# Manoj Sharma (In Jail) v. State of U.P

- **Citation:** (2022) 12 ILRA 760
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-09
- **Case number:** Criminal Appeal No. 2895 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-sharma-in-jail-v-state-of-u-p-48037
- **Pages:** 10

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313, - Indian
Penal Code, 1860 - Sections 71, 302,
304-B, 304 part - I, 304 part - II & 498-A,
- Dowry Prohibition Act, 1961- Sections 2,
3 & 4 - Indian Evidence Act, 1872 -
Section 106 & 113(b) - Criminal Appeal -
Conviction & Sentence - Life imprisonment in
both U/s 304-B & 302 IPC with fine - Evaluation
of Evidence - offence of dowry death - FIR -
informant alleged that his daughter was married
12 All. Manoj Sharma Vs. State of U.P.
761
with accused three year ago and her husband
along with his family members killed his
daughter due to non-fluffing their demand of
additional dowry - Parameters and contours of
the offence of 'Dowry Death' and 'Murder' -
court finds that, trial court committed error -
when trial court in holding the appellant guilty
for offence of 'dowry death' than no required to
enter in to the arena of offence of 'murder' -
held offence of 'dowry death' is proved -
consequently, conviction u/s 302 IPC is setaside. (Para - 24, 26, 29)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 71, 302, 304B, 304 part - I , 304 part - II & 498-A, -
Dowry Prohibition Act, 1961 - Section - 2,
3 & 4 - Indian Evidence Act, 1872 -
Sections 106 & 113(b) - Criminal Appeal -
Conviction & Sentence - Life imprisonment in
both U/s 304-B & 302 IPC with fine - Principle
of natural justice - maxim audi alterm partem -
object behind section 313 is to enable the
accused to explain any circumstances appearing
against him - it makes obligatory provision on
the court to afford the opportunity to the
accused for explaining the said incriminating
circumstances - hence, examination of accused
u/s 313 Cr.P.C. is of utmost importance and fair
opportunity should be awarded to the accused.
(Para - 28)

(C) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313, - Indian
Penal Code, 1860 - Sections - 71, 302 ,
304-B, 304 part - I, 304 part - II & 498-A,
- Dowry Prohibition Act, 1961 - Sections
2, 3 & 4 - Indian Evidence Act, 1872 -
Section - 106 & 113(b) - Criminal Appeal -
Conviction & Sentence - Life imprisonment in
both U/s 304-B & 302 IPC with fine - Quantum
of Punishment - Punishment for offence dowry
death does not provide the imposition of fine, it
provides only imprisonment which shall not be
less than 7 years but may extended to life
imprisonment - trial court committed grave error
by imposing the fine - Imposition of proper
punishment & undue harshness should be
avoided taking into account the reformative
approach underlying in criminal justice system -
accused appellant is convicted for the offence
punishable under section 304 - B of IPC -
criminal
appeal
partly
allowed
-
order
accordingly. (Para - 31, 32, 34, 35, 36)

Appeal Partly allowed. (E-11)

List of Cases cited:

## Text

760 INDIAN LAW REPORTS ALLAHABAD SERIES
has utterly failed to establish that the
accused-appellants were identified by the
informant and PW-3 Chandradeiya and also
that PW-3 and PW-4 Jagapatiya are the
eyewitnesses in the absence of a light
source at the place of occurrence.

70. On the basis of the above
discussion
and
appreciation
of
documentary and oral evidence available
on record, we conclude that the prosecution
has failed to bring home the charge u/s
302/34 IPC against the appellants. Material
contradictions in the evidence of the
witnesses of the fact render the theory of
the prosecution to be doubtful. Accused
appllants had no motive to kill Kunwar
Bharat. The identification of the appellant
is not established by cogent evidence. The
witnesses
have
made
material
improvements and embellishments in their
testimonies. The evidence of witnesses of
fact
PW-2
Phool
Chand,
PW-3
Chandradeiya, and PW-4 Jagpatiya on
reading as a whole does not inspire
confidence and does not have any ring of
truth. Appreciation of oral evidence of
witnesses of fact raises doubt about the
commission of the crime by the appellants.
The
Learned
Trial
Court
has
not
appreciated the evidence available on
record in a rightful manner and hence
wrongly convicted the appellants.

