# Ram Babu & Anr v. State of U.P

- **Citation:** (2022) 11 ILRA 1176
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-22
- **Case number:** Crl. Appeal No. 1636 of 1994
- **Bench:** Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-babu-anr-v-state-of-u-p-47979
- **Pages:** 8

## Headnote

Criminal Law- Indian Evidence Act, 1872 -
Section 134- The Indian Evidence Act has
not prescribed any minimum number of
witnesses required for proving a fact - In
the matter of appreciation of evidence of
witnesses, it is not number of witnesses,
but quality of their evidence which is
important.

Settled law that it's the quality of evidence and
not the quantity of witnesses that is important.

Indian Penal Code, 1860- Sections 308/34
& 325/34- Perusal of evidence of injured
PW1 Jagdish, it appears that his testimony
is
wholly
reliable
and
truthful-
The
evidence given by PW1 Jagdish and PW2
Jairam
has
been
corroborated
by
documentary evidence- From the perusal
of the injuries received by injured PW1
Jagdish and the x-ray report, it appears
that injuries on his forehead and face are
simple in nature. The only injury received
in the metacarpal phalynx of left forearm
is grievous as there is dislocation of the
aforesaid bone- PW4 has not stated in his
evidence that the injuries received by PW1
Jagdish were fatal or life threatening in
nature- From the evidence available on
record, it is not proved that the accusedappellants
had
attacked
the
injured
Jagdish with the intention of causing such
injury which may result in culpable
homicide not amounting to murder - Thus,
prosecution has failed to prove the charge
u/s 308 r/w 34 I.P.C. From the evidence
on record, the prosecution has proved the
charge u/s 325 r/w 34 I.P.C. against the
accused-appellants, for which they are
liable to be convicted.

Where the medical evidence shows that the
injury is not life threatening then the same
establishes that the intention of the accused
was not to commit culpable homicide not
amounting to murder and the offence would be
one punishable u/s 325 r/w34 IPC instead of
Section 308 r/w 34 IPC.

Code of Criminal Procedure, 1973- Section
357 Cr.P.C. provides power to the Court to
award compensation to victim, which is in
addition
and
not
ancillary
to
other
sentences. While granting just and proper
compensation
Court
ought
to
have
consider capacity of the accused for such
payment as well as relevant factors such
as medical expenses, loss of earning, pain
and sufferings etc.- Considering the facts
and circumstances of the present case as
well as keeping in view the position of law
as mentioned above and considering that
the incident was happened about 33 years
back; the incident was occurred in spur of
the moment, this Court is of the view that
if the sentence awarded is reduced to the
period
already
undergone
and
a
reasonable compensation is awarded to
the victim, the ends of justice would be
served-
Judgment
and
order
dated
21.10.1994 passed by IVth Additional
District
and
Sessions
Judge,
Kanpur
Dehat, in Sessions Trial No. 101 of 1992, is
hereby
modified
to
the
extent
that
accused-appellants, Ram Babu and Ram
Prakash, are convicted u/s 325 I.P.C.
instead of Section 308 r/w 34 I.P.C. as
done by the trial court.

Where the offence was not pre-meditated, there
was no intention to commit murder, injuries
inflicted by the accused were simple and a long
time has elapsed since the commission of the
offence then it would be just and proper to
11 All. Ram Babu & Anr. Vs. State of U.P.
1177
reduce the sentence to the period already
undergone with award of fair and proper
compensation to the victim. (Para 18, 22, 26,
28, 29)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

1176 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 11 ILRA 1176
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2022

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Crl. Appeal No. 1636 of 1994

Ram Babu & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.S. Shukla, Sri Mahendra Pratap Singh

Counsel for the Respondents:
A.G.A.

Criminal Law- Indian Evidence Act, 1872 -
Section 134- The Indian Evidence Act has
not prescribed any minimum number of
witnesses required for proving a fact - In
the matter of appreciation of evidence of
witnesses, it is not number of witnesses,
but quality of their evidence which is
important.

Settled law that it's the quality of evidence and
not the quantity of witnesses that is important.

