# Pawan v. State of U.P

- **Citation:** (2022) 12 ILRA 1012
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-29
- **Case number:** Criminal Appeal No. 2964 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-v-state-of-u-p-47955
- **Pages:** 9

## Headnote

Criminal Law- Indian Evidence Act, 1972-
Section 154- Evidence of a hostile witness
cannot be discarded as a whole, and
relevant
part
thereof,
which
are
admissible in law, can be used by
prosecution or the defence.

Settled law that the part of the testimony of a
hostile witness which is relevant and admissible
can be used.

Indian Evidence Act, 1972 - Section 32-
Dying Declaration- In case the court
comes to the conclusion that the dying
declaration is true and reliable, has been
recorded by a person at a time when the
deceased was fit physically and mentally
to make the declaration and it has not
been
made
under
any
tutoring/duress/prompting; it can be the
sole basis for recording conviction. In
such an eventuality no corroboration is
required. In order to pass the test
reliability, a dying declaration has to be
subjected to a very close scrutiny, keeping
in view the fact that the statement has
been made in the absence of the accused,
who had no opportunity of testing the
veracity of the statement by crossexamination-The hostility of the witnesses
of fact cannot demolish the value and
reliability of the dying-declaration of the
deceased which has been proved by the
prosecution in accordance with law and is
a truthful version of the incident that
occurred and the circumstances leading to
her death. It is admitted fact that
deceased survive for nine days after the
date of occurrence, therefore, truthfulness
of the dying declaration can further be
evaluated from the fact that she was in fit
condition to make the statement at the
relevant time and in dying declaration she
had not unnecessarily involved other
family members of accused-appellant.

Notwithstanding the hostility of the prosecution
witnesses dying declaration can be solely relied
upon for convicting the accused, without
seeking further corroboration, where the dying
declaration is found to be truthful, legally
admissible and inspires the confidence of the
Court.

Doctrine of Proportionality- 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'.

As the judicial trend in our country is
reformative and not retributive hence the period
of incarceration undergone by the accused
would be a relevant factor in imposing the
punishment.

Criminal Appeal partly allowed. (E-3)
(Para 18, 21, 23, 25, 26, 27, 28, 34)

Case Law/ Judgements relied upon:-
12 All. Pawan Vs. State of U.P.
1013

## Text

1012 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 12 ILRA 1012
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2022

BEFORE

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

Criminal Appeal No. 2964 of 2014
with
Criminal Appeal No. 2965 of 2014

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

Counsel for the Appellant:
Sri Sanjay Singh, Sri Amrendra Nath Rai, Sri
Manoj Kumar Srivastava, Sri Pradeep Saxena, Sri
Sandeep Kumar Rai, Sri Shams Uz Zaman

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1972-
Section 154- Evidence of a hostile witness
cannot be discarded as a whole, and
relevant
part
thereof,
which
are
admissible in law, can be used by
prosecution or the defence.

Settled law that the part of the testimony of a
hostile witness which is relevant and admissible
can be used.

Indian Evidence Act, 1972 - Section 32-
Dying Declaration- In case the court
comes to the conclusion that the dying
declaration is true and reliable, has been
recorded by a person at a time when the
deceased was fit physically and mentally
to make the declaration and it has not
been
made
under
any
tutoring/duress/prompting; it can be the
sole basis for recording conviction. In
such an eventuality no corroboration is
required. In order to pass the test
reliability, a dying declaration has to be
subjected to a very close scrutiny, keeping
in view the fact that the statement has
been made in the absence of the accused,
who had no opportunity of testing the
veracity of the statement by crossexamination-The hostility of the witnesses
of fact cannot demolish the value and
reliability of the dying-declaration of the
deceased which has been proved by the
prosecution in accordance with law and is
a truthful version of the incident that
occurred and the circumstances leading to
her death. It is admitted fact that
deceased survive for nine days after the
date of occurrence, therefore, truthfulness
of the dying declaration can further be
evaluated from the fact that she was in fit
condition to make the statement at the
relevant time and in dying declaration she
had not unnecessarily involved other
family members of accused-appellant.

Notwithstanding the hostility of the prosecution
witnesses dying declaration can be solely relied
upon for convicting the accused, without
seeking further corroboration, where the dying
declaration is found to be truthful, legally
admissible and inspires the confidence of the
Court.

Doctrine of Proportionality- 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'.

