# Smt. Tasleema v. State of U.P. 962 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 3 ILRA 961
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-17
- **Case number:** Criminal Appeal No. 4926 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-tasleema-v-state-of-u-p-962-indian-law-reports-allahabad-series-49887
- **Pages:** 6

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section - 313 - Indian Penal
Code, 1860 -Sections 304, 323, 326 & 452
- Indian Evidence Act, 1872 - Section - 3 -
Appeal - against conviction & sentence -
allegation of illicit relation with accused -
conviction without any oral or documentary
evidence - all the injured have turned hostile -
name of appellant was not present in dying
declaration accused appellant pleaded not guilty
- Rigorous imprisonment - examination of
evidences & Post-mortem report - cause of
death was homicidal death - Whether the
sentence awarded is too harsh - analyzing the
'reformative theory of punishment' & 'doctrine of
proportionality' - Held, conscious of society will
have to be kept in mind and all measures should
be applied to give them an opportunity of
reformation in order to bring them in the social
stream - Accused has already been in jail for a
period of 13 years - She has a young son who is
litigating for her and all contours of sentencing
policy would go to show that would be to hold that
accused is to undergo years of incarceration u/s
304 I.P.C - in this case lust act was committed by
accused main conspirator and there is no question
of showing leniency but a fixed term incarceration
would be just and proper - court of the view that,
on basis of reformative theory incarceration of 9
years to be just and proper - hence, Appeal partly
Allowed - direction accordingly.
 (Para - 11, 15, 16, 17, 18, 19)

Appeal partly allowed. (E-11)

List of Cases cited:

## Text

3 All. Smt. Tasleema Vs. State of U.P.
961
proved the document, the Court does not
find it very reliable and, therefore, it is not
being used in any manner to come to any
conclusion whatsoever.

42. We have also gone through the
statements of DW-1 to 7 who had given
their statements that Satish Nagar had gone
to Rajasthan. They had also relied upon
various affidavits which the 31 individuals
had given for proving the fact that Satish
Nagar had gone to Rajasthan on that
particular date. However, neither the
Investigating Officer nor the CBCID
looked into those documents and, therefore,
it cannot, with any certainty, be said that
Satish Nagar had gone to Rajasthan. We do
find substance in the argument of learned
counsel for the appellant that there was
non-compliance of the provisions of
paragraph 107 of the Police Regulations as
it was the duty of the Investigating Officer
to have looked into the affidavits and also it
was his duty to have seen all the other
evidence. Since nothing was looked into, it
cannot be said with certainty as to where
Satish Nagar was at the time of incident.

43. However, the case certainly
becomes
doubtful
because
of
the
testimonies of CW-1 and DW-8 namely
Pappu
Kashyap
and
Anuj
Kashyap
respectively; the fact that there was delayed
information to the Magistrate under section
157 Cr.P.C.; the discovery under section 27
of the Evidence Act was doubtful; the
ballistic report did not state that 10 out of
11 empty cartridges were fired from the
two pistols which were discovered and also
because of the fact that the exit bullets and
the glass panes were not considered by the
investigating authorities.

44. The prosecution must prove its case
beyond all reasonable doubt as has been held by
a Full Bench judgment of this Court in Rishi
Kesh Singh & Ors. vs. The State reported in
AIR 1970 Allahabad 51 (FB). The operative
portion of the judgment is reproduced here as
under :-

"177. In accordance with the majority
opinion, our answer to the question referred to
this Full Bench is as follows:--

The majority decision in 1941 All LJ 619
= AIR 1941 All 402 (FB) is still good law. The
accused person is entitled to be acquitted if
upon a consideration of the evidence as a whole
(including the evidence given in support of the
plea of the general exception) a reasonable
doubt is created in the mind of the Court about
the guilt of the accused."

45. The prosecution definitely failed to
prove the case which was taken by it beyond all
reasonable doubt.

46. Under such circumstances, both the
appeals are allowed. The judgment and order
dated 22.6.2018 passed by the Additional
District & Sessions Judge/Fast Track (Second),
Gautam Budh Nagar is set-aside. The
appellants, if are not required in any other case,
be released forthwith.
----------
(2023) 3 ILRA 961
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.03.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Appeal No. 4926 of 2012

Smt. Tasleema ...Appellant
Versus
State of U.P. ...Respondent
962 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Mohit Singh, Sri Mohd. Kalim, Ms. Mary
Puncha

