# Lalaram v. State of U.P. 1296 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 9 ILRA 1295
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-15
- **Case number:** Criminal Appeal No. 2199 of 2019
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalaram-v-state-of-u-p-1296-indian-law-reports-allahabad-series-48985
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 307-Rituals of marriage going
on-someone shot and 4 got injured and 1 diedproved
that
act
was
committed
without
intention of murder-comes under exception I of
section 300 IPC-guilty of culpable homicide not
amounting to murder u/s 304 IPC-conviction u/s
302 IPC modified u/s 304 IPC-and sentence
modified.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,948 of 42,349. This is a partial read: ask again with offset=39948 for what follows._

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
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Manish Bajpai, Pradeep Kumar Maurya

Counsel for the Respondents:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 307-Rituals of marriage going
on-someone shot and 4 got injured and 1 diedproved
that
act
was
committed
without
intention of murder-comes under exception I of
section 300 IPC-guilty of culpable homicide not
amounting to murder u/s 304 IPC-conviction u/s
302 IPC modified u/s 304 IPC-and sentence
modified.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Kesar Singh Vs St. of Hary. : (2008) 15 SCC
753

2. Hazara Singh Vs Raj Kumar : (2013) 9 SCC
516

3. Devidas Ramachandra Tuljapurkar Vs St. of
Mah. : (2015) 6 SCC 1

4. Ramashraya Chakravarti Vs St. of M.P. :
(1976) 1 SCC 281

5. Gurmukh Singh Vs St. of Hary.: (2009) 15
SCC 635
(Delivered by Hon'ble Mrs. Renu Agarwal, J.)

(1) Present appeal under Section 374
(2) Cr.P.C. has been preferred by the
appellant, Lalaram, against the judgment
and order dated 15.5.2015 passed by
Additional Sessions Judge, Court No.-7,
Hardoi in Sessions Trial No. 586 of 2001 :
State Vs. Suresh and another arising out of
Crime No. 160 of 2001, under Sections
302, 307 I.P.C. and Section 3 (2) (v) of the
S.C./S.T. Act, Police Station Sandila,
District Hardoi; Sessions Trial No. 587 of
2001 : State Vs. Suresh, arising out of
Crime No. 162 of 2001, under Section 3/25
of the Arms Act, Police Station Sandila,
District Hardoi; and Sessions Trial No. 588
of 2001: State Vs. Lalaram, arising out of
Case Crime No. 163 of 2001 under Section
3/25 of the Arms Act, police station
Sandila, district Hardoi, whereby the
appellant, Lalaram, was convicted and
sentenced under Section 302 I.P.C. for life
imprisonment and to pay fine of Rs.
10,000/-,
failing
which
to
undergo
additional
18
months'
rigorous
imprisonment; under Section 307 I.P.C. to
undergo additional 8 years' Rigorous
Imprisonment and to pay fine of Rs. 5,000/-
, failing which to undergo 9 months'
rigorous imprisonment; and under Section
Section 3/25 of the Arms Act to undergo
one year's rigorous imprisonment and to
pay fine of Rs. 1,000/-, failing which to
undergo additional 4 months rigorous
imprisonment. All the sentences were
directed to run concurrently.

(2) The case of the prosecution, in
brief, was that on 13.5.2001, in the house
of informant, namely, Udan (PW-2), rituals
of marriage relating to his son Rajkapoor
was going on. On that night, musical
programme was also going on at the door
of Bhagwandeen Yadav of his village,
wherein Munni Lal Arakh son of Baldev
came and informed that relative of
Somnath had fallen down from the roof.
After getting this information, Sukhdeo
(P.W.1), Vinod (P.W.2), Sarvesh (P.W.5),
Munna Lal (P.W.12), Sunil (deceased, sonin-law of the deceased) and other villagers
had rushed to the spot. In the interregnum
period, someone fired at 9:30 p.m., as a
consequence of which Sukhdeo (PW-1),
Vinod (P.W.2), Sarvesh (P.W.5), Munna
(P.W.12) and Sunil (deceased, son-in-law of
the informant) got shot and were injured.
Immediately thereafter, they were brought
through Tractor trolley to the Government
9 All. Lalaram Vs. State of U.P.
1297
Hospital, from where Sukhdeo (PW-1),
Vinod (P.W.2), Sarvesh (P.W.5) and Munna
(P.W.12) were referred for further treatment
at Lucknow Hospital, however, Sunil
(deceased, son-in-law of the informant
P.W.2) died before the start of treatment in
the hospital.

