Allahabad High Court
Smt Angoori Devi And 3 Others vs State Of U.P. on 14 September, 2022
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 44 Case :- CRIMINAL APPEAL No. - 4094 of 2016 Appellant :- Smt Angoori Devi And 3 Others Respondent :- State of U.P. Counsel for Appellant :- Ashutosh Yadav,Abhilasha Singh,Shyam Lal,Yogesh Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Nalin Kumar Srivastava,J.
(Per: Hon'ble Nalin Kumar Srivastava, J)
1. Heard Sri Yogesh Kumar Srivastava, learned counsel for the appellants and Sri N.K. Srivastava, learned AGA appearing for the State and perused the record.
2. The instant criminal appeal has been filed against the judgment and order dated 28.07.2016/29.07.2016 passed by Additional Sessions Judge/Fast Track Court No. 1, Hathras, in S.T. No. 493 of 2014, State vs. Arjun Singh and one another, S.T. No. 194 of 2015, State vs. Bachchoo Singh and one another and S.T. No. 146 of 2015, State vs. Sukhvir, arising out of Case Crime No. 322 of 2014, under Sections 498A, 304B IPC and Section ¾ Dowry Prohibition Act, P.S. Chandpa, District Hathras, whereby the applicants have been convicted under Section 302/34 IPC and sentenced to imprisonment for life with a fine of RS. 10,000/- each and in default to undergo 6 months additional simple Imprisonment.
3. All the three sessions trials were consolidated with S.T. No. 493 of 2014, State vs. Arjun Singh and the another, which was mentioned as leading case.
4. The factual scenario as emerged out from the FIR (Ext. K-3) is that Smt. Hema, sister of the informant Sunil Kumar was married to the accused Arjun Singh on 01.05.2013. After marriage she was harassed and subjected to cruelty for demand of dowry by her husband Arjun Singh, mother in-law Anguri Devi, Jeth Bachchoo Singh and Jethani Anjali Devi, who were not satisfied with the dowry given in the marriage and were demanding Rs. 50,000/- more as dowry. When the informant and his father shown their inability to pay this huge amount, they set ablaze the aforesaid Hema on 03.05.2014 at her matrimonial home. The informant on information went there and took away his sister to the hospital and when they have no money left for treatment, they left away Smt. Hema to her matrimonial home on 03.05.2014. The in-laws of the deceased took no interest in her treatment and ultimately she died on 19.07.2014.
A written report Ext. K-1 was was given to the station officer at P.S. Chandpa, District Hathras by the informant and FIR was lodged on 19.07.2014 at 09:15 a.m.
5. The investigation of the case was conducted by C.O. Narendra Dev, who recorded the statements of witnesses and made a site plan (Ext. K-6) after inspection of the house of the accused persons. The inquest report Ext. K-2 was prepared on 19.07.2014 by Tehsildar Ram Jeevan Verma and necessary papers for postmortem were also prepared. The postmortem of the deceased was performed by Dr. R.P. Singh on 19.07.2014 and autopsy report Ext. K-5 was prepared by him, who found the following antemortem injuries on the person of deceased as mentioned below :-
1.Superficial to deep burn (old) on neck and chest and face, surface of skin is covered with granulated tissues.
2.Superficial to deep burn (old) on both asens (Anteriorly and posteriorly). Surface of skin is covered with granulatial tissues.
3. Superficial to deep burn (old) on back of chest where skin surface is covered with granulated tissues.
It was opined that the cause of death was septicemic shock as a result of old burn .
6. After investigation three charge-sheets Ext. K-7, Ext. K-8 and Ext. K-9 was submitted by the Investigating Officer. Meanwhile the dying declaration (Ext. K-10) of Smt. Hema aforesaid was recorded by Sri P.S. Rana, Additional City Magistrate on 04.05.2014 at Maraj Hospital, Aligarh.
7. The accused persons were appeared before the court and their cases being exclusively triable by the Sessions court were committed to the court of Sessions.
8. Accused Arjun Singh and Anguri Devi were charged under Sections 498A, 304B read with Section 302/34 IPC and Section 4 D.P. Act, accused Bachchoo and Smt. Anjali were charged under Sections 498A, 304B read with Section 302/34 IPC as alternative charge and Section ¾ D.P. Act and charges under Sections 498A, 304B read with Section 302/34 IPC as alternative charge and Section 4 D.P. Act were framed against accused Sukhvir.
