# Ahmad Sher v. State of U.P

- **Citation:** (2023) 5 ILRA 1370
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-28
- **Case number:** Criminal Appeal No. 4697 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ahmad-sher-v-state-of-u-p-50181
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 304 - deceased was tortured and
harassed by her in laws-for which civil suit filed
and continued for about seven years-ended in
compromise-in between accused appellant remarried with someone-when deceased reached
matrimonial home after the compromise-in laws
started harassing her for taking back the given
piece of land in compromise-deceased was done
to death by her husband-accused appellant with
help of his brother and second wife-death
caused was not premediated-accused though
had knowledge and intention-but did not
wanted to do away with the deceased-falls
under exception 1 & 4-culpable homicide not
amounting to murder-life imprisonment reduced
to 10 years of imprisonment.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

1370 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant and sentencing him. In my
considered opinion, the prosecution has
failed to prove its case against accused
appellant
beyond
reasonable
doubt.
Therefore, the judgement and order passed
by learned court below is not sustainable
and liable to be set aside.

17. Accordingly, this appeal succeeds
and is allowed. Impugned judgment and
order of conviction dated on 4.6.2018,
passed by learned Additional Sessions
Judge, Court No.1, Ghazipur, in Sessions
Trial No. 31 of 2016, State Vs. Pradeep
Bind, arising out of Case Crime No. 2058
of 2015, under Section 376-A IPC &
Section 3/5 of POCSO Act, Police Station
Kotwali, District Ghazipur is hereby, set
aside and accused appellant Pradeep Bind
is acquitted from charge under Section 376A IPC.

18. It is directed that the accused
appellant shall furnish a personal bond to
the satisfaction of court concerned and two
reliable sureties each in the like amount
before the trial court, which shall be
effective for a period of six months, along
with an undertaking that in the event of
filing of Special Leave Petition against the
instant judgment or for grant of leave, the
appellants on receipt of notice thereof
shall appear before the Hon'ble Supreme
Court.

19. 22. Let a copy of this judgment
along with lower court's record be sent
back to the court concerned for immediate
compliance and necessary action.
----------
(2023) 5 ILRA 1370
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.04.2023

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 4697 of 2015

Ahmad Sher ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Maohammd Nadeem, Sri Abhhishek
Tripathi, Sri Durgvijay

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 304 - deceased was tortured and
harassed by her in laws-for which civil suit filed
and continued for about seven years-ended in
compromise-in between accused appellant remarried with someone-when deceased reached
matrimonial home after the compromise-in laws
started harassing her for taking back the given
piece of land in compromise-deceased was done
to death by her husband-accused appellant with
help of his brother and second wife-death
caused was not premediated-accused though
had knowledge and intention-but did not
wanted to do away with the deceased-falls
under exception 1 & 4-culpable homicide not
amounting to murder-life imprisonment reduced
to 10 years of imprisonment.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Criminal Appeal No. 4345 of 2014 (Nafa Singh
Vs St. of U.P.) decided on 10.02.2023;

2. Criminal Appeal No. 5657 of 2011 (Santosh
Vs St. of U.P.)[4] decided on 22.02.2021;

3. Criminal Appeal No. 1838 to 840 of 2019 2022 0
Supreme (SC) 564 decided on 12.07.2022.

4. Criminal Appeal No. 923 of 2011 arising out
of S.L.P. (Crl.) No. 8847 of 2009 decided on
13.04.2011
5 All. Ahmad Sher Vs. State of U.P.
1371
5. Veeran & ors. Vs St. of M.P. Decided, (2011)
5 SCR 300

6. Mohd. Giasuddin Vs St. of A.P., [AIR 1977 SC
1926]

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

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

9. Jameel Vs St. of UP [(2010) 12 SCC 532]

10. Guru Basavraj Vs St. of Karn., [(2012) 8 SCC
734];

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

12. St. of Punjab Vs Bawa Singh, [(2015) 3 SCC
441],

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

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Umesh Chandra Sharma, J.)

1. Heard learned counsel for the
appellant and learned A.G.A. for the State.

2. Present criminal appeal challenges
judgment and order dated 24.9.2015 passed
by the Additional Sessions Judge, Fast
Track Court, Kannauj in Sessions Trial No.
121 of 2013 (State vs. Ahmad Sher)
whereby the learned Additional Sessions
Judge
has
convicted
the
accusedappellant, Ahmad Sher for commission of
offence under Section 304 of Indian
Penal Code, 1860 (for short 'IPC') and
sentenced him to undergo imprisonment
for life with fine of Rs.20,000/- and in
case of default in payment of fine, further
to
undergo
four
months'
additional
imprisonment.

3. Brief facts as culled out from the
record are that the accused-appellant was
married to the deceased 15-16 years prior
to the incident but soon after the marriage
deceased was being harassed and tortured
by her in-laws for which a civil suit was
filed which continued for about seven years
and ended in a compromise between the
parties. As per compromise, deceased was
given teen beegha land by her in-laws, in
between the years of civil suit accusedappellant married Hoorbano of his village
Sataura. When deceased reached her
matrimonial home after the compromise
had taken place between the parties again
her in-laws started harassing her for taking
back the given piece of land and on
08.10.2012 at about 12:00 p.m deceased
was done to death by her husband-accused
appellant herein with the help of his
brothers and second wife Hoorbano.

4. On the basis of F.I.R., the
investigation started and charge-sheet was
laid. The learned Magistrate summoned the
accused and committed the case to the
Sessions Court as the offences alleged to
have been committed were triable by the
Sessions Court. The learned Sessions Judge
framed charges under Section 304 of I.P.C.

5. On being summoned, the accused
pleaded not guilty and wanted to be tried.

6. The Trial started and the
prosecution examined 7 witnesses who are
as follows:

1 Deposition of Dildar
Beg
PW1
2 " " Ansar
PW2
3 " " Km. Sarjuman
PW3
4 " " Mohd. Jahar Ali
PW4
1372 INDIAN LAW REPORTS ALLAHABAD SERIES
5 " " Geetam Singh
PW5
6 " " Brij Kishor
PW6
7 " " Vinod Kumar Yadav PW7
8 " " Vijay Kumar
PW8

7. In support of ocular version
following documents were filed and proved
by prosecution:

1 F.I.R
Ex.Ka.11
2 Written Report
Ex.Ka.1
3 Postmortem Report
Ex.Ka.3
4 Panchayatnama
Ex.Ka.2
5 Charge-Sheet
Ex.Ka.7
6 Site Plan with Index
Ex.Ka.8
7 Recovery
memo
of
Blood stained & plain
earth
Ex.Ka.9
8 Recovery
memo
of
''Takora'
Ex.Ka.10

8. At the end of the trial, after
recording the statements of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the accused as mentioned above.

9. Learned counsel for the appellant
in the beginning contended that this is a
case of acquittal, however, in alternative he
has submitted that injuries were caused by
using blunt side of the axe and not the
sharp edge. The accused had pleaded that
he was mentally ill and had to be kept in
chains, the same part is not accepted by the
court below. It is further submitted by
learned counsel for the appellant that
conviction is based on presumption and is
bad as the appellant had no intention to do
away with the deceased. Learned counsel
for the appellant has relied on the following
authoritative judgments of the Apex Court:-

(i) Criminal Appeal No. 4345 of
2014 (Nafa Singh Vs. State of U.P.)
decided on 10.02.2023;

(ii) Criminal Appeal No. 5657
of 2011 (Santosh Vs. State of U.P.)
decided on 22.02.2021;

(iii) Criminal Appeal No. 1838
to 840 of 2019 2022 0 Supreme (SC) 564
decided on 12.07.2022.

(iv) Criminal Appeal No. 923 of
2011 arising out of S.L.P. (Crl.) No. 8847
of 2009 decided on 13.04.2011

to contend that this is case of
clear acquittal/if at all offence is made
out it is under Section 304 (1) of I.P.C.

10. Learned A.G.A. has submitted
that the statement under Section 313 Cr.P.C
is totally unreliable. It is further submitted
that it was a premeditated murder as she
was hurt by the accused-appellant and his
brothers and second wife to take away the
given land.

11. On hearing the arguments
advanced by the learned counsel for the
parties, two moot questions are to be
addressed by us namely whether the death
was homicidal death and whether the
offence would be punishable under Section
302 or 304 Part I or Part II or Section 304
B of Indian Penal Code. Before sifting the
evidence, it is relevant here to discuss the
law
pertaining
to
culpable
homicide
amounting to murder, culpable homicide
not amounting to murder and the dowry
5 All. Ahmad Sher Vs. State of U.P.
1373
death. Section 299 of the Indian Penal
Code, which reads as under:

"299.
Culpable
homicide:
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide."

12. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
loose sight of the true scope and meaning
of the terms used by the legislature in these
sections, and allow themselves to be drawn
into minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
is to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A
person
commits
culpable homicide if
the act by which the
death
is
caused
is
done-
Subject to certain
exceptions
culpable homicide
is murder if the act
by which the death
is caused is done.

INTENTION

(a) with the intention
of causing death; or
(1)
with
the
intention
of
causing death; or
(b) with the intention
of causing such bodily
injury as is likely to
(2)
with
the
intention
of
causing
such
cause death; or
bodily injury as the
offender knows to
be
likely
to
cause the death of
the
person
to
whom the harm is
caused;
KNOWLEDGE
KNOWLEDGE
(c) with the knowledge
that the act is likely to
cause death.
(4)
with
the
knowledge that the
act
is
so
immediately
dangerous
that it must in all
probability
cause
death
or
such
bodily injury as is
likely
to
cause
death, and without
any
excuse
for
incurring the risk
of causing death or
such injury as is
mentioned above.

13. From the upshot of the aforesaid
discussions, it appears that the death caused
by the accused was not premeditated,
accused
though
had
knowledge
and
intention that their act would cause bodily
harm to the deceased but did not want to do
away with the deceased. Hence the instant
case falls under the Exceptions 1 and 4 to
Section 300 of IPC. While considering
Section 299 as reproduced herein above
offence committed will fall under Section
304 Part-I as per the observations of the
Apex Court in Veeran and others Vs.
State of M.P. Decided, (2011) 5 SCR 300
which have to be also kept in mind.

14. This takes us to the alternative
submission of learned counsel for the
appellants that the quantum of sentence is
1374 INDIAN LAW REPORTS ALLAHABAD SERIES
too harsh and requires to be modified. In
this regard, we have to analyse the theory
of punishment prevailing in India.

15. 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 [11] rehabilitation of
the offender as a means of a social defence.
Hence a therapeutic, rather than an
'interrorem' 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."

16. '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
awardingsentence cannot be exercised
arbitrarily or whimsically.

17. 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
5 All. Smt. Neetu & Anr. Vs. State of U.P. & Ors.
1375
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.

18. 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.

19. 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.

20. The evidence on record will not
permit us to accept the submission of
learned counsel for the appellant that it is a
case of acquittal rather it was a homicidal
death proved by the evidence.

21. In view of the above, we hold that
the
accused
has
committed
culpable
homicide not amounting to murder. The
accused is punished to undergo rigorous
imprisonment for 10 years and fine of
Rs.5000/- which should be paid within four
week's of his release, if not paid default
sentence of three months. If 10 years'
incarceration is over, the Jail authority
would release the accused if not wanted in
any other offence.

22. This appeal is partly allowed.
The judgment and order by the learned
Sessions Judge shall stand modified to
the
aforesaid
extent.
Record
and
proceedings be sent back to the Court
below forthwith.
----------
(2023) 5 ILRA 1375
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SURENDRA SINGH-I, J.

Crl. Misc. Writ Petition No. 3701 of 2023

Smt. Neetu & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sanjay Kr. Srivastava

Counsel for the Respondents:
G.A., Sri Mithilesh Kumar Shukla

Criminal Law - Indian Penal Code,1860 -
Section 366 - Kidnapping, abducting or
inducing woman to compel her marriage -
Quashing of FIR - FIR was lodged by
husband of petitioner no. 1 - Informant's