# Anees @ Gama & Ors v. State of U.P

- **Citation:** (2023) 3 ILRA 966
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-14
- **Case number:** Criminal Appeal No. 5347 of 2010
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anees-gama-ors-v-state-of-u-p-49889
- **Pages:** 6

## Headnote

A. Criminal Law- Indian Penal Code,
1860 - Section 149 - There was
common intention or object to do away
with
the
deceased,
there
was
no
premeditation of minds as the F.I.R.
St.s that the deceased had gone to the
residence of the accused to demand his
money and that infuriated the accused
and non lethal weapon was used,
deceased did not receive any fire arm
injury nor was a fire arm used, the
deceased did not succumbed to the
injuries on the spot, during treatment,
he was declared dead, the offence
cannot be punished under Section 149
I.P.C. (Para 22)
3 All. Anees @ Gama & Ors. Vs. State of U.P.
967
B. Criminal Law- Indian Penal Code, 1860
- Sections 300, 302 & 304 - The accused
was
not
premeditated,
though
had
knowledge and intention to 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 I.P.C- Held -
offence is not punishable under Section
302 of I.P.C. but is culpable homicide not
amounting to murder, punishable under
Section 304 Part I of I.P.C. (Para 18, 20)

The appeal is partly allowed. (E-13)

List of Cases cited:

## Text

966 INDIAN LAW REPORTS ALLAHABAD SERIES
would be to hold that the accused is to
undergo 13 years of incarceration u/s 304
I.P.C. This Bench is further fortified in its
view by the judgement in the case of Pintu
Gupta (supra) where the Court, after
considering all facts and circumstances on
proper sentence as on the basis of
reformative theory, gave incarceration of 9
years to be just and proper. In this case the
lust act was committed by accused Ateek
Ahmad,
the
main
conspirator,
and,
therefore, there is no question of showing
leniency but a fixed term incarceration
would be just and proper.

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. As far as Section 452 I.P.C. is
concerned,
the
accused
has
already
undergone incarceration of 5 years; as far
as Section 326 I.P.C. is concerned she has
already been in jail for 10 years, therefore
all that remains to be decided is the
sentence u/s 304 I.P.C., namely, life
sentence. We substitute the life sentence to
fixed period of 13 years. Fine and default
sentence maintained. The accused be set
free
on
completing
13
years
of
incarceration with remission.

19. In view of the above, the appeal is
partly allowed. Judgment and order dated
10.10.2012, passed by the learned Sessions
Judge, shall stand modified to the aforesaid
extent. Record be sent back to the Court
below forthwith.

20. This Court is thankful to Sri
Mohd. Kalim and Ms. Mary Puncha,
learned counsel.
----------
(2023) 3 ILRA 966
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

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

Criminal Appeal No. 5347 of 2010

Anees @ Gama & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri N.I. Jafri, Sri Ajay Kumar Mishra, Ms.
Akanksha Yadav, Sri Anil Raghav, Sri J.M. Nasir,
Sri Mohd. Khalil, Sri Noor Mohammad, Sri
Yogesh Srivastava

Counsel for the Respondent:
G.A., Sri Lokesh Kumar Mishra

A. Criminal Law- Indian Penal Code,
1860 - Section 149 - There was
common intention or object to do away
with
the
deceased,
there
was
no
premeditation of minds as the F.I.R.
St.s that the deceased had gone to the
residence of the accused to demand his
money and that infuriated the accused
and non lethal weapon was used,
deceased did not receive any fire arm
injury nor was a fire arm used, the
deceased did not succumbed to the
injuries on the spot, during treatment,
he was declared dead, the offence
cannot be punished under Section 149
I.P.C. (Para 22)
3 All. Anees @ Gama & Ors. Vs. State of U.P.
967
B. Criminal Law- Indian Penal Code, 1860
- Sections 300, 302 & 304 - The accused
was
not
premeditated,
though
had
knowledge and intention to 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 I.P.C- Held -
offence is not punishable under Section
302 of I.P.C. but is culpable homicide not
amounting to murder, punishable under
Section 304 Part I of I.P.C. (Para 18, 20)