9. Accused persons pleaded not guilty and claimed to be tried and the trial started.
10. The prosecution to bring home the charges against the accused person has relied upon oral and documentary evidence.
11. In oral evidence P.W. 1 Sunil Kumar, informant/brother of the deceased, P.W. 2 Raju Singh, witness of inquest report, P.W. 3 Constable Clerk Narendra Singh scribe, P.W. 4 Dr. Ravindra Pratap Sing, P.W. 5 C.O. Narendra Dev, the Investigating Officer and P.W. 6 Pooran Singh, Tehsildar, the witness of dying declaration and P.W. 7 Dr. Mairaj Ali, Mairaj Hospital, Aligarh have been examined.
12. As documentary evidence, written report Ext. K-1, inquest report Ext. K-2, Chick FIR Ext. K-3, Case registration GD Ext. K-4, Autopsy Report Ext. K-5, site plan Ext. K-6, charge-sheet Ext. K-7, 8 and 9 and dying declaration Ext. K-10 have been produced by prosecution.
13. After the prosecution evidence is over, the incriminating circumstances and evidence adduced against accused persons were put before them. In their statements under section 313 Cr.P.C., they claimed whole prosecution evidence as false and fabricated. Accused Arjun Singh, Sukhvir, Anjali and Bachchoo Singh have taken defence of separate leaving and also claimed the suicidal death of the deceased and false implication of the accused persons.
14. Accused Arjun Singh, husband of the deceased has stated that at the time of occurrence he has not present in the village. His wife was short tempered. He has also stated that he bore of the expenses regarding treatment of his wife and has also claimed that she herself has committed suicide by pouring kerosene oil upon her and all the accused persons have been falsely implicated.
15. On behalf of accused persons DW-1, Pawan Kumar, who is the resident of the village of the appellants has been examined to prove the ill tempered nature of the deceased and also the factum of suicide committed by her.
16. As oral evidence PW-1 Sunil Kumar, the brother of the deceased has been examined who in his Examination-In-Chief has corroborated the prosecution story and proved the written report Ext. Ka-1 was reiterated the fact.
17. The main ingredients of the offence under Section 304-B required to be established are determined by the Hon'ble Apex Court in a catena of decisions and recently in Devendra Singh and others v. State of Uttarakhand, AIR 2022 SC 2965 they have been reiterated as follows: -
"(i) that soon before the death, the deceased was subjected to cruelty and harassment in connection with the demand of dowry;
CRIMINAL APPEAL NO.383 OF 2018
(ii) the death of the deceased was caused by any burn or bodily injury or some other circumstance which was not normal;
(iii) such a death has occurred within 7 years from the date of her marriage;
(iv) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;
(v) such a cruelty or harassment should be for, or in connection with the demand of dowry; and
(vi) it should be established that such cruelty and harassment were made soon before her death."
18. In the aforesaid matter the Hon'ble Apex Court explaining the Provision of Section 113B of Indian Evidence Act has laid down that :-
"Section 304BIPC read along with Section 113B of the Indian Evidence Act, 1872 makes it clear that once the prosecution has succeeded in demonstrating that a woman has been subjected to cruelty or harassment for or in connection with any demand for dowry soon after her death, a presumption shall be drawn against the said persons that they have caused dowry death as contemplated under Section 304B IPC. The said presumption comes with a rider inasmuch as this presumption can be rebutted by the accused on demonstrating during the trial that all the ingredients of Section 304B IPC have not been satisfied. [Ref.: Bansi Lal vs. State of Haryana, (2011)11 SCC 359: AIR 2011 SC 691, Maya Devi and Anr. vs. State of Haryana,(2015) 17 SCC 405: AIR 2016) SC 125, G.V. Siddaramesh v. State of Karnataka (2010) 3 SCC 152: 2010 AIR SCW 1387 and Ashok Kumar vs. State of Haryana (2010) 12 SCC 350: AIR 2010 SC 2839]."
