim.
PW-3
has
also
been
consistent
in
implicating the accused, since the stage of
investigation.

17. On behalf of appellant, it is
submitted that the medical evidence does
not support the prosecution case, inasmuch
as there are no external or internal injuries
found on the victim. It is also argued that no
spermatozoa etc. has been found in the
pathological report. The doctor has also not
given any definite opinion with regard to
rape on the victim.

18. So far as the medical evidence
is concerned, we find that though the
incident occurred on 21.5.2000 but the FIR
was lodged on the third day i.e. 23.5.2000.
By the time medical examination was
5 All. Shyamveer Vs. State of U.P. & Anr.
161
conducted, almost 40 hours had expired. In
a case of rape, any force used by the
perpetrator to drag the victim or push her on
the ground to commit rape necessarily need
not cause such serious injury that it would
leave a scar even after two days. The trial
judge has opined that possibility of victim
having taken Bath or changing her clothes
etc. within those 40 hours would be natural,
particularly when it was peak of summer.
Traces of crime may not be available in the
medical evidence due to lapse of time.

19. The victim otherwise is a
mother of five children and unless any
specific reason of false implication is
established during the trial, this Court would
be inclined to rely upon the testimony of
victim, who has been consistent during the
investigation and trial. No lady would
otherwise make a false accusation against
her own dignity merely for getting some
money as compensation. The son of the
victim i.e. PW-3 has also been consistent in
implicating the accused appellant of
committing the offence. So far as PW-7 is
concerned, we find that though he had
supported the prosecution case at the stage
of investigation but has turned hostile during
trial. Since PW-7 is a resident of same
village, the possibility of him being
influenced by the accused party cannot be
ruled out. The mere fact that PW-7 has not
supported the prosecution case would not be
of much importance.

20. In the facts of the case, we find
that the victim has clearly narrated the
manner in which the accused entered in her
house and subjected her to sexual assault
while she was cooking food and her husband
was away. She has been consistent in her
version. Her deposition is also supported by
PW-3. In the absence of any reason of false
implication, we do not find any good ground
to disagree with what has been held by the
trial court. The finding that prosecution has
succeeded in proving the offence under
Section 376 IPC by the accused against the
victim is thus sustained.

21. So far as the allegation under
Section 452 IPC is concerned, also we find
that the witnesses have been consistent in
stating that the accused entered the house of
the victim against her wishes and subjected
her to sexual assault. Offence under Section
452 IPC is thus sustained.

22. Coming to the offence under
Section 3(2)(v) SC/ST Act, we find that the
only evidence on record is the disclosure by
the victim that she is Khatik by caste. Khatik
is a scheduled caste. Apart from establishing
the identity of victim, as being scheduled
caste, there is no other evidence that offence
upon the victim was committed on account
of her caste identity. Neither the victim nor
PW-3 has at any stage of their deposition has
supported the prosecution case about
commissioning of offence under Section
3(2)(v) SC/ST Act.

23. In what manner an offence
under Section 3(2)(v) SC/ST Act can be
established has been dealt with extensively
by the Supreme Court in Patan Jamal Vali
Vs. The State of Andhra Pradesh, reported
in (2021) 16 SCC 225. In para 62 to 64 of
the report, the Supreme Court has clearly
laid down that the prosecution must prove
that the offence was committed on account
of caste identity by the accused appellant,
which are reproduced hereinafter:-

"62. The issue as to whether the
offence was committed against a person on
the ground that such person is a member of
an SC or ST or such property belongs to
such member is to be established by the
162 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution on the basis of the evidence at
the trial. We agree with the Sessions Judge
that the prosecution's case would not fail
merely because PW 1 did not mention in her
statement to the police that the offence was
committed against her daughter because she
was a Scheduled Caste woman. However,
there is no separate evidence led by the
prosecution to show that the accused
committed the offence on the basis of the
caste identity of PW 2. While it would be
reasonable to presume that the accused
knew the caste of PW 2 since village
communities are tightly knit and the accused
was also an acquaintance of PW 2's family,
the knowledge by itself cannot be said to be
the basis of the commission of offence,
having regard to the language of Section
3(2)(v) as it stood at the time when the
offence in the present case was committed.
As we have discussed above, due to the
intersectional nature of oppression PW 2
faces, it becomes difficult to establish what
led to the commission of offence - whether
it was her caste, gender or disability. This
highlights the limitation of a provision
where causation of a wrongful act arises
from a single ground or what we refer to as
the single axis model.
 63. It is pertinent to mention that
Section 3(2)(v) was amended by the
Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Amendment Act,
2015, which came into effect on 26-1-2016.
The words "on the ground of" under Section
3(2)(v)
have
been
substituted
with
"knowing that such person is a member of a
Scheduled Caste or Scheduled Tribe". This
has decreased the threshold of proving that a
crime was committed on the basis of the
caste identity to a threshold where mere
knowledge is sufficient to sustain a
conviction. Section 8 which deals with
presumptions as to offences was also
amended to include clause (c) to provide that
if the accused was acquainted with the
victim or his family, the court shall presume
that the accused was aware of the caste or
tribal identity of the victim unless proved
otherwise. The amended Section 8 reads as
follows:

"8. Presumption as to offences.-
In a prosecution for an offence under this
Chapter, if it is proved that-

(a) the accused rendered any
financial assistance in relation to the
offences committed by a person accused of,
or reasonably suspected of, committing, an
offence under this Chapter, the Special
Court shall presume, unless the contrary is
proved, that such person had abetted the
offence;

(b) a group of persons committed
an offence under this Chapter and if it is
proved that the offence committed was a
sequel to any existing dispute regarding land
or any other matter, it shall be presumed that
the offence was committed in furtherance of
the common intention or in prosecution of
the common object.

