# Mritunjaya @ Tinku v. State of U.P

- **Citation:** (2023) 7 ILRA 474
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-12
- **Case number:** Criminal Appeal No. 4017 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mritunjaya-tinku-v-state-of-u-p-50361
- **Pages:** 13

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 498-A, 304-B, 302/34, 323, 506
& 326 - Appeal against conviction - Dowry
Prohibition Act, 1961 - Section 3⁄4 - Dowry
death - Relevancy of dying deceleration -
Indian Evidence Act, 1872 - Section 106 -
Code of Criminal Procedure, 1973
-
Sections
161,
313
-
On
26.05.2012
husband of deceased and his family
members quarrelled with her for dowry
and threatened her - Informant along with
his son and brother-in-law went to meet
her, not permitted him to meet her and
again
demanded
dowry
-
Deceased
informed
his
father
about
cruelty
committed by her in-laws - On 12.6.2012
informant received information that she
burnt by her in-laws - Contention, neither
dowry demanded nor she was burnt to
death by them - Deceased herself got
burnt due to depression. (Para 2, 5)

Learned Trial Court did not consider dying
declaration,
relied
on
St.ments
of
witnesses of fact (P.Ws. 1 to 3), not
present on spot - She St.d that due to
quarrel with husband she was set ablazed
and not due to demand of dowry - Dying
declaration would prevail upon St.ments
of witnesses and evidence recorded by
I.O. (Para 9)

As per dying deceleration, deceased died
after three days of its recording
-
Remained alive for three days after
making dying declaration, truthfulness of
dying declaration proved - Fit mental
condition to make St.ment at relevant
time. (Para 17)

None of witnesses or authorities involved
in recording dying declaration had turned
hostile, supported prosecution - Dying
declaration was reliable, voluntarily made
7 All. Mritunjaya @ Tinku Vs. State of U.P.
475
by deceased, sole basis of conviction.
(Para 18)

Fire put out by appellant and deceased
was admitted to hospital in injured
condition by appellant and his family
members, no intention to kill deceased -
Deceased died after six days and during
this period, she was admitted in hospital
and under treatment - Doctor conducted
post-mortem, mentioned cause of death
as "Shock" - Death was not premeditated,
had knowledge and intention to cause
bodily harm but did not want to do away
with deceased. (Para 24, 26)

Appeal partly allowed. (E-13)

List of Cases cited:

## Text

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474 INDIAN LAW REPORTS ALLAHABAD SERIES
proved beyond reasonable doubt from the
evidence available on record.

32. In the above circumstances, the
benefit of doubt must be given to the
surviving accused Ashok Kumar. According
to this Court, since there was enmity between
both the parties, therefore, in absence of any
corroboration from the independent witness it
would not be proper to upheld the conviction
and sentencing of the accused who had been
assigned only the role of exhortation. Thus,
the appeal is liable to be allowed and the
order of conviction and sentencing passed in
respect of the surviving appellant Ashok
Kumar is liable to be quashed.

33. The appeal is allowed with regard
to the accused appellant Ashok Kumar and
the order of conviction and sentencing
passed by the Additional Sessions JudgeIV, Sitapur is hereby set aside.

34. Let the bail bonds and personal
bond executed on behalf of accused
appellant Ashok Kumar are cancelled and
sureties are set free.

35. A copy of this order alongwith
lower court record be sent back to the court
concerned.
----------
(2023) 7 ILRA 474
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2023

BEFORE

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

Criminal Appeal No. 4017 of 2016

Mritunjaya @ Tinku ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Satya Srivastava, Sri Deena Nath, Sri Manoj
Kumar

