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’.

JUDGMENT :

Ajai Tyagi, J.

1. Heard learned counsel for the appellant and learned AGA for the State as well as perused the record.

2. This appeal has been preferred against the judgement and order dated 11.11.2011 passed by learned Additional Sessions Judge court No.1, Agra in S.T. No.853 of 2010 (State Vs. Chhotu @ Diwakar @ Karamveer) arising out of Case Crime No.109 of 2010, under Section 452 and 376 IPC, Police Station-Khandoli, District-Agra, whereby the accused-appellant was convicted and sentenced under Section 376 (2) F IPC for life imprisonment and fine of Rs.50,000/-. He was directed to undergo further imprisonment for three years in case of default of fine. He was further convicted and sentenced under Section 452 IPC for seven years rigorous imprisonment and fine of Rs.20,000/- and further simple imprisonment for one year in case of default of fine. Learned trial court directed that both the sentences shall run separately.

3. The brief facts of this appeal are that the written report was submitted at police station-Khandoli, District- Agra by Jagdish Singh stating that on 27.04.2010, he was working in his field and his wife Usha Devi had gone to Aligarh. Her daughter (victim) aged about 11 years was alone in the house and was cooking the food. At about 10 a.m. in the morning, one Chhotu, resident of his village, aged about 21 years entered his house and committed rape with his daughter. On the basis of this written report, Ext. Ka-1, a Case Crime No.109 of 2010 was registered against the accused Chhotu. Investigation of this case was taken up by S.O. Dharmendra Singh, who recorded the statements of victim and other witnesses, prepared site-plan. During the course of investigation, statement of victim was recorded under Section 164 Cr.P.C. Victim was medically examined and medical report Ext. Ka-5, supplementary report Ext. Ka-6 were prepared. Slides of smear swab were sent for examination. Victim's skirt was sent to FSL, Agra from where report Ext. Ka-9 was received, which shows that human sperm and spermatozoa were found on the skirt. After completing the investigation, investigating officer submitted charge sheet against the accused-appellant Chhotu under Section 452 and 376 IPC. The case, being triable by court of sessions, was committed by competent Magistrate to the court of session for trial. Learned trial court framed charges against the accused-appellant under Section 452 and 376 IPC and accused was put on trial.

4. The prosecution so as to bring home the charges examined six witnesses, namely:-

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

6. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C., in which accused told that false evidence has been led against him and due to old family enmity, he was implicated falsely in this case. The accused did not examine any witness in defence.

7. Perusal of record shows that occurrence of this case took place in day light, i.e., at 10 am in the morning in the house of victim when she was alone and cooking the food. After the occurrence, the father of victim took her to District Women Hospital, Agra where she was medically examined by Dr. Sheilly Singh. As per medical report of victim, it was found that fresh and dried blood was present on