# Suresh v. State of U.P

- **Citation:** (2021) 11 ILRA 80
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-24
- **Case number:** Criminal Appeal No. 3248 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-v-state-of-u-p-46604
- **Pages:** 8

## Headnote

(A) Criminal Law - The Indian Penal Code, 1860
- Sections 376 & 506 , The Schedule Castes
And
The
Schedule
Tribes
(Prevention
of
Atrocities ) Act , 1989 - Section 3(2)(v) - The
Code of criminal procedure, 1973 - Section 313
-appeal against conviction - Appellate Court is
11 All. Suresh Vs. State of U.P.
81
bound to sift the evidence of all witness who
have been examined - High Court should also
consider
the
evidence
of
the
witness
threadbare before it takes a different view then
that taken by the Sessions Judge, in appeal
preferred
against
the
order
of
acquittal/conviction.(Para - 10,19)

(B) Criminal law - Quantum of sentence -
doctrine of proportionality - Rehabilitary &
Reformative aspects in sentencing - Proper
sentence - 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 - criminal justice jurisprudence
adopted in the country is not retributive but
reformative and corrective.(Para - 10,28,29,33)

Prosecutrix , 16 years of age ( disabled ) - gone for
grazing cattle - when she was in field of Gutti -
accused forcefully took her to field of Gutti -
committed forcible sexual intercourse with her -
daughter conveyed the entire incident to her father
(complainant) - complainant along with his daughter
lodged compliant - trial court convicted accused -
hence appeal - appellant argued matter for lesser
sentence under Section 376.

HELD:- No case is made out under Section 3 (2) (v)
of the SC/ST Act, 1989. 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. Conviction upheld . Incident
occurred before the amendment provision of Indian
Penal Code in the year 2000 which culminated into
the charge sheet and sessions case was registered in
the year 2002. 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. Conviction and sentence awarded to the
appellant , is hereby set aside. (Para - 22,31,32,36)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

80 INDIAN LAW REPORTS ALLAHABAD SERIES

21. 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.

22. Since the learned counsel for the
appellant has also 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 requires to be
considered only for sentence. The conviction of
the appellant is upheld but sentence requires to
be altered.

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. 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 of imprisonment of life is
reduced from life imprisonment to the period of
ten years with all remission would meet the ends
of justice.

25. Looking to the age of the girl, we do
not think that the judgment of the Court below
requires to be upturn. However, the sentence
awarded to the appellant by the learned trialcourt is modified and is reduced to 15 years
rigorous imprisonment. Imposition of fine and
additional imprisonment in case of default of
fine shall remain intact. The fine of Rs.10,000/-
imposed by the learned Trial Court be modified
to
Rs.20,000/-
which shall
be
paid
as
compensation to the victim if amount of fine is
not deposited within 12 weeks of release he shall
be subjected to six months imprisonment if fine
is already deposited be paid to prosecutrix.

26. Appeal is partly allowed. Record be
sent back to the Trial Court forthwith.
----------
(2021)11ILR A80
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2021

BEFORE

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

Criminal Appeal No. 3248 of 2014

Suresh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Piyush Dubey, Sri Dinesh Tiwari, Sri Virendra
Singh

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - The Indian Penal Code, 1860
- Sections 376 & 506 , The Schedule Castes
And
The
Schedule
Tribes
(Prevention
of
Atrocities ) Act , 1989 - Section 3(2)(v) - The
Code of criminal procedure, 1973 - Section 313
-appeal against conviction - Appellate Court is
11 All. Suresh Vs. State of U.P.
81
bound to sift the evidence of all witness who
have been examined - High Court should also
consider
the
evidence
of
the
witness
threadbare before it takes a different view then
that taken by the Sessions Judge, in appeal
preferred
against
the
order
of
acquittal/conviction.(Para - 10,19)

(B) Criminal law - Quantum of sentence -
doctrine of proportionality - Rehabilitary &
Reformative aspects in sentencing - Proper
sentence - 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 - criminal justice jurisprudence
adopted in the country is not retributive but
reformative and corrective.(Para - 10,28,29,33)

Prosecutrix , 16 years of age ( disabled ) - gone for
grazing cattle - when she was in field of Gutti -
accused forcefully took her to field of Gutti -
committed forcible sexual intercourse with her -
daughter conveyed the entire incident to her father
(complainant) - complainant along with his daughter
lodged compliant - trial court convicted accused -
hence appeal - appellant argued matter for lesser
sentence under Section 376.