As the judicial trend in our country is
reformative and not retributive hence the period
of incarceration undergone by the accused
would be a relevant factor in imposing the
punishment.

Criminal Appeal partly allowed. (E-3)
(Para 18, 21, 23, 25, 26, 27, 28, 34)

Case Law/ Judgements relied upon:-
12 All. Pawan Vs. State of U.P.
1013
1. Koli Lakhmanbhai Chandabhai Vs St. of Guj.
[1999 (8) SCC 624]

2. Ramesh Harijan Vs St. of U.P. [2012 (5) SCC
777]

3. St. of U.P. Vs Ramesh Prasad Misra &
anr.,1996 AIR (SC) 2766

4. Lakhan Vs St. of M.P ,(2010) 8 Supreme
Court Cases 514

5. Krishan Vs St. of Har. (2013) 3 Supreme
Court Cases 280

6. Ramilaben Hasmukhbhai Khristi Vs St. of Guj.,
(2002) 7 SCC 56

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

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

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

10. Kashmira Devi Vs St. of UK & ors, 2020 0
Supreme (SC) 81

11. Anil Kumar Vs St. of U.P., 2022 0
Supreme(All) 976.

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

1. The appeal has been preferred by
the appellant-Pawan against the judgment
and order dated 15.07.2014, passed by
Additional District Judge, Court No.12,
Bareilly in Session Trial No. 756 of 2012,
arising out of Case Crime No. 537 of 2012,
under Sections 498-A, 304-B, 302 I.P.C.
and Section 3/4 of Dowry Prohibition Act,
Police Station Baradari, District Bareilly
whereby the appellant-Pawan is convicted
and sentenced for the offence under
Sections
304-B
I.P.C.
for
life
imprisonment.

2. The second appeal has been
preferred by the appellants namely, Smt.
Meera Devi, Kapil and Km. Mona Mala
against the judgement and order dated
15.07.2014 passed by Additional District
Judge, Court No.12, Bareilly in Session
Trial No.932 of 2013, arising out of Case
Crime No.537 of 2012, under Sections 498A, 304-B, 302 I.P.C. and Section 3/4 of
Dowry Prohibition Act, Police Station
Baradari, District Bareilly, whereby the
accused-appellants,
Smt.
Meera
Devi,
Kapil and Km. Mona Mala are convicted
and sentenced for the offence of under
Section 498-A I.P.C. for two years
imprisonment and fine of Rs.1,000/- each.

3. Brief facts of the case giving rise to
this appeal are that a written report was
sent by informant-Rajkumari (mother of the
deceased) to D.I.G., Bareilly stating the
fact that her daughter aged about 22 years
was married to accused-appellant, Pawan
before six months of the occurrence and her
daughter was subjected to cruelty for
demand of additional dowry just after the
marriage. At last, on 06.04.2012, deceased
was set ablezed by pouring the kerosene oil
on her in her matrimonial home. The
husband,
mother-in-law,
brother-in-law
(Devar) and sister-in-law (Nanad) of the
deceased were involved in the aforesaid
crime. It is also stated in the written report
that her complaint in this regard is not
being entertained by the concerned police
station.

4. On the basis of aforesaid written
report, a case was registered at police
station Baradari, District Bareilly as Case
Crime No.537 of 2012, under Section 307,
498-A, 323 I.P.C. and Section 3/4 of D.P.
Act. During the treatment, victim died after
nine
days
of
the
occurrence.
The
investigation
was
taken
up
by
the
Investigating Officer. After the death of the
deceased, the case was converted into
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 304-B I.P.C. along with other
offences.

5. During the course of investigation,
Investigating Officer has recorded the
statement of witnesses under Section 161
Cr.P.C. After completion of investigation,
I.O. submitted the charge sheet against the
accused-appellants
Pawn,
Smt.
Meera
Devi, Kapil and Km. Mona Mala under
Sections 498-A, 304-B, 307, 323 I.P.C. and
Section 3/4 of D.P. Act.

6. 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. Accused-appellant denied the
charges and claimed to be tried.