Thereafter, informant Udan (P.W.2)
got
the
written
report
scribed
by
Ramkumar, who after scribing it read it
over to him. He, thereafter, put his
signature on it and then, proceeded to
Police Station Sandila, District Hardoi and
lodged it.

(3) The evidence of P.W.8-S.I. Khajan
Lal shows that on 13.05.2001, he was
posted as Head Moharrir at Police Station
Sandila. On that date, on the basis of
written report of P.W.2-Udan, a chik F.I.R.
No. 73 of 2001 (Ext. Ka. 8) vide Case
Crime No. 160 of 2001, under Sections
302, 307 I.P.C. was registered by him
against the unknown persons at police
station Sandila, District Hardoi.

(4) The investigation of the case was
conducted by P.W.15-S.I. Ashok Dixit. His
evidence shows that after registration of
Case Crime No. 160 of 2001, under
Sections 302, 307 I.P.C., at police station
Sandila, district Hardoi on 13.05.2001, he
went to the place of occurrence and
collected blood stained soil and plain soil
thereon. He also seized two empty
cartridges from the place of occurrence
under recovery memo (Ext. Ka. 23). He
also inspected the place of occurrence and
prepared the site plan (Ext. Ka. 24). He
further deposed that S.I. Abad Ali, who was
posted along with him at police station
Sandila,
had
conducted
the
''panchayatnama' of the dead body of the
deceased Sunil and also sent it for postmortem.

The evidence of P.W.15-S.I. Ashok Dixit
further shows that on 15.05.2001, when he
along with police personnel including S.I.
Shri Krishna Kashyap (P.W.9), Constable
Nawab Singh (P.W.10) went to search the
accused of Case Crime No. 16o of 2001,
under Sections 302/307 I.P.C. and under
Section 3 (2) (v) of the S.C./S.T. Act.,
witnesses Munna (P.W.12) and Shiv Balak
met them and stated that one accused Suresh
was waiting for conveyance at the road of
Gosaiganj.
Immediately
thereafter,
he
(P.W.15) along with police personnel reached
there at 09:30 p.m. and caught one person,
who, after interrogation, had stated his name
as Suresh (co-accused) and from his
possession, a countrymade pistol and a
cartridge was recovered. After that coaccused Suresh had stated that it was the
same countrymade pistol, which was used for
firing upon Sukhdev with intention to kill
him in the association of his friend Lala Ram
who was also armed with countrymade pistol.
Thereafter, accused Suresh was arrested and
countrymade pistol and catridges were seized
under recovery memo. After that on the
dictation of Shri Krishna Kashyap (P.W.9),
Constable Rama Shanker Singh (P.W.6) had
registered Case Crime No. 162 of 2001,
under Section 3/25 of the Arms Act, at Police
Station
Sandila,
District
Hardoi
on
15.05.2001 (Ext. Ka.10).

