# Amit Kumar Dubey (In Jail) v. State of U.P

- **Citation:** (2023) 2 ILRA 790
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-02
- **Case number:** Criminal Appeal No. 3592 of 2010
- **Bench:** Dr. Kaushal Jayendra Thaker, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-kumar-dubey-in-jail-v-state-of-u-p-49765
- **Pages:** 5

## Headnote

Criminal Law- Quantum of Punishment-
Doctrine
of
Proportionality-While
considering the evidence of witnesses and
the Postmortem report which states that
the injuries on the body of the deceased
would be the cause of death and that it
was homicidal death, we concur with the
finding of the Court below. 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 systemAll measures should be applied to give
them an opportunity of reformation in
order to bring them in the social stream-
'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.

As the criminal jurisprudence of our Country is
reformative and not retributive hence undue
harshness should be avoided, hence sentence of
the appellant modified accordingly.

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

790 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 2 ILRA 790
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.01.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 3592 of 2010

Amit Kumar Dubey ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sudeep Dwivedi, Sri Dinesh Kumar
Yadav, Sri A.R. Nadiwal

Counsel for the Opposite Party:
G.A.

Criminal Law- Quantum of Punishment-
Doctrine
of
Proportionality-While
considering the evidence of witnesses and
the Postmortem report which states that
the injuries on the body of the deceased
would be the cause of death and that it
was homicidal death, we concur with the
finding of the Court below. 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 systemAll measures should be applied to give
them an opportunity of reformation in
order to bring them in the social stream-
'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.

As the criminal jurisprudence of our Country is
reformative and not retributive hence undue
harshness should be avoided, hence sentence of
the appellant modified accordingly.

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

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

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

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

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. Heard Sri Sudeep Dwivedi, learned
counsel for the appellant and learned
A.G.A. for the State.

2. The present appeal challenges the
judgment and order dated 28.04.2010
passed by Additional Sessions Judge/Fast
Track Court No. 1, Mirzapur in Sessions
Trial No. 148 of 2009 (State Vs. Amit
Kumar Dubey) convicting and sentencing
the appellant alone under Section 498-A of
Indian Penal Code, 1860 (hereinafter
referred to as 'IPC') for three years simple
imprisonment with fine of Rs.5,000/-,
further sentenced him under Section 304-B
IPC for life imprisonment and also
sentenced him under Section 4 of Dowry
Prohibition Act with fine of Rs. 10,000/-.
In case of default of payment of fine,
further to undergo imprisonment for 6-6
months additional imprisonment.

3. Factual data as culled out from the
record is that a First Information Report
2 All. Amit Kumar Dubey Vs. State of U.P.
791
being Case Crime No. 45 of 2009 was
lodged on 13.03.2009 at Police Station
Padari, District Mirzapur on the complaint
made by one Uma Shanker, resident of
Village Mahdauri, Police Station Padari,
District Mirzapur, who stated that his
daughter namely Sunita Kumari was
married to Amit Kumar s/o Hajara, resident
of Ratnabo Chhitam Patti, Police Station
Padari, Mirzapur six years ago according to
Hindu Rites and Ritual. In the F.I.R. it was
mentioned that after three years of the
marriage, the husband of the deceased was
demanding a sum of Rs.50,000/- and
golden chain time and again and when his
demands were not fulfilled, his daughter
was being harassed and after beating her,
she was sent to parental home. His
daughter told regarding demand of Rs.
50,000/- by her husband. Thereafter on the
assurance of informant, her daughter was
taken away to his house by son-in-law. It is
further mentioned that the deceased was
harassed by his son-in-law. On being called
by her daughter, informant went to her
house and his daughter stated that in case
she will not take away to her home, they
will kill her. The informant taken away her
daughter to his home. In the year 2008 on
the occasion of Dhanteras, when the
informant went to the shop of his son-inlaw, he demanded the aforesaid money
from the informant and when the informant
asked some time, he was assaulted by knife
and he was injured. This incident was
registered at the police station. His
daughter was residing at his house. It is
further stated that on 13.12.2008, on the
pressure and assurance made by the Station
Officer, Police Station Padari that his
daughter shall be secured, his daughter was
sent with his son-in-law. On 10.03.2009,
his son Kamlesh went to meet his sister on
the occasion of Holi where Amit Kumar
and his grandmother met him but he was
refused to meet his sister and after saying
that she went to take medicine at Ganga,
his son Kamlesh was returned. On
12.03.2009 again his son Kamlesh went to
the house of his sister to meet her where he
was informed by Amit Kumar and his
grandmother that his sister did not return to
home. On 13.03.2009 at about 11.00 A.M.,
informant and his sons namely Kamlesh
and Suresh went to the house of Amit
Kumar and asked about his daughter, the
same fact was told. Then the informant
asked from neighbourer about his daughter
and he came to know that they heard
shrieks on being beaten by Amit and after
some time, she became mum. Thereafter he
alongwith his sons went to the room of
deceased where door was locked and some
smelling was coming out. On the request of
telephonic message, two constables came
on the spot and lock was broken then it was
found that his daughter was kept dead in
nagged condition. Thereafter F.I.R. was
lodged against Amit Kumar and his
grandmother.

