# Ashok (In Jail) v. State of U.P

- **Citation:** (2023) 3 ILRA 753
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-04
- **Case number:** Criminal Appeal No. 7842 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-in-jail-v-state-of-u-p-49824
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 304 - Murder - The Code of
Criminal Procedure, 1973 - Sections 313 -
Evidence Act, 1872 - Section 27 - Appeal
against
conviction
-
Prosecution
has
examined 8 witnesses - Held, all the three
witnesses of fact proved their presence at
the time of incident - Their St.ments
established that incident occured on the
issue of collecting sand on roof and the
accused inflicted three fatal blows of
Takora (axe) from the back on the head of
the deceased and he died - The ocular
evidence
of
witnesses
and
the
postmortem report shows that injuries
were cause of death and it was homicidal
death - St.ment of the witnesses are
consistent
and
there
are
no
major
contradictions - All the three witnesses
are related to each other and with the
deceased, their testimony is trustworthy,
as they were the eye-witnesses - Accused
has failed to prove any enmity with the
deceased or witnesses - Evidence adduced
by prosecution has established the case
beyond reasonable doubts - Death was
not premeditated, accused had knowledge
and intention that his act would cause
bodily harm to the deceased, but did not
want to do away with the deceased -
Hence, offence is not punishable u/s 302
of
I.P.C.
but
culpable
homicide
not
amounting to murder, punishable u/s 304
(I) of I.P.C (Para 9, 17, 34, 38, 39 )

Appeal is partly allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,286 of 41,596. This is a partial read: ask again with offset=39286 for what follows._

3 All. Ashok Vs. State of U.P.
753
(2023) 3 ILRA 753
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.01.2023

BEFORE

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

Criminal Appeal No. 7842 of 2017

Ashok ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Arun Kumar Tripathi, Sri Shashank
Maurya, Sri K.K. Singh

Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 304 - Murder - The Code of
Criminal Procedure, 1973 - Sections 313 -
Evidence Act, 1872 - Section 27 - Appeal
against
conviction
-
Prosecution
has
examined 8 witnesses - Held, all the three
witnesses of fact proved their presence at
the time of incident - Their St.ments
established that incident occured on the
issue of collecting sand on roof and the
accused inflicted three fatal blows of
Takora (axe) from the back on the head of
the deceased and he died - The ocular
evidence
of
witnesses
and
the
postmortem report shows that injuries
were cause of death and it was homicidal
death - St.ment of the witnesses are
consistent
and
there
are
no
major
contradictions - All the three witnesses
are related to each other and with the
deceased, their testimony is trustworthy,
as they were the eye-witnesses - Accused
has failed to prove any enmity with the
deceased or witnesses - Evidence adduced
by prosecution has established the case
beyond reasonable doubts - Death was
not premeditated, accused had knowledge
and intention that his act would cause
bodily harm to the deceased, but did not
want to do away with the deceased -
Hence, offence is not punishable u/s 302
of
I.P.C.
but
culpable
homicide
not
amounting to murder, punishable u/s 304
(I) of I.P.C (Para 9, 17, 34, 38, 39 )

Appeal is partly allowed. (E-13)

List of Cases cited:

1. Appa Bhai Vs St. of Guj., AIR 1988 S.C. 696

2. Ashok Kumar Chaudhary Vs St. of Bihar, 2008
(61) ACC 972

3. Veeran & ors. Vs St. of M.P. (2011) 5 SCR 300

4. Tukaram & ors.Vs St. of Mah., reported in
(2011) 4 SCC 250

5. B.N. Kavatakar & anr. Vs St. of Karn.,
reported in 1994 SUPP (1) SCC 304

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 U.P. , (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 Punj. Vs Bawa Singh, (2015) 3 SCC
441

13. Raj Bala vs St. of Har., (2016) 1 SCC 463

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

1. Heard Sri K.K. Singh, learned
Advocate appearing for Sri Shashank
754 INDIAN LAW REPORTS ALLAHABAD SERIES
Maurya, learned counsel for the appellant
and Sri Nagendra Kumar Srivastava,
learned A.G.A. for the State.

