Pramod Kumar vs State Of U.P.
2019 Latest Caselaw 285 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R
 
Reserved
 
Court No. - 10
 
Case :- CRIMINAL AP.PEAL No. - 318 of 2015
 
Appellant :- Pramod Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Nirankar Nath Jaiswal,Atul Verma,M.V.S. Chauhan,Sharad Dixit
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Anil Kumar,J.

Hon'ble Mohd. Faiz Alam Khan,J.

(Delivered by Hon'ble Mohd. Faiz Alam Khan, J.)

Heard Sri Sharad Dixit, counsel for appellant, Sri Chandra Shekhar Pandey, learned A.G.A. and perused the record.

1. Present appeal has been filed by the appellant Pramod Kumar against the judgment and order dated 17.01.2015 passed by Additional District & Sessions Judge, Room No. 3, Lucknow in S.T No. 149/2010(State Vs. Pramod Kumar Rawat) arising out of Case Crime No. 334/2009, under Section 498-A, 304-B, 323, 326, 302 I.P.C. & 3/4 Dowry Prohibition Act, P.S. Krishna Nagar, District Lucknow thereby convicting the appellant under Section 302 I.P.C. and sentenced him for imprisonment of life & Rs. 50000/- fine, U/S - 498-A, I.P.C. for rigorous imprisonment of one year & Rs. 1000/- fine, U/S - 323 I.P.C. for simple imprisonment of six months and U/S - 326 I.P.C. for 10 years rigorous imprisonment and fine of Rs. 15,000/- and in default of fine, further one year, three months & six months additional imprisonment U/S - 302, 498-A & 326 I.P.C. respectively.

2. As per prosecution case, an F.I.R. was lodged on 18.08.2009 by one Sri Ram Naresh, S/o Babulal Village Jabrauli PS Mohanlalganj, Lucknow stating that his sister/Kiran who has married, 7 years ago, with Pramod Kumar R/o Hasanpur (Gutaoakku), PS Alambag, Lucknow has been subjected to cruelty in lieu of demand of dowry and for the said purpose she had been beaten by her husband/Pramod Kumar, Mother-in-law/Vidya Devi, brother-in-law (devar)/Pravin as well as maternal father-in-law and maternal mother-in-law.

3. It is also mentioned in the F.I.R. that on 18.08.2009, his brother-in-law (Promod Kumar) informed him on mobile phone that his sister, namely Kiran has sustained burn injuries and she has been hospitalized. On hearing the said news, the complainant along with his family members went to the matrimonial house of his sister and found burnt small pieces of Sari, undergarments(petikot), which were lying on the top of the roof and staircase. From the said facts, it appears that her sister has been burnt by the accused and his family members. Thereafter he along with his family members went to Trauma Centre, KGMC, Lucknow where his sister has told him that her husband and other family members had poured kerosene oil on her and thereafter put her on fire with the intention to kill her.

On the basis of this Tehrir an F.I.R., at Case Crime No. 334/2009 under Section 498-A, 323, 326, & 3/4 Dowry Prohibition Act, P.S. Krishna Nagar, District Lucknow was registered against Pramod Kumar and others.

4. The investigation was handed over at first to S.I., Indrajit Rai, thereafter to S.I. Sanjiv Kumar. On 19.08.2009, the statement of the victim was recorded by the City Magistrate-III, Shri Chandra Shekhar (Ex. C-1). However during the course of treatment, the deceased died on 29.08.2009. After preparation of the Inquest Reprot, the postmortem of the deceased was performed on 29.08.2009, under the guidance of Dr. Ram Kishore Gupta (PW10). Superficial deep burn injuries were found on the left hand, on the internal side of the right thigh, left thigh and on left buttock of the deceased. Dry substance and pus was also found present on injuries and on opening pus was found in lungs, lever, spleen and kidneys. The age of the deceased was noticed approx. 24 years. Rigor mortis was found present on the upper body. The approximate time of death was stated to be 10-12 hours before and cause of death was due to occurrence of septicemia on account of ante-mortem burn injuries.

In view of above, on the application of the informant, dated 30.8.2009, the case was converted under Section 304-B I.P.C. and the investigation was entrusted to Sri Ashok Kumar Verma, Dy. Superintendent of Police (Third Investigating Officer) who after the investigation filed the chargesheet .

5. During trial the trial court framed charges under section 498-A, 304-B, 323, 326, 302 I.P.C. & 3/4 Dowry Prohibition Act, against accused-appellant and in addition an alternate charge under Section 302 I.P.C. was also framed.

6. Prosecution in order to prove its case produced P.W. 1 -Ram Naresh (complainant/brother of the deceased), P.W. 2-Ram Vilash(brother of the deceased), P.W. 3-Babulal(father of the deceased), P.W. 4- Smt. Kalawati (mother of the deceased), P.W. 5-Constable Mohd. Akram (Who recorded the F.I.R. and also prepared the Chik F.I.R.), P.W. 6-Sri Chandra Shekahr, (in presence of whom inquest report has been prepared), P.W. 7-S.I. Indrajit Rai, (First Investigating Officer), P.W. 8-Sri Ashok Kumar Verma, Dy. Superintendent of Police, P.W. 9-S.I. Sanjiv Kumar Yadav, (Second Investigating Officer), P.W. 10-Dr. Ram Kumar Gupta (who has done the postmortem). Sri Chandra Shekhar who has been earlier produced by the prosecution as P.W. - 6 was also testified as court witness (C.W.-1).

7. In addition to the oral evidence Prosecution has also filed documentary evidences from Ex. Ka 1 to Ex. Ka 15 and Ex. C1 (Dying declaration of deceased Kiran).

