# Mohd. Azeem & Ors v. State of U.P

- **Citation:** (2023) 5 ILRA 964
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-01
- **Case number:** Criminal Appeal No. 1566 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-azeem-ors-v-state-of-u-p-50427
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 302, 304B/34
-
Challenge
to-Conviction-homicidal
death-In-laws set the deceased ablaze by
pouring kerosene oil-deceased died due to
septecimia-The
dying
declaration
mentions, the presence of the two women
which developed the cause of the death
occurred due to burning-two brothers can
not
convict
on
the
basis
of
dying
declaration as there is no demand of
dowry
immediately
prior
to
the
commission
of
incident-The
incident
occurred on the spur of the moment when
the
deceased
was
being
abused
by
mother-in-law
and
jethani-the
main
culprits have undergone 12 years of
incarceration, hence they would be freed
on completing 10 years-More so, role of
the other two accused is not proved, the
husband took deceased to the hospital
and brother-in-law is not even named in
dying declaration, they are acquitted.
(Para 1 to 34)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

964 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

25. 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.

26. 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.

27. Therefore, we convert the
sentence of 'life imprisonment' to period
undergone for both accused appellants.
Fine is reduced to Rs.5,000/- under Section
304
IPC
and
default
sentences
are
maintained. The accused-appellants be set
free if not wanted in any other case.
However, if fine is not paid, the default
sentence will run after the completion of
9th year.

28. In view of the above, both the
appeals are partly allowed. Judgment and
order passed by the learned Sessions Judge
shall stand modified to the aforesaid extent.
The records be transmitted to court below
forthwith.
----------
(2023) 5 ILRA 964
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.05.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 1566 of 2011

Mohd. Azeem & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sushil Shukla, Sri A.K. Srivastava, Sri Mohd.
Faiz, Sri Shiv Narain Singh
5 All. Mohd. Azeem & Ors. Vs. State of U.P.
965
Counsel for the Respondent:
G.A., Sri Mohd. Asif, Sri N.I. Jafri

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 302, 304B/34
-
Challenge
to-Conviction-homicidal
death-In-laws set the deceased ablaze by
pouring kerosene oil-deceased died due to
septecimia-The
dying
declaration
mentions, the presence of the two women
which developed the cause of the death
occurred due to burning-two brothers can
not
convict
on
the
basis
of
dying
declaration as there is no demand of
dowry
immediately
prior
to
the
commission
of
incident-The
incident
occurred on the spur of the moment when
the
deceased
was
being
abused
by
mother-in-law
and
jethani-the
main
culprits have undergone 12 years of
incarceration, hence they would be freed
on completing 10 years-More so, role of
the other two accused is not proved, the
husband took deceased to the hospital
and brother-in-law is not even named in
dying declaration, they are acquitted.
(Para 1 to 34)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Pushpa Devi Vs St. of U.P. CRLA No. 1689 of
2017

2. Smt. Kiran & anr. Vs St. of U.P. CRLA No.
2218 of 2018

3. Girish Singh Vs St. of U.K. (2020) 18 SCC 423

4. Satbir Singh Vs St. of Har. (2021) 6 SCC 1

5. Govindappa & ors. Vs St. of Karn. (2010) 6
SCC 533

6. Veerla Satyanaranyana Vs St. of A.P. (2009)
16 SCC 316

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

8. B.N. Kavatakar & anr. Vs St. of Karn. (1994)
SUPP 1 SCC 304
9. Veeran & ors. Vs St. of M.P.(2011) 5 SCC 300

10. Bengai Mandal @ Begai Mandal Vs St. of
Bih.

11. Chirra Shivraj Vs St. of A.P.

12. Smt. Rama Devi @ Ramakanti Vs St. of U.P.

13. Mohd. 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 Dr. Kaushal
Jayendra Thaker, J.)

1. Heard learned counsel for the
appellants and learned A.G.A. for the state.

2. This appeal challenges the
judgment and order dated 05.03.2011
passed by Addl. Sessions Judge/Special
Judge (Anti-corruption), Bareilly in Session
Trial No. 301 of 2001 (State v. Mohd.
Azeem and others). All the appellants were
charged for offences as defined under
Section 304-B IPC and in addition and
alternatively, the appellant Nos.3 & 4 were
charged for commission of offence as
defined in Section 302 IPC also. By the
judgment & order dated 05.03.2011 passed
966 INDIAN LAW REPORTS ALLAHABAD SERIES
by Additional Sessions Judge/Special Judge
(Anti-corruption), Bareilly, the appellants
have been convicted under Sections 304-B
read with Section 34 IPC. The appellant
nos.3 & 4 have also been convicted under
Section 302 IPC but the punishment at the
end except mentioning Section 302 IPC,
the punishment of all appellants were
convicted under Section 304B read with
Section 34 of IPC. The appellant nos. 3 & 4
have been sentenced to life imprisonment
whereas appellant nos. 2 & 3 have been
sentenced
to
10
years
of
rigorous
imprisonment.

