# Naresh & Anr v. State of U.P. Opp. Party

- **Citation:** (2022) 10 ILRA 403
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-21
- **Case number:** Crl. Appeal No. 7516 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naresh-anr-v-state-of-u-p-opp-party-47733
- **Pages:** 9

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 313 & 374 - Indian
Penal Code, 1860 - Sections 299, 300,
302, 304-B, 304 part - I & 304 part - II -
Dowry Prohibition Act,1961 - Section -
3/4 - Indian Evidence Act, 1872 - Section -
32 : - Criminal Appeal - Conviction & Sentence -
Life imprisonment - quantum of punishment -
offence of murder - FIR - informant alleged that
his daughter was married with accused husband
two year ago whom along with his parents
404 INDIAN LAW REPORTS ALLAHABAD SERIES
ablaze her daughter by pouring kerosene oil for
not giving additional demand of dowry and in
course of treatment she was died due to
septicaemia shock - distinction between 'murder'
and 'culpable homicide' - court finds that
offence is not punishable under section 302 but
is culpable under section 304 (part-I) of IPC -
quantum of sentence is too harsh - imposition of
appropriate punishment - undue harshness
should be avoided taking into account the
reformative approach underlying in criminal
justice
system
-
accused
appellants
are
convicted for the offence punishable under
section 304 (part-I) of IPC - criminal appeal
partly allowed - order accordingly.(Para - 12, 27,
28, 29, 30)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 313 & 374 - Indian
Penal Code, 1860 - Sections 299, 300,
302, 304-B, 304 part - I & 304 part - II -
Dowry Prohibition Act, 1961 - Section -
3/4 - Indian Evidence Act, 1872 - Section -
32: - Criminal Appeal - Conviction & Sentence -
Life imprisonment - offence of murder - Dying
declaration - principle for accepting dying
declaration - dying declaration could have been
acted
U.P.on
as
there
is
no
material
contradictions in the same - when taken in, it
should be taken in totality. (Para - 14, 15)

Appeal Partly allowed. (E-11)

List of Cases cited:

## Text

10 All. Naresh & Anr. Vs. State of U.P.
403

42. It is also pertinent to say that as far as
question of process of autopsy on the body of
the deceased is concerned, it is a scientific
examination to ascertain cause of death of the
deceased but the question regarding the
probable time of death in the autopsy report, is
merely an opinion of the Doctor, which falls
within the ambit of Section 45 of the Evidence
Act.

43. P.W.-4, Dr. K.K. Gupta, has himself
stated in his statement that the exact time of the
death cannot be fixed in the post mortem report;
time of death 1/3 day is proximate one.
Likewise, time of alleged incident in the First
Information Report is 15 proximate , because
the word ''Lagbhag' (about) has been noted in
the First Information Report.

44. Learned trial Court has given its
verdict with regard to conviction and sentence
in view of the material on record and at this
stage, we do not find the impugned judgment
and order is based on surmises or false
assumptions and the learned trial Court does not
appear to have erred in appreciation of evidence
on record.

45. With regard to final disposal of appeal
it is submitted that it will take time, we find this
submission as inconsequential because the
instant
appeals
on
behalf
of
the
appellants/applicants having been filed in the
year, 2019, considering the backlog of the
appeals in this Court, it is true that the disposal
of present appeals would take time but merely
because of above factor, the appellant/
applicants cannot be granted bail.

46.

Having
due
regard
to
the
aforementioned
discussion,
prosecution
evidence and manner in which the alleged
incident
has
occurred,
accused/appellant/
applicants have failed to persuade us to disagree
with the trial Court judgment and order that it is
perverse and suffers from illegalities in the
findings arrived at by the learned trial court.
Thus, we do not find the accused/appellant/
applicants entitled to obtain bail, as such, all the
aforesaid bail applications, as well as, Jail
Appeal No. 151 of 2019, are liable to be
rejected and is accordingly rejected.

Order on Appeal

Office to prepare Paper book, if not
prepared.

List this appeal on its turn.
----------
(2022) 10 ILRA 403
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.09.2022

BEFORE

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

Crl. Appeal No. 7516 of 2017

Naresh & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Rajendra Kumar, Sri Bhagwan Singh Yadav,
Sri Mahesh Prasad Yadav, Sri Shiv Badan, Sri Raj
Kumar Sharma