8. The appellant-accused and other acuused persons denied their guilt in their statements recorded under Section 313 Cr. P.C. and in their defence had produced two witnesses i.e. D.W.-1/Manoj Kumar and D.W.-2/Chandrika Prasad.

9. Trial court by means of judgment and order dated 17.01.2015, after appreciating oral and documentary evidence produced before it, came to the conclusion that the prosecution has failed to prove charges against co accused persons namely Smt. Vidya Devi, Pravin Kumar, Lalli, and Pappu. However, the charges against accused-appellant were found proved beyond reasonable doubt and the appellant-accused/Pramod Kumar was convicted in S.T No. 149/2010, State Vs. Pramod Kumar Rawat, under Section 498-A, 323, 326 and 302 I.P.C. and was sentenced as referred to hereinabove. Aggrieved by the same the appellant has preferred this appeal .

10. Sri Sharad Dixit, learned counsel for appellant-accused at the very outset submits that he does not want to argue the matter with regard to the conviction of the appellant but in the present case from the statement given by the prosecution witnesses, it is born out that there is no intention on the part of appellant-accused to kill his wife. He further submits that on the fateful day i.e. on 17.08.2009, when the incident took place he has come to his house in a drunken stage and without there being any intention on his part, he in the heat of passion poured the kerosene oil on the body of his wife and set her ablaze. In support of his argument he placed reliance on the Dying declaration recorded by the Magistrate on 19.08.2009. It is submitted by learned counsel for appellant that in view of the said facts, the case of the appellant-accused does not in any manner come within the ambit of Section 302 I.P.C. rather it falls within Part II of Section 304 I.P.C.

It is further argued by learned counsel for appellant-accused that there is no intention on the part of appellant-accused to kill his wife (deceased/Kiran) which is evident from the fact that he himself has given information of the incident on telephone to his brother-in-law/P.W.-2 who lodged the F.I.R. and he himself took the deceased to the hospital and till her death i.e. 29.08.2009 he remained with her in the hospital and this clearly establishes that there was no intention on his part to kill the deceased, but the incident occurred in the spur of moment without any predetermination.

Learned counsel for appellant-accused further submits that in the present case, deceased/Kiran had died in the hospital, due to cardio respiratory arrest. In support of his argument he places reliance on the death certificate issued by the SIPS Hospital, Lucknow (Exht. Ka - 14) wherein the deceased is stated to have been admitted on 18.08.2009 at 00.08 P.M. as a case of 25% deep thermal burn and also on the postmortem report where it is mentioned that the cause of death of the deceased is due to septicemia as a result of ante mortem burn injuries and he further submits that entire medical expenses of the deceased was born by appellant-accused/Pramod Kumar.

In support of his argument he also placed reliance on the case of Ganga Dass alias Godha Vs. State of Haryana, 1994 SCC (Cri) 592, and para Nos. 6, 12, 18 & 21 of the case of Maniben Vs. State of Gujarat , 2009 (3) SCC (Cri) 952, decided by Hon'ble the Apex Court and also on the judgment of Division Bench of this Court passed in Smt. Rama Devi Vs. Stae of U.p. and others, 2018 (1) JCT 649 All. Lucknow Bench.

11. Sri Chandrashekhar Pandey, learned A.G.A., in rebuttal, submits that the evidence available on record shows that there was off and on quarrel between the appellant and the deceased/Kiran and on the date of incident the appellant came in a drunken stage and under the influence of liquor poured the Kerosene Oil on the deceased/Kerosene and set her ablaze, so the act has been done by him with the intention of murder and he was aware of the consequences of the same, as such his case is not covered within the exception of Section 4 of Section 300 I.P.C., so in no manner the life sentence which has been awarded to the appellant-accused be converted in Part II of Section 304 I.P.C. In support of his argument he placed reliance on the judgment of the Apex Court in the case of Veerla Satyanarayan Vs. State of Andhra Padesh, 2009 (16) SCC 316.

Learned A.G.A further submits that so far as the argument raised by learned counsel for appellant-accused that the decased has died due to Cardiac Arrest/septicaemia is concerned , the same cannot be a ground for converting his case from Section 302 to Part II of Section 304 I.P.C. in view of the judgment of Hon'ble Apex Court in the case of Veerla Satyanarayan (Supra) because in the said matter, the deceased was also subjected to burn injury and died due to septicaemia and the Hon'ble Court held that septicaemia is the case of burn.

Learned A.G.A. further submits that there was intention on the part of appellant-accused to inflict burn injury to the deceased, which is evident from the Dying declaration of the deceased, recorded by the Executive Magistrate on 19.08.2009, from which it is clearly established that the appellant-accused had poured the kerosene oil and put the deceased/Kiran to fire.

12. Sri Sharad Dixit, learned counsel for appellant-accused, in rebuttal, submits that as per the facts and circumstances of the present case, the appellant-accused 's case falls within the parameter of Section 304 Part-II I.P.C. and not under Section 302 I.P.C and in support of his argument he placed reliance on paragraph Nos. 14, 18, 19 of the judgment of Hon'ble Apex Court in the case of Devendra nath Srivastava VS. State of Uttar Pradesh, 2017 (5) SCC 769 which reads as under:-

"18. On re-appreciation of entire evidence and having considered the submissions of learned counsel for the parties, we agree with the view taken by the High Court that it is clearly established from the evidence on record that the appellant caused homicidal death of his wife, after quarrel between the two. It is established on the record that the appellant was a drunkard. The First Information Report was lodged by none other than the appellant's own nephew, immediately after the incident. There is no version put forward by the appellant as to how his wife died homicidal death in his house. Considering the facts and circumstances of the case, it appears that the appellant acted in a fit of anger. It is nobody's case that the appellant had any concubine. Rather statement of PW-5 Preeti Srivastava shows that suit for restitution of conjugal rights, filed by the appellant, was decided in terms of compromise, and they started living together with their children.

