# Jeetu v. State of U.P

- **Citation:** (2023) 8 ILRA 151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-28
- **Case number:** Criminal Appeal No. 5220 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jeetu-v-state-of-u-p-50555
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section 302/34 - Punishment for murder -
Appeal
against
conviction
-
Life
imprisonment with fine - Code of Criminal
Procedure, 1973 - Sections 313 - As per
complaint,
deceased
was
called
by
appellants to settle dispute, set ablaze by
appellants at house which was sold by
appellants to deceased but possession
was not given to her. (Para 2, 3, 4)

Death
caused
by
accused
not
premeditated, accused had no intention to
cause death, injuries sufficient in ordinary
course of nature to have caused death -
Incident occurred on spur of moment
when deceased demanded money for
house - Evidence of P.W.- 1 doesn't testify
this fact - P.W.-3 and P.W.-4 didn't
support prosecution - P.W.-4 expressed
ignorance about knowing co-accused -
Medical
evidence
proved
deep
burn
injuries which was 40% on body, both
hands, chest, stomach and thorax region
had burn injuries - Homicidal death not
amounting to murder - Incident occurred
in house of co-accused, dying declaration
truthful,
not
case
of
circumstantial
evidence
-
Deceased
was
taken
for
treatment at hospital by P.W.-2, facts led
to alter sentence. (Para 13, 15)

Appeals partly allowed. (E-14)

List of Cases cited:

## Text

8 All. Jeetu Vs. State of U.P.
151
(2023) 8 ILRA 151
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Criminal Appeal No. 5220 of 2021
With
Criminal Appeal No. 5221 of 2021

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

Counsel for the Appellant:
Sri Ajay Kumar Mishra, Sri Ashwini Kumar
Srivastava, Sri Birendra Singh Khokher, Sri
Sunil Kumar Yadav, Sri Yogesh Kumar
Srivastava

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,1860 -
Section 302/34 - Punishment for murder -
Appeal
against
conviction
-
Life
imprisonment with fine - Code of Criminal
Procedure, 1973 - Sections 313 - As per
complaint,
deceased
was
called
by
appellants to settle dispute, set ablaze by
appellants at house which was sold by
appellants to deceased but possession
was not given to her. (Para 2, 3, 4)

Death
caused
by
accused
not
premeditated, accused had no intention to
cause death, injuries sufficient in ordinary
course of nature to have caused death -
Incident occurred on spur of moment
when deceased demanded money for
house - Evidence of P.W.- 1 doesn't testify
this fact - P.W.-3 and P.W.-4 didn't
support prosecution - P.W.-4 expressed
ignorance about knowing co-accused -
Medical
evidence
proved
deep
burn
injuries which was 40% on body, both
hands, chest, stomach and thorax region
had burn injuries - Homicidal death not
amounting to murder - Incident occurred
in house of co-accused, dying declaration
truthful,
not
case
of
circumstantial
evidence
-
Deceased
was
taken
for
treatment at hospital by P.W.-2, facts led
to alter sentence. (Para 13, 15)

Appeals partly allowed. (E-14)

List of Cases cited:

