# Balveer Singh (In Jail) v. State of U.P

- **Citation:** (2022) 11 ILRA 228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-20
- **Case number:** Criminal Appeal No. 7777 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balveer-singh-in-jail-v-state-of-u-p-47806
- **Pages:** 10

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section - 313 - Indian Penal
Code,1860
- Sections 34, 299, 300,
300(4), 302, 304 Part -I, 304 Part - II,
304-B, 307, 498-A, 504 & 506 - The Dowry
Prohibition Act, 1961 - Sections - 3, 4 & 5
- Criminal Appeal - Conviction & Sentence - Life
imprisonment with fine - Evaluation of Evidences
- offence of demand of dowry and death - FIR -
allegations that, accused (appellant) demanded
dowry and threaten with dire consequences to
his wife (deceased) and when demand was not
fulfilled, deceased (wife) was set ablaze by her
husband - ultimately she was died due to
septicaemia - it is duty of every court to award
proper sentence having regard to nature of
offence and manner of its commission - the
judicial trend in the country has been towards
striking
a
balance
between
reform
and
punishment - distinction between 'murder' and
'culpable homicide' - held, instant case fall under
the exception 1 and 4 to section 300 of IPC -
hence, appeal is liable to be partly allowed -
impugned conviction u/section 302 IPC is liable
to be converted into conviction u/section 304
Part - I IPC. (Para - 27, 31, 33)

Appeal partly allowed. (E-11)

List of Cases cited:

## Text

228 INDIAN LAW REPORTS ALLAHABAD SERIES
case. Though, we have held that death was
homicidal death but prosecution has failed
to prove the charge against the accused
beyond reasonable doubt and benefit of
doubt is granted to the appellant. Hence,
appeal is liable to the allowed.

17. Accordingly, the appeal is
allowed.

18. Accused-appellant is acquitted of
the charge framed against him u/s 302 of
IPC. The fine of amount be refunded if it is
already deposited by the appellant.

19. The accused-appellant be released
from jail forthwith if not wanted in any
other case.

20. Record and proceedings be sent
back to the court below.
----------
(2022) 11 ILRA 228
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 7777 of 2017

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

Counsel for the Appellant:
Sri Noor Muhammad, Sri Tribhal Chandra
Sharma, Sri Yogesh Kumar Srivastava

Counsel for the Opposite Party:
G.A.
Criminal Law - Criminal Procedure Code,
1973 - Section - 313 - Indian Penal
Code,1860
- Sections 34, 299, 300,
300(4), 302, 304 Part -I, 304 Part - II,
304-B, 307, 498-A, 504 & 506 - The Dowry
Prohibition Act, 1961 - Sections - 3, 4 & 5
- Criminal Appeal - Conviction & Sentence - Life
imprisonment with fine - Evaluation of Evidences
- offence of demand of dowry and death - FIR -
allegations that, accused (appellant) demanded
dowry and threaten with dire consequences to
his wife (deceased) and when demand was not
fulfilled, deceased (wife) was set ablaze by her
husband - ultimately she was died due to
septicaemia - it is duty of every court to award
proper sentence having regard to nature of
offence and manner of its commission - the
judicial trend in the country has been towards
striking
a
balance
between
reform
and
punishment - distinction between 'murder' and
'culpable homicide' - held, instant case fall under
the exception 1 and 4 to section 300 of IPC -
hence, appeal is liable to be partly allowed -
impugned conviction u/section 302 IPC is liable
to be converted into conviction u/section 304
Part - I IPC. (Para - 27, 31, 33)

Appeal partly allowed. (E-11)

List of Cases cited:

1. Govindappa & ors. Vs St. of Karnataka,
(2010) 6 SCC 533

2. Hansraj Vs St. of Pun., AIR 2000 SC 2324

3. Sher Singh Vs St. of Har., 2015 (88) ACC 288
(SC)

4. Gautam Manubhai Makwana Vs St. of
Gujarat, Criminal Appeal No.83 of 2008, decided
on 11.9.2013

5. Krishan Vs St. of Har., (2013) 3 SCC 280

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

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

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

9. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926
11 All. Balveer Singh Vs. State of U.P.
229
10. Deo Narain Mandal Vs St. of U.P., (2004) 7
SCC 257