19. As to whether the act on the part of the appellant constitutes the offence punishable under Section 302 IPC or Section 304 Part I IPC, we are of the view that the incident has occurred after quarrel between the appellant and the deceased which is not a planned act. It is also established that the appellant was a drunkard. In our opinion, in the facts and circumstances of the case, the view taken by the High Court, that the appellant has committed offence punishable under Section 304 Part I IPC, requires no interference."

13. Though the learned counsel for the accused-appellant has fairly stated that he does not argue about the finding of the trial court with regard to the act of the accused-appellant of putting her wife on fire and he will confine his arguments only to the proposition that the act which has been found proved against the accused-appellant do not attract the provision of Section 302 I.P.C., rather in view of the proved facts and circumtances before the court below only Section 304 part II IPC is attracted. Since we are dealing with a criminal case involving a sentence of life imprisonment, we think it better to satisfy our judicial conscience with regard to the sufficiency of evidence, available on record, which has achieved the requisite standards of evidence termed in legal glossary as the ''proof beyond reasonable doubt' and also the approach of the subordinate court in appreciation of evidence in convicting the accused-appellant.

It is an admitted case that on the fateful night none of the prosecution witnesses was present at the scene of the crime. Even if the version of the prosecution is believed in totality, the FIR has been lodged by the brother of the deceased, namely, Ram Naresh, who himself has narrated in the First Information Report that he met with her sister in the Hospital. It is also the version of the prosecution that information of the incident was given to the brother of the deceased by the accused-appellant himself and on getting this information, they reached the Hospital in the next morning. So at the relevant time when the incident occurred only the accused-appellant, deceased and the family members of the accused-appellant might be present there. The trial court while appreciating the evidence available on record has relied on the Dying Declaration of the deceased recorded by the Executive Magistrate P.W.6/C.W.1 Chandra Shekhar and finding the same as truthful and reliable convicted the accused-appellant under Section 302 IPC. However, the allegation of demand of dowry and cruel treatment in lieu of the said demand has been disbelieved by the trial court. So the only evidence which has found favour with the trial court in convicting the accused-appellant was the Dying Declaration of the deceased, recorded by the Executive Magistrate.

For convenience the Dying Declaration of the deceased Kiran is reproduced in verbtum as under;

Þfnukad 17-08-2009 dks jkr 9 cts esjs ifr ''kjkc ihdj ?kj vk;s vkSj eq>ls ekjihV dhA esjs ifr jkst ''kjkc ihdj vkrs gSa rFkk esjs lkFk ekjihV djrs jgrs gSaA ?kj ls ckgj fudky nsus dh /kedh nsrs gSaa fnukad 17-08-2009 dks jkr 9-00 cts tc os ?kj vk;s rks ''kjkc fi;s gq, FksA mUgksaus eq>s ekjk ihVk rFkk ?kj esa ihis esa j[ks feV~Vh ds rsy dks esjs mij Mkydj ekfpl ls vkx yxk nhA esjs fpYykus ij iM+ksl ds yksxksa us eq>s cpk;k vkSj eq>s ,d nwljs gkfLiVy vjksM+k Dyhfud ij ys x;sA ogkWa ls eq>s ;gkWa Hkstk x;kAß

In the dying declaration the deceased has categorically stated that on 17.8.2009 at 9.00 P.M. in the night her husband (appellant) came home under the influence of liquor and started beating her. This was his routine course as he used to assault her regularly and also threatened her to evict from his house. It has further been stated in the dying declaration that on the fateful night when he came under the influence of liquor, he started beating her and poured kerosene oil which was lying nearby and put her on fire by lighting a match-stick. On the hue and cry made by her, her neighbours came there and save her. She was thereafter admitted in the hospital. The Investigating Officer, who visited the scene of crime, apart from other material found match box, burnt stick and burnt pieces of clothes of the deceased, which were smelling of kerosene oil. The clothes sent for Forensic examination has also confirmed that kerosene oil was found in these clothes.

14. There is no doubt in the proposition that the dying declaration if it is reliable and truthful in the facts and circumstances of the case, could form the sole basis for conviction as has been held by the Hon'ble Apex Court in Banarsi Dass and others Vs. State of Haryana (2014) 15 SCC 485 . It was held in para 17 of this report that :-

" A bare analysis of the provision, for the purpose of the case at hand, would show that a statement by a person made before his death to be relevant, the following ingredients are to be satisfied:

(i) The statement is made by a person who is conscious and believes or apprehends that death is imminent.

(ii) The statement must pertain to what the person believes to be the cause or circumstances of death.

(iii) What is recorded must be the statement made by the person concerned, since it is an exception to the rule of hearsay evidence.

(iv) The statement must be confidence bearing, truthful and credible as held by this Court in Laxman v. Stae Of Maharashtra, (2002) 6 SCC 710 and followed in Mallella Shayam Sunder v. State of A.P., (2015) 2 SCC 486.

(v) The statement should not be one made on tutoring or prompting.

(vi) The court may also scan the statement to see whether the same is prompted by any motive of vengeance."

It was further held in Najam Faraghi v. State Of West Bengal, (1998) 2 SCC 45 that merely because a person died long after making the dying declaration, the statement does not become irrelevant.