HELD:- No case is made out under Section 3 (2) (v)
of the SC/ST Act, 1989. 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. Conviction upheld . Incident
occurred before the amendment provision of Indian
Penal Code in the year 2000 which culminated into
the charge sheet and sessions case was registered in
the year 2002. 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. Conviction and sentence awarded to the
appellant , is hereby set aside. (Para - 22,31,32,36)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

1. Hitesh Verma Vs The St. of Uttarakhand & anr.,
2020 0 Supreme (SC) 653
2. Ramawatar Vs St. of M. P., 2021 0 Supreme (SC)
625

3. Vishnu Vs St. of U.P., Criminal Appeal No.204 of
2011

4. Patan Jamal Vali Vs The St. Of A.P., AIR 2021 SC
2190

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

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

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

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

9. Guru Basavraj Vs St. of Kar., (2012) 8 SCC 734

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

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

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

13. Manoj Mishra @ Chhotkau Vs The St. of U.P.,
Criminal Appeal No.1167 of 2021

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

1. By way of this appeal, the appellantSuresh has challenged the Judgment and order
dated 23.7.2014 passed by court of Special
Judge SC/ST Act, Agra in Sessions Trial No.150
of 2002, State Vs. Suresh arising out of Case
Crime No.378 of 2000, under Sections 376, 506
of Indian Penal Code (for short 'IPC') and read
with Section 3(2)(v) of Scheduled Castes and
Scheduled Tribes ( Prevention of Atrocities)
Act, 1989 ( hereinafter refeerred to as
'S.C./S.T.Act, 1989'), Police Station Malpura,
District Agra, whereby the accused-appellant
was convicted under Section 376 IPC and
sentenced to life imprisonment with fine of
Rs.1,000/-, and in case of default of payment of
fine, to undergo further imprisonment for six
82 INDIAN LAW REPORTS ALLAHABAD SERIES
months; he was further convicted under Section
3(2)(v) of Scheduled Casts and Scheduled
Tribes ( Prevention of Atrocities) Act, 1989 and
sentenced to imprisonment for life with fine of
Rs.1,000/- and in case of default of payment of
fine, to undergo further simple imprisonment for
six months.

2. Brief facts of the present case are that on
13.12.2000 at about 15.10 p.m., Hakim Singh,
son of Madho Singh Jatav, gave a written
complainant that on 12.12.2020 when his
daughter, namely, prosecutrix who was 16 years
of age ( who is disabled ) had gone for grazing
the cattle and when she was in the field of Gutti,
accused Suresh son of Mohan Singh Thakur
forcefully took her to the field of Gutti and had
committed forcible sexual intercourse with her.
When the prosecutrix shouted, Navvar and
Jayanti son of Bhagwan Singh Jatav and Mukesh
son of Faguni Ram Jatav came there and saw the
offence being committed but at that time Suresh
ran away from there. When the complainant
returned back from Agra, his daughter conveyed
the entire incident to him namely, her father.
The accused was serving with Gutti Thakur.
When the complainant went to Gutti Thakur to
complain, his son threatened him and, therefore,
on the next date, complainant along with his
daughter lodged the compliant.

3. The accused-appellant being, prima facie,
found to have committed the offence by the
 Investigating Authority. Investigating Authority
laid the charge-sheet before the learned Magistrate.

4. As the offences with which the accused
was charged were triable by the court of session.
The case was committed to the court of session.