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 498-A, 304-B, 302/34, 323, 506
& 326 - Appeal against conviction - Dowry
Prohibition Act, 1961 - Section 3⁄4 - Dowry
death - Relevancy of dying deceleration -
Indian Evidence Act, 1872 - Section 106 -
Code of Criminal Procedure, 1973
-
Sections
161,
313
-
On
26.05.2012
husband of deceased and his family
members quarrelled with her for dowry
and threatened her - Informant along with
his son and brother-in-law went to meet
her, not permitted him to meet her and
again
demanded
dowry
-
Deceased
informed
his
father
about
cruelty
committed by her in-laws - On 12.6.2012
informant received information that she
burnt by her in-laws - Contention, neither
dowry demanded nor she was burnt to
death by them - Deceased herself got
burnt due to depression. (Para 2, 5)

Learned Trial Court did not consider dying
declaration,
relied
on
St.ments
of
witnesses of fact (P.Ws. 1 to 3), not
present on spot - She St.d that due to
quarrel with husband she was set ablazed
and not due to demand of dowry - Dying
declaration would prevail upon St.ments
of witnesses and evidence recorded by
I.O. (Para 9)

As per dying deceleration, deceased died
after three days of its recording
-
Remained alive for three days after
making dying declaration, truthfulness of
dying declaration proved - Fit mental
condition to make St.ment at relevant
time. (Para 17)

None of witnesses or authorities involved
in recording dying declaration had turned
hostile, supported prosecution - Dying
declaration was reliable, voluntarily made
7 All. Mritunjaya @ Tinku Vs. State of U.P.
475
by deceased, sole basis of conviction.
(Para 18)

Fire put out by appellant and deceased
was admitted to hospital in injured
condition by appellant and his family
members, no intention to kill deceased -
Deceased died after six days and during
this period, she was admitted in hospital
and under treatment - Doctor conducted
post-mortem, mentioned cause of death
as "Shock" - Death was not premeditated,
had knowledge and intention to cause
bodily harm but did not want to do away
with deceased. (Para 24, 26)

Appeal partly allowed. (E-13)

List of Cases cited:

1. Lakhan Vs St. of M.P., (2010) 8 Supreme
Court Cases 514

2. Trimukh Maruti Kirken Vs St. of Mah., 2006
(3) 1426 SC

3. Krishan Vs St. of Har., (2013) 3 Supreme
Court Cases 280

4. Ramilaben Hasmukhbhai Khristi Vs St. of Guj.,
(2002) 7 SCC 56

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

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

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

8. Gautam Manubhai Makwana Vs St. of Guj.,
(Criminal Appeal No.83 of 2008), decided on
11.9.2013, (Para 12 to 17)

9. Anversinh Vs St. of Guj., (2021) 3 SCC 12

10. Pravat Chandra Mohanty Vs St. of Odisha,
(2021) 3 SCC 529

11. Pardeshiram Vs St. of M.P., (2021) 3 SCC
238
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This appeal has been preferred
against
the
judgment
and
order
of
conviction
and
sentencing
dated
25.07.2016 passed by Additional Sessions
Judge/Fast Track Court, Jaunpur in S.T. No.
279/2012 (State Vs. Mritunjaya @ Tinku)
Case Crime No. 275/2012 under Section
498-A, 304-B, 302/34, 323, 506, 326 I.P.C.
and Section 3⁄4 of D.P. Act, Police Station -
Jalalpur, District - Jaunpur whereby the
appellant has been convicted and sentenced
to undergo imprisonment for one year with
fine of Rs. 1,000/- under Section 498-A
I.P.C., to undergo imprisonment for life
under Section 304-B I.P.C. and to undergo
imprisonment for six months with fine of
Rs. 500/- under Section 4 D.P. Act with
default stipulation.

