# Hakim & Ors v. The State of U.P

- **Citation:** (2023) 4 ILRA 1122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-17
- **Case number:** Criminal Appeal No. 235 of 1991
- **Bench:** Dr. Kaushal Jayendra Thaker, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hakim-ors-v-the-state-of-u-p-49803
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 302/34 - Punishment for murder
- The Code of Criminal Procedure, 1973 -
Section 313 - Appeal against conviction -
As per FIR - On 30.09.1987 at about 8 pm,
children of complainant and appellant had
a quarrel - After this appellant with his
two sons reached to the house of
complainant, where they were told by
complainant and his father to keep their
children under control - Appellant and his
sons threatened - Accused started beating
complainant and his father with Lathi and
Ballam - Appellant was armed with spear,
other accused were armed with Lathi -
Complainant's father got a blow of spear -
Case was registered against all the
accused persons
- Charge-sheet was
submitted - Held, the incident occurred on
the spur of moment - There was only one
single injury which was caused by one of
accused - It cannot be said that accused
had
any
premeditated
intention
of
murdering the deceased, they had gone to
residence of deceased only to complain
about quarrel - Thus, Section 34 IPC can't
be said to be proved - In post mortem
report, deceased had injuries on abdomen,
and died after being operated, therefore,
it was not a premeditated act - They were
physically fighting - The weapons used
were not deadly weapons - The act of
accused will be falling within purview of
Section-304(II) IPC - Hence, sentence
undergone
by
appellant
would
be
sufficient as the incident is of the year
1988 and appeal is of the year 1991. (Para
2, 3, 11, 14, 20 )

Appeal is partly allowed. (E-13)

List of Cases cited:

## Text

1122 INDIAN LAW REPORTS ALLAHABAD SERIES
meet the standard prescribed for exercising
powers under section 319 Cr.P.C. There is
no perversity or illegality in the the finding
recorded by the learned trial court. There is
no ground to interfere in the impugned
order.

9. The revision lacks merit and is
hereby dismissed.
----------
(2023) 4 ILRA 1122
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.03.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Appeal No. 235 of 1991

Hakim & Ors. ...Appellants
Versus
The State of U.P. ...Respondent

Counsel for the Appellants:
Sri Mohd. Arshad Khan, Sri Amar Jeet Upadhyay,
Sri Ambreen Masroor, Sri Mohammad Arshad
Khan, Sri Sukhbir Singh(A.C.)

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 302/34 - Punishment for murder
- The Code of Criminal Procedure, 1973 -
Section 313 - Appeal against conviction -
As per FIR - On 30.09.1987 at about 8 pm,
children of complainant and appellant had
a quarrel - After this appellant with his
two sons reached to the house of
complainant, where they were told by
complainant and his father to keep their
children under control - Appellant and his
sons threatened - Accused started beating
complainant and his father with Lathi and
Ballam - Appellant was armed with spear,
other accused were armed with Lathi -
Complainant's father got a blow of spear -
Case was registered against all the
accused persons
- Charge-sheet was
submitted - Held, the incident occurred on
the spur of moment - There was only one
single injury which was caused by one of
accused - It cannot be said that accused
had
any
premeditated
intention
of
murdering the deceased, they had gone to
residence of deceased only to complain
about quarrel - Thus, Section 34 IPC can't
be said to be proved - In post mortem
report, deceased had injuries on abdomen,
and died after being operated, therefore,
it was not a premeditated act - They were
physically fighting - The weapons used
were not deadly weapons - The act of
accused will be falling within purview of
Section-304(II) IPC - Hence, sentence
undergone
by
appellant
would
be
sufficient as the incident is of the year
1988 and appeal is of the year 1991. (Para
2, 3, 11, 14, 20 )

Appeal is partly allowed. (E-13)

List of Cases cited:

1. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926

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

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

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

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

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

7. St. of Punjab Vs Bawa Singh, (2015) 3 SCC
441

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

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Arun Kumar
Singh Deshwal, J.)
4 All. Hakim & Ors. Vs. The State of U.P.
1123

1. Heard learned amicus curiae, Sri
Sukhbir Singh, for the sole surviving
accused-Aziz.

2. This appeal challenges the
judgment and order dated 14.02.1991
passed by Ist Additional Sessions Judge
Meerut, in Sessions Trial No. 488 of 1988
whereby the learned Additional Sessions
Judge has convicted accused-appellant
under Section 302 read with Section 34 of
Indian Penal Code, 1860 (hereinafter
referred to as 'IPC') and sentenced him to
undergo imprisonment for life and for
offence under Section-323 IPC, rigorous
imprisonment for one year. Both the
sentences were directed to run concurrently.

3. The brief facts of the prosecution
story are that on 30.09.1987 at about 8 pm,
children of complainant Meharban and
accused Munna had a quarrel. After some
time Munna and his two sons Hakeem and
Aziz reached to the house of the
complainant and they were told by
complainant and his father Alla Mehar to
keep their children under control. Upon
this, Munna and his sons threatened
consequences of children's quarrel. All the
accused with intention to commit murder
started beating complainant and his father
Alla Mehar with Lathi and Ballam.
Hakeem was armed with spear while other
accused were armed with Lathi. Alla Mehar
got a blow of spear. He was taken to Police
Station. It was also alleged that occurrence
was seen by Iqbal and Mohd. Haneef. A
written report was lodged at Police StationSardhana. Case was registered against all
the accused persons. The investigation
culminated into lodging of charge-sheet
was submitted against the 3 accused. The
case was committed to the court of
Sessions.

4. On being summoned, the accusedappellant pleaded not guilty and wanted to
be tried. The trial started and the
prosecution examined 9 witnesses who are
as follows:

1
Iqbal
PW1
2
Meharban
PW2
3
Sirajuddin
PW3
4
Dr.
Sharad
Chand Nigam
PW4
5
Dr. Fariduddin PW5
6
Dr.
M.L.
Agarwal
PW6
7
Yadram
PW7
8
Vijay Singh
PW8
9
Surendra
Pal
Singh
PW9

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

1
F.I.R
 Ex.Ka.6
2
Written
Report
Ex.Ka.1
3
Application
Ex.Ka.2
4
Injury Report Ex.Ka.3
and
Ex.Ka.5
5
P.M. Report
Ex. Ka.4
6
Panchayatna
ma
Ex.Ka.11
7
Charge Sheet
Mool
Ex.Ka.18
8
Site
Plan
With Index
Ex.Ka.17
1124 INDIAN LAW REPORTS ALLAHABAD SERIES

6. At the end of the trial, after
recording the statements of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the accused-appellant, Aziz &
others as mentioned above.

7. This is an appeal of the year 1991.
Out of the three accused, two have passed
away i.e. Hakim and Munna. The main
assailant who was armed with spear has
also passed away. The appeal is taken up
for hearing after we granted bail to accused
Aziz. This Court directed to release the
accused-Aziz on the said date. It is reported
that he is still not released despite the
orders of this Court.

8. It is submitted by learned counsel
for the appellant that the learned Judge has
held that Section 34 IPC is made out. It is
submitted that, even from the FIR, it cannot
be said that the accused, three in number,
had any intention or rather common
intention to do away with the deceased. The
accused did not have what is known as any
deadly weapon. It cannot be said that
Section 34 IPC is made out.

9. It is further submitted that the
participation of the accused with a common
intention is not proved. It cannot be said
that there was a pre-medidated plan and
were acting in pursuance of the said plan.
All that happened was due to quarrel
between children of two family members of
the incident which occurred at the spur of
the moment. There was no existing prior
intentions.

10. Per contra, Sri Patanjali Mishra,
learned AGA for the State, submits that this
was a pre-planned attack by going to the
house of the deceased, and therefore, the
finding of fact may not be interfered by this
Court.

