# Ganga Ram v. State of U.P. 850 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 5 ILRA 849
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-22
- **Case number:** Criminal Appeal No. 3 of 1991
- **Bench:** Dr. Kaushal Jayendra Thaker, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ganga-ram-v-state-of-u-p-850-indian-law-reports-allahabad-series-50306
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,
1860
-
Section
302
-
Challenge to-Conviction-accused armed
with a farsa came from his house and
attacked the deceased over the issue of
goat grazed the crop-accused alongwith a
farsa was brought to the police stationstatement of the eyewitnesses PW-1 and
PW-2 supports the prosecution versionPostmortem report shows that the injuries
caused death of the deceased and it was a
homicidal death-appellant cannot be said
to have a motive or intention to do away
with the deceased who was his relative,
the motive is not spelt out from any of the
evidence-Total period of incarceration of
the
accused
is
four
years
without
remission, the incident is of the year 1978,
and now the accused is of 75 years of age,
the sentence is reduced to the period
already undergone by the accused-The
reformative theory of punishment is to be
adopted keeping in view of the 'doctrine
of proportionality'.(Para 1 to 34)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

5 All. Ganga Ram Vs. State of U.P.
849
जो न्यायाधीश के मानस में ज़मानर् को अस्वीकृर् या
स्वीकृर् करने के ललए मूल्यांककर् ककये र्ये, वो पाररर्
आदेश में उल्लेखखर् ककये जायें। मुक्र् न्याय इस धारर्ा
पर आधाररर् है कक न्याय न केवल ककया जाना चादहए,
बण्ल्क स्पष्ट और यनस्संदेह रूप से होर्ा हुआ ददखना भी
चादहए। न्यायसंर्र् यनर्तय देने का न्यायाधीशों का
कर्तव्य इस प्रयर्बद्धर्ा का हृदय है। (देखें: मटहपाल बिाम
राजेश कुमार, (2020) 2 एससीसी 118 और सुश्री वाई
बिाम राजस्थाि राज्य और अन्यः 2022 एससीसी
ऑिलाइि एससी 458)।

(झ) जमानर् के आवेदन पर आदेश पाररर् करर्े
समय ववस्र्ृर् वववरर् का उल्लेख, इस धारर्ा के नार्े
नहीं ककया जा सकर्ा है कक मामला ऐसा है, ण्जसके
पररर्ामस्वरूप दोषलसद्धध हो सकर्ी है या इसके ववपरीर्,
दोषमुण्क्र् हो सकर्ी है। हालांकक, जमानर् के आवेदन पर
यनर्तय लेने वाला न्यायालय मामले के भौयर्क पहलुओं
से अपने यनर्तय को पूरी र्रह से अलर् नहीं कर सकर्ा,
जैसे आरोपी के खखलार् लर्ाए र्ए आरोप ; अर्र आरोप
यर्ोधचर् संदेह से परे साब्रबर् होर्े हैं और इसके
पररर्ामस्वरूप दोषलसद्धध होर्ी है र्ो सजा की कठोरर्ा ;
अलभयुक्र् द्वारा र्वाहों को प्रभाववर् करने की उधचर्
आशंका ; साक्ष्यों से छेड़छाड़ ; अलभयोजन के मामले में
यनराधारर्ा ; आरोपी का आपराधधक पूवतवृत्त ; और आरोपी
के ववरुद्ध आरोप के समधतन में न्यायालय की प्रर्म
दृष्टया संर्ुण्ष्ट। (देखेंिः मिोज कुमार खोखर बिाम
राजस्थाि राज्य और अन्य (2022)3 एिसीसी 501, दीपक
यादव प्रनर् उत्तर प्रदेश राज्य व एक अन्य (2022)8
एससीसी 559)।

9. उपरोक्र् र्थ्यों की पृष्ठभूलम में यह ववददर् होर्ा
है कक प्रारम्भ में आवेदक और उसके पुत्र के अयर्ररक्र्
और लोर् भी अपराधी के रूप में नालमर् ककये र्ये र्े,
परन्र्ु अन्वेषर् के दौरान साक्ष्य के बयानों के आधार पर
आरोपपत्र केवल वर्तमान आवेदक और उसके पुत्र के
ववरूद्ध दाखखल ककया र्या और ववलशष्ट रूप से यह आरोप
लर्ाया र्या कक आवेदक के पुत्र ने आवेदक को उसकी
लाईसेंसी बंदूक लाकर दी, ण्जससे आवेदक ने अंधाधुंध
र्ायररंर् की, ण्जसके कारर् एक व्यण्क्र् की मृत्यु हो र्ई
और छह अन्य घायल हो र्ए। सभी को आग्नेयास्त्र की
चोटें लर्ीं।