5. The trial was initiated against the accused
and the accused was summoned. The accused
pleaded not guilty and wanted to be tried. The
learned Judge framed the charge and the accused
pleaded not guilty

6. The prosecution so as to bring home the
charges, framed against the accused, examined
the following witnesses:

1.
Prosecutrix
PW-1
2.
Hakim Singh
PW-2
3.
Dr. Meetu Agarwal
PW-3
4.
Mukesh
PW-4
5.
Constable Netrapal
PW-5
6.
Jayanti Prasad
PW-6
7.
S.I. Madhu Sudan Mishra
PW-7
8.
Constable Satyarai
PW-8
9.
Munni Devi
PW-9
10.
Rajendra Kumar
PW-10

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

1.
Written report
Ex.Ka-1
2.
Medical Report
Ex.Ka-2
3.
Supplementary Report
Ex.Ka-3
4.
FIR
Ex.Ka-4
5.
G.D.
Ex.Ka-5
6.
Site-plan
Ex.Ka-6
7.
Charge-sheet
Ex.Ka-7
8.
Charge-sheet
Ex.Ka-8

8. The prosecution after leading ocular and
documentary evidence decided that no further
evidence was necessary. The accused thereafter
was examined under Section 313 of the Cr.P.C.
Learned Additional Sessions Judge convicted
the accused and sentenced him as herein above
mentioned.

9. Heard Shri Virendra Singh, learned counsel
for the appellant and Shri N.K. Srivastava, learned
AGA appearing on behalf of the State.

10. In view of the latest decision of the
Apex Court while hearing an appeal against
11 All. Suresh Vs. State of U.P.
83
conviction, the Appellate Court is bound to sift
the evidence of all witness who have been
examined.

11. Learned counsel for the appellant has
contended that the impugned order and
judgment is based on surmises and conjuncture.
It is further submitted that the appellant has been
falsely implicated which fact has been totally
ignored by the learned Judge. While returning
the finding of guilt, it is further submitted that
though the prosecutrix witness did not even
convey or depose that the act was committed
because of the caste of the prosecutrix or her
parent. It is submitted that the Court below
failed to consider the fact that no act of rape has
been proved by medical evidence either ocular
or documentary.

12. Learned counsel for the appellant has
placed reliance on the decisions of the Apex
Court in Hitesh Verma Vs. The State of
Uttarakhand and another, 2020 0 Supreme (SC)
653, Ramawatar Vs. State of Madhya Pradesh,
2021 0 Supreme (SC) 625 and a reported
judgment of this Court in Criminal Appeal
No.204 of 2011 [Vishnu vs. State of UP] dated
28.1.2021 penned by one of us (Dr.Kaushal
Jayendra Thaker, J.) contending that no case
under Section 3 (2) (v) of SC/ST Act is made
out and the conviction under the said section
requires to be upturned.

13. It is submitted by learned counsel for
the State that prosecutrix belongs to Scheduled
Caste community and the judgment of learned
trial Judge cannot be found fault with just
because there is silence about caste on the part
of the prosecutrix. It is submitted that the
incident occurred because of the caste of the
prosecutrix. It is further submitted that any
incident on person belonging to a particular
caste would be an offence.

14. Learned AGA appearing on behalf of
State contends that the victim belongs to the
community mentioned in the SC/ST Act, any act
done would itself with such knowledge be
sufficient for convicting the accused and
upholding the conviction under Section Section
3 (2) (v) of the SC/ST Act.

15. The provisions of Section 3 (2) (v) of
the SC/ST Act provides as under:

"(v) commits any offence under the
Indian Penal Code (45 of 1860) punishable with
imprisonment for a term of ten years or more
against a person or property on the ground that
such person is a member of a Scheduled Caste or
a Scheduled Tribe or such property belongs to
such
member,
shall
be
punishable
with
imprisonment for life and with fine"

16. Before we go through the provisions of
the Act, it would be relevant for us to discuss
threadbare the evidence of the prosecution so as
to concur with the judgment and/or reverse the
finding of learned Sessions Court as far as
Section 3 (2) (v) of the SC/ST Act are
concerned.

17. Learned counsel for the appellant has
also relied on the judgment in Patan Jamal Vali
vs The State Of Andhra Pradesh, AIR 2021
SC 2190 and contends that as the prosecutrix
has not laid any evidence to prove that the
offence was committed knowing that the victim
belongs to scheduled caste category within a
meaning of Section 3(2)(v) of S.C./S.T.Act.

