# Ram Prakash @ Pappu Yadav v. State of U.P

- **Citation:** (2021) 11 ILRA 936
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-03
- **Case number:** Criminal Appeal No. 1944 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prakash-pappu-yadav-v-state-of-u-p-46683
- **Pages:** 14

## Headnote

A.G.A.

Appellant languishing in jail-last more than 9 yearscriminal jurisprudence is reformative and correctiveno accused incapable of being reformed-all measure
to give opportunity to reform-conviction upheldpunishment modified.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,977 of 52,314. This is a partial read: ask again with offset=39977 for what follows._

936 INDIAN LAW REPORTS ALLAHABAD SERIES

35. Let a copy of this order be sent to
concerned court and jail authorities for ensuring
necessary compliance.
----------
(2021)12ILR A936
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2021

BEFORE

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

Criminal Appeal No. 1944 of 2014

Ram Prakash @ Pappu Yadav ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Shyam Lal, Ms. Abhilasha Singh, Sri Lav
Srivastava, Sri Ashutosh Yadav, Sri Chandra
Shekhar Garg, Sri V.P. Srivastava

Counsel for the Respondent:
A.G.A.

Appellant languishing in jail-last more than 9 yearscriminal jurisprudence is reformative and correctiveno accused incapable of being reformed-all measure
to give opportunity to reform-conviction upheldpunishment modified.

Appeal partly allowed. (E-9)

List of Cases cited:

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

2. Deo Narain Mandal Vs St. of U.P. reported in (2004)
7 SCC 257

3. Jameel Vs St. of U.P. [(2010) 12 SCC 532

4. Guru Basavraj Vs St. of Karn. [(2012) 8 SCC 734

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

6. St. of Pun.Vs Bawa Singh, (2015) 3 SCC 441

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

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

9. Manoj Mishra @ Chhotkau Vs St. of U.P., Criminal
Appeal No. 1167 of 2021, decided on 8.10.2021
(Delivered by Hon'ble Vikas Budhwar, J.)

1. This appeal has been preferred against
the judgment and order dated 26.3.2013 passed
by the court of Special Judge (D.A.A), Banda in
Session Trial No.63 of 2012, State Vs. Ram
Prakash @ Pappu Yadav arising out of Case
Crime no. 73 of 2012, under Sections 452 read
with Section 376 IPC, P.S. Bisanda, District
Banda, whereby the accused-appellant was
convicted under Section 452 IPC and sentenced
to five years rigorous imprisonment with a fine
of Rs.5000/- and on a default, sentence of three
months further imprisonment and under Section
376 IPC and sentenced to imprisonment for life
with fine of Rs.10,000/- and in case of default of
payment of fine, to undergo six months further
imprisonment for one year. Both the sentences
to be run concurrently.

2. Brief facts of the case are that the FIR
was registered on 22.02.2012 on the basis of the
application moved by the complainant on the
same date, in which it has been alleged that the
complainant's daughter, namely, Chunbadi on
the date of the occurrence of the offence, i.e,
21.12.2012 was alone in her house, as the
complainant as well as his wife being the mother
of the victim had gone to the field for doing
agricultural activity. In the absence of the
complainant and his wife, being the mother of
the victim, the victim was all alone in the house
and at 4:00 P.M, the unlucky day, being
21.2.2012, one Sri Ram Prakash @ Pappu @
Baura Aheer (Yadav) came to the house of the
complainant and when he found that the
daughter of the complainant being Ms. Chunbadi
11 All. Ram Prakash @ Pappu Yadav Vs. State of U.P.
937
was all alone, then he committed bad act of rape
on account whereof, the blood started oozing out
from her private part. When the complainant
along with his wife came back after finishing
their agricultural activity at 7:00 P.M, then the
daughter of the complainant (victim), narrated
this entire event. As at that point of time, it was
too late and there was no transportation
available, so complainant could not rush to the
concerned
police
station
for
lodging
of
complaint. Consequently, in the next morning,
i.e, on 22.2.2012, the complainant along with his
daughter
being
Ms.
Chunbadi
(victim)
proceeded to the conerned Police Station for the
purposes of lodging of the FIR and in the
midway, the complainant met SDM, Baberu and
the complainant along with his daughter, and
wife gave oral information to the Deputy S.P.,
Baberu. Thereafter, the complaint was lodged on
22.2.2012 by the informant, whch culminated
into registration of the FIR on 22.2.2012
alleging commission of offence by the appellant
under Section 452 and 376 IPC, being Case
Crime no.73 of 2012.

3. One Sri Likhi Ram Singh was
nominated to conduct the investigation, who
visited the spot prepared the site-plan and also
recorded the statement of prosecutrix and
witnesses and after completing investigation,
submitted charge sheet against the appellant
under Sections 452/376 IPC on 13.3.2012. The
matter being triable by the court of Sessions,
was committed to the Sessions Court.

4. The learned Trial Court framed charges
under Sections 452 and 376 IPC, which was read
over to the accused. The accused denied the
charges and claimed to be tried.

5. Prosecution examined the following
witnesses:

1.
Ram Bhawan
P.W.1
2.
Victim
P.W.2
3.
Bittan
P.W.3
4.
Dr. Bhawna Sharma
P.W.4
5.
Dr. P.S. Sagar
P.W.5
6.
Constable Pramod Kumar
P.W.-6
7.
S.I. Likhi Ram
P.W.-7

6. Apart from the aforesaid witnesses,
prosecution submitted documentary evidence,
which was proved by leading evidence:

1.
Written report
Ext. Ka-1
2.
Recovery Memo of Blood
Stained Salwar and Sari
Ext.
Ext. Ka-2
3.
Statement under Section 164
of CrPC
Ext. Ka-3
4.
Medical Report prepared by
Doctor of District Woman
Hospital, Banda
Ext. Ka-4
5.
Supplementary
medical
report of District Hospital
Ext. Ka-5
6.
X-ray report prepared by the
doctor at District Hospital
Ext. Ka-6
7.
G.D. Entry no.12
Ext. Ka-7
8.
FIR
Ext. Ka-8
9.
Letter
for
medical
examination
of
victim
prepared by the Moharrir
Ext. Ka-9
10.
Siteplan
Ext. Ka-10
11.
Charge Sheet
Ext. Ka-11
12.
Forensic Report
Ext. Ka-12

7. Heard Shri Shyam Lal, learned counsel,
assisted by Ms. Abhilasha Singh, 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 21.2.2012 and the victim was
medically examined on 22.2.2012 in the District
Women Hospital, Banda. In the medical
examination, no mark of injury was found on the
body of the victim including private-parts.
938 INDIAN LAW REPORTS ALLAHABAD SERIES
Hymen was red and tender and bleeding was
slightly present and a perennial lier was present
at 6 o'clock position. The supplementary
medical report also observed that Vaginal smear
examination and vaginal saline shows no
spermatozoa, accordingly no definite opinion
regarding rape can be given by the doctor.

9. Further perusal of the supplementary
report shows that spermatozoa was not present,
the age of the victim was found above 8 years
and hence in the supplementary report also, it
was stated by the doctor that no definite opinion
regarding rape can be given.

10. The victim was examined by
prosecution as PW-2. In her statement, the
victim stated that accused had committed badact with her, as she was all alone on the date
of occurrence. She further deposed that the
accused came at 4:00 P.M, when the informant
being her father as well as her mother had
gone to the field for agricultural activity and
when he found the victim to be all alone, then
he committed rape and the said fact was
narrated to her parents, when they returned at
7:00 P.M, on the said evening. Record shows
that the victim went to P.S. concerned for the
purposes of lodging of the FIR with the blood
stained salwar and sari. The victim was crossexamined by the defence, in which she has
corroborated and narrated the facts, which
found place in the FIR alleging that the
appellant (accused) had committed bad-act
with her and has raped her on 21.2.2012 itself.
The statements of PW-1(father) and PW-3
(mother) also supported the case of the victim.
PW-4, being Dr. Bhawna Sharma of the
District Women Hospital also deposed in her
statement that on the basis of the medical
report, there was no mark of injury, but the
hymen was torn and it was in red colour and
there pain was sustained by the victim. So
much so, PW-5 being the Dr. P.S. Sagar in his
statement deposed on the basis of the x-ray
report that there is no fusion in the bones and
the age of victim was 8-14 years. Thereafter,
the learned Trial Court after considering the
arguments as well as the documentary
evidence available on record, concluded that
the appellant is to be sentenced under Section
452 and 376 of IPC. Learned trial court
accords conviction to the accused-appellant
under Section 452 IPC and sentenced him with
five years rigorous imprisonment with a fine
of Rs.5000/- and on default, sentence of three
months further imprisonment and further
under Section 376 IPC sentenced him for
imprisonment for life with fine of Rs.10,000/-
and in case of default of payment of fine, to
undergo six months further imprisonment for
one year.

11. After some arguments, learned counsel
for the appellant submitted that he is not
pressing this appeal on merits, but he prays 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 9 and 1⁄2 (since 28.2.2012)
years.

12. 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
11 All. Ram Prakash @ Pappu Yadav Vs. State of U.P.
939
vagina, urethra, anus or any part of body of
such woman or makes her to do so with him or
any other person; or

(d) applies his mouth to the vagina,
anus, urethra of a woman or makes her to do so
with him or any other person,

under the circumstances falling under
any of the following seven descriptions :-

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- With her consent, when her
consent has been obtained by putting her or any
person in whom she is interested, in fear of
death or of hurt.

