# Vinod v. State of U.P

- **Citation:** (2022) 8 ILRA 23
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-13
- **Case number:** Criminal Appeal No. 4904 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-v-state-of-u-p-48747
- **Pages:** 6

## Headnote

Criminal Law- Indian Penal Code, 1860-
Sections 304B & 498-A- Dowry Prohibition
Act,1961
-
Section
4-
Conviction-
Sentence of Life Imprisonment- Appeal
pressed only on the Quantum of Sentence-
24 INDIAN LAW REPORTS ALLAHABAD SERIES
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-'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'. Perusal of record goes
to show that there is no doubt that
deceased had committed suicide- It is also
pertinent to note that there were no injury
marks on the body of the deceased, hence,
undoubtedly it is a case of hanging and we
are of the considered opinion that learned
trial court has awarded very harsh and
severe
punishment,
which
is
life
imprisonment- sentence is reduced to the
period of 10 years under Section 304-B
I.P.C.

Settled law that punishment should not be
either unduly harsh or ridiculously inadequate
but it ought to be proportionate to the gravity of
the offence as well as other factors. As the
criminal
jurisprudence
of
our
country
is
reformative and not retributive, hence applying
the doctrine of proportionality sentence reduced
to a period of ten years. (Para 19, 20, 21, 22,
23)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case Law relied upon:-

## Text

8 All. Vinod Vs. State of U.P.
23
such conditions as it deems necessary for
the due supervision of the offender.

(4)
The
court
making
a
supervision order under sub-section (3)
shall require the offender, before he is
released, to enter into a bond, with or
without sureties, to observe the conditions
specified in such order and such additional
conditions with respect to residence,
abstention from intoxicants or any other
matter as the court may, having regard to
the particular circumstances, consider fit to
impose for preventing a repetition of the
same offence or a commission of other
offences by the offender.

(5)
The
court
making
a
supervision order under sub-section (3)
shall explain to the offender the terms and
conditions of the order and shall forthwith
furnish one copy of the supervision order to
each of the offenders, the sureties, if any,
and the probation officer concerned.

24. It is relevant to mention here that
Section 360 Cr.P.C. also confers the powers
on the Court to release the accused on
probation for good conduct or after
admonition.

25. For the reasons aforesaid, the
appeal filed by the appellant no.1. Kehari
and appellant no. 2. Hori Lal is partly
allowed.

26. The conviction of appellant no. 1,
namely, Kehari and appellant no. 2 Hori
Lal under Section 307 read with Section 34
IPC and sentence awarded to them is set
aside. However, both the appellants are
found guilty for the offence punishable
under Section 324 read with Section 34 IPC
and are convicted thereunder. They shall
get benefit of Section 4 of Probation of
Offenders Act. They shall file two bonds to
the tune of Rs.20,000/- each coupled with
personal bonds to the effect that they shall
not commit any offence and shall be of
good behaviour and shall maintain peace
during the period of one year. If they are in
breach of any of the conditions, they shall
subject himself to undergo one year
rigorous
imprisonment.
The
bonds
aforesaid
shall
be
filed
by
the
accused/appellant nos.1 and 2 within two
months from the date of judgement. The
time for submitting the bail bonds shall not
be extended on any ground whatsoever.

27. Let a copy of this judgment along
with original lower Court record be sent to
the
Court
concerned
for
compliance
forthwith.
----------
(2022) 8 ILRA 23
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.07.2022

BEFORE

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

Criminal Appeal No. 4904 of 2014

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

Counsel for the Appellant:
Sri Chandrabhan Kushwaha, Sri Mahendra
Pal Singh Gaur, Pradeep Kumar, Ms. Gunjan
Sharma

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Penal Code, 1860-
Sections 304B & 498-A- Dowry Prohibition
Act,1961
-
Section
4-
Conviction-
Sentence of Life Imprisonment- Appeal
pressed only on the Quantum of Sentence-
24 INDIAN LAW REPORTS ALLAHABAD SERIES
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-'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'. Perusal of record goes
to show that there is no doubt that
deceased had committed suicide- It is also
pertinent to note that there were no injury
marks on the body of the deceased, hence,
undoubtedly it is a case of hanging and we
are of the considered opinion that learned
trial court has awarded very harsh and
severe
punishment,
which
is
life
imprisonment- sentence is reduced to the
period of 10 years under Section 304-B
I.P.C.

Settled law that punishment should not be
either unduly harsh or ridiculously inadequate
but it ought to be proportionate to the gravity of
the offence as well as other factors. As the
criminal
jurisprudence
of
our
country
is
reformative and not retributive, hence applying
the doctrine of proportionality sentence reduced
to a period of ten years. (Para 19, 20, 21, 22,
23)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case Law relied upon:-

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

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

3. Ravada Sasikala Vs St.of A.P. AIR 2017 SC
1166
(Delivered by Hon'ble Ajai Tyagi, J.)

1. The appeal has been preferred by
the appellant-Vinod against the judgment
and order dated 15.11.2014, passed by
learned Additional Sessions Judge, Court
No.6, Badaun in Session Trail No. 172 of
2013 (State of UP vs. Vinod), arising out of
Case Crime No. 547 of 2012, under
Sections 498-A, 304B Indian Penal Code,
1860 (in short ''I.P.C.') and Section 3/4 of
Dowry Prohibition Act, Police Station-
Kadarchowk, District Badaun whereby the
appellant is convicted and sentenced for the
offence under Section 304-B I.P.C. for life
imprisonment, under Section 498-A I.P.C.
for three years rigorous imprisonment with
a fine of Rs.3,000/- and in default of
payment of fine, further imprisonment for
three months. Accused-appellant is also
convicted and sentenced for the offence
Section 4 of D.P. Act for one year rigorous
imprisonment with a fine of Rs.1,000/- and
in default of payment of fine, further
imprisonment for one month.

2. Brief facts of the case giving rise to
this appeal are that a written report was
submitted by complainant Natthu Lal
(father of the deceased) at police station
Kadarchowk, District Badaun with the
averments that marriage of his daughter
Seema was solemnized with accused-Vinod
before one and half year. He had given
dowry as per his capacity. After marriage
accused-Vinod and his family members
demanding motorcycle, gold chain and ring
as additional dowry and used to compel his
daughter to bring the aforesaid articles. It is
further
averred
that
on
23.10.2012,
appellant-Vinod and his family members
had murdered his daughter, who is having
injury marks on her neck and feet. It is also
stated in written report that accused-Vinod
himself informed him on phone that they
have killed his daughter.
8 All. Vinod Vs. State of U.P.
25

3. On the basis of above written
report, a case crime no.547 of 2012 was
registered at Police Station Kadarchowk,
under Sections 498-A, 304-B I.P.C. and
Section 3/4 of Dowry Prohibition Act.
Investigation was taken up by Circle
Office, who visited the spot, prepared the
site plan and recorded the statement of
witnesses. Inquest report was prepared and
post-mortem of the dead body was
conduced and its report was also prepared
by
doctor.
After
completion
of
investigation, I.O. submitted the charge
sheet against accused-Vinod only, who is
the husband of the deceased. Other accused
named in the First Information Report were
not charge sheeted. Case being exclusively
triable by the court of session was
committed to the court of session for trial,
hence, trial taken placed against accusedVinod.

4. Learned Sessions Court framed the
charges
against
accused-Vinod
under
Section 3 r/w 4 of Dowry Prohibition Act,
under Section 498-A and 304-B I.P.C.
Charges were read over to the accused, who
denied the charges and claimed to be tried.

5. To bring home the charges, the
prosecution examined following witnesses:

1.
Natthu Lal
P.W.-1
2.
Satendra Pal
P.W.-2
3.
Mahendra Kumar Singh
P.W.-3
4.
Dr. S.K.Saxena
P.W.-4
5.
Jai Kesh
P.W.-5

6. In support of oral evidence,
prosecution
submitted
following
documentary evidence, which was proved
by leading oral evidence:-

1.
FIR
Ex.ka-8
2.
Written report
Ex.ka-1
3.
Post-mortem report
Ex.ka-7
4.
Panchayatnama
Ex.ka-2
5.
Charge sheet Mool
Ex.ka-11
6.
Site plan with index
Ex.ka-10

7. After completion of prosecution
evidence, the statement of accused was
recorded under Section 313 of Criminal
Procedure Code (Cr.P.C.), in which he
denied his involvement in the crime and
told that false evidence was led against
him. The accused examined D.W-1 Ram
Nath and D.W.-2 Satyapal in defence.

8. Heard Ms. Gunjan Sharma, learned
Advocate holding brief of Mr. Pradeep
Kumar, counsel for the appellant and Mr.
N.K. Srivastava, learned counsel for the
State. Record has been perused.

9. Perusal of record shows that
occurrence of this case had taken place on
23.10.2012. As per the prosecution story,
accused-appellant and his family members
committed the offence but they were not
charge sheeted because no sufficient
evidence was found against them during
the course of investigation.

10. Leaned counsel for the appellant
has submitted that as per the F.I.R., family
members of the appellant were also
involved in the offence but no evidence
was found against them, which goes to
show that entire F.I.R. is fabricated and
false
averments
were
made
by
the
complainant to rope in all the family
members of the appellant. Such type of
F.I.R. is highly suspicious and cannot be
believed. It is further submitted that if the
offence was committed by appellant, there
could be no reason that he himself
26 INDIAN LAW REPORTS ALLAHABAD SERIES
informed the father of the deceased as is
evident from the version of F.I.R.

