# Shailesh & Ors v. State of U.P

- **Citation:** (2022) 10 ILRA 1008
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-30
- **Case number:** Criminal Appeal No. 2455 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shailesh-ors-v-state-of-u-p-47658
- **Pages:** 11

## Headnote

Criminal Law- Indian Penal Cade, 1860-
Sections 299 & 302 - Section 304 PartI- The 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 IPC. While
considering Section 299 above offence
committed will fall under Section 304
Part-I-The factual scenario as it emerges
would go to show that the incident
occurred when the accused along with
the deceased conveyed that he would
pay on the next day that infuriated the
accused and therefore they beat the
deceased. The incident occurred out of a
quarrel.

Where the offence resulted from a sudden
quarrel, without pre-meditation and intention
to cause death but the injuries were sufficient
in the ordinary course of nature to have
caused death, then the offence will be
culpable homicide not amounting to murder
and would be punishable u/s 304 Part- I of
the IPC.

'Proper Sentence'-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. In operating
the sentencing system, law should adopt
corrective
machinery
or
deterrence
based on factual matrix. 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 judicial trend in
the country has been towards striking a
balance
between
reform
and
punishment-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.

Settled
law
that
punishment
should
be
proportionate to the gravity of the offence and
the manner of its commission and undue
harshness should be avoided hence, while
striking a balance between deterrence and
reform, endeavour should be to provide an
opportunity to the convict to be reformed and
assimilated in the national mainstream. (Para
22, 23, 26, 27, 30, 31, 33, 37)

Criminal Appeal partly allowed. (E-3)

Case
Law/Judgements
relied
upon:-
10 All. Shailesh & Ors. Vs. State of U.P.
1009

## Text

1008 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 10 ILRA 1008
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

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

Criminal Appeal No. 2455 of 2017

Shailesh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Siya Ram Pandey, Sri Thakur Prasad
Dubey, Sri Vijay Singh Sengar

Counsel for the Respondent:
G.A., Sri Amit Kumar Chaudhary, Sri Ashish
Kumar, Sri Prashant Kumar Tripathi, Sri
Tapa Kumar Mishra

Criminal Law- Indian Penal Cade, 1860-
Sections 299 & 302 - Section 304 PartI- The 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 IPC. While
considering Section 299 above offence
committed will fall under Section 304
Part-I-The factual scenario as it emerges
would go to show that the incident
occurred when the accused along with
the deceased conveyed that he would
pay on the next day that infuriated the
accused and therefore they beat the
deceased. The incident occurred out of a
quarrel.

Where the offence resulted from a sudden
quarrel, without pre-meditation and intention
to cause death but the injuries were sufficient
in the ordinary course of nature to have
caused death, then the offence will be
culpable homicide not amounting to murder
and would be punishable u/s 304 Part- I of
the IPC.

'Proper Sentence'-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. In operating
the sentencing system, law should adopt
corrective
machinery
or
deterrence
based on factual matrix. 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 judicial trend in
the country has been towards striking a
balance
between
reform
and
punishment-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.

Settled
law
that
punishment
should
be
proportionate to the gravity of the offence and
the manner of its commission and undue
harshness should be avoided hence, while
striking a balance between deterrence and
reform, endeavour should be to provide an
opportunity to the convict to be reformed and
assimilated in the national mainstream. (Para
22, 23, 26, 27, 30, 31, 33, 37)

Criminal Appeal partly allowed. (E-3)

Case
Law/Judgements
relied
upon:-
10 All. Shailesh & Ors. Vs. State of U.P.
1009
1. Nishan Singh Vs St.of Pun., 1994 0 Supreme
(SC)273