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

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

13. Guru Basavraj Vs St. of Karnatak, (2012) 8
SCC 734

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

15. St. of Punjab Vs Bawa Singh, (2015) 3 SCC
441

16. Raj Bala vs St. of Haryana, (2016) 1 SCC
463

17. St. of M.P Vs Jogendra, (2022) 5 SCC 401

18. Uttam Vs St. of Mah.a, (2022) 8 SCC 576

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

20. Anversinh Vs St. of Gujarat, (2021) 3 SCC 12

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

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

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

1.

Heard
Sri
Yogesh
Kumar
Srivastava,
learned
counsel
for
the
appellant and Sri Nagendra Srivastava,
learned A.G.A. for the State.

2. Present criminal appeal challenges
judgment and order dated 22.11.2017
passed by the Additional Sessions Judge
(Fast Track Court No.2), Firozabad in
Sessions Trial No. 728 of 2011 whereby
the learned Additional Sessions Judge has
convicted and sentenced the accusedappellant, Balveer Singh, under Section
498A of IPC for two year imprisonment
along with fine of Rs.3,000/- (default
sentence : two months), under Section 302
of IPC for life imprisonment with fine of
Rs.10,000/- (default sentence : six months)
and
under
Section
3/4
of
Dowry
Prohibition Act, 1961 for two years'
imprisonment with fine of Rs.3000/-, in
case of default in payment of fine further to
undergo two months' simple imprisonment.
All the sentences were directed to run
concurrently.

3. Facts as culled out from the record
are that the deceased was married with the
accused-appellant before six years of the
incident as per Hindu rites and rituals.
There were three children born out of their
wedlock. Immediately after the marriage,
she was subjected to cruelty and there was
demand of dowry. Several times there were
settlements but the demand of dowry
continued. On the day before the incident
occurred i.e. 3.5.2011, the deceased was
beaten and was threatened with dire
consequences. In the morning, she was set
ablaze. When she was set ablaze, she ran
towards the locality. The neighbors doused
the the fire and got the deceased admitted
in S.N.M. Hospital, Firozabad from where,
she was referred to Agra. On 9.5.2011, she
was brought to AIIMS, Delhi. Her burn
injuries ultimately turned into septicemia
and she breathed her last.

4. On the basis of the complaint made
by informant, father of the deceased,
alleging the above incident, the First
Information Report being Case Crime No.
196 of 2011 under Sections 498A, 304B,
307, 504, 506 of IPC and Section 3/4 of
D.P. Act was lodged at P.S. South, District
Firozabad was registered and the criminal
machinery
moved
into
motion.
On
230 INDIAN LAW REPORTS ALLAHABAD SERIES
4.5.2011, the Dying Declaration was
recorded. On inquiry being conducted and
the investigation getting over, the chargesheet was filed in the Court of Chief
Judicial Magistrate against all the accused
who were named in the F.I.R. except
accused-Jhamman,
who
died
during
investigation. The matter was committed to
the Court of Session as it was triable by
Court of Session.

5. The learned Sessions Judge has
framed the charges against the accused,
Ramnath, Smt. Shanti Devi and accusedappellant, Balveer Singh under Sections
498A, 304B read with Section 34 of IPC
and Section 3/4 of Dowry Prohibition Act
and additional charge under Section 302 of
IPC was framed against accused-appellant,
Balveer Singh.

