Alias Mama vs State of U.P., Neutral Citation No.- vs Justice Gautam Chowdhary) speaking from the bench had

2013 (State Vs. Har Prasad) arising out of Case Crime No. 794 of 2012, under Section 376 I.P.C. and Section 3(2)V S.C./S.T. Act, Police Station Bithari Chainpur, District Bareilly whereby the accused-appellant has been convicted under Section 376 I.P.C. to undergo life imprisonment along with fine of Rs. 15,000/- and in default of payment of fine to further undergo additional imprisonment of six months and, under Section 3(2)V S.C./S.T. Act to undergo rigorous life imprisonment along with fine of Rs. 15,000/- and in default of payment of fine to further undergo additional imprisonment of six months. Both sentences run concurrently.

3. The prosecution story emerged on the Written Report (W.R.) dated 23.10.2012 lodged by Satyapal (P.W.-1) at the trial. It is Ex. Ka-1 at the trial. The W.R. was written by hand by Shri Shekhar Singh who has not been examined at the trial. The F.I.R. being Ex.Ka-3 was registered in Case Crime No. 155 of 2012 on

23.10.2012 at about 9.15 PM, at Police Station Bithri Chainpur, Sadar, Bareilly. In that, it was reported that the daughter of the first informant namely 'X' went missing at about 5.30 PM. She returned disabled and distraught at about 8.30 PM and was weeping. Then, she told her mother that the present appellant had forcibly taken her to an agricultural field and committed rape on her. According to the F.I.R. narration, her undergarment was missing and some blood was oozing out from her private parts.

4. On 23.10.2012 itself, the victim was examined by Dr. Shashi Gautam (P.W.-4). That report is Ex.Ka-5 at the trial. In material parts, it reads as below: "Internal Examination - No injuries marks seen on external genital parts. Internal examination found, Hymen torned and lacerated wound seen on 6 'o' clock position. Margins of Hymen occlemalous and bleed on touch. Vaginal swab taken by swab stick."

5. On such F.I.R. being lodged, investigation began on 24.10.2012 and recovery of undergarment of 'X' was made by S.I. Rishipal Singh. It is Ex.Ka-II at the trial.

6. As to age, there is no dispute that 'X' was about seven years of age on the date of occurrence. Upon completion of investigation, Investigating Officer Kireet Rathore (P.W.-5) submitted charge- sheet. Thereupon, learned court below framed a following charges against the appellant on 1.4.2013: यह कक कदनननक 23.10.2012 "पथम:- बजज शनम बहद जगल गनम सनररपपर थननन कबथरर चचनपपर जजलन बरजलर मम आपनज वनदर सतयपनल कक ननबनजलग पपतर कप ० मकहनर उम एक वरर कज सनथ उसकक इचछन कबनन उसकज सनथ जबरदसतर बलनतकनर ककयन। इस पकनर आपनज भन०द०सन० कक धनरन 376 कज सहमकत कज अधरन दणडनरय अपरनध कनररत ककयन, जक इस सत नयनयनलय कज पसनजनन मम हच। कक समय 5.30 यह कक उपरकक कदननक समय व सथनन पर आपनज वनदर सतयपनल कक ननबनजलग पपतर कप ० मकहनर आयप वरर कक यह जननतज हहए कक वह अनपससकचत जनकत कक सदसयतन उसकज सनथ जबरदसतर बलनतकनर ककयन। इस एस०टर० एकट कज अधरन दणडनरय अपरनध कनररत ककयन जक इस सत तततरय:- 7 पकनर आपनज धनरन 3(2)(5)एस०सर०/ नयनयनलय कज पसनजनन मम हच।"

7. At the trial, besides the above documentary evidence, prosecution led oral evidence of first informant Satyapal (P.W.-1); victim (P.W.-2); Constable Harishankar (P.W.-3); Dr. Shashi Gautam (P.W.-4); Investigating Officer Kireet Rathore (P.W.-5) and, Dr. Piyush Rastogi (P.W.-6) who determined the age of 'X'. Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. The defence also produced one witness namely Vijendra Singh (D.W.-1). He stated that the accused had not caused the occurrence and he was not present at the time and place of the occurrence. Thereafter, the learned court below found the charge proven against the appellant. He has thus been convicted for the offence as noted above and sentenced accordingly. At this stage, learned counsel for the appellant states that the appellant does not wish to contest the conviction order and he has confined his submissions on the issue of sentencing.

8. Here, it has been submitted, in the first place, the appellant has absolutely no criminal history. No evidence was led of the appellant having caused any occurrence of the like nature or such as may have weighed with the learned court below on the issue of sentence. Second, it has been submitted, the appellant has remained confined for 12 years and 3 months (actual) and more than 15 years, with remission. In the entirety, it has been submitted, no aggravating circumstance exists as may warrant life sentence to be awarded to the appellant. To sustain maximum sentence would be grossly disproportionate to the offence as proven at the trial.

