# Mohd. Amir v. State of U.P

- **Citation:** (2022) 12 ILRA 1053
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-23
- **Case number:** Criminal Appeal No. 6485 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-amir-v-state-of-u-p-47989
- **Pages:** 9

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 302- Section 304 Part I- The
deceased died out of septicaemial death.
We, therefore, hold that the death was a
homicidal death. It was the appellant who
was instrumental in commission of the
offence and was the author of the offence-
Considering the evidence of the witnesses
and also considering the medical evidence
including post mortem report, there is no
doubt left in our mind about the guilt of
the present appellants-The offence would
be one punishable under Section 304 partI of the IPC- It appears that the death
caused
by
the
accused
was
not
premeditated, accused had no intention to
cause death of deceased, the injuries were
though sufficient in the ordinary course of
nature to have caused death, accused had
no intention to do away with deceased,
hence the instant case falls under the
Exceptions 1 and 4 to Section 300 of IPC.

Although the prosecution has established that
act of the accused resulted in the death of his
wife in the ordinary course of nature but as the
same was neither pre-meditated and nor
intentional, hence the offence will fall within the
ambit of Section 304 Part-I of the IPC instead of
Section 302 of the IPC.

Doctrine of Proportionality- 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-
'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.

As the judicial trend in our Country is
reformative and corrective hence punishment
imposed must be proportionate to the offence
and should not be unduly harsh. Sentence
modified accordingly.

Criminal Appeal partly allowed. (E-3)
(Para 10, 11, 15, 19, 23, 25, 26)

Case Law/ Judgements relied upon:-
1054 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

12 All. Mohd. Amir Vs. State of U.P.
1053

41. The accused-appellant is acquitted
of the offences for which he was charged.
The accused-appellant shall be released
forthwith, if not wanted in any other case.
Fine if deposited be refunded.

42. 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 1053
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

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

Criminal Appeal No. 6485 of 2018

Mohd. Amir ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Gaurav Kakkar, Sri Noor Muhammad, Sri
Yogesh Kumar Srivastava

Counsel for the Respondent:
G.A.

Criminal Law- Indian Penal Code, 1860-
Section 302- Section 304 Part I- The
deceased died out of septicaemial death.
We, therefore, hold that the death was a
homicidal death. It was the appellant who
was instrumental in commission of the
offence and was the author of the offence-
Considering the evidence of the witnesses
and also considering the medical evidence
including post mortem report, there is no
doubt left in our mind about the guilt of
the present appellants-The offence would
be one punishable under Section 304 partI of the IPC- It appears that the death
caused
by
the
accused
was
not
premeditated, accused had no intention to
cause death of deceased, the injuries were
though sufficient in the ordinary course of
nature to have caused death, accused had
no intention to do away with deceased,
hence the instant case falls under the
Exceptions 1 and 4 to Section 300 of IPC.

Although the prosecution has established that
act of the accused resulted in the death of his
wife in the ordinary course of nature but as the
same was neither pre-meditated and nor
intentional, hence the offence will fall within the
ambit of Section 304 Part-I of the IPC instead of
Section 302 of the IPC.

Doctrine of Proportionality- 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-
'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.

As the judicial trend in our Country is
reformative and corrective hence punishment
imposed must be proportionate to the offence
and should not be unduly harsh. Sentence
modified accordingly.

Criminal Appeal partly allowed. (E-3)
(Para 10, 11, 15, 19, 23, 25, 26)

Case Law/ Judgements relied upon:-
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Ankush Shivaji Gaikwad Vs St. of Maha.,
(2013) 6 SCC 770

2. Tukaram & ors Vs St. of Maha., (2011) 4 SCC
250

3. B.N. Kavatakar & anr. Vs St. of Kar., 1994
SUPP (1) SCC 304

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

5. Crl. Appeal No.83 of 2008 (Gautam Manubhai
Makwana Vs St. of Guj.) decided on 11.9.2013

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

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

8. Pravat Chandra Mohanty Vs St. of Odisha,
(2021) 3 SCC 529

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

10. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC 1926

11. Deo Narain Mandal Vs St. of UP (2004) 7
SCC 257

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

(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J. & Hon'ble Ajai Tyagi, J.)

1. This appeal challenges the
judgment and order dated 22.9.2018 passed
by Ist Additional Sessions Judge, Jhansi, in
Sessions Trial No.240 of 2016 (State Vs.
Mohd. Amir) in connection with Case
Crime No.586 of 2015, Police Station Sipri
Bazar, District Jhansi convicting the
appellant under Section 302 IPC for life
imprisonment
along
with
fine
of
Rs.5,00,000/-, under Section 354 IPC for 3
years rigorous imprisonment along fine of
Rs. 50,000/- and under Section 452 IPC for
3 yars rigorous imprisonment along with
fine of Rs. 50,000/- and all the sentences
shall run concurrently.

