# Sita Ram v. State of U.P

- **Citation:** (2022) 9 ILRA 946
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-29
- **Case number:** Criminal Appeal No. 4810 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sita-ram-v-state-of-u-p-49288
- **Pages:** 9

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section 302 -Dowry death-death due to
strangulation-post
mortem-homicide
death-criminal
jurisprudence
is
reformative and corrective-opportunity of
reformation -12 years already spentenough punishment.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

946 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment and order of conviction and
sentence is not sustainable and is liable to
be quashed and the appeal is to be allowed.

Order

The appeal is allowed, the
judgment
and
order
dated
2.1.2014,
convicting and sentencing of the appellants
Satendra Kumar and Subhash, passed by
Additional Sessions Judge/Special Judge
S.C. and the S.T. (Prevention of Atrocities)
Act, Meerut, is hereby quashed. The
appellants are set free if not wanted in any
other case.

Copy of this judgment be sent to
the
concerned
Court
and
Jail
Superintendent for necessary compliance.

The appellants on being released
the mandate of Section 437-A Cr.P.C. to be
complied.

Registry is directed to return the
original records to the lower Court along
with a copy of this judgment and order.
----------
(2022) 9 ILRA 946
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2022

BEFORE

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

Criminal Appeal No. 4810 of 2012

Sita Ram ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rakesh Chandra Tiwari, Sri Ashok
Kumar Mishra, Sri Satya Prakash Srivastava,
Shri Prakash Dwivedi, Sri Suresh Srivastava

Counsel for the Respondent:
Govt. Advocate
Criminal Law - Indian Penal Code,1860 -
Section 302 -Dowry death-death due to
strangulation-post
mortem-homicide
death-criminal
jurisprudence
is
reformative and corrective-opportunity of
reformation -12 years already spentenough punishment.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Sanjay Maurya Vs St. of U.P., 2021 0
Supreme(All) 132

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. Raj Kumar Prasad Tamarkar Vs St. of Bihar &
anr., 10 (2007)10 SCC 433 (distinguished)

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

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

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

8. Jameel Vs St. of U.P. [(2010) 12 SCC 532]

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

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

11. St. of Punj. Vs Bawa Singh, [(2015) 3 SCC 441]

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

13. St. of M.P. Vs Jogendra, (2022) 5 SCC 401
(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. Heard Sri Suresh Srivastava,
learned counsel for the appellant and Sri
9 All. Sita Ram Vs. State of U.P.
947
Nagendra
Kumar
Srivastava,
learned
A.G.A. for the state.

2. This appeal challenges the
judgment and order dated 16.10.2012
passed by Additional Sessions Judge, Court
No.4, Mirzapur in Sessions Trial No.171 of
2010 (State vs. Sita Ram) arising out of
Case Crime No.473 of 2010 convicting
accused-appellant under Section 302 of
Indian Penal Code, 1860 (hereinafter
referred to as 'IPC') and sentenced the
accused-appellant 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
year.

3. The genesis of the litigation are that
the deceased was married to the accused
appellant Sita Ram in the month of May,
2006. It is alleged in the F.I.R that the
accused demanded money and a motorcycle, when the deceased showed her
inability to get the same from her parents
the sad news of her death came on
26.05.2010. The F.I.R was lodged on the
very same day by the father of the
deceased. The police moved to scene of
offence and prepared panchnama. The dead
body was sent for postmortem and the postmortem report revealed that the death was
due to strangulation.

4. The police after recording the
statements of several witnesses filed
charge-sheet against the accused. Being
summoned the accused was committed to
the court of Sessions as the offence for
which the accused was charged was
exclusively triable by the court of Sessions.

5. On the accused pleading not guilty
on 14.10.202010 charges were framed for
commission of offence under Section
498A, 304-B I.P.C read with 3/4 of D.P.
Act.

6. The witnesses were examined and
after two witnesses namely P.W.-1 and
P.W.-2 were examined and when they did
not support the prosecution, a new charge
was framed by the transferred new
incumbent Sessions Judge charging the
accused for commission of offence under
Section 302 of I.P.C.

7. The Trial started and the
prosecution examined 4 witnesses who are
as follows:

1
Sobhnath
PW1
2
Smt. Brijwanti
PW2
3
Hira Prasad Maurya
PW3
4
Dr. Srikant Pandey
PW4

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

1
F.I.R.
Ex.Ka.2
2
Written Report
Ex.Ka.1
3
Postmortem Report
Ex.Ka.12
4
Charge-sheet
Ex.Ka.13
5
Site Plan
Ex.Ka.4
6
Recovery memo of Broken Bangle
Ex.Ka.6
7
Recovery Memo of Dupatta
Ex.Ka.11

9. At the end of the trial and after
recording the statement 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 appellant as mentioned
above.

