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

- **Citation:** (2022) 9 ILRA 1288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-07
- **Case number:** Jail Appeal No. 33 of 2020
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hakimuddin-v-state-of-u-p-opp-party-49055
- **Pages:** 8

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section
304-Appellant
not
mentally
fitundergoing
treatment-fight
between
the
deceased and the Appellant-he hit her and the
deceased
fell
down-died-life
sentence
is
excessive-offence on part of accused is not of
murder-culpable homicide not amounting to
murder-he assaulted in a heated St.-not in a fit
mental
St.-hit
by
spade-common
in
all
agricultural households-no premeditation or
intent-Life sentence substituted to sentence
already undergone.

Appeal allowed in part. (E-9)

List of Cases cited:

## Text

1288 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 41 of 2021, under Sections 307, 436,
325, I.P.C. and Section 7 of the Criminal
Law Amendment Act, Police Station Feel
Khana, District Kanpur Nagar, on his
furnishing a personal bond and two reliable
sureties each of the like amount to the
satisfaction of the court concerned subject
to following conditions:-

(i) The applicant will not tamper with
the evidence during the trial.

(ii) The applicant will not influence
any witness.

(iii) The applicant will appear before
the trial court on the dates fixed, unless
personal presence is exempted.

(iv) The applicant shall not directly or
indirectly make inducement, threat or
promise to any person acquainted with the
facts of the case so as to dissuade him
from disclosing such facts to the Court to
any police officer or tamper with the
evidence.

38. In case of breach of any of the
above condition, the prosecution shall be at
liberty to move an application bail before
this Court seeking cancellation of bail.
----------
(2022) 9 ILRA 1288
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 33 of 2020

Hakimuddin ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
From Jail, Sri Vishesh Kumar (A.C.), Sri Ashish
Kumar Gupta

Counsel for the Respondents:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Section
304-Appellant
not
mentally
fitundergoing
treatment-fight
between
the
deceased and the Appellant-he hit her and the
deceased
fell
down-died-life
sentence
is
excessive-offence on part of accused is not of
murder-culpable homicide not amounting to
murder-he assaulted in a heated St.-not in a fit
mental
St.-hit
by
spade-common
in
all
agricultural households-no premeditation or
intent-Life sentence substituted to sentence
already undergone.

Appeal allowed in part. (E-9)

List of Cases cited:

1. Madhavan & ors. Vs St. of T. N., reported in
(2017) 15 SCC 582

2. Gurmukh Singh Vs St. of Har. , reported in
(2019) 15 SCC 635
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This jail appeal arises out of
judgment and order dated 26.2.2011,
passed
by
Additional
Sessions
Judge/Special
Judge,
Chandauli,
in
Sessions Trial No.84 of 2007 (State Vs.
Hakimuddin), arising out of Case Crime
No.221
of
2006,
Police
Station
Mughalsarai, District Chandauli, convicting
and sentencing the appellant under Section
304 IPC with life imprisonment and fine of
Rs.10,000/- and in the event of default of
payment of fine to undergo further
additional rigorous imprisonment of two
years.

2. Shorn of unnecessary details, the
brief facts of the present case are that a
9 All. Hakimuddin Vs. State of U.P.
1289
written report of first informant Jamaluddin
(father-in-law of the deceased) was scribed
by Anil Kumar Srivastava, as per which the
marriage
of
son
of
first
informant
Hakimuddin
(accused
appellant)
was
solemnized about 08 years back with
Yasmeen Bano, daughter of Mustaq Ahmed
(deceased). Out of said wedlock two
children were born. Son of the informant
however was not in fit mental state and his
treatment was being arranged by the first
informant and the in-laws of the accused
appellant. In the night of 22/23rd July, 2006
at 3.30 am there was a fight between son of
the first informant and his daughter-in-law
and abuses were heard whereafter the first
informant rushed to intervene. All of a
sudden, the son of the first informant hit his
wife and from the injury so caused she fell.
The accused appellant left. First informant
called the neighbours and was in the
process of arranging medical treatment by
when his daughter-in-law died. On the
basis of such information given, a first
information report was registered at 8.30
am at Police Station Mughalsarai, District
Chandauli on 23.7.2006. The place of
incident is stated to be the marital house of
the deceased.

