Allahabad High Court
Deepak Kalra vs State Of U.P. on 10 February, 2021
Equivalent citations: AIRONLINE 2021 ALL 278
Bench: Kaushal Jayendra Thaker, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD [A.F.R.] Court No. - 49 Case :- CRIMINAL APPEAL No. - 4437 of 2014 Appellant :- Deepak Kalra Respondent :- State of U.P. Counsel for Appellant :- Santosh Tiwari,Dhiraj Kumar Pandey,Sunil Kumar Mishra Counsel for Respondent :- Govt.Advocate,Rahul Kumar Tripathi Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Gautam Chowdhary,J.
(Per Hon'ble Dr. Kaushal Jayendra Thaker, J.)
1. By way of this appeal, the appellant has challenged the Judgment and order dated 26.9.2014 passed by court of Ist Additional Session Judge, Court No.1, Saharanpur in Sessions Trial No.81 of 2009, State Vs. Deepak Kalra arising out of Case Crime No.615 of 2008 under Sections 302 I.P.C., Police Station Sadar Bazar, District Saharanpur whereby the accused-appellant was convicted under Section 302 of IPC and sentenced to imprisonment for life with fine of Rs.5,000/- and in case of default of payment of fine, to undergo further rigorous imprisonment for two years.
2. The factual data which is culled out from the record is that the accused on 20.9.2008, deceased Pooja was married to Deepak Kumar namely accused-appellant. Deepak had lost lot of money in the business, and, therefore had taken to liquor and used to demand money from his in-law. The accused tired to set his wife ablaze on the date of incident. The deceased had come back to the matrimonial home with her father-in-law who had assured his parents that she would be kept well, but she was set ablaze within two days of returnings by the accused is her dying declaration. They had altercation and quarrel on the said date also is what is stated in her dying declarations, she conveyed in her dying declaration that her mother-in-law, brother-in-law and father-in-law were not responsible for the incident. The brother-in-law had brought her to the hospital. The investigation was conducted and the accused was charge sheeted.
3. The accused was committed to the Court of sessions as it was sessions triable case. Accused being brought before session judge, the learned sessions judge framed charges on 19.3.2009 under Section 302 of IPC.
4. The prosecution so as to bring home the charges examined eleven witnesses, who are as under:-
1Deposition of Sushma Bajaj P.W.1
2.
Deposition of Deepansh P.W.2
3. Deposition of Ashok Kumar P.W.3
4. Deposition of Dr. Naresh Chandra P.W. 4
5. Deposition of Narendra Pal Singh P.W. 5
6. Deposition of Bulaki Ram Verma P.W. 6
7. Deposition of J.K. Tomar P.W.7
8. Deposition of Desh Deepak Singh P.W.8
9. Deposition of Balbir Singh P.W.9
10. Deposition of I.B.P. Mishra D.W.1
11. Deposition of Sanjay Kalra D.W.2
5. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
1F.I.R.
Ext. Ka-2
2.
Written report Ext. Ka-1
3. Dying declaration Ext.Ka-8/22/9
4. Recovery of memo of match box, bottle & cap of cold drink Ext. Ka-20
5. Recovery memo of half shirt Ext. Ka-21
6. Injury report Ext. Ka-6
7. Bed head ticket Ext. Ka-7
8. P.M. Report Ext. Ka-10
9. Panchayatnama Ext. Ka-11
10. Charge-sheet (Mool) Ext. Ka-16
11. Site Plan with Index Ext. Ka-19
6. The minor child Deepansh-PW-2 who is son of accused as well as son of the deceased has deposed that since six months, they were staying with their aunt. The deceased was taken to the matrimonial home , by the grand father according to the child. The minor child has accepted in his testimony that he had conveyed to the maternal aunt that his father and grand father had set his mother ablaze and father had taken her to the hospital. He has withstood the cross examination also.
7. Learned counsel appearing on behalf of accused-appellant has relied on the decisions in Khushal Rao Vs. State of Bombay, AIR 1958 S.C. 22, State of Madhya Pradesh Vs. Ramesh Kumar, 2018 LawSuit(MP)358 and a Division Bench Judgment of this Court in Criminal Appeal No.318 of 2015 (Pramod Kumar Vs. State of U.P.) Decided on 28.2.2019.
