Nand Kishore vs State of U.P.

AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 1508 of 2018
Nand Kishore
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s) : Arun Kumar, Ajeet Kumar, Ashok
Kumar Singh, Chhote Lal Yadav,
Ganesh Nath Mishra, Sanjay Kumar
Bajpai
Counsel for Respondent(s) : Govt. Advocate
Court No. - 9
HON'BLE RAJESH SINGH CHAUHAN, J.
HON'BLE SUBHASH VIDYARTHI, J.
(Per: Subhash Vidyarthi,J.)
1. Heard Shri Ajeet Kumar, the learned counsel for the appellant,
and Ms. Meera Tripathi, learned Additional Government Advocate.
2. By means of the instant criminal appeal filed under Section 374
(2) Cr.P.C., the appellant Nand Kishore has challenged the validity
of a judgment and order dated 31.07.2018 passed by the learned
Special Judge (P.C. Act-3), Lucknow in Session Trial No.891 of
2014 titled 'State Vs. Nand Kishore', arising out of Case Crime
No.127 of 2014, Police Station- Itaunja, District- Lucknow whereby
the appellant has been convicted for the offences under Sections
498-A and 304-B I.P.C. and Section 4 of the Dowry Prohibition Act.
The appellant has been sentenced to undergo 3 years'
imprisonment and to pay a fine of Rs. 10,000/-, and in case of
failure to pay fine, an imprisonment for an additional period of three
months for the offence under Section 498-A IPC, imprisonment for
life for the offence under Section 304-B of IPC, and six months'
imprisonment for the offence under Section 4 of the Dowry
Prohibition Act. All the sentences have been directed to run
concurrently.

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3. The appeal was admitted by means of an order dated
06.09.2018, whereby the trial Court's record was summoned, and
objections were invited on the application for release of the
appellant on bail. The first bail application of the appellant was
rejected by means of an order dated 14.12.2022. The appellant
filed the second application for his release on bail on 22.07.2024,
which is still pending. Meanwhile, the trial Court's record has been
received and the paper book has also been prepared. Therefore,
instead of deciding the bail application, we have proceeded to
decide the appeal itself.
4. The aforesaid case was instituted on the basis of an FIR lodged
by the complainant stating that the complainant's daughter had got
married to the appellant on 06.03.2014. After marriage, her
husband and the husband's family members started harassing her
by demanding dowry. The complainant's son had gone to bring his
sister to her parental home about 15 days ago, but the accused
persons had not sent her, saying that his sister would not be sent
until Rs. Two lakh cash and a gold chain were given. Upon failure
of the complainant to give dowry, the accused persons gave some
toxic substance to the deceased in her food, due to which she died
on 06.06.2014.
5. The post-mortem examination mentioned two injuries: (1) a
contusion of size 5cm x 4cm on the left side of the head, 2 cm
above the left ear, and (2) a contusion of size 2 cm x 1.5 cm on the
right side of the occipital region. On opening, ecchymosis was
present in the above noted injuries. Viscera examination revealed
the presence of 'Aluminium Phosphide' in her abdomen.
6. The complainant was examined as PW-1, his wife was
examined as PW-2, the complainant’s sons, namely, Ravinder
Kumar & Suneel Kumar were examined as PW-3 & PW-4 and all of
them supported the prosecution version. The doctor, who had
conducted the post-mortem examination, was examined as PW-5,
and he proved the post-mortem report. The Tehsildar, who had
prepared the inquest report, was examined as PW-7.

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7. After going through the entire evidence, the Trial Court
concluded that the deceased died in her matrimonial home in
unnatural circumstances, within seven years of her marriage. The
appellant failed to prove the reasons behind her death; therefore, a
presumption has to be drawn under Section 113-B of the Evidence
Act. Accordingly, the Trial Court convicted the appellant for the
offence under Sections 498-A, 304-B of the IPC and Section 4 of
the Dowry Prohibition Act. However, the appellant was acquitted of
the alternative charge under Section 302 of the IPC and the charge
of committing the offence under Section 3 of the Dowry Prohibition
Act.
8. The learned counsel for the appellant has not advanced any
submission assailing the order of conviction and he has confined
his submissions only for reducing the sentence to the period for
which the appellant has already remained in custody. He has
submitted that the appellant has no other criminal history. He has
placed reliance on the decisions of the Hon'ble Supreme Court in
the cases of Hem Chand v. State of Haryana : (1994) 6 SCC 727
and Kashmira Devi v. State of Uttarakhand : (2020) 11 SCC 343.
9. The appellant was taken into custody immediately after lodging
the FIR. He was not granted bail during the trial. Even though this
appeal was admitted on 06.09.2018, the first bail application of the
appellant remained pending for more than 4 years, and it was
rejected by means of an order dated 14.12.2022.
10. As learned counsel for the appellant has not challenged the
validity of the conviction order and the appellant has already
undergone more than 13 years period in custody, the learned AGA
has left it to the discretion of the Court to decide the period of
sentence.
11. A custody certificate issued by the Superintendent, District Jail,
Lucknow, has been annexed with the affidavit filed in support of the
second bail application, as per which the appellant had remained in
custody for 4 years 1 month and 13 days (i.e. 1503 days) during

