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 :

1. By way of this appeal, the appellant has challenged the Judgment and order 29.08.2006 passed by court of Additional District and Sessions Judge/Fast Track Court No. 2, Firozabad in Sessions Trial No.211 of 2005, arising out of Case Crime No. 305 of 2004, under Section 376 I.P.C., Police Station Ramgarh, District Firozabad whereby the accused-appellant was sentenced under Section 376 I.P.C. with a sentence of life imprisonment and fine of Rs.2000/-and in event of default of payment of fine, to undergo six months’ further imprisonment.

2. The brief facts as per prosecution case are that on 31.12.2004 at about 3:00 p.m., the accused-Nadeem came to the house of complainant and started playing with her five months old daughter and when his wife was busy with her household work he took her daughter to his house. After sometime when his wife did not find her daughter in the house, she went to the house of accused-Nadeem and saw that accused-Nadeem was with her daughter and the daughter was screaming. On the wife's scream the complainant also rushed to Nadeem house. The complainant was one of his neighbours and saw that accused-Nadeem fled away from the spot and while running he was seen by other villagers also.

3. On F.I.R being lodged, the investigating Officer, Nawab Ali tookup the investigation visited the spot, prepared site plan, recorded statements of the witnesses and after completing investigation submitted charge sheet against the accused.

4. The accused being charge sheeted for offence triable by court of session, the learned Magistrate committed the case to the court of session. The court of session summoned the accused who pleaded not guilty to the charges framed and wanted to be tried.

5. The prosecution so as to bring home the charges examined five witnesses, who are as under:-

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

7. Heard learned counsel for the appellant, learned AGA for the State and also perused the record.

8. The learned counsel for the applicant has taken us to the record and has submitted that the learned Sessions Judge has misread the testimony of the witnesses and has come to a wrong conclusion. The evidence of the witnesses who were examined by the accused have not been believed. The learned Judge has considered the case with a tainted eyes and has committed gross error of facts. The learned Judge has committed an error of law and fact where by he has not considered the medical evidence being such which shows that a child could not have been subjected to intercourse. It has been submitted that the finding of facts is perverse and requires to be upturned.

9. We would now be shifting to the evidence on record. The provisions of Section 375 read with Section 376 I.P.C reads as follows:-

[375. Rape.-A man is said to commit "rape" if he-

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person