P.W.15-S.I. Ashok Dixit had also stated
that the investigation of Case Crime No. 162
of 2001, under Section 3/25 of the Arms Act
was conducted by S.I. Ram Avtar, who was
posted along with him at police station
Sandila. S.I. Ram Avtar had prepared the site
plan and filed charge-sheet in connection
with Case Crime No. 162 of 2001 before the
Court concerned.
1298 INDIAN LAW REPORTS ALLAHABAD SERIES

(5)

P.W.10-Nawab
Singh
had
supported the aforesaid statement of P.W.
15 S.I. Ashok Dixit and further deposed
that on 16.05.2001, he along with the
Investigating Officer Ashok Dixit (P.W.15)
went to search other accused (Lal Ram) and
when they reached at Sandila, on the basis
of information of an informer, Lal Ram
(appellant) was arrested and from his
possession, one countrymade pistol and one
cartridge was recovered. Thereafter, on the
dictation of S.S.I. Jairam Yadav, recovery
memo for countrymade pistol and one
cartridge were prepared under a recovery
memo (Ext. Ka.11). On the basis of the
aforesaid recovery of countrymade pistol
and one catridge from the possession of
Lala Ram (appellant), Case Crime No. 163
of 2001, under Section 3/25 of the Arms
Act, Police Station Sandila, District Hardoi
was registered on 16.05.2001.

(6) The evidence of P.W.6-Rama
Shaker Singh shows that on the basis of
recovery of one countrymade pistol and
one catridge from the possession of Suresh
(co-accused) and Lala Ram (appellant), he
had registered Case Crime No. 162 of
2001, under Section 3/25 of the Arms Act
on 15.05.2001 against co-accused Suresh
and Case Crime No. 163 of 2001, under
Section 3/25 of the Arms Act on
16.05.2001, at police station Sandila,
district Hardoi.

(7) P.W.9-S.I. Shri Krishna Kashyap
had deposed before the trial Court that on
16.5.2001, he conducted the investigation
of Case Crime No. 163 of 2001, under
Section 3/25 of the Arms Act. On
25.03.2001, after due investigation, he
prepared the charge-sheet against Lala Ram
(appellant) under Section 3/25 of the Arms
Act and forwarded it for submission before
the Court concerned.

(8) P.W.7-Vijay Narayan Singh had
deposed before the trial Court that on
15.05.2001, he was posted as Circle Officer
in Sandila. On that date, he took over the
investigation of the case from S.H.O.-
Ashok Dixit ( P.W.15). On 17.06.2001, he
submitted the charge-sheet before the Court
concerned against both the accused, Suresh
and Lala Ram.

(9) Going backwards, the injuries of
injured Sukhdev (P.W.1), Vinod (P.W.3),
Sarvesh (P.W.5) and Munna (P.W.12) were
examined on 13.05.2001, at 10:45 p.m.,
10:50 p.m., 11:00 p.m. and 11:15 p.m.,
respectively, at Community Health Centre,
Sandila, Hardoi, by Dr. Yogesh Sethi, who
found the injuries on their persons as
enumerated hereinbelow :-

"Injury of Sukhdev Prasad aged
about 32 years, son of Brij Lal (Ext. Ka.
15)

I. Lacerated wound 12 cm x 5 cm x
bone deep. Present on (Rt.) side chest. 7 cm
laterla to (Rt.) nipple at 9 O'clock position.
No blackening & tattooing present.

Injury of Vinod aged about 18
years, son of Shri Laloo (Ext. Ka. 16)

I. Multiple fire arm wound in an area
of 17 cm x 5 cm present on (Rt.) side neck
and cerebral region. Wound margin 1 cm x
0.5 cm to 0.5 cm x 0.5 cm. No blackening
and tattoing present.

II. Multiple fire arm wounds in an area
of 31 cm x 20 cm present on both side
upper back and neck. Wound size margin
from 4 cm x 0.5 cm to 0.5 x 0.5 cm in
number of 25. No blackening and tattooing
present.

Injuries of Sarvesh aged about 18
years, son of Shri Shiv Mangal (Ext. Ka.
17)
9 All. Lalaram Vs. State of U.P.
1299

I. Multiple fire arm wound in an area
of 20 cm x 12 cm present on (lt.) side chest
2 cm below (Lt.) nipple. Wound size
margin from 0.5 cm x 0.5 cm to 1.5 cm x
0.5 cm x stain deep. No blackening and
tattooing present.