19. In the light of relevant provisions, ingredients of the offences and the evidence adduced, the case has to be scrutinized. PW-1 Sunil Kumar, brother of the deceased, in his statement has reiterated the fact of dictating written report and lodging of FIR and has stated that the deceased. Hema was married with the accused Arjun Singh on 1.5.2013. She was harassed and subjected to cruelty by her in-laws with a demand of Rs. 50,000/- as additional dowry. He has further submitted that on 3.5.2014 accused persons Arjun Singh, Anguri Devi, Anjali Devi, Bachchu Singjh and Sukhbir Singh with the common object set ablaze his sister by pouring kerosene oil and ultimately she died on 19.7.2014.
20. In his cross-examination, he has stated that his sister deceased Hema was very loose tempered and irritable and used to come to her parents without informing her in-laws. He has also admitted in his cross-examination that she used to make quarrel with her in-laws on the issue of the partition of the house and had grudge with them. His brother-in-law never demanded any dowry and he was not present on spot on the day of occurrence. He has further stated that one day before the occurrence, his sister came to her parental house but she was bitterly harassed there and was sent back to her inlaws. Since, she was a peevish and ill tempered lady, she set ablazed herself. The accused persons neither set ablazed her nor assaulted.
21. PW-2 Raju Singh, witness of Panchayanama, is a resident of the village of accused persons. It is to be noted that PW-1 has also proved the inquest report as Ext. K-2 and PW-2 has also identified his signature over the inquest report. PW-3, Constable Narendra Singh is the scribe of FIR and he has proved the Chik FIR Ext. K-3 and case Registration GD as Ext. K-4. In his cross-examination, he has stated that it is true that the informant or any of his family members never informed the police regarding the said incident for a period of 2 months and 16 days.
22. PW-4 Dr. Ravindra Pratap Singh has proved autopsy report as Ext. K-5. In his cross-examination, he has stated that the deceased had died due to Septesemia and infection and pus was found in the both lungs of the deceased at the time of post mortem.
23. PW-5, Circle Officer Narendra Dev, is the Investigating Officer of the case, he has proved the topography of the place of occurrence and the site plan Ext. K-6. He has recorded the statement of the informant, scribe of the FIR, witness of the inquest report and also made a copy of the dying declaration in the case diary. After completion of investigation, he also submitted charge-sheets Ext. K-7, 8 and 9 in the court. In his cross-examination he had admitted that during investigation witness Netrapal had stated that the deceased Hema was very ill tempered and irritable lady.
24. PW-6, Tehsildar, Pooran Singh Rana, in his deposition has categorically stated that on 4.5.2014 at 11:53 am he has recorded the dying declaration of Smt. Hema at Mairaj Hospital, Aligarh, and prior to the recording of that statement he obtained the certificate from the doctor that she was fully conscious and, in a position to record her statement. After recording the dying declaration, he obtained certificate from the doctor that during the course of recording the statement, she had been fully conscious and, in a position to record her statement. PW-6 has proved the dying declaration as Ext. K-10.
25. PW-7 Dr. Mairaj Ali, has also proved the process of recording of dying declaration in his deposition and has confirmed this fact that dying declaration was recorded on 4.5.2014 at 11:50 am in Mairaj Hospital, Aligarh, by Sri P.S Rana, Additional City Magistrate I, Aligarh, he has also confirmed his certificate mentioned upon Ext. K-10.
26. In his cross-examination, PW-7 has deposed that at the time of admission in his Hospital, she was 50%-60% burnt where she remained admitted in the hospital along with her parents for 4-5 days.
27. It is a settled principle of law that the defence evidence to be weighed in the same manner as the prosecution evidence. On this aspect, shalter can be taken of Mahendra Singh vs State of M.P. (2022) 7 SCC 157.
28. DW-1 Pawan Kumar Sharma who is a resident of the village of the appellants/accused persons has stated that at the time of occurrence he was present at the house of the deceased and saw that the deceased set ablazed herself and was crying. He had also tried to save the deceased. In his cross-examination he has stated that he was also burnt when he was trying to save the deceased. However, he has admitted that the deceased had not set ablazed herself before him. Hence, the deposition of D.W. 1 is of no help of the accused persons.