71. The appellants are entitled to the
benefit of the doubt since the prosecution
has failed to prove charges against the
appellants beyond the reasonable doubt.
Thus the appeal is liable to be allowed.

ORDER

72. The criminal appeal is accordingly
allowed. The Judgement of conviction and
order of sentence passed by the learned trial
court is hereby set aside. Appellants are
hereby acquitted from the charges.

73. The Appellants are on bail. They
need not to surrender. Their personal bonds
and surety bonds are cancelled.

74. Let the certified copy of this order
be transmitted to the trial court for
compliance.

75. The lower Court record be also
transmitted to the court concerned.
----------
(2022) 12 ILRA 760
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.12.2022

BEFORE

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

Criminal Appeal No. 2895 of 2015

Manoj Sharma ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri S. Lal, Abhilasha Singh, Sri Ashutosh
Yadav, Sri Sheshadri Trivedi

Counsel for the Respondent:
Govt. Advocate, Sri Dheeraj Singh Bohra

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313, - Indian
Penal Code, 1860 - Sections 71, 302,
304-B, 304 part - I, 304 part - II & 498-A,
- Dowry Prohibition Act, 1961- Sections 2,
3 & 4 - Indian Evidence Act, 1872 -
Section 106 & 113(b) - Criminal Appeal -
Conviction & Sentence - Life imprisonment in
both U/s 304-B & 302 IPC with fine - Evaluation
of Evidence - offence of dowry death - FIR -
informant alleged that his daughter was married
12 All. Manoj Sharma Vs. State of U.P.
761
with accused three year ago and her husband
along with his family members killed his
daughter due to non-fluffing their demand of
additional dowry - Parameters and contours of
the offence of 'Dowry Death' and 'Murder' -
court finds that, trial court committed error -
when trial court in holding the appellant guilty
for offence of 'dowry death' than no required to
enter in to the arena of offence of 'murder' -
held offence of 'dowry death' is proved -
consequently, conviction u/s 302 IPC is setaside. (Para - 24, 26, 29)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 71, 302, 304B, 304 part - I , 304 part - II & 498-A, -
Dowry Prohibition Act, 1961 - Section - 2,
3 & 4 - Indian Evidence Act, 1872 -
Sections 106 & 113(b) - Criminal Appeal -
Conviction & Sentence - Life imprisonment in
both U/s 304-B & 302 IPC with fine - Principle
of natural justice - maxim audi alterm partem -
object behind section 313 is to enable the
accused to explain any circumstances appearing
against him - it makes obligatory provision on
the court to afford the opportunity to the
accused for explaining the said incriminating
circumstances - hence, examination of accused
u/s 313 Cr.P.C. is of utmost importance and fair
opportunity should be awarded to the accused.
(Para - 28)

(C) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313, - Indian
Penal Code, 1860 - Sections - 71, 302 ,
304-B, 304 part - I, 304 part - II & 498-A,
- Dowry Prohibition Act, 1961 - Sections
2, 3 & 4 - Indian Evidence Act, 1872 -
Section - 106 & 113(b) - Criminal Appeal -
Conviction & Sentence - Life imprisonment in
both U/s 304-B & 302 IPC with fine - Quantum
of Punishment - Punishment for offence dowry
death does not provide the imposition of fine, it
provides only imprisonment which shall not be
less than 7 years but may extended to life
imprisonment - trial court committed grave error
by imposing the fine - Imposition of proper
punishment & undue harshness should be
avoided taking into account the reformative
approach underlying in criminal justice system -
accused appellant is convicted for the offence
punishable under section 304 - B of IPC -
criminal
appeal
partly
allowed
-
order
accordingly. (Para - 31, 32, 34, 35, 36)

Appeal Partly allowed. (E-11)

List of Cases cited:

1. Dharmendra Rajbhar Vs St. of U.P., 2021
LawSuit (All) 27

2. R. Rachaiah Vs Home Secretary, Bangalore,
2016 2 Crimes (SC) 264

3. Jasvinder Saini Vs State (Govt. of NCT of
Delhi), 2013 4 Crimes (SC) 346

4. Sanjay Kumar Jain Vs St. of Delhi, 2010 0
Supreme (SC) 1226

5. Deo Narain Mandal Vs St. of UP [(2004) 7
SCC 257]

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

7. Jameel Vs St. of UP [(2010) 12 SCC 532]

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

9. Sumer Singh Vs Surajbhan Singh, [(2014) 7
SCC 323]

10. St. of Punj. Vs Bawa Singh, [(2015) 3 SCC 441]

11. Raj Bala Vs St. of Har., [(2016) 1 SCC 463]

(Delivered by Hon'ble Ajai Tyagi, J.)