2. Manjeet Singh Vs St.of H. P., 2014
LawSuit(SC) 341

3. Rajju son of Jagveer Singh Vs St.of U. P.,
1992 0 Supreme(All) 546

4. Pinkoo @ Jitendra Vs St.of U.P., 2022 0
Supreme (All) 166

5. VencilPushpraj Vs St.of Raj., 1990 0 Supreme
( SC) 662

6. Kala Singh @ Gurnam Singh Vs St.of Pun.,
2021 LawSuit(SC) 536

7. Ramesh Alias Dapinder Singh Vs St.of H. P.,
2021 0 Supreme (SC) 152

8. Virender Vs St.of Har., 2019 LawSuit(SC)
2024

9. Tukaram & ors. Vs St.of Mah., reported in
(2011) 4 SCC 250

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

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

12. Criminal Appeal No.83 of 2008 (Gautam
Manubhai Makwana Vs St.of Gujarat) decided on
11.9.2013

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

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

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

16. Pardeshiram Vs St.of M.P., (2021) 3 SCC 238

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

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

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

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

1. Heard Heard Sri Siya Ram Pandey,
learned counsel for appellants and Sri Vikas
Goswami, learned counsel for State.

2. This appeal has been preferred by
the
accused-appellants
against
the
judgment and order dated 4.5.2017, passed
by learned Sessions Judge, Hapur in
Sessions Trial No.71 of 2016 (State of
Uttar Pradesh Vs. Shailesh and others)
arising out of Case Crime No.328 of 2015
convicting the accused - appellants under
Sections 302 read with 34 of Indian Penal
Code, 1860 (in brevity 'IPC'), Police
Station Gardhmukteshwar, District Hapur
and sentenced the accused-appellants to
undergo imprisonment for life with fine of
Rs.5,000/- and in case of default of
payment of fine, further to undergo
imprisonment for a period of one month.

3. The facts of the present case are
that on 31.7.2015, while the informant and
his father Babu Ram( deceased) were
returning home after closing their tea shop,
they were intercepted by accused -
appellant-Raju, who asked them to pay
Rs.150/-for the grocery items which were
purchased by the deceased earlier. The
accused- appellant Raju was told that the
amount will be paid the next day, hearing
which he got annoyed and abused the
complainant-Sanjay, son of the deceased
and his father ( deceased). At this stage,
while the complainant-Sanjay and the
deceased were proceeding on their way, the
accused- appellants surrounded them. The
accused- appellants then started beating and
kicking the deceased, till he breath his last.
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
After killing the deceased, the accused-
appellants fled away. Pursuant to this an
FIR, Case Crime No.202 of 2015 was
registered
by
the
complainant-Sanjay
against the accused- appellants, under
Section 302 read with Section 34 of IPC.
Consequently, the accused- appellants were
arrested.

4. On trial, the trial court vide order
dated 4.5.2015 found the accused -
appellants guilty under Section 302 read
with Section 34 of IPC and sentenced them
to imprisonment of life and a fine of
Rs.5000/- each.

5. After investigation, the chargesheet u/s 302 I.P.C. against the accused
persons Shailesh, Mahadev, Kuldeep and
Raju was filed. The cognizance was taken
on the charge-sheet by the concerned
Magistrate and the case was committed to
the court of session under section 302/34
I.P.C. The charge against the accused;
Shailesh, Mahadev, Kuldeep and Raju was
ordered to framed, to which the accused
persons pleaded not guilty and wanted to be
tried. The prosecution was directed to
produce the complete evidence in support
of their statement.

6. On being summoned, the accusedappellants pleaded not guilty and wanted to
be tried, hence, the trial started and the
prosecution examined about 9 witnesses
who are as follows:

1
Deposition
of
Sanjay@ Kalwa
29.4.2016
25.10.2016
PW1
2
Deposition
of
Sumit
7.6.2016
PW2
3
Deposition
of
Yad Ram
11.8.2016
PW3
4
Deposition
of
Dr.
Gajendra
Singh
29.11.2016 PW4
5
Deposition
of
Jitendra
Kardam
29.11.2016 PW5
6
Deposition
of
Rajendra Singh
30.11.2016 PW6
7
Deposition
of
Arvind Kumar
Nirwal
30.11.2016 PW7
8
Deposition
of
Peetam
Pal
Singh
16.12.2016 PW8
9
Deposition
of
Yatesh
Kumar
Puniya
20.1.2017
PW9

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

1
F.I.R.
31.7.2015
Ex.Ka.4
2
General Diary
31.7.2015

3
Written report
31.7.2015
Ex.Ka.1
4
Postmortum
report
1.8.2015
Ex.Ka.2
5
Panchayatnama 31.7.2015
Ex.Ka.5
6
Final
Form
/
Report
1.9.2015
Ex.Ka.9