2. According to F.I.R., the applicant's
daughter Km. Vinita Bajpai @ Doli, age -
24 years, used to live in Old Charliganj,
Police Station - Sipri Bazar, Jhansi,
District-Jhansi
for
the
care
of
the
applicant's
late
brother
and
bhabhi
(brother's wife)'s son Abhilash Tiwari and
daughter Km. Rinki, who is mentally
challenged. The occurrence took place on
18.12.15 at around 11:30 a.m. Km. Vinita,
daughter of the applicant, was alone at her
Jhansi located residence. Taking advantage
of the opportunity, Mohd. Amir s/o Mohd.
Anees, resident of Sarai Mohalla, Police
Station - Kotwali, Jhansi entered the room
of the applicant's daughter and tried to
commit rape on the applicant's daughter,
against which act the applicant's daughter
protested, and raised alarm; so fearing to be
get apprehended, the said Mohammad Amir
poured kerosene, kept in the house, on the
applicant's daughter and set her on fire with
the intention of killing her. While executing
the said occurrence, Mohammad Amir also
came into flames. Hearing the commotion,
Vivek
Tiwari,
the
grandson
of
the
applicant, and many other people reached
the spot, and took Km. Vinita to the
Medical College, Jhansi. As her condition
was critical, she, not being allowed to be
admitted, was asked to be taken to Gwalior
instead. The daughter of the informant was
admitted to Ayushman Hospital, Gwalior
and she was in moribund state.

3. On being summoned, the accused
pleaded not guilty and wanted to be tried,
hence, the trial started and the prosecution
examined 10 witnesses who are as follows:

1
Gayari
Bajpayee
PW1
2
Janki
Prasad
Bajpayee
PW2
12 All. Mohd. Amir Vs. State of U.P.
1055
3
Vivek Tiwari
PW3
4
Pramod Kumar
Shukla
PW4
5
Shivnandan
Singh
Kushwaha
PW5
6
Dr. Ajay Gupta PW6
7
Puttan Lal
PW7
8
Pravin Kumar
Yadav
PW8
9
Kamta Prasad
PW9
10
Shiv
Mohan
Prasad
PW10

4. In support of ocular version
following documents were filed:

1
F.I.R.
Ex.Ka.8
2
Written Report Ex.Ka.1
3
Panchayatnama Ex. Ka.10
4
Postmortem
Report
Ex.Ka.11
5
Charge-sheet
Ex.Ka.15

5. At the end of the trial and after
recording the statement of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the appellants as mentioned
aforesaid.

6. Heard learned counsel for accusedappellant, learned A.G.A. for the State and
perused the record.

7. It is the submission of appellant's
Counsel that PW3- Vivek Tiwari stated on
oath that the incident had occurred on
18.02.2015 at 111⁄2 pm. He was inside the
home at that time. He heard some screams,
he came out of his house and saw that Amir
was screaming. His hand and leg were
engulfed in fire. He told Vivek that Doli @
Vineeta was in flames inside, save her.
Public from the muhalla extinguished
Vineeta's fire. Thereafter they took Vineeta
to Medical College where the doctors after
examination advised her to be taken to
Gwalior. After returning from the hospital,
he first went to his home to take the elders.
From there, he made a telephone call to
Vineeta's father who lived in Mahoba. He
told me that he had already received the
information and that he was coming
directly to Gwalior. Vineeta is his Chacheri
Bua (father's cousin). She would live with
her Mama (maternal uncle) to take care of
his son because he was mentally retarded.
Amir hails from city. It is not known where
he lives in the city. Amir has been visiting
there for the last two years.

8. It is submitted by learned counsel
for accused-appellant that the accused is in
jail since 22.9.2018. In alternative, it is
submitted that at the most punishment can
be under Section 304 II or Section 304 I of
I.P.C. If the Court feels, as the accused
have been in jail for more than 4 years
without remission, they may be granted
fixed term punishment of incarceration.

9. Learned A.G.A. for the state has
vehemently submitted that facts of this case
will not permit the Court to convert the
sentence to that under Section 304 Part I of
I.P.C. as none of the judgments relied by
the accused-appellant will apply to the facts
of this case.

10. While going through the record it
is very clear that in view of the judgment of
Ankush Shivaji Gaikwad Versus State of
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
Maharashtra, (2013) 6 SCC 770, the
appeal requires to be considered on that
aspect. While going through the facts, the
deceased died out of septicaemial death on
5.1.2016. We, therefore, hold that the death
was a homicidal death. It was the appellant
who was instrumental in commission of the
offence and was the author of the offence.

11. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind about the
guilt of the present appellants.

