Allahabad High Court
Mithlesh vs State Of U.P. on 8 December, 2022
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 44 A.F.R. Case :- CRIMINAL APPEAL No. - 1213 of 2020 Appellant :- Mithlesh Respondent :- State of U.P. Counsel for Appellant :- Suraj Kumar Singh,Arvind Kumar Singh,Noor Mohammad, Sunil 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. The Court of Additional Sessions Judge, Court No.3, Saharanpur recorded conviction of the present appellant Mithlesh under Section 302 I.P.C. in Sessions Trial No. 520 of 2015 (State Vs. Mithlesh) arising out of Case Crime No. 38/2015, P.S.- Titro, District- Saharanpur and sentenced her for life imprisonment and fine to a tune of Rs.20,000/- and to undergo 6 months additional simple imprisonment in case of default of payment of fine, hence this appeal.
2. The prosecution case as culled out from the FIR is that the informant and the accused had some land dispute. On 9.4.2015 Devendra, son of informant cut down some trees from that land and a complaint was made by the accused in the police station. When the Devendra aforesaid was going to the police station, accused Smt. Mithlesh who was standing outside the police station, with intention to kill, set ablaze Devendra by pouring petrol over him. The occurrence was witnessed by the informant, his son Ravindra and Ranpal son of Mehar Chand. Injured was taken for treatment and written report Ex.Ka-1 was given to the police station on the basis of which chick FIR Ex.Ka-2 under Section 307 I.P.C. was lodged and entry was made in the relevant G.D. Ex.Ka-3. The injured was referred to District Hospital, Saharanpur and subsequently to the higher centre. He was admitted in Safdarjang Hospital, Delhi on 10.04.2015 where during treatment he succumbed to the injuries on 14.4.2015. At District Hospital Saharanpur injured Devendra was medically examined by Dr. Pravin Kumar, who found superficial deep burn over the body except both elbow, waist and scalp. It was found by the doctor that the injuries might have been caused by setting ablaze with aid of petrol or kerosene oil and Medico Legal Report Ex.Ka-11 was prepared. When the injured was brought to Safdarjang Hospital, Delhi, he was medically examined by Dr. Akshat Vahan, who found 85% burn injuries over his body and he was admitted into I.C.U and Medico Legal Report Ex.Ka-5 was prepared.
3. After the death of the deceased the case was converted into Section 302 I.P.C. and his autopsy was performed by Dr. Mukesh Kumar Bansal who found as herein under:
"EXTERNAL EXAMINATION ( Injuries etc):
Infected epidermal to dermal thermal burn injuries present all over the body except lower part of abdomen, back of right forearm and right hand, both palms, both sole. Skin Peeled off at places revealing yellowish green foul smelling pus covering necrotic base. Blackening of skin present at places. Singeing of hair present at places. Total area of burn is approximately 85% of total body surface area".
4. It was opined by doctor that death was due to septicaemic shock as a result of infected ante mortem flame thermal burn injuries involving about 85% of total body surface area and accordingly, autopsy report Ex.Ka-12 was prepared. The Investigation of the case was conducted firstly by Sri Viresh Pal Giri, who recorded the statement of witnesses and after inspection of the spot site plan Ex.Ka-9 was also prepared by him and semi burn clothing, plain soil and stony part of road was also seized and memo Ex.Ka-10 was prepared. The I.O. also recorded statement of injured Devendra, whose fitness to give statement was certified by Dr. Sarseej Sharma through fitness certificate Ex.Ka-4. However, after alteration of the case under Section 302 I.P.C. investigation was taken by S.H.O. Kapil Gautam, who performed the rest proceedings of the investigation and after finding sufficient evidence charge sheet under Section 302 I.P.C. Ex.Ka-8 was submitted to the Court. However, on 14.04.2015 the dying declaration of aforesaid Devendra was recorded by Shri R.K. Singh, Tehsildar, who prepared dying declaration Ex.Ka-13, which was recorded at Safdarjang Hospital, Delhi. The accused appeared before the Court and the case being exclusively triable by the Sessions Court was committed to the Court of Session. Charge under Section 302 I.P.C. was framed against the accused to which he pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove its case relied upon oral and documentary evidence.