1. The appeal has been preferred by
the appellant-Manoj Sharma against the
judgment and order dated 30.06.2015,
passed by Additional Sessions Judge,
Hapur in Session Trail No. 1534 of 2012
(State of UP vs. Manoj Sharma and others),
arising out of Case Crime No. 157 of 2012,
under Sections 498-A, 302, 304-B I.P.C.
and Section 3/4 of D.P. Act, Police Station
Hapur Dehat, District Hapur whereby the
appellant is convicted and sentenced for the
762 INDIAN LAW REPORTS ALLAHABAD SERIES
offence under Sections 302 & 304-B I.P.C.
for life imprisonment with a fine and in
default of payment of fine.

2. Brief facts of the case giving rise to
this appeal are that a written report was
submitted by informant-Mohan Sharma at
police station Hapur Dehat, District Hapur
with the averments that marriage of his
daughter Anshu Sharma was solemnized
with
the
accused-Manoj
Sharma
on
01.03.2009 in Hapur. After the marriage,
husband,
father-in-law,
mother-in-law,
brother-in-law
and
sister-in-law
of
deceased Anshu Sharma have started the
demand of additional dowry and they used
to demand of one Alto car and Rs.2 lacs in
cash as demand of additional dowry. The
financial position of informant was not
such as to meet out the aforesaid demand,
therefore, all the aforesaid persons started
cruelty and torturing to his daughter. On
20.03.2012 at about 02:46 PM, his daughter
made a phone call to the informant and told
that due to non fulfilment of demand of
additional dowry, her husband and his
family members beating her.

3. It is also averred in the written
report that informant and his wife went to
the matrimonial home of their daughter,
where they saw that dead body of their
daughter was lying in the courtyard of the
house and there were injuries mark on her
body. On the basis of the aforesaid written
report, a case crime no.157 of 2012 was
registered at police station Hapur Dehat
under Sections 498-A, 304-B I.P.C. and
Section 3/4 of Dowry Prohibition Act.
Investigating
Officer
took
up
the
investigation, he visited the spot and
prepared the site plan. Inquest proceedings
were started and inquest report was
prepared. Dead body of the deceased was
sent for post-mortem where the doctor
conducted the post-mortem on her body
and prepared the post-mortem report.

4. During the course of investigation,
Investigating Officer has recorded the
statement of witnesses under Section 161
Cr.P.C. After completion of investigation, a
charge sheet was submitted against the
accused persons namely, Rajkumar, Smt.
Priyanka, Km. Pooja, Manoj Sharma,
Ashok Kumar and Smt. Anita.

5. Learned trial court took the
cognizance on charge sheet. The matter
being exclusively triable by the court of
sessions, which was committed to the court
of sessions where learned Trial Judge
framed the charges against the accused
persons under Sections 498-A, 304-B,
302/34 of I.P.C. and Section 3/4 of Dowry
Prohibition Act. During the couse of trial,
accused-Ashok Kumar has passed away
and rest of the accused perosns were put on
trial. Accused-appellant denied the charges
and claimed to be tried.

6. To bring home the charges, the
prosecution examined following witnesses:

1.
Mohan Sharma
P.W.-1
2.
Manju Sharma
P.W.-2
3.
Pawan
Kumar
Yadav
P.W.-3
4.
Dr. Sanjay Kumar
P.W.-4
5.
Subhash Chandra
P.W.-5
6.
Mahendra Singh
P.W.-6
7.
Rajpal Singh
P.W.-7
8.
Ashok Kumar
P.W.-8

7. In support of oral evidence,
prosecution
submitted
following
documentary evidence, which was proved
by leading oral evidence:-

1.
FIR
Ex.ka-4
12 All. Manoj Sharma Vs. State of U.P.
763
2.
Written report
Ex.ka-1
3.
Post-mortem report
Ex.ka-3
4.
Panchayatnama
Ex.ka-7
5.
Charge sheet
Ex.ka-6 &
2
6.
Site plan with index
Ex.ka-8

8. After completion of prosecution
evidence, the statement of accused was
recorded under Section 313 of Criminal
Procedure
Code
(Cr.P.C.)
and
after
completion of prosecution evidence, in
which they told that false evidence has
been let against them and it was stated by
accused-appellant that at the time of
occurrence, he was not present in the house
and had gone to attend his duty. After
hearing the arguments of both the sides,
learned trial court acquitted all the accused
persons except accused-appellant Manoj
Sharma. Accused-appellant, Manoj Sharma
was convicted and sentenced under Section
304B, 302 I.P.C. and Section 4 of Dowry
Prohibition Act.