II. Multiple fire arm wound in an area
of 10 cm x 6 cm present on (Lt.) arm 7 cm
above Lt. elbow joint. Wound size margin
from 0.5 cm x 0.5 cm to 1 cm x 1 cm x skin
deep. No blackening and tattooing present.

Injuries of Munna Lal, aged about 35
years son

of Shri Brij Lal (Ext. Ka. 18)

I. A fire arm wound 0.5 cm x 0.5 cm x
M.S. deep present on Rt. side shoulder 5
cm below tip of Rt. shoulder. No
blackening and tattoing present.

(10) The injuries report of the
aforesaid injured shows that Dr. Yogesh
Sethi (not examined) had advised for x-ray
and further opined that all the injuries were
kept under observation. It was also opined
that injuries could be caused by some fire
arm; duration of the injuries were fresh;
and further advised x-ray for confirmation
of pellet.

(11) The evidence of P.W.13-Vivek
Kumar shows that in the year 2006, he was
posted as Chief Pharmacist, at Community
Health Centre, Sandila, District Hardoi. At
that time, Dr. Yogesh Sethi was posted as
Medical Surgeon in Community Health
Centre, Sandila, District Hardoi. He proved
injury report Ext. Ka. 15 to Ext. Ka. 18
prepared by Dr. Yogesh Sethi.

(12) The injuries of injured Mahadev
(P.W.4) were conducted on 14.05.2001 at
12:35 p.m. at Community Health Centre,
Sandila, District Hardoi by Dr. Krishna
Kumar Singh (P.W.14), who found the
following injuries on his person as
enumerated hereinbelow :-

"Injuries
of
injured
Mahadev
(P.W.4) aged about 35 years son of
Vishnu

I. Gun shot wound 0.2 x 0.2 cm in size
3 cm above anterior axillary found on
chest. No blackening and scorching.

II. Gun shot wound 0.2 x 0.2 cm in
size on lateral aspect of anterior axillary
found.

As per the opinion of Dr. Krishna
Kumar Singh (P.W.14), the injuries were
simple in nature and it would be kept under
observation; injuries were caused by fire
arm; and duration was about 1⁄2 day old.

(13) P.W.14-Dr. Krishna Kumar Singh
has reiterated the aforesaid injuries caused
to the injured Mahadev (P.W.4) and
deposed that he conducted the medical
examination of Mahadev (P.W.4) on
14.05.2001. On 14.05.2001 itself, he had
issued the certified copy of the injury
reports of injured Sukhdev, Munna Lal,
Vinod and Sarvesh (Ext. Ka. 15 to Ext. Ka.
18) prepared by Dr. Yogesh Sethi.

In cross-examination, P.W.14 deposed
that injuries caused to injured Mahadev
(P.W.4)
could
be
attributable
by
a
countrymade pistol and could be attributable
from a distance of one meter or 4-5 meters.

(14) The post-mortem of the deadbody of the deceased Sunil Kumar was
conducted on 14.05.2001 at 04:00 p.m., at
Primary Health Centre, Sandila, Hardoi by
P.W.11-Dr. K.P. Singh, who found the antemortem
injuries
on
his
person
as
enumerated hereinbelow :-
1300 INDIAN LAW REPORTS ALLAHABAD SERIES

"Ante-mortem injuries of Sunil
Kumar, son of Murli, aged about 30
years

Multiple fire arm wound of entry in an
area of 42 cm x 30 cm in front of chest,
both upper arm and both shoulder 15 cm
above umbilicus.

As per the opinion of Dr. K. P. Singh
(P.W.11), the deceased died on account of
shock and haemorrhage as a result of antemortem injuires.

(15) It is significant to mention that
Dr. K. P. Singh (P.W.11), in his deposition
before the trial Court, had reiterated the
aforesaid cause of death of the deceased
Sunil Kumar and had further deposed that
on external examination of the deadbody of
the deceased, he found that his physique
was average; rigor mortis was present on
both upper and lower extremities; his eyes
and mouth were closed; heir of his scalp
was black; and abdomen was distended
with gases. On internal examination, he
found that both the lungs were congested
and punctured; pellets were recovered from
lungs; liver was lacerated; pellets were
recovered from liver.