4. On the aforesaid F.I.R., the
investigation was moved into motion.
The dead body was sent for postmortem
and wherein it was opined that the cause
of death was shock and hemorrhage due
to Ante mortem injuries and throttling.
The Investigation Officer recorded the
statements of several witnesses under
Section 161 of Cr.P.C. and submitted the
charge-sheet
against
the
accusedappellant under Sections 498A, 304 B of
I.P.C. and 3/4 of Dowry Prohibition Act.

5. The accused were facing charges
which were exclusively triable by the
Court of Sessions, hence, the case was
committed to the Court of Sessions,
where it was registered as S.T. No. 148 of
2009.
792 INDIAN LAW REPORTS ALLAHABAD SERIES

6. The learned Sessions Judge
charged
the
accused/appellant
under
Sections 498A, 304B I.P.C. and Section 3/4
Dowry
Prohibition
Act.
The
accused/appellant pleaded not guilty and
claimed to be tried. Hence, the trial started.
The
prosecution
examined
about
6
witnesses as follows:

1
Umashankar
PW1
2
Sunita Dubey
PW2
3
Dr. H.R. Maurya
PW3
4
Shiv Shankar Singh
PW4
5
Mahesh Singh Rana
PW5
6
Nanhe Lal Sangma
PW6

7. In support of ocular version
following documents were filed:

1
F.I.R.
Ex.Ka.14
2
Written Report
Ex.Ka.1
3
Kayami G.D.
Ex. Ka. 6
4
Sample Seal
Ex. Ka. 7
5
Letter to C.M.O.
Ex. Ka. 8
6
Photo Lash
Ext. Ka 9
7
Request letter of
Police
for
postmortem
Ext. Ka 10
8
Request letter of
Tehsildar
for
postmortem
Ext. Ka 11
9
Rapat
No.
17
Time 14.00
Ext. Ka 15
10 Ravangi
of
Constable HC 38
Nanhe Lal
Ext. Ka 16
11 Postmortem
Report
Ext. Ka 3
12 Panchayatnama
Ext. Ka 4
13 Site Plan
Ext. Ka 12
14 Charge sheet
Ext. Ka 13

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-appellant
as
mentioned above.

9. Learned counsel for the appellant
has submitted that the appellant has been
falsely implicated by the informant as there
was no demand of additional dowry on the
part of the appellant.

10. While taking us through the
judgment, when the Court was of this view
that the death was a homicidal death looking
to the medical evidence, learned counsel
requested for showing leniency in the matter
and seeks for lesser punishment as the
accused-appellant is in jail for more than 13
years. Learned counsel for the appellant has
relied on the decision of this Court in Criminal
Appeal No. 2895 of 2015 (Manoj Sharma vs.
State of U.P.) decided on 9.12.2022.

11. As against this, learned A.G.A. states
that this is a gross case where the deceased
was done to death by the accused-appellant.
There were 21 injuries found on the body of
the deceased. Hence, no leniency can be
shown to the accused-appellant by this Court.

12. While considering the evidence of
witnesses and the Postmortem report which
states that the injuries on the body of the
deceased would be the cause of death and
that it was homicidal death, we concur with
the finding of the Court below. However it
is to be seen whether the quantum of
sentence is too harsh and requires to be
modified. In this regard, we have to analyse
the theory of punishment prevailing in
India.

13. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
2 All. Amit Kumar Dubey Vs. State of U.P.
793
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."

14. '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 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
794 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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.

18. In view of the above, the findings
of facts by the Court below are not
disturbed. However, as far as punishment is
concerned, we substitute the same to 10
years' rigorous imprisonment. Sentence
under Section 498A of IPC and Section 4
of Dowry Prohibition Act has already been
completed by the accused-appellant. Fine
and default is maintained. As 10 years'
imprisonment is already over, the accusedappellant be set free forthwith, if not
wanted in any other case. He will deposit
the fine within four weeks from the date of
release and in case fine is not deposited he
will be re-incarcerated for the period of
default sentence.

19. In view of the above, the appeal is
partly allowed. Judgment and order passed
by the learned Sessions Judge shall stand
modified to the aforesaid extent. Record be
sent back to the Court below forthwith.
----------
(2023) 2 ILRA 794
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.01.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 7783 of 2010

Dharmendra & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri S.C. Tiwari, Sri Swatashwa Agarwal, Sri
Swayamanand Sisodiya, Sri Kamlesh Kumar
Tripathi

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 32- Multiple Dying Declarations-
The husband has taken her to the hospital
and even her dying declaration dated
1.5.2008 before the Naib Tehsildar has
been believed by the trial court. There is
no allegation against the mother-in-law
and father-in-law and even the husband.
However, in the second dying declaration,
allegation has been levelled against the