Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 933

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
KAUSHAL JAYENDRA THAKER, AJAI TYAGI, JJ.
Braj Kishore - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 6194 of 2008
Decided On : 10-11-2021

Advocates Appeared:
For the Appellant : D.S. Singh, Anand Saurabh, Kashif Zaidi, Noor Mohd, Raghuvansh Misra, Rahul Misra, Shiv Kumar Singh, Sudama Ji Shandlya.
For the Respondent:Govt. Advocate.

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 - Sections 376 and 375 - Criminal Procedure Code, 1973 - Section 164 - Commits rape - Appeal against conviction - Prosecution has alleged that the accused committed rape on ten year old daughter of complainant-Raj Kumar - Written report was submitted by Raj Kumar stating therein that was returning to her House - accused-appellant met her - He took her in his house, committed rape with the prosecutrix and when she raised hue and cry, accused-appellant ran away - Report of the incident was lodged on the next day at 1:20 a.m. i.e. in the night between case crime was registered at Police Station Mauranipur, District Jhansi under Section 376 IPC - investigation, visited the spot, prepared site plan, recorded statements of the prosecutrix and witnesses. Medical examination of prosecutrix was conducted by the doctor.
Finding of the Court: Appellant is languishing in jail for last more than 14 years - Keeping in view of theory of ‘doctrine of proportionality’ as discussed above, the sentence awarded to the appellant seems harsh - Appellant has already served 14 years of sentence and ends of justice would be met if sentence is reduced from life imprisonment to period of ten years - accused-appellant was a young man at the time when he committed the offence sentence awarded to appellant by learned trial-court is modified and is reduced to fourteen years rigorous imprisonment with all remissions and fine default sentence mentioned.
Result: Appeal is partly allowed.

JUDGMENT :

Kaushal Jayendra Thaker, J.

1. By way of this appeal, the appellant-Braj Kishore has challenged the Judgment and order dated 25.08.2008 passed by court of Additional Sessions Judge, Court No.3, Jhansi in Session Trial No.87 of 2007 arising out of Case Crime No.131 of 2006, under Section 376 Indian Penal Code (hereinafter referred to as 'IPC'), Police Station-Mauranipur, District Jhansi whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for life.

2. The brief facts as per prosecution case are that on 17.12.2006, a written report was submitted by Raj Kumar stating therein that on 16.12.2006 at about 4:30 p.m. the prosecutrix, a girl of 10 years of age, was returning to her House. On the way the accused-appellant met her. He took her in his house, committed rape with the prosecutrix and when she raised hue and cry, the accused-appellant ran away. The report of the incident was lodged on the next day at 1:20 a.m. i.e. in the night between 16/17.12.2006. A case crime No.131 of 2006 was registered at Police Station Mauranipur, District Jhansi under Section 376 IPC.

3. S.I.-Ram Naresh Singh took 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 - Braj Kishore under Section 376 IPC to the Magistrate trial Court. The case being triable by Court of Sessions, was committed by concerned Magistrate to the Court of Sessions for trial.

5. Trial Court framed charges 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 seven witnesses, who are as under:-

1.	Kasturi Devi	P.W.1
2.	Prosecutrix	P.W.2
3.	Raj Kumar	P.W.3
4.	Ram Prakash	P.W. 4
5.	Dr. Alpana Bratariya	P.W. 5
6.	Ram Naresh Singh	P.W. 6
7.	R.L. Kureshi	P.W. 7

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-3
2.	Written report	Ext. Ka.2A
3.	Statement of prosecutrix	Ext. Ka-2
4.	Recovery memo	Ext. Ka-9
5.	Recovery memo	Ext. Ka-1
6.	Injury report	Ext. Ka-6
7.	Injury report of prosecutrix	Ext. Ka.5
8.	X-Ray Report	Ex.Ka.10
9.	Site Plan	Ex.Ka.7A

7. Heard Shri Rahul Misra assisted by Sri Raghuvansh Misra, learned counsels for the appellant, learned AGA for the State and also perused the record.

8. Perusal of record shows that occurrence of this case took place on 16.12.2006. The prosecution has alleged that the accused committed rape on ten year old daughter of complainant–Raj Kumar. 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. Alpana Brtariya, conducted the medical examination. She in her evidence as PW-5 has stated that no spermatozoa was seen in the set smears. In her opinion, no definite opinion regarding rape could be given. Considering the x-ray report, the age of prosecutrix is 9-12 years.

9. The victim was examined as prosecution as PW-2. She reiterated what she had stated in her statement recorded under Section 164 Cr.P.C., the victim supported the prosecution version. In her statement before the Trial Court, she supported the prosecution version. Her mother-Kasturi Devi - PW-1 also supported the case against accused.

10. Complainant-father of the victim, Raj Kumar was examined as PW-3. He has proved the written report as Ex. Ka-2A which was submitted by him at police station for registration of the case against accused.

11. Learned counse