# Devendra Singh v. State of U.P

- **Citation:** (2022) 10 ILRA 1018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-10
- **Case number:** Criminal Appeal No. 2601 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/devendra-singh-v-state-of-u-p-47660
- **Pages:** 8

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 32 - Dying Declaration recorded
by Investigating Officer- The statement of
the deceased under Section 161 CrPC
recorded by the Investigating Officer is a
cogent and reliable piece of evidence and
is admissible as dying declaration and the
10 All. Devendra Singh Vs. State of U.P.
1019
prosecution undoubtedly can rely upon
this statement.

Settled law that the statement of the deceased
recorded u/s 161 of the CrPc would be treated
as a dying declaration as there is no reason for
the police officer to falsely implicate the
accused.

Indian Evidence Act, 1872- Sections 11 &
106- The fact that at the time of
occurrence accused was not present on
the
spot
was
especially
within
the
knowledge of the accused and since the
prosecution had discharged its burden on
the basis of dying declaration Ext. ka-9,
the onus was shifted upon the accused to
show that his plea of alibi was true.
Section 106 Evidence Act is not intended
to relieve prosecution from discharging its
duty to prove guilt of accused. Prosecution
must discharge its primary onus of proof
and establish the basic facts against the
accused in accordance with law and only
thereafter may Section 106 be restored to,
in the facts and circumstances of each
case-The accused has not succeeded to
discharge his onus / burden to prove his
plea of alibi.

Once the prosecution discharges its initial
burden by proving the dying declaration, which
is admissible under section 32 of the Evidence
Act, then the onus shifts upon the accused to
prove the plea of alibi as well as the burden of
giving a credible explanation of the facts
especially within his knowledge that led to the
death of the deceased.

Indian Penal Code, 1860- Section 304 IPC
-
life
imprisonment
-
Quantum
of
Sentence- Proportionate Sentence- 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. 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
the
sentence
of
life
imprisonment
awarded
under Section 304
IPC
by
learned trial court to the appellant is too
harsh and severe keeping in view the facts
and circumstances of this case. The
appellant is in jail for the last more than 9
years. Since the appellant has already
served-out more than 9 years sentence,
the sentence of life imprisonment under
Section 304 IPC is converted into the
sentence already undergone.

Settled
law
that
punishment
should
be
proportionate to the gravity of the offence and
the manner of its commission and undue
harshness should be avoided hence, while
striking a balance between deterrence and
reform, endeavour should be to provide an
opportunity to the convict to be reformed and
assimilated
in
the
national
mainstream.
Accordingly sentence of life imprisonment
modified to period already undergone by the
accused/appellant. (Para 13, 15, 16, 23, 24, 25,
26, 27)

Criminal Appeal partly allowed. (E-3)

Judgements/Case law relied upon:-

## Text

1018 INDIAN LAW REPORTS ALLAHABAD SERIES

35. While perusing the FIR and other
fact, it cannot be said that there was no
common intention. All the accused had an
unison after the incident come to the place of
offence and assaulted the deceased though
the incident occurred due to petty dispute
which had arisen and there is a single blow.

36. We are in agreement with the
submission of Sri Vikas Goswami, learned
AGA that the presence of all the accused is
proved as per the evidence of PW- 1 and 2
and there is no denial of presence of the
accused. Section 302 read with Section 34 of
IPC is made out.

37. 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 principle
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) IPC.

Punishment:

38. The main accused- Kuldeep has
died during the pendency of this litigation.

39. The accused is in jail since
4.5.2017. The Apex Court in such cases has
converted the conviction under Section 302
read with Section 34 of I.P.C. to Section 304
Part I of I.P.C. which will come to the aid of
the accused.

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

41. Appellant-accused is in jail
since 4.5.2017. On completion of seven
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 seven
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.

