# Bhujveer & Anr. (In Jail) v. The State of U.P

- **Citation:** (2021) 2 ILRA 455
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Case number:** Criminal Appeal No. 3310 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhujveer-anr-in-jail-v-the-state-of-u-p-46825
- **Pages:** 8

## Headnote

Law
-Code
of
Criminal
Procedure,1973-Section 374(2) - Indian
Penal
Code,1860-Sections
Section
302/34-challenge
to-
convictionmodification of sentence-deceased was
beaten and set ablazed- role of the
appeallants are clear from the dying
declaration and other records-However,
deceased had survived for around 6 days
ultimately died of septicimia- appellants
held guilty u/s 304 Part-I IPC not u/s
302/34 IPC as the case attracted the
exception 1 of Section 300 IPC-(Para 1 to
27)

B. In the instant case, 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
exception 1 to Section 300 IPC.(Para 22)

The appeal is partly allowed. ( E-5)

List of Cases cited:-

## Text

2 All. Bhujveer & Anr. Vs. The State of U.P.
455
(2021)02ILR A455
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 3310 of 2012
&
Criminal Appeal Defective No. 8 of 2013

Bhujveer & Anr. ...Appellants (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Yogesh Kumar Srivastava, Sri Noor
Mohammad, Sri Satish Dwivedi, Sri Mohit
Gautam, Sri Rajesh Kumar Dubey, Sri K.S.
Tiwari, Sri Vikram Singh

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure,1973-Section 374(2) - Indian
Penal
Code,1860-Sections
Section
302/34-challenge
to-
convictionmodification of sentence-deceased was
beaten and set ablazed- role of the
appeallants are clear from the dying
declaration and other records-However,
deceased had survived for around 6 days
ultimately died of septicimia- appellants
held guilty u/s 304 Part-I IPC not u/s
302/34 IPC as the case attracted the
exception 1 of Section 300 IPC-(Para 1 to
27)

B. In the instant case, 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
exception 1 to Section 300 IPC.(Para 22)

The appeal is partly allowed. ( E-5)

List of Cases cited:-

1. R.Rachaiah Vs Home Secretary ,(2016)
Supreme (SC) 383

2. Maniben Vs St. of Guj., (2009) LawSuit (SC)
1380

3. Bengai Mandal@ Begai Mandal Vs St. of Bih.,
(2010) 1 Supreme 49

4. Chirra Shivraj Vs St. of A. P., (2010) 1
LawSuit (SC) 843

5. Smt. Rama Devi @ Ramakanti Vs St. of U.P.
Crl. Appl. No. 1438 of 2010

6. Banwari & anr. Vs St. of U.P. Crl. Appl. No. 26
of 2007

7. Pramod Kumar Vs St. of U.P. Crl. Appl. No.
318 of 2015

8. Tukaram & ors. Vs St. of Mah.,(2011) 4 SCC
250

9. B.N. Kavatakar & anr. Vs St. of Kar. (1994)
SUPP (1) SCC 304,

10. Veeran & ors. Vs St. of M.P. (2011) 5 SCR
300

11. Gautam Manubhai Makwana Vs St. of Guj.,
Crl. Appl. No. 83 f 2008

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1.

Heard
Sri
Yogesh
Kumar
Srivastava,
assisted
by
Sri
Noor
Mohammad, learned Advocates for the
appellants and learned A.G.A. for the State.

2. Both these appeals challenge the
judgment and order dated 26/27.7.2012
456 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by Special Judge (D.A.A.) Etah in
Sessions Trial No.311 of 2006 convicting
and sentencing the appellants in both the
appeals under Section 302 read with
Section 34 of Indian Penal Code, 1860
(hereinafter referred to as 'I.P. Code') for
life imprisonment with fine of Rs.7,000/-
and, in case of default of payment of fine,
further to undergo imprisonment for six
months.

3. Before we go to the facts, we with
a burning heart wish to mention that the
subsequent judge who convicted all the
three accused by invoking Section 302 read
with Section 34 of IPC and exonerating
them under Sections 498A and Section 304
B can be said to have committed an
irregularity as after all the witnesses had
turned hostile and the statement of the
accused were recorded under section 313
CrPC, the learned Judge, all of a sudden,
without any application, either by State or
by complainant, thought it fit that accused
have committed what he considered to be
murder and thereafter charged the accused
under Section 302 read with Section 34 of
I.P.C. and convicted the accused under the
same offence.

4. Reference to a recent decision of
the Apex Court in R. Rachaiah Vs. Home
Secretary, 2016 0 Supreme (SC) 383 can
be made. The learned judge ought to have
followed Section 216 and 217 of Criminal
Procedure Code 1973 which has not been
done. The Apex Court in R.Rachaiah
(supra) has considered that the trial to
vitiate and has held that conviction under
Section 302 I.P.C., would be illegal.