2. Though learned counsel for the
appellant has made submissions to press
upon the bail application on the ground that
the appellant has been incarcerating in jail
since 2012 and there possibility of disposal
of the appeal in near future is very bleak.
As far as bail is concerned, we have gone
through the record, the judgment impugned
and the factual data, however, having
regard to the submissions made by the
learned counsel for appellant and his period
of incarceration, in the interest of justice, it
will be appropriate that appeal itself be
heard and decided finally on merits.
Accordingly, we proceed to decide this
appeal finally.

3. This appeal challenges the
judgment and order dated 5.8.2015 passed
by
Special
Judge
D.A.A./Additional
Sessions Judge, Room No.3, Farrukhabad
in Sessions Trial No.234 of 2012 (State vs.
Ashok) whereby the learned Sessions Judge
has convicted accused-appellant, Ashok,
under Section 302 of Indian Penal Code,
1860 (hereinafter referred to as 'IPC') and
sentenced him to undergo imprisonment for
life with fine of Rs.50,000/- and, in case of
default in payment of fine further to
undergo one year's simple imprisonment.

4. Succinctly, the facts of prosecution
story are that a first information report has
been lodged on 19.8.2012 at about 13.10
A.M. against the accused/ appellant Ashok
under sections 304 IPC by the informant
Smt.

Suneeta, for the murder of her
husband, divulging the fact that the
complainant
in
association
with
her
husband Sikandar and her two kids Preeti
and Vishal, was accumulating sand on the
roof of her house. Her real Devar
(husband's brother) Ashok, who was having
his house just contiguous to her house,
intercepted stating that not a single particle
of sand should come on his side. On this
issue, he started abusing in filthy language
and casting threats and intimidation to life
and
property.
The
husband
of
the
complainant proceeded to call his father
from his field. The accused appellant could
not digest his anger and ire and chased him
from
behind.
The
complainant,
her
daughter (Preeti) and her son (Vishal) went
ahead on account of fear apprehending that
the accused appellant getting to the victim
all alone may attack upon his person. The
accused/ appellant and the victim reached
inside
Karaundha
garden
of
Dileep
Maurya.
There
again
they
ensued
querelling and scuffling. The complainant
and her children raised shriek and noise and
tried to shield the victim. The accused/
appellant (Ashok) was equipped with a
Takora (Axe) in his hand, hit the husband
of the complainant Sikander, from back
side. As a result of which victim sustained
fatal injuries on account of piercing the axe
in his head. The victim fell down on the
ground in a serious condition and the
accused appellant fled away from the place
of occurrence. The complainant with the
help of Vinod, (another brother of victim
and the assailant) brought the injured
Sikandar
at
the
Lohiya
Hospital,
Farrukhabad and admitted him there. The
injured was examined in the hospital.
Thereafter he was referred for treatment at
Kanpur. While proceeding to Kanpur, in
the way, a little ahead of Kannauj he
succumbed to injuries. The corpse of
Sikander was brought back to Lohiya
Hospital and kept inside the mortuary. On
the basis of a writen application (Ext. Ka-
3 All. Ashok Vs. State of U.P.
755
1) by complainant. Case Crime No. 236 of
2013, under Section 304 I.P.C. was
registered
at
P.S.
Maudarwaja,
Farrukhabad. The details of the incident
was entered in the chick FIR (Ext. Ka- 9)
and the same was entered in general diary
(G.D.) the corbon copy of the same was
prepared. The initial investigation was
entrusted to S.I. Jag Mohan Singh.

