# Gopal v. State of U.P. Opp. Party

- **Citation:** (2015) 2 ILRA 961
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-08-20
- **Case number:** Criminal Appeal No. 3411 of 2006
- **Bench:** Amreshwar Pratap Sahi, Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-v-state-of-u-p-opp-party-43325
- **Pages:** 10

## Headnote

A.G.A.
Criminal Appeal-Against conviction of life
imprisonment with fine Rs. 5000/-on
ground-no weapon used upon deceasedinspite of tenancy dispute-no previous
altercation took place-considering weak
mental status appellant may be guilty of
culpable homicide not amounting to murder
under Section 304 IPC-held-punishment of
life imprisonment much excessive and
inappropriate-can not be more than 10
years-while appellant already been under
imprisonment for 24 years-hence sentenced
reduced for the period already undergoneappeal disposed of.
Held: Para-27
962
 INDIAN LAW REPORTS ALLAHABAD SERIES
When we apply the settled principles of
law which has been enumerated in the
aforementioned cases, the sentence of
life imprisonment of the appellant under
Section 304 IPC appears to be excessive
and inappropriate. In the present case
after
considering
the
circumstances
presented before the Sessions Judge and
before us during hearing of appeal, it
appears appropriate that, in the present
case the sentence should not exceed
more than 10 years' imprisonment. But
since
he
has
already
been
under
imprisonment
for
about
24
years,
therefore we are of the view that ends of
justice would be met if he be sentenced
for the period already undergone.
Case Law discussed:
(2008) 15 SCC 753; (2013) 9 SCC 516; (1994)
6 SCC 727; (2015) 6 SCC 1; (1976) 1 SCC
281; (2009)15 SCC 635.

## Text

2 All] Gopal Vs. State of U.P.
961
12. In the case in hand, the only
reason assigned is that petitioner is
continuously absent and his whereabouts
are not known. Both these facts are
factually incorrect and non est. The
petitioner was actually discharging his
duties at Community Health Center,
Patiali, District Kanshiram Nagar as per
the own version of respondents, evident
from para 6 of counter affidavit since,
after 22.01.2010. There was no absence
on the part of petitioner and he was in
actual duty from 23.01.2010 till the date
of termination.
13.
Even
impugned
order
of
termination was served upon him while he
was serving at the aforesaid center. In the
circumstances, it cannot be said that
departmental enquiry has been dispensed
with validly and the constitutional protection
available to petitioner has been done away in
the manner permitted under Article 311(2)
second proviso (b). In fact, the aforesaid
provision is not at all attracted in the case in
hand and without application of mind, the
appointing authority has resorted to said
power.
In
a
wholly
illegal
and
unconstitutional manner, it has terminated
the petitioner. The correct way would have
been to initiate a departmental enquiry
against petitioner, serve a charge-sheet upon
him for alleged unauthorized absence, if any,
and thereafter to take appropriate action in
the light of findings recorded by enquiry
officer in a regular disciplinary proceeding
held in accordance with Rules, 1999. Non
compliance of aforesaid procedure of
holding of departmental enquiry, and,
instead, dispensation thereof in an illegal
manner renders the impugned order wholly
unconstitutional and void-ab-initio.
14.
In the result, the writ petition is
allowed. Impugned order of termination
dated 03.05.2010, insofar as it relates to
petitioner, is hereby quashed. Petitioner shall
be entitled to all consequential benefits.
15. However, this order shall not be
preclude the respondents from taking
action against petitioner for any act of
misconduct,
including
absence
and
misconduct,
by
taking
action
in
accordance with law.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.08.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE PRAMOD KUMAR
SRIVASTAVA, J.
Criminal Appeal No. 3411 of 2006
Gopal
 ...Appellant
Versus
State of U.P.
...Opp. Party
Counsel for the Appellant:
Sri Prakash Dwivedi, Sri I.M. Khan, Sri
Sudeep Dwivedi
Counsel for the Opp. Parties:
A.G.A.
Criminal Appeal-Against conviction of life
imprisonment with fine Rs. 5000/-on
ground-no weapon used upon deceasedinspite of tenancy dispute-no previous
altercation took place-considering weak
mental status appellant may be guilty of
culpable homicide not amounting to murder
under Section 304 IPC-held-punishment of
life imprisonment much excessive and
inappropriate-can not be more than 10
years-while appellant already been under
imprisonment for 24 years-hence sentenced
reduced for the period already undergoneappeal disposed of.
