# Balveer Singh v. State of U.P

- **Citation:** (2022) 12 ILRA 136
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-02
- **Case number:** Criminal Appeal No. 2600 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balveer-singh-v-state-of-u-p-47995
- **Pages:** 12

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
12 All. Balveer Singh Vs. State of U.P.
137
Penal Code,1860-Section 302-Challenge
to-Conviction-the incident occurred when
the accused came to the place of incident
100 rupees were demanded which he had
taken from the deceased and there was a
quarrel
between
the
deceased
and
accused and the accused fired at the
deceased and this occurred heat of the
moment-The evidence shows that it was
not a premeditated cold blooded murderPW-1 did not see the deceased shooting at
the deceased-PW-2 and PW-3 turned
hostile-The gun was recovered at the
instance of the accused from a place
which was known only to him- death
caused
by
the
accused
was
not
premeditated, accused had no intention to
cause death of deceased, the injuries were
though sufficient in the ordinary course of
nature to have caused death, accused had
no intention to do away with deceased,
hence the instant case falls under the
Exceptions 1 and 4 to Section 300 of IPC.
(Para 15 to 32)

B.
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. (Para 30 to 32)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

136 INDIAN LAW REPORTS ALLAHABAD SERIES
including two lacerated wounds on his
head, which were duly proved and opined
by the doctor that the injuries were
grievous in nature and fatal to the life and
one of the injured succumbed to death on
account of the injuries sustained during this
occurrence, hence, prosecution proved the
case under Sections 147, 302, 325, 323,
307, 504, 506 I.P.C.

43. Prosecution proved the injuries of
all the injured and the post-mortem by
cogent evidence. The prosecution case is
well corroborated by the medical evidence.
Lathi and danda were recovered from the
possession of the accused-appellants and
recovery memo thereof is proved by P.W.-
9.

44. Learned trial court has given very
evince and valid reasons and elucidated all
the evidence and left no stone unturned in
analyzing the evidence. There is no infirmity
or perversity in the judgment and order
passed by the trial court, hence, we do not
find any reason to interfere with the judgment
and order of trial court passed by Additional
Sessions
Judge,
Court
No.4,
District
Sultanpur in Sessions Trial No.428 of 1999
(State Vs. Ajab Narain And Ors.) arising out
of Case Crime No.177 of 1999, under
Sections 147, 302, 325, 323, 307, 504, 506
I.P.C., Police Station Peeparpur, District
Sultanpur whereby convicting and sentencing
all the accused-appellants i.e. Ajab Narain
Baranwal,
Umesh
Chandra
Baranwal,
Ramesh Chandra Baranwal S/o Ram Kripal,
Ram Karan S/o Mangru, Ram Pal and Ram
Bali S/o Ram Newaj.

45. In view of the above, the appeal is
accordingly dismissed.

46. Accused-appellant no.3, 4 and 7
namely; Umesh Chandra Baranwal, Ram
Karan Yadav and Rambali, respectively are in
jail. They shall serve out the sentence
awarded by trial court and confirmed by this
Court.

47. Accused-appellant nos.1, 2 and 6
namely; Ajab Narain Baranwal, Suresh
Chandra Baranwal and Ram Pal, respectively
are on bail. Their bail bonds stand cancelled
and sureties discharged. They shall surrender
before trial Court concerned within 15 days
from today, failing which, they shall be taken
into custody by the trial court and be sent to
jail to serve out the sentence awarded by trial
court and confirmed by this Court.