5. On investigation being put into
motion the investigating officer recorded
the statement of witnesses, prepared site
map,
gathered
from
the
place
of
occurrence, in the presence of witnesses,
blood stained and plain soil and prepared
memos for the same. The accused/
appellant was taken into police custody on
19.08.2012 and his statement was recorded
on 19.8.2012 at about 5.00 p.m. The
statement of the accused appellant was
recorded in police custody. During the
course of recording his statement, he
unfolded that the axe used in executing the
alleged crime was hidden by him beneath a
tree
in
Karaundha
garden.
On
his
disclosure, he was taken to the said garden
and in the presence of witnesses Balbir and
Dhaniram, the said axe (Physical Ext. 1)
was discovered at the pointing of the
accused/
appellant,
after
excavating
beneath a tree at Karaundha garden. The
blood was saturated on the side of edge and
the soil was also stuck in the axe at some
places. The description of the said axe was
scribed in the recovery memo (Ext. Ka- 5)
on which the signature of the witnesses
were obtained. Recovery memo was
prepared by I.O. The investigation officer
also prepared site map (Ext. Ka- 6) of the
place of recovery.

6. The information about the death
(Ext. Ka.15) of the deceased was received
from Lohiya Hospital on 19.8.2012. The
inquest (Ext. Ka.11), of the deceased
Sikander was conducted on 19.8.2012 at
12.30. According to the opinion of the
witnesses of the inquest, the death of victim
Sikander happened on account of fatal
injuries inflicted on his head. However, to
know the real cause of death, it is necessary
to conduct post-mortem of the deceased
body. Therefore, after carrying out the
necessary formalities including handing
over of letter of C.M.O (Ext.Ka.12), Photo
Lash
(Ext.Ka.13),
Lash
Challan
(Ext.Ka.14), etc., the body of the deceased
Sikander was duly wrapped in the cloth and
sealed and taken to the mortuary for
autopsy. The documents concerned, were
handed over to Constable 663 Ram Nazar
and Constable 707 Pratap Bhan. The post
mortem of the deceased Sikander was
conducted on 19.8.2012 at about 3.00 p.m.
by doctor V.V. Pushkar. The post mortem
report (Ext. Ka. 2) of the deceased was
prepared by the Dr. V.V. Pushkar.

7. Later investigation was transferred
to 2nd Investigating Officer S.I. Anoop
Kumar.
After
due
investigation
and
collecting the credible and clinching
material
and
evidence
showing
the
complicity of the accused/ appellant, the
charge sheet (Ext. Ka.8) under sections 304
IPC was submitted by Investigating Officer
(I.O.) before the learned Chief Judicial
Magistrate
Farrukhabad,
who
took
cognizance of the offence under section
304 IPC. on 09.10.2012. Since the offence
was exclusively triable by the court of
Sessions, hence committed to the Court of
Sessions Farrukhabad. The learned Court
of Sessions transferred it, to the court of
Special Judge (D.A.A.) Farrukhabad, for
trial.

8. On 05.02. 2013 the learned
Additional Sessions Judge framed charge,
756 INDIAN LAW REPORTS ALLAHABAD SERIES
against the accused/ appellant under section
304 IPC. Later on 13.12.2013 an alternative
charge under Section 302 I.P.C. was also
framed. Both the charges were read over
and explained to accused/ appellant. He
pleaded not guilty and claimed to be tried.

9. To bring the charges home, the
prosecution examined as many as eight
witnesses who are follows:-

1
Smt. Sunita
PW1
2
Preeti
PW2
3
Dr. V.V. Pushkar
PW3
4
Vishal
PW4
5
S.I. Jagmohan
PW5
6
S.I. Anoop Kumar
PW6
7
HCP 174-Ishwar Dayal
PW7
8
Constable
Dhanpal
Singh
PW8

