# Brijesh Harijan v. State of U.P

- **Citation:** (2022) 9 ILRA 106
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-14
- **Case number:** Criminal Appeal No. 2057 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-harijan-v-state-of-u-p-48963
- **Pages:** 10

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 299,300,302, 376 , 376D , 326 , 326-A & 354 - The Code of
criminal procedure, 1973 - Section 207,
313 - murder - culpable homicide not
amounting to murder - Proper Sentence
-
Sentence
should
not
be
either
excessively harsh or ridiculously low -
quantum of sentence - 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 -26)
9 All. Brijesh Harijan Vs. State of U.P.
107
Accused caused injuries to deceased - set her
ablaze - primarily responsible for her death -
dying declaration recorded about after 10 days
of the incident - medical evidence for Section
376 D of IPC is absent - death was caused by
the accused in unison - homicidal death -
accused had no intention to cause death of
deceased - injuries sufficient in the ordinary
course of nature to have caused death - no
intention to do away with deceased. (Para
-
14,20,23)

(B)
Criminal
Law
-
criminal
justice
jurisprudence
-
not
retributive
but
reformative
and
corrective
-
undue
harshness should also be avoided keeping
in
view
the
reformative
approach
underlying in our criminal justice system -
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.(Para -
27,28)

HELD:- Death occurred after ten days, not
premeditated. Death was due to septicemia.
Offence not under Section 302 of I.P.C. but
culpable homicide. Conviction of appellants
under Section 302 of IPC r.w. Section 326 of
IPC converted to conviction under Section 304
(Part-I) of IPC r.w. Section 326 of IPC .
Accused-appellants entitled to all remissions.
Judgment & impugned order modified. (Para -
33,34,37,38)

Criminal appeal partly allowed. (E-7)

List of Cases cited:-

## Text

106 INDIAN LAW REPORTS ALLAHABAD SERIES
injury
as
is
mentioned
above.

53. The evidence available on record
carries us to the conclusion that the incident
was not a pre-motivated one. It was a result
of a sudden quarrel. Whilst deprived of
power
of
self
control
and
sudden
provocation, the accused offender caused
the death of his wife when the deceased
gave him provocation. The ocular evidence
goes to show that when the deceased came
to the shop of the accused a quarrel took
place between the two and the accuded
depriving of the power of the self control
by
grave
and
sudden
provocation
committed the crime with the intention of
causing death of the deceased.

54. 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.

55. In view of the aforementioned
discussion, we are of the view that this
appeal has to be partly allowed, hence, is
partly allowed.

56. The conviction of the appellant
under Section 302 of Indian Penal Code is
converted to conviction under Section 304
(Part I) of Indian Penal Code and the
appellant is sentenced to undergo 10 years
of incarceration with fine, reduced to
Rs.10,000/-. Default sentence is reduced to
three months.

57. Appellant-accused is in jail. If ten
years of incarceration is over, he shall be
released forthwith, if not required in any
other case. He would be entitled to all kind
of remissions. The judgement and order
dated 12.02.2013 shall stand modified
accordingly.
----------
(2022) 9 ILRA 106
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2022

BEFORE

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

Criminal Appeal No. 2057 of 2018
and
Criminal Appeal No. 1802 of 2018

Brijesh Harijan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Mrs. Swati Agrawal, Sri Shivam Tripathi

Counsel for the Respondent:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 299,300,302, 376 , 376D , 326 , 326-A & 354 - The Code of
criminal procedure, 1973 - Section 207,
313 - murder - culpable homicide not
amounting to murder - Proper Sentence
-
Sentence
should
not
be
either
excessively harsh or ridiculously low -
quantum of sentence - 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 -26)
9 All. Brijesh Harijan Vs. State of U.P.
107
Accused caused injuries to deceased - set her
ablaze - primarily responsible for her death -
dying declaration recorded about after 10 days
of the incident - medical evidence for Section
376 D of IPC is absent - death was caused by
the accused in unison - homicidal death -
accused had no intention to cause death of
deceased - injuries sufficient in the ordinary
course of nature to have caused death - no
intention to do away with deceased. (Para
-
14,20,23)

(B)
Criminal
Law
-
criminal
justice
jurisprudence
-
not
retributive
but
reformative
and
corrective
-
undue
harshness should also be avoided keeping
in
view
the
reformative
approach
underlying in our criminal justice system -
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.(Para -
27,28)