10. केवल इस कारर् कक प्रर्म सूचना ररपोटत में
ज्यादा व्यण्क्र् अपराधी के रूप में नालमर् ककये र्ये हैं,
सम्पूर्त अलभयोजन कर्ानक को झूठा नहीं करार ददया जा
सकर्ा। आवेदक के ववद्वान अधधवक्र्ा का यह कर्न कक
वास्र्ववकर्ा कुछ और अलर् है, इस आधार पर
ववश्वसनीय नहीं मानी जा सकर्ी क्योंकक मृर्क के भाई
द्वारा ललखायी र्ई प्रर्म सूचना ररपोटत पर अन्वेषर् के
बाद अंयर्म ररपोटत लर्ा दी र्ई है।

11. अर्िः आवेदक का घटना स्र्ल पर उपण्स्र्र्
होना व उसके द्वारा अंधाधुन्ध र्ोली चलाना व ण्जसके
कारर् एक व्यण्क्र् की मृत्यु हो जाना एवं छह अन्य लोर्ों
का घायल हो जाना को प्रर्म दृष्टया असत्य मानने का
कोई कारर् नहीं है और यह देखर्े हुए कक यह एक संर्ीन
अपराध है, अर्िः वाद के र्ुर्-दोष को प्रभाववर् ककये बर्ैर
इस जमानर् याधचका को निरस्र् ककया जार्ा है।
----------
(2023) 5 ILRA 849
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.05.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 3 of 1991

Ganga Ram ...Appellant
Versus
State of U.P. ...Respondent
850 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri R.B. Sahai, Sri Radheshyam Yadav, Sri
Radheshyam Yadav (A.C.), Sri Sudhir Bharti

Counsel for the Respondent:
D.G.A., A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,
1860
-
Section
302
-
Challenge to-Conviction-accused armed
with a farsa came from his house and
attacked the deceased over the issue of
goat grazed the crop-accused alongwith a
farsa was brought to the police stationstatement of the eyewitnesses PW-1 and
PW-2 supports the prosecution versionPostmortem report shows that the injuries
caused death of the deceased and it was a
homicidal death-appellant cannot be said
to have a motive or intention to do away
with the deceased who was his relative,
the motive is not spelt out from any of the
evidence-Total period of incarceration of
the
accused
is
four
years
without
remission, the incident is of the year 1978,
and now the accused is of 75 years of age,
the sentence is reduced to the period
already undergone by the accused-The
reformative theory of punishment is to be
adopted keeping in view of the 'doctrine
of proportionality'.(Para 1 to 34)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Khokan@ Khokhan Vishwas Vs St. of
Chattisgarh (2021) LawSuit (SC) 80

2. Anversingh Vs St. of Guj, (2021) 3 SCC
12

3. Pravat Chandra Mohanty Vs St. of Ori. (2021)
3 SCC 529 Pardeshiram Vs St. of M.P.(2021) 3
SCC 238

4. Tukaram & ors. Vs St. of Mah. (2011) 4 SCC
250

5. B.N. Kavatakar & anr. Vs St. of Karn. (1994)
SUPP 1 SCC 304

6. Veeran & ors. Vs St. of M.P. (2011) 5 SCC
300

7. Mohd. Giasuddin Vs St. of A.P. (1977) SC
1926

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

9. Ravada Sasikala Vs St. of A.P. (2017) AIR SC
1166

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

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

12. Sumer Singh Vs Surajbhan Singh (2014) 7
SCC 323

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

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

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

1. Present criminal appeal challenges
judgment and order dated 17.04.1979
passed by the VIth Additional Sessions
Judge, Fatehpur, in Sessions Trial No.287
of 1978, whereby the learned VIth
Additional Sessions Judge, Fatehpur has
convicted the accused-appellant, Ganga
Ram for commission of offence under
Section 302 of Indian Penal Code, 1860
(for short 'IPC') and sentenced him to life
imprisonment.