10. In support of ocular version,
following documents were also filed and
proved:-

Sl.No
.
Particulars
Exhibit
No.
Prove
d by
1
Written Report
(Tahrir)
Ex.Ka.1 P.W. 1
2
Postmortem
Report
Ext.
Ka. 2
P.W. 3
3
Site
Plan
-
place
of
occurrence
Ex.Ka.3 P.W. 5
4
Recovery
memo
blood
stained
and
plain soil
Ex.Ka.
4
P.W. 5
5
Recovery
memo of the
weapon
of
crime
Ext.
Ka. 5
P.W. 5
6
Site plan place
of recovery
Ext.Ka.
6
P.W. 5
7
Arresting
memo
of
accused
Ext.
Ka. 7
P.W. 5
8
Charge-sheet
Ext.
Ka. 8
P.W. 6
9
Chik F.I.R.
Ext.
Ka.- 9
P.W. 7
10
Carbon
copy
kaimi G.D.
Ext.
Ka.-10
P.W. 7
11
Panchayatnam
a
Ext.
Ka.-11
P.W. 8
12
Letter
of
request
to
C.M.O.
Ext.
Ka. 12
P.W. 8
13
Photo
dead
body
Ext.
Ka. 13
P.W. 8
14
Details of the
deceased
Ext.
Ka. 14
P.W. 8
15
Death
information by
the hospital
Ext.
Ka. 15
P.W. 8
16
Arresting G.D.
Ext.
Ka. 16
P.W. 7
17
Weapon used
in committing
offence (Axe)
Physica
l Ext.1
P.W. 5

11. On completion of prosecution
evidence, the statement of the accused
under Section 313 of Cr.P.C. was recorded
wherein he stated that statement of
witnesses are false and untrue, he pleaded
innocence and taken the defence of enmity
for false implication in a manufactured
false case. The defence has not adduced
any evidence.

12. After hearing arguments on behalf
of prosecution and the defence, the learned
Additional Sessions Judge convicted the
accused/ appellant as mentioned above vide
judgement and order dated 05.08.2015.
Aggrieved by the said judgement the
accused appellant preferred the present
appeal.
3 All. Ashok Vs. State of U.P.
757

13. In order to deal with the present
appeal, it is pertinent, first, to analyse the
prosecution evidence. Prosecution has
examined three witnesses of facts namely
P.W.1 Smt. Suneeta, who is informant and
eye-witness, Pw- 2 Preeti and Pw- 4 Vishal
who are also the eye witnesses of facts.

14. In her examination Pw- 1 Smt.
Suneeta has stated on oath that she, in
association with her husband Sikander and
her two children Pw- 2 Preeti and Pw- 4
Vishal, was accumulating sand on the roof
of their house. Her Devar (brother of her
husband) accused/ appellant Ashok, who
was having his house adjacent to her house,
intercepted stating that not a single particle
of sand should come on his side. On this
issue, he started abusing them in filthy
language, casting threats and intimidation
to their life and property. Her husband
proceeded to call his father from the field,
but the accused could not digest his anger
and ire and followed him. The complainant,
her daughter Preeti and son Vishal went
ahead on account of fear apprehending that
the accused appellant getting the victim all
alone, may attack upon his person. The
accused appellant and the victim reached
inside
Karaundha
garden
of
Dileep
Maurya, there again the accused appellant
and
her
husband
Sikander
ensued
querelling and scuffling. The complainant
and her children raised shriek and noise and
tried to shield to the victim. The accused
appellant (Ashok) was equipped with
Takora (Axe) in his hand, hit the Sikander
from his back side on his head. He gave
three blows of the axe on his head. Piercing
axe in these injuries. As a result of which
victim sustained fatal injuries in his head.
He fell down on the ground in a serious
condition and the accused/ appellant fled
away from the place of occurrence,
extending threats and intimidation to them.
The complainant, with the help of Vinod,
her another Devar P.W. 1, brought the
injured at the Lohiya Hospital Farrukhabad.
The injured was examined there and later
referred to Kanpur for treatment. While
proceeding to Kanpur, in the way a little
ahead of Kannnauj, the victim succumbed
to his injuries. The corpse of the deceased
Sikander was brought back to Lohiya
Hospital. The panchnama of deceased
Sikander
was
conducted
there.
The
complainant got scribed on a paper the
information about incident, whereupon her
thumb impression was obtained. She
proved the Tahrir (written complaint) as
Ext. Ka- 1. The I.O. had visited the place of
occurrence on her discloser, she aided. And
inquest of her husband was conducted at
Lohiya Hospital, Farrukhabad.

