# Ramesh @ Baba v. State of U.P

- **Citation:** (2021) 11 ILRA 60
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-25
- **Case number:** Criminal Appeal No. 1673 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-baba-v-state-of-u-p-46653
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code, 1860
- Sections 363, 376-challenge to-convictionmodification of sentence-6 year old child was
missing-several abrasion found on the face of
the victim, injuries were found on private part
and blood was oozing out-in her statement she
supported
prosecution
version,
victim
identified the accused, doctor (PW3) examined
and he stated that the victim was very serious
and remained hospitalized for 10 days-other
witnesses also supported the prosecution
version-accused
awarded
life
time
imprisonment-appellant is in jail for last 10
years-keeping
in
view
the
facts
and
circumstances
and
reformative
theory
of
punishment is adopted and converting the life
imprisonment into the sentence of a period of
14 years R.I.-The appeal is partly allowed with
modification of sentence.(Para 1 to 22)

B. While considering imposition of appropriate
punishment, the impact of crime on the society
as a whole and rule of law needs to be
balanced. the judicial trend in the country has
been towards striking a balance between
reform and punishment. the protection of
society and stamping out criminal proclivity
must be the object of law which can be
achieved by imposing appropriate sentence on
criminals and wrongdoers. (Para 15)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

60 INDIAN LAW REPORTS ALLAHABAD SERIES

37. In view of the aforesaid discussion, we
are of the view that appeal has to be partly
allowed. The conviction of the appellant under
Section 302 IPC is converted into conviction
under Section 304 (Part-I) IPC and the appellant
is sentenced to undergo seven years of
incarceration with fine of Rs. 10,000/- and in
case of default of payment of fine, the appellant
shall further undergo simple imprisonment for 1
year.

38. Accordingly, the appeal is partly
allowed.
----------
(2021)11ILR A60
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.10.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 1673 of 2013

Ramesh @ Baba ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.N. Verma

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code, 1860
- Sections 363, 376-challenge to-convictionmodification of sentence-6 year old child was
missing-several abrasion found on the face of
the victim, injuries were found on private part
and blood was oozing out-in her statement she
supported
prosecution
version,
victim
identified the accused, doctor (PW3) examined
and he stated that the victim was very serious
and remained hospitalized for 10 days-other
witnesses also supported the prosecution
version-accused
awarded
life
time
imprisonment-appellant is in jail for last 10
years-keeping
in
view
the
facts
and
circumstances
and
reformative
theory
of
punishment is adopted and converting the life
imprisonment into the sentence of a period of
14 years R.I.-The appeal is partly allowed with
modification of sentence.(Para 1 to 22)

B. While considering imposition of appropriate
punishment, the impact of crime on the society
as a whole and rule of law needs to be
balanced. the judicial trend in the country has
been towards striking a balance between
reform and punishment. the protection of
society and stamping out criminal proclivity
must be the object of law which can be
achieved by imposing appropriate sentence on
criminals and wrongdoers. (Para 15)

The appeal is partly allowed. (E-6)

List of Cases cited:

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

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

3. Ravada Sasikala Vs. St. of A.P. (2017) AIR SC 1166

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

5. Guru Basavraj Vs. St. of Karnatak (2012) 8 SCC
734

6. Sumer Singh Vs. Surajbhan Singh (2014) 7 SCC
323

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

8. Raj Bala Vs. St. of Har.(2016) 1 SCC 463

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred against
the judgment and order dated 27.02.2013 passed
by Additional Sessions Judge, Court No.6,
Ramabai Nagar in Session Trial No.477 of 2011
arising out of Case Crime No.155 of 2011, under
Sections 363 and 376 IPC, Police Station-
Sikandra, District- Ramabai Nagar, whereby the
11 All. Ramesh @ Baba Vs. State of U.P.
61
accused-appellant was convicted under Section
363 and 376 IPC and was awarded sentence
under Section 363 IPC for five years R.I. and
fine of Rs.3,000/-, one year R.I. was awarded in
case of default of fine and under Section 376
IPC life imprisonment was awarded with
Rs.45,000/-. Accused was directed to undergo
two years R.I. in case of default of fine. It was
directed that Rs.40,000/- shall be paid to the
victim as compensation.

2. The brief facts of the case are that a
written report was submitted at police station-
Sikandra, District- Ramabai Nagar by father of
the victim stating that in the night of 05.10.2011
his mother Shanti Devi, wife Nisha Devi, Six
years old daughter and eight years old son
Vishesh had gone to Jawahar Nagar, Sikandra to
see Ramleela. At about 1:00 a.m. in the night,
his daughter-victim misplaced in the crowd. She
was not found anywhere. At about 2:00 a.m. in
the night his mother returned to the house and
informed him regarding the incident then he also
started searching his daughter but no clue was
found. Next day in the morning at about 6 a.m.,
one Manish Kumar informed that his daughter is
lying fainted in injured condition near Kali
Mathya when he reached the spot, he saw his
daughter lying in injured condition and there
was injury on her face and blood was found in
her private part. In this written report
complainant doubted on Istekar @ Rishtedar to
be responsible for the crime.

3. Investigation was taken up by S.I.
Sanjay Shukla who recorded the statements of
victim and other witnesses, visited the spot,
preapred site-plan. Medical examination of the
victim was conducted. After completing the
investigation, investigating officer submitted
charge sheet against the accused-appellant
Ramesh @ Baba. The matter being triable by
court of Sessions was committed to the Session
court for trial.

4. The learned trial court framed
charges against the accused under Sections
363 and 376 IPC, which were read over to the
accused. The accused denied the charges and
claimed to be tried. The prosecution so as to
bring home the charges, examined 10
witnesses, namely:-

1.
Anil Kumar
PW1
2.
Daneshwari
PW2
3.
Dr. Gaurav Katiyar
PW3
4.
Dr. Rama Sarraf
PW4
5.
Dr. Rakesh Kumar Tripathi
PW5
6.
H.C. Govind Hari Verma
PW6
7.
Smt. Nishra Devi
PW7
8.
Constable Ram Singh
PW8
9.
S.I. Sanjay Shukla
PW9
10.
Victim
PW10

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. In support of
the ocular version of the witensses, following
documents were produced and contents were
proved by leading evidence:-

1.
Written report
Ext. Ka-1
2.
Information to
Ext. Ka-2
3.
Medical report of victim
Ext. Ka-3
4.
Supplementary report
Ext. Ka-6
5.
Hospital discharge report
Ext. Ka-8
6.
FIR
Ext. Ka9
7.
Recovery memo of clothers
Ext. Ka-11
8.
FSL report
Ext. Ka-12
9.
Site-plan
Ext. Ka-13
10.
Charge sheet
Ext. Ka-17

6. Heard Shri S.N. Verma, learned counsel
for the appellant and learned AGA for the State
as well as perused the record.
62 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Perusal of the record shows that
occurrence of this case took place sometime in
the night of 5/6.10.2011 victim was examined in
Sikandra hospital by medical officer Dr. Gaurav
Katiyar.
In
medical
examination,
several
abrasion were found on the face of the victim
and blood were found on legs and private part.
Victim was complaining of pain in the lower
part of the abdomen. Victim was referred to lady
Dr. Rama Sarraf but found extensive torn of
hymen. Injuries were also found on the private
part and blood was oozing from the injuries.

8. The victim was examined as PW10. In
her statement she supported the prosecution
version. During her statement, the victim
identified the accused-appellant in court room
before learned trial court. Defence could not
extract anything in cross-examination which
would adversely impact the prosecution case.

9. Doctor conducting medical examination
of the victim, was also orally examined in
evidence Dr. Gaurav Katiyar proved medical
examination as PW3) as PW3, Dr. Rama Sarraf
deposed as PW4 and she had stated in her
statement that condition of the victim was very
serious at the time of medical examination. In
internal examination, doctor found that hymen
was badly torn. It was torn at 6 o'clock position.
There were several injuries on private part from
where blood was oozing. Perusal of the evidence
also shows that victim remained hospitalized for
10 days and she had to be operated. The other
prosecution
witnesses
also
supported
the
prosecution case. Learned trial court sentenced
the accused-appellant for the offence under
Sections 363 and 376 IPC. The accused was
awarded life term under Section 376 IPC along
with fine of Rs.45,000/-, apart from five years
imprisonment under Section 363 IPC and
Rs.3,000/- as fine.

10. This appeal is filed in the year 2013
and the appellant is in jail since 07.10.2011.
Since the appellant is in jail for nearly last 10
years, we consider this appeal on the view
point of the gravity of the offence and
sentence in the interest of justice.

11. Learned counsel for the appellant
after submitting for clean acquittal submitted
that he is not pressing this appeal on its merit,
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 10
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
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
11 All. Ramesh @ Baba Vs. State of U.P.
63
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. In Mohd. Giasuddin Vs. State of AP,
[AIR 1977 SC 1926], explaining rehabilitary &
reformative aspects in sentencing it has been
observed by the Supreme Court:

 "Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate rather
than avenge. The sub-culture that leads to antesocial behaviour has to be countered not by
undue cruelty but by reculturization. Therefore,
the focus of interest in penology in the individual
and the goal is salvaging him for the society.
The infliction of harsh and savage punishment is
thus a relic of past and regressive times. The
human today vies sentencing as a process of
reshaping a person who has deteriorated into
criminality and the modern community has a
primary stake in the rehabilitation of the
offender as a means of a social defence. Hence a
therapeutic, rather than an 'in terrorem' outlook
should prevail in our criminal courts, since
brutal incarceration of the person merely
produces laceration of his mind. If you are to
punish a man retributively, you must injure him.
If you are to reform him, you must improve him
and, men are not improved by injuries."

14. The term 'Proper Sentence' was
explained in Deo Narain Mandal Vs. State of
UP [(2004) 7 SCC 257] by observing that
Sentence should not be either excessively harsh
or ridiculously low. While determining the
quantum of sentence, the court should bear in
mind the 'principle of proportionality'. Sentence
should be based on facts of a given case. Gravity
of offence, manner of commission of crime, age
and sex of accused should be taken into account.
Discretion of Court in awarding sentence cannot
be exercised arbitrarily or whimsically.

15. In Ravada Sasikala vs. State of A.P.
AIR 2017 SC 1166, the Supreme Court referred
the judgments in Jameel vs State of UP [(2010)
12 SCC 532], Guru Basavraj vs State of
Karnatak, [(2012) 8 SCC 734], Sumer Singh vs
Surajbhan Singh, [(2014) 7 SCC 323], State of
Punjab vs Bawa Singh, [(2015) 3 SCC 441],
and Raj Bala vs State of Haryana, [(2016) 1
SCC 463] and has reiterated that, in operating
the sentencing system, law should adopt
corrective machinery or deterrence based on
64 INDIAN LAW REPORTS ALLAHABAD SERIES
factual matrix. Facts and given circumstances in
each case, nature of crime, manner in which it
was planned and committed, motive for
commission of crime, conduct of accused, nature
of weapons used and all other attending
circumstances are relevant facts which would
enter into area of consideration. Further, undue
sympathy in sentencing would do more harm to
justice dispensations and would undermine the
public confidence in the efficacy of law. It is the
duty of every court to award proper sentence
having regard to nature of offence and manner
of its commission. The supreme court further
said that courts must not only keep in view the
right of victim of crime but also society at large.
While considering imposition of appropriate
punishment, the impact of crime on the society
as a whole and rule of law needs to be balanced.
The judicial trend in the country has been
towards striking a balance between reform and
punishment. The protection of society and
stamping out criminal proclivity must be the
object of law which can be achieved by
imposing appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain order
and peace, should effectively meet challenges
confronting the society, as society could not
long endure and develop under serious threats of
crime and disharmony. It is therefore, necessary
to avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective. At the
same time, undue harshness should also be
avoided keeping in view the reformative
approach underlying in our criminal justice
system.

16. Keeping in view the facts and
circumstances of the case and also keeping in
view criminal jurisprudence in our country
which is reformative and corrective and not
retributive, this Court considers that no accused
person is incapable of being reformed and
therefore, all measures should be applied to give
them an opportunity of reformation in order to
bring them in the social stream.

17. Since the learned counsel for the
appellant has not pressed the appeal on its merit,
we have only perused the matter from the view
point of gravity of the offence. However, after
perusal of the entire evidence on record and
judgement of the trial court, we consider that the
appeal is devoid of merit and is liable to be
dismissed. Hence, the conviction of the
appellant is upheld.

18. As discussed above, 'reformative
theory of punishment' is to be adopted and for
that reason, it is necessary to impose punishment
keeping in view the 'doctrine of proportionality'.
It appears from perusal of impugned judgment
that sentence awarded by learned trial court for
life term is very harsh keeping in view the
entirety of facts and circumstances of the case
and gravity of offence. Hon'ble Apex Court, as
discussed above, has held that undue harshness
should be avoided taking into account the
reformative approach underlying in criminal
justice system.

19. Learned AGA also admitted the fact
that the appellant is in jail since 07.10.2011.

20. Learned trial court has awarded
sentence of life imprisonment under Section 376
IPC which seems to be harsh as discussed above.
Hence, we are of the considered view that
converting the sentence of life imprisonment
under Section 376 IPC into the sentence of a
period of 14 years R.I. would meet the ends of
justice. It goes without saying that remissions as
admissible would be admissible in case of
accused.

21. Hence the sentence awarded to the
appellant by learned trial court for life
imprisonment and fine of Rs.45,000/- is
converted into the 14 years R.I. and fine of
11 All. Mahendra Rai & Anr. Vs. State of U.P.
65
Rs.25,000/-. In case of default of fine, the
appellant shall undergo additional simple
imprisonment for one year. Sentence for the
offence under Section 363 IPC shall remain
intact. On reliazation of fine, the victim shall be
paid Rs.25,000/- as compensation. All sentences
shall run concurrently.

22. Accordingly, the appeal is partly
allowed with the modification of the sentence, as
above.
----------
(2021)11ILR A65
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.10.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 1709 of 1981

Mahendra Rai & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri N.N. Singh, Sri A.P. Sahi, Sri D.K. Singh

Counsel for the Opposite Party:
A.G.A., Sri K.K. Misra, Sri U.K. Misra

(A) Criminal Law - The Indian Penal Code,
1860 - Section 307/34 - Appeal against
conviction
-
Rehabilitary
&
Reformative
aspects
in
sentencing
-
doctrine
of
proportionality
- Discretion of Court in
awarding
sentence
cannot
be
exercised
arbitrarily or whimsically - in operating the
sentencing
system,
law
should
adopt
corrective machinery or deterrence based on
factual matrix - duty of every court to award
proper sentence having regard to nature of
offence and manner of its commission -
striking a balance between reform and
punishment - criminal justice jurisprudence
adopted in the country is not retributive but
reformative
and
corrective.(Para
-
11,14,15,17)
Accused along with his family members armed with
lathi-danda and country made pistol - assaulted uncle
of the informant - fell down - accused-appellant
assaulted on his knee by lathi - injuries caused by
hard and blunt object - simple in nature - chargesheet.submitted against appellant - does not propose
to challenge the impugned judgement and order on
its merits - modification of order of sentence for the
period already undergone.(Para -5,10)

HELD:- The injuries sustained by the victim were not
grievous in nature and fatal to life. Appellant suffered
physical and mental agony of trial and after conviction
for a long period of about 45 years, the sentence
awarded to him under Section 307/34 is converted
under Section 324 I.P.C with a fine of Rs. 1000/- each
and at this stage it does not appear appropriate to
send the accused-appellant to jail.(Para - 19,20)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

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

2. Sham Sunder Vs Puran, (1990) 4 SCC 731

3. St. of M.P. Vs Najab Khan, (2013) 9 SCC 509

4. Jameel Vs St. of U.P., (2010) 12 SCC 532

5. Guru Basavraj Vs St. of Karnatak, (2012) 8 SCC
734

6. Deo Narain Mandal Vs St. of U.P., (2004) 7 SCC
257

7. Shyam Narain Vs St. (NCT of delhi), (2013) 7 SCC
77

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

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

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

11. Kokaiyabai Yadav Vs St. of Chhattisgarh,(2017) 13
SCC 449

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

13. Jameel Vs St. of U.P., (2010) 12 SCC 532