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

2. Bengai Mandal @ Begai Mandal Vs St. of
Bihar, 2010 (1) Supreme 49

3. Chirra Shivraj Vs St. of Andhra Pradesh, 2010
LawSuit (SC) 843

4. Smt. Rama Devi alias Ramakanti Vs St. of U.P.
(Criminal Appeal No.1438 of 2010) decided on
7.10.2017

5. Banwari & Another Vs St. of U.P., (Criminal
Appeal No.26 of 2007) decided on 20.8.2015

6. Pramod Kumar Vs. St. of U.P., (Criminal
Appeal No.318 of 2015) decided on 28.2.2019

7. Tukaram and Ors Vs St. of Mah., reported in
(2011) 4 SCC 250

8. B.N. Kavatakar & anr. Vs St. of Karn.,
reported in 1994 SUPP (1) SCC 304

9. Veeran & ors. Vs St. of M.P. Decided, (2011)
5 SCR 300

10. Gautam Manubhai Makwana Vs St. of Guj.,
(Criminal Appeal No.83 of 2008) decided on
11.9.2013, (Para 12 to 17)
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. Heard Sri Ajay Kumar Mishra,
learned counsel for the appellant and
learned A.G.A. for the State.
152 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Both these appeals challenge the
judgment and order dated 17.1.2018 passed
by Additional District and Sessions Judge,
Court No. 15, Meerut in Sessions Trial
No.713 of 2015 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.20,000/- each and, in case of default
of payment of fine, further to undergo
simple imprisonment for six months.

3. Brief facts as culled out from the
record are that the deceased was set ablaze
by the appellants on 20.11.2014 at the
house which was sold by the appellants to
the deceased but possession was not given
to the deceased. So as to settle the dispute
deceased was called by the appellants. The
appellants set ablaze the deceased as a
result of which she was severely burnt and
died in the hospital on 28.11.2014 namely
after about eight days during treatment. A
complaint to that effect was lodged which
was registered as Case Crime No.595 of
2014 against the accused-appellants. Dying
Declaration of the deceased was recorded
in the hospital on the very same day of
incident.

4. Investigation was moved into
motion and after recording statements of
various persons, the Investigating Officer
submitted the charge-sheet against Raja and
Jeetu (both accused) to the competent
court.

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

6. 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 Ravi
PW
2
Deposition of Rani
PW
3
Deposition of Usha
PW
4
Deposition of Sheela
PW
5
Deposition of Ravindra Singh
PW
6
Deposition of Rajiv Kumar
Malik
PW
7
Deposition of Dr. Sachin Gupta PW
8
Deposition of Devraj Singh
PW
9
Deposition of Jitendra Singh
PW
10
Deposition of Tilak Chand
PW
11
Deposition of Gajendra Pal
Singh
PW
12
Deposition of Dr Sunil Gupta
PW
13
Deposition of Dr. Yashveer
Singh
PW
14
Deposition of Rakesh Kumar
PW
15
Deposition of Ranjeet
PW
16
Deposition of Dr Rajkumar
PW

In support of ocular version following
documents were filed:

1
Written Report
Ex.Ka.1
2
F.I.R.
Ex.Ka.2
3
Dying Declaration
Ex. Ka. 5
4
Postmortem Report
Ex. Ka. 4
5
Panchayatnama
Ex.Ka.7
6
Charge-sheet
Ex. Ka.15
7
Site Plan with Index
Ex. Ka.6
8
Medical Certificate
Ex. Ka. 17
9
Injury Report
Ex. Ka. 18
10
Medical Report
Ex. Ka. 19

7. At the end of the trial and after
recording the statement of the accused
under section 313 of Cr.P.C., and hearing
8 All. Jeetu Vs. State of U.P.
153
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.

8. 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. It is
submitted that the conviction under Section
302 of I.P.C. is not sustainable and is bad as
the incident occurred without common
object and as the offence occurred on spur
of moment is not that henious. 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 holds
that accused have committed murder, as the
accused have been in jail for more than 10
years without remission, they may be
granted
fixed
term
punishment
of
incarceration.

9. 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 and his
brother, set ablaze the deceased in the
disputed house.

10. 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."

11. The academic distinction between
'murder' and 'culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.
154 INDIAN LAW REPORTS ALLAHABAD SERIES

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
the
death
of
the
person to whom the
harm is caused;
KNOWLEDGE
KNOWLEDGE
(c) with the knowledge that the act
is likely to cause death.
(4)
with
the
knowledge that the act
is
so
immediately
dangerous that it must
in
all
probability
cause death or such
bodily injury as is
likely to cause death,
and
without
any
excuse for incurring
the risk of causing
death or such injury as
is mentioned above.