3. On the basis of aforesaid
information
the
Investigating
Officer
alongwith police party came to the place of
occurrence and a panchayatnama was
prepared at 9.40 am. Kamlesh Kanaujia
PW-3, Mustaq Ahmed PW-4, Mohd.
Naseem, Buddhu and Mahmood Alam were
appointed the inquest witnesses. They
found the deceased to be average built lady
of 28 years and in their opinion her death
was homicidal on account of injury caused
to her by the accused appellant in a heated
state on her head and that postmortem of
the dead body be got conducted. The
Investigating Officer agreed with the
conclusion of the inquest witnesses and
accordingly the dead body was sealed and
was sent for postmortem.

4. The postmortem report is on
record, as per which cause of death is
Coma as a result of following head and
brain injuries:-

"(1) An incised wound 9.00 cm x 0.5
cm x skin and muscle deep on left side of
in front of neck, 8.00 cm above sternal
notch and touching to midline.

(2) Abraded contusion 6.00 cm x 1.00
cm on right side in front of neck, 8.00 cm
above sternal notch touching to midline.

(3) An incised chaped wound 9.00 cm
x 0.5 cm x skull deep on left side of head,
6.00 cm above the left ear and 6.00 cm
above left eye brow.

(4) On opening the skull:-

(a) A contusion 12.00 cm x 4.00 cm on
head, 10.00 cm above the root of nose.

(b) Contusion 11.00 cm x 4.00 cm on
left side head in parietal region, 8.00 cm
above and behind the left ear."

5. The investigation revealed that
head injury was caused to deceased by a
Spade and the weapon of assault was also
recovered on 12.8.2006 from the backyard
of the accused's house, in respect of which
a recovery memo (Ext. Ka-2) was prepared.
The
Spade
was
sent
for
chemical
examination and the report of Chemical
Examiner dated 23.7.2006 is also exhibited
in which the blood found on the Spade was
of the same group as that of the deceased.
The investigation proceeded in the matter
and after recording statement of witnesses
under Section 161 Cr.P.C. the Investigating
Officer filed a chargesheet against accused
appellant on 8.11.2006. The concerned
Magistrate
took
cognizance
of
the
chargesheet and as offence was triable by
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
the court of Sessions committed the matter
to the competent Court.

6. The court of Sessions framed
solitary
charge
against
the
accused
appellant under Section 304 IPC after
noticing that the accused is not in fit mental
state and in a heated state had assaulted the
deceased and thereby has committed
culpable homicide not amounting to
murder, which is punishable under Section
304 IPC. The charge was read out to the
accused, who denied it and demanded trial.

7. The prosecution in order to
establish the charge has produced the first
informant Jamaluddin (PW-1); Alauddin
(PW-2) a witness to the recovery of weapon
of assault; PW-3 Kamlesh Kanaujia, village
pradhan and witness of inquest; PW-4
Mushtaq Ahmed, father of the deceased and
witness of the inquest; PW-5 Ravi Kumar,
witness to the recovery of weapon of
assault; PW-6 Asgari Begum, mother of the
deceased. The defence since had admitted
the genuineness of police papers during the
course of trial, as such none was adduced
by the prosecution to establish such
documents.

8. PW-1 Jamaluddin is aged 70 years,
who had solemnized the marriage of
deceased with his son (accused appellant)
about 10 years back. He has stated that
mental condition of his son was unstable
for the last 3-4 years. PW-1 deposed that he
was sleeping outside his house in Mandai
and that the appellant had left the house 1015 days prior to the incident. In his crossexamination he has stated that his eyesight
is weak and that the villagers obtained his
signatures on the blank paper for writing
the written report and that he had not seen
the appellant assaulting the deceased. He
has reiterated that appellant was not present
at the place of occurrence when the
incident itself occurred. It is also stated that
he had not gone to police station to lodge
the report and cannot recognize his
signatures on the written report. He further
stated that the room in which dead body
was found was locked from inside and it
was opened with the help of others. He has
further denied having given statement to
the police of having seen any injury on the
body of the deceased.

