# Gullu & Ors v. State of U.P. Opp. Party

- **Citation:** (2015) 3 ILRA 1196
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-09-18
- **Case number:** Criminal Appeal No. 1472 of 2012
- **Bench:** Amreshwar Pratap Sahi, Pramod Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gullu-ors-v-state-of-u-p-opp-party-43372
- **Pages:** 9

## Headnote

Criminal Appeal-offence under section 498A, 304-B and 3⁄4 D.P. Act-conviction of life
imprisonment-keeping in view the object of
criminal law-appropriate adequate and
proportionate-considering gravity age of
mother-in-law-not expected to do such
thrashing of deceased-hence conviction
reduced to 7 years-but the husband bound
by his moral duty to protect his wifedeserves appropriate punishment of 12
years rigorous imprisonment.
Held: Para-30
From the facts and circumstances of the
case it is clear that the appellants had
initially no intention or premeditation for
murder/ homicide and the deceased had
been inflicted grievous injuries on her legs
only. This possibility cannot be ruled out
that in a domestic quarrel the appellants,
who are rustic villagers, had beaten the
bahu
(daughter-in-law)
of
the
house
savagely due to which such injury or shock
had been caused that resulted in the death
of the victim. Appellants had no criminal
history and they are in incarceration for
about more than five years. Their age is also
pertinent. Considering their age at the time
of their statement u/s 313 CrPC, the Bal
Chand and Smt. Ramwati Devi are senior
citizens, and their age at present is more
than 63 years and 60 years respectively. In
ordinary course they are not expected to do
such thrashing of the deceased. They may
be dealt with some leniency. But the age of
appellant Gullu is about 37-38 years at
present, and being the husband of the
deceased it was his legal and moral duty to
protect his wife, but instead he was
involved in beating his wife to the extent
that she succumbed to her injuries. He
deserves appropriate punishment without
much leniency. When we apply the settled
principle
of
law
which
has
been
enumerated in the aforementioned cases,
the sentence of life imprisonment of the
appellants under Section 304 IPC appears
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
sentences of appellants Bal Chand and Smt.
Ramwati should not exceed more than 7
years' imprisonment, but the sentence of
Gullu should be 12 years.
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

## Text

1196
 INDIAN LAW REPORTS ALLAHABAD SERIES
that since the matter is being remitted
back to the Collector it would be open to
the appellant to raise all such and other
pleas before the authority who would now
proceed in the matter in light of the
directions made hereinafter.
32. Accordingly, the Special Appeal
shall stand allowed. The judgment and
order of the learned Single Judge dated 17
August 2015 shall stand set aside.
Consequent to what has been held above,
the orders of the Collector dated 3 August
2015 and 10 November 2014 are hereby
quashed. The matter shall stand remitted
back to the Collector, Gautambudh Nagar
for
passing
appropriate
orders
in
accordance with law after affording due
opportunity of hearing to the appellant.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.09.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
Criminal Appeal No. 1472 of 2012
Gullu & Ors.
 ...Appellants
Versus
State of U.P.
...Opp. Party
Counsel for the Appellants:
Sri Sudist, Sri Janardan Singh Yadav
Counsel for the Respondents:
A.G.A.
Criminal Appeal-offence under section 498A, 304-B and 3⁄4 D.P. Act-conviction of life
imprisonment-keeping in view the object of
criminal law-appropriate adequate and
proportionate-considering gravity age of
mother-in-law-not expected to do such
thrashing of deceased-hence conviction
reduced to 7 years-but the husband bound
by his moral duty to protect his wifedeserves appropriate punishment of 12
years rigorous imprisonment.
