# Smt. Balveer Kaur v. State of U.P

- **Citation:** (2022) 12 ILRA 1020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-24
- **Case number:** Criminal Appeal No. 3549 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-balveer-kaur-v-state-of-u-p-47958
- **Pages:** 6

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 299- Section 302- Section 304The 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 IPCAbove offence committed will fall under
Section 304 Part-I.

Where the offence was committed without any
pre-meditation or intention but resulted in the
death in the ordinary course of nature, then
instead of Section 302 IPC the offence will fall
under Section 304 Part I.

Quantum of Sentence-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.
'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'.

The
punishment
imposed
should
be
proportionate to the gravity of the offence and
may not be unduly harsh. As the offence is one
under Section 304-Part I of the IPC hence
sentence modified accordingly.

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

1020 INDIAN LAW REPORTS ALLAHABAD SERIES
court below and jail authorities concerned
for compliance.
----------
(2022) 12 ILRA 1020
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.11.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 3549 of 2016

Smt. Balveer Kaur ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Vijay Prakash Pandey, Sri Deepak Kumar
Srivastava, Sri Ashok Kumar mishra

Counsel for the Respondent:
G.A., Sri N.K. Srivastava

Criminal Law- Indian Penal Code, 1860-
Section 299- Section 302- Section 304The 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 IPCAbove offence committed will fall under
Section 304 Part-I.

Where the offence was committed without any
pre-meditation or intention but resulted in the
death in the ordinary course of nature, then
instead of Section 302 IPC the offence will fall
under Section 304 Part I.

Quantum of Sentence-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.
'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'.

The
punishment
imposed
should
be
proportionate to the gravity of the offence and
may not be unduly harsh. As the offence is one
under Section 304-Part I of the IPC hence
sentence modified accordingly.

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Tukaram & ors. Vs St.of Maha., (2011) 4 SCC 250

2. B.N. Kavatakar & anr. Vs St. of Kar., 1994
SUPP (1) SCC 304

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

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

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

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

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

1. This appeal challenges the
judgment and order dated 21.6.2016 passed
by Shri Mohammad Faiz Alam Khan,
Sessions Judge, Shahjahanpur, in Sessions
Trial No.163 of 2015 convicting accusedappellant under Section 302 of Indian Penal
Code, 1860 (hereinafter referred to as 'IPC')
and sentenced him to undergo rigorous life
imprisonment with fine of Rs.25,000/- and
in case of default of payment of fine,
further to undergo one year imprisonment.

2. Investigation was moved into
motion, after recording statements of
12 All. Smt. Balveer Kaur Vs. State of U.P.
1021
various persons, the investigating officer
submitted the charge-sheet against accused
under Sections 147/307/302 of I.P.C. The
learned Chief Judicial Magistrate before
whom charge sheet was laid put the same
before the learned Sessions Judge. The
learned Sessions Judge, on hearing the
learned Government Advocate and learned
counsel for the accused, framed charges
under Section 302 of I.P.C. read with
Section 34 of IPC.

3. On being summoned, the accused
pleaded not guilty and wanted to be tried,
hence, the trial started and the prosecution
examined 4 witnesses who are as follows:

1
Jaspal Singh
PW1
2
Jasveer Singh
PW2
3
Raj Kumar Saroz PW3
4
Vijay
Kumar
Trivedi
PW4

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

1
F.I.R.
Ex.Ka.8
2
Written
Report
Ex.Ka.1
3
Panchayatna
ma
Ex. Ka.2A
4
Postmortem
Report
Ex.Ka.10
5
Site Plan
Ex.Ka.2
6
Charge-sheet Ex.Ka.11

5. 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 appellants as mentioned
aforesaid.

6. Heard Sri Deepak Srivatava for the
appellant and Sri N.K. Srivastava for the
State and perused the record.

7. It is submitted by learned counsel
for accused-appellant that the accused is in
jail since 1.12.2014.

8. The allegations against the
appellant are writ large and, therefore, the
dying declaration is fruitful piece of
evidence under Section 32 of the Evidence
Act is the submission of Counsel for the
State. We are agreeable of the same that it
is fruitful piece of evidence.

9. In alternative, it is submitted that at
the most punishment can be under Section
304 II or Section 304 I of I.P.C. If the Court
feels, as the accused have been in jail for
more than 8 years without remission, they
may be granted fixed term punishment of
incarceration.

10. Learned A.G.A. for the state has
vehemently submitted that facts of this case
will not permit the Court to convert the
sentence to that under Section 304 Part I of
I.P.C. as none of the judgments relied by
the accused-appellant will apply to the facts
of this case.

11. The learned Judge, while
discussing all the issues, has relied on
several authoritative pronouncement hence
the submission of the Counsel that the
dying declaration is doubtful cannot be
accepted. The second issue is whether it is
302 or 304 Part-I or II have considered the
fact that 2 other co-accused has been
acquitted in the same set of circumstances
what would be the fate of this appeal. The
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant is sister-in-law of the deceased
and the fact that the deceased was alive for
6 days after injury and it was septicaemial
death.

12. 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 appellant.

13. 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 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. 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."

14. 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.
12 All. Smt. Balveer Kaur Vs. State of U.P.
1023

15. 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.

16. 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.

17. This takes us to the alternative
submission of learned counsel for the
appellant that the quantum of sentence is
too harsh and requires to be modified. 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 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."

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
1024 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.

21. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
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 learned Judge himself has not
considered him under Section 304 IPC. The
State has not preferred any appeal against
the acquittal of the other accused. Smt.
Balveer Kaur has been convicted for life
imprisonment under Section 302 IPC. We
convert the same under Section 304 Part-I.
She has been in jail since 1.12.2014. We
reduce the sentence to 8 years with
remission. We maintain the fine and default
sentence.

24. Appeal is partly allowed. Record
and proceedings be sent back to the Court
below forthwith. The fine if she has yet not
deposited, will deposit the same within four
12 All. Suresh Vs. State of U.P.
1025
 weeks from the date of release from jail.
The jail authority shall see that the accusedappellant is lodged in the jail to reincarcerate for the default period if fine is
not paid after she is released.

25. This Court is thankful to Sri N.K.
Srivastava for ably assisting this Court.
----------
(2022) 12 ILRA 1025
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 3681 of 2013

Suresh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Shashwat Shukla, Sri Mohammad Zakir

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Code of Criminal Procedure,
1973- Section 391- Additional Evidence-
Evidence of P.W.2 before the Juvenile
Justice
Board
by
way
of
additional
evidence under Section 391 of Cr.P.C. in
which she has categorically denied that
she had seen any of the accused killing
her husband, Ashok Kumar. She has
further stated that she was at home when
the incident occurred and people of the
village had informed her that her husband
was killed by some other people.

Where the prime witness of the prosecution has
not supported the case of the prosecution,
having given a contradictory version, before the
Juvenile Justice Board in the separated trial of
the co-accused then considering the said
evidence the appellant held to be entitled to be
acquitted.

Indian Evidence Act, 1872- Section 3-
Section 27- Neither the driver of the bus
nor any passenger was examined. The
recoveries were also not at the instance of
accused-appellant. P.W.6, who had drawn
the site plan had not shown that the
accused-appellant
was
carrying
any
weapon with him.

Where the prosecution has withheld relevant
witnesses and neither the appellant was shown
to be armed and nor any incriminating
recoveries were effected upon his instance, then
the implication of the appellant held to be false.

Criminal Appeal allowed. (E-3) (Para
17.18)

Case law/ Judgements cited:-

1. Jalpat Rai Vs St. of Har., (2011) 14 SCC 208

2. Badam Singh Vs St. of M.P. (2003) 12 SCC 792

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

1. Heard learned counsel for the
appellant, learned A.G.A. for the State and
perused the record.

2. This appeal challenges the
judgment and order dated 20.6.2013 passed
by Additional Sessions Judge, Court No.8
in Sessions Trial No.333 of 2006 (State vs.
Kaluwa and others) wherein the learned
Sessions
Judge
convicted
accusedappellant, Suresh and accused-Kaluwa
under Section 302 read with Section 34 of
Indian Penal Code, 1860 (hereinafter
referred to as 'IPC') and sentenced them to
imprisonment
for
life
with
fine
of
Rs.10,000/- and, in case of default in
payment of fine, further to under six
months' simple imprisonment.