General diary

Ex.Ka.3

Site plan

Ex.Ka.5
A

8. Learned counsel for the appellants
has submitted that no offence as alleged has
been committed by the accused. It is further
submitted that the accused had no motive to
do away with the deceased and that the
10 All. Shailesh & Ors. Vs. State of U.P.
1011
death of the deceased was due to petty
dispute which had arisen and there is a
single blow. P.W.-1 the informant Sanjay @
Kalwa was got examined on behalf of the
prosecution who has proved the tehrir
Ex.Ka-1 and supported the prosecution
case. P.W.-2 namely is Sumit, the brother of
informant who has been got examined. This
witness too, has supported the prosecution
case. P.W.-3 Yaad Ram has been examined.
He has corroborated the evidence of PW-1
and PW-2.

9. P.W.-09 sub-inspector Yatesh
Kumar Puniya has been examined who is
also the investigating officer of this case.
He too has conducted the investigation of
the case who recorded the statements of
sub-inspector Arvind Kumar Nirwal, C/-
Manoj Kumar and C/- Kardam, who all got
the post-mortem conducted and of the FIR
scribe namely C/- Rajendra Singh and Dr.
Gajendra Singh who conducted the postmortem. After investigation, charge-sheet
was forwarded against the accused. He has
verified his signature present on the chargesheet. Charge-sheet has been marked as
Ext. ka-09.

10.

After
completion
of
the
prosecution evidence, the statements of the
accused persons u/s. 313 Cr.P.C. were
recorded, wherein denying the prosecution
version, they have stated that the witnesses
have given wrong and false statements due
to enmity, and all of the accused persons
have also stated that the complainant has
developed enmity with them and their
family and therefore they have been falsely
implicated in the aforesaid case, and that
they didn't commit any offence and they
were not present at the spot and that they
are innocent. The accused persons claimed
to adduce the evidence in defence, but even
after providing adequate time, no evidence
in defence was produced by the accused
persons.

11. P.W.-1 the informant Sanjay @
Kalwa was got examined on behalf of the
prosecution who has proved the tehrir
Ex.Ka-1 and supported the prosecution
case. P.W.-2 namely is Sumit, the brother of
informant who has been got examined. This
witness too, has supported the prosecution
case. P.W.-3 Yaad Ram has been examined.
He has corroborated the evidence of PW-1
and PW-2.

12. P.W.-09 sub-inspector Yatesh
Kumar Puniya has been examined who is
also the investigating officer of this case.
He too has conducted the investigation of
the case who recorded the statements of
sub-inspector Arvind Kumar Nirwal, C/-
Manoj Kumar and C/- Kardam, who all got
the post-mortem conducted and of the FIR
scribe namely C/- Rajendra Singh and Dr.
Gajendra Singh who conducted the postmortem. After investigation, charge-sheet
was forwarded against the accused. He has
verified his signature present on the chargesheet. Charge-sheet has been marked as
Ext. ka-09.

13.

After
completion
of
the
prosecution evidence, the statements of the
accused persons u/s. 313 Cr.P.C. were
recorded, wherein denying the prosecution
version, they have stated that the witnesses
have given wrong and false statements due
to enmity, and all of the accused persons
have also stated that the complainant has
developed enmity with them and their
family and therefore they have been falsely
implicated in the aforesaid case, and that
they didn't commit any offence and they
were not present at the spot and that they
are innocent. The accused persons claimed
to adduce the evidence in defence, but even
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
after providing adequate time, no evidence
in defence was produced by the accused
persons.

14. Learned counsel for the appellant
has relied on the decisions of Apex Court in
(a) Nishan Singh Vs. State of Punjab,
1994 0 Supreme (SC)273 (b) Manjeet
Singh Vs. State of Himachal Pradesh,
2014 LawSuit(SC) 341 (c) Rajju son of
Jagveer Singh Vs. State of Uttar
Pradesh, 1992 0 Supreme(All) 546 (d)
Pinkoo @ Jitendra Vs. State of U.P.,
2022
0
Supreme
(All)
166
(e)
VencilPushpraj Vs. State of Rajasthan,
1990 0 Supreme ( SC) 662 (f) Kala Singh
@ Gurnam Singh Vs. State of Punjab,
2021 LawSuit(SC) 536 (g) Ramesh Alias
Dapinder Singh Vs. State of Himachala
Pradesh, 2021 0 Supreme (SC) 152 and
(h) Virender Vs. State of Haryana, 2019
LawSuit(SC) 2024 so as to contend that
the decision of imprisonment for life is bad
and life could not be till the last breath and
the conviction under Section 302 read with
Section 34 of IPC is not made out and the
accused are entitled to be acquitted.
However, at the outset it is mentioned that
on shifting their decisions as they lay down
law about lessor sentence precisely under
Section 304 read with Section 34 of IPC

