Bhujveer And Another vs State Of U.P.
2021 Latest Caselaw 1710 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Court No. - 49
 

 
Case :- CRIMINAL APPEAL No. - 3310 of 2012
 
Appellant :- Bhujveer And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Yogesh Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate
 
&
 
Case :- CRIMINAL APPEAL DEFECTIVE No. - 8 of 2013
 
Appellant :- Gajendra Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Yogesh Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

(Per Hon'ble Dr. Kaushal Jayendra Thaker,J.)

1. Heard Sri Yogesh Kumar Srivastava, assisted by Sri Noor Mohammad, learned Advocates for the appellants and learned A.G.A. for the State.

2. Both these appeals challenge the judgment and order dated 26/27.7.2012 passed by Special Judge (D.A.A.) Etah in Sessions Trial No.311 of 2006 convicting and sentencing the appellants in both the appeals under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P. Code') for life imprisonment with fine of Rs.7,000/- and, in case of default of payment of fine, further to undergo imprisonment for six months.

3. Before we go to the facts, we with a burning heart wish to mention that the subsequent judge who convicted all the three accused by invoking Section 302 read with Section 34 of IPC and exonerating them under Sections 498A and Section 304 B can be said to have committed an irregularity as after all the witnesses had turned hostile and the statement of the accused were recorded under section 313 CrPC, the learned Judge, all of a sudden, without any application, either by State or by complainant, thought it fit that accused have committed what he considered to be murder and thereafter charged the accused under Section 302 read with Section 34 of I.P.C. and convicted the accused under the same offence.

4. Reference to a recent decision of the Apex Court in R. Rachaiah Vs. Home Secretary, 2016 0 Supreme (SC) 383 can be made. The learned judge ought to have followed Section 216 and 217 of Criminal Procedure Code 1973 which has not been done. The Apex Court in R.Rachaiah (supra) has considered that the trial to vitiate and has held that conviction under Section 302 I.P.C., would be illegal.

5. In our case, appellants were originally charged with Sections 498A, and 304 B and from 2006 to 2012, they were tried and they were made to understand that they are being tried for commission of offence under Sections 498A, and 304 B of I.P.C. Can change of Judge change the course of punishment? That has exactly what has happened and that has been submitted by the counsel for the appellant.

6. Accused are in jail for more than 14 years. The state of affairs in the state of UP is also alarming. The case was not so grave that the state could not have considered this case for remission under section 433 and 434 of Cr.P.C. after a period of incarceration of 14 years.

7. With this prelude and anguish, we start to threadbare discuss the matter.

8. At the outset, the learned counsel for the appellant conveyed to us that he does not wish to now go to the technicalities in the prosecution as his clients have undergone the agony of incarceration for more than 15 years. The incident occurred on 27.11.2005 and the accused are in jail since 19.12.2005.

9. If we look at any other angle, no case for Section 302, IPC is made out in view of the several authoritative pronouncements which go to show that death of deceased due to septicemia will not take us beyond Section 304 II.

10. Brief facts as culled out from the record are that the deceased was beaten and set ablaze by the appellants on 27.11.2005 at her matrimonial home and she died in the hospital on 3.12.2005 during treatment. A complaint to that effect was lodged which was registered as Case Crime No.0135 of 2005 against the accused-appellants. Dying Declaration of the deceased was recorded in the hospital on the very same day.

11. Investigation was moved into motion and after recording statements of various persons, the Investigating Officer submitted the charge-sheet against Gajendra Singh, Bhujveer Singh, Rajanshree, Bablu, Neeta, Ved Prakash and Suman to the competent court. Ved Prakash and Suman were juvenile hence they were committed to the Juvenile Justice Board.

12. The accused were facing charges which were exclusively triable by the Court of Sessions, hence, the case was committed to the Court of Sessions.

13. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined about 9 witnesses who are as follows:

Deposition of Tahsildar Singh

22.1.2007

7.6.2007

1.8.2007

PW1

Deposition of Shiv Dhara

15.12.2007

17.3.2008

PW2

Deposition of Dr. V.K. Dubey

21.4.2008

17.5.2008

PW3

Deposition of S.I. Shyam Babu

28/08/08

PW4

Deposition of Tehshildar Ravi Prakash Srivastava

28/08/08

PW5

Deposition of S.I. B.L. Yadav

24/09/08

PW6

Deposition of Jagveer Singh Tomer

18/10/08

PW7

Awadhesh Kumar Singh

18/10/08

20.11.2009

PW8

Virendra Singh Yadav

08/03/11

PW9

In support of ocular version following documents were filed:

Written Report

27/11/05

Ex.Ka.5

F.I.R.

27/11/05

Ex.Ka.1

Dying Declaration

27/11/05

Ex. Ka. 16

Postmortem Report

03/12/05

Ex. Ka. 4

Panchayatnama

03/12/05

Ex.Ka.8

Charge-sheet

27/11/05

Ex. Ka.13

14. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellants have preferred the present appeal.

