# Ashwani Sharma & Anr v. State of U.P

- **Citation:** (2023) 9 ILRA 95
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-29
- **Case number:** Criminal Appeal No. 5776 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashwani-sharma-anr-v-state-of-u-p-50811
- **Pages:** 9

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section 313 - Indian Penal
96 INDIAN LAW REPORTS ALLAHABAD SERIES
Code, 1860 -Sections 34, 299, 300, 302,
304, 304-I & 304-II : - Appeal - against
conviction & sentence - FIR - alleged that,
the incident occurred, when the informant's
brother was beaten by three boys of and their
father (appellant no. 1), leading to his death
- offence of murder - investigation -
chargesheet u/s 302/34 IPC - two accused
sons of appellant was minor hence their case
was
not
committed
-
conviction
and
sentenced
-
Evaluation
of
Evidence
&
quantum of punishment - court finds that -
there was no undue or unreasonable delay in
lodging
FIR,
-
witnesses
included
the
informant, the deceased's wife, and an
independent witness and Medical examination
revealed multiple injuries on the deceased , -
motive is not spelt out form any of the
evidence
-
however,
death
was
not
premeditated and concluded that the offence
was culpable homicide not amounting to
murder, punishable under Section 304 Part-I
IPC - hence, court convert the conviction of
the accused-appellant from Section 302 IPC
to section 304-part I IPC - sentence is
reduced to the period already undergone &
fine to be deposited within four weeks of
release from incarceration - Accordingly,
Appeal is partly allowed. (Para - 12, 13, 15,
28, 29)

Appeal is partly allowed. (E-11)

List of Cases cited:

## Text

9 All. Ashwani Sharma & Anr. Vs. State of U.P.
95
case, all the accused persons were armed
with katta, revolver and bomb. They were
knowing that accused Allau whose shot hit
and killed the deceased was having a
deadly weapon which he would use to
achieve the common object of the unlawful
assembly. Further more, they even exhorted
each other to kill the family member(s) of
the informant side. It has been proved from
the evidence of PW-1 that after hitting the
deceased accused Saddik had fired upon
him but he escaped. It has also been proved
that all the accused persons were abusing
the whole family members of the deceased
by calling them "chamaria". It has also
been proved that one of the accused Jahid
had exploded bomb on the spot and the
residue in the shape of rope had been
recovered from the spot even then no
application of the Explosive Substances Act
had been made. From the evidence on
record, it has been proved that in the
aforesaid circumstances, the informant and
his family members were not in position to
defend themselves.

102. On the basis of above, this Court
is of the view that the alleged offence was
committed by the convict appellants being
a member of unlawful assembly to achieve
the common object and they left the place
of occurrence only when other persons of
the vicinity reached and intervened and
they thought that any counter could also be
happened against them. Even after the
incident they did not run away from the
spot but they left the spot abusing the
informant and his family members.

103. On the basis of above, this Court
is of the view that the trial court has rightly
convicted all the accused persons under
Sections 148, 307 read with Section 149,
302 read with Section 149 IPC, therefore,
no interference is warranted in the appeals.
The appeals are devoid of merits and are
liable to be dismissed.

104. Accordingly, these criminal
appeals are hereby dismissed.

105. The accused appellants, Gufran
and Saddik be taken into custody. They
shall be sent to jail to serve the sentence
and also to deposit the fine imposed upon
him.

106. Let lower court record be sent
back to the Court of Additional Sessions
Judge, Court No.2, Azamgarh alongwith a
copy of this judgment for compliance and
consignment.
----------
(2023) 9 ILRA 95
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2023

BEFORE

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

Criminal Appeal No. 5776 of 2017

Ashwani Sharma & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Vikas Sharma, Sri Anil Kumar Dubey, Sri
Anurag Pathak, Sri Bed Prakash Rai, Sri
Chandra Bhan Dubey, Sri Garun Pal Singh,
Sri Harshit Pathak