2. In brief, facts of the case are that
Geeta Devi daughter of the informant
Shyammilan was married to Tinku son of
Ram Sahai on 13.6.2011 after giving gifts,
dowry and other household articles as per
his capacity. On 26.5.2012 Geeta Devi
went to her marital house after marriage
where family members of her husband
started quarreling with her for dowry and
also tendered threatening to her. After five
days when informant alongwith his son and
brother-in-law went to the marital house of
his daughter, the family members of her
husband did not permit to meet with his
daughter and started demanding dowry.
Anyhow when he met with his daughter,
she informed about the maltreatment,
cruelty committed by her in-laws and non
providing of food to her and when the
informant wanted to talk with the family
members of his daughter, her husband
became angry, her father-in-law started
threatening that if Rs. 50,000/ and golden
476 INDIAN LAW REPORTS ALLAHABAD SERIES
chain are not provided, they shall burn his
daughter to death. On 12.6.2017 at about
11-12 P.M., the informant received the
information that his daughter had been
burnt by her in-laws. He came to District
Hospital, Jaunpur and saw that his daughter
was in serious condition.

3. Thereafter, he moved the written
complaint Ex. Ka-1 whereupon F.I.R. Ex.
Ka-2 was lodged and Kayami G.D. Ex. Ka3, site plan Ex. Ka-6 & 7 were prepared
and after recording the statement, chargesheet Ex. Ka-8, under Section 498A, 323,
506, 326, 304 B I.P.C. and Section 3⁄4 D.P.
Act was submitted by the I.O.

4. On 31.8.2012 the case was
committed to the Court of Sessions by
C.J.M. Jaunpur, where on 7.12.2012
charges were framed in the aforesaid
Sections alongwith Section 302/34 I.P.C.
The accused persons denied the charges
and sought trial, hence, trial began and
following witnesses were examined.

1
Shaymmilal
PW1
2
Laxmi Devi
PW2
3
Vidhya Devi
PW3
4
H.C.P.
Shailendra
Kumar
PW4
5
Dr. Nem Singh
PW5
6
Kamla Prasad
PW6
7
Dr. Udaibhan Singh
PW7
8
C.O., Anand Kumar
PW8
9
Retired
Tehsildar
Mahadev Singh Yadav

PW9

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

1
Written Report
Ex.Ka1
2
Chick F.I.R.
Ex.Ka.2
3
Corbon G.D.
Ex. Ka.3
4

Ex.Ka.4
5
Dying Declaration of
Deceased Geeta Devi
Ex.Ka.5
6
Map
Ex.Ka.6 & 7
7
Charge-sheet
Ex.Ka.8
8
Medical Report of
doctor
Ex.Ka.9
9
Inquest
Ex.Ka.10
10
Letters to R.I, C.M.O.
and Police Form 13
Ex.Ka. 11 to
13

5. After closure of the prosecution
evidence, statement of the accused persons
under 313 Cr.P.C. was recorded who
claimed to be innocent. They have further
stated that on 12.6.2012 there was marriage
ceremony of daughter of their neighbour
namely Nan d Lal where they had gone.
There was a quarrel between the deceasedwife and her husband for living at
Aurangabad and when they were busy in
the marriage ceremony, at about 7:00 P.M.,
Kavita came out shouting that 'Geeta
Bhabhi got burnt', they immediately came
and extinguished fire and took the injured
in the Car to Sadar Hospital Jaunpur for
treatment.
Neither
any
dowry
was
demanded nor she was burnt to death by
them. The deceased herself got burnt due to
depression. In defence two witnesses
D.W.1 Nandlal and D.W.-2 Sanjay have
been examined.

6. In brief, oral evidence produced by
the prosecution as well as defence, is as
under;
7 All. Mritunjaya @ Tinku Vs. State of U.P.
477

