# Puttan v. State of U.P

- **Citation:** (2022) 11 ILRA 17
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-24
- **Case number:** Jail Appeal No. 725 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/puttan-v-state-of-u-p-47799
- **Pages:** 13

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section - 313 - Indian Penal
Code, 1860 -Sections 34, 299, 300,
300(4), 302 & 304 Part -I - Jail Appeal -
against
conviction
&
sentence
-
Life
imprisonment
with
fine
-
quantum
of
punishment - offence of murder - FIR -
Informant allegations that when accused
(appellant) quarrel with his mother for a
money matter, he assaulted on her with
intention to kill her with an axe, resulted she
died on the spot - Evaluation of Evidences -
while considering the St.ment of accused u/s
313 Cr.P.C. into account court astonished that
why the real brother (informant) standing
there does not even tried to save his mother -
though the St.ment u/s 313 Cr.P.C. is not a
substantive piece of evidence but, it can be
used for appreciating evidence led by the
prosecution to accept it or reject it.(Para -
36, 39)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Section - 313 - Indian Penal
Code, 1860 - Sections 34, 299, 300, 300(4),
302 & 304 Part -I - Jail Appeal - against
conviction & sentence - Life imprisonment with
fine - quantum of punishment - doctrine of
proportionality - offence of murder - distinction
between 'murder' and 'culpable homicide' - the
judicial trend in the country has been towards
striking
a
balance
between
reform
and
punishment - held, undue harshness should be
avoided taking into account the reformative
approach underlying in criminal justice system -
thus, instant appeal is liable to be party allowed -
conviction u/section 302 IPC is liable to be
converted into conviction u/section 304 (Part - I)
IPC - and is sentenced to undergone 14 years of
incarceration with remission - court maintained
the fine and default sentence - direction
accordingly. (Para - 45, 51, 54, 56, 60)

Appeal partly allowed. (E-11)

List of Cases cited:
18 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,853 of 41,614. This is a partial read: ask again with offset=39853 for what follows._

11 All. Puttan Vs. State of U.P.
17
convicting the appellant by impugned
judgement.

40.

Considering
the
overall
circumstances and submission of learned
counsel for the appellant, learned A.G.A.
for the State and after going through the
evidence and lower court record, we are
unable to persuade ourselves in taking a
different opinion from that of trial court.
The trial court was fully justified in
convicting the accused-respondent.

41. Learned counsel for the appellant
failed to point out any illegality, infirmity
or perversity in the judgment of the trial
court.

42. The appeal lacks merit and is,
accordingly, dismissed.

43. Registrar General of this Court is
directed to pay an honorarium of Rs.
20,000/- to Sri Raj Kumar Sharma, learned
Amicus Curiae for rendering effective
assistance in the appeal.

44. Let the lower court record be
transmitted back to court below along with
a copy of this order.
----------
(2022) 11 ILRA 17
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2022

BEFORE

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

Jail Appeal No. 725 of 2017

Puttan ...Appellant
Versus
State of U.P. ...Opposite Party
Counsel for the Appellant:
From Jail, Sri Sushil Kumar Dwivedi

