# Sagar v. State

- **Citation:** (2022) 10 ILRA 627
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-13
- **Case number:** Jail Appeal No. 331 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sagar-v-state-47768
- **Pages:** 6

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2)/383 -
Indian Penal Code, 1860-Sections 304challenge
to-conviction-circumstantial
evidence-accused was last seen by PW-1,
2, 4, 5-only on the basis of last seen he
was awarded life imprisonment-they were
habitual drinker does not mean the chain
is complete-the chain of events as per
circumstances should point out the guilt of
the accused alone-Conviction on the basis
of last seen is a very weak piece of
evidence-accused remained in custody for
almost 10 years -hence, on the scanty
evidence he is not required to confine
anymore-The sentence is upturned.(Para 1
to 26)

B. 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. At the same
time, undue harshness should also be
avoided keeping in view the reformative
approach
underlying
in
our
criminal
justice system.(Para 19 to 21)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

10 All. Sagar Vs. State
627
rights of the accused-appellant to apply for
remission, which shall be dealt with in
accordance with law on merits.

48. We record out appreciation for the
able assistance rendered in the case by Ms.
Archana Singh, learned Amicus Curiae,
who would be entitled to her fee from the
High Court Legal Service Authority.

49. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Baghpat, who shall transmit the same to the
Jail
Superintendent
concerned
for
information
of
the
accused-appellant
henceforth.
----------
(2022) 10 ILRA 627
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2022

BEFORE

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

Jail Appeal No. 331 of 2021

Sagar ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Anshul Nigam, Sri Ashfaq
Ahmed Ansari (A.C.)

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2)/383 -
Indian Penal Code, 1860-Sections 304challenge
to-conviction-circumstantial
evidence-accused was last seen by PW-1,
2, 4, 5-only on the basis of last seen he
was awarded life imprisonment-they were
habitual drinker does not mean the chain
is complete-the chain of events as per
circumstances should point out the guilt of
the accused alone-Conviction on the basis
of last seen is a very weak piece of
evidence-accused remained in custody for
almost 10 years -hence, on the scanty
evidence he is not required to confine
anymore-The sentence is upturned.(Para 1
to 26)

B. 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. At the same
time, undue harshness should also be
avoided keeping in view the reformative
approach
underlying
in
our
criminal
justice system.(Para 19 to 21)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Jaideep Neogi Vs St. of W.B. (2010) 68 ACC
227

2. Kalu @ Laxmi Vs St. of M.P. (2019) 10 SCC 211

3. Ravindra Singh Vs St. of Punj. (2022) 7 SCC
581

4. Mohd. Giasuddin Vs St. of A.P.(1977) AIR
SCC 1926

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

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

7. Guru Basavraj Vs St. of Karn. (2012) 8 SCC
734

8. Sumer Singh Vs Surajbhan Singh (2014) 7
SCC 323

9. St. of Punj. Vs Bawa Singh (2015) 3 SCC 441
628 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Raj Bala Vs St. of Har. (2016) 1 SCC 463

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

1. This appeal has been preferred by
the appellant- Sagar against the judgment
and order dated 9.5.2013, passed by
Additional Sessions Judge, Court No.3,
Saharanpur, in Session Trial No.45 of 2012
(State vs. Sagar son of Rajendra) arising
out of Case Crime No.347 of 2011 under
Section 304 IPC, Police Station-Behat,
District-Saharanpur, whereby the accused
was convicted and awarded sentence under
Section 304 IPC for life

2. The facts giving rise to this appeal
are that on 9.9.2011 complainant- Shyam
Singh has given a typed written-report (Ext.
ka-03) at the police station stating that on
the day of Rakshabandhan on 13.8.2011 at
about 10:00 o'clock when his brother Vinod
s/o Peerdiyaa alongwith Sagar had gone
somwhere from the home, On the way, they
were followed by Sumit. When his brother
Vinod did not come back home, he
searched for him at the relatives and other
friends place. On not being found,
information was given at the police station
on 17.8.2011. On 25.8.2011 at 6:00 p.m.
dead body of Vinod was recovered from
the canal which is around 3 km from
Baraut Police Chowki. On receiving
information, the informant and others
reached Baraut and identified the dead
body of Vinod. His postmortem was
conducted in Baghpat itself. Thereafter his
funeral was conducted. The complainant
was fully assure that Sagar had thrown the
dead body in canal after committing
murder due to enmity. Pappu s/o Rulha and
Aman s/o Ridkaram of his village were the
witnesses of the said incident. .

3. On the basis of this information,
chik report was prepared by registering the
C.C. No.347/11, u/s 302 IPC on 9.9.2011
at 21:40 o'clock by C/- clerk Shri Ram
Kashyap wherein the time of incident has
been recorded on 13.8.2011 at 11:00 a.m.
The distance of the place of occurrence
from the police station has been shown to
be 5 Km. away. Entry of this report was
made in report no.46 of the GD at the
same time and on the same day. The
investigation of the case was handed over
to investigating officer R.S. Bhagor. The
investigating officer on 9.9.2011 recorded
copy of chik, copy of report complainant's
statement and Sumit's statement. On
10.9.2011
the
statement
of
the
complainant
was
again
recorded.
Statements of witnesses namely Pappu and
Aman were recorded as per Section 161 of
Cr.P.C. Site plan and recovery memo of
slippers of the deceased were prepared
after inspection of the spot. On 15.9.2011,
inquest report as well as other documents
of the deceased was enclosed with the case
diary. The Investigation Officer again
recorded the statement of the complainant
on 19.9.2011.

4. After completing the investigation,
charge-sheet was submitted against accused
appellant-Sagar, under Sections 304 IPC.
The case being exclusively triable by court
of session same was committed to the court
of session for trial.

5. Learned trial court framed charges
against appellant under Sections 304 IPC.
Charges were read over to the accused,
who denied the charges and claimed to be
tried.
10 All. Sagar Vs. State
629

6. To bring home the charges,
following witnesses were examined by the
prosecution:

1.
Shyam Singh
PW1
2.
Aman Kumar
PW2
3.
Rajesh Kumar PW3
4.
Sumit
PW4
5.
Pappu
PW5
6.
Dr.
Ashok
Kumar
PW6
7.
SI
Rajbeer
Singh
PW7
8.
Constable
Shreeram
Kashyap
PW8

7.

Apart
from
oral
evidence,
following documentary evidence were
produced by prosecution and proved by
leading the evidence:

1.
Panchayatnama Ex. Ka.1
2.
Fard
Ex. Ka.2
3.
Tahreer
Ex. Ka.3
4.
Postmortem
report
Ex. Ka.4
5.
Site plan
Ex. Ka.5
6.
FIR
Ex. Ka.6
7.
Site plan
Ex. Ka.7
8.
Charge sheet
Ex. Ka.8

8. After recording of evidence the
accused-appellant was examined under
Section 313 Cr.P.C. and evidence led by
prosecution against him was put to him.
Accused stated that false evidence has been
led against him. Accused did not examine
any witness in his defence.

9. We have heard Sri Anshul Nigam,
learned Amicus Curiae appearing for the
appellant, learned AGA for the State and
perused the record.

10. Learned counsel for the appellant
submitted that appellant has been falsely
implicated in this case. He is innocent. The
custody certificate would show that the
accused is in jail for more than 10 years. In
the alternative it is submitted that if the
accused is held guilty, he be given sentence
of undergone namely twelve years,three
months and ten days with remission and the
fine be reduced.

11. Per contra, learned AGA
submitted that appellant is named in FIR .
The learned Court below has already
shown mercy and has convicted the
accused appellant under Section 304 IPC.
The dead body was thrown in a canal is
proved.

12. Before coming to the conclusion
that the accused is the perpetrator, we have
to evaluate the evidence on record if he
hold him guilty of the commission of
offence,
whether
sentence
of
life
imprisonment and fine is adequate or the
sentence requires to be modified in the
facts and circumstances of this case and in
the light of certain judicial pronouncements
and precedents applicable in such matters.

13. The fact that the evidence which
has been on record only shows that the
accused was last seen with the deceased.
However, except this the chain which the
learned Judge has mentioned does not
satisfy the test for punishing an accused
630 INDIAN LAW REPORTS ALLAHABAD SERIES
where the matter hinges on circumstantial
evidence. Conviction on the basis of last
seen is a very weak piece of evidence. In
our case the chain which is set to be
pointing the finger at the accused are very
feeble. The learned Judge has held that the
following are the instances which complete
the chain namely the accused and the
deceased were habituate to drink liquor.
Just because the deceased was seen with
the accused and just because his dead body
was immediately recognized by the family
members cannot mean that the chain is
complete. The judgment in Jaideep Neogi
Vs. State of West Bengal, 2010 (68) ACC
227 which was relied by the counsel for the
accused before the court below which
would apply in the facts of the case.

14. The chain of events as per the
circumstances should point out to the guilt
of the accused and the accused alone. The
decision of Apex Court in Kalu @ Laxmi
Versus
State
of
Madhya
Pradesh,
2019(10) SCC 211 will also have to looked
into. Can a man be convicted for
commission of offence under Section 302
of IPC on the basis of last seen together
only without any other corroborative
evidence.

15. The chain of events which the
learned Judge has narrated is not such
which would be full proof for Court to
concur with the learned Trial Judge about
the guilt of the accused. The burden of
proof lies on the State which has miserably
failed to the adverse interference that the
deceased and the accused used the drink of
liquor together would not compelling
circumstances on neither is it a chain in the
chain of events.

16. There are no other incriminating
circumstances against the accused even
under Section 27 of Evidence Act, 1872
will not permit this Court to concur with
the finding of facts by the learned Judge.
There are several inconsistencies and
contradiction making it impossible to
sustain the conviction. We are supported in
our view by the recent judgment of the
Apex Court report in Ravindra Singh Vs.
State of Punjab, (2022)7 SCC 581.

17. Even if we consider the other
aspects it is not proved that he was the
person who had committed the offence.
There is no recovery from the accused.
There is nothing incriminating except the
confessional statement to one of the
witnesses which is not proved to the hilt
and could not have been acted upon .

18. In the alternative even if we
concur with the court below whether the
punishment of life imprisonment is justified
for which we will have to go by the facts
which we have narrated herein-above. This
Court would refer to the following
precedents, namely, 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 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
10 All. Sagar Vs. State
631
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."

19. '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.

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

21. 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
632 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity of reformation in order to bring
them in the social stream.

22. 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.

23. The accused is in custody for nine
years one month and seventeen days as on
date of the report sent by the Office which
would mean that the undergone period
would be 3507 days and the total sentence
including remission is twelve years three
months and eighteen days on 23.6.2022 and
we are in the month of October, 2022.
However, on the scanty evidence he is not
required to be confined anymore and the
sentence is upturned.

24. The facts that it was homicidal
death is the fact from record. The decision
cited by learned counsel for accused which
was not accepted by the Court below would
apply to the fact of this case also. He was
last seen by PW-1, 2, 4 and 5. Only on the
basis of last seen, he has been convicted for
commission of offence Section 304 of IPC
for life imprisonment which cannot be
sustained.

25. Rs.15,000/- as honorarium be paid
by Allahabad Legal Service Committee to
learned amicus curiae for his valuable
service.

26. Accordingly, the appeal is partly
allowed, as modified above.
----------
(2022) 10 ILRA 632
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.09.2022

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Criminal Appeal No. 487 of 2020

Krishna Veer @ Pinkoo ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Durgesh Kumar Singh, Sri Anshu
Chaudhary

Counsel for the Respondents:
Sri A.N. Mulla, Sri G.P. Singh, Sri Narain
Mishra, A.G.A.'s

A.
Criminal
Law-Code
of
Criminal
Procedure,1973-Section 374(2) - Indian
Penal Code, 1860-Section 302 - SC/ST Act,
1989 - Section 3(2)(v) -Challenge toConviction-murder-All
the
three
eye
witnesses (PW's 1,2,4) have become
hostile, PW-1 and 4 clearly denied the
presence on spot while PW2 stated that
he had not seen who fired shot-appellant
convicted while the co-accused acquitted
on the similar set of evidence, which is
illegal-no evidence regarding intentional
insult to the deceased, no offence is made
out under SC/ST Act-person who was the
cause of incident was not examinedmotive not proved-two shots were fired
but
only
one
empty
cartridge
was
recovered-deceased
was
sitting
on
Chabutra after having dinner while in post
morterm report, no solid material found
inside the intestine, this also makes the
prosecution case doubtful-Moreso, in the
present case, mandatory provision of