# Manish Jain (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 1050
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Case number:** Criminal Appeal No. 3347 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manish-jain-in-jail-v-state-of-u-p-46721
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code, 1860-
Sections 302 & 304 (Part I) - 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- ffence committed will fall
under Section 304 Part-I.

It is settled law that where the accused had no
intention to cause death but had knowledge that
the injuries inflicted by him are sufficient in the
ordinary course of nature to cause death, then
the offence would be one u/s 304( Part I) of the
IPC.

Criminal Law -Indian Penal Code, 1860-
Sections 302 & 304 ( Part I) - The
deceased survived for more than 20 days.
She was shifted from the ICU ward to
general
ward
and
thereafter
she
developed fissure and later on during
treatment, she breathed her last. The
death was because of after effect of the
treatment as she had developed other
diseases also and the deceased developed
what is known as septicaemia. The
conviction of the appellant under Section
302 of Indian Penal Code is converted to
conviction under Section 304 (Part I) of
Indian Penal Code.

Death was not solely due to the act of the
accused
but
several
other
factors
also
contributed to her death which was the result of
septicaemia, hence the said fact also establishes
that the offence would be of culpable homicide
not amounting to murder.

Criminal Appeal partly allowed. (Para 16,
17, 19, 20, 21) (E-2)

Judgements/ Case law Cited:-

## Text

1050 INDIAN LAW REPORTS ALLAHABAD SERIES
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;
KNOWLED
GE
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.

19. 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.

20. In view of the aforementioned
discussion, we are of the view that this
appeal has to be partly allowed, hence, is
partly allowed.

21. The conviction of the appellant
under Section 302 of Indian Penal Code is
converted to conviction under Section 304
(Part I) of Indian Penal Code and the
appellant is sentenced to undergo 10 years
of incarceration with fine which is reduced
to Rs.1,000/-. Default sentence is reduced
to three months.

22. Appellant-accused is in jail. If ten
years of incarceration is over, he shall be
released forthwith, if not required in any
other case. He would be entitled to all kind
of remissions. The judgement and order
dated 29.5.2014 shall stand modified
accordingly.

23. Let a copy of this judgment along
with the trial court record be sent to the
Court and Jail Authorities concerned for
compliance.
----------

(2021)02ILR A1050
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. 3347 of 2015

Manish Jain ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party
2 All. Manish Jain Vs. State of U.P.
1051
Counsel for the Appellants:
Sri Ranjit Saxena, Sri Mahabir Yadav, Sri
Ram Awtar, Sri Subash Singh Yadav, Sri Y.S.
Saxena, Sri Ram Bahadur Kushwaha, Sri
V.P. Srivastava, Sri Sunil Kumar Singh

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

Criminal Law - Indian Penal Code, 1860-
Sections 302 & 304 (Part I) - 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- ffence committed will fall
under Section 304 Part-I.

It is settled law that where the accused had no
intention to cause death but had knowledge that
the injuries inflicted by him are sufficient in the
ordinary course of nature to cause death, then
the offence would be one u/s 304( Part I) of the
IPC.

Criminal Law -Indian Penal Code, 1860-
Sections 302 & 304 ( Part I) - The
deceased survived for more than 20 days.
She was shifted from the ICU ward to
general
ward
and
thereafter
she
developed fissure and later on during
treatment, she breathed her last. The
death was because of after effect of the
treatment as she had developed other
diseases also and the deceased developed
what is known as septicaemia. The
conviction of the appellant under Section
302 of Indian Penal Code is converted to
conviction under Section 304 (Part I) of
Indian Penal Code.

Death was not solely due to the act of the
accused
but
several
other
factors
also
contributed to her death which was the result of
septicaemia, hence the said fact also establishes
that the offence would be of culpable homicide
not amounting to murder.

