# Bala Prasad Kurmi v. State Of U.P

- **Citation:** (2022) 1 ILRA 466
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-27
- **Case number:** Criminal Appeal No. 446 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bala-prasad-kurmi-v-state-of-u-p-47472
- **Pages:** 19

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 376 & 506 - Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities)
Act, 1989- Section 3(1)XII and 3(2)V-
Conviction
under-
Sentence
of
Life
Imprisonment- Quantum of Sentence-
Proportionate Sentence- It is the duty of
every court to award proper sentence
having regard to nature of offence and
manner
of
its
commission-
While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs
to be balanced. Moreover, the judicial
trend in the country has been towards
striking a balance between reform and
punishment-
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-
'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'.

Sentence should be proportionate to the gravity
of the offence, manner of commission and its
impact on society and should not be unduly
harsh in view of the judicial trend of adopting
the corrective and reformative theory of
punishment.

Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989-
Section 3(1)XII and 3(2)V- There is
neither any serious discussion nor any
finding in the judgment in question with
regard to the fact that the victim belongs
to SC/ST category. Apart from the
same, this Court finds that there is no
witness to prove the caste of the victim.
the sine qua non is that the victim should
be a person, who belongs to scheduled
caste or scheduled tribe and that the
offence under the Indian Penal Code is
committed against such person on the
basis that such person belongs to the
same caste and the offender does not
belong to the same caste. If this is proved,
then only conviction under Section 3(2)(V)
of the Act, 1989 can be invoked. Thus
inevitable conclusion is this that no
offence under Section 3(2)V of SC/ST Act
is made out and thus the conviction and
the sentence so made under Section 3(2)V
of SC/ST Act is unsustainable in the eyes
of law.

In order to secure the conviction of an accused
under Sec

## Text

_Characters 0–39,954 of 62,115. This is a partial read: ask again with offset=39954 for what follows._

466 INDIAN LAW REPORTS ALLAHABAD SERIES
then also the injury will be of different
dimensions rather than the injury sustained
by the deceased Jay Prakash in the form of
deep contusion on the left side chest, lower
part in an area of 5 c.m. x 4 c.m. whereas ribs
4,5, 6 and 7 were found to be broken. The
injury from lathi and lathi's end (hura) i.e.
assault in a piercing manner with lathi is not
apparent from the post-mortem report. Thus,
the manner of assault becomes doubtful as
stated by P.W.1 and P.W.4.

(46) P.W.6-Dr. P.K. Srivastava, who has
conducted the post-mortem of the deadbody of
the deceased Jay Prakash, has stated before the
trial Court in the cross-examination at page-11
that deceased Jay Prakash was not feeling well
and took light food on the night of the
incident. P.W.1-Jagdish has not stated before
the trial Court which food was taken by the
deceased at the time of sleeping and at what
time, he took food. Normally, in village,
people took food at around 08:00 p.m. If it is
presumed that the deceased took food at 08:00
p.m. or for the sake of argument, it may be
presumed that it may be taken at 09:00 p.m.,
then also, semi digested food would be present
in the stomach within 2-3 hours. P.W.6-Dr.
P.K. Srivastava has stated that the death has
occurred within six hours of taking food,
meaning thereby if the food was taken at 09:00
p.m., then, also the death had occurred prior to
03:00 a.m. Thus, it appears that incident took
place in the dark hours and noobody has seen
the occurrence and the evidence has been
collected just to prove the case as setup by the
prosecution.

(47) In view of the facts that the
prosecution has not been able to fix the
identity of the appellant by credible evidence
as the assailant of the deceased, entering into
the further details of the case will be futile.
Moreover, the three accused persons, namely,
Sadhu Prasad, Talluqdar and Shital, have
already been acquitted by the trial Court by
giving benefit of doubt vide impugned
judgment and order dated 20.07.1995 passed
by the trial Court, hence the appellant-Lot
Prasad is also entitled for the benefit of doubt.
Since, the identity of the miscreants was not
established beyond all reasonable doubt, this is
a case where appellant is entitled to acquittal
on the ground of benefit of doubt.

(48) In the result, the appeal succeeds
and is hereby allowed. The judgment and
order dated 20.07.1995 passed in Sessions
Trial No. 73 of 1992 so far as it relates to the
appellant stands set aside. The appellant is
acquitted from the charges levelled against
him. The appellant is on bail. His bail bonds
are hereby cancelled and sureties are
discharged from their liabilities.