6. In oral evidence as many as 11 witnesses have been examined, who are as follows:
1.
Vijay Pal, informant, father of the deceased PW1
2. Ravindra, eye-witness PW2
3. HCP Ghaseetu, scribe of the FIR PW3
4. Dr. Anwar Ansari, medical examination of injured at CHC, Gangoh, Saharanpur PW4
5. Dr. Akshat Vahan, witness of Medico Legal Report, death summery and death report PW5
6. Inspector Kapil Gautam, second I.O PW6
7. S.I. Viresh Pal Giri, first I.O PW7
8. Dr. Pravin Kumar, witness of medical examination PW8
9. Dr. Mukesh Kumar Bansal, witness of the autopsy report PW9
10. R.K. Singh, Tehsildar, witness of the dying declaration PW10
11. Dr. Sarseej Sharma, witness of fitness certificate of injured Devendra PW11
7. To support the oral the oral evidence following documentary evidence has been filed by the prosecution:
1.
Written Report Ex.Ka-1
2. Chik FIR Ex.Ka-2
3. Registration G.D. Ex.Ka-3
4. Emergency Register at CHC Gangoh Ex.Ka-4
5. Medical Report of Safdarjang Hospital, Delhi Ex. Ka-5
6. Death Summery Ex.Ka-6
7. Death Report Ex.Ka-7
8. Charge Sheet Ex.Ka-8
9. Site Plan Ex.Ka-9
10. Memo of Recovery Ex.Ka-10
11. Medical Report of District Hospital, Saharnpur Ex.Ka-11
12. Autopsy Report Ex.Ka-12
13. Dying Declaration Ex.Ka-13
14. FSL report Paper No.86-Ka
8. After the evidence was over, the incriminating circumstances and evidence were put to the accused, who claimed the whole evidence to be false and took defence of false implication due to enmity in respect of some land dispute. Claiming his innocence, the accused also examined D.W.1 Billu and D.W.2 Nafee Singh.
9. P.W.1 Vijay Pal is the informant and father of the deceased Devendra Singh, who in his statement corroborated the prosecution version and has stated that at the time of occurrence, the accused was standing in front of the gate of the police station and threw petrol or kerosene oil or any flammable article over Devendra and set him ablaze by match stick. The incident was witnessed by his brother Pala Ram and Madan also, who came on the spot along with him. His son was taken to Gangoh Hospital and then to District Hospital, Saharanpur from where he was referred to Delhi, where he died on 14.04.2015. He has proved written report Ex.Ka-1 and has also stated that a civil litigation had been pending between the parties since 1992. However, there occured some contradictions between his statement before the Court and that of given to the I.O but the contradictions are not material and does not hit at the very root of the prosecution case. The contradictions, as we note, are minor and ignorable, as such.
10. P.W.2 Ravindra is said to be the eye-witness of the occurrence, who has deposed that he had not seen the accused pouring any inflammable article over the body of Devendra but had seen her setting ablaze him. The factum of enmity in respect of some land dispute between the parties has also been affirmed by this witness. The deposition of this witness is clearly natural and trustworthy and no material contradictions is found in his deposition.
11. P.W.3 HCP Ghaseetu has proved chick FIR Ex.Ka-2 and case registration G.D. Ex.Ka-3 and has stated that the FIR was lodged on the basis of the written report given by the informant Vijaypal.
12. P.W.4 Dr. Anwar Ansari has examined the injured Devendra at C.H.C. Gangooh, however, according to this witness after giving first aid to the injured, he referred him to S.B.D. Hospital, Saharanpur. He has proved emergency register Ex.Ka-4.
13. P.W.5 Dr. Akshat Vahan had stated that he had admitted the injured in the hospital, who was 85% burned at that time. He was admitted in I.C.U. where during treatment he died on 14.04.2015. This witness has proved the Medico Legal Report, death summary and death report of Devendra as Ex.Ka-5, Ex.Ka-6 and Ex.Ka-7 respectively.
14. P.W.6 S.H.O. Kapil Gautam is the second I.O of the case, after its alteration into Section 302 I.P.C. He has proved the proceedings of investigation and also charge sheet Ex.Ka-8.
