Pawan vs State Of U.P.
2022 Latest Caselaw 5364 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 2
 

 
Case :- CRIMINAL APPEAL No. - 1770 of 2017
 
Appellant :- Pawan
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Yogesh Kumar Srivastava,Noor Muhammad
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Gautam Chowdhary,J.

(Per Dr. Justice K.J. Thaker, J.)

1. This appeal challenges the judgment and order dated 9.3.2017 passed by Additional Sessions Judge/Fast Track Court No.2, Firozabad in Sessions Trial No.616 of 2014 convicting accused-appellant under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.10,000/- and in default of payment of fine, further to undergo imprisonment for six months.

2. Factual scenario as culled out from the record and the judgment of the Court below is that the accused-appellant is alleged to have set ablaze the deceased on 9.5.2014 when the accused went to the house of the deceased and demanded sum of Rs.10,000/- and when the deceased refused to give the said amount and requested him to come when her husband was in the house, the accused started abusing her and in his anger, poured kerosene on her and set her ablaze.

3. On the complaint of the husband of the deceased, First Information Report being No.387 of 2014 was registered under Section 307 of I.P.C. and thereafter, the investigation was moved into motion. After recording statements of various persons, the investigating officer submitted the charge-sheet against accused under Sections 302 & 307 of I.P.C.. 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 302 & 307 of I.P.C..

4. On being read over the charges, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 12 witnesses who are as follows:

Deen Dayal

PW1

Gulab Singh

PW2

Smt. Rekha

PW3

Jawahar Singh

PW4

Rajesh

PW5

Dr. Shadab Alam

PW6

Raksha Pal

PW7

Laxmi Narayan

PW8

Sanjeev Ojha

PW9

Surendra Pal Singh

PW10

Lal Mani Dubey

PW 11

Umesh Chandra

PW 12

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

F.I.R.

Ex.Ka.13

Written Report

Ex.Ka.1

Dying Declaration

Ex. Ka.8 & 12

Postmortem Report

Ex. Ka.2

Panchayatnama

Ex.Ka.3

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 appellant as mentioned above.

7. Heard Yogesh Kumar Srivastava, learned counsel for the appellant, Sri Vikas Goswami, learned A.G.A-I, assisted by Sri Nagendra Kumar Srivastava and Sri Janardan Prakash, learned A.G.As. for the State and perused the record.

8. It is submitted that the deceased in her first dying declaration mentioned that the accused poured kerosene and set her ablaze and then poured water on her, and that people started coming in and, her husband, after he came back from service, brought her to the hospital. Her statement was recorded at 7.12 p.m. on 9.5.2014 namely on the date of incident.

9. Learned counsel has thereafter taken us to the depositions of other witnesses who are hostile witnesses. Be that as it may, the main crux on which submission is made by Sri Yogesh Kr. Srivastava, learned counsel for the appellant are that the deceased died out of burn injuries after six days, there are multiple dying declarations which give different version. The medical evidence according to the counsel for the appellant shows that she died due to septicemic shock and, therefore, it is submitted that looking to the F.I.R. and the dying declarations, it cannot be said that the deceased was done to death and she was murdered. It is submitted that even if it is considered that it was culpable homicide, it would be culpable homicide not amounting to murder.

10. In support of the his submissions, learned counsel for the appellant has relied on the decisions in Maniben vs. State of Gujarat, 2009 (8) SCC 796, Chirra Shivraj vs. State of Andhra Pradesh, 2010 (14) SCC 444, Criminal Appeal No.1438 of 2010 (Rama Devi alias Ramakanti vs. State of U.P.) decided on 7.10.2017 & Criminal Appeal No. 2558 of 2011 (Smt. Kanti and another vs. State of U.P.) decided on 1.2.2021.

11. Learned A.G.A. for the state has vehemently submitted the death of the deceased was though due to septicemic shock, the burn injuries goes to show that it would not be an offence punishable under Section 304 part I or II of I.P.C.

12. While going through the evidence of the witnesses in light of the judgments of the Apex Court referred by both the learned Advocates, we would have to evaluate whether deceased was done to death with a premeditation. Just because death was due to septicemic shock will not take it out from the purview of Section 300 of I.P.C. The evidence of most of the witnesses which has been recorded goes to show that most of them have given go by of their statements before the police under Section 161 of Cr.P.C. But, the medical evidence and dying declaration which are multiple in number have to be evaluated.

13. Whether the F.I.R. corroborates the dying declaration of the deceased? It is an admitted position of fact that it was the accused who had poured kerosene on the deceased, however, in one of her dying declaration she mentioned that the accused had poured water so as to save her. But the second dying declaration which is latest in point of time is silent. Therefore, one fact is that the accused was the brother in law of the deceased and when he demanded monies she gave him two slaps and in infuriation, he set her ablaze. This fact is borne out in both the dying declarations and the doctor has also opined against the accused. Therefore, this dying declaration has not been challenged by the counsel for the appellant and in the light of the decision in Govindappa and others Vs. State of Karnataka, (2010) 6 SCC 533, there is no reason for us not to accept the dying declaration and its evidentiary value under Section 32 of Evidence Act, 1872. However, it is submitted that looking to the facts, the accused-appellant had no intention to do away with his sister-in-law.

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 appellant.

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 if 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 Vishwas v. State of Chattisgarh, 2021 LawSuit (SC) 80 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 eight years with remission. The fine is reduced to Rs.5000/- to be paid to the original complainant. The default sentence would be six month without remission and will run after completion of eight years of incarceration. The accused is in jail since long. At least he has suffered for eight years imprisonment and must have repented to his deed which was out of anger.

23. Appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith.

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

Order Date :- 24.6.2022

DKS