Held: Para-30
From the facts and circumstances of the
case it is clear that the appellants had
initially no intention or premeditation for
murder/ homicide and the deceased had
been inflicted grievous injuries on her legs
only. This possibility cannot be ruled out
that in a domestic quarrel the appellants,
who are rustic villagers, had beaten the
bahu
(daughter-in-law)
of
the
house
savagely due to which such injury or shock
had been caused that resulted in the death
of the victim. Appellants had no criminal
history and they are in incarceration for
about more than five years. Their age is also
pertinent. Considering their age at the time
of their statement u/s 313 CrPC, the Bal
Chand and Smt. Ramwati Devi are senior
citizens, and their age at present is more
than 63 years and 60 years respectively. In
ordinary course they are not expected to do
such thrashing of the deceased. They may
be dealt with some leniency. But the age of
appellant Gullu is about 37-38 years at
present, and being the husband of the
deceased it was his legal and moral duty to
protect his wife, but instead he was
involved in beating his wife to the extent
that she succumbed to her injuries. He
deserves appropriate punishment without
much leniency. When we apply the settled
principle
of
law
which
has
been
enumerated in the aforementioned cases,
the sentence of life imprisonment of the
appellants under Section 304 IPC appears
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
sentences of appellants Bal Chand and Smt.
Ramwati should not exceed more than 7
years' imprisonment, but the sentence of
Gullu should be 12 years.
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.
3 All]
 Gullu & Ors. Vs. State of U.P.
1197
(Delivered by Hon'ble Pramod Kumar
Srivastava, J.)
1. This appeal has been preferred
against the conviction and punishment
dated 28.2.2012 passed in State Vs. Gullu
and others relating to Case Crime No. 689
of 2010, police station Mardah, district
Ghazipur by which three accused Gullu,
Bal Chand and Smt . Ramwati were
convicted for charge under section 302/34
IPC
and
were
punished
with
imprisonment for life and fine of Rs.
5000/- (in default of payment three
months simple imprisonment).
2. Prosecution case in brief was that
Tuliya Devi, daughter of informant
Bhullu Rajbhar (PW-1) was married to
Gullu 5 years ago. After marriage Tuliya
Devi was treated with cruelty by her
husband Gullu, father-in-law Bal Chand
and mother-in-law Ramwati for demand
of dowry. For this reason these three
accused had committed murder of Tuliya
Devi on 8.5.2010 by inflicting injuries on
her body at their house situate in village
Chaubepur,
police
station-
Mardah,
district Ghazipur and tried to dispose of
her dead body. After receiving knowledge
of this incident, victim's father Bhullu
(informant) had given a written report
(Ex-Ka-1) to the police on the basis of
which case crime no. 689 of 2010 was
registered.
3. In the aforesaid case inquest of
the dead body was performed on
08.05.2010 and
postmortem
of
the
deceased was conducted the same evening
at 9:50 pm. In the postmortem report
several lacerated wounds and other marks
of injuries were found on the dead body
of the deceased. In postmortem (Ex-Ka-1)
the doctor had opined that cause of death
was haemorrhage and shock as a result of
the said ante-mortem injuries. In this
report approximate time of death was
reported about 1 day from the time of
postmortem.
After
completion
of
investigation police had submitted chargesheet against three accused Gullu, Bal
Chand and Ramwati for offences under
section 498-A, 304-B IPC and under
section 3/4 Dowry Prohibition Act.
4. During trial all the accused were
charged for offences under section 498-A,
304 B IPC and under section 3/4 Dowry
Prohibition Act, alongwith alternative
charge framed later on for offence under
section 302 IPC. Accused had pleaded not
guilty and claimed to be tried.
5. In support of charges prosecution
side examined PW-1, Bhullu (informant),
PW-2 Barmati (mother of the deceased),
PW-3 - Constable Sunil Kumar Singh
(who prepared chik FIR and registerd
case), PW-4 - Dr. Krishna Kumar Verma
(who performed the postmortem), PW-5
Vinay Kumar Rai, Naib Tehsildar (for
inquest report) and PW-6 Chrinjeev Nath
Sinha
(Investigation
Officer).
These
witnesses had proved documents of the
prosecution marked as EX-Ka-1 to ExKa-14.
