# Babu v. The State of U.P. Opp. Party

- **Citation:** (2022) 7 ILRA 213
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-15
- **Case number:** Crl. Appel. No. 2878 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-v-the-state-of-u-p-opp-party-48879
- **Pages:** 6

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Section 304 Part I read with
Section 34 IPC - Arms Act, 1959 - Section
4/25 - The Code of Criminal Procedure,
1973 - Section 313 - Rehabilitary &
Reformative - Crime is a pathological
aberration - criminal can ordinarily be
redeemed - state has to rehabilitate rather
than avenge - brutal incarceration of the
person merely produces laceration of his
mind - to punish a man retributively -
must injure him - to reform him - must
improve him - men are not improved by
injuries .(Para - 14,20)

Deceased stabbed by accused-appellant - in her
abdomen - occurrence took place in public place
- appellant not pressing appeal on merit - prays
only for reduction of sentence - sentence of life
imprisonment awarded to appellant by trial
court - harsh - recovery of knife - ocular version
of eye-witness PW2 - corroborated by medical
evidence .(Para - 9,11)

(B) Criminal Law - The Code of Criminal
Procedure, 1973 - Punishment - 'Proper
Sentence'
-
quantum
of
sentence
-
'principle of proportionality' - 'reformative
theory of punishment' - Discretion of
Court in awarding sentence cannot be
exercised arbitrarily or whimsically -
operating the sentencing system - law
should adopt corrective machinery or
deterrence based on factual matrix -
undue harshness should be avoided taking
into account the reformative approach
underlying in criminal justice system.
(Para - 15,16)

HELD:-Accused-appellant
convicted
under
Section 304 Part I read with Section 34 IPC .
Sentence awarded to appellant modified.
Default
sentence
maintained.
Fine
and
imprisonment for default under Section 4/25
Arms Act maintained. (Para -21,22 )

Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

7 All. Babu Vs. The State of U.P.
213

24. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2022)07ILR A213
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.07.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Crl. Appel. No. 2878 of 2013

Babu ...Appellant
Versus
The State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri A.P. Tewari, Sri R.S. Tripathi

Counsel for the Opp. Party:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Section 304 Part I read with
Section 34 IPC - Arms Act, 1959 - Section
4/25 - The Code of Criminal Procedure,
1973 - Section 313 - Rehabilitary &
Reformative - Crime is a pathological
aberration - criminal can ordinarily be
redeemed - state has to rehabilitate rather
than avenge - brutal incarceration of the
person merely produces laceration of his
mind - to punish a man retributively -
must injure him - to reform him - must
improve him - men are not improved by
injuries .(Para - 14,20)

Deceased stabbed by accused-appellant - in her
abdomen - occurrence took place in public place
- appellant not pressing appeal on merit - prays
only for reduction of sentence - sentence of life
imprisonment awarded to appellant by trial
court - harsh - recovery of knife - ocular version
of eye-witness PW2 - corroborated by medical
evidence .(Para - 9,11)

(B) Criminal Law - The Code of Criminal
Procedure, 1973 - Punishment - 'Proper
Sentence'
-
quantum
of
sentence
-
'principle of proportionality' - 'reformative
theory of punishment' - Discretion of
Court in awarding sentence cannot be
exercised arbitrarily or whimsically -
operating the sentencing system - law
should adopt corrective machinery or
deterrence based on factual matrix -
undue harshness should be avoided taking
into account the reformative approach
underlying in criminal justice system.
(Para - 15,16)

HELD:-Accused-appellant
convicted
under
Section 304 Part I read with Section 34 IPC .
Sentence awarded to appellant modified.
Default
sentence
maintained.
Fine
and
imprisonment for default under Section 4/25
Arms Act maintained. (Para -21,22 )

Appeal partly allowed. (E-7)

List of Cases cited:-

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

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

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

4. Jameel Vs St. of UP , (2010) 12 SCC 532

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

6. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

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

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

(Delivered by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the
appellant-Babu
has
challenged
the
Judgment and order dated 02.05.2013
passed by Court of Additional Session
214 INDIAN LAW REPORTS ALLAHABAD SERIES
Judge, Court No.5 Badaun in Session Trial
No.147 of 2011 arising out of Case Crime
No.1002 of 2010 under Section 304 Part I
read with Section 34 IPC along with joint
trial of Session Trial No.148 of 2011
arising out of Case Crime No.1012 of 2012
(State Vs. Babu) under Section 4/25 of
Arms Act, Police Station- Kotwali Badaun,
whereby
the
accused-appellant
was
convicted under Section 304(i) read with
Section 34 IPC and under Section 4/25
Arms. The accused was sentenced for life
imprisonment and fine of Rs.20,000/- for
offence under Section 304 Part I IPC and
three months imprisonment in default of
payment of fine under Section 304 Part I
IPC. The accused was sentenced for three
years with fine of Rs.2,000/- and one
month imprisonment for default of payment
of fine under Section 4/25 Arms Act.

2. The brief facts of the case as culled
out from the record and proceedings and
the FIR are that a first information report
was lodged by complainant Kamlesh
averring that on 20.04.2010 she was
returning home with her mother Rani after
purchasing the vegetables and when they
reached near Balmiki Pulia at about 6:00
pm, Babu son of Amar Singh and Munna
Son of Kanhai came from behind. Babu put
his hand on the shoulder of her mother, her
mother gave a jerk and moved ahead,
which annoyed Babu and he drove out a
knife from his clothes and stabbed her
mother in the abdomen. Both the accused
ran away. There were other persons who
are named in the FIR who are present.
Along with other persons she took her
mother to the hospital but she breathed her
last.

3. S.I. Ram Kishore Singh tookup the
investigation into motion, visited the spot,
prepared site plan, recorded statements of
the prosecutrix and witnesses and after
completing investigation submitted charge
sheet against the accused.

4. The matter being triable by court of
sessions the learned Magistrate committed
the case to court of sessions.

5. The learned trial court summoned
the accused and framed charge under
Section 304(i) read with Section 34 IPC,
which was read over to the accused. The
accused denied the charge and claimed to
be tried. The prosecution so as to bring
home the charge, examined five witnesses,
who are as under:-

1
Vikas
P.W.1
2.
Kamlesh
P.W.2
3.
Dr. Ajay Kumar Verma
P.W.3
4.
Constable Rajendra Kumar P.W. 4
5.
S.I. Ram Kishore Singh
P.W. 5

6. In support of the ocular version of
the witnesses, following documents were
produced and contents were proved by
leading evidence:

1.
F.I.R.
Ext. Ka-4
2.
Written report
Ext. Ka-1
3.
Post mortem report
Ext. Ka-3
4.
Copy of G.D.
Ext. Ka-5
5.
Site-plan
Ext. Ka-6
6.
Inquest report
Ext. Ka-7
7.
Charge Sheet
Ext. Ka-13

7. After completion of prosecution
evidence, the accused was examined under
7 All. Babu Vs. The State of U.P.
215
Section 313 Cr.P.C. The accused did not
examine any witness in defence.

8. Heard Shri A.P. Tewari, learned
counsel for the appellant, learned AGA for
the State and also perused the record.

9. Perusal of record shows that
occurrence of this case took place at 6:00
pm when the deceased was returning with
her daughter complainant- Kamlesh after
purchasing vegetables. The deceased was
stabbed by the accused-appellant Babu in
her abdomen. The occurrence took place in
the public place. The post mortem of the
deceased
was
conducted
in
which
following ante mortem injuries were
found:-

(i) Swelling on the right forehead and
eye size 5cmx 3cm

(ii) Incised wound size 1.5cmx1.5cm
muscle deep on the right side of the chest,
11cm below the right nipple. Margins
inverted at the position of 5 o'clock lever
was cut.

(iii) incised wound size 2cmx1cm skin
deep on the back side of the chest, 20 cm
below the left shoulder at 4 o'clock
position.

10. Learned counsel for the appellant
has submitted that PW1-Vikas is said to be
the eye-witness of the occurrence but he
has not supported the prosecution case and
has turned hostile. He was cross-examined
by prosecution but nothing has come out
from his statement which can prove the
charge levelled against the appellant. It is
further submitted by learned counsel for the
appellant that PW2-Kamlesh is daughter of
the deceased, therefore, she is interested
witness and conviction cannot be based on
the sole testimony of interested witness.
Rest of the witnesses are formal in nature.

11. After some arguments, learned
counsel for the appellant submitted that he
is not pressing this appeal on its merit, but
he prays only for reduction of the sentence
as the sentence of life imprisonment
awarded to the appellant by the trial court
is very harsh. Learned counsel also
submitted that appellant is in jail for the
past more than 9 years.

12. Although the PW1 has not
supported the prosecution case but the
testimony of PW2- Kamlesh cannot be
brushed aside only on the basis of that she
was daughter of the deceased. The
testimony of interested witness cannot be
ignored on this ground alone but the
testimony of interested witness should be
scrutinized cautiously and carefully. As per
the prosecution version PW2 was with the
deceased at the time of occurrence and it is
very natural that the daughter goes with her
mother to purchase the vegetables. There is
nothing unusual in it. PW2 is complainant
of this case also. She has lodged first
information report just after one and half
hours of the occurrence, which is not
delayed. Hence, there was no opportunity
to falsely implicate the accused. Moreover,
the testimony of PW2, who is eye-witness,
supports the prosecution case completely in
her cross-examination. Nothing has come
out, which could give any benefit to the
appellant.
The
knife,
used
in
the
commission of crime, recovered by the
investigating officer on the pointing out of
the accused-appellant Babu. This fact of
recovery is proved by investigating officer
as PW5.