Criminal Appeal partly allowed. (Para 16,
17, 19, 20, 21) (E-2)

Judgements/ Case law Cited:-

1. Sudershan Kumar Vs St. of Delhi, AIR 1974
SC 2328

2. St. of Har. Vs Pala & ors., (1996) 8 SCC 51,

3. Veerla Satyanarayana Vs St. of A.P, (2009)
16 SCC 316

4. Munnawar & ors. Vs St. of U.P. & ors., (2010)
5 SCC 451

5.
Vidya
Sagar
Dwivedi
Vs
St.of
U.P.,
MANU/UP/0502/2020.

Judgements/ Case law relied upon:-

1. Tukaram & ors. Vs St. of Maha., (2011) 4
SCC 250

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

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

4. Crl. Appeal No.83 of 2008 (Gautam Manubhai
Makwana Vs St.of Guj.)

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

1. Heard Senior Advocate assisted by
Sri Sunil Kumar Singh, learned Advocate
for the appellant and learned A.G.A. for the
State.

2. This appeal challenges the
judgment and order dated 28/30.7.2015
passed by Additional Sessions Judge, Court
No.1, Agra in Sessions Trial No.280 of
2012 convicting appellant under Section
452, 307 & 302 of Indian Penal Code, 1860
(hereinafter referred to as 'IPC') and
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 4/5 of the Explosive Substances
Act, 1908 (for short 'Act, 1908'). The
learned Additional Sessions Judge has
sentenced the accused in the following
manner and has held that all the sentences
to run concurrently:

Convicti
on under
Section
Sentence
Awarded
Fine
Default
Sentence
302
of
I.P.C.
Life
imprison
ment
5000/- 6 months
307
of
I.P.C.
7 years
1000/- 1 month
452
of
I.P.C.
3 years
500/-
15 days
4/5
of
Explosiv
e
Substanc
es Act
10 years
1000/- 1 month

3. On the fateful day when grand
daughter was born to daughter in law of
legendary actor, Sri Amitabh Bachchan, the
daughter of the complainant was injured by
the bomb which was in fact a cracker bomb
with which the accused was celebrating the
birth of grand child of Sri Amitabh
Bachchan in his home city namely
Allahabad. The accused is said to have
thrown two bombs shells into the house of
the complainant at about 5.00 p.m. in the
evening on the fateful day i.e. 11.11.2011.
The accused who was staying near the
house of the complainant. The complainant
got injured. The particles of the bomb
pierced her bad and her daughter Kavita
who came out of the rest room at that time
the accused came inside with a purpose to
do away with the deceased, hurled the
second bomb by which the young girl was
injured. Many people came to spot and
seeing them, the accused ran away.
Complainant and her daughter were taken
to the hospital. The complaint is of dated
11.11.2011. Unfortunately, on 3.12.2011,
the daughter of the complainant passed
away whose name was Kavita. The
complainant identified the dead body at the
mortuary.
The
postmortem
was
also
performed on the very same day. The police
officer took the fire cracker bomb and got it
defused and sent the same for examination
at
the
Forensic
Science
Laboratory
Department. The police reported the death
as unnatural death by violence and that is
how the medico legal postmortem was
prepared. The dead body was received on
3.12.2011. She was treated locally, shifted
to Central Hospital, Northern Railway and
then shifted to Dr. R.M.L. Hospital on
16.11.2011. She died on 2.12.2011 during
treatment.

4. Investigation was moved into
motion and after recording statements of
various persons, the Investigating Officer
submitted the charge-sheet against accused.

5. The accused was 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 12 witnesses who are as
follows:

1.
Deposition
of
Rajeshwari
Sharma
22.4.20
13
16.5.20
13
19.11.2
013
PW1
2 All. Manish Jain Vs. State of U.P.
1053
2.
Deposition
of Jairaj Vir
Singh
29/05/1
3
PW2
3.
Deposition
of Dr. S.C.
Jain
29/05/1
3
PW3
4.
Deposition
of
Bhrat
Singh
14/03/1
6
PW4
5.
Deposition
of Shanker
Lal
14/03/1
6
PW5
6.
Deposition
of
Santosh
Kumar
18/07/1
3
PW6
7.
Deposition
of Dr.Manoj
Kumar
14/08/1
3
PW7
8.
Deposition
of Surendra
Singh
08/10/1
3
PW8
9.
Deposition
of Dr. Arun
Kapoor
08/03/1
1
PW9
10.
Deposition
of Dr. Anita
Chandrayan
08/12/1
3
PW10
11.
Deposition
of
Rajan
Singh
15/12/1
3
PW11
12.
Deposition
of
Shailendra
Singh
12/03/1
4
PW12