15. P.W.7 S.I. Vireshpal Giri, the first I.O. has proved the proceeding of the investigation, site plan Ex.Ka-9 and seizure memo Ex.Ka-10. He has also stated that he had taken statement of injured Devendra at Safdarjang Hospital, Delhi on 13.4.2015.
16. P.W.8 Dr. Pravin Kumar has stated that he had medically examined Devendra at S.B.D. Hospital, Saharanpur. Medico Legal Report Ex.Ka-11 has been proved by this witness and he had found it a burn case.
17. P.W.9 Dr. Mukesh Kumar, who performed autopsy of the deceased and post mortem report Ex.Ka-12 has been proved by this witness.
18. P.W.10 R.K. Singh, Tehsildar has stated in his deposition that on 14.04.2015 on the instructions of S.D.M., he recorded the dying declaration and proved the same as Ex.Ka-13.
19. P.W.11 Dr. Sarseej Sharma has proved this fact that when the statement of injured was recorded by the I.O. Viresh Pal Giri on 13.04.2015, he had given fitness certificate for the condition of the injured, which he has proved as Ex.Ka-14.
20. Two defence witnesses have also been examined by the accused. D.W.1, Billo has proved this fact that his shop is situated near police station Gangooh. On the date of occurrence, he had seen Devendra entering into the police station and after one or two minutes he came out, he was ablaze and fell down before his shop.
21. D.W.2 Nafee Singh has proved CD Material Ex.Ka-1 and has stated before the Court that he has visualized the CD wherein Devendra was speaking that he himself set him ablaze.
22. On the basis of the aforesaid evidence and facts and circumstances of the case and also after hearing the rival submissions of both the sides, learned trial Court recorded the conviction under Section 302 I.P.C. and sentenced him accordingly.
23. Learned counsel for the appellant has submitted that the allegations against the appellant are totally false and there is no cogent and reliable evidence to support the charge levelled against the appellant. None of the witnesses of fact are reliable and the dying declaration does not inspire confidence. The investigation is faulty and from the evidence on record the case of false implication emerges out.
24. Per contra, learned A.G.A. has contended that the present case rests upon the eye-witness account. P.W.1 and P.W.2, who are the eye-witnesses are reliable and natural witnesses. The prosecution case is supported by the medical evidence as well. There is no material irregularity or lacuna in the investigation of the case. On the basis of the eye-witness account, no possibility of false implication of the accused is found. On the aforesaid grounds, the dismissal of this appeal has been prayed for.
25. From perusal of the entire evidence, at the very outset, we find that the lady, who is the appellant was well aware of the fact that the parties were called before the police but her presence over there with a cane of kerosene itself shows her animus towards the deceased. She is alleged to have been poured the kerosene over the deceased and this fact is fully established by the ocular evidence of P.W.1 and P.W.2 and analysis of the depositions of both the witnesses take us to this logical conclusion that it was the accused, and accused only, who set ablaze the deceased by pouring kerosene oil upon him.
26. We find that the evidence of P.W.1 and P.W.2 coupled with the dying declaration Ex.ka13 would go to show that it was nothing else but a homicidal death corroborated by the autopsy report and also by the medical report available on record.