42. Let a copy of this judgment
along with the trial court record be sent
to the Court and Jail Authorities
concerned for compliance.
----------
(2022) 10 ILRA 1018
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.10.2022

BEFORE

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

Criminal Appeal No. 2601 of 2016

Devendra Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Mrs. Vatsala, Sri Pankaj Srivastava, Sri S.S.
Rajput, Sri Shri Krishan Yadav, Sri R.S. Nisit

Counsel for the Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 32 - Dying Declaration recorded
by Investigating Officer- The statement of
the deceased under Section 161 CrPC
recorded by the Investigating Officer is a
cogent and reliable piece of evidence and
is admissible as dying declaration and the
10 All. Devendra Singh Vs. State of U.P.
1019
prosecution undoubtedly can rely upon
this statement.

Settled law that the statement of the deceased
recorded u/s 161 of the CrPc would be treated
as a dying declaration as there is no reason for
the police officer to falsely implicate the
accused.

Indian Evidence Act, 1872- Sections 11 &
106- The fact that at the time of
occurrence accused was not present on
the
spot
was
especially
within
the
knowledge of the accused and since the
prosecution had discharged its burden on
the basis of dying declaration Ext. ka-9,
the onus was shifted upon the accused to
show that his plea of alibi was true.
Section 106 Evidence Act is not intended
to relieve prosecution from discharging its
duty to prove guilt of accused. Prosecution
must discharge its primary onus of proof
and establish the basic facts against the
accused in accordance with law and only
thereafter may Section 106 be restored to,
in the facts and circumstances of each
case-The accused has not succeeded to
discharge his onus / burden to prove his
plea of alibi.

Once the prosecution discharges its initial
burden by proving the dying declaration, which
is admissible under section 32 of the Evidence
Act, then the onus shifts upon the accused to
prove the plea of alibi as well as the burden of
giving a credible explanation of the facts
especially within his knowledge that led to the
death of the deceased.

Indian Penal Code, 1860- Section 304 IPC
-
life
imprisonment
-
Quantum
of
Sentence- Proportionate Sentence- 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. 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
the
sentence
of
life
imprisonment
awarded
under Section 304
IPC
by
learned trial court to the appellant is too
harsh and severe keeping in view the facts
and circumstances of this case. The
appellant is in jail for the last more than 9
years. Since the appellant has already
served-out more than 9 years sentence,
the sentence of life imprisonment under
Section 304 IPC is converted into the
sentence already undergone.

Settled
law
that
punishment
should
be
proportionate to the gravity of the offence and
the manner of its commission and undue
harshness should be avoided hence, while
striking a balance between deterrence and
reform, endeavour should be to provide an
opportunity to the convict to be reformed and
assimilated
in
the
national
mainstream.
Accordingly sentence of life imprisonment
modified to period already undergone by the
accused/appellant. (Para 13, 15, 16, 23, 24, 25,
26, 27)

Criminal Appeal partly allowed. (E-3)

Judgements/Case law relied upon:-

1. Mukesh Bhai Gopal Bhai Barot Vs St. of Guj.,
2010 AIR SCW 5614

2. Pradeep Bisoi Vs St. of Odisha, (2019) 11 SCC
500

3. Satye Singh & anr. Vs St. of U.K, (2022) 5
SCC 438

4. Shambu Nath Mehra Vs St. of Ajmer, AIR
1956 SC 404

5. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926

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

7. Ravada Sasikala Vs St. of A.P., AIR 2017 SC
1166
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Nalin Kumar Srivastava, J.)

1. Present Criminal Appeal has been
directed against the judgment and order
dated 8.4.2016 passed by the Additional
Sessions Judge Court No.1, Hathras in
Sessions Trial No. 51 of 2014 (Case Crime
No. 134 of 2013), P.S. Hasayan, District
Hathras convicting and sentencing the
appellant under Section 304 I.P.C. for life
imprisonment and a fine of Rs. 20,000/-
with stipulation of default clause.

2. Brief facts, as culled out from the
record, are that a First Information Report
was lodged by the informant, Yogesh Kumar
son of Rohan Singh, resident of village
Pakshi Bihar, Police Station Jalesar, Etah, at
Police Station Hasayan, District Hathras with
the averments that marriage of her sister,
Vimlesh, was solemnized with Devendra
Ram son of Tikam Singh, resident of Buzurg
about 12 years back. Two children were born
out from their wedlock. On 10.4.2013 at
about 4.00 p.m. Devendra poured kerosene
upon the sister of informant and set her
ablaze due to which she received burn
injuries. Devendra had brought the victim to
Aligarh for treatment but he fled from
hospital leaving the victim there. Informant
brought the victim from the hospital to the
police station in an injured condition to lodge
the F.I.R..