9. PW-2 is the witness of recovery of
weapon of assault, who has turned hostile
during the course of trial. Similarly PW-3,
who is a witness of inquest has also turned
hostile. PW-4 is the father of the deceased,
who has deposed that his daughter got
married to accused appellant and two
children namely Azam aged 05 years and
Ativa aged two years were born and that he
received the information of the incident on
Phone. He has further specifically stated
that PW-1 informed him that it was the
appellant who killed the deceased.

10. In the cross-examination PW-4
admitted that accused appellant was not in
fit mental state and was undergoing
medical treatment during the last six
months. He has further stated that medical
treatment was being provided to him by
him and also by PW-1. He has specifically
denied that the appellant was not in house
from 8-10 days prior to the incident. He has
also denied the suggestion that anyone else
had committed the offence.

11. PW-5 is the witness of recovery of
weapon of assault, who has denied the
recovery of Spade and has stated that his
signatures were obtained on blank papers.

12. PW-6 is the mother of the
deceased, who has stated that PW-1
9 All. Hakimuddin Vs. State of U.P.
1291
informed her about the incident. She further
deposed that PW-1 informed her that
accused
appellant
ran
away
after
committing the crime and that two minor
children of the deceased are with her. In her
cross-examination she has clearly stated
that PW-1 informed her that it was the
accused appellant who assaulted the
deceased with Farsa and that there had been
a quarrel between the appellant and the
deceased before the incident.

13. The accused in his statement
under Section 313 Cr.P.C. has denied the
accusations made against him and has
stated that he was falsely implicated.

14. The trial court on the basis of above
evidence lead by the prosecution came to
the conclusion that the deceased died an
unnatural death on account of injuries
caused to her on her head by the accused
appellant. The trial court has elaborately
considered the statement of witnesses
adduced during the course of trial and has
returned a finding that PW-1 had made a
false disclosure in order to save his son.
15. The trial court has relied upon the
statements of PW-4 and PW-6 as also the
materials placed on record during the trial
to come to a conclusion that PW-1 was not
a reliable witness and having made a
correct disclosure earlier to police and to
PW-4 and PW-6 but later retracted in order
to save his son. Other witnesses also had
turned hostile and did not support the
prosecution case as they wanted to save the
accused appellant.

16. Although an attempt on behalf of
accused appellant is made to contend that
the charge of culpable homicide not
amounting to murder is not made out
against the accused appellant, but having
elaborately examined the statement of
witnesses and the materials brought on
record we find ourselves in absolute
agreement with the conclusion drawn by
the trial court that the fatal injury to the
deceased was caused by the accused
appellant and that the offence of culpable
homicide not amounting to murder is
established against him.

17. We may only add an additional
reason for agreeing with the conclusion
arrived at by the trial court. It is undisputed
that the deceased was in her marital house
and her dead body was found within the
house. Apart from two minor children it is
the accused appellant and PW-1, who were
living in the house. Onus, therefore, was
upon PW-1 and accused appellant to
explain as to how the fatal injury was
caused to the deceased. There is no
satisfactory explanation put forth by PW-1
or the accused appellant about the manner
in which the fatal blow was caused to the
deceased. Presumption under Section 106
of the Indian Evidence Act would have to
be drawn against the accused appellant and
PW-1, since they have not been able to
explain as to how the fatal blow was caused
to the deceased. PW-4 and PW-6 have
otherwise clearly deposed that they were
informed by PW-1 that the appellant had
assaulted the deceased after a fight between
them, which caused the death of their
daughter.