8. Learned A.G.A. appearing on behalf of State has contended that this is a case of dowry death. The accused has caused the death of his wife with brutality. It is further submitted that the dying declaration has been rightly believed by the learned Trial Judge. It is further submitted that just because the witnesses have been family members, they have not supported the prosecution in totality and that the dying delcaration goes to show that there is corroboration. The FIR goes to show that the deceased Pooja was staying with her brother. The evidence of the minor has also been properly scrutinized by the learned Judge. Though later on he has not supported the prosecution but in his chief, he has stated that he had conveyed to his aunt-Sushma Bajaj that was his father, who had set her ablaze but father had taken her to the hospital. He has further relied on evidence of the doctor and the police authorities so as to contend that the judgment does not require any interference and has contended that the post mortem report and the examination by doctor shows that the body was having burn injuries except the feet.
9. It is further submitted by learned AGA that the accused should not be dealt with lightly. It is further submitted that incident occurred on 21.9.2008 at 10:30 p.m. The deceased was set ablaze and has submitted that the learned Judge has minutely discussed oral testimony, decision and has convicted the accused.
10. Before we decide to evaluate whether the dying declaration can be acted upon as per the contours laid down by the authoratative pronouncements, we would like to go by the the juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
11. Before we decide to threadbare go through the evidence, we make it clear that we have appreciated the entire evidence on record. We have been taken through the entire evidence most of witnesses who have turned hostile but to certain extent, they have corroborated the dying declaration.
12. The appellant can be said to have caused the homicidal death. The reason being he was the one who has been named in the dying declaration by the deceased and his son has also conveyed to his maternal aunt who has narrated the fact in the FIR. The dying declaration can be said to be trustworthy and it has to be held that dying declaration though is a weak piece of evidence stands on the same footing as any other piece of evidence. The surrounding circumstances go to show that the appellant had inimical relation with his wife. He had started to consume liquor. He used to regularly beat her. Before two days only, his father had brought the deceased to the matrimonial home. The capacity of the deceased to make a dying declaration with 90% burns is of her own. There is no tutoring by any interested person. The evidence on record gets corobotation of PW-2 who is the son of appellant and deceased, who has testified that it was his father who had pourd kerosene on his mother.
13. Learned counsel for the appellant submitted that the accused had not been instrumental in cuasing the death of the deceased. The dying declaration according to the learned counsel, is not fulfilling the contours set by the Supreme Court and the High Court. It is submitted that except PW-1, most of the witnesses have not supported the case of the prosecution. We hold that the accused was the one who had set his wife ablaze. We hold that the contours for accepting or rejecting the dying declaration are met with in the facts of our case and we are convinced that the dying declaration has been properly recorded and is admissible in evidence as it is corroborated by the evidence of the child witness also.
14. 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."
15. 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.
16. 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.
17. If we summarize the evidence of all the witnesses, they have withstood the cross examination and the factum of trustworthy dying declaration corroborated by the testimony of PW-2 son himself against father will also not permit us to brush aside the evidence.
18. The submission of learned counsel for the appellant relying on the decisions in Khushal Rao ( supra) would, on the contrary, go against the appellant and the decision in State of Madhya Pradesh ( supra) is also against appellant.
19. In our case, the decision of State of Madhya Pradesh ( supra) will not aid the appellant, reason being here this is a case of conviction wherein State of Madhya Pradesh it was appeal against acquital. The judgment of this High Court in Pramod Kumar Vs. State of U.P. also will not help the appellant. The conviction has been based on circumstances which are attendant to the dying declaration. The said decision in Pramod Kumar Vs. State of U.P. also laid down that the dying declaration was truthful. Similar is the case here. Reliance can be placed on the recent decision of this Bench in the case of Criminal Appeal No.- 4702 of 2012 (Ashiq Ali and Another Versus State of U.P.) decided on 10.2.2021 and this vexatious question as to whether the offence with such gravity would fall within the provisions of Section 300 or 304 I.P.Code. The decision in Pramod Kumar (supra) and the decision in the case of Ashiq Ali and another (supra) will permit us to hold that accused be punished for Section 304 Part -I of IPC as it appers that due to being addicted to liquor and being in depression due to loss of business, there was a quarrel between him and his wife. He and his wife had a heated discussion. The judgment of this Court is pressed into service by the learned counsel which is applicable to the facts of this case. Statement recorded under Section 313 Cr.P.C. shows that he had felt really sorry about the incident. He has children ( second daughter) whom he will have to maintain and he has been in jail for a period of over 10 years.
20. We substitute the life imprisonment to 10 years rigorous imprisonment. Fine is reduced to Rs.1,000/- and the sentence is reduced to three months.
21. Appeal is partly allowed. If the accused is not wanted in any other case, he be set free.
22. Record and proceedings be sent back to the Court below forthwith.
Order Date:10.2.2021 Mukesh