Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 895

IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, AJAI TYAGI, JJ.
Rajiv @ Paji – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 2436 of 2013
Decided on : 02-11-2021

Advocates:
Advocate Appeared:
For the Appellant : S.K. Srivastava, Anuj Srivastava, Ravendra Singh, V.K. Srivastava

Point of Law: ’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’

Headnote:
Indian Penal Code,1860 - Section 376 and 511 – Criminal Procedure Code,1973 – Section 313 and 164 – Offence of Rape – Offence of Attempting to commit offence – Charged - Challenged - Written report was submitted by stating therein that today in morning his seven years old daughter ( victim) was playing with neighbour Ramesh’s children - At about 1:00 p.m., son , took her daughter to his house and tried to commit rape with her - A case crime No.341 of 2012 was registered at Police Station - After completion of investigation, charge sheet was submitted against appellant - Case being triable by Court of Sessions, was committed by concerned Magistrate to Court of Sessions for trial - After completion of prosecution evidence, accused was examined under Section 313 Cr.P.C. in which he denied entire evidence against him and stated that he was innocent and had been falsely implicated - Accused did not examine any witness in his defence.
Finding of the Court:
It is necessary to impose punishment keeping in view ‘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 case and gravity of offence - Theory of ’doctrine of proportionality’ as discussed above, sentence awarded to appellant seems harsh - Since, appellant has already served 9 years of sentence and ends of justice would be met if sentence is reduced from life imprisonment to period of ten years- sentence awarded to appellant by the learned trial-court is modified and is reduced to ten years rigorous imprisonment - Imposition of fine and additional imprisonment in case of default of fine shall remain intact shall be paid as compensation to victim out of the fine imposed as directed by learned Trial Court.
Result: Appeal is partly allowed

JUDGMENT :

Ajai Tyagi, J.

1. By way of this appeal, the appellant-Rajiv @ Paji has challenged the Judgment and order dated 6.5.2013 passed by court of Additional Sessions Judge, Court No.4, Saharanpur in Session Trial No.78 of 2013 arising out of Case Crime No.341 of 2012, under Section 376 Indian Penal Code, Police Station-Rampur Maniharan, District Saharanpur whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for life with fine of Rs.20,000/-and in case of default of payment of fine, to undergo further imprisonment for six months.

2. The brief facts as per prosecution case are that on 14.10.2012, a written report was submitted by Naseem stating therein that today in the morning his seven years old daughter (victim) was playing with neighbour Ramesh's children. At about 1:00 p.m. Rajiv @ Paji, son of Ramesh, took her daughter to his house and tried to commit rape with her. A case crime No.341 of 2012 was registered at Police Station Rampur Maniharan under Section 376 IPC read with Section 511 IPC.

3. S.I.-Dheeraj Singh tookup the investigation, visited the spot, prepared site plan, recorded statements of the prosecutrix and witnesses. Medical examination of prosecutrix was conducted by the doctor.

4. After completion of investigation, charge sheet was submitted against appellant -Rajiv @ Paji under Section 376 IPC. The case being triable by Court of Sessions, was comitted by concerned Magistrate to the Court of Sessions for trial.

5. The learned trial court framed charge against the appellant under Section 376 IPC. The accused denied the charge and claimed to be tried. The prosecution so as to bring home the charge, examined six witnesses, who are as under:-

1	Mohd. Naseen	P.W.1
2.	Imrana	P.W.2
3.	Km. Sahiba	P.W.3
4.	Dr. Renu Sharma	P.W. 4
5.	Arvind Kumar Singh	P.W. 5
6.	Dheeraj Singh	P.W. 6

6. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. in which he denied entire evidence against him and stated that he was innocent and had been falsely implicated. The accused did not examine any witness in his defence.

7. 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-5
2.	Written report	Ext. Ka-1
3.	Recovery Memo of Clothes & Supurdinama	Ext. Ka-8
4.	Medical Examination Report	Ext. Ka-3
5.	Supplementary report	Ext. Ka-4
6.	Charge sheet (Mool)	Ext. Ka-12
7.	Statement U/s 164	Ext. Ka.2
8.	Site Plan with Index	Ex.Ka.10

8. Heard Shri Anuj Srivastava, learned counsel for the appellant, Sri Janardan Prakash, learned AGA for the State and also perused the record.

9. Perusal of record shows that occurrence of this case took place on 14.10.2012.The prosecution has alleged that the accused committed rape with seven years old daughter of complainant – Naseem. The victim's statement under Section 164 Cr.P.C. was recorded by the concerned Magistrate. During the course of investigation, medical examination of victim was conducted and the medical report was prepared. Dr. Renu Sharma, conducted the medical examination. She has stated in her evidence as PW-4 that there was laceration posterior of size 3 x 2 x 2 mm. Blood clot was present there which started bleeding on touching. Hymen was intact. Vaginal smear was sent for examination and according to supplementary medical report, no spermatozoa was found.

10. The victim was examined by prosecution as PW-3. In her statement recorded under Section 164 Cr.P.C., the victim supported the prosecution version. She was produced before the Trial Court as PW-3. In her statement before the Trial Court also, she supported the prosecution version