29. On taking note of the evidence and other aspects of the matter it is evident that the death of the deceased had occurred within seven years from the date of her marriage. From the Medical Evidence, it has been proved beyond reasonable doubt that death of the deceased had occurred in such circumstances which were not normal. Thus, the fact of unnatural death of the deceased within 7 years of her marriage has been fully established. Now, the question arises for consideration as to whether the allegations made by the prosecution would be sufficient to satisfy the ingredients of Section 304-B IPC with regard to demand of dowry, perpetration of cruelty and harassment in connection with demand of dowry. Further, if such cruelty and harassment suffered by the deceased was continuous and had put to her life miserable so as to bring her home death. It is well settled that such cruelty or harassment are to be linked with the close proximity of time soon before her death.
30. It is pertinent to mention here that there is no witness of fact on record to corroborate the deposition of PW-1 who is the brother of the deceased. No other family member from the parental side of the deceased has been examined. The evidence of PW-1 if taken as a whole, is shaky and is of uncertain character so far as the dowery death in concerned. Whereas in his examination in chief he has stated about harassment and demand of dowry from his sister, in the cross-examination, he has stated that she was very ill tempered and after used to come to her parental house without any information to her in-laws to which she was scolded and rather beaten by her parents and this incident happened just before her death. Hence, the statement of PW-1 ultimately proves that the ingredient of ''soon before death' has also not been established at all. Since the prosecution failed to establish the necessary ingredient of ''soon before death' which was a must to prove the guilt of the accused persons under Section 304-B IPC, it can be concluded that the offence under Section 304-B is not established from the evidence on record and therefore, no presumption can be drawn under Section 113B of the Indian Evidence Act, which means that the burden of proof remains upon the prosecution and it is not shifted on the defence side by virtue of non-application of section 113B of the Indian Evidence Act. Depending upon the facts and circumstances of the case reference can be made in Kailash vs. State of Madhya Pradesh, AIR 2007 SC 107, wherein it has been held that the word ''soon before death' in section 113B cannot be limited by fixing time limit. It is left to be determined by the Courts, depending upon the facts and circumstances of the case. It has been held by Hon'ble Apex Court in Devinder vs. State of Haryana, (2010) 10 SCC 763: 2012 (10) JT 249 that Section 113B read with Section 4 of the Act would mean that unless and until it is proved otherwise, the Court shall hold that a person has caused dowry death of a woman if it is established before the Court that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with any demand for dowry. The similar view has been taken in G.V. Siddaramesh vs. State of Karnataka, (2010) 3 SCC 152 wherein it has been held that there must be material to show that soon before the death of woman, such woman was subjected to cruelty or harassment for or in connection with demand of dowry, then only a presumption can be drawn that a person has committed the dowry death of a woman.
31. It is pertinent to mention here that alternative charge under Section 302 IPC has been framed against the accused persons and the learned Trial Court has relied upon the dying declaration of the deceased Ext. K-10, as a proof thereof.
32. The learned counsel for the appellant has vehemently argued that the dying declaration in this case is not a valid piece of evidence. It has not been corroborated by any cogent evidence. On the other hand the learned AGA has relied upon the case law of Hon'ble Apex Court in State v. Veer Pal and Others (2022) 2 SCC (Criminal) 224 wherein it has been held as under :-
16 Now, on the aspect, where in the absence of any corroborative evidence, there can be a conviction relying upon the dying declaration only is concerned, the decision of this Court in Munnu Raja (Munnu Raja vs. State of M.P., (1976) 3 scc 104: 1976 SCC (Cri) 376) and the subsequent decision in Paniben vs. State of Gujrat [Paniben v. State of Gujarat, (1992) 2 SCC 474: 1992, SCC (Cri) 403] are required to be referred to. In the aforesaid decisions, it is specifically observed and held that there is neither a rule of law nor of prudence to the effect that a dying declaration cannot be acted upon without a corroboration. It is observed and held that if the Court is satisfied that the dying declaration is true and voluntary it can base its conviction on it, without corroboration. Similar view has also been expressed in State of U.P. Vs. Ram Sagar Yadav [State of U.P. vs. Ram Sagar Yadav] (1985) 1 SCC 552; 1985 ACC (Cri) 127] and Ramawati Devi vs. State of Bihar. [Ramwati Devi vs. State of Bihar] (1983) 1 SCC 211: 1983 SCC (Cri) 169]. Therefore, there can be a conviction solely based upon the dying declaration without corroboration.