3. Brief facts as culled out from the
record are that on 18.07.2000 at about 8:00
p.m. sister of the informant was burnt to
death after pouring kerosene oil and by
being set ablaze by the accused. The
accused persons fled away with injured
Shakira (deceased) from Bareilly and,
lastly, when he came to the hospital, where
his sister was lying in a burnt up condition,
none of family members from the side of
her in-laws were present. The informant
finally raised the inference about the
commission of the act perpetrated by
accused persons in furtherance of their
common object
of doing
away
the
deceased. The
victim
also
told
the
informant that the appellants had burnt her
by pouring kerosene oil.

4. The accused were summoned and
charges were framed by learned Additional
Sessions Judge on Mohmad Azeem and
Mohmmad Idrris whereas all four accused were
charged with commission of offence under
Sections 302, 304-B IPC read with Section of
I.P.C.. The accused-persons pleaded not guilty
and wanted to be tried. The offences for which
accused were charged were triable by the Court
of Sessions, hence, the accused-appellants were
committed to the Court of Sessions.

5. The Trial started and the
prosecution examined 10 witnesses who are
as follows:

1
Jisan Khan
PW1
2
Dr. A.K. Agarwal
PW2
3
Mohd.
Mobeen
Khan
PW3
4
Dr. K.S. Gupta
PW4
5
Dr. S.K. Saxena
PW5
6
Raja Ram
PW6
7
Mohd. Siddique
PW7
8
Raghubanshi Lal
PW8
9
Bhupendra Singh
PW9
10
Dr. P.N. Pandey
PW10

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

1
First Information Report
Ex.Ka.13
2
Written Report
Ex.Ka.1
3
Recovery
momo
of
Kerosene Oil Lamp and
half burn Sofa
Ex.Ka.17
4
Note of Dr. A.K. Agarwal
Ex.Ka.2
5
Statement of Smt. Shakira
(dying declaration)
Ex. Ka.4
6
Note of Dr. A.K. Agarwal
Ex.Ka.3
7
Post mortem report
Ex. Ka.5
8
Site plan with index
Ex.
Ka.16

7. Should a husband and brother-inlaw always be held to have been guilty of
demanding dowry and the punished even
though there may not be any allegation
leveled against them by the deceased wife
5 All. Mohd. Azeem & Ors. Vs. State of U.P.
967
in her dying declaration where husband
was not present when incident occurred and
took her to hospital to save her. The brother
in-law's name nowhere figured in the dying
declaration. A completely concocted story
was made out by family members of
deceased. This is a glaring case where there
is not only miscarriage of justice, but there
is overzeal of judge to see that the accused
are punished. The learned Judge has
devoted more than 80 pages when the
matter could have been disposed of, in
brevity on the basis of dying declaration of
the injured who died after a period of 10
days, wherein a dying declaration, there
was no mention that the husband or brother
in had set her ablaze. In dying declaration it
is mentioned that it was the husband, who
had after the incident occurred rushed
home from his shop between the women of
the house and had taken her to the hospital
and got her treated. The brother-in-law was
unfortunately not even named in the dying
declaration. The learned Judge had relied
on the dying declaration even reproducing
the same in the judgment and we are
convinced that the learned Judge in his
overzeal to record conviction has mislead
himself into non-observing the tenants and
contours of criminal jurisprudence for
appreciating evidence when it was grossly
pointed out before the learned Judge that
the oral evidence by the brother of the
deceased, who is involved in the several
criminal crimes which has been brought on
record. During his cross examination, who
has disturbed married life, his testimony
which is dimetrically opposite to dying
declaration could have been accepted by
the learned Judge. The dying declaration
nowhere mentions that any amount was
demanded either by the ladies of the family
or the husband. The omnibus allegations by
person whose credence is not worthy of
credence has been elaborately discussed by
the court below while holding that Section
304-B I.P.C is made out against all the
accused.