In cross-examination, P.W.11 had
deposed that injuries on the dead bodies of
the deceased could be attributable from a
distance of more than three feet and it
could be caused by a fire arm.

(16) The case was committed to the
Court of Session in the usual manner,
where the appellant, Lala Ram and coaccused Lala Ram were charged for
offences punishable under Sections 302,
307 I.P.C., Section 3 (2) (v) of the S.C./S.T.
Act and Section 3/25 of the Arms Act. They
pleaded not guilty to the charges and
claimed to be tried. Their defence was that
of denial.

(17) During trial, the prosecution, in
order to prove its case, had examined
fifteen
witnesses
viz.
P.W.1-Sukhdev,
P.W.2- Udan, P.W.3-Vinod Kumar Dhobi,
P.W.4-Mahadev,
P.W.5-Sarvesh
Kumar,
P.W.6-Constable Rama Shanker Singh,
P.W.7-Vijay Narayan Singh, P.W.8-S.I.
Khajan Lal, P.W.9-S.I. Sri Krishn Kashyap,
P.W.10-Constable Nawab Singh, P.W.11Dr. K.P. Singh, P.W.12-Munna Lal, P.W.13Vivek Kumar, P.W.14-Dr. Krishna Kumar
Singh and P.W.15-S.I. Ashok Dixit.

(18)

From
the
side
of
defense/appellant, no witness has been
produced.

(19) The statement of appellant, Lala
Ram, was recorded under Section 313
Cr.P.C., denying the allegations made in the
F.I.R. He stated that he was falsely
implicated in the case due to enmity. He
was
plying
rickshaw
in
Lucknow,
wherefrom the police had brought him to
home on 15.05.2001; after that false
recovery of country-made pistol was made
in police station; he was falsely implicated
him. He had also stated that on the pressure
of Pradhan, the police had lodged the false
case against him. He was not named in the
F.I.R.

(20) The learned trial Court believed
the evidence adduced by the prosecution
and convicted and sentenced the appellant,
Lala Ram and co-accused Suresh vide
judgment and order dated 15.05.2015 in the
manner stated in paragraph-1 hereinabove.

(21) Feeling aggrieved by his
conviction and sentence under Sections
302, 307 and 3/25 of the Arms Act vide
9 All. Lalaram Vs. State of U.P.
1301
judgment and order dated 15.05.2015, the
appellant-Lalaram has preferred the instant
criminal appeal.

(22) Heard Shri Manish Bajpai,
learned Counsel for the convict/appellant
and Ms. Smriti Sahay, learned Additional
Government Advocate for the State and
perused the material brought on record.

(23) Learned Counsel for the
convict/appellant has argued that :-

I. On the basis of written report
submitted by the informant P.W.2-Udan,
Case Crime No. 160 of 2001, under Section
302, 307 I.P.C. was lodged against
unknown persons. The appellant Lala Ram
and co-accused Suresh were not named in
the F.I.R.

II. P.W.3-Vinod Kumar and P.W.4Mahadev, who were the injured witnesses,
had not supported the prosecution case and
they have been declared hostile by the trial
Court.

III. P.W.5-Sarvesh Kumar, who was
also the injured witness, had also not
supported the prosecution case as he had
stated in his deposition that someone had
fired, as a consequence of which, he,
Sukhdev, Vinod and Sunil got shot. P.W.5
had not named anyone in his deposition as
to who had fired upon him, four injured
persons and deceased Sunil but the learned
trial Court had erred in disbelieving the
statement of P.W.5 by recording the reasons
that on account of fear, P.W.5 had deposed
false evidence before the trial Court.

IV. The deceased and five alleged
injured persons had received injuries in a
celebratory firing that took place in the
musical programme. None had seen the
appellant Lalaram to open fire at that time
as P.W.2-Udan, who is the informant in this
case, had not named the appellant and coaccused Suresh in causing fire arm injuries
to the deceased Sunil and five accused
persons, in his written report. However, just
to conceal the incident of celebratory firing
and settled the score of political rivalry, the
incident of celebratory firing was given the
colour of alleged incident.