19. In Mukesh v. State (NCT Of Delhi) , (2017) 6 SCC 1 (three judges bench), Hon'ble the Apex Court after placing reliance upon Atbir v. State(NCT Of Delhi), (2010) 9 SCC 1, Paniben v. State of Gujrat (1992) 2 SCC 474 and Paneerselvam v. State of T.N., (2008) 17 SCC 190 has held in paras 176 and 177 as under:-

"176. The legal position regarding the admissibility of a dying declaration is settled by this Court in several judgments. This Court inAtbir v. State(NCT Of Delhi), taking into consideration the earlier judgment of this Court in Paniben v. State of Gujrat and another judgment of this Court inPaneerselvam v. State of T.N. , has exhaustively laid down the following guidelines with respect to the admissibility of dying declaration: (Atbir case, SCC pp. 8-9, para 22).

" 22. (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(vii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

177. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various other tests. In a case where there are more than one dying declaration, if some inconsistencies are noticed between one and the other, the court has to examine the nature of inconsistencies as to whether they are material or not. The court has to examine the contents of the dying declarations in the light of the various surrounding facts and circumstances."

15. Coming to the facts of the instant case it is proved by cogent and truthful evidence that Dying declaration was recorded by C.W. 1 Shri Chandra Shekhar on 19.08.2009, while the deceased was admitted in hospital. Dying declaration was recorded after obtaining the certificate of fitness from Doctor about her mental and physical fitness to give the evidence. There is no evidence that Dying declaration may be tutored. In the facts and cicumantances of the case the Dying declaration of the deceased was wholly reliable and voluntary. There was not an iota of evidence which could have raised any suspicion about the genuineness and truthfulness of the dying declaration recorded by Executive Magistrate after obtaining the necessary certificate from the doctor. This finds support from the fact that deceased was in a fit state of mind and succumbed to burn injuries only on 29.08.2009, hence there was no need for any corroboration and Learned trial court has rightly placed reliance and accepted the dying declaration as truthful and trustworthy. Therefore, we are satisfied that the conviction of the appellant/accused has been correctly recorded.

16. Now another limb of the argument of the Ld. Counsel for The Appellant is on the point of applicability of penal section to the proved facts and circumtances. Learned counsel for the appellants submits that it is a case wherein incident occurred on 18.08.2009 while the deceased had died on 29.08.2009 i.e. after ten days. Postmortem was conducted by P.W. 10 Dr. Ram kumar gupta , who opined that the death of the deceased has happened as a result of septicemia due to antimortem burn injuries. Learned counsel submits that as the death of the deceased had occurred after ten days of the incident and there was no intention of the appellant to cause culpable homicide, therefore, at the most it can be said that the appellant was possessing knowledge that pouring of kerosene oil and putting the deceased on fire is likely to cause death, which is a case, which is covered under Section 304 Part II IPC and his conviction under Section 302 IPC is bad.

17. In order to appreciate this argument of Ld. Counsel there is a need to refer to the law on the subject.

Hon'ble Supreme Court in Rampal Singh vs. State of U.P. reported in (2012) 8 SCC 289 in following paras discussed distinction between 302 and 304 I.P.C. as well as distinction in 304 Clause I and II as under:-

"10. ............... We are of the opinion that elucidative discussion on the legal principles governing the distinction between Sections 300, 302 of the Code on the one hand and Section 304, Part I and Part II of the Code on the other, would be necessary to precisely answer the questions raised.

11. Sections 299 and 300 of the Code deal with the definition of ''culpable homicide' and ''murder', respectively. In terms of Section 299, ''culpable homicide' is described as an act of causing death (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it, emphasises on the expression ''intention' while the latter upon ''knowledge'. Both these are positive mental attitudes, however, of different degrees. The mental element in ''culpable homicide', that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted-above, it would be ''culpable homicide'. Section 300, however, deals with ''murder' although there is no clear definition of ''murder' in Section 300 of the Code. As has been repeatedly held by this Court, ''culpable homicide' is the genus and ''murder' is its species and all ''murders' are ''culpable homicides' but all ''culpable homicides' are not ''murders'.

12. Another classification that emerges from this discussion is ''culpable homicide not amounting to murder', punishable under Section 304 of the Code. There is again a very fine line of distinction between the cases falling under Section 304, Part I and Part II, which we shall shortly discuss.

13. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976) 4 SCC 382, this Court while clarifying the distinction between these two terms and their consequences, held as under: -

In the scheme of the penal Code, ''culpable homicide' is genus and ''murder' its species. All ''murder' is ''culpable homicide' but not vice-versa. Speaking generally, ''culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called ''culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as ''murder'. The second may be termed as ''culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is ''culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."

14. Section 300 of the Code proceeds with reference to Section 299 of the Code. ''Culpable homicide' may or may not amount to ''murder', in terms of Section 300 of the Code. When a ''culpable homicide is murder', the punitive consequences shall follow in terms of Section 302 of the Code while in other cases, that is, where an offence is ''culpable homicide not amounting to murder', punishment would be dealt with under Section 304 of the Code. Various judgments of this Court have dealt with the cases which fall in various classes of firstly, secondly, thirdly and fourthly, respectively, stated under Section 300 of the Code. It would not be necessary for us to deal with that aspect of the case in any further detail. Of course, the principles that have been stated in various judgments like Abdul Waheed Khan @ Waheed and Others v. State of A.P. [(2002) 7 SCC 175], Virsa Singh v. State of Punjab [AIR 1958 SC 465] and Rajwant and Anr. v. State of Kerala [AIR 1966 SC 1874] are the broad guidelines and not cast-iron imperatives. These are the cases which would provide precepts for the courts to exercise their judicial discretion while considering the cases to determine as to which particular clause of Section 300 of the Code they fall in.

15. This Court has time and again deliberated upon the crucial question of distinction between Sections 299 and 300 of the Code, i.e., ''culpable homicide' and ''murder' respectively. In Phulia Tudu & Anr. v. State of Bihar (now Jharkhand) 2007 SC 3215], the Court noticed that confusion is caused if courts, losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of these sections.

