Point of Law: Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, court should bear in mind 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.

Headnote:
Indian Penal Code, 1860 - Sections 363 and 376 - Offence of Kidnapped and Rape - Appeal against conviction - Proper Sentence - Father of victim stating that in night his family had gone to see Ramleela later his daughter - victim misplaced in crowd - She was not found anywhere - Next day in morning at about 6 a.m. one Manish Kumar informed that his daughter is lying fainted in injured condition near Kali Mathya when he reached spot, he saw his daughter lying in injured condition and there was injury on her face and blood was found in her private part.
Finding of the Court:
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 - 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 - After perusal of the 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, conviction of the appellant is upheld - Hence the sentence awarded to the appellant by learned trial court for life imprisonment and fine of Rs. 45,000/- is converted into the 14 years R.I. and fine of Rs. 25,000/-.
Result: Appeal is partly allowed.

JUDGMENT :

AJAI TYAGI, J.

1. This appeal has been preferred against the judgment and order dated 27.02.2013 passed by Additional Sessions Judge, Court No. 6, Ramabai Nagar in Session Trial No. 477 of 2011 arising out of Case Crime No. 155 of 2011, under Sections 363 and 376 IPC, Police Station-Sikandra, District-Ramabai Nagar, whereby the accused-appellant was convicted under Section 363 and 376 IPC and was awarded sentence under Section 363 IPC for five years R.I. and fine of Rs. 3,000/- one year R.I. was awarded in case of default of fine and under Section 376 IPC life imprisonment was awarded with Rs. 45,000/-. Accused was directed to undergo two years R.I. in case of default of fine. It was directed that Rs. 40,000/- shall be paid to the victim as compensation.

2. The brief facts of the case are that a written report was submitted at police station- Sikandra, District-Ramabai Nagar by father of the victim stating that in the night of 05.10.2011 his mother Shanti Devi, wife Nisha Devi, Six years old daughter and eight years old son Vishesh had gone to Jawahar Nagar, Sikandra to see Ramleela. At about 1:00 a.m. in the night, his daughtervictim misplaced in the crowd. She was not found anywhere. At about 2:00 a.m. in the night his mother returned to the house and informed him regarding the incident then he also started searching his daughter but no clue was found. Next day in the morning at about 6 a.m. one Manish Kumar informed that his daughter is lying fainted in injured condition near Kali Mathya when he reached the spot, he saw his daughter lying in injured condition and there was injury on her face and blood was found in her private part. In this written report complainant doubted on Istekar @ Rishtedar to be responsible for the crime.

3. Investigation was taken up by S.I. Sanjay Shukla who recorded the statements of victim and other witnesses, visited the spot, pre-pared site-plan. Medical examination of the victim was conducted. After completing the investigation, investigating officer submitted charge sheet against the accused-appellant Ramesh @ Baba. The matter being triable by court of Sessions was committed to the Session court for trial.

4. The learned trial court framed charges against the accused under Sections 363 and 376 IPC, which were read over to the accused. The accused denied the charges and claimed to be tried. The prosecution so as to bring home the charges, examined 10 witnesses, namely:

1.	Anil Kumar	PW-1
2.	Daneshwari	PW-2
3.	Dr. Gaurav Katiyar	PW-3
4.	Dr. Rama Sarraf	PW-4
5.	Dr. Rakesh Kumar Tripathi	PW-5
6.	H.C. Govind Hari Verma	PW-6
7.	Smt. Nisha Devi	PW-7
8.	Constable Ram Singh	PW-8
9.	S.I. Sanjay Shukla	PW-9
10.	Victim	PW-10

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

1.	Written report	Ext.Ka-1
2.	Information to	Ext.Ka-2
3.	Medical report of victim	Ext.Ka-3
4.	Supplementary report	Ext.Ka-6
5.	Hospital discharge report	Ext.Ka-8
6.	FIR	Ext.Ka-9
7.	Recovery memo of clothes	Ext.Ka-11
8.	FSL report	Ext.Ka-12
9.	Site-plan	Ext.Ka-13
10.	Charge-Sheet	Ext.Ka-17

6. Heard Shri S.N. Verma, learned counsel for the appellant and learned AGA for the State as well as perused the record.

7. Perusal of the record shows that occurrence of this case took place sometime in the night of 5/6.10.2011 victim was examined in Sikandra hospital by medical officer Dr. Gaurav Katiyar. In medical examination, several abrasion were found on the face of the victim and blood were found on legs and private part. Victim was complaining of pain i