Counsel for the Opp. Party:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 313 & 374 - Indian
Penal Code, 1860 - Sections 299, 300,
302, 304-B, 304 part - I & 304 part - II -
Dowry Prohibition Act,1961 - Section -
3/4 - Indian Evidence Act, 1872 - Section -
32 : - Criminal Appeal - Conviction & Sentence -
Life imprisonment - quantum of punishment -
offence of murder - FIR - informant alleged that
his daughter was married with accused husband
two year ago whom along with his parents
404 INDIAN LAW REPORTS ALLAHABAD SERIES
ablaze her daughter by pouring kerosene oil for
not giving additional demand of dowry and in
course of treatment she was died due to
septicaemia shock - distinction between 'murder'
and 'culpable homicide' - court finds that
offence is not punishable under section 302 but
is culpable under section 304 (part-I) of IPC -
quantum of sentence is too harsh - imposition of
appropriate punishment - undue harshness
should be avoided taking into account the
reformative approach underlying in criminal
justice
system
-
accused
appellants
are
convicted for the offence punishable under
section 304 (part-I) of IPC - criminal appeal
partly allowed - order accordingly.(Para - 12, 27,
28, 29, 30)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 313 & 374 - Indian
Penal Code, 1860 - Sections 299, 300,
302, 304-B, 304 part - I & 304 part - II -
Dowry Prohibition Act, 1961 - Section -
3/4 - Indian Evidence Act, 1872 - Section -
32: - Criminal Appeal - Conviction & Sentence -
Life imprisonment - offence of murder - Dying
declaration - principle for accepting dying
declaration - dying declaration could have been
acted
U.P.on
as
there
is
no
material
contradictions in the same - when taken in, it
should be taken in totality. (Para - 14, 15)

Appeal Partly allowed. (E-11)

List of Cases cited:

1. Govindappa & ors. Vs St. of Karn. (2010 vol.
6 SCC 533),

2. Gautam Manubhai Makwana Vs St. of Guj.
(Criminal Appeal NO. 83/2008 decided on
11.09.2023),

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

4. Anversinh Vs St. of Gujr. (2021 vol 3 SCC 12),

5. Parvat Chandra Mohanty Vs St. of Odisha
(2021 vol. 3 SCC 529),

6. Pardeshiram Vs St. of M.P. (2021 vol. 3 SCC
238),
7. Tukaram & ors. Vs St. of Mah.(2011 vol 4 SCC
250),

8. B N Kavatakar & anr. Vs St. of Karn.(1994
SU.P.pl. (1) SCC 304),

9. Veeran & ors. Vs St. of M.P. (2011 vol 5 SCR
300),

10. Mohd. Giasuddin Vs St. of A.P. (AIR 1977 SC
1926),

11. Deo Narain Mandal Vs St. of U.P. (2004 vol 7
SCC 257),

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

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

14. Guru Basavraj Vs St. of Karn. (2012 vol 8
SCC 734),

15. Sumer Singh Vs Surajbhan Singh (2014 vol
7 SCC 323),

16. St. of Punj. Vs Bawa Singh (2015 vol 3 SCC
441),

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

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Nalin
Kumar Srivastava, J.)

1. Present criminal appeal challenges
judgment and order dated 26.10.2017
passed by the Additional Sessions Judge
(Fast Track Court), Hamirpur, in Sessions
Trial No.27 of 2014 whereby the learned
Additional Sessions Judge has convicted
the accused-appellants, Naresh & Smt.
Rajjan for commission of offence under
Section 302 of Indian Penal Code, 1860
(for short 'IPC') and sentenced them to
undergo imprisonment for life with fine of
Rs.20,000/- and in case of default in
payment of fine, further to undergo two
year simple imprisonment.
10 All. Naresh & Anr. Vs. State of U.P.
405

2. Accused-appellant, Naresh, is in
jail since 31.10.2013 and Smt. Rajjan is in
jail since 26.10.2017.

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

4. Brief facts as culled out from the
record are that the mother of the deceased
lodges an F.I.R. on 20.10.2013 at about
9.30 a.m. against the accused-appellants
and two other family members which is
registered as Case Crime No.940 of 2013
under Sections 498A & 307 of Indian Penal
Code and Section 3/4 of Dowry Prohibition
Act at P.S. Maudaha, District Hamirpur. In
the F.I.R. it is alleged that the daughter of
the informant namely Rinki was married
with accused-appellant No.1, Naresh, two
years' ago and the in-laws were given
sufficient dowry but after two years of
marriage the appellants and other coaccused persons started demanding Rupees
Two Lakhs as additional dowry and in the
course of said demand on 16.10.2013 they
set her daughter ablaze by pouring
kerosene oil. She was admitted in the
Hospital
by
the
neighbors.
During
treatment, the deceased breathed her last on
4.11.2013 due to septicemic shock.

5. On investigation being put into
motion, the investigating officer recorded
the statements of all the witnesses and
submitted the charge-sheet to the learned
Magistrate
against
accused
Naresh,
Ramadheen and Smt. Rajjan under Sections
498A, 304B of IPC and Section 3/4 of
Dowry Prohibition Act.

6. The learned Magistrate summoned
the accused and committed the case to the
Sessions Court as the offences alleged to
have been committed were triable by the
Sessions Court. The learned Sessions Judge
has framed the charges against the above
accused under Sections Sections 498A,
304B of IPC and Section 3/4 of Dowry
Prohibition Act and additional charge under
Section 302 of IPC.

