Manish Jain vs State Of U.P.
2021 Latest Caselaw 1712 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Court No. - 49
 
Case :- CRIMINAL APPEAL No. - 3347 of 2015
 
Appellant :- Manish Jain
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Ranjit Saxena,Mahabir Yadav,Ram Awtar,Subhash Singh Yadav,Y.S. Saxena
 
Counsel for Respondent :- Govt.Advocate,Anurag Shukla
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

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

1. Heard Senior Advocate assisted by Sri Sunil Kumar Singh, learned Advocate for the appellant and learned A.G.A. for the State.

2. This appeal challenges the judgment and order dated 28/30.7.2015 passed by Additional Sessions Judge, Court No.1, Agra in Sessions Trial No.280 of 2012 convicting appellant under Section 452, 307 & 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and Section 4/5 of the Explosive Substances Act, 1908 (for short 'Act, 1908'). The learned Additional Sessions Judge has sentenced the accused in the following manner and has held that all the sentences to run concurrently:

Conviction under Section

Sentence Awarded

Fine

Default Sentence

302 of I.P.C.

Life imprisonment

5000/-

6 months

307 of I.P.C.

7 years

1000/-

1 month

452 of I.P.C.

3 years

500/-

15 days

4/5 of Explosive Substances Act

10 years

1000/-

1 month

3. On the fateful day when grand daughter was born to daughter in law of legendary actor, Sri Amitabh Bachchan, the daughter of the complainant was injured by the bomb which was in fact a cracker bomb with which the accused was celebrating the birth of grand child of Sri Amitabh Bachchan in his home city namely Allahabad. The accused is said to have thrown two bombs shells into the house of the complainant at about 5.00 p.m. in the evening on the fateful day i.e. 11.11.2011. The accused who was staying near the house of the complainant. The complainant got injured. The particles of the bomb pierced her bad and her daughter Kavita who came out of the rest room at that time the accused came inside with a purpose to do away with the deceased, hurled the second bomb by which the young girl was injured. Many people came to spot and seeing them, the accused ran away. Complainant and her daughter were taken to the hospital. The complaint is of dated 11.11.2011. Unfortunately, on 3.12.2011, the daughter of the complainant passed away whose name was Kavita. The complainant identified the dead body at the mortuary. The postmortem was also performed on the very same day. The police officer took the fire cracker bomb and got it defused and sent the same for examination at the Forensic Science Laboratory Department. The police reported the death as unnatural death by violence and that is how the medico legal postmortem was prepared. The dead body was received on 3.12.2011. She was treated locally, shifted to Central Hospital, Northern Railway and then shifted to Dr. R.M.L. Hospital on 16.11.2011. She died on 2.12.2011 during treatment.

4. Investigation was moved into motion and after recording statements of various persons, the Investigating Officer submitted the charge-sheet against accused.

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

6. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined about 12 witnesses who are as follows:

Deposition of Rajeshwari Sharma

22.4.2013

16.5.2013

19.11.2013

PW1

Deposition of Jairaj Vir Singh

29/05/13

PW2

Deposition of Dr. S.C. Jain

29/05/13

PW3

Deposition of Bhrat Singh

14/03/16

PW4

Deposition of Shanker Lal

14/03/16

PW5

Deposition of Santosh Kumar

18/07/13

PW6

Deposition of Dr.Manoj Kumar

14/08/13

PW7

Deposition of Surendra Singh

08/10/13

PW8

Deposition of Dr. Arun Kapoor

08/03/11

PW9

Deposition of Dr. Anita Chandrayan

08/12/13

PW10

Deposition of Rajan Singh

15/12/13

PW 11

Deposition of Shailendra Singh

12/03/14

PW12

7. In support of ocular version following documents were filed:

F.I.R.

11/11/11

Ex.Ka.9

Written Report

11/11/11

Ex.Ka.1

Statement Regarding Identification of Body

03/12/11

Ex.Ka.12

'Raseed Hawalgi Nash'

03/12/11

Ex.Ka.13

Statement Regarding Identification of Body

03/12/11

Ex.Ka.15

Certificate of Bomb Disposal Squad

11/11/11

Ex.Ka.5

Injury Report

11/11/11

Ex.Ka.3

Injury Report

11/11/11

Ex.Ka.4

Death Report

03/12/11

Ex.Ka.14

Postmortem Report

03/12/11

Ex.Ka.8

Death Summary

02/12/11

Ex.Ka.11

Report of Vidhi Vigyan Prayogshala

02/12/11

Ex.Ka.2

Charge-sheet

22/12/11

Ex.Ka.7

8. 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.

9. Learned counsel for the appellant has made submissions that no offence has been committed by the accused. It is further submitted that the accused had no motive to do away with the deceased and that the death of the deceased was due to septicemia after a considerable period of time.

10. Learned counsel for the appellant has relied 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 contend that the decision of imprisonment for life is bad and 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 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 have 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. He has taken us through the evidence on record and the manner in which the deceased was done to death. Sri Rupak Chaubey, 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 hurled the bomb not once but twice which shows the fact that he was well aware that the first bomb did not hurt the girl and, therefore, he came again and hurled the second bomb in the house. The injuries were such that the death was not because of the septicemia but was coupled with the fact that injury has taken place due to blasting. 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.

12. Before we start considering the evidence which we are not elaborately discussing, the reason being it is proved conclusively that the fire cracker bomb was hurled by none other than the accused. The mother of the complainant also received injuries which she has testified on oath as P.W.1. P.W.2 also corroborated and hence it was proved that accused was the person involved in the commission of the offence. The reasons are that the accused has been identified by the witnesses to have burst the crackers in the house of the complainant which injured the deceased and her mother and that it was the accused and accused alone who had committed the offence.

13. 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.

14. 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."

15. 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.

16. 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.

17. 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.

18. 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."

19. We are unable to agree with learned A.G.A. who has relied on the recent decision of this Court in Vidya Sagar Dwivedi (Supra). The said judgment nowhere deals with the issue of septicemia. The judgments in Sudershan Kumar Vs. State of Delhi, AIR 1974 SC 2328, State of Haryana Vs. Pala and others, (1996) 8 SCC 51, Veerla Satyanarayana Vs. State of Andhra Pradesh, (2009) 16 SCC 316, Munnawar and others Vs. State of Uttar Pradesh and others, (2010) 5 SCC 451 on which the learned A.G.A. has placed reliance, relates to actual and motivated assault. In our case, none has mentioned that what was the motive of the accused. None of the witnesses has even remotely conveyed that the accused had with a purposeful motive hurled the bombs on the deceased, what was the motive or the accused had any intention of doing away with the injured or the deceased is not borne out from the record in our case.

20. One more glaring fact is that from the record of the medical papers that the deceased survived for more than 20 days. She was shifted from the ICU ward to general ward and thereafter she developed fissure and later on during treatment, she breathed her last. Though we concur learned Trial Judge that the death was homicidal death we are unable to accept the submission of Sri Rupak Chaubey, learned A.G.A. that the sole reason for the death was the cracker bomb hurled by the accused.

21. The death was because of after effect of the treatment as she had developed other diseases also and the deceased developed what is known as septicemia. The judgment cited by Sri Rupak Chaubey, learned A.G.A. will not be applicable to the facts of this case as unfortunately from the evidence of the record, what was the motive of the accused is not borne out.

Punishment:

22. We come to the definite conclusion that the death was due to septicemia. The judgments cited by the learned counsel for the appellant would permit us to uphold our finding which we conclusively hold that the offence is not under Section 302 of I.P.C. but is culpable homicide.

23. The accused is in jail since 12.11.2011. The decision of this Court and and of the Gujarat High Court in Gautam Manubhai (Supra) wherein the undersigned (Dr.K.J. Thaker,J.) was a also a signatory and the decision in Maniben (Supra) wherein the Apex Court has converted the conviction under Section 302 of I.P.C. to Section 304 Part II of I.P.C. which will come to the aid of the accused.

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

25. 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 7 years of incarceration with fine of Rs.5000/- and conviction under Section 4/5 of Explosive Substances Act,1908 is also reduced to 7 years of rigorous imprisonment looking to the facts of this case. Conviction and sentences as far as offences under Sections 452 & 307 of I.P.C. are maintained as the period of sentence is over even the default period would be over.

26. Appellant-accused is in jail since 12.11.2011, if 7 years of incarceration is over for all the offences and the default would start after the period of seven years, he shall be released forthwith, if not required in any other case. The accused would be entitled to all remissions. The judgment and order impugned in this appeal shall stand modified accordingly.

27. 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 :- 29.1.2021

DKS