Indian Penal Code, 1860- Sections 308/34
& 325/34- Perusal of evidence of injured
PW1 Jagdish, it appears that his testimony
is
wholly
reliable
and
truthful-
The
evidence given by PW1 Jagdish and PW2
Jairam
has
been
corroborated
by
documentary evidence- From the perusal
of the injuries received by injured PW1
Jagdish and the x-ray report, it appears
that injuries on his forehead and face are
simple in nature. The only injury received
in the metacarpal phalynx of left forearm
is grievous as there is dislocation of the
aforesaid bone- PW4 has not stated in his
evidence that the injuries received by PW1
Jagdish were fatal or life threatening in
nature- From the evidence available on
record, it is not proved that the accusedappellants
had
attacked
the
injured
Jagdish with the intention of causing such
injury which may result in culpable
homicide not amounting to murder - Thus,
prosecution has failed to prove the charge
u/s 308 r/w 34 I.P.C. From the evidence
on record, the prosecution has proved the
charge u/s 325 r/w 34 I.P.C. against the
accused-appellants, for which they are
liable to be convicted.

Where the medical evidence shows that the
injury is not life threatening then the same
establishes that the intention of the accused
was not to commit culpable homicide not
amounting to murder and the offence would be
one punishable u/s 325 r/w34 IPC instead of
Section 308 r/w 34 IPC.

Code of Criminal Procedure, 1973- Section
357 Cr.P.C. provides power to the Court to
award compensation to victim, which is in
addition
and
not
ancillary
to
other
sentences. While granting just and proper
compensation
Court
ought
to
have
consider capacity of the accused for such
payment as well as relevant factors such
as medical expenses, loss of earning, pain
and sufferings etc.- Considering the facts
and circumstances of the present case as
well as keeping in view the position of law
as mentioned above and considering that
the incident was happened about 33 years
back; the incident was occurred in spur of
the moment, this Court is of the view that
if the sentence awarded is reduced to the
period
already
undergone
and
a
reasonable compensation is awarded to
the victim, the ends of justice would be
served-
Judgment
and
order
dated
21.10.1994 passed by IVth Additional
District
and
Sessions
Judge,
Kanpur
Dehat, in Sessions Trial No. 101 of 1992, is
hereby
modified
to
the
extent
that
accused-appellants, Ram Babu and Ram
Prakash, are convicted u/s 325 I.P.C.
instead of Section 308 r/w 34 I.P.C. as
done by the trial court.

Where the offence was not pre-meditated, there
was no intention to commit murder, injuries
inflicted by the accused were simple and a long
time has elapsed since the commission of the
offence then it would be just and proper to
11 All. Ram Babu & Anr. Vs. State of U.P.
1177
reduce the sentence to the period already
undergone with award of fair and proper
compensation to the victim. (Para 18, 22, 26,
28, 29)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Laxmibai (Dead) thru LRs Vs Bhagwantbura
(Dead) thru LRs, AIR 2013 SC 1204

2. Accused 'X' Vs St. of Maha. (2019) 7 SCC 1

3. St. of M.P Vs Vikram Das (2019) 4 SCC 125)

4. Roop Chand Vs St. (NCT) of Delhi, 2020 (3)
ALT (Crl.) 331 (A.P.)

5. Omanakkuttan & ors. Vs St. of Ker., 2021
(115) ACC 747
(Delivered by Hon'ble Hon'ble Surendra
Singh-I, J.)

Heard Sri Mahendra Pratap Singh,
learned counsel for the appellants and Sri
Sunil Kumar Tripathi, learned A.G.A. for
the State.

2) This criminal appeal has been filed
against the judgement and order dated
21.10.1994 passed by IVth Additional
District and Sessions Judge, Kanpur Dehat,
in Sessions Trial No. 101 of 1992, State of
U.P. Vs. Ram Babu and another arising out
of Case Crime No. 96 of 1989, Police
Station- Sikandra, District- Kanpur Dehat.

3) By the impugned order, the trial
court has convicted the appellants, Ram
Babu and Ram Prakash u/s 308 r/w 34
I.P.C. and sentenced them to two years six
months rigorous imprisonment.

