# Manish Kori v. State of U.P

- **Citation:** (2022) 10 ILRA 216
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Criminal Appeal No. 2164 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manish-kori-v-state-of-u-p-47706
- **Pages:** 7

## Headnote

Law-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860-Sections
302/34Challenge
to-Conviction-Murder-No
premeditation-incident occurred at the
10 All. Manish Kori Vs. State of U.P.
217
spur of moment-accused though had
knowledge and intention that his act
would cause bodily harm but did not want
to do away with the deceased-Hence, the
instant case falls under the Exception 1
and 4 to Section 300 of IPC-Therefore, by
adopting
reformative
theory
of
punishment, the accused are convicted for
the offence punishable u/s 304 Part I of
IPC.(Para 1 to 30)

B. The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human body 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. While
determining the quantum of sentence, the
court should bear in mind the 'Principle of
Proportionality'.(Para 29)

The appeal is partly allowed. (E-6)
List of Cases cited:

## Text

216 INDIAN LAW REPORTS ALLAHABAD SERIES
reason for the same is that the deceased did
not die an insistence death; had it been a
premeditated murder, the injuries on the
body would have caused her immediate
death.

49. One more glaring fact is that from
the record of the medical papers it is
evident that the deceased survived for four
days. She was admitted in Medical College,
Gorakhpur and thereafter she developed
fissure and later on during treatment, she
breathed her last due to septicemia. Though
we concur with learned Trial Judge that the
death was homicidal death we are unable to
accept the submission of Sri Vikas
Goswami, learned A.G.A.

50. The judgment of the Apex Court
in State of Uttar Pradesh Vs. Subhash @
Pappu ( supra) and Khokan @ Khokhan
Vishwas Vs. State of Chhattisgarh ( supra)
will ensure for the benefit for the accusedappellant as the death occurred after four
days
of
the
occurrence,
was
not
premeditated.

51. We come to the definite
conclusion that the death was due to
septicemia. The judgments cited by the
learned counsel for the appellant would
permit us to uphold our finding which we
conclusively hold that the offence is not
under Section 302 of I.P.C. but is culpable
homicide.

52. The accused is in jail for more
than 10 years. The Apex Court in such
cases has converted the conviction under
Section 302 of I.P.C. to Section 304 Part I
of I.P.C. which will come to the aid of the
accused.

53. In view of the aforementioned
discussion, we are of the view that the
appeal has to be partly allowed, hence,
appeal is partly allowed.

54. The conviction of the appellant
under Section 302 of Indian Penal Code is
converted to conviction under Section 304
(Part-I) of Indian Penal Code and the
appellant is sentenced to undergo 10 years
of incarceration with remission but the fine
and default sentence are maintained.

55. The convict- appellant shall be
released on completion of said period, if
not required in any other case. The
judgement and order impugned in this
appeal shall stand modified accordingly.
----------
(2022) 10 ILRA 216
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 2164 of 2012
And
Criminal Appeal No. 1356 of 2012

Manish Kori ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Qazi Vakil Ahmad, Sri F. Rahman, Sri
Neeraj Pandey, Sri Raj Kumar Sharma.

Counsel for the Respondent:
Govt. Advocate

A.
Criminal
Law-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860-Sections
302/34Challenge
to-Conviction-Murder-No
premeditation-incident occurred at the
10 All. Manish Kori Vs. State of U.P.
217
spur of moment-accused though had
knowledge and intention that his act
would cause bodily harm but did not want
to do away with the deceased-Hence, the
instant case falls under the Exception 1
and 4 to Section 300 of IPC-Therefore, by
adopting
reformative
theory
of
punishment, the accused are convicted for
the offence punishable u/s 304 Part I of
IPC.(Para 1 to 30)

B. The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human body 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. While
determining the quantum of sentence, the
court should bear in mind the 'Principle of
Proportionality'.(Para 29)

The appeal is partly allowed. (E-6)
List of Cases cited:

1. Didar Singh Vs St. of Har. (1992) 2 Crimes
308 SC

2. Baldev Singh & anr. Vs St. of Punj.(1995)
SCC 6 593

3. Mer Dhana Side Vs St. of Guj. (1985) AIR SC
386

4. Dalip Singh Vs St. of Har. (1993) AIR SC 2302

5. Ashiq Lal Vs St. of U.P. (1998) of CrLJ 1972

6. Khokan @ Khokhan Vishwas Vs St. of
Chattisgarh (2021) LawSuit SC 80

7. Anversinh Vs St. of Guj.(2021) 3 SCC 12

8. Pravat Chandra Mohanty Vs St. Ori. (2021) 3
SCC 529

9. Pardeshiram Vs St. of M.P.(2021) 3 SCC 238

10. Tukaram & ors. Vs St. of Mah. (2011) 4
SCC 250

11. B.N. Kavatakar & anr. Vs St. of Karn. (1994)
SUPP 1 SCC 304

12. Veeran & ors. Vs St. of M.P. (2011) 5 SCR
300

13. Md. Giasuddin Vs St. of A.P. (1977) AIR SC
1926

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

15. Ravada Sasikala Vs St. of A.P. (2017) AIR
SC 1166

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

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

18. Sumer Singh Vs Surajbhan Singh (2014) 7
SCC 323

19. St. of Punj. Vs Bawa Singh (2015) 3 SCC
441

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

(Delivered by Hon'ble Kaushal Jayendra
Thaker, J.)

