# Teetu (In Jail) v. State of U.P

- **Citation:** (2021) 10 ILRA 521
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-21
- **Case number:** Criminal Appeal No. 6279 of 2010
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/teetu-in-jail-v-state-of-u-p-46365
- **Pages:** 6

## Headnote

A.G.A.

Quantum of Sentence- Principle of
Proportionality- 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.
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. All measures should be
applied to give them an opportunity of
reformation in order to bring them in the
social stream.

Settled
law
that
Sentence
should
be
proportionate to the nature and gravity of the
offence while taking into account the age and
sex of the accused and as the judicial system of
India is reformative and not retributive, hence
effort should be made to bring back the accused
in the social stream.
Quantum of Sentence- Conviction under
section 376 IPC- Sentenced to undergo
rigorous imprisonment for life- Appellant
already
undergone
12
years
of
incarceration- 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. Appellant is languishing in jail
for the last more than 12 years. Since, the
appellant has already served 12 years in
jail, ends of justice will be met if sentence
is
reduced
to
the
period
already
undergone.

Under the facts of the case, sentence of
imprisonment for life held to be too harsh and
disproportionate to the offence hence sentence
reduced to the period already undergone. ( Para
13, 14, 15, 17, 18, 19)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

10 All. Teetu Vs. State of U.P.
521
(2021)10ILR A521
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2021

BEFORE

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

Criminal Appeal No. 6279 of 2010

Teetu ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Govind Saran Hajela, Sri Yogesh
Srivastava, Sri Noor Mohammad

Counsel for the Respondent:
A.G.A.

Quantum of Sentence- Principle of
Proportionality- 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.
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. All measures should be
applied to give them an opportunity of
reformation in order to bring them in the
social stream.

Settled
law
that
Sentence
should
be
proportionate to the nature and gravity of the
offence while taking into account the age and
sex of the accused and as the judicial system of
India is reformative and not retributive, hence
effort should be made to bring back the accused
in the social stream.
Quantum of Sentence- Conviction under
section 376 IPC- Sentenced to undergo
rigorous imprisonment for life- Appellant
already
undergone
12
years
of
incarceration- 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. Appellant is languishing in jail
for the last more than 12 years. Since, the
appellant has already served 12 years in
jail, ends of justice will be met if sentence
is
reduced
to
the
period
already
undergone.

Under the facts of the case, sentence of
imprisonment for life held to be too harsh and
disproportionate to the offence hence sentence
reduced to the period already undergone. ( Para
13, 14, 15, 17, 18, 19)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

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

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

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

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

1. By way of this appeal, the
appellant-Teetu
has
challenged
the
Judgment and order 21.08.2010 passed by
court of Additional Sessions Judge/FTC 3,
Firozabad in Session Trial No.84 of 2010
arising out of Case Crime No.482 of 2009
under Section 376 Indian Penal Code,
Police
Station-Rasoolpur,
DistrictFirozabad whereby the accused-appellant
was convicted under Section 376 IPC and
sentenced to imprisonment for life with
fine of Rs.5,000/- and in case of default of
payment of fine, to undergo further
imprisonment for one year.
522 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The brief facts as per prosecution
case are that on 2.10.2009, a written report
was
submitted
by
complainant-Raju
Rathore
at
Police
Station-Rasoolpur,
District-Firozabad, stating therein that in
the midnight of 1/2.10.2009, his 7 years old
daughter (victim) and 10 years old son
Babloo were sleeping on the roof and the
accused-appellant Teetu was also sleeping
on the same roof while the complainant
was sleeping inside the house with his wife
Geeta and two other children. In the
morning, when his daughter did not come
down from the roof, he and his wife Geeta
went on the roof and saw his daughter in
almost half fainted condition. When the
victim was inquired, she told that Teetu
raped her in the night due to which she
fainted. The complainant and his wife saw
that her undergarment was bood-stained
and blood was also oozing from her
private-parts.

3. S.I. Felan Singh tookup the
investigation, visited the spot, prepared site
plan, recorded statements of the prosecutrix
and
witnesses
and
after
completing
investigation
submitted
charge
sheet
against the accused. The matter being
triable by court of sessions was committed
to the sessions court.

4. The learned trial court framed
charge under Section 376 IPC, which was
read over to the accused. The accused
denied the charge and claimed to be tried.
The prosecution so as to bring home the
charge, examined five witnesses, who are
as under:-

1.
Raju Rathaur
P.W.1
2.
Victim
P.W2
3.
Geeta
P.W3
4.
Dr. Praveen Jahan
P.W4
5.
S.I. Felan Singh
P.W5

5. After completion of prosecution
evidence, the accused was examined under
Section 313 Cr.P.C. The accused did not
examine any witness in defence.

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

1.
F.I.R.
Ext. Ka-7
2.
Written report
Ext. Ka-1
3.
Recovery Memo of 'kachha'
Ext. Ka-2
4.
Medical Report of Victim
Ext. Ka-3
5.
Supplementary report
Ext. Ka-4
6.
Site Plan with Index
Ext. Ka-5

7. Heard Shri Yogesh Srivastava,
learned Advocate, assisted by Mr.Noor
Mohammad, learned counsel for the
appellant, Sri Rupak Chaubey, learned
AGA for the State and also perused the
record.