Counsel for the Respondent:
G.A., Sri Pradeep Kumar Rai, Sri Saurabh
Trivedi

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section 313 - Indian Penal
96 INDIAN LAW REPORTS ALLAHABAD SERIES
Code, 1860 -Sections 34, 299, 300, 302,
304, 304-I & 304-II : - Appeal - against
conviction & sentence - FIR - alleged that,
the incident occurred, when the informant's
brother was beaten by three boys of and their
father (appellant no. 1), leading to his death
- offence of murder - investigation -
chargesheet u/s 302/34 IPC - two accused
sons of appellant was minor hence their case
was
not
committed
-
conviction
and
sentenced
-
Evaluation
of
Evidence
&
quantum of punishment - court finds that -
there was no undue or unreasonable delay in
lodging
FIR,
-
witnesses
included
the
informant, the deceased's wife, and an
independent witness and Medical examination
revealed multiple injuries on the deceased , -
motive is not spelt out form any of the
evidence
-
however,
death
was
not
premeditated and concluded that the offence
was culpable homicide not amounting to
murder, punishable under Section 304 Part-I
IPC - hence, court convert the conviction of
the accused-appellant from Section 302 IPC
to section 304-part I IPC - sentence is
reduced to the period already undergone &
fine to be deposited within four weeks of
release from incarceration - Accordingly,
Appeal is partly allowed. (Para - 12, 13, 15,
28, 29)

Appeal is partly allowed. (E-11)

List of Cases cited:

1. Nirmala Devi Vs St. of H.P., 2023 INSC 662,

2. Khokan@ Khokhan Vishwas Vs St. of
Chattisgarh, 2021 LawSuit (SC) 80,

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

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

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

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

7. Veeran & ors. Vs St. of M.P. Decided, (2011) 5
SCR 300,
8. Mohd. Giasuddin Vs St. of A.P., [AIR 1977 SC
1926],

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

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

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

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

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

14. St. of Pun. Vs Bawa Singh, [(2015) 3 SCC
441],

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

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Bed Prakash Rai, learned
counsel for the appellants and learned
A.G.A. for the State.

2. This appeal challenges the
judgment and order dated 28.8.2017 passed
by Additional Sessions Judge, Court No.11,
Meerut, in Sessions Trial No. 979 of 2014
(State vs. Monu and Another) convicting
accused-appellants under Section 302 read
with Section 34 of Indian Penal Code, 1860
(hereinafter referred to as 'IPC') and
sentenced
the
accused-appellants
to
undergo imprisonment for life with fine of
Rs.10,000/- and in case of default of
payment of fine, further to undergo
imprisonment for a period of one year and
under Section
504
IPC
to undergo
imprisonment for one year each.

3. In brief, facts of the case are that
informant Jitendra Kumar on 14.4.2014 at
23:46 moved Tehrir, Ex. Ka-1, alleging
9 All. Ashwani Sharma & Anr. Vs. State of U.P.
97
therein that his brother Indresh Kumar,
deceased, lived at Ganga Nagar along with
his family. On 14.4.2014 in the morning his
niece Shiwangi was teased by three boys
namely Nishu, Rahul and Monu @ Mayank
sons of Ashwani Sharma. The mother of the
boys was apprised about the aforesaid
incident. At about 8:00-8:30 P.M. when his
brother alongwith his wife was coming
from his Parichitgarh clinic and when they
reached in front of Jagdamba Health Club
in O block Ganga Nagar Meerut, the
aforesaid three boys along with their father
surrounded his brother and started beating
him. On hue and cry, Neetu Sharma @
Jitendra son of Ramesh Chandra Sharma
also reached there, he and his brother's
wife told that Monu @ Mayank and Rahul
had caught hold of Indresh and Nishu
Sharma and their father Ashwani Sharma
with intention to kill, gave multiple blows
from baseball.

4. On the aforesaid Tehrir an F.I.R.,
Ex. Ka-4, Case Crime No. 221 of 2014
under Section 302 I.P.C. was lodged at
Police Station Inchauli, District Meerut
against the accused Monu @ Mayank,
Ashwani Sharma, Nishu and Rahul.

5. 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 on
finding the offences to be triable by Court
of Sessions, committed the case to the
Court of Sessions. However, the accused
Nishu Sharma and Rahul Sharma were
minor hence their case was not committed.

