# Upendra Kumar Tripathi @ Neeraj (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 207
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-13
- **Case number:** Criminal Appeal No. 831 of 2020
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upendra-kumar-tripathi-neeraj-in-jail-v-state-of-u-p-47560
- **Pages:** 6

## Headnote

A.G.A.

Proper Sentence/ Quantum of Sentence-
It is the duty of every court to award
proper sentence having regard to nature
of offence and manner of its commission -
The judicial trend in the country has been
towards
striking
a
balance
between
reform and punishment - The criminal
justice
jurisprudence
adopted
in
the
country is not retributive but reformative
and corrective- No accused person is
incapable
of
being
reformed
and
therefore, all measures should be applied
to
give
them
an
opportunity
of
reformation in order to bring them in the
social stream.

Settled law that the court has to award
adequate sentence which is proportional to the
facts, nature and manner of commission of the
offence and should neither be unduly harsh nor
excessively lenient. Effort has however to be
made to reform the accused so that he is
integrated in the society.

Criminal Law - Indian Penal Code, 1860-
Section 304B, Section 498A , Dowry
Prohibition Act- Section 3⁄4- Quantum of
sentence- Maximum awarded sentence to
the
appellant
is
ten
years-
already
undergone eight years and five months of
the
awarded
sentence-appellant
is
sufficient to meet the ends of justice.

In view of the reformative theory of punishment
and considering the facrt that the accused has
already undergone almost the entire sentence
awarded to him, including remission, the
conviction of the appellant upheld and sentence
modified to the period undergone. ( Para 12,
13, 15, 16, 17, 18, 19)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

9 All. Upendra Kumar Tripathi @ Neeraj Vs. State of U.P.
207
Exhibits 1, 2, 3 & 4 before learned trial
court.

18. No other point or argument was
raised by learned counsel for the appellant
before this Court.

19. In view of above, I reach on
definite conclusion that prosecution proved
its case beyond any reasonable doubt and
the appellant has been rightly convicted
and sentenced by learned trial court.

20. Accordingly, the appeal lacks
merit and is dismissed.
----------
(2021)09ILR A207
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 831 of 2020

Upendra Kumar Tripathi @ Neeraj
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri P.K. Singh

Counsel for the Opposite Party:
A.G.A.

Proper Sentence/ Quantum of Sentence-
It is the duty of every court to award
proper sentence having regard to nature
of offence and manner of its commission -
The judicial trend in the country has been
towards
striking
a
balance
between
reform and punishment - The criminal
justice
jurisprudence
adopted
in
the
country is not retributive but reformative
and corrective- No accused person is
incapable
of
being
reformed
and
therefore, all measures should be applied
to
give
them
an
opportunity
of
reformation in order to bring them in the
social stream.

Settled law that the court has to award
adequate sentence which is proportional to the
facts, nature and manner of commission of the
offence and should neither be unduly harsh nor
excessively lenient. Effort has however to be
made to reform the accused so that he is
integrated in the society.

Criminal Law - Indian Penal Code, 1860-
Section 304B, Section 498A , Dowry
Prohibition Act- Section 3⁄4- Quantum of
sentence- Maximum awarded sentence to
the
appellant
is
ten
years-
already
undergone eight years and five months of
the
awarded
sentence-appellant
is
sufficient to meet the ends of justice.

In view of the reformative theory of punishment
and considering the facrt that the accused has
already undergone almost the entire sentence
awarded to him, including remission, the
conviction of the appellant upheld and sentence
modified to the period undergone. ( Para 12,
13, 15, 16, 17, 18, 19)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

1. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926,

2. St. of M.P. Vs Najab Khan, (2013) 9 SCC 509

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

4. Shyam Narain Vs St. (NCT of Delhi), (2013) 7
SCC 77

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

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

7. Raj Bala Vs St. of Har., (2016) 1 SCC 463.
208 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Kokaiyabai Yadav Vs St. of Chhattis. (2017)
13 SCC 449

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

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by
the appellant against the judgment and
order dated 23.12.2019, passed by learned
Additional Sessions Judge, Court No.19,
Kanpur Nagar, in S.T. No.722 of 2013
(State of UP vs. Upendra Kumar Tripathi)
arose out of Case Crime No.102 of 2013,
under Sections 498A, 304B IPC & Section
4 of Dowry Prohibition Act, 1961, Police
Station-Panki, District-Kanpur Nagar.