8. Perusal of record shows that
occurrence took place in the night of
1/2.10.2009 and the victim was medically
examined on 2.10.2009 at 12:00 (noon) in
District Women Hospital, Firozabad. In the
medical examination, no marks of external
injuries were found on the body of the
victim including private-parts. Hymen was
found torn at 6 o'clock position and no
fresh bleeding was present. Vaginal smear
examination and x-ray of right palm
including wrist joint was advised. No
opinion regarding rape could be given by
the doctor. Perusal of supplementary report
shows that spermatozoa was not detected.
The age of victim girl was found about 7
years. In supplementary report also, it is
10 All. Teetu Vs. State of U.P.
523
stated by the doctor that no definite opinion
regarding rape can be given.

9. The victim was examined by
prosecution as PW2. In her statement, the
victim stated that accused had committed badact with her on the roof of the house; it was
night at the time of occurrence. She was
wearing underwear, which was spotted by
blood. She has also stated that blood was
discharged from her vagina. She cried, but her
mouth was pressed by the accused. The victim
was cross-examined by defence in which she
has stated that she regularly used to sleep and
play on the same roof on which the offence was
committed by the accused-appellant. In this
way, PW2, the victim, has supported the
prosecution case. Likewise, Raju Rathaur
(PW1) and Geeta (PW3), father and mother of
the victim, respectively, also supported the
prosecution version, but the brother of victim,
namely, Bablu, who is said to be eye-witness of
the occurrence, was not produced by the
prosecution even after making application
under Section 311 Cr.P.C. by the accusedappellant. Learned trial court convicted the
appellant under Section 376 IPC and sentenced
him for life imprisonment and Rs.5,000/- fine.
It is also directed that in case of default of fine,
the accused shall undergo one year additional
imprisonment.

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 past more than 12 years.

11. 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.
524 INDIAN LAW REPORTS ALLAHABAD SERIES

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 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
10 All. Teetu Vs. State of U.P.
525
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. Since the learned counsel for the
appellant has not pressed the appeal on its
merit, however, after perusal of entire
evidence on record and judgment of the trial
court, we consider that the appeal is devoid of
merit and is liable to be dismissed. Hence, the
conviction of the appellant is upheld.

17. 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.

18. Learned AGA also admitted the fact
that appellant is languishing in jail for the last
more than 12 years. Since, the appellant has
already served 12 years in jail, ends of justice
will be met if sentence is reduced to the
period already undergone.

19. Hence, the sentence awarded to the
appellant by the learned trial-court is
modified as period already undergone and the
fine of Rs.5,000/- imposed upon the appellant
is reduced to Rs.500/-. In case of default of
fine, the appellant shall undergo additional
simple imprisonment of one month.

20. Accordingly, the appeal is partly
allowed with the modification of the
sentence, as above.
----------
526 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)10ILR A526
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 7419 of 2019

Bismark Bakuba Guitermbi
 ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Anup Kumar Pandey

Counsel for the Respondent:
A.G.A.

The Foreigners Act, 1946- Section 14-A
(b)- As no record of appellant's arrival was
found at Airport New Delhi and the stamp
on visa was fake, the appellant has
committed the offence under Section 14-A
(b)
of
the
Foreigners
Act,
1946.
Appellant's Unique Case File (UCF) was
also not there at Airport, New Delhi. Along
with
fax
message
(Ex.ka3),
paper
No.15kha/4 was also sent in which it is
written
that
"ARRIVAL-
No
Record
Found". In his statement under Section
313 Cr.P.C., he has just stated that he is
innocent, but nothing is said regarding the
information provided through aforesaid
documents. Therefore, it is clear that
there was no record of appellant's arrival
at New Delhi as the stamp on visa
suggests. Hence, it is very well proved
that stamp of arrival on visa was fake.

As the prosecution proved that the appellant
had entered and was staying in India with fake
documents, hence offence u/s 14-A(b) of the
Act, 1946 was made out against him.

Criminal Law - Indian Penal Code, 1860-
Section 419, 420- Acquittal under but
conviction under Section 14-A of the
Foreigners Act, 1946- There was no
cheating by personation and there was no
cheating and dishonestly inducing of
delivery of property by appellant. Hence,
the
learned
trial
court
has
rightly
acquitted
the
appellant
against
the
charges levelled under Sections 419 and
420 IPC.

Merely because the appellant was acquitted u/s
419 and 420 of the IPC, as ingredients of the
said offences were missing in the facts of the
case, would not mean that the appellant cannot
be convicted u/s 14-A(b) of the Act, 1946. (
Para 14, 17, 20)

Criminal Appeal rejected. (E-3)

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

1. This appeal has been preferred by
the appellant-Bismark Bakuba Guitermbi
against the judgment and order dated
29.8.2019, passed by learned Additional
Sessions Judge, Court No.3, Maharajganj,
in Sessions Trial No.15 of 2019 (State vs.
Bismark Bakuba Guitermbi) arising out of
Case Crime No.11 of 2018 under Sections
419, 420 IPC read with Section 14-A of the
Foreigners Act, 1946 (herein after referred
to as 'the Act, 1946'), in which the appellant
has been awarded four years rigorous
imprisonment with fine of Rs.10,000/-, six
months
rigorous
imprisonment
under
Section 14-A of the Act, 1946, and the
appellant was acquitted under Sections 419
and 420 IPC.

2. The brief facts of the case are that
complainant-Tej Pratap Maurya (ACIOII/Ex) posted in Immigration Office,
Sonauli, District-Maharajganj, submitted a
report at Police Station-Sonauli that on
13.1.2018, he was posted there with Vipin
Kumar Singh. They were on night duty. In
the morning at about 5:00a.m., one foreign
national-Bismark Bakuba Guitermbi S/o
Francosis Guitermbi R/o 67-ST Benoit