Counsel for the Respondent:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section - 313 - Indian Penal
Code, 1860 -Sections 304, 323, 326 & 452
- Indian Evidence Act, 1872 - Section - 3 -
Appeal - against conviction & sentence -
allegation of illicit relation with accused -
conviction without any oral or documentary
evidence - all the injured have turned hostile -
name of appellant was not present in dying
declaration accused appellant pleaded not guilty
- Rigorous imprisonment - examination of
evidences & Post-mortem report - cause of
death was homicidal death - Whether the
sentence awarded is too harsh - analyzing the
'reformative theory of punishment' & 'doctrine of
proportionality' - Held, conscious of society will
have to be kept in mind and all measures should
be applied to give them an opportunity of
reformation in order to bring them in the social
stream - Accused has already been in jail for a
period of 13 years - She has a young son who is
litigating for her and all contours of sentencing
policy would go to show that would be to hold that
accused is to undergo years of incarceration u/s
304 I.P.C - in this case lust act was committed by
accused main conspirator and there is no question
of showing leniency but a fixed term incarceration
would be just and proper - court of the view that,
on basis of reformative theory incarceration of 9
years to be just and proper - hence, Appeal partly
Allowed - direction accordingly.
 (Para - 11, 15, 16, 17, 18, 19)

Appeal partly allowed. (E-11)

List of Cases cited:

1. St. of Pun. Vs Bawa Singh, 2015 0 Supreme
(SC) 38,

2. Deo Narain Mandal Vs St. of U.P., 2004 0
Supreme (SC) 944,

3. Kali Prasad Vs St. of U.P., Criminal Appeal No.
1007 of 1996,
4. Pintu Gupta Vs St. of U.P., Criminal Appeal
No. 4083 of 2017,

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 Karnatak, (2012) 8
SCC 734,

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

11. St. of Pun. Vs Bawa Singh, (2015) 3 SCC
441,

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

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

1. Heard Ms. Mary Puncha assisted
by Sri Mohd. Kalim, learned counsel for
the appellant- Smt. Tasleema who has been
incarcerated for a period of 12 years and 9
moths without remission and learned
A.G.A. for the State.

2. This appeal challenges the
judgment and order dated 10.10.2012
passed by Additional Sessions Judge, Court
No.11, Moradabad in Sessions Trial No.
1256 of 2010 (State vs. Ateek Ahamad and
another) whereby the learned Sessions
Judge has convicted accused-appellant
under Section 452 of Indian Penal Code,
1860 (hereinafter referred to as 'IPC') and
sentenced him to undergo five years
rigorous
imprisonment
with
fine
of
Rs.2000/-, for commission of offence u/s
3 All. Smt. Tasleema Vs. State of U.P.
963
326
I.P.C.
for
ten
years
rigorous
imprisonment with fine of Rs.5000/- and
for commission of offence u/s 304 I.P.C. for
life imprisonment with fine of Rs.10,000/-.
All the sentences were directed to run
concurrently.

3. The main accused Ateek Ahmad
was the main person who caused death
along with the present appellant and
two unknown persons and breathed his
last long back and qua him the appeal,
which he had preferred, has already
been abated.

4. On investigation being put into
motion,
the
investigating
officer
recorded the statements of all the
witnesses and submitted the chargesheet to the learned Magistrate. The
learned
Magistrate
summoned
the
accused and committed him to Court of
Sessions as prima facie charge was
under Sections 452, 304, 326, 323 IPC.

5. On being summoned, the accusedappellant pleaded not guilty and wanted to
be tried. The Trial started and the
prosecution examined 8 witnesses who are
as follows:

1
Kasim
PW1
2
Nadeem Ahmed
PW2
3
Hazi
Hakim
Naeem
PW3
4
Salim
PW4
5
Genda Lal
PW5
6
Vidya
Ram
Diwakar
PW6
7
Dr. Kulbhushan
PW7
8
Dr. T.K. Panth
PW8

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

1
F.I.R.
Ex.Ka.2
2
Written Report
Ex.Ka.1
3
Recovery Memo
of Burnt Piece of
Rug
Ex.Ka.7
4
Injury Report
 Ex.Ka.11
5
Injury Report
Ex. Ka.12
6
Injury Report
Ex.Ka.13
7
Post
Mortem
Report
Ex.Ka.10
8
Charge-sheet
Ex.Ka.9
9
Site
Plan
with
Index
Ex.Ka.6

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

8. Ms. Mary Puncha submits that the
herein appellant had illicit relation with the
accused Ateek Ahmad who breathed his
last when he was in jail. When the incident
had occurred she was in her late 40s and
now she is in her early 60s and is in jail. It
is further submitted that the evidence, led
before the court below, was so scanty that
the conviction could not have been
recorded.
The
incident
occurred
on
22.5.2010 and the injuries, which were
caused, were not such which can be said to
have been caused by the appellant herein.
The appellant also had sustained injuries.
The death certificate of deceased Mushtak
964 INDIAN LAW REPORTS ALLAHABAD SERIES
Ali has been considered to be homicidal
death and not a murder. The witnesses PW1 to PW-4 have not supported the
prosecution case. The learned court below
has convicted the accused without any oral
or documentary evidence and has come to
the conclusion that Mushtak Ali, Hasim and
Najim were injured. All the three injured
have turned hostile. The injured had
testified as per the provisions of Section 32
Indian Evidence Act being treated as Dying
Declaration and have named the accused
Ateek Ahmad only and not the present
appellant, therefore, her conviction is bad
in the eye of law.

9. Ms. Mary Puncha has relied upon
the judgements of the Supreme Court in the
cases of State of Punjab vs. Bawa Singh,
reported in 2015 0 Supreme (SC) 38 and
Deo Narain Mandal vs. State of U.P.,
reported in 2004 0 Supreme (SC) 944 and
judgements of this Court passed in
Criminal Appeal No. 1007 of 1996 (Kali
Prasad vs. State of U.P.) and Criminal
Appeal No. 4083 of 2017 (Pintu Gupta vs.
State of U.P.) so as to contend that the
punishment awarded is too harsh as the
appellant herein is not the sole author of the
incident.

10. Per contra, learned A.G.A. for the
State submits that there was no grave and
sudden provocation from the side of the
deceased. It is further submitted that the
Dying Declarations categorically show that
the appellant was also involved in the act.
The act was committed at night. The
learned trial court has rightly accepted the
Dying Declaration and the reasoning given
in paragraphs- 57 to 62 are such which
require to be confirmed by this Court. It is
further submitted that looking to the
gruesomeness of the offence and the
evidence of prosecution witnesses, this
Court should not show any leniency in the
matter.

11. 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.
However, it is to be seen whether the
sentence awarded is too harsh. In this
regard, we have to analyse the theory of
punishment prevailing in India.

12. 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."
3 All. Smt. Tasleema Vs. State of U.P.
965

13. '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.

14. 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.

15. 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.

16. The Apex Court in the judgement
of Raj Bala (supra) has held that the
proportionate punishment would be just
and proper. The conscious of society will
have to be kept in mind. The accused has
already been in jail for a period of 13 years.
She has a young son who is litigating for
her and, therefore, all the contours of
sentencing policy would go to show that
966 INDIAN LAW REPORTS ALLAHABAD SERIES
would be to hold that the accused is to
undergo 13 years of incarceration u/s 304
I.P.C. This Bench is further fortified in its
view by the judgement in the case of Pintu
Gupta (supra) where the Court, after
considering all facts and circumstances on
proper sentence as on the basis of
reformative theory, gave incarceration of 9
years to be just and proper. In this case the
lust act was committed by accused Ateek
Ahmad,
the
main
conspirator,
and,
therefore, there is no question of showing
leniency but a fixed term incarceration
would be just and proper.

17. 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.

18. As far as Section 452 I.P.C. is
concerned,
the
accused
has
already
undergone incarceration of 5 years; as far
as Section 326 I.P.C. is concerned she has
already been in jail for 10 years, therefore
all that remains to be decided is the
sentence u/s 304 I.P.C., namely, life
sentence. We substitute the life sentence to
fixed period of 13 years. Fine and default
sentence maintained. The accused be set
free
on
completing
13
years
of
incarceration with remission.

19. In view of the above, the appeal is
partly allowed. Judgment and order dated
10.10.2012, passed by the learned Sessions
Judge, shall stand modified to the aforesaid
extent. Record be sent back to the Court
below forthwith.

20. This Court is thankful to Sri
Mohd. Kalim and Ms. Mary Puncha,
learned counsel.
----------
(2023) 3 ILRA 966
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.02.2023

BEFORE

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

Criminal Appeal No. 5347 of 2010

Anees @ Gama & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri N.I. Jafri, Sri Ajay Kumar Mishra, Ms.
Akanksha Yadav, Sri Anil Raghav, Sri J.M. Nasir,
Sri Mohd. Khalil, Sri Noor Mohammad, Sri
Yogesh Srivastava

Counsel for the Respondent:
G.A., Sri Lokesh Kumar Mishra

A. Criminal Law- Indian Penal Code,
1860 - Section 149 - There was
common intention or object to do away
with
the
deceased,
there
was
no
premeditation of minds as the F.I.R.
St.s that the deceased had gone to the
residence of the accused to demand his
money and that infuriated the accused
and non lethal weapon was used,
deceased did not receive any fire arm
injury nor was a fire arm used, the
deceased did not succumbed to the
injuries on the spot, during treatment,
he was declared dead, the offence
cannot be punished under Section 149
I.P.C. (Para 22)