8. The learned Additional Sessions
Judge has convicted the accused-appellants
as above.

9. Learned counsel for the appellants
has relied on the decisions of the Division
Bench of this Court passed in Criminal
Appeal No. 1689 of 22017 (Pushpa Devi v.
State of U.P.) decided on 05.07.2022 and
in Criminal Appeal No.2218 of 2018 (Smt.
Kiran and another v. State of U.P.)
decided on 29.11.2022 and has contended
that there is faulty charge and the charge
could not have been re-framed after the
examination of witnesses of prosecution
side, who did not support the prosecution.
This is the contention of the learned
counsel for the appellant, and in the
alternative, it is submitted that this is a case
which does not go beyond Section 304 Part
I or Part II of IPC. There was no intention
of the accused to do away with the
deceased. It is submitted that the death was
due to septicemia after 10 days of incident
as per the testimony of P.W.1 also that
deceased died after 10 days of incident.

10. Learned counsel for the appellants
has submitted that the deceased died due to
burn
injuries
which
she
sustained
accidentally while cooking food. While
going through the dying declaration and the
postmortem report, we cannot accept the
submission of counsel for the accusedappellants that it was an accidental death.

11. As against this, learned A.G.A. for
the State has contended that the dying
declaration is believable and, therefore, the
learned Judge has not committed any error
or there is no error which calls for
968 INDIAN LAW REPORTS ALLAHABAD SERIES
interference by this Court in this appeal.
Moreover, looking to the gruesomeness of
the offence and the evidence of prosecution
witnesses, this Court should not show any
leniency in the matter. It is further
submitted
by
learned
A.G.A.
that
ingredients of Section 304B of IPC are
rightly held to be made out by the learned
Sessions Judge who has applied the law to
the facts in case.

12. We have considered the evidence
of witnesses and the Postmortem report
which states that the burn injuries on the
body of the deceased developed into
septecimia and that was the cause of death
and that it was homicidal death, we concur
with the finding of the Court below that it
was homicidal death.

13. The dying declaration mentions,
the presence of the two women which
developed which caused the death occurred
due to septicaemia death and, therefore,
homicidal death is established.

14. This takes us to the fact whether
we can convict the two brothers, namely,
Mohd. Azeem and Mohd. Idris. The
accused even on basis of dying declaration
presence is not established will have to be
acquitted as there is no demand of dowry
immediately prior to the commission of the
incident.
The
dying
declaration
categorically
states
that
the
incident
occurred on the spur of the moment when
the deceased was being abused by motherin-law and sister-in-law (jethani). The
allegations
required
conviction
under
Section 304-B I.P.C. have been reiterated
Girish Singh v. State of Uttarakhand,
(2020)
18
SCC
423. The
essential
ingredients have again being reiterated in
Satbir Singh v. State of Haryana, (2021) 6
SCC 1.

15. The prosecution, defence and
guidelines prescribed in Satbir Singh
(supra) have to be seen in our case. Section
133-B evidence could not have been
invoked by learned Judge and pand under
Section 106 Evidence Act could not have
been invoked.

16. The learned Judge accepted the
dying declaration which is silent about any
overt act on part of the any of the accused.
The accused cannot be convicted for
Section 304-B I.P.C. on the oral testimony
of the witnesses whose presence is not
established. The deceased had remained in
treatment for about 10 days, the dying
declaration has been relied by the learned
Judge by relying on catena of decisions.

17. Hence we cannot concur with the
learned Judge as far as the dowry death is
concerned, qua any of the accused. There is
no evidence to prove that deceased was
subjected by anyone to cruelty pursuant to
demand of dowry ingredients of Section
304-B are absent. The presumption raised
by learned Judge falls to the ground on the
basis of the dying declaration, we are
fortified in our view by the judgment of
Girish Singh (supra)

18. We are of the considered opinion
that the learned Judge has not committed
any error in relying on the dying
declaration. In the light of the decision in
Govindappa and others Vs. State of
Karnataka, (2010) 6 SCC 533, there is no
reason for us not to accept the dying
declaration. The evidentiary value of dying
declaration under Section 32 of Evidence
Act, 1872 is proved. The contention of the
counsel that it was an accidental death
arising out of accidental burning during
cooking in the house has not been accepted
by trial court and we have concurred with
5 All. Mohd. Azeem & Ors. Vs. State of U.P.
969
the same. We are of the view that it was a
homicidal death and not accidental death.

