# Rais Pal v. State of U.P - **Citation:** (2016) 4 ILRA 586 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-03-18 - **Bench:** Mrs. Ranjana Pandya - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rais-pal-v-state-of-u-p-43670 - **Pages:** 6 ## Headnote CRIMINAL LAW - Sentence - Reduction of sentence - Conviction not challenged on merits - Appeal confined to quantum of sentence - Accused suffering from permanent disability - Long lapse of time since occurrence - Period already undergone - Section 376 I.P.C. 4 All. Rais Pal Vs State Of U.P. 587 An appellant convicted under Section 376 I.P.C., who does not press the appeal on merits and confines submissions only to the question of sentence, seeks reduction of sentence on the ground of prolonged lapse of time, advanced age, physical disability, and substantial sentence already undergone HELD:(Paras 19, 20, 21) keeping in view the disability of the accused-appellant and keeping in mind that he had undergone substantial part of the sentence and even less than a year of his sentence remained. In the facts and circumstances of the case, I think the end of the justice would be met if the custodian sentence for four years of the accused under Section 376 I.P.C. to reduce to the period already undergone i.e. two and half years. In view of the aforesaid, the appeal is partly allowed. The conviction of the appellant under Section 376 I.P.C. is confirmed and the sentence of 4 years imprisonment is reduced to the period already undergone i.e. two and half years. . Case Law discussed: ## Text 586 INDIAN LAW REPORTS ALLAHABAD SERIES 81. None of the claimants, however, could tell as to what was the market value or what could have been market value of acquired land or land in vicinity of acquired land between 1976 to 1979. Reference Court then referred to circle rate determined by Collector for the purpose of stamp duty on 02.07.1982 and a sale-deed of 1999 whereunder 150.57 square yard land was transferred by sale for a consideration of Rs. 85,000/- i.e., at the rate of Rs. 560/- per square yard. Having said so, Reference Court assumed that if after 20 years rate at which sale-deed was executed in 1999 was Rs. 560/- per square yard, it could not have been less than or more than Rs. 100/- per square yard and hence it has determined market value accordingly. 82. In our view, claimants-respondents miserably failed to discharge onus lying upon them to justify determination of market value at a rate claimed by them or higher than what was determined by SLAO and once they themselves have failed, there was no justification for Reference Court to determine market value on some presumptive and conjectural basis. It has not recorded any reason or finding as to what was or what could have been annual increase or appreciation in respect to value of property etc. and on mere conjectures and surmises, it has determined market value at Rs. 100/per square yard. In our view and also considering the exposition of law, as discussed above and the findings, as noted above, award/judgment in question is clearly erroneous and cannot be sustained. 83. Appeal is, accordingly, allowed. Impugned judgment/award dated 07.10.2006 is hereby set aside. The award of Special Land Acquisition Officer dated 28.10.2000 is restored and confirmed. ---------- APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 18.03.2016 BEFORE THE HON'BLE MRS. RANJANA PANDYA, J. Criminal Appeal No.- 104 Of 1982 Rais Pal ...Appellant Versus State of U.P. ...Respondent Counsel for the Appellant: P.C.Jhingan, R.P.S.Chauhan Counsel for the Respondent: A.G.A CRIMINAL LAW - Sentence - Reduction of sentence - Conviction not challenged on merits - Appeal confined to quantum of sentence - Accused suffering from permanent disability - Long lapse of time since occurrence - Period already undergone - Section 376 I.P.C. 4 All. Rais Pal Vs State Of U.P. 587 An appellant convicted under Section 376 I.P.C., who does not press the appeal on merits and confines submissions only to the question of sentence, seeks reduction of sentence on the ground of prolonged lapse of time, advanced age, physical disability, and substantial sentence already undergone HELD:(Paras 19, 20, 21) keeping in view the disability of the accused-appellant and keeping in mind that he had undergone substantial part of the sentence and even less than a year of his sentence remained. In the facts and circumstances of the case, I think the end of the justice would be met if the custodian sentence for four years of the accused under Section 376 I.P.C. to reduce to the period already undergone i.e. two and half years. In view of the aforesaid, the appeal is partly allowed. The conviction of the appellant under Section 376 I.P.C. is confirmed and the sentence of 4 years imprisonment is reduced to the period already undergone i.e. two and half years. . Case Law discussed: 1. Sevaka Perumal etc. v. State of Tamil Nadu, AIR 1991 SC 1463 (Para 12) 2. Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220 (Para 13) 3. Ravji v. State of Rajasthan, (1996) 2 SCC 175 (Para 13) 4. Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat, (2009) 7 SCC 254 (Para 15) 5. Jameel v. State of Uttar Pradesh, (2010) 12 SCC 532(Para 16) 6. Guru Basavaraj @ Benne Settapa v. State of Karnataka, (2012) 8 SCC 734(Para 17) Gopal Singh v. State of Uttarakhand, JT 2013 (3) SC 444 (Para 18) (Delivered by Hon'ble Mrs. Ranjana Pandya, J.) 1. Challenge in this appeal is to the judgement and order dated 7.11.1981 passed by Additional Sessions Judge, Budaun in S.T. No. 221 of 1979 (State Vs. Raees Pal) arising out of Crime No. 93 of 1979, under Section 376 I.P.C., Police Station-Dataganj, District-Budaun, whereby the learned trial court found the accused guilty under Section 376 I.P.C. and sentenced him to undergo imprisonment for a period of four years. 2. As per the prosecution case, Tribeni Jatav, father of the informant lodged a report at police station stating that on 12.3.1979 the victim aged about 8 or 10 years was looking after her father's fields, the accused Rais Pal came to the fields of the informant and dragged her towards the boundary of the fields and raped her. When the victim raised alarm Sohan and Bilasi came, who saw the accused committing rape on the victim. Sohan and Bilasi tried to apprehend the accused, who fled away. The victim narrated the incident to the witnesses. On the date of occurrence, since it become dark and it was late so he did not go to the police station to lodge the report, which was lodged on 13.3.1979. 