1. Both these appeals arise out of
common
judgment
and
order
dated
25.2.2012
passed
by
the
Additional
Sessions Judge, Court No.4, Jalaun, in
Sessions Trial No.280 of 2009 whereby the
learned Additional Sessions Judge has
convicted the accused-appellants, Babloo
Kori alias Santosh Kumar and Manish Kori
for commission of offence under Section
302 read with Section 34 of Indian Penal
Code, 1860 (for short 'IPC') and sentenced
them to undergo imprisonment for life with
fine of Rs.20,000/- and in case of default in
218 INDIAN LAW REPORTS ALLAHABAD SERIES
payment of fine, further to undergo one
year simple imprisonment.

2.
 The
matter
was
kept
for
pronouncement of judgment on 14.9.2022,
but due to paucity of time, the judgment
could not be pronounced on the said date.

3. Heard Sri Raj Kumar Sharma,
learned counsel for the accused-appellants
and learned A.G.A. for the State.

4. Brief facts as culled out from the
record are that on 19.10.2009, F.I.R. being
Case Crime No. 1657 of 2009 came to be
lodged with Police Station Kotwali, Orai
District Jalaun on the basis of the complaint
made by one Amar Singh Chauhan, the father
of the deceased stating that on the same day
at about 7.30 p.m., accused-appellant, Babloo
Kori had called out his son-Sardar Singh,
alias Lalla Singh (deceased) from his house
and near the house of Brij Mohan where
accused-appellant-Manish Kori and two
unknown persons were already present. Two
persons were holding the hand of his son and
Babloo Kori was beating his son with iron
rod in his hand. It was also alleged in the
complaint that accused-appellant Manish
Kori was also beating the deceased on his
head and hand by iron rod in his hand.
Persons who were holding the hand of the
deceased were shouting "Don't let him
escape, kill him". It was also alleged by the
informant that the Kapil Singh, son of the
deceased, had seen the accused-appellant
Babloo Kori calling his father out and Veer
Singh, brother of the deceased, had seen the
deceased being beaten by accused-appellants,
Babloo Kori and Manish Kori and other two
unknown persons. On hearing the shouting of
the informant and Veer Singh, the accusedpersons had fled away. Beer Singh, brother of
the deceased, got Sardar Singh alias Lalla
Singh admitted in the hospital where he died
during treatment.

5. Initially the First Information
Report was registered under Section 304 of
IPC but after investigation and recording of
statements of all the witnesses charge-sheet
was submitted by the Investigation Officer
to the learned Magistrate under Section 302
read with Section 34 of Indian Penal Code
against the accused-appellants and two
other accused-persons.

6. The learned Magistrate summoned
the accused and committed the case to the
Sessions Court as the offences alleged to
have been committed were triable by the
Sessions Court.

7. On being summoned, the accusedpersons pleaded not guilty and wanted to be
tried.

8. On 5.11.2009, the charges were
framed under Section 302 read with
Section 34 of IPC by learned Sessions
Judge.

9. The Trial started and the
prosecution examined 11 witnesses who are
as follows:

1
Amar Singh Chauhan
PW1
2
Veer Singh
PW2
3
Dr. Shrikant Tiwari
PW3
4
Hansharam
PW4
5
Arun Prakash Singh
PW5
6
Subhash Chandra
PW6
7
Anil Kumar Verma
PW7

10. In support of ocular version
following documents were filed and
proved:
10 All. Manish Kori Vs. State of U.P.
219
1
F.I.R. & G.D.
Ex.Ka.11 & Ex. Ka.21
2
Written Report
Ex.Ka.1
3
Recovery memos
Ex. Ka.14, Ka.15, Ka.16 &
Ka.18
4
Postmortem Report
Ex.Ka.2
5
Panchayatnama
Ex.Ka.8
6
Charge-sheet
Ex.Ka.20
7
Site Plan
Ex.Ka.13 & 17

11.

Apart
from
the
above,
Sheelbhadra Gautam and Kanhaiya Lal
were examined as Court witness. At the end
of the trial and 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 accusedappellants, Babloo Kori alias Santosh
Kumar and Manish Kori and acquitted the
other two accused as mentioned above.

12. It is submitted by learned counsel
for the appellant that the incident occurred
at the spur of moment and the accused had
not premeditated to do away with the
deceased.

13. In support of his arguments,
learned counsel for the appellants has relied
on the decisions in Didar Singh versus
State of Haryana, 1992 (2) Crimes 308
SC, Baldev Singh & another versus State
of Punjal, 1995 SCC (6) 593, Mer Dhana
Sida versus State of Gujarat, AIR 1985
SC 386, Dalip Singh versus State of
Haryana, AIR 1993 SC 2302, Ashiq Lal
versus State of U.P., 1998 of CrLJ 1972.