19. On 18.07.2000, the brother of the
deceased who is shown as PW1. In this
case, on whose testimony the learned Judge
has heavily relied on the ocular version is
the contrary to the evidence on record. He
has categorically mentioned that he went to
the hospital at Bareilly and his sister was
admitted in Hospital and the nurse was
looking after her. The oral dying as
declaration narred by the brother is
absolutely doubtful and is contrary to the
written proved dying declaration of the
deceased. Could the learned Judge have
relied on this oral dying declaration which
is admittedly absent in written dying
declaration of the deceased. Even if the
said evidence is accepted, it cannot be said
that brother-in-law or the husband who
were instrumental in causing the incident is
accepted
by
this
witness
his
cross
examination. He has accepted that he has
strained matrimonial life he was an accused
fin
case
involving
smack
which
a
contraband. We are not concerned with
these facts but this shows the character of
the witness who even does not know place
where his sister was being treated.

20. This takes us to the next question
whether it was a perpetrated murder with
common object of doing away with
deceased or would it fall within any of the
exceptions to Section 300 of IPC?

21. Section 34 of Indian Penal Code
reads as follows:

"Section 34 in The Indian Penal Code.
[34. Acts done by several persons in
furtherance of common intention. --When a
criminal act is done by several persons in
furtherance of the common intention of all,
each of such persons is liable for that act in
the same manner as if it were done by him
alone.]"

22. Can it be said that there was
common objecting doing away with the
deceased. The husband and the brother-inlaw were not present at the place of the said
incident which leaves us with act of two
ladies.

23. It cannot be said that there was
any common object of doing away with the
deceased. Therefore, the conviction with
the aid of Section 34 is set aside. The
principles to invoke Section 34 and Section
304-B of IPC have not been made out as
per Judgment of Supreme Court in Veerla
Satyanarayana
v.
State
of
Andhra
Pradesh, (2009) 16 Supreme Court Cases
316.

24. It would be relevant to refer to
Section 299 of the Indian Penal Code,
which reads 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."

25. 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
970 INDIAN LAW REPORTS ALLAHABAD SERIES
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 if 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.

26. It is an admitted position of fact
that the death was due to septicemia and
had occurred after 10 days of incident. The
accused-appellants are husband, brother-inlaw (jeth) and sister-in-law (jethani) of the
deceased. The accused-appellants are in jail
for more than 10 years and requesting for
lesser sentence. Hence, on overall scrutiny
of the facts and circumstances of the
present case coupled with the opinion of
the Medical Officer and considering the
principles 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 & Veeran and
others Vs. State of M.P. Decided, (2011) 5
SCR 300, 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 II) of I.P.C. We are also fortified in
our view by the decisions relied upon by
learned Counsel for the appellants in
Bengai Mandal alias Begai Mandal vs.
State of Biha, Chirra Shivraj vs. State of
Andhra Pradesh, Smt. Rama Devi alias
Ramakanti vs. State of U.P. &b Smt.
Kanti and Another vs. State of U.P.
(Supra).

27. It is now to be seen as to what
would be the quantum of sentence for the
two ladies. In this regard, we have to
analyse the theory of punishment prevailing
in India.

28. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
rehabilitary & reformative aspects in
5 All. Mohd. Azeem & Ors. Vs. State of U.P.
971
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
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."

29. '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.

30. 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
972 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

31. 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.

32. 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.

33. Therefore, accused-persons are
punished under Section 304 (Part II) of
IPC. As far as the main culprits namely
Smt. Azzo Bano & Ajaib Bano @ Jabbo
and Smt. Razia Begum, are concerned, they
have undergone 12 years of incarceration,
hence, we hold that on completing 10
years, they would be freed. Fine not paid be
adjusted towards default sentence which is
3 months starting after 10th year of
incarceration. As far as the other two
accused namely Mohd Azeem and Mohd
Idris are concerned, their role in the above
incident is not proved. The husband took
deceased to Hospital. The brother in-law is
not even named in dying declaration, they
are acquitted. They need not surrender if
released on bail pursuant to order not
warranted in any other offence.

34. In view of the above, the appeal
is partly allowed. Judgment and order
passed by the learned Sessions Judge
shall stand modified to the aforesaid
extent. Record be sent back to the Trial
Court forthwith.

35. The accused are ordered to be
released on bail on 11.4.2023, they need
not surrender, but if yet not released, they
be released forthwith.
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(2023) 5 ILRA 972
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.03.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Appeal No. 2942 of 2012
with
Criminal Appeal No. 7154 of 2011

Iliyas ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Ravinda Prakash Srivastava, Sri Gaurav
Kumar Shukla, Sri Shesh Narain Mishra, Sri
Surendra Kumar Tiwari, Sri Prashant Kumar, Sri
Gopal Das Srivastava

Counsel for the Respondent:
Govt. Advocate