3. On the basis of the written report
(Ext. ka-1), chik First Information Report
(Ext. Ka-11) was registered at Police Station
concerned on 11.4.2013 at 11.35 p.m. against
the applicant Devendra.

4. Matter was investigated by SubInspector Jiya Lal. During the course of
investigation, the Investigating Officer
recorded the statement of witnesses and the
victim /deceased, prepared site plan,
inquest report was also prepared and post
mortem was performed. After making
thorough investigation, charge sheet was
submitted against the accused appellant.
The learned Magistrate summoned the
accused and committed the case to Court of
Sessions, as prima facie charge was for the
sessions triable offence.

5. The charge framed was under
Section 304 IPC. The accused pleaded not
guilty and wanted to be tried. Trial started
and in support of its case, prosecution
examined 7 witnesses, who are as follows:

1
Yogesh Kumar
PW-1
informant
(brother
of
the
deceased)
2
S.I. Mohd. Aslam PW-2
(performed
the
inquest
and
prepared
other
papers)
3
Dr. R.P. Singh
PW-3
(prepared
injury report of the
victim)
4
Radhapyari
PW-4
5
Rohan Singh
PW-5
6
S.I. Jiya Lal
PW-6
(Investigating
Officer)
7
Dr. Iqrar Ahmad PW-7
(performed
the post mortem of
the deceased)

6. In support of oral version,
following documents were filed and proved
on behalf of the prosecution:
10 All. Devendra Singh Vs. State of U.P.
1021
1
Written report
Ext. A-1
2
Inquest Report
Ext. A-2
3
Challan Nash
Ext. A-3
4
Letter to R.I.
Ext. A-4
5
Letter to C.M.O.
Ext. A-5
6
Photo Nash
Ext. A-6
7
Injury report
Ext. A-7
8
Site Plan
Ext. A-8
9
Copy of case diary Ext. A-9
10 Charge sheet
Ext. A-10
11 Chik F.I.R.
Ext. A-11
12 Copy G.D.
Ext. A-12
13 Post mortem report Ext. A-13

7. Deceased was hospitalised after the
occurrence by her husband. She died after 7
days of the occurrence during the course of
treatment.

8. After conclusion of evidence,
statement of accused was recorded under
Section 313 of Cr.P.C., in which he pleaded
his false implication and claimed alibi. In
support of its case defence has examined
Ranvir Singh as DW-1.

9. Heard Shri S.S. Rajput, learned
counsel for the appellant and Shri Patanjali
Mishra, learned AGA for the State.

10. Learned counsel for the appellant
submitted that accused has been falsely
implicated in this case. He has not
committed the present offence. Deceased
was the wife of the appellant. It is further
argued that on the basis of analysis of
prosecution evidence, no guilt against the
accused
appellant
is
established
and
proved. Learned trial court misread the
evidence and convicted and sentenced the
appellant. In alternative, it is submitted that
this appeal relates to the year 2016 and the
appellant is in jail since 07.10.2013 i.e. for
more than nine years. The sentence for life
imprisonment awarded to the appellant by
the trial court is very harsh and excessive.
If the Court deems it appropriate, as the
accused has been in jail for more than 9
years without remission, he may be granted
fixed term punishment of incarceration.

11. No other point or argument was
raised by the learned counsel for the
appellant and he confined his arguments on
above points only.

12. Learned AGA for the State
vehemently opposed the submissions made
on behalf of the appellant and submitted
that PW-4, the mother of the deceased and
PW-5, father of the deceased, have
supported the prosecution case in their
testimonies. Several burn injuries were
found on the body of the deceased. Hence,
while going through the evidence on
record, it cannot be said that the offence
under Section 304 IPC is not made out
against he appellant. The learned trial court
has not committed any error in convicting
and sentencing the accused-appellant under
Section 304 IPC. There is no merit in the
appeal and the same may be dismissed.

13. Learned Judge has categorically
relied upon the testimony of PW-7 Dr. Iqrar
Ahmad and has opined that deceased died
out of septicemia as a result of ante mortem
thermal
burn.
The
postmortem
was
conducted on 18.4.2013. Though P.W.-1 -
informant in his examination-in-chief has
supported the prosecution case yet in his
cross-examination he did not support and
resiled from his earlier statement. PW-4
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
and PW-5 have supported the prosecution
case and stated that the accused used to
beat the deceased. There was a quarrel
between them for returning the borrowed
money from one Jaipal Singh. Deceased
has stated before the Investigating Officer
that the appellant has set her ablaze by
pouring kerosene due to which she was
severely burnt. The genesis of setting her
ablaze was non-payment of borrowed
money. The said statement has been proved
by PW-6 in verbatim, the Investigating
Officer as Ext. K-9, which was admissible
under Section 32 of Evidence Act. As per
Ext. A-9 the deceased had stated before the
Investigating Officer as under :

"मेरी शादी देवेन्द्र के साथ हुई थी
और वो मुझे परेशान करता था, मारता-पीटता
था। उधार के रूपये वापस करने के ऊपर मारपीट की थी, झगड़ा हुआ था। इस कारण
"कदनाोंक 10.4.13 को मेरे पकत देवन्द्र ने खेत से
जौ कनकलवाकर बाजार में बेच कदया था-------
इसी बात पर कदन के चार बजे मेरे पकत देवेन्द्र ने
मेरे ऊपर कमट्टी का तेल डाल आग लगा दी और
मैं काफी जल गई।"

14. In Mukesh Bhai Gopal Bhai
Barot vs. State of Gujarat, 2010 AIR SCW
5614 it was held by the Hon'ble Apex Court
that statement of a person recorded under
Section 161 CrPC would be treated as
dying declaration after his death. Likewise,
in Pradeep Bisoi Vs. State of Odisha,
(2019) 11 SCC 500, it was reiterated that
the statement of victim recorded under
Section 161 CrPC before three months of
the death will cover under Section 32(1) of
the Evidence Act and admissible as dying
declaration after death of the victim.

15. PW-6, the Investigating Officer, is
a responsible police officer. He has no
grudge or enmity with the accused and
there is no possibility of false implication
of the accused by this witness. In the
present case the statement of the deceased
under Section 161 CrPC recorded by the
Investigating Officer is a cogent and
reliable piece of evidence and is admissible
as dying declaration and the prosecution
undoubtedly can reply upon this statement.

16. The accused has taken a specific
plea in his statement under Section 313
CrPC that at the time of occurrence he was
not present at his home and had gone to the
market. To prove this fact, DW-1 Ranvir
Singh has been examined on behalf of
accused. Learned trial court has elaborately
discussed the entire evidence of DW-1 and
has found that his evidence is not cogent
and trustworthy. We have also analyzed the
evidence of DW-1 and found that in the
facts and circumstances of the case and also
in the light of topography of the place of
occurrence, as has been shown in the site
plan Ext. ka-8 prepared by the Investigating
Officer, the evidence of DW-1 Ranvir
Singh is not believable. It is also pertinent
to mention here that the fact that at the time
of occurrence accused was not present on
the
spot
was
especially
within
the
knowledge of the accused and since the
prosecution had discharged its burden on
the basis of dying declaration Ext. ka-9, the
onus was shifted upon the accused to show
that his plea of alibi was true. It has been
held by the Hon'ble Apex Court in Satye
Singh
and
Another
v.
State
of
Uttarakhand, (2022) 5 SCC 438 that
Section 106 Evidence Act is not intended to
relieve prosecution from discharging its
duty to prove guilt of accused. Prosecution
must discharge its primary onus of proof
and establish the basic facts against the
accused in accordance with law and only
10 All. Devendra Singh Vs. State of U.P.
1023
thereafter may Section 106 be restored to,
in the facts and circumstances of each case.

17. In Shambu Nath Mehra vs. State
of Ajmer, AIR 1956 SC 404, wherein the
basic law on the subject was discussed, has
been relied upon in the case of Satye Singh
(supra). It has been held by Hon'ble Apex
Court that :

"11. This lays down the general
rule that in a criminal case the burden of
proof is on the prosecution and Section 106
is certainly not intended to relieve it of that
duty. On the contrary, it is designed to meet
certain exceptional cases in which it would
be
impossible,
or
at
any
rate
disproportionately
difficult,
for
the
prosecution to establish facts which are
"especially" within the knowledge of the
accused and which he could prove without
difficulty or inconvenience. The word
"especially" stresses that. It means facts
that are pre-eminently or exceptionally
within his knowledge. If the section were to
be interpreted otherwise, it would lead to
the very startling conclusion that in a
murder case the burden lies on the accused
to prove that he did not commit the murder
because who could know better than he
whether he did or did not. It is evident that
that cannot be the intention and the Privy
Council has twice refused to construe this
section, as reproduced in certain other Acts
outside India, to mean that the burden lies
on an accused person to show that he did
not commit the crime for which he is tried.
These cases are Attygalle v. Emperor
[Attygalle v. Emperor, 1936 SCC OnLine
PC 20 : AIR 1936 PC 169] and Seneviratne
v. R. [Seneviratne v. R., (1936) 3 All ER 36]
, All ER at p. 49."

18. It has already been held above that
the accused has not succeeded to discharge
his onus / burden to prove his plea of alibi,
hence, this legal position also stands
against him.

19. The learned Sessions Judge has
relied upon the testimony of PW-4, PW-5,
PW-6 and PW-7 and convicted and
sentenced the appellant for the offence
under Section 304 IPC. As per the finding
of the learned trial court, the incident
happened out of quarrel and death has
happened due to septicemia as a result of
thermal burn.

20. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report and
more particularly the dying declaration,
there is no doubt left in our mind about the
guilt of the present appellant, as concluded
by the trial court. We concur with the same.

21. Now it takes us to the quantum of
sentence, specifically under Section 304
IPC, where life imprisonment has been
awarded by learned trial court. For
awarding the sentence, we have to keep in
mind the theories of punishment in our
country.

22. 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.
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

23. The term '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.

24. 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.

25. Considering the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
10 All. Chandrashekhar Vs. State of U.P. & Ors.
1025
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.

26. 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.

27. Keeping in view the reformative
theory of punishment and "doctrine of
proportionality", it appears to us that the
sentence of life imprisonment awarded
under Section 304 IPC by learned trial
court to the appellant is too harsh and
severe keeping in view the facts and
circumstances of this case. The appellant is
in jail for the last more than 9 years. This
fact is also admitted by learned AGA.

28. Hence, we are of the considered
view that since the appellant has already
served-out more than 9 years sentence, the
sentence of life imprisonment under
Section 304 IPC is converted into the
sentence already undergone. Fine amount is
reduced to Rs. 10,000/-. If fine is not paid
within 12 weeks from the date of release,
appellant shall undergo six months' further
incarceration.

29. The appeal is accordingly partly
allowed, as modified above.

30. The office is directed to transmit
the record to the court below.
----------
(2022) 10 ILRA 1025
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2022

BEFORE

THE HON'BLE DINESH PATHAK, J.

Writ-B No. 978 of 2022

Chandrashekhar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arun Kumar Srivastava

Counsel for the Respondents:
C.S.C.

Civil Law - Uttar Pradesh Consolidation of
Holdings Act, 1953 - Section 4-A, 6 & 44 -
Issue - whether High Court can examine
the legality and validity of issuance of
notification under Section 4-A of the
U.P.C.H. Act or not ? - Held - St.
Government has power to promulgate the
notifications, as required in it's opinion
and
such
notifications
are
part
of
legislative functions which are not open in
ordinary course for judicial review unless
it suffers with the grounds of ultra vires or
lack of competence of legislation or
unreasonableness - it would not be proper
to interfere in the notification issued by
the
St.
Government
to
carry
out
consolidation operation or its cancellation
- when the Director of the Consolidation
issues a notification u/s 4 or 6 of the Act,
he
performs
neither
a
quasi-judicial
function nor exercises any administrative
power but performs a legislative function -
The Director of Consolidation cannot be