# Harish Kumar & Ors v. State of U.P

- **Citation:** (2022) 8 ILRA 28
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-11
- **Case number:** Criminal Appeal No. 6158 of 2008
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harish-kumar-ors-v-state-of-u-p-48761
- **Pages:** 6

## Headnote

Criminal Law- Indian Penal Code, 1860-
Sections 498-A & 304-B- Indian Evidence
Act, 1872- Section 32- Dying DeclarationWhile going through the evidence of the
witnesses, it cannot be said that Section
498A read with Section 304B of I.P.C is not
made out qua the accused no. 1- Harish
Kumar. This takes us to the evidence against
the mother-in-law- Kashtoori Devi, while
going through the oral testimony of P.W.-1,
P.W.-2 and P.W.-3 we do not find any
reason to believe that she was a party to the
incident, her presence has not been proved.
There is no overt act of mother-in-law even
in the oral dying declaration. There are 40%
burns. The investigation of the investigating
authority qua the mother-in-law appears to
be faulty. We, therefore, cannot uphold the
conviction of the mother-in-law-Kashtoori
Devi. We give benefit of doubt to the mother
in law namely Kashtoori Devi.
8 All. Harish Kumar & Ors. Vs. State of U.P.
29
As the mother-in- law of the deceased has not
been assigned any overt act in the dying
declaration and neither is there any evidence
against her in the testimony of the prosecution
witnesses, hence her conviction set aside.

Indian Penal Code, 1860- Sections 498-A
& 304-B - Quantum of Punishment- As
the accused has been in jail for more
than 13 years i.e sufficient for him,
hence he may set free if not required in
any other offence. As far as Section
498A of I.P.C is concerned he has
already undergone the punishment and
if the fine is not paid the default
sentence would also have been over by
now
which
would
began
after the
incarceration awarded by the trial court
as over began from that date. As far as
Section 304B of I.P.C. is concerned we
punish him for 12 years and the default
sentence is maintained. If the accused
has served out his sentence he be
released if not wanted in other offence.

Settled law that the criminal jurisprudence of
our Country is reformative and not retributive,
hence punishment should not be unduly harsh
but proportionate to the gravity of the offence
and
other
relevant
factors.
Accordingly,
sentence reduced to 12 years. (Para 9, 12,
13)

Criminal Appeal partly allowed. (E-3)

Case Law/Judgements relied upon:-

## Text

28 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

22. Perusal of record goes to show
that there is no doubt that deceased had
committed suicide. Antemortem injury in
post-mortem report show that there was
only ligature mark around the neck above
the thyroid cartilage obliquely. It was sized
about 24 cm X 1 cm. Dr. S.K. Saxena,
P.W.-4 has also opined that in the opinion
of panel of doctors cause of death was
hanging. It is also pertinent to note that
there were no injury marks on the body of
the deceased, hence, undoubtedly it is a
case of hanging and we are of the
considered opinion that learned trial court
has awarded very harsh and severe
punishment, which is life imprisonment.

23. Keeping overall facts and
circumstances of this case, in our opinion,
ends of justice would be met if the sentence
is reduced to the period of 10 years under
Section 304-B I.P.C. Sentence under
Section 498-A I.P.C. and Section 4 of
Dowry Prohibition Act has already been
served. Fine imposed under Section 498-A
I.P.C. and Section 4 of Dowry Prohibition
Act is maintained and sentence in default of
fine is also maintained.

24. Accordingly, the appeal is partly
allowed, as modified above.

25. Record be sent to trial court
immediately.
----------
(2022) 8 ILRA 28
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 6158 of 2008

Harish Kumar & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Raj Singh, Sri Devendra Swaroop, Sri
R.D. Dauholia, Sri Siddharth Singh, Sri
Vijendra Singh, Sri Sunil Kumar Upadhaya

