Sanjay Maurya vs State Of U.P.
2021 Latest Caselaw 1711 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 49
 

 
Case :- CRIMINAL APPEAL No. 3660 of 2013
 
Appellant :- Sanjay Maurya
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Satya Dheer Singh Jadaun
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

1. Heard Sri S.D. Singh Jadaun for the sole appellant and learned A.G.A. for the respondent.

2. This appeal challenges the judgment dated 3.8.2013 passed by Shri Krishan Pratap Singh, Additional Session Judge, Court No.1, Varanasi, in Sessions Trial No.717 of 2010, under Sections 498A/302/304B of IPC and ¾ D.P. Act, Police Station - Shivpur, District - Varanasi, convicting and sentencing the appellant under Section 302 IPC for life imprisonment and fine of Rs. 25,000/- failing in payment of fine two years additional rigorous imprisonment.

3. Before we begin to pen down the reasons, we are shocked that the charge was framed on 12.1.2011 which was for commission of offence under Section 304B/498A and also under Section ¾ of D.P. Act. This charge came to be framed against the accused on 12.1.2011. The charge was framed by one Sri D.K. Srivastava, learned Addl. District & Sessions Judge, Varanasi.

4. After his transfer, very strangely the new incumbent Sri Krishna Pratap Singh altered the charge and charged the accused for commission of offence under Section 302 I.P.C. Unfortunately, the wordings of the charge were the same. We would not have discussed this but the learned Judge reframed the charge after about evidence of 11 witnesses were recorded and evidence of Umesh Narain Pandey and Dr. Jayesh Mishra were to be recorded. The accused was also partly examined under Section 313 on 19.2.2013 but very strangely the learned Judge again examined him on 4.4.2013 and went on to examine 2 witnesses namely PW-13 and PW-14 and again put him to further statement under Section 313 Cr.P.C. and convicted the accused for 302 IPC acquitting him under other charges and imposed Rs. 25,000/- as a fine. The judgment, as such, will lost sanctity but as the accused is in Jail since long, we are constraint to pen down our judgment as the learned Counsel for the appellant has though made his submissions but has contended that 302 is not made out and looking to the period of incarceration does not call for full hearing of the matter.

5. Learned Counsel for the appellant has made three fold submissions; that perversity has crept in after the learned new Additional Sessions Judge was allotted the matter and after the learned Judge realised that the charge which was framed,no case was made out even from the dying declaration. He unilaterally without following the contours for alteration of charge framed the charge under Section 302 I.P.C. which has vitiated the entire proceedings and has heavily relied on the case of R. Rachaiah Vs. Home Secretary, Bangalore, 2016 0 Supreme (SC) 383. He has taken us through the judgment of this High Court in the case of Surendra Singh Vs. State of U.P., 2018 0 Supreme (All) 2467, so as to contend that the allegations made are not proved and the dying declaration, as such, was not supported by any other independent witness and has contended that the judgments on which reliance is placed by the learned Judge to hold that the dying declaration is acceptable would not apply in the facts of this case.

6. The learned Advocate further has submitted that if this Court is satisfied that the trial is not vitiated and that the dying declaration is believable, the deceased did not die on the same day. The evidence on the record goes to show that it was the husband, who out of sheer anger, had done the act and it was he, who had taken his wife to the hospital. These circumstances have been totally ignored by the learned Judge in his overzeal to convict the accused. It is submitted by the Counsel that in this case the learned Judge has given a decision but has failed to do justice and has contended that life sentence was not necessary or what was the punishment awardable. It is submitted that the learned Judge has only with an overseal to punish the accused altered the charge as from the evidence even on the dying declaration, it was clear that in no case under Sections 498-A/304B or ¾ D.P. Act, the accused can be convicted. We are, at this stage, not going into the genesis of alteration of the charges and/or whether alteration if proper or not and whether the dying declaration was vulnerable or not.

7. The fact that the accused in Jail for more than a decade and jail report shows that has has shown remorse for his act, we go by third alternative suggested by Sri Jadaun and we are convinced that from the post-mortem and from the evidence on the record, it was the case of he who took his wife to the hospital. Even in the statement of PW1, he has mentioned that it was the accused, who had informed them about untoward incident of his wife. This seems to have waived with the learned Additional Sessions Judge to punish the accused for untimely death of his wife which has occurred in a short span of their marriage.

8. This takes us to the issue of whether the offence would be punishable under Section 299 or Section 304 I.P.C.

9. Considering the evidence of these 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 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.

