# Gaya Prasad v. State of U.P. 42 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 9 ILRA 41
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-01
- **Case number:** Criminal Appeal No. 163 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaya-prasad-v-state-of-u-p-42-indian-law-reports-allahabad-series-49041
- **Pages:** 7

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 34 & 304 (1) - The Code of
Criminal Procedure, 1973 - Section 313 -
criminal
justice
jurisprudence
-
not
retributive but reformative and corrective
- 'doctrine of proportionality' - undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system -
'Proper Sentence' - Sentence should not
be either excessively harsh or ridiculously
low - Gravity of offence, manner of
commission of crime, age and sex of
accused should be taken into account -
balance between reform and punishment -
Discretion of Court in awarding sentence
cannot
be
exercised
arbitrarily
or
whimsically.(Para -19,20,24 )

Appellant in jail for more than 14 years -
convicted for commission of offence under
Section 304 Part-I read with Section 34 IPC -
major offence - sentenced for life imprisonment
along with fine - no common intention to do
away with the deceased or injure him - single
blow - caused injury to deceased - parties are
inter related - no premeditated action.(Para -
11,25,26 )

HELD:-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. Ends of justice would be met if
sentence reduced to period of 10 years
imprisonment for offence. (Para -21,25)

Criminal appeals partly allowed. (E-7)

List of Cases cited:-

## Text

9 All. Gaya Prasad Vs. State of U.P.
41
of two incised wounds on the body of the
injured attracts the second part of Section
307 I.P.C.

23. In this case the contention of
learned counsel for the appellant that the
injuries were not grievous rather were
simple has no force; the injuries found to
be caused by a sharp edged weapon and
they were kept under observation, x-ray
and ultrasound was done; the accused had
clear motive for committing the crime as he
often used to take money from PW-2 for
drinking liquor and on the date of
occurrence since the money was refused by
PW-2, the accused committed the offence
after extending him threat and breaking
into the house of PW-1.

24. In view of the above observation,
I am of the opinion that the trial court has
rightly convicted the accused under Section
307 I.P.C. read with Section 452, 504, 506
I.P.C. and therefore the jail appeal is
dismissed and accordingly, the conviction
order of the trial court is upheld.

25. On the question of sentence,
learned amicus curiae appearing for the
appellant submits that condition of the
appellant is very poor and he could not
arrange a lawyer so that he can apply bail
in the trial court during trial. He was
arrested on 28.11.2016 and against the
maximum
sentence
of
seven
years
approximately about 5 years 9 months as
per
custody
certificate
have
been
incarcerated by the appellant and therefore,
it is submitted that looking to the fact that
the appellant has no prior criminal history,
he has already incarcerated more than five
years in jail, the sentence of the appellant
may be reduced to the period undergone by
the appellant.

26. Learned AG.A. though has
opposed the appeal, however, could not
dispute the fact that the appellant has
already undergone 5 years and 9 months
approximately in jail and he is in custody
since 28.11.2016.

27. On due consideration to the
argument advanced by the learned counsel
for the parties as well as considering the the
financial position of the appellant, the
sentence and fine imposed by the trial court
vide
its
judgment
and
order
dated
27.02.2019 is reduced to the period already
undergone by the appellant.

28. Let a copy of this judgment be
transmitted to the learned trial court as well
as concerned Jail Superintendent for
compliance. Lower court record be sent
back to the lower court.

I
appreciate
the
assistance
rendered by Shri Raj Kumar Sharma,
learned Amicus Curiae, and we direct the
State Government to pay ₹ 20,000/- as
honorarium.
----------
(2022) 9 ILRA 41
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.09.2022

BEFORE

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

Criminal Appeal No. 163 of 2013
&
Criminal Appeal No. 18 of 2013

Gaya Prasad ...Appellant
Versus
State of U.P. ...Respondent
42 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Aalok Kumar Srivastava, Sri Gautam
Kumar Banerji, Sri Kailash Prakash Pathak,
Sri Kamta Prasad, Sri Sandeep Kumar

Counsel for the Respondent:
Govt. Advocate, Sri Ashutosh Upadhya

(A) Criminal Law - Indian Penal Code,
1860 - Sections 34 & 304 (1) - The Code of
Criminal Procedure, 1973 - Section 313 -
criminal
justice
jurisprudence
-
not
retributive but reformative and corrective
- 'doctrine of proportionality' - undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system -
'Proper Sentence' - Sentence should not
be either excessively harsh or ridiculously
low - Gravity of offence, manner of
commission of crime, age and sex of
accused should be taken into account -
balance between reform and punishment -
Discretion of Court in awarding sentence
cannot
be
exercised
arbitrarily
or
whimsically.(Para -19,20,24 )