15. Pw- 2 Preeti and Pw- 4 Vishal are
the children of the deceased aged about 16
years and 12 years at the time of recording
their evidence in the court respectively.
They stated that they were present at the
scene of occurrence at the time of incident
at about 6.30 a.m on 19.08.2012. Some
quarrel had taken place between their father
and uncle Ashok on the issue of collection
of sand on the roof, whose house is
adjacent to their house. The uncle objected
the accumulation and threatened that not a
single particle of the sand should come
towards his side. Thereafter their father
went to call his father (their Baba) from the
field. They and their mother chased their
father on the apprehension that the uncle
Ashok may getting to the victim all alone,
may attack upon his person. Ashoka
followed their father with and Takora,
when they reached Karaundha garden of
Dileep Mauriya there again Ashoka and
their father Sikander ensued quarreally and
scuffling. They raised shriek and noise to
shield their father. He gave three blows of
758 INDIAN LAW REPORTS ALLAHABAD SERIES
axe piercing in the head of their father from
the back side. As a result of which their
father sustained three fatal injuries in the
head. He fell down and uncle Ashok fled
away there from. Their mother with the
help of uncle Vinod carry their father to the
hospital to Ram Manohar Lohiya Hospital,
Farrukhabad for treatment. Where from he
was sent to Kanpur but in the way he died.

16. The learned counsel for defence
throughly cross-examined P.W. 1 Sunita,
P.W. 2 Preeti and P.W. 4 Vishal. In their
cross-examination
all
the
witnesses
reiterated that all of them were present at
the place of occurrence at the time of
incident. They are eye witnesses of the
occurrence. P.W. 1 stated that when her
husband left his house the accused
followed him with a Takora. Anticipating
the apprehension that on getting the
deceased all alone may attack upon the
deceased. So all of them also followed
the deceased, when they reached in the
Karaundha Garden there held scuffle
between the accused and the deceased.
During the scuffle accused gave three
blows with the axe on the head of the
deceased. She tried to shiled her husband.
Her husband fell down and Ashok ran
away with the axe. She with help of her
dewar Vinod and others took her husband
from the scene of incident to Lohiya
Hospital. Her husband was bleeding from
the head. He died in the way to Kanpur
near Kannauj. She saw the accused
running at a distance of four sticks. She
and her children did not following the
Ashok because he had axe in hand. She
denied the suggestion that she was not
present at the time of occurrenc at the
spot. She reached at 11.00 o'clock with
the application at the Police Station.
Thereafter, she went to the Hospital
where her husband's dead body was kept.
She had both the children with her and
they saw the accused hitting the head of
the deceased with an axe. PW. 2 and PW.
4 also corroborated the statement P.W. 1.
No major contradictions were found in
their statement.

17. Thus, all the above three
witnesses of fact proved their presence at
the place of occurrence at the time of
incident. Their statements establishe that
incident occured on the issue of collecting
sand on roof and that the accused inflicted
three fatal blows of Takora (axe) from the
back on the head of the deceased and he
died due to these fatal injuries.

18.

In
corroboration
of
the
prosecution case, prosecution has also
examined Pw- 4 Dr. V.V. Pushkar. The
doctor stated on oath that he conducted post
mortem
of
Sikander
(deceased)
on
19.8.2012 at about 3.30 p.m. The dead
body was brought in a sealed cover by
constable 663 Ram Nazar and 7 07 Home
Guard Pratap Bhan. The autopsy of the
deceased Sikander was conducted after
tallying the seal and receiving of the
concerned letter and document.