(a) P.W.1- Informant, Shyammilan,
father of the deceased, has deposed that he
had solemnized marriage of his daughter
Geeta Devi on 13.6.2011 with accused
Tinku @ Mrityunjaya and had given gifts
as per his capacity. Next day of the
marriage, at the time of departure of the
bride, accused Ram Sahai refused to take
the bride to his house demanding Rs.
50,000/- and golden chain as dowry,
however, anyhow the bride could be
departed on the assurance that demand
would be fulfilled in future. His daughter
remained
there
for
one
month
and
thereafter came to her parental house. On
26.5.2012 when she was again departed for
her marital house, Ram Sahai made same
demand but anyhow she could be departed.
After five days when he, his son Ram
Ratan and his brother-in-law Arvind went
to meet his daughter, the father-in-law,
husband and aunt Shanti Devi, demanded
Rs. 50,000/- and a golden chain and did not
allow the informant to meet his daughter.
However, they somehow managed to
meet Geeta who informed that her inlaws used to beat her in regards with the
aforesaid demand and do not provide
food on time. When the informant tried to
talk regarding dowry, accused Tinku
became angry and accused Ram Sahai
threatened that if the demand was not
fulfilled, his daughter would be killed.
On 12.6.2012 at around 11-12 P.M.
someone informed him from the hospital
that his daughter was burnt by her in-laws
and she was admitted in Sadar Hospital.
Thereafter he alongwith his mother,
brother, Shivmilan, Hawaldar, his Bhabhi
and Champa Devi reached the hospital
and saw that Geeta was in very serious
condition and was not able to speak. She
was badly burnt. Seeing it, he became
mentally disturbed. The doctor said that
the condition of the patient is worrying,
thereafter he prepared an application and
gave it to the police station Jalalpur. It
was in his handwriting and signature. It
was exhibited as Ex. Ka-1.

(b) P.W.-2, Laxmi Devi, grandmother of the deceased, had given similar
statement to that of P.W.-1. In addition to
that she deposed that when they went to
District Hospital,Jaunpur, accused Tinku
and his mother were present. On being
asked, Tinku told that he had done
whatever he wanted, do whatever you
want and started quarreling. After quarrel,
Tinku left the hospital and Shyammilan
remained there. They used to visit the
hospital however on 18.6.2012 Geeta
died in the hospital and the dead body
was cremated by Shyammilan and others.

(c) P.W.-3, Vidhya Devi, mother of
the deceased, had also given similar
statement to that of P.W.-1. In addition to
that she has deposed that when she
reached the hospital, she saw that her
daughter
was
admitted
in
a burnt
condition who told her that Ram Sahai,
Mrityunjay, Shanti Devi and Manti Devi
had set her ablazed for dowry.

(d) P.W.-4, H.C.P. Shailendra Singh,
has proved chick F.I.R. and G.D. Ex. Ka-2.

(e) P.W.-5, Dr. Nem Singh, has
deposed that he has done postmortem of the
dead body of Geeta Devi. There were
superficial to deep flame burning on the
face, neck, upper part of hands, breast and
stomach, back and the upper portion of the
body had been burnt. In the internal part of
the dead body superficial to deep flame
burn injuries were present. Pluera and
trachea were found congested and swollen.
Lungs were congested and full of blood.
Uterus was normal. According to this
witness the deceased would have died on
19.6.2012 at about 7:45 P.M. The cause of
death was due to burn injuries. The dead
body was 60% burnt. Postmortem report
478 INDIAN LAW REPORTS ALLAHABAD SERIES
was prepared by Dr. Pankaj Kumar Pawan
in his own handwriting. This witness
proved post-mortem report as Ex. Ka-4.

(f) P.W.-6, Kamla Prasad, retired S.I.
and I.O. of the case has deposed that he had
prepared paper no. 1 of the case-diary on
13.6.2012 and had copied the chick F.I.R.,
recorded the statement of injured Geeta
Devi which he has proved as Ex.Ka-5. He
recorded the statement of the informant
Shyammial,
inspected
the
place
of
occurrence on the pointing of villagers and
prepared map Ex. Ka-6. Recorded the
statement of accused Tinku @Mritunjaya &
Ram Sahai after their arrest. Copied the
inquest in case-diary and added Section
304-B I.P.C., thereafter, the investigation
was transferred to C.O. Police.