HELD:- Death occurred after ten days, not
premeditated. Death was due to septicemia.
Offence not under Section 302 of I.P.C. but
culpable homicide. Conviction of appellants
under Section 302 of IPC r.w. Section 326 of
IPC converted to conviction under Section 304
(Part-I) of IPC r.w. Section 326 of IPC .
Accused-appellants entitled to all remissions.
Judgment & impugned order modified. (Para -
33,34,37,38)

Criminal appeal partly allowed. (E-7)

List of Cases cited:-

1. St. of Assam Vs Ramen Dowarah, LAWS(SC)
2016 19

2. Mahavir Singh Vs St. of Haryana, LAWS(SC)
2014 5 62

3. The St. of U.P. Vs Subhash @ @ Pappu ,
Criminal Appeal No.436 of 2022

4. Khokan @ Khokhan Vishwas Vs St. of
Chhattisgarh, Criminal Appeal No.121 of
2021

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

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

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

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

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

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

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

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

15. Raj Bala Vs St. of Haryana, (2016) 1 SCC
463

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard Mrs. Swati Agrawal assisted
by Sri Shivam Tripathi, learned counsel for
the appellants in both the appeals and Sri
Vikas Goswami, learned AGA for State.

2. Both these appeals have been
preferred by the appellants against the
judgment and order dated 17.3.2018,
passed by learned Additional Sessions
Judge, Court No.1, Gazipur in Sessions
Trial No.59 of 2016 (State of Uttar Pradesh
v. Vinod Harijan and another ) arising out
of Case Crime No.147 of 2016, under
Sections 302, 376 and 326 of Indian Penal
108 INDIAN LAW REPORTS ALLAHABAD SERIES
Code, 1860 (in brevity 'IPC'), Police
Station Mohammadabad, District Gazipur.

3. The learned Additional Sessions
Judge has sentenced the accused-appellants
in the following manner and has directed
that
all
the
sentences
shall
run
concurrently:

Conviction
under Section
Sentence
Awarded
Fine
Default
Sentence
302 of I.P.C.
Life
imprisonment
Rs.20,00
0/-
1 year

326 of I.P.C.
10 years
Rs.20,00
0/-
1 year
376 of I.P.C.
Life
imprisonment
Rs.20,00
0/-
1 year

4. The facts of the present case are that
complainant Parvati w/o Jaggu Harijan had
given
written
report
in
police
station
Muhammadabad that when she had gone to
Bihar with her husband to harvest paddy, her
daughter namely Soni (hereinafter called as
victim/deceased) aged about 18 years was alone
at home. On 07.01.2016, Vinod Harijan S/o
Patiram Harijan and Brijesh Harijan S/o Phool
Chand Harijon, having found her daughter
alone, started molesting her. When her daughter
namely Soni opposed, they set her ablaze
pouring kerosene oil on her person as a result of
which entire person of her daughter got burnt
thereafter the villagers admitted her daughter in
District Hospital, Ghazipur. On receiving
information, when she reached near her
daughter she had conveyed the aforesaid facts
and that was the basis of the said writtencomplaint of the case by complainant Parvati
Devi registered as case crime no.-147/2016
being registered against the accused persons
Vinod Harijan and Brijesh Harijan u/s 354, 326A I.P.C. in police-station Muhammadabad.

5. On the basis of the writtencomplaint of the complainant Parvati Devi,
entry of chik-report dated 17.01.2016 was
made at police-station Muhammadabad at
9:30 o'clock(sic). Very strangely dying
declaration recorded on 17.1.2016 i.e. 10
days after the occurrence. The investigation
of the case was conducted by the then
Investigating-Officer who inspected the
scene of the occurrence, prepared the sitemap of the scene of occurrence, recorded
the statements of the witnesses and after
completing all the necessary formalities,
the charge-sheet was filed against accused
persons Vinod Harijan and Brijesh Harijan
under Section 302, 376-D and 326-A of
Indian Penal Code for trial in the Subordinate court. Investigation was moved
into motion and after recording statements
of various persons, the Investigating
Officer submitted the charge-sheet against
accused.

6. The case being exclusively triable
by sessions court, copies of prosecution
documents were supplied to the accused
persons by the Hon'ble Sub-ordinate Court
u/s 207 Cr.P.C., and the case was
committed to the sessions court for trial on
10.03.2016.