4) The prosecution case as revealed
by the written report dated 17.10.1989
submitted by informant Jairam in Police
Station- Sikandra is that he is resident of
Sahajpur,
Police
Station-
Sikandra,
District- Kanpur Dehat. Last year accused,
Ram Babu had quarrel with informant's
son, Jagdish due to which he kept enmity
with the informant and his son. On
17.10.1989 at about 8 a.m., informant's son,
Jagdish, was going to meet ex-M.P. of
District- Etawah, Ram Singh Shakya, who
had arrived in his village at the residence of
Shiv Prasad. Accused, Ram Babu was
holding a hansia in his hand. He exhorted
his son that why is his enemy passing in
front of his door. On the exhortation of
accused-appellant, Ram Babu, his brother,
Ram Prakash armed with a lathi, his son,
Anil and Sudhir, armed with kanta arrived
there and started beating informant's son,
Jagdish. On hearing the noise, informant,
Jairam, his other son, Rakesh and Vishram
Singh son of Ram Sharan and other persons
of his village arrived on the spot and raised
alarm on which the accused persons
escaped from the place of occurrence.
Jagdish received grievous injuries caused
by hansia, lathi and kanta. He fell down on
the spot and became unconscious. The
informant took Jagdish to the Police
Station- Sikandra, where he gave the
written report on the basis of which Case
Crime No. 96 of 1989 u/s 308 I.P.C. was
registered against the accused-appellants,
Ram Babu and Ram Prakash and two other
persons.

5) The institution of the criminal case
was entered in the case diary by the Head
Moharrir, Tara Singh, who proved the same
as (Ext.Ka.4). The investigation of the case
was first done by S.I. C.P. Singh and on his
transfer by S.I. Madhusudan Singh, who
visited the place of occurrence and
prepared the site plan (Ext.Ka.5), recorded
the statement of the witnesses and after
completion of investigation, submitted
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
charge-sheet
u/s
308
I.P.C.
against
accused-appellants, Ram Babu and Ram
Prakash. The case was then committed to
the court of Sessions by Additional Chief
Judicial Magistrate, IIIrd, Kanpur Dehat
vide order dated 29.02.2022.

6)

On
17.10.1992,
the
IVth
Additional Sessions Judge, Kanpur Dehat,
framed charge u/s 308 r/w 34 I.P.C. against
accused-appellant, Ram Babu and Ram
Prakash. They denied the charge and
claimed trial.

7) To prove the charge, the
prosecution
examined
injured
PW1
Jagdish, informant PW2 Jairam and eyewitness PW3 Vishram Singh as witnesses
of fact whereas Medical Officer PW4 Dr.
Subhash Sharma, PW5 S.I. Tara Singh,
who was the then Head Moharrir at Police
Station- Sikandra, Investigating Officer
PW6
S.I.
Madhusudan
Singh
and
radiologist PW7 Dr. V.C. Rastogi, were
examined as formal witnesses.

8) PW1 Jagdish, PW2 Jairam and
PW3 Vishram Singh gave evidence about
the occurrence of crime. The informant
PW2 Jairam also proved the written report
(Ext.Ka.1) which he had submitted at the
Police Station- Sikandra on the basis of
which
first
information
report
was
registered.

9) PW4 Dr. Subhash Sharma, the then
Medical
Officer
at
District
Hospital,
Sikandra, examined the injured Jagdish on
17.10.1989 at 8.30 p.m. and had prepared his
injury report (Ext.Ka.2). As per the injury
report, following injuries were found on the
person of the injured Jagdish :

(i) Incised wound 2 cm x 3 cm x bone
deep at right side of forehead at right frontal
1.5 cm above from right eyebrow. Margin
regular, clotted blood present.

(ii) Incised wound 1.8 cm x 0.5 cm x
bone deep at the right side of the face, 0.5 cm
away from lateral canthus of right eye and 3
cm slightly below from injury no. 1. Margin
regular, clotted blood present.

(iii) Abraded contusion 5 cm x 1 cm at
right side of the neck, 1.5 cm on backward
from right ear. Size of abrasion 3.5 cm x 0.5
cm. Oozing present. Colour of contusion
bluish red in colour.

(iv) Incised wound 4 cm x 0.8 cm x
through and through at the left side of the
face just above the left side of the upper lip.
Similar injury was found on upper jaw below
the left lip in the gums. The edges of the
injury were clear cut and blood was oozing.