9. Reliance has been placed on coordinate bench decision of this Court in Durvesh Alias Pappu vs State of U.P., Neutral Citation No.-2024:AHC:142063, Kamil vs State of U.P., Neutral Citation No.-2024:AHC:144561-DB, Sonu @ Pinku Vs. State of U.P., Neutral Citation No.-2023:AHC:177326-DB, Shivpal Alias Mama vs State of U.P., Neutral Citation No.- 2024:AHC:154895-DB, Mohammad Rehan vs State of U.P., Neutral Citation No.-2024:AHC:60129-DB and Shyamveer vs State of U.P. & Anr., Neutral Citation No.-2024:AHC:77384- DB.

10. In Durvesh Alias Pappu (supra), one of us (Hon'ble Dr. Justice Gautam Chowdhary) speaking from the bench had observed as below: जलए आगज बढतर हच, जलए कनरण कदयज जननज चनकहए। हमज कज तहत सजन सनत सनल सज लजकर उम कच द तक हकतर हच, सजन कज पशन पर कवचनर करनज कज सतर पर हम पनतज हच कक कवचनरण नयनयनलय नज अकभयपक/ "34. अपरलनथर कक भनरतरय दणड सनकहतन कक धनरन 376 कज तहत आजरवन कनरनवनस कक सजन सपननई हच। भनरतरय दणड सनकहतन कक धनरन 376 जलए अजधकतम सवरकनयर सजन दजनज कज तक कननसन कन यह मपखय जसदननत हच कक ऐसर अजधकतम म ऐसन ककई कनरण नहह कमलन कक जजसकन खपलनसन कवचनरण सजन दजनज कज नयनयनलय नज ककयन हक अनयथन हम पनतज हच कक ऐसर ककई पररससथकत नहह हच, जक वतरमनन मनमलज कज तथयय मम अकभयपक/ कक अकभयपक/ जखलनफ इस अपरनध सज पसवर ऐसर ककई घटनन दजर नहह कक गयर हच। अकभयपक कज सपधरनज कक सनभनवनन सज इनकनर नहह ककयन जन सकतन। सजन कज पशन पर हम मम पनररत कनणरय कदनननक 15.07.2022 दनसणडक अपरल सनखयन 2878 मम इस नयनयनलय कक दय- परठ दनरन कदयज गयज कनणरय कज कप छ पनसनकगक पसतरय कन उलजख करनन आवशयक समझतज हच, अपरलनथर कक अतयजधक सजन दजनज कक उकचत ठहरन सकज । यह सवरकनर ककयन गयन हच अपरलनथर कन यह पथम अपरनध हच और उसकज जब अदनलत ककसर अपरनध कज बनबस बननम उ०प० रनजय) जक कनमनवत हचह- वरर 2013 ( "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 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. ……. 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." In Sonu @ Pinku (supra), a coordinate bench on the issue of sentencing, observed as below: "30. So far as the sentence awarded by trial court to the accused-appellant in the alleged sections is concerned, it is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175]."

11. Learned A.G.A. has opposed the appeal. He submits, the substantive evidence clearly proved the occurrence was caused by the appellant. The victim being a minor, the appellant deserves no mercy.

12. Having heard learned counsel for the parties and having perused the record, though the occurrence may not be doubted and the ingredients of the offence alleged may be complete, at the same time, it remains with the Court that the doctor's opinion categorically records that there were no marks of external injury.

13. Thus, keeping in mind the fact that the appellant has remained confined for 12 years and 3 months (actual) and the present occurrence was not preceded by any other similar occurrence as may lead the Court to infer predatory instincts of the appellant and/or deep set perversion or psychological condition as may itself render him a risk to the society even after sufficiently long sentence served by him, we find, the interest of justice be balanced to ensure that though the conviction is maintained, the sentence remains proportionate and is not overshadowed by emotive concern of the victim side. In that, we find, sentence of 15 years would serve the interest of justice in the facts as were proven by the prosecution. Sentencing the appellant for the entire life would be too harsh and not conducive to the interest of justice. We also find in agreement with the opinion expressed by the coordinate bench of this Court in Durvesh Alias Pappu (supra) and Sonu @ Pinku (supra).

14. Accordingly, the present appeal stands partly allowed. The impugned order dated 01.08.2014 of conviction under Section 376 I.P.C. and Section 3(2)V S.C./S.T. Act is maintained. However, the sentence of life imprisonment is modified to the sentence of 15 years imprisonment. The appellant may be released after completion of 15 years of sentence, subject to the condition that he is not wanted in any other case.