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

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

1
Budhiya
PW1
2
Ramroop
PW2
3
Lallu
PW3
4
Musaram Tharu
PW
5
Smt. Savitri
PW5
6
Laxmi Prasad
PW6
7
Rubi
PW7
8
Rahim Bax
PW8
9
Dr. R.S. Prajapati PW9
10
Dhananjay Singh PW 10

9. In support of ocular version
following documents were filed and
proved:

1
F.I.R. & G.D.
Ex.Ka.8 & Ex.
Ka.9
2
Written Report Ex.Ka.1
3
Recovery memo Ex. Ka.12
4
Postmortem
Report
Ex.Ka.13
5
Panchayatnama Ex.Ka.2
406 INDIAN LAW REPORTS ALLAHABAD SERIES
6
Dying
Declration
Ex. Ka. 7
7
Charge-sheet
Ex. Ka.15
8
Site Plan
Ex.Ka.10

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

11. It is submitted by learned counsel
for the appellant that the incident occurred
on the spur of moment and the accused had
not premeditated to do away with the
deceased and the death was after couple of
days. The cause of death according to
doctor who conducted the postmortem of
deceased was septicemia.

12. It is further submitted that
conviction under Section 302 IPC is not
made out as no overt act as per Section 300
IPC is made out. In alternative, it is
submitted that at the most, the death can be
homicidal death not amounting to murder
and punishable under Section 304 II or
Section 304 I of I.P.C. If the Court decides
that the accused is guilty under Section 302
of IPC, then the accused may be granted
fixed term punishment of incarceration as
the death is not a gruesome act on part of
accused.

13. Learned counsel for the State has
submitted that though it is septicemic
death, the dying declaration and evidence
of other prosecution witnesses will not
permit this Court to show any leniency in
the matter. It is further submitted by
learned A.G.A. that ingredients of Section
300 of IPC are rightly held to be made out
by the learned Sessions Judge who has
applied the law to the facts in case.

14. In the light of the decision in
Govindappa and others Versus State of
Karnataka, (2010) 6 SCC 533, there is no
reason for us not to accept the dying
declaration recorded by the Magistrate and
its evidentiary value under Section 32 of
Evidence Act, 1872.

15. Principle for accepting dying
declaration will permit us to concur with
the finding of the learned Sessions Judge
that dying declaration could have been
acted upon as there is no material
contradictions in the dying declaration. The
dying declaration when taken in its totality
goes to show that the husband and motherin-law of deceased had set her ablaze.

16. While considering the evidence of
witnesses and the Postmortem report which
states that the injuries on the body of the
deceased would be the cause of death and
that it was was homicidal death, we concur
with this finding of the Court below. She
died after several days out of septicemic
death and, therefore, we are convinced that
it is homicidal death but, it would be seen
whether it is homicidal death punishable
under Section 302 or Section 304 Part I or
Part II of IPC?

17. 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."
10 All. Naresh & Anr. Vs. State of U.P.
407

18. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
loose sight of the true scope and meaning
of the terms used by the legislature in these
sections, and allow themselves to be drawn
into minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
is to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A
person
commits culpable
homicide if the
act by which the
death is caused is
done-
Subject
to
certain
exceptions
culpable
homicide is murder 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.

19. 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
408 INDIAN LAW REPORTS ALLAHABAD SERIES
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:

"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
10 All. Naresh & Anr. Vs. State of U.P.
409
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
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."

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

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

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

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

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

25. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
rehabilitary & reformative aspects in
sentencing it has been observed by the
Supreme Court:

"Crime is a pathological aberration.
The criminal can ordinarily be redeemed
and the state has to rehabilitate rather than
avenge. The sub-culture that leads to 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."

26. 'Proper Sentence' was explained in
Deo Narain Mandal Vs. State of UP
[(2004) 7 SCC 257] by observing that
Sentence should not be either excessively
harsh
or
ridiculously
low.
While
determining the quantum of sentence, the
court should bear in mind the 'principle of
proportionality'. Sentence should be based
on facts of a given case. Gravity of offence,
manner of commission of crime, age and
sex of accused should be taken into
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

27. In Ravada Sasikala vs. State of A.P.
AIR 2017 SC 1166, the Supreme Court
referred the judgments in Jameel vs State
of UP [(2010) 12 SCC 532], Guru
Basavraj vs State of Karnatak, [(2012) 8
SCC 734], Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323], State of
Punjab vs Bawa Singh, [(2015) 3 SCC
441], and Raj Bala vs State of Haryana,
[(2016) 1 SCC 463] and has reiterated that,
in operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would 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
10 All. Randhir Singh Gautam & Anr. Vs. The State of U.P. & Ors.
411
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

28. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

29. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

30. Therefore, accused-appellants are
convicted for the offence punishable under
Section 304 (Part I) of IPC and sentenced
to period undergone. The fine is reduced to
Rs.10,000/-. The accused-appellants be set
free if not warranted in any other offence.
The fine if they have yet not deposited, will
deposit the same within four weeks from
the date of release from jail. The jail
authority shall see that the accusedappellants are lodged in the jail to reincarcerate for the default period if fine is
not paid after they are released.

31. In view of the above, both the
criminal appeals are partly allowed. Record
and proceedings be sent back to the Court
below forthwith.
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(2022) 10 ILRA 411
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.08.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 903 of 2022

Randhir Singh Gautam & Anr.
 ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Kunwar Bhaskar Parihar, Sri R.K, Ojha (Sr.
Adv.)

Counsel for the Respondents:
C.S.C, Smt. Archana Singh, Sri Bipin Bihari
Pandey