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Penal Code, 1860-
Sections 498-A & 304-B- Indian Evidence
Act, 1872- Section 32- Dying DeclarationWhile going through the evidence of the
witnesses, it cannot be said that Section
498A read with Section 304B of I.P.C is not
made out qua the accused no. 1- Harish
Kumar. This takes us to the evidence against
the mother-in-law- Kashtoori Devi, while
going through the oral testimony of P.W.-1,
P.W.-2 and P.W.-3 we do not find any
reason to believe that she was a party to the
incident, her presence has not been proved.
There is no overt act of mother-in-law even
in the oral dying declaration. There are 40%
burns. The investigation of the investigating
authority qua the mother-in-law appears to
be faulty. We, therefore, cannot uphold the
conviction of the mother-in-law-Kashtoori
Devi. We give benefit of doubt to the mother
in law namely Kashtoori Devi.
8 All. Harish Kumar & Ors. Vs. State of U.P.
29
As the mother-in- law of the deceased has not
been assigned any overt act in the dying
declaration and neither is there any evidence
against her in the testimony of the prosecution
witnesses, hence her conviction set aside.

Indian Penal Code, 1860- Sections 498-A
& 304-B - Quantum of Punishment- As
the accused has been in jail for more
than 13 years i.e sufficient for him,
hence he may set free if not required in
any other offence. As far as Section
498A of I.P.C is concerned he has
already undergone the punishment and
if the fine is not paid the default
sentence would also have been over by
now
which
would
began
after the
incarceration awarded by the trial court
as over began from that date. As far as
Section 304B of I.P.C. is concerned we
punish him for 12 years and the default
sentence is maintained. If the accused
has served out his sentence he be
released if not wanted in other offence.

Settled law that the criminal jurisprudence of
our Country is reformative and not retributive,
hence punishment should not be unduly harsh
but proportionate to the gravity of the offence
and
other
relevant
factors.
Accordingly,
sentence reduced to 12 years. (Para 9, 12,
13)

Criminal Appeal partly allowed. (E-3)

Case Law/Judgements relied upon:-

1. Ganesh Babu @ Ganesh Vs St. of Kar. (2020
Lawsuit (Kar) 658 (cited)

2. Kashmira Devi Vs St. of U.K. & ors. AIR 2020
SC 652 (cited)

3. Mirza Iqbal @ Golu & anr. Vs St. of U.P & anr.
2021 0 Supreme (SC) 795

4. Criminal Appeal No. 2878 of 2013

5. St. of M.P. Vs Jogendra, (2022) 5 SCC 401
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. This appeal challenges the
judgment and order dated 28.08.2008
passed by Additional Sessions Judge, Court
No.10, Aligarh in Sessions Trial No. 597 of
2006 convicting accused-appellants under
Section 304-B of Indian Penal Code, 1860
(hereinafter referred to as 'IPC') and
sentenced him to undergo imprisonment for
life and under Section 498-A of I.P.C threethree years rigorous imprisonment with fine
of Rs.5,000/- and in default of payment of
fine, further to undergo imprisonment for
six months to all the appellants.

2. Factual scenario as culled out from
the record and the judgment of the Court
below is that the accused-appellant Harish
Kumar is the husband of the deceased who
died after seven days suffering out of
septicemia. He is in jail since 2006 namely
since the date incident occurred. The other
co-accused
namely
the
father-in-lawNaurangi Lal of the deceased breathed his
last therefore qua him the appeal is abated,
the third accused is minor and a juvenile,
hence she was tried by Juvenile Board and
as per the submission of the counsel for the
appellant she has been acquitted, the
mother-in-law- Kashtoori Devi who was in
jail for two and a half year and thereafter
she has been released on bail by this Court.
The genesis of the incident occurred when
the brother of the deceased was informed
that his sister who had been sent to the
matrimonial home on 05.12.2005, her body
is seen to have been ablazed. Thereafter,
she was shifted to the hospital with burn
injuries, there was superficial to deep burn
injuries and the injuries were 40%
superficial to deep burn injuries, she was
admitted in the hospital immediately on the
date of the incident and after a period of
about 7 days i.e on 13.12.2005 at about
6:50 p.m, she breathed her last. It is under
these circumstances that the prosecution
30 INDIAN LAW REPORTS ALLAHABAD SERIES
was moved into motion. The investigation
culminated into charge-sheet being laid
against all the four accused.

3. The offence being triable by the
court of Sessions. The learned Magisterial
Trial Court committed the accused to the
Sessions Court. The learned Sessions
Judge, summoned the accused from jail
those who are not on bail and after
completing all the formalities the accusedappellants were charged on 28.08.2006 and
an alternative charge on 16.01.2007 for
commission of offence under Sections 323,
498A, 504 and 304-B I.P.C.