6. After closure of prosecution
evidence statement of accused were
recorded in which they denied the facts of
charge as well as evidence adduced
against
them,
without
any
specific
averments. Defence side had examined
DW-1 Madan, r/o village Chaubeypur.
7. After receiving evidence from both
the sides and after affording opportunity of
hearing as well as considering the argument
of the parties, learned Addl. Sessions Judge
1198
 INDIAN LAW REPORTS ALLAHABAD SERIES
passed judgment dated 28.2.2012 by which
all the accused were acquitted from the
charges under section 498-A, 304-B IPC and
3/4 Dowry Prohibition Act, but were
convicted for the charge under section 302IPC. Thereafter the trial court had afforded
an opportunity of hearing on the point of
quantum of sentence to the accused and
passed orders of punishment as above.
Aggrieved by this judgment dated 28.2.2012
all the three accused have preferred the
present appeal.
8. Sri Sudist and Sri Janardan Singh
Yadav appeared for appellants; and State
was represented by Mrs. Usha Kiran,
AGA.
9. A perusal of evidence adduced
during trial indicates that during postmortem following ante-mortem injuries
were found on the dead body of the
deceased Tuliya Devi that were caused or
occurred approximately at the time
mentioned in the charge, i.e., anytime in
the night of 8/9-5-2010:
1.Lacerated wound left side chin 6
cm x 1 cm mussel deep chin.
2.Lacerated
wound
from
right
shoulder to just below right elbow 35 cm
x 2 cm x bone deep.
3.Abrasion 5cm x 2 cm just laterac of
left eye.
4.Abrasion on top of right shoulder 8
cm x 4 cm.
5.Abrasion 20cm x 10 cm right side
chest.
6.brasion 8 cm x 2 cm right iliac
chest.
7.Lacerated wound 5 cm x 3 cm at
middle of front of right of leg underlying
bond was fractured.
8.Lacerated wound 6 cm x 3 cm just
below right knee.
9.Lacerated wound 8 cm x 3 cm
below front of left kneel under lying bone
was fractured.
10. PW-4 the doctor reported that
the cause of death of victim-deceased
Tuliya Devi was shock and haemmerhage
due to the above mentioned ante-mortem
injuries.
Although
the
defence
had
adduced one witness to indicate that the
cause of death of the deceased may be
accidental falling from the roof, and DW1 Madan was examined in this regard but
these facts could not be substantiated in
the light of available evidence and
circumstances.
11. A perusal of the impugned
judgment reveals that this finding of
learned Additional Sessions Judge is
correct that deceased Tuliya Devi had
died due to injuries found on her body in
the house of the accused-appellants at
about the time mentioned in the charge,
and
the
accused-appellants
were
responsible for causing such injuries to
Tuliya Devi. In these circumstances, the
trial court had rightly reached to the
conclusion
that
due
to
the
above
mentioned deliberate caused injuries
Tuliya Devi died, and accused-appellants
are
responsible
for
inflicting
those
homicidal injuries.
12. Learned Additional Sessions
Judge
had
considered
facts
and
circumstances
including
evidence
adduced and reached to the conclusion
that though there is no conclusive
evidence relating to dowry death and
demand of dowry, but injuries found on
body of the deceased were not accidental.
Trial Court found that those injuries were
homicidal, for inflicting of which accused
persons were responsible, because it were
3 All]
 Gullu & Ors. Vs. State of U.P.
1199
only they who were present in their house
when such injuries had occurred on the
body of the deceased Tuliya Devi.
