The main legal point established in the judgment is the application of the reformative theory of punishment and the doctrine of proportionality in imposing the sentence for the accused.

JUDGMENT :

Umesh Chandra Sharma, J.

1. We have heard learned counsel for the appellants, learned A.G.A for the State and perused the material available on record.

2. The present appeals have been filed against the judgement and order dated 24.01.2015, passed by Additional Sessions Judge/Court No. 3, Gorakhpur, by which the accused-appellant was sentenced under Section 376 I.P.C with Rigorous Imprisonment of ten years and fine of Rs.50,000/- out of which Rs.25,000/- would be paid to the victim as compensation. In default, the convict will have to undergo simple imprisonment for twelve months. For the offence under Section 363 I.P.C, he was convicted and sentenced with Rigorous Imprisonment of one year and fine of Rs.1000/-. In default, the convict will have to undergo simple imprisonment for two months. For offence under Section 366 I.P.C, he has been convicted for rigorous imprisonment for three years and fine of Rs.5,000/- in case of default six months R.I. was ordered. It was also ordered that the period spent by the convict in custody would be adjusted in his sentence and all the sentences shall run concurrently.

3. Smt. Munni Devi, Smt. Phoola Devi and Smt. Tirtha Devi summoned as accused under Section 319 Cr.P.C., were acquitted. Being aggrieved, the State has preferred the appeal no. 1774 of 2015.

4. In brief, grounds of Appeal No. 1774 of 2015, is that the learned Trial Court has given benefit of doubt or advantage to the acquitted respondents. The case under Section 364 is fully proved against them but the learned Trial Court disbelieved P.W 1 & P.W 2. The order of acquittal is illegal, unjustified and bad in the eye of law. The learned Trial Court has not properly appreciated the prosecution evidence and has decided the case on the basis of conjuncture and surmises. The impugned judgement and order of acquittal is not sustainable and is liable to be set aside.

5. In brief, grounds of Appeal No. 984 of 2015, are that the appeal, the accused appellant has taken a plea that the prosecutrix and appellant were in love with each other and agreed to marry, but parents of the victim did not approve of their marriage, rather decided to marry the victim with another person. Thereafter, she left the house on 14.04.2009. Mother of the victim lodged first information report against the appellant and his family members. The appellant and his family members have previous enmity with the informant/complainant, therefore, being annoyed and prejudiced and on the dictates of informant, the prosecutrix has falsely implicated the appellant. It is a case of consent and no opinion about the rape can be given. As per the medical report the victim was 18 years old at the time of alleged incident. The F.I.R. is delayed by 68 days, which is not explained. There is no injury in the private part of the victim and it can be gathered that she is a consenting party. There are major and serious contradictions in the evidences of prosecution witnesses. Defence proved the enmity, and conviction is based on surmises and conjuncture, therefore, the appeal be allowed and impugned judgment be set aside.

In brief, facts of the case is as follows:-

6. In the present case, First Information Report was got registered by mother of the prosecutrix Smt. Ishrawati, who is informant of the prosecutrix by way of an application addressed to the D.I.G of Police, Gorakhpur, in which she stated that earlier accused-Manoj had kidnapped her daughter. In this respect the case is pending. The accused was pressurizing the informant and her daughter to change their statement and for this he had beaten the prosecutrix and had also threatened to kill her after kidnapping. Information in this respect was given to the police station. On 14.04.2006 at about 16:00 p.m., when her daughter, was going to the new house situated near Vikas Bharati School, from her old house in Unaula Awwal, she became untraceable. She was searched everywhere but could not be found. The informant had given a mis