16. The Court in Phulia Tudu (supra) provided the following comparative table to help in appreciating the points of discussion between these two offences :

"Section 299                                                                    Section 300                        
 

 
A person commits culpable homicide if the act by which the death is caused is done-
 
Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done-
 
					  
 
                                  				                 
 
					
 
		             INTENTION
 

 
(a) with the intention of causing death; or
 

 
(b) with the intention of causing such bodily injury as is likely to cause death; or
 

 
(1) with the intention of causing death; or
 

 
(2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or
 

 
(3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or
 

 
KNOWLEDGE
 

 
(c) with the knowledge that the act 
 
	is likely to cause death.
 
(4)  with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse or incurring the risk of causing death or such injury as is mentioned above." |
 

 

17. Section 300 of the Code states what kind of acts, when done with the intention of causing death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to ''murder'. It is also ''murder' when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to ''culpable homicide amounting to murder'. The explanations spell out the elements which need to be satisfied for application of such exceptions, like an act done in the heat of passion and without pre- mediation. Where the offender whilst being deprived of the power of self- control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, ''culpable homicide would not amount to murder'. This exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case.

18. This Court in the case of Vineet Kumar Chauhan v. State of U.P. (2007) 14 SCC 660 noticed that academic distinction between ''murder' and ''culpable homicide not amounting to murder' had vividly been brought out by this Court in State of A.P. v. Rayavarapu Punnayya [(1976) 4 SCC 382], where it was observed as under:

".....that the safest way of approach to the interpretation and application of Section 299 and 300 of the Code is to keep in focus the key words used in various clauses of the said sections. Minutely comparing each of the clauses of section 299 and 300 of the Code and the drawing support from the decisions of the court in Virsa Singh v. State of Punjab and Rajwant Singh v. State of Kerala, speaking for the court, Justice RS Sarkaria, neatly brought out the points of distinction between the two offences, which have been time and again reiterated. Having done so, the court said that wherever the Court is confronted with the question whether the offence is murder or culpable homicide not amounting to murder, on the facts of a case, it would be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be that the accused has done an act by doing which he has caused the death of another. Two, if such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to culpable homicide as defined in section 299. If the answer to this question is in the negative, the offence would be culpable homicide not amounting to murder, punishable under the First or Second part of Section 304, depending respectively, on whether this second or the third clause of Section 299 is applicable. If this question is found in the positive, but the cases come within any of the exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder, punishable under the first part of Section 304 of the Code. It was, however, clarified that these were only broad guidelines to facilitate the task of the court and not cast-iron imperative."

19. Having noticed the distinction between ''murder' and ''culpable homicide not amounting to murder', now we are required to explain the distinction between the application of Section 302 of the Code on the one hand and Section 304 of the Code on the other.

20. In Ajit Singh v. State of Punjab [(2011) 9 SCC 462], the Court held that in order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be extremely cautious in examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder. In other words, Section 300 states both, what is murder and what is not. First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five exceptions to Section 300. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that ''amounting to murder' as well as that ''not amounting to murder' in a composite manner in Section 300 of the Code.

21. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two Sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first clause of this section includes only those cases in which offence is really ''murder', but mitigated by the presence of circumstances recognized in the exceptions to section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in the case of Fatta v. Emperor, 1151. C. 476 (Refer : Penal Law of India by Dr. Hari Singh Gour, Volume 3, 2009 )

22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.

23. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straight-jacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused.

24. A Bench of this Court in the case of Mohinder Pal Jolly v. State of Punjab [1979 AIR SC 577], stating this distinction with some clarity, held as under :

"11. A question arises whether the appellant was guilty under Part I of Section 304 or Part II. If the accused commits an act while exceeding the right of private defence by which the death is caused either with the intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part I. On the other hand if before the application of any of the Exceptions of Section 300 it is found that he was guilty of murder within the meaning of clause "4thly", then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convicted only under Part II of Section 304 and not Part I."

25. As we have already discussed, classification of an offence into either Part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of pre-meditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished. This can also be decided from another point of view, i.e., by applying the ''principle of exclusion'. This principle could be applied while taking recourse to a two-stage process of determination. Firstly, the Court may record a preliminary finding if the accused had committed an offence punishable under the substantive provisions of Section 302 of the Code, that is, ''culpable homicide amounting to murder'. Then secondly, it may proceed to examine if the case fell in any of the exceptions detailed in Section 300 of the Code. This would doubly ensure that the conclusion arrived at by the court is correct on facts and sustainable in law. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused."

17. In Camilo Vaz vs. State of Goa, (2000) 9 SCC 1, referring to the ambit of Section 304 of the Code, Hon'ble Supreme Court in similar set of circumstances held thus:

"This section is in two parts. If analysed the section provides for two kinds of punishment to two different situations. (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredients is the "intention"; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in part II of Section 304 IPC as in the present case."