The appeal is partly allowed. (E-13)

List of Cases cited:

1. Santosh Vs St. of U.P. (Criminal Appeal No.
5657 of 2011)

2. Hardev Singh & anr. Vs St. of Punj., AIR 1975
SC 179

3. Zahoor & Others Vs St. of U.P., 2011 (15) SCC
218

4. Kandhai & ors. Vs St. of U.P., 2014 (0)
Supreme (All) 2597

5. Ram Roop Vs St. of U.P.

6. Smt. Rama Devi Vs St. of U.P., 2017 (0)
Supreme (All) 2554

7. Bengai Mandal @ Begai Mandal Vs St. of
Bihar, 2010 (1) Supreme 49

8. Sampat Babso Kale & anr. Vs St. of Mah.,
2019 0 Supreme (SC) 415

9. Dukhmochan Pandey Vs St. of Bihar, 1997
LawSuit, (SC) 1219

10. Jainul Haque Vs St. of Bihar, AIR 1974 SC 45

11. K. Ramachandra Reddy Vs Public Prosecutor,
1976 LawSuit (SC) 214

12. Sanjay Maurya Vs St. of U.P., 2021 (0)
Supreme (All) 132

13. Tukaram & ors. Vs St. of Maharashtra.
reported in (2011) 4 SCC 250
14. B.N. Kavatakar & anr.Vs St. of Karn.
reported in 1994 SUPP (1) SCC 304

15. Veeran & ors. Vs St. of M.P. Decided, (2011)
5 SCR 300

16. Anversinh Vs St. of Guj., (2021) 3 SCC 12

17. Pravat Chandra Mohanty Vs St. of Odisha,
(2021) 3 SCC 529

18. Pardeshiram Vs St. of M.P., (2021) 3 SCC
238

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Ajit Singh, J.)

1. Heard Sri Ajay Kumar Mishra,
learned counsel for the appellants and
learned A.G.A. for the State. Sri Lokesh
Kumar Mishra, learned counsel for the
informant has absented himself.

2. This appeal challenges the
judgment and order dated 5.8.2010 passed
by Additional Sessions Judge Fast Track
Court No.1, Meerut in Sessions Trial No.
735 of 1997 (State vs. Anees and others)
convicting
accused-appellants
under
Section 302/149 of Indian Penal Code,
1860 (hereinafter referred to as 'IPC') and
sentenced
the
accused-appellants
to
undergo imprisonment for life with fine of
Rs.2,000/- each and in case of default of
payment of fine, further to undergo
imprisonment for a period of two years.

3. The five accused were alleged to
have committed an offence, on 15.4.1997
when all of them pursuant to their common
intention to do away with Ajeej s/o Ahmad
Majeed, who had borrowed the sum of
Rs.50,000/- from one Anees @ Gama. On
15.4.1997 at about 6:00 PM, when
informant and his brother went the
residence of Anees @ Gama for getting
back the money. At that time, Anees @
968 INDIAN LAW REPORTS ALLAHABAD SERIES
Gama holding an iron rod, Nasreen also
had an iron rod, Firoz was having a brick,
Nafees had stick in his hand and Hafeez
Khurshid, Ujer and Anees @ Gama tried to
assault the persons and exalted that as the
deceased and his brother were daily
demanding money, they be done to death. A
quarrel ensued between the parties. Anees
@ Gama did away with Ajeej on F.I.R.
being lodged, the prosecution was moved
into motion and accused were alleged to
have committed an offence under Section
147, 148 read with section 302 I.P.C.

4. On investigation being put into
motion, the investigating officer recorded
the statements of all the witnesses and
submitted the charge-sheet to the learned
Magistrate.
The
learned
Magistrate
summoned the accused and committed to
them to Court of Sessions as prima facie
charges were for offences under Sections
302 I.P.C.