12. The question which falls for our
consideration is whether, on reappraisal of
the peculiar facts and circumstances of the
case, the conviction of the appellant under
Section 302 of I.P.C. should be upheld or
the conviction deserves to be converted
under Section 304 Part-I or Part-II of the
Indian Penal Code. It would be relevant to
refer 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."
.

13. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
IPC. 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.

14. On overall scrutiny of the facts
and circumstances of the present case
12 All. Mohd. Amir Vs. State of U.P.
1057
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 the offence would
be one punishable under Section 304 part-I
of the IPC.

15. From the upshot of the aforesaid
discussions, it appears that the death caused
by the accused was not premeditated,
accused had no intention to cause death of
deceased,
the
injuries
were
though
sufficient in the ordinary course of nature
to have caused death, accused had no
intention to do away with 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 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.

16. We can safely rely upon the
decision of the Gujarat High court in
Criminal Appeal No.83 of 2008 (Gautam
Manubhai
Makwana
Vs.
State
of
Gujarat) decided on 11.9.2013 wherein the
Court held as under:

"12. In fact, in the case of Krishan vs.
State of Haryana reported in (2013) 3 SCC
280, the Apex Court has held that it is not
an absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused. Where the dying
declaration is true and correct, the
attendant circumstances show it to be
reliable and it has been recorded in
accordance with law, the deceased made
the dying declaration of her own accord
and upon due certification by the doctor
with regard to the state of mind and body,
then it may not be necessary for the court
to look for corroboration. In such cases,
the dying declaration alone can form the
basis for the conviction of the accused. But
where the dying declaration itself is
attended by suspicious circumstances, has
not been recorded in accordance with law
and settled procedures and practices, then,
it may be necessary for the court to look for
corroboration of the same.

13. However, the complaint given by
the deceased and the dying declaration
recorded by the Executive Magistrate and
the history before the doctor is consistent
and seems to be trustworthy. The same is
also duly corroborated with the evidence of
witnesses and the medical reports as well
as panchnama and it is clear that the
deceased died a homicidal death due to the
act of the appellants in pouring kerosene
and setting him ablaze. We do find that the
dying declaration is trust worthy.
14. However, we have also not lost sight of
the fact that the deceased had died after a
month of treatment. From the medical
reports, it is clear that the deceased
suffered from Septicemia which happened
due to extensive burns.

15. In the case of the B.N. Kavatakar
and another (supra), the Apex Court in a
similar case of septicemia where the
deceased therein had died in the hospital
after five days of the occurrence of the
incident
in
question,
converted
the
conviction under section 302 to under
section 326 and modified the sentence
accordingly.

15.1 Similarly, in the case of Maniben
(supra), the Apex Court has observed as
under:
1058 INDIAN LAW REPORTS ALLAHABAD SERIES

"18. The deceased was admitted in the
hospital with about 60% burn injuries and
during the course of treatment developed
septicemia, which was the main cause of
death of the deceased. It is, therefore,
established that during the aforesaid period
of 8 days the injuries aggravated and
worsened to the extent that it led to
ripening of the injuries and the deceased
died due to poisonous effect of the injuries.

19. It is established from the dying
declaration of the deceased that she was
living separately from her mother-in-law,
the appellant herein, for many years and
that on the day in question she had a
quarrel with the appellant at her house. It
is also clear from the evidence on record
that immediately after the quarrel she
along with her daughter came to fetch
water and when she was returning, the
appellant came and threw a burning tonsil
on the clothes of the deceased. Since the
deceased was wearing a terylene cloth at
that relevant point of time, it aggravated
the fire which caused the burn injuries.
20. There is also evidence on record to
prove and establish that the action of the
appellant to throw the burning tonsil was
preceded by a quarrel between the
deceased and the appellant. From the
aforesaid evidence on record it cannot be
said that the appellant had the intention
that such action on her part would cause
the death or such bodily injury to the
deceased, which was sufficient in the
ordinary course of nature to cause the
death of the deceased. Therefore, in our
considered opinion, the case cannot be said
to be covered under clause (4) of Section
300 of IPC. We are, however, of the
considered opinion that the case of the
appellant is covered under Section 304
Part II of IPC."

