# Ashok v. State of U.P

- **Citation:** (2022) 10 ILRA 229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-20
- **Case number:** Criminal Appeal No. 3950 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-v-state-of-u-p-47709
- **Pages:** 11

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 302-Challenge
to-Conviction- dying declaration-deceased
died due to septicemia caused by burn
injuries-Four witnesses turned hostileWitnesses involved in recording the dying
declaration
fully
supported
the
prosecution case-role of appellant is clear
from the dying declaration and other
evidences--Hence, Learned trial court has
committed no error on acting on the sole
basis of dying declaration-The case falls
within the ambit of Section 304 IPC and
not
under Section 302
IPC
as
the
deceased died after 14 days of incident
due to the poisonous infection developed
in her burn injuries-Thus, The conviction
of appellant u/s 302 IPC is converted into
section 304 (Part -I) IPC.(Para 1 to 40)

B. The testimony of hostile witnesses can
be relied upon to the extent it supports
the prosecution case. 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.(Para 15 to 17)

C. 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, it can be the sole basis
for recording conviction. In such an
eventuality no corroboration is required.
(Para 20 to 25)
230 INDIAN LAW REPORTS ALLAHABAD SERIES
The appeals are partly allowed. (E-6)

List of Cases cited:

## Text

10 All. Ashok Vs. State of U.P.
229
conviction recorded by the trial court is
on the face erroneous and perverse and
the same cannot be sustained in the eye of
law. Therefore, the judgment and order of
conviction dated 31.10.1984 passed by IV
Additional Sessions Judge, Ghazipur, in
Session Trial No.37 of 1984, State Vs.
Girish Singh, arising out of Case Crime
No.76 of 1983, under Section 302 I.P.C.,
Police
Station-
Khanpur,
District-
Ghazipur, is hereby set aside. Accusedappellant is acquitted of charge as above.
Accordingly,
the
instant
appeal
is
allowed.

36. In this case, the accused-appellant
is already on bail. He need not surrender in
this case. His bail bonds cancelled and
sureties discharged. However, he shall
furnish surety bonds in compliance with
Section 437A Cr.P.C.

37. Let a copy of this judgment/order
be certified to the court concerned for
necessary information and follow up
action.
----------
(2022) 10 ILRA 229
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 3950 of 2016
with
Criminal Appeal No. 4177 of 2016

Ashok ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Shri Ram Rawat, Sri Ajay Kumar, Sri Giri
Ram Rawat, Sri Pradeep Chauhan, Sri
Rakesh Kumar Verma, Sri Ram Jatan Yadav,
Sadhna Rani, Sri Anil Kumar Srivastava

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 302-Challenge
to-Conviction- dying declaration-deceased
died due to septicemia caused by burn
injuries-Four witnesses turned hostileWitnesses involved in recording the dying
declaration
fully
supported
the
prosecution case-role of appellant is clear
from the dying declaration and other
evidences--Hence, Learned trial court has
committed no error on acting on the sole
basis of dying declaration-The case falls
within the ambit of Section 304 IPC and
not
under Section 302
IPC
as
the
deceased died after 14 days of incident
due to the poisonous infection developed
in her burn injuries-Thus, The conviction
of appellant u/s 302 IPC is converted into
section 304 (Part -I) IPC.(Para 1 to 40)

B. The testimony of hostile witnesses can
be relied upon to the extent it supports
the prosecution case. 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.(Para 15 to 17)

C. 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, it can be the sole basis
for recording conviction. In such an
eventuality no corroboration is required.
(Para 20 to 25)
230 INDIAN LAW REPORTS ALLAHABAD SERIES
The appeals are 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.
(2012) 7 SCC 56

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

9. Bengai Mandal @ Begal 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 Dr. Kaushal
Jayendra Thaker, J.
&
Hon'ble Nalin Kumar Srivastava, J.)

1. These Criminal Appeals have been
directed against the judgment and order
dated 28.7.2016 passed by the Additional
Sessions Judge/ Fast Track Court No.1,
Agra in Sessions Trial No. 525 of 2013
(Case Crime No. 19 of 2013), P.S. Kheda
Rathaur, District Agra convicting and
sentencing the appellants under Section 302
I.P.C. for life imprisonment and a fine of
Rs. 25,000/- each with stipulation of
default clause.