Fourthly.- With her consent, when the
man knows that he is not her husband and that her
consent is given because she believes that he is
another man to whom she is or believes herself to
be lawfully married.

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.]

13. Once, the appellant is not pressing the
appeal on merits and rather accepting the factum
of commission of the offence under Section 452
read with Section 376 of IPC, then 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 consigned 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 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
940 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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 crimedoer 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
11 All. Ram Prakash @ Pappu Yadav Vs. State of U.P.
941
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. "

14. 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 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."

15. 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
942 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

16. 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 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
11 All. Ram Prakash @ Pappu Yadav Vs. State of U.P.
943
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. 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."

17. 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
944 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

18. 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 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."

19. 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
11 All. Ram Prakash @ Pappu Yadav Vs. State of U.P.
945
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
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."

20. 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. Sentence is to be imposed regard being
had to the nature of the offence and the manner
in which the offence has been committed. The
fundamental purpose of imposition of sentence is
based on the principle that the accused must
realise that the crime committed by him has not
only created a dent in the life of the victim but
also a concavity in the social fabric. The
purpose of just punishment is designed so that
the individuals in the society which ultimately
constitute the collective do not suffer time and
again for such crimes. It serves as a deterrent.
The Court further observed that on certain
occasions, opportunities may be granted to the
convict for reforming himself but it is equally
true that the principle of proportionality
between an offence committed and the penalty
imposed are to be kept in view. It has to be
borne in mind that while carrying out this
complex exercise, it is obligatory on the part of
the court to see the impact of the offence on the
society as a whole and its ramifications on the
immediate collective as well as its repercussions
on the victim.

16. In State of Madhya Pradesh v.
Najab Khan and others, (2013) 9 SCC 509: (AIR
2013 SC 2997), the High Court of Madhya
Pradesh, while maintaining the conviction under
Section 326 IPC read with Section 34 IPC, had
reduced the sentence to the period already
undergone, i.e., 14 days. The two-Judge Bench
referred
to
the
authorities
in
Shailesh
Jasvantbhai v. State of Gujarat, (2006) 2 SCC
359: (2006 AIR SCW 436), Ahmed Hussain
Vali Mohammed Saiyed v. State of Gujarat,
(2009) 7 SCC 254: (AIR 2010 SC (Supp) 846),
Jameel v. State of Uttar Pradesh(2010) 12 SCC
532: (AIR 2010 SC (Supp) 303), and Guru
Basavaraj v. State of Karnataka, (2012) 8 SCC
734 : (2012 AIR SCW 4822) and held thus:- "In
operating the sentencing system, law should
adopt the corrective machinery or deterrence
based on factual matrix. 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. We also
reiterate that undue sympathy to impose
inadequate sentence would do more harm to the
justice dispensation 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 courts must not only keep in
view the rights of the victim of the crime but also
the society at large while considering the
946 INDIAN LAW REPORTS ALLAHABAD SERIES
imposition of appropriate punishment." In the
said case, the Court ultimately set aside the
sentence imposed by the High Court and
restored that of the trial Judge, whereby he had
convicted the accused to suffer rigorous
imprisonment for three years.

17. In Sumer Singh v. Surajbhan Singh
& others, (2014) 7 SCC 323: (AIR 2014 SC
2840), while elaborating on the duty of the
Court while imposing sentence for an offence, it
has been ruled that 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
the rule of law. It must evince the rationalised
judicial discretion and not an individual
perception or a moral propensity. The Court
further held that if in the ultimate eventuate the
proper sentence is not awarded, the fundamental
grammar of sentencing is guillotined and law
does not tolerate it; society does not withstand
it; and sanctity of conscience abhors it. It was
observed that 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. The conception of mercy has its own space
but it cannot occupy the whole accommodation.
While
dealing
with
grant
of
further
compensation in lieu of sentence, the Court
ruled:-

"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."

18. In State of Punjab v. Bawa Singh,
(2015) 3 SCC 441: (AIR 2015 SC (Supp) 731),
this Court, after referring to the decisions in
State of Madhya Pradesh v. Bablu, (2014) 9
SCC 281 : (AIR 2015 SC 102) and State of
Madhya Pradesh v. Surendra Singh, (2015) 1
SCC 222: (AIR 2015 SC 298), reiterated the
settled proposition of law that one of the prime
objectives of criminal law is the imposition of
adequate, just, proportionate punishment which
is commensurate with the nature of crime regard
being had to the manner in which the offence is
committed.