JUDGMENT : Ajay Tyagi, J. 1. These are two appeals against the same judgement by different accused persons. Hence, both the appeals are being decided together. 2. By way of these appeals the appellants Santosh Bind Alias Kallu and Vikash Keshri have challenged the judgement and order dated 20.07.2013 passed by learned Additional Sessions Judge, Court No.6, Allahabad in Session Trial No.213 of 2013 arising from Case Crime No.241 of 2012, under Sections 363/149, 366/149, 376(G)/149, 506 and 368 IPC, Police Station- GRP Allahabad, District- Allahabad, whereby accused/appellant in both appeals was convicted and sentenced under Section 363 r/w section 149 IPC for four years R.I. and fine of Rs.4,000/-, under Section 363 r/w Section 149 IPC for seven years and fine of Rs.7,000/-, under Section 506 IPC for one year R.I. and under Section 376 (2)(G) r/w Section 149 IPC for life imprisonment and fine of Rs.1 lac. 3. The brief facts of the prosecution case are that in the night 17/18.05.2012 when prosecutrix was travelling from Jabalpur (MP) to Mirzapur by train. At about 12:15 am, the train stopped at platform No.6 at Allahabad Junction, the prosecutrix alighted at the platform for taking water. One Vikash Keshri and his friend Santosh Kumar Bind @ Kallu were already present on that platform. They took the prosecutrix from platform No.6 to out of railway station by persuading her. When the complainant talked to the prosecutrix on mobile phone, she conveyed that above persons were taking her somewhere forcibly. The above named persons talked to the complainant on phone and conveyed that they have taken his daughter and will leave her on 26.05.2012. The accused threatened the complainant not tell anything to the police. Complainant submitted a Gumshudagi (Missing) report at police station- GRP Allahabad, after lodging report, as conveyed on phone on 26.05.2012, the accused persons left the prosecutrix near her house in Mirzapur in serious condition. The prosecutrix told that Vikash Keshri, Santosh Kumar Bind, Abhishek Singh and Gappu committed rape (forcible sex) with her. 4. S.I. Shyam Vart Singh took up the investigation, visited the spot, prepared site-plan. On his transfer, another I.O. completed the investigation after recording the statements of witnesses and submitted the charge sheet against all accused persons. The case being triable by the court of Session was committed to the court of Session for trial by the learned Magistrate. 5. 4. S.I. Shyam Vart Singh took up the investigation, visited the spot, prepared site-plan. On his transfer, another I.O. completed the investigation after recording the statements of witnesses and submitted the charge sheet against all accused persons. The case being triable by the court of Session was committed to the court of Session for trial by the learned Magistrate. 5. The learned trial court summoned the accused and as accused persons denied the charges and claimed to be tried, charges were framed against all the accused persons except Raghunath Bind under Section 363/149 IPC, 366/149, 376(G) and 506 IPC and charge was framed under Section 368 IPC against the accused Raghunath Bind. The prosecution so as to bring home the charges, examined 11 witnesses, namely: 1. Shailesh Kumar PW1 2. Victim PW2 3. Santosh Kumar PW3 4. Dr. Vandana Srivastava PW4 5. Shaym Vart Singh PW5 6. Raghvendra Singh PW6 7. Dr. R.N. Gupta PW7 8. Dr. S.K. Rai PW8 9. Dr. Rajendra Singh PW9 10. Paramjeet Kaur PW10 11. Arvind Kumar Trivedi PW11 6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading oral evidence: 1. FIR Ext. Ka-7 2. Written report Ext. Ka-1 3. Application Ext. Ka-2 4. Application Ext. Ka-3 5. Application Ext. Ka-6 6. Medicolegal Report Ext. Ka-9 7. Supplementary Report Ext. Ka-10 8. Radiology and Ultrasound Report Ext. Ka-16 9. Radiology and Ultrasound Report Ext. Ka-17 10. Pathology Report Ext. Ka-18 11. Charge-Sheet ‘Mool’ Ext. Ka-14 7. After completion of prosecution evidence, accused persons were examined under Section 313 Cr.P.C. They told the prosecution evidence is false and Santosh Kumar Yadav was examined as defence witness being DW1. 8. Heard learned counsel for the appellants, learned AGA for the State and perused the record. 9. Perusal of the record shows that occurrence of ths case took place in the night of 17/18.05.2012 at about 12.15 am when the prosecutrix alighted at platform from the train to take water. Out of all some of the accused persons were already present on the platform. They took the prosecutrix out of the railway station by persuading her from where. They took her with some other accused persons in the van and kept her in a house for about one week, and as per prosecution case, the accused forcibly had sex with prosecutrix several times during this one week. They took the prosecutrix out of the railway station by persuading her from where. They took her with some other accused persons in the van and kept her in a house for about one week, and as per prosecution case, the accused forcibly had sex with prosecutrix several times during this one week. When the prosecutrix returned home as the FIR was lodged and investigation had started, prosecutrix was medically examined by doctors. Dr. Vandana Srivastava was produced by prosecution as PW4 but told that she along with Dr. Tabasum and Dr. Shamim Ahmed examined the prosecutrix who was brought by police GRP, Allahabad. Doctor has deposed before the learned trial court that no injury mark was found on the private parts of the prosecutrix. The hymen of prosecutrix was old torn. It is also stated by the doctor that no spermatozoa was found in vaginal swab and supplementary report was filed. Doctor has opined that prosecutrix was habitual for sexual intercourse. The prosecutrix was examined under Section 164 Cr.P.C. before the competent Magistrate. Where she narrated the incident. 