# Niranjan Singh v. State Of U.P

- **Citation:** (2022) 1 ILRA 562
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-16
- **Case number:** Criminal Appeal No. 4718 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/niranjan-singh-v-state-of-u-p-47476
- **Pages:** 10

## Headnote

A.G.A., Sri Gaurav Kakkar

Death of deceased was a homicidal death-
assailants made fire towards complainant Bobby
with intention to kill him but complainant saved
himself by running towards roof from staircase
and fire hit the mother of the complainant,
Tanushree, due to which she sustained injury,
hence, the meticulous analysis of entire
evidence available on record permits us to form
the opinion that appellants were having no
intention at all to kill the mother of the
complainant.
1 All. Niranjan Singh Vs. State of U.P.
563
Dying declaration of deceased-Tanushree also
suggests that appellants came to kill the
complainant and not his mother but she
sustained bullet injury accidentally. Hence, in
this occurrence, the intention to kill or to cause
such bodily injury to the deceased-Tanushree is
missing.

there was no intention of appellants to kill the
deceased or to cause such bodily injury to the
deceased which was inflicted to her.

cause of death of the deceased was septicemia
shock which was due to septicemia in entire
body- the direct result of death of deceased is
development of infection in whole body due to
the injury sustained in the occurrence that
caused septicemia. in the case in hand, from the
angle of septicemia also, offence would be
punishable under Section 304 Part II of IPC.

the
death
of
the
deceased
was
not
premeditated. Appellants had no intention to
cause death of the deceased and she died due
to septicemia in whole of her body which was
not the direct result of the injury sustained in
the accident. The instant case falls within the
purview of culpable homicide not amounting to
murder.

## Text

562 INDIAN LAW REPORTS ALLAHABAD SERIES
the basis of statements of two police
officials alone is not sustainable, as held in
Sans Pal Singh Vs. Delhi reported in 1998
SCC Criminal 641. Charge under Section
25/27, 25Arms Act is not proved beyond
reasonable doubt.

65. On the basis of above discussion
we are of the view that the conviction
under Sections 25/27 Arms Act and 25
Arms Act is manifestly erroneous and
illegal. So the conviction of Makrand Singh
under Section 25/27 Arms Act, Rishikesh
under Section 25 Arms Act, Ramjeet under
Section 25 Arms Act is set aside.

66. On page 15 and 21 of the
impugned judgment, month of June has
been typed inadvertently which should be
read as month of October because the
incident took place on 06.10.2003.

67. Conviction and sentence of
accused Makrand Singh, Ramjeet Singh,
Rishikesh under Section 25 Arms Act, two
year rigorous imprisonment and Rs. 1000/-
fine each, in default thereof to undergo two
months additional rigorous imprisonment is
hereby set aside. The appeal under Section
25 Arms Act is accordingly allowed.

68. On the basis of above discussion,
we are of the view that judgment and order
of the trial court dated 27.07.2006 passed
by Additional Sessions Judge/