(g) P.W.7, Dr. Udai Bhan Singh, has
proved the medical examination report as
Ex. Ka-9 and deposed that on 13.6.2012, he
was posted as Emergency Doctor in Amar
Shahid Umanath Singh District Hospital,
Jaunpur. Before recording the statement of
the injured, he had medically examined the
injured, she was in full consciousness and
was capable of giving statement which he
had mentioned in paper no. 146.

(h) P.W.-8, Anand Kumar, C.O., the
I.O. of the case has deposed that on
27.6.2012 he received the investigation of
the case and perused the previous paper of
case-diary, recorded the statement of
accused Manti, Shanti Devi, Laxmi Devi,
Ram Ratan, Shakuntala Devi, Champa
Devi and previous investigating officer. He
inspected the place of occurrence and
prepared map Ex. Ka-7, in parcha no. 10,
recorded statement of witness Ram Milan,
Arvind Kumar, Hawaldar, Rajendra Kumar
and Ramlagan alongwith the statements of
Naib Tehslidar Mahadev Singh Yadav,
Dr.Nem Singh, Dr. Pankaj Kumar and
Constable Lalbabu Yadav. In C.D. no.11
dated 14.7.2012, he recorded the statement
of Shailendra Singh. After finding the
commission of alleged crime, he submitted
charge-sheet Ex. Ka-8 against the accused
persons under Section 498A, 323, 506, 326,
304B and Section 3⁄4 D.P. Act, Police
Station Jalapur District Jaunpur.

(i) P.W.-9, Retired Tehsildar Mahadev
Singh Yadav, deposed that on 13.6.2012, he
was posted as Naib Tehsildar Sadar
Jaunpur, He went to District Hospital
Jaunpur where the deceased was admitted
in burnt condition in burn ward no. 2. After
getting the fitness certificate from Dr. U.B.
Singh, he recorded the dying declaration at
1:45 P.M. and after reading it out to the
injured her thumb impression was taken on
it, he certified it. This witness has proved
the dying declaration Ex. Ka-9.

After receiving the death report of
Geeta Devi, he went to mortuary at District
Hospital Jaunpur where S.I. Ramjeet and
constable Lal Bahadur Yadav alongwith
family member of the deceased were
present. He appointed five persons as
punchas and Panchayatnama was written
by speaking to S.I. Ramjeet and related
documents were prepared. The dead body
was
sealed
and
specimen
seal
was
prepared, thereafter the dead body was sent
to postmortem house through constable 814
Lal
Bahadur
Yadav.
This
witness
recognized his signature and proved the
inquest as Ex. Ka-10. Papers relating to
Panchayatnama were also proved by this
witness as Ex. Ka-11 to Ka-13.

(j) D.W.-1, Nand Lal, neighbour of the
accused, deposed that no demand of dowry
was made. On the fateful day there was
marriage ceremony of his two daughters
namely Soni and Rekha. The accused
persons were busy at his house regarding
arrangement of marriage ceremony. Kavita,
younger daughter of Ram Sahai came
crying out of her house and informed that
7 All. Mritunjaya @ Tinku Vs. State of U.P.
479
Bhabhi was burning. Hearing this when he
alongwith accused persons reached on the
spot, they saw that Geeta was ablzed, they
extinguished the fire by putting the
bedsheet on her body. They arranged a Car
and went to District Hospital Jaunpur
where after 6-7 days Geeta died during the
treatment.
Geeta
wanted
to
go
to
Aurnagabad with Tinku but due to lack of
residence, he expressed his inability for
which Geeta had a quarrel and in a fit of
anger she burnt herself by putting herself
on fire.

(k) D.W.-2 Sanjay, nephew of D.W.-1
has given similar statement to that of D.W.-
1.

7. After hearing the arguments, the
Trial Court convicted the accused-appellant
under Section 498-A, 304B I.P.C. and
Section 4 of the Dowry Prohibition Act.