33. In the present case, PW-6 has recorded the dying declaration of the deceased in the Mairaj Hospial, Aligarh on 4.5.2014 at 11:53 a.m. and has proved it as Ext. K-10. What the deceased had spoken is verbatim written in Ext. K-10 like this:-
" आग कैसे लगी- मेरे सास, जेठानी अंजली, जेठ बच्चू सिह, देवर सुखवीर ने 3-4 दिन पहले मारा था। शुक्रवार को इन लोगो ने मिट्टी तेल डाल कर आग लगाई। यह घटना सुवह की है। तुम कहाँ थी- मैं कपड़े धो रही थी। आग क्यों लगाई- मुझे निकालने को कहते थे। घरवाला कहाँ था- काम पर गये थे। शादी कब हुई- एक साल हो गया है। बच्चे हैं- नहीं । मुझे कहते थे तीन लाख रूपया कर्जा हटाने के लिये लाओ लोन का।"
34. A certificate has been given by Dr. Mairaj Ali PW-7 before and after recording of the dying declaration which has been endorsed on Ext. K-10 to the effect that Smt. Hema Devi is all conscious and will oriented with time, place and person and is fit for recording of statement. He has also certified that the patient remained conscious and oriented till the end of recording of statement. From the statement of PW-6 and PW-7 it is absolutely clear that there is no tutoring in the whole process of the recording of the dying declaration of Ext. K-10 and it is genuine and innocent statement. PW-6 Pooran Singh Rana, the then Additional City Magistrate I, Aligarh, is a responsible officer and an interested witness. No material circumstance comes out from the analysis of the evidence on record to establish that the Magistrate had any orientation against the accused hence, question of doubt on declaration recorded by PW-6, does not arrive at all.
35. Learned counsel for the appellant submitted that the medical evidence shows that the deceased died due to Septicemic shock after about two and a half months from the date of occurrence and, therefore, it cannot be said that the deceased was done to death and she was murdered.
36. The Trial Court has also relied upon the dying declaration made by Smt. Hema and has found that offence under Section 304 B IPC is not made out against the accused persons but they could not get rid of the charge under Section 302/34 IPC. It has also been observed by learned Trial Court that perusal of dying declaration Ext. K-10 shows that accused Arjun, husband of the deceased, was not present at the time of occurrence and as such he has been acquitted from all the charges by Trial court. Accordingly, the present appellants have also been acquitted from the charges under Section 498A, 304B and Section 4 Dowry Prohibition Act, but at the same time on the basis of dying declaration they have been found guilty under Section 302/34 IPC and have been sentenced accordingly.
37. While replying to the plea of the learned counsel for the appellants that since the death was caused due to septicaemia and it took place after about two and half months from the date of occurrence, dying declaration is not reliable and inadmissible, the learned AGA has relied upon the case of B. Sanghikala v. State of Andhra Pradesh, 2005 SCC (Criminal) 171, wherein it has been held that there is no legal requirement that dying declaration could be admissible in evidence only when made under expectation of death.
38. While considering the conclusion arrived at by the learned Trial court and the sentence imposed upon by it, we would have to see as to whether the deceased was done to death, however, the cause of death due to Septisemic Shock will not take out from the purview of Section 300 IPC.
39. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case is that 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 reads 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."
40. 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.
41. 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.
42. 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. (2011) 5 SCR 300 which have to be also kept in mind.
43. 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 certificate given by the doctor are consistent and seem 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 oil and setting her 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 about two and half months 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 vs. State of Gujrat, 2009 (8) SCC 796, 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."
44. 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 two and half months after the occurrence and ultimately died of septicemia. 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 and the sentence of the accused persons/ appellant is reduced to the period of 10 years with remission. The period already under gone can be sustained in the full period of incarceration.
45. The fine is reduced to Rs. 5000/- each to be paid to the original complainant. The default sentence would be 6 months with remission and will run after completion of 10 years incarceration. The accused persons have been languishing in jail since long, at least each of them has suffered for about 8 years of imprisonment and must have repented to their deed which was out of anger.
45. It is to be made clear that accused/appellant Smt. Anguri Devi, has already been released from the prison on the basis of mercy petition of 4.8.2022 hence, she need not under go any imprisonment.
Accordingly, the appeal is partly allowed. Record and proceedings be sent back to the court below forthwith Order Date :- 14.09.2022 v.k.updh.