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4
trial and after conviction and till 15.08.2023, he had spent 5 years
and 16 days (i.e. 1841 days). Thus, the appellant had spent actual
period of 9 years 1 month 29 days period in custody till 15.08.2023.
He earned remission of 1 year 3 months and 10 days, which made
the period of custody as 10 years 5 months and 9 days.
12. Since 15.08.2023, the appellant has spent a further period of 2
years 9 months 7 days in custody, which makes the period
undergone in custody as 13 years 2 months and 18 days. After
adding the period of remission earned after 15.08.2023, the total
period undergone by the appellant in custody becomes about 14
years.
13. In Hem Chand v. State of Haryana : (supra), the Hon’ble
Supreme Court held that: -
“ Section 304-B IPC only raises presumption and lays down that
minimum sentence should be seven years but it may extend to
imprisonment for life. Therefore awarding extreme punishment of
imprisonment for life should be in rare cases and not in every
case.”

14 In Hem Chand v. State of Haryana : (supra), the Hon’ble
Supreme Court reduced the sentence of imprisonment for life to 10
years’ rigorous imprisonment for the offence under Section 304-B
IPC.
15. In Kashmira Devi v. State of Uttarakhand (supra), the
Hon’ble Supreme Court followed the decision in Hem Chand
(supra) and keeping in view the age of the appellant and also the
contribution that would be required to be made by her to the family
as the appellant’s husband was also aged and further taking into
consideration all other circumstances, the sentence of life
imprisonment awarded by the High Court was modified by ordering
the appellant to undergo rigorous imprisonment for a period of
seven years and to pay the fine as imposed and thereby the
default sentence was sustained.
16. In : 2025 SCC OnLine SC 1784, the
K. Pounammal v. State
Hon’ble Supreme Court held that: -

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“ 6. The conviction and sentence have their respective realms.
While the conviction would be recorded on the basis of evidence
adduced before the Court which would establish the implication of
the accused in the offence, the guilty person or the convicted when
to be awarded a sentence, a host of factors would operate to
govern.
6.1. In determining the final sentence and the nature thereof,
variety of factors that would operate would include the intervening
time between the commission of offence and the actual award of
the sentence, age of the accused, the stress which he or she might
have suffered because of passage of time during each case has
remained pending and undecided, the family circumstance and
such other factors, without becoming exhaustive.
7. The process of sentencing by the courts is guided by
theories such as punitive, deterrent or reformative. Each
school of thought has its own object and purpose to explain
awarding of sentence and its utility. Amongst these theories,
reformative approach has become increasingly acceptable to
the modern jurisprudence. Reformation is something always
considered progressive. When there are mitigating
circumstances, the court would lean towards reducing of the
sentence . The focus would be on the crime, and not on the
criminal. The society and system would nurture the guilt with
positivity, while selecting the sentence.”
(Emphasis added)
17. The Hon’ble Supreme Court further held in K. Pounammal
(supra) that: -
“ 9. The prolongation of a criminal case for an unreasonable period
is in itself a kind of suffering. It amounts to mental incarceration for
the person facing such proceedings. For a person who is convicted
and who has appealed against his or her conviction and sentence
and who everyday awaits the fate of litigation, spends time in
distress. In the present-day system of administration of justice, in
which proceedings have often go on protracted unreasonably and
therefore unbearably, the passage of long time itself makes the
person suffer a mental agony.”
18. While deciding the quantum of sentence, the learned trial Court
has recorded the submission of the appellant that it was his first
offence and he had no criminal history, he is a poor person and
there was nobody to pursue the case on his behalf. However, the
trial Court awarded the maximum sentence of imprisonment for life
for the offence under Section 304-B IPC, although the minimum
sentence for the offence is imprisonment for 7 years. The trial

