Umesh Chandra Sharma, J.

1. Heard Sri Ajay Kumar Pandey, Advocate, holding brief of Sri Mayank Awasthi, learned counsel for the revisionist, Sri Om Prakash Mishra, learned A.G.A for State at length and perused the material available on record.

2. This criminal revision has been preferred against the judgement and order of conviction and sentencing dated 31.01.1998 recorded by the Ist Additional Chief Judicial Magistrate-I, Banda in Criminal Case No. 110 of 1997, Crime No. 1038 of 1990, under Section 377 I.P.C, Police Station Kotwali, District Banda, by which the learned Additional Chief Judicial Magistrate-I, Banda convicted the revisionist under Section 377 I.P.C and sentenced for three years rigorous imprisonment and Rs. 5,000/- fine and in failure to deposit the amount of fine, to undergo one year further imprisonment may be extended and also the judgment and order of dismissal of appeal dated 16.05.1998 passed by the Sessions Judge, Banda in Criminal Appeal No. 05 of 1998.

3. The learned Sessions Judge had affirmed the conviction and the sentence passed by the learned trial court.

4. In brief, facts of the case are that the first informantcomplainant - Bhaiyya Ram Yadav, Lekhpal, resident of Room No. 58, Indira Nagar Colony, Banda, residing with his family and minor son Dharmendra Kumar, aged about nine years lodged an F.I.R (Ex.-Ka-1), that accused Additya Kumar @ Babblu Dwivedi son of Chunnu Prasad Dwivedi was also the resident of said colony in Room No. 49. On 07.101990 at about 12:00 P.M noon when his son Dharmendra Kumar was playing on the door, the accused Additya Kumar @ Babblu took him away on the pretext of teaching and he closed the door from inside and on the point of a knife he did unnatural sex with him inhumanly, after hearing hue and cry of his son he alongwith the witnesses reached there. The accused ran away immediately leaving his son in the room. Chik F.I.R (Ex.Ka-3) and Kaimi G.D (Ex.K-4) were prepared. The undergarment of his son was taken into custody, of which the recovery memo (Ex. K-5) was prepared and the victim was sent to the District Hospital, Banda, where Dr. M.L. Anandani, had examined him and found multiple abrasions measuring 0.3 c.m X 1 c.m in size (Linear Abrasions) in post aspect of oral canal, oozy of blood was present. Smear was taken from oral canal and outer aspect of anus and it was sent to Pathologist for examination.

The examination report has been proved by the said Doctor as Ex.Ka-2. The matter was investigated by S.I. Raj Pal Singh, who visited the spot and prepared site plan (Ex. K-7) and submitted charge-sheet under Section 377 I.P.C.

5. Following witnesses were examined:

I) P.W 1 Bhaiyya Ram Yadav, (informant) father of the victim.

II) P.W 2 Siya Ram.

III) P.W 3 Dr. M.L. Anandani.

IV) P.W 4 Jageshwar Prasad.

V) P.W 5 Abbdul Mazid.

VI) P.W 6 Dharmendra Kumar.

VII) P.W 7 Brij Pal Singh, Police Constable.

All the witnesses of fact including the victim P.W. 7, have supported the prosecution version and the witnesses have proved that they had seen the accused running from the place of occurrence after the alleged occurrence.

Though, the accused denied the allegations and charge levelled by the prosecution and the Court, but he neither examined any witness in defence nor adduced any documentary evidence.

6. In this case it was found that there was no undue delay in lodging the F.I.R as the occurrence has taken place on 07.10.1990 at about 12:00 O’ clock (noon) and the report has been lodged same day at about 02:45 p.m. while the distance between the place of occurrence and the Police Station and place of incident was about four kilometre. The undergarment of boy was taken immediately and it’s memo (fard) was also prepared. The victim was examined same day at about 04:45 p.m, thus there was no undue day in lodging the F.I.R, which shows that there was no adulteration or afterthought opinion in lodging the F.I.R. Though the accused had taken ground of enmity, but it could be proved by the accused.

7. At the time of incident the victim was aged about nine years old and was a student of Class VIII standard. First of all, he was examined under Section 118 of the Evidence Act to ascertain as to whether he understands the meaning of oath or not and after being satisfied his evidence was recorded. He deposed that he was taken away by the accused and was led on the cot, his underwear was put-off by the accused and thereafter he had committed unnatural intercourse with him. On being pained he commoted, on which his father and other persons had reached there and accused had succeeded in escaping after opening the door.

8. The medical evidence is also not supported by the prosecution version. P.W- 3 - Dr. M.L. Anandani has deposed that injury of anus was fresh, which could have occurred after entering any material under the anus. This witness has strictly denied that such injury may occur by falling any hard object. He also denied that any edged weapon (no fans) was used. The Doctor has also deposed that it is not possible for this injury to have been caused by a sharp object.

9. The learned counsel for the revisionist argued that all the witnesses are related to each other as the P.W. 2 Siya Ram, is the brother of the informant and P.W 1 and Abdul Mazid and Jageshwar are also Lekhpal, but considering the facts and circumstances of the case that it was a case, which has been caused inside a house in a colony, where no independent witness except the resident of colony could have seen the occurrence.

10. The learned appellate court has opined that such offences are generally committed in isolation. Therefore, no demand of independent witness can be made by the accused. From the evidence of the witnesses of fact and from the evidence from the victim, which has already been supported by the medical evidence. The prosecution case has been proved beyond the reasonable doubt. Thus, this Court is also of the considered view that the conclusion recorded by both the Courts below, is not liable to be interfered with and the conviction recorded by the learned trial court and the appellate court as well are upheld.

During the course of argument, the learned counsel for the revisionist argued that he has nothing to say about the conclusion recorded by the trial court and the learned appellate court as well. Hence, this revision remains only with regard to the application of law, thus, this Court confirms the order of conviction recorded by the trial court and the appellant court as well.

11. At this juncture, the learned counsel for the revisionist argued that it is a case of 1990 when the accused was also a young man, he is still in jail. There is no pre or post criminal antecedent in his credit, therefore a lenient view may be adopted in this regard, so far as the sentencing to the revisionist is concerned.

12. On the facts and circumstances of the case and considering the sufferance of the accused-revisionist and present trend of theories of punishment, this Court is of the considered view that after such a long litigation, it would be appropriate to adopt reformative theory of punishment and sentencing. In this context the following precedents are relevant, which are mentioned herein below.

13. In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926 [LQ/SC/1977/210] ], explaining rehabilitation & reformative aspects in sentencing it has been observed by the Supreme Court :

"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub - culture that leads to antesocial behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."

'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP [(2004) 7 SCC 257] [LQ/SC/2004/929] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the '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.

In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166 [LQ/SC/2017/305] , the Supreme Court referred the judgments in Jameel vs State of UP [(2010) 12 SCC 532] [LQ/SC/2009/1990] , Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734] [LQ/SC/2012/708] , Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323] [LQ/SC/2014/526] , State of Punjab vs Bawa Singh, [(2015) 3 SCC 441] [LQ/SC/2015/78] , and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] [LQ/SC/2015/1035] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence.

Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.

14. Keeping in view the facts and circumstances of the case and also keeping 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.

15. As discussed above, '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. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.

In Mohan Ojha Vs. State of Bihar 2002 0 Supreme (Pat) 206, the accused was convicted under Sections 363 and 377 I.P.C and considering the facts and circumstances of the case, the Patna High Court, upholded the finding of the guilt recorded by the court below and was sentenced under Section 373 IP.C for a term of 1 and 1/2 years.

In Fazal Rab Chaudhary Vs. State of Bihar, 1982 0 Supreme (SC) 157, the accused was convicted under Section 377 I.P.C, but the sentence was reduced to six months rigorous imprisonment and to the extent of such modification in the sentence, the appeal was allowed. The fact and circumstance of both the cases are similar to the facts and circumstances of the present case. Thus both the judicial pronouncement are in support of the accused-revisionist so far the as sentencing under Section 377 I.P.C is concerned.

16. From the perusal of the record, it transpires that earlier the accused-revisionist Aditya Kumar @ Babloo has been in jail for a period from 10.10.1990 to 13.10.1990 and from 16.05.1998 to 18.01.1999, for a total period of eight months seven days and earlier after rejection of this Criminal Revision on 03.03.2022, the accused-revisionist was taken into custody on 10.10.2022 and since then he is languishing in jail.

17. The order of this Court dated 03.03.2022 regarding rejection of this criminal revision due to non appearance, was challenged in the Apex Court through Criminal Appeal No. 725-726 of 2023 S.L.P. (Criminal) Nos. 1129-30 of 2023 - Aditya Kumar Vs. State, which was allowed and the order of rejection of criminal revision dated 03.03.2022 was set aside, the rejection of recall application no. 2 of 2022 on 30.09.2022 was also set aside and the matter was remitted back to the High Court to decide the same afresh on merit.

18. The Apex Court has also directed the High Court to make all endeavour to dispose of the revision in accordance with law within a period of two months from the date of receipt of certified copy of this order dated 03rd March, 2023. Thus the accused-revisionist Aditya Kumar @ Babloo has served 18 months and 11 days incarceration in jail.

19. In the aforesaid circumstances it appears to be appropriate to award the sentence to the accused-revisionist as already period undergone. Hence, this criminal revision is liable to be decided accordingly.

ORDER

20. The revision is dismissed with regard to the conviction as recorded by the learned trial court and the appellate court as well, under Section 377 I.P.C and is allowed partly regarding the sentencing recorded by the Courts below. The sentence is modified to the extent that in place of three years rigorous imprisonment, the accused would serve the sentence already incarcerated in jail and shall be released forthwith if already not wanted in any other case.

21. A copy of this judgment be sent to the Court concerned alongwith Lower Court Record for compliance and consignment.