4. On being read over the charges, the
accused pleaded not guilty and wanted to
be tried, hence, the trial started and the
prosecution examined 9 witnesses who are
as follows:

1
Deepu @ Deepak Kumar
PW1
2
Smt. Kamla Devi
PW2
3
Head Moharir-59 Ram Chandra
Rathore
PW3
4
Dr. N.K.Tandon
PW4
5
Dr. Hansraj Singh
PW5
6
S.I. Raghuraj Singh Harij
PW6
7
Anand Kumar
PW7
8
S.I. Chiraunji Lal
PW8
9
Ratnesh Chaturvedi
PW9

And said witnesses tried to prove
the documentary evidence produced by the
prosecution. On prosecution the evidence
been laid end after closing process
Kashtoori, Naurangi Lal and Pinky are the
accused whose statement were recorded
under Section 313 Cr.P.C. The statement of
Section 313 Cr.P.C is one of denial.

5. In support of ocular version
following documents were filed:
1
F.I.R.
Ex.Ka.
2
Written Report
Ex.Ka.
3
Injury Report
Ex.Ka.
4
Postmortem Report
Ex.Ka.
5
Panchayatnama
Ex.Ka.
6
Site Plan with Index
Ex.Ka.

6. At the end of the trial and after
recording the statement of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence, the learned Trial Court convicted
the three accused for commission for
offence under Section 304-B of I.P.C for
life imprisonment and under Section 498-A
of I.P.C three-three years imprisonment
with Rs. 5000/- as fine. The State nor the
private respondent preferred any appeal.

7. Heard Sri Sunil Kumar Upadhaya,
learned counsel for the appellant, Sri
Patanjali Mishra, learned A.G.A for the
State and perused the record.

8. As far as father-in-law of the
deceased is concerned as we have narrated
herein above, the case has abated that takes
us to the evidence against the mother-inlaw. Even if we go the by the oral dying
declaration which is submitted by the
learned counsel for the State that the
deceased orally confined to her brother
which is borne out from the F.I.R that her
husband Harish Kumar has set her ablaze.
This dying declaration has been heavily
relied by the Counsel for the State and has
further submitted the name of all the
accused which have been given by the
deceased in dying declaration to the
brother.

9. While going through the evidence
of the witnesses, it cannot be said that
Section 498A read with Section 304B of
8 All. Harish Kumar & Ors. Vs. State of U.P.
31
I.P.C is not made out qua the accused no. 1-
Harish Kumar. This takes us to the
evidence
against
the
mother-in-law-
Kashtoori Devi, while going through the
oral testimony of P.W.-1, P.W.-2 and P.W.-3
we do not find any reason to believe that
she was a party to the incident, her
presence has not been proved. There is no
overt act of mother-in-law even in the oral
dying declaration. There are 40% burns.
The investigation of the investigating
authority qua the mother-in-law appears to
be faulty. We, therefore, cannot uphold the
conviction of the mother-in-law-Kashtoori
Devi. We give benefit of doubt to the
mother in law namely Kashtoori Devi.

10. This takes us to the question of
applicability of Section 304B of I.P.C to the
facts of this case. The learned counsel for
the appellant has relied on the following
decisions so as to contend that punishment
of life
imprisonment pronounced by
learned trial Judge is bad:-

i. Ganesh Babu @ Ganesh Vs.
State of Karnataka (2020 Lawsuit (Kar)
658;

ii. Kashmira Devi Vs. State of
Uttraakhand and Ors. (AIR 2020 SC
652);

iii. Mirza Iqbal @ Golu and
Another Vs. State of Uttar Pradesh and
Another [2021 0 Supreme(SC) 795]

11. It would be relevant for us to refer
a recent judgment of this High Court in
Criminal Appeal No. 2878 of 2013 :-

14.
While
coming
to
the
conclusion
that
the
accused
is
the
perpetrator
of
the
offence,
whether
sentence of life imprisonment and fine is
adequate or the sentence requires to be
modified in the facts and circumstances of
this case and in the light of certain judicial
pronouncements and precedents applicable
in such matters. This Court would refer to
the following precedents, namely, 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 ante-social behaviour has to be
countered not by undue cruelty but by
reculturization. Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

15.
'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
32 INDIAN LAW REPORTS ALLAHABAD SERIES
sentence cannot be exercised arbitrarily or
whimsically.

16. In Ravada Sasikala vs. State
of A.P. AIR 2017 SC 1166, the Supreme
Court referred the judgments in Jameel vs
State of UP [(2010) 12 SCC 532], Guru
Basavraj vs State of Karnatak, [(2012) 8
SCC 734], Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323], State of Punjab
vs Bawa Singh, [(2015) 3 SCC 441], and
Raj Bala vs State of Haryana, [(2016) 1
SCC 463] and has reiterated that, in
operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a
balance between reform and punishment.
The protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under serious threats of crime and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

17. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

12. The facts that even the judgment
of Mirza Iqbal (Supra) which is the recent
judgment. As the accused has been in jail
for more than 13 years i.e sufficient for
him, hence he may set free if not required
in any other offence. As far as Section
498A of I.P.C is concerned he has already
undergone the punishment and if the fine is
not paid the default sentence would also
have been over by now which would began
after the incarceration awarded by the trial
court as over began from that date. As far
as Section 304B of I.P.C. is concerned we
punish him for 12 years and the default
sentence is maintained. If the accused has
served out his sentence he be released if not
wanted in other offence.

13. By going through the evidence on
record it is very clear that the act of the
appellant Harish Kumar was not such
which cannot be substituted by giving a
lessor sentence than life imprisonment. The
8 All. Baru Vs. State of U.P.
33
period of 13 years which he spent is
enough punishment in the facts of this case.
The minor contradictions will have to be
ignored and they cannot for the dent in the
prosecution of the husband. Medical
evidence is quite clear and corroborates the
facts and circumstances. Punishment would
be 12 years incarceration, the fine and
default sentence are also maintained.

14. Recent judgment of State of M.P
Vs. Jogendra, (2022) 5 SCC 401.
Paragraph-20 of the said judgment can be
followed, however, instead of seven years
period undergone would be more than
relevant the facts and circumstances of this
case.

15. Accordingly, the appeal is partly
allowed with the modification of the
sentence
as
above.
Record
and
proceedings be sent back to the Court
below forthwith.

16. A copy of this order be sent to the
jail authorities for following this order and
doing the needful.

17. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2022) 8 ILRA 33
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 7552 of 2008

Baru ...Appellant
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Sri Rajiv Kumar Saini, Sri Amit Kumar
Chaudhary, Sri Brijendra Singh Khokher, Sri
Chandra
Shekhar
Mishra,
Sri
G.S.
Chaturvedi, Sri Harish Chandra Singh, Sri
Noor Mohammad, Sri Onkar Singh, Sri
Rajesh Ji Verma, Sri Vinod Tripathi

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1872-
Section 106 - Burden of Proof - The
impugned judgment of the Court below of
Section 106 of Indian Evidence Act, 1872,
which cannot be made applicable in the
facts and circumstances of this case. The
burden cannot be shifted on the accused
to prove his innocence. This is a case of
direct evidence that PW1 and PW2 are
eye-witness and they saw the occurrence.
Hence, this is not the fact which was in
special
knowledge
of
accused
Baru.
Hence, Section 106 of Indian Evidence Act
has no applicability in this case.

Settled law that the prosecution can shift the
burden on the accused only where the facts are
especially within the knowledge of the accused
in a case, which rests on circumstantial
evidence, but Section 106 of the Evidence Act
cannot be made applicable in a case of direct
ocular evidence.

Indian Evidence Act, 1872 - Section 3 - If
the
trial
court
has
disbelieved
the
recovery of iron rods on the pointing out
of the accused persons, it has also broken
the chain of circumstances because the
prosecution based its case on the fact that
the three accused persons inflicted blows
to the deceased by iron rods.

Where the court proceeds on the premise that
the case rests on circumstantial evidence and
the recovery of the weapon is disbelieved then
the chain of the circumstances stands broken.

Indian Evidence Act, 1872- Section 3 -
Learned trial court has committed gross
error and illegality by convicting the Baru