Held: Para-27
962
 INDIAN LAW REPORTS ALLAHABAD SERIES
When we apply the settled principles of
law which has been enumerated in the
aforementioned cases, the sentence of
life imprisonment of the appellant under
Section 304 IPC appears to be excessive
and inappropriate. In the present case
after
considering
the
circumstances
presented before the Sessions Judge and
before us during hearing of appeal, it
appears appropriate that, in the present
case the sentence should not exceed
more than 10 years' imprisonment. But
since
he
has
already
been
under
imprisonment
for
about
24
years,
therefore we are of the view that ends of
justice would be met if he be sentenced
for the period already undergone.
Case Law discussed:
(2008) 15 SCC 753; (2013) 9 SCC 516; (1994)
6 SCC 727; (2015) 6 SCC 1; (1976) 1 SCC
281; (2009)15 SCC 635.
(Delivered by Hon'ble Pramod Kumar
Srivastava, J.)
1. This appeal has been preferred
against the judgment of conviction dated
27.04.2006
and
of
sentence
dated
28.04.2006 passed by Additional Sessions
Judge, Court No. 4 Mirzapur in S.T. No.
26 of 1993 (State Vs. Gopal) under
Section 307, 323 and 302 IPC in case
crime no. 331 of 1991, p.s.-Kotwali
Katra, Mirzapur by which accusedappellant Gopal had been convicted for
the charge under Section 302 IPC and
sentenced with imprisonment for life and
fine of Rs. 5000/- (in default of payment
further imprisonment for six months) and
for the charge under Section 323 IPC with
imprisonment for six months; and it was
directed that both the sentences would run
concurrently.
2.
The prosecution case in brief was
that appellant Gopal was landlord of the
house in which informant's father Fakir
Chand was tenant and was living with his
family. They had tenancy disputes for which
litigation was pending. In the night of 17/187-91 at about 3:00 am, Fakir Chand was
sleeping outside his house, when accused
Gopal came and started beating Fakir Chand
with a "paati" (wooden arm of a cot), then on
alarm of Fakir Chand, informant and other
persons came there. Accused Gopal had
inflicted many injuries on Fakir Chand, and
when Bhaggu Mallah, his daughter-in-law,
his wife and children came there then
accused had also injured them with the same
"paati". At the time of incident, witnesses
Vijay Kumar, Kallu Khan came there and
saw the incident. After this incident, accused
Gopal fled away from the spot. Fakir Chand
was taken to the hospital and on the way he
succumbed to his injuries. After this,
informant Raj Narayan reported this matter
at the police station in the morning of
18.07.1991 at 06.10 am., on the basis of
which case crime no. 331 of 1991 u/s 302
IPC was registered. After completition of
investigation, charge-sheet was submitted
against Gopal for the offence u/s 304 IPC, on
the basis of which Sessions Trial No. 26 of
1993 was registered.
3. In sessions trial, accused Gopal
was charged for offences under Section
302, 307, 323 IPC, which he denied and
claimed to be tried. The prosecution
examined PW-1, Vijay Kumar, PW-2
Bhagggu Lal, PW-3 Kallu, PW-4 Dr.
Dinesh Swarup , PW-5 Raj Narayan, PW6
Narendra
Prasad
Singh,
PW-7
Constable Israrul Hasan and PW-8 Dr.
K.P.Singh. These witnesses had proved
the documentary evidence as well as
material exhibits of the prosecution side.
4. After closure of the prosecution
evidence, statement of accused was
recorded in which he had denied the
2 All] Gopal Vs. State of U.P.
963
prosecution evidence and stated that he
had been a person of unsound mind since
his childhood for a long period and had
suffered from fits of insanity. He does not
remember any incident of the day of the
charged incident. In support of his
defence version, he also stated during trial
that
he
was
in
jail.
During
his
incarceration he was sent by the Chief
Medical Officer (CMO), through the
Court, to Mental Hospital, Varanasi,
where his treatment was carried out for
one year. Thereafter, he had returned to
face the trial in custody, and then again he
became insane and was sent again to the
Mental Hospital, Varanasi. When he came
back from there after treatment, then his
trial resumed. He had no enmity with
injured/victims of this case. He had filed
documents relating to the treatment
showing that at the time of the incident,
he was not in his senses.
