Sunil Kumar Divakar vs State Of U.P.
2021 Latest Caselaw 11399 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 45
 

 
Case :- CRIMINAL APPEAL No. - 7187 of 2017
 
Appellant :- Sunil Kumar Divakar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Amar Singh Kashyap
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per Dr. Justice K.J. Thaker)

1. This appeal challenges the judgment and order dated 13.4.2016 passed by Additional Sessions Judge, Court No.1, Kannauj in Sessions Trial No.144 of 2009 convicting accused-appellant under Sections 498 & 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.25,000/- under Section 302 of I.P.C. and under Section 498A, sentenced him to undergo 2 years and 6 months rigorous imprisonment with fine of Rs.5,000/- and in case of default of payment of fine, further to undergo six months imprisonment.

2. Factual scenario as culled out from the record and the judgment of the Court below is that the complainant lodged a complaint that his daughter was married with accused-appellant namely Sunil Kumar Diwaker on 28.4.2008. After she went to matrimonial home, she was being harassed for dowry. On the fateful day, she was sent back to matrimonial home on 28.10.2008, again accused demanded money and gold chain. She was set ablaze by pouring kerosene on her despite the fact that she was pregnant. She was subjected to all kinds of mental harassment. The child in the womb was also declared dead and, therefore, the parents of the deceased decided to see that the accused are brought to trial. The complainant lodged the complaint.

3. Investigation was moved into motion. After recording statements of various persons, the investigating officer submitted the charge-sheet against accused under 498A & 304 B of I.P.C. and Section 3/4 of Dowry Prohibition Act, 1961 (in short 'D.P. Act'). The learned Chief Judicial Magistrate before whom charge sheet was laid put the same before the learned Sessions Judge. The learned Sessions Judge, on hearing the learned Government Advocate and learned counsel for the accused, framed charges under Section 498A, 304B, 302/34 of I.P.C. & Section 4 of D.P. Act.

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

Ramsaran

PW1

Rajrani

PW2

Jintendra

PW3

Surendra Kumar Sharma

PW4

Dr. Anil Nigam

PW5

Sameer Verma

PW6

Dr. G.N. Dwivedi

PW7

Indrajeet Singh

PW8

Ram Swaroop

PW9

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

F.I.R.

Ex.Ka.8

Written Report

Ex.Ka.1

Panchayatnama

Ex. Ka.2

Postmortem Report

Ex.Ka.6

Site Plan

Ex.Ka.10

Charge-sheet

Ex.Ka.11

6. 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.

7. Heard Sri Amar Singh Kashyap and Sri Ashwani Prakash Tripathi, learned counsel for accused-appellant, learned A.G.A. for the State and perused the record.

8. It is submitted by learned counsel for accused-appellant that the accused is in jail since 2008, more particularly from 19.12.2008. The deceased was the wife of the accused-appellant. It is submitted that the deceased caught fire while burning the fire crackers and in saving her, the accused also sustained burn injuries in his hand; that both the deceased and accused sustained burn injuries and admitted to Hallet Hospital Kanpur where after giving her statement before the Magistrate, the Smt. Renu died.

9. Learned counsel for the appellant has vehemently submitted that dying declaration is not worth believing and it is an admitted position of fact that she died out of septicemia.

10. It is further submitted by learned counsel for the appellant that most of the witnesses have turned hostile despite that, learned Sessions Judge has convicted him under Section 302 of I.P.C. As far as conviction under Section 498A of IPC is concerned, he has completed the period of incarceration. It is submitted that there is no evidence of demand of dowry in the dying declaration which was the sole base of the case and that neither any specific charge was framed against the appellant under Section 302 of I.P.C. nor any evidence was led to that effect by any of the witnesses and, therefore, conviction under Section 302, could not have been recorded.

11. In support of the his submission, learned counsel for the appellant has relied on [email protected] Khokhan Vishwas v. State of Chattisgarh, 2021 LawSuit (SC) 80, Banarsi Dass and Others v. State of Haryana, Bhadragiri Venkata Ravi v. Public Prosecutor High Court of A.P., Hyderabad, (2013) 0 Supreme (SC) 511, Surinder Kumar v. State of Haryana, 2011 LawSuit (SC) 1149, Arvind Singh v. State of Bihar, 2001 (3) Supreme 570, Kashmira Devi v. State of Uttarakhand and others, (2020) 11 SCC 343, Smt. Rama Devi v. State of U.P., (2018) 102 ACrC 105, Misri Lal v. State of Uttar Pradesh, (2017) 7 ADJ 14, Sanjay and others v. State of Uttar Pradesh, (2016) 3 SCC 62, Manoj Kumar v. State of U.P., (2019) 1 ADJ 221. 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 17 years without remission, they may be granted fixed term punishment of incarceration.

12. Learned A.G.A. for the state has vehemently submitted that facts of this case will not permit the Court to convert the sentence to that under Section 304 Part I of I.P.C. as none of the judgments relied by the accused-appellant will apply to the facts of this case.

13. Learned Judge has categorically relied on the testimony of Dr. Anil Nigam and has opined that she died out of septicemia. There were formation of pus pocket on her body. She died on 3.11.2008. The postmortem was conducted on 4.11.2008. She was a young lady of 22 years. P.W.1 has testified against all the accused. The accused used to beat the deceased after consuming alcohol and all the accused persons used to take part in the same. There was dying declaration of the deceased where also she had categorically mentioned that the accused had tried to set her ablaze. The genesis of setting her ablaze was non fulfillment of dowry. The learned Sessions Judge has relied on the testimony of P.W.1 & P.W.2 and, therefore, we have also no doubt in our mind that offence under Section 498A & 304B of IPC has been committed for which the punishment cannot be said to be exaggerated. For section 498A of IPC, the learned Sessions Judge has sentenced the accused to undergo two & half years of incarceration with fine of Rs.5000/- & under Section 302, the accused has been sentenced to undergo imprisonment for life with fine of Rs. 25,000/-. As far as offence under Section 304 B is concerned, learned Sessions Judge has coupled it with Section 302 of I.P.C. The death was not due to demand of dowry but it was due to the accused-husband having bad eye on other girls for which the deceased-wife has cautioned him. We are unable to fathom on why the learned Sessions Judge then had convicted the accused under Section 498A. But, as the period of incarceration Section 498A of I.P.C. is over, we are not delving into the same. As far as Section 302 of IPC is concerned, as per the finding of the learned Sessions Judge, incident happened out of quarrel and death has happened due to septicemia on which heavy reliance has been placed by learned Sessions Judge.

14. 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.

15. 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."

16. 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.

17. 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.

18. 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.

19. 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."

20. In latest decision in [email protected] Khokhan (Supra) where the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant. The decision of the Apex Court in the case of Anversinh v. State of Gujarat, (2021) 3 SCC 12 which was related to kidnapping from legal guardian, wherein it was established that the Court while respecting the concerns of both society and victim, propounded that the twin principle of deterrence and correction would be served by reducing the period of incarceration already undergone by the accused. In our case, this is not that gruesome matter where the accused cannot be dealt with in light of all these judgments. Judgments in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused.

21. All others judgments which were pressed into service by the learned counsel for the appellant are not discussed as that would be repetition of what we have decided.

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 and, therefore, sentence of the accused appellant is reduced to the period he has already undergone. The fine is reduced to Rs.10,000/- to be paid to the original complainant.

23. Appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith. If the accused-appellant fails to pay the fine, the default sentence will start after 13 years of incarceration.

24. This Court is thankful to learned Advocates for ably assisting the Court.

Order Date :- 30.11.2021

DKS