Allahabad High Court
Ram Prakash Alias Pappu Yadav vs State Of U.P. on 3 December, 2021
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD [A.F.R.] Court No. - 45 Case :- CRIMINAL APPEAL No. - 1944 of 2014 Appellant :- Ram Prakash Alias Pappu Yadav Respondent :- State of U.P. Counsel for Appellant :- Shyam Lal Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Vikas Budhwar,J.
(Per 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 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:
1Ram 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 PW-6
7. S.I. Likhi Ram PW-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. 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. FIR Ex. Ka-7
8. G.D. Entry no.12 Ex. Ka-8
9. Letter for medical examination of victim prepared by the Moharrir Ex. Ka-9
10. Siteplan Ex. Ka-10
11. Charge Sheet Ex. Ka-11
12. Forensic Report Ex. 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. 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 bad-act 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 cross-examined 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 ½ (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 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 con-signed 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 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 crime-doer 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 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 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 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 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 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 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. It has been further held that 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 would shock the conscience of the society. Emphasis was laid on the solemn duty of the court to strike a proper balance while awarding the sentence as imposition of lesser sentence encourages a criminal and resultantly the society suffers.
19. Recently, in Raj Bala v. State of Haryana and others, (2016) 1 SCC 463: (AIR 2015 SC 3142), on reduction of sentence by the High Court to the period already undergone, the Court ruled thus:-
"Despite authorities existing and governing the field, it has come to the notice of this Court that sometimes the court of first instance as well as the appellate court which includes the High Court, either on individual notion or misplaced sympathy or personal perception seems to have been carried away by passion of mercy, being totally oblivious of lawful obligation to the collective as mandated by law and forgetting the oft quoted saying of Justice Benjamin N. Cardozo, "Justice, though due to the accused, is due to the accuser too" and follow an extremely liberal sentencing policy which has neither legal permissibility nor social acceptability." And again:-
"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 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."
20. Though we have referred to the decisions covering a period of almost three decades, it does not necessarily convey that there had been no deliberation much prior to that. There had been. In B.G. Goswami v. Delhi Administration, (1974) 3 SCC 85: (AIR 1973 SC 1457), the Court while delving into the issue of punishment had observed that punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining the question of awarding appropriate sentence.
21. The purpose of referring to the aforesaid precedents is that they are to be kept in mind and adequately weighed while exercising the discretion pertaining to awarding of sentence. Protection of society on the one hand and the reformation of an individual are the facets to be kept in view. In Shanti Lal Meena v. State (NCT of Delhi), (2015) 6 SCC 185: AIR 2015 SC 2678), the Court has held that as far as punishment for offence under the Prevention of Corruption Act, 1988 is concerned, there is no serious scope for reforming the convicted public servant. Therefore, it shall depend upon the nature of crime, the manner in which it is committed, the propensity shown and the brutality reflected. The case at hand is an example of uncivilized and heartless crime committed by the respondent No. 2. It is completely unacceptable that concept of leniency can be conceived of in such a crime. A crime of this nature does not deserve any kind of clemency. It is individually as well as collectively intolerable. The respondent No. 2 might have felt that his ego had been hurt by such a denial to the proposal or he might have suffered a sense of hollowness to his exaggerated sense of honour or might have been guided by the idea that revenge is the sweetest thing that one can be wedded to when there is no response to the unrequited love but, whatever may be the situation, the criminal act, by no stretch of imagination, deserves any leniency or mercy. The respondent No. 2 might not have suffered emotional distress by the denial, yet the said feeling could not to be converted into vengeance to have the licence to act in a manner like he has done."
21. Recently in the matter of Manoj Mishra @ Chhotkau vs. State of Uttar Pradesh, Criminal Appeal No. 1167 of 2021, decided on 8.10.2021, the Hon'ble Apex Court in paragraphs- 16 and 17 has held as under: -
"16. On arriving at the conclusion that the appellant is liable to be convicted under Section 376 IPC and not under Section 376 D IPC, the appropriate sentence to be imposed needs consideration. The incident in question is based on the complaint dated 09.08.2013. In this circumstance, though it is noted that Section 376 has been amended w.e.f. 21.04.2018 providing for the minimum sentence of 10 years, the case on hand is of 2013 and the conviction of the appellant was on 20.05.2015. The incident having occurred prior to amendment, the preamended provision will have to be taken note. The same provides that a person committed of rape shall be punished with rigorous imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. In the instant case, taking into consideration all facts including that no material is available on record to indicate that the appellant has any criminal antecedents and that he is also a father of five children and the eldest son is more than 18 years, it appears that there is no reason to apprehend that the appellant would indulgence similar acts in future. In that circumstance, we deem it appropriate that the sentence of 7 years would have been sufficient deterrent to serve the ends of justice. From the custody certificate dated 05.12.2017 issued by the Jail Superintendent, District Jail, Bahraich, it is noticed that the appellant has been in custody from 20.09.2013. If that be the position, he has been in custody and served the sentence for more than 8 years which shall be his period of sentence. As such he has served the sentence imposed by us except payment of fine. The fine and default sentence as imposed by the trial court is maintained.
17. In the result we make the following order:
(i) The conviction and sentence under Section 363, 366, and Section 4 of POCSO Act is confirmed.
The conviction under Section 506 IPC is set aside.
(ii) The conviction order made by the trial court and confirmed by the High Court under Section 376 D IPC is modified. The appellant is instead convicted under Section 376 IPC and is sentenced, for the period undergone. The fine and default sentence as imposed by the trial court shall remain unaltered.
(iii) Since the custody certificate dated 20.09.2013 indicates that the appellant has undergone sentence for more than 8 years, the appellant is ordered to be released on payment of fine as all the sentences have run concurrently and if he is not required to be detained in any other case.
(iv) The appeal is accordingly allowed in part.
(v) Pending application, if any, shall stand disposed of."
22. In view of the legal proposition, so culled out from the aforesaid judgments, the facts and the given circumstances of 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. Needless to point out that it is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The Apex Court has gone even to the extent that the 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. Moreover, 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.
23. Generally speaking, 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.
24. 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.
25. Since the learned counsel for the appellant has not 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 devoid of merit and is liable to be dismissed. Hence, the conviction of the appellant is upheld.
26. 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.
27. Learned AGA also admitted the fact that appellant is languishing in jail for the last more than 9 years and 9 months. Since, the appellant has already served about 9 years and 9 months in jail, ends of justice will be met if sentence is reduced to the period already undergone.
28. Hence, the sentence awarded to the appellant by the learned trial-court is modified as period already undergone and the fine of Rs.5,000/- and Rs.10,000/- imposed upon the appellant is reduced to Rs.500/- and Rs.1000/- respectively. In case of default of fine, the appellant shall undergo additional simple imprisonment of one month.
29. Accordingly, the appeal is partly allowed with the modification of the sentence, as above.
(Vikas Budhwar, J.) (Dr.Kaushal Jayendra Thaker, J.)
Order Date: 3.12.2021
N.S.Rathour