5. Accused had also examined
defence witnesses DW-1 Dr. Kashi
Prasad, DW-2 Dr. Dr. Amrendra, DW-3
Dr. C.P. Singh and DW-4 Kalam, who
had proved the defence documents
including
registers
relating
to
the
treatment of the accused for his mental
illness.
6. After closure of evidence of both
sides and after affording opportunity of
hearing the lower court passed the
impugned judgment dated 27.04.2006/
28.04.2006, by which accused Gopal was
convicted as mentioned above, against
which, he has preferred the present
appeal.
7. Sri Sudeep Dwivedi, learned
counsel for the appellant argued that he is
not challenging the fact of charge of
causing death of the deceased
Fakir
Chand by accused appellant, but from the
evidence, appellant appears to be entitled
to the benefit of Section 84 IPC because
he had been under treatment for his
unsoundness of mind at the time of the
charged incident. In the alternative, he has
fairly contended that if his plea by
defence under Section 84 IPC is not
accepted in that case also the incident in
question is not an offence of murder
punishable u/s 302 IPC, but is a culpable
homicide not amounting to murder.
Therefore the punishment awarded may
be mitigated. It was also contended that
the appellant's family was dependent on
him. He being the only bread winner of
his family, this being his first guilt and his
hailing from a poor family, the award of
life sentence and fine of Rs. 5,000/-, in
default to undergo further imprisonment
for six months is very excessive. He urged
that these points were raised by the
appellant's counsel during arguments
before the trial Court, but were not
properly considered because of his
conviction u/s 302 IPC. His alternative
argument is that in any case, considering
the plea of unsoundness of the mind at the
time of the charged incident as well as the
circumstances that the appellant accused
had no previous intention or pre-planning
to cause death, and suddenly caused
injuries without using any formal weapon,
and used only a "paati" (that is wooden
arm of a cot) which in no way is a weapon
but a thing of domestic use his sentence
should be mitigated. Had he fostered any
intention to cause death and pre-planned
the same, he would have used any weapon
at least a stick or anything like that during
the incident.
8. Learned counsel for the appellant
also pointed out that from evidence, it is
proved that at the time of the incident and
964
 INDIAN LAW REPORTS ALLAHABAD SERIES
before, the appellant was a man of
unsound mind and even at the time of
incident, he had caused injuries not only
to informant's father Fakir Chand but also
to many other individuals. It was argued
that in these circumstances the sentence of
the appellant Gopal should be mitigated
and converted u/s 304 IPC, and his
punishment should be reduced to the
period already undergone or any other
period because he is in jail from the time
of incident since 1991.
9. Learned AGA appearing for the
respondent State submitted that though
there is evidence of prosecution and
defence witnesses regarding intermittent
and periodical unsoundness of mind of the
appellant, but it has not been proved
beyond doubt that at the time of the
charged incident the appellant was under
the state of unsoundness of mind. He
contended that had the appellant been a
person of unsound mind then apart from
causing injuries to other persons he would
have tried to cause injuries to himself
also. In alternative, learned AGA has
fairly submitted that the Court is at liberty
to impose an appropriate sentence on the
appellant.
10. We have given our consideration
to the rival submissions and perused the
material and evidence available on record.
11. This fact relating to charge was
not challenged by the learned counsel for
the appellant that on the date of charged
incident, accused Gopal had inflicted
injuries on the body of sleeping Fakir
Chand and also on the body of several
other persons who had came there to
protect Fakir Chand. It was also admitted
that those injuries were caused by a
"paati" (wooden arm of a cot). It was not
challenged by the appellant that due to
injuries caused by him, informant's father
Fakir Chand got injured and died. Thus, it
is proved that at the time of incident no
weapon was used by the appellant for
injuring sleeping Fakir Chand or other
witnesses who came to rescue him.
Though, there was some dispute between
the appellant and deceased relating to a
tenancy issue but for that a litigation was
already pending and no earlier serious
altercation had happened. It is also proved
that
other
witnesses,
namely,
Hari
Shankar Singh, Ram Sewak Singh,
Bhaggu,
Kumari
Sumari
had
also
sustained simple injuries of the "paati"
when they came to protect the deceased
and these witnesses had no enmity with
the accused appellant. These facts prove
that at the time of the charged incident
accused appellant had started inflicting
injuries on the deceased as well as every
person who came near him and many
persons had sustained injuries without any
reason or enmity. Such acts are not
committed by a person of normal
prudence. The defence witnesses DW-2
and DW-3 are doctors and they had
proved unsoundness of mind and of
insanity of the appellant Gopal during his
period of detention in jail. We are in
agreement that the believable evidence of
these two defence witnesses, namely,
DW-2 and DW-3 are evidence of
unsoundness of mind of the appellant
after the date of incident.