12. 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.

13. 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.

14. 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.
8 All. Jeetu Vs. State of U.P.
155

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-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.

20s. 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
156 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. While considering the facts as
narrated herein above the deceased was 30
years of age as in her dying declaration
given on 20.11.2014 has declared that when
she demanded a sum of Rs. 1,30,000/- from
accused Raja and his brother Jeetu, Jeetu
poured the kerosene and she got burnt and
therefore the dying declaration cannot be
said to be such which cannot be acted upon
and has been rightly been acted upon as
opined by us. Unfortunately, the incident
occurred on the spur of the moment when
the deceased demanded the money for the
house, however, the act cannot be said to in
furtherance of the common object to do
away with the deceased. Even evidnece of
P.W.-1 does not testify to this fact. The
deceased died on 28.11.2014, consistent
version of all the witnesses will not permit
us to accept the submission of the learned
counsel for the appellant that the accused
are innocent. P.W.-3 and P.W.-4 did not
support the prosecution, however, P.W.-4,
expressed ignorance about knowing Raja
the accused. Further, the medical evidence
will not permit us to accept the submission
of the learned counsel for the appellant that
the accused are not guilty, there was deep
burn injuries which was 40% on the body,
both the hands, chest, stomach and the
thorax region were having burn injuries.
The deceased died out of septicemial death,
the judgment herein above will permit us to
concur with the learned Judge as it was
homicidal death but not amounting to
murder. Circumstances will also show that
the incident occurred in the house, the
dying
declaration
is
truthful
dying
declaration, however, this was not a case of
circumstantial evidence that the learned
Judge has discussed the principles of same.
The incident occurred at the house of Raja
where they had called the deceased. The
deceased was taken for treatment at
hospital by P.W.-2, all these facts will
permit us to alter the sentence. Even if we
consider the facts and hold that it was not
8 All. Ramdeen Yadav Vs. State of U.P. & Anr.
157
illegal but irregularity which has crept in,
in no circumstances; the accused could
have been convicted under Section 302 of
I.P.C.

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

17. 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 appellant-accused.

18. If period of incarceration is over,
the accused shall be released forthwith, if
not required in any other case. The
judgment and order dated 17.1.2018 of trial
court shall stand modified accordingly.

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

20. This Court is thankful to the
learned Advocates for ably assisting the
Court.
----------
(2023) 8 ILRA 157
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.08.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision Defective No. 308 of 2023

Ramdeen Yadav ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Shashank Shukla, Prachi Shukla

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Revision - Defective -
The Limitation Act, 1963 - Section 5 -
delay condonation - "sufficient cause" - to
receive a liberal construction so as to
advance substantial justice and generally
a delay in preferring appeal/revision may
be condoned in interest of justice where
no gross negligence or deliberate inaction
or lack of bona fide is imputable to
parties, seeking condonation of delay - if
delay has occurred for reasons which does
not smack of mala fide, the Court should
be reluctant to refuse condonation - The
Code of criminal procedure, 1973 -
Section 25 - maintenance. (Para - 6,16)

(B) Words/Phrases/Maxims - 'Interest
reipublicae up sit finis litium' - it is for the
general welfare that a period be put to
litigation - when an action becomes
barred by time - Court should be slow to
ignore delay for the reason that once
limitation expires, other party matures his
rights on the subject with attainment of
finality. (Para -8)

Revision filed with delay of 1088 days -
revisionist/applicant was in court below - aware
of the proceedings in court below - complete
careless and reckless long delay - on the part of
revisionist/applicant
-
remain
virtually
unexplained at all.(Para -16)

HELD:-Reasons given in the affidavit not
justified and convincing. No reason to exercise
judicial discretion exercising judiciously so as to
justify condonation of delay in the present case.
Application for condonation of delay deserves to
be dismissed. (Para -16)

Delay condonation application dismissed.

Revision dismissed. (E-7)