# Ganesh (In Jail) v. State of U.P

- **Citation:** (2022) 12 ILRA 659
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-02
- **Case number:** Criminal Misc. IInd Bail Application No. 3162 of 2021
- **Bench:** Shekhar Kumar Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ganesh-in-jail-v-state-of-u-p-47966
- **Pages:** 7

## Headnote

(A) Criminal Law - IInd Bail - Indian Penal
Code, 1860 - Sections 498-A, 302, 326,
323, 504, 506 , Section 299 - Culpable
Homicide , Section 300 - 'murder' , Section
304 - 'culpable homicide not amounting to
murder'
-
Dying
declaration
-

distinction between Section 302 and
Section 304 - "culpable homicide" is
genus and "murder" its specie - All
"murder" is "culpable homicide" but not
vice-versa .(Para - 11)

Applicant (husband) Illicit relationship with wife
of his brother - deceased (wife) could not
prepare food due to non availability of vegetable
- her husband lost his temper and started
beating and poured kerosene oil upon her and
burned - cause of death - septic shock .(Para -
4)

HELD:-No
premeditation
for
applicant
to
commit such offence as alleged against him -
deceased admitted in hospital - remained under
treatment in hospital for 8 days - died after 8
days - septicemia - main cause of death of the
deceased - fit case for grant of bail.(Para -
12,13)
Bail application allowed. (E-7)

List of Cases cited:-

## Text

12 All. Ganesh Vs. State of U.P.
659
----------
(2022) 12 ILRA 659
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2022

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Criminal Misc. IInd Bail Application No. 3162 of
2021

Ganesh ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Ardhendu Shekhar Sharma, Sri Ram
Babu Sharma, Sri Sanjay Kumar Shukla

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - IInd Bail - Indian Penal
Code, 1860 - Sections 498-A, 302, 326,
323, 504, 506 , Section 299 - Culpable
Homicide , Section 300 - 'murder' , Section
304 - 'culpable homicide not amounting to
murder'
-
Dying
declaration
-

distinction between Section 302 and
Section 304 - "culpable homicide" is
genus and "murder" its specie - All
"murder" is "culpable homicide" but not
vice-versa .(Para - 11)

Applicant (husband) Illicit relationship with wife
of his brother - deceased (wife) could not
prepare food due to non availability of vegetable
- her husband lost his temper and started
beating and poured kerosene oil upon her and
burned - cause of death - septic shock .(Para -
4)

HELD:-No
premeditation
for
applicant
to
commit such offence as alleged against him -
deceased admitted in hospital - remained under
treatment in hospital for 8 days - died after 8
days - septicemia - main cause of death of the
deceased - fit case for grant of bail.(Para -
12,13)
Bail application allowed. (E-7)

List of Cases cited:-

1. St. of A.P. Vs Rayavarapu Punnayya & Anr. ,
(1976) 4 SCC 382

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

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

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)

1. This is a second bail application on
behalf of the applicant. The first bail
application was rejected by a co-ordinate
Bench of this Court vide order dated
30.01.2019 passed in Criminal Misc. Bail
Application No.8363 of 2014.

2. Heard Mr. Ram Babu Sharma ,
learned counsel for the applicant, Mr. R.P.
Mishra, learned Additional Government
Advocate for the State.

3. By means of this application, the
applicant is seeking enlargement on bail
during the trial in Case Crime No.255 of
2013 (S.T. No.584 of 2013), under Sections
498-A, 302, 326, 323, 504, 506 IPC, Police
Station Jhangha, District Gorakhpur.

4. In short, the facts in brief are that
the impugned FIR has been lodged by the
informant/complainant, who is the father of
the deceased, alleging that he solemnized
marriage of her daughter, namely, Sunita
with
the
applicant
Ganesh
s/o
Harishchandra, resident of Kona, Police
Station Jhangha, District Gorakhpur and in
the said marriage, sufficient dowry was
given but her son-in-law (applicant) and his
family members were not happy with the
dowry given in the said marriage. It is
660 INDIAN LAW REPORTS ALLAHABAD SERIES
further alleged that when the daughter of
informant went to the house of the
applicant, she was tortured and harassed by
the applicant and his family members and
she was also beaten by the accused persons.
It is further alleged that the applicant
pressurized her daughter to bring Rs.2
lakhs from her parents and when the said
demand was not fulfilled, the applicant and
other co-accused persons abused and
threatened to kill his daughter by burning.
It is further alleged that applicant was
having illicit relationship with the wife of
his brother. Ultimately, on 25.07.2013 in
the evening, the informant received a
telephonic call from sasural of his daughter
that his daughter has been burned by
pouring kerosene oil by her husband and
his family members and she is admitted in
Sadar
Hospital,
Gorakhpur.
The
informant/complainant immediately rushed
to the hospital where he saw that his
daughter has been burned and she is
struggling
for
her
life.
The
informant/complainant asked his daughter
about the incident, then she told that she
has been burned by her husband, devrani
Ranjana Devi, dever Kanhaiya, mother-inlaw and father-in-law by pouring kerosene
oil upon her. The victim Sunita was
admitted in District Hospital, Gorakhpur
where she died on 01.08.2013 at about 5.15
am. As per postmortem report, the cause of
death is due to septic shock.

