Allahabad High Court
Dev Saran And 4 Others vs State Of U.P. on 11 April, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 21.3.2023 Delivered on 11.4.2023 Court No. - 44 Case :- CRIMINAL APPEAL No. - 4548 of 2015 Appellant :- Dev Saran And 4 Others Respondent :- State of U.P. Counsel for Appellant :- Rajesh Kumar Mishra Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Syed Qamar Hasan Rizvi,J.
(Per: Syed Qamar Hasan Rizvi,J)
1. This appeal challenges the judgment and order dated 3.9.2015 passed by Additional Sessions Judge, Court No.24, Shahjahanpur in Sessions Trial No. 13 of 2013 convicting accused-appellants under Sections 302/149 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.5,000/- and in case of default of payment of fine, further to undergo six months imprisonment.
2. Factual scenario as culled out from the record and the judgment of the Court below is that Neelu/ deceased was married to the son of Dev Saran and there was family dispute going on and on the date of incident, the deceased had gone to police station to report a complaint as soon as she returned back, the father-in-law, mother-in-law, sister-in-law and brother-in-law caught hold her and she was set ablez by Gautam (brother-in-law). The deceased was married about 10 years before the incident and according to the F.I.R. husband of the deceased was not present at the home. There was also quarrel between the family regarding partition and Gautam and Subhash used to physically beat her. Dev Saran, father-in-law took her to the hospital, where she was treated from 19.5.2012 and she breath her last on 28.5.2012. After ten days of the incident, a dying declaration was recorded on 20.5.2012 and after one month i.e. on 20.6.2012 a First Information Report was lodged.
3. Investigation was moved into motion. After recording statements of various persons, the investigating officer submitted the charge-sheet against accused-appellants. The learned Chief Judicial Magistrate before whom charge sheet was laid put the same before the learned Sessions Judge. The learned Sessions Judge, on hearing the learned Government Advocate and learned counsel for the accused, framed charges.
4. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 6 witnesses who are as follows:
1Hari Om Mishra PW1 2 Smt. Suman PW2 3 Rohit PW3 4 Dr. Naipal Singh PW4 5 Sudhir Kumar Soni PW5 6 Dhirendra Kumar Singh PW6
5. In support of ocular version following documents were filed:
1F.I.R.
Ex.Ka.10 2 Written Report Ex.Ka.1 3 Dying Declaration Ex. Ka.7 4 Postmortem Report Ex.Ka.2 5 Panchayatnama Ex.Ka.3 6 Charge-sheet Ex.Ka.9 7 Site plan with index Ex.Ka.8
6. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants.
7. Heard learned counsel for accused-appellants, learned A.G.A. for the State and perused the record.
8. It is submitted by learned counsel for accused-appellants that the accused is in jail since long time. The incident occurred on 19.5.2012 at about 8:30 PM (night) and deceased died on 28.5.2012 i.e. after 12 days of the incident. The dying declaration was recorded on 20.5.2012 and it was stated that father-in-law namely, Dev Saran who had admitted the deceased to the hospital. The dying declaration was recorded by Tehsildar and no such dying declaration was given to doctor. Even if we go by the dying declaration, the husband was not present at home and brother-in-law, who is in jail had tried to abuse her. While going through the evidence of the witnesses, evidence of P.W.-1, who is father of the deceased has deposed on oath that when he reached at 8:30 PM his daughter conveyed brief fact to him and he has withstood the cross-examination of P.W.-2.
9. It is very clear that father-in-law did not give anything to the son-in-law of P.W.-1 i.e. husband of the deceased and there was always a dispute regarding room, which was being given to the deceased and her husband.
10. It is next submitted that F.I.R. is delayed and proper reasons were given as that he was looking after his daughter, who had been set her ablezed, therefore he could not lodge F.I.R. The mother of the deceased also deposed that marriage of the deceased was taken place about 10 years before the incident and out of this wedlock there are two children aged about 3 years and four years. The medical evidence and the evidence of witnesses would go to show that it was a homicidal death.