8. Heard Sri Amit Kumar Pandey,
learned counsel for the appellant and
learned A.G.A. for the State.

9. Learned Trial Court concluded that
it was a case of dowry death but he ignored
the dying declaration that due to quarrel
with the husband, the wife-deceased was
set ablazed by the accused-appellant. The
learned Trial Court did not properly
consider the dying declaration and relied on
the statements of the witnesses of fact who
were not present on the spot. The dying
declaration is in question-answer form in
which she has clearly stated that due to
quarrel with husband she was set ablazed.
She has no where stated that she was set
ablazed due to demand of dowry. The
allegation of the prosecution that demand
of dowry of Rs. 50,000/- and a golden
chain was made and for the fulfillment of
the aforesaid demand, the deceased was
killed by setting herself into fire, has not
been stated by the deceased before her
death. Though the I.O. Kamla Prasad has
recorded the statement of the deceased
under Section 161 Cr.P.C. wherein it has
been written that the deceased was tortured
for the demand of dowry. Her husband used
to demand vehicle and golden chain but it
is not the case of the prosecution that any
vehicle was also demanded as dowry. Since
beginning it is the case of the prosecution
that the family members of the accused
were demanding Rs. 50,000/- and golden
chain. This statement has not been proved
as Dying Declaration, therefore, this
statement under Section 161 Cr.P.C. can not
be treated to be at par to the statement of
Dying
Declaration
recorded
by
the
Magistrate soon before the death of the
injured. Witnesses of fact P.Ws. 1 to 3,
were not present on the spot at the time of
occurrence, therefore, this Court is of the
view that the dying declaration made by the
deceased would prevail upon the statements
of the witnesses and the evidence recorded
by the I.O. under Section 161 Cr.P.C.

10. Learned counsel for the appellants
has argued that dying declaration is
doubtful and is not corroborated by the
witnesses of fact, hence, it cannot be the
sole basis of conviction. Legal position of
dying declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored, made voluntarily and is wholly
reliable. In this regard, Hon'ble Apex Court
has summarized the law regarding dying
declaration in Lakhan vs. State of
Madhya Pradesh [(2010) 8 Supreme
Court Cases 514], in this case, Hon'ble
Apex Court held that the doctrine of dying
declaration is enshrined in the legal maxim
nemo
moriturus
praesumitur
mentire,
which means, "a man will not meet his
Maker with a lie in his mouth". The
doctrine of dying declaration is enshrined
480 INDIAN LAW REPORTS ALLAHABAD SERIES
in Section 32 of Evidence Act, 1872, as an
exception to the general rule contained in
Section 60 of Evidence Act, which provides
that oral evidence in all cases must be
directed, i.e., it must be the evidence of a
witness, who says he saw it. The dying
declaration is, in fact, the statement of a
person, who cannot be called as witness
and, therefore, cannot be cross-examined.
Such statements themselves are relevant
facts in certain cases.

11. The law on the issue of dying
declaration can be summarized to the effect
that in case the court comes to the
conclusion that the dying declaration is true
and reliable, has been recorded by a person
at a time when the deceased was fit
physically and mentally to make the
declaration and it has not been made under
any tutoring/duress/prompting; it can be the
sole basis for recording conviction. In such
an eventuality no corroboration is required.
It is also held by Hon'ble Apex Court in the
aforesaid case, that a dying declaration
recorded by a competent Magistrate would
stand on a much higher footing than the
declaration recorded by office of lower
rank, for the reason that the competent
Magistrate has no axe to grind against the
person named in the dying declaration of
the victim.

12. It is very much clear and has been
established that after the incident the
deceased was admitted to the District
Hospital by in-laws. The incident had taken
place on 12.6.2012 and the deceased had
died on 19.6.2022. There were 65 percent
injuries on the person of the deceased.

