# Eklakh Khan @ Eklakh Ahmad (In Jail) v. State of U.P

- **Citation:** (2020) 7 ILRA 14
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-04
- **Case number:** Criminal Appeal No. 219 of 2018
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/eklakh-khan-eklakh-ahmad-in-jail-v-state-of-u-p-45856
- **Pages:** 4

## Headnote

Criminal Law -Indian Penal Code, 1860Conviction
under
Section
307
IPC-
sentence awarded to the appellant to undergo
five years rigorous imprisonment with fine of Rs.
10,000/-modification of the order of the
sentence for the period already undergone by
the appellant-Appellant has undergone about
two years four months and eleven days of the
awarded sentence.

 Quantum of Sentence- Reformative Theory- In
view of the facts and circumstances of the case
and as substantial period already has undergone
in prison by the appellant in this case and the
fact that the appellant is an old person; he is
suffering from age related ailments; that there
is no bread earner in the family of the appellant
and that he has realized the mistake committed
by him and is remorseful of his conduct to the
society to which he belongs and now he wants
to transform himself, he should be given a
7 All. Eklakh Khan @ Eklakh Ahmad Vs. State of U.P.
15
chance to reform himself. Ends of justice would
be served, if the sentence of appellant is
reduced to the period already undergone by the
appellant in this case and the amount of fine be
enhanced to Rs. 20,000/-.

The reformative approach to punishment as a
measure to reclaim the offender, lays emphasis
on rehabilitation so that the offender is
transformed into a good citizen. Accordingly, in
view of the fact that the appellant has already
undergone more than half period of his
sentence he should be given a chance to reform
himself. Sentence modified to the period already
undergone by the appellant and fine enhanced.
(Para 16)

Criminal Appeal partly allowed. (E-3)

Case Law relied upon: -

B.G. Goswami Vs Delhi Administration (1973)
AIR 1457 SC

## Text

14 INDIAN LAW REPORTS ALLAHABAD SERIES
Special Court, C.B.I. to ensure presence of
all the co-accused before it for framing of
charges, thereafter to begin with the trial
and concluded the same.

38. The applicant is further ordered to
surrender before the Court concerned after
the expiry of aforesaid period of four
months. The applicant is further subjected
to following conditions in addition to those
imposed by the court concerned:-

(i) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed for
evidence when the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law.

(ii) The applicant shall remain
present before the trial court on each date
fixed, either personally or through his
counsel. In case of his absence, without
sufficient cause, the trial court may proceed
against him under Section 229-A of the
Indian Penal Code.

(iii) In case, the applicant misuses
the liberty of bail during trial and in order
to secure his presence, proclamation under
Section 82 Cr.P.C. is issued and the
applicant fails to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against him, in accordance with law, under
Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.
----------
(2020)07ILR A14
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.05.2020

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 219 of 2018

Eklakh Khan @ Eklakh Ahmad
 ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri
Shailendra
Kumar
Tripathi,
Sri
Mohammad Arshad Khan, Sri Babu Lal Ram

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

Criminal Law -Indian Penal Code, 1860Conviction
under
Section
307
IPC-
sentence awarded to the appellant to undergo
five years rigorous imprisonment with fine of Rs.
10,000/-modification of the order of the
sentence for the period already undergone by
the appellant-Appellant has undergone about
two years four months and eleven days of the
awarded sentence.

 Quantum of Sentence- Reformative Theory- In
view of the facts and circumstances of the case
and as substantial period already has undergone
in prison by the appellant in this case and the
fact that the appellant is an old person; he is
suffering from age related ailments; that there
is no bread earner in the family of the appellant
and that he has realized the mistake committed
by him and is remorseful of his conduct to the
society to which he belongs and now he wants
to transform himself, he should be given a
7 All. Eklakh Khan @ Eklakh Ahmad Vs. State of U.P.
15
chance to reform himself. Ends of justice would
be served, if the sentence of appellant is
reduced to the period already undergone by the
appellant in this case and the amount of fine be
enhanced to Rs. 20,000/-.

