# Chandru & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 10 ILRA 112
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-23
- **Case number:** Criminal Appeal No. 1937 of 1992
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandru-anr-in-jail-v-state-of-u-p-46208
- **Pages:** 7

## Headnote

Law
-
appeal
against
conviction - The Indian Penal Code, 1860 -
Sections 307/34 and 323/34 - Principle of
proportionality
between
the
crime
committed and the penalty imposed are to
be kept in mind - operating the sentencing
system - law should adopt corrective
machinery or deterrence based on factual
matrix - It is the duty of every court to
award proper sentence having regard to
nature of offence and manner of its
commission - courts must not only keep in
view the right of victim of crime but also
society
at
large
-
criminal
justice
jurisprudence adopted in the country is
not
retributive
but
reformative
and
corrective. (Para -13,15 )

Complainant and her husband - assaulted by
accused/appellants - having pharsa and lathi in
their hand - husband of complainant received
injury - caused by pharsa - both accused
persons assaulted injured - trial court convicted
accused persons - appellants does not propose
to challenge the impugned judgement - prayed
for modification of order of sentence - period
already undergone by appellant - hence appeal.

HELD:-Appellants have realized the mistake
committed by them and are remorseful to their
conduct and feel it necessary to serve with their
polite and cooperative behaviour to the society
which they belong to and now they want to
transform themselves into a law abiding citizen,
they should be given a chance to reform
themselves and extend their better contribution
10 All. Chandru & Anr. Vs. State of U.P.
113
to the society to which they belong to. Court
deems it fit to alter the conviction from section
307/34 I.P.C. to section 324 I.P.C.(Para - 16,17)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

112 INDIAN LAW REPORTS ALLAHABAD SERIES

11. To come to a conclusion that the
liquor recovered from the possession of the
appellant would fall within the definition of
section 3(9) of the U.P. Excise Act, it had
to be alleged and established that adding of
Urea was contrary to the notification or that
the said Urea was in excess of what was
prescribed by any notification so as to
render the country liquor as 'denatured'.
There is no such material on record either
before this Court or before the Trial Court
to come to a conclusion that the liquor
recovered was 'denatured'. In the absence
thereof, it could not be said that the liquor
so recovered was rendered 'noxious' for
human consumption and further there is no
material to implicate the appellant under
section 272 of I.P.C. as there was no
material to come to the conclusion that the
said country liquor was intended for sale.
In the absence of any material to
demonstrate that the country liquor so
recovered
was
rendered
'noxious'/'denatured' and was intended for
sale, the conviction of the appellant under
section 272 I.P.C. cannot be justified.
However, the conviction of the appellant
under section 60(2) of the U.P. Excise Act
cannot be faulted with. In view of the
evidence on record as the appellant has
already undergone more than six years in
imprisonment, the appeal is disposed off
with direction that the appellant shall be
released forthwith on the sentence already
undergone.

12. Office is directed to send a copy
of this judgment along with the lower court
record to the court concerned forthwith for
necessary information and compliance.
----------

(2021)10ILR A112
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2021
BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 1937 of 1992

Chandru & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.K.S. Chauhan

Counsel for the Respondent:
A.G.A., Sri Sharad Kumar Srivastava

(A)
Criminal
Law
-
appeal
against
conviction - The Indian Penal Code, 1860 -
Sections 307/34 and 323/34 - Principle of
proportionality
between
the
crime
committed and the penalty imposed are to
be kept in mind - operating the sentencing
system - law should adopt corrective
machinery or deterrence based on factual
matrix - It is the duty of every court to
award proper sentence having regard to
nature of offence and manner of its
commission - courts must not only keep in
view the right of victim of crime but also
society
at
large
-
criminal
justice
jurisprudence adopted in the country is
not
retributive
but
reformative
and
corrective. (Para -13,15 )

Complainant and her husband - assaulted by
accused/appellants - having pharsa and lathi in
their hand - husband of complainant received
injury - caused by pharsa - both accused
persons assaulted injured - trial court convicted
accused persons - appellants does not propose
to challenge the impugned judgement - prayed
for modification of order of sentence - period
already undergone by appellant - hence appeal.

HELD:-Appellants have realized the mistake
committed by them and are remorseful to their
conduct and feel it necessary to serve with their
polite and cooperative behaviour to the society
which they belong to and now they want to
transform themselves into a law abiding citizen,
they should be given a chance to reform
themselves and extend their better contribution
10 All. Chandru & Anr. Vs. State of U.P.
113
to the society to which they belong to. Court
deems it fit to alter the conviction from section
307/34 I.P.C. to section 324 I.P.C.(Para - 16,17)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

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

2. Sham Sunder Vs Puran, (1990) 4 SCC 731

3. St. of M.P. Vs Najab Khan, (2013) 9 SCC 509

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

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

6. Deo Narain Mandal Vs St. of U.P., (2004) 7
SCC 257
7. Shyam Narain Vs St. (NCT of delhi), (2013) 7
SCC 77

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

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

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

11. Kokaiyabai Yadav Vs St. of Chhattisgarh,
(2017) 13 SCC 449

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

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

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

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

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

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

(Delivered by Hon'ble Ajit Singh, J.)

1. This criminal appeal has been filed
against the judgement and order dated
28.10.1992 passed by Special Judge,
Fatehpur in S.T. No. 70 of 1989, under
Sections 307/34 and 323/34 I.P.C., P.S.
Bindki, district-Fatehpur, whereby learned
Judge
convicted
and
sentenced
the
appellant to 4 years rigorous imprisonment
under Section 307 and 307/34 I.P.C. with a
fine of Rs. 500/- each, six months
imprisonment under Section 323/34 and
323 I.P.C.

2. Both the sentences shall run
concurrently.

3. The prosecution story in brief is
that on 5.1.1988 the complainant and her
husband Kali were returning back from
Bindi Bazar to their village and when they
reached near village-Darveshabad both the
accused had assaulted them. Chandu was
having a pharsa in his hand and other
accused-appellant Jokhu was having lathi
in his hand. Upon hearing the hue and cry
Cheda Lal, Chunbad, Uma Shankar and
Kallu, who were residents of the village,
reached at the spot. On their exhortation,
both the accused-appellants ran away from
the place of occurrence. The husband of the
complainant Kalideen had received injury,
which was caused by 'pharsa'. The injured
was taken to the hospital and during
medical examination a fracture was found
in his head.

4. As the case was exclusively triable
by
the
Court
of
Sessions,
learned
Magistrate committed the case to the Court
of
Sessions
and
learned
Additional
Sessions Judge, Fatehpur framed the charge
against the appellants under Sections
307/34 and 323/34 I.P.C. to which the
appellants pleaded not guilty and claimed
to be tried.
114 INDIAN LAW REPORTS ALLAHABAD SERIES

5. To bring home guilt of the
appellants, the prosecution examined four
witnesses. PW1 Kalideen, PW2 Shivliya,
PW3 Cheda Lal and PW4 Dr. Prem Singh.
All the witnesses have specifically stated
that both the accused persons had assaulted
the injured and the trial court after
anylising the evidence on record convicted
the accused persons as aforesaid.

6. At the very outset, learned counsel
for the appellants, on instructions, stated
that he does not propose to challenge the
impugned judgement and order on its
merits.
He,
however,
prayed
for
modification of the order of the sentence
for the period already undergone by the
appellant.

7. In furtherance to his submission, the
learned counsel for the accused-appellants
submits that the incident had taken place in
the year 1988 and the accused-appellants
were convicted in the year 1992. Accusedappellant no. 1, Chandu was 40 years of age
and other accused Jokhu was 25 years of age
respectively at the time of incident and at
present the appellant no. 1 Chandu is more
than 70 years of age and other accused Jokhu
is more than 55 years of age at present. He
also submits that both the accused-appellants
are absolutely innocent and they had not
intended to assault but it happened at the spur
of moment without any premeditation due to
an altercation that took place between the
injured and the accused-appellants. In this
incident the accused persons also suffered
injuries. It is also argued that although the
doctor had opined that frontal bone of the
injured was fractured, yet before Court in his
statement he did not depose that the injury
sustained by the injured was fatal to life. He
also submits that the medical evidence was
not such which could make it out an offence
against the accused appellants to be
punishable under Section 307 I.P.C., still the
accused appellants were convicted under
Section 307/34, 323/34 IPC and they were
subjected to serve out the sentence so
awarded by the impugned judgment. It is also
relevant to bring on record that ten days
imprisonment has already been undergone by
them during trial and after conviction. No
case was to be made out under Section 307
IPC, but at the most it was squarely covered
under Section 324 I.P.C. as the ingredients of
an offence punishable under Sections 307/34
IPC were not present in this matter nor it was
proved by the prosection to be a case made
out under Section 307/34 IPC beyond
reasonable doubt and the offence under
Section 307 or 307/34 IPC is made out only if
the injuries sustained by the injured were
likely to cause death. Since this was not the
case made out here from the medical
evidence, therefore, the offence, if any, will
be covered under Section 324 I.P.C. Further
submission is that it was the first offence of
the accused and after conviction the accused
had not indulged in any other criminal
activity. He next submits that although the
trial court has convicted the present accused
on the basis of mere conjuncture while the
appellants are absolutely innocent and has
been falsely implicated in this case with the
ulterior intention of harassing him. Further
submission is that there is no bread earner in
the family of the appellant. He also submits
that on the question of legality of sentence he
is not pressing this appeal and only pressing
on the quantum of sentence and he has
prayed for taking a lenient view considering
the age of the accused and their age related
ailments.

8. Learned A.G.A. has vehemently
opposed the submission made by learned
counsel for the appellant. He has however,
submits that if slight reduction in sentence
is made, he has no objection.
10 All. Chandru & Anr. Vs. State of U.P.
115

9. I have perused the entire material
available on record and the evidence as
well as judgment of the trial court. The
learned counsel for the accused-appellants
does not want to press the appeal on its
merit and requests to take a lenient view of
the matter.

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

11. In Sham Sunder vs Puran, (1990)
4 SCC 731, where the high court reduced
the sentence for the offence under section
304 part I into undergone, the supreme
court opined that the sentence needs to be
enhanced being inadequate. It was held:

"The
court
in
fixing
the
punishment for any particular crime
should take into consideration the nature
of offence, the circumstances in which it
was committed, the degree of deliberation
shown by the offender. The measure of
punishment should be proportionate to
the gravity of offence."

12. In State of MP vs Najab Khan,
(2013) 9 SCC 509, the high court, while
upholding
conviction,
reduced
the
sentence of 3 years by already undergone
which was only 15 days. The supreme
court restored the sentence awarded by
the trial court. Referring the judgments in
Jameel vs State of UP (2010) 12 SCC
532,
Guru
Basavraj
vs
State
of
Karnatak, (2012) 8 SCC 734, the court
observed as follows:-

"In operating the sentencing
system, law should adopt the corrective
machinery or the deterrence based on
factual matrix. The facts and given
circumstances in each case, the nature of
the crime, the manner in which it was
planned and committed, the motive for
commission of the crime, the conduct of
the accused, the nature of weapons used
and all other attending circumstances are
relevant facts which would enter into the
area of consideration. We also reiterate
that
undue
sympathy
to
impose
inadequate sentence would do more harm
to the justice dispensation system to
undermine the public confidence in the
efficacy of law. It is the duty of court to
award proper sentence having regard to
the nature of offence and the manner in
which it was executed or committed. The
courts must not only keep in view the
rights of victim of the crime but also the
society at large while considering the
imposition of appropriate punishment."
116 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Earlier, "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
proportionately. 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.

In
subsequent
decisions,
the
supreme court has laid emphasis on
proportional sentencing by affirming the
doctrine of proportionality. In Shyam
Narain vs State (NCT of delhi), (2013) 7
SCC 77, it was pointed out that sentencing
for any offence has a social goal. Sentence
is to be imposed with regard being had to
the nature of the offence and the manner in
which the offence has been committed. The
fundamental purpose of imposition of
sentence is based on the principle that the
accused must realize that the crime
committed by him has not only created a
dent in the life of the victim but also a
concavity in the social fabric. The purpose
of just punishment is that the society may
not suffer again by such crime. The
principle of proportionality between the
crime committed and the penalty imposed
are to be kept in mind. The impact on the
society as a whole has to be seen. Similar
view has been expressed in 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.

14. In Kokaiyabai Yadav vs State of
Chhattisgarh(2017) 13 SCC 449, it has
been observed that reforming criminals
who understand their wrongdoing, are able
to comprehend their acts,have grown and
nartured into citizens with a desire to live a
fruitful life in the outside world, have the
capacity of humanising the world.

15. 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
10 All. Chandru & Anr. Vs. State of U.P.
117
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."

16. Considering the facts and
circumstances
of
the
case
and
the
substantive period already undergone by
the appellants in this case and the fact that
the appellants are old and aged persons;
there is no bread-earner in the family and
by so far they have realized the mistake
committed by them and are remorseful to
their conduct and feel it necessary to serve
with their polite and cooperative behaviour
to the society which they belong to and
now they want to transform themselves into
a law abiding citizen, I am of the
considered opinion that they should be
given a chance to reform themselves and
extend their better contribution to the
society to which they belong to.

17. Considering the facts and
circumstances of the case, considering the
evidence
available
on
record
and
considering the nature of injury, this Court
deems it fit to alter the conviction from
section 307/34 I.P.C. to section 324 I.P.C.

18.

Consequently,
taking
into
consideration the period already undergone
in prison by the appellants in this case as
well as considering that they have suffered
physical and mental agony of trial and after
conviction for a long period of about 30
years, the sentence awarded to them under
Section 307/34 is converted under Section
324 I.P.C with fine of Rs. 5000/- each.

19. Accused-appellants are directed to
deposit the fine of Rs. 5,000/-each before
learned lower court within three months
from the date of passing of the judgement,
the entire amount deposited by the
appellants shall be paid to the injured, if he
is alive and in case he is dead then it would
be paid to his legal heirs and in default of
payment of fine as directed above, they
shall undergo simple imprisonment for a
period of fifteen days.

20. Appeal is partly allowed in the
above terms and surety bonds of the
sureties are discharged.

21. Office is directed to transmit a
copy of this order to the learned Sessions
Judge, Allahabad for compliance and
compliance report be submitted to this
Court also.

22. Office is also directed to send
back the record of the trial court
immediately.

23. Office is directed to transmit the
lower court record along with a copy of this
judgment to the learned court below for
information and necessary compliance as
warranted.

24. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad, self attested by the learned
counsel for the applicant alongwith a self
118 INDIAN LAW REPORTS ALLAHABAD SERIES
attested identity proof of the said persons
(preferably Aadhar Card) mentioning the
mobile number (s) to which the said
Aadhar Card is linked before the concerned
Court/Authority/Official.

25.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)10ILR A118
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.10.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 2667 of 1988

Nizam ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Lal Ji Chaudhary A.C.

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code,1860-Section 302-challenge
to-conviction-witnesses PW-1, PW2, PW3
statement corroborated by the medical
evidence-accused stabbed the deceased
with knife-knife was recovered at the
instance of accused from the chappar of
co-accused-knife
was
blood
stainedreport
of
forensic
examination
corroborates
the
prosecution
casestatement of deceased reliable u/s 32 of
The evidence act- prosecution evidence
proves the guilt of the accused-no
illegality in the findings recorded by the
trial court.(Para 1 to 18)

B. Circumstantial evidence-Where the
evidence is of a circumstantial nature,
the
circumstances
from
which
the
conclusion of guilt is to be drawn should
in the first instance be fully established,
and all the facts so established should be
consistent only with the hypothesis of
the guilt of accused. there must be a
chain of evidence so far complete as not
to leave any reasonable ground for a
conclusion consistent with the innocence
of the accused and it must be such as to
show that within all human probability
the act must have been done by the
accused. the instant case is based on
ocular testimony, not on circumstantial
evidence.(Para 16)

C. It is settled principle of law that
oral testimony of a witness cannot be
outrightly
rejected
merely
on
the
ground that he is an interested or
related witness. it requires cautious
scrutiny. Some minor contradictions or
discrepencies are natural but if they
inspire confidence, the statements of
witnesses
cannot
be
discarded
on
some minor contradictions. (Para 13)
(E-6)

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Sri Lal Ji Chaudhary,
learned Amicus Curiae for the appellant,
learned A.G.A. for the State and perused
the record.

2. This criminal appeal has been filed
against the judgment and order dated
16.11.1988 passed by Ist Additional
Sessions Judge, Aligarh in Session Trial
No. 70 of 1987 and connected Session Trial
No. 659 of 1987 convicting and sentencing
the appellant to undergo life imprisonment
under section 302 IPC.