Allahabad High Court
Mritunjaya @ Tinku vs State Of U.P. on 12 July, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Neutral Citation No. - 2023:AHC:137247-DB Court No. - 44 Case :- CRIMINAL APPEAL No. - 4017 of 2016 Appellant :- Mritunjaya @ Tinku Respondent :- State of U.P. Counsel for Appellant :- Satya Srivastava,Deena Nath,Manoj Kumar Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Umesh Chandra Sharma,J.
(Per: Umesh Chandra Sharma, J.)
1. This appeal has been preferred against the judgment and order of conviction and sentencing dated 25.07.2016 passed by Additional Sessions Judge/Fast Track Court, Jaunpur in S.T. No. 279/2012 (State Vs. Mritunjaya @ Tinku) Case Crime No. 275/2012 under Section 498-A, 304-B, 302/34, 323, 506, 326 I.P.C. and Section ¾ of D.P. Act, Police Station - Jalalpur, District - Jaunpur whereby the appellant has been convicted and sentenced to undergo imprisonment for one year with fine of Rs. 1,000/- under Section 498-A I.P.C., to undergo imprisonment for life under Section 304-B I.P.C. and to undergo imprisonment for six months with fine of Rs. 500/- under Section 4 D.P. Act with default stipulation.
2. In brief, facts of the case are that Geeta Devi daughter of the informant Shyammilan was married to Tinku son of Ram Sahai on 13.6.2011 after giving gifts, dowry and other household articles as per his capacity. On 26.5.2012 Geeta Devi went to her marital house after marriage where family members of her husband started quarreling with her for dowry and also tendered threatening to her. After five days when informant alongwith his son and brother-in-law went to the marital house of his daughter, the family members of her husband did not permit to meet with his daughter and started demanding dowry. Anyhow when he met with his daughter, she informed about the maltreatment, cruelty committed by her in-laws and non providing of food to her and when the informant wanted to talk with the family members of his daughter, her husband became angry, her father-in-law started threatening that if Rs. 50,000/ and golden chain are not provided, they shall burn his daughter to death. On 12.6.2017 at about 11-12 P.M., the informant received the information that his daughter had been burnt by her in-laws. He came to District Hospital, Jaunpur and saw that his daughter was in serious condition.
3. Thereafter, he moved the written complaint Ex. Ka-1 whereupon F.I.R. Ex. Ka-2 was lodged and Kayami G.D. Ex. Ka-3, site plan Ex. Ka-6 & 7 were prepared and after recording the statement, charge-sheet Ex. Ka-8, under Section 498A, 323, 506, 326, 304 B I.P.C. and Section ¾ D.P. Act was submitted by the I.O.
4. On 31.8.2012 the case was committed to the Court of Sessions by C.J.M. Jaunpur, where on 7.12.2012 charges were framed in the aforesaid Sections alongwith Section 302/34 I.P.C. The accused persons denied the charges and sought trial, hence, trial began and following witnesses were examined.
1Shaymmilal PW1 2 Laxmi Devi PW2 3 Vidhya Devi PW3 4 H.C.P. Shailendra Kumar PW4 5 Dr. Nem Singh PW5 6 Kamla Prasad PW6 7 Dr. Udaibhan Singh PW7 8 C.O., Anand Kumar PW8 9 Retired Tehsildar Mahadev Singh Yadav PW9
5. In support of ocular version following documents were filed:
1Written Report Ex.Ka1 2 Chick F.I.R.