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

1.
Smt. Rajkumari
P.W.-1
2.
Guddu Prasad
P.W.-2
3.
Shiv Charan
P.W.-3
4.
Ramesh Chandra
P.W.-4
5.
Gopal
P.W.-5
6.
Dr. Subhas Chandra
Sundar Pal
P.W.-6
7.
Girdhari Lal
P.W.-7
8.
Vijay Yadav
P.W.-8
9.
Sushil Kumar Verma P.W.-9
10.
Om Prakash Yadav
P.W.-10
11.
Raju Rav
P.W.-11

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

1.
FIR
Ex.ka-4
2.
Written
report
Ex.ka-1
3.
Post-mortem
report
Ex.ka-3
4.
Panchayatna
ma
Ex.ka-2
5.
Charge sheet Ex.ka-14 & 15
6.
Site
plan
with index
Ex.ka-16

9. 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.
Accused-appellants
have
examined
two
witnesses in defence. After hearing the
arguments of both the sides, learned trial court
convicted all the accused persons.

10. Heard Mr. Sandeep Kumar Rai,
learned counsel for the appellants and
learned counsel for the State. Record has
been perused.

11. Learned counsel for the accusedappellant has submitted that appellants
have 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.
This is a case of suicide. In fact, deceased
was not having any child and remained
under continuous depression. On the date
of said occurrence, she was committed
suicide by pouring kerosene oil on her and
herself set ablezed.
12 All. Pawan Vs. State of U.P.
1015

12. It is also submitted by learned
counsel for the appellants that in First
Information Report, the role of setting
ablazed is also assigned to Smt. Meera
Devi, Kapil and Km. Mona Mala but
learned trial court did not find guilty for the
offence under Section 304-B I.P.C. and
they were convicted only for the offence of
Under Section 498-A I.P.C. and Section 4
of Dowry Prohibition Act. It means that
F.I.R. was lodged with false exaggerated
version. Moreover, accused-appellants Smt.
Meera Devi, Kapil, Km. Mona Mala were
living separately from the husband of the
deceased and they never demanded any
additional dowry.

13. It is next submitted that appellantPawan solemnized love marriage with the
deceased, therefore, there was no question
of demanding any additional dowry. F.I.R.
is lodged after a delay of five days to
pressurise the appellants. All the witnesses
have turned hostile and they have not
supported the prosecution version. Only on
the basis of dying declaration of the
deceased, learned trial court had convicted
the
accused-appellants.
This
dying
declaration is not corroborated by any of
the prosecution witness, therefore, no
reliance could have been placed on such
dying
declaration,
which
is
not
corroborated and conviction cannot be
based solely on the basis of dying
declaration. There is no sufficient evidence
on record to convict the accused-appellants.

14. Learned counsel for the accusedappellants has relied on the judgment of
Hon'ble Apex Court in the case of
Kashmira Devi Vs. State of Uttarakhand
and Others, 2020 0 Supreme (SC) 81 and
the judgment of this Court in the case of
Anil Kumar Vs. State of U.P., 2022 0
Supreme(All) 976.

15. Learned A.G.A. has submitted
that F.I.R. is not lodged with the delay
because report of mother of the deceased
was not being entertained by the police
concerned,
therefore,
she
made
an
application to the D.I.G. Bareilly then the
case was registered. There is no delay on
the part of the informant. It is next
submitted that witnesses of fact connived
with the appellants, therefore, they did not
told the truth and they turned hostile but
there is a dying declaration of the deceased
on record, in which, she has clearly stated
that her husband/accused set her ablazed in
the room by pouring kerosene oil and ran
away. It is also stated in the dying
declaration that other appellants used to
demand
additional
dowry
from
her,
therefore, all the accused-appellants were
responsible for death of the deceased.

16. Learned A.G.A. has further
submitted that reliance can be placed on
dying declaration and it is not necessary
that dying declaration must be supported by
some other evidence. If dying declaration
inspires confidence then it can be acted
upon solely. Moreover, accused-appellant
Pawan has not given any explanation in his
statement recorded under Section 313
Cr.P.C. as to how the death of the deceased
had taken place and, therefore, there is no
illegality or impropriety in the impugned
judgment and order, which calls for any
interference by this Court.

17. In alternative, learned counsel for
the appellants has submitted that deceased
died after nine days of the occurrence
because of septicemia, which is evident
from the post-mortem report, hence, death
of the deceased is septicemial death, which
was due to carelessness in the treatment,
otherwise, her life could be saved.
Therefore, in view of septicemial death,
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
learned trial court has imposed a very harsh
and severe punishment to the appellantPawan
by
sentencing
him
for
life
imprisonment under Section 304-B I.P.C.,
which can be reduced.