2. Heard Sri Radheshyam Yadav,
learned counsel for the accused-appellant
and learned A.G.A. for the State.

3. Brief facts of the case are that the
deceased, Bhanna @ Manna Yadav was the
resident of village Budhramau, Police
Station Asothar, District Fatehpur. The
5 All. Ganga Ram Vs. State of U.P.
851
accused Ganga Ram is the son of elder
brother of the deceased and their houses are
adjacent to each other. On 7.4.1978, there
was a quarrel between the deceased and the
accused because the goat of the accused
had entered in the field of the deceased and
grazed the crop. On 08.04.1978, in the
evening , deceased Bhanna was milking the
buffaloes at the door of his House. His
daughter,
Km.
Meena,
the
complainant/informant (P.W.-1) was also
standing in front of the hutment of Islam
and was talking to Sheo Bhajan (P.W.-3).
Bhulli (P.W.-2), the nephew of the deceased
was also sitting at the door of the deceased.
All of sudden, the accused armed with a
Pharsa came from his house and started
attacking the deceased. On receiving the
first blow, the deceased fell down on the
ground and was further attacked by the
accused. When he was almost dead, the
accused left and ran away towards south of
the village. Bhanna immediately died and
his dead body was placed on a cot inside
the Chaupal.

4. The F.I.R. was lodged at Police
Station Asothar at about 11.00 P.M. on the
same day against the accused on the oral
report of the informant/P.W.-1, which was
scribed by Ram Sajivan Upadhya (P.W.-7)
and the investigation was carried out. On
investigation being put into motion, Sri
Sadanand Roy, the Investigation Officer
recorded the statements of Km. Meena
(P.W.-1), complainant/informant and other
witnesses
Bhulli
(P.W.-2),
who
had
accompanied the complainant/informant.
The Investigating Officer arrived at the
place of occurrence on the same night and
started further investigation on 9.4.1978 at
6:00 A.M. The inquest report (Exh. Ka-2)
was prepared and the dead body was sealed
and sent for postmortem. The blood stained
and plain earth (Exh. 4 and 5) were also
collected and sealed and recovery memo
(fard) (Exh. Ka-8) was prepared. At that
very time, an information was received that
the accused Ganga Ram was hiding in a
Matth towards south of the village. The
Investigating Officer accompanied with
Kedar Prasad @ Lakkar and Tej Narain
went there and arrested the accused. On the
pointing out of the accused the Pharsa with
which he had committed the murder, was
recovered of which recovery memo was
prepared and marked as Exhibit-Ka/9. The
statement of the witnesses were recorded.
The accused alongwith the Pharsa was
brought to the police station and the F.I.R.
(Exh. Ka-11) under Section 25 of the Arms
Act was lodged.

5. On 28.05.1978, the statement of
other eye-witness Sheo Bhajan (P.W.-2)
was recorded under Section 161 Cr.P.C.

6. The Investigation was completed
and the charge-sheet (Exh. Ka.-12) came to
be submitted against the accused-appellant.

7. After submission of the chargesheet
the concerned Magistrate
took
cognizance and on 18.12.1978, the case
was committed to the court of Sessions as
the offence alleged to have been committed
were triable by the Sessions Court. On
16.03.1978 the learned Sessions Judge has
framed the charges against the accused
under Section 302 I.P.C.

The accused pleaded not guilty to the
charge and demanded trial.

8.
 The
trial
started
and
the
prosecution has examined seven witnesses,
who are as follows:-

1
Km.
Meena,
the
complainant, daughter of
PW1
852 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased.
2
Bhulli (eye witness of the
incident)
PW2
3
Sheo Bhajan (eye witness
of the incident)
PW3
4
Kedar Prasad (witness of
the arrest of the accused)
PW

5
Sadanand
Roy
(Investigating Officer)
PW5
6
Dr. M.M.S.A. Khan, who
has conducted the post
mortem and prepared the
post mortem report.
PW6
7
Ram
Sajiwan
Upadhya,
who has recorded the F.I.R.
and also registered the case
under Section 302 I.P.C.
PW7

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

1
First
Information
Report
dated
08.04.1978
Ex.Ka.-1
2
Recovery
memo
of
blood stained and plain
earth dated 09.04.1978
Ex.Ka.-8
3
Recovery
memo
of
'Farsa'
dated
09.04.1978
Ex. Ka.-9
4
Panchayatnama
dated
09.04.1978
Ex.Ka.-2
5
Site plan with index
dated 09.04.1978
Ex.Ka.-7
6
Site plan with index
dated 09.04.1978
Ex. Ka.-10
7
Post Mortem Report
dated 10.04.1978
Ex. Ka.-13
8
Report
of
Chemical
Examiner & Serologist
Ex.Ka.-17
9
Affidavit of Maqsood
Arif, dated 03.04.1979
Ex. Ka-19
10 Affidavit of Shiv Ratan
Lal, dated 03.04.1979
Ex. Ka-21
11 Affidavit of Shyam Lal
Yadav,
dated
04.04.1979
Ex. Ka-18
12 Affidavit
of
Ram
Ashcharya
Pandey,
dated 04.04.1979
Ex. Ka-20

10. The accused in his statement
recorded under Section 313 Cr.P.C. has
denied to have committed the alleged
offence. He has stated that he had gone to
his sister's place on the previous evening
and when he returned to his house, he
found the dead body of the deceased. At
that time, the Investigating Officer was also
present, who brought him to the police
station and falsely implicated him at the
instance of the Pradhan of the village.