13. Learned counsel appearing for the
appellants fairly admitted the contents of
facts relating to charge, namely victim Tuliya
Devi having succumbed to the injuries found
on her body in the house of appellants. He
argued that he is not challenging the findings
of fact of the impugned judgment, but is
questioning the nature of the offence and the
sections on which the accused-appellants
were charged and convicted and the quantum
of sentences awarded. According to him,
taking note of various factors including the
age of the appellants-accused, their first guilt,
the charged incident was committed without
premeditation in a sudden quarrel in the heat
of passion, the injury being on the non-vital
part of the body and the death was because of
such injuries which were not sufficient to
cause death in ordinary course, the award of
life imprisonment and fine of Rs. 5000/- in
default, to further undergo RI for three
months is excessive. He pointed out that
these points were mentioned during the
arguments and at the time of hearing on the
point of quantum of sentence, but were not
considered in the judgment of conviction and
at the time of awarding punishment because
punishment was being awarded for Section
302 IPC in which life sentence is minimum.
Learned counsel for the appellants contended
that in this case conviction should be for the
offence under section 304 IPC, and for the
aforesaid reasons punishment should not be
the maximum possible, and the said sentence
of punishment should be mitigated.
14. Learned A.G.A. appearing for
the respondent State submitted that the
Court had not erred in conviction or
award of punishment. He also contended
that the Court has always the liberty to
impose an appropriate sentence as that is
permissible in law.
15. We have given our anxious
consideration to the rival submissions and
perused the material available on record
of the court below. The appeal is being
disposed off with the consent of the
learned counsel for both sides dispensing
with the formality of availability of paper
books.
16. After the perusal of original
record and the evidence available we are
of the opinion that this finding of fact is
not erroneous that the three accused Gullu
Rajbhar, Bal Chand and Smt. Ramwati
had been involved in causing such
injuries. These injuries, due to which
Tuliya Devi was seriously injured and
later died, were of course on non-vital
part of the body of deceased, but she died
due to haemorrhage and shock of these
injuries. A minute scrutiny of the nature
of injuries show that either there were
superficial injuries of abrasions on the
body of victim or there were grievous
injuries on non-vital part of body (that is
two fractures on legs). Therefore, in such
circumstances, it has to be considered as
to whether the act causing injuries to the
deceased resulting in her death was
murder or whether it was a culpable
homicide not amounting to murder.
17. Culpable homicide is murder if
the 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. It is the
degree of probability of death which
determines whether a culpable homicide
1200
 INDIAN LAW REPORTS ALLAHABAD SERIES
is of the gravest, medium or the lowest
degree.
18. 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."
19. In the matter in hand it is proved
from the evidence that the charged act was
committed by appellants without intention
of murder, without use of any formal
weapon and without any pre-planning.
From the evidence, it appears probable that
the appellants had willfully caused injures
to the deceased and these injures were
inflicted without properly knowing as to
whether they may cause death or not.
Though two of the injuries caused by them
were grievous but there was every
possibility of the deceased's survival, as
they were fractures of leg. The grievous
injuries were on non-vital part of the body.
Other injuries were simple and superficial.
Apparently knowing these facts fully well
the appellants had inflicted blows at the
deceased. This matter therefore comes
within exception 1 of Section 300 IPC.
Therefore the appellants are found guilty of
act of culpable homicide not amounting to
murder which is punishable under section
304 IPC.
20. The maximum punishment for
the offence u/s 304 IPC is imprisonment
3 All]
 Gullu & Ors. Vs. State of U.P.
1201
for life. It has to be be considered as to
whether sentence of life imprisonment
awarded in the present case by the trial
court is appropriate. 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."
21. Only because Section 304 IPC
provides for life imprisonment as the
maximum sentence, does not mean that
the Court should mechanically proceed to
impose the maximum sentences, more
particularly
when
the
incident
had
occurred suddenly, during the heat and
passion of any domestic quarrel, without
pre-meditation or pre-planning.
22. 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."
23.
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
1202
 INDIAN LAW REPORTS ALLAHABAD SERIES
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."
24. 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."
25. One of the prime objectives of
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 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.
26. In considering the adequacy of
the sentence which should 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.
27. 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:
3 All]
 Gullu & Ors. Vs. State of U.P.
1203
(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 effort 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."
28. Now the matter is limited to
sentence for offence u/s 304 IPC, and we
have to consider about the appropriate
sentence for the appellants in this case.
