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'. 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.

JUDGMENT :

Ajai Tyagi, J.

1. By way of this appeal, the appellant-Eeda Khan has challenged the Judgment and order 16.11.2007 passed by Special Judge (SC/ST Act), Etah in Session Trial No.406 of 2004 (State v. Eeda Khan) arising out of Case Crime No.116 of 2004 under Sections 452, 376, 506 Indian Penal Code (hereinafter referred to as, ‘IPC’) and under Section 3(1)(xii) of SC/SCT Act, Police Station-Aliganj, District-Etah whereby the accused-appellant was convicted and sentenced to undergo rigorous imprisonment for a period of four years under Sections 452, 506 IPC and 3(1)(xii) SC/ST Act and life imprisonment under Section 376 IPC. All the sentences were directed to run concurrently.

2. The brief facts as per written report dated 17.4.2004, submitted by complainant, father of the prosecutrix at Police Station Alignaj, District Etah are that today on 17.4.2004 at about 7.30 p.m. his daughter (prosecutrix) aged about two and half years was lying in the courtyard of his house and wife of his elder brother Anjali was cooking the food. His wife Reena had gone to the shop nearby his house. By that time accused Eeda Khan of his village entered his house and raped his daughter (prosecutrix). On listening to her cry, Anjali came out and saw that accused was raping his daughter. On her hue and cry, his wife Reena and elder brother Mahaveer came there and then accused ran away from the house. When they tried to catch him, he showed country-made pistol and fled away by giving life threat to them. On the basis of aforesaid written report, a first information report was lodged at Police Station Aliganj, District Etah as Case Crime No.116 of 2004.

3. Investigation was taken up by C.O., Aliganj. Investigating Officer visited the spot, prepared site plan and he recorded the statements of witnesses under Section 161 of Cr.P.C.. Medical examination of prosecutrix was conducted and medical as well as supplementary report was prepared. Pathologist’s reports were also made part of the case diary. After completing the investigation, charge sheet was submitted by Investigating Officer against the accused-appellant. The case being exclusively triable by court of sessions was committed to Sessions Court by competent Magistrate for trial.

4. The learned trial court framed charges against the accused-appellant under Sections 452, 376, 506 IPC and Section 3(1)(xii) SC/ST Act. The accused denied the charges and claimed to be tried. The prosecution so as to bring home the charges, examined eight witnesses, who are as under:-

5. In support of ocular version prosecution filed following documentary evidence and get it proved by leading evidence:

6. After completion of prosecution evidence, statement of accused was recorded under Section 313 of Cr.P.C. in which he said that he was falsely implicated in this case. No witness was examined in defence.

7. Heard Shri Sukhvir Singh, learned Amicus Curie for the appellant; learned AGA for the State; and also perused the record.

8. Learned counsel for appellant first of all submitted that in this case all prosecution witnesses of fact have turned hostile and nobody has supported the prosecution version. Learned counsel submitted that as per prosecution case, Smt. Anjali wife of Mahavir, who is elder brother of complainant, said to be the eye witness of this occurrence. She has been produced by prosecution as PW-1, but she has not supported the case as alleged by t