9. Heard Mr. Sheshadri Trivedi,
learned counsel for the appellant and
learned counsel for the State. Record has
been perused.

10. Learned counsel for the accusedappellant has submitted that appellant has
been falsely implicated by the informant
because there was no demand of additional
dowry on the part of the appellant or any of
his family members. Learned trial court has
acquitted all other accused persons except
the appellant, which itself proves that the
entire prosecution story on which the
prosecution case was based proved false.

11. It is also submitted by learned
counsel for the appellant that as per the
First Information Report, the deceased
made a phone call to her father/informant
by which she informed that she was being
beaten by the accused persons and specific
mobile number is mentioned in the F.I.R.
but there is no call detail report is on
record, which could prove the aforesaid
fact. In fact, the deceased had committed
suicide because she was under depression
for not having any child. There is no eye
witness of the occurrence.

12. It is next submitted that as per the
prosecution story, the occurrence had taken
place in the early hours of the morning but
there is no evidence on record, which could
fix the time of death. In fact, the appellant
had gone to his duty at 09:00 AM and after
that the suicide was committed by the
deceased for the reason stated above,
therefore,
at
the
time
of
the
said
occurrence, the appellant was not present at
the house. Learned trial court has convicted
the appellant by shifting the burden of
proof on him under Section 106 of Indian
Evidence Act.

13. Since the accused-appellant was
not present in the house at the time of
occurrence, therefore, no burden of proof
under Section 106 of Indian Evidence Act
could be shifted on the shoulders to prove
his innocence. Learned counsel for the
accused-appellant
has
relied
on
the
judgment of this Court in the case of
Dharmendra Rajbhar Vs. State of U.P.,
2021 LawSuit (All) 27 and the judgments
of Hon'ble Apex Court in the case of R.
Rachaiah Vs. Home Secretary, Bangalore,
2016 2 Crimes(SC), 264, Jasvinder Saini
Vs. State (Govt. of NCT of Delhi), 2013 4
Crimes(SC) 346 and Sanjay Kumar Jain
Vs. State of Delhi, 2010 0 Supreme(SC)
1226.

14. It is further submitted by learned
counsel for the accused-appellant that in
764 INDIAN LAW REPORTS ALLAHABAD SERIES
this case charges have wrongly been
framed by the learned trial court. It has
framed the charges for the offence under
Section 304-B & 302 I.P.C. separately
while the charge under Section 302 I.P.C.
should have been framed as alternative
charge and at the time of awarding the
punishment, learned trial court has awarded
the punishment in both the offences.

15. Submission of learned counsel is
that no person can be awarded sentence twice
for one offence. Counsel for the accusedappellant has attracted the attention of this
Court to the provision of Section 71 of I.P.C.,
which speaks as under :-

71. Limit of punishment of
offence made up of several offences.--
Where anything which is an offence is
made up of parts, any of which parts is
itself an offence, the offender shall not be
punished with the punishment of more than
one of such his of-fences, unless it be so
expressly provided. 1[Where anything is an
offence
falling
within
two or
more
sepa-rate definitions of any law in force for
the time being by which offences are
defined or punished, or where several acts,
of which one or more than one would by
itself or themselves constitute an offence,
constitute, when combined, a different
offence, the offender shall not be punished
with a more severe punishment than the
Court which tries him could award for any
one of such offences.] Illustrations

(a) A gives Z fifty strokes with a
stick. Here A may have commit-ted the
offence of voluntarily causing hurt to Z by
the whole beating, and also by each of the
blows which make up the whole beating. If
A were liable to punishment for every blow,
he might be imprisoned for fifty years, one
for each blow. But he is liable only to one
punishment for the whole beating.