13. Learned counsel for the appellant
argued that it is not a case of murder or
dowry death, virtually when the deceasedwife was not permitted to go to Aurngabad
with her husband-accused, she set herself
ablazed. If there have been mens rea of
murder, she would have been killed in any
other manner and she would have not been
admitted to the District Hospital for her
treatment
by
the
accused-appellant.
Learned counsel has further argued that the
Trial Court has wrongly relied on the
citation Trimukh Maruti Kirken Vs.
State of Maharashtra, 2006 (3) 1426 SC,
as the appellant was not present in the
house at the time of occurrence. The place
of occurrence and the house of D.W.-1 are
adjacent thus it was very much easy for the
accused to commit the crime and join the
marriage ceremony of the daughters of
D.W.1. In this regard Section 106 of the
Indian Evidence Act is relevant which is
noted herein below:

Applicability
of
Section
106,
Evidence Act: "Section 106 of the
Evidence Act is not intended to relive the
prosecution of its burden to prove the guilt
of the accused, but the section would apply
to cases where prosecution has succeeded
in proving facts for which reasonable
inference can be drawn regarding the
existence of certain other facts, unless the
accused by virtue of special knowledge
regarding such facts failed to offer any
explanation which might drive the court to
draw a difference inference."

It is lastly 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
11 years without remission, they may be
granted
fixed
term
punishment
of
incarceration.

14. Deceased survived for 6 days after
the
incident
took
place.
Her
dying
declaration was recorded by Mahadev
7 All. Mritunjaya @ Tinku Vs. State of U.P.
481
Singh Yadav, Naib Tehsildar after obtaining
the certificate of medical fitness from the
concerned doctor. This dying declaration
was proved by PW-9, Mahadev Singh
Yadav,, Naib Tehshildar. These witnesses
have absolutely independent witnesses. In
the wake of aforesaid judgments of Lakhan
(supra),
dying declaration
cannot
be
disbelieved, when it inspires confidence.
On reliability of dying declaration and
acting on it without corroboration, Hon'ble
Apex Court held in Krishan vs. State of
Haryana [(2013) 3 Supreme Court Cases
280] that it is not an absolute principle of
law that a dying declaration cannot form
the sole basis of conviction of an accused.
Where the dying declaration is true and
correct, the attendant circumstances show it
to be reliable and it has been recorded in
accordance with law, the deceased made
the dying declaration of her own accord
and upon due certification by the doctor
with regard to the state of mind and body,
then it may not be necessary for the court to
look for corroboration. In such cases, the
dying declaration alone can form the basis
for the conviction of the accused. Hence, in
order to pass the test reliability, a dying
declaration has to be subjected to a very
close scrutiny, keeping in view the fact that
the statement has been made in the absence
of the accused, who had no opportunity of
testing the veracity of the statement by
cross-examination. But once, the court has
come to the conclusion that the dying
declaration was the truthful version as to
the circumstance of the death and the
assailants of the victim, there is no question
of further corroboration.

15. In Ramilaben Hasmukhbhai
Khristi vs. State of Gujarat, [(2002) 7
SCC 56], the Hon'ble Apex Court held that
under the law, dying declaration can form
the sole basis of conviction, if it is free
from any kind of doubt and it has been
recorded in the manner as provided under
the law. It may not be necessary to look for
corroboration of the dying declaration. As
envisaged, a dying declaration is generally
to be recorded by an Executive Magistrate
with the certificate of a medical doctor
about the mental fitness of the declarant to
make the statement. It may be in the from
of question and answer and the answers be
written in the words of the person making
the declaration. But the court cannot be too
technical and in substance if it feels
convinced about the trustworthiness of the
statement which may inspire confidence
such a dying declaration can be acted upon
without any corroboration.

16. From the above precedents, it
clearly emerges that it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused when such dying declaration is
true, reliable and has been recorded in
accordance with established practice and
principles and if it is recorded so then there
cannot be any challenge regarding its
correctness and authenticity.