18. Learned Trial Judge has returned the
finding holding the accused guilty without even
evidence being laid for commission of the said
offence the said will also inure the benefit of the
accused as ingredients of offence under Section
3(2)(v) of SC./ST Act were not established.
84 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In a recent judgment in State of Gujarat
Vs. Bhalchandra Laxmishankar Dave, the Apex
Court has held that the High Court should also
consder the evidence of the witness threadbare
before it takes a different view then that taken by
the Sessions Judge, in appeal preferred against
the order of acquittal/conviction.

20. While going through the record, neither
the prosecutrix nor the father of the prosecutrix
has mentioned that the accused was having
knowledge about their community and the act
was perpetrated because of the fact that
prosecutrix belonged to a particular community.
There are several contradictions and variations.
Sallu (PW4) is the maternal uncle of the
prosecutrix, who has also not alleged that
accused was in knowledge of caste of
prosecutrix. The prosecution witness PW4, PW5
and PW6 are not eyewitness rather that they are
hearsay witness who were examined after a
period of one month of the incident. Even before
the doctor, the prosecutrix has never stated that
the act was committed in furtherance of
harassment based on castism. The ocular version
of PW2, who had lodged the FIR, does not speak
that the act was perpetrated because of the caste
of the prosecutrix.

21. In view of the evidence adduced, it
transpires that there is no evidence whatsoever
to prove the commission of offence under
Section 3 (2) (v) of the SC/ST Act. The mere
fact that the victim happened to be a girl
belonging to the scheduled caste does not attract
the provisions of the Act, 1989, the sine qua non
is that the victim should be a person, who
belongs to the scheduled caste or the scheduled
tribe and that the offence under the Indian Penal
Code is committed against him/her on the basis
that such a person belongs to the scheduled caste
or the scheduled tribe, and that accused had
knowledge of her/his caste before he committed
the offence. In the absence of such ingredients,
no conviction under Section 3 (2) (v) of the Act,
1989, can be sustained.

22. Hence, we are of the considered view
that no case is made out under Section 3 (2) (v)
of the SC/ST Act, 1989, and learned trial-court
could not have convicted and sentenced the
appellant for the aforesaid offence.

23. Learned counsel for the appellant
argued the matter for lesser sentence under
Section 376 after we conveyed that we were not
inclined to interfere looking to the medical
report and the version of prosecution. He has
taken us to the fact in the evidence no injury on
the private part of the prosecutrix was found.
The prosecutrix was 16 years of age at time of
incident. Hymen was intact. Vaginal smear was
sent
for
examination
and
according
to
supplementary medical report, no spermatozoa
was found.

24. As far as Section 3 (2) (v) of the SC/ST
Act is concerned, we upturn the finding of the
learned
Sessions
Judge
for
the
reasons
mentioned.

25. Since the learned counsel for the
appellant has not pressed the appeal on merit as
far as other offences, the punishment period
which already undergone by the accused.

26. 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
11 All. Suresh Vs. State of U.P.
85
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.]

27. 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."

28. '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
86 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

29. 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.

30. A very recent judgment of Hon'ble
Supreme Court titled as Manoj Mishra @
Chhotkau Vs. The State of Uttar Pradesh (
Criminal Appeal No.1167 of 2021) decided on
8th October, 2021 is also considered by us. The
facts were similar and, therefore, we cannot
disagree with the finding of facts of the Court
below but at the same time considering the
factual scenario and sentencing the policy will
permit us to reduce the life imprisonment to
lesser punishment of incarceration as far as
Section 376 IPC is concerned. In Patan Jamal
Vali vs The State Of Andhra Pradesh (supra)
the conviction under Section 3(2)(v) SC/ST Act
cannot be sustained and is set aside. As far as
punishment the punishment under Section 506 is
concerned, he has already been exonerated. In
section 506 IPC read with 3(1)(x) of the
Atrocities Act, there is no appeal preferred by
the State. The provision of Section 3(2)(v) of
SC/ST Act are not attracted as opined by us on
the factual data and the judgment applicable.

31. 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.

32. Since the learned counsel for the
appellant has not pressed the appeal on its merit,
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.
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(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