7. On being summoned, the accusedappellants pleaded not guilty and wanted to
be tried, hence, the trial started and the
prosecution examined about 12 witnesses
who are as follows:
1
Deposition
of
Parvati Devi
12.5.2016
31.5.2016
PW1
2
Deposition
of
Jaggu
Ram

4.6.2016
PW2
3
Deposition
of
Deyu
Ram

2.7.2016
PW3
4
Deposition
of
Sudarshan Prasad

27.7.2016
PW4
9 All. Brijesh Harijan Vs. State of U.P.
109
5
Deposition of Dr.
Surendra Kumar

2.9.2016
PW5
6
Deposition of Dr.
Umesh
Kumar

2.9.2016
PW6
7
Deposition
of
Dr.Sanjay Mohan
Gupta

29.9.2016
PW7
8
Deposition
of
Dileep
Kumar
Singh
14.10.2016
PW8
9
Deposition
of
R.K. Yadav
4.11.2017
PW9
10
Deposition
of
Kalawati
Devi

8.11.2017
PW10
11
Deposition
of
Prashant Kumar
Srivastava
2.1.2018
PW11
12
Deposition
of
Ram
Samujh
Singh
1.2.2018
PW12

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

1
F.I.R.
17.1.2006
Ex.Ka.8
2
Written Report

Ex.Ka.1
3
Dying Declaration
17.1.2016
Ex.Ka.2
4
Recovery
memo
of
pieces
of
'Gudari'
Kambal and Burnt Ban,
Cloth and Ash
19.1.2016
Ex.Ka.7
5
Injury Report
7.1.2016
Ex.Ka.3
6
Medical Report
17.1.2016
Ex.Ka.4
7
Postmortem report
25.1.2016
Ex.Ka.5
8
Panchayatnama
25.1.2016
Ex.Ka.12
9
Charge sheet
27.2.2016
Ex.Ka.10
10 Site plan
19.1.2016 Ex.Ka.6
11 G.D. Entry

Ex.Ka.9
12 Rojnamacha
10.2.2016
Ex.Ka11

9. After concluding the prosecution
evidence, the statements of the accused
persons were recorded u/s 313 Cr.P.C., in
which the accused persons have stated the
prosecution story to be wrong and the case
to have been initiated against them out of
enmity. The accused persons have, in
additional statement, stated that the police
of PS Muhammadabad has filed chargesheet by collecting fake evidence in
collusion with the opposite parties of the
village and out of their enmity.

10. At the end of the trial and after
recording the statement of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the appellants as mentioned
herein above. Being aggrieved by and
dissatisfied with the aforesaid judgement
and order passed by the Sessions Court, the
appellants have preferred the present
appeal.

11. Learned counsel for the appellants
has submitted that no offence as alleged has
been committed by the accused. It is further
submitted that the accused had no motive to
do away with the deceased and that the
death of the deceased was due to medical
negligence and was after a considerable
period of time from the date of commission
of offence.

12. Learned counsel for the appellant
has relied on the decision of Supreme Court
in (a) State of Assam Versus Ramen
Dowarah,
LAWS(SC)
2016
19
(b)
Mahavir Singh Vs. State of Haryana,
LAWS(SC) 2014 5 62 (c) Criminal
Appeal No.436 of 2022 (The State of
Uttar Pradesh Vs. Subhash @ @ Pappu)
decided on 1.4.2022 by the Apex Court
and in Criminal Appeal No.121 of 2021 (
110 INDIAN LAW REPORTS ALLAHABAD SERIES
Khokan @ Khokhan Vishwas Vs. State
of Chhattisgarh) decided on 11.2.2021 by
the Apex Court so as to contend that the
decision of imprisonment for life is bad and
life could not be till the last breath and the
conviction under Section 302 read with
Section 326 and 376 of I.P.C. is not made
out. In alternative, it is submitted that the
the offence would be under Section 304
Part II or Section 304 Part I of I.P.C as per
the decisions narrated herein above on
which heavy reliance is being placed by the
counsel for the appellants. It is further
submitted that if the Court comes to the
conclusion that the accused has committed
the offence, in that case as the accused have
been in jail for more than 6 years without
remission, he may be granted fixed term
punishment of incarceration.

13. It has been vehemently submitted
by learned A.G.A. for the State that the
offences alleged are gruesome and the
offences having been committed by the
appellants is conclusively proved by dying
declaration. Learned counsel has taken us
through the evidence on record and the
manner in which the deceased was raped
and then out of fear was done to death. Sri
Vikas Goswani, learned A.G.A. for the
state has submitted that life imprisonment
awarded to the accused in the facts and
circumstances of the case was the only
punishment which could be awarded to the
accused-appellants
and
requested
for
dismissal of appeal.