11. Learned counsel for the appellants has vehemently submitted that dying declaration is not worth believing and it is an admitted position of fact that she died out of septicemia.
12. It is further submitted by learned counsel for the appellants that most of the witnesses have turned hostile despite that, learned Sessions Judge has convicted them under Section 302/149 of I.P.C. As far as conviction under Section 147 of IPC is concerned, he has completed the period of incarceration.
13. In support of the his submission, learned counsel for the appellant has relied on Khokan@ Khokhan Vishwas v. State of Chattisgarh, 2021 LawSuit (SC) 80, Banarsi Dass and Others v. State of Haryana, Bhadragiri Venkata Ravi v. Public Prosecutor High Court of A.P., Hyderabad, (2013) 0 Supreme (SC) 511, Surinder Kumar v. State of Haryana, 2011 LawSuit (SC) 1149, Arvind Singh v. State of Bihar, 2001 (3) Supreme 570, Kashmira Devi v. State of Uttarakhand and others, (2020) 11 SCC 343, Smt. Rama Devi v. State of U.P., (2018) 102 ACrC 105, Misri Lal v. State of Uttar Pradesh, (2017) 7 ADJ 14, Sanjay and others v. State of Uttar Pradesh, (2016) 3 SCC 62, Manoj Kumar v. State of U.P., (2019) 1 ADJ 221. In alternative, it is submitted that at the most punishment can be under Section 304 II or Section 304 I of I.P.C. If the Court feels, as the accused have been in jail since long time, they may be granted fixed term punishment of incarceration.
14. Learned A.G.A. for the state has vehemently submitted that facts of this case will not permit the Court to convert the sentence to that under Section 304 Part I of I.P.C. as none of the judgments relied by the accused-appellant will apply to the facts of this case.
15. Learned Judge has categorically relied on the testimony of Dr. Nepal Singh and has opined that she died out of septicemia. There was dying declaration of the deceased where also she had categorically mentioned that the accused had tried to set her ablaze. As the period of incarceration Section 147 of I.P.C. is over, we are not delving into the same. As far as Section 302/149 of IPC is concerned, as per the finding of the learned Sessions Judge, incident happened out of quarrel and death has happened due to septicemia on which heavy reliance has been placed by learned Sessions Judge.
16. 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.
17. 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 302/149 of I.P.C. 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."
18. 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.
19. 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.
20. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused had no intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention to do away with deceased, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind.
21. 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."
22. The decision of the Apex Court in the case of Anversinh v. State of Gujarat, (2021) 3 SCC 12 which was related to kidnapping from legal guardian, wherein it was established that the Court while respecting the concerns of both society and victim, propounded that the twin principle of deterrence and correction would be served by reducing the period of incarceration already undergone by the accused. In our case, this is not that gruesome matter where the accused cannot be dealt with in light of all these judgments. Judgments in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused.
23. All others judgments which were pressed into service by the learned counsel for the appellants are not discussed as that would be repetition of what we have decided.
24. We come to the definite conclusion that the death was due to septicemia. The judgments cited by the learned counsel for the appellants would permit us to uphold our finding which we conclusively hold that the offence is not under Section 302/149 of I.P.C. but is culpable homicide not amounting to murder falling under Section 304(I) I.P.C., sentence of all the accused appellants is reduced to the period they have already undergone. The fine is reduced to Rs.2,000/- each to be paid to the original complainant as compensation within eight weeks from today, failing which further incarceration of three months is ordered. The Jail authority would release the accused-appellants namely, Subhas and Gautam if not wanted in any other offence. The accused-appellants already on bail need not surrender but would deposit the fine within eight weeks from today.
25. Appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith.
26. This Court is thankful to learned Advocates for ably assisting the Court.
(Syed Qamar Hasan Rizvi,J.) (Dr. Kaushal Jayendra Thaker, J.) Order Date :- 11.4.2023 P.S.Parihar