(c) the accused was having
personal knowledge of the victim or his
family, the Court shall presume that the
accused was aware of the caste or tribal
identity of the victim, unless the contrary is
proved."

64. The Parliament Standing
Committee Report on Atrocities Against
Women and Children has observed that,
"high acquittal rate motivates and boosts the
confidence of dominant and powerful
communities for continued perpetration"
and recommends inclusion of provisions of
the SC & ST Act while registering cases of
gendered violence against women from the
SC & ST communities. However, as we
have noted, one of the ways in which
offences against SC & ST women fall
through the cracks is due to the evidentiary
burden that becomes almost impossible to
5 All. Shyamveer Vs. State of U.P. & Anr.
163
meet in cases of intersectional oppression.
This is especially the case when courts tend
to read the requirement of "on the ground"
under Section 3(2)(v) as "only on the ground
of". The current regime under the SC & ST
Act, post the amendment, has facilitated the
conduct of an intersectional analysis under
the
Act
by
replacing
the
causation
requirement under Section 3(2)(v) of the Act
with a knowledge requirement making the
regime sensitive to the kind of evidence that
is likely to be generated in cases such as
these."

24. There is no evidence on record
to show that the offence of rape was
committed by the accused appellant on
account of the caste identity of the victim. In
the absence of any evidence in that regard,
we are persuaded to accept the appellant's
contention that the offence under Section
3(2)(v) SC/ST Act is not established against
the accused appellant. The conviction and
sentence of the accused appellant under
Section 3(2)(v) SC/ST Act is, therefore,
reversed.

25. So far as the offence under
Section 323 IPC is concerned, we find that
evidence
on
record
do
not
justify
implication of the accused appellant under
Section 323 IPC, inasmuch as no injury of
any kind has been found on the victim. The
conviction and sentence against the accused
appellant under Section 323 IPC is,
therefore, reversed.

26. Coming to the question of
sentence, we find that the trial court has
awarded life sentence to the accused
appellant
under
Section
376
IPC.
Punishment under Section 376 IPC varies
from 7 years to life. When the court
proceeds to award maximum permissible
sentence for an offence, it is the cardinal
principle of law that reasons have to be
given
for
awarding
such
maximum
punishment. We do not find any such
reasons to have been disclosed by the trial
court. We otherwise find that there are no
circumstances, which may justify awarding
of extreme punishment to the accused
appellant in the facts of the present case. It
is admitted that accused appellant is the first
offender and no such incident has been
reported against him earlier. The possibility
of reformation of the accused cannot be
ruled out. On the aspect of sentence, we may
refer to a recent judgment of the Division
Bench of this Court in Babu Vs. State of
U.P., passed in Criminal Appeal No.2878 of
2013, decided on 15.7.2022. Relevant
portion of the judgment is reproduced
hereinafter:-

"14.
While
coming
to
the
conclusion
that
the
accused
is
the
perpetrator of the offence, whether sentence
of life imprisonment and fine is adequate or
the sentence requires to be modified in the
facts and circumstances of this case and in
the light of certain judicial pronouncements
and precedents applicable in such matters.
This Court would refer to the following
precedents, namely, 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
164 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15.
'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.

16. 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.

17. 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.

18. .......
5 All. Anand Kumar Asthana Vs. State of U.P. & Anr.
165

19. .......

20.
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. "

27. Considering the evidence in its
entirety, we are of the view that punishment
of life under Section 376 IPC to the accused
appellant is not warranted, and ends of
justice would be met if the minimum
punishment of 7 years is awarded to the
accused appellant under Section 376 IPC.
To that extent we modify the judgment and
order of the court below.

28. For the reasons and discussions
held above, this appeal succeeds in part.
While conviction of accused appellant under
Section 376 and 452 IPC is sustained, his
conviction under Section 3(2)(v) SC/ST Act
and 323 IPC is set aside. The punishment
imposed upon accused appellant under
Section 452 is maintained, while under
Section 376 IPC is modified to 7 years
rigorous imprisonment alongwith fine of
Rs.50,000/-. On failure to pay fine, the
accused appellant shall undergo default
sentence of 6 months. Punishments shall run
concurrently.

29. Mrs. Abhilasha Singh, who has
appeared for the High Court Legal Services
Authority, shall be entitled to payment of
her fee, as per rules.
30. Appeal, accordingly, stands
disposed of.
----------
(2024) 5 ILRA 165
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2024

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Writ A No. 7124 of 2023

Anand Kumar Asthana ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Shishir Jain, Lakshyadeep Srivastava

Counsel for the Respondents:
S.C., Ajay Kumar Singh

A. Service Law - Constitution of India -
Article 311(2) - UP Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
7 - Punishment - Opportunity of hearing -
Documentary
evidence
and
list
of
witnesses was not served - Charges were
not so grave in nature, which could lead to
the major punishment - Effect - Major
punishment imposed - Validity challenged
- Held, the charges framed, should be
precised and clear and the chargesheet
alongwith
copy
of
the
documentary
evidence and the list of witnesses, if any,
should be served upon the charged
government servant - Show cause notice
cannot be a proof of any misconduct,
unless a decision is taken, while affording
the
opportunity
of
hearing
to
such
employee - Though the noting dated 2907-2021, is not an order and even the same
has never been served upon the petitioner
and therefore, that cannot be treated as
documentary proof against the petitioner.
(Para 21, 22 and 27)

Writ petition allowed. (E-1)