Samharu Gupta vs State of U. P. - 2023 Supreme(All) 463

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 463

IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, AJIT SINGH, JJ.
Samharu Gupta – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 755 of 2022
Decided on : 22-02-2023

Advocates:
Advocate Appeared:
For the Appellant : Karunesh Pratap Singh

Headnote:
Indian Penal Code, 1860 – Section 302, 300, 304 – Criminal Procedure Code, 1973 – Section 313 – Offence of Murder – Postmortem report – Cause of Death – Learned counsel appellant made submissions as far as bail is concerned gone through record judgment impugned and factual data and by consent of learned proceed to decide this appeal finally where accused-appellant is in jail – Held, Court, as discussed held that undue harshness should be avoided taking into account reformative approach underlying in criminal justice system – Accused-appellant is sentenced to imprisonment as he has undergone of incarceration — Imprisonment of incarceration which would accused-appellant be set free forthwith served sentence imposed by this Court and if he is not wanted in any other case – Appeal is partly allowed.

JUDGMENT :

1. Heard Sri Karunesh Pratap Singh, learned counsel for the appellant and learned A.G.A. for the State.

2. Though learned counsel for the appellant has made submissions as far as bail is concerned, we have gone through the record, the judgment impugned and the factual data and by consent of learned A.G.A. we proceed to decide this appeal finally where the accused-appellant is in jail for more than seven years and he has one daughter to look after.

3. This appeal challenges the judgment and order dated 3.12.2021 passed by Additional Sessions Judge/Special Judge, P.A. Act/U.P.S.I.B., Gorakhpur in Sessions Trial No.129 of 2016 (State vs. Samharu Gupta) whereby the learned Sessions Judge has convicted accused-appellant under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.50,000/-and, in case of default in payment of fine further to undergo two years' imprisonment.

4. Brief facts as culled out from the record are that the brother of the deceased made a complaint before the Police Station Pipraich, Gorakhpur stating therein that her sister who was married with accused-appellant 21 years ago was killed by her husband by Shovel (Fawda). It was also stated that there were quarrel between both of them due to suspicion of illicit relation of deceased. The deceased died while on the way to hospital. On the basis of his complaint, First Information Report was registered as Case Crime No. 328 of 2015.

5. On investigation being put into motion, the investigating officer recorded the statements of all the witnesses and submitted the charge-sheet to the learned Magistrate. The learned Magistrate summoned the accused and committed him to Court of Sessions as prima facie charge was under Section 302 of IPC.

6. On being summoned, the accused-appellant pleaded not guilty and wanted to be tried. The Trial started and the prosecution examined 11 witnesses who are as follows:

1	Chandrabhan	PW1
2	Smt. Vimla Devi	PW2
3	Ritu Gupta	PW3
4	Arun Gupta	PW4
5	Madhuri Devi	PW5
6	Ganga Prasad	PW6
7	Guddu Gaud	PW7
8	Akhilesh Kumar Upadhyaya	PW8
9	Prabhatesh Kumar	PW9
10	Nirmal Kumar Yadav	PW10
11	Dr. Dhananjay Kushwaha	PW11

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

1.	F.I.R.	Ex.Ka.13
2	Written Report	Ex.Ka.1
3	Postmortem Report	Ex.Ka.3/1 & 3/2
4	Panchayatnama	Ex.Ka.11
5	Charge-sheet	Ex. Ka.7
6	Site Plan	Ex.Ka.5
7	F.S.L. Report	Ex.Ka.6

8. 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.

9. It is submitted by learned counsel for the appellant that the incident occurred at the spur of moment which arose due to sudden quarrel between husband and wife. It is submitted that the accused had not premeditated to do away with the deceased.

10. In alternative, it is submitted that at the most, the death can be homicidal death not amounting to murder and punishable under Section 304 II or Section 304 I of I.P.C. If the Court decides that the accused is guilty under Section 302 of IPC, then the accused may be granted fixed term punishment of incarceration as the death is not a gruesome act on part of accused.

11. Per contra, learned A.G.A. for the State submits that there was no grave and sudden provocation from the side of the deceased and that looking to the gruesomeness of the offence and the evidence of prosecution witnesses, this Court should not show any leniency in the matter. It