Appellant in jail for more than 14 years -
convicted for commission of offence under
Section 304 Part-I read with Section 34 IPC -
major offence - sentenced for life imprisonment
along with fine - no common intention to do
away with the deceased or injure him - single
blow - caused injury to deceased - parties are
inter related - no premeditated action.(Para -
11,25,26 )

HELD:-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. Ends of justice would be met if
sentence reduced to period of 10 years
imprisonment for offence. (Para -21,25)

Criminal appeals partly allowed. (E-7)

List of Cases cited:-

1. Surain Singh Vs St. of Punj., 2017 LawSuit
(SC) 374

2. Atul Thakur Vs St. of H.P. etc. , 2018 0
Supreme (SC) 46

3. Ramroop Vs St. of U.P., Jail Appeal No.4722
of 2015

4. Virender Vs St. of Haryana, Criminal Appeal
No.1339 of 2010

5. Ezajhussain Sabdarhussain & anr. Vs St. of
Guj., 2019 0 Supreme (SC) 163

6. Mohan Singh & anr. Vs St. of Punj., AIR 1963
SUPREME COURT 174

7. Mukesh Vs The St. of M.P., 2022 0 Supreme
(SC) 33

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

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

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

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

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

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

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

15. Raj Bala Vs St. of Haryana, (2016) 1 SCC
463

16. Khokan @ Khokhan Vishwas Vs St. of
Chhattisgarh, Criminal Appeal No.121 of 2021

17. The St. of U.P. Vs Subhash @ Pappu,
Criminal Appeal No.436 of 2022

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard Sri Kamta Prasad for the
accused appellant - Gaya Prasad Tiwari and
9 All. Gaya Prasad Vs. State of U.P.
43
Sri Kameshwar Singh for Mukundi Singh.
Sri Vikas Goswami and Sri N.K. Srivastava
for the State.

2. By way of these appeals, the
appellants-Gaya
Prasad
Tiwari
and
Mukundi Singh have challenged the
judgment and order dated 22.12.2012
passed by Addl. Sessions Judge, Court
No.2,
Hamirpur
in
Case
Crime
No.572/2008, S.T. No.234/2008, State Vs.
Gaya Prasad Tiwari and another whereby
appellants were convicted under Section
304 (1) read with Section 34 and awarded
sentence of life imprisonment under
Section 304 (1) read with Section 34 IPC
coupled with fine of Rs. 10,000/- and in
case of default of payment of fine,
appellants
would
undergo
one
year
additional sentence.

3. The appellant - Mukundi Singh has
been enlarged on bail by this Court and
during the trial also he was on bail. Gaya
Prasad Tiwari is in jail for more than 14
years.

4. The brief facts of the case as culled
out from the record and proceedings and
the F.I.R. are that a first information report
was lodged by one Krishna Kumar Diwedi
on 9.4.2008 at 7:30 a.m. against appellants
being registered as Case Crime No.572 of
2008 for commission of offence under
Section 304 IPC with regard to the incident
dated 8.4.2008 at 11:30 p.m.

5. S.I. Siya Ram took up the
investigation and kept investigation into
motion. The Investigating Officer visited
the spot, prepared site plan, recorded
statements of the eye witness and witnesses
and
after
completing
investigation
submitted charge sheet against both the
accused.

6. The matter being triable by court of
sessions the learned Magistrate committed
the case to court of sessions.

7. The learned trial court summoned
the accused and framed charge under
Section 304 Part-I read with Section 34
IPC, which was read over to the accused.
The accused denied the charge and claimed
to be tried.

8. The prosecution so as to bring
home the charge, examined 5 witnesses,
who are as under:-

1
Krishna Kumar
P.W.1
2
Ram Teerath
P.W.2
3
Dr. R.K. Misra
P.W.3
4
Siya Ram
P.W.4
5
Mahendra Singh
P.W.5

9. The following documents were
produced and contents were proved by
leading evidence:

1.
F.I.R.
Ext. Ka-14
2.
Written report
Ext. Ka-1
3.
Recovery memo of blood stained and
plain earth.
Ext. Ka-4
4.
Post mortem report
Ext. Ka-2
5.
Site-plan
Ext. Ka-6
6.
Site-plan (II)
Ext. Ka-3
7.
Report of Vidhi Vigyan Prayogshala
Ext. Ka-16
8.
Panchayatnama
Ext. Ka-9
9.
Charge Sheet
Ext. Ka-8

10. After completion of prosecution
evidence, both the accused were examined
under Section 313 Cr.P.C. The accused did
not examine any witness in defence.