15. Lower court record may be returned forthwith. Order Date :- 10.3.2025 Prakhar (Dr. Gautam Chowdhary, J.) (S.D. Singh, J.) PRAKHAR SRIVASTAVA High Court of Judicature at Allahabad

2013 (State Vs. Har Prasad) arising out of Case Crime No. 794 of 2012, under Section 376 I.P.C. and Section 3(2)V S.C./S.T. Act, Police Station Bithari Chainpur, District Bareilly whereby the accused-appellant has been convicted under Section 376 I.P.C. to undergo life imprisonment along with fine of Rs. 15,000/- and in default of payment of fine to further undergo additional imprisonment of six months and, under Section 3(2)V S.C./S.T. Act to undergo rigorous life imprisonment along with fine of Rs. 15,000/- and in default of payment of fine to further undergo additional imprisonment of six months. Both sentences run concurrently.

3. The prosecution story emerged on the Written Report (W.R.) dated 23.10.2012 lodged by Satyapal (P.W.-1) at the trial. It is Ex. Ka-1 at the trial. The W.R. was written by hand by Shri Shekhar Singh who has not been examined at the trial. The F.I.R. being Ex.Ka-3 was registered in Case Crime No. 155 of 2012 on

23.10.2012 at about 9.15 PM, at Police Station Bithri Chainpur, Sadar, Bareilly. In that, it was reported that the daughter of the first informant namely 'X' went missing at about 5.30 PM. She returned disabled and distraught at about 8.30 PM and was weeping. Then, she told her mother that the present appellant had forcibly taken her to an agricultural field and committed rape on her. According to the F.I.R. narration, her undergarment was missing and some blood was oozing out from her private parts.

4. On 23.10.2012 itself, the victim was examined by Dr. Shashi Gautam (P.W.-4). That report is Ex.Ka-5 at the trial. In material parts, it reads as below: "Internal Examination - No injuries marks seen on external genital parts. Internal examination found, Hymen torned and lacerated wound seen on 6 'o' clock position. Margins of Hymen occlemalous and bleed on touch. Vaginal swab taken by swab stick."

5. On such F.I.R. being lodged, investigation began on 24.10.2012 and recovery of undergarment of 'X' was made by S.I. Rishipal Singh. It is Ex.Ka-II at the trial.

6. As to age, there is no dispute that 'X' was about seven years of age on the date of occurrence. Upon completion of investigation, Investigating Officer Kireet Rathore (P.W.-5) submitted charge- sheet. Thereupon, learned court below framed a following charges against the appellant on 1.4.2013: यह कक कदनननक 23.10.2012 "पथम:- बजज शनम बहद जगल गनम सनररपपर थननन कबथरर चचनपपर जजलन बरजलर मम आपनज वनदर सतयपनल कक ननबनजलग पपतर कप ० मकहनर उम एक वरर कज सनथ उसकक इचछन कबनन उसकज सनथ जबरदसतर बलनतकनर ककयन। इस पकनर आपनज भन०द०सन० कक धनरन 376 कज सहमकत कज अधरन दणडनरय अपरनध कनररत ककयन, जक इस सत नयनयनलय कज पसनजनन मम हच। कक समय 5.30 यह कक उपरकक कदननक समय व सथनन पर आपनज वनदर सतयपनल कक ननबनजलग पपतर कप ० मकहनर आयप वरर कक यह जननतज हहए कक वह अनपससकचत जनकत कक सदसयतन उसकज सनथ जबरदसतर बलनतकनर ककयन। इस एस०टर० एकट कज अधरन दणडनरय अपरनध कनररत ककयन जक इस सत तततरय:- 7 पकनर आपनज धनरन 3(2)(5)एस०सर०/ नयनयनलय कज पसनजनन मम हच।"

7. At the trial, besides the above documentary evidence, prosecution led oral evidence of first informant Satyapal (P.W.-1); victim (P.W.-2); Constable Harishankar (P.W.-3); Dr. Shashi Gautam (P.W.-4); Investigating Officer Kireet Rathore (P.W.-5) and, Dr. Piyush Rastogi (P.W.-6) who determined the age of 'X'. Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. The defence also produced one witness namely Vijendra Singh (D.W.-1). He stated that the accused had not caused the occurrence and he was not present at the time and place of the occurrence. Thereafter, the learned court below found the charge proven against the appellant. He has thus been convicted for the offence as noted above and sentenced accordingly. At this stage, learned counsel for the appellant states that the appellant does not wish to contest the conviction order and he has confined his submissions on the issue of sentencing.

8. Here, it has been submitted, in the first place, the appellant has absolutely no criminal history. No evidence was led of the appellant having caused any occurrence of the like nature or such as may have weighed with the learned court below on the issue of sentence. Second, it has been submitted, the appellant has remained confined for 12 years and 3 months (actual) and more than 15 years, with remission. In the entirety, it has been submitted, no aggravating circumstance exists as may warrant life sentence to be awarded to the appellant. To sustain maximum sentence would be grossly disproportionate to the offence as proven at the trial.

9. Reliance has been placed on coordinate bench decision of this Court in Durvesh Alias Pappu vs State of U.P., Neutral Citation No.-2024:AHC:142063, Kamil vs State of U.P., Neutral Citation No.-2024:AHC:144561-DB, Sonu @ Pinku Vs. State of U.P., Neutral Citation No.-2023:AHC:177326-DB, Shivpal Alias Mama vs State of U.P., Neutral Citation No.- 2024:AHC:154895-DB, Mohammad Rehan vs State of U.P., Neutral Citation No.-2024:AHC:60129-DB and Shyamveer vs State of U.P. & Anr., Neutral Citation No.-2024:AHC:77384- DB.

10. In Durvesh Alias Pappu (supra), one of us (Hon'ble Dr. Justice Gautam Chowdhary) speaking from the bench had observed as below: जलए आगज बढतर हच, जलए कनरण कदयज जननज चनकहए। हमज कज तहत सजन सनत सनल सज लजकर उम कच द तक हकतर हच, सजन कज पशन पर कवचनर करनज कज सतर पर हम पनतज हच कक कवचनरण नयनयनलय नज अकभयपक/ "34. अपरलनथर कक भनरतरय दणड सनकहतन कक धनरन 376 कज तहत आजरवन कनरनवनस कक सजन सपननई हच। भनरतरय दणड सनकहतन कक धनरन 376 जलए अजधकतम सवरकनयर सजन दजनज कज तक कननसन कन यह मपखय जसदननत हच कक ऐसर अजधकतम म ऐसन ककई कनरण नहह कमलन कक जजसकन खपलनसन कवचनरण सजन दजनज कज नयनयनलय नज ककयन हक अनयथन हम पनतज हच कक ऐसर ककई पररससथकत नहह हच, जक वतरमनन मनमलज कज तथयय मम अकभयपक/ कक अकभयपक/ जखलनफ इस अपरनध सज पसवर ऐसर ककई घटनन दजर नहह कक गयर हच। अकभयपक कज सपधरनज कक सनभनवनन सज इनकनर नहह ककयन जन सकतन। सजन कज पशन पर हम मम पनररत कनणरय कदनननक 15.07.2022 दनसणडक अपरल सनखयन 2878 मम इस नयनयनलय कक दय- परठ दनरन कदयज गयज कनणरय कज कप छ पनसनकगक पसतरय कन उलजख करनन आवशयक समझतज हच, अपरलनथर कक अतयजधक सजन दजनज कक उकचत ठहरन सकज । यह सवरकनर ककयन गयन हच अपरलनथर कन यह पथम अपरनध हच और उसकज जब अदनलत ककसर अपरनध कज बनबस बननम उ०प० रनजय) जक कनमनवत हचह- वरर 2013 ( "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 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. ……. 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." In Sonu @ Pinku (supra), a coordinate bench on the issue of sentencing, observed as below: "30. So far as the sentence awarded by trial court to the accused-appellant in the alleged sections is concerned, it is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175]."

11. Learned A.G.A. has opposed the appeal. He submits, the substantive evidence clearly proved the occurrence was caused by the appellant. The victim being a minor, the appellant deserves no mercy.

12. Having heard learned counsel for the parties and having perused the record, though the occurrence may not be doubted and the ingredients of the offence alleged may be complete, at the same time, it remains with the Court that the doctor's opinion categorically records that there were no marks of external injury.

13. Thus, keeping in mind the fact that the appellant has remained confined for 12 years and 3 months (actual) and the present occurrence was not preceded by any other similar occurrence as may lead the Court to infer predatory instincts of the appellant and/or deep set perversion or psychological condition as may itself render him a risk to the society even after sufficiently long sentence served by him, we find, the interest of justice be balanced to ensure that though the conviction is maintained, the sentence remains proportionate and is not overshadowed by emotive concern of the victim side. In that, we find, sentence of 15 years would serve the interest of justice in the facts as were proven by the prosecution. Sentencing the appellant for the entire life would be too harsh and not conducive to the interest of justice. We also find in agreement with the opinion expressed by the coordinate bench of this Court in Durvesh Alias Pappu (supra) and Sonu @ Pinku (supra).

14. Accordingly, the present appeal stands partly allowed. The impugned order dated 01.08.2014 of conviction under Section 376 I.P.C. and Section 3(2)V S.C./S.T. Act is maintained. However, the sentence of life imprisonment is modified to the sentence of 15 years imprisonment. The appellant may be released after completion of 15 years of sentence, subject to the condition that he is not wanted in any other case.

15. Lower court record may be returned forthwith. Order Date :- 10.3.2025 Prakhar (Dr. Gautam Chowdhary, J.) (S.D. Singh, J.) PRAKHAR SRIVASTAVA High Court of Judicature at Allahabad