# Aslam Noor Khan v. State of U.P

- **Citation:** (2023) 5 ILRA 958
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-07
- **Case number:** Criminal Appeal No. 1536 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aslam-noor-khan-v-state-of-u-p-50424
- **Pages:** 7

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 452, 304/34Challenge to-Conviction-both the accused
tried to do away with the wife of
informant by setting her ablaze according
to evidence on record, when the deceased
requested the accused to leave the land
belonging to the deceased as they were
hand to mouth-From the dying declaration
it is evident that the accused beaten her
and set her ablaze-from the depositions of
the prosecution witnesses it cannot be
said that it was premeditated act of the
accused-As
per
medical
report
and
considering the principle laid down in
Tukaram Case, it was a case of homicidal
death not amounting to murder and the
offence is punishable u/s 304 Part I of
IPC-Thus, the quantum of sentence is too
harsh
and
requires
to
be
modifiedReformative theory of punishment is to be
adopted thus, it is necessary to impose
punishment keeping in view the 'doctrine
of
proportionality'-Undue
harshness
should be avoided taking into account the
reformative
approach
underlying
in
criminal justice system.(Para 1 to 28)

The appeals are partly allowed. (E-6)

List of Cases cited:

## Text

958 INDIAN LAW REPORTS ALLAHABAD SERIES
shall be released forthwith, unless they are
wanted in any other case on compliance of
Section 437-A Cr.P.C.

193. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Mainpuri henceforth, who shall transmit
the
same
to
the
concerned
Jail
Superintendent
for
release
of
the
accused-appellants in terms of this
judgment.
----------
(2023) 5 ILRA 958
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.04.2023

BEFORE

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

Criminal Appeal No. 1536 of 2018
with
Criminal Appeal No. 1686 of 2018

Aslam Noor Khan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Yogesh Agarwal, Sri Jugal Kishor Khanna, Sri
Amit Khanna

Counsel for the Respondent:
G.A., Sri Rajeev Kumar Singh Parmar

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 452, 304/34Challenge to-Conviction-both the accused
tried to do away with the wife of
informant by setting her ablaze according
to evidence on record, when the deceased
requested the accused to leave the land
belonging to the deceased as they were
hand to mouth-From the dying declaration
it is evident that the accused beaten her
and set her ablaze-from the depositions of
the prosecution witnesses it cannot be
said that it was premeditated act of the
accused-As
per
medical
report
and
considering the principle laid down in
Tukaram Case, it was a case of homicidal
death not amounting to murder and the
offence is punishable u/s 304 Part I of
IPC-Thus, the quantum of sentence is too
harsh
and
requires
to
be
modifiedReformative theory of punishment is to be
adopted thus, it is necessary to impose
punishment keeping in view the 'doctrine
of
proportionality'-Undue
harshness
should be avoided taking into account the
reformative
approach
underlying
in
criminal justice system.(Para 1 to 28)

The appeals are partly allowed. (E-6)

List of Cases cited:

1. G.V. Siddhhramesh Vs. St. of Karn. (2010) 3
SCC 152

2. Hari Om Vs. St. of Har. & anr. (2014) 0
Supreme (SC) 783 Ravi Pratap Singh Vs St. of of
UP (2020) SCC Online All 841

3. Chhaganbhai Limjibhai Palas Vs. St. of Guj.
CRLA No. 806 of 2011

4. Raju @ Rajeev Vs St. of U.P. CRLA No. 4701
of 2013

5. Shyam Mishra Vs St. of U.P. (2022) 9 ADJ
322 DB

6. St. of UP Vs Madan Mohan & ors. (1989) AIR
SC 1519

7. Govindappa & ors. Vs St. of Karn. (2010) 6
SCC 533

8. Anversingh Vs St. of Guj. (2021) 3 SCC 12

9. Pravat Chandra Mohanty Vs St. of Ori. (2021)
3 SCC 529 Pardeshiram Vs St. of M.P. (2021) 3
SCC 238

10. Tukaram & ors. Vs St. of Mah. (2011) 4 SCC 250

11. B.N. Kavatakar & anr. Vs. St. of Karn.
(1994) SUPP 1 SCC 304
5 All. Aslam Noor Khan Vs. State of U.P.
959
12. Veeran & ors. Vs St. of M.P. (2011) 5 SCC
300

13. Mohd. Giasuddin Vs St. of A.P. (1977) AIR
SC 1926

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

15. Ravada Sasikala Vs St. of A.P. (2017) AIR
SC 1166

16. Jameel Vs St. of U.P. (2010) 12 SCC 532

17. Guru Basavraj Vs St. of Karn. (2012) 8 SCC
734

18. Sumer Singh Vs Surajbhan Singh (2014) 7
SCC 323

19. St. of Punj. Vs Bawa Singh (2015) 3 SCC
441

20. Raj Bala Vs St. of Har. (2016) 1 SCC 463

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

1. Heard Sri Jugal Kishor Khanna
assisted by Sri Amit Khanna, learned
counsel for the appellants in both these
appeals and the learned AGA for the State
in both these appeals.