14. Before we start considering the
evidence which we are not elaborately
discussing, the reason being it is proved
conclusively that the accused have caused
injuries to the deceased and set her ablaze
which was primarily responsible for her
death. The alternative prayer about lesser
punishment is to be considered.

15. 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 languishing in
jail for the past more than 6 years.

16. 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 appellants as far as
death of deceased is concerned.

17. However, 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, 376 and
326 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."

18. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
9 All. Brijesh Harijan Vs. State of U.P.
111
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
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
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 cause death;
or
(2) with the intention
of
causing
such
bodily injury as the
offender knows to be
likely to cause the
death of the person
to whom the harm is
caused;
KNOWLEDGE
KNOWLEDGE
(c)
with
the
knowledge that the
act is likely to cause
death.
(4)
with
the
knowledge that the
act is so immediately
dangerous
that
it
must
in
all
probability
cause
death or such bodily
injury as is likely to
cause
death,
and
without any excuse
for incurring the risk
of causing death or
such injury as is
mentioned above.

19. While considering the evidence as
considered by the learned Trial Judge and
looking to the medical evidence, the
accused
were
earlier
charged
with
commission of offence under section 354 of
IPC read with 326 of IPC. The deceased
was aged 28 years of age. The postmortem
of the deceased was conducted. The dying
declaration dated 17.1.2016 read with the
ocular version of witnesses and the
evidence narrates that the deceased was
raped and after being scared, both the
accused tried to set her ablaze. The dying
declaration dated 17.1.2016 was recorded,
namely ten days after the said incident
occurred. The injuries report, the medical
report and the finding of facts would go to
show that the death occurred due to burn
injuries. In evidence of PW-1, he has
mentioned that both the accused tried to
molest her daughter and when she resisted,
they set her ablaze. In cross examination,
she has accepted that she and her husband
were not in their house. PW-2 came to
know
about
the
said
accident
on
telepathically information given by the
villagers. PW-1, PW-2 & PW-3 were not
eye witnesses. PW-4 who was the Naib
Tehsildar stated that his daughter was 70%
burned and was admitted in the Hospital.

20. We are pained to mention that the
dying declaration is recorded about after 10
days of the incident. The medical evidence
for Section 376 D of IPC is absent and
therefore it is very difficult to concur with
the trial court as far as punishment under
Section 376 D of IPC is concerned.
Learned Judge nowhere discusses as to
how and on what basis he accepts that
offence under Section 376 D of IPC was
committed when the other witnesses have
mentioned that the accused tried to molest
the deceased. The evidence of Doctors,
PW-5, PW-6 and PW-7 are also silent to
112 INDIAN LAW REPORTS ALLAHABAD SERIES
this effect. Very unfortunate that PW-4 and
PW-5 do not throw any light whether the
deceased was forced to forcible sex or not.
PW-6 had also examined the deceased on
the very same date. She was in her senses
when dying declaration was recorded. Even
PW-7 who had performed the postmortem
nowhere mentioned that there was forcible
sex with the deceased. Except the dying
declaration recorded after 11 days, there is
no medical evidence to corroborate that the
rape was committed on the deceased.

21. This case pertains to the offence
of 'rape', defined under Section 375 IPC,
which is quoted as under:

[375. Rape.- A man is said to
commit "rape" if he-

(a) penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a woman or makes her to do so
with him or any other person; or

(b) inserts, to any extent, any
object or a part of the body, not being the
penis, into the vagina, the urethra or anus
of a woman or makes her to do so with him
or any other person; or

(c) manipulates any part of the
body of a woman so as to cause penetration
into the vagina, urethra, anus or any part
of body of such woman o/r makes her to do
so with him or any other person; or

(d) applies his mouth to the
vagina, anus, urethra of a woman or makes
her to do so with him or any other person,

under the circumstances falling
under
any
of
the
following
seven
descriptions :-

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- With her consent, when
her consent has been obtained by putting
her or any person in whom she is
interested, in fear of death or of hurt.

Fourthly.- With her consent,
when the man knows that he is not her
husband and that her consent is given
because she believes that he is another man
to whom she is or believes herself to be
lawfully married.

Fifthly.- With her consent when,
at the time of giving such consent, by
reason
of
unsoundness
of
mind
of
intoxication or the administration by him
personally or through another of any
stupefying or unwholesome substance, she
is unable to understand the nature and
consequences of that to which she gives
consent.

Sixthly.- With or without her
consent, when she is under eighteen years
of age.

Seventhly.- When she is unable to
communicate consent.

Explanation 1.- For the purposes
of this section, "vagina" shall also include
labia majora.

Explnation 2.- Consent means an
unequivocal voluntary agreement when the
woman by words, gestures or any form of
verbal
or
non-verbal
communication,
communicates willingness to participate in
the specific sexual act.

Provided that a woman who does
not physically resist to the act of
penetration shall not by the reason only of
that fact, be regarded as consenting to the
sexual activity.

Exception
1.-
A
medical
procedure
or
intervention
shall
not
constitute rape.

Excpetion 2.- Sexual intercourse
or sexual acts by a man with his own wife,
the wife not being under fifteen years of
age, is not rape.]

22. In that view of the matter the
conviction u/s 376 IPC cannot be concurred
with and requires to be set aside as there
9 All. Brijesh Harijan Vs. State of U.P.
113
are no sign of forcible sex with deceased.
The dying declaration for this aspect could
not be acted upon.

23. From the upshot of the aforesaid
discussions, it appears that the death was
caused by the accused in unison and it was a
homicidal death whether the same was not
premeditated or premeditated will have to be
seen. The 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. 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.

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. 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."

26. '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.

27. 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
114 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

28. 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.

29. Since the learned counsel for the
appellant has 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 as guilt of accused is established from
dying declaration and the ocular evidence of
witnesses plus injuries caused on the deceased
primary sufficient to fastening her death at a
very young age.

30. 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.

31. We are unable to agree with the
submission of learned learned A.G.A. as far as
it relates to the finding of the court below that
the death was a premeditated murder and falls
within provisions of Section 300 of IPC and the
sentence under Section 302 IPC is just and
9 All. Shamshad Vs. State
115
proper. The reason for the same is that the
deceased did not die and insistence death had it
been a premeditated murder, the injuries on the
body would have caused her immediate death.

32. One more glaring fact is that from the
record of the medical papers that the deceased
survived for more than ten days. She was
admitted in District Hospital, Ghazipur and
thereafter she developed fissure and later on
during treatment, she breathed her last due to
septicemia. Though we concur with learned
Trial Judge that the death was homicidal death
we are unable to accept the submission of Sri
Vikas Goswami, learned A.G.A.

Punishment:

33. In view of the judgment of the Apex
Court in State of Uttar Pradesh Vs. Subhash @
Pappu ( supra) and Khokan @ Khokhan
Vishwas Vs. State of Chhattisgarh ( supra) will
enure for the benefit for the accused-appellants
as the death occurred after ten days was not a
premeditated.

34. We come to the definite conclusion
that the death was due to septicemia. The
judgments cited by the learned counsel for the
appellant would permit us to uphold our finding
which we conclusively hold that the offence is
not under Section 302 of I.P.C. but is culpable
homicide.

35. The accused are in jail since
17.1.2016. The Apex Court in such cases has
converted the conviction under Section 302 of
I.P.C. to Section 304 Part I of I.P.C. which will
come to the aid of the accused.

36. In view of the aforementioned
discussion, we are of the view that the appeals
have to be partly allowed, hence, appeals are
partly allowed.

37. The conviction of the appellants under
Section 302 of Indian Penal Code read with
Section 326 of Indian Penal Code is converted
to conviction under Section 304 (Part-I) of
Indian Penal Code read with Section 326 of
Indian Penal Code and the appellants are
sentenced to undergo 10 years of incarceration
with fine reduced at Rs.10,000/- for offence u/s
304(Part-I) of IPC and 10 years for offence
under Section 326 with fine of Rs.5,000/- for
default sentence . The accused shall under go
incarceration for six month both serves to run
concurently.

38. Appellants-accused are in jail since
17.1.2016. On completion of 10 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 ten
years. The accused- appellants shall be released
on completion of said period, if not required in
any other case. The accused-appellants would
be entitled to all remissions. The judgment and
order impugned in this appeal shall stand
modified accordingly.

39. Let a copy of this judgment along
with the trial court record be sent to the Court
and
Jail
Authorities
concerned
for
compliance.
----------
(2022) 9 ILRA 115
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.09.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE MRS. JYOTSNA SHARMA, J.

Jail Appeal No. 2994 of 2010

Shamshad ...Appellant
Versus
State ...Opposite Party