3. On the basis of this F.I.R., chik report was proved by P.W. 4 S.I. Munshi Lal, who also was the Investigating Officer. He inspected the spot and proved the site plan as Exhibit Ka-3. He deposited the clothes of the victim at the police station. The recovery memo was prepared by the Constable, which was proved by this witness as Exhibit Ka-4. This witness proved the charge- 588 INDIAN LAW REPORTS ALLAHABAD SERIES sheet. Dr. S.B. Agarwal P.W. 5 examined the victim, who opined the age of the victim to be 8 years. The hymen was ruptured and the girl was bleeding. This witness proved the medical report as Exhibit Ka-5 and opined that the victim could have sustained injuries due to sexual assault. 4. The prosecution examined as many as five witnesses. P.W. 1 is the informant, who proved the written report as Exhibit Ka-1. P.W. 2 is the victim. P.W. 3 is the eye-witness Sohan Pal. The evidence of P.W. 4, S.I. Munshi Pal, P.W. 5 Dr. S.B. Agarwal has already been discussed by me. 5. After closure of the evidence, the statement of the accused was recorded under Section 313 Cr.P.C., in which he denied the occurrence. However, no defence was adduced by the appellant. 6. The learned lower court after hearing the learned counsels for the parties and perusing the record, found the accused guilty and convicted him as specified in para 1 of the judgement. 7. Feeling aggrieved, the accused-appellant has come in appeal. 8. During the course of the hearing, learned counsel for the appellant Shri R.P.S. Chauhan submitted that he does not want to press the appeal as regards the conviction of the appellant for the offence punishable under Section 376 I.P.C. on merit is concerned. But he wants to submit before the Court only on the quantum of sentence. He has vehemently submitted that custodian sentence of four years imprisonment is quite harsh and excessive, because at the time of the alleged occurrence, the accused was teenager. Now, the accused is about 50 years of age and he is proceeding towards his old age. He has further submitted that during trial the accused was on bail. Later on, due to certain family problems and financial difficulty, he was arrested and sent to District Jail, where he is detained since 22.8.2014. 9. Lastly, it has been submitted that the accused-appellant sentenced to imprisonment for a period undergone by him, because even as per the report of the Doctor, when the appellant Rais Pal was re-admitted to jail, his right leg at knee joint was amputated by Orthopedic Surgeon. From the knee , he was 75% disabled and was also unable to walk without support. The Superintendent, District Jail, Budaun vide his letter No. 138/AR/16 dated 18.2.2016 informed the C.J.M. that after granting remission, the appellant would be released from jail on 30.2.2017. 10. Learned A.G.A. has opposed the prayer for bail made by the learned counsel for the appellant. 11. Not pressing the criminal appeal after the conviction of the accused by the court below is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence. 4 All. Rais Pal Vs State Of U.P. 589 12. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463, the Hon'ble Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under: "Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, 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 etc." 13. In the case of Dhananjoy Chatterjee Vs. State of W.B. [1994] 2 SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance. 14. Appropriate sentence is the cry of the society. Therefore,undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, 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. 15. This position was reiterated by a three-Judge Bench ofthe Hon'ble Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein it was observed as follows:- "99.....The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose 590 INDIAN LAW REPORTS ALLAHABAD SERIES such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large also while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong." 16. In Jameel vs. State of Uttar Pradesh (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus: - "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 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." 17. In Guru Basavaraj @ Benne Settapa vs. State of Karnataka, (2012) 8 SCC 734, while discussing the concept of appropriate sentence, this Court expressed that: "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." 18. In Gopal Singh vs. State of Uttarakhand JT 2013 (3) SC 444 held as under:- 4 All. Kapil Deo Vs D.D.C. Faizabad & Ors. 591 "18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence....." 19. Learned counsel for the appellant has also submitted that the occurrence relates to the year 1979 and above 37 years have passed. Thus, keeping in view the disability of the accusedappellant and keeping in mind that he had undergone substantial part of the sentence and even less than a year of his sentence remained. 20. In the facts and circumstances of the case, I think the end of the justice would be met if the custodian sentence for four years of the accused under Section 376 I.P.C. to reduce to the period already undergone i.e. two and half years. 21. In view of the aforesaid, the appeal is partly allowed. The conviction of the appellant under Section 376 I.P.C. is confirmed and the sentence of 4 years imprisonment is reduced to the period already undergone i.e. two and half years. 22. The appellant is in jail. He would serve out the remained of his sentence, if not already completed. 23. Let certified copy of this judgement be sent to the concerned court immediately for sending modified conviction warrant of the accused appellant to the concerned prison. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 21.04.2016 BEFORE THE HON'BLE ANIL KUMAR, J. Consolidation No.- 104 Of 1999 Kapil Deo ...Petitioner Versus D.D.C. Faizabad & Ors. ...Respondents Counsel for the Petitioner: Shri H.S. Sahai, Shri S C Sitapuri, Shri U.S. Sahai Counsel for the Respondents: Chief Standing Counsel, Shri Amit Mukherjee, Shri Badrish Kumar, Shri D.C. Mukherjee, Shri R.R. Upadhayaya