12. Ex-Ka-43 is a letter dated
22.07.1991 sent by the Superintendent
District Jail, Mirzapur to the CJM
Mirzapur in which he had mentioned that
accused Gopal was admitted in the jail on
19.07.1991 (since the next day of charged
incident dated 18.07.1991) and from the
time of his entry in the jail, his mental
2 All] Gopal Vs. State of U.P.
965
condition is bad, he involves himself in
violent activities like injuring other
prisoners, injuring his own head against
the wall, dipping his head in water;
therefore he is kept in of solitary barrack
under
medical
observation.
Jail
Superintendent has requested that the
accused may be sent before a Medical
Board for examination and treatment. On
this letter of the Jail Superintendent, CJM,
Mirzapur had sent him before the CMO
and thereafter he was sent to the mental
hospital.
This
fact
proved
that
immediately after the charged incident the
activities of the appellant Gopal were not
of a normal man and he was behaving
abnormally and used to indulge in violent
activities including injuring himself also.
DW-2 and DW-3 were doctors who had
proved that during his custody, he was
found mentally ill due to Mechanical
Depression Psychosis and after treatment,
he was cured. But the evidence could not
be proved beyond doubt that on the date
of the charged incident the appellant was
under influence of insanity.
13. DW-1 Kashi Prasad had proved
that before the charged incident accused
Gopal was under fits of madness several
times, for which he was being treated. At
the time of the charged incident, he was
not in his senses. DW-4 Kalam is also one
of those persons who were injured with
deceased Fakir Chand at the time of
charged incident. He had stated that at the
time of incident, accused Gopal was
under influence of madness at about 3:00
am at night and for that reason he had
inflicted
injuries
on
many
persons
including him, due to which he had
sustained injuries on his right shoulder.
Apart from him 8 to 10 person were
injured due to injuries caused by the
accused Gopal and one of them was Fakir
who had succumbed to the injuries
inflicted by appellant accused. But Gopal
had not injured him or deceased Fakir or
any other person due to any enmity. He
was not in his senses due to insanity.
Then the police had taken Gopal in
custody. During and after the incident, he
was insane. This statement of DW-4 has
been found to be correct and was
supported by other oral and documentary
evidence.
14. Prosecution witnesses PW-1
Vijay
Kumar
had
supported
the
prosecution
case
but
during
crossexamination, he admitted that before the
incident in question, there was no dispute
between accused Gopal and the deceased
or his son. He admitted that in the night of
charged incident, Gopal had injured not
only Fakir Chand, but 5 to 6 persons of
the family of Bhaggu also and had caused
injuries to the students, who were
sleeping at the temple at the time of
incident. Gopal was beating everyone
who met him. PW-2 Bhaggu Lal is also
an injured witness of this case who had
admitted during cross-examination that
though he was injured by accused Gopal
but had no enmity with him. He was
informed that Gopal used to go mad from
time to time. He had admitted from his
knowledge that before the charged
incident, once Gopal was under the
influence of madness and was sent for
treatment to a mental hospital. PW-2 had
also admitted that before and after the
charged incident, Gopal was insane. The
evidence of the prosecution has supported
the argument of the learned counsel for
the appellant that the appellant had been a
person of unsound mind from time to time
just before and just after the charged
incident and at those times he was
incapable of knowing the nature of his
966
 INDIAN LAW REPORTS ALLAHABAD SERIES
acts or that he was doing anything right or
wrong. From the above discussion, it is also
proved that the charged act was committed
by the appellant without intention of murder,
without use of any formal weapon and
without
any
pre-planning.
From
the
evidence, it appears probable that the
appellant had willfully caused injures to
every person who was found near him and
these injures were inflicted indiscriminately
without properly knowing as to whether they
may cause death or not. Therefore, in such
circumstances, it has to be well thought out
as to whether the act causing injuries to Fakir
Chand resulting in his death was murder or
whether it was a culpable homicide not
amounting to murder.