10. 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. 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.

11. We have not discussed the testimony of the witnesses, who have turned hostile but it is now well established that evidence of hostile witnesses if it brings out some facts, which are helpful to the prosecution, their evidence may be relied on likewise if to the certain extent if the Court feels that the evidence is not tainted only with a view to save the accused, the same can also be looked into with the circumscription by the Court. The factual data which emerges is that the learned Judge has lost sight of the fact that it was an accused, who had taken the deceased to the hospital. He has relied on the decisions cited before him and has distinguished the same but unfortunately the said decision applies in all contours here on all floor (Karuppasamy Vs. State, 2001 Cri.L.J. NOC 70 (Madras).

12. The prosecution examined about 11 witnesses and produced the following documents:

Sl.No.

DESCRIPTION

DATE

EXHIBIT

1.

F.I.R.

1.9.2010

Ex.Ka.8

2.

F.I.R.

1.9.2010

3.

Written Report

1.9.2010

Ex.Ka.1

4.

Dying Declaration

1.9.2010

Ex.Ka.15

5.

Recovery memo of burnt and Plain Earth

2.9.2010

Ex.Ka.4

6.

Recovery memo if Kerosene oil ''Dibba'

2.9.2010

Ex.Ka.5

7.

Recovery memo of burn Cloth

2.9.2010

Ex.Ka.6

8.

Recovery memo of burn Cloth

2.9.2010

Ex.Ka.7

9.

P.M. Report

2.9.2010

Ex.Ka.2

10.

''Panchayatnama'

2.9.2010

Ex.Ka.12

11.

Charge-Sheet ''Mool'

28.9.2010

Ex.Ka.3

13. The witnesses of fact have not supported the prosecution. The evidence of Doctor and dying-declaration being the sole reason for convicting the accused and the change of charge.

14. Sri Jadan has submitted that once the learned Judge after recording the evidence of some of the witnesses and when it was found out that charge under Section 304 Part-B could not be sustained. He of his own under Section 216 read with Section 217 of the Cr.P.C. framed new charge under Section 302 IPC and under which he has convicted the accused with his perverse eye of law.

15. He has further submitted that once the learned Judge held that Section 304-B was not attracted, he could not have punished the accused under Section 302 of I.P. Code. Learned Counsel has placed reliance on the judgment of Division Bench of this High Court in Surendra Singh Vs. State of U.P., 2018 0 Supreme (All) 2467, and has submitted that no fresh charge could have been framed and if it has to be framed, the proceedings be started which has not been done for which he has placed reliance in the case of R. Rachaiah Vs. Home Secretary, Bangalore, 2016 0 Supreme (SC) 383.

16. In the alternative, he has submitted that the accused is in Jail since 10 years. From the evidence, it is clear that even if the Court believes the dying declaration which is very doubtful, his client could not have been convicted under Section 302 of I.P.C. It was the accused, who has taken the deceased to the hospital and he has requested for lesser punishment looking to the young age of the accused.

17. As against this, learned Counsel for the State has contended that by declaration is proper as per Section 32 of the Evidence Act, 1872 and has been rightly relied upon the learned Judge.

18. Learned Counsel for the State has taken us to Section 216 of Cr.P.C. and has submitted that there is no illegality in re-charging the accused and it is further submitted that the way the accused has ablaze, his wife within one year of the marital life, the conviction was just and proper.

19. Even if we hold that there is no illegality in re-framing the charge, justice would demand us to see that reasoning of the learned Judge, which are perverse. The dying-declaration which has been made the basis of the punishment does not speak about any demand for dowry. The death of the deceased was caused on the spur of moment as the accused was alleged to have disliked the practice of the deceased in serving the parent of the accused also and it was he, as it appears from the evidence, who had taken the deceased to the hospital. He has no motive nor any intention of doing away with his wife.

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 I.P.C. is converted to conviction under Section 304-Part-II of IPC. We reduce the sentence to 7 years and the fine has been reduced to Rs. 5,000/- and, in default of payment of fine, 6 months additional rigorous imprisonment.

22. The appellant is in Jail for 10 years, if his period of incarceration as held above is over, he shall be released forthwith, if not required in any other case. The judgment and order impugned shall stand modified accordingly.

23. Let a copy of the judgment along with the trial court record be sent to the court below and jail authorities for compliance.

Order Date :- 29.1.2021

Irshad