5. The contention as raised at the Bar
by learned counsel for the applicant is that
applicant-accused is quite innocent and has
been falsely implicated in the present case.
The applicant has never committed any
offence as alleged in the impugned FIR.
The applicant is the husband of the
deceased. The whole case is based on the
statement of the victim/deceased, who
narrated
the
entire
incident
to
the
Investigating Officer as well as Magistrate.
Learned counsel for the applicant has not
disputed the dying declaration of the
deceased and his sole argument is that even
if it is assumed that the applicant has
committed the offence as alleged in the
impugned FIR as well as dying declaration,
no offence under Section 302 IPC is made
out against the applicant. The deceased in
her statement has clearly stated that on the
date of alleged incident i.e. on 25.07.2013
in noon, she could not prepare the food due
to non availability of vegetable for which
her husband lost his temper and started
beating and poured kerosene oil upon her
and burned. Maximum this case can travel
up to the limits of offence under Section
304 Part II IPC because the deceased died
after 8 days of the alleged incident due to
septic shock and maximum punishment for
the offence under Section 304 Part II of
IPC is 10 years. Further contention is that
the applicant is languishing in jail since
04.08.2013 having no previous criminal
history and he has already served more than
9 and 1⁄2 years in jail, hence, the applicant
may be enlarged on bail. It has been
assured on behalf of the applicant that he is
ready to cooperate with the process of law
and shall faithfully make himself available
before the court whenever required.

6. No other point or argument has
been raised by learned counsel for the
applicant and confined his argument only
on the above points.

7. Per contra, Mr. R.P. Mishra,
learned Additional Government Advocate
for the State has vehemently opposed the
prayer for bail by submitting that being the
custodian of his wife has misused his
position and set his wife to flame, which
ultimately resulted into her death. The
applicant is perpetrator of the alleged crime
12 All. Ganesh Vs. State of U.P.
661
in question. Before death, the deceased has
given dying declaration specifying that the
applicant caused burn injuries. The offence
is heinous in nature, hence, the applicant is
not entitled for any relief and the bail
application is liable to be rejected.

8. I have heard the rival submissions
advanced by learned counsel for the parties
and perused the material available on
record.

9. Before proceeding further, it is
relevant to refer to the provisions of
Sections 299, 300 and 304 IPC, 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.
Illustrations

(a) A lays sticks and turf over a pit,
with the intention of thereby causing death, or
with the knowledge that death is likely to be
thereby caused. Z believing the ground to be
firm, treads on it, falls in and is killed. A has
committed the offence of culpable homicide.

(b) A knows Z to be behind a bush.
B does not know it A, intending to cause, or
knowing it to be likely to cause Z's death,
induces B to fire at the bush. B fires and kills
Z. Here B may be guilty of no offence; but A
has committed the offence of culpable
homicide.

(c) A, by shooting at a fowl with
intent to kill and steal it, kills B who is behind
a bush; A not knowing that he was there.
Here, although A was doing an unlawful act,
he was not guilty of culpable homicide, as he
did not intend to kill B, or to cause death by
doing an act that he knew was likely to cause
death.

Explanation 1.--A person who
causes bodily injury to another who is
labouring under a disorder, disease or
bodily infirmity, and thereby accelerates
the death of that other, shall be deemed to
have caused his death.

Explanation 2.--Where death is
caused by bodily injury, the person who
causes such bodily injury shall be deemed
to have caused the death, although by
resorting to proper remedies and skilful
treatment the death might have been
prevented.

Explanation 3.--The causing of
the death of child in the mother's womb is
not homicide. But it may amount to
culpable homicide to cause the death of a
living child, if any part of that child has
been brought forth, though the child may
not have breathed or been completely born.