11.

Learned
Counsel
for
the
appellants submits that the punishment is
44 INDIAN LAW REPORTS ALLAHABAD SERIES
too harsh as there was a single blow which
caused injury to deceased. The parties are
inter related. There was no premeditated
action so as to do away with the deceased.
There was an altercation, it is the say of the
prosecution witness that Gaya Prasad
Tiwari went in home and brought a sharp
edged weapon from the house and inflicted
the blow to the deceased. The witnesses
also have in their occular version opined
that had proper treatment being made
available to the deceased in time, the
deceased would have survived. The role
assigned to Mukundi Singh was to see that
the deceased fell to ground from the
motorcycle
he
was
driving. Learned
Counsel has relied on the following
judgements:-

(i) Surain Singh Vs. State of
Punjab, 2017 LawSuit (SC) 374;

(ii) Atul Thakur Vs. State of
Himachal Pradesh etc. etc., 2018 0
Supreme (SC) 46; and

(iii) Ramroop Vs. State of U.P.,
Jail Appeal No.4722 of 2015, decided on
22.11.2021.

so as to contend that the accused
have been falsely implicated and in
alternative there was no premeditated
action whereby the trial court convicted the
accused with aid of section 34 of I.P. Code.

12.

The
learned
Counsel
Sri
Kameshwar Singh submits that there were
no injury marks on the body of deceased
which would show that the deceased was
assaulted and that Mukundi Singh had
caught hold of the deceased. The version of
PW2-Ram Teerath does not find place in
the evidence of PW1-Krishna Kumar,
neither are these facts mentioned in the
F.I.R. Learned Counsel has relied on the
following
judgements
to
press
the
submission that if there are contradiction in
the testimony, the accused be given benefit
of doubt:

(i) Virender Vs. State of Haryana,
Criminal Appeal No.1339 of 2010, decided
on 16.12.2019;

(ii) Ezajhussain Sabdarhussain
and another Vs. State of Gujarat, 2019 0
Supreme (SC) 163;

(iii) Mohan Singh and another
Vs. State of Punjab, AIR 1963 SUPREME
COURT 174; and

(iv) Mukesh Vs. The State of
Madhya Pradesh, 2022 0 Supreme (SC) 33.

13. It is further submitted by Sri
Kameshwar Singh that this is not a case
where there is common intention to do
away with the deceased said to be
presented when incident occurred. It is
further submitted that out of 4 eye
witnesses, none has tried to save the
deceased
and
the
prosecution
has
misreadibly failed and they have not
purposely examined these witnesses. It is
further submitted that he seeks clean
acquittal of the accused, who is wrongly
roped in this case as it is stated in the F.I.R.
that the deceased came on the motorcycle
and Mukundi Singh pulled him and the
deceased fell down. If the vehicle was
already there, there was no question for
searching the vehicle to take the injured to
the hospital. The version of witness causes
doubt about prosecution case. The F.I.R. is
lodged after a considerable delay. PW1Krishna Kumar has remained silent as far
as catching hold of the deceased by
Mukundi Singh is concerned.

14. Sri Vikas Goswami, learned
A.G.A., has submitted that the punishment
is just and proper and no retributive theory
is required to be applied as the injury was
on the very vital part of the body of the
9 All. Gaya Prasad Vs. State of U.P.
45
deceased and Mukundi Singh is also
equally liable as there was common
intention to commit the offence and to do
away with the accused.

15. Learned A.G.A. Sri N.K.
Srivastava submits that as far as crossexamination of PW2 is concerned, nor in
the statement recorded under Section 313
of Cr.P.C. of accused, this aspect has been
answered or rebutted that the accused had
not caught hold of the deceased just
because this aspect is not mentioned in the
F.I.R. It will not prove fatal to the accused.
The oral testimony of PW2 cannot be
discarded. It is further submitted that the
evidence of the doctor clinches the issue
and the accused with common intention
inflicted injury to the deceased.