10. Learned counsel for the appellant
has relied on the decision in Sanjay
948 INDIAN LAW REPORTS ALLAHABAD SERIES
Maurya Vs. State of U.P., 2021 0
Supreme(All) 132 and has contended that
it is not proved that the offence under
Section 302 is committed nor any offence
under Section 304B is proved against the
accused, the case cannot be said to be
proved under Section 302 of Indian Penal
Code as the conviction by Trial Court with
the aid of Section 106 of the Indian
Evidence Act, 1872 is bad. It is further
submitted that the decisions on which the
trial court has placed reliance have been
misread by the learned trial Judge so as to
hold that accused is guilty of commission
of offence under Section 302 IPC. It is
further submitted that the incident even if it
is believed to have occurred and culpability
of accused is proved it occurred on the spur
of the moment, therefore, the accused if has
to be held guilty, the accused be convicted
under Section 304(1) of the I.P.C.

11. As against this Sri N.K.
Srivastava, learned counsel for the State
has contended that

(i) the death occurred in the
matrimonial home of the deceased;

(ii) the incident occurred within 7
years of married life. The proof of death
being homicidal is proved. Despite the fact
that in the statement under Section 313
Cr.P.C the accused has pleaded that he is
not guilty but he has not discharged the
burden cast on him to rebut the proved
facts against accused on facts which are
required to be proved are answered so as to
cause a dent in prosecution evidence.

12. While considering the facts we
have to consider the provisions of Section
304B IPC read with Section 302 of the
Indian Penal Code. Trial Court has based
the conviction with aid of Section 106 of
Indian Evidence Act, 1872. The provisions
of Section 106 of Indian Evidence Act,
1872 lay as follows :-

"106. Burden of proving fact
especially within knowledge.--When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. Illustrations

(a) When a person does an act
with some intention other than that which
the character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b) A is charged with travelling
on a railway without a ticket. The burden of
proving that he had a ticket is on him."

13. We are of the considered opinion
that Section 106 of the Indian Evidence
Act, 1872 would come into play once the
prosecution has discharged its duty of
proving facts as per the charge and
evidence act. In this case ingredient of
Section 300 of I.P.C which read as
follows:-

"300. Murder.--Except in the
cases
hereinafter
excepted,
culpable
homicide is murder, if the act by which the
death is caused is done with the intention of
causing death, or--

(Secondly) --If it is done 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, or--

(Thirdly) --If it is done with the
intention of causing bodily injury to any
person and the bodily injury intended to be
inflicted is sufficient in the ordinary course
of nature to cause death, or--

(Fourthly)
--If
the
person
committing the act knows that it is so
imminently dangerous that it must, in all
probability, cause death or such bodily
9 All. Sita Ram Vs. State of U.P.
949
injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such
injury as aforesaid. Illustrations

(a) A shoots Z with the intention
of killing him. Z dies in consequence. A
commits

(b) A, knowing that Z is labouring
under such a disease that a blow is likely to
cause his death, strikes him with the intention
of causing bodily injury. Z dies in
consequence of the blow. A is guilty of
murder, although the blow might not have
been sufficient in the ordinary course of
nature to cause the death of a person in a
sound state of health. But if A, not knowing
that Z is labouring under any disease, gives
him such a blow as would not in the ordinary
course of nature kill a person in a sound state
of health, here A, although he may intend to
cause bodily injury, is not guilty of murder, if
he did not intend to cause death, or such
bodily injury as in the ordinary course of
nature would cause death.

(c) A intentionally gives Z a
sword-cut or club-wound sufficient to cause
the death of a man in the ordinary course of
nature. Z dies in consequence. Here, A is
guilty of murder, although he may not have
intended to cause Z's death.

(d) A without any excuse fires a
loaded cannon into a crowd of persons and
kills one of them. A is guilty of murder,
although
he
may not
have
had a
premeditated design to kill any particular
individual. Exception 1.--When culpable
homicide
is
not
murder.--Culpable
homicide is not murder if the offender,
whilst deprived of the power of self-control
by grave and sudden provocation, causes
the death of the person who gave the
provocation or causes the death of any
other person by mistake or accident. The
above exception is subject to the following
provisos:--

(First) --That the provocation is
not sought or voluntarily provoked by the
offender as an excuse for killing or doing
harm to any person.