300. Murder.-Except in the cases
hereinafter excepted, culpable homicide is
murder, if the act by which the death is
caused is done with the intention of causing
death, or-

Secondly. - If it is done 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, or -

Thirdly.-If it is done with the
intention of causing bodily injury to any
person and the bodily injury intended to be
inflicted is sufficient in the ordinary course
of nature to cause death, or -
662 INDIAN LAW REPORTS ALLAHABAD SERIES

Fourthly.-If
the
person
committing the act knows that it is so
imminently dangerous that it must, in all
probability, cause death or such bodily
injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such
injury as aforesaid.

Exception
1.-When
culpable
homicide is not murder. - Culpable
homicide is not murder if the offender,
whilst deprived of the power of self-control
by grave and sudden provocation, causes
the death of the person who gave the
provocation or causes the death of any
other person by mistake or accident.

The above Exception is subject to
the following provisos:-

First.-That the provocation is not
sought or voluntarily provoked by the
offender as an excuse for killing or doing
harm to any person.

Secondly.-That the provocation is
not given by anything done in obedience to
the law, or by a public servant in the lawful
exercise of the powers of such public
servant.

Thirdly.-That the provocation is
not given by anything done in the lawful
exercise of the right of private defence.

Explanation.-Whether
the
provocation was grave and sudden enough
to prevent the offence from amounting to
murder is a question of fact.

Exception 2. - Culpable homicide
is not murder if the offender, in the exercise
in good faith of the right of private defence
of person or property, exceeds the power
given to him by law and causes the death of
the person against whom he is exercising
such
right
of
defence
without
premeditation, and without any intention of
doing more harm than is necessary for the
purpose of such defence.

Exception 3. - Culpable homicide
is not murder if the offender, being a public
servant or aiding a public servant acting for
the advancement of public justice, exceeds
the powers given to him by law, and causes
death by doing an act which he, in good
faith, believes to be lawful and necessary
for the due discharge of his duty as such
public servant and without ill-will towards
the person whose death is caused.

Exception 4. - Culpable homicide
is not murder if it is committed without
premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and
without the offender having taken undue
advantage or acted in a cruel or unusual
manner.

Explanation. - It is immaterial in
such
cases
which
party
offers
the
provocation or commits the first assault.

Exception 5. - Culpable homicide
is not murder when the person whose death
is caused, being above the age of eighteen
years, suffers death or takes the risk of
death with his own consent.

304. Punishment for culpable
homicide not amounting to murder.--
Whoever commits culpable homicide not
amounting to murder shall be punished
with
1[imprisonment
for
life],
or
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine, if the act by
which the death is caused is done with the
12 All. Ganesh Vs. State of U.P.
663
intention of causing death, or of causing
such bodily injury as is likely to cause
death,

Or

with
imprisonment
of
either
description for a term which may extend to
ten years, or with fine, or with both, if the
act is done with the knowledge that it is
likely to cause death, but without any
intention to cause death, or to cause such
bodily injury as is likely to cause death.

Para-I:Punishment-
Imprisonment for life, or imprisonment for
10
years
and
fine-Cognizable-Nonbailable- Triable by Court of Session-Non
compoundable.

Para-II:PunishmentImprisonment for 10 years, or fine, or bothCognizable-non bailale-Triable by Court of
Session- Non- compoundable."

10. The question which arises for
consideration is as to whether the act of the
accused-appellant would fall within the
definition of 'murder' or it would be
'culpable homicide not amounting to
murder'.

11. 10. The Apex Court in State of
A.P. vs. Rayavarapu Punnayya and
Another, (1976) 4 SCC 382 while drawing
a distinction between Section 302 and
Section 304 of IPC held as under:

"12. In the scheme of the Penal
Code, "culpable homicide" is genus and
"murder" its specie. All "murder" is
"culpable homicide" but not vice-versa.
Speaking generally, "culpable homicide"
sans "special characteristics of murder", is
"culpable homicide not amounting to
murder". For the purpose of fixing
punishment, proportionate to the gravity of
this generic offence, the Code practically
recognises three degrees of culpable
homicide. The first is, what may be called,
"culpable homicide of the first degree".
This is the greatest form of culpable
homicide, which is defined in Section 300
as "murder". The second may be termed as
"culpable homicide of the second degree".
This is punishable under the first part of
Section 304. Then, there is "culpable
homicide of the third degree". This is the
lowest type of culpable homicide and the
punishment provided for it is, also, the
lowest among the punishments provided for
the three grades. Culpable homicide of this
degree is punishable under the second part
of Section 304.