18. Hon'ble Apex Court in Bunnilal Chaudhary Vs. State of Bihar : (2006) 10 SCC 639, wherein it has been held that :

"11. That Section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts: the first part is a subjective one which indicates that the injury must be an intentional one and not an accidental one; the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death. We think that the first part is complied with, because the injury which was intended to be caused was the one which was found on the person of Shambhu Raut. But the second part, in our opinion, is not fulfilled because but for the fact that the injury caused had penetrated the lung, death might not have ensued. In other words, looking at the matter objectively, the injury, which Bunnilal Chaudhary intended to cause, did not include specifically the cutting of the left lungs but to wound Shambhu Raut in the neighbourhood of the nipple on left side of chest. Therefore, we are of the opinion that Clause (iii) of Section 300does not cover the case. Inasmuch as death has been caused, the matter must still come within at least culpable homicide not amounting to murder. There again, Section 299 is in three parts. The first part takes in the doing of an act with the intention of causing death. As we have shown above, Bunnilal chaudhary did not intend causing death and the first part of Section 299 does not apply. The second part deals with the intention of causing such bodily injury as is likely to cause death. Here again, the intention must be to cause the precise injury likely to cause death and that also, as we have shown above, was not the intention of Bunnilal Chaudhary. The matter, therefore, comes within the third part. The Act which was done was done with the knowledge that Bunnilal Chaudhary was likely by such act to cause the death of Shambhu Raut. The case falls within the third part of Section 299 and will be punishable under the second part of Section 304IPC as culpable homicide not amounting to murder.

12. We, accordingly, alter the conviction of Bunnilal Chaudhary from Section 302 to Section 304 Part-II, IPC and in lieu of the sentence of imprisonment for life imposed on him, we impose a sentence of rigorous imprisonment for five years and to pay a fine of Rs.1,000/- with default stipulation of two months simple imprisonment. Criminal Appeal No. 605/2005 preferred by Bunnilal Chaudhary (A-1) is partly allowed to the extent indicated above."

19. In Maniben Vs. State of Gujrat : (2009) 8 SCC 796, the Hon'ble Apex Court held that:

" There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under Clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC."

20. In Manjeet Singh Vs. State of Himachal Pradesh : (2014) 5 SCC 697, Hon'ble Apex Court in para 26 held as under :

"26. The question now requires to determine is as to what is the nature of offence that the accused has committed. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. Evidence on record also does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death. On the spur of the moment, during the heat of exchange of words accused caused injuries on the body of the deceased which caused his death. Therefore, the ingredients of the murder as defined in Section 300, Indian Penal Code, have not been established against the accused. In our opinion, the accused was guilty of culpable homicide not amounting to murder Under Section 304, Indian Penal Code, and considering the fact that the accused had no intention to either cause the death of the deceased or cause such bodily injury as is likely to cause death of the deceased, it would be sufficient to impose on accused a sentence of seven years rigorous imprisonment and to impose on him a fine of Rs. 5,000/- and in default of payment of fine, a further imprisonment of six months."

21. To understand what constitutes Culpable homicide and Murder it will be also useful to refer to Chacko @ Aniyan Kunju and Ors. Vs. State of Kerala 2004) 12 SCC 269, wherein it was held by the Hon'ble Supreme Court that:

"All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder is culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of the generic offence, IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the gravest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type 10. The academic of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. Distinction between "murder" and "culpable homicide not amounting to murder" has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences: 1. Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under Clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of Clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. 2. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under Clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In Clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding Clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death.

The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between Clause (b) of Section 299 and Clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in Clause (b) of Section 299 conveys the sense of probability as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature."

22. In another case of Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh (2006) 11 SCC 444, the Hon'ble Supreme Court enumerated some of the circumstances relevant to find out whether there was any intention to cause death on the part of the accused. The Court observed:

"...Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters - plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable Under Section 302, are not converted into offences punishable Under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable Under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention..."

Similarly in Ghapoo Yadav and Ors. v. State of M.P. (2003) 3 SCC 528 and Sukbhir Singh v. State of Haryana (2002) 3 SCC 327, it was observed that :

"...After the injuries were inflicted the injured has fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition.The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused Appellants had come prepared and armed for attacking the deceased...."

23. The distinction between Section 304 Part I and Part II has been drawn by the Hon'ble Supreme Court in Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648, in the following words:

".....For punishment Under Section 304 Part I, the prosecution must prove: the death of the person in question; that such death was caused by the act of the accused and that the accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question; that such death was caused by the act of the accused and that he knew that such act of his was likely to cause death..."

24. In Sandhya Jadhav v. State of Maharashtra reported in (2006) 4 SCC 653, the Hon'ble Supreme Court held that:

"9. The Fourth Exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case or prosecution not covered by the First Exception, after which its place would have been more appropriate.The Exception is founded upon the same principle, for in both there is absence of premeditation......... The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning.

A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed, to be sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage."

25. In Jagtar Singh vs State of Punjab (1983) 2 SCC 342 , the Apex Court has observed that:

"The question is whether in the circumstance in which the appellant gave a blow with a knife on the chest, he could be said to have intended to cause death or he could be imputed the intention to cause that particular injury which has proved fatal? The circumstances in which the incident occurred would clearly negative any suggestion of premeditation. It was in a sudden quarrel to some extent provoked by the deceased, that the appellant gave one blow with a knife. We cannot confidently say that the appellant intended to cause that particular injury which is shown to have caused death. There was no pre- meditation. There was no malice. The meeting was a chance meeting. The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow. He could not be imputed with the intention to cause death or the intention to cause that particular injury which has proved fatal. Neither para 1 nor para 3 of Section 300 would be attracted. We are fortified in this view by the decision of this Court in Jagrup Singh v. State of Haryana. It was subsequently followed in Randhir Singh @ Dhire v. State of Punjab and Kulwant Rai v. State of Punjab. Following the ratio of the aforementioned decisions, we are of the opinion that the appellant could not be convicted for having committed murder of the deceased Narinder Singh. His conviction for an offence under Section 302 IPC and sentence of imprisonment for life are liable to be set aside."

26. Honble Supreme Court in Arjun and others vs. State of Chandigarh reported in (2017) 3 Supreme Court Cases 247 ,while holding in para 23 that when there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC, quoted following two judgments Honble Supreme Court with authority in para 20 and 21 as under;

"20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of Chandigarh (1989) 2 SCC 217, it has been explained as under:-

"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."