6. On 9.3.2016 the charges under
Section 302/34 and 504 I.P.C. were framed
against the accused. The accused-persons
pleaded not guilty and wanted to be tried.
The Trial started and the prosecution
examined 8 witnesses who are as follows:

1
Jitendra Kumar-
PW1
2
Neelam Sharma
PW2
3
Neetu Sharma
PW3
4
Constable Pramod Kumar
PW4
5
Dr. Vinay Bhargav
PW5
6
S.I. Hans Ras Bhadoriya
PW6
7
S.I. Mukesh Kumar
PW7
8
Inspector Pramod Kumar Singh
PW8

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

1
F.I.R.
Ex.Ka.1
2
Inquest
Ex.Ka.2
3
Chik F.I.R.
Ex. Ka.3
4
Corbon copy report no. 45 dated
14.4.2014
Ex.Ka.4
5
Post-mortem report
Ex.Ka.5-6
6
Site Plan
Ex.Ka.7
7
Arrest Memo of the accused and
recovery memo of baseball
Ex.Ka.8
8
Site Plan of recovery
Ex.Ka.9
9
Letter of S.I.
Ex.Ka.10
10
Letter to C.M.O.
Ex.Ka.11
11
Police Form No. 13
Ex.Ka.
12
Police Form No. 379
Ex.Ka. 13
13
Sealed
Ex.Ka. 14
14
Charge-sheet
Ex.Ka. 15
15
F.S.L. Report
Ex.Ka.16

8. At the end of the trial and after
recording the statement of the accused
under section 313 Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the appellants as mentioned
aforesaid.
98 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In brief the relevant evidence of the
prosecution witnesses are as follows:

(a) P.W.-1, informant, Jitendra
Kumar, has deposed that the deceased was
his younger brother who used to live at
Ganga Nagar along with his family. On
14.4.2014, in the morning his niece
Shiwangi was teased by three boys namely
Nishu, Rahul and Monu @ Mayank sons of
Ashwani Sharma. The mother of the boys
was apprised about the incident. The
deceased also informed the informant about
the aforesaid incident. At about 8:00-8:30
P.M. when his brother alongwith his wife
was coming from his Parichitgarh clinic
and when they reached in front of
Jagdamba Health Club in O block Ganga
Nagar Meerut, the aforesaid three boys
along with their father surrounded his
brother and started beating him. On hue
and cry, Neetu Sharma @ Jitendra son of
Ramesh Chandra Sharma also reached
there, he and his brother's wife told that
Monu @ Mayank and Rahul had caught
hold of Indresh and Nishu Sharma and their
father Ashwani Sharma with intention to
kill, gave multiple blows from baseball due
to which he becoming unconscious fell
down. On hue and cry Neetu Sharma @
Jitendra and other people reached there and
the assailants ran away. Indresh was rushed
to Surya Nurshing Home by these people
where during the treatment Indresh died.
Thereafter a complaint scribed by his
younger brother Sanjeev was produced by
this witness in the police station Inchauli at
11:45 P.M. on which police reached there
and conducted inquest, prepared inquest
report Ex. Ka-2 which has been proved by
this witness. This witness admits that he is
not an eyewitness of the incident.

(b) P.W.-2, Smt. Neelam Sharma,
who was present on the spot, has deposed
in support of prosecution version and has
deposed that the accused persons were
already present on the spot and when they
reached
there,
the
accused
persons
surrounded them, Rahul and Monu @
Mayank caught hold of her husband,
accused Ashwani Sharma and Neeshu
Sharma assaulted him by baseball due to
which he fell down unconscious. On
commotion Neetu Sharma @ Jitendra and
other people reached there. During the
course of deposition this witness identified
the accused persons. She also deposed that
at the time of incident there was street light
and bulb of the nearby houses. This witness
has given intact evidence even in crossexamination.

(c) P.W.-3, Neetu Sharma, an
independent witness, has deposed in
support of prosecution version that at about
8:30 P.M. on 14.4.2014, he was buying
goods in the Ganga Market, he heard
commotion coming from the side of
Jagdamba Health Club and reached there
and saw that 3-4 persons were assaulting
Indresh, two persons had caught hold of
him and two other were hitting him from
baseball and a woman who claimed herself
to be wife of the victim, was crying nearby.
At the time of deposition this witness
recognized two accused persons in the
Court. He further deposed that when he and
other persons reached on the spot, accused
persons ran away. The deceased was lying
in unconscious state. He and other persons
transported the deceased to Surya Nurshing
Home and had admitted there. The
deceased had communicated the reason
behind the incident was teasing of his
daughter by the sons of Aswani Sharma
when she used to go to school.

(d) P.W.-4, Constable Pramod
Kumar, has proved chik F.I.R., Ex. Ka-3
and Kayami G.D. E.x Ka-4.

(e) P.W.-5, Dr. Vinay Bhargav,
has conducted the autopsy of the dead body
9 All. Ashwani Sharma & Anr. Vs. State of U.P.
99
of the deceased at 1:40 P.M. on 15.4.2014
and found following injuries on the person
of the deceased:

External Injury:

(i) There were swelling on the left side
of the head in an area of 10 cm X 8 cm.

(ii) There was an injury on the
forehead of the skull in an area of 6 cm X 2
cm.

(iii)
Swelling
on
the
right
temporal region in an area of 12 cm X 8
cm, blood was oozing from right ear. There
was also swelling in the lower part of the
neck in an area of 10 cm X 8 cm.

In the internal examination, this
witness found that the meninges were
reddish and there was bleeding. The
interior and the temporal regions of the
brain were also reddish. The cause of the
death was head injury caused on 14.4.2014
at 9-10 P.M. The witness has deposed that
the clothes of the deceased were sealed.
This witness has proved the post-mortem
report as Ex. Ka-5 & Ex. Ka-6.

During the cross-examination, on
being asked by counsel for the defence, this
witness has deposed that it it difficult to say
that the injury occurred due to falling on
the road after coliding of head of the
deceased from a strong object. He further
deposed that it is also difficult to say that
the injuries are accidental or inflicted by
someone.

(f) P.W.-6, S.I. Hansraj Singh
Bhadauriya, I.O. being in-charrge of S.O.
of Police Station- Inchauli, has deposed
that he had copied the chik F.I.R., written
complaint, statement of the informant and
after inspecting the place of occurrence on
the pointing of the informant, had prepared
site plan, Ex. Ka-7, he had arrested accused
Neetu and Ashwani from Kaseru Baxar
Chauraha and on the pointing of accused
Neeshu,
recovered
baseball
used
in
commission of crime and has prepared
recovery memo Ex. Ka-8 and site plan of
the recovery, Ex. Ka-9. He had also copied
post mortem report and after obtaining
N.B.W. against absconding accused Rahul
and Monu, had initiated the proceeding
under Section 82 & 83 Cr.P.C. Lastly they
had surrendered on 24.4.2014 thereafter he
had recorded their statements.

(g) P.W.7, S.I. Mukesh Kumar,
has conducted inquest, Ex.Ka-2, and
related paper viz report R.I., report C.M.O.,
Challan Lash, Photo Lash, Ex. Ka-10 to
Ka-13 and has proved them. He deposed
that he had sent the dead body for postmortem.

(h) P.W.-8, Inspector Pramod
Kumar Singh, has deposed that after
transfer of first I.O., he had received the
investigation and had copied the inquest
and post-mortem report in C.D. and had
recorded the statement of S.I. Mukesh
Kumar, constable Rajendra Kumar and
constable Manoj Kumar and witness of the
inquest
Jitendra
Kumar
along
with
statement of Smt. Neelam. After finding
sufficient evidence, he had submitted
charge-sheet, Ex. Ka-15.

10. All the formal witnesses have
proved the documentary evidence prepared
by them during their deposition.

11. The learned counsel for the
accused-appellants
has
relied
on
the
judgment of Nirmala Devi Vs. State of
Himanchal Pradesh, 2023 INSC 662,
wherein the Apex Court has held in para 13
& 14 as follows:

"13. It is to be noted that the
weapon used in the crime is a stick which
was lying in the house, and which, by no
means, can be called a deadly weapon.
100 INDIAN LAW REPORTS ALLAHABAD SERIES
Therefore, the possibility of the appellant
causing the death of the deceased while
being deprived of the power of self-control,
due to the provocation on account of the
deceased not agreeing to pay Rs.500/- to
PW-1, cannot be ruled out.