6. On being summoned, the accusedpersons pleaded not guilty and wanted to be
tried.

7. The Trial started and the
prosecution examined 11 witnesses who are
as follows:

1
Kishori Lal
PW1
2
Somwati
PW2
3
Munni Devi
PW3
4
Guddi
PW
5
Bhuri Singh
PW5
6
Praveen Kumar
PW6
7
Anurag Darshan PW7
8
Dr.
Ravi
Prakash Sachan
PW8
9
N. Ram
PW9
10
Sanjay Dubey
PW 10

8. In support of ocular version
following documents were filed and proved:

1
F.I.R.
Ex.Ka.12
2
Written Report
Ex.Ka.1
3
Dying
Declaration
Ex. Ka.5
4
Postmortem
Report
Ex.Ka.4
5
Panchayatnama
Ex.Ka.6
6
Charge-sheet
Ex. Ka.3
8
Site Plan
Ex.Ka.2

9. After the evidence of prosecution
was over, Bhudev Singh was examined as
C.W. 1 and the accused also led evidence
and examined, Balvir Singh, D.W.1, Ram
Nath, D.W.2, & Premraj, D.W.3.

10. At the end of the trial and after
recording the statements of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
acquitted the accused Ramnath and Shanti
Devi and convicted the accused-appellant
as mentioned above.

11. It is submitted by learned counsel
for the appellant that the incident occurred
on the spur of moment and the accused had
not premeditated to do away with the
deceased and the death occurred after few
days. The cause of death according to
doctor who conducted the postmortem of
deceased was septicemia.

12. It is further submitted by learned
counsel for the appellant that conviction
under Section 302 IPC is not made out as
no overt act as per Section 300 IPC is made
out. On the same set of evidence with
which the other co-accused has been
acquitted, same requires to be done in case
of accused-appellant also. In alternative, it
is submitted that at the most, the death can
be homicidal death not amounting to
murder and punishable under Section 304
II or Section 304 I of I.P.C. If the Court
11 All. Balveer Singh Vs. State of U.P.
231
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.

13. Learned counsel for the State has
submitted that though it is septicemic
death, the dying declaration and evidence
of prosecution witnesses will not permit
this Court to 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.

14. Before we begin our discussion
sifting the testimony of witnesses, perusal
of the Dying Declaration of the deceased,
Ex. Ka.5, would be very relevant which is
as under:

"बयाि श्रीमती सुषमा देवी w/oश्री बलवीर
क्षसिंह क्षिवासी हुमायूिंपुर थािा दक्षिर् जिपद
क्षफरोजाबाद उम्र 25वषण पेशा चूड़ी मजदूरी जाक्षत
राठौर

1.35 P.M.

बयाि क्षकया है क्षक घटिा क्षदिािंक
3.5.2011 की सुबह 6:00 बजे की है । मेरी दो बहिोिं
की शादी थी क्षदिािंक 30.4.2011 को शादी थी । मेरे
पक्षत िे कहा क्षक जा रही हो उसी तरह वापस आ
जािा मैं अपिे क्षपता के घर से आिे में लेट हो गई तो
क्षदिािंक 2.5.2011को राक्षि में मेरे पक्षत बलबीर िे मुझे
मारा पीटा । गदणि दबा दी । क्षफर ड्यूटी चले गए और
कह गए क्षक तुम मर जािा मैं वापस आए तब तक ।
सुबह आए तो मैं सो रही थी । कहिे लगे तू अभी मरी
िहीिं है । मैंिे कहा क्षक मैंिे कोई बुरा काम िहीिं क्षकया
है सो मर जाऊिं। बलबीर मेरे पक्षत िे कहा क्षक आज मैं
तेरी कहािी खत्म कर दूिंगा। क्षफर इिके द्वारा कमरे से
साइक्षकल क्षिकाली साइक्षकल गली में खड़ी कर आए।
अिंदर मेरे ऊपर क्षमट्टी का तेल डालकर पीछे से
पेटीकोट में आग लगाकर भाग गए। यह मेरे पक्षत
बलवीर िे क्षकया था। आग लगी हुई मैं अपिी बहि
कािंक्षत w/oराम रामक्षवलास के घर भागी उन्ीिं लोगोिं िे
आग बुझाई। मौ0 के लोग आगरा ले गए । अब यहािं
लाकर इलाज करा रहे हैं । बयाि सुिकर तस्दीक
क्षकया। "