11. The trial court on the basis of
evidence so led by the prosecution has found
the guilt of the accused-appellant to have
been proved beyond reasonable doubt after
recording its finding that the injuries received
by the deceased were caused by the accusedappellant and has convicted the accusedappellant and sentenced him to undergo life
imprisonment for the offence punishable
under Section 302 I.P.C. In fact Ganga Ram
was an under trial prisoner during the period
of trial and that is how he was incarcerated
for 15 years and some months.

His counsel did not appear before the
court and that is why the Court issued nonbailable warrant against him and since
27.01.2020 he has been languishing in jail.
5 All. Ganga Ram Vs. State of U.P.
853

12. The incident occurred in the year
1978.

13. The submission of the counsel
that the informant is the daughter of the
deceased and they were inimical to the
accused. The evidence of P.W.-5 also would
go to show that the appellant has been
roped in the offence. In the statement
recorded under Section 313 Crc.P.C., the
accused-appellant has stated that he has not
committed
any
offence.
The
informant/P.W.-1
is
the
daughter
of
deceased and she has named the accused
Ganga Ram to be the assailant and author
of the crime when as a matter of fact the
deceased was looking after him and was
nurturing him. The statements of the
accused-appellant
under
Section
313
Cr.P.C. have totally been ignored by the
trial court while returning the impugned
judgment of conviction. Accused-appellant,
Ganga Ram, is now again in jail since
27.01.2020 after he was granted bail by this
Court pursuant to his conviction, he was
arrested as none appeared for him.

14. It is further submitted that
prosecution has not established any motive
for the accused to commit the murder of the
deceased and it creates a reasonable doubt
about the version of the prosecution.

15. It is further submitted that
conviction under Section 302 IPC is not
made out as no overt act as per Section 300
I.P.C. is made out. In alternative, it is
submitted that at the most, the death event
is homicidal death it would not amount to
murder and would be punishable under
Section 304 II or Section 304 I of I.P.C. If
the Court decides that the accused is guilty
under Section 302 of IPC, then the accused
may be granted fixed term punishment of
incarceration as it is not a gruesome act on
the part of the accused.

16. Learned counsel for the State has
submitted that there is no reason for false
implication of the accused and the
complainant had no motive to falsely
implicate the accused. There is reliable oral
testimony supported by the recovery of the
weapon of assault at the instance of the
accused, thus the argument that absence of
motive creates a doubt about the version of
the prosecution, has no legs to stand.
Evidence of other prosecution witnesses
will not permit this Court to show any
leniency in the matter. It is further
submitted by learned A.G.A. that the
ingredients of Section 300 of IPC are
rightly held to be made out by the learned
Sessions Judge who has applied the law to
the facts in case.

17. The post-mortem of the dead body
of deceased Bhanna @ Manna Yadav was
conducted by Dr. M.M.S.A. Khan, Medical
Officer, District Hospital, Fatehpur on
10.04.1978 at about 2:15 P.M. The
postmortem
report
Exh.
Ka-13
was
prepared and the following ante-mortem
injuries were found on the body of the
deceased:-

1. Abraded contusion 7.5 cm x 5 cm
bones underneath fractured present over the
left temporal region. 5 cms. Above the left
ear, tissue shows extension of blood.

2. Abraded contusion 7.5 cm x 2.5 cm
present over the right side of forehead. 1.25
cm above the right eye brow. Bones
underneath fractured.

3. Incised wound 6.5 cm x 1.5 cm x
bone deep present obliquely over the left
cheek extending from 1.25 cm above the
left angle of mouth upto the middle of left
854 INDIAN LAW REPORTS ALLAHABAD SERIES
cheek. Margins clean cut, bones underneath
clean cut, wound gaping.

4. Incised would 5 cm x 1.5 cm x bone
deep present 2.5 cm below the injury no.3
over the left chin.

5. Abraded contusion 5 cm x 3.5 cm
present over the right side of face and over
the nose, bones underneath fracture.

6. Incised wound 5 cm x 0.8cm x skin
deep present over the left side of chest 7.5
cm above the left nippel. Margin clean cut.