16. In the present case, we have come
to the irresistible conclusion that the role of
the appellants is clear from the dying
declaration and other records. However,
the point which has also weighed with this
court are that the deceased had survived
for around 30 days in the hospital and that
his condition worsened after around 5 days
and ultimately died of septicemia. In fact he
had sustained about 35% burns. In that
view of the matter, we are of the opinion
that the conviction of the appellants under
section 302 of Indian Penal Code is
required to be converted to that under
section 304(I) of Indian Penal Code and in
view of the same appeal is partly allowed.
17. The conviction of the appellants -
original accused under Section 302 of
Indian Penal Code vide judgment and order
dated 19.12.2007 arising from Sessions
Case No. 149 of 2007 passed by the
Additional Sessions Judge, Fast Track
Court No. 6, Ahmedabad is converted to
conviction under Section 304 (Part I) of
Indian
Penal
Code.
However,
the
conviction of the appellants - original
accused under section 452 of Indian Penal
Code is upheld. The appellants - original
accused are ordered to undergo rigorous
imprisonment for a period of ten years and
fine of Rs. 5000/- each in default rigorous
imprisonment for six months under section
304 (Part I) of Indian Penal Code instead of
life imprisonment and sentence in default
of fine as awarded by the trial court under
section 302 IPC. The sentence imposed in
default of fine under section 452 IPC is
also reduced to two months. Accordingly,
the appellants are ordered to undergo
rigorous imprisonment for a period of ten
years and fine of Rs. 5000/-, in default,
rigorous imprisonment for six months for
offence punishable under section 304(I) of
Indian
Penal
Code
and
rigorous
imprisonment for a period of five years and
fine of Rs. 2,000/-, in default, rigorous
imprisonment for two months for offence
12 All. Mohd. Amir Vs. State of U.P.
1059
punishable under section 452 of Indian
Penal Code. Both sentences shall run
concurrently. The judgement and order
dated 19.12.2007 is modified accordingly.
The period of sentence already undergone
shall be considered for remission of
sentence qua appellants - original accused.
R & P to be sent back to the trial court
forthwith."

17. In latest decision in Khokan@
Khokhan
Vishwas
Vs.
State
of
Chattisgarh, 2021 LawSuit (SC) 80 on
which this court relies wherein the facts
were similar to this case, the Apex Court
has allowed the appeal of the accused
appellant and sentenced under Section 304
of IPC. 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.
Judgments 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. .

18. The factual scenario as it emerges
would go to show that the incident occurred
when the accused came to the place of
incident 100 rupees were demanded which
he had taken from the deceased and there
was a quarrel between the deceased and
accused. At about 9:00 p.m. Balbeer fired
at the deceased and this occurred in spur of
the moment. The evidence goes to show
that it was not a premeditated cold blooded
murder. However, PW-1 did not see the
deceased shooting at the deceased. PW-2,
has turned hostile. Similar is the case with
PW-3. The gun was recovered at the
instance of the accused from a place which
was known only to him.

19. As narrated herein above the
decision of commission of offence under
Section 302 IPC cannot be concurred by us
in view of the As narrated herein above as
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 ( supra) and we are fortified in our
view by the judgment of Apex Court in the
case of B.N. Kavatakar and Another (
supra) and therefore, we are of the
considered opinion that the offence would
be one punishable under Section 304 part-I
of the IPC and not under Section 302 of
IPC or Section 304 Part -II of IPC.

20. 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 antesocial 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
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

21. '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.

22. 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.

23. 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
12 All. Vikram Singh Saini @ Vikaram Saini Vs. State of U.P.
1061
opportunity of reformation in order to bring
them in the social stream.

24. Since the learned counsel for the
appellant has later not pressed the appeal
on merit, however, after perusal of entire
evidence on record and judgment of the
trial court, we consider that the appeal is
required to be partly allowed.

25. 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.

26. On the overall scrutiny of the facts
and circumstances of the case coupled with
medical evidence and the opinion of the
Medical Officer and considering the principles
laid down by the Courts in above referred case
laws, we are of the considered opinion that in
the case at hand, the offence would be
punishable under Section 304 (Part-I) of IPC.

Punishment:

27. The accused is in jail since 22.9.2018.
The Apex Court in such cases has converted the
conviction under Section 302 of I.P.C. to under
Section 304 Part I of I.P.C. which will come to
the aid of the accused-appellant.

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

29. The punishment under Sections 354
IPC cannot be sustained. The punishment under
Section 452 IPC cannot be sustained as no
ingredients are proved and judgment qua the
said is upturned. Offence under Section 302
IPC is converted into Section 304 Part-I IPC
and 7 years rigorous imprisonment is awarded.
The compensation from Rs. 5 Lacs as fine is
reduced to Rs. 3 Lacs which would be
compensation under Section 354 to be paid to
the legal heirs of the deceased. Appellant shall
undergo one and half year simple imprisonment
in case of default of fine.

30. Record and proceedings be sent
back to the Court below forthwith. The fine
if he has yet not deposited, will deposit
same within four weeks from the date of
release from jail. The jail authority shall see
that the accused-appellant is lodged in the
jail to re-incarcerate for the default period
if fine is not paid after he is released.

31. Let a copy of this judgment along
with the trial court record be sent to the Court
and Jail Authorities concerned for compliance.

32. This Court is thankful to learned
Advocates for ably assisting the Court.
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(2022) 12 ILRA 1061
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Criminal Appeal No. 8461 of 2022

Vikram Singh Saini @ Vikram Saini
 ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant: