# Zakir Hussain v. State of U.P

- **Citation:** (2023) 2 ILRA 853
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-23
- **Case number:** Criminal Appeal No. 4093 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zakir-hussain-v-state-of-u-p-49749
- **Pages:** 6

## Headnote

854 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Penal Code,1860 - Sections 53 &
302 - Proper Sentence - Modification of -
'Reformative
&
corrective
theory
of
punishment' - It is necessary to impose
punishment keeping in view the 'doctrine
of proportionality' - Sentence should not
be either excessively harsh or ridiculously
low - 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 - undue harshness should be
avoided
taking
into
account
the
reformative
approach
underlying
in
criminal justice system - Every accused
person is capable 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 (Para 16, 18, 19)

Indian Penal Code,1860 - Section 302 -
Dowry Death - marriage of deceased
solemnised with the accused appellant on
3.4.2021 - Appellant and his other family
members were not satisfied with the given
dowry and were demanding additional
dowry and due to non-fulfilment whereof,
the deceased was tortured and ultimately
in the night of 9/10.4.2015 she was set on
fire and on 6.5.2015 during treatment she
succumbed to the burn injuries - Dying
declaration of the deceased was against
the
appellant/husband,
which
was
recorded by Naib Tehsildar after fitness
certificate was given by the doctor that
she was fully conscious and fit to give her
St.ment - deceased was done to death
within seven years of marriage in her
matrimonial home - It was pleaded that
the accused/appellant very poor person &
was only the bread winner in his family
and was in jail for more than seven years -
findings of facts recorded by the Court
below not disturbed - However the Court
substituted the punishment to 10 years'
rigorous imprisonment with remission
(Para 20)

Partly Allowed. (E-5)

List of Cases cited:

## Text

2 All. Zakir Hussain Vs. State of U.P.
853
mandatory duty on the court to apply its
mind to the question in every criminal case.
Application of mind to the question is best
disclosed
by
recording
reasons
for
awarding/refusing compensation."

15. Section 357 Cr.P.C. and Section 5
of the Offenders Act empowers the Court
to award compensation to the victim(s) of
the offence in respect of the loss/injury
suffered. The object of the section is to
meet the ends of justice in a better way.
This section was enacted to reassure the
victim that he is not forgotten in the
criminal justice system. The amount of
compensation to be awarded under Section
357 Cr.P.C. depends upon the nature of
crime, extent of loss/damage suffered and
the capacity of the accused to pay, which
the Court has to conduct a summary inquiry
as well as considering the submission of
learned counsel for appellant as earlier, this
Court is of the view that benefit of Section
4 of the Probation of First Offender Act,
1958 should be provided to the appellants.

16. Thus the appeal is partly
allowed. The conviction as directed by
trial court is altered from 307 I.P.C. to
324 I.P.C. and on the point of sentence it
is directed to be released the appellant
on probation and under section 4 of the
U.P. of the Probation of Offenders Act with
stipulated condition that he will keep peace
and good conduct for one year subject to
furnishing personal bond of Rs.40,000/-
and two sureties of the like amount before
the Court.

17. Considering the law propounded
by Hon'ble Apex Court and as per
provisions of Section 357 Cr.P.C. and
Section 5 of the Probation of the Offenders
Act, 1958, I am of the view that
compensation should be awarded to the
injured persons, namely, Raj Kumar Singh,
Krishna Kumar Singh, Mahendra Pratap
Singh
and
Chiranjeet
Lal.
So
the
compensation of Rs. 40,000/-is imposed
upon the appellant and out of Rs. 40,000/-,
Rs. 10,000/- be paid to the each injured
persons, namely , Kumar Singh, Krishna
Kumar Singh, Mahendra Pratap Singh and
Chiranjeet Lal. In case of death of any
injured persons, same shall be payable to
legal heirs of the injured persons. If the
appellant fails to pay alleged amount
within fifteen days from the date of
production of certified copy of this
order, then he shall undergo simple
imprisonment of one year.

18. Thus, the appeal is dismissed on
the point of conviction and partly
allowed on the point of sentence.

19. Office is directed to communicate
this order to the trial court concerned. The
trial court record be sent back.
----------
(2023) 2 ILRA 853
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2023

BEFORE

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

Criminal Appeal No. 4093 of 2018

Zakir Hussain ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Virendra Kumar Gupta, Sri Lal Mani Singh, Sri
Noor Mohammad, Sri Irshad Mohammad

Counsel for the Respondent:
A.G.A., Sri Brijesh Nath Rai, Sri Rahul Mishra
854 INDIAN LAW REPORTS ALLAHABAD SERIES
Indian Penal Code,1860 - Sections 53 &
302 - Proper Sentence - Modification of -
'Reformative
&
corrective
theory
of
punishment' - It is necessary to impose
punishment keeping in view the 'doctrine
of proportionality' - Sentence should not
be either excessively harsh or ridiculously
low - 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 - undue harshness should be
avoided
taking
into
account
the
reformative
approach
underlying
in
criminal justice system - Every accused
person is capable 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 (Para 16, 18, 19)

Indian Penal Code,1860 - Section 302 -
Dowry Death - marriage of deceased
solemnised with the accused appellant on
3.4.2021 - Appellant and his other family
members were not satisfied with the given
dowry and were demanding additional
dowry and due to non-fulfilment whereof,
the deceased was tortured and ultimately
in the night of 9/10.4.2015 she was set on
fire and on 6.5.2015 during treatment she
succumbed to the burn injuries - Dying
declaration of the deceased was against
the
appellant/husband,
which
was
recorded by Naib Tehsildar after fitness
certificate was given by the doctor that
she was fully conscious and fit to give her
St.ment - deceased was done to death
within seven years of marriage in her
matrimonial home - It was pleaded that
the accused/appellant very poor person &
was only the bread winner in his family
and was in jail for more than seven years -
findings of facts recorded by the Court
below not disturbed - However the Court
substituted the punishment to 10 years'
rigorous imprisonment with remission
(Para 20)

Partly Allowed. (E-5)

List of Cases cited:
1. Ravada Sasikala Vs St. of A.P. AIR 2017 SC
1166

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

3. Guru Basavraj Vs St. of Karn., [(2012) 8 SCC
734]

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

5. St. of Pun. Vs Bawa Singh, [(2015) 3 SCC
441]

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

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

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

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

1. This appeal has been filed
challenging the judgment and order dated
02.06.2018 passed by Session judge,
Mahoba in Session Trial No.108 of 2015,
arising out of Case Crime No.260 of 2015,
under Section 302 I.P.C., Police Station
Mahoba,
district
Mahoba,
whereby
convicting the appellant under Section 302
I.P.C. and awarded the sentence for life
imprisonment and a fine of Rs.10,000/- and
in default of payment of fine 4 months
additional simple imprisonment.

2. The prosecution story in brief is
that the informant Sattar Khan @ Bhure
had solemnized marriage of his daughter
Nazreen with the accused Zakir on
3.4.2021 according to Muslim rights as per
his status and given adequate dowry but the
husband of the daughter of the informant
and his other family members were not
satisfied with the given dowry and they
were demanding Rs. 2,00,000/- cash and a
2 All. Zakir Hussain Vs. State of U.P.
855
car as an additional dowry and due to nonfulfillment whereof, the daughter of the
informant was tortured and maltreated by
them in her matrimonial home and
ultimately in the night of 9/10.4.2015 she
was set on fire and on 6.5.2015 during
treatment she succumbed to the burn
injuries.

3. The investigation of the case was
entrusted to the Circle Officer, Sadar, who
inspected the place of occurrence and prepared
the site plan and recorded the statement of
witnesses. After completion of investigation,
the Investigating Officer has submitted chargesheet only against the accused-appellant Zakir
Hussain, under Sections 498-A, 304-B I.P.C.
and Section 3⁄4 Dowry Prohibition Act on
27.06.2015 and the cognizance was taken by
the Magistrate and considering that the case
was triable by the Session Judge and it was
committed to the court of session and the
Session Court charged the accused under
Sections 498-A, 304-B I.P.C. and Section 3⁄4
Dowry Prohibition Act.

4. In order to prove its case the
prosecution has examined eight witnesses,
who are as follows :

1
Sattar Khan
PW1
2
Zunaid Khan
PW2
3
Prabudh Singh
PW3
4
Afsari Khatun
PW4
5
Rajendra Kumar
PW5
6
Vimal Kumar
PW6
7
Dr. K.K.Suller
PW7
8
Sandeep Singh
PW8

5. In support of ocular version
following documents were filed:
1
F.I.R.
Ex.Ka.9
2
Written Report
Ex.Ka.1
3
Dying Declaration Ex.Ka.7
4
P.M. Report
Ex. Ka. 10
5
Panchayatnama
Ex. Ka.2
6
Charge Sheet
Ex.Ka.12
7
 Site
Plan
with
Index
Ex. Ka.11

6. The prosecution laid the evidence
against the accused and the court after
prosecution evidence examined the accused
under Section 313 Cr.P.C. and the accused
submitted
that
he
has
been
falsely
implicated in the present case with ulterior
intention of harassing him. He pleaded not
guilty and claimed to be tried. The learned
Sessions Judge framed charges under
Sections 498-A, 304-B of I.P.C. and
Section 3⁄4 of D.P. Act.

7. After considering the evidence
available on record the trial court convicted
the accused as aforesaid. Being aggrieved
by the conviction judgment and order this
appeal has been filed.

