# Ved Prakash @ Danny @ Raju @ Bona v. State of U.P

- **Citation:** (2021) 11 ILRA 75
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-26
- **Case number:** Criminal Appeal No. 3038 of 2005
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ved-prakash-danny-raju-bona-v-state-of-u-p-46693
- **Pages:** 6

## Headnote

(A) Criminal Law - The Indian Penal Code,
1860 - Sections 376 & 376(2)(f) -appeal
against conviction - Rehabilitary & Reformative
aspects in sentencing - proper sentence -
quantum
of
sentence
-
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 - undue harshness should be avoided
taking into account the reformative approach
underlying in criminal justice system.(Para -
18,19,20,23)

Incident occurred on 8.11.2003 at 5:00 am in the
morning - prosecutrix at the time of incident was 8
years of age - accused was seen committing the
offence - ran away - saw accused in light of bulb -
daughter of the complainant was in precarious
condition - Trial Court held appellant guilty of offence
u/s 376(2)(f) IPC whereby the accused-appellant was
convicted under Section 376 IPC - sentenced to
imprisonment for life with fine of Rs.10000/-

HELD:- 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. Sentence
awarded by trial court for life term is very harsh .
Sentence awarded to the appellant by the learned
trial-court is modified and is reduced to 15 years
rigorous imprisonment. Fine of Rs.10,000/- imposed
by Trial Court modified to Rs.20,000/- payable as
compensation to the victim.(Para-21,23,25)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

11 All. Ved Prakash @ Danny @Raju @ Bona Vs. State of U.P.
75
----------
(2021)11ILR A75
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.10.2021

BEFORE

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

Criminal Appeal No. 3038 of 2005

Ved Prakash @ Danny @ Raju @ Bona
 ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Aditya Prasad Mishra, Sri Noor Muhammad,
Sri Yogesh Srivastava

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - The Indian Penal Code,
1860 - Sections 376 & 376(2)(f) -appeal
against conviction - Rehabilitary & Reformative
aspects in sentencing - proper sentence -
quantum
of
sentence
-
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 - undue harshness should be avoided
taking into account the reformative approach
underlying in criminal justice system.(Para -
18,19,20,23)

Incident occurred on 8.11.2003 at 5:00 am in the
morning - prosecutrix at the time of incident was 8
years of age - accused was seen committing the
offence - ran away - saw accused in light of bulb -
daughter of the complainant was in precarious
condition - Trial Court held appellant guilty of offence
u/s 376(2)(f) IPC whereby the accused-appellant was
convicted under Section 376 IPC - sentenced to
imprisonment for life with fine of Rs.10000/-

HELD:- 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. Sentence
awarded by trial court for life term is very harsh .
Sentence awarded to the appellant by the learned
trial-court is modified and is reduced to 15 years
rigorous imprisonment. Fine of Rs.10,000/- imposed
by Trial Court modified to Rs.20,000/- payable as
compensation to the victim.(Para-21,23,25)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

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

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

3. Ravada Sasikala Vs St. of A.P., AIR 2017 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 Dr. Kaushal Jayendra
Thaker, J.)

1. By way of this appeal, the appellant has
challenged the Judgment and order dated
28.5.2005 passed by court of Sessions Judge,
Bulandshahar in Sessions Trial No.106 of 2004,
State Vs. Ved Prakash @ Danny @ Raju arising
out of Case Crime No.74 of 2003, under Section
376 IPC, Police Station Narora, District
Bulandshahar by which learned Trial Court was
76 INDIAN LAW REPORTS ALLAHABAD SERIES
pleased to find appellant guilty of offence u/s
376(2)(f) IPC whereby the accused-appellant
was convicted 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 further simple imprisonment for
two years.