48. Let a copy of this judgment and
order as well as record of trial court be
transmitted to the concerned trial court
forthwith for necessary information and
compliance of this order.
----------
(2022) 12 ILRA 136
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2022

BEFORE

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

Criminal Appeal No. 2600 of 2018

Balveer Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Apul Misra, Sri Abhishek Mayank, Sri
S.K. Verma

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
12 All. Balveer Singh Vs. State of U.P.
137
Penal Code,1860-Section 302-Challenge
to-Conviction-the incident occurred when
the accused came to the place of incident
100 rupees were demanded which he had
taken from the deceased and there was a
quarrel
between
the
deceased
and
accused and the accused fired at the
deceased and this occurred heat of the
moment-The evidence shows that it was
not a premeditated cold blooded murderPW-1 did not see the deceased shooting at
the deceased-PW-2 and PW-3 turned
hostile-The gun was recovered at the
instance of the accused from a place
which was known only to him- death
caused
by
the
accused
was
not
premeditated, accused had no intention to
cause death of deceased, the injuries were
though sufficient in the ordinary course of
nature to have caused death, accused had
no intention to do away with deceased,
hence the instant case falls under the
Exceptions 1 and 4 to Section 300 of IPC.
(Para 15 to 32)

B.
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. (Para 30 to 32)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Stalin Vs St. Reptd. by the Insp. of Police
CRLA No.577 of 2020 {SLP (Crl) No.3171 of
2019}

2. Dauvaram Nirmalkar Vs St. of Chht. CRLA
No. 1124 of 2022 {SLP No.2481 of 2022}

3. Ajmal Vs St. of Ker. CRLA No.1838 of 2019

4. St. of U.P. Vs Subhash @ Pappu) CRLA
No.436 of 2022

5. Chherturam @ Chainu Vs St. of Chht. CRLA
No.1317 of 2022

6. Suresh Singhal Vs St. ( Delhi Admin.) CRLA
No.1548 of 2011

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

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

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

10. Khokan@ Khokhan Vishwas Vs St. of Chatt.
(2021) LawSuit (SC) 80

11. Anversinh Vs St. of Guj. (2021) 3 SCC 12

12. Pravat Chandra Mohanty Vs St. of Ori.
(2021) 3 SCC 529

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

14. Gautam Manubhai Makwana Vs St. of Guj.
CRLA No.83 of 2008

15. Krishan Vs St. of Hary. (2013) 3 SCC 280

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

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

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

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

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

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

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

23. Raj Bala Vs St. of Har. (2016) 1 SCC 463
138 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Ajai Tyagi, J.)

1. Heard Sri Abhishek Mayank, learned
counsel for appellant and Sri Vikas Goswami,
learned counsel for State.

2. This appeal has been preferred by the
accused-appellant against the judgment and
order dated 17.4.2018, passed by learned
Additional Sessions Judge, Court No.10,
Aligarh in Sessions Trial No.241 of 2016
(State of Uttar Pradesh Vs. Balveer Singh )
connected with Sessions Trial No.242 of
2016 arising out of Crime No.261 of 2015
connected with Crime No.05 of 2016
convicting the accused - appellant under
Sections 302 of Indian Penal Code, 1860 (in
brevity 'IPC'), Police Station Dadon, District
Aligarh and sentenced the accused-appellant
to undergo imprisonment for life with fine of
Rs.20,000/- and in case of default of payment
of
fine,
further
to
undergo
simple
imprisonment for a period of six months.

3. The prosecution story in brief is as
follows, that on getting the information, it
was scribed by Rajendra Singh s/o Har
Prasad, Ext.Ka-1 written-complaint was
submitted in police-station Dadon, District
Aligarh by the complainant Itwari Singh s/o
Neksey r/o Ramnagar P.S.-Ramnagar P.S.-
Dadon
District-Aligarh
on
18.11.2015
wherein it was mentioned that "Today on
18.11.2015, my brother Kundan aged around
45 years was sitting at his home and Balveer
Singh s/o Bhurey Singh, son of my father's
elder brother, was also present there. My
brother had borrowed Rs.100/- from Balveer
Singh, over the return of which, a dispute
arose between Balveer Singh and Kundan.
On hearing hue and cry, when my wife Smt.
Manoj Devi and he came out of the room,
Balveer Singh son of my father's elder
brother shot my brother Kundan in my
presence and my wife at 9 p.m. and ran away.
While running away, Balveer Singh took
away the tamancha (country made gun) with
him. On raising alarm by me, people from the
surrounding area gathered there, who saw
Balveer Singh running away. The information
of the occurrence was conveyed on Number100. My brother's dead body is lying at the
spot. Please take appropriate action by
lodging my report."