27. The veracity of the dying declaration has been assailed by the learned counsel for the appellant but we cannot ignore this fact that the dying declaration was recorded by Tehsildar/ Executive Magistrate P.W.10, who has categorically stated that at the time of giving the statement Devendra was conscious and was in a condition to give statement. A perusal of the dying declaration Ex.Ka-13 shows that at the end of the statement it has been signed and dated by the giver. Shri R.K. Singh, Tehsildar/ Executive Magistrate has also put his signature at the end of the statement along with the date and time Ex.Ka.13 also bears the seal of Shri R.K. Singh, which is reproduced herein below:
c;ku c;ku ntZ fd;k eSa nsosUnz iq= Jh fot;iky] xkWo rcjZdiqj Fkkuk frrjks ftyk lgkjuiqj m0iz0 dk jgus okyk gwWA eSa fnukad 09-04-2015 dks vius [ksr ls lQsnk dk isM+ dkVdj ?kj yk jgk Fkk fd jkLrs esa iqfyl us jksd fy;k vkSj mlus dgk fd ;g isM+ fdlh vkSj dk gS ftldk uke feFkys'k uke ,d vkSjr gh gSA bls Fkkus ys pyksA eSa VSDVj dks Fkkus ys tk jgs Fks fd jkLrs esa VsDVj iyV x;k vkSj mlds ckn eSa xkWo ds iz/kku ds ikl x;kA mlus eq>s dksbZ lgk;rk djus ls euk dj fn;k fQj eSa Fkkuk igaqWpkA ogkW ij feFkys'k uke dh vkSjr cSBh FkhA eSa iqfyl okyksa ls ckr gh dj jgk Fkk fd ml vkSjr us esjs Åij feV~Vh dk rsy Mky fn;k vkSj ekphl dh frYyh tyk dj eq>s Mjkus yxhA blh chp mlds gkFk ls tyrh gqbZ frYyh NwV dj esjs Åij vk x;kA ftlls eSa tyus yxkA eq>s lkeus pk; okyk Jh fcYyw us vkx cq>kbZ vkSj mlds ckn ?kj ds yksxks us xaxks vLirky igqWpk;kA bl ?kVuk ds le; ogkW ij nks iqfyl okys Hkh Fks ftldks eSa lkeus vkus ij igpku ldrk gwWA eSa ;g c;ku vius gks'kks gok'k esa ns jgk gWwA ;g c;ku eSa lqu fy;k vkSj le>dj gLrk{kj dj jgk gwWA vVsLVsM vifBr gLrk{kj 14-04-2015 VkbZe 12-30 ls 1-05 ,0,e0 vkj0ds0flag0 rglhynkj@,DthD;wfVo eftLVsªV¼clar fcgkj½ U;w nsgyh fMfLVªDV
28. The whole prosecution story has been summed up in the aforesaid statement. The background of the incident and the author of the crime i.e. accused, the manner of crime and the place of occurrence including name of witnesses, all the relevant facts find place in the aforesaid statement Ex.Ka-13.
29. 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 law laid down by the Hon'ble Apex Court in State v. Veer Pal and Others (2022) 2 SCC (Criminal) 224 which is 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.
30. From the statement of P.W.10 it is absolutely clear that there is no tutoring in the whole process of recording of dying declaration and Ex.Ka-13 is a genuine and innocent statement. P.W.10 R.K. Singh, Tehsildar/ Executive Magistrate is a responsible officer and not a interested witness. We note that no material circumstance is found from the analysis of the evidence on record to establish that the Tehsildar had any orientation against the accused, hence, question of doubt on declaration recorded by P.W.10 does not arrive at all.
31. Our attention is drawn towards one more ancillary fact that P.W.7, who is the first I.O. of the case has also recorded the statement of Devendra, then injured, at Safdarjang Hospital on 13.4.2015. At the time of recording of the evidence the patient was in a fit mental condition, a certificate of this effect was given by P.W.11 Dr. Sarseej Sharma, senior resident, department of burn and plastic surgery, Safdarjang, Hospital, New Delhi, which is proved by him as Ex.Ka-14.
32. A plea has been raised on behalf of the appellant that since two dying declarations are on record, the court must verify the veracity of such statements and also to find out as to which of the statement is reliable.
33. In the backdrop of this argument and after going through the statement of P.W.7, we find that what statement, the injured had given to P.W.7, is no where mentioned in the whole testimony of P.W.7. Moreover, the said statement was not put before P.W.7 and the extract of such statement has not been exhibited, meaning thereby the said dying declaration has not been proved as per law of Evidence. Hence we are not inclined to accept the statement of the injured Devendra recorded by P.W.7 as a dying declaration. It remains a simple statement recorded under Section 161 Cr.P.C. and no reliance can be placed upon this statement, however, as concluded earlier in this judgement dying declaration Ex.Ka-13 is a valid and reliable peace of evidence and we rely upon the same.
34. The trial Court has also relied upon the dying declaration Ex.Ka-13 and has analysed the surrounding evidence thoroughly. It was correctly opined by the learned trial Court that no certificate of doctor was required prior to rely upon such dying declaration.
35. Learned counsel for the appellant has argued that dying declaration is doubtful and not corroborated by witnesses of fact, hence, it cannot be the sole basis of conviction. Legal position of dying declaration to be the sole basis of conviction is that it can be done so if it is not tutored, made voluntarily and is wholly reliable. In this regard, Hon'ble Apex Court has summarized the law regarding dying declaration in Lakhan vs. State of Madhya Pradesh [(2010) 8 Supreme Court Cases 514]. In this case, Hon'ble Apex Court held that "the doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means, "a man will not meet his Maker with a lie in his mouth". The doctrine of dying declaration is enshrined in Section 32 of Evidence Act, 1872, as an exception to the general rule contained in Section 60 of Evidence Act, which provides that oral evidence in all cases must be direct, i.e., it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases".
36. On reliability of dying declaration and acting on it without corroboration, Hon'ble Apex Court held in Krishan vs. State of Haryana [(2013) 3 Supreme Court Cases 280] 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. Hence, in order to pass the test reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstance of the death and the assailants of the victim, there is no question of further corroboration".
37. The law on the issue of dying declaration can be summarized to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. It is also held by Hon'ble Apex Court in the aforesaid case, that a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by office of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim.
38. So as to the omission to take a certificate from a doctor regarding the fitness of the maker of the dying declaration by the Tehsildar/ Executive Magistrate in the present case is concerned, we take note of and follow the law laid down in Gulzari Lal Vs. State of Haryana (2016) 4 SCC 583 wherein it has been held that a valid dying declaration may be made without obtaining a certificate of fitness of declarant by a medical officer. Likewise in Sher Singh Vs. State of Punjab (2008) 4 SCC 265 it was held that the reliability of dying declaration in absence of doctor's certification is not fatal if person recording it was satisfied that the deceased was in a fit state of mind.
39. In the facts and circumstances of the present case, we can safely rely upon Sudhakar Vs. State of M.P. ( 2012) 7 SCC 569 wherein it was clarified that " Dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival. At such time, it is expected that a person will speak the truth and only the truth. Normally in such situations, courts attach intrinsic value of truthfulness to such statement- Once such statement has been made voluntarily, it is reliable and is not an attempt by deceased to cover up truth or falsely implicate a person, then courts can safely rely on such dying declaration and it can form the basis of conviction- More so, where version given by deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for courts to doubt truthfulness of such dying declaration.
40. Learned counsel for the appellant submitted that the medical evidence shows that the deceased died due to Septicaemic shock after about five days from the date of occurrence and, therefore, it cannot be said that the deceased was done to death and was murdered.
41. While replying to the submission of the learned counsel for the appellant that since the death was caused due to septicaemia and it took place after about five days 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.
42. All these facts coupled with the fact that we have hold that it was a homicidal death, we concur with the learned trial Court on the same aspect.
43. The evidence of D.W.1 and D.W.2 have been relied upon by the learned counsel for the appellant. D.W.1 has narrated that the deceased was set ablaze in the police station itself. In this regard the learned counsel for the appellant has drawn our attention to the statement of Dr. Akshat Vahan P.W.5 who has stated in his statement that the patient had told him that he was burn in the police station by the police.
44. So far as the statement of P.W.5 is concerned that it was a police officer who set the deceased ablaze, it does not find support from any other evidence on record, particularly from the ocular evidence, which is reliable and trustworthy. The learned trial Court has also discussed this issue in the impugned judgment and has found that the aforesaid statement of P.W.5 is not trustworthy in the facts and circumstances of this case and we agree with the same.
45. So far as the evidence of D.W.2 is concerned, the CD allegedly containing the video recording of the statement of the deceased Devendra has not been proved, according to law before the Court and this fact has also been highlighted by the learned trial Court, which accordingly did not rely upon the aforesaid CD. We also find ourselves in full agreement with the learned trial Court, also keeping in view the provisions of Section 65A and 65B of the Evidence Act and find that the electronic evidence has not been proved in consonance with the aforesaid legal provisions.
46. So far as the deposition of D.W.1 is concerned, his deposition also does not inspire confidence specially in the light of the dying declaration Ex.Ka-13 and also in the light of the trustworthy and cogent ocular evidence. In the site plan Ex.Ka-9, the place of occurrence has been shown by letter "x" which situates outside the police station, which is the case of the prosecution. P.W.7 has proved this site plan in his evidence. Hence, the oral evidence adduced by the defence is not reliable.
47. From the upshot of the aforesaid discussion, we find that the finding of fact regarding the presence of witnesses, place of occurrence etc. cannot be faulted with the death of the deceased was a homicidal death, however, it appears that the death caused by the accused was not premeditated and he had no intention to cause death of the deceased and this fact takes this Court to the most vexed question where it would fall within the four corners of the murder or culpable homicide not amounting to murder, therefore, we are considering the question whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 I.P.C.
48. 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 Septicaemic Shock will not take out from the purview of Section 300 IPC.
49. 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 to 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."
50. 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.
51. 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. Also 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.
52. In State of Uttar Pradesh vs. Mohd. Iqram and another, [(2011) 8 SCC 80], the Apex Court has made the following observations in paragraph 26, therein:
"26. Once the prosecution has brought home the evidence of the presence of the accused at the scene of the crime, then the onus stood shifted on the defence to have brought-forth suggestions as to what could have brought them to the spot in the dead of night. The accused were apprehended and, therefore, they were under an obligation to rebut this burden discharged by the prosecution and having failed to do so, the trial-court was justified in recording its findings on this issue. The High Court committed an error by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable."
53. In Bengai Mandal alias Begai Mandal vs. State of Bihar [(2010) 2 SCC 91], incident occurred on 14.7.1996, while the deceased died on 10.8.1996 due to septicaemia caused by burn injuries. The accused was convicted and sentenced for life imprisonment under Section 302 IPC, which was confirmed in appeal by the High Court, but Hon'ble The Apex Court converted the case under Section 304 Part-II IPC on the ground that the death ensued after twenty-six days of the incident as a result of septicaemia and not as a consequence of burn injuries and, accordingly, sentenced for seven years' rigorous imprisonment.
54. In Maniben vs. State of Gujarat [(2009) 8 SCC 796], the incident took place on 29.11.1984. The deceased died on 7.12.1984. Cause of death was the burn injuries. The deceased was admitted in the hospital with about 60 per cent burn injuries and during the course of treatment developed septicaemia, which was the main cause of death of the deceased. Trial-court convicted the accused under Section 304 Part-II IPC and sentenced for five years' imprisonment, but in appeal, High Court convicted the appellants under Section 302 IPC. Hon'ble The Apex Court has held that during the aforesaid period of eight 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. Accordingly, judgment and order convicting the accused under Section 304 Part-II IPC by the trial-court was maintained and the judgment of the High Court was set aside.
55. In the almost similar circumstances, the conviction of the accused under Section 302 I.P.C. was modified from the rigorous imprisonment for life to rigorous imprisonment for 10 years under Section 304 Part I of I.P.C. by the Hon'ble Apex Court in Pawan Kumar Vs. State of Uttarakhand (2021) 11 Supreme Court Cases 53 and we can safely rely upon that verdict.
56. On the overall scrutiny of the facts and circumstances of the case, we have come to the irresistible conclusion with the role of the appellant that is clear from the dying declaration and other records and we also keep in mind that the deceased had survived for 5 days after the occurrence and ultimately died of septicemia and that is why we are of the considered opinion that the conviction of the appellant under Section 302 I.P.C. is required to be converted to that under Section 304 Par I of I.P.C.
57. In view of the above, the appeal is partly allowed and the sentence of the accused is reduced to the period of 10 years with remission. The period already undergone can be sustained in the full period of incarceration. The fine is reduced to Rs.10,000/- to be paid to the original complainant. The default sentence would be the same and will run after completion of 10 years of incarceration. The accused is said to be in jail since 2015 and at least had suffered for about 7 years of imprisonment and must have repented to her act which was out of anger.
58. Record and proceedings be sent back to the Court below forthwith.
Order Date :- 08.12.2022 Fhd