14. We further find that it will
also be necessary to take into consideration
the background in which the offence took
place. There used to be persistent quarrels
between the deceased and the appellant. In
one of such incidents, the leg of the
appellant was fractured by the deceased,
and a case was already pending against
him for the said offence."

12.

On
the
basis
of
above
pronouncement the learned counsel for the
appellants argued that in this case, the
crime is said to be caused by baseball stick
which can not be said to be a deadly
weapon. It can not be said that it is
sufficient to commit an offence of murder
as defined under Section 302 I.P.C. He
further argued that if there was any Mens
Rea of killing the deceased, the accused
would have taken and used any other
deadly weapon like fire-arm, pierce, gadasa
etc.

13. From the perusal of evidence of
the witnesses, it has been established that
there is no undue or unreasonable delay in
lodging the F.I.R. The accused were
identified by P.W.-2, wife of the deceased
who was present on the spot. P.W.3 Neetu
Sharma, has also remained intact in support
of prosecution and has also recognized two
accused who were present in the Court at
the time of his deposition. The trivial
personal motive behind the commission of
crime has also been established. It can not
be disputed that forehead of a person is not
the vital part and if anyone with intention
to kill a person gives only one blow with all
his force, the person may die.

14. In this case the deceased has died
during the course of treatment. A trivial
dispute between the parties took an adverse
turn which resulted into death of a guardian
of the family.

15. Now the question arises as to
whether it is a case of murder as defined
under Section 300 I.P.C. and punishable
under Section 302 I.P.C. or it is a culpable
homicide not amounting to murder as
defined under Section 299 IPC and
punishable under Section 304 IPC.

16. We are convinced that it was
homicidal death but, it would be seen
whether it is homicidal death punishable
under Section 302 or Section 304 Part I or
Part II of IPC?

17. 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."

18. 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
9 All. Ashwani Sharma & Anr. Vs. State of U.P.
101
application of these provisions seems to be
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 299v
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
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.
s

19. In latest decision in Khokan@
Khokhan
Vishwas
v.
State
of
Chattisgarh, 2021 LawSuit (SC) 80,
where the facts were similar to this case,
the Apex Court has allowed the appeal of
the accused appellant and altered the
sentence. 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
be dealt with in light of all these judgments.
Decisions 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. 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.

21. 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 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. Decided, (2011) 5 SCR 300
which have to be also kept in mind.

22. We come to the definite
conclusion
that
the
death
was
not
102 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

23. This takes us to the alternative
submission of learned counsel for the
appellant that 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.

24. 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 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."

25. '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.

26. 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
9 All. Desh Raj Singh Vs. State of U.P. & Ors.
103
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.

27. 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.

28. 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. We may also record that while
going through the factual scenario the appellant
cannot be said to have a motive or intention to do
away with the deceased who was his relative.
The motive is not spelt out from any of the
 evidence.

29. Therefore, on totality of the facts and
circumstance and the oral testimony of the eyewitnesses coupled with the medical evidence
permit us to convert the conviction of the
accused-appellant from Section 302 I.P.C. to
Section 304 Part-I I.P.C. The fact that the
accused-appellants were incarcerated in jail for
more than 11 years and six years respectively, the
sentence is reduced to the period already
undergone. Fine of Rs. 10000/- to be deposited
within four weeks of release from incarceration.
If fine is not deposited within four weeks they
shall be lodged in jail to undergo default
sentences of three months.

30. In view of the above, this criminal
appeal is partly allowed. Record and proceedings
be sent back to the Court below forthwith.
----------
(2023) 9 ILRA 103
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.07.2012

BEFORE

THE HON'BLE DHARNIDHAR JHA, J.
THE HON'BLE RAMESH SINHA, J.

Criminal Appeal U/S 372 CR.P.C. No. 7726 of
2010

Desh Raj Singh ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Vikas Sharma, Mamta Singh

Counsel for the Respondents: