# Samharu Gupta v. State of U.P

- **Citation:** (2023) 3 ILRA 887
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-22
- **Case number:** Criminal Appeal No. 755 of 2022
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/samharu-gupta-v-state-of-u-p-49872
- **Pages:** 7

## Headnote

Criminal Law-Indian Penal Code-1860Sections 299,300,302 & 304(I))-AccusedAppellant in anger killed his wife by single
blow of shovel (fawda)-Conviction U/s
302 IPC- Postmortem report st.d injuries
on the body would be the cause of death
and it was homicidal death- The death
was
not
premeditated-Accused
had
888 INDIAN LAW REPORTS ALLAHABAD SERIES
knowledge that his act would cause bodily
harm to the deceased he but did not want
to do away with the deceased- Offence is
not punishable u/s 302 but is culpable
homicide
not
amounting
to
murder,
punishable U/s 304 (Part I) of I.P.C-
Criminal justice jurisprudence adopted in
the
country
is
not
retributive
but
reformative
and
corrective-Accused
undergone more than seven years of
incarceration and he has one daughter to
look after-Fine is substituted by four
months' imprisonment of incarcerationImpugned judgment and order modified.

Appeal partly allowed. (E-15)

List of Cases cited:

## Text

3 All. Samharu Gupta Vs. State of U.P.
887
reformative approach underlying in our
criminal justice system.

68. Keeping in view the facts and
circumstances of the case and also 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.

69. 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.

70. In view of the above, the accusedappellant is sentenced to 10 years rigorous
imprisonment. Fine is reduced to Rs.5000/-
.
However,
the
default
sentence
is
maintained. If 10 year's sentence is already
over, the accused-appellant be set free
forthwith, if not wanted in any other case.
He will deposit the fine within four weeks
from the date of his release and in case fine
is not deposited he will be re-incarcerated
to undergo the sentence of default.

71. Resultantly, the appeal is partly
allowed to the extent that the appellant be
convicted under section 304 Part-I IPC
awarding sentence of ten years rigorous
imprisonment with fine of Rs, 15,000/ in
Session Trial No. 445 of 2007 is
maintainable with default sentence which
would run after 10th year of incarceration.
As appellant is in jail for 15 years, he be set
free immediately if not wanted in other
offence. The conviction and sentence
awarded vide judgement and order dated
22.03.2013 passed by learned Additional
Sessions Judge Court No. 1 Ghaziabad in
Sessions Trial No. 446 of 2007, under
Section 4/25 Arms Act, shall remain intact
which is already served.

72. Trail court record be transmitted to
the court concerned immediately for
necessary action
----------
(2023) 3 ILRA 887
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.02.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 755 of 2022

Samharu Gupta ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Karunesh Pratap Singh

Counsel for the Respondent:
G.A.

Criminal Law-Indian Penal Code-1860Sections 299,300,302 & 304(I))-AccusedAppellant in anger killed his wife by single
blow of shovel (fawda)-Conviction U/s
302 IPC- Postmortem report st.d injuries
on the body would be the cause of death
and it was homicidal death- The death
was
not
premeditated-Accused
had
888 INDIAN LAW REPORTS ALLAHABAD SERIES
knowledge that his act would cause bodily
harm to the deceased he but did not want
to do away with the deceased- Offence is
not punishable u/s 302 but is culpable
homicide
not
amounting
to
murder,
punishable U/s 304 (Part I) of I.P.C-
Criminal justice jurisprudence adopted in
the
country
is
not
retributive
but
reformative
and
corrective-Accused
undergone more than seven years of
incarceration and he has one daughter to
look after-Fine is substituted by four
months' imprisonment of incarcerationImpugned judgment and order modified.

Appeal partly allowed. (E-15)

List of Cases cited:

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

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

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

4. Mohd. Giasuddin Vs St. of A.P., [AIR 1977 SC
1926]

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

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

7. Jameel vs St. of U.P. [(2010) 12 SCC 532]

8. Guru Basavraj vs St. of Karn., [(2012) 8 SCC
734]

9. Sumer Singh Vs Surajbhan Singh, [(2014) 7
SCC 323]

10. St. of Pun.Vs Bawa Singh, [(2015) 3 SCC
441]

11. Raj Bala Vs St. of Har., [(2016) 1 SCC 463]

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Ajit Singh, J.)

1. Heard Sri Karunesh Pratap Singh,
learned counsel for the appellant and
learned A.G.A. for the State.

2. Though learned counsel for the
appellant has made submissions as far as
bail is concerned, we have gone through
the record, the judgment impugned and the
factual data and by consent of learned
A.G.A. we proceed to decide this appeal
finally where the accused-appellant is in
jail for more than seven years and he has
one daugher to look after.

3. This appeal challenges the
judgment and order dated 3.12.2021 passed
by
Additional
Sessions
Judge/Special
Judge, P.A. Act/U.P.S.I.B., Gorakhpur in
Sessions Trial No.129 of 2016 (State vs.
Samharu Gupta) whereby the learned
Sessions Judge has convicted accusedappellant under Section 302 of Indian Penal
Code, 1860 (hereinafter referred to as 'IPC')
and
sentenced
him
to
undergo
imprisonment
for
life
with
fine
of
Rs.50,000/- and, in case of default in
payment of fine further to undergo two
years' imprisonment.

4. Brief facts as culled out from the
record are that the brother of the deceased
made a complaint before the Police Station
Pipraich, Gorakhpur stating therein that her
sister who was married with accusedappellant 21 years ago was killed by her
husband by Shovel (Fawda). It was also
stated that there were quarrel between both
of them due to suspicion of illicit relation
of deceased. The deceased died while on
the way to hospital. On the basis of his
complaint, First Information Report was
registered as Case Crime No. 328 of 2015.

5. On investigation being put into
motion, the investigating officer recorded
3 All. Samharu Gupta Vs. State of U.P.
889
the statements of all the witnesses and
submitted the charge-sheet to the learned
Magistrate.
The
learned
Magistrate
summoned the accused and committed him
to Court of Sessions as prima facie charge
was under Section 302 of IPC.

6. On being summoned, the accusedappellant pleaded not guilty and wanted to
be tried. The Trial started and the
prosecution examined 11 witnesses who are
as follows:

1
Chandrabhan
PW1
2
Smt. Vimla Devi
PW2
3
Ritu Gupta
PW3
4
Arun Gupta
PW4
5
Madhuri Devi
PW5
6
Ganga Prasad
PW6
7
Guddu Gaud
PW7
8
Akhilesh
Kumar
Upadhyaya
PW8
9
Prabhatesh Kumar PW9
10
Nirmal
Kumar
Yadav
PW10
11
Dr.
Dhananjay
Kushwaha
PW11

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

1
F.I.R.
Ex.Ka.13
2
Written Report
Ex.Ka.1
3
Postmortem
Report
Ex.Ka.3/1 &
3/2
4
Panchayatnama
Ex.Ka.11
5
Charge-sheet
Ex. Ka.7
6
Site Plan
Ex.Ka.5
7
F.S.L. Report
Ex.Ka.6

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

9. It is submitted by learned counsel
for the appellant that the incident occurred
at the spur of moment which arose due to
sudden quarrel between husband and wife.
It is submitted that the accused had not
premeditated to do away with the deceased.

10. In alternative, it is submitted that
at the most, the death can be homicidal
death not amounting to murder and
punishable under Section 304 II or Section
304 I of I.P.C. If the Court decides that the
accused is guilty under Section 302 of IPC,
then the accused may be granted fixed term
punishment of incarceration as the death is
not a gruesome act on part of accused.

11. Per contra, learned A.G.A. for the
State submits that there was no grave and
sudden provocation from the side of the
deceased
and
that
looking
to
the
gruesomeness of the offence and the
evidence of prosecution witnesses, this
Court should not show any leniency in the
matter. It is further submitted by learned
A.G.A. that ingredients of Section 300 of
IPC are rightly held to be made out by the
learned Sessions Judge who has applied the
law to the facts in case.

12. We have considered the evidence
of witnesses and the Postmortem report
which states that the injuries on the body of
890 INDIAN LAW REPORTS ALLAHABAD SERIES
the deceased would be the cause of death
and that it was homicidal death, we concur
with the finding of the Court below.

13. This takes us to the next question
whether it was a perpetrated murder or
would it fall within any of the exceptions to
Section 300 of IPC?

14. It would be relevant to refer to
Section 299 of the Indian Penal Code,
which reads as under:

"299. Culpable homicide: Whoever
causes death by doing an act with the
intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide."

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

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

INTENTION

 (a)
with
the
intention
of
causing death; or
(1) with the intention
of causing death; or
(b)
with
the
intention
of
causing
such
bodily injury as is
likely to
cause death; or
(2) with the intention
of causing such bodily
injury as the offender
knows to be likely to
cause the death of the
person to whom the
harm is caused;
KNOWLEDGE
KNOWLEDGE
(c)
with
the
knowledge that the
act is likely to
cause death.
(4)
with
the
knowledge that the act
is
so
immediately
dangerous
that it must in all
probability
cause
death or such bodily
injury as is likely to
cause
death,
and
without any excuse for
incurring the risk of
causing death or such
injury as is mentioned
above.

16. Out of anger he had given a single
blow to his wife. The evidence of P.W.3
also goes to show that incident occurred
without
premeditation.
The
deceased
resented to the idea of selling field given by
the father and there was hot discussion
about the same and in anger the accused
gave single blow to his wife.

17. From the upshot of the aforesaid
discussion, it appears that the death caused
by the accused was not premeditated.
3 All. Samharu Gupta Vs. State of U.P.
891
Accused though had knowledge that his act
would cause bodily harm to the deceased
he but did not want to do away with the
deceased. Hence the instant case falls under
the Exceptions 1 and 4 to Section 300 of
IPC. While considering Section 299 as
reproduced
herein
above
offence
committed will fall under Section 304 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 in mind.

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

19. This takes this Court to the
quantum of sentence. In this regard, we
have to analyse the theory of punishment
prevailing in India.

20. 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."

21 . '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.

22. 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
892 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

23. 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.

24. 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.

25. In view of the above, the accusedappellant is sentenced to the seven years of
imprisonment as he has undergone more
than seven years of incarceration and he
has one daughter to look after. Fine is
substituted by four months' imprisonment
of incarceration which would start after
seven years. The accused-appellant be set
free forthwith, if he has served the sentence
imposed by this Court and if he is not
wanted in any other case.

26. In view of the above, the appeal is
partly allowed. Judgment and order passed
3 All. Deshraj @ Baba Vs. State of U.P.
893
by the learned Sessions Judge shall stand
modified to the aforesaid extent. Record be
sent back to the Court below forthwith.
----------
(2023) 3 ILRA 893
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 1170 of 2017

Deshraj @ Baba ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sanjay Kumar Srivastava, Sri Gaurav Kakkar

Counsel for the Respondent:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections- 313 & 437 - Indian
Penal Code, 1860 - Sections 201, 302 &
364 - Appeal - against conviction & sentence -
Offence of murder - FIR -, during investigation,
it is was found that, accused along with coaccused with an intent to grab amount of two
deceased, killed them - Examination of
evidences - Court finds that, Accused appellant
is with regard to recovery of spade and bullock
cart which has already been disbelieved by the
court - There is neither any appeal filed against
such finding by St. nor we find any error in the
conclusion arrived at by court below particularly
as recovery of spade is after three and a half
months and there are no independent witness
to such recovery - Court also finds that, there is
no specific question put to the accused
appellant with regard to recovery under Section
313 Cr.P.C - admittedly, case is based on
circumstantial
evidence
and
in
such
circumstantial prosecution must connect the
chain of events without any alternate hypothesis
- held, prosecution has miserably failed to
connect chain of events pointing exclusively to
the hypothesis of guilt attributed to the accused
appellant - motive to commit the offence has
not been established - Except for weak evidence
in the nature of recovery and circumstance of
last seen, - trial court, completely omitted to
consider evidence in correct perspective -
Inconsistency in testimony has also been
overlooked - Gap of 20 hours in time of last
seen and expected time of death remains wholly
unexplained and an alternative hypothesis
consistent with the innocence of accused during
such period otherwise cannot be ruled out - in
such circumstances accused appellant is entitled
of benefit of doubt - Appeal is allowed,
directions accordingly. (Para - 26, 27, 38, 40, 41,
43)

Appeal allowed. (E-11)

List of Cases cited:

1. Jabir & ors. Vs The St. of Uttarakhand, 2023
AIR SC 488,

2. Ram Pratap Vs The St. of Har., 2023 (2) SCC
345,

3. Jai Prakash Tiwari Vs St. of M. P., 2022 AIR
SC 3601,

(Delivered by Hon'ble Ashwani Kumar
Mishra, J. & Hon'ble Vinod Diwakar, J.)

1. This appeal is by the accused
appellant Deshraj @ Baba challenging the
judgment and order dated 18.02.2017,
passed by Additional District and Sessions
Judge, Court No. 3, Aligarh in Sessions
Trial No. 779 of 2004 (State vs. Deshraj @
Baba and others) arising out of Case Crime
No. 133 of 2003, whereby the accused
appellant has been convicted under section
302
IPC
and
sentenced
to
life
imprisonment with fine Rs. 20,000/- and in
default of fine further undergo three
months additional imprisonment; under
section
201
IPC
for
three
years
imprisonment with fine of Rs. 10,000/- and
in default of fine further undergo one