V. Lastly, it has been pointed out that
against
the
impugned
order
dated
15.05.2015, co-accused Suresh had earlier
preferred Criminal Appeal No. 767 of 2015
: Suresh Vs. State of U.P. A Co-ordinate
bench of this Court, vide judgment and
order dated 30.06.2016, while allowing the
appeal partly, set-aside the conviction and
sentence of co-accused Suresh for the
offence under Section 3 (2) (v) of the
S.C./S.T. Act; modified his conviction
under Section 302 I.P.C. to Section 304
I.P.C.; modified the sentence of life
imprisonment
to
the
period
of
imprisonment for 14 years; confirmed the
conviction under Section 307 I.P.C. but his
sentence thereunder was modified to 7
years; and confirmed the conviction and
sentence for the offence under Section 3/25
of the Arms Act. He argued that the role of
the appellant Lalaram is identical to that of
co-accused Suresh, hence the benefit of the
judgment and order dated 30.06.2016
(supra) passed by a Co-ordinate Bench of
this Court may also be granted to the
present appellant.

VI. Appellant-Lalram has already
undergone imprisonment as under-trial
after conviction of about 15 years in jail,
hence in view of judgment and order dated
30.06.2016 (supra), the instant appeal also
be allowed partly.

(24) Learned Additional Government
Advocate, on the other hand, does not
dispute the fact that the judgment and order
dated 30.06.2016 passed by a Co-ordinate
Bench of this Court has been challenged
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
before the higher Court and the role of the
appellant Lalaram is identical to that of coaccused Suresh whose Criminal Appeal No.
767 of 2015 was allowed partly by a Coordinate Bench of this Court vide judgment
and order dated 30.06.2016.

(25)

We
have
examined
the
submissions advanced by the learned
Counsel for the parties and gone through
the
depositions
of
the
prosecution
witnesses; the material exhibits tendered
and proved by the prosecution; the
statements of the appellants recorded under
Section 313 Cr.P.C.; the judgment and
order dated 30.06.2016 passed by a Coordinate Bench of this Court in Criminal
Appeal No. 767 of 2015 : Suresh Vs. State
of U.P.; and the impugned judgment.

(26) It would become manifest that
the trial Court has based the conviction of
the appellant Lalaram and co-accused
Suresh on the ocular account furnished by
injured Sukhdev (P.W.1), the informant
P.W.2-Udan, injured Munna Lal (P.W.12)
and that of recoveries of weapon of assault
effected from the possession of the
appellant Lalaram and co-accused Suresh.

(27) The injured P.W.3-Vinod and
P.W.4 were turned hostile. The another
injured P.W.5-Sarvesh Kumar had deposed
that someone had fired. It transpires from
the evidence of P.W.5 that P.W.5 had not
supported the case of the prosecution.

(28) On considering the depositions
of the prosecution witnesses as well as
material on record, a Co-ordinate Bench of
this Court in Criminal Appeal No. 767 of
2015, decided on 30.06.2016 found that
from the evidence, it has been established
that some rituals were going on the account
of marriage of son of informant P.W.2Udan and several persons including the
appellant Lalaram and co-accused Suresh
were firing in air to express happiness in
marriage, but suddenly information spread
about the falling of a person from roof. On
this information people started rushing
towards
the
spot
of
that
accident.
Therefore, their shots had strayed towards
the crowd that included deceased Sunil
Kumar and other injured persons including
PW-3 Vinod Kumar and PW-4 Mahadeo
and
PW-5
Sarvesh
Kumar.
Convict/appellant had no enmity or any
motive against any of the injured or the
deceased. Before receiving the information
of falling of a person from roof, there was
no accident or injury to any person, but
immediately after spreading of this news
accidental fires had caused injuries to these
persons. These facts were proved from oral
evidences of injured and other witnesses. It
was also admitted that those injuries were
caused by firing during celebratory Firing.
Thus, it is proved that at the time of
incident there was no motive to cause
injury. It is a case of serious negligence on
part of appellant.