5. On being summoned, the accusedpersons pleaded not guilty and wanted to be
tried. The Trial started and the prosecution
examined 6 witnesses who are as follows:

1
Mohd. Tahir
PW1
2
Summar Ahmad
PW2
3
Dr. N. Nathani
PW3
4
Dev Dutt Sharma
PW4
5
Sagir Ahmad
PW5
6
Ranvir Singh
PW6

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

1
F.I.R.
Ex.Ka.3
2
Written Report
 Ex.Ka.4
3
Recovery memo
Ex.
Ka.6,
7, 8 & 16
4
Postmortem Report
Ex.Ka.2
5
Site Plan
Ex.Ka.9

7. After prosecution witness were
over and the documents being exhibited,
the accused-appellants examined D.W.-1 &
2 namely, Mohd. Yamin and Mohd.
Nausad. At the end of the trial and after
recording the statement 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 appellants as mentioned
aforesaid.

8. The main assailant Anees @ Gama
has passed away during the pendency of
this appeal. The other co-accused, who is
assigned the role and portrayed as Nasreen
@ Naseem, Firoz and Uzair. The three
accused, who have been assigned the role
of doing away with the deceased, the
accused have been tried for commission of
offence under Section 302 read with section
149 I.P.C. and have been convicted for the
same.

9. Learned counsel for the appellants
has submitted that the alteration of charge,
after the trial was over, could not have been
framed and this is bad in the eye of law. In
support of this submission he has relied on
the decision of the Division Bench of this
Court penned by one of us (Dr. K.J.
Thaker) in Criminal Appeal No. 5657 of
2011 (Santosh vs. State of U.P.) decided
on 22.2.2021. Charges could not have been
re-framed so as to take it to the higher
charge.

10. It is further submitted that the
incident occurred at the spur of moment.
3 All. Anees @ Gama & Ors. Vs. State of U.P.
969
There is no premeditation between the
accused to do away with the deceased. It
was only after the deceased demanded the
amount of Rs.50,000/- borrowed from him,
which caused this incident to occur.

11. It is further submitted that
conviction under Section 302 is not made
out. In alternative, it is submitted that at the
most, the death can be homicidal death not
amounting to murder and punishable under
Section 304 II or Section 304 I of I.P.C. If
the Court decides that the accused is guilty,
then the accused may be granted fixed term
punishment of incarceration.

12. In support of his arguments,
learned counsel for the appellant has relied
on the decisions in Hardev Singh and
another vs. State of Punjab, AIR 1975
SC 179, Zahoor & Others Vs. State of
U.P., 2011 (15) SCC 218 and Kandhai &
Others Vs. State of U.P., 2014 (0)
Supreme (All) 2597, decisions of this
Court in Criminal Appeal No.4722 of 2015
Ram Roop Vs. State of U.P., Smt. Rama
Devi Vs. State of U.P., 2017 (0) Supreme
(All) 2554, Bengai Mandal @ Begai
Mandal vs. State of Bihar, 2010 (1)
Supreme 49, Sampat Babso Kale and
Anr. Vs. State of Maharashtra, 2019 0
Supreme (SC) 415, Dukhmochan Pandey
vs. State of Bihar, 1997 LawSuit, (SC)
1219 & Jainul Haque v. State of Bihar,
AIR 1974 SC 45, K. Ramachandra
Reddy vs. Public Prosecutor, 1976
LawSuit (SC) 214, Sanjay Maurya vs.
State of U.P., 2021 (0) Supreme (All) 132.

13. Learned counsel for the State has
submitted that though role of surviving
accused is not that of assailants, the
punishment with the aid of Section 149 of
IPC will not permit this Court to show any
leniency in the matter. It is further
submitted by learned A.G.A. that the
decisions referred by counsel for the
appellants will not apply to the facts of this
case.

14. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind about the
guilt of the present appellants. The
conviction under Section 302 I.P.C. is bad
in the eye of law and the matter would fall
within Section 304(I) of I.P.C.