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

1.
F.I.R.
11/11/1
1
Ex.Ka.9
2.
Written
Report
11/11/1
1
Ex.Ka.1
3.
Statement
Regarding
Identification
of Body
03/12/1
1
Ex.Ka.12
4.
'Raseed
Hawalgi Nash'
03/12/1
1
Ex.Ka.13
5.
Statement
Regarding
Identification
of Body
03/12/1
1
Ex.Ka.15

6.
Certificate of
Bomb
Disposal
Squad
11/11/1
1
Ex.Ka.5
7.
Injury Report 11/11/1
1

Ex.Ka.3
8.
Injury Report 11/11/1
1
Ex.Ka.4
9.
Death Report 03/12/1
1
Ex.Ka.14
10.
Postmortem
Report
03/12/1
1
Ex.Ka.8
11.
Death
Summary
02/12/1
1
Ex.Ka.11
12.
Report
of
Vidhi Vigyan
Prayogshala
02/12/1
1
Ex.Ka.2
13.
Charge-sheet
02/12/1
1
Ex.Ka.7

8. 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
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
dissatisfied with the aforesaid judgement
and order passed by the Sessions Court the
appellants have preferred the present
appeal.

9. Learned counsel for the appellant has
made submissions that no offence has been
committed by the accused. It is further
submitted that the accused had no motive to
do away with the deceased and that the death
of the deceased was due to septicemia after a
considerable period of time.

10. Learned counsel for the appellant
has relied on the decision titled Maniben Vs.
State of Gujarat, AIR 2010 SC 1261,
decision of Gujarat High Court in Criminal
Appeal No. 954 of 2007 (Gulam Hussain
Zalil Ahmed Shaikh Vs. State of Gujarat)
decided on 5.8.2013 and in Criminal Appeal
No. 806 of 2011 (Chhaganbhai Limjibhai
Palas Vs. State of Gujarat) decided on
20.11.2013 and the decision of Lucknow
Bench of this High Court in Criminal Appeal
No.318 of 2015 (Pramod Kumar Vs. State
of U.P.) decided on 28.2.2019 so as to
contend that the decision of imprisonment for
life is bad and 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 the the offence would be under
Section 304 II or Section 304 I of I.P.C as per
the decisions on which heavy reliance is
being placed by the counsel for the appellant.
It is further submitted that if the Court comes
to the conclusion that the accused has
committed offence, in that case as the
accused have been in jail for more than 9
years without remission, he may be granted
fixed term punishment of incarceration.

11. 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 deceased was
done to death. Sri Rupak Chaubey, learned
A.G.A. for the state has submitted that life
imprisonment awarded to the accused in
the facts and circumstances of the case was
the only punishment which can be awarded
to the accused who had hurled the bomb
not once but twice which shows the fact
that he was well aware that the first bomb
did not hurt the girl and, therefore, he came
again and hurled the second bomb in the
house. The injuries were such that the death
was not because of the septicemia but was
coupled with the fact that injury has taken
place due to blasting. Learned A.G.A. has
relied on the decisions in (i) Sudershan
Kumar Vs. State of Delhi, reported in
AIR 1974 SC 2328, (ii) State of Haryana
Vs. Pala and others, (1996) 8 SCC 51,
(iii) Veerla Satyanarayana Vs. State of
Andhra Pradesh, (2009) 16 SCC 316, (iv)
Munnawar and others Vs. State of Uttar
Pradesh and others, (2010) 5 SCC 451
and (v) Vidya Sagar Dwivedi Vs. State of
U.P., MANU/UP/0502/2020.

12. Before we start considering the
evidence which we are not elaborately
discussing, the reason being it is proved
conclusively that the fire cracker bomb was
hurled by none other than the accused. The
mother of the complainant also received
injuries which she has testified on oath as
P.W.1. P.W.2 also corroborated and hence it
was proved that accused was the person
involved in the commission of the offence.
The reasons are that the accused has been
identified by the witnesses to have burst the
crackers in the house of the complainant
which injured the deceased and her mother
and that it was the accused and accused
alone who had committed the offence.

13. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report,
2 All. Manish Jain Vs. State of U.P.
1055
there is no doubt left in our mind about the
guilt of the present appellants.

14. 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."

15. 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.

Section 299
Section 300
A
person
commits
culpable
homicide
if
Subject
to
certain
exceptions
culpable
homicide is murder is the
act by which the death is
the
act
by
which
the
death
is
caused
is
done-
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;
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.

16. 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
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
be one punishable under Section 304 part-I
of the IPC.

17. 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.

18. 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
injuries and during the course of treatment
developed septicemia, which was the main
2 All. Manish Jain Vs. State of U.P.
1057
cause of death of the deceased. It is,
therefore, established that during the
aforesaid period of 8 days the injuries
aggravated and worsened to the extent that
it led to ripening of the injuries and the
deceased died due to poisonous effect of the
injuries.

19. It is established from the dying
declaration of the deceased that she was
living separately from her mother-in-law, the
appellant herein, for many years and that on
the day in question she had a quarrel with the
appellant at her house. It is also clear from
the evidence on record that immediately after
the quarrel she along with her daughter came
to fetch water and when she was returning,
the appellant came and threw a burning
tonsil on the clothes of the deceased. Since
the deceased was wearing a terylene cloth at
that relevant point of time, it aggravated the
fire which caused the burn injuries.

20. There is also evidence on
record to prove and establish that the action
of the appellant to throw the burning tonsil
was preceded by a quarrel between the
deceased and the appellant. From the
aforesaid evidence on record it cannot be
said that the appellant had the intention that
such action on her part would cause the
death or such bodily injury to the deceased,
which was sufficient in the ordinary course of
nature to cause the death of the deceased.
Therefore, in our considered opinion, the
case cannot be said to be covered under
clause (4) of Section 300 of IPC. We are,
however, of the considered opinion that the
case of the appellant is covered under Section
304 Part II of IPC."

16. In the present case, we have
come to the irresistible conclusion that the
role of the appellants is clear from the
dying declaration and other records.
However, the point which has also weighed
with this court are that the deceased had
survived for around 30 days in the hospital
and that his condition worsened after
around 5 days and ultimately died of
septicemia. In fact he had sustained about
35% burns. In that view of the matter, we
are of the opinion that the conviction of the
appellants under section 302 of Indian
Penal Code is required to be converted to
that under section 304(I) of Indian Penal
Code and in view of the same appeal is
partly allowed.

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
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

19. We are unable to agree with
learned A.G.A. who has relied on the recent
decision of this Court in Vidya Sagar
Dwivedi (Supra). The said judgment
nowhere deals with the issue of septicemia.
The judgments in Sudershan Kumar Vs.
State of Delhi, AIR 1974 SC 2328, State
of Haryana Vs. Pala and others, (1996) 8
SCC 51, Veerla Satyanarayana Vs. State
of Andhra Pradesh, (2009) 16 SCC 316,
Munnawar and others Vs. State of Uttar
Pradesh and others, (2010) 5 SCC 451 on
which the learned A.G.A. has placed
reliance, relates to actual and motivated
assault. In our case, none has mentioned
that what was the motive of the accused.
None of the witnesses has even remotely
conveyed that the accused had with a
purposeful motive hurled the bombs on the
deceased, what was the motive or the
accused had any intention of doing away
with the injured or the deceased is not
borne out from the record in our case.

20. One more glaring fact is that from
the record of the medical papers that the
deceased survived for more than 20 days.
She was shifted from the ICU ward to
general ward and thereafter she developed
fissure and later on during treatment, she
breathed her last. Though we concur
learned Trial Judge that the death was
homicidal death we are unable to accept the
submission of Sri Rupak Chaubey, learned
A.G.A. that the sole reason for the death
was the cracker bomb hurled by the
accused.