(49) Appellant is directed to file personal
bond and two sureties each in the like amount
to the satisfaction of the Court concerned in
compliance of Section 437-A of the Code of
Criminal Procedure, 1973.

(50) Let a copy of this judgment and the
original record be transmitted to the trial court
concerned forthwith for necessary information
and compliance.
----------
(2022)01ILR A466
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No. 446 of 2015

Bala Prasad Kurmi ...Appellant
Versus
State Of U.P. ...Opposite Party
1 All. Bala Prasad Kurmi Vs. State of U.P.
467
Counsel for the Appellant:
Sri K.K. Tripathi, Sri Prem Chandra, Sri
Nand Lal Yadav, Sri Kamla Prasad, Sri R.L.
Varma, Sri Anil Kumar, Sri Mohd. Kalim,
Mary Punch Sheeb Zosi

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 376 & 506 - Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities)
Act, 1989- Section 3(1)XII and 3(2)V-
Conviction
under-
Sentence
of
Life
Imprisonment- Quantum of Sentence-
Proportionate Sentence- It is the duty of
every court to award proper sentence
having regard to nature of offence and
manner
of
its
commission-
While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs
to be balanced. Moreover, the judicial
trend in the country has been towards
striking a balance between reform and
punishment-
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-
'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'.

Sentence should be proportionate to the gravity
of the offence, manner of commission and its
impact on society and should not be unduly
harsh in view of the judicial trend of adopting
the corrective and reformative theory of
punishment.

Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989-
Section 3(1)XII and 3(2)V- There is
neither any serious discussion nor any
finding in the judgment in question with
regard to the fact that the victim belongs
to SC/ST category. Apart from the
same, this Court finds that there is no
witness to prove the caste of the victim.
the sine qua non is that the victim should
be a person, who belongs to scheduled
caste or scheduled tribe and that the
offence under the Indian Penal Code is
committed against such person on the
basis that such person belongs to the
same caste and the offender does not
belong to the same caste. If this is proved,
then only conviction under Section 3(2)(V)
of the Act, 1989 can be invoked. Thus
inevitable conclusion is this that no
offence under Section 3(2)V of SC/ST Act
is made out and thus the conviction and
the sentence so made under Section 3(2)V
of SC/ST Act is unsustainable in the eyes
of law.

In order to secure the conviction of an accused
under Section 3(1)XII and 3(2)V of the Sc/St
Act, it has to be proved and established that the
victim belonged to a scheduled caste/ scheduled
tribe while the offender did not belong to the
said category. (Para 23, 24, 25, 26, 29)

Appeal Partly Allowed. (E-3)

Judgements/ Case law relied upon:-

1. Mohd. Giasuddin Vs St. of A.P, AIR 1977 SC
1926

2. Deo Narain Mandal Vs St. of UP ,(2004) 7
SCC 257

3. Guru Basavraj Vs St. of Kar., [(2012) 8 SCC 73

4. Sumer Singh Vs Surajbhan Singh, [(2014) 7
SCC 323

5. St. of Punj. Vs Bawa Singh, (2015) 3 SCC 441

6. Raj Bala Vs St. of Har., [(2016) 1 SCC 463

7. Ravada Sasikala Vs St. of A.P. AIR 2017 SC
1166

8. Manoj Mishra @ Chhotkau Vs St. of U.P, Crl.
Apl. No. 1167 of 2021, dec. on 8.10.2021
468 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Hitesh Verma Vs The St. of U.K & anr, 2020 0
Supreme (SC) 653

10. Ramawatar Vs St. of M.P, 2021 0 Supreme
(SC) 625

11. Crl. Apl. No.204 of 2021, Vishnu Vs St. of UP
dt. 28.1.2021

12. Crl. Apl. No. 3248 of 2014, Suresh Vs St. of
U.P. dt. 24.11.2021
13. Patan Jamal Vali Vs The St. Of A.P, AIR
2021 SC 2190

(Delivered by Hon'ble Vikas Budhwar, J.)