(b) But if, while A is beating Z, Y
interferes, and A intention-ally strikes Y,
here, as the blow given to Y is no part of
the act whereby A voluntarily causes hurt
to Z, A is liable to one punishment for
voluntarily causing hurt to Z, and to
another for the blow given to Y.

16. It is next submitted that there is no
evidence on record with regard to the
offence under Section 302 I.P.C. This is not
proved on record that accused-appellant has
committed the murder of the deceased and
the learned trial court has convicted the
accused-appellant for the offence under
Section 302 I.P.C. on the basis of
circumstantial evidence while the motive is
not proved nor any circumstance is brought
on record by which it could be assessed
that offence is committed by the accusedappellant.
For
facing
conviction
on
circumstantial evidence, the circumstances
should be fully proved.

17. In this case, no chain of
circumstances is complete in such a manner
that could lead to the conclusion that
accused-appellant was the only one who
had committed the crime and none else. No
question is put to the accused-appellant at
the time of recording his statement under
Section 313 Cr.P.C., therefore, the accusedappellant
is
highly
prejudiced.
The
impugned judgment and order is bad in the
eye of law and is liable to be set aside.

18. Per contra, learned A.G.A. has
submitted that it is clearly stated in the
F.I.R. that appellant along with his family
members continuously demanded the Alto
Car and Rs.2 lacs in cash as additional
dowry. The death of the deceased had taken
place in her matrimonial home and
witnesses of fact i.e. P.W.-1 & P.W.-2 have
supported the prosecution case. Moreover,
12 All. Manoj Sharma Vs. State of U.P.
765
Dr. Sanjay Kumar, P.W.-4 has opined that
cause of the death was asphyxia due to
throttling, therefore, it is proved beyond
doubt that the death of the deceased was not
the result of suicide but she was murdered by
the accused-appellant due to non fulfilment
of demand of additional dowry.

19. It is further submitted by learned
A.G.A. that all the witnesses of fact have
supported the prosecution case and, therefore,
there is no illegality or impropriety in the
impugned judgment and order, which calls
for any interference by this Court.

20. Prosecution has made foundation of
this case as a case of dowry death. It is averred in
F.I.R. that marriage of the deceased was
solemnized
with
accused-appellant
on
01.03.2009 and the death of the deceased was
occurred on 20.03.2012, therefore, undisputedly,
the death of the deceased had taken place within
seven years of her marriage. Allegations of
demand of additional dowry are made in F.I.R.
and just before the death, the deceased made a
phone call to her father stating the act of torturing
by the accused-appellant and his family
members. So, in this way, the prosecution has
founded its case as a dowry death case.

21. Prosecution has produced two
witnesses of fact i.e. P.W.-1 & P.W.-2, father and
mother of the deceased respectively. Both the
witnesses have supported the prosecution version
and during their cross-examination, no such
evidence has emerged which could help the
appellant or which could shatter the prosecution
case. The evidence of P.W.-4, Dr. Sanjay Kumar
goes to show that there were ante mortem
injuries in post-mortem report, which reads as
under:-

(i) Abrasion 3 cm X 1 cm on the
side of upper neck, 6 cm below and behind
the chin.

(ii) Contusion 2 cm X 2 cm on
the upper part of neck, 6 cm below and
behind the chin on right side of neck.

(iii) Abrasion 1 cm X 1 cm on the
back of the wrist.

22. The doctor has opined the cause
of death was throttling and no contrary
evidence to the aforesaid medical evidence
is found on the record. Section 304-B I.P.C.
defines dowry death, as under:-

[304B. Dowry death.--

(1) Where the death of a woman
is caused by any burns or bodily injury or
occurs otherwise than under normal
circumstances within seven years of her
marriage and it is shown that soon before
her death she was subjected to cruelty or
har-assment by her husband or any relative
of her husband for, or in connection with,
any demand for dowry, such death shall be
called "dowry death", and such husband or
relative shall be deemed to have caused her
death. Explanation.--For the purpose of
this sub-section, "dowry" shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry
death shall be punished with imprison-ment
for a term which shall not be less than
seven years but which may extend to
imprisonment for life.]