21. The death was because of after
effect of the treatment as she had developed
other diseases also and the deceased
developed what is known as septicemia.
The judgment cited by Sri Rupak Chaubey,
learned A.G.A. will not be applicable to the
facts of this case as unfortunately from the
evidence of the record, what was the
motive of the accused is not borne out.

Punishment:

22. We come to the definite
conclusion that the death was due to
septicemia. The judgments cited by the
learned counsel for the appellant would
permit us to uphold our finding which we
conclusively hold that the offence is not
under Section 302 of I.P.C. but is culpable
homicide.

23. The accused is in jail since
12.11.2011. The decision of this Court and
and of the Gujarat High Court in Gautam
Manubhai
(Supra)
wherein
the
undersigned (Dr.K.J. Thaker,J.) was a also
a signatory and the decision in Maniben
(Supra) wherein the Apex Court has
converted the conviction under Section 302
of I.P.C. to Section 304 Part II of I.P.C.
which will come to the aid of the accused.

24. In view of the aforementioned
discussion, we are of the view that the
appeal has to be partly allowed, hence, it is
partly allowed.

25. The conviction of the appellant
under Section 302 of Indian Penal Code is
converted to conviction under Section 304
(Part I) of Indian Penal Code and the
2 All. Vimlesh Vs. State of U.P.
1059
appellant is sentenced to undergo 7 years of
incarceration with fine of Rs.5000/- and
conviction under Section 4/5 of Explosive
Substances Act,1908 is also reduced to 7
years of rigorous imprisonment looking to
the facts of this case. Conviction and
sentences as far as offences under Sections
452 & 307 of I.P.C. are maintained as the
period of sentence is over even the default
period would be over.

26. Appellant-accused is in jail since
12.11.2011, if 7 years of incarceration is
over for all the offences and the default
would start after the period of seven years,
he shall be released forthwith, if not
required in any other case. The accused
would be entitled to all remissions. The
judgment and order impugned in this
appeal shall stand modified accordingly.

27. Let a copy of this judgment along
with the trial court record be sent to the
Court and Jail Authorities concerned for
compliance.
----------
(2021)02ILR A1059
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.01.2021

BEFORE

THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 191 of 2016

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

Counsel for the Appellant:
Sunil Kumar, Rajiv Mishra, Soniya Mishra

Counsel for the Respondent:
Govt. Advocate
Criminal Law - Indian Penal Code, 1860-
Sections 366 & 376(2)- Rape of minor-
Determination of age- Neither Code nor
I.P.C.
or
POCSO
Act
2012
provides
procedure for determination of victim's
age. Alleged offence was committed on
07.12.2014. Rule 12 of the Juvenile
Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as the
'2007 Rules') framed under Section 67 of
the Juvenile Justice (Care and Protection
of Children) Act 2000, provides procedure
for determination of juvenile's age.

Since neither the IPC and nor the POCSO Act
provide for the methodology to determine the
age of the victim, hence the same is to be
determined in accordance with Rule 12 of the
Juvenile
Justice
(Care
and
Protection
of
Children) Rules, 2007. Where the school
documents or other documents establishing the
age of the victim are absent then the age has to
be determined under Rule 12 (3) of the Act.

Juvenile Justice (Care and Protection of
Children)
Rules,
2007-
Rule
12(3)-
Neither any matriculation nor equivalent
certificate or any date of birth certificate,
from the victim's school or any extract of
Kutumb
Register
(birth
and
death
register) maintained at the level of
Village-Pradhan/Gaon
Sabha
of
the
victim, was filed by the prosecution before
the trial Court. It is also pertinent to note
that the opinion regarding the age of any
person, based on medical and radiological
evidence, can not be treated accurate and
exact. Such determination of age, by
medical expert, may vary in view of race,
gender,
geographical
area,
nutritional
status and other factors like colour of
pubic and armpit hair, development of
sexual characteristics and other changes
in the body of the victim. Such variation
may be of one or two year of either side.
Thus, in the light of the evidence available
on record and in view of the law laid down
by Hon'ble Supreme Court in Jarnail Singh
(supra), Jaya Mala (supra) and Rajak
Mohammad (supra) as well as relying
upon the medical evidence on record, it
may be held that the victim, at the time of