2. Brief facts, as culled out from the
record, are that a First Information Report
was lodged by the informant, Ram Kishun
son of Shri Ram Ratan, resident of Nagla
Behari, Police Station Etmaddaula, Agra, at
Police Station Khera Rathaur, District Agra
with the averments that marriage of her
daughter, Smt. Rima Devi, was solemnized
with Nathu Ram son of Pahalwan Singh,
resident of Nadgawan Mod, District Khera
Rathour, on 12.3.2007 according to hindu
rites and rituals in which the informant had
given sufficient dowry but the in-laws of
her daughter, namely, Nathu Ram husband,
Pahalwan Singh, father-in-law, Harpyari,
mother-in-law, Ashok Kumar, Jeth, Geeta
Devi, Jethani, Smt. Chhoti Devi, Nanad,
were not happy with the same. They started
torturing her daughter mentally as well as
physically for demand of Rs.1,00,000/-
cash and a motorcycle as additional dowry.
Despite the Panchayat many times, they
kept demanding additional dowry again and
again.
On
16.2.2013,
with
common
intention, all the aforesaid members set her
ablaze by pouring kerosene oil. Information
about the occurrence was not given to the
informant by the in-laws, rather same was
given to him by the villagers next day.
When the informant, alongwith many
people
of
the
village,
reached
the
matrimonial house of her daughter, he was
informed that her daughter was admitted in
Yashwant Hospital in an injured condition.
Thereafter, for better treatment, informant
got her hospitalized in Akash Hospital,
Ram Bagh, Agra, where her condition was
critical. She was 80% burnt. Since
informant was busy with her treatment, he
could not give information about the
occurrence to the police.
10 All. Ashok Vs. State of U.P.
231

3. On 17.2.2013, dying declaration of
the victim (Ext. ka-2) was recorded by the
Additional City Magistrate -III, Agra. She
also took her thumb impression over the
same. Victim was conscious at the time of
statement.

4. On the basis of the written report
(Ext. ka-1), chik First Information Report
(Ext. Ka-12) was registered at Police
Station concerned on 27.2.2013 at 15.20
p.m.
against
Nathu
Ram
(husband),
Pahalwan
Singh
(father-in-law),
Smt.
Harpyari (mother-in-law), Ashok Kumar
(Jeth), Geeta Devi (Jethani), Smt. Chhoti
Devi (Nanad) at case crime no. 19 of 2013
under Sections 326, 498-A IPC and 3⁄4
Dowry Prohibition Act.

4. Matter was being investigated by
the Station House Officer of the concerned
Police Station but during investigation
victim died on 2.3.2013, hence, Section
304-B was added and investigation was
entrusted
to
Circle
Officer
Ratnesh
Chaturvedi. During course of investigation,
the Investigating Officer recorded the
statement of witnesses, prepared site plan,
inquest report was prepared and post
mortem was performed. After making
thorough investigation, charge sheet was
submitted against the accused appellants.
The learned Magistrate summoned the
accused and committed the case to Court of
Sessions, as prima facie charges were for
the sessions triable offences.

6. The charges framed were under
Section 498-A, 304B of IPC and Section 4
of D.P. Act. In alternative, charge under
Section 302 IPC read with Section 34 of
IPC was also framed. The accused-persons
pleaded not guilty and wanted to be tried.
Trial started and in support of it case,
prosecution examined 11 witnesses, who
are as follows:

1
Kishan

PW-1 (uncle of the deceased)
2
Ram
Kishan

PW-2
(informant)
(father
of
deceased)
3
Kishan
Devi

PW-3 (mother of deceased)
4
Sharda
Devi

PW-4 (aunt of deceased)
5
Smt. Rekha S.
Chauhan

PW-5 (City Magistrate, Agra, who
recorded the dying declaration of
deceased)
6
Atul
Singh

PW-6 (witness of inquest)
7
Dr.
Amitabh
Chauhan

PW-7 (performed the post mortem
of the deceased)
8
Ratnesh
Chaturvedi

PW-8 (Investigating Officer, IInd)
9
Jaswant
Mohal

PW-9 (Investigating Officer, Ist)
10
Dr.
Surendra
Singh

PW-10 (who endorsed certificate
over dying declaration)
11
S.I. Vijay Pal

PW-11 (scribe of the F.I.R.)

7. In support of oral version,
following documents were filed and proved
on behalf of the prosecution:

1
Written
report

Ext. A-1
2
Dying Declaration Ext. A-2
3
Inquest Report
Ext. A-3
4
Letter to C.M.O.
Ext. A-6
5
Letter to R.I.
Ext. A-4
6
Challan Nash
Ext. A-5
232 INDIAN LAW REPORTS ALLAHABAD SERIES
7
Photo Nash
Ext. A-7
8
Post
Mortem
Report
Ext. A-8
9
Charge Sheet
Ext. A-9
10
Site
Plan
of
residence
of
deceased
Ext. A-10
11
Memo of recovery
of
the
articles
taken
from
the
spot
Ext. A-11
12
Chik F.I.R.
Ext. A-12
13
G.D. Entry
Ext. A-13

8. Deceased was hospitalised after the
occurrence by her in-laws themselves. She
died after 14 days of the occurrence during
the course of treatment.

9. Heard Shri Anil Kumar Srivastava,
Advocate holding brief for Shri Rakesh
Kumar Verma, learned counsel for the
appellants in both matters and Shri N.K.
Srivastava, learned AGA for the State in
Criminal Appeal No. 3950 of 20116 and
Shri Vikas Goswami, learned AGA in
Criminal Appeal No. 4177 of 2016.

10. Learned counsel for the appellants
submitted that accused persons have been
falsely implicated in this case. They have
not committed the present offence. It is
further submitted by learned counsel that
all the witnesses of fact have turned hostile.
PW-1 is uncle of the deceased. He has not
supported
the
prosecution
case
and
declared hostile. PW-2 informant is father
of the deceased. Though he supported the
prosecution case in examination in-chief
yet in the cross-examination he did not
support the case of prosecution. He has also
denied the demand of any amount or any
sort of torturing her daughter by the
accused persons. PW-3 is the mother of the
deceased. She has not supported the
prosecution version. PW-4 is also a witness
of fact and has turned hostile. All these
witnesses
have
not
supported
the
prosecution version and on the basis of
analysis of their evidence, no guilt against
the accused appellants is established and
proved.

11. Learned counsel for the appellants
next submitted that dying-declaration of the
deceased was recorded when she was
surviving, but this dying-declaration has no
corroboration
with
any
prosecution
evidence. All the witnesses of fact have
turned hostile and nobody supported the
version, which is mentioned in dyingdeclaration. 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.

12. Learned counsel for the appellants
additionally submitted that if, for the sake
of argument, it is assumed that appellants
have 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 14
days of the occurrence due to developing
the infection in her burn-wounds, i.e.,
septicaemia. 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 septicaemia.
Learned counsel for the appellants also
submitted that autopsy report also shows
that cause of death was septicaemia as a
result of ante mortem burn injuries.
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
10 All. Ashok Vs. State of U.P.
233
2011 delivered on 1.2.2021 by this Court
and several other judgments.

13. No other point or argument was
raised by the learned counsel for the
appellants and confined his arguments on
above points only.

14. Learned AGA, per contra,
vehemently opposed the arguments placed
by counsel for the appellants 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 rightly convicted the
appellants under Section 302 IPC and
sentenced accordingly. There is no merit in
the appeals and the same may be dismissed.

15. First of all learned counsel for the
appellants has raised the issue relating to
the hostility of the witnessess. Four
witnesses of the fact, namely, PW-1
Kishan, PW-2 Ram Kishan, PW-3 Kishan
Devi
and
PW-4 Sharda
Devi
were
examined before learned trial court. 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 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.

16. 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
testimony
if
corroborated by other reliable evidence.

17. 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.

18. 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
defense.

19. Perusal of impugned judgment
shows
that
learned
trial
court
has
scrutinised the evidence on record very
carefully.
234 INDIAN LAW REPORTS ALLAHABAD SERIES

20. As far as the dying-declaration is
concerned, it was recorded by Smt. Rekha
S. Chauhan, Additional City Magistrate-III,
Agra, who was examined as PW-5. Dyingdeclaration was recorded by her after
obtaining the certificate of mental-fitness
from
doctor
in
the
hospital.
After
completion of dying-declaration also the
said doctor has given certificate that during
the course of statement, the victim
remained conscious.

21. Learned counsel for the appellants
has argued that dying declaration is
doubtful and not corroborated by witnesses
of fact, hence, it cannot be the sole basis of
conviction.
Legal
position
of
dying
declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored, made voluntarily and is wholly
reliable. In this regard, Hon'ble Apex Court
has summarized the law regarding dying
declaration in Lakhan vs. State of Madhya
Pradesh [(2010) 8 Supreme Court Cases
514], in this case, Hon'ble Apex Court held
that the doctrine of dying declaration is
enshrined in the legal maxim nemo
moriturus
praesumitur
mentire,
which
means, "a man will not meet his Maker
with a lie in his mouth". The doctrine of
dying declaration is enshrined in Section 32
of Evidence Act, 1872, as an exception to
the general rule contained in Section 60 of
Evidence Act, which provides that oral
evidence in all cases must be 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.

22. 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.

23. Deceased survived for 14 days
after the incident took place. Her dying
declaration was recorded by Smt. Rekha S.
Chauhan, Additional City Magistrate, Agra
after obtaining the certificate of medical
fitness from the concerned doctor. This
dying declaration was proved by her. This
witness is absolutely an independent
witness and has no grudge or enmity to the
convicts at all. In the wake of aforesaid
judgment
of
Lakhan
(supra),
dying
declaration cannot be disbelieved, 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
10 All. Ashok Vs. State of U.P.
235
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.

24. 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.

25. 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.

26. In dying declaration of deceased
(Ex.ka-2), it is also important to note that it
was recorded on 17.2.2013 and the
deceased died on 2.3.2013 while the
incident took place on 16.2.2013. It means
that she remained alive for 13 days after
making
dying
declaration.
Therefore,
truthfulness of dying declaration can
further be evaluated from the fact that she
survived for 13 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. Moreover, in
the dying declaration, the deceased did not
unnecessarily involved the other family
members of the accused appellants. She
only attributed the role of burning to her
Jeth and Jethani, who were actual culprit.

27. In such a situation, the hostility 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 of the event that occurred
and also of the circumstances leading to her
death.

28. 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,
236 INDIAN LAW REPORTS ALLAHABAD SERIES
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-2 and convicting
the accused-appellants on the basis of it.

29. Now we come to the point of
argument raised by learned counsel for the
appellants that deceased died due to
septicaemia, 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 14 days of incident due to the
poisonous infection developed in her burn
injuries, which could be avoided by good
treatment. There was no intention of the
appellants to cause the death of the
deceased.

30. It is admitted fact that the
deceased died after 14 days of burning and
post mortem report goes to show that she
died due to septicaemia as a result of ante
mortem
burn
injuries.
Dr.
Amitabh
Chauhan has been examined as PW-7, who
had conducted the autopsy of the deceased.
He has specifically mentioned in the post
mortem report Ext. ka-8 and deposed
before the learned trial court that the cause
of death was septicaemia due to burn
injuries. Hence, the death of the deceased
was septicaemial death.

31. 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.

32. In State of Uttar Pradesh vs. Mohd.
Iqram and another, [(2011) 8 SCC 80], the
Apex Court has made the following
observations in paragraph 26, therein:

"26. Once the prosecution has
brought home the evidence of the presence of
the accused at the scene of the crime, then the
onus stood shifted on the defence to have
brought-forth suggestions as to what could
have brought them to the spot in the dead of
night. The accused were apprehended and,
therefore, they were under an obligation to
rebut
this
burden discharged
by
the
prosecution and having failed to do so, the
trial-court was justified in recording its
findings on this issue. The High Court
committed an error by concluding that the
prosecution had failed to discharge its
burden. Thus, the judgment proceeds on a
surmise that renders it unsustainable."

33. In Bengai Mandal alias Begai
Mandal vs. State of Bihar [(2010) 2 SCC
91], incident occurred on 14.7.1996, while
the deceased died on 10.8.1996 due to
septicaemia caused by burn injuries. The
accused was convicted and sentenced for life
imprisonment under Section 302 IPC, which
was confirmed in appeal by the High Court,
but Hon'ble The Apex Court converted the
case under Section 304 Part-II IPC on the
ground that the death ensued after twenty-six
days of the incident as a result of septicaemia
and not as a consequence of burn injuries
and, accordingly, sentenced for seven years'
rigorous imprisonment.