2. The relevant facts for disposal of
this appeal are that complainant-Santosh
Kumar Dixit (father of the deceased)
lodged FIR at Police Station-Panki, Kanpur
Nagar, stating that the marriage of his
daughter Ruchi @ Aradhna (deceased) with
Upendra Kumar @ Neeraj (appellant) s/o
late Rampal Tripathi was solemnized on
24.2.2012. He gave dowry in the marriage
as decided, but Neeraj and his family
members were not satisfied with the dowry
so they started torturing his daughter and
demanded four-wheeler and Rs.one lakh as
additional dowry for which they used to
give mental and physical torture to his
daughter. They also stopped her daughter to
contact with her father and mother.
Upendra, her sister Poonam and Poonam's
husband used to beat her. In December,
2012, Ruchi gave birth to a daughter and
after that cruelty increased. Before 10 days
of the occurrence, Ruchi's maternal uncle
and complainant's sons went to the house of
Ruchi at Panki, Kanpur Nagar and
requested her husband (appellant) and his
family members not to torture Ruchi, but
they abused and beaten Ruchi before them
also. On 8.3.2013 at about 9:00 a.m.,
somebody informed on telephone that his
daughter Ruchi had died. Her daughter has
been killed by her-in-laws, therefore, strict
legal proceedings be initiated against them.

3. Heard Shri P.K. Singh, learned
counsel for appellant, learned AGA for the
State and perused the record.

4. Learned counsel for appellant
argued that in this case after investigation,
charge-sheet
was
filed
against
the
appellant, while the complainant tried to
implicate
other
family
members
of
appellant also. Named Poonam and her
husband were not charge-sheeted by
Investigating Officer. On this score alone,
the prosecution story seems to be false; it
was a suicidal case; the death of the
deceased is by hanging herself. Prosecution
produced four witnesses of facts. PW1 is
informant, PW2-Vineet Kumar is brother
of the deceased, PW3-Durgesh Tiwari is
cousin of the deceased and PW7-Shakti
Saran is maternal uncle of the deceased.
Their statements are contradictory to each
other. As per prosecution evidence, there is
no abatement on the part of the accusedappellant for commitment of suicide by the
deceased.

5. Learned counsel for the appellant
submitted that accused is in jail since
13.3.2013. He has been awarded maximum
sentence of ten years under Section 304B
IPC while he has already served more than
eight years and four months of sentence. It
is established by prosecution evidence itself
that it is a case of suicide. He also
submitted that prosecution brought forward
a suicide note after 15 days of the
occurrence and it is said that the suicide
note was found in her maternal uncle's
(mausa) house at the time of cleaning the
9 All. Upendra Kumar Tripathi @ Neeraj Vs. State of U.P.
209
house. Appellant got the hand-writing of
the suicide note compared with the handwriting of the deceased and the handwriting expert gave the conclusion that
both the hand-writings are not of the same
person. Hence, prosecution has failed to
prove the suicide note and it is clear that it
was written by somebody else to falsely
implicate the appellant.

6. He submits that since appellant has
already served near about eight and a half
years of sentence out of ten years awarded
to him, he should be freed now with
undergone imprisonment as the appellant
has one daughter aged about nine years
only and earlier his daughter was residing
with her grand-mother and now her grandmother has died. Therefore, the daughter is
residing now with her aunt (bua). It is
obvious that a female-child of nine years
needs parental care and she needs the
support of her father in her life.

7. Learned counsel for the appellant
further argued that in defence, PW1 was
produced, who is neighbor of the appellant
and resides in the same building. He has
categorically stated that there was no
quarrel or differences between appellant
and deceased. Appellant also produced as
PW6 before learned trial court. Keeping in
view the circumstances of appellant's
daughter and the period of sentence already
undergone, it is prayed that accusedappellant be released finally.

8. Per contra, learned AGA opposed
the prayer of counsel for the appellant and
submitted that learned trial court has
considered all the pleas taken by the
appellant. All the ingredients of offence
under Section 304B IPC are there in this
case and the learned trial court has rightly
convicted and sentenced the accusedappellant.

9. Learned counsel for the appellant
argued that maximum awarded sentence to
the accused is of ten years and he has
already undergone eight and a half years
and as per jail manual, remission be also
there. If remission as per jail manual is
taken into account, only a little time of his
sentence is left now.

10. In Mohd. Giasuddin Vs. State of
AP, AIR 1977 SC 1926, explaining
rehabilitary & reformative aspects in
sentencing it has been observed by the
Supreme Court:

"Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate
rather than avenge. The sub-culture that
leads to ante-social behaviour has to be
countered not by undue cruelty but by
reculturization.Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal
courts,
since
brutal
incarceration
of
the
person
merely
produces laceration of his mind. If you
are to punish a man retributively, you
must injure him. If you are to reform him,
you must improve him and, men are not
improved by injuries."
210 INDIAN LAW REPORTS ALLAHABAD SERIES

11. In State of MP vs Najab Khan,
(2013) 9 SCC 509, the High Court, while
upholding conviction, reduced the sentence
of 3 years by already undergone which was
only 15 days. The supreme court restored
the sentence awarded by the trial court.
Referring the judgments in Jameel vs State
of UP (2010) 12 SCC 532, Guru Basavraj
vs State of Karnatak, (2012) 8 SCC 734,
the Court observed as follows:-

"In operating the sentencing
system, law should adopt the corrective
machinery or the deterrence based on
factual matrix. The facts and given
circumstances in each case, the nature of
the crime, the manner in which it was
planned and committed, the motive for
commission of the crime, the conduct of the
accused, the nature of weapons used and
all other attending circumstances are
relevant facts which would enter into the
area of consideration. We also reiterate
that undue sympathy to impose inadequate
sentence would do more harm to the justice
dispensation system to undermine the
public confidence in the efficacy of law. It
is the duty of court to award proper
sentence having regard to the nature of
offence and the manner in which it was
executed or committed. The courts must not
only keep in view the rights of victim of the
crime but also the society at large while
considering the imposition of appropriate
punishment."

12. Earlier, "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
proportionately. 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.

13. In subsequent decisions, the
supreme court has laid emphasis on
proportional sentencing by affirming the
doctrine of proportionality. In Shyam
Narain vs State (NCT of delhi), (2013) 7
SCC 77, it was pointed out that sentencing
for any offence has a social goal. Sentence
is to be imposed with regard being had to
the nature of the offence and the manner in
which the offence has been committed. The
fundamental purpose of imposition of
sentence is based on the principle that the
accused must realize that the crime
committed by him has not only created a
dent in the life of the victim but also a
concavity in the social fabric. The purpose
of just punishment is that the society may
not suffer again by such crime. The
principle of proportionality between the
crime committed and the penalty imposed
are to be kept in mind. The impact on the
society as a whole has to be seen. Similar
view has been expressed in 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.

14. In Kokaiyabai Yadav vs State of
Chhattisgarh (2017) 13 SCC 449, it has
been observed that reforming criminals
who understand their wrongdoing, are able
to comprehend their acts,have grown and
nartured into citizens with a desire to live a
fruitful life in the outside world, have the
capacity of humanising the world.

15. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme
9 All. Upendra Kumar Tripathi @ Neeraj Vs. State of U.P.
211
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.

16. 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.

17. Since the learned counsel for
appellant has not pressed the appeal on
merits, however, this Court after perusal of
the entire evidence on record and judgment
of the learned Trial Court considers that the
appeal is devoid of merit and is liable to be
dismissed. Hence, the conviction of the
appellant is upheld.

18. So far as the quantum of sentence
is concerned, in this case, accusedappellant was awarded two years R.I. under
Section
498A
IPC
with
fine
and
imprisonment in default, six months R.I.
under Section 4 D.P. Act, 1961 with fine
and imprisonment in default and ten years
R.I. under Section 304 B IPC. It was also
directed by learned trial court that all the
sentences will run concurrently. Hence, in
this case, maximum awarded sentence to
the appellant is ten years. He is in jail since
13.3.2013.
Hence,
he
has
already
undergone eight years and five months of
the awarded sentence. In my considered
opinion, keeping in view the facts and
circumstances of the case, sentence already
212 INDIAN LAW REPORTS ALLAHABAD SERIES
undergone
by
accused-appellant
is
sufficient to meet the ends of justice. In
regard to the fine imposed upon the
appellant by learned trial court, this Court
finds that the same is adequate and it is not
required to be disturbed and the appellant is
directed to deposit the same.

19. Accordingly, the conviction is
upheld. The appeal is partly allowed with
the modification of the sentence by the
period already undergone and served out by
the appellant. The appellant be released
from the jail on depositing the fine imposed
by the trial court, if he is not wanted in any
other case.

20. Office is directed to transmit the
lower court record along with a copy of this
judgment to the learned court below for
information and necessary compliance as
warranted.

21. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad, self attested by the learned
counsel for the applicant alongwith a self
attested identity proof of the said persons
(preferably AADHAR Card) mentioning
the mobile number (s) to which the said
AADHAR Card is linked before the
concerned Court/Authority/Official.

22. The concerned Court/Authority/
Official shall verify the authenticity of such
computerized copy of the order from the
official website of High Court Allahabad
and shall make a declaration of such
verification in writing.
----------
(2021)09ILR A212
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.08.2021
BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 1110 of 2016

Kautik Mahaley ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Noor Muhammad, Sri Yogesh Kumar
Srivastava

Counsel for the Opposite Party:
A.G.A.

Evidence Law - Indian Evidence Act 1872-
Section
154-
Hostile
Witness-
The
complainant
herself
and
three
other
witnesses
have
not
supported
the
prosecution case. It is natural on part of
the complainant being wife of the accused
not to support the allegations made in the
F.I.R. just to save her husband, but from
the statements of the aforesaid witnesses,
date, time and place of the incident is
proved and there is no confusion or
discrepancy regarding this.

It is settled law that relevant parts of the
testimony of hostile witnesses, which are
admissible in law, can be used by the
prosecution to prove its case.

Evidence Law - Indian Evidence Act 1872-
Illustration (a) of Section 6 -The trial
court has rightly relied on the evidence of
PW-4 who is an independent witness and
not related to either the deceased or the
accused-appellant. As per the testimony,
complainant soon after the incident has
made a statement that her husband has
killed her mother, a statement which can
be relied in terms of Section 6 of the
Evidence Act, since, the statement being
res-gestae which is exception to the rule
of heresay evidence.

The statement of a witness made soon after
the commission of the offence would be