# Dharmendra & Ors. (In Jail) v. State of U.P

- **Citation:** (2023) 2 ILRA 794
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-12
- **Case number:** Criminal Appeal No. 7783 of 2010
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-ors-in-jail-v-state-of-u-p-49767
- **Pages:** 6

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 32- Multiple Dying Declarations-
The husband has taken her to the hospital
and even her dying declaration dated
1.5.2008 before the Naib Tehsildar has
been believed by the trial court. There is
no allegation against the mother-in-law
and father-in-law and even the husband.
However, in the second dying declaration,
allegation has been levelled against the
2 All. Dharmendra & Ors. Vs. State of U.P.
795
husband, mother-in-law and father-inlaw.The same casts doubt. Even if we
accept the second dying declaration which
is contrary to the first dying declaration,
the husband having taken the deceased to
the hospital will not permit us to concur
with the learned Judge. 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
accused-appellant
No.1.
However,
as
there is no overt act to the father-in-law
and mother-in-law and there are general
allegations levelled against them and
hence they are acquitted.

As there are no allegations against the father-inlaw and mother-in-law of the deceased in any of
the dying declarations, hence the conviction of
the
father-in-law
and
mother-in-law
is
unsustainable.

Quantum of Punishment- Doctrine of
Proportionality-
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.
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.

As the criminal jurisprudence of our country is
reformative and not retributive and undue
harshness should be avoided in sentencing the
accused,
hence
under
the
facts
and
circumstances of the case the sentence of the
Appellant no.1 modified to the period already
undergone. (Para 12, 13, 18, 19, 20)

Criminal Appeal partly allowed. (E-3)
Case Law/ Judgements relied upon:-

## Text

794 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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.

17. 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.

18. In view of the above, the findings
of facts by the Court below are not
disturbed. However, as far as punishment is
concerned, we substitute the same to 10
years' rigorous imprisonment. Sentence
under Section 498A of IPC and Section 4
of Dowry Prohibition Act has already been
completed by the accused-appellant. Fine
and default is maintained. As 10 years'
imprisonment is already over, the accusedappellant be set free forthwith, if not
wanted in any other case. He will deposit
the fine within four weeks from the date of
release and in case fine is not deposited he
will be re-incarcerated for the period of
default sentence.

19. In view of the above, the appeal is
partly allowed. Judgment and order passed
by the learned Sessions Judge shall stand
modified to the aforesaid extent. Record be
sent back to the Court below forthwith.
----------
(2023) 2 ILRA 794
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.01.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 7783 of 2010

Dharmendra & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri S.C. Tiwari, Sri Swatashwa Agarwal, Sri
Swayamanand Sisodiya, Sri Kamlesh Kumar
Tripathi

Counsel for the Opposite Party:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 32- Multiple Dying Declarations-
The husband has taken her to the hospital
and even her dying declaration dated
1.5.2008 before the Naib Tehsildar has
been believed by the trial court. There is
no allegation against the mother-in-law
and father-in-law and even the husband.
However, in the second dying declaration,
allegation has been levelled against the
2 All. Dharmendra & Ors. Vs. State of U.P.
795
husband, mother-in-law and father-inlaw.The same casts doubt. Even if we
accept the second dying declaration which
is contrary to the first dying declaration,
the husband having taken the deceased to
the hospital will not permit us to concur
with the learned Judge. 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
accused-appellant
No.1.
However,
as
there is no overt act to the father-in-law
and mother-in-law and there are general
allegations levelled against them and
hence they are acquitted.

As there are no allegations against the father-inlaw and mother-in-law of the deceased in any of
the dying declarations, hence the conviction of
the
father-in-law
and
mother-in-law
is
unsustainable.

Quantum of Punishment- Doctrine of
Proportionality-
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.
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.

As the criminal jurisprudence of our country is
reformative and not retributive and undue
harshness should be avoided in sentencing the
accused,
hence
under
the
facts
and
circumstances of the case the sentence of the
Appellant no.1 modified to the period already
undergone. (Para 12, 13, 18, 19, 20)

Criminal Appeal partly allowed. (E-3)
Case Law/ Judgements relied upon:-

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

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

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

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

1. This appeal challenges the
judgment and order dated 03.11.2010
passed by Additional Sessions Judge, Court
No.1, Ramabai Nagar, Kanpur Dehat, in
Sessions Trial No.114 of 2009 (State Vs.
Dharmendra and others) arising out from
case Crime No.89 of 2008, under Sections
498A/304B IPC and Section 3⁄4 D.P. Act,
Police Station Sikandra, District Ramabai
Nagar (Kanpur Dehat) convicting the
appellants under Section 498A/304B IPC
and Section 4 D.P. Act and sentencing
appellant no.1 under Section 304B IPC for
life imprisonment and Section 498A of IPC
for rigorous imprisonment of 3 years and
fine of Rs. 5,000/- and Section 4 of D.P.
Act for rigorous imprisonment of 2 years
and fine of Rs. 5,000/- and in default of
payment of fine the appellant no.1
convicting under Section 498A IPC for
additional rigorous imprisonment of 6
months and Section 4 of D.P. Act,
additional rigorous imprisonment of 6
months, appellant no.2 - Ansho Devi
convicting under Section 304B for rigorous
imprisonment of 6 years, under Section
498A IPC for rigorous imprisonment of 2
years and fine of Rs. 3,000/- and Section 4
of D.P. Act for rigorous imprisonment of
one year and fine of Rs. 2,000/- and in
796 INDIAN LAW REPORTS ALLAHABAD SERIES
default of payment of fine the appellant
no.2 under Section 498A IPC additional
rigorous imprisonment of 3 months and
Section 4 of D.P. Act additional rigorous
imprisonment of 2 months and appellant
no.3 - Ram Kishun under Section 304B for
rigorous imprisonment of 7 years and under
Section
304B
IPC
for
rigorous
imprisonment of one year and fine of Rs.
2,000/- and Section 4 of D.P. Act for
rigorous imprisonment of 6 months and
fine of Rs.1,000/- and in default of payment
of fine, the appellant no.3 convicting under
Section
498A
additional
rigorous
imprisonment of 2 months and Section 4 of
D.P. Act additional rigorous imprisonment
of 1 month and all the sentences shall run
concurrently.

2. The facts in brief is that Smt Sita
Devi, the daughter of the complainant
Gorelal, was got married to the accused
Dharmendra s/o Ram Kishun on 10-05-07
as per Hindu rituals. Shortly after the
marriage, Dharmendra and his father Ram
Kishun as also Ram Kishun's wife Smt
Ansho Devi started physically assaulting
the daughter of the complainant and used to
demand a motor cycle and gold chain
otherwise they would kill her some day. On
30-4-08 at about 12.00 in the night the
above accused poured kerosene oil on the
daughter of the complainant and set her on
fire and the information of which was
received by the complainant through
certain reliable sources on 1.5.08 at 4.00 in
the morning. The complainant immediately
rushed to her daughter's place with several
persons where he came to know that her
daughter was completely burnt and she was
got admitted in hospital in Kanpur. The
incident was witnessed by several villagers.
The complainant is of firm belief that the
accused have burnt his daughter to death as
the dowry demand could not be fulfilled.

3. Investigation was moved into
motion. After recording statements of
various persons, the investigating officer
submitted the charge-sheet. The learned
Chief Judicial Magistrate before whom
charge sheet was laid put the same before
the learned Sessions Judge. The learned
Sessions Judge, on hearing the learned
Government Advocate and learned counsel
for the accused, framed charges.

4. On being summoned, the accused
pleaded not guilty and wanted to be tried,
hence,
the
trial
started
and
the
prosecution examined 9 witnesses who
are as follows:

1
Gorey Lal
PW1
2
Rani Devi
PW2
3
Gopi Shyam
PW3
4
Dr. R.K. Chaudhary
PW4
5
Karamveer Singh
PW5
6
Chandra Shekhar Verma
PW6
7
Hari Singh
PW7
8
Ayodhya Prasad Sachan
PW8
9
Dr. Anil Kumar Shukla
PW9

5. In support of ocular version
following documents were filed:

1
F.I.R.
Ex.Ka.2
2
Written Report
Ex.Ka.1
3
Panchayatnama
Ex. Ka.15
4
Postmortem Report
Ex.Ka.6
5
Site Plan
Ex.Ka.11
6
Charge-sheet
Ex.Ka.5

6. 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
aforesaid.
2 All. Dharmendra & Ors. Vs. State of U.P.
797

7. Heard Sri Swayamanand Sisodiya
assisting Sri Kamlesh Kumar Tripathi for
the appellants and learned A.G.A. for the
State and perused the record.

8. Learned counsel for the appellant
has submitted that the appellant has been
falsely implicated by the informant as there
was no demand of additional dowry on the
part of the appellant.

9. It is further submitted that there is
no overt act on the part of father-in-law and
mother-in-law and they have been falsely
implicated in the present case and only
general allegations have been levelled
against them.

10. While taking us through the
judgment, when the Court was of this view
that the death was a homicidal death
looking to the medical evidence, learned
counsel requested for showing leniency in
the matter and seeks for lesser punishment
as the accused-appellant No.1 (husband) is
in jail for more than 17 years. Learned
counsel for the appellant has relied on the
decision of this Court in Criminal Appeal
No. 2895 of 2015 (Manoj Sharma vs.
State of U.P.) decided on 9.12.2022.

11. As against this, learned A.G.A.
states that this is a gross case where the
deceased was done to death by the accusedappellants. Looking to the gruesomeness of
the offence, no leniency can be shown to
the accused-appellant by this Court.

12. The appellant No.1 is in jail since
17 years. The husband has taken her to the
hospital and even her dying declaration
dated 1.5.2008 before the Naib Tehsildar
has been believed by the trial court. There
is no allegation against the mother-in-law
and father-in-law and even the husband.
However, in the second dying declaration,
allegation has been levelled against the
husband, mother-in-law and father-in-law.
The multiple dying declaration, according
to the Counsel, cannot be accepted. The
same casts doubt. Even if we accept the
second dying declaration which is contrary
to the first dying declaration, the husband
having taken the deceased to the hospital
will not permit us to concur with the
learned Judge.

13. 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 accused-appellant No.1. However,
as there is no overt act to the father-in-law
and mother-in-law and there are general
allegations levelled against them and hence
they are acquitted.

14. Now we move to the alternative
submission of learned counsel for the
appellant that the punishment of life
imprisonment is too harsh which requires
to be reduced looking to the facts and
circumstances of the case more particularly
the
dying
declarations
which
are
contradictory to each other.

15. However it is to be seen whether
the quantum of sentence is too harsh and
requires to be modified. In this regard, we
have to analyse the theory of punishment
prevailing in India.

16. 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
798 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

17. '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.

18. 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
2 All. Mohd. Sheebu @ Sheebu Chaudhary Vs. U.O.I. & Ors.
799
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

19. 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.

20. 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.

21. In view of the above, the
conviction of accused-appellants under
Section 304B is maintained. However, as
far as punishment is concerned, we
substitute the same to 10 years' rigorous
imprisonment as far as accused-appellant
No.1 is concerned. The accused-appellant
No.1 be freed immediately without seeking
any bail. We are dismayed that despite the
fact that 17 years have elapsed, the case of
the accused has not been considered for
remission though it is not a heinous crime.
Rather no case of 304 part B is even made
out from the dying declaration of the
deceased against the mother-in-law and
father-in-law. They are acquitted and as
they are already on bail, they need not
surrender. Their bail bonds are cancelled.

22. Appeal is partly allowed. Record
and proceedings be sent back to the Court
below forthwith. The impugned judgment
and order shall stand modified to the
aforesaid extent.

23. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2023) 2 ILRA 799
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.02.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Habeas Corpus Writ Petition No. 103 of 2022

Mohd. Sheebu @ Sheebu Chaudhary
 ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sarvesh Kumar Pandey, Sushil Kumar
Singh, Trishita Singh

Counsel for the Respondents:
A.S.G.I., Dr. Pooja Singh, G.A.

Criminal Law - Constitution of India, 1950
- Article - 22, 22(5) & 226 - National
Security Act, 1980 - Sections 3(2), 3(3) &
8 - Criminal Law Amendment Act, -
Section - 7,- - General Clauses Act, -
Section- 21, - Indian Penal Code, 1860 -
Sections 124-(A), 153-(A), 294, 295-(A),
298, 354-(KA) & 505-(2), - Information
and Technology Act, - Section - 67 - Writ of
Habeas Corpus - against detention order -
representation - rejected - maintainability -