21. Further in the case of Arumugam vs. State, Rrepresented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:- "9. ....... "18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage' as used in the provision means ''unfair advantage'."

27. Supreme Court of India in Kalu Ram vs State Of Rajasthan reported in AIR 2000 SC 3630, (2000) 10 SCC 324, in similar set of facts and circumantances held as under :,

"7. ................. It is an admitted case that appellant was in a highly inebriated stage when he approached the deceased when the demand for sparing her ornaments was made by him. When she refused to oblige he poured kerosene on her and wanted her to lit the match-stick. When she failed to do so he collected the match box and ignited one match-stick but when flames were up he suddenly and frantically poured water to save her from the tongues of flames. This conduct cannot be seen divorced from the totality of the circumstances. Very probably he would not have anticipated that the act done by him would have escalated to such a proportion that she might die. If he had ever intended her to die he would not have alerted his senses to bring water in an effort to rescue her. We are inclined to think that all what the accused thought of was to inflict burns to her and to frighten her but unfortunately the situation slipped out of his control and it went to the fatal extent. He would not have intended to inflict the injuries which she sustained on account of his act. Therefore, we are persuaded to bring down the offence from the first degree murder to culpable homicide not amounting to murder."

28. In case of Jharmal and Others Vs. State of Haryana : 1994 SCC (Crl.) 593, Hon'ble Apex Court held that where the deceased sustained injuries on the head due to blow with an iron pipe and died after 17 days due to septicimia, the appellant could have been convicted only under Section 304 Part II of the Indian Penal Code.

In Bengai Mandal alias Begai Mandal Vs. State of Bihar (2010) 2 SCC 91 incident occurred on 14.7.1996, while the deceased died on 10.8.1996 due to septicemia caused by burn injuries. The accused was convicted and sentenced for life imprisonment under section 302 IPC, which was confirmed in appeal by the High Court, but Hon'ble the Apex Court converted the case under section 304 Part II IPC on the ground that the death ensued after twenty six days of the incident as a result of septicemia and not as a consequence of burn injuries and accordingly sentenced for seven years' rigorous imprisonment.

In Maniben Vs. State of Gujrat (2009) 8 SCC 796, the incident took place on 29.11.1984. The deceased died on 7.12.1984. Cause of death was the burn injuries. The deceased was admitted in the hospital with about 60 per cent burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. Trial court convicted the accused under section 304 Part II IPC, but in appeal high court convicted the appellant under section 302 IPC. Hon'ble the Apex Court has held that during the aforesaid period of eight days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. Accordingly judgment and order convicting the accused under section 304 Part II IPC by the trial court was maintained and the judgment of the High Court was set aside.

In Chirra Shivraj Vs. State of Andhra Pradesh (2010) 14 SCC 444, incident took place on 21.4.1999. Deceased died on 1.8.1999. As per the prosecution version, kerosene oil was poured upon the deceased who succumbed to the injuries. Cause of death was septicemia. Accused was convicted under section 304 Part II IPC, which was confirmed by the High Court. Hon'ble the Apex Court dismissed the appeal holding that the deceased suffered from septicemia which was caused due to burn injuries and as a result thereof she expired on 1.8.1999.

29. In the aforesaid settled legal principles now we dwell upon the evidence available on record.

It is an admitted fact to the prosecution that at the time of the incident no prosecution witness was present on the spot and manner in which the incident occurred could only be stated by the deceased or accused/appellant. For this limited purpose if we peruse the evidence of the prosecution witnesses, P.W.1 Ram Naresh has stated to reach the house of his sister on information given to him by accused Pramod on telephone. He reached at K.G.M.C. Hospital and found her sister in severely burned condition, who told him that she had been burnt by accused-appellant, Vidhyawati, Praveen, Lalli and Pappu by pouring kerosene on her. He informed the in-laws of her sister regarding death of her sister on 30.08.2009. In his presence burn pieces of cloth, burn match sticks and one Pipiya of the capacity of 2-3 liters was sealed. A small quantity of kerosene (100-200 m.l.) was also found in the container. He further stated that his sister was admitted in K.G.M.C. Trauma Centre by his brother-in-law, Pramod. He does not know as to about what period she remained admitted in the hospital. He saw one injury on her neck. Only one (right) hand and both legs of the deceased was burnt in the incident. Apart from it there was no other injury of burn. No statement of her sister was recorded by doctor or magistrate before him. In cross examination he admitted that during treatment, Pramod remained in the hospital. He does not know as to who was managing the expenses for the medicines etc. He further admitted at page 14 of his cross-examination that he became suspicious that his sister might have been murdered by the accused persons when they did not attend the cremation on 29.08.2009.

The evidence of P.W.2- Ramvilas is also on the samilar line that accused-appellant informed them about the incident on phone in the morning of 18.08.2009 and also that deceased was admitted in K.G.M.C. Trauma Center. He then stated what has been said by P.W.1.that, death of deceased occurred about 10-11 days after the incident. In cross examination he stated that when he reached hospital his sister was speaking normally. At page 3 of his statement he stated that on 18,19 and 20.08.2009 his sister was talking normally. On 29.08.2009 he became suspicious that she had been murdered by accused persons. At page 4 of his statement he admitted that from 18.08.2009 till 26.08.2009 Kiran was perfectally all right and was constantally talking to her family members and there was nothing wrong with her. He on page 6 of his cross-examination further stated that accused-appellant remained in the hospital from 18.08.2009 till 29.08.2009.