17. In dying deceleration of the
deceased, it is also relevant to note that
deceased died after three days of its
recording. It means that she remained alive
for
three
days
after
making
dying
declaration, therefore, truthfulness of dying
declaration can further be evaluated from
the fact that she survived for three days.
After making it from which it can
reasonably be inferred that she was in a fit
mental condition to make the statement at
the relevant time.

18. As already noticed, none of the
witnesses or the authorities involved in
recording the dying declaration had turned
482 INDIAN LAW REPORTS ALLAHABAD SERIES
hostile. On contrary, they have fully
supported the case of prosecution. The
dying declaration is reliable, truthful and
was voluntarily made by the deceased,
hence, this dying declaration can be acted
upon without corroboration and can be
made the sole basis of conviction. Hence,
learned trial court has committed no error
on acting on the sole basis of dying
declaration.
Learned
trial
court
was
completely justified in placing reliance on
dying declaration Ex.Ka-9 and convicting
the accused-appellants on the basis of it.

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 appellant.

20. 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."

21. 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 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;
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
7 All. Mritunjaya @ Tinku Vs. State of U.P.
483
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.

22. 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.

23. In the case in hand, after perusal
of dying declaration of the deceased it is
not revealed as to why the appellant had
poured the kerosene oil on the deceased
and set her ablazed. Moreover, it is stated
by the deceased in dying declaration that
fire was also put out by the appellant
himself, hence, there is no dispute to the
fact that fire was put out by the appellant
and as per the dying declaration, it is also
not in dispute that appellant and his family
members had taken the deceased to the
District Hospital, Jaunpur, for treatment
and she was admitted by them.

24. Keeping in view of the aforesaid
fact that fire was put out by the appellant
himself and deceased was admitted to the
hospital in injured condition by the
appellant and his family members, it is
transpired that appellant had no intention to
kill the deceased. The deceased died after
six days of the occurrence and during this
period, she constantly remained admitted in
District Hospital and was under treatment.
Doctor conducted the post-mortem, has
also mentioned the cause of death as
"Shock".

25. On the basis of above scrutiny of
the facts and circumstances of the case
coupled with the opinion of the medical
officer and considering the principle laid
down by the Hon'ble Apex Court in the
case of Tuka Ram and others vs. State of
Maharashtra [(2011) 4 SCC 250] and in
the case of BN Kavadakar and another
vs. State of Karnataka [1994 Supp (1)
304], we are of the considered opinion that
the offence would be punishable under
Section 304 (Part-I) IPC because the burn
injuries were caused to the deceased by
appellant with the intention to cause such
bodily injuries as were likely to cause death
and, therefore, the instant case falls under
the Exceptions 4 of Section 300 IPC.

26. From the upshot of the aforesaid
discussions, it appears that the death caused
by the accused was not premeditated,
accused
though
had
knowledge
and
intention to cause bodily harm to the
deceased but did not want to do away with
the 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 PartI 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.
484 INDIAN LAW REPORTS ALLAHABAD SERIES

27. 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 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
7 All. Mritunjaya @ Tinku Vs. State of U.P.
485
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
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."

28. In latest decision in Khokan@
Khokhan (Supra) where the facts were
similar to this case, the Apex Court has
allowed the appeal of the accused appellant.
The decision of the Apex Court in the case of
Anversinh v. State of Gujarat, (2021) 3 SCC
12 which was related to kidnapping from legal
guardianship, wherein it was established that
the Court while respecting the concerns of
both society and victim, propounded that the
twin principle of deterrence and correction
would be served by reducing the period of
incarceration already undergone by the
accused. In our case, this is not that gruesome
matter where the accused cannot be dealt with
in light of all these judgments. Judgments in
Pravat Chandra Mohanty v. State of
Odisha, (2021) 3 SCC 529 & Pardeshiram
v. State of M.P., (2021) 3 SCC 238 will also
ensure for the benefit of the accused.
486 INDIAN LAW REPORTS ALLAHABAD SERIES

29. Thus 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 under
Section 304 of the I.P.C.