2. These appeals challenge the
judgment and order dated 19.02.2018
passed
by
Special
Judge
(SC/ST
Act)/Additional Sessions Judge, Court
No.2, Farrukhabad in Sessions Trial No.91
of 2014 (State Vs. Aslam Noor Khan and
another)
convicting
accused-appellants
under Sections 452, 304/34 of Indian Penal
Code, 1860 (hereinafter referred to as 'IPC')
and
sentenced
them
to
undergo
imprisonment
for
life
with
fine
of
Rs.10,000/- under Section 304/34 of IPC
and in default of fine further to undergo six
months additional imprisonment each and
they have been also convicted for three
years rigorous imprisonment each under
Section 452 IPC and fine of Rs.5,000/- and
in case of default of payment of fine,
further to undergo three months additional
imprisonment each.

3. Factual scenario as culled out from
the record and the judgment of the court
below are that both the accused tried to do
away with the wife of informant by setting
her ablaze. The incident took place on
04.11.2013 at 06:00 p.m. in the evening
when the deceased requested the accused to
return/leave the land belonging to the
deceased as they were hand to mouth. This
request caused anger in mind of both
accused. Aslam Noor Khan started using
filthy language. The deceased went in her
house, the two followed her and poured
kerosene on her and set her ablaze.

4. The postmortem report shows that
there were antemortem burn injuries on
face, neck, chest, arms and both the legs.
The death was due to septicemic shock as a
result of antemortem burn injuries. The
death occurred on 14.11.2023 namely after
10 days of the incident.

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
summoned the accused and committed
them to Court of Sessions as prima facie
they were to be tried for offences
committed under Sections 304, 452, 504
IPC read with Section 34 IPC.

6. On being summoned, the accused
persons pleaded not guilty and wanted to be
tried. The charges were framed for
960 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction of offences under Sections 452,
504, 304 read with Section 34 of IPC. The
trial started and the prosecution examined
10 witnesses who are as follows:-

1
Shahnawaj Khan
PW-1
2
Yusuf Khan
PW-2
3
Ajit Pratap Singh
PW-3
4
Manish Kumar
PW-4
5
Dr. Kalka Prasad
PW-5
6
Khush Nawaj
PW-6
7
Rukhsar
PW-7
8
Virendra
Kumar
Yadav
PW-8
9
Mahendra Pal Singh
Chauhan
PW-9
10
Rajendra
Prasad
Chaudhari
PW-10

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

1
FIR
Ex.Ka-2
2
Written Report
Ex.Ka-1
3
Dying Declaration
Ex.Ka-12
4
Postmortem Report
Ex.Ka-8
5
Panchayatnama
Ex.Ka-4
6
Charge Sheet
Ex.Ka-9
7
Site Plan
Ex.Ka-10

8. At the end of the trial and after
recording the statement of the accused
under Section 313 CrPC and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the appellants as mentioned
above.

9. It is submitted by learned counsel
for the appellants that the witnesses of facts
have not supported the prosecution and
therefore, the accused are entitled to be
acquitted. In support of his submission
learned counsel has relied on the decisions
in G.V. Siddhramesh Vs. State of
Karnataka, (2010) 3 SCC 152; Hari Om
Vs. State of Haryana and another, 2014 0
Supreme (SC) 783; Ravi Pratap Singh
Vs. State of UP, 2020 SCC OnLine All
841; Chhaganbhai Limjibhai Palas Vs.
State of Gujarat, Criminal Appeal
No.806 of 2011; Raju @ Rajeev Vs. State
of UP, Criminal Appeal No.4701 of 2013;
Shyam Mishra Vs. State of UP, 2022 (9)
ADJ 322 (DB) and State of UP Vs.
Madan Mohan and others, AIR 1989 SC
1519 and has contended that there is faulty
charge. The learned counsel for the
appellants has submitted that this is a case
which does not go beyond Section 304
Part-I or Part-II of IPC. It is submitted that
there was quarrel between accused and
deceased, there was no intention on part of
the accused to do away with the deceased.
It is further submitted that the dying
declaration should not have been relied by
the learned Trial Judge, reason being, the
officer who had noted the dying declaration
was not examined on oath.

11. As against this, learned AGA for
the State has contended that the dying
declaration is believable. The learned Judge
has not committed any error or there is no
error which calls for interference by this
Court in these appeals.

12. We have heard learned counsels
for the parties. The fact that the dying
declaration of the deceased was recorded
on
05.11.2013
where
the
deceased
categorically mentioned the name of
5 All. Aslam Noor Khan Vs. State of U.P.
961
accused appellants to have first beaten her
and then set her ablaze.

13. Learned counsel for the appellants
has submitted that the deceased died due to
burn
injuries
which
she
sustained
accidentally while cooking food. While
going through the dying declaration and the
postmortem report, we cannot accept the
submission of counsel for the accusedappellants that it was an accidental death,
the accused authored the offence.

14. Therefore, we are of the
considered opinion that the learned Judge
has not committed any mistake in relying
on the dying declaration. In the light of the
decision in Govindappa and others Vs.
State of Karnataka, (2010) 6 SCC 533,
there is no reason for us not to rely on the
dying declaration. The evidentiary value
under Section 32 of Evidence Act, 1872
fulfils the contours of acceptance of dying
declaration. We are convinced that PW-1
has though declared hostile he has narrated
the incident and, therefore, the contention
of the counsel that it was an accidental
death arising out of accidental burning
during cooking in the house belies this fact.
The totality of the evidence before us will
have to be examined. The finding of fact by
learned Additional Sessions Judge that it
was a homicidal death and not accidental
death is concurred by us and we hold that
conviction under Section 304 Part-I IPC
has been properly recorded and the terms
laid down by courts are satisfied as
discussed herein after.

15. The question which falls for our
consideration is whether, on reappraisal of
the peculiar facts and circumstances of the
case, the conviction of the appellants under
Section 302 of IPC 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
various clauses of Sections 299 and 300
IPC. 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 (2)
with
the
962 INDIAN LAW REPORTS ALLAHABAD SERIES
of causing such bodily
injury as is likely to
cause death; or
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. 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 Vs. 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.
Judgments in Pravat Chandra Mohanty
Vs. State of Odisha, (2021) 3 SCC 529 &
Pardeshiram Vs. State of M.P., (2021) 3
SCC 238 will also enure for the benefit of
the accused.

18. From the dying declaration of the
deceased and the depositions of the
prosecution witnesses, it cannot be said that
it was premeditated act of the accused. The
injuries which were caused were burn
injuries which show intention coupled with
knowledge that man of prudence would
know that if somebody is set ablaze, he/she
would suffer severe injuries or death may
also occur. The investigation were also
carried under Section 304 of IPC and
charge-sheet was also led under Section
304 of IPC. Unfortunately, the charges
framed were for higher offence. Burn
injuries were on vital parts of the body of
the deceased and it was sufficient in the
ordinary course of nature to cause death but
would fall in exceptions of Section 300 of
IPC.

19. 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
and the offence is punishable under Section
304 Part I of I.P.C.

20. From the upshot of the aforesaid
discussions, it appears that the death caused
by the accused was not premeditated,
accused
though
had
knowledge
and
5 All. Aslam Noor Khan Vs. State of U.P.
963
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.

21. 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.

22. In Mohd. Giasuddin Vs. State of
AP, AIR 1977 SC 1926, explaining
rehabilitary and reformative aspects in
sentencing it has been observed by the
Supreme Court:

"Crime is a pathological aberration.
The criminal can ordinarily be redeemed
and the state has to rehabilitate rather than
avenge. The sub-culture that leads to antesocial behaviour has to be countered not by
undue cruelty but by reculturization.
Therefore, the focus of interest in penology
in the individual and the goal is salvaging
him for the society. The infliction of harsh
and savage punishment is thus a relic of
past and regressive times. The human today
vies sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the 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."

23. '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.

24. In Ravada Sasikala Vs. State of AP,
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
964 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

25. 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.

26. 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.

27. Therefore, we convert the
sentence of 'life imprisonment' to period
undergone for both accused appellants.
Fine is reduced to Rs.5,000/- under Section
304
IPC
and
default
sentences
are
maintained. The accused-appellants be set
free if not wanted in any other case.
However, if fine is not paid, the default
sentence will run after the completion of
9th year.

28. In view of the above, both the
appeals are partly allowed. Judgment and
order passed by the learned Sessions Judge
shall stand modified to the aforesaid extent.
The records be transmitted to court below
forthwith.
----------
(2023) 5 ILRA 964
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.05.2023

BEFORE

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

Criminal Appeal No. 1566 of 2011

Mohd. Azeem & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sushil Shukla, Sri A.K. Srivastava, Sri Mohd.
Faiz, Sri Shiv Narain Singh