Ex.Ka.2 3 Corbon G.D. Ex. Ka.3 4 Ex.Ka.4 5 Dying Declaration of Deceased Geeta Devi Ex.Ka.5 6 Map Ex.Ka.6 & 7 7 Charge-sheet Ex.Ka.8 8 Medical Report of doctor Ex.Ka.9 9 Inquest Ex.Ka.10 10 Letters to R.I, C.M.O. and Police Form 13 Ex.Ka. 11 to 13
5. After closure of the prosecution evidence, statement of the accused persons under 313 Cr.P.C. was recorded who claimed to be innocent. They have further stated that on 12.6.2012 there was marriage ceremony of daughter of their neighbour namely Nan d Lal where they had gone. There was a quarrel between the deceased-wife and her husband for living at Aurangabad and when they were busy in the marriage ceremony, at about 7:00 P.M., Kavita came out shouting that 'Geeta Bhabhi got burnt', they immediately came and extinguished fire and took the injured in the Car to Sadar Hospital Jaunpur for treatment. Neither any dowry was demanded nor she was burnt to death by them. The deceased herself got burnt due to depression. In defence two witnesses D.W.1 Nandlal and D.W.-2 Sanjay have been examined.
6. In brief, oral evidence produced by the prosecution as well as defence, is as under;
(a) P.W.1- Informant, Shyammilan, father of the deceased, has deposed that he had solemnized marriage of his daughter Geeta Devi on 13.6.2011 with accused Tinku @ Mrityunjaya and had given gifts as per his capacity. Next day of the marriage, at the time of departure of the bride, accused Ram Sahai refused to take the bride to his house demanding Rs. 50,000/- and golden chain as dowry, however, anyhow the bride could be departed on the assurance that demand would be fulfilled in future. His daughter remained there for one month and thereafter came to her parental house. On 26.5.2012 when she was again departed for her marital house, Ram Sahai made same demand but anyhow she could be departed. After five days when he, his son Ram Ratan and his brother-in-law Arvind went to meet his daughter, the father-in-law, husband and aunt Shanti Devi, demanded Rs. 50,000/- and a golden chain and did not allow the informant to meet his daughter. However, they somehow managed to meet Geeta who informed that her in-laws used to beat her in regards with the aforesaid demand and do not provide food on time. When the informant tried to talk regarding dowry, accused Tinku became angry and accused Ram Sahai threatened that if the demand was not fulfilled, his daughter would be killed. On 12.6.2012 at around 11-12 P.M. someone informed him from the hospital that his daughter was burnt by her in-laws and she was admitted in Sadar Hospital. Thereafter he alongwith his mother, brother, Shivmilan, Hawaldar, his Bhabhi and Champa Devi reached the hospital and saw that Geeta was in very serious condition and was not able to speak. She was badly burnt. Seeing it, he became mentally disturbed. The doctor said that the condition of the patient is worrying, thereafter he prepared an application and gave it to the police station Jalalpur. It was in his handwriting and signature. It was exhibited as Ex. Ka-1.
(b) P.W.-2, Laxmi Devi, grand-mother of the deceased, had given similar statement to that of P.W.-1. In addition to that she deposed that when they went to District Hospital,Jaunpur, accused Tinku and his mother were present. On being asked, Tinku told that he had done whatever he wanted, do whatever you want and started quarreling. After quarrel, Tinku left the hospital and Shyammilan remained there. They used to visit the hospital however on 18.6.2012 Geeta died in the hospital and the dead body was cremated by Shyammilan and others.
(c) P.W.-3, Vidhya Devi, mother of the deceased, had also given similar statement to that of P.W.-1. In addition to that she has deposed that when she reached the hospital, she saw that her daughter was admitted in a burnt condition who told her that Ram Sahai, Mrityunjay, Shanti Devi and Manti Devi had set her ablazed for dowry.
(d) P.W.-4, H.C.P. Shailendra Singh, has proved chick F.I.R. and G.D. Ex. Ka-2.
(e) P.W.-5, Dr. Nem Singh, has deposed that he has done postmortem of the dead body of Geeta Devi. There were superficial to deep flame burning on the face, neck, upper part of hands, breast and stomach, back and the upper portion of the body had been burnt. In the internal part of the dead body superficial to deep flame burn injuries were present. Pluera and trachea were found congested and swollen. Lungs were congested and full of blood. Uterus was normal. According to this witness the deceased would have died on 19.6.2012 at about 7:45 P.M. The cause of death was due to burn injuries. The dead body was 60% burnt. Postmortem report was prepared by Dr. Pankaj Kumar Pawan in his own handwriting. This witness proved post-mortem report as Ex. Ka-4.
(f) P.W.-6, Kamla Prasad, retired S.I. and I.O. of the case has deposed that he had prepared paper no. 1 of the case-diary on 13.6.2012 and had copied the chick F.I.R., recorded the statement of injured Geeta Devi which he has proved as Ex.Ka-5. He recorded the statement of the informant Shyammial, inspected the place of occurrence on the pointing of villagers and prepared map Ex. Ka-6. Recorded the statement of accused Tinku @Mritunjaya & Ram Sahai after their arrest. Copied the inquest in case-diary and added Section 304-B I.P.C., thereafter, the investigation was transferred to C.O. Police.
(g) P.W.7, Dr. Udai Bhan Singh, has proved the medical examination report as Ex. Ka-9 and deposed that on 13.6.2012, he was posted as Emergency Doctor in Amar Shahid Umanath Singh District Hospital, Jaunpur. Before recording the statement of the injured, he had medically examined the injured, she was in full consciousness and was capable of giving statement which he had mentioned in paper no. 146.
(h) P.W.-8, Anand Kumar, C.O., the I.O. of the case has deposed that on 27.6.2012 he received the investigation of the case and perused the previous paper of case-diary, recorded the statement of accused Manti, Shanti Devi, Laxmi Devi, Ram Ratan, Shakuntala Devi, Champa Devi and previous investigating officer. He inspected the place of occurrence and prepared map Ex. Ka-7, in parcha no. 10, recorded statement of witness Ram Milan, Arvind Kumar, Hawaldar, Rajendra Kumar and Ramlagan alongwith the statements of Naib Tehslidar Mahadev Singh Yadav, Dr.Nem Singh, Dr. Pankaj Kumar and Constable Lalbabu Yadav. In C.D. no.11 dated 14.7.2012, he recorded the statement of Shailendra Singh. After finding the commission of alleged crime, he submitted charge-sheet Ex. Ka-8 against the accused persons under Section 498A, 323, 506, 326, 304B and Section ¾ D.P. Act, Police Station Jalapur District Jaunpur.
(i) P.W.-9, Retired Tehsildar Mahadev Singh Yadav, deposed that on 13.6.2012, he was posted as Naib Tehsildar Sadar Jaunpur, He went to District Hospital Jaunpur where the deceased was admitted in burnt condition in burn ward no. 2. After getting the fitness certificate from Dr. U.B. Singh, he recorded the dying declaration at 1:45 P.M. and after reading it out to the injured her thumb impression was taken on it, he certified it. This witness has proved the dying declaration Ex. Ka-9.
After receiving the death report of Geeta Devi, he went to mortuary at District Hospital Jaunpur where S.I. Ramjeet and constable Lal Bahadur Yadav alongwith family member of the deceased were present. He appointed five persons as punchas and Panchayatnama was written by speaking to S.I. Ramjeet and related documents were prepared. The dead body was sealed and specimen seal was prepared, thereafter the dead body was sent to postmortem house through constable 814 Lal Bahadur Yadav. This witness recognized his signature and proved the inquest as Ex. Ka-10. Papers relating to Panchayatnama were also proved by this witness as Ex. Ka-11 to Ka-13.
(j) D.W.-1, Nand Lal, neighbour of the accused, deposed that no demand of dowry was made. On the fateful day there was marriage ceremony of his two daughters namely Soni and Rekha. The accused persons were busy at his house regarding arrangement of marriage ceremony. Kavita, younger daughter of Ram Sahai came crying out of her house and informed that Bhabhi was burning. Hearing this when he alongwith accused persons reached on the spot, they saw that Geeta was ablzed, they extinguished the fire by putting the bedsheet on her body. They arranged a Car and went to District Hospital Jaunpur where after 6-7 days Geeta died during the treatment. Geeta wanted to go to Aurnagabad with Tinku but due to lack of residence, he expressed his inability for which Geeta had a quarrel and in a fit of anger she burnt herself by putting herself on fire.