1. This appeal has been preferred
against the judgment and order dated
23.1.2015 passed by Special Judge (SC/ST
Act)/ Additional Sessions Judge, Banda
Special Trial No. 60 of 1997 in Case Crime
no. 89 of 1997, under Sections 376, 506
IPC and Section 3(1)XII and 3(2)V SC/ST
Act, P.S. Bisanda, District Banda, whereby
accused-appellant was convicted under
Section 376 IPC read with Section 3(2)V
SC/ST Act for life imprisonment and fine
of Rs.30,000/- and in default of payment of
fine, one year additional imprisonment.

2. Brief facts of the case are that the
FIR was registered on 9.5.1997 on the basis
of
the
application
moved
by
the
complainant on the same day, in which it
was
alleged
that
the
victim,
the
complainant's daughter on the date of
occurrence of the offence, i.e, 9.5.1997 was
sleeping with her grandmother being the
mother of the complainant in the courtyard.
At that relevant point of time, the
complainant and his wife Smt. Savitri were
lying down in their room. In the night of
the
incident,
i.e,
on
9.5.1997,
the
grandmother of the victim, as well as the
mother of the complainant had gone out of
the house in the fields to answer the
nature's call. However, it was alleged in the
FIR dated 9.5.1997 that at about 1:00 P.M,
in the night, Bala Prasad son of Guneshi
Kurmi and an unnamed person silently
came in the courtyard and they tied the
mouth of the victim with a cloth and took
her out of the house and committed a badact of rape outside the village, just near the
mango
tree
of
Badri
Kurmi.
The
grandmother of the victim and the mother
of the complainant became surprised, when
she did not find the victim at that relevant
point of time in the courtyard, so she
immediately rushed to the room of the
complainant, awaking the complainant and
apprising him that the victim is nowhere
found in the house and she is missing.
Thereafter rapid search was being made to
find out whereabouts of the victim and then
it was discovered that the victim was
coming towards her house and she was
found near the pond, the victim thereafter
narrated the entire incident and agony both
physical and mental sustained by her.
Thereafter accordingly the complainant
accompanied her daughter and approached
the relevant police station while filing a
complaint on 9.5.1997, which culminated
into lodging of the FIR in Case Crime
No.89 of 1997 under Sections 376 IPC and
Section 3(1)XII SC/ST Act.

3. One Sri Shailendra Kumar Yadav,
Addl. S.P, 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 under
Section 376 and 506 IPC and Sections
3(1)XII and 3(2)V SC/ST Act. The matter
being triable by court of sessions was
committed to the sessions court.

4. The learned trial court framed
charge under Section 376, 506 IPC and
1 All. Bala Prasad Kurmi Vs. State of U.P.
469
Sections 3(1)XII and 3(2)V SC/ST Act,
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 the following
witnesses, who are as under:-

1.
Victim
P.W.1
2.
Bhura
son
of
Swamideen
P.W.2
3.
Dr. R.P. Gupta
P.W.3
4.
Dr. Pramod Kumar
 P.W.4
5.
Addl. S.P. Shailendra
Kumar Yadav
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.
Written report
Ext. Ka-1
2.
Recovery Memo of
Sari of victim
Ext. Ka-2
3.
X-ray report prepared
by
the
Doctor
at
District
Hospital,
Banda
Ext. Ka-3
4.
Medical
Report
of
Victim
of
District
Hospital,
Banda
as
well as Pathology Test
Report
Ext. Ka-4
5.
Site Plan
Ext. Ka-5
6.
Charge Sheet
Ext. Ka-6
7.
FIR and G.D.
Ext. Ka-7

7. Heard Shri K.K. Tripathi, learned
counsel for the appellant, the learned AGA
for the State and also perused the record.

8. Perusal of record shows that
occurrence took place on 9.5.1997 and the
victim was medically examined on the
same day, i.e, 9.5.1997 in District Hospital,
Banda. In the medical examination, no
marks of external injuries were found on
the body of the victim. In the medical
report, it was also mentioned that vaginal
smear is positive for immotile spermatozoa,
i.e, the dead spermatozoa were found.
Further the medical report also reveals that
at the time of the occurrence of the
incident, the age of the victim was above
16 years and below 18 years.

9. The victim was examined by
prosecution as PW-1 and she had stated
that the accused had committed bad-act
with her as when she was all alone in the
courtyard, the accused came and forcibly
took her while putting the cloth in the
mouth of the victim, so as to create a
situation, whereby there is no hue and cry
at the end of the victim and thereafter the
accused took her near the mango tree of
one Badri Kurmi outside the village and
committed rape. When searches were made
regarding her whereabouts, then she was
found coming to her house through a pond.
Record further reveals that PW-1 in her
statement has categorically named the
accused and further so far as PW-2 being
the father of the victim is concerned, he
also gave his testimony, which is in
conformity, in consonance and in line with
the version of the prosecution while
470 INDIAN LAW REPORTS ALLAHABAD SERIES
narrating the fact that when the mother of
the complainant being the grandmother of
the victim had gone to answer the nature's
call, then from the said moment, the victim
was found to have been illegally taken
away forcibly by the accused and the
victim was recovered, when search was
being made near the pond, wherein the
victim narrated the entire incident with
regard to the fact that the bad-act of rape
had been committed forcefully by the
accused. PW-4 being the Dr. Pramod
Kumar in his statement has mentioned that
dead spermatozoa was found in the vaginal
smear. PW-5 Shailendra Kumar Yadav,
Addl. S.P, in his statement dated 29.9.2014
has deposed that he had taken the statement
of the victim, Smt. Maiki, Smt. Savitri,
Kanhaiya Kori and Dasai and on the basis
of the statement, so recorded with the
permission of the Court, additional offence
under Section 506 was also included.

10. Learned trial court after considering
the evidence available on record, concluded
that the appellant is to be sentenced under
Section 376 IPC read with Section 3(2)V
SC/ST Act and sentenced him for life
imprisonment and a fine of Rs.30,000/- and
in case of default, an additional imprisonment
of one year.

11. After some arguments, learned
counsel for the appellant has confined its
argument with regard to the fact that the
offences under Section 3(2)V of the SC/ST
Act are not made out against the appellant,
particularly, in view of the fact that there was
neither any evidence adduced by the
prosecution nor the issue has been dealt by
the court below in the judgment under
challenge.

12. Learned counsel for the appellant
submitted that he is not pressing this appeal
on its merits as far as Section 376 IPC is
concerned, 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 6 years and 11 months.

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
1 All. Bala Prasad Kurmi Vs. State of U.P.
471
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.

Explnation 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.

Excpetion 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. Once, the appellant is not pressing
the appeal on merits and as far as
conviction under Sections 376 and 452 IPC
is concerned, the scope of the present
appeal gets narrowed down to the question
of the quantum of punishment. The Hon'ble
Supreme Court in the case of Mohd.
Giasuddin Vs. State of Andhra Pradesh,
reported in AIR 1977 SC 1926 had in
paragraphs-16, 17, 18, 19 and 20 has
observed as under: -

"16. The new Criminal Procedure
Code, 1973 incorporates some of these
ideas and gives an opportunity in s. 248(2)
to both parties to bring to the notice of the
court facts and circumstances which win
help personalize the sentence from a
reformative angle. This Court, in Santa
Singh (1976) 4 SCC 190, has emphasized
how fundamental it is to put such provision
to dynamic judicial use, while dealing with
the analogous provisions in s. 235(2) "This
new provision in s. 235(2) is in consonance
with the modern trends in penology and
sentencing procedures. There was no such
provision in the old Code,. It 'was realised
that sentencing is an important stage in the
process of administration of criminal
justice- as important as the adjudication of
guilt-and it should not be con-signed to a
Subsidiary position as if it were a matter of
not much consequence. It should be a
matter of some anxiety to the court to
impose an appropriate punishment on the
472 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal and sentencing should, therefore,
receive serious attention of the Court. (p.
194.).

Modern penology regards crime
and criminal as equally material when the
right sentence has to be picked out. It turns
the focus not only on the crime, but also on
the criminal and seeks to personalise the
punishment so that the reformist component
is as much operative as the deterrent
element. It is necessary for this purpose
that facts of a social and personal nature,
sometimes altogether irrelevant if not
injurious, at the stage of fixing the guilt,
may have to be brought to the notice of the
court when the actual sen- tence is
determined. (p. 195).