15. This shows that there was
altercation between husband and wife. The
husband namely appellant-herein set her
ablaze in the Dying Declaration, we do not
find any semblance of demanding any kind
of dowry for invoking Section 498A of IPC
which reads as follows:

"498A. Husband or relative of
husband of a woman subjecting her to
cruelty.--Whoever, being the husband or
the relative of the husband of a woman,
subjects such woman to cruelty shall be
punished with imprisonment for a term
which may extend to three years and shall
also be liable to fine. Explanation.--For the
purpose of this section, "cruelty" means--

(a) any wilful conduct which is of
such a nature as is likely to drive the
woman to commit suicide or to cause grave
injury or danger to life, limb or health
(whether mental or physical) of the woman;
or

(b) harassment of the woman
where such harassment is with a view to
coercing her or any person related to her
to meet any unlawful demand for any
property or valuable security or is on
account of failure by her or any person
related to her to meet such demand.]"

16. On perusal of Section 498A of
IPC, it is evident that for invoking Section
498A of IPC, demand of dowry, prior to
occurrence is must and in our case that is
missing.
Therefore,
conviction
under
Section 498A of IPC read with Section 4/5
of Dowry Prohibition Act, even without
going by the evidence of the witnesses,
cannot stand scrutiny as none of the
232 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses were present when the incident
occurred. The incident occurred in the four
corners of the house of the appellant but it
cannot be said that there was any demand
of dowry, hence, we cannot subscribe to the
view taken by the learned Trial Judge.

17. This takes us to the factum
whether the Dying Declaration can be
relied upon or not?

18. In light of the decision in
Govindappa and others Versus State of
Karnataka, (2010) 6 SCC 533 and the
latest decision of the Apex Court in Uttam
v. State of Maharashtra, (2022) 8 SCC
576, there is no reason for us not to accept
the dying declaration and its evidentiary
value under Section 32 of Evidence Act,
1872. In the present case the Dying
Declaration is truthful and can be acted
upon in view of the settled legal position.

19. This takes us to the factum of death
of the deceased. The evidence of P.W.8 is
very material for our purpose. P.W., Dr. Ravi
Prakash Sachan, had performed postmortem
on the dead body and had opined that death
was due to septicemia. The deceased died on
19.5.2011. It was a homicidal death. The
Dying Declaration has been proved by P.W.6
& P.W.7 and they have withstood the cross
examination. We are not discussing their
evidence in detail as we are convinced that
the finding of facts as far as homicidal death
is concerned is proved and we concur with
the finding of trial court on that point. The
decisions in Hansraj vs. State of Punjab,
AIR 2000 SC 2324 and Sher Singh vs.
State of Haryana, 2015 (88) ACC 288 (SC)
which the learned Sessions Judge has relied
upon, we also rely on the same.

20. The death was due to burn injuries
which had turned into septicemic death.

21. 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?

22. 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."

23. 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
intention
of
causing death; or
(1)
with
the
intention of causing
death; or
(b)
with
the (2)
with
the
11 All. Balveer Singh Vs. State of U.P.
233
intention
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.

24. We can safely rely upon the
decision of the Gujarat High court in
Criminal Appeal No.83 of 2008 (Gautam
Manubhai
Makwana
Vs.
State
of
Gujarat) decided on 11.9.2013 wherein the
Court held as under:

"12. In fact, in the case of
Krishan vs. State of Haryana reported in
(2013) 3 SCC 280, the Apex Court has held
that it is not an absolute principle of law
that a dying declaration cannot form the
sole basis of conviction of an accused.
Where the dying declaration is true and
correct, the attendant circumstances show
it to be reliable and it has been recorded in
accordance with law, the deceased made
the dying declaration of her own accord
and upon due certification by the doctor
with regard to the state of mind and body,
then it may not be necessary for the court
to look for corroboration. In such cases,
the dying declaration alone can form the
basis for the conviction of the accused. But
where the dying declaration itself is
attended by suspicious circumstances, has
not been recorded in accordance with law
and settled procedures and practices, then,
it may be necessary for the court to look for
corroboration of the same.