11. It is next submitted by learned
counsel for the appellant that prosecution
has examined P.W.-1, Natthu Lal, father of
the deceased and P.W.-2 Satendra Pal,
brother of the deceased, as a witnesses of
fact but their testimony has material
contradictions, which go to the root of the
case. Demand of additional dowry is not
proved, even the F.I.R. does not mention
any story of torture on the part of the
appellant.

12. With regard to the medical
evidence, learned counsel for the appellant
has submitted that as per the post-mortem
report, there is only ligature mark of injury
was found on the neck of the deceased and
doctor has also opined that deceased has
committed suicide. No other mark of injury
was found on the body of the deceased,
hence, it is proved that deceased was not
tortured or beaten up etc. which falsify the
prosecution story.

13. After the aforesaid arguments,
learned counsel for the appellant submits
that he wanted to press the appeal only on
the ground of quantum of sentence and it is
also submitted that learned trial court has
awarded very severe punishment of life
imprisonment while there was no torture
either mental or physical on the part of the
accused-appellant is proved.

14. Learned A.G.A. for the State has
vehemently objected to the submissions of
learned counsel for the accused-appellant
and submitted that death of deceased had
taken place within 7 years of her marriage.
P.W.-1 and P.W.-3 have proved the demand
of additional dowry. It is also submitted
that even the death by suicide is covered
within the category of dowry death.
Learned trial court has rightly convicted
and sentenced the accused-appellant.

15. During the course of arguments,
learned counsel for the appellant has
submitted that he wants to press this appeal
only on the ground of quantum of
compensation and no merits. In this regard,
we have to analyse the theory of
punishment prevailing in India.

16. 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."

17. 'Proper Sentence' was explained in
Deo Narain Mandal Vs. State of UP
8 All. Vinod Vs. State of U.P.
27
[(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.

18. 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.

19. 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.

20. Since the learned counsel for the
appellant has not pressed the appeal on its
merit, however, after perusal of entire
evidence on record and judgment of the
trial court, we consider that the appeal is
devoid of merit and is liable to be
dismissed. Hence, the conviction of the
appellant is upheld.

21. As discussed above, 'reformative
theory of punishment' is to be adopted and
28 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

22. Perusal of record goes to show
that there is no doubt that deceased had
committed suicide. Antemortem injury in
post-mortem report show that there was
only ligature mark around the neck above
the thyroid cartilage obliquely. It was sized
about 24 cm X 1 cm. Dr. S.K. Saxena,
P.W.-4 has also opined that in the opinion
of panel of doctors cause of death was
hanging. It is also pertinent to note that
there were no injury marks on the body of
the deceased, hence, undoubtedly it is a
case of hanging and we are of the
considered opinion that learned trial court
has awarded very harsh and severe
punishment, which is life imprisonment.

23. Keeping overall facts and
circumstances of this case, in our opinion,
ends of justice would be met if the sentence
is reduced to the period of 10 years under
Section 304-B I.P.C. Sentence under
Section 498-A I.P.C. and Section 4 of
Dowry Prohibition Act has already been
served. Fine imposed under Section 498-A
I.P.C. and Section 4 of Dowry Prohibition
Act is maintained and sentence in default of
fine is also maintained.

24. Accordingly, the appeal is partly
allowed, as modified above.

25. Record be sent to trial court
immediately.
----------
(2022) 8 ILRA 28
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.07.2022

BEFORE

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

Criminal Appeal No. 6158 of 2008

Harish Kumar & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Raj Singh, Sri Devendra Swaroop, Sri
R.D. Dauholia, Sri Siddharth Singh, Sri
Vijendra Singh, Sri Sunil Kumar Upadhaya

Counsel for the Respondent:
Govt. Advocate

Criminal Law- Indian Penal Code, 1860-
Sections 498-A & 304-B- Indian Evidence
Act, 1872- Section 32- Dying DeclarationWhile going through the evidence of the
witnesses, it cannot be said that Section
498A read with Section 304B of I.P.C is not
made out qua the accused no. 1- Harish
Kumar. This takes us to the evidence against
the mother-in-law- Kashtoori Devi, while
going through the oral testimony of P.W.-1,
P.W.-2 and P.W.-3 we do not find any
reason to believe that she was a party to the
incident, her presence has not been proved.
There is no overt act of mother-in-law even
in the oral dying declaration. There are 40%
burns. The investigation of the investigating
authority qua the mother-in-law appears to
be faulty. We, therefore, cannot uphold the
conviction of the mother-in-law-Kashtoori
Devi. We give benefit of doubt to the mother
in law namely Kashtoori Devi.