Pradeep Kumar vs State Of U.P.
2021 Latest Caselaw 2272 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 49
 
Case :- CRIMINAL APPEAL No. - 2324 of 2014
 
Appellant :- Pradeep Kumar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- D.K. Singh,A.K. Rai,Hemendra Pratap Singh,Jitendra Pal Singh,Nisheeth Yadav,Pankaj Kumar Shukla,Rupesh Sharma,Sudhir Dixit,Urvashi Jain
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

1. This appeal has been preferred against the Judgment and order dated 29.5.2014 passed by learned Additional Sessions Judge, Court No. 4, Aligarh in Sessions Trial No. 892 of 2011, State Vs. Pradeep Kumar and another, arising out of Case Crime No.8 of 2011 under Sections 498A, 304B I.P.C. and ¾ Dowry Prohibition Act, Police Station Harduaganj, District Aligarh.

2. Facts in short as culled out from the prosecution story are that on 16.1.2011 first informant moved a written report at Police Station Harduaganj, District Aligarh alleging that on 25th February 2008 he solemnized the marriage of his sister Rashmi with Pradeep Kumar giving 10 tola gold ornaments, T.V., fridge, washing machine, bed, almirah, sofa, etc. and 4 lakh rupees in cash as dowry. But, father of accused-appellant, namely, Rishi Pal was not happy with the dowry given and used to harass his sister and demand motor cycle. When his sister asked the first informant to give motor cycle otherwise they will kill her, the first informant said that he will give motor cycle on which they told him as to why less money was given while deal was of Rs.6 lakhs. It is further alleged that they send his sister many times to informant's home and she lived with him for many months. Sister of the first informant told that her sister-in-law Neetu. Sushama, father-in-law Rishipal and husband Pradeep colluding themselves used to commit mar peet with her. On 6.1.2011 first informant came to know that her sister was killed by her in-laws pouring kerosene oil and setting her ablaze. On information, when first informant and some persons of village reached village Samastpur, his sister was not there. They came to know that she was admitted in Aligarh Medical College. Reaching there, they found that his sister was struggling hard in between life and death. First informant took her out from Medical College and got admitted in Jeevan Hospital. None of her in-laws came at neither Medical College nor Jeevan Hospital to see her. He asked his sister as to how she suffered who told him that brother as told by her already for giving them motor cycle if he wanted to keep her alive, on account of not giving motor cycle, at about 5.00 p.m. her sister-in-law Sushama and Neetu caught her hold and father-in-law exhorted what was being looked at on which her husband Pradeep poured kerosene oil from cane; stroke the matchstick and threw it upon her; her clothes caught fire; when she raised alarm, neighbours converged the place and extinguished the fire but her in-laws were only seeing her and waiting for her death and they along with some villagers dropped her at Medical College and rushed away. It is further alleged that during treatment, on 14.1.2011 at about 9.15, she died. On 15.1.2011, post mortem of her person was conducted and after performing her last rites, he had gone to police station for getting report lodged.

3. With regard to the aforesaid incident which occurred on 6.1.2011 at about 21.15, the police registered Case Crime No. 8 of 2011 under Sections 498A, 304B I.P.C. and Section ¾ Dowry Prohibition Act on 16.1.2011 at 17.30. Police started investigation and after investigation, charge sheet was submitted in the court.

4. Trial Court on 23.8.2012 framed charges under Sections 498A, 304B, 302/34 I.P.C. and Section ¾ of the Dowry Prohibition Act. The accused pleaded not guilty and claimed to be tried.

5. In order to bring home the charges, prosecution examined as many as eleven witnesses, namely, P.W. 1 Satish Kumar (first informant); P.W. 2 Viresh Kumar (brother of deceased); P.W.3 Chandravir (brother of deceased); P.W. 4 Manoj Kumari (bhabhi of the deceased); P.W. 5 Mamta Devi (bhabhi of the deceased); P.W. 6 Smt. Kusuma Devi (mother of the deceased) and as formal witnesses P.W.7 Shyam Mohan Pathak, Retired Additional City Magistrate-I; P.W.8 Dr. Amit Agrawal; P.W. 9 Head Constable Pradeep Kumar; P.W. 10 Dr. Sudhir Kumar Verma and P.W. 11 Virendra Singh, Investigating Officer ( retired Police Superintendent).