16.

After
advancing
aforesaid
arguments,
learned
counsels
for
the
appellants alternatively submitted that if this
Court in appeal holds the accused guilty, it
may consider the alternative prayer for
reduction of the sentence as the sentence of
life imprisonment and fine awarded to the
appellants by the trial court is very harsh and
not commensurate to the injury caused.

17. While coming to the conclusion that
the accused are the perpetrators of the
offence,
whether
sentence
of
life
imprisonment and fine is adequate or the
sentence requires to be modified in the facts
and circumstances of this case and in the light
of certain judicial pronouncements and
precedents applicable in such matters requires
to be considered from the aspect of injuries of
deceased. The post-mortem reveals that there
were following injuries on the dead body.

18. This Court would refer to the
following
precedents,
namely,
Mohd.
Giasuddin Vs. State of AP, [AIR 1977 SC
1926], which explains rehabilitary &
reformative aspects in sentencing it has
been observed by the Supreme Court in the
said decision as follows:

"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.
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."

19. '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.
46 INDIAN LAW REPORTS ALLAHABAD SERIES

20. 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.

21. 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.

22. While going through the record and
the testimony of the witnesses specially the
FIR and the medical evidence, the guilt of the
accused is proved to the hilt and we are unable
to disagree with the learned court below in
recording the finding of guilt of the accused.

23. The evidence of doctor who had
performed the post mortem as narrated hereinabove also fortified that the injuries were
possible by knife used by appellant - Gaya
Prasad. Section 34 of I.P. Code reads as
under:-

"Acts done by several persons in
furtherance of common intention. --When a
criminal act is done by several persons in
furtherance of the common intention of all,
each of such persons is liable for that act in
the same manner as if it were done by him
alone."

24. As discussed above, 'reformative
theory of punishment' is to be adopted and for
that reason, it is necessary to impose
9 All. Ramesh Yadav Vs. State
47
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.

25. Learned AGA also admitted the fact
that appellant - Gaya Prasad Tiwari is
languishing in jail for the last more than 14
years. The accused-appellants are convicted for
commission of offence under Section 304 Part-I
read with Section 34 IPC, which is a major
offence and is sentenced for life imprisonment
along with fine. In our opinion, ends of justice
would be met if sentence is reduced to the
period of 10 years imprisonment for the
aforesaid offence.

26. Gaya Prasad Tiwari is punished for
period undergone rigorous imprisonment. The
fine of Rs. 10,000/- is reduced to Rs. 5,000/- to
him. As far as Mukundi Singh is concerned, we
hold that looking to the factual data and as
ingredient of Section 34 I.P. Code are not
proved as there was no common intention to do
away with the deceased or injure him. We are
fortified in our view by the decision of the Apex
Court in Khokan @ Khokhan Vishwas Vs.
State of Chhattisgarh, Criminal Appeal
No.121 of 2021, decided on 11.2.2021 and
The State of Uttar Pradesh Vs. Subhash @
Pappu, Criminal Appeal No.436 of 2022,
decided on 1.4.2022.

27. Once we hold that there was no
common intention, role of person has to be
evaluated and the act the accused had
committed would have to be viewed in the light
of evidence against the accused. It cannot be
said that Mukundi Singh was not present and
there was no overt act committed by him. The
deceased succumbed is not negated in the
statement under Section 313 Cr.P.C. However,
as long period has elapsed, we reduce the
punishment of Mukundi to sentence undergone
but enhance the fine from Rs. 10,000/- to Rs.
15,000/-. The fine be deposited within 3 months
from his release from jail failing which he shall
be incarcerated for further 2 years.

28. Hence, the sentence awarded to the
appellant-Gaya Prasad Tiwari and Mukundi
Singh by the learned trial-court is modified as
above under Section 304 Part-I read with
Section 34 IPC and fine as above mentioned.

29. Accordingly, both the appeals are
partly allowed with the modification of the
sentence, as above.

30. The Jailer to release the accused if not
wanted in other offence. Mukundi Singh is on
bail. Jailor of concerned jail to do the needful as
per jail manual.

31. Record be sent back to the court
below.

32. This Court is thankful of all the
Counsels for ably assisting this Court ad getting
these old appeals disposed off.
----------
(2022) 9 ILRA 47
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.09.2022

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Jail Appeal No. 358 of 2018

Ramesh Yadav ...Appellant
Versus
State ...Respondent