13. Medical evidence also goes to
show that injury No.2 in ante mortem
injuries, mentioned in post mortem report,
is the injury which could be inflicted by the
weapon like knife. Hence, the ocular
216 INDIAN LAW REPORTS ALLAHABAD SERIES
version of eye-witness PW2 is corroborated
by medical evidence also.

14. While coming to the conclusion
that the accused is the perpetrator of the
offence,
whether
sentence
of
life
imprisonment and fine is adequate or the
sentence requires to be modified in the
facts and circumstances of this case and in
the light of certain judicial pronouncements
and precedents applicable in such matters.
This Court would refer to the following
precedents, namely, 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 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."

15. '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.

16. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme Court
referred the judgments in Jameel vs State
of UP [(2010) 12 SCC 532], Guru
Basavraj vs State of Karnatak, [(2012) 8
SCC 734], Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323], State of
Punjab vs Bawa Singh, [(2015) 3 SCC
441], and Raj Bala vs State of Haryana,
[(2016) 1 SCC 463] and has reiterated that,
in operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
7 All. Babu Vs. The State of U.P.
217
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.

17. 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.

18. While going through the record
and the testimony of the witnesses specially
the FIR and the medical version, the guilt
of the accused is proved to the hilt and we
are unable to disagree that the learned court
below in recording the finding of guilt of
the accused-Babu as the knife was found
from the possession of the accused. The
evidence of PW1 though has turned hostile.
The evidence of Kamlesh who has
categorically mentioned that Babu is the
person who has inflicted the knife blow to
the deceased on the abdomen. It was a
single blow. They had even intimidated her.

19. The evidence of Dr. Dinesh
Kumar who had performed the post
mortem as narrated herein-above also
testified this effect that the injuries were
possible by the knife. Hence, we hold that
it was the accused and the accused alone
who was perpetrator of the offence.

20. 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.

21. Learned AGA also admitted the
fact that appellant is languishing in jail for
the last more than 9 years. The accusedappellant convicted under Section 304 Part
I read with Section 34 IPC, which is a
major offence and is sentenced for life
imprisonment along with fine. In our
opinion, ends of justice would be met if
sentence is reduced to the period of 10
years imprisonment for the aforesaid
offence.

22. Hence, the sentence awarded to
the appellant-Babu by the learned trialcourt is modified as sentence of 10 years
rigorous imprisonment under Section 304
Part I read with Section 34 IPC and fine of
Rs.10,000/-.
Default
sentence
is
218 INDIAN LAW REPORTS ALLAHABAD SERIES
maintained. Period of sentence for three
years rigorous imprisonment under Section
4/25 of Arms Act and default sentence for
the said punishment has already been
undergone by the appellant. Fine and
imprisonment for default under Section
4/25 Arms Act is maintained.

23. Accordingly, the appeal is partly
allowed with the modification of the
sentence, as above.

24. The Jailer to release the accused
on completing tenure of his rigorous
imprisonment as per jail record with
remission.

25. Record be sent back to the court
below.
----------
(2022)07ILR A218
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.06.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Crl. Appel. No. 3882 of 2010

Tahseen & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Vivek Mishra, Sri Anil Kumar Pandey, Sri
Mohd. Kalim, Sri Sunil Kumar Srivastava

Counsel for the Respondents:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302/34,299, 300,304B &
498A
-
Dowry
prohibition
Act,1961-
Section3/4
-
The
Code
of
criminal
procedure, 1973 - Section 313 - power to
examine
accused
murder
-
culpable
homicide not amounting to murder - not
an absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused - twin principle
of deterrence and correction would be
served
by
reducing
the
period
of
incarceration already undergone by the
accused.(Para -19,20)

Accused-appellants - poured kerosene - set
ablaze the deceased - death caused by accused
- not premeditated - no intention to cause death
of deceased - injuries were though sufficient in
the ordinary course of nature to have caused
death - no intention to do away with deceased
.(Para - 2,8,18)

HELD:- Case falls under Exceptions 1 and 4 to
Section 300 of IPC. Considering Section 299,
offence committed fall under Section 304 Part-I
of IPC .Death due to septicemia. Offence not
under
Section
302
of
I.P.C.
butculpable
homicide.
Sentence
of
accused
appellant
reduced
to
period
eight
years
with
remission.(Para -18,22 )

Appeal partly allowed. (E-7)

List of Cases cited:-

1. Maniben Vs St. of Guj., 2009 (8) SCC 796

2. Chirra Shivraj Vs St. of A.P., 2010 (14) SCC
444

3. Rama Devi @ Ramakanti Vs St. of U.P.,
Criminal Appeal No.1438 of 2010

4. Smt. Kanti & anr. Vs St. of U.P., Criminal
Appeal No. 2558 of 2011

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

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

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

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