14. It is further submitted that
conviction under Section 302 IPC is not
made out as no overt act as per Section 300
IPC is made out. In alternative, it is
submitted that at the most, the death can be
homicidal death not amounting to murder
and punishable under Section 304 II or
Section 304 I of I.P.C. If the Court decides
that the accused is guilty under Section 302
of IPC, then the accused may be granted
fixed term punishment of incarceration as
accused are in jail for more than 14 years
with remission.

15. Learned A.G.A. has submitted
that ingredients of Section 300 of IPC are
rightly held to be made out by the learned
Sessions Judge who has applied the law to
the facts in case. It is submitted that the
decision of the learned Sessions Judge is
just and proper and does not call for any
interference/modification
as
both
the
accused-appellants
have
direct
role
assigned to kill the deceased by beating
him with iron rods.

16. While considering the evidence of
P.W.1 to P.W.5 in cumulative nature, the
death can be said to be homicidal death.
Postmortem report goes to show that the
injuries on the body of the deceased would
be the cause of death and that it was was
homicidal death.

17. We are convinced that it was
homicidal death but, it would be seen
whether it is homicidal death punishable
under Section 302 or Section 304 Part I or
Part II of IPC?

18. It would be relevant to refer to
Section 299 of the Indian Penal Code,
which read 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."
220 INDIAN LAW REPORTS ALLAHABAD SERIES

19. 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 Section 299 and 300 of I.P.Code. 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 is 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.

20. In latest decision in Khokan@
Khokhan
Vishwas
v.
State
of
Chattisgarh, 2021 LawSuit (SC) 80,
where the facts were similar to this case,
the Apex Court has allowed the appeal of
the accused appellant and altered the
sentence. The decision of the Apex Court in
the case of Anversinh v. State of Gujarat,
(2021) 3 SCC 12 which was related to
kidnapping from legal guardian, wherein it
was established that the Court while
respecting the concerns of both society and
victim, propounded that the twin principle
of deterrence and correction would be
served
by
reducing
the
period
of
incarceration already undergone by the
accused. In our case, this is not that
gruesome matter where the accused cannot
be dealt with in light of all these judgments.
Decisions in Pravat Chandra Mohanty v.
State of Odisha, (2021) 3 SCC 529 &
Pardeshiram v. State of M.P., (2021) 3
SCC 238 will also enure for the benefit of
the accused.

21. On overall scrutiny of the facts
and circumstances of the present case
coupled with the opinion of the Medical
Officer and considering the principle laid
down by the Apex Court in the Case of
Tukaram
and
Ors
Vs.
State
of
Maharashtra, reported in (2011) 4 SCC
250 and in the case of B.N. Kavatakar and
Another Vs. State of Karnataka, reported
in 1994 SUPP (1) SCC 304, we are of the
considered opinion that it was a case of
homicidal death not amounting to murder.

22. From the upshot of the aforesaid
discussions, it appears that the death caused
by the accused was not premeditated,
accused
though
had
knowledge
and
intention that her act would cause bodily
harm to the deceased but did not want to do
away with the deceased. Hence the instant
case falls under the Exceptions 1 and 4 to
Section 300 of IPC. While considering
Section 299 as reproduced herein above
10 All. Manish Kori Vs. State of U.P.
221
offence committed will fall under Section
304 Part-I as per the observations of the
Apex Court in Veeran and others Vs.
State of M.P. Decided, (2011) 5 SCR 300
which have to be also kept in mind.

23. We come to the definite
conclusion
that
the
death
was
not
premeditated. The precedents discussed by
us would permit us to uphold our finding
which we conclusively hold that the
offence is not punishable under Section 302
of I.P.C. but is culpable homicide not
amounting to murder, punishable U/s 304
(Part I) of I.P.C.

24. This takes us to the alternative
submission of learned counsel for the
appellant that the quantum of sentence is
too harsh and requires to be modified. In
this regard, we have to analyse the theory
of punishment prevailing in India.

25. 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 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."

26. '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.

27. 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
222 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

28. 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.

29. 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.

30.

Therefore,
accused-appellants,
Babloo Kori alias Santosh Kumar and Manish
Kori are convicted for the offence punishable
under Section 304 (Part I) of IPC and
sentenced to 10 years rigorous imprisonment.
The fine is reduced to Rs.10,000/-. The fine if
they have yet not deposited, will deposit the
same within four weeks from the date of
release from jail. The jail authority shall see
that the accused-appellants are lodged in the
jail to re-incarcerate for the default period if
fine is not paid after they are released. The
accused be released on completion of their
respective sentences

31. In view of the above, both the
criminal appeals are partly allowed. Record
and proceedings be sent back to the Court
below forthwith.
----------
(2022) 10 ILRA 222
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.09.2022

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.
THE HON'BLE MAYANK KUMAR JAIN, J.

Criminal Appeal No. 3098 of 1984

Girish Singh ...Appellant
Versus
State of U.P. ...Opposite Party