11. While going through the evidence,
it is clear that the act occurred on the spur
of the moment. The FIR is dated
30.09.1987 which also goes to show that
the incident occurred on the spur of the
moment. While going through the record, it
is very clear that there was only one single
injury which was caused by one of the
accused. It cannot be said that accused had
any premeditated intention or object of
murdering the deceased as they had gone to
the residence of the deceased only to
complain about the quarrel which had taken
place between children. The incident
occurred on the spur of the moment, hence,
Section 34 IPC cant be said to be proved.
The conviction with aid of Section 34 IPC
cannot be concurred by this Court.

12. It would be relevant to refer to
Section 299 IPC, which reads 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."

13. 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 Sections 299 and 300 of
4 All. Hakim & Ors. Vs. The State of U.P.
1125
IPC. 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
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.

14. The evidence also goes to show
that firstly the accused were charged with
commission of offence under Sections-307
& 323 IPC. The offence, if any, committed
by the accused-Aziz, would fall within
Sections-304(II) & 326 IPC. The death of
the deceased as held above was not a
premeditated death and that the act of the
accused would fall within Section-304(II)
IPC for the following reasons:

The injuries as seen in the post
mortem report goes to show that the
deceased had injuries on abdomen. He died
after few days of the injuries being caused.
The factum data, the evidence led and fact
that the deceased died after being operated,
therefore, it is held that it was not a
premeditated act. There were quarrel
between each other and they were trying to
save each other. They were physically
fighting. All the weapons used were also
not deadly weapons. In the circumstances,
the act of the accused will be falling within
the purview of Section-304(II) IPC, the
conviction under Section-323 IPC and the
default
sentence
has
already
been
undergone, we do not dealt into the same.
The court itself has not awarded any default
sentence.

15. This takes this Court to the
quantum of sentence. In this regard, we
have to analyse the theory of punishment
prevailing in India.

16. In Mohd. Giasuddin Vs. State of
AP, AIR 1977 SC 1926, explaining
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.
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

17. '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.

18. In Ravada Sasikala vs. State of A.P.
AIR 2017 SC 1166, the Supreme Court
referred to 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.

19. 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
4 All. Jai Prakash Tripathi Vs. State of U.P. & Ors.
1127
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.

20. 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.

21. In view of the above, sentence
undergone by accused-appellant, Aziz,
would be sufficient as the incident is of the
year 1988 and appeal is of the year 1991.
The accused-appellant, Aziz, in fact be set
free forthwith if he is not wanted in any
other case.

22. In view of the above, the appeal is
partly allowed. Judgment and order dated
14.02.1991
passed
by
the
learned
Additional Sessions Judge, Meerut shall
stand modified to the aforesaid extent.
Record be sent back to the Court below
forthwith.

23. A sum of Rs.15,000/- be paid to
Sri Sukhbir Singh, learned amicus curiae
appearing in this matter for Aziz by the
High Court Legal Services Committee.
----------
(2023) 4 ILRA 1127
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.03.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ-A No. 890 of 2022

Jai Prakash Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhagwan Dutt Pandey

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar, Sri K.R. Singh

Service
Law
-
U.P.
Development
Authorities
Non-Centralized
Services
retirement of Rules, 2011 - Rule 2(h), (i) -
Constitution of India, 1950 - Article 14 -
Pension - Petitioner was appointed as
work charge employee on 07.12.1987 - He
continued to serve on Class III Post as
Clerk - Treated as regular employee,
regularized by order dated 24.12.2010, he
retired
on
30.09.2016
-
Respondent
authority
has
refused
to
grant
him
pension, other benefits on retirement -
Held, Rules of 2011 are parallel to Rules of
St. Government, read down by Supreme
Court, being held in violation of Article 14,
as they create an artificial categorization
of similarly situated employees - In the
present case, an artificial classification is
created as admitted, as the work charge
employees perform the same duties as the
regular employees, throughout treated as
regular employee - They were regularized
in continuation of their work charge
services - Hence, direction to Respondent
authority to ensure regular payment of
pensionary, other benefits to petitioner,
treating
their
entire
service
to
be
performed
as
regular
employee
of
Development Authority within a period of
three months, back pension shall be paid
for the last three years only. (Para 2, 3, 8,
10)