JUDGMENT : 1. By way of this appeal, the appellant has challenged the Judgment and order 29.08.2006 passed by court of Additional District and Sessions Judge/Fast Track Court No. 2, Firozabad in Sessions Trial No.211 of 2005, arising out of Case Crime No. 305 of 2004, under Section 376 I.P.C., Police Station Ramgarh, District Firozabad whereby the accused-appellant was sentenced under Section 376 I.P.C. with a sentence of life imprisonment and fine of Rs.2000/-and in event of default of payment of fine, to undergo six months’ further imprisonment. 2. The brief facts as per prosecution case are that on 31.12.2004 at about 3:00 p.m., the accused-Nadeem came to the house of complainant and started playing with her five months old daughter and when his wife was busy with her household work he took her daughter to his house. After sometime when his wife did not find her daughter in the house, she went to the house of accused-Nadeem and saw that accused-Nadeem was with her daughter and the daughter was screaming. On the wife's scream the complainant also rushed to Nadeem house. The complainant was one of his neighbours and saw that accused-Nadeem fled away from the spot and while running he was seen by other villagers also. 3. On F.I.R being lodged, the investigating Officer, Nawab Ali tookup the investigation visited the spot, prepared site plan, recorded statements of the witnesses and after completing investigation submitted charge sheet against the accused. 4. The accused being charge sheeted for offence triable by court of session, the learned Magistrate committed the case to the court of session. The court of session summoned the accused who pleaded not guilty to the charges framed and wanted to be tried. 5. The prosecution so as to bring home the charges examined five witnesses, who are as under:- 1 Kamil P.W.1 2. Smt. Razia P.W.2 3. Dr. S.P.Rawat P.W.3 4. Head Moharir Kuldeep Singh P.W. 4 5. I.O Nawab Ali P.W. 5 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. Ex. Ka-4 2. Written report Ex. Ka-1 3. Injury Report Ex. Ka-2 8. Charge Sheet Mool Ex. Ka-6 9. Site Plan with Index Ex. Ka-5 7. Heard learned counsel for the appellant, learned AGA for the State and also perused the record. 8. Ka-4 2. Written report Ex. Ka-1 3. Injury Report Ex. Ka-2 8. Charge Sheet Mool Ex. Ka-6 9. Site Plan with Index Ex. Ka-5 7. Heard learned counsel for the appellant, learned AGA for the State and also perused the record. 8. The learned counsel for the applicant has taken us to the record and has submitted that the learned Sessions Judge has misread the testimony of the witnesses and has come to a wrong conclusion. The evidence of the witnesses who were examined by the accused have not been believed. The learned Judge has considered the case with a tainted eyes and has committed gross error of facts. The learned Judge has committed an error of law and fact where by he has not considered the medical evidence being such which shows that a child could not have been subjected to intercourse. It has been submitted that the finding of facts is perverse and requires to be upturned. 9. We would now be shifting to the evidence on record. The provisions of Section 375 read with Section 376 I.P.C reads as follows:- [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. 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 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.] “376. Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,- (a) being a police officer commits rape- (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) commits rape on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.” 10. The child was of four months even if we consider the medical evidence it is with the accused. The accused was in good relation with the complainant and his family. The child was 4.5 kg in weight, Dr. S.P.Rawat has conveyed that except the internal parts there was no injuries. 11. The learned Judge has opined that there was injuries on the private part of the minor. Dr. S.P. Rawat has categorically conveyed that it is not because of sexual intercourse, however these injuries would atleast bring to force that that accused is guilty of commission of a lessor offence. 12. 11. The learned Judge has opined that there was injuries on the private part of the minor. Dr. S.P. Rawat has categorically conveyed that it is not because of sexual intercourse, however these injuries would atleast bring to force that that accused is guilty of commission of a lessor offence. 12. Thus when blood was oozing from the private parts, the facts are very clear on the basis of the injuries which have been found on the private parts of the minor and the fact that findings are corroborated by P.W.-3. We also concur with the same, however looking to the factual scenario and in Mohd. Giasuddin Vs. State of AP, [ 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 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. 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. 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 ] by observing that Sentence should not be either excessively harsh or ridiculously low, 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 Karnataka, [ (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. 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. 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. 13. 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. 14. 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 and in the recent and latest judgment of the Apex Court in Manoj Mishra @ Chhotkau Vs. State of U.P. Decided on 08.10.2021 will permit us to punish him for a period of 17 years with all remissions and fine enhanced to Rs. 10,000/-looking to condition of the accused which should be paid to the parents of the prosecutrix who by now must have become major. 15. In view of the above, this criminal appeal is partly allowed. 16. Record and proceedings be sent back to the trial court. 17. If the accused is not want in any litigation, he may be set free forthwith. 18. We are thankful to learned counsel for appellant and learned AGA for the State who have ably assisted the Court.