6. In support of ocular version, documents, namely, chik F.I.R. (Ext. Ka-20); G.D. Entry (Ext. Ka-21); site plan of the place of occurrence (Ext. Ka-23); letter written to R.I. (Ext. Ka-3); letter to C.M.O. (Ext. Ka-4); photo nash (Ext. Ka-5), Police Form No. 13 (Ext. Ka-6); panchayatnama of deceased Rashmi (Ext. Ka-7); post mortem report (Ext. Ka-12); document relating to treatment of deceased at Jeevan Hospital (Ext. Ka-9) with (Ext. Ka-19); charge sheet (Ext. Ka-24); statement of the deceased before death (Ext. Ka-2); case sheet (Ext. Ka-8) were filed by prosecution.

7. After hearing learned counsel for the prosecution as well as defence, learned Trial Judge convicted the appellant alone for commission of offence under Section 302 I.P.C. and sentenced him to life imprisonment with fine of Rs.10,000/- and in default of payment of fine, to undergo further six months additional imprisonment. The learned Judge acquitted the accused appellant of offences under Sections 498A, 304B I.P.C. and Section ¾ Dowry Prohibition Act in for lack of evidence. The learned Trial Judge acquitted all the other accused and held the present accused guilty of offence. Being aggrieved with his conviction and sentence, the accused-appellant is before this Court.

8. Heard Sharda Prasad Mishra, learned counsel for the appellant and Sri Ajit Rey, learned A.G.A. for the State.

9. Learned counsel for the appellant has made submissions that accused-appellant is the husband of the deceased. He is in jail for about 10 years. It is further submitted that no offence has been committed by the accused and the death of the deceased was due to septicemia.

10. In support of his submissions, learned counsel for the appellant has given a compilation of Judgments on which he places reliance titled Tholan Vs. State of Tamil Nadu, 1984 (2) SCC 133; Shaiknurjahan Vs. State of A.P., 2003 0 Supreme (AP) 959; State of Uttar Pradesh Vs. Gambhir Singh, 2005 (11) SCC 271; Vineet Kumar Chauhan Vs. State of U.P., 2007 (14) SCC 660; Gurmukh Singh Vs. State of Haryana, 2009 3 Crimes (SC) 416; Rijo Vs. State of Kerala, 2010 CrLJ 1315; Tukaram and others Vs. State of Maharashtra, (2011) 14 SCC 250; Veeran and others Vs. State of M.P., 2011 (3) Supreme 228; State of Rajasthan Vs. Mehram & others, Criminal Appeal No. 1894 of 2010 decided by Apex Court on May 6, 2020; and Stalin Vs. State represented by the Inspector of Police, Criminal Appeal No. 577 of 2020 decided by the Apex Court on September 9, 2020 and submitted that the accused could not have been convicted under Section 302 I.P.C. It is submitted that the the offence would be under Section 304 II or Section 304 I of I.P.C as per the decisions on which heavy reliance is being placed by the counsel for the appellant. It is further submitted that if the Court comes to the conclusion that the accused has committed offence, in that case as the accused has been in jail for more than 9 years without remission, he may be granted fixed term punishment of incarceration.

11. It has been vehemently objected by learned A.G.A. for the State. Learned counsel has taken us through the evidence on record and the manner in which the deceased was done to death bu all accused. Learned A.G.A. for the State has submitted that life imprisonment awarded to the accused in the facts and circumstances of the case was the only punishment which can be awarded to the accused who had poured keorsene oil and set the deceased ablaze in the matrimonial home. The injuries were such that the death was not because of the septicemia but was coupled with the fact that injury hasd taken place due to setting the deceased at fire. Learned A.G.A. has relied on the decisions in (i) Sudershan Kumar Vs. State of Delhi, reported in AIR 1974 SC 2328, (ii) State of Haryana Vs. Pala and others, (1996) 8 SCC 51, (iii) Veerla Satyanarayana Vs. State of Andhra Pradesh, (2009) 16 SCC 316, (iv) Munnawar and others Vs. State of Uttar Pradesh and others, (2010) 5 SCC 451 and (v) Vidya Sagar Dwivedi Vs. State of U.P., MANU/UP/0502/2020. Learned counsel for the State has heavily relied on the decision of this Court in the case of Ashiq Ali and another Vs. State of U.P., Criminal Appeal No.4702 of 2012 decided on 10.2.2021 and submitted that dying declaration cannot be brushed aside. Further he heavily relied on decision of this Court in the case of Manish Jain Vs. State of U.P., Criminal Appeal No. 3347 of 2015 decided on 29.1.2021 and submitted that just because death occurred due to septicemia, the accused cannot be dealt with leniently. We place reliance on the decision titled Maniben Vs. State of Gujarat, AIR 2010 SC 1261, decision of Gujarat High Court in Criminal Appeal No. 954 of 2007 (Gulam Hussain Zalil Ahmed Shaikh Vs. State of Gujarat) decided on 5.8.2013 and in Criminal Appeal No. 806 of 2011 (Chhaganbhai Limjibhai Palas Vs. State of Gujarat) decided on 20.11.2013 and the decision of Lucknow Bench of this High Court in Criminal Appeal No.318 of 2015 (Pramod Kumar Vs. State of U.P.) decided on 28.2.2019 so as to see whether the case would fall under what provision of law.