(v) Contusion 9 cm x 1.5 cm at the side
of back 3.5 cm below the interior angle of left
scapula. Reddish in colour.

(vi) Abraded contusion 7.5 cm x 2 cm at
the left side of the back 7 cm below from
injury no. 5. Reddish in colour.

(vii) Traumatic swelling 4 cm x 3 cm at
the right hand at upper aspect just above the
root of right thumb. Deformity in carpal bone
was found and could not be moved. It
appears that there is fracture in first carpal
bone.

(viii) Abrasion 5 cm x 0.5 cm at the left
leg of upper aspect 12 cm below from knee
joint.

In the opinion of the doctor, all
injuries except injury nos. (i), (ii), (iv) and
(vii) were simple in nature and caused by
hard blunt object. Injury nos. (i), (ii), (iv)
and (vii) were grievous in nature and
caused by sharp-edged weapon. X-ray was
advised for injury nos. (i), (ii), (iv) and
(vii). All the injuries were fresh. Injury nos.
(i), (ii), (iv) and (vii) could be caused by
kanta and hansia. The other injuries could
be caused by lathi and danda.
11 All. Ram Babu & Anr. Vs. State of U.P.
1179

10) PW7 Dr. V.C. Rastogi, the then
Radiologist at District Hospital, Kanpur
Dehat, who had x-rayed the left hand and
left forearm of injured Jagdish, has proved
the x-ray report relating to hand as material
Ext.1 and 2 and that relating to left forearm
as material Ext.3. He has stated that in his
evidence that the nature of material Ext.1
and 2 was NAD and in material Ext.3,
location of metacarpal phalynx of left
thumb seen. He has proved his x-ray report
as Ext.Ka.7.

11) The then Head Moharrir at Police
Station- Sikandra, S.I. Tara Singh has
proved the chik F.I.R (Ext.Ka.3) and the
report relating to institution of the case in
G.D. (Ext.Ka.4).

12) The Investigating Officer, PW6
S.I. Madhusudan Singh, has proved the site
plan
(Ext.Ka.5)
and
charge-sheet
(Ext.Ka.6).

13) On 24.09.1994, the court recorded
the statement of accused-appellants, Ram
Babu and Ram Prakash u/s 313 Cr.P.C.
They stated that the witnesses were giving
false evidence. They had not committed
any offence. They had not caused injury to
Jagdish on the alleged place, date and time
of the occurrence and a false case was
registered due to enmity against them. They
did not examine any witness in their
defence.

14) Injured PW1 Jagdish has stated in
his evidence that on 17.10.1989 at 8 a.m.
while he was going to meet the ex-M.P.,
Ram Singh Shakya, who had come in the
house of Shiv Prasad while he was passing
in front of the door of the accusedappellants, Ram Babu exhorted his brother,
accused-appellant, Ram Prakash and his
son, Anil and Sudhir. The accusedappellant, Ram Babu attacked Jagdish with
hansia and accused-appellant, Ram Prakash
with lathi while Anil and Sudhir attacked
him with kanta. On alarm being raised by
Jagdish, his father, informant Jairam, his
step-brother, Rakesh and Vishram Singh
reached there. PW1 Jagdish was seriously
injured in the incident. Thus, his presence
on the spot of occurrence cannot be
doubted. His evidence regarding the
incident is reliable and convincing and
nothing has been found in his crossexamination which may raise doubt in the
veracity of his statement.

15) On hearing the noise raised by
PW1 Jagdish, informant PW2 Jairam who
arrived at the place of occurrence, has
corroborated the evidence of PW1 Jagdish
to the extent about the time, date, place and
manner of occurrence and the fact that
PW1 Jagdish received injury during the
course of the occurrence. But he did not
corroborate the complicity of accusedappellants, Ram Babu and Ram Prakash, in
the offence. He also deposed that after the
incident, PW2 Jairam carried the injured
Jagdish to Police Station- Sikandra from
where on the basis of his written report,
F.I.R was registered and the injured Jagdish
was brought to P.H.C., Kanpur Dehat,
where the Medical Officer noted his
injuries and on his advice, he was sent to
District Hospital, Kanpur Dehat where xray of his left hand and left forearm was
done. PW3 Vishram Singh has deposed that
he did not witness the occurrence.