13. However, the complaint given
by the deceased and the dying declaration
recorded by the Executive Magistrate and
the history before the doctor is consistent
and seems to be trustworthy. The same is
also duly corroborated with the evidence of
witnesses and the medical reports as well
as panchnama and it is clear that the
deceased died a homicidal death due to the
act of the appellants in pouring kerosene
and setting him ablaze. We do find that the
dying declaration is trust worthy.

14. However, we have also not
lost sight of the fact that the deceased had
died after a month of treatment. From the
medical reports, it is clear that the
deceased suffered from Septicemia which
happened due to extensive burns.

15. In the case of the B.N.
Kavatakar and another (supra), the Apex
Court in a similar case of septicemia where
the deceased therein had died in the
hospital after five days of the occurrence of
the incident in question, converted the
conviction under section 302 to under
section 326 and modified the sentence
accordingly.

15.1 Similarly, in the case of
Maniben (supra), the Apex Court has
observed as under:

"18. The deceased was admitted
in the hospital with about 60% burn
injuries and during the course of treatment
developed septicemia, which was the main
234 INDIAN LAW REPORTS ALLAHABAD SERIES
cause of death of the deceased. It is,
therefore, established that during the
aforesaid period of 8 days the injuries
aggravated and worsened to the extent that
it led to ripening of the injuries and the
deceased died due to poisonous effect of the
injuries.

19. It is established from the
dying declaration of the deceased that she
was living separately from her mother-inlaw, the appellant herein, for many years
and that on the day in question she had a
quarrel with the appellant at her house. It
is also clear from the evidence on record
that immediately after the quarrel she
along with her daughter came to fetch
water and when she was returning, the
appellant came and threw a burning tonsil
on the clothes of the deceased. Since the
deceased was wearing a terylene cloth at
that relevant point of time, it aggravated
the fire which caused the burn injuries.

20. There is also evidence on
record to prove and establish that the
action of the appellant to throw the burning
tonsil was preceded by a quarrel between
the deceased and the appellant. From the
aforesaid evidence on record it cannot be
said that the appellant had the intention
that such action on her part would cause
the death or such bodily injury to the
deceased, which was sufficient in the
ordinary course of nature to cause the
death of the deceased. Therefore, in our
considered opinion, the case cannot be said
to be covered under clause (4) of Section
300 of IPC. We are, however, of the
considered opinion that the case of the
appellant is covered under Section 304
Part II of IPC."

16. In the present case, we have
come to the irresistible conclusion that the
role of the appellants is clear from the
dying declaration and other records.
However, the point which has also weighed
with this court are that the deceased had
survived for around 30 days in the hospital
and that his condition worsened after
around 5 days and ultimately died of
septicemia. In fact he had sustained about
35% burns. In that view of the matter, we
are of the opinion that the conviction of the
appellants under section 302 of Indian
Penal Code is required to be converted to
that under section 304(I) of Indian Penal
Code and in view of the same appeal is
partly allowed.

17.
The
conviction
of
the
appellants - original accused under Section
302 of Indian Penal Code vide judgment
and order dated 19.12.2007 arising from
Sessions Case No. 149 of 2007 passed by
the Additional Sessions Judge, Fast Track
Court No. 6, Ahmedabad is converted to
conviction under Section 304 (Part I) of
Indian
Penal
Code.
However,
the
conviction of the appellants - original
accused under section 452 of Indian Penal
Code is upheld. The appellants - original
accused are ordered to undergo rigorous
imprisonment for a period of ten years and
fine of Rs. 5000/- each in default rigorous
imprisonment for six months under section
304 (Part I) of Indian Penal Code instead
of life imprisonment and sentence in default
of fine as awarded by the trial court under
section 302 IPC. The sentence imposed in
default of fine under section 452 IPC is
also reduced to two months. Accordingly,
the appellants are ordered to undergo
rigorous imprisonment for a period of ten
years and fine of Rs. 5000/-, in default,
rigorous imprisonment for six months for
offence punishable under section 304(I) of
Indian
Penal
Code
and
rigorous
imprisonment for a period of five years and
fine of Rs. 2,000/-, in default, rigorous
imprisonment for two months for offence
punishable under section 452 of Indian
Penal Code. Both sentences shall run
11 All. Balveer Singh Vs. State of U.P.
235
concurrently. The judgement and order
dated 19.12.2007 is modified accordingly.
The period of sentence already undergone
shall be considered for remission of
sentence qua appellants - original accused.
R & P to be sent back to the trial court
forthwith."