(29) After recording the aforesaid
findings, a Co-ordinate Bench of this Court
in Criminal Appeal No. 767 of 2015 (supra)
came to the conclusion that the appellant
Suresh is found guilty for the act of
culpable homicide not amounting to
murder, which is punishable under Section
304 I.P.C. and accordingly, vide order dated
30.06.2016, partly allowed the appeal. The
operative
part
of
the
order
dated
30.06.2016 reads as under :-

"In view of the facts and discussion,
the order of conviction for offence u/s 3 (2)
(v) of S.C./S.T. Act is set-aside. The
conviction u/s 302 I.P.C. imposed on the
appellant is hereby modified u/s 304 I.P.C.,
9 All. Lalaram Vs. State of U.P.
1303
and the sentence of imprisonment for life is
modified to period of imprisonment for 14
years. The conviction u/s 307 IPC imposed
on the appellant is hereby confirmed but
the sentence of imprisonment for life is
modified to 7 years. The conviction and
sentence u/s 3/25 Arms Act imposed on the
appellant
is
confirmed.
With
the
modification of conviction, punishment and
sentence, the appeal is partially allowed.
Sentences shall run concurrently."

(30) During course of arguments,
learned Additional Government Advocate
for the State has not disputed the facts that
the role of the appellant Lalaram is
identical to that of co-accused Suresh,
whose conviction and sentences vide
judgment and order dated 30.06.2016
(supra) passed by a Co-ordinate Bench of
this Court has been modified.

(31) Par contra, learned Counsel for
the appellant, during the course of
arguments, has not challenged the facts that
on the date of the incident, appellant
Lalaram had fired shot on the body of the
deceased and also on the body of several
persons, rather he admitted the fact that
those injuries were caused by firing during
celebratory firing. It is established that at
the time of the incident, there was no
motive to cause injury, hence it appears to
be a case of a serious negligence on the part
of the appellant Lalaram.

(32) At this juncture, it would apt to
mention that a culpable homicide is a
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 such injury intended to be
inflicted is sufficient in the ordinary course
of nature to cause death. All murder is
culpable homicide but not vice versa. This
is the degree of probability of death which
determines whether a culpable homicide is
of the gravest, medium or the lowest
degree.

(33) 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
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

(34) In the instant case, it is proved
from the evidence that the charged act was
committed
by
the
appellant
without
intention of murder. From the evidences, it
appears probable that the appellant had
negligently caused injuries to every person
who was found near range of fire without
properly knowing as to whether it may
cause death or serious injury. This matter
comes within Exception 1 of Section 300
IPC. Therefore, the appellant is found
guilty of act of culpable homicide not
amounting to murder which is punishable
under section 304 IPC.

(35) Now, only one question remains
and that is the quantum of sentence to be
awarded to the appellant-Lalaram for the
offence under Section 304 I.P.C.

(36) In Hazara Singh v. Raj Kumar
: (2013) 9 SCC 516, the Apex Court 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."

(37) It is pertinent to mention that
only because Section 304 IPC provides the
life
imprisonment
as
the
maximum
sentence, does not mean that Court should
mechanically
proceed
to
impose
the
9 All. Lalaram Vs. State of U.P.
1305
maximum sentences, more particularly
when the incident had occurred suddenly,
and accidently due to negligence.

(38) In Devidas Ramachandra
Tuljapurkar v. State of Maharashtra :
(2015) 6 SCC 1, the Apex Court had held :

"While we see no reason to differ with
the concurrent findings recorded by the
trial court and the High Court, we do see
some substance in the argument raised on
behalf of the appellants that keeping in
view
the
prosecution
evidence,
the
attendant circumstances, the age of the
accused and the fact that they have already
been in jail for a considerable period, the
Court may take lenient view as far as the
quantum of sentence is concerned. The
offences having been proved against the
accused and keeping in view the attendant
circumstances, we are of the considered
view that ends of justice would be met, if
the punishment awarded to the appellants is
reduced."