2. The brief facts as per prosecution case is
that on 8.11.2003 at 8:15 am one Indresh Kumar
resident of L.G.C. Colony, Narora, lodged a
written report at Police Station Narora to the
effect that on that day at about 5:00 am, he and
his wife Smt. Babli were sleeping in their house
and when they woke up, they found their
daughter aged about 8 years not present on her
cot. When they came out of the house then they
heard the shrieks of their daughter from the side
of the Lavatory, when they reached there, they
saw that accused Danny, resident of village
Sheikhpura, Police Station Chhatari, who used
to loiter near Hamid crossing, had committed
rape on their daughter and on seeing them,
accused took to heels and ran away. The facts
reveal that the daughter of the complainant was
in precarious condition. She was brought to PHC
Narora
wherefrom
she
was
referred
to
Bulandshahar. He came with his daughter to get
her treated. On the basis of this Tehrir report of
case crime no.74 of 2003 under Section 376 IPC
was registered against the accused and its
substance was entered in G.D. No.17 at 18:15
am. On 8.11.2003 the prosecutrix was examined
by Dr. Sudha Sharma, Medical officer, K.M.C.
Bulandshahar. She was brought by constable
1016-Bharat Singh. At the time of medical
examination she was found to be fully
conscious. Her height is 3 feet 10 inches, teeth
14 x 12, weight 20 Kg.

3. The prosecution so as to bring home the
charges examined nine witnesses are as under:-

1.
Deposition of Indresh Kumar Sharma
P.W.1
2.
Deposition of Prosecutrix
P.W.2
3.
Deposition of Dr. Sudha Sharma
P.W.3
4.
Deposition of Dr. B.K. Gaur
P.W.4
5.
Deposition of Jawahar Lal
P.W.5
6.
Deposition of Dr. M.P. Singh
P.W.6
7.
Deposition of Kiran Pal Singh
P.W.7
8.
Deposition of Ramendra Singh
P.W.8
9.
Deposition of Babu Ram
P.W.9

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

1.
F.I.R.
Ext. Ka-6
2.
Written report
Ext. Ka-1
3.
Recovery
memo
blood
stained frock
Ext. Ka-10
4.
Injury Report
Ext. Ka-8
5.
Supplementary report
Ext. Ka-3
6.
X-ray Report
Ext. Ka-4
7.
Pathologist Report
Ext. Ka-5
8.
Charge Sheet Mool
Ext. Ka-12

5. Heard Sri Yogesh Srivastava, assisted
by Sri Noor Mohammad, learned counsel for the
appellant, Smt. Alpana Singh, learned AGA for
the State and also perused the record.

6. Sri Noor Mohammad, learned counsel
for appellant has submitted that he presses for
clean acquittal of his client.

7. Deposition of the father of prosecutrix
was recorded as PW-1 and in his oral testimony,
he has identified to the accused. He has stated
that the incident occurred on 8.11.2003 at 5:00
am in the morning. The prosecutrix at the time
of incident was 8 years of age. In the morning,
when he did not see his daughter, they went to
search for his daughter. The accused was seen
committing the offence and he ran away. His
11 All. Ved Prakash @ Danny @Raju @ Bona Vs. State of U.P.
77
daughter was taken for medical treatment. He
had called one Pankaj Sharma and gave the
report at the concerned Police Station between
8:15 a.m. in the morning. The prosecutrix was
taken to Women Hospital at Bulandshahar and
from where PHS Narora she was referred to
Bulandshahar where she was examined and she
was admitted in the hospital as her condition
was serious. He has withstood the cross
examination. He has denied the fact that he was
knowledge the accused belongs to Aligarh. The
incident occurred on 8.11.2003 and he saw the
accused in the light of bulb.

8. Indresh Kumar Sharma-PW-1, in his
cross examination accepted that the blood
stained clothes were given to the police personal
and he had already conveyed that there was
blood stained on the cloths of the prosecutrix, if
the police officer has not mentioned the same, he
is not aware why he has not mentioned. He had
even seen blood on the frock and cot of the
prosecutrix.

9. The prosecutrix examined as PW-2 and
she stated that the accused took her and tied her
both legs and thereafter brought a cot and made
her to sit on the cot. She has conveyed how the
accused had behaved, he had shown her a big
knife and had threatened to tear stomach, he
shouted and she became unconscious after he
did the bad work which means rape. There was
blood which oozed from her vagina. He has
beaten on her check and she was rubbed. There
were brusen on her back. Even in her cross
examination, she withstood the fact that the
accused had done some bad work with her.
When the accused took her, she was with her
sister.

10. PW-3 is Dr. Sudha Sharma,, the
medical examination showed that she in her oral
testimony has conveyed that whether it was on
her, she should not be tell certainly but the
injuries were possible, if a girl of 8 years was
rapped and even if there is an attempt of rape
such injuries are possible. She has conveyed that
seeing position of the vagina, it was not possible
that any penetration could take place.