19. (i)- Ante-mortem injuries;- On
the post mortem, following ante mortem
injuries were found on the person of
deceased Sikander-

1- Incise wound 11 cm x 4 cm x
cranial cavity deep over left side of head
cm above and behind the left ear. Brain
matter coming out. Left parietal & occipital
bone cut fracture.

2- Incised wound 10 cm x 2 cm x
cranial cavity deep over left side of head,
2cm above from injury no.1 underlying
bone cut ,fracture, meningis and brain.

3-Incised wound 7 cm x 1 cm x
bone deep over left side of head.,3 cm
3 All. Ashok Vs. State of U.P.
759
above from the injury no.2 underlying bone
cut fracture.

(ii)- As per doctor's statement,
after death, rigor mortis was present over
the entire limbs. The body was of average
built. Mouth and eyes were closed.
Dressing material was present over head.
Viggo was present in the right wrist.

(iii)- The doctor opined that the
cause of death of Sikander is shock and
haemorrhage, as a result of ante mortem
injuries.

(iv)- P.W. 3 the Dr. V.V. Pushkar
also
stated
that
the
Postmortem
Examination Report was prepared by him
in his own writing and signature. He
proved P.M.R. as Ext. Ka. 2 and was sent
to S.P. Farrukhabad and two others.

(v)- It was also endorsed that
aforesaid injuries on the person of Sikander
had come on 19.8.2012, by the incising of
sharp edge weapon.

20. Thus, medical evidence has
supported the ocular evidence and the
prosecution case.

21. P.W. 5 Investigating Officer S.I. Jag
Mohan Singh has stated that on the disclosure
the accused in his statement under Section
161 Cr.P.C. the Takora (axe), weapon used in
the incident was recovered beneath a tree in
Karaundha Garden, on the pointing of the
accused, in the presence of the witnesses
Dhani Ram and Balveer, during examination
in the court when the weapon was produced
he stated that it is the weapon which he
recovered on pointing of the accused in
Karaundha Garden. This discovery of the fact
is relevant and admissible in evidence under
Section 27 of Indian Evidence Act. He
proved the axe as physical Ext. No. 1.

22. Pw- 7 Ishwer Dyal has proved
chick FIR as Ext. Ka- 9. He also proved the
carban copy of the G.D. as Ext. Ka- 10 and
request letter for postmortem and other
papers sent along with seald cover dead
body for postmortem. Ext. Ka- 11 to Ka-
14 were also proved by him.

23. Pw- 5, S.I. Jag Mohan Singh the
first I.O. of the case. He prepared site plan
as Ext. Ka- 3. He also collected blood
stained and plain soil and prepared a memo
Ext. Ka- 4. He also arrested the accused
near Hathiyapur Railway crossing. The
arresting memo was also prepared by him
which he proved as Ext. Ka- 7. He further
stated that he in the presence of witnesses
Dhani Ram and Balbir recovered the axe
from the garden of Karaundha at the
pointing out of the accused. He proved the
memo of recovery of axe as Ext. Ka- 5 and
also the axe as physical Ext. Ka- 1 in his
examination he further stated that he has
prepared map of the place of occurrence
and place of recovery as Ext. Ka- 3 and Ka-
6.
He
stated
that
afterwards
the
investigation was transferred to Pw- 6 S.I.
Anoop Kumar Tiwari.

24. P.W. 6 Anoop Kumar Tiwari
stated that he taken over the investigation
from P.W. 5 Jag Mohan Singh. After
completion of the investigation, he filed
charge-sheet which he proved as Ext. Ka-
8.

25. The learned counsel for appellant
argued that the witnesses of facts are
related to deceased and thus interested
witnesses. It is next argued that there were
other witnesses also like Vinod etc.
available but prosecution did not examined
them. Therefore, the testimony of the
prosecution witnesses is unworthy of
credit,
learened
A.G.A.
refuted
the
argument. In this behalf it may be
mentioned, it is true that P.W. 1 Sunita,
760 INDIAN LAW REPORTS ALLAHABAD SERIES
P.W. 2 Kumari Preeti and P.W. 4 Vishal
are wife, daghter and son of the deceased
Sikander, but, it may be mentioned that
they are not only related to the deceased,
but also related to the accused/ appellant.
However, nothing could be shown by the
accused/ appellant that they were nurturing
animus and grudge agianst the accused, as
such their testimony cannot be discorded
merely because of their relationship with
the deceased.