12. We place reliance on the decision titled Maniben Vs. State of Gujarat, AIR 2010 SC 1261, decision of Gujarat High Court in Criminal Appeal No. 954 of 2007 (Gulam Hussain Zalil Ahmed Shaikh Vs. State of Gujarat) decided on 5.8.2013 and in Criminal Appeal No. 806 of 2011 (Chhaganbhai Limjibhai Palas Vs. State of Gujarat) decided on 20.11.2013 and the decision of Lucknow Bench of this High Court in Criminal Appeal No.318 of 2015 (Pramod Kumar Vs. State of U.P.) decided on 28.2.2019 so as to see whether the case would fall under what provision of law.

13. The incident occurred on 6.1.2011 and deceased died on 14.1.2011 due to septicemia. The evidence of Dr. Amit Agrawal and Dr. Sudhir Kumar Verma, who have been examined as P.Ws 8 and 10 and the post mortem and medical report go to show that death occurred due to septicemia as a result of thermal burns. The medical report shows that there was superficial to deep burn all over the body except part of face and skull, part of lower abodmen, part of left feet, part of right hand, sluff material present at places, there was 90 per cent burns injuries.

14. The evidence of Dr. Amit Agrawal and Dr. Sudhir Kumar Verma will have to be discussed at length the reason being the learned counsel for the appellant has contended that the deceased was not in proper state of mind to give her dying declaration. Dr. Amit Agrawal (P.W. 8) had treated the patient. He had called the Magistrate. He had examined the patient who is in proper state of mind. Even after examining the patient and after the dying declaration was recorded, he had examined her action and thereafter gave certificte. He was treating doctor. He has withstood the cross-examination that he has given the certificate that patient was in stable mind. Dr. Sudhir Kumar Verma (P.W.10) is also doctor who had thereafter done the post mortem. He was 25 years of age. He had recorded injuries which were there. According to him, the death was due to thermal burn injuries which had caused infection in the entire body and patient died due to septicemia.

15. From the aforesaid fact, it is proved fact that deceased died out of septicemia. The learned judge below punished appellant-accused under Section 302 I.P.C.

16. The decision in Manish Jain (supra) though in different facts would enure benefit to the accused as, in our case, we find that accused had set ablaze his wife but, at the same time, from the evidence on record, it is seen that most of the witnesses have not supported the case of the prosecution. Evidence of P.W. 1 clinches the issue that the in-laws had taken the deceased to the hospital but thereafter they had rushed away. The deceased has deposed that it was her husband who had set her ablaze. The dying declaration has to coupled with the other evidence as evidence on record of P.W. 1, P.W. 2 and P.W. 3 before turning hostile goes to show that his sister was in hospital and was trying to struggle for life.

17. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

18. The academic 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 Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the 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 is the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to

cause 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;

KNOWLEDGE

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

19. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC.

20. In view of the aforementioned discussion, we are of the view that this appeal has to be partly allowed, hence, is partly allowed.

21. The conviction of the appellant under Section 302 of Indian Penal Code is converted to conviction under Section 304 (Part I) of Indian Penal Code and the appellant is sentenced to undergo 10 years of incarceration with fine which is reduced to Rs.1,000/-. Default sentence is reduced to three months.

22. Appellant-accused is in jail. If ten years of incarceration is over, he shall be released forthwith, if not required in any other case. He would be entitled to all kind of remissions. The judgement and order dated 29.5.2014 shall stand modified accordingly.

23. Let a copy of this judgment along with the trial court record be sent to the Court and Jail Authorities concerned for compliance.

Order Date :- 12.2.2021

Ram Murti