21. From the above conspectus, it
emerges
that
whenever
a
court
is
confronted with the question whether the
offence is "murder" or "culpable homicide
not amounting to murder", on the facts of a
case, it will be convenient for it to approach
the problem in three stages. The question to
be considered at the first stage would be,
whether the accused has done an act by
doing which he has caused the death of
another. Proof of such causal connection
between the act of the accused and the
death, leads to the second stage for
considering whether that act of the accused
amounts to "culpable homicide" as defined
in Section 299. If the answer to this
question is prima facie found in the
affirmative, the stage for considering the
operation of Section 300 of the Penal Code,
is reached. This is the stage at which the
court should determine whether the facts
proved by the prosecution bring the case
within the ambit of any of the four clauses
of the definition of "murder" contained in
Section 300. If the answer to this question
664 INDIAN LAW REPORTS ALLAHABAD SERIES
is in the negative the offence would be
"culpable homicide not amounting to
murder", punishable under the first or the
second part of Section 304, depending,
respectively, on whether the second or the
third clause of Section 299 is applicable. If
this question is found in the positive, but
the case comes within any of the exceptions
enumerated in Section 300, the offence
would still be "culpable homicide not
amounting to murder", punishable under
the first part of Section 304, of the Penal
Code."

12. Perusal of dying declaration of the
deceased clearly shows that on the date of
alleged incident i.e. on 25.07.2013 in noon,
when the deceased could not prepare the
food due to non availability of vegetable
for which her husband lost his temper and
started beating and poured kerosene oil
upon her and burned. It means that there
was no premeditation for the applicant to
commit such offence as alleged against
him.

13. It is also an admitted fact that the
deceased was admitted in hospital and she
remained under treatment in hospital for 8
days and thereafter she died after 8 days of
the incident in question. During 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, as a result, she
died due to septic shock.

14. Perusal of record shows that the
victim Sunita was admitted in District
Hospital, Gorakhpur on 25.7.2013 at about
6.30 pm and during treatment after 8 days of
the alleged incident, she died on 01.08.2013
at about 5.15 am. It means that the deceased
remained alive for about 8 days. Perusal of
post mortem report of the deceased reveals
that the deceased has received superficial to
deep septic burn from face to umbilicus,
whole back of both upper limb and cause of
death has been mentioned as septic shock.

15. 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
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 trial-court was maintained
and the judgment of the High Court was set
aside.

16. 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 septicaemia. Accused
was convicted under Section 304 Part-II
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 septicaemia, which
was caused due to burn-injuries and as a
result thereof, she expired on 1.8.1999.
12 All. Kailash Vs. State of U.P.
665

17. Considering the overall facts and
circumstances, the nature of allegations, the
gravity of offence, the severity of the
punishment, the evidence appearing against the
accused, submission of learned counsel for the
parties, considering the principle laid down by
the Courts in the above referred case laws, I am
of the view that it is a fit case for grant of bail.
Accordingly, the bail application is allowed.

18. Let the applicant-Ganesh involved in
the aforesaid case be released on bail on
furnishing a personal bond and two heavy
sureties each in the like amount to the
satisfaction of the court concerned subject to
following conditions :

(i) The applicant shall file an
undertaking to the effect that he shall not seek
any adjournment on the date fixed for evidence
when the witnesses are present in Court. In case
of default of this condition, it shall be open for
the Trial Court to treat it as abuse of liberty of
bail and pass orders in accordance with law.

(ii) The applicant shall remain
present before the Trial Court on each date
fixed, either personally or through his counsel.
In case of his absence, without sufficient cause,
the Trial Court may proceed against him under
Section 229-A IPC.

(iii) In case, the applicant misuses the
liberty of bail during trial and in order to secure
his presence proclamation under Section 82
Cr.P.C., may be issued and if applicant fails to
appear before the Court on the date fixed in
such proclamation, then, the Trial Court shall
initiate proceedings against him, in accordance
with law, under Section 174-A IPC.

(iv) The applicant shall remain
present, in person, before the Trial Court on
dates fixed for (1) opening of the case, (2)
framing of charge and (3) recording of
statement under Section 313 Cr.P.C. If in the
opinion of the Trial Court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the Trial Court to
treat such default as abuse of liberty of bail and
proceed against him in accordance with law.

(v) The Trial Court may make all
possible efforts/endeavour and try to conclude
the trial within a period of one year after the
release of the applicant.

19. In case of breach of any of the above
conditions, it shall be a ground for cancellation
of bail.

20. It is made clear that observations
made in granting bail to the applicant shall not
in any way affect the learned trial Judge in
forming his independent opinion based on the
testimony of the witnesses.
----------
(2022) 12 ILRA 665
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Anticipatory Bail Application No.
9396 of 2022
And
Criminal Misc. Anticipatory Bail Application
No.9378 of 2022
And
Criminal Misc. Anticipatory Bail Application No.
9363 of 2022

Kailash ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Akash Tomar

Counsel for the Opposite Party: