# Amar Dayal v. State of U.P

- **Citation:** (2021) 11 ILRA 51
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-13
- **Case number:** Criminal Appeal No. 1197 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-dayal-v-state-of-u-p-46595
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Section 302-challenge to-conviction- the
appellant had inimical relation with his wife as
he had illicit relationship with some other
women-He
used
to
regularly
beat
her-
appellant poured kerosene oil and set her
ablazed-she was 50% burnt and after 11 days
she was succumbed to injuries-cause of death
was found to be septicemia-death of deceased
was a homicidal death-Five witnesses turned
hostile-death caused by the accused was not
premeditated-the
injuries
were
though
sufficient in the ordinary course of nature to
have caused death-Hence, the conviction of the
appellant u/s 302 IPC is converted into
conviction u/s 304 (Part-I) IPC.(Para 1 to 38)

B. Dying declaration can be acted upon as per
the contours laid down by the authoritative
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
52 INDIAN LAW REPORTS ALLAHABAD SERIES
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. (Para 18 to
29)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

11 All. Amar Dayal Vs. State of U.P.
51

17. In view of the above therefore, I do not
find any ground to give benefit to the applicants
on the basis of parity either.

18. Furthermore, the issue of admissibility
is always related to the words and expression "in
accordance with law" and so what is legally not
sustainable can also not be legally admissible
and therefore, when the Court directs for
payment of salary or pension, saying as
admissible, meaning thereby it has to be in
accordance with law. When the Court refers to
the words and expression "class of pensioners",
it means class of pensioners with admissibility
of pension, as commensurate to their pay scale
and emoluments lastly drawn, otherwise every
pensioner would stand entitled to a consolidated
pension at par ignoring the years of qualifying
service and the benefits drawn of promotional
pay scale or Acquired Career Progression
scheme respectively. This Court, therefore, finds
that neither opposite parties have acted in
violation of either the mandate contained in the
order of the writ Court, non compliance of
which is complained of, nor the petitionersapplicants' claim could be justified on the
principles governing conferment of benefits of
pension.

19. In view of the above, I find that the
order of revised pension dated 03.08.2019 and
03.09.2019 passed by the Registrar (Accounts),
High Court of Judicature at Allahabad and the
order passed by the Treasury Officer, Prayagraj
dated 13.09.2019 fully comply the order of writ
Court in its letter and spirit. Thus, no cause
survives for the applicants to maintain this
contempt application any further.

20. Contempt application is accordingly
consigned to record.

21. Notices issued, if any, stand
discharged.
----------
(2021)11ILR A51
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 1197 of 2020

Amar Dayal ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Laxmi Narayan Rathour, Sri Akhilesh Kumar
Khare, Sri Noor Muhammad, Sri Yogesh Kumar
Srivastava

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Section 302-challenge to-conviction- the
appellant had inimical relation with his wife as
he had illicit relationship with some other
women-He
used
to
regularly
beat
her-
appellant poured kerosene oil and set her
ablazed-she was 50% burnt and after 11 days
she was succumbed to injuries-cause of death
was found to be septicemia-death of deceased
was a homicidal death-Five witnesses turned
hostile-death caused by the accused was not
premeditated-the
injuries
were
though
sufficient in the ordinary course of nature to
have caused death-Hence, the conviction of the
appellant u/s 302 IPC is converted into
conviction u/s 304 (Part-I) IPC.(Para 1 to 38)

B. Dying declaration can be acted upon as per
the contours laid down by the authoritative
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
52 INDIAN LAW REPORTS ALLAHABAD SERIES
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. (Para 18 to
29)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Maniben Vs St. of Guj. (2009) Lawsuit SC 1380

2. Koli Lakhmanbhai Chandabhai Vs St. of Guj. (1999)
8 SCC 624

3. Ramesh Harijan Vs St. of U.P. (2012) 5 SCC 777

4. St. of U.P. Vs. Ramesh Prasad Misra & anr. (1996)
AIR SC 2766

5. Lakhan Vs St. of M.P. (2010) 8 SCC 514

6. Krishan Vs St. of Har. (2013) 3 SCC 280

7. Ramilaben Hasmukhbhai Khristi Vs. St. of
Guj.(2002) 7 SCC 56

8. St. of U.P. Vs. Mohd. Iqram & anr..(2011) 8 SCC 80

9. Bengai Mandal @ Begai Mandal Vs St. of
Bih.(2010) 2 SCC 91

10. Maniben Vs. St. of Guj. (2009) 8 SCC 796

11. Chirra Shivraj Vs St. of A.P. (2010) 14 SCC 444

12. Gautam Manubhai Makwana Vs St. of Guj. CRLA
NO. 83 of 2008

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred against
the judgment and order dated 7.1.2020, passed
by the learned Additional Sessions Judge, Court
No.5, Jhansi, in Session Trail No.55 of 2016
State of UP vs. Amar Dayal Sahu arising out of
Case Crime No.202 of 2015 under Section 302
IPC, Police Station-Lahchura, District-Jhansi,
whereby the appelant is convicted and sentenced
for the offence under Section 302 IPC for life
imprisonment with a fine of Rs.60,000/- and in
defalut of payment of fine, further imprisonemnt
for one year.

2. The brief facts of the case are that first
information report of this case was registered on
the basis of application moved by complainant,
father of the deceased, through the application
under Section 156 (3) Cr.P.C. in which it is
stated that complainant's daughter, namely,
Jaikali got married with accused Amar Dayal
Sahu about 7-8 years before the occurrence.
They had two children. Amar Dayal Sahu had
illicit relationship with one Kiran Sahu, which
was bone of contention between husband and
wife and the accused always got support of his
family members. All of them were harrassing his
daughter and were giving life-threats. His
daughter used to disclose all that matter with
him, his wife and relatives. He tried to convince
the accused so many times, but accused and his
family members did not mend the ways. On
12.5.2015, his daughter Jaikali was in her
matrimonial home then mobile phone of accused
was rang up, which was took up by his daughter.
Accused snatched his mobile from her and
abused and gave beating to his daughter. He
locked her in the room and in the morning at
about 5:00 a.m., on 13.5.2015 accused Amar
Dayal Sahu with the help of his family members
poured kerosene oil on his daughter and set her
on fire with the intention to kill her.
Consequently his daughter sustained serious
burn injuries. She was admitted in hospital and
during treatment on 24.5.2015, she succumbed
to injuries.
11 All. Amar Dayal Vs. State of U.P.
53

3. On the basis of above application
under Section 156 (3) Cr.P.C., a Case Crime
No.202 of 2015 was registered under Section
302 IPC at Police Station-Lahchura, DistrictJhansi.
SI
Sundar
Lal
took
up
the
investigation.
During
the
coruse
of
investigation, he recorded the statements of
witnesses, prepared site-plan. Victim's dying
declaration was recorded by Priti Jain-Nayab
Tehsildar. After the death of the victim,
inquest report was prepared and dead body
was sent for post mortem. Dr. S.N. Kanchan
conducted the postmortem and prepared
report. After completing the investigation,
Investigating Officer submitted charge-sheet
against the appellant Amar Dayal Singh under
Sections 302, 323, 504, 506 IPC. The case
being triable exclusively by the court of
session,
was
committed
by
competent
Magistrate to the court of session. Learned
Trail Court framed charges against the
appellant under Section 302 IPC. Accused
denied the charge and claimed to be tried.

4.

Prosecution
examined
following
witnesses:

1.
Har Prasad
PW1
2.
Pukhan
PW2
3.
Dr. SN Kanchan
PW3
4.
Sundar Lal
PW4
5.
Chandrabhan Dubey
PW5
6.
SI Sanjeev Kumar
PW6
7.
Jitendra Sahu
PW7
8.
Pradeep Sahu
PW8
9.
Laxmi Prasad
PW9
10.
Dr. Mahendra Pal Singh
PW10
11.
Priti Jain
PW11

5. Apart from aforesaid witnesses,
prosecution submitted following documentary
evidence, which was proved by leading the
evidence:

1. Application U/S 156 (3)
Cr.P.C.
Ex.ka1
2.
Inquest Report
Ex.ka2
3.
Postmortem Report
Ex.ka3
4.
First Information Report Ex.ka4
5.
Site-Plan
Ex.ka5
6.
Charge-Sheet
Ex.ka6
7.
General Diary
Ex.ka7
8.
Dying-Declaration
Ex.ka8

6. Deceased was hospitalised just after the
occurrence took place and she died after about
11 days of the incident. In the meantime, she
remained under treatment, continuously. Her
medical papers were also filed by prosecution,
which are on record.

7. Heard Mr.Noor Mohammad, learned
counsel for the appelalnt, Shri Vikas Goswami,
learned AGA appearing on behalf of the State
and perused the record.

8. Learned counsel for the appelant argued
in the very beginning that in this case no
prosecution
witness
has
supported
the
prosecution case and all the witnesses of fact
have turned hostile. Learned Counsel submitted
that Harprasad (PW1) is complainant and father
of the deceased, but in his statement before
learned trial court, he did not support the
prosecution story. He was cross-examined by
prosecutor, but nothing was extracted in his
cross-examination
agaisnt
the
accused.
Similarly, Pukhan (PW2) was examined who
was the mother of the deceased. She also did not
support the prosecution case. Apart from PW1
and PW2, Jitendra Sahu (PW7), Pradip Sahu
(PW8) and Laxmi Prasad (PW9) were also
examined. Jitendra Sahu (PW7) and Laxmi
Prasad (PW9) are relative of the deceased while
Pradip Sahu (PW8) is brother of the deceased.
54 INDIAN LAW REPORTS ALLAHABAD SERIES
All these witnesses also did not support the
prosecution version and they were also declared
hostile. On the basis of analysis of all the five
witnesses of fact, no guilt against accused
appellant is established.

9. Learned counsel for the appellant next
submitted that dying declaration of deceased
was recorded when she was surviving, but this
dying declaration has no corroboration with any
prosecution evidecne. All the witnesses of fact
have turned hostile and nobody supported the
version which is mentioned in dying delcaration.
Therefore, learned trial court committed grave
error by convicting the accused on the basis of
dying declaration only when it was not
corroborated at all.

10. Learned counsel for the appellant
additionally submitted that if, for the sake of
arugment, it is assumed that appellant has
committed the offence, in that case also no
offence under Section 302 IPC is made out.
Maximum this case can travel up to the limits of
offence under Section 304 IPC because the
deceased died after 11 days of the occurrence
due to developing the infection in her burnwounds, i.e., septicemia. As per catena of
judgments of Hon'ble Apex Court and this Court,
offence cannot travel beyond section 304 IPC, in
case the death occurred due to septicimia.
Learned counsel for the appellant also submitted
that postmortem report also shows that cause of
death was septicimia. Learned counsel relied on
the judgment in the case of Maniben vs. State of
Gujarat [2009 Lawsuit SC 1380], and the
judgment in Criminal Appeal Nos.1438 of 2010
and 1439 of 2010 dated 7.10.2017 and judgment
of Criminal Appeal No.2558 of 2011 delivered
on 1.2.2021 by this Court and several other
judgments.

11. No other point or argument was raised
by learned cousel for the appellant and confined
his arguments on above points only.

12. Learned AGA, per contra, vehemently
opposed the arguments placed by counsel for the
appellant and submitted that conviction of
accused can be based only on the basis of dying
declaration, if it is wholly reliable. It requires no
corroboration. Moreover, testimony of hostile
witnesses can also be relied on to the extent it
supports the prosecution case. Learned trial
court has righty convited the appellant under
Section 302 IPC and sentenced accordingly.
There is no force in this appeal and the same
may be dismissed.

13. First of all, learned counsel for the
appellant has raised the issue relating to the
hostality of witnesses. Five witnesses of fact
were examined before learned trial court,
namely Harprasad, complainant and father of the
deceased (PW1), Pukhan, mother of the
deceased (PW2), Jitendra Sahu, relative (PW7)
and Laxmi Prasad, relative (PW9) and Pradip
Sahyu (PW8), brother. All these witnesses have
turned hostile, but the testimony of hostile
witnesses cannot be thrown away just on the
basis of the fact that they have not supported the
prosecution case and were cross-examined by
the prosecutor. The testimony of the hostile
witnesses can be relied upon to the extent it
supports the prosecution case. Needless to say
that the testimony of hostile witnesses should be
scrutinized meticulously and very cautiously.

14.

Hon'ble
Apex
Court
in
Koli
Lakhmanbhai Chandabhai vs. State of Gujarat
[1999 (8) SCC 624], as held that evidence of
hostile witness can be relied upon to the extent it
supports the version of prosecution and it is not
necessary that it should be relied upon or
rejected as a whole. It is settled law that
evidence of hostile witness also can be relied
upon to the extent to which it supports the
prosecution version. Evidence of such witness
cannot be treated as washed off the record. It
remains admissible in the trial and there is no
legal bar to base his conviction upon his
11 All. Amar Dayal Vs. State of U.P.
55
testimony if corroborated by other reliable
evidence.

15. In Ramesh Harijan vs. State of U.P.
[2012 (5) SCC 777], the Hon'ble Apex Court has
also held that it is settled legal position that the
evidence of a prosecution witness cannot be
rejected in toto merely because the prosecution
chose to treat him as hostile and cross-examined
him. The evidence of such witness cannot be
treated as effaced or washed off the record
altogether.

16. In State of U.P. vs. Ramesh Prasad
Misra and another [1996 AIR (Supreme Court)
2766], the Hon'ble Apex Court held that
evidence of a hostile witnesses would not be
totally rejected if spoken in favour of the
prosecution or the accused but required to be
subjected to close scrutiny and that portion of
the evidence which is consistent with the case of
the prosecution or defence can be relied upon.
Thus, the law can be summarized to the effect
that evidence of a hostile witness cannot be
discarded as a whole, and relevant part thereof,
which are admissible in law, can be used by
prosecution or the defence.

17. Perusal of impugned judgment shows
that learned trail court has scrutinised the
evidence on record very carefully.

18. As far as the dying declaration is
concerned, it was recroded by Priti Jain, Nayab
Tehsildar, who was examined as PW11. Dying
declaration as recorded by PW11 after obtaining
the certificate of mental-fitness from Dr.
Mahendra Pal Singh, who was examined as
PW10. After completion of dying delaration also
the said docter has given certificate that during
the course of statement, the victim remained
conscious.

19. 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 male 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.

20. 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.

21. Deceased survived for 11 days after the
incident took place. Her dying declaration was
56 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded by Priti Jain Nayab Tehsildar and
doctor Mahendra Pal Singh appended certificate
of mental health of the victim before and after
making of dying declaration, which is proved as
Ex.ka8. Both the above witnesses PW10 and
PW11 are absolutely independent witnesses. In
the wake of aforesaid judgments of Lakhan
(supra), dying declaraion cannot be disbelived, if
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.

22. 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.

23. From the above case laws, 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.

24. In dying delcaration of deceased
(Ex.ka8), it is also important to note that it was
recorded on 20.5.2015 and the deceased died on
24.5.2015 while the incident took place on
13.5.2015. It means that she remained alive for 4
days after making dying declaration. Therefore,
truthfulness of dying declaration can further be
evalated from the fact that she survived for 4
days after making it from which it can
reasonably be inferred that she was in a fit
condition to make the statment at the relevant
time. Moreover, in the dying declaration, the
deceased did not unnecessarily involved the
other family members of the accused appellant.
She only attributed the role of burning to her
husband.

25. In such a situation, the hostality of
witnesses of fact cannot demolish the value and
reliability of the dying declaration of the
deceased, which has been proved by prosecution
in accordance with law and is a truthful version
11 All. Amar Dayal Vs. State of U.P.
57
of the event that occurred and the circumstances
leading to her death.

26. As already noticed, none of the
witnesses or the authorities involved in
recording the dying declaration had turned
hostile. On the 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-8 and convicting the
accused-appellant on the basis of it.

27. Now we come to the point of argument
raised by learned counsel for the appellant that
deceased died due to septicimia, hence this case
falls within the ambit of Section 304 IPC and
not under Section 302 IPC. In this regard,
learned counsel has submitted that deceased died
after 11 days of incident due to the poisonous
infection developed in her burn injuries, whcih
could be avoided by good treatment. There was
no intention of the appellant to cause the death
of his wife.

28. In order to appreciate the rival
contentions advanced by the parties and issues
involved, it would be necessary to mention by us
that incidence of this case took place on
13.5.2015 when the appellant poured kerosene
oil on the body of the deceased and set her
ablazed. She was admitted in Medical College,
Jhansi, on 13.5.2015 and discharged on
15.5.2015 as suggested by medical papers on
record. Doctor has written that she was having
50% burn. Medical papers also show that she
was again hospitalized in the same hospital on
19.5.2015 where she succumbed to the injuries
on 24.5.2015. In postmortem report, cause of
death was found to be septicimia. Hence, there is
no doubt that deceaced died due to septicimia
and it is very relevant fact that after first
hospitalization the deceased was discahrged
after 2 days and again she was hospitalized after
4 days of discharge where she died after 5 days
of her second admission.

29. The finding of fact regarding the
presence of witnesses at the place of occurrence
cannot be faulted with. Death of deceased was a
homicidal death. The fact that it was a homicidal
death takes this Court to most vexed question
whether it would fall within the four-corners of
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 IPC. Accused is in
jail for the last more than 14 years.

30. 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 broughtforth 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."

31. In Bengai Mandal alias Begai Mandal
vs. State of Bihar [(2010) 2 SCC 91], incident
occurred on 14.7.1996, while the deceased died
58 INDIAN LAW REPORTS ALLAHABAD SERIES
on 10.8.1996 due to septicemia caused by burn
injuries. The accused was convicted and
sentenced for life imprsonment 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 twentysix days of the incident as a result of septicemia
and not as a consequence of burn injuries and,
accordingly, sentenced for seven years' rigorous
imprisonment.

32. 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 septicemia, which was
the main cause of death of the deceased. Trialcourt convicted the accused under Section 304
Part-II IPC and sentenced for five years'
imprisonment, but in appeal, High Court
convicted the appellant 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.

33. In Chirra Shivraj vs. State of Andhra
Pradesh [(2010) 14 SCC 444], incident took
place on 21.4.1999. Deceased died on 1.8.1999.
As per the prosecution version, kerosene oil was
poured upon the deceased, who succumbed to
the injuries. Cause of death was septicemia.
Accused was convicted under Section 304 PartII IPC and sentenced for five years' simple
imprisonment, which was confirmed by the High
Court. Hon'ble The Apex Court dismissed the
appeal holding that the deceased suffered from
septicemia, which was caused due to burninjuries and as a result thereof, she expired on
1.8.1999.

34. 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,
11 All. Amar Dayal Vs. State of U.P.
59
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.

35. On the overall scrutiny of the facts and
circumstances of the case coupled with medical
evidence and the opinion of the Medical Officer
and considering the principle laid down by the
Courts in above referred case laws, we are of the
considered opinion that in the case at hand, the
offence would be punishable under Section 304
(Part-I) IPC.

36. From the upshot of the aforesaid
discussions it appears that the death caused by
the accused was not pre-meditated. Accused had
no intention to cause the death of the 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 IPC, offence
committed will fall under Section 304 (Part-I)
IPC.
60 INDIAN LAW REPORTS ALLAHABAD SERIES

37. In view of the aforesaid discussion, we
are of the view that appeal has to be partly
allowed. The conviction of the appellant under
Section 302 IPC is converted into conviction
under Section 304 (Part-I) IPC and the appellant
is sentenced to undergo seven years of
incarceration with fine of Rs. 10,000/- and in
case of default of payment of fine, the appellant
shall further undergo simple imprisonment for 1
year.

38. Accordingly, the appeal is partly
allowed.
----------
(2021)11ILR A60
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.10.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 1673 of 2013

Ramesh @ Baba ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.N. Verma

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code, 1860
- Sections 363, 376-challenge to-convictionmodification of sentence-6 year old child was
missing-several abrasion found on the face of
the victim, injuries were found on private part
and blood was oozing out-in her statement she
supported
prosecution
version,
victim
identified the accused, doctor (PW3) examined
and he stated that the victim was very serious
and remained hospitalized for 10 days-other
witnesses also supported the prosecution
version-accused
awarded
life
time
imprisonment-appellant is in jail for last 10
years-keeping
in
view
the
facts
and
circumstances
and
reformative
theory
of
punishment is adopted and converting the life
imprisonment into the sentence of a period of
14 years R.I.-The appeal is partly allowed with
modification of sentence.(Para 1 to 22)

B. While considering imposition of appropriate
punishment, the impact of crime on the society
as a whole and rule of law needs to be
balanced. the judicial trend in the country has
been towards striking a balance between
reform and punishment. the protection of
society and stamping out criminal proclivity
must be the object of law which can be
achieved by imposing appropriate sentence on
criminals and wrongdoers. (Para 15)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Mohd. Giasuddin Vs St. of A.P. (1977) AIR SC 1926

2. Deo Narain Mandal Vs St. of U.P. (2004) 7 SCC 257

3. Ravada Sasikala Vs. St. of A.P. (2017) AIR SC 1166

4. Jameel Vs. St. of U.P. (2010) 12 SCC 532

5. Guru Basavraj Vs. St. of Karnatak (2012) 8 SCC
734

6. Sumer Singh Vs. Surajbhan Singh (2014) 7 SCC
323

7. St. of Punj. Vs. Bawa Singh (2015) 3 SCC 441

8. Raj Bala Vs. St. of Har.(2016) 1 SCC 463

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred against
the judgment and order dated 27.02.2013 passed
by Additional Sessions Judge, Court No.6,
Ramabai Nagar in Session Trial No.477 of 2011
arising out of Case Crime No.155 of 2011, under
Sections 363 and 376 IPC, Police Station-
Sikandra, District- Ramabai Nagar, whereby the