A
proper
sentence
is
the
amalgam of many factors such as the
nature of the offence, the circumstances
extenuating
or
aggravating-of
the
offence, the prior criminal record, if any,
of the offender, the age of the offender,
the record of the offender as
to
employment, the background of the
offender with reference to education,
home life, sobriety and social adjustment,
the emotional and mental condition of the
offender,
the
prospects
for
the
rehabilitation
of
the
offender,
the
possibility of return of the offender to
normal life in the community, the
possibility of treatment or training of the
offender, the possibility that the sentence
may serve as a deterrent to crime by the
offender or by others and the current
community need, if any, for such a
deterrent in respect to the particular type
of offence. These factors have to be taken
into account by the Court in deciding
upon the appropriate sentence. (p.

195).

The hearing contemplated by
section 235(2) is not confined merely to
hearing oral submissions, but it is also
intended to give an opportunity to the
prosecution and the ac- cused to place
before the court facts and material relating
to various factors' bearing on the question
of sentence and if they are contested by
other side, then to produce evidence for the
purpose of establishing the same. Of
course, care would have to be taken by the
court to see that this hearing on the
question of sentence is not abused and
turned into an instrument for unduly
protracting the proceedings. The claim of
due and proper hearing would have to be
harmonised
with
the
requirement
of
expeditious disposal of proceedings." (p.
196).

17. It will thus be seen that there
is a great discretion vested in the Judge,
especially when pluralistic factors , enter
his calculations Even so, the judge must
exercise this discretionary power, drawing
his inspiration from the humanitarian spirit
of the law, and living down the traditional
precedents which have winked at the
personality of the crime doer and been
swept away by the features of the crime.
What is dated has to be discarded. What is
current has to, be incorporated. Therefore
innovation, in all conscience, is in the field
of judicial discretion.

18. Unfortunately, the Indian
Penal Code still lingers in the somewhat
compartmentalised system of punishment
viz. imprisonment simple or rigorous, fine
and, of course, capital sentence. There is a
wide range of choice and flexible treatment
which must be available with the judge if
he is to fulfil his tryst with cruing the
criminal in a hospital setting. Maybe in an
appropriate case actual hospital treatment
1 All. Bala Prasad Kurmi Vs. State of U.P.
473
may have to be prescribed as part of the
sentence. In another case, liberal parole
may have to be suggested and, yet in a
third category, engaging in certain types of
occupation
or
even
going
through
meditational drills or other courses may be
part of the sentencing prescription. The
perspective having changed, the legal
strategies and judicial resources, in their
variety, also have to change. Rule of thumb
sentences of rigorous imprisonment or
other are too insensitive to the highly
delicate and subtle operation expected of a
sentencing judge. Release on probation,
conditional sentences, visits to healing
centres, are all on the cards. We do not
wish to be exhaustive. Indeed, we cannot
be.

19. Sentencing justice is a facet of
social justice, even as redemption of a
crime-doer is an aspect of restoration of a
whole personality. Till the new Code
recognised statutorily that punishment
required considerations beyond the nature
of
the
crime
and
circumstances
surrounding the crime and provided a
second
stage
for
bringing
in
such
additional materials, the Indian courts had,
by and large, assigned an obsolescent
backseat to the sophisticated judgment on
sentencing. Now this judicial skill has to
come of age.

20. The sentencing stance of the
court has been outlined by us and the next
question
is
what
'hospitalization'
techniques will best serve and sentencee,
having due regard to his just deserts,
blending a feeling for a man behind the
crime, defence of society by a deterrent
component and a scientific therapeutic
attitude at once correctional and realistic.
The available resources for achieving these
ends within the prison campus also has
to be considered in this context. Noticing
the scant regard paid by the courts below
to the soul of S. 248 (2) of the Code and
compelled to gather information having
sentencing relevancy, we permitted counsel
on both sides in the present appeal to file
affidavits and other materials to help the
Court make a judicious choice of the
appropriate 'penal' treatment. Both sides
have filed affidavits which disclose some
facts pertinent to the project. "

15. In the case of Deo Narain
Mandal vs. State of UP reported in (2004)
7 SCC 257, in paragraphs-11 and 12, the
Hon'ble Apex Court has held as under: -