23. Learned trial court has also taken
into consideration the ingredients of the
offence under Section 304-B I.P.C. and
reached to the conclusion that death of the
deceased had taken place within seven
years of her marriage, which was the death,
otherwise,
than
under
normal
circumstances. It is also proved that soon
before her death, she was subjected to
cruelty by accused-appellant in connection
with demand of additional dowry.
766 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Learned trial court has also
considered that aforesaid ingredients are
available and proved in this case. These
ingredients have not been rebutted by the
accused-appellant, therefore, we concur
with the findings of learned trial court in
holding the appellant guilty for the offence
under Section 304-B I.P.C. but when the
offence under Section 304-B I.P.C. has
been
proved
by
prosecution
beyond
reasonable doubt then the learned trial
court was not required to enter the arena of
the offence under Section 302 I.P.C.

25. After holding the appellant's
guilty under Section 304-B I.P.C., the
learned trial court went a step further for
taking the recourse of the provision of
Section 106 of Indian Evidence Act and
the burden was to be on the shoulders of
the
accused-appellant
to
prove
his
innocence in the light of the fact that
death of the deceased had taken place in
her matrimonial home where she used to
reside
with
her
husband/appellant.
Learned trial court convicted the accusedappellant under Section 302 I.P.C. also
on the basis of circumstantial evidence,
which was not required when he had
already been convicted for the offence of
"dowry death".

26. The parameters and contours of
the offence of "dowry death" and
"murder"
are
entirly
different.
The
offence of dowry death is proved by first
proving ingredients as mentioned in
Section 304-B I.P.C. and raising the
presumption under Section 113-B of
Indian Evidence Act, while in case of
murder, no presumption can be raised and
prosecution is required to prove the
offence under Section 302 I.P.C. beyond
reasonable doubt but the learned trial
court has mixed one offence with two
separate punishments. If the offence with
regard to murder is considered separately
then also it is not proved because learned
trial court has taken it as a case of
circumstantial evidence. In a matter of
circumstantial evidence, the chain of
circumstances must be complet, in such a
manner, that it could reach only to one
conclusion that it is the accused who has
committed the offence and no one else.
Circumstances should be fully proved and
must be conclusive in nature, which is not
in our case.

27. We are in full agreement with the
submission of learned counsel for the
accused-appellant that no question with
regard to offence of murder was put to the
appellant in his statement recorded under
Section 313 Cr.P.C. Section 313 Cr.P.C.
reads as under:-

313. Power to examine the
accused.

(1) In every inquiry or trial, for
the purpose of enabling the accused
personally to explain any circumstances
appearing in the evidence against him, the
Court-

(a) may at any stage, without
previously warning the accused, put such
questions to him as the Court considers
necessary;

(b) shall, after the witnesses for
the prosecution have been examined and
before he is called on for his defence,
question him generally on the case:
Provided that in a summons- case, where
the Court has dispensed with the personal
attendance of the accused, it may also
dispense with his examination under clause
(b).

(2) No oath shall be administered
to the accused when he is examined under
sub- section (1).
12 All. Manoj Sharma Vs. State of U.P.
767

(3) The accused shall not render
himself liable to punishment by refusing to
answer such questions, or by giving false
answers to them.

(4) The answers given by the
accused may be taken into consideration in
such inquiry or trial, and put in evidence
for or against him in any other inquiry into,
or trial for, any other offence which such
answers may tend to show he has
committed.

28. The object behind Section 313
Cr.P.C. is to enable the accused to explain
any circumstance appearing against him in
the evidence and its object is based on the
maxim audi alterm partem, which is one of
the maxim principles of natural justice. It
has always been recorded as interfered to
rely upon any incriminating evidence
without affording the opportunity to the
accused
for
explaining
the
said
incriminating
circumstances.
The
provisions
of
Section
313
Cr.P.C.,
therefore, makes it obligatory on the Court
to question the accused on the evidence and
circumstance appearing against him so as
to apprise him on the exact case, which he
is required to meet. In a case of
circumstantial
evidence,
the
same
is
essential to decide whether or not, the chain
of circumstances is complete. Therefore,
the examination of accused under Section
313 Cr.P.C. is of utmost importance and
fair opportunity should be awarded to the
accused so that no prejudice is caused to
him.