4. On the basis of First Information
Report, Itwri Singh's and also writtencomplaint, case crime no.261 of 2015 u/s 302
IPC against Balveer Singh was registered in
police-station Dadon. Entry of the case was
made in the concerned G.D. of the policestation. During the investigation, Ext.Ka-7
inquest-report was prepared by taking, the
dead body of deceased Kundan in custody of
police and dead body of the deceased was
sent for post-mortem.

5. During the investigation, accused
Balveer was arrested by In-charge of policestation Dadon on 13.01.2016 and on being
frisked, one country-made pistol 315 bore
and one live cartridge were recovered from
Balveer.

6. During investigation, the investigator
inspected the place of occurrence and
prepared the site plan Ext. ka-11 & ka-14 and
recorded the statements of the witnesses.
After investigation, the investigator finding
the prima facie case under section- 302 IPC
& Section-25 Arms Act against the accused
namely Balveer Singh submitted charge sheet
Ext. ka-16 & ka-15 respectively in both
cases.

7. On completion of investigation,
charge-sheet u/s 302 I.P.C. against the
12 All. Balveer Singh Vs. State of U.P.
139
accused was filed. The cognizance was
taken on the charge-sheet by the concerned
Magistrate and the case was committed to
the court of session under section 302 of
I.P.C. .

8. On being summoned, the accusedappellant pleaded not guilty and wanted to
be tried, hence, the trial commenced and
the
prosecution
examined
about
11
witnesses who are as follows:

1
Deposition of Manoj Devi
PW
2
Deposition of Rajendra
PW
3
Deposition of Rajnesh alias Kallu
PW
4
Deposition of Satveer
PW
5
Deposition of Itwari Singh
PW
6
Deposition of constable Amar Singh
PW
7
Deposition of S.I. Ramkant Pachauri
PW
8
Deposition of Dr. Ikrar Ahmad
PW
9
Deposition of S.I. Sadan Singh
PW
10 Deposition of H.C. Naresh Singh
PW
11 Deposition of Inspector B.R. Dikshit
PW

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

1
Written report
Ex.Ka.
2
Chik of FIR
Ex.Ka.
3
Copy of G.D
Ex.Ka.
4
Police form no.-13
Ex.Ka.
5
Letter to R.I.
Ex.Ka.
6
Letter to C.M.O.
Ex.Ka.
7
Inquest report
Ex.Ka.
8
Photo of dead body
Ex.Ka.
9
Chik of FIR
Ex.Ka.
10
Post-mortem report
Ex.Ka.
11
Copy of G.D.
Ex.Ka.
12
Recovery memo of plain
earth and blood stained earth
Ex.Ka.
13
Recovery memo of one
country made pistol 315
Ex.Ka.
14
Site-plan
Ex.Ka.
15
Police Form No.-33
Ex.Ka.
16
Charge-sheet
Ex.Ka.

10. On completion of the prosecution
evidence, the statement of the accused
person u/s. 313 Cr.P.C. were recorded,
wherein the accused stated that owing to
factionalism in the village, the false case
has been lodged against him. The murder of
the deceased was caused by some unknown
criminals and time has been sought for the
defence evidence.

11. Learned counsel for the appellant
has submitted that the trial court vide order
dated 17.4.2018 convicted the accused -
appellant under Section 302 of IPC and
sentenced the accused to imprisonment of
life with fine of Rs.20,000/- in default one
year of incarceration. Learned counsel has
contended that this is a case of no evidence
most of the witnesses have not supported
the prosecution story.

12. Learned counsel for the appellant
has relied on the following decisions of
Apex Court in (a) Criminal Appeal
No.577 of 2020 ( Arising out of SLP (Crl)
No.3171 of 2019 (Stalin Vs. State
represented by the Inspector of Police)
decided on 9.9.2020, Criminal Appeal
No.82 of 2015 ( arising out of SLP ( Crl)
No.9447 of 2012) decided on 14.1.2015,
Criminal Appeal No. 1124 of 2022 (
arising out of Special Leave Petition (
Criminal) No.2481 of 2022) ( Dauvaram
Nirmalkar Vs. State of Chhattisgarh)
decided on 2.8.2022, Criminal Appeal
No.1838 of 2019 ( Ajmal Vs. The State of
Kerala) decided on 12.7.2022, Criminal
Appeal No.436 of 2022 ( The State of
140 INDIAN LAW REPORTS ALLAHABAD SERIES
Uttar Pradesh Vs. Subhash @ Pappu)
decided on 1.4.2022, Criminal Appeal
No.1317 of 2022 ( Chherturam @
Chainu Vs. State of Chhattisgarh)
decided on 13.9.2022 and Criminal
Appeal No.1548 of 2011 (Suresh Singhal
Vs. State ( Delhi Administration) decided
on 13.9.2022 so as to contend that the
accused has not committed any offence and
in alternative to contend that case of
committing murder is not made out against
the accused.

13. Learned counsel for the appellant
after
submitting
for
clean
acquittal
submitted that if the Court is not convinced
he may not press the 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 as the incident
occurred without premeditation. Learned
counsel also submitted that appellant is in
jail
since
14.1.2016.
and
prays
for
conversion of sentence from Section 302 of
IPC to Section 304( Part-I or Part II) of
IPC.

14. Sri Vikas Goswami, learned
counsel appearing on behalf of State
contended that the appeal is merit less. The
evidence of all the witnesses prove the
involvement of the accused . The accused
had committed the offence which has been
proved by pleading cogent evidence. The
death of the deceased was a homicidal
death. All the evidence is against the
appellant- accused and it has been proved
that the accused and accused alone was the
perpetrator
of
death
and
he
has
purposefully inflicted the injury on the
deceased. He did not even care to take her
hospital which shows to a culpable mind
and has requested for dismissal of appeal.

15. The scrutiny of prosecution
evidence reveals that PW-1 Mrs Manoj
Devi has stated on oath that deceased
Kundan
was
elder
brother
of
her
husband(Jeth). Accused Balveer Singh is
younger brother of her husband(Devar). No
quarrel took place between deceased and
accused in front of her. Incident occurred
on 18th at 9 PM. She did not know the
month and day thereof, it was the month of
Kartikya as per Hindu calendar. Thereafter
there was turncoat on her part and
witnesses stated that she has not seen
incident. She reached the place of offence
after deceased had succumbed to his
injuries. She cannot state as to who fired
the gunshot. She had not seen accusedBalveer Singh shooting deceased-Kundan.
This witness was declared hostile on the
basis of application of prosecution and
there was nothing which would prove any
case against the accused.

16. PW-2 Rajendra has stated on oath
that deceased Kundan happens to be his
brother by way of family relations. On 1811-2015 at about 9 P.M. ,he was present at
his home, then only he came to know that
someone has mortally shot Kundan. On
hearing this news, he reached the spot,
Kundan was lying dead in his house. His
body was lying in the varendah. Several
individuals from the village and Mohalla
had gathered on the spot. He stated all had
gone together to the police station. He had
written the complaint at the police station
as per the advice of sub inspector and
villagers. The complaint was submitted to
the sub inspector having written the same.
He had neither written the complaint on the
dictation of Itwari Singh nor had he read
over the same to Itwari Singh after writing
it. This witness has proved written
complaint Ex Ka-1 by his evidence. This
12 All. Balveer Singh Vs. State of U.P.
141
witness was declared hostile on the
application of prosecution.