7. Incised wound 10 cm x 0.8 cm x
skin deep present obliquely over the outer
scapulare region. Margins clean cut."

18. In the opinion of the doctor, the
deceased was aged about 50 years and the
duration of injuries was about two days. On
external examination the doctor found the
following injuries:-

The deceased was of average built
body. Rigor mortis was absent. Eyes were
closed and mouth were also closed.
Abdomen was distended and greenish
discolouration was present at the iliac
fossae.

19. While considering the evidence of
P.W.1 to P.W.7 in cumulative nature, the
death can be said to be homicidal death.
Postmortem report goes to show that the
injuries on the body of the deceased would
be the cause of death and that it was
homicidal death.

20. We are convinced that it was
homicidal death but, it would be seen
whether it is homicidal death punishable
under Section 302 or Section 304 Part I or
Part II of IPC?

21. It would be relevant to refer to
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."

22. The academic distinction between
'murder' and 'culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
loose sight of the true scope and meaning
of the terms used by the legislature in these
sections, and allow themselves to be drawn
into minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
is 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
if 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
5 All. Ganga Ram Vs. State of U.P.
855
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.

23. In latest decision in Khokan@
Khokhan
Vishwas
v.
State
of
Chattisgarh, 2021 LawSuit (SC) 80,
where the facts were similar to this case,
the Apex Court has allowed the appeal of
the accused appellant and altered the
sentence. The decision of the Apex Court in
the case of Anversinh v. State of Gujarat,
(2021) 3 SCC 12 which was related to
kidnapping from legal guardian, wherein it
was established that the Court while
respecting the concerns of both society and
victim, propounded that the twin principle
of deterrence and correction would be
served
by
reducing
the
period
of
incarceration already undergone by the
accused. In our case, this is not that
gruesome matter where the accused cannot
be dealt with in light of all these judgments.
Decisions in Pravat Chandra Mohanty v.
State of Odisha, (2021) 3 SCC 529 &
Pardeshiram v. State of M.P., (2021) 3
SCC 238 will also enure for the benefit of
the accused.

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 it was a case of
homicidal death not amounting to murder.

25. From the upshot of the aforesaid
discussions, it appears that the death caused
by the accused was not premeditated,
accused
though
had
knowledge
and
intention that his act would cause bodily
harm to the deceased but did not want to do
away with the 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.

26. We come to the definite conclusion
that the death was not premeditated. The
precedents discussed by us would permit us
to uphold our finding which we conclusively
hold that the offence is not punishable under
Section 302 of I.P.C. but is culpable homicide
not amounting to murder, punishable U/s 304
(Part I) of I.P.C.

27. This takes us to the alternative
submission of learned counsel for the
appellant that 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.

28. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
856 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

29. '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.

30. 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
5 All. Waseem Khan Vs. State of U.P. & Anr.
857
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.

31. 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.

32. 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.

We may also record that while going
through the factual scenario the appellant
cannot be said to have a motive or intention
to do away with the deceased who was his
relative. The motive is not spelt out from
any of the evidence.

33. Therefore, on totality of the facts
and circumstance and the oral testimony of
the eye-witnesses coupled with the medical
evidence
permit
us
to
convert
the
conviction of the accused-appellant from
302 I.P.C. to Section 304 Part-I I.P.C. The
fact
that
the
accused-appellant
was
incarcerated post trial after passing of the
impugned judgment for more than 2 years
and some months before he was ordered to
be enlarged on bail on 05.02.1993 and
thereafter he has been incarcerated in jail
since 27.01.2020 after issuance of nonbailable warrant, meaning thereby the total
period of incarceration of the accusedappellant is approximately four years now
without remission. The incident is of the year
1978, the fact that the accused-appellant is of 75
years of age, the sentence is reduced to the period
already undergone by the accused-appellant i.e.
approximately four years with remission. Fine of
Rs. 5000/- to be deposited within four weeks of
release from incarceration. If fine is not deposited
within four weeks he shall be enlarged in jail to
undergo default sentences of three months.

34. In view of the above, this criminal
appeal
is
partly
allowed.
Record
and
proceedings be sent back to the Court below
forthwith.

35. Sri Radheshyam Yadav, learned
Amicus Curiae has ably assisted this Court and
would be entitled to his fee for a sum of Rs.
10,000/- from the High Court Legal Services
Committee.
----------
(2023) 5 ILRA 857
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED:LUCKNOW 10.05.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 203 of 2023

Waseem Khan ...Appellant
Versus
State of U.P. & Anr. ...Respondents