8. Heard Sri Irshad Mohammad,
assisting Sri Noor Mohammad, learned
counsel for the appellant on modification of
sentence and learned A.G.A. for the State.

9.

Learned
counsel
for
the
accused/appellant
submits
that
the
appellant has been falsely implicated by the
informant as there was no demand of
additional dowry on the part of the
appellant. When the alleged incident is said
to have taken place the accused was not
present at the spot. He further submits that
the incident occurred due to burst of stove
on which she was cooking food. She burnt
856 INDIAN LAW REPORTS ALLAHABAD SERIES
accidentally and in the process her clothes
caught fire, causing serious injuries to her.
After hearing the alarm raised by the
deceased, the in-laws of the deceased
reached at the spot and tried to save her and
in this process they also received burn
injuries. No one had set her ablaze but the
prosecution has tried to give in a colour of
dowry death. There is no dying declaration
of the deceased. He also submits that as per
postmortem report the deceased has died
due to ante-mortem injuries as a result of
shock and septicemia. He lastly submits
that the accused/appellant in a poor person
he is only the bread winner in his family.

10. Learned A.G.A. has submitted that
the accused and his other family members have
committed the murder of the deceased after
pouring kerosene oil on her. The deceased has
died within seven years of marriage.

11. At the end of the trial and 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.

12. While taking us through the
judgment, when the Court was of his view that
the death was a homicidal death looking to the
medical evidence, learned counsel requested for
showing leniency in the matter and seeks for
lesser punishment as the accused/appellant is in
jail for more than seven years, Learned counsel
for the appellant has relied on the decision of
this Court in Criminal Appeal No.2895 of
2015 (Manoj Sharma Vs. State of U.P.)
decided on 09.12.2022.

13. As against this, learned A.,G.A.
states that the deceased was done to death
within seven years of marriage in her
matrimonial home, hence, no leniency can
be shown to the accused/appellant by this
Court.

14. While considering 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 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.

15. 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."
2 All. Zakir Hussain Vs. State of U.P.
857

16. '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.

17. 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.

18. 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.

19. 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
858 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

20. In view of the above, the findings
of facts by the Court below are not
disturbed. However, as far as punishment is
concerned, we substitute the same to 10
years'
rigorous
imprisonment
with
remission. Fine and default sentence is
maintained. If the accused/appellant has
undergone the period of incarceration, the
accused/appellant be set forthwith, if not
wanted in any other case. The default
sentence to start after ten years' of
incarceration with remission.

21. In view of the above, the appeal is
partly allowed. Judgment and order passed
by the learned Sessions Judge shall stand
modified to the aforesaid extent. Record be
sent back to the Court below forthwith.
----------
(2023) 2 ILRA 858
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2023

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE NARENDRA KUMAR JOHARI, J.

Criminal Misc. Writ Petition No. 481 of 2023

David Mario Denis ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Rajat Gangwar, Ashmita Singh

Counsel for the Respondents:
A.S.G.I., Deepanshu Dass, G.A., Shiv P.
Shukla
Criminal Law - Constitution of India,1950
- Article - 21, 32, 166, 226, - Prevention of
Corruption Act, 1947 - Sections 7, 7(a) &
13 - Indian Penal Code, 1860 - Sections
120-(B), 342, 386, 409, 411, 420, 467,
468, 471, 504 & 506, - Delhi Special Police
Establishment Act, 1942 - Sections 3, 5 &
6 - Writ Petition - challenging the validity of
Notification issued by Govt. of India & consent
of St. of UP - Powers & Jurisdiction - petitioner
who is complainant - First Information Report
registered in UP - However, Investigation of
reported offence may travel to the territories of
other St.s - court finds that, in the case of
'Committee for Protection of Democratic Rights'
the Hon'ble Supreme Court held that power to
extent the jurisdiction of C.B.I. to investigate a
reported crime in other St.s can be exercised by
the Central Government - question is not as to
whether an accused or victim has any right to
seek transfer reported crime; rather the point is
that the reported crime should be investigated
in most fair and impartial manner - nothing has
been brought on record to substantiate that
transfer of F.I.R. in this case for investigation to
CBI has been made to derail investigation - St.
Government along with its consent to Central
Government for making an order extending
powers and jurisdictions of CBI to investigate
F.I.R. in case is proper - Writ petition fails - and
is dismissed.(Para - 30, 36, 44, 46, 47)

Writ Petition Dismissed. (E-11)

List of Cases cited: -

1. Kanwal Tanuj Vs St. of Bihar & ors. ( 2020
vol. 20 SCC 531),

2. St. of W.B. & ors. Vs Committee for Protection
of Democratic Rights, W.B. & ors. (2010 Vol. 3
SCC 571),

3. Anand Agarwal Vs U.O.I. & ors. (2018 SCC
OnLine Del. 11713).

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.)

1. By instituting these proceedings
under Article 226 of the Constitution of