(k) D.W.-2 Sanjay, nephew of D.W.-1 has given similar statement to that of D.W.-1.
7. After hearing the arguments, the Trial Court convicted the accused-appellant under Section 498-A, 304B I.P.C. and Section 4 of the Dowry Prohibition Act.
8. Heard Sri Amit Kumar Pandey, learned counsel for the appellant and learned A.G.A. for the State.
9. Learned Trial Court concluded that it was a case of dowry death but he ignored the dying declaration that due to quarrel with the husband, the wife-deceased was set ablazed by the accused-appellant. The learned Trial Court did not properly consider the dying declaration and relied on the statements of the witnesses of fact who were not present on the spot. The dying declaration is in question-answer form in which she has clearly stated that due to quarrel with husband she was set ablazed. She has no where stated that she was set ablazed due to demand of dowry. The allegation of the prosecution that demand of dowry of Rs. 50,000/- and a golden chain was made and for the fulfillment of the aforesaid demand, the deceased was killed by setting herself into fire, has not been stated by the deceased before her death. Though the I.O. Kamla Prasad has recorded the statement of the deceased under Section 161 Cr.P.C. wherein it has been written that the deceased was tortured for the demand of dowry. Her husband used to demand vehicle and golden chain but it is not the case of the prosecution that any vehicle was also demanded as dowry. Since beginning it is the case of the prosecution that the family members of the accused were demanding Rs. 50,000/- and golden chain. This statement has not been proved as Dying Declaration, therefore, this statement under Section 161 Cr.P.C. can not be treated to be at par to the statement of Dying Declaration recorded by the Magistrate soon before the death of the injured. Witnesses of fact P.Ws. 1 to 3, were not present on the spot at the time of occurrence, therefore, this Court is of the view that the dying declaration made by the deceased would prevail upon the statements of the witnesses and the evidence recorded by the I.O. under Section 161 Cr.P.C.
10. Learned counsel for the appellants has argued that dying declaration is doubtful and is not corroborated by the 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 directed, 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.
11. 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.
12. It is very much clear and has been established that after the incident the deceased was admitted to the District Hospital by in-laws. The incident had taken place on 12.6.2012 and the deceased had died on 19.6.2022. There were 65 percent injuries on the person of the deceased.
13. Learned counsel for the appellant argued that it is not a case of murder or dowry death, virtually when the deceased-wife was not permitted to go to Aurngabad with her husband-accused, she set herself ablazed. If there have been mens rea of murder, she would have been killed in any other manner and she would have not been admitted to the District Hospital for her treatment by the accused-appellant. Learned counsel has further argued that the Trial Court has wrongly relied on the citation Trimukh Maruti Kirken Vs. State of Maharashtra, 2006 (3) 1426 SC, as the appellant was not present in the house at the time of occurrence. The place of occurrence and the house of D.W.-1 are adjacent thus it was very much easy for the accused to commit the crime and join the marriage ceremony of the daughters of D.W.1. In this regard Section 106 of the Indian Evidence Act is relevant which is noted herein below:
Applicability of Section 106, Evidence Act: "Section 106 of the Evidence Act is not intended to relive the prosecution of its burden to prove the guilt of the accused, but the section would apply to cases where prosecution has succeeded in proving facts for which reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a difference inference."
It is lastly 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 11 years without remission, they may be granted fixed term punishment of incarceration.