15. Learned counsel for the appellants
after
submitting
for
clean
acquittal
submitted that he is not pressing this appeal
on its merit, but he prays only for reduction
of the sentence as the sentence of life
imprisonment awarded to the appellants by
the trial court is very harsh. Learned
counsel also submitted that appellant is
languishing in jail for the past more than
five years.

16. Sri Vikas Goswami, learned
counsel appearing on behalf of State
submits that presence of all the accused is
proved as per the evidence of PW- 1 and 2
and there is no denial of presence of the
accused. Learned counsel further submits
that Section 302 read with Section 34 of
IPC is made out against all the accused -
appellants.

17. As learned counsel for the
appellant is not pressing this appeal on its
merit, but prays only for reduction of the
sentence
as
the
sentence
of
life
imprisonment awarded to the appellant by
the trial court is very harsh. Learned
counsel also submitted that appellant is
languishing in jail for the past more than 5
years.

18. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind about the
guilt of the present appellants as far as
death of deceased is concerned.

19. 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 read with
Section 34 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 read as under:

"299.
Culpable
homicide:
Whoever causes death by doing an act
with the intention of causing death, or
with the intention of causing such bodily
injury as is likely to cause death, or with
the knowledge that he is likely by such act
to cause death, commits the offence of
culpable homicide."
10 All. Shailesh & Ors. Vs. State of U.P.
1013

20. 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
IPC. 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
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.

21. The deceased was aged 65 years.
The postmortem of the deceased was
conducted.

22. 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.

23. From the upshot of the aforesaid
discussions, it appears that the 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 IPC. While
considering Section 299 as reproduced
herein above offence committed will fall
under Section 304 Part-I as per the
observations of the Apex Court in Veeran
and others Vs. State of M.P. Decided,
(2011) 5 SCR 300 which have to be also
kept in mind.

24. We can safely rely upon the
decision of the Gujarat High court in
Criminal Appeal No.83 of 2008 (Gautam
Manubhai
Makwana
Vs.
State
of
Gujarat) decided on 11.9.2013 wherein the
Court held as under:

"12. In fact, in the case of
Krishan vs. State of Haryana reported in
(2013) 3 SCC 280, the Apex Court has held
that it is not an absolute principle of law
that a dying declaration cannot form the
sole basis of conviction of an accused.
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
Where the dying declaration is true and
correct, the attendant circumstances show
it to be reliable and it has been recorded in
accordance with law, the deceased made
the dying declaration of her own accord
and upon due certification by the doctor
with regard to the state of mind and body,
then it may not be necessary for the court
to look for corroboration. In such cases,
the dying declaration alone can form the
basis for the conviction of the accused. But
where the dying declaration itself is
attended by suspicious circumstances, has
not been recorded in accordance with law
and settled procedures and practices, then,
it may be necessary for the court to look for
corroboration of the same.

13. However, the complaint given by
the deceased and the dying declaration
recorded by the Executive Magistrate and the
history before the doctor is consistent and
seems to be trustworthy. The same is also duly
corroborated with the evidence of witnesses and
the medical reports as well as panchnama and
it is clear that the deceased died a homicidal
death due to the act of the appellants in pouring
kerosene and setting him ablaze. We do find that
the dying declaration is trust worthy.

14. However, we have also not lost
sight of the fact that the deceased had died after
a month of treatment. From the medical reports,
it is clear that the deceased suffered from
Septicemia which happened due to extensive
burns.

15. In the case of the B.N. Kavatakar
and another (supra), the Apex Court in a
similar case of septicemia where the deceased
therein had died in the hospital after five days of
the occurrence of the incident in question,
converted the conviction under section 302 to
under section 326 and modified the sentence
accordingly.

15.1 Similarly, in the case of
Maniben (supra), the Apex Court has
observed as under:

"18. The deceased was admitted in
the hospital with about 60% burn injuries
and during the course of treatment developed
septicemia, which was the main cause of
death of the deceased. It is, therefore,
established that during the aforesaid period
of 8 days the injuries aggravated and
worsened to the extent that it led to ripening
of the injuries and the deceased died due to
poisonous effect of the injuries.

19. It is established from the dying
declaration of the deceased that she was
living separately from her mother-in-law, the
appellant herein, for many years and that on
the day in question she had a quarrel with the
appellant at her house. It is also clear from
the evidence on record that immediately after
the quarrel she along with her daughter came
to fetch water and when she was returning,
the appellant came and threw a burning
tonsil on the clothes of the deceased. Since
the deceased was wearing a terylene cloth at
that relevant point of time, it aggravated the
fire which caused the burn injuries.

20. There is also evidence on
record to prove and establish that the action
of the appellant to throw the burning tonsil
was preceded by a quarrel between the
deceased and the appellant. From the
aforesaid evidence on record it cannot be
said that the appellant had the intention that
such action on her part would cause the
death or such bodily injury to the deceased,
which was sufficient in the ordinary course of
nature to cause the death of the deceased.
Therefore, in our considered opinion, the
case cannot be said to be covered under
clause (4) of Section 300 of IPC. We are,
however, of the considered opinion that the
case of the appellant is covered under Section
304 Part II of IPC."

16. In the present case, we have
come to the irresistible conclusion that the
role of the appellants is clear from the
dying declaration and other records.
10 All. Shailesh & Ors. Vs. State of U.P.
1015
However, the point which has also weighed
with this court are that the deceased had
survived for around 30 days in the hospital
and that his condition worsened after
around 5 days and ultimately died of
septicemia. In fact he had sustained about
35% burns. In that view of the matter, we
are of the opinion that the conviction of the
appellants under section 302 of Indian
Penal Code is required to be converted to
that under section 304(I) of Indian Penal
Code and in view of the same appeal is
partly allowed.

17.
The
conviction
of
the
appellants - original accused under Section
302 of Indian Penal Code vide judgment
and order dated 19.12.2007 arising from
Sessions Case No. 149 of 2007 passed by
the Additional Sessions Judge, Fast Track
Court No. 6, Ahmedabad is converted to
conviction under Section 304 (Part I) of
Indian
Penal
Code.
However,
the
conviction of the appellants - original
accused under section 452 of Indian Penal
Code is upheld. The appellants - original
accused are ordered to undergo rigorous
imprisonment for a period of ten years and
fine of Rs. 5000/- each in default rigorous
imprisonment for six months under section
304 (Part I) of Indian Penal Code instead
of life imprisonment and sentence in default
of fine as awarded by the trial court under
section 302 IPC. The sentence imposed in
default of fine under section 452 IPC is
also reduced to two months. Accordingly,
the appellants are ordered to undergo
rigorous imprisonment for a period of ten
years and fine of Rs. 5000/-, in default,
rigorous imprisonment for six months for
offence punishable under section 304(I) of
Indian
Penal
Code
and
rigorous
imprisonment for a period of five years and
fine of Rs. 2,000/-, in default, rigorous
imprisonment for two months for offence
punishable under section 452 of Indian
Penal Code. Both sentences shall run
concurrently. The judgement and order
dated 19.12.2007 is modified accordingly.
The period of sentence already undergone
shall be considered for remission of
sentence qua appellants - original accused.
R & P to be sent back to the trial court
forthwith."

25. In latest decision in Khokan@
Khokhan
Vishwas
Vs.
State
of
Chattisgarh, 2021 LawSuit (SC) 80 on
which the court relies wherein the facts
were similar to this case, the Apex Court
has allowed the appeal of the accused
appellant and sentenced under Section 304
of IPC. The decision of the Apex Court in
the case of Anversinh v. State of Gujarat,
(2021) 3 SCC 12 which was related to
kidnapping from legal guardian, wherein it
was established that the Court while
respecting the concerns of both society and
victim, propounded that the twin principle
of deterrence and correction would be
served
by
reducing
the
period
of
incarceration already undergone by the
accused. In our case, this is not that
gruesome matter where the accused cannot
be dealt with in light of all these judgments.
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.

26. The factual scenario as it emerges
would go to show that the incident occurred
when the accused along with the deceased
conveyed that he would pay on the next
day that infuriated the accused and
therefore they beat the deceased. The
incident occuued out of a quarrel.

27. As narrated herein above the
decision of commission of offence under
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 302 IPC cannot be concurred by us
in view of the As narrated herein above as
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 ( supra) and we are fortified in our
view by the judgment of Apex Court in the
case of B.N. Kavatakar and Another (
supra) and therefore , we are of the
considered opinion that the offence would
be one punishable under Section 304 part-I
of the IPC and not under Section 302 of
IPC or Section 304 Part -II of IPC.

28. 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 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."

29. '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.

30. 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
10 All. Shailesh & Ors. Vs. State of U.P.
1017
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.

31. 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.

32. Since the learned counsel for the
appellant has later not pressed the appeal
on merit, however, after perusal of entire
evidence on record and judgment of the
trial court, we consider that the appeal is
required to be partly allowed.

33. 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.

34. We are unable to agree with the
submission of learned learned A.G.A. as far
as it relates to the finding of the court
below that the death was a premeditated
murder and falls within provisions of
Section 300 of IPC and the sentence under
Section 302 IPC is just and proper. The
reason for the same is that the deceased did
not die and insistence death had it been a
premeditated murder, the injuries on the
body would have caused his immediate
death. We are unable to subscribe the
submission of Sri Pandey that the matter
would fall under Section 323 of IPC. The
evidence is so clinching that we cannot
accept the submission that the accused-
appellants have not caused the death
though it is the matter of fact that no
weapons and instrument is used . There is a
strong motive to do away that the deceased
was 65 years of age. P.W.-1 the informant
Sanjay @ Kalwa was got examined on
behalf of the prosecution who has proved
the tehrir Ex.Ka-1 and supported the
prosecution case. P.W.-2 namely is Sumit,
the brother of informant who has been got
examined. This witness too, has supported
the prosecution case. P.W.-3 Yaad Ram has
been examined. He has corroborated the
evidence of PW-1 and PW-2.
1018 INDIAN LAW REPORTS ALLAHABAD SERIES

35. While perusing the FIR and other
fact, it cannot be said that there was no
common intention. All the accused had an
unison after the incident come to the place of
offence and assaulted the deceased though
the incident occurred due to petty dispute
which had arisen and there is a single blow.

36. We are in agreement with the
submission of Sri Vikas Goswami, learned
AGA that the presence of all the accused is
proved as per the evidence of PW- 1 and 2
and there is no denial of presence of the
accused. Section 302 read with Section 34 of
IPC is made out.

37. On the overall scrutiny of the facts
and circumstances of the case coupled with
medical evidence and the opinion of the
Medical Officer and considering the principle
laid down by the Courts in above referred
case laws, we are of the considered opinion
that in the case at hand, the offence would be
punishable under Section 304 (Part-I) IPC.

Punishment:

38. The main accused- Kuldeep has
died during the pendency of this litigation.

39. The accused is in jail since
4.5.2017. The Apex Court in such cases has
converted the conviction under Section 302
read with Section 34 of I.P.C. to Section 304
Part I of I.P.C. which will come to the aid of
the accused.

40. In view of the aforementioned
discussion, we are of the view that the appeal
has to be partly allowed, hence, appeal is
partly allowed.

41. Appellant-accused is in jail
since 4.5.2017. On completion of seven
years of incarceration with remission is
over for all the offences and if fine is
not deposited, the default sentence
would start after the period of seven
years. The accused- appellants shall be
released on completion of said period,
if not required in any other case. The
accused-appellants would be entitled to
all remissions. The judgment and order
impugned in this appeal shall stand
modified accordingly.

42. Let a copy of this judgment
along with the trial court record be sent
to the Court and Jail Authorities
concerned for compliance.
----------
(2022) 10 ILRA 1018
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.10.2022

BEFORE

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

Criminal Appeal No. 2601 of 2016

Devendra Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Mrs. Vatsala, Sri Pankaj Srivastava, Sri S.S.
Rajput, Sri Shri Krishan Yadav, Sri R.S. Nisit

Counsel for the Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 32 - Dying Declaration recorded
by Investigating Officer- The statement of
the deceased under Section 161 CrPC
recorded by the Investigating Officer is a
cogent and reliable piece of evidence and
is admissible as dying declaration and the