15. However, the question which falls
for our consideration is whether, on
reappraisal of the peculiar facts and
circumstances of the case, the conviction of
the appellant under Section 302 of I.P.C. of
the Indian Penal Code should be upheld or
the conviction deserves to be converted
under Section 304 Part-I or Part-II of the
Indian Penal Code. It would be relevant to
refer Section 299 of the Indian Penal Code,
which read 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."

16. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
970 INDIAN LAW REPORTS ALLAHABAD SERIES
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 cause
death; or
 (2) with the intention
of causing such 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.

17. On overall scrutiny of the facts
and circumstances of the present case
coupled with the opinion of the Medical
Officer and considering the principle laid
down by the Apex Court in the Case of
Tukaram
and
Ors
Vs.
State
of
Maharashtra, reported in (2011) 4 SCC
250 and in the case of B.N. Kavatakar and
Another Vs. State of Karnataka, reported
in 1994 SUPP (1) SCC 304, we are of the
considered opinion that it was a case of
homicidal death not amounting to murder.

18. 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 to 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 PartI 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.

19. In latest decision in Khokan@
Khokhan (Supra) where the facts were
similar to this case, the Apex Court has
allowed
the
appeal
of
the
accused
appellant. The decision of the Apex Court
in the case of Anversinh v. State of
Gujarat, (2021) 3 SCC 12 which was
related to kidnapping from legal guardian,
wherein it was established that the Court
while respecting the concerns of both
society and victim, propounded that the
twin principle of deterrence and correction
would be served by reducing the period of
incarceration already undergone by the
accused. In our case, this is not that
gruesome matter where the accused cannot
3 All. Dharamvir & Anr. Vs. State of U.P.
971
be dealt with in light of all these judgments.
Judgments in Pravat Chandra Mohanty
v. State of Odisha, (2021) 3 SCC 529 &
Pardeshiram v. State of M.P., (2021) 3
SCC 238 will also enure for the benefit of
the accused.

20. The judgments cited by the
learned counsel for the appellant and facts
and evidence as sited above, would permit
us to uphold our finding which we
conclusively hold that the offence is not
punishable as per Section 302 of I.P.C. but
is culpable homicide not amounting to
murder, punishable U/s 304 (Part I) of
I.P.C.

21. We now come to the role of the
accused-appellants. All the four accusedappellants were convicted for the offence
punishable under Section 302 read with
Section 149 of IPC.

22. On perusal of the record in the
light of Section 149 of I.P.C., It cannot be
said that there was common intention or
object to do away with the deceased. There
was no premeditation of minds as the F.I.R.
itself states that the deceased had gone to
the residence of the accused to demand his
money and that infuriated the accused and
non lethal weapon was used though a
cartridge and a country made pistol has
been recovered from the accused Anees @
Gama but while going through the record
and while going through the post-mortem
report, while going through the medical
report it is very clear that fire arm is not
used and the deceased did not receive any
fire arm injury nor was a fire arm used,
which shows that there was no intention of
doing away with the deceased and the
object was only to teach a lesson to the
deceased. The deceased did not succumbed
to the injuries on the spot, the informant @
brother of the deceased took him to the
hospital and during treatment, he was
declared dead. Therefore, the offence
cannot be said to be one under which can
be punished with the aid of Section 149
I.P.C.

23. The accused-appellants are
convicted for culpable homicide not
amounting to murder with punishment of
sentence of ten years and fine of Rs.1,000/-
each. If the fine is not paid, default
sentence of three months, which would
start after the tenth year of incarceration.
The ten years of incarceration would be
with remission.

24. The appeal is partly allowed. In
view of the matter, the case would fall
within Section 304-I I.P.C. Fine substituted
to Rs.1,000/- each and if the fine is not
paid, the default sentence would start after
ten years of incarceration with remission. If
the accused has served out their period,
they released.

25. Record and proceedings be sent
back to the Court below forthwith.

26. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2023) 3 ILRA 971
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAJIV JOSHI, J.

Criminal Appeal No. 5567 of 2011

Dharamvir & Anr. ...Appellants
Versus
State of U.P. ...Respondent