JUDGMENT : Ajai Tyagi, J. 1. By way of this appeal, the appellant-Teetu has challenged the Judgment and order 21.08.2010 passed by court of Additional Sessions Judge/FTC 3, Firozabad in Session Trial No.84 of 2010 arising out of Case Crime No.482 of 2009 under Section 376 Indian Penal Code, Police Station-Rasoolpur, District-Firozabad whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for life with fine of Rs.5,000/-and in case of default of payment of fine, to undergo further imprisonment for one year. 2. The brief facts as per prosecution case are that on 2.10.2009, a written report was submitted by complainant-Raju Rathore at Police Station-Rasoolpur, District-Firozabad, stating therein that in the midnight of 1/2.10.2009, his 7 years old daughter (victim) and 10 years old son Babloo were sleeping on the roof and the accused-appellant Teetu was also sleeping on the same roof while the complainant was sleeping inside the house with his wife Geeta and two other children. In the morning, when his daughter did not come down from the roof, he and his wife Geeta went on the roof and saw his daughter in almost half fainted condition. When the victim was inquired, she told that Teetu raped her in the night due to which she fainted. The complainant and his wife saw that her undergarment was blood-stained and blood was also oozing from her private-parts. 3. S.I. Felan Singh tookup the investigation, visited the spot, prepared site plan, recorded statements of the prosecutrix and witnesses and after completing investigation submitted charge sheet against the accused. The matter being triable by court of sessions was committed to the sessions court. 4. The learned trial court framed charge under Section 376 IPC, which was read over to the accused. The accused denied the charge and claimed to be tried. The prosecution so as to bring home the charge, examined five witnesses, who are as under:- 1 Raju Rathaur P.W.1 2. Victim P.W.2 3. Geeta P.W.3 4. Dr. Praveen Jahan P.W.4 5. S.I. Felan Singh P.W.5 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. 6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence: 1. F.I.R. Ext. Ka-7 2. Written report Ext. Ka-1 3. Recovery Memo of 'kachha' Ext. Ka-2 4. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. The accused did not examine any witness in defence. 6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence: 1. F.I.R. Ext. Ka-7 2. Written report Ext. Ka-1 3. Recovery Memo of 'kachha' Ext. Ka-2 4. Medical Report of Victim Ext. Ka-3 5. Supplementary report Ext. Ka-4 6. Site Plan with Index Ext. Ka-5 7. Heard Shri Yogesh Srivastava, learned Advocate, assisted by Mr.Noor Mohammad, learned counsel for the appellant, Sri Rupak Chaubey, learned AGA for the State and also perused the record. 8. Perusal of record shows that occurrence took place in the night of 1/2.10.2009 and the victim was medically examined on 2.10.2009 at 12:00 (noon) in District Women Hospital, Firozabad. In the medical examination, no marks of external injuries were found on the body of the victim including private-parts. Hymen was found torn at 6 o'clock position and no fresh bleeding was present. Vaginal smear examination and x-ray of right palm including wrist joint was advised. No opinion regarding rape could be given by the doctor. Perusal of supplementary report shows that spermatozoa was not detected. The age of victim girl was found about 7 years. In supplementary report also, it is stated by the doctor that no definite opinion regarding rape can be given. 9. The victim was examined by prosecution as PW2. In her statement, the victim stated that accused had committed bad-act with her on the roof of the house; it was night at the time of occurrence. She was wearing underwear, which was spotted by blood. She has also stated that blood was discharged from her vagina. She cried, but her mouth was pressed by the accused. The victim was cross-examined by defence in which she has stated that she regularly used to sleep and play on the same roof on which the offence was committed by the accused-appellant. In this way, PW2, the victim, has supported the prosecution case. Likewise, Raju Rathaur (PW1) and Geeta (PW3), father and mother of the victim, respectively, also supported the prosecution version, but the brother of victim, namely, Bablu, who is said to be eye-witness of the occurrence, was not produced by the prosecution even after making application under Section 311 Cr.P.C. by the accused-appellant. Likewise, Raju Rathaur (PW1) and Geeta (PW3), father and mother of the victim, respectively, also supported the prosecution version, but the brother of victim, namely, Bablu, who is said to be eye-witness of the occurrence, was not produced by the prosecution even after making application under Section 311 Cr.P.C. by the accused-appellant. Learned trial court convicted the appellant under Section 376 IPC and sentenced him for life imprisonment and Rs.5,000/-fine. It is also directed that in case of default of fine, the accused shall undergo one year additional imprisonment. 10. After some arguments, learned counsel for the appellant submitted that he is not pressing this appeal on its merit, but he prays only for reduction of the sentence as the sentence of life imprisonment awarded to the appellant by the trial court is very harsh. Learned counsel also submitted that appellant is languishing in jail for the past more than 12 years. 11. This case pertains to the offence of 'rape', defined under Section 375 IPC, which is quoted as under: [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, under the circumstances falling under any of the following seven descriptions : First. - Against her will. Secondly.- Without her consent. Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. - Against her will. Secondly.- Without her consent. Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.-With her consent when, at the time of giving such consent, by reason of unsoundness of mind of intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-With or without her consent, when she is under eighteen years of age. Seventhly.-When she is unable to communicate consent. Explanation 1.For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or nonverbal communication, communicates willingness to participate in the specific sexual act. Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.-A medical procedure or intervention shall not constitute rape. Exception 2.-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.] 12. In Mohd. Giasuddin Vs. State of A.P., AIR 1977 SC 1926 , explaining rehabilitary & 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 subculture 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. 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." 13. 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP [ (2004) 7 SCC 257 ] 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. 14. In Ravada Sasikala vs. State of A.P., AIR 2017 SC 1166 , the Supreme Court referred the judgments in Jameel vs State of UP [ (2010) 12 SCC 532 ], Guru Basavraj vs State of Karnatak, [ (2012) 8 SCC 734 ], Sumer Singh vs Surajbhan Singh, [ (2014) 7 SCC 323 ], State of Punjab vs Bawa Singh, [ (2015) 3 SCC 441 ], and Raj Bala vs State of Haryana, [ (2016) 1 SCC 463 ] 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. 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. 15. 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. 16. Since the learned counsel for the appellant has not pressed the appeal on its merit, however, after perusal of 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, the conviction of the appellant is upheld. 17. As discussed above, just because the accused was knowing the prosecutrix belonging to the vulnerable caste cannot itself take the matter in that ambit and it is relevant to mention that when offence of rape is not proved then there is no question of punishment under Section 3(2)(V) of SC/ST Act. Hence, the conviction of the appellant is upheld. 17. As discussed above, just because the accused was knowing the prosecutrix belonging to the vulnerable caste cannot itself take the matter in that ambit and it is relevant to mention that when offence of rape is not proved then there is no question of punishment under Section 3(2)(V) of SC/ST Act. 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. 18. Learned AGA also admitted the fact that appellant is languishing in jail for the last more than 12 years. Since, the appellant has already served 12 years in jail, ends of justice will be met if sentence is reduced to the period already undergone. 19. Hence, the sentence awarded to the appellant by the learned trial-court is modified as period already undergone and the fine of Rs.5,000/-imposed upon the appellant is reduced to Rs.500/-. In case of default of fine, the appellant shall undergo additional simple imprisonment of one month. 20. Accordingly, the appeal is partly allowed with the modification of the sentence, as above.