25. 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 a matter where the accused
cannot be granted benefit in light of
judgments
relating
to
leniency
in
sentencing. 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.

26. 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.

27. 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
their 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.

28. 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.

29. 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
236 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

30. '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.

31. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Hon'ble
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 Hon'ble
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
11 All. Smt. Anamika Bhardwaj & Ors. Vs. Ashok Gulati & Ors.
237
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

32. Recent judgment of State of M.P
Vs. Jogendra, (2022) 5 SCC 401 and ratio
laid in the said judgment can be followed,
however, instead of seven years period
undergone of imprisonment for at least 10
years would be more than relevant in the
facts and circumstances of this case.

33. Therefore, accused-appellant is
convicted for the offence punishable under
Section 304 (Part I) of IPC and sentenced
to 10 years' rigorous imprisonment. The
fine and default sentence are maintained.

34. In view of the above, this appeal
is partly allowed. The judgment and order
impugned shall stand modified to the
aforesaid extent. Record and proceedings
be sent back to the Court below forthwith.
----------
(2022) 11 ILRA 237
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2022

BEFORE

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

First Appeal From Order No. 3251 of 2010

Smt. Anamika Bhardwaj & Ors.
 ...Plaintiffs/Appellants
Versus
Ashok Gulati & Ors.
 ...Defendants/ Respondents

Counsel for the Appellants:
Sri Hitesh Pachori

Counsel for the Opposite Parties:
Sri Anuj Srivastava
Civil Law - Motor Accident Claim -
Compensation - Income - if the Income
Tax Returns are there, they are the
proof
of
the
income
of
the
deceased/injured
-
income
of
the
deceased would be as per the Income
Tax Returns for the Assessment Year
2006-07, namely, Rs.1,62,500/- per year
- Tribunal erroneously disbelieved the
Income Tax Return as it came to the
conclusion that chalan of paying the tax
was
not
filed
-
Tribunal's
stance
contradicts
a
beneficial
legislative
provision and is untenable - Tribunal did
not award any compensation for future
prospects hence Court granted addition
of 40% towards future loss of income of
the deceased as the deceased was below
40 years of age and was having his own
business - deceased was survived by his
widow
and
a
minor
son,
hence,
deduction towards personal expenses of
the
deceased
would
be
1/3rd
&
Multiplier would be 17 - court granted
Rs.70,000/-
towards
non
pecuniary
damages on which the claimants shall
also be entitled to 10% rise in every
three years - interest at the rate of 7.5%
from the date of filing of the claim
petition till the amount is deposited.
(Para 5,6,7,8, 10,11, 12)

Allowed. (E-5)

List of Cases cited:

1. Laxmi Devi & ors. Vs Mohammad Tabbar &
anr., 2008 ACJ 0184

2. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors., LL 2021 SC 359

3. Anita Sharma Vs New India Assurance Co.
Ltd. (2021) 1 SCC 171.

4. Smt. Upasana & ors. Vs National Insurance
Co. Ltd. & ors. F.A.F.O. No. 1070 of 2017

5. National Insurance Co. Ltd. Vs Pranay Sethi
and others, 2017 LawSuit (SC) 1093

6. A.V. Padma Vs Venugopal, Reported in 2012
(1) GLH (SC), 442