Counsel for the Opposite Party:
A.G.A., Sri Ram Lal Mishra

Criminal Law - Criminal Procedure Code,
1973 - Section - 313 - Indian Penal
Code, 1860 -Sections 34, 299, 300,
300(4), 302 & 304 Part -I - Jail Appeal -
against
conviction
&
sentence
-
Life
imprisonment
with
fine
-
quantum
of
punishment - offence of murder - FIR -
Informant allegations that when accused
(appellant) quarrel with his mother for a
money matter, he assaulted on her with
intention to kill her with an axe, resulted she
died on the spot - Evaluation of Evidences -
while considering the St.ment of accused u/s
313 Cr.P.C. into account court astonished that
why the real brother (informant) standing
there does not even tried to save his mother -
though the St.ment u/s 313 Cr.P.C. is not a
substantive piece of evidence but, it can be
used for appreciating evidence led by the
prosecution to accept it or reject it.(Para -
36, 39)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Section - 313 - Indian Penal
Code, 1860 - Sections 34, 299, 300, 300(4),
302 & 304 Part -I - Jail Appeal - against
conviction & sentence - Life imprisonment with
fine - quantum of punishment - doctrine of
proportionality - offence of murder - distinction
between 'murder' and 'culpable homicide' - the
judicial trend in the country has been towards
striking
a
balance
between
reform
and
punishment - held, undue harshness should be
avoided taking into account the reformative
approach underlying in criminal justice system -
thus, instant appeal is liable to be party allowed -
conviction u/section 302 IPC is liable to be
converted into conviction u/section 304 (Part - I)
IPC - and is sentenced to undergone 14 years of
incarceration with remission - court maintained
the fine and default sentence - direction
accordingly. (Para - 45, 51, 54, 56, 60)

Appeal partly allowed. (E-11)

List of Cases cited:
18 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Kusti Mallaiah Vs St. of Andhra Pradesh (2013
Vol. 12 SCC 680),

2. Amar Singh Vs St. (NCT of Delhi) (2020 Vol.
19 SCC 165),

3. Ashok Kumar Chaudhary Vs St. of Bihar (2008
Vol. 61 ACC 972 (SC)),

4. Lallu Manjhi & anr. Vs St. of Jharkhand (2003
Vol. 2 SCC 401),

5. Bikau Pandey Vs St. of Bihar (2003 Vol. 12
SCC 616),

6. Deepak Verma Vs St. of Himanchal Pradesh
(2011 Vol. 10 SCC 129),

7. Neel Kumar @ Anil Kumar Vs St. of Har. (2012
Vol. 5 SCC 766),

8. Nishi Kant Jha Vs St. of Bihar (1969 vo. 1 SCC
347),

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

10. Tukaram & ors. Vs St. of Mah. (2011 vol. 4
SCC 250),

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

12. Mohd. Giasuddin Vs St. of AP (AIR 1977 SC
1926),

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

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

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

16. Guru Basavraj Vs St. of Karnatak, (2012) 8
SCC 734

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

18. St. of Pun. Vs Bawa Singh, (2015) 3 SCC
441
19. Raj Bala Vs St. of Har., (2016) 1 SCC 463,

20. Mohd. Firoz Vs St. of M.P. (2022 vol. 7 SCC
443),

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

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

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

24. Pardeshiram Vs St. of M.P. (2021 vol. 3 SCC
238).

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. The Additional Sessions Judge/
Special
Judge
(E.C.
Act)
Fatehpur
convicted the convict/appellant Puttan in
Sessions Trial No. 781 of 2006 arising out
of Crime No. 340 of 2006, P.S.- Kotwali,
District- Fatehpur under Section 302 I.P.C.
and sentenced for life imprisonment and
fine to a tune of Rs.2,000/- with default
sentence of simple imprisonment for 6
months, feeling aggrieved of which the
convict/ appellant has preferred this appeal.

2. The factual scenario of the case
according to the FIR is that on 8.9.2006 at
10.30-11.00 am when the informant Sohan
Lal, his brother Puttan and mother
Bhagwanti Devi were present at home,
accused Puttan started abusing his mother
for some money matter and when the
informant intervened, he assaulted his
mother Bhagwanti Devi with intention of
kill her by axe and she died on spot. The
accused fled away. A written report Ex.Ka3 narrating the aforesaid facts was given to
police station Kotwali, Fatehpur by the
informant Sohan Lal and FIR Ex.Ka-1 was
lodged on 8.9.2006 and G.D. Ex.Ka-2 was
also prepared. The investigation started and
11 All. Puttan Vs. State of U.P.
19
the Investigating Officer performed the
inquest proceedings and inquest report
Ex.Ka-7 and papers relating to the post
mortem Ex.Ka-8, Ex.Ka-9, Ex.Ka-10 were
also prepared, spot inspection was made by
the I.O and site plan Ex.Ka-11 was
prepared. Memo of recovery of plain and
blood stained soil Ex.Ka-12 was also
prepared.
During
the
course
of
investigation, the accused was arrested and
the murder weapon was recovered from his
possession and recovery memo Ex.Ka-13
was also prepared. The site plan of the
place of recovery Ex.Ka-4 was also
prepared
and
after
closing
of
the
investigation charge sheet Ex.Ka-5 was
submitted to the Court. Meanwhile on
9.9.2006 the autopsy of the body of the
deceased was conducted by Dr. V.N.
Srivastava, who prepared the autopsy
report Ex.Ka-6 and found the following
ante mortem injuries over the body of the
deceased:

1. incised wound 9 cm x 1 cm
brain deep, horizontally placed, 3 cm
behind right ear with fracture of mastoid
bone.

2. lacerated wound 6 cm x 4 cm
brain deep just 4 cm above injury no.1 with
fracture of under lining parietal bone of
right side.

3. incised wound 10 cm x 4 cm x
bone deep on right upper back horizontally
placed along superior border of right
scapula

3. It was opined by the doctor that the
death occurred due to coma as a result of
ante mortem head injury.

4. The accused appeared before the
Court and the case being triable exclusively
by the Sessions Court was committed to the
Court of Sessions where charge under
Section 302 I.P.C. was framed against the
accused, who pleaded not guilty and
claimed to be tried.

5. The prosecution in order to prove
its case has relied upon oral as well as
documentary evidence.

6. In oral evidence P.W.1 Sohan Lal,
the informant, P.W.2 HCP. Narendra Nath
Tripathi scribe of the FIR, P.W.3 Om
Prakash Gautam scribe of tehrir, P.W.4
S.H.O Nand Kumar Singh 2nd I.O, P.W.5
Dr. V.N. Srivastava the witness of autopsy,
P.W.6 S.I. Naki Haidar the first I.O. and
P.W.7 Ranjit Kumar Singh witness of
recovery of murder weapon have been
examined.

7. To support the oral evidence,
documentary evidence FIR Ex.Ka-1, G.D.
Ex.Ka-2, written report Ex.Ka-3, site plan of
place of recovery of murder weapon Ex.Ka-4,
charge sheet Ex.Ka-5, autopsy report Ex.Ka6, inquest report Ex.Ka-7, challan nash, photo
nash and letter C.M.O Ex.Ka-8, Ex.Ka-9 and
Ex.Ka-10 respectively, site plan Ex.Ka-11,
memo of blood stained and plain soil Ex.Ka12 and recovery memo of murder weapon
Ex.Ka-13 have been produced. The murder
weapon axe was also proved as material
Ex.1. The F.S.L. Report 21 A is also available
on record.

8. The incriminating circumstances and
evidence adduced by the prosecution were
put to the accused and in his statement under
Section 313 Cr.P.C. the accused took a plea of
false implication and denied the truthfulness
of the entire evidence adduced against him by
the prosecution.

9. Before analyzing the judgement
rendered by the learned trial Court we
deem it fit to have a glance upon the
20 INDIAN LAW REPORTS ALLAHABAD SERIES
evidence adduced by the prosecution by
way of oral testimony of the witnesses as
well as the documentary evidence.

10. P.W.1 Sohan Lal, the informant
is the real brother of the accused. In his
deposition,
he
has
proved
the
prosecution case and has made a clear
narration to the fact that at the time of
occurrence, accused Puttan had a quarrel
with his mother/deceased on the issue of
sale of land, he also abused her and
when the informant intervened, he got
angry and brought an axe and made
several blows with the axe over the
deceased, who fell down and died. The
accused fled away. P.W.1 has proved the
written report.

11. P.W.3 Om Prakash Gautam,
who is scribe of tehrir, has made
statement before the Court that the said
report was written by him on the
dictation of P.W.1 and has proved it as
Ext. Ka 3 . he has also identified his
signature over the recovery memo of the
murder weapon axe, which according to
him the police had recovered from the
possession of the accused Puttan at the
time of his arrest. He has also identified
the axe material Ex.1, which was
produced before him at the time of
evidence in the Court.

12. P.W.2 Head Cons. Narendra
Nath Tripathi has proved the Chick FIR
Ex.Ka-1 and G.D. Ex.Ka-2 and has
stated that the FIR was lodged on the
basis of the written report given by the
informant Sohan Lal.

13. P.W.5 doctor V.N. Srivastava
has conducted the autopsy of the body of
the deceased and has proved the autopsy
report as Ex.Ka-6.

14. P.W.6 S.I. Naki Haidar is the
first I.O. of the case, who has proved the
proceedings of the investigation and the
second I.O. P.W.4 S.H.O Nand Kumar
Singh
has
also
proved
the
rest
proceedings of the investigation and has
stated
that
after
completion
of
investigation charge sheet Ex.Ka-5 was
submitted by him before the Court.

15. P.W.7 Ranjit Kumar is the
witness of arrest of the accused by the
police and the recovery of murder
weapon axe from his possession. He has
proved
the
aforesaid
facts
in
his
deposition and has also identified his
signature over the
recovery memo
Ex.Ka-13.

16. The trial Court after making a
detailed analysis of the oral as well as
documentary
evidence
available
on
record and after hearing the parties at
length recorded the conviction of the
accused under Section 302 I.P.C. and
sentenced him accordingly.

17. The appellant has assailed the
impugned judgement on various grounds.

18. The Amicus Curiae has absented
himself but the appeal is vehemently
objected by Shri Ram Lal Mishra, learned
counsel appearing for the informant as well
as by learned AGA.

19. Learned A.G.A. and the learned
counsel for the informant defending the
impugned judgement have submitted that
there is no legal flaw or factual error in the
impugned judgement. The learned trial
Court has analysed the evidence on record
in a proper legal manner and has reached
the logical end of the matter. The appeal
has no force and is liable to be dismissed.
11 All. Puttan Vs. State of U.P.
21

20. Heard learned counsel for the
informant, learned A.G.A. and perused the
record.

21. Although, Amicus Curiae is not
present to argue this appeal we feel
ourselves to be duty bound to consider the
various aspects of the matter in the light of
the evidence on record, the relevant laws
and the arguments raised by the learned
A.G.A. and learned counsel for the
informant as well.

Ocular Evidence -

22. At the very out set, it is to be seen
whether there was any other eye-witness of
the occurrence except the informant and if
it was so whether it was necessary for the
prosecution to produce him as an ocular
witness of the occurrence.

23. From the bare perusal of the FIR
it is evident that no other witness except the
informant has been mentioned therein. The
informant has clearly mentioned in the
written report that all the family members
had gone to their tube-well situated at
Bhikaripur and only he along with his
mother (deceased) and brother (the convict)
was present at home. In his deposition as
P.W.1, the informant has corroborated the
prosecution version. He has proved the
written report Ex. Ka. 3. While going
through the testimony of P.W.1, we find
that no other eye-witness of the occurrence
except the informant has been mentioned
therein. He has clearly proved this fact that
the convict was quarrelling with the
deceased, his mother, in respect of sale of
land and was abusing her and when P.W.1
intervened, he angrily brought axe and
made blow over his mother, who fell down
and died. He has also made it clear that his
father and three sisters were not at home
and they had gone to the tube well for
work, which is 1 km. away from his house.

24. Learned A.G.A. has submitted
that since no other person was present on
spot except the informant, no question
arises to produce any person as eye-witness
of the occurrence. It has also been
submitted that if the evidence of sole
witness is reliable and trustworthy, the
conviction can be recorded successfully in
a criminal matter on the basis thereof. In
the entire evidence of P.W.1, we do not find
any contradictory or exaggerated statement.
His deposition is quite natural and innocent
and it transpires confidence.

25. The value of the testimony of the
sole eyewitness was tested by the Hon'ble
Supreme Court in Kusti Mallaiah Vs.
State of Andhra Pradesh (2013) 12
Supreme Court Cases 680 wherein it was
laid down as follows:

"23. It has been held in catena of
decisions of this Court that there is no legal
hurdle in convicting a person on the sole
testimony of a single witness if his version
is clear and reliable, for the principle is that
the evidence has to be weighed and not
counted. In Vadivelu Thevar v. The State
of Madras AIR 1957 SC 614, it has been
held that if the testimony of a singular
witness is found by the court to be entirely
reliable, there is no legal impediment in
recording the conviction of the accused on
such proof. In the said pronouncement it
has been further ruled that the law of
evidence does not require any particular
number of witnesses to be examined in
proof of a given fact. However, faced with
the testimony of a single witness, the court
may classify the oral testimony into three
categories, namely, (i) wholly reliable, (ii)
wholly unreliable, and (iii) neither wholly
22 INDIAN LAW REPORTS ALLAHABAD SERIES
reliable nor wholly unreliable. In the first
two categories there may be no difficulty in
accepting or discarding the testimony of the
single witness. The difficulty arises in the
third category of cases. The court has to be
circumspect
and
has
to
look
for
corroboration in material particulars by
reliable testimony, direct or circumstantial,
before acting upon the testimony of a single
witness. Similar view has been expressed in
Lallu Manjhi and another v. State of
Jharkhand (2003) 2 SCC 401, Prithipal
Singh and others v. State of Punjab and
another (2012) 1 SCC 10 and Jhapsa
Kabari and others v. State of Bihar (2001)
10 SCC 94.

26. The same view has been reiterated
in Amar Singh Vs. State (NCT of Delhi)
(2020) 19 Supreme Court Cases 165
wherein it has been held as follows:

....As a general rule the Court can
and may act on the testimony of single eye
witness provided he is wholly reliable.
There is no legal impediment in convicting
a person on the sole testimony of a single
witness. That is the logic of Section 134 of
the Evidence Act, 1872. But if there are
doubts about the testimony Courts will
insist on corroboration. It is not the
number, the quantity but quality that is
material. The time honoured principle is
that evidence has to be weighed and not
counted. On this principle stands the
edifice of Section 134 of the Evidence Act.
The test is whether the evidence has a ring
of truth, is cogent, credible and trustworthy
or otherwise (see Sunil Kumar V/s State (
NCT of Delhi) (2003) 11 SCC 367).

27. In Ashok Kumar Chaudhary.
Vs. State of Bihar 2008 (61) ACC 972
(SC) it has been categorically held that if
the testimony of an eyewitness is otherwise
found trustworthy and reliable, the same
cannot be disbelieved and rejected because
certain insignificant, normal or natural
contradictions have been appeared into his
testimony.
If
the
inconsistencies,
contradictions,
exaggerations,
embellishments and discrepancies in the
testimony are only normal and not material
in nature, then the testimony of an
eyewitness has to be accepted and acted
upon.
Distinctions
between
normal
discrepancies and material discrepancies
are that while normal discrepancies do not
corrode the credibility of a party's that the
case, material discrepancies do so.

28. Since in the matter in hand the
ocular version of P.W.1 is free from all
embellishments, the witness falls into the
category of a wholly reliable witness and as
such we find no difficulty in accepting the
testimony of P.W.1 as the sole witness of
fact and this view also finds help from the
verdict given in Lallu Manjhi and
another v. State of Jharkhand (2003) 2
SCC 401.

Medical Evidence -

29. The prosecution has come forward
with a clear case that the murder was
caused with the blows of axe. As per FIR,
the accused made several blows over the
deceased by using the axe, which proved
fatal for her. This fact not only finds place
in the oral testimony of P.W.1 but it is also
corroborated by the medical evidence.
P.W.5, who has performed the autopsy of
the deceased has find two incised wounds
and one lacerated wound over the body of
the deceased. He has opined that injury
no.1and 3 might be caused on account of
attack of sharp edge of axe. He has also
opined that the death of the deceased might
have been caused on 8.9.2006 at 10:30-
11 All. Puttan Vs. State of U.P.
23
11:00 am. and that is the case of
prosecution also. The death of the deceased
was caused due to coma as a result of ante
mortem head injuries as has been opined by
the doctor P.W.5. The prosecution version
in this way is corroborated by the medical
evidence also. The learned trial Court has
discussed these facts in the impugned
judgement and has drawn the right
conclusion.

F.I.R/ Tehrir -

30. The FIR of the case and the
written report are also trustworthy piece
of evidence. P.W.3, the scribe of the
written report has proved this report and
has categorically stated that on the
dictation of P.W.1 he had written the
tehrir and it was read over to the
informant after being written. P.W.1 also
does not dispute this fact and narrates the
same. P.W.2, the scribe of Chick FIR has
also proved the FIR and G.D. of the case
as Ext. A1, A2 and no infirmity is found
in the testimony of this witness. F.I.R is
prompt and has been lodged about one
and half hour after the occurrence.

Place of occurrence -

31. Place of occurrence is always a
significant peace of evidence for the
prosecution in order to prove its case
successfully. P.W.1 on this point has
stated that the house of the accused and
of the informant himself are separate
having a path in between the two. The
toilet of the family is situated in the
house of the accused and on the fateful
time when he was coming from the toilet,
the occurrence happened. The site plan
Ex.Ka-11 contains the topography of the
place of occurrence and the above
mentioned statement of P.W.1 finds
support from this aspect also. From the
perusal of the site plan Ex.Ka-11, it
appears that the boundary of the place of
occurrence as disclosed by P.W.1. in his
deposition is also almost the same as
shown therein. The site plan shows a
clear picture of the place of occurrence
and all the relevant places have been
clearly shown therein.

Motive -

32. So far as the motive of the crime
is concerned, it is crystal clear from the
perusal of the FIR itself that there was a
dispute in between the convict and his
mother in respect of sale of some land
and in the course of argument over that
issue the accused committed the offence
alleged against him. Moreover, the
learned A.G.A. and learned counsel for
the informant have vehemently argued
that since the present case rests upon the
ocular testimony of P.W.1 there was no
need to prove the motive of the case for
the prosecution.

33. Reliance has been placed upon
Bikau Pandey Vs. State of Bihar (2003)
12 SCC 616 wherein it has been held that
when the direct evidence establishes the
crime, motive is of no significance and
pales into insignificance.

34. There are catena of decisions on
the point that in a case based upon the
eye witness account, the motive loses its
significance. In Deepak Verma Vs. State
of Himachal Pradesh (2011) 10 SCC
129 It has been held as under:

"...Proof of motive is not a sine
qua non before a person can be held
guilty of commission of crime. Motive
being a matter of mind, is more often than
24 INDIAN LAW REPORTS ALLAHABAD SERIES
not
difficult
to
establish
through
evidence."

35. From the analysis of the evidence
on record, we do not find any possibility of
false implication of the accused in the
present matter. Nothing on this aspect has
been put to P.W.1 while cross-examining
him by the defence. P.W.1 is a reliable
witness and makes a clear picture of the
whole occurrence in his ocular version,
hence to prove the motive to commit the
crime
was
not
necessary
for
the
prosecution. Moreover, the factum of
quarrel between the deceased and the
accused over some property issue has been
clearly proved by PW1, which was an
instant reason of the murder as per FIR.

Relevance
of
statement
under
section 313, C.r.p.c -

36. Our attention is drawn to a
significant aspect of the matter. This is a
case where the real brother has lodged the
FIR against his brother for the murder of
his own mother. From perusal of the
testimony of P.W.1, we find and we are
astonished as to why the real brother, son of
the deceased, standing there does not even
tried to save his mother from the assault of
his brother but at the same time, we have
also to take the statement of the accused
under Section 313 Cr.P.C. into account.