5. In our case, appellants were
originally charged with Sections 498A, and
304 B and from 2006 to 2012, they were
tried and they were made to understand that
they are being tried for commission of
offence under Sections 498A, and 304 B of
I.P.C. Can change of Judge change the
course of punishment? That has exactly
what has happened and that has been
submitted by the counsel for the appellant.

6. Accused are in jail for more than
14 years. The state of affairs in the state of
UP is also alarming. The case was not so
grave that the state could not have
considered this case for remission under
section 433 and 434 of Cr.P.C. after a
period of incarceration of 14 years.

7. With this prelude and anguish, we
start to threadbare discuss the matter.

8. At the outset, the learned counsel
for the appellant conveyed to us that he
does not wish to now go to the
technicalities in the prosecution as his
clients have undergone the agony of
incarceration for more than 15 years. The
incident occurred on 27.11.2005 and the
accused are in jail since 19.12.2005.

9. If we look at any other angle, no
case for Section 302, IPC is made out in
view
of
the
several
authoritative
pronouncements which go to show that
death of deceased due to septicemia will
not take us beyond Section 304 II.

10. Brief facts as culled out from the
record are that the deceased was beaten and
set ablaze by the appellants on 27.11.2005
at her matrimonial home and she died in
the hospital on 3.12.2005 during treatment.
A complaint to that effect was lodged
which was registered as Case Crime
No.0135 of 2005 against the accusedappellants. Dying Declaration of the
deceased was recorded in the hospital on
the very same day.
2 All. Bhujveer & Anr. Vs. The State of U.P.
457

11. Investigation was moved into
motion and after recording statements of
various persons, the Investigating Officer
submitted
the
charge-sheet
against
Gajendra
Singh,
Bhujveer
Singh,
Rajanshree, Bablu, Neeta, Ved Prakash and
Suman to the competent court. Ved Prakash
and Suman were juvenile hence they were
committed to the Juvenile Justice Board.

12. The accused were facing charges
which were exclusively triable by the Court
of Sessions, hence, the case was committed
to the Court of Sessions.

13. On being summoned, the accused
pleaded not guilty and wanted to be tried,
hence, the trial started and the prosecution
examined about 9 witnesses who are as
follows:

1
Deposition
of
Tahsildar
Singh
22.1.2007
7.6.2007
1.8.2007
PW1
2
Deposition
of
Shiv
Dhara
15.12.200
7
17.3.2008
PW2
3
Deposition
of
Dr.
V.K.
Dubey
21.4.2008
17.5.2008
PW3
4
Deposition
of
S.I.
Shyam
Babu
28/08/08 PW4
5
Deposition
of
Tehshildar
Ravi
Prakash
Srivastava
28/08/08 PW5
6
Deposition
of S.I. B.L.
Yadav
24/09/08 PW6
7
Deposition
of Jagveer
Singh
Tomer
18/10/08 PW7
8
Awadhesh
Kumar
Singh
18/10/08
20.11.200
9
PW8
9
Virendra
Singh
Yadav
08/03/11 PW9

5. In support of ocular version following
documents were filed:

1
Written
Report
27/11/05 Ex.Ka.5
2
F.I.R.
27/11/05 Ex.Ka.1
3
Dying
Declaration
27/11/05 Ex. Ka. 16
4
Postmortem
Report
03/12/05 Ex. Ka. 4
5
Panchayatna
ma
03/12/05 Ex.Ka.8
6
Chargesheet
27/11/05 Ex. Ka.13

14. 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 as mentioned
aforesaid.
Being
aggrieved
by
and
dissatisfied with the aforesaid judgement
and order passed by the Sessions Court the
appellants have preferred the present
appeal.
458 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Accused-Gajendra Singh is the
husband of deceased, accused-Bhujveer is
the elder brother of accused-Gajendra and
accused-Rajanshree is the wife of accusedBhujveer. All the three accused are in jail
from the date they are arrested i.e.
19.12.2005 which means that they are in
jail for more than 14 years till now without
remission. They are alleged to have
committed death of wife of Gajendra by
setting her ablaze. The accident occurred
on 27.11.2005.

16. It is a proved fact that the
deceased died out of septicemia. The
learned Judge below, very strangely, after
recording of evidence, added new charge
namely Section 302 read with Section 34 of
I.P.C.