15. Culpable homicide is a murder if
act which causes death is done with the
intention of causing death or is done with
intention of causing a bodily injury and
injury intended to be inflicted is sufficient
in the ordinary course of nature to cause
death. All murder is culpable homicide
but not vice versa. This is the degree of
probability of death which determines
whether a culpable homicide is of the
gravest, medium or the lowest degree.
16. In "Kesar Singh v. State of
Haryana, (2008) 15 SCC 753" Hon'ble
Apex had held :
"To put it shortly, the prosecution
must prove the following facts before it
can bring a case under Section 300
"Thirdly":
First,
it
must
establish,
quite
objectively, that a bodily injury is present;
Secondly, the nature of the injury
must be proved; these are purely objective
investigations.
Thirdly, it must be proved that there
was an intention to inflict that particular
bodily injury, that is to say, that it was not
accidental or unintentional, or that some
other kind of injury was intended.
Once these three elements are proved
to be present, the enquiry proceeds further
and,
Fourthly, it must be proved that the
injury of the type just described made up of
the three elements set out above is sufficient
to cause death in the ordinary course of
nature. This part of the enquiry is purely
objective and inferential and has nothing to
do with the intention of the offender.
Once
these
four
elements
are
established by the prosecution (and,
indisputably, the burden is on the
prosecution throughout) the offence is
murder under Section 300 "Thirdly". It
does not matter that there was no
intention to cause death. It does not matter
that there was no intention even to cause
an injury of a kind that is sufficient to
cause death in the ordinary course of
nature (not that there is any
real
distinction between the two). It does not
even matter that there is no knowledge
that an act of that kind will be likely to
cause death. Once the intention to cause
the bodily injury is actually found to be
proved, the rest of the enquiry is purely
objective and the only question is
whether, as a matter of purely objective
inference, the injury is sufficient in the
ordinary course of nature to cause death. No
one has a licence to run around inflicting
injuries that are sufficient to cause death in
the ordinary course of nature and claim that
they are not guilty of murder. If they inflict
injuries of that kind, they must face the
consequences; and they can only escape if it
can be shown, or reasonably deduced that
the injury was accidental or otherwise
unintentional."
2 All] Gopal Vs. State of U.P.
967
17. In the matter in hand it is proved
from the evidence that the charged act
was committed by the appellant without
intention of murder, without use of any
formal weapon and without any preplanning. From the evidence, it appears
probable that the appellant had willfully
caused injuries to every person who was
found near him and these injuries were
inflicted
indiscriminately
without
properly knowing as to whether they may
cause death or not. Though the injuries
caused by him were grievous but there
was every possibility of the deceased's
survival. Apparently knowing these facts
fully well the appellant Gopal had
inflicted blows on the deceased and after
that he had caused injuries to others also
without any motive or reason. It is also
proved that the appellant had inflicted
injuries without discriminating between
vital and non-vital parts of the bodies of
injured. The unsoundness of the mind of
appellant at the time of the charged
incident is not proved beyond doubt, but it
is apparent that he had been a man of a
comparitively weak mental status. These
facts are proof of the facts for the death of
injured Fakir Chand that was caused due
to
the
act
committed
without
premeditation and due to all of a sudden
provocation after seeing Fakir Chand,
who was a tenant and had been retaining
his house without paying rent for a long
time. This matter comes within exception
1 of Section 300 IPC. Therefore the
appellant is found guilty of an act of
culpable homicide not amounting to
murder which is punishable under section
304 IPC.
18. It is settled law that the courts
are obliged to respect the legislative
mandate in the matter of awarding of
sentences in all such cases. In "Hazara
Singh v. Raj Kumar, (2013) 9 SCC 516"
Hon'b'e Apex Curt had held that :
"it is clear that the maximum
punishment
provided
therein
is
imprisonment for life or a term which
may extend to 10 years. Although Section
307 does not expressly state the minimum
sentence to be imposed, it is the duty of
the courts to consider all the relevant
factors to impose an appropriate sentence.
The legislature has bestowed upon the
judiciary this enormous discretion in the
sentencing
policy,
which
must
be
exercised with utmost care and caution.
The punishment awarded should be
directly proportionate to the nature and
the magnitude of the offence. The
benchmark of proportionate sentencing
can assist the Judges in arriving at a fair
and impartial verdict."