37. In Neel Kumar alias Anil Kumar
v. State of Haryana, (2012) 5 SCC 766
Hon'ble Apex Court held as under:

"30. It is the duty of the accused to
explain
the
incriminating
circumstance
proved against him while making a statement
under Section 313 CrPC. Keeping silent and
not furnishing any explanation for such
circumstance is an additional link in the
chain of circumstances to sustain the charges
against him. Recovery of incriminating
material at his disclosure statement duly
proved is a very positive circumstance
against him." (The same principle has been
formulated in Aftab Ahmad Anasari v. State
of Uttaranchal [(2010) 2 SCC 583 : (2010) 2
SCC (Cri) 1054 : AIR 2010 SC 773] .)

38. When we translate the aforesaid
principle with its application to the facts of
this case, we find that the incriminating
circumstances proved against the accused
have not been explained by him at all while
making his statement under Section 313
Cr.P.C. When the evidence and incriminating
circumstances were put to him he simply
denied them. To answer some questions he
has stated that he does not know about it or
he has replied that he has nothing to say
about it.

39. It has been held by the Apex Court
that the statement of the accused under
Section 313 Cr.P.C is not a substantive piece
of evidence. It can be used for appreciating
evidence led by the prosecution to accept or
reject it. It is, however, not a substitute for the
evidence of the prosecution. As held in [Nishi
Kant Jha v. State of Bihar, (1969) 1 SCC
347] if the exculpatory part of the statement
of accused is found to be false and the
evidence led by the prosecution is reliable,
the inculpatory part of his statement can be
taken aid of to lend assurance to the evidence
of the prosecution. If the prosecution
evidence does not inspire confidence to
sustain the conviction of the accused, the
inculpatory part of his statement under
Section 313 CrPC cannot be made the sole
basis of his conviction.

40. In the matter in hand on the one
side the prosecution has succeeded to prove
its case beyond reasonable doubt on the
11 All. Puttan Vs. State of U.P.
25
basis of the cogent and reliable evidence
whereas on the other side no explanation
has been offered by the convict regarding
the
incriminating
circumstances
and
evidence proved against him in his
statement under Section 313 Cr.P.C. It is
also pertinent to mention here that no
defence evidence has been adduced by the
convict/ appellant.

41. The prosecution story also find
support from the fact that the murder
weapon, blood stained axe, has been
recovered from the possession of the
accused when he was arrested by the
police. The recovery memo Ex.Ka-13 has
also been proved by Ist I.O-P.W.6. P.W.3,
who is the independent witness of the
aforesaid recovery has also identified his
signature over this memo in his deposition.
It is also noteworthy that the aforesaid
murder weapon axe has been produced
before the P.W.3, who has proved it as
material Ex.1. The place of recovery of the
murder weapon has also been proved
through the site plan Ex.Ka-4 by P.W.4, the
second I.O.

42. The prosecution has also proved
the inquest report Ex.Ka-7 wherein the
Panchas have also opined that the death of
the deceased seems to be caused due to the
injuries inflicted over her body. The papers
relating to the post mortem Ex.Ka-8,
Ex.Ka-9 and Ex.Ka-10 have also been
proved.
The
murder
weapon
and
belongings of the deceased were sent for
forensic test and FSL report Ext. Ka 14 also
supports the prosecution case.

43. The trial Court has elaborately
discussed the aforesaid points and has
reached to the definite conclusion that the
prosecution has succeeded to prove its case
beyond reasonable doubt on the basis of the
cogent, reliable, oral and documentary
evidences and we concur with the same.

Murder or Culpable Homicide not
amounting to murder -

44. However, 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 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."

45. 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
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
Subject
to
certain
exceptions
culpable
26 INDIAN LAW REPORTS ALLAHABAD SERIES
death is caused is done-
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.