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6
Court has not assigned any reason for rejecting the appellant’s
request for awarding a lesser sentence in view of the mitigating
circumstances pleaded by the appellant and has awarded the
maximum sentence without assigning any reason.
19. In Pramod Kumar Mishra v. State of U.P., (2023) 9 SCC 810 ,
the Hon'ble Supreme Court has held that:-
"10. It is a well-established principle that while imposing sentence,
aggravating and mitigating circumstances of a case are to be taken
into consideration.
12. India, till date, does not have a statutory sentencing policy in
place. This Court, however, has proceeded to examine the
objective behind sentencing and the factors to be kept in mind
while imposing such punishments. In Mohd. Giasuddin v. State of
A.P. [(1977) 3 SCC 287], it stood observed that:
9. … Crime is a pathological aberration, that the criminal can
“
ordinarily be redeemed, that the State has to rehabilitate rather
than avenge. The sub-culture that leads to anti-social behaviour
has to be countered not by undue cruelty but by re-culturisation.
Therefore, the focus of interest in penology is the individual, and
the goal is salvaging him for society. The infliction of harsh and
savage punishment is thus a relic of past and regressive times.
The human today views 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 social defence. We, therefore, consider 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.
*
16. … ‘A proper sentence is the amalgam of many factors such as
the nature of the offence, the circumstances — extenuating or
aggravating — of the offence, the prior criminal record, if any, of
the offender, the age of the offender, the record of the offender as
to employment, the background of the offender with reference to
education, home life, sobriety and social adjustment, the emotional

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and mental conditions of the offender, the prospects for the
rehabilitation of the offender, the possibility of return of the offender
to normal life in the community, the possibility of treatment or
training of the offender, the possibility that the sentence may serve
as a deterrent to crime by the offender or by others and the current
community need, if any, for such a deterrent in respect to the
particular type of offence. These factors have to be taken into
account by the Court in deciding upon the appropriate sentence.
[As observed in Santa Singh v. State of Punjab, (1976) 4 SCC 190]
’
17. It will thus be seen that there is a great discretion vested in the
Judge, especially when pluralistic factors enter his calculations. …
innovation, in all conscience, is in the field of judicial discretion.”
(emphasis in original)
14. In State of U.P. v. Sanjay Kumar [(2012) 8 SCC 537], this
Court held that courts for the purpose of deciding just and
appropriate sentence, have to delicately balance the aggravating
and mitigating factors and circumstances in which a crime has
been committed. To balance the two, is the primary duty of courts."
19. It is settled law that reason is the very soul of any order and
any judicial order bereft of a sound and cogent reasoning has no
legs to stand on. In the present case, when specific submissions
were advanced highlighting the mitigating factors that existed to
award a lesser sentence than the maximum prescribed sentence,
the submissions advanced ought to have been dealt by the trial
court. The trial court has turned down the submissions without
recording any reasons and has arbitrarily awarded the maximum
prescribed sentence to the accused appellant. Therefore, we are of
the view that the trial Court has committed an error in awarding the
maximum sentence without assigning any reason, which in our
opinion is not proper.
20. Keeping in view the submission of the appellant advanced
before the trial Court that it was his first offence and he has no
criminal history, he is a poor person and also the fact that the

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appellant has already undergone about 14 years in custody
(including the period of remission) we are of the view that the
sentence of life imprisonment awarded to the appellant deserves to
be modified and reduced to an imprisonment for the period for
which he has already remained in custody.
21. Accordingly, the appeal is allowed in part by upholding the
conviction of the appellant for the offence under Sections 498-A,
304-B of IPC and Section 4 of Dowry Prohibition Act, but the
sentence of imprisonment for life for the offence under Section
304-B of IPC is reduced to the period already undergone by the
appellant in custody. For the offence under Section 498-A IPC the
appellant has been sentenced to 3 years’ imprisonment and a fine
of Rs.10,000/-, and in case of failure to pay fine, imprisonment for
an additional period of three months. As the appellant has already
undergone more than 3 years and 3 months period in custody, it
would not be proper to recover Rs.10,000/- fine from the appellant.
Therefore, it is ordered that the appellant will not pay any amount
as fine.
22. As the appeal itself has been decided, the bail application has
become infructuous and it is disposed of accordingly.
23. The appellant shall be released from custody forthwith, upon
his executing a personal bond under the provision of Section 437-A
Cr.P.C., containing an undertaking to appear before the Hon'ble
Supreme Court in case any appeal is filed against this order and
the Hon'ble Supreme Court issues notice of the appeal. The bond
shall remain in force for a period of six months.

May 22, 2026
RBS/-
(Subhash Vidyarthi,J.) (Rajesh Singh Chauhan,J.)
Digitally signed by :-
RAM BIR SINGH
High Court of Judicature at Allahabad,
Lucknow Bench