26. The learned trial court rightly
believed the evidence of prosecution
witnesses as the Apex Court in Appa Bhai
Vs. State of Gujarat A.I.R. 1988 S.C. 696
and Ashok Kumar Chaudhary Vs. State
of Bihar 2008 (61) ACC 972, has
propounded that in the absence of any
independent witness, evidence of related
witness could not be discorded. If, the
presence of the witness at the time of
incident is established by evidence, there
testimony cannot be discorded on the basis
of their being member of the family of the
deceased. The proseuciton has established
that the witnesses examined were present at
the scene of occurrence at the time of
incident and there witnessed accused
inflicting three blows of axe from back side
on the head of the deceased Sikandar in the
garden of Dileep Maurya.

27. Even the testimony of P.W.2
(Priti) and P.W.4 (Vishal). the minor
daughter and son of the deceased Sikander
was sufficient to prove the guilt against the
accused appellant as they in their natural
course were capable of understanding the
incident, gravity as well as gravamen of the
occurrence
and
were
capable
of
understanding the situations and questions
put to them. Hence, the corroboration of
such evidence of minors (P.W.2 & 4) with
other clinching and trustworthy evidence
cannot be ignored. The evidence of minors
(P.W.2 and P.W. 4) inspires confidence
divulging the incident in a natural and
simple
manner
there
has
been
no
inconsistency in the cross-examination of
prosecution witnsses 1, 2 and 3 they had
narrated the prosecution version in a
natural and intrinsic manner without any
embellishment.

28. Besides, there is no reason that the
witnesses, who were closed relation of
deceased Sikandar, would falsely implicate
the accused/ appellant, leaving the real
culprit. Nothing tangible could be elicited
from the evidence of the witnesses in the
cross-examination
by
which
the
prosecution version could be doubted.
Their evidence is trustworthy, reliable and
free from all taints and flaws. It is a
established law that quality and not the
plurality of witnesses are required to prove
a fact. The dispensation of justice would be
affected and hampered, if, number of
witnesses
are
to
be
insisted
upon.
Moreover, Vinod was not an eye witness of
the occurrence. He reached at the place of
occurrence after the incident was over. So,
his non examination as a witness do not
affect proseuction case at all. Thus, the
learend trial court has rightly accepted the
proseuction evidence holding the accused/
appellant guilty of the offence killing the
deceased.

29. It may be mentioned that ocular
evidence of the prosecution is supported by
the medical evidence on record. P.W. 3 Dr.
V.V. Pushkar in his cross-examition stated
that three encised wound over the head of
deceased there was a pool of blood on the
person of the victim and victim was
succumbed to his injuries due to shock and
hamerouge as a result of ante-mortem
injuries caused by a sharp cutting weapon.
3 All. Ashok Vs. State of U.P.
761
Moreover, the weapon used in the incident
was recovered on the basis of the disclosure
of the accused in his statement in the police
custody. This part of the statement of the
accused was relavant under section 27 of
the Indian Evidence Act. It was on his
instance the weapon (axe) was recovered in
front of the witnesses from Karaundha
garden hidden beneath the tree. The
weapon was exhibited before the court as
physical Ext. 1. The formal witnesses chik
and G.D writter and investigating officer
also corroborated the prosecution case.

30. From the facts and circumstances
of the cases it emnates that the crime had
been committed in a very bruttal manner,
multiple injuries were inflicted on the vital
part of the victim the testimony of the
witnesses are trustworthy and reliable. The
defence has failed to explain as to how
victim received the grave and grim injuries
on his vital part of the body (head), except
as mentioned in the prosecution version.
Thus, the evidence of the prosecution
witnesses is consistent with the hypotheis
of the guilt of the accused appellant and no
other hypothesis. The learned Special
Sessions Judge passed the order of
conviction and sentence after appreciting
the entire evidence on record and has
rightly arrived at the conclusion that it was
the
accused/
appellant
who
alone
committed the serious offence of causing
fatal and ghastly injuries to the victim.
Thus, the impugned judgment may be
sustained and uphold to this extents.

31. The learned counsel for appellant
has submitted that the incident occurred at
the spur of moment which arose due to
sudden quarrel between two brothers. It is
submitted that the accused had not
premeditated
to do
away with
the
deceased.

32. In alternative, it is also 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 under Section 302 of IPC,
then the accused may be granted fixed term
punishment of incarceration as the death is
not a gruesome act on part of accused.

33. Per contra, learned A.G.A. for the
State submits that there was no grave and
sudden provocation from the side of the
deceased
and
that
looking
to
the
gruesomeness of the offence and the
evidence of prosecution witnesses, this
Court should not show any leniency in the
matter. It is further submitted by learned
A.G.A. that ingredients of Section 300 of
IPC are rightly held to be made out by the
learned Sessions Judge who has applied the
law to the facts in case.

34. We have considered the ocular
evidence of witnesses and the Postmortem
report which states that the injuries on the
body of the deceased were cause of death
and that it was homicidal death. The
medical evidence has also supported the
ocular evidence. The statement of the
witnesses are consistent. There are no
major contradictions in their statements and
minor contradictions here and there are to
be ignored as they did not injure
prosecution case at all. Although, all the
three witnesses of facts are related to each
other and with the deceased but their
testimony is trustworthy, as they were the
eye-witnesses and there is no reason as to
why they would falsely implicate the
accused. Accused/ appellant has failed to
prove any enmity with the deceased or
witnesses. Thus, the evidence adduced by
prosecution has established the prosecution
case beyond reasonable doubts.Therefore,
762 INDIAN LAW REPORTS ALLAHABAD SERIES
we concur with the findings of the trial
court.

35. This takes us to the next question
whether it was a perpetrated murder or
would it fall within any of the exceptions to
Section 300 of IPC?

36. It would be relevant to refer to
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."

37. 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 (1)
with
the
intention of causing
death; or
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.

38. From the upshot of the aforesaid
discussion, it appears that the death caused
by the accused was not premeditated,
accused
though
had
knowledge
and
intention that his 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. (2011) 5 SCR 300 which
have to be also kept in mind.

39. On overall scrutiny of the facts
and circumstances of the present case
3 All. Ashok Vs. State of U.P.
763
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
come to the definite conclusion that the
death was not premeditated. The precedents
discussed by us would permit us to uphold
our finding which we conclusively hold
that the offence is not punishable under
Section 302 of I.P.C. but is culpable
homicide
not
amounting
to
murder,
punishable U/s 304 (Part I) of I.P.C.

40. Now, 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.

41. 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 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."

42. The term '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.

43. 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
764 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

44. 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.

45. 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.

46. In view of the above, the accusedappellant is sentenced to 10 years rigorous
imprisonment.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."
Fine is reduced to Rs.5000/-. However, the
default sentence is maintaned. If 10 year's
sentence 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 to undergo the
sentence of default.

47. Resultantly, the appeal is partly
allowed. Judgment and order dated
05.08.2015 passed by the learned Special
Judge D.A.A./ Additional Sessions Judge
Court No. 3, shall stand modified to the
aforesaid extent. Record be sent back to
the trial court forthwith.
----------
3 All. Sudha Matanheliya Vs. State of U.P. & Anr.
765
(2023) 3 ILRA 765
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.02.2023

BEFORE

THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Revision No. 167 of 2023

Sudha Matanheliya ...Revisionist
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionist:
Nagendra Mohan Singh, Pradeep Kumar
Sen

Counsel for the Respondents:
G.A.