29. We are of the considered view
that learned trial court has committed grave
error in holding the accused-appellant
guilty for both the offences under Section
304-B and 302 I.P.C. distinctly and
simultaneously. Consequently, we deem it
appropriate to set aside the conviction of
the accused-appellant under Section 302
I.P.C. but in the facts and circumstances of
this case, the offence under Section 304-B
I.P.C. is proved against the accusedappellant beyond any reasonable doubt,
therefore, we concur with the findings of
learned trial court as far as the conviction
of accused-appellant is concerned for the
offence under Section 304-B I.P.C.

30. Now it comes to the part of
sentencing. The impugned judgment and
order goes to show that for the offence
under Section 304-B I.P.C. also, the
appellant
has
sentenced
for
life
imprisonment and fine to the tune of Rs.1
lacs. Sub section 2 of Section 304-B I.P.C.
provides the punishment for the offence of
dowry death, which states as under:-

304-B (2) Whoever commits
dowry death shall be punished with
imprison-ment for a term which shall not
be less than seven years but which may
extend to imprisonment for life.]

31. The punishment for the offence of
dowry
death
does
not
provide
the
imposition of fine, it provides only
imprisonment which shall not be less than
seven years but which may extend to life
imprisonment. Learned trial court has
committed grave error by imposing the
fine. Life imprisonment is awarded for the
offence
under
Section
304-B
I.P.C.
Principles of proper sentencing should be
kept in mind by the court while awarding
the punishment.

32. '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
768 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

33. 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.

34. 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.

35. As per the jail report of the
accused-appellant, his incarceration period
is more than 12 years as of now with
remission and actual undergone period is
more than 10 years, therefore, we feel that
in the light of the facts and circumstances
of this case, the punishment of life
imprisonment for the offence under Section
304-B I.P.C. is too severe and harsh.

36. 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
12 All. Nasir @ Guddu Vs. State of U.P.
769
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.

37. Learned AGA also admitted the
fact that appellant is languishing in jail for
the last more than 12 years. Since, the
appellant has already served 12 years in
jail, ends of justice will be met if sentence
is reduced to the period already undergone.

38. Hence, the sentence awarded to
the accused-appellant by the learned trialcourt is modified as period already
undergone and the fine awarded for Rs.1
lacs is set aside. Conviction and sentence
for the offence under Section 302 I.P.C. is
hereby set aside.

39. Accordingly, the appeal is partly
allowed with the modification of the
sentence, as above. The accused-appellant
shall be released forthwith, if not wanted in
any other case.

40. Let a copy of this judgment along
with the trial court record be sent to the
court below and jail authorities concerned
for compliance.
----------
(2022) 12 ILRA 769
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.12.2022

BEFORE

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

Criminal Appeal No. 5669 of 2018
With
Criminal Appeal No. 6271 of 2018

Nasir @ Guddu ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Shamsuddin Ahmad, Sri Brijesh Kumar
Pandey, Sri Saghir Ahmad, Sr. Advocate

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 437(A)
- Indian Penal Code, 1860 - Section - 34,
120-B, 302, 307 & 452 - India Evidence
Act, 1872 - Section - 134 - Criminal Appeals
- challenging the order of Conviction &
Sentence - Life imprisonment in U/s 302/34, 10
years of RI U/s 307/24 & 2 years of RI U/s
452/34 of IPC with fines - Evaluation of
Evidence - offence of Murder - FIR - informant
alleged that accused appellants come in green tshirt and with intension to kill fired upon him by
country-made due to which he sustained
gunshot
injuries
resulted
companion
of
informant was died during treatment - in the
St.ment U/s 313 accused appellants denied their
involvement - accused appellant Ravindra has
made it clear that the informant due to harbour
resentment a false accusation has been made
against him - it is note that PW-1 & PW2 has
turned hostile and did not support the
prosecution case in their testimonies - In FIR
alleged that murder has been committed with a
country made pistol but, from investigation &
Post mortem report it reflect that a rifle was
used - court finds that, there are contradiction
with regards to fire arm used as well as
direction gunshot - which creates doubt in the
prosecution story - further conduct & testimony
of PW-8 (wife of deceased) also create grave
doubt in prosecution story against Ravindra
beyond doubtful - resulting, impinged orders of
conviction & sentence is liable to be quashed for
appellant Ravindra
- direction issued
for
releasing him accordingly. (Para - 16, 17, 18,
19)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 437(A)
- Indian Penal Code, 1860 - Sections 34,
302, 307 & 452 - India Evidence Act, 1872