18. This is admitted fact that death of
the deceased occurred in her matrimonial
home due to burning. Post-mortem report
shows that she died in hospital due to
septicemia. Dr. Subhas Chanda Sundar Pal,
P.W.-6 conducting the post-mortem has also
corroborated this fact in his testimony that
death of the deceased occurred due to
septicemia. As far as the hostility is
concerned, in our view, the hostility of
hostile witnesses should be looked into
with great care and caution. The testimony
of hostile witnesses cannot be brushed
aside. It can be relied to the extent it
supports the prosecution case.

19. Hon'ble Apex Court in Koli
Lakhmanbhai Chandabhai vs. State of
Gujarat [1999 (8) SCC 624], as held that
evidence of hostile witness can be relied
upon to the extent it supports the version of
prosecution and it is not necessary that it
should be relied upon or rejected as a
whole. It is settled law that evidence of
hostile witness also can be relied upon to
the extent to which it supports the
prosecution version. Evidence of such
witness cannot be treated as washed off the
record. It remains admissible in the trial
and there is no legal bar to base his
conviction
upon
his
testimony
if
corroborated by other reliable evidence.

20. In Ramesh Harijan vs. State of
U.P. [2012 (5) SCC 777], the Hon'ble Apex
Court has also held that it is settled legal
position that the evidence of a prosecution
witness cannot be rejected in toto merely
because the prosecution chose to treat him
as hostile and cross-examined him. The
evidence of such witness cannot be treated
as effaced or washed off the record
altogether.

21. In State of U.P. vs. Ramesh
Prasad Misra and another [1996 AIR
(Supreme Court) 2766], the Hon'ble Apex
Court held that evidence of a hostile
witnesses would not be totally rejected if
spoken in favour of the prosecution or the
accused but required to be subjected to
close scrutiny and that portion of the
evidence which is consistent with the case
of the prosecution or defence can be relied
upon. Thus, the law can be summarized to
the effect that evidence of a hostile witness
cannot be discarded as a whole, and
relevant part thereof, which are admissible
in law, can be used by prosecution or the
defence.

22. Perusal of impugned judgment
shows
that
learned
trail
court
has
scrutinised the evidence on record very
carefully.

23. As far as the dying declaration is
concerned, it is not necessary in all the
matters that dying declaration should be
corroborated by other evidence. If it is
reliable and inspires confidence it can be
acted upon solely and conviction can be
based only on the basis of dying
declaration.

24. Learned counsel for the appellant
has argued that dying declaration is
doubtful and not corroborated by witnesses
of fact, hence, it cannot be the sole basis of
conviction.
Legal
position
of
dying
declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored, made voluntarily and is wholly
reliable. In this regard, Hon'ble Apex Court
12 All. Pawan Vs. State of U.P.
1017
has summarized the law regarding dying
declaration in Lakhan vs. State of Madhya
Pradesh [(2010) 8 Supreme Court Cases
514], in this case, Hon'ble Apex Court held
that the doctrine of dying declaration is
enshrined in the legal maxim nemo
moriturus
praesumitur
mentire,
which
means, "a man will not meet his Maker
with a lie in his mouth". The doctrine of
dying declaration is enshrined in Section 32
of Evidence Act, 1872, as an exception to
the general rule contained in Section 60 of
Evidence Act, which provides that oral
evidence in all cases must be directed, i.e.,
it must be the evidence of a witness, who
says he saw it. The dying declaration is, in
fact, the statement of a person, who cannot
be called as witness and, therefore, cannot
be
cross-examined.
Such
statements
themselves are relevant facts in certain
cases.

25. The law on the issue of dying
declaration can be summarized to the effect
that in case the court comes to the
conclusion that the dying declaration is true
and reliable, has been recorded by a person
at a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made under
any tutoring/duress/prompting; it can be the
sole basis for recording conviction. In such
an eventuality no corroboration is required.
It is also held by Hon'ble Apex Court in the
aforesaid case, that a dying declaration
recorded by a competent Magistrate would
stand on a much higher footing than the
declaration recorded by office of lower
rank, for the reason that the competent
Magistrate has no axe to grind against the
person named in the dying declaration of
the victim.

26. The deceased survived for nine
days after the incident took place. It is not
the case of prosecution even that victim
was not in a fit condition to make the dying
declaration, therefore, dying declaration
cannot be believed. In the wake of
aforesaid judgments of Lakhan (supra),
dying declaraion cannot be disbelived, if it
inspires confidence. On reliability of dying
declaration and acting on it without
corroboration, Hon'ble Apex Court held in
Krishan vs. State of Haryana [(2013) 3
Supreme Court Cases 280] 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.

27. From the above case laws, it
clearly emerges that it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused when such dying declaration is
true, reliable and has been recorded in
accordance with established practice and
principles and if it is recorded so then there
cannot be any challenge regarding its
correctness and authenticity.

28. It is admitted fact that deceased
survive for nine days after the date of
occurrence, therefore, truthfulness of the
dying declaration can further be evaluated
from the fact that she was in fit condition to
make the statement at the relevant time and
in
dying
declaration
she
had
not
unnecessarily
involved
other
family
members of accused-appellant Pawan by
attributing the role of burning to them. She
1018 INDIAN LAW REPORTS ALLAHABAD SERIES
had only attributed the role of burning to
her husband Pawan, in such a situation,
hostility of witnesses of fact cannot
demolish the value and liability of the
dying declaration of the deceased.

29. In view of above discussion, we
are
of
the
considered
opinion,
the
prosecution has proved the offence under
Section 304-B, 498-A I.P.C. and Section 4
of Dowry Prohibition Act against the
accused-appellant Pawan and also has
proved the offence under Section 498-A
I.P.C. and Section 4 of Dowry Prohibition
Act against other accused persons and the
learned trial court has rightly convicted
them for the aforesaid offences.

30. As far as the quantum of sentence
is concerned, learned counsel for the
appellants has submitted that appellantPawan has been awarded life imprisonment
for the offence under Section 304-B I.P.C.
which is too harsh and severe. As far as the
principle
of
proper
sentencing
are
concerned, we have gone through theory
privileging in India as well as principle of
proportionality.

31. 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."

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
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
12 All. Pawan Vs. State of U.P.
1019
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. 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.

36. Keeping the aforesaid position of
law for sentencing, we consider that
sentence of life imprisonment for the
offence under Section 304-B I.P.C. is not in
consonance
with
the
principle
of
proportionality, therefore, we reduce the
sentence of life imprisonment to the sentence
for a period of 10 years for the offence under
Section 304-B I.P.C. and sentence under
Section 498-A I.P.C. & Section 4 of D.P. Act as
awarded by learned trial court, has already been
undergone by the accused-appellant Pawan.
Further keeping in view the role assigned to
other appellants Smt. Meera Devi, Kapil and
Km. Mona Mala, they have been awarded
sentence for two years under Section 498-A
I.P.C. and one year for the offence of Section 4
of D.P. Act, which we reduce to the period
already undergone by them.

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

38. Let a copy of this judgment along
with the trial court record be sent to the
1020 INDIAN LAW REPORTS ALLAHABAD SERIES
court below and jail authorities concerned
for compliance.
----------
(2022) 12 ILRA 1020
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2022

BEFORE

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

Criminal Appeal No. 3549 of 2016

Smt. Balveer Kaur ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Vijay Prakash Pandey, Sri Deepak Kumar
Srivastava, Sri Ashok Kumar mishra

Counsel for the Respondent:
G.A., Sri N.K. Srivastava

Criminal Law- Indian Penal Code, 1860-
Section 299- Section 302- Section 304The 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 IPCAbove offence committed will fall under
Section 304 Part-I.

Where the offence was committed without any
pre-meditation or intention but resulted in the
death in the ordinary course of nature, then
instead of Section 302 IPC the offence will fall
under Section 304 Part I.

Quantum of Sentence-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.
'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'.

The
punishment
imposed
should
be
proportionate to the gravity of the offence and
may not be unduly harsh. As the offence is one
under Section 304-Part I of the IPC hence
sentence modified accordingly.

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

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

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

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

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

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

6. Ravada Sasikala Vs State 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 21.6.2016 passed
by Shri Mohammad Faiz Alam Khan,
Sessions Judge, Shahjahanpur, in Sessions
Trial No.163 of 2015 convicting accusedappellant under Section 302 of Indian Penal
Code, 1860 (hereinafter referred to as 'IPC')
and sentenced him to undergo rigorous life
imprisonment with fine of Rs.25,000/- and
in case of default of payment of fine,
further to undergo one year imprisonment.

2. Investigation was moved into
motion, after recording statements of