14. Deceased survived for 6 days after the incident took place. Her dying declaration was recorded by Mahadev Singh Yadav, Naib Tehsildar after obtaining the certificate of medical fitness from the concerned doctor. This dying declaration was proved by PW-9, Mahadev Singh Yadav,, Naib Tehshildar. These witnesses have absolutely independent witnesses. In the wake of aforesaid judgments of Lakhan (supra), dying declaration cannot be disbelieved, when it inspires confidence. 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.
15. In Ramilaben Hasmukhbhai Khristi vs. State of Gujarat, [(2002) 7 SCC 56], the Hon'ble Apex Court held that under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the from of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration.
16. From the above precedents, it clearly emerges that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused when such dying declaration is true, reliable and has been recorded in accordance with established practice and principles and if it is recorded so then there cannot be any challenge regarding its correctness and authenticity.
17. In dying deceleration of the deceased, it is also relevant to note that deceased died after three days of its recording. It means that she remained alive for three days after making dying declaration, therefore, truthfulness of dying declaration can further be evaluated from the fact that she survived for three days. After making it from which it can reasonably be inferred that she was in a fit mental condition to make the statement at the relevant time.
18. As already noticed, none of the witnesses or the authorities involved in recording the dying declaration had turned hostile. On contrary, they have fully supported the case of prosecution. The dying declaration is reliable, truthful and was voluntarily made by the deceased, hence, this dying declaration can be acted upon without corroboration and can be made the sole basis of conviction. Hence, learned trial court has committed no error on acting on the sole basis of dying declaration. Learned trial court was completely justified in placing reliance on dying declaration Ex.Ka-9 and convicting the accused-appellants on the basis of it.
19. 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.
20. 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."
21. 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.
22. 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.
23. In the case in hand, after perusal of dying declaration of the deceased it is not revealed as to why the appellant had poured the kerosene oil on the deceased and set her ablazed. Moreover, it is stated by the deceased in dying declaration that fire was also put out by the appellant himself, hence, there is no dispute to the fact that fire was put out by the appellant and as per the dying declaration, it is also not in dispute that appellant and his family members had taken the deceased to the District Hospital, Jaunpur, for treatment and she was admitted by them.
24. Keeping in view of the aforesaid fact that fire was put out by the appellant himself and deceased was admitted to the hospital in injured condition by the appellant and his family members, it is transpired that appellant had no intention to kill the deceased. The deceased died after six days of the occurrence and during this period, she constantly remained admitted in District Hospital and was under treatment. Doctor conducted the post-mortem, has also mentioned the cause of death as "Shock".
25. On the basis of above scrutiny of the facts and circumstances of the case coupled with the opinion of the medical officer and considering the principle laid down by the Hon'ble Apex Court in the case of Tuka Ram and others vs. State of Maharashtra [(2011) 4 SCC 250] and in the case of BN Kavadakar and another vs. State of Karnataka [1994 Supp (1) 304], we are of the considered opinion that the offence would be punishable under Section 304 (Part-I) IPC because the burn injuries were caused to the deceased by appellant with the intention to cause such bodily injuries as were likely to cause death and, therefore, the instant case falls under the Exceptions 4 of Section 300 IPC.
26. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused though had knowledge and intention to cause bodily harm to the deceased but did not want to do away with the 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.
27. 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."
28. In latest decision in Khokan@ 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 guardianship, 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 ensure for the benefit of the accused.
29. Thus 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 under Section 304 of the I.P.C. and, therefore, sentence of the accused appellant is reduced to the period he has already undergone. The total amount of fine Rs. 1500/- be deposited within 30 days from today otherwise the appellant shall undergo to the additional period of incarceration as directed by the Trial Court.
30. The appeal is accordingly partly allowed. Record and proceedings be sent back to the Court below forthwith.
31. A copy of this judgment be sent to the concerned Court for compliance and keeping it with original records.
Order Date :- 12.7.2023 S.Verma (Umesh Chandra Sharma,J.) (Dr. Kaushal Jayendra Thaker,J.)