(39) In Ramashraya Chakravarti v.
State of M.P. : (1976) 1 SCC 281, the
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."

(40) One of the prime objectives of
the criminal law is imposition of an
appropriate,
adequate,
just
and
proportionate
sentence
commensurate
with the nature and gravity of the crime
and the manner in which the crime is
done. For sentencing an accused on proof
of crime the courts have evolved certain
principles; the twin objective of the
sentencing policy is deterrence and
correction. It lies within the discretion of
the court to choose a particular sentence
within the available range from minimum
to maximum. What sentence would meet
the 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.

(41) In considering the adequacy of
the sentence which neither be too severe
nor too lenient the court has, therefore, to
keep in mind the motive and magnitude of
the offence, the circumstances in which it
was committed and the age and character
(including his antecedents) and situation in
life of the offender.
1306 INDIAN LAW REPORTS ALLAHABAD SERIES

(42) In Gurmukh Singh v. State of
Haryana : (2009) 15 SCC 635, the Apex
Court had discussed points to be taken into
account
before
passing
appropriate
sentence as under :

"23. These are some factors which are
required to be taken into consideration
before awarding appropriate sentence to the
accused. These factors are only illustrative
in character and not exhaustive. Each case
has to be seen from its special perspective.
The relevant factors are as under:

(a) Motive or previous enmity;

(b) Whether the incident had taken
place on the spur of the moment;

(c) The intention/knowledge of the
accused while inflicting the blow or injury;

(d)
Whether
the
death
ensued
instantaneously or the victim died after
several days;

(e) The gravity, dimension and nature
of injury;

(f) The age and general health
condition of the accused;

(g) Whether the injury was caused
without premeditation in a sudden fight;

(h) The nature and size of weapon
used for inflicting the injury and the force
with which the blow was inflicted;

(i) The criminal background and
adverse history of the accused;

(j) Whether the injury inflicted was
not sufficient in the ordinary course of
nature to cause death but the death was
because of shock;

(k) Number of other criminal cases
pending against the accused;

(l) Incident occurred within the family
members or close relations;

(m) The conduct and behaviour of the
accused after the incident. Whether the
accused had taken the injured/the deceased
to the hospital immediately to ensure that
he/she gets proper medical treatment?

These are some of the factors which
can be taken into consideration while
granting an appropriate sentence to the
accused.

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."

(43) Now matter is limited to sentence
for offence under Section 304 IPC, and we
have to consider about the appropriate
deserts for the appellant in this case. For it
aggravating circumstances relating to the
crime
while
mitigating
circumstances
relating to the criminal has to be
considered. At the time of commission of
charged incident age of appellant was about
35 years. He had knowledge of the fact that
he had no licence to use the fire arm
actually used by him. It is a thing of
common knowledge that celebratory firing
is not proper, especially in a crowded area.
From facts and circumstances of the case it
is clear that the appellant initially had no
intention for murder/ homicide or causing
any injury. Appellant has no criminal
history and is in incarceration for about 14
years.
Apart
from
these
mitigating
circumstances, it is noteworthy that charged
incident was due to negligence. Appellant
had committed the charged act deliberately.

(44) Sri Manish Bajpai, learned
counsel for the appellant has submitted that
9 All. Mahesh Rathaur Vs. State of U.P.
1307
the appellant was tried alongwith coaccused,
Suresh,
who
has
preferred
Criminal Appeal No. 767 of 2015 before
this court. The appellant and co-accused,
Suresh were convicted under section 302
I.P.C. for life imprisonment and for other
offences etc. and the Criminal Appeal No.
767 of 2015 preferred by co-accused,
Suresh has been partially allowed by a Coordinate Bench of this court vide judgment
and order dated 30-06-2016 and the
conviction awarded under section 302
I.P.C.