16) The Indian Evidence Act has not
prescribed any minimum number of witnesses
required for proving a fact as it is provided in
Section 134 of Indian Evidence Act.

Section 134 of Indian Evidence Act :
No particular number of witnesses shall in
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
any case be required for the proof of any
fact.

17) It has been held by Hon'ble
Supreme
Court
in
Laxmibai
(Dead)
through LRs Vs. Bhagwantbura (Dead)
through LRs, AIR 2013 SC 1204 that in
the matter of appreciation of evidence of
witnesses, it is not number of witnesses, but
quality
of
their
evidence
which
is
important, as there is no requirement in law
of evidence that any particular number of
witnesses
is
to
be
examined
to
prove/disprove a fact. It is a time-honoured
principle, that evidence must be weighed
and not counted. The test is whether the
evidence has a ring of trust, is cogent,
credible and trustworthy or otherwise. The
legal system has laid emphasis on value
provided by each witness, rather than the
multiplicity or plurality of witnesses. It is
quality and not quantity, which determines
the adequacy of evidence as has been
provided by Section 134 of the Act.

18) From the perusal of evidence of
injured PW1 Jagdish, it appears that his
testimony is wholly reliable and truthful.
Being the injured, he would not spare the
actual offender in his evidence. Nothing
otherwise has been mentioned in his crossexamination
which
may
shake
his
testimony and raise doubt about his
reliability and veracity. The evidence given
by PW1 Jagdish and PW2 Jairam has been
corroborated by documentary evidence
namely written report, chik F.I.R., entry of
institution of registration of criminal case
in G.D., injury report and x-ray report with
x-ray plate of the injuries received by PW1
Jagdish in the occurrence, site plan and
charge-sheet prepared by the Investigating
Officer. From the analysis of the oral and
documentary
evidence,
it
could
be
concluded that with a common intention of
causing culpable homicide not amounting
to murder, accused-appellants, Ram Babu
and Ram Prakash injured Jagdish with
hansia and lathi respectively, causing him
grievous injury. From the evidence on
record, the Court comes to the conclusion
that the prosecution has proved the charge
u/s 308 r/w 34 I.P.C. beyond reasonable
doubts against accused-appellants, Ram
Babu and Ram Prakash. The trial court has
rightly convicted the accused-appellants
under Section 308 r/w 34 I.P.C.

19) Learned counsel for the appellants
has argued that the date of birth of accusedappellants, Ram Babu and Ram Prakash is
06.04.1953 and 01.01.1954 respectively.
Their present age is 69 and 68 years
respectively.
Accused-appellants,
Ram
Babu and Ram Prakash, informant, Jairam
and injured, Jagdish are residents of the
same village. The accused-appellants are
living peacefully with informant and
injured for the last 28 years after they were
convicted by the trial court on 21.10.1994.
The attack by the accused-appellants was
not planned but it took place suddenly in
the heat of moment. It has also been argued
on behalf of accused-appellant that during
investigation, they remained in jail for 23
days. The duration of custody of accusedappellants, Ram Babu and Ram Prakash, in
jail during investigation is corroborated
from the date of their arrest mentioned in
the arrest memo and the date of acceptance
of bail bonds by the trial court. The
accused-appellants have prayed that their
sentence may be reduced and they may be
released for the period which they have
undergone in jail during investigation and
trial.

20) Learned A.G.A. appearing for the
State has vehemently opposed the prayer.
However,
he
could
not
deny
the
11 All. Ram Babu & Anr. Vs. State of U.P.
1181
submissions made on behalf of the
accused-appellants. He further submits that
in case sentence is reduced to the period
already undergone, the victim be paid
compensation as provided under Section
357 Cr.P.C.

21) We have heard learned counsel
for both the parties and perused the entire
lower court record.

