# Shyam Dev & Anr. (In Jail) v. State of U.P

- **Citation:** (2023) 3 ILRA 678
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-11
- **Case number:** Criminal Appeal No. 911 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shyam-dev-anr-in-jail-v-state-of-u-p-49912
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 498A, 304B & 304 (II)-
Murder - Dowry Prohibition Act, 1961 -
Section 3/4 - Evidence Act, 1872 - Section
32 - Appeal against conviction - FIR by
brother of deceased - In wedding,
accused-appellants were given enough
dowry and they demanded extra amount
and motorcycle - When demand was not
fulfilled, the deceased was harassed by
the accused - Informant came to know
that accused persons had poured kerosene
oil on the deceased and tried to set her
ablaze - Trial Court framed charges -
Prosecution has examined 8 witnesses -
Dying Declaration - Death was due to
septicemia after 11 days of incident as per
the testimony of P.W.1 - (Para 3, 4, 5, 8)

Held: While analysing the dying declaration and
the postmortem report, it can't be accepted that
it was an accidental death. It was a homicidal
death and not accidental death. On scrutiny of
the facts and circumstances of the case coupled
with the opinion of the Medical Officer and
3 All. Shyam Dev & Anr. Vs. State of U.P.
679
considering the principle laid down by the Apex
Court it would be concluded that the death was
not premeditated. 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. Accused are reported
to have undergone 12 years of sentence and it
will be sufficient punishment. Fine and default
sentence are maintained. (Para 11, 12, 16, 21,
23)

Appeal is partly allowed. (E-13)

List of Cases cited:

## Text

678 INDIAN LAW REPORTS ALLAHABAD SERIES
subject to rebuttal. Section 20 does not apply
to Section 13(1)(d)(i) and (ii) of the Act.

(h) We clarify that the presumption
in law under Section 20 of the Act is distinct
from presumption of fact referred to above in
point (e) as the former is a mandatory
presumption while the latter is discretionary
in nature."

41. The Supreme Court has answered the
reference that if in absence of evidence of the
complainant (direct/primary/ oral/documentary
evidence), it would be permissible to draw an
inferential deduction of culpability/guilt of a
public servant under Section 7, 13(2)/13(1)(d)
of the Act based on other evidence adduced by
the prosecution.

42. Considering the evidence on the anvil
of the law propounded by the Supreme Court, I
am of the view that the prosecution has been
able to prove the case of demand, acceptance
and recovery of the bribe by the accusedappellant from the complainant. Thus, I find no
merit and substance the present appeal, which is
hereby dismissed. Bail bonds are cancelled and
sureties are dischraged.

43. The accused-appellant is directed to
surrender before the trail court forthwith to
undergo the sentence awarded by the learned
trial court. Let the record of the trail court be
transmitted back to the trial court.

(Application No.127255 of 2021)

1. The application seeks taking additional
evidence under Section 391 Cr.P.C.

2. I find that there is no relation between
the cases registered against the accusedappellant in two different police stations under
different sections. Therefore, application for
taking additional evidence under Section 391
Cr.P.C. is rejected.
----------
(2023) 3 ILRA 678
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.01.2023

BEFORE

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

Criminal Appeal No. 911 of 2013

Shyam Dev & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Dhirendra
Kr.
Srivastava,
Sri
Rama
Shanker, Sri Ray Sahab Yadav, Sri Shashi
Shankar Tripathi, Sri Surendra Singh

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 498A, 304B & 304 (II)-
Murder - Dowry Prohibition Act, 1961 -
Section 3/4 - Evidence Act, 1872 - Section
32 - Appeal against conviction - FIR by
brother of deceased - In wedding,
accused-appellants were given enough
dowry and they demanded extra amount
and motorcycle - When demand was not
fulfilled, the deceased was harassed by
the accused - Informant came to know
that accused persons had poured kerosene
oil on the deceased and tried to set her
ablaze - Trial Court framed charges -
Prosecution has examined 8 witnesses -
Dying Declaration - Death was due to
septicemia after 11 days of incident as per
the testimony of P.W.1 - (Para 3, 4, 5, 8)

Held: While analysing the dying declaration and
the postmortem report, it can't be accepted that
it was an accidental death. It was a homicidal
death and not accidental death. On scrutiny of
the facts and circumstances of the case coupled
with the opinion of the Medical Officer and
3 All. Shyam Dev & Anr. Vs. State of U.P.
679
considering the principle laid down by the Apex
Court it would be concluded that the death was
not premeditated. 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. Accused are reported
to have undergone 12 years of sentence and it
will be sufficient punishment. Fine and default
sentence are maintained. (Para 11, 12, 16, 21,
23)

Appeal is partly allowed. (E-13)

List of Cases cited:

1. Bengai Mandal @ Begai Mandal Vs St. of
Bihar (Criminal Appeal No. 1418 of 2004)

2. Chirra Shivraj Vs St. of Andhra Pradesh
(Criminal Appeal No.514 of 2010)

3. Smt. Rama Devi alias Ramakanti Vs St. of U.P.
(Criminal Appeal No.1438 of 2010)

4. Smt. Kanti & anr. Vs St. of U.P. (Criminal
Appeal No. 2558 of 2011)

5. Govindappa & ors. Vs St. of Karn., (2010) 6
SCC 533

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

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

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

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

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

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

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

13. Guru Basavraj vs St. of Karn., (2012) 8 SCC
734
14. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

15. St. of Punj. Vs Bawa Singh, (2015) 3 SCC
441

16. 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 learned counsel for the
appellant and learned A.G.A. for the state.

2. This appeal challenges the
judgment and order dated 01.01.2013
passed by Addl. Sessions Judge Court No.
13, Varanasi in Session Trial No. 500 of
2010 (State of U.P. Vs. Shyam Deo and
others) convicting the appellants under
Section 302 read with Section 34 of Indian
Penal Code, 1860 (hereinafter referred to as
'IPC) with life imprisonment and a fine of
5000/- has also been imposed, in default of
which the appellants shall have to under go
for further three months imprisonment and
appellant no.2 has been convicted under
Section 498A I.P.C. with three year
rigorous imprisonment and a fine of Rs.
2000/- has also been imposed, in default of
which the appellant no.2 shall have to go
for
a
term
of
further
two
month
imprisonment.

3. Brief facts as culled out from the
record are that the marriage of the deceased
was solemnized with Shyam Deo. The
F.I.R. discloses that in the wedding the
accused-appellants were given enough
dowry but despite that they started
harassing deceased and demanded a sum of
Rs. 50,000/- and a motorcycle. When the
said demand could not be fulfilled, the
deceased was harassed by all the accused.
680 INDIAN LAW REPORTS ALLAHABAD SERIES
Some
person
had
conveyed
to
the
informant that the accused persons had
poured kerosene oil on the deceased and
had tried to set her ablaze. On the basis of
the complaint of the brother of the
deceased, the First Information Report was
registered on 20.04.2010. The investigation
started for commission for offence under
Section 498A and 304B Indian Penal Code
read with Section 3/4 of the Dowry
Prohibition Act. Investigation culminated
into charge-sheet being laid against Shyam
Deo
(husband
of
the
deceased),
Vindhyanchali
(Sister-in-law/Jethani)
under Sections 498A and 304B of IPC and
Section 3/4 of D.P. Act. On these brief
facts the prosecution was put into motion.

4. The accused were summoned and
charges were framed by learned Additional
Sessions Judge under Sections 498A and
304B of IPC and Section 4 of D.P. Act with
alternative charges under Section 302 read
with Section 34 of IPC. The accusedpersons pleaded not guilty and wanted to be
tried. The offence for which accused was
charged was triable by the Court of
Sessions, hence, the accused-appellants
was committed to the Court of Sessions.

5. The Trial started and the
prosecution examined 8 witnesses who are
as follows:

1
Vinod Sahani
PW1
2
Gudiya
PW2
3
Kuttar Devi
PW3
4
Mratyunjay
Singh
PW4
5
Dr. D.K. Singh
PW5
6
Dr. Alok Singh
PW6
7
Dr.
D.K.
Kashyap
PW7
8
Ramanad
Kushwaha
PW8

6. In support of ocular version
following documents were filed:

1
Written Report
Ex.Ka.1
2
Dying Declaration Ex.Ka.2
3
Postmortem
Report
Ex.Ka.6
4
Death Certificate
Ex.Ka.4
5
Information after
death
Ex. Ka.5
6
Panchayatnama
Ex.Ka.8
7
Site
Plan
with
Index
Ex. Ka.7
8
Charge Sheet
Ex. Ka.9

7. The learned Additional Sessions
Judge has convicted the accused-appellants
as above.

8. Learned counsel for the appellant
has relied on the decisions of Apex Court
passed in Criminal Appeal No. 1418 of
2004 (Bengai Mandal alias Begai Mandal
vs. State of Biha) decided on 11th January,
2010, in Criminal Appeal No.514 of 2010
(Chirra Shivraj vs. State of Andhra
Pradesh) decided on 26 November, 2010,
and decisions of this Court in Criminal
Appeal No.1438 of 2010 (Smt. Rama Devi
alias Ramakanti vs. State of U.P.)
decided on 7.10.2014 and Criminal Appeal
No. 2558 of 2011 (Smt. Kanti and Another
vs. State of U.P.) decided on 1.2.2021 and
has contended that there is faulty charge
and the charge could not have been reframed after the examination of witnesses
of prosecution side, who did not support
the prosecution. This is the contention of
the learned counsel for the appellant, and in
the alternative, it is submitted that this is a
case which does not go beyond Section 304
Part I or Part II of IPC. There was no
intention of the accused to do away with
the deceased and the death was due to
septicemia after 11 days of incident as per
3 All. Shyam Dev & Anr. Vs. State of U.P.
681
the testimony of P.W.1 also that she died
after 11 days of incident.

9. As against this, learned A.G.A. for
the State has contended that the dying
declaration is believable and, therefore, the
learned Judge has not committed any error
or there is no error which calls for
interference by this Court in this appeal.
Moreover, 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.

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

11. Learned counsel for the appellant
has submitted that the deceased died due to
burn
injuries
which
she
sustained
accidentally while cooking food. While
going through the dying declaration and the
postmortem report, we cannot accept the
submission of counsel for the accusedappellants that it was an accidental death.

12. Therefore, we are of the
considered opinion that the learned Judge
has not committed any mistake in relying
on the dying declaration. In the light of the
decision in Govindappa and others Vs.
State of Karnataka, (2010) 6 SCC 533,
there is no reason for us not to accept the
dying declaration and its evidentiary value
under Section 32 of Evidence Act, 1872.
We are convinced that P.W.3 was also
conveyed by the deceased about the
incident and, therefore, the contention of
the counsel that it was an accidental death
arising out of accidental burning during
cooking in the house cannot be accepted.
We are of the view that it was a homicidal
death and not accidental death.

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
Subject to certain
exceptions culpable
homicide is murder
682 INDIAN LAW REPORTS ALLAHABAD SERIES
death is caused is
done-
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. It is an admitted position of fact
that the death was due to septicemia and
had occurred after 11 days of incident. The
accused-appellants are husband and sisterin-law (jethani) of the deceased. The
accused-appellants are in jail for more than
10 years and they are not arguing for clean
acquittal and requesting for lesser sentence.
Hence, 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 & Veeran and others Vs. State
of M.P. Decided, (2011) 5 SCR 300, 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 II) of I.P.C. We
are also fortified in our view by the
decisions relied upon by learned Counsel
for the appellants in Bengai Mandal alias
Begai Mandal vs. State of Biha, Chirra
Shivraj vs. State of Andhra Pradesh,
Smt. Rama Devi alias Ramakanti vs.
State of U.P. &b Smt. Kanti and Another
vs. State of U.P. (Supra).

17. It is now to be seen as to what
would be the quantum of sentence. In this
regard, we have to analyse the theory of
punishment prevailing in India.

18. 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
3 All. Shyam Dev & Anr. Vs. State of U.P.
683
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."

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
684 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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-appellants are
reported to have undergone 12 years of
sentence and therefore, we hold that the
period
undergone
will
be
sufficient
punishment. Fine and default sentence are
maintained. The accused-appellants be set
free forthwith, if not wanted in any other
case. He will deposit the fine within four
weeks from the date of release and in case
fine is not deposited he will be procured to
undergo the sentence of default.

24. In view of the above, the appeal is
partly allowed. Judgment and order passed
by the learned Sessions Judge shall stand
modified to the aforesaid extent. Record be
sent back to the Trial Court forthwith.

25. Therefore, we convert the
sentence of accused appellants from 'life
imprisonment'
to
10
years'
rigorous
imprisonment. Fine and default sentence
are maintained. If 10 years of incarceration
is over. The accused-appellants be set free,
if period of sentence and default sentence
are over, if not wanted in any other case.
----------
(2023) 3 ILRA 684
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.03.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Appeal No. 1013 of 2000

Rajendra Prasad @ Gappu ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Ramakant Jaiswal, Amicus Curiae, Gopesh
Tripathi

Counsel for the Respondent:
G.A.

Criminal Law- Indian Penal Code, 1860 -
Sections 363, 366 & 376 - Rape - Indian
Evidence Act, 1872 - 114-A - The Code of
Criminal Procedure, 1973 - Sections 164,
313 - on 05.05.1992 accused entered the
house of complainant and enticed away
her
minor
daughter
-
Incident
was
witnessed by three persons - At the time
of incident, the complainant had gone to
attend a marriage - Complainant lodged
FIR against accused on 12.05.1992 - Trial
Court framed charges under aforesaid
sections and held that victim was minor
on the date of incident and the consent of
minor has no effect - Accused enticed the
victim for the purpose of marriage and
raped her - Impugned order challenged in
appeal - Held, no ambiguity and illegality -
liable to be confirmed and dismissed.
(Para 4, 7, 10, 40)

Held: It was the duty of the Investigating
Officer to verify the age of the victim from the
school document. If it is not verified then it is
fault on behalf of the Investigating Officer for
which the age of the victim could not be