"17. We reiterate that in operating
the sentencing system, law should adopt
the corrective machinery or deterrence
based on factual matrix. The facts and
given circumstances in each case, the
nature of the crime, the manner in which
it was planned and committed, the motive
for commission of the crime, the conduct
of the accused, the nature of weapons
used and all other attending circumstances
are relevant facts which would enter into
the area of consideration. We also
reiterate that undue sympathy to impose
inadequate sentence would do more harm
to the justice system to undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to the nature of
the offence and the manner in which it
was executed or committed. The court
must not only keep in view the rights of
the victim of the crime but also the
society at large while considering the
imposition of appropriate punishment."
968
 INDIAN LAW REPORTS ALLAHABAD SERIES
19.
Only because Section 304 IPC
provides the life imprisonment as the
maximum sentence, does not mean that Court
should mechanically proceed to impose the
maximum sentences, more particularly when
the incident had occurred suddenly, during the
heat and passion of quarrel.
20. In Hem Chand v. State of
Haryana, (1994) 6 SCC 727 Hon'ble Apex
Court had held that :
"As mentioned above, Section 304-B
IPC only raises presumption and lays down
that minimum sentence should be seven
years but it may extend to imprisonment for
life. Therefore awarding extreme punishment
of imprisonment for life should be in rare
cases and not in every case."
21.
In
Devidas
Ramachandra
Tuljapurkar v. State of Maharashtra, (2015) 6
SCC 1 Hon'ble Apex Court had held :
"While we see no reason to differ
with the concurrent findings recorded by
the trial court and the High Court, we do
see some substance in the argument raised
on behalf of the appellants that keeping in
view the prosecution evidence, the
attendant circumstances, the age of the
accused and the fact that they have
already been in jail for a considerable
period, the Court may take lenient view as
far as the quantum of sentence is
concerned. The offences having been
proved against the accused and keeping in
view the attendant circumstances, we are
of the considered view that ends of justice
would be met, if the punishment awarded
to the appellants is reduced."
22. In 'Ramashraya Chakravarti v.
State of M.P., (1976) 1 SCC 281' Hon'ble
Apex Court had observed :
"To
adjust
the
duration
of
imprisonment to the gravity of a particular
offence is not always an easy task.
Sentencing
involves
an
element
of
guessing but often settles down to practice
obtaining in a particular court with
inevitable differences arising in the
context of the times and events in the light
of social imperatives. It is always a matter
of judicial discretion subject to any
mandatory minimum prescribed by law."
"In judging the adequacy of a
sentence the nature of the offence, the
circumstances of its commission, the age
and character of the offender, injury to
individuals or to society, effect of the
punishment on the offender, eye to
correction
and
reformation
of
the
offender, are some amongst many other
factors which would be ordinarily taken
into consideration by courts trial courts in
this country already overburdened with
work have hardly any time to set apart for
sentencing reflection. This aspect is
missed or deliberately ignored by the
accused lest a possible plea for reduction
of sentence may be considered as
weakening his defence. In a good system
of administration of criminal justice presentence investigation may be of great
sociological value."
23. One of the prime objectives of the
criminal law is imposition of an appropriate,
adequate, just and proportionate sentence
commensurate with the nature and gravity of
the crime and the manner in which the crime
is done. For sentencing an accused on proof
of crime the courts have evolved certain
principles; the twin objective of the
sentencing
policy
is
deterrence
and
correction. It lies within the discretion of the
court to choose a particular sentence within
the available range from minimum to
maximum. What sentence would meet the
2 All] Gopal Vs. State of U.P.
969
ends of justice depends on the facts and
circumstances of each case and the court
must keep in mind the gravity of the crime,
motive for the crime, nature of the offence
and all other attendant circumstances.
24. In considering the adequacy of
the sentence which neither be too severe
nor too lenient the court has, therefore, to
keep in mind the motive and magnitude of
the offence, the circumstances in which it
was committed and the age and character
(including his antecedents) and situation
in life of the offender.
25. In Gurmukh Singh v. State of
Haryana, (2009) 15 SCC 635 Hon'ble
Apex Court had discussed points to be
taken
into
account
before
passing
appropriate sentence as under :
"23. These are some factors which
are required to be taken into consideration
before awarding appropriate sentence to
the accused. These factors are only
illustrative
in
character
and
not
exhaustive. Each case has to be seen from
its special perspective. The relevant
factors are as under:
(a) Motive or previous enmity;
(b) Whether the incident had taken
place on the spur of the moment;
(c) The intention/knowledge of the
accused while inflicting the blow or
injury;
(d)
Whether
the
death
ensued
instantaneously or the victim died after
several days;
(e) The gravity, dimension and
nature of injury;
(f) The age and general health
condition of the accused;
(g) Whether the injury was caused
without premeditation in a sudden fight;
(h) The nature and size of weapon
used for inflicting the injury and the force
with which the blow was inflicted;
(i) The criminal background and
adverse history of the accused;
(j) Whether the injury inflicted was
not sufficient in the ordinary course of
nature to cause death but the death was
because of shock;
(k) Number of other criminal cases
pending against the accused;
(l) Incident occurred within the
family members or close relations;
(m) The conduct and behaviour of
the accused after the incident. Whether
the accused had taken the injured/the
deceased to the hospital immediately to
ensure that he/she gets proper medical
treatment?
These are some of the factors which
can be taken into consideration while
granting an appropriate sentence to the
accused.
24. The list of circumstances
enumerated above is only illustrative and
not exhaustive. In our considered view,
proper and appropriate sentence to the
accused is the bounded obligation and
duty of the court. The endeavour of the
court must be to ensure that the accused
receives appropriate sentence, in other
words, sentence should be according to
the gravity of the offence. These are some
of the relevant factors which are required
to be kept in view while convicting and
sentencing the accused."
26. Now the matter is limited to
sentence for offence u/s 304 IPC, and we
have to consider about the appropriate
sentence for the appellant in this case. For
it aggravating circumstances relating to
the crime while mitigating circumstances
relating to the criminal has to be
970
 INDIAN LAW REPORTS ALLAHABAD SERIES
considered. From facts and circumstances
of the case it is clear that the appellants
and victim are neighbours and had
initially no intention or premeditation for
murder/ homicide as they had been
involved in a civil litigation. He had not
used any formal weapon in the incident.
Appellant had no criminal history and is
in incarceration for about 24 years. Apart
from these mitigating circumstances, it is
noteworthy that the charged incident was
due to a sudden provocation without any
inducement. Appellant had committed the
charged act without any sufficient reason
and due to provocation caused by his own
act as he is a person of weak brainpower
who very often fails to control himself.
27.
When we apply the settled
principles
of
law
which
has
been
enumerated in the aforementioned cases, the
sentence of life imprisonment of the
appellant under Section 304 IPC appears to
be excessive and inappropriate. In the
present
case
after
considering
the
circumstances presented before the Sessions
Judge and before us during hearing of
appeal, it appears appropriate that, in the
present case the sentence should not exceed
more than 10 years' imprisonment. But
since
he
has
already
been
under
imprisonment for about 24 years, therefore
we are of the view that ends of justice
would be met if he be sentenced for the
period already undergone.
28. In view of the above facts and
discussion, the order of conviction u/s 302
IPC imposed on the appellant is hereby
modified u/s 304 IPC, and the sentence of
imprisonment for life is modified to the
period
of
imprisonment
already
undergone. With this modification of
conviction, punishment and sentence, the
appeal stands disposed off.
29. Let the copy of this judgment be
sent to Sessions Judge, Mirzapur of
ensuring compliance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.08.2015
BEFORE
THE HON'BLE ANIL KUMAR, J.
Service Single No. 4639 of 2015
Neha Mishra
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Som Kartik Shukla
Counsel for the Respondents:
C.S.C.
U.P. Intermediate Education Act 1921Chapter III Regulation-103-Compassionate
appointment-whether a married daughter
illegible for compassionate appointment?-
held-'No'-reasons discussed.
Held: Para-12
Accordingly, the petitioner being married
daughter of the late Suresh Nath Misra,
who died while working and discharging
his duties on the post of Assistant
Teacher of the institution known as
Public Inter College, Sampoorna Nagar
Kheri is not entitled for compassionate
appointment
under
Regulation
103
Chapter
III
of
U.P.
Intermediate
Education Act, 1921 , so I do not find any
illegality or infirmity in the impugned
order
dated
21.1.2015
passed
by
opposite party no.2/ District Inspector of
Schools,
Lakhimpur
Kheri,
the
writ
petition liable to be dismissed.
Case Law discussed:
(2015) 1 UPLBEC 517; AIR 2010 SC 1714;
2015 (33) LCD 1381.
(Delivered by Hon'ble Anil Kumar, J.)