17. Learned counsel for the appellants
has relied on the decisions in Maniben Vs.
State of Gujarat, 2009 LawSuit (SC)
1380, Bengai Mandal @ Begai Mandal
Vs. State of Bihar, 2010 (1) Supreme 49,
Chirra Shivraj Vs. State of Andhra
Pradesh, 2010 LawSuit (SC) 843, and the
decisions of this High Court in Criminal
Appeal No.1438 of 2010 (Smt. Rama
Devi alias Ramakanti Vs. State of U.P.)
decided on 7.10.2017, Criminal Appeal
No.26 of 2007 (Banwari & Another Vs.
State of U.P.) decided on 20.8.2015 and
Criminal
Appeal
No.318
of
2015
(Pramod Kumar Vs. State of U.P.)
decided on 28.2.2019 so as to contend that
life could not be till the last breath and the
conviction under Section 302 of I.P.C. is
not made out. 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 for more than 14 years without
remission, they may be granted fixed term
punishment of incarceration.

18. It has been vehemently
objected by learned A.G.A. for the State.
He has taken us through the evidence on
record and the manner in which the
appellants, husband and his relatives, set
ablaze the deceased in the matrimonial
home.

19. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind about the
guilt of the present appellants. 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."

20. 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
2 All. Bhujveer & Anr. Vs. The State of U.P.
459
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;
KNOWLE
DGE
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.

21. 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.

22. 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.

23. 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.
460 INDIAN LAW REPORTS ALLAHABAD SERIES
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
2 All. Bhujveer & Anr. Vs. The State of U.P.
461
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."

24. Even if we consider the facts and hold
that it was not illegal but irregularity which has
crept in, in no circumstances; the accused could
have been convicted under Section 302 of
I.P.C.

25. In view of the aforementioned
discussion, we are of the view that both these
appeals have to be partly allowed, hence, are
partly allowed.

26. The conviction of the appellants under
Section 302 read with Section 34 of I.P.C. of
Indian Penal Code is converted to conviction
under Section 304 (Part I) of Indian Penal Code
and the appellants are sentenced to undergo 10
years of incarceration with fine which is
reduced to Rs.1,000/- for each appellantaccused.

27. Appellants-accused are in jail for 14
years, if 10 years of incarceration is over, they
shall be released forthwith, if not required in
any other case. The judgement and order dated
26/27.7.2012 shall stand modified accordingly.
462 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Let a copy of this judgment
alongwith the trial court record be sent to
the Court and Jail Authorities concerned
for compliance.

29. We are really pained and wish to
draw the attention of the authorities
concerned through Registrar General that
where the accused are sentenced to life
imprisonment, even if the appeals are
pending
in
the
High
Court,
the
government should periodically exercise
power under Section 432 & 433 of
Cr.P.C. and the committee at each
districts be apprised of these provisions.

30. We are really pained that
accused are in jail for 20 years and the
matters are not even placed before the
Court. The Registry to ensure that all
matters in which accused are in jail for
longer period of incarceration and in
which more than half of their tenure is
over, those matters be listed periodically
before the Court.
----------
(2021)02ILR A462
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 3433 of 2007
with
Criminal Appeal No. 3179 of 2007

Satish Kashyap & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Kuldeep Johri, Sri A.K. Gaur, Sri M.K.
Upadhyay, Sri Manish Tiwary, Sri Prabhat
Pandey, Sri Zafar Abbas, Sri Ashwini Kumar
Awasthi

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 374(2) - Indian
Penal
Code,
1860-Section
302/34challenge to- conviction-modification of
sentence-sudden fight -no pre-meditation
or pre-plan -no previous enmity-deceased
was drunken at the time of occurrence- all
this
resulted
under
influence
of
intoxication and in the spur of momentneither
appellants
had
taken
undue
advantage nor acted in cruel or unusual
manner-appellants held guilty u/s 304
Part-I r/w 34 IPC not u/s 302/34 IPC as
the case attracted the exception 4 of
Section 300 IPC. (Para 1 to 49)

B. The fourth exception of section 300 IPC
covers act done in a sudden fight. injuries
caused to deceased were not intentional
but
incident
took
place
under
the
influence
of
intoxication
of
parties.
deceased himself started conversation
with the appellants who were silent and
not having any weapon. there was no
premeditation and the appellants did not
take undue advantage and had also not
acted in cruel manner. In essence it was
submitted that section 302 IPC has no
application
and
in
this
case
Fourth
Exception of Section 300 IPC applies.
(Para 40 to 47)

The appeal is allowed. ( E-5)

List of Cases cited:-

1. St.of H. P. Vs Jeet Singh (1999) 38 ACC 550
SC

2. Nathuni Yadav & ors. Vs St. of Bih. & ors.
(1997) 34 ACC 576,

3. Thaman Kumar Vs St. of U.T. of Chadigarh
(2003) 47 ACC 7