17. PW-3 Rajnesh alias Kallu has stated
on oath that he came to know on 18.11.2015
at about 9:30 in the night that someone has
killed Kundan by shooting him. He saw body
of Kundan lying outside varendah when he
reached the spot. Several villagers had
gathered there. Police from Dado police
station had reached the spot in the night and
took the body for post mortem after
completing the inquest report. Sub inspector
had obtained my signature on a blank page.
Nothing was written on the paper nor
anything was written on it in front of me, nor
memo was read over by sub inspector. Blood
stained earth and plain earth was not
collected in box by sub inspector in front of
me. This witness was declared hostile on the
application of prosecution.

18. PW-4 Satyaveer has stated on oath
that deceased Kundan happens to be his
Chacha( younger brother of father ) by way
of family relations and his house is at a
distance of about 300 metres from the house
of the deceased. He came to know on
18.11.2015 at 8-9 in the night that some one
had killed Kundan by shooting him. He had
reached the spot. The police from police
station Dado had arrived in the night itself.
The Sub inspector prepared the inquest report
wherein he too was appointed as panch and
my signature was obtained. The witness
verified his signature present on the inquest
report. The police took the dead body in
sealed and stamped condition for post
mortem. The sub inspector did not record my
statement in relation to the incident nor did he
interrogate me nor did the fact of Balveer
Singh firing the shot was stated by me. This
witness
was
declared
hostile
on
the
application of prosecution.

19. In his statement on oath, PW-5
Itwari Singh has stated that the incident had
occurred around one year and four months
ago. The incident had occurred at around 9
pm. He was at home at that time. Kundan
and Balveer Singh were sitting in the
verandah. There was a dispute between
them on a transaction involving 100 rupees.
All of a sudden Balveer Singh opened fire
with a country made pistol on the neck
below the ear of my brother Kundan. He
had clearly seen in the light of an electric
bulb Balveer Singh opening a shot at
Kundan. He opined that his brother Kundan
died immediately after sustaining the shot.
Balveer Singh fled away from the crime
scene after opening the shot. On an alarm
being raised by me, persons from the
village had gathered. Rajendra of the
village had made a call to police at number
100. He had dictated the complaint of the
incident at my home to Rajendra. Rajendra
had read over the contents of the complaint
to me. He had put my thumb impression
over it and lodged an FIR by visiting the
police station. This witness has proved the
written complaint being ext. ka-1 by way of
his evidence. The Sub-Inspector had
reached the crime scene in the night itself
and sent the dead body for post-mortem in
sealed
condition
after
preparing
the
panchayatnama. The Sub-Inspector had
recorded my statement at the crime scene in
the village. He had shown the crime scene
to the Sub-Inspector.

20. PW-6 constable Amar Singh has
in his statement on oath has stated that on
18.11.2015, he was on duty at Police
station Dado. On that day at around 22:20
hours, he had registered case crime no. 261
of 2015 u/s 302 IPC against the accused
Balveer Singh on the written complaint
filed by the complainant Itwari Singh, chik
142 INDIAN LAW REPORTS ALLAHABAD SERIES
whereof was prepared by me on the
computer.

21. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report, there
is no doubt left in our mind about the guilt of
the present appellant as far as death of
deceased is concerned and we conclude that it
was homicidal death caused by appellant.

22. The question which falls for our
consideration is whether, on reappraisal of the
peculiar facts and circumstances of the case,
the conviction of the appellant under Section
302 of I.P.C. 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."

23. 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 Section 299 and 300 of 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 is
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 of
causing such bodily injury
as is likely to 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.
KNOWLEDGE
(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. 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 the offence would
be one punishable under Section 304 part-I
of the IPC.

25. From the upshot of the aforesaid
discussions, it appears that the death caused
by the accused was not premeditated,
accused had no intention to cause death of
deceased,
the
injuries
were
though
sufficient in the ordinary course of nature
to have caused death, accused had no
intention to do away with deceased, hence
the instant case falls under the Exceptions 1
12 All. Balveer Singh Vs. State of U.P.
143
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.

26. 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
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
144 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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."