22) This Court finds that the alleged
eye-witness, informant PW2 Jairam has not
fully supported the evidence of injured
PW1 Jagdish because it appears that the
evidence of PW2 Jairam was recorded
about 4 1⁄2 years after the date of occurrence
and he is resident of the village of the
accused-appellants, Ram Babu and Ram
Prakash and due to compromise, he may
have settled his dispute and he did not give
evidence against the accused-appellants.
But the hostile evidence of PW3 Vishram
Singh does not obliterate the truthful and
convincing evidence of injured PW1
Jagdish and partially true evidence of PW2
Jairam which in turn is supported by
documentary evidence. From the perusal of
the injuries received by injured PW1
Jagdish and the x-ray report, it appears that
injuries on his forehead and face are simple
in nature. The only injury received in the
metacarpal phalynx of left forearm is
grievous as there is dislocation of the
aforesaid bone. PW4 Dr. Subhash Sharma
has not stated in his evidence that the
injuries received by PW1 Jagdish were
fatal or life threatening in nature. From the
analysis of oral and documentary evidence
adduced by the prosecution, the Court
comes to the conclusion that on the alleged
date, time and place of occurrence in
pursuance of common intention, accusedappellants, Ram Babu and Ram Prakash,
caused grievous injuries to injured Jagdish.
From the evidence available on record, it is
not proved that the accused-appellants had
attacked the injured Jagdish with the
intention of causing such injury which may
result in culpable homicide not amounting
to murder of Jagdish. Thus, prosecution has
failed to prove the charge u/s 308 r/w 34
I.P.C. From the evidence on record, the
prosecution has proved the charge u/s 325
r/w
34
I.P.C.
against
the
accusedappellants, Ram Babu and Ram Prakash for
which they are liable to be convicted. The
appellants have already undergone 23 days
in jail during investigation.

23) Indian legislature has not given
any sentencing policy, though Malimath
Committee (2003) and Madhava Menon
Committee (2008) has asserted the need of
sentencing policy in India.

24) Principle of sentencing has been
an issue of concern before the Supreme
Court in many cases and tried to provide
clarity on the issue. Apex Court has time
and again cautioned against the cavalier
manner considering the way sentencing is
dealt by High Courts and Trial Courts.

"... It is established that sentencing is a
socio-legal process, wherein a Judge finds
an appropriate punishment for the accused
considering factual
circumstances and
equities. In light of the fact that the
legislature provided for discretion to the
Judges to give punishment, it becomes
important to exercise the same in a
principled manner." (para 49 of Accused
'X' vs. State of Maharastra (2019) 7 SCC
1)

"12. Sentencing for crimes has to be
analysed on the touchstone of three tests
viz.
crime
test,
criminal
test
and
comparative proportionality test. Crime test
involves factors like extent of planning,
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
choice of weapon, modus of crime,
disposal modus (if any), role of the
accused, anti-social or abhorrent character
of the crime, state of victim. Criminal test
involves assessment of factors such as age
of the criminal, gender of the criminal,
economic conditions or social background
of the criminal, motivation for crime,
availability of defence, state of mind,
instigation by the deceased or any one from
the deceased group, adequately represented
in the trial, disagreement by a Judge in the
appeal process, repentance, possibility of
reformation, prior criminal record (not to
take pending cases) and any other relevant
factor (not an exhaustive list).

13. Additionally, we may note that
under the crime test, seriousness needs to
be ascertained. The seriousness of the
crime may be ascertained by (i) bodily
integrity of the victim; (ii) loss of material
support
of
amenity;
(iii)
extent
of
humiliation; and (iv) privacy breach."
(State of Madhya Pradesh vs. Udham
and others (2019) 10 SCC 300)

25) It is also notable that "... where
minimum sentence if provided for, the
Court cannot impose less than minimum
sentence." (Para 8 of State of Madhya
Pradhesh vs. Vikram Das (2019) 4 SCC
125)

26) Section 357 Cr.P.C. provides
power to the Court to award compensation
to victim, which is in addition and not
ancillary to other sentences. While granting
just and proper compensation Court ought
to have consider capacity of the accused for
such payment as well as relevant factors
such as medical expenses, loss of earning,
pain and sufferings etc.