10. Prosecutrix was examined by prosecution as PW2, in her statement, she has stated that she was forcibly taken away by the accused persons from railway station Allahabad and she was kept somewhere in the room and accused persons Vikash Keshri, Santosh Kumar Bind and two others had sexaul intercourse with her continously for one week without her consent. She was kept under threat. Later on accused Santosh Kumar Bind left her near her house in Mirzapur. Complainant, the father of the prosecutrix was examined as PW1. He reiterated what was stated in FIR and proved the same and the said document was exhibited. 11. The accused Vikash Keshri has claimed that on the date of said occurrence, he was not at Allahabad station. He has examined DW1- Santosh Kumar Yadav in his defence, who has stated that Vikash Keshri was student and he was tenant in his room and from 17.05.2012 to 19.05.2012, he was there in his tenanted room. Learned trial court relied on the evidence, led by the prosecution only in connection with the accused Vikash Keshri and Santosh Bind and convicted them as aforesaid. Learned trial court acquitted the co-accused persons Gappu @ Mahendra, Abhishek Singh and Raghunath from all the charges levelled against them. 12. Learned trial court relied on the evidence, led by the prosecution only in connection with the accused Vikash Keshri and Santosh Bind and convicted them as aforesaid. Learned trial court acquitted the co-accused persons Gappu @ Mahendra, Abhishek Singh and Raghunath from all the charges levelled against them. 12. After argument on merits, the learned counsel for the appellants submitted that as accused are in jail for a long period, he is not pressing this appeal on its merit, but prays for reduction of the sentence as the sentence of life imprisonment awarded to the appellants by the trial court is very harsh and unwarranted. Learned counsel also submitted that appellants are in jail since 10.06.2012. 13. 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. 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. 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 non-verbal 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.] 14. In case cited Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926 , the Apex Court while explaining rehabilitary & reformative aspects in sentencing has observed as follows:- "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 ante-social 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. 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." 15. The term '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. 16. 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. 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. 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. 17. 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. 18. Keeping in view the facts and circumstances, we will have to fall back what is known as corrective measures. The accused were young as narrated above. There were certain loop-holes even in the investigation. The factual scenario as narrated also to some extent would persuade us to take a different view than that taken by the learned Judge as far as committal of forcible sex is concerned but even if that be shown the age of girl namely, the prosecutrix does not permit us to take different view but at the same time the judgements of the Apex Court will permit us to fall back on what is known reformative theory of punishment. The conviction of the appellants can be interfered only for the purpose of sentence as according to us keeping the gravity of offence, the punishment of life imprisonment is too harsh. 19. 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'. The conviction of the appellants can be interfered only for the purpose of sentence as according to us keeping the gravity of offence, the punishment of life imprisonment is too harsh. 19. 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. 20. Learned AGA also admitted the fact that the appellants are languishing in jail for more than nine years. Perusal of the record also shows that appellants are in jail for past nine years and three months. As discussed above that in view of the facts and circumstances of this case and keeping in view of the gravity of the offence, life term imprisonment is very harsh. In our opinion, ends of justice would be met, if sentence is reduced to the period of 7 years. 21. Hence, the sentence awarded to the appellants by the learned trial court under Section 376(2)(G) r/w 149 IPC is reduced to the period of seven years R.I. with all remissions and fine is reduced from Rs.1 lac to Rs.10,000/- each. Appellants have to undergo simple imprisonment for one year in case of default of fine. Rest of sentences in other offences shall remain intact and all the sentences shall run concurrently as directed by learned trial court. 22. Accordingly, the appeal is partly allowed with the modification of sentence, as above.