11. Dr V.K. Garg was a senior radioligist
was also examined on oath nothing much turn
his evidence except the fact he could not even
convey what was the age of the prosecutrix. The
testimony of PW-6 Dr. M.P. Singh is very
important. He has opinied that there were about
three injuries and injury no.1 could not be
possible, if somebody bit teeth. Nothing has
been stated by the accused in his statement
under Section 313 Cr.P.C.

12. In respect of the victim, the doctor in
medical report has opined as under :-

"1) Contused swelling 3 c.m. X 5 c.m.
on both side of right eye.

2) Contused swelling on both sides of
left eye.

3) Oval shape abraded contused
traumatic swelling 5 c.m. x 4 c.m. with teeth
marks on right side face. One c.m. below and
outer to right eye.

In his report, doctor opined that
injuries are simple in nature. Injury No.3 caused
by teeth bite and injuries no. 1 and 2 caused by
hard blunt object."

13. Learned Judge in paragraph no.12 has
recorded the finding which is necessary for us to
reproduced as under : -

"The accused absconded for a long
period after the commission of the offence and
he was arrested by I.O. on 13.1.2004. This
conduct of the accused is also very relevant u/s 8
of the Evidence Act. After arrest, he did not
claim to be put to Test Identification Perade. He
has different names and has given different
places of abode; he was known to PW-1 and
duly named in the FIR. He was seen committing
78 INDIAN LAW REPORTS ALLAHABAD SERIES
rape upon the victim. Both PW-1 and PW-2 have
identified him in the court as well and therefore
identify of the accused is proved beyond all
doubts."

14. Learned Judge had relied on the
judgment in the case of Prem Lal alias Prem
Narayan Versus State of M.P., 2005Cr.L.J.1145
in which it is mentioned that if the report of
F.S.L. On vaginal smear has not been found, it
will not create any dent on the prosecution case.

15. We concur with the reasoning given by
learned Judge in Paragraph no. 19 that the
vaginal midline perinal was torn by one inch and
hymen was also found torn and its margin bleeds
on touch. The suggestions were made that some
other person might have committed rape. PW-1
and 2 withstood the cross examination also .

16. 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
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.]

17. Having concurred with the learned
Sessions Judge on the finding of fact we now
11 All. Ved Prakash @ Danny @Raju @ Bona Vs. State of U.P.
79
propose to examine whether the sentence
awarded is just or requires consideration.

18. 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 subculture that leads to ante-social 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."

19. '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.

20. 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
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.
80 INDIAN LAW REPORTS ALLAHABAD SERIES

21. 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.

22. Since the learned counsel for the
appellant has also pressed the appeal on its
merit, however, after perusal of entire evidence
on record and judgment of the trial court, we
consider that the appeal is requires to be
considered only for sentence. The conviction of
the appellant is upheld but sentence requires to
be altered.

23. 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.

24. Learned AGA also admitted the facts
that appellant is languishing in jail for the last
more than 9 years. Keeping in view of theory of
'doctrine of proportionality' as discussed above,
the sentence awarded to the appellant seems
harsh. Since, the appellant has already served 9
years of sentence and ends of justice would be
met if sentence of imprisonment of life is
reduced from life imprisonment to the period of
ten years with all remission would meet the ends
of justice.

25. Looking to the age of the girl, we do
not think that the judgment of the Court below
requires to be upturn. However, the sentence
awarded to the appellant by the learned trialcourt is modified and is reduced to 15 years
rigorous imprisonment. Imposition of fine and
additional imprisonment in case of default of
fine shall remain intact. The fine of Rs.10,000/-
imposed by the learned Trial Court be modified
to
Rs.20,000/-
which shall
be
paid
as
compensation to the victim if amount of fine is
not deposited within 12 weeks of release he shall
be subjected to six months imprisonment if fine
is already deposited be paid to prosecutrix.

26. Appeal is partly allowed. Record be
sent back to the Trial Court forthwith.
----------
(2021)11ILR A80
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2021

BEFORE

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

Criminal Appeal No. 3248 of 2014

Suresh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Piyush Dubey, Sri Dinesh Tiwari, Sri Virendra
Singh

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - The Indian Penal Code, 1860
- Sections 376 & 506 , The Schedule Castes
And
The
Schedule
Tribes
(Prevention
of
Atrocities ) Act , 1989 - Section 3(2)(v) - The
Code of criminal procedure, 1973 - Section 313
-appeal against conviction - Appellate Court is