P.W.3-Babulal (father of deceased) stated in his statement about the demand of dowry made by the accused-appellant and other co-accused persons. He stated that on 17.08.2008 in the night he received information of the incident from Pramod's house. Though, he did not go to the matrimonial home of her daughter along with other persons. He admitted at page 2 of his evidence that his daughter (deceased) remained admitted in the hospital for 8-10 days and "thik ho gayi thi", she became alright.

P.W.4- Kalawati(Mother of deceased) in her evidence has also stated that when she reached the hospital on the information provided by her son Ram Bilas, she found that in-laws of her daughter were not there. She further stated that within 6-7 days of treatment, she died and the dead body of the deceased was handed over by the hospital and last rites of the deceased was also done by them. She stated that in-laws of her daughter were informed about her last rites but they did not come to attend the same. She admitted in the first line of her cross- examination and she met with the mother of the accused-appellant in the hospital. However, in her cross examination , she also admitted that when no body from in-laws of her daughter came to attend her last rites, she became suspicious that perhaps her daughter has been murdered by her in-laws.In cross- examination at page no.6, she admitted that during the course of treatment her daughter started walking and doctor also advised them to take her back to home. She also admitted that it was her son-in-law Pramod (accused-appellant), who got the deceased admitted in hospital.

P.W.10- Dr. Ram Kumar Gupta, who conducted the postmortem on the body of deceased, has stated that there were superficial deep septic burn injuries on the left hand, left limb, right thigh and left thigh as well as on the left buttock of the deceased. He further stated that the injuries were covered by some dry substance and there was pus in the injuries. On opening of the body in the internal organs, namely, lung, lever,kidneys multiple pus was found. In his opinion the death of the deceased might have happened 10-12 hours before the post mortem and the Rigor Mortis was present in the upper part of the body, which was moving downwards. The body of the deceased was covered by hospital dressing and in his opinion the death of the deceased was caused due to the occurrence of septicemia caused due to anti-mortem burn injuries. Significantly the doctor in his statement did not mention as to whether the burn injuries sustained by the deceased were sufficient in the ordinary course of nature for causing her death, however, in his cross-examination, he admitted that there was no burn injury on the back neck and chest of the deceased and hair was also not burned. He further admits that there was no burn injury on the right hand of the deceased and the burn injury was on the right upper thigh, however, there was no burn injury on the lower side of right leg. He also admitted that bathing after sustaining burn injuries may be a cause of septic. He categorically stated in his cross examination that burn injuries received by the deceased were on the left hand, right thigh and on left buttock. He admitted that there were no dressing of the hospital on chest, neck, face or even on the right hand of the deceased. The doctor, however, in his cross-examination has opined that the deceased was 60% to 70% burnt.

30. After analyzing the evidence on record, it is evidently clear that there was no premeditation on the part of the appellant. There is no evidence that the appellant made any special preparation for assaulting the deceased with the intent to kill her. There is no dispute that the appellant in the heat of passion under the influence of liquor throw some amount of kerosene oil on deceased, which was already kept nearby in a container and put the deceased on fire ,resulting in burn injuries to the decesed . But keeping in view the fact that Appellant significantly did not pour the whole kerosene oil contained therein (as per the evidence of P.W.1 Rame Naresh at Page 4, the investigating officer while inspecting the scene of crime found about 200 ml. of leftover kerosene in the container) and himself immediately took the deceased to the hospital and made all arrangements for her proper treatment and also informed the family members of the deceased immediately after the occurrence and the fact that the deceased recieved only 25% burn injuries( as mentioned in the certificate of death of deceased issued by the SIPS hospital Lucknow) and deceased died after 11 days of the incident due to septicimia, when she was almost recovered and was about to be discharged and also the fact that appellant did not act in a cruel or unsual manner, did not take undue advantage, we are convinced that the intention of the appellant was not to kill the deceased, since the accused appellant could not be said to be possessing knowledge that pouring of kerosene oil in small quantity and putting the deceased on fire is likely to cause death of the deceased.From the aforesaid proved facts and circumantances on record , it cannot either be said that the appellant had the intention that such action on his part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased.

31. Applying the above settled principle of law which has been enumerated in the aforementioned cases, we are of the considered view that it is a fit case for modifying the sentence and the appellant ought to have been convicted under Section 304 Part II of the Indian Penal Code instead of Section 302 of the Indian Penal Code.

We accordingly, while maintaining the conviction of the appellant, alter the sentence of the appellant from Section 302 of the Indian Penal Code to Section 304 Part II of the Indian Penal Code and sentence him to undergo rigorous imprisonment for nine years and also to pay a fine as directed by the Trial Court. As the appellant is being sentenced for 9 years rigorous imprisonment for committing offence of 304 Part II, his sentence for committing offence under Section 326 IPC is also altered and for 326 IPC appellant is now sentenced to undergo rigorous imprisonment for 9 years and also to pay fine as directed by trial Court. However, his conviction and sentence under Sections 498-A and 323 of the Indian Penal Code will remain unaltered. All sentence will run concurrently as ordered by the trial Court and the period of detention under this case will be also adjusted in the sentence while computing the period of sentence. In case of non deposit of fine appellant will undergo simple imprisonment as directed by the trial Court. The appellant shall undergo the remaining period of sentence awarded to him by this Court and if he has already undergone the whole period of imprisonment as amended by this Court and is not liable to be further detained in any other case, he will immediately be set at liberty.

The appeal is partly allowed in the aforementioned terms and disposed of.

Let a copy of this judgment alongwith the lower court record be sent to the learned trial court forthwith by the office to ensure the compliance of this judgment. Learned trial court shall send the compliance report within eight weeks.

   ( Mohd. Faiz Alam Khan, J.)		           (Anil Kumar, J.)
 
Order Date: 28.2.2019
 
Muk/Praveen