(Secondly) --That the provocation
is not given by anything done in obedience
to the law,

(Thirdly) --That the provocation
is not given by anything done in the lawful
exercise of the right of private defence.
Explanation.--Whether the provocation was
grave and sudden enough to prevent the
offence from amounting to murder is a
question of fact. Illustrations

(a) A, under the influence of
passion excited by a provocation given by
Z, intentionally kills. Y, Z's child. This is
murder, in as much as the provocation was
not given by the child, and the death of the
child was not caused by accident or
misfortune in doing an act caused by the
provocation.

(b) Y gives grave and sudden
provocation to A. A, on this provocation,
fires a pistol at Y, neither intending nor
knowing himself to be likely to kill Z, who
is near him, but out of sight. A kills Z. Here
A has not committed murder, but merely
culpable homicide.

(c) A is lawfully arrested by Z, a
bailiff. A is excited to sudden and violent
passion by the arrest, and kills Z. This is
murder, in as much as the provocation was
given by a thing done by a public servant in
the exercise of his powers.

(d) A appears as witness before Z,
a Magistrate, Z says that he does not
believe a word of A's deposition, and that A
has perjured himself. A is moved to sudden
passion by these words, and kills Z. This is
murder.

(e) A attempts to pull Z's nose, Z,
in the exercise of the right of private
defence, lays hold of A to prevent him from
doing so. A is moved to sudden and violent
950 INDIAN LAW REPORTS ALLAHABAD SERIES
passion in consequence, and kills Z. This is
murder, in as much as the provocation was
given by a thing done in the exercise of the
right of private defence.

(f) Z strikes B. B is by this
provocation excited to violent rage. A, a
bystander, intending to take advantage of
B's rage, and to cause him to kill Z, puts a
knife into B's hand for that purpose. B kills
Z with the knife. Here B may have
committed only culpable homicide, but A is
guilty of murder. Exception 2.--Culpable
homicide is not murder if the offender, in
the exercise in good faith of the right of
private defence of person or property,
exceeds the power given to him by law and
causes the death of the person against
whom he is exercising such right of defence
without premeditation, and without any
intention of doing more harm than is
necessary for the purpose of such defence.
Illustration Z attempts to horsewhip A, not
in such a manner as to cause grievous hurt
to A. A draws out a pistol. Z persists in the
assault. A believing in good faith that he
can by no other means prevent himself from
being horsewhipped, shoots Z dead. A has
not committed murder, but only culpable
homicide. Exception 3.--Culpable homicide
is not murder if the offender, being a public
servant or aiding a public servant acting
for the advancement of public justice,
exceeds the powers given to him by law,
and causes death by doing an act which he,
in good faith, believes to be lawful and
necessary for the due discharge of his duty
as such public servant and without ill-will
towards the person whose death is caused.
Exception 4.--Culpable homicide is not
murder
if
it
is
committed
without
premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and
without the offender having taken undue
advantage or acted in a cruel or unusual
manner. Explanation.--It is immaterial in
such
cases
which
party
offers
the
provocation or commits the first assault.
Exception 5.--Culpable homicide is not
murder when the person whose death is
caused, being above the age of eighteen
years, suffers death or takes the risk of
death with his own consent. Illustration A,
by instigation, voluntarily causes, Z, a
person under eighteen years of age to
commit suicide. Here, on account of Z's
youth, he was incapable of giving consent
to his own death; A has therefore abetted
murder."

14. Section 304B of IPC reads as
under :

[304B. Dowry death. -- (1) Where
the death of a woman is caused by any
burns or bodily injury or occurs otherwise
than under normal circumstances within
seven years of her marriage and it is shown
that soon before her death she was
subjected to cruelty or harassment by her
husband or any relative of her husband for,
or in connection with, any demand for
dowry, such death shall be called "dowry
death", and such husband or relative shall
be deemed to have caused her death.

Explanation. For the purposes of
this sub-section, "dowry" shall have the
same meaning as in section 2 of the Dowry
Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry
death shall be punished with imprisonment
for a term which shall not be less than
seven years but which may extend to
imprisonment for life.]"

15. The evidence on record shows
that
nobody
has
seen
the
accused
committing the offence of strangulating the
deceased. This is the first dent in the
prosecution evidence. The submission of
the learned counsel for the State that the
9 All. Sita Ram Vs. State of U.P.
951
accused was nabbed after 6 days would not
make any difference. The facts and
circumstances of the case would show that
the deceased was subjected to harassment,
the words used by the legislation are very
clear that it may be the word use as not
'and' but 'or', therefore there is thin line of
distinction.

16. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind that it is
homicide death.

17. The question which falls for our
consideration is whether, on reappraisal of
the peculiar facts and circumstances of the
case, the conviction of the appellant under
Section 302 of I.P.C. of the Indian Penal
Code should be upheld or the conviction
deserves to be converted under Section 304
Part-I or Part-II of the Indian Penal Code or
under Section 304B of IPC. 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."

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

Section 299
Section 300
A person commits culpable
homicide if the act by which
the 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.

19. 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 not be
one punishable under Section 304 of the IPC.

20. It would be relevant for us to
discuss the evidence of PW-1, PW-2, PW-3
952 INDIAN LAW REPORTS ALLAHABAD SERIES
and PW-4 coupled with the facts that PW-1
and PW-2 did not suport the prosecution
and were declared hostile. However, in
their
examination-in-chief,
they
have
categorically mentioned that they got her
married to Sita Ram four years before she
died and in the marriage they gave as per
their financial condition. However denied
the fact that the appellant and his family
members were demanding any kind of
dowry.

21. In cross examination, witnesses,
PW-1 & PW-2 have feigned ignorance as to
how the police authority had mentioned the
fact of demand of motorcycle and chain in
the FIR or their statement under Section
161 of Code of Criminal Procedure. They
have even categorically opined that the
appellant here in was not present at the
time of death. Similar version of PW-3
also. It is only after the witnesses did not
support the prosecution that the learned
Judge framed new charge on 28.1.2011 to
prove that the offence under Section 300 of
IPC amounting to murder, there must of
clinching evidence that it was the appellant
alone who was last seen with the deceased.
Just because he has not stated where he was
the Court cannot return to a finding against
him. There were no anti mortem injuries
also as per the occuller version of PW-4
(Doctor). The decision of which the learned
Judge has placed reliance for coming to the
conclusion that offence under Section 302
IPC is made out, can be made applicable to
the facts of this case. However, a rebuttal
evidence under Section 106 of the Indian
Evidence Act would clear the facts and
Section 304B IPC could be presumed to
have been made out but not for Section 302
IPC. The death has occurred in the
matrimonial home. The accused was not
found and was absconding. He was arrested
after six days by the police authority. The
judgment
of
Raj
Kumar
Prasad
Tamarkar Vs. State of Bihar and
another, (2007)10 SCC 433 will not apply
to the facts of this case.

22. We come to the definite
conclusion that the death was homicidal
death. The judgments cited by the learned
counsel for the appellant namely Sanjay
Maurya ( supra) would permit us to
uphold our finding which we conclusively
hold that the offence is not under Section
302 of I.P.C. but it is culpable homicide and
was dowry death.

23. This takes us to the question of
applicability of Section 304B of I.P.C to the
facts of this case.

24. While coming to the conclusion
that the accused is the perpetrator of the
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.
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

"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
9 All. Sita Ram Vs. State of U.P.
953
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."

25. '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.

26. 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.

27. 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
954 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.

28. Recent judgment of State of M.P
Vs. Jogendra, (2022) 5 SCC 401 and ratio
laid in the said judgment can be followed,
however, instead of seven years period
undergone would be more than relevant in the
facts and circumstances of this case.

29. Having discussed the judgment
threadbare and have been considered the
factual data, we have come to the conclusion
that the offence committed by the accused
with an aid of Section 106 of Indian Evidence
Act, can be said to have been under Section
304B for the finding mentioned herein above.

30. By going through the evidence on
record it is very clear that the act of the
accused-appellant was not such which cannot
be substituted by giving a lessor sentence
than life imprisonment. The period of 12
years which he spent is enough punishment
in the facts of this case. The minor
contradictions will have to be ignored and
they cannot for the dent in the prosecution of
the husband. Medical evidence is quite clear
and corroborates the facts and circumstances.
Punishment would be 10 years incarceration,
the fine and default sentence are also
maintained.

31. Accordingly, the appeal is partly
allowed with the modification of the sentence
and punishing section as above. Record and
proceedings be sent back to the Court below
forthwith.

32. A copy of this order be sent to the
jail authorities for following this order and
doing the needful.

33. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2022) 9 ILRA 954
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 6666 of 2008
connected with
Criminal Appeal No. 6372 of 2008

Salim @ Pappu ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Pankaj Govil, Sri Siddharth Nandan

Counsel for the Respondent:
Govt. Advocate, Sri V.M. Zaidi

Criminal
Law
-
Indian
Penal
Code,1860
-
Section
302/34
IPCAccused are two brothers-one accused of
stabbing
and
other
accused
of
grabbing/catching hold the deceased-one
victim died another sustained stab injurymanner of offence occurred indicates- at
spur of the moment -common intention
was formed between three brothers-no
premediation-sudden
fight-falls
under
fourth exception to section 300 IPC.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Ramashish Yadav & ors. Vs St. of Bihar,
(1998) 8 SCC 555

2. Gulab Vs St. of U.P. & ors. being Criminal
Appeal No.81 of 2021
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)