34. 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
10 All. Ashok Vs. State of U.P.
237
injuries. The deceased was admitted in the
hospital with about 60 per cent burn
injuries and during the course of treatment
developed septicaemia, which was the main
cause of death of the deceased. Trial-court
convicted the accused under Section 304
Part-II IPC and sentenced for five years'
imprisonment, but in appeal, High Court
convicted the appellants under Section 302
IPC. Hon'ble The Apex Court has held that
during the aforesaid period of eight days,
the injuries aggravated and worsened to the
extent that it led to ripening of the injuries
and the deceased died due to poisonous
effect
of
the
injuries.
Accordingly,
judgment and order convicting the accused
under Section 304 Part-II IPC by the trialcourt was maintained and the judgment of
the High Court was set aside.

35. In Chirra Shivraj vs. State of
Andhra Pradesh [(2010) 14 SCC 444],
incident took place on 6. Deceased was
hospitalised after the occurrence by the
accused persons themselves. She died after
4 days of the occurrence during the course
of treatment.

36. 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
238 INDIAN LAW REPORTS ALLAHABAD SERIES
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-inlaw, 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.

37. 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.

38. From the upshot of the aforesaid
discussions it appears that the death caused
by the accused persons was not premeditated. 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.

39. In view of the aforesaid discussions,
we are of the view that appeals are liable be
partly allowed and the conviction of the
appellants under Section 302 IPC is liable to
be converted into conviction under Section
304 (Part-I) IPC and fine amount is liable to
be reduced. The convicts / appellants are in
jail for the last more than 9 years.

40. Accordingly, appeals are partly
allowed and the appellants are convicted
for the offence under Section 304 (Part-I)
10 All. Smt. Angoori Devi & Ors. Vs. The State of U.P.
239
IPC and are sentenced to undergo ten years
of incarceration with remission with fine of
Rs. 10,000/-. We maintain the default
sentence, which will start if fine is not
deposited after ten years with remission.

41. Record and proceedings be sent
back to the Court below forthwith.

42. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2022) 10 ILRA 239
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 4094 of 2016

Smt. Angoori Devi & Ors. ...Appellants
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ashutosh Yadav, Abhilasha Singh, Sri
Shyam Lal, Sri Yogesh Kumar Srivastava

Counsel for the Respondent:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860-Sections 498-A, 304-B &
302/34 - 3⁄4 Dowry Prohibition Act,1961Challenge
to-Conviction-
dying
declaration-deceased
died
due
to
septicemia
caused
by
burn
injuriesStatement of PW-1 proves that the
ingredient of 'soon before death' has not
established at all- death caused by the
accused was not premeditated-husband
was not present at the time of incident
and he had been acquitted while others
had been found guilty on the basis of
dying declaration -From the statement of
PW-6, PW-7 it is clear that there was no
tutoring in the whole process of the
recording of the dying declaration- the
deceased died after two and a half months
of incident due to the poisonous infection
developed in her burn injuries, hence it
cannot be said that the deceased was
murdered -Hence, the case falls within the
ambit of Section 304 IPC and not under
Section 302 IPC-The sentence of accused
persons is reduced to the period of 10
years with remission-the period already
undergone can be sustained in the full
period of incarceration. (Para 1 to 44)

B. 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, it can be the sole basis
for recording conviction. In such an
eventuality no corroboration is required.
(Para 43)

The appeal is partly allowed. (E-6)
List of Cases cited:

1. Devendra Singh & ors. Vs St. of U.K. (2022)
AIR SC 2965

2. Mahendra Singh Vs St. of M.P. (2022) 7 SCC
157

3. Kailash Vs St. of M. P. (2007) AIR SC 107

4. Devinder Vs St. of Har. (2010) 10 SCC 763:
2012 (10) JT 249

5. G.V. Siddaramesh Vs St. of Karn. (2010) 3
SCC 152

6. St. Vs Veer Pal & ors. (2022) 2 SCC Crl. 224

7. St. of U.P. Vs Ram Sagar Yadav (1985) 1 SCC
552; 1985 ACC Cri. 127