46. From the upshot of the aforesaid
discussion, it appears that the death was
caused by the accused in unison and it was
a homicidal death whether the same was
not premeditated or premeditated, will have
to be seen. From the evidence of P.W.1 it is
crystal clear that the convict had no premeditation to do away with his mother. The
quarrel took place between the two on
account of sale of some land. He had not
come on spot with the axe but during the
course of quarrel he rushed angrily and
brought the axe and made assault over his
own mother. Thus the offence was
committed at the spur of the moment and it
cannot said that it was a premeditated cold
blooded murder. Under these circumstance,
it can be concluded that though the injuries
over the body of the deceased were
sufficient in the ordinary course of nature
to have caused death, the accused had no
intention 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 IPC as
reproduced
herein
above,
offence
committed will fall under Section 304 PartI 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 into mind.

47. 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 the
offence would be one punishable under
Section 304 part-I of the IPC.

Theory of Sentencing -

48. During course of argument, learned
counsel for the appellant has made an
alternative prayer for reduction of the
sentence and has submitted that the sentence
of life imprisonment awarded to the appellant
by the trial Court is very harsh. He has also
submitted that the appellant is languishing in
jail for the past more than 15 years. Hence a
prayer has been made to reduce the sentence
of the convict to 10 years.

49. 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:
11 All. Puttan Vs. State of U.P.
27

"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 ante-social 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."

50. '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.

51. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Hon'ble
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 Hon'ble
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
28 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

52. Considering the facts and
circumstances of the case and also keeping
in view the 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.

53. 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 in the light of 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.

54. Recently In Mohd. Firoz v. State
of M.P., (2022) 7 SCC 443, the Hon'ble
Supreme Court has held like this:

61....................One of the basic
principles
of
restorative
justice
as
developed by this Court over the years,
also is to give an opportunity to the
offender to repair the damage caused, and
to become a socially useful individual,
when he is released from the jail. The
maximum punishment prescribed may not
always be the determinative factor for
repairing the crippled psyche of the
offender.

55. In latest decision in Khokan Alias
Khokhan
Vishwas
vs.
State
of
Chhattisgarh, (2021) 2 Supreme Court
Cases 365 where the facts were similar to
this case, the Apex Court has allowed the
appeal of the accused appellant. 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 murder
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.

56. In view of the aforesaid
discussions, we are of the view that appeal
is liable to be partly allowed and the
conviction of the appellant under Section
302 IPC is liable to be converted into
conviction under Section 304 (Part-I) IPC.

57. In the facts and circumstances of
the present case, while balancing the scale
of retributive justice and restorative justice,
we deem it appropriate to impose upon the
appellant-convict
the
sentence
of
imprisonment for a period of 14 years
under Section 304 Part-I instead of
imprisonment for the remainder of his
natural life for the offence under Section
302 I.P.C.
11 All. Lakhanshah & Anr. Vs. State of U.P.
29

58. It is pertinent to mention here that
the convict/accused is in jail since 16 years.
We are astonished at the way that the State
machinery functions as they have not even
considered the case of the accused after the
14th year is over and thereby the purpose
of Section 433 Cr.P.C., is frustrated which
reads as follows:

"433.
Power
to
commute
sentence. The appropriate Government
may, without the consent of the person
sentenced, commute-

(a) a sentence of death, for any
other punishment provided by the Indian
Penal Code;

(b) a sentence of imprisonment
for life, for imprisonment for a term not
exceeding fourteen years or for fine;

(c)
a
sentence
of
rigorous
imprisonment, for simple imprisonment for
any term to which that person might have
been sentenced, or for fine;

(d)
a
sentence
of
simple
imprisonment, for fine".

59. It was brought to the notice of this
Court that the convict has also a wife and three
children, he is the sole earning member of the
family, hence we deem it fit to substitute his
punishment of life imprisonment to 14 years
as it appears that he has not been even able to
engage any advocate for him. This is the jail
appeal pending since 2007 and very strangely
after 10 years of its filing the matter has been
numbered.

60.