For it aggravating circumstances relating
to
the
crime
while
mitigating
circumstances relating to the criminal has
to be considered.
29.

So
far
as
aggravating
circumstances relating to the crime is
concerned, from the evidence of the case
it is clear that the appellants had
deliberately been instrumental in causing
injuries on the whole body of deceased
who was a young lady, without any
satisfactory explanation, and had tried to
conceal their guilt by adducing evidence
to prove it to be a case of accident by fall
from roof.
30. From the facts and circumstances
of the case it is clear that the appellants had
initially no intention or premeditation for
murder/ homicide and the deceased had
been inflicted grievous injuries on her legs
only. This possibility cannot be ruled out
that in a domestic quarrel the appellants,
who are rustic villagers, had beaten the
bahu (daughter-in-law) of the house
savagely due to which such injury or shock
had been caused that resulted in the death
of the victim. Appellants had no criminal
history and they are in incarceration for
about more than five years. Their age is
also pertinent. Considering their age at the
time of their statement u/s 313 CrPC, the
Bal Chand and Smt. Ramwati Devi are
1204
 INDIAN LAW REPORTS ALLAHABAD SERIES
senior citizens, and their age at present is
more than 63 years and 60 years
respectively. In ordinary course they are
not expected to do such thrashing of the
deceased. They may be dealt with some
leniency. But the age of appellant Gullu is
about 37-38 years at present, and being the
husband of the deceased it was his legal
and moral duty to protect his wife, but
instead he was involved in beating his wife
to the extent that she succumbed to her
injuries.
He
deserves
appropriate
punishment without much leniency. When
we apply the settled principle of law which
has
been
enumerated
in
the
aforementioned cases, the sentence of life
imprisonment of the appellants under
Section 304 IPC appears inappropriate. In
the present case after considering the
circumstances
presented
before
the
Sessions Judge and before us during
hearing of
present case the sentences of
appellants Bal Chand and Smt. Ramwati
should not exceed more than 7 years'
imprisonment, but the sentence of Gullu
should be 12 years.
31. In view of above facts and
discussion, the order of conviction u/s 302
IPC imposed on the each appellants is
hereby modified u/s 304 IPC, and the
sentence of imprisonment for life is
modified for appellants Bal Chand and
Smt. Ramwati to rigorous imprisonment
for seven years each. The sentence of
appellant Gullu Rajbhar is modified to
rigorous imprisonment for twelve years.
With these modifications of conviction,
punishment and sentence, the appeal
stands disposed off.
32. Let the copy of this judgment be
sent to Sessions Judge, Ghazipur of
ensuring compliance.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.09.2015
BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Criminal Misc. Writ Petition No. 4357 of 2015
Vinod Valmiki
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Vikas Chandra Tiwari, Sri Sudhir
Mehrotra
Counsel for the Respondents:
A.G.A., Sri Brij Lal, Sri Vikas Chandra
Tiwari, Sri Vijay Mishra
National Security Act-Section-3(3)-Detention
on ground of taking part in illegal
activities detenue already in jail-without
recording satisfaction of being enlarged
on bail can repeat offence-such omission
vitiated the impugned-order.
Held: Para-16
In the present case the detaining authority
has merely mentioned in the ground of
detention that the bail application filed by
the petitioner before the Chief Judicial
Magistrate-Ist, Ghaziabad was rejected and
thereafter the petitioner had moved his bail
application before the Sessions Judge,
Ghaziabad and there was possibility of the
petitioner's indulging in similar activities
prejudicial to the maintenance of public
order on his being enlarged on bail. He has
not
recorded
his
satisfaction
in
the
impugned order that there was real
possibility of his being released on bail
which omission in our opinion has totally
vitiated the impugned order.
Case Law discussed:
(1975) 3 SCC 198; 1990 (27) ACC 621.
(Delivered by Hon'ble Bala Krishna
Narayana, J.)