27) Supreme Court has reiterated
need for proper exercise of power of
granting compensation under Section 357
Cr.P.C. in Manohar Singh Vs. State of
Rajasthan and others : (2015) 3 SCC 449
and in paras 11, 31 and 54 it is stated that:

"11....Just compensation to the victim
has to be fixed having regard to the medical
and other expenses, pain and suffering, loss
of earning and other relevant factors. While
punishment to the accused is one aspect,
determination of just compensation to the
victim is the other. At times, evidence is
not available in this regard. Some guess
work in such a situation is inevitable.
Compensation is payable under Section 357
and 357- A. While under section 357,
financial capacity of the accused has to be
kept in mind, Section 357-A under which
compensation comes out of State funds, has
to be invoked to make up the requirement
of just compensation."

"31. The amount of compensation,
observed this Court, was to be determined
by the courts depending upon the facts and
circumstances of each case, the nature of
the crime, the justness of the claim and the
capacity of the accused to pay."

"54. Applying the tests which emerge
from the above cases to Section 357, it
appears to us that the provision confers a
power coupled with a duty on the courts to
apply its mind to the question of awarding
compensation in every criminal case. We
say so because in the background and
context in which it was introduced, the
power to award compensation was intended
to reassure the victim that he or she is not
forgotten in the criminal justice system.
The victim would remain forgotten in the
criminal justice system if despite the
legislature having gone so far as to enact
specific provisions relating to victim
compensation, courts choose to ignore the
provisions altogether and do not even apply
their mind to the question of compensation.
11 All. Om Prakash Vs. State of U.P.
1183
It follows that unless Section 357 is read to
confer an obligation on the courts to apply
their mind to the question of compensation,
it would defeat the very object behind the
introduction of the provision."

28) Considering the facts and
circumstances of the present case as well as
keeping in view the position of law as
mentioned above and considering that the
incident was happened about 33 years
back; the incident was occurred in spur of
the moment; and considering the judgment
passed by Supreme Court in Roop Chand
vs. State (NCT) of Delhi, 2020 (3) ALT
(Crl.) 331 (A.P.) and Omanakkuttan and
others vs. State of Kerala, 2021 (115) ACC
747, this Court is of the view that if the
sentence awarded is reduced to the period
already
undergone
and
a
reasonable
compensation is awarded to the victim, the
ends of justice would be served.

29) In view of above, the appeal is
partly allowed. Judgment and order dated
21.10.1994 passed by IVth Additional
District and Sessions Judge, Kanpur Dehat,
in Sessions Trial No. 101 of 1992, is
hereby modified to the extent that accusedappellants, Ram Babu and Ram Prakash,
are convicted u/s 325 I.P.C. instead of
Section 308 r/w 34 I.P.C. as done by the
trial court.

30) Accused-appellants, Ram Babu
and Ram Prakash, are sentenced to the
period already undergone, provided they
deposit Rs. 4,000/- each as fine out of
which Rs. 4,000/- shall be paid to the
victim, PW1 Jagdish, within a period of
two months from today. In case fine is not
deposited, as directed above, appellants,
Ram Babu and Ram Prakash, shall undergo
the imprisonment for the period sentenced
by the trial court.

31) Lower court record along with a
copy of this judgment be sent back
immediately to District Court concerned for
compliance and further necessary action.
----------
(2022) 11 ILRA 1183
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Crl. Appeal No. 2097 of 1982

Om Prakash ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Puran Chandra Joshi, Sri D.N. Wali, Sri K.K.
Misra, Pt. Pwan Chandra, Sri R.K. Dhama, Sri
Sudhir Dixit

Counsel for the Respondents:
A.G.A.

Criminal Law- Indian Penal Code, 1860-
Section 376- Indian Evidence Act, 1872-
Section 3- The factum of rape thus does
not
remain
uncorroborative,
it
finds
support from the medical evidence alsoThe Chik FIR, the recovery memo of blood
stained clothes of victim 'X', her medical
examination report, the supplementary
medical examination report, the site plan
of the place of occurrence and the charge
sheet of the present matter which are on
record go to show that the genuineness of
all
the
said
documents
have
been
admitted by the defence and as such now
stating
that
the
doctor
and
the
Investigating Officer were not being
examined
by
the
prosecution,
would
render the prosecution story and the
entire trial doubtful does not hold good.

Where the defence has not questioned the
withholding of the Doctor and the investigating
officer and has admitted the documentary