Ashwani Sharma vs State of U. P. - 2023 Supreme(All) 1460

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2023 Supreme(All) 1460

IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, UMESH CHANDRA SHARMA, JJ.
Ashwani Sharma And Another – Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No.5776 of 2017
Decided on : 29-08-2023

Important Points

The main legal point established in the judgment is the application of the principles to distinguish between 'murder' and 'culpable homicide not amounting to murder' under IPC, and the consideration of the reformative theory of punishment and the doctrine of proportionality in sentencing.

Subject

Criminal Law - Homicide and Sentencing

Act Referred

CRIMINAL PROCEDURE CODE : S.313, S.82, S.83
INDIAN PENAL CODE : S.299, S.302, S.34, S.504

Headnote

IPC - Conviction under Section 302 read with Section 34 of Indian Penal Code, 1860 - [302, 34 IPC] - The court discussed the distinction between 'murder' and 'culpable homicide not amounting to murder' and applied the principles laid down in various judgments to conclude that the offence committed was culpable homicide not amounting to murder, punishable under Section 304 Part-I of IPC. The court also considered the reformative theory of punishment and reduced the sentence based on the doctrine of proportionality.

Fact of the Case:

The case involved the conviction of accused-appellants under Section 302 read with Section 34 of IPC for causing the death of the deceased during an altercation. The deceased was allegedly assaulted by the accused-appellants with a baseball, resulting in his death.

Finding of the Court:

The court found that the death caused by the accused was not premeditated and concluded that it was a case of culpable homicide not amounting to murder, punishable under Section 304 Part-I of IPC. The court also considered the reformative theory of punishment and reduced the sentence based on the doctrine of proportionality.

Issues: The key issues revolved around determining whether the offence constituted murder or culpable homicide not amounting to murder, and the appropriate sentencing based on the principles of reformative theory of punishment and proportionality.

Ratio Decidendi: The court applied the principles laid down in various judgments to distinguish between 'murder' and 'culpable homicide not amounting to murder' and considered the reformative theory of punishment and the doctrine of proportionality to arrive at its decision.

Final Decision: The court partly allowed the criminal appeal, converting the conviction from Section 302 IPC to Section 304 Part-I IPC and reducing the sentence to the period already undergone by the accused-appellants. A fine of Rs. 10,000 was imposed, to be deposited within four weeks of release from incarceration.

Advocates:
Advocate Appeared:
For the Appellant : Vikas Sharma, Anil Kumar Dubey, Anurag Pathak, Bed Prakash Rai, Chandra Bhan Dubey, Garun Pal Singh, Harshit Pathak
For the Respondent: G.A., Pradeep Kumar Rai, Saurabh Trivedi

JUDGMENT :

Umesh Chandra Sharma, J.

1. Heard Sri Bed Prakash Rai, learned counsel for the appellants and learned A.G.A. for the State.

2. This appeal challenges the judgment and order dated 28.8.2017 passed by Additional Sessions Judge, Court No.11, Meerut, in Sessions Trial No. 979 of 2014 (State vs. Monu and Another) convicting accused-appellants under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced the accused-appellants to undergo imprisonment for life with fine of Rs.10,000/-and in case of default of payment of fine, further to undergo imprisonment for a period of one year and under Section 504 IPC to undergo imprisonment for one year each.

3. In brief, facts of the case are that informant Jitendra Kumar on 14.4.2014 at 23:46 moved Tehrir, Ex. Ka-1, alleging therein that his brother Indresh Kumar, deceased, lived at Ganga Nagar along with his family. On 14.4.2014 in the morning his niece Shiwangi was teased by three boys namely Nishu, Rahul and Monu @ Mayank sons of Ashwani Sharma. The mother of the boys was apprised about the aforesaid incident. At about 8:00-8:30 P.M. when his brother alongwith his wife was coming from his Parichitgarh clinic and when they reached in front of Jagdamba Health Club in O block Ganga Nagar Meerut, the aforesaid three boys along with their father surrounded his brother and started beating him. On hue and cry, Neetu Sharma @ Jitendra son of Ramesh Chandra Sharma also reached there, he and his brother’s wife told that Monu @ Mayank and Rahul had caught hold of Indresh and Nishu Sharma and their father Ashwani Sharma with intention to kill, gave multiple blows from baseball.

4. On the aforesaid Tehrir an F.I.R., Ex. Ka-4, Case Crime No. 221 of 2014 under Section 302 I.P.C. was lodged at Police Station Inchauli, District Meerut against the accused Monu @ Mayank, Ashwani Sharma, Nishu and Rahul.

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 on finding the offences to be triable by Court of Sessions, committed the case to the Court of Sessions. However, the accused Nishu Sharma and Rahul Sharma were minor hence their case was not committed.

6. On 9.3.2016 the charges under Section 302/34 and 504 I.P.C. were framed against the accused. The accused-persons pleaded not guilty and wanted to be tried. The Trial started and the prosecution examined 8 witnesses who are as follows:

1	Jitendra Kumar	PW1
2	Neelam Sharma	PW2
3	Neetu Sharma	PW3
4	Constable Pramod Kumar	PW4
5	Dr. Vinay Bhargav	PW5
6	S.I. Hans Ras Bhadoriya	PW6
7	S.I. Mukesh Kumar	PW7
8	Inspector Pramod Kumar Singh	PW8

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

1	F.I.R.	Ex.Ka.1
2	Inquest	Ex.Ka.2
3	Chik F.I.R.	Ex. Ka.3
4	Corbon copy report no. 45 dated 14.4.2014	Ex.Ka.4
5	Post-mortem report	Ex.Ka.5-6
6	Site Plan	Ex.Ka.7
7	Arrest Memo of the accused and recovery memo of baseball	Ex.Ka.8
8	Site Plan of recovery	Ex.Ka.9
9	Letter of S.I.	Ex.Ka.10
10	Letter to C.M.O.	Ex.Ka.11
11	Police Form No. 13	Ex.Ka. 12
12	Police Form No. 379	Ex.Ka. 13
13	Sealed	Ex.Ka. 14
14	Charge-sheet	Ex.Ka. 15
15	F.S.L. Report	Ex.Ka.16

8. At the end of the trial and after recording the statement of the accused under section 313 Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned aforesaid.

9. In brief the relevant evidence of the prosecution witnesses are as follows:

(a) P.W.-1, informant, Jitendra Kumar, has deposed that