"11. To find out whether the
period already undergone by the appellant
would be sufficient for reducing the
sentence we had called upon the learned
counsel appearing for the State to give us
the necessary information and from the list
of dates provided by the State, we notice
that the appellant was arrested on 12th of
January, 1983 and was granted bail on
14th of January, 1983 by the Trial Court
which shows he was in custody for two
days that too as an under trial prisoner.
Trial Court sentenced the appellant on 31st
of May, 1988 and the High Court released
the appellant on the 8th of July, 1988. It is
not clear from the list of date when exactly
the appellant surrendered to his bail after
the judgment of the Trial Court. Presuming
the fact in favour of the appellant that he
was taken into custody on the date of the
judgment i.e. 31st of May, 1988 itself. Since
he was released on bail by the High Court
of 8th of July, 1988, he would have been
custody as a convict for 38 days which
together with the two days spent as an
under trial, would take the period of
474 INDIAN LAW REPORTS ALLAHABAD SERIES
custody to 40 days. On facts and
circumstances of this case, we must hold
that sentence of 40 days for an offence
punishable under Section 365/511 read
with Section 149 is wholly inadequate and
disproportionate.

12. For the reasons stated above,
we are of the opinion that the judgment of the
High Court, so far as it pertains to the
reduction of sentence awarded by the Trial
Court will have to be set aside."

16. In the case of Jameel vs State of UP
[(2010) 12 SCC 532, the Hon'ble Supreme
Court in paragraphs- 14, 15 and 16 held as
under:

"14. The general policy which the
courts have followed with regard to
sentencing is that the punishment must be
appropriate and proportional to the gravity
of the offence committed. Imposition of
appropriate punishment is the manner in
which the Courts respond to the society's cry
for justice against the criminals. Justice
demands
that
Courts
should
impose
punishment befitting the crime so that the
Courts reflect public abhorrence of the
crime.

15. In operating the sentencing
system, law should adopt the corrective
machinery or deterrence based on factual
matrix. By deft modulation, sentencing
process be stern where it should be, and
tempered with mercy where it warrants to be.
The facts and given circumstances in each
case, the nature of the crime, the manner in
which it was planned and committed, the
motive for commission of the crime, the
conduct of the accused, the nature of
weapons used and all other attending
circumstances are relevant facts which would
enter into the area of consideration.

16. It was the duty of every Court
to award proper sentence having regard to
the nature of the offence and the manner in
which it was executed or committed. The
sentencing Courts are expected to consider
all relevant facts and circumstances
bearing on the question of sentence and
proceed
to
impose
a
sentence
commensurate with the gravity of the
offence."

17. In the case of Guru Basavraj vs
State of Karnatak, [(2012) 8 SCC 734, the
Hon'ble
Apex
Court
observed
in
paragraphs- 30 to 34 has held as under: -

"30.
From
the
aforesaid
authorities, it is luminous that this Court
has expressed its concern on imposition of
adequate sentence in respect of commission
of offences regard being had to the nature
of the offence and demand of the
conscience of the society. That apart, the
concern has been to impose adequate
sentence for the offence punishable under
Section 304-A of the IPC. It is worthy to
note that in certain circumstances, the
mitigating factors have been taken into
consideration but the said aspect is
dependent on the facts of each case. As the
trend of authorities would show, the
proficiency in professional driving is
emphasized upon and deviation therefrom
that results in rash and negligent driving
and causes accident has been condemned.
In a motor accident, when a number of
people sustain injuries and a death occurs,
it creates a stir in the society; sense of fear
prevails all around. The negligence of one
shatters the tranquility of the collective.
When such an accident occurs, it has the
effect potentiality of making victims in
many a layer and creating a concavity in
the social fabric. The agony and anguish of
the affected persons, both direct and
vicarious, can have nightmarish effect. It
1 All. Bala Prasad Kurmi Vs. State of U.P.
475
has its impact on the society and the impact
is felt more when accidents take place quite
often because of rash driving by drunken,
negligent or, for that matter, adventurous
drivers who have, in a way, no concern for
others. Be it noted, grant of compensation
under the provisions of the Motor Vehicles
Act, 1988 is in a different sphere
altogether. Grant of compensation under
Section 357(3) with a direction that the
same should be paid to the person who has
suffered any loss or injury by reason of the
act for which the accused has been
sentenced has a different contour and the
same is not to be regarded as a substitute in
all circumstances for adequate sentence.

31. Recently, this Court in
Rattiram & Ors. v. State of M.P. Through
Inspector of Police, (2012) 4 SCC 516 ,
though in a different context, has stated
that:

"64.
...
The
criminal
jurisprudence, with the passage of time, has
laid emphasis on victimology which
fundamentally is a perception of a trial
from the view point of the criminal as well
as the victim. Both are viewed in the social
context. The view of the victim is given
due
regard
and
respect
in
certain
countries... It is the duty of the court to see
that the victim's right is protected."

32. We may note with profit that
an appropriate punishment works as an
eye-opener for the persons who are not
careful while driving vehicles on the road
and exhibit a careless attitude possibly
harbouring the notion that they would be
shown indulgence or lives of others are like
"flies to the wanton boys". They totally
forget that the lives of many are in their
hands, and the sublimity of safety of a
human being is given an indecent burial
by their rash and negligent act.

33. There can hardly be any cavil
that there has to be a proportion between
the crime and the punishment. It is the duty
of the court to see that appropriate sentence
is imposed regard being had to the
commission of the crime and its impact on
the social order. The cry of the collective
for
justice
which
includes
adequate
punishment cannot be lightly ignored. In
Siriya alias Shri Lal v. State of M.P. (2008)
8 SCC 72, it has been held as follows:
(SCC pp.75-76, para 13)

"13. ''7. ... Protection of society
and stamping out criminal proclivity must
be the object of law which must be
achieved by imposing appropriate sentence.
Therefore, law as a cornerstone of the
edifice
of
"order"
should
meet
the
challenges
confronting
the
society.
Friedman in his Law in Changing Society
stated that: "State of criminal law continues
to be - as it should be - a decisive reflection
of
social
consciousness
of
society".
Therefore, in operating the sentencing
system, law should adopt the corrective
machinery or the deterrence based on
factual
matrix.
By
deft
modulation
sentencing process be stern where it should
be, and tempered with mercy where it
warrants to be.' * "

34. In view of the aforesaid, we
have to weigh whether the submission
advanced by the learned counsel for the
appellant as regards the mitigating factors
deserves acceptance. Compassion is being
sought on the ground of young age and
mercy is being invoked on the foundation
of solemnization of marriage. The date of
occurrence is in the month of March, 2006.
476 INDIAN LAW REPORTS ALLAHABAD SERIES
The scars on the collective cannot be said
to have been forgotten. Weighing the
individual difficulty as against the social
order, collective conscience and the duty of
the Court, we are disposed to think that the
substantive sentence affirmed by the High
Court does not warrant any interference
and, accordingly, we concur with the
same."

18. The Hon'ble Supreme Court, in
the case of Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323, in paragraphs-
36 and 37 held as under:-

" 36. Having discussed about the
discretion, presently we shall advert to the
duty of the court in the exercise of power
while imposing sentence for an offence. It
is the duty of the court to impose adequate
sentence, for one of the purposes of
imposition
of
requisite
sentence
is
protection of the society and a legitimate
response to the collective conscience. The
paramount principle that should be the
guiding laser beam is that the punishment
should be proportionate. It is the answer of
law to the social conscience. In a way, it is
an obligation to the society which has
reposed faith in the court of law to curtail
the evil. While imposing the sentence it is
the Court's accountability to remind itself
about its role and the reverence for rule of
law. It must evince the rationalized judicial
discretion and not an individual perception
or a moral propensity. But, if in the
ultimate eventuate the proper sentence is
not awarded, the fundamental grammar of
sentencing is guillotined. Law cannot
tolerate it; society does not withstand it;
and sanctity of conscience abhors it. The
old saying "the law can hunt one's past"
cannot be allowed to be buried in an
indecent manner and the rainbow of mercy,
for no fathomable reason, should be
allowed to rule. True it is, it has its own
room, but, in all circumstances, it cannot
be
allowed
to
occupy
the
whole
accommodation. The victim, in this case,
still cries for justice. We do not think that
increase in fine amount or grant of
compensation under the Code would be a
justified answer in law. Money cannot be
the oasis. It cannot assume the centre stage
for
all
redemption.
Interference
in
manifestly inadequate and unduly lenient
sentence is the justifiable warrant, for the
Court cannot close its eyes to the agony
and anguish of the victim and, eventually,
to the cry of the society. Therefore, striking
the balance we are disposed to think that
the cause of justice would be best
subserved if the respondent is sentenced to
undergo rigorous imprisonment of two
years apart from the fine that has been
imposed by the learned trial judge.

37. Before parting with the case
we are obliged, nay, painfully constrained
to state that it has come to the notice of this
Court that in certain heinous crimes or
crimes committed in a brutal manner the
High Courts in exercise of the appellate
jurisdiction have imposed extremely lenient
sentences which shock the conscience. It
should not be so. It should be borne in
mind what Cicero had said centuries ago: -

"it can truly be said that the
magistrate is a speaking law, and the law a
silent magistrate."

19. Further in the case of State of
Punjab vs Bawa Singh, (2015) 3 SCC 441,
the Hon'ble Apex Court in paragraphs-16 to
18 had observed as under: -

"16. We again reiterate in this
case that undue sympathy to impose
inadequate sentence would do more harm
1 All. Bala Prasad Kurmi Vs. State of U.P.
477
to the justice system to undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to the nature of the
offence and the manner in which it was
executed or committed. The sentencing
courts are expected to consider all relevant
facts and circumstances bearing on the
question of sentence and proceed to impose
a sentence commensurate with the gravity
of the offence. The court must not only keep
in view the rights of the victim of the crime
but also the society at large while
considering the imposition of appropriate
punishment. Meagre sentence imposed
solely on account of lapse of time without
considering the degree of the offence will
be counter-productive in the long run and
against the interest of the society.

17. Recently, in the cases of State of
Madhya Pradesh vs. Bablu, (2014) 9 SCC 281
and State of Madhya Pradesh vs. Surendra
Singh, 2014 (12) SCALE 672, after considering
and following the earlier decisions, this Court
reiterated the settled proposition of law that one
of the prime objectives of criminal law is the
imposition of adequate, just, proportionate
punishment which commensurate with gravity,
nature of crime and the manner in which the
offence is committed. One should keep in mind
the social interest and conscience of the society
while considering the determinative factor of
sentence with gravity of crime. The punishment
should not be so lenient that it shocks the
conscience of the society. It is, therefore, solemn
duty of the court to strike a proper balance
while awarding the sentence as awarding lesser
sentence encourages any criminal and, as a
result of the same, the society suffers.

18. Perusal of the impugned
order passed by the High Court would
show that while reducing the sentence to
the period already undergone, the High
Court has not considered the law time and
again laid down by this Court. Hence the
impugned order passed by the High Court
is set aside and the matter is remanded
back to the High Court to pass a fresh
order in the revision petition taking into
consideration
the
law
discussed
hereinabove after giving an opportunity of
hearing to the parties. The appeal is
accordingly allowed with the aforesaid
direction."

20. In the case of Raj Bala vs State of
Haryana, [(2016) 1 SCC 463, the Hon'ble
Apex Court in paragraph-16 held as under:-

"A
Court,
while
imposing
sentence, has a duty to respond to the
collective cry of the society. The legislature
in its wisdom has conferred discretion on
the Court but the duty of the court in such a
situation becomes more difficult and
complex. It has to exercise the discretion
on reasonable and rational parameters.
The discretion cannot be allowed to yield to
fancy or notion. A Judge has to keep in
mind the paramount concept of rule of law
and the conscience of the collective and
balance
it
with
the
principle
of
proportionality but when the discretion is
exercised in a capricious manner, it
tantamounts to relinquishment of duty and
reckless abandonment of responsibility.
One cannot remain a total alien to the
demand of the socio-cultural milieu regard
being had to the command of law and also
brush aside the agony of the victim or the
survivors of the victim. Society waits with
patience to see that justice is done. There is
a hope on the part of the society and when
the criminal culpability is established and
the discretion is irrationally exercised by
the court, the said hope is shattered and the
478 INDIAN LAW REPORTS ALLAHABAD SERIES
patience is wrecked. It is the duty of the
court not to exercise the discretion in such
a manner as a consequence of which the
expectation inherent in patience, which is
the "finest part of fortitude" is destroyed. A
Judge should never feel that the individuals
who constitute the society as a whole is
imperceptible to the exercise of discretion.
He should always bear in mind that
erroneous and fallacious exercise of
discretion is perceived by a visible
collective."

21. Following the consistent view of
the Hon'ble Apex Court with regard to
proportionality of a punishment in Ravada
Sasikala vs. State of A.P. AIR 2017 SC
1166, it was held as under: -

"15. In Shyam Narain v. State
(NCT of Delhi) (2013) 7 SCC77: (AIR 2013
SC 2209), it has been ruled that primarily it
is to be borne in mind that sentencing for
any offence has a social goal.