27. In latest decision in Khokan@
Khokhan
Vishwas
Vs.
State
of
Chattisgarh, 2021 LawSuit (SC) 80 on
which this court relies wherein the facts
were similar to this case, the Apex Court
has allowed the appeal of the accused
appellant and sentenced under Section 304
of IPC. The decision of the Apex Court in
the case of Anversinh v. State of Gujarat,
12 All. Balveer Singh Vs. State of U.P.
145
(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
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.

28. The factual scenario as it emerges
would go to show that the incident occurred
when the accused came to the place of
incident 100 rupees were demanded which
he had taken from the deceased and there
was a quarrel between the deceased and
accused. At about 9:00 p.m. Balbeer fired
at the deceased and this occurred insper of
the moment. The evidence goes to show
that it was not a premeditated cold blooded
murder. However, PW-1 did not see the
deceased shooting at the deceased. PW-2,
has turned hostile. Similar is the case with
PW-3. The gun was recovered at the
instance of the accused from a place which
was known only to him.

29. As narrated herein above the
decision of commission of offence under
Section 302 IPC cannot be concurred by us
in view of the As narrated herein above as
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 ( supra) and we are fortified in our
view by the judgment of Apex Court in the
case of B.N. Kavatakar and Another (
supra) and therefore, we are of the
considered opinion that the offence would
be one punishable under Section 304 part-I
of the IPC and not under Section 302 of
IPC or Section 304 Part -II of IPC.

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

"Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate
rather than avenge. The sub-culture that
leads to ante-social behaviour has to be
countered not by undue cruelty but by
reculturization. Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

31. '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
146 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

32. 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
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.

33. 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.

34. Since the learned counsel for the
appellant has later not pressed the appeal
on merit, however, after perusal of entire
evidence on record and judgment of the
trial court, we consider that the appeal is
required to be partly allowed.

35. 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
12 All. Vikram Vs. State
147
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.

36. On the overall scrutiny of the facts
and circumstances of the case coupled with
medical evidence and the opinion of the
Medical Officer and considering the
principles laid down by the Courts in above
referred case laws, we are of the considered
opinion that in the case at hand, the offence
would be punishable under Section 304
(Part-I) of IPC.

Punishment:

37. The accused is in jail since
14.1.2016. The Apex Court in such cases
has converted the conviction under Section
302 of I.P.C. to under Section 304 Part I of
I.P.C. which will come to the aid of the
accused-appellant.

38. In view of the aforementioned
discussion, we are of the view that the
appeal has to be partly allowed, hence,
appeal is partly allowed. The judgment in
Chherturam @ Chainu ( supra) will enure
for the benefit of the accused and the
judgment of Stalin Vs. State represented
by the Inspector of Police ( supra), we
punish the accused-appellant for eight years
rigorous
imprisonment
and
fine
of
Rs.10000/- in default of fine to undergo one
year rigorous imprisonment.

39. Appellant-accused is in jail since
14.1.2016 till date. On completion of eight
years of incarceration with remission is
over for all the offences and if fine is not
deposited, the default sentence would start
after the period of eight years. The accused-
appellant shall be released on completion
of said period, if not required in any other
case. The accused-appellant would be
entitled to all remissions. The judgment and
order impugned in this appeal shall stand
modified accordingly.

40. Let a copy of this judgment along
with the trial court record be sent to the
Court and Jail Authorities concerned for
compliance.
----------
(2022) 12 ILRA 147
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.09.2022

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Jail Appeal No. 2998 of 2010

Vikram ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Rajesh Kumar Singh, A.C.

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860- Sections 376 & 511Challenge to-Conviction- Accused made an
attempt to commit rape on 5 year girl and
on hearing the hue and cry raised by her
daughter
(victim),
as
her
mother
(informant)
reached
there
and
the
accused ran away arranging his clothes- It
is the settled proposition of law that
conviction can be based on the testimony
of prosecutrix/victim alone without any
corroboration, if the testimony of the
prosecutrix/victim
inspires
confidenceHer evidence would be more reliable than
that of an injured witness. In the present
case,
the
evidence
given
by
the