15. Accused-Gajendra Singh is the husband of deceased, accused-Bhujveer is the elder brother of accused-Gajendra and accused-Rajanshree is the wife of accused-Bhujveer. All the three accused are in jail from the date they are arrested i.e. 19.12.2005 which means that they are in jail for more than 14 years till now without remission. They are alleged to have committed death of wife of Gajendra by setting her ablaze. The accident occurred on 27.11.2005.

16. It is a proved fact that the deceased died out of septicemia. The learned Judge below, very strangely, after recording of evidence, added new charge namely Section 302 read with Section 34 of I.P.C.

17. Learned counsel for the appellants has relied on the decisions in Maniben Vs. State of Gujarat, 2009 LawSuit (SC) 1380, Bengai Mandal @ Begai Mandal Vs. State of Bihar, 2010 (1) Supreme 49, Chirra Shivraj Vs. State of Andhra Pradesh, 2010 LawSuit (SC) 843, and the decisions of this High Court in Criminal Appeal No.1438 of 2010 (Smt. Rama Devi alias Ramakanti Vs. State of U.P.) decided on 7.10.2017, Criminal Appeal No.26 of 2007 (Banwari & Another Vs. State of U.P.) decided on 20.8.2015 and Criminal Appeal No.318 of 2015 (Pramod Kumar Vs. State of U.P.) decided on 28.2.2019 so as to contend that life could not be till the last breath and the conviction under Section 302 of I.P.C. is not made out. In alternative, it is submitted that at the most punishment can be under Section 304 II or Section 304 I of I.P.C. If the Court feels, as the accused have been in jail for more than 14 years without remission, they may be granted fixed term punishment of incarceration.

18. It has been vehemently objected by learned A.G.A. for the State. He has taken us through the evidence on record and the manner in which the appellants, husband and his relatives, set ablaze the deceased in the matrimonial home.

19. 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 appellants. 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."

20. 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.

21. 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.

22. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused had no intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention to do away with deceased, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind.

23. We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as under:

"12. In fact, in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280, the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.

13. However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. The same is also duly corroborated with the evidence of witnesses and the medical reports as well as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellants in pouring kerosene and setting him ablaze. We do find that the dying declaration is trust worthy.

14. However, we have also not lost sight of the fact that the deceased had died after a month of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns.

15. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly.

15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as under:

"18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 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.

19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.

20. 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."

16. In the present case, we have come to the irresistible conclusion that the role of the appellants is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 30 days in the hospital and that his condition worsened after around 5 days and ultimately died of septicemia. In fact he had sustained about 35% burns. In that view of the matter, we are of the opinion that the conviction of the appellants under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code and in view of the same appeal is partly allowed.

17. The conviction of the appellants - original accused under Section 302 of Indian Penal Code vide judgment and order dated 19.12.2007 arising from Sessions Case No. 149 of 2007 passed by the Additional Sessions Judge, Fast Track Court No. 6, Ahmedabad is converted to conviction under Section 304 (Part I) of Indian Penal Code. However, the conviction of the appellants - original accused under section 452 of Indian Penal Code is upheld. The appellants - original accused are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/- each in default rigorous imprisonment for six months under section 304 (Part I) of Indian Penal Code instead of life imprisonment and sentence in default of fine as awarded by the trial court under section 302 IPC. The sentence imposed in default of fine under section 452 IPC is also reduced to two months. Accordingly, the appellants are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/-, in default, rigorous imprisonment for six months for offence punishable under section 304(I) of Indian Penal Code and rigorous imprisonment for a period of five years and fine of Rs. 2,000/-, in default, rigorous imprisonment for two months for offence punishable under section 452 of Indian Penal Code. Both sentences shall run concurrently. The judgement and order dated 19.12.2007 is modified accordingly. The period of sentence already undergone shall be considered for remission of sentence qua appellants - original accused. R & P to be sent back to the trial court forthwith."

24. Even if we consider the facts and hold that it was not illegal but irregularity which has crept in, in no circumstances; the accused could have been convicted under Section 302 of I.P.C.

25. In view of the aforementioned discussion, we are of the view that both these appeals have to be partly allowed, hence, are partly allowed.

26. The conviction of the appellants under Section 302 read with Section 34 of I.P.C. of Indian Penal Code is converted to conviction under Section 304 (Part I) of Indian Penal Code and the appellants are sentenced to undergo 10 years of incarceration with fine which is reduced to Rs.1,000/- for each appellant-accused.

27. Appellants-accused are in jail for 14 years, if 10 years of incarceration is over, they shall be released forthwith, if not required in any other case. The judgement and order dated 26/27.7.2012 shall stand modified accordingly.

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

29. We are really pained and wish to draw the attention of the authorities concerned through Registrar General that where the accused are sentenced to life imprisonment, even if the appeals are pending in the High Court, the government should periodically exercise power under Section 432 & 433 of Cr.P.C. and the committee at each districts be apprised of these provisions.

30. We are really pained that accused are in jail for 20 years and the matters are not even placed before the Court. The Registry to ensure that all matters in which accused are in jail for longer period of incarceration and in which more than half of their tenure is over, those matters be listed periodically before the Court.

Order Date :- 29.1.2021

DKS