The reformative approach to punishment as a
measure to reclaim the offender, lays emphasis
on rehabilitation so that the offender is
transformed into a good citizen. Accordingly, in
view of the fact that the appellant has already
undergone more than half period of his
sentence he should be given a chance to reform
himself. Sentence modified to the period already
undergone by the appellant and fine enhanced.
(Para 16)

Criminal Appeal partly allowed. (E-3)

Case Law relied upon: -

B.G. Goswami Vs Delhi Administration (1973)
AIR 1457 SC

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

 1. This criminal appeal has been filed
against the judgment and order dated
18.12.2017 passed by Additional Sessions
Judge, Court no. 1, Kannauj in S.T. No.
173 of 2014, under Section 307 IPC, Police
Station
Chhibramau,
district
Kannauj,
whereby learned Judge convicted and
sentenced the appellant to five years
rigorous imprisonment with fine of Rs.
10,000/- and in default of payment of fine,
the appellant was further directed to
undergo
three
months
rigorous
imprisonment.

2. As per FIR which was lodged by
the complainant Bilkisa wife of Mohd.
Shakeel (injured) and it was mentioned in
the FIR that on 10.6.2013 at about 8.00
p.m. when the husband of the complainant
namely Mohd Shakeel was coming to his
village after closing his shop then near the
field of Vishnu Dayal due to old enmity
Aklakh Khan @ Eklakh Ahmad son of
Amir
Bux,
Salamat
son
of
Deen
Mohammad, Aslam and Saleem son of
Abdul Waheed residents of Seemant Nagar
Kasba
and
police
station-Gushaiganj,
district-Kannauj caught the husband of the
complainant and on the exhortation of
Salamat, Aklakh attacked the husband of
the complainant with firearm and the
complainant's husband received gun shot
injury on his shoulder. It was also
mentioned that after the incident the injured
was sent to the hospital then the injured
was referred to Halat Hospital, Kanpur and
report of the incident was lodged.

3. The matter was reported to the
police by the informant at Police StationChhibramau and the case was registered
and investigated by the police.

4. After completion of investigation
the Investigating Officer has submitted
charge sheet against the accused persons
and the cognizance was taken by the
Magistrate and considering that the case
was triable by the court of Session, it was
committed to the court of session and the
session court charged the accused persons
under Sections 307/34 I.P.C.

5. In order to prove its case the
prosecution has examined five witnesses
PW-1
Shakeel,
PW-2
Smt.
Bilkees
(complainant),
PW-3
Constable
Ram
Chandr, PW-4 S.I. Shyamvir Singh, PW-5
Dr. Abhishek Kumar. Dr. Vinay Kumar
was examined as formal witness.

6. PW5 Dr. Abhishek Kumar Katiyar
has examined the injured Shakeel Ahmad
who was at the time of incident about 45
years old. Doctor found multiple lacerated
wounds in size 18.0 cm x 8.0 cm x Dept
not due to probing. Size of laceration is 4.0
16 INDIAN LAW REPORTS ALLAHABAD SERIES
x 3.5 cm. Margin inverted overt in shape
charring present. Injury KUO advise x-ray
chest.

7. After the closure of prosecution
evidence, the statements of the accused
persons were recorded under Section 313
Cr.P.C., in which they denied the charges
leveled against them and stated that they
have been falsely implicated in this case
due to enmity with the police.

8. However, learned Additional
Sessions Judge, Kannauj after assessing
and evaluating the evidence adduced by the
parties, acquitted three named accused
Salamat, Aslam and Salim and convicted
and sentenced the present accused Eklakh
Khan @ Eklakh Ahmad as indicated herein
above. Being aggrieved by the conviction
judgement and order this appeal had been
filed.

9. Heard Sri Mohammad Arshad
Khan, learned counsel for the appellant, Sri
Dinesh Kumar Srivastava and Sri Ram
Adhar Ram, learned A.G.A. for the State
and perused the record of the case.

10.

At
the
very
outset,
Sri
Mohammad Arshad Khan, learned counsel
for the appellant, 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.

11. Learned counsel for the appellant
has argued that the appellant is not a
previous convict; he is an old man aged
about 65 years and he is suffering from age
related ailments and; that there is no bread
earner in the family of the appellant.

12. Learned counsel for the appellant
further submits that the appellant was
awarded five years rigorous imprisonment
and that he has already undergone about
three
months
and
five
days
before
conviction and two years, one month and
six days after conviction, meaning thereby
that he has undergone about two years four
months and eleven days of the awarded
sentence.

13. Sri Dinesh Kumar Srivastava and
Sri Ram Adhar Ram, learned A.G.A. on the
other hand have stated that they have no
objection if the Court considers the
mitigating circumstances.

14. Since the learned counsel for the
appellant has given up challenge to the
findings of conviction and there is ample
evidence including, deposition of injured,
eyewitness account and medical report to
base
conviction,
accordingly,
the
conviction of the appellant for the aforesaid
offence stands affirmed.

15. While dealing with the quantum
of sentence, Hon'ble Supreme Court in
B.G. Goswami Vs. Delhi Administration,
1973 AIR 1457, held as under:

"Now the question of sentence is
always a difficult question, requiring as it
does, proper adjustment and balancing of
various considerations, which weigh with a
judicial mind in determining its appropriate
quantum in a given case. The main purpose
of the sentence broadly stated is that the
accused must realise that he has committed
an act, which is not only harmful to the
society of which he forms an integral part
but is also harmful to his own future, both
as an individual and as a member of the
society. Punishment is designed to protect
society by deterring potential offenders as
7 All. Bilendra @ Virendra & Anr. Vs. State of U.P.
17
also by preventing the guilty party from
repeating the offence; it is also designed to
reform the offender and reclaim him as a
law abiding citizen for the good of the
society as a whole.

 Reformatory,
deterrent
and
punitive aspects of punishment thus play
their due part in judicial thinking while
determining this question. In modern
civilized societies, however, reformatory
aspect is being given somewhat greater
importance. Too lenient as well as too
harsh
sentences
both
lose
their
efficaciousness. One does not deter and the
other may frustrate thereby making the
offender a hardened criminal. In the present
case, after weighing the considerations
already noticed by us and the fact that to
send the appellant back to jail now after 7
years of the annoy and harassment of these
proceedings when he is also going to lose
his job and to earn a living for himself and
for his family members and for those
dependent on him, we feel that it would
meet the ends of justice if we reduce the
sentence of imprisonment to that already
undergone but increase the sentence of fine
from Rs- 200/- to Rs. 400/-. Period of
imprisonment in case of default will remain
the same."

16. In view of the facts and
circumstances of the case and as substantial
period already has undergone in prison by
the appellant in this case and the fact that
the appellant is an old person; he is
suffering from age related ailments; that
there is no bread earner in the family of the
appellant and that he has realized the
mistake
committed
by
him
and
is
remorseful of his conduct to the society to
which he belongs and now he wants to
transform himself, I am of the considered
opinion that he should be given a chance to
reform himself. This Court considers that
ends of justice would be served, if the
sentence of appellant is reduced to the
period already undergone by the appellant
in this case and the amount of fine be
enhanced to Rs. 20,000/-.

17. Accused-appellant is directed to
deposit the fine of Rs. 20,000/- before learned
lower court within six months from the date
of passing of the judgement, which shall be
paid to the injured as compensation. In case
the
accused-appellant
fails
to
deposit
compensation within stipulated time, the
Court below shall proceed against him in the
light of judgment of the Hon'ble Apex Court
reported in Kumaran vs. State of Kerala and
another (2017) 7 SCC 471.

18. Appeal is partly allowed in the
above terms.

19. The accused is in jail. He shall be
released from jail forthwith, if he is not
wanted in any other case.

20. Copy of this order be transmitted to
the concerned lower court for compliance.

21. Office is also directed to send back
the record of the trial court immediately.
----------
(2020)07ILR A17
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.
THE HON'BLE ALI ZAMIN, J.

Criminal Appeal No. 1848 of 2001

Bilendra @ Virendra & Anr.
 ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party