18. Upon a careful evaluation of the
evidence placed on record we, therefore,
endorse the view of the trial court that fatal
injury was caused to the deceased by the
accused appellant, who assaulted her with
Spade. We may also notice that the Spade
has been recovered and the report of
Chemical Examiner shows that the blood
found on Spade matches the blood group of
the deceased which is a material evidence
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
supporting the conclusion of guilt of the
accused appellant.

19. In light of the above discussions
we reject the contention advanced on
behalf of the accused appellant that charge
of culpable homicide not amounting to
murder is not proved against the accused
appellant. We, accordingly, hold that
prosecution has succeeded in establishing
the charge of culpable homicide not
amounting to murder against the accused
appellant, beyond reasonable doubt, on the
basis
of
evidence
adduced
by
the
prosecution.

20. The other ground which is
strongly pressed by Sri Vishesh Kumar,
who was earlier appointed Amicus Curiae
to argue on behalf of accused appellant and
Sri Ashish Kumar Gupta, Advocate, who
has later been engaged as private counsel
for the accused appellant is with regard to
quantum of sentence. It is urged by learned
counsels for the accused appellant that the
material on record clearly proves that
accused appellant was not in a fit mental
state and was undergoing treatment for his
disturbed mental condition. Statements of
PW-1, PW-4 and PW-6 have been relied
upon in order to submit that it is admitted
even to the prosecution witnesses that
accused appellant was not in a fit mental
state and was receiving medical attention. It
is submitted that although no evidence in
the form of medical reports etc. exists on
record but that would not be material since
the charge framed against the accused
appellant itself acknowledges that he was
not in fit medical condition.

21. In order to consider the above
submission it would be appropriate to
reproduce the charge read out to the
accused appellant by the court of
Sessions:-

"प्रथम- यह गि गिनांि 23.07.2006 िो
समय 3.30 बजे रार् ग्राम बहािुर महि् थाना
मुिलसराय गजला चन्दौली में वािी मुििमा िे
लड़िे आप अभियुक्त हकीमुद्दीन भिसकी
मानभसक स्थिभि ठीक नहीीं है ने अपनी पत्नी
िो आवेश में आिर अपनी पत्नी यासमीन पर
हमला िर चोट पहुंचाया, गजसिे इलाज िी
र्ैयारी िरर्े समय ही उसिी मृत्यु हो ियी।
इस प्रिार आपने हत्या िी िोगट में न आने
वाला आपरागधि मानव वध गिया और उसिे
द्वारा आपने ऐसा अपराध गिया जो भारर्ीय
िंण्ड संगहर्ा िी धारा 304 िे अधीन िण्डनीय
है और इस न्यायालय िे प्रसंज्ञान में है।

एजद्द्वारा मैं गनिेगशर् िरर्ा हाँ गि
आपिा गवचारर् उपरोक्त आरोप पर इस
न्यायालय द्वारा गिया जायेिा।"

22. On behalf of the appellant it is
submitted that trial court has not been
just in imposing punishment of life
sentence upon the accused appellant since
the act of causing fatal injury was not on
account
of
any
premeditation
or
deliberate intent rather it was caused in a
heated state at the spur of the moment. It
is urged that it is common to find Spade
in
any
agricultural
household.
Submission
is
that
considering
the
admitted disturbed mental condition of
accused appellant the punishment ought
to have been lesser and the award of life
sentence is excessive.

23. Learned AGA, on the other hand,
submits that the charge of culpable
homicide not amounting to murder since is
established against the accused appellant,
therefore, the punishment of life inflicted
upon the accused appellant is fully
justified.
9 All. Hakimuddin Vs. State of U.P.
1293

24.

We
have
considered
the
submission with regard to adequacy of
punishment to be imposed upon the
accused appellant in the facts of the present
case. It would be worthwhile to notice the
observation of the Supreme Court in the
case of Madhavan and others Vs. State of
Tamilnadu, reported in (2017) 15 SCC 582,
where the principle to be applied for
awarding sentence has been summarized in
Para 11 to 13 of the judgment which are
reproduced hereinafter:-

"11. Notably, the High Court has not
considered the issue of quantum of
sentence at all, but mechanically proceeded
to affirm the sentence awarded by the Trial
Court. From the factual position, which has
emerged from the record, it is noticed that
there was a pre-existing property dispute
between the two families. The incident in
question happened all of a sudden without
any premeditation after PW1 questioned
the appellants about their behavior. It was a
free fight between the two family members.
Both sides suffered injuries during the
altercation.

The fatal injury caused to Periyasamy
was by the use of thadi (wooden log) which
was easily available on the spot. The
appellants, on their own, immediately
reported the matter to the local police
alleging that the complainant party was the
aggressor. No antecedent or involvement in
any other criminal case has been reported
against the appellants. Taking oral view of
the matter, therefore, we find force in the
argument of the appellants that the quantum
of sentence is excessive.

12. We may usefully refer to the
decision of this Court (one of us, Justice
Dipak Misra speaking for the Court) in the
case of Gopal Singh Versus State of
Uttarakhand1 enunciated the necessity to
adhere to the principle of proportionality in
sentencing policy. In paragraphs 18 and 19
of the said decision, the Court observed
thus:

"18. Just punishment is the collective
cry of the society.

While the collective cry has to be kept
uppermost in the mind, simultaneously the
principle of proportionality between the
crime and punishment cannot be totally
brushed aside. The principle of just
punishment is the bedrock of sentencing in
respect of a criminal offence. A punishment
should not be disproportionately excessive.

The concept of proportionality allows
a significant discretion to the Judge but the
same has to be guided by certain principles.
In certain cases, the nature of culpability,
the antecedents of the accused, the factum
of age, the potentiality of the convict to
become a criminal in future, capability of
his reformation and to lead an acceptable
life in the prevalent milieu, the effect -
propensity to become a social threat or
nuisance, and sometimes lapse of time in
the commission of the crime and his
conduct in the interregnum bearing in mind
the nature of the offence, the relationship
between the parties and attractability of the
doctrine of bringing the convict to the
value-based social mainstream may be the
guiding factors. Needless to emphasize,
these are certain illustrative aspects put
forth in a condensed manner. We may
hasten to add that there can neither be a
strait-jacket 1 (2013) 7 SCC 545 formula
nor a solvable theory in mathematical
exactitude.

It would be dependent on the facts of
the case and rationalized judicial discretion.
Neither the personal perception of a Judge
nor self-adhered moralistic vision nor
hypothetical
apprehensions
should
be
allowed to have any play. For every
offence, a drastic measure cannot be
thought of. Similarly, an offender cannot be
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
allowed to be treated with leniency solely
on the ground of discretion vested in a
Court. The real requisite is to weigh the
circumstances in which the crime has been
committed and other concomitant factors
which we have indicated hereinbefore and
also have been stated in a number of
pronouncements by this Court. On such
touchstone, the sentences are to be
imposed. The discretion should not be in
the realm of fancy. It should be embedded
in
the
conceptual
essence
of
just
punishment.

19. A Court, while imposing sentence,
has to keep in view the various complex
matters
in
mind.
To
structure
a
methodology relating to sentencing is
difficult to conceive of. The legislature in
its wisdom has conferred discretion on the
Judge who is guided by certain rational
parameters, regard been had to the factual
scenario of the case. In certain spheres the
legislature has not conferred that discretion
and in such circumstances, the discretion is
conditional. In respect of certain offences,
sentence can be reduced by giving adequate
special reasons. The special reasons have to
rest on real special circumstances. Hence,
the duty of Court in such situations
becomes a complex one. The same has to
be performed with due reverence for Rule
of the collective conscience on one hand
and
the
doctrine
of
proportionality,
principle
of
reformation
and
other
concomitant factors on the other. The task
may be onerous but the same has to be
done with total empirical rationality sans
any kind of personal philosophy or
individual experience or any a-priori
notion."

13. Considering the above and keeping
in mind the facts of the present case, the
nature of the crime, subsequent conduct of
the appellants, the nature of weapon used
and all other attending circumstances and
the relevant facts including that no
subsequent untoward incident has been
reported against the appellants and the
mitigating circumstances, we are inclined
to modify the sentence period in the
following terms:-

a) The sentence period awarded to
appellant nos. 2 and 4 for offences
punishable under Sections 147 and 334
respectively of IPC will stand reduced to
period
already
undergone
without
disturbing the fine amount specified by the
Trial Court and affirmed by the High Court.

b) The sentence period awarded to
appellant nos. 1, 3 and 5 for offences
punishable under Sections 304 part (2) r/w
149 and 304 part (2) of IPC respectively
will stand reduced to five years each
without disturbing the fine amount awarded
by the Trial Court and affirmed by the High
Court."

25. Reliance is also placed upon
judgment of the Supreme Court in the case
of Gurmukh Singh Vs. State of Haryana,
reported in (2019) 15 SCC 635, in which
the Supreme Court has observed as under
in para 24 to 26:-

"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.

25. When we apply the settled
principle
of
law
which
has
been
enumerated in the aforementioned cases,
9 All. Lalaram Vs. State of U.P.
1295
the conviction of the appellant under
section 302 I.P.C. cannot be sustained. In
our considered view, the accused appellant
ought to have been convicted under section
304 Part II I.P.C. instead of under section
302 I.P.C.

26.
We
accordingly
convert
the
conviction and sentence of the appellant
Gurmukh Singh from section 302 IPC to one
under section 304 Part II IPC and sentence
him to suffer rigorous imprisonment for
seven years. The fine as imposed by the trial
court and as upheld by the High Court is
maintained. The appellant would be entitled
to get benefit of section 428 of the Code of
Criminal Procedure."

26. In light of the legal position settled
on the issue we have examined the argument
with regard to appropriateness of sentence to
be imposed upon him on the basis of
evidence brought on record. We find
substance in the argument advanced on
behalf of the appellant that life sentence is
excessive, inasmuch as the prosecution's
admitted case is that the offence on part of
accused appellant is not of murder but is
culpable homicide not amounting to murder.
The evidence on record also shows that it was
in a heated state that the accused appellant
assaulted the deceased after a fight in the
dead of night. It transpires that the accused
appellant inflicted fatal blow by spade which
turned fatal. It is to be borne in mind that the
accused appellant admittedly was not in a fit
mental state and even prosecution witnesses
have deposed that he was undergoing
treatment for the last six months or more.
There is nothing on record to show that any
prior complaint was ever made against
accused appellant of cruelty or causing of
physical injury to his wife.

27. Our attention has also been invited
by Sri Vishesh Kumar, learned Amicus
Curiae to the custody certificate, as per which
the accused appellant has remained in jail for
17 years, 11 months and 01 day as on
13.7.2022 and his behaviour inside the jail
has been good. It is otherwise a matter of
common knowledge that Spade is used for
agricultural activity and is ordinarily found in
all
agricultural
households
and
no
premeditation or intent can be inferred on
part of the accused appellant for murdering
his wife only on account of weapon of
assault. When the facts in its entirety are
examined in light of the settled legal position
we find that the life sentence imposed upon
the accused appellant, in the facts of the case,
is excessive.

28. We, accordingly, allow this appeal
and substitute the life sentence awarded to the
accused appellant by the sentence already
undergone by him. Unless the accused
appellant is wanted in any other case he shall
be released on compliance of Section 437-A
Cr.P.C. This Jail Appeal is thus allowed in
part.

29. Since learned Amicus Curiae has
also assisted the Court alongwith private
counsel, subsequently engaged by the
appellant in the matter, we quantify his fee at
Rs.10,000/- to be paid to him by the High
Court Legal Services Authority.
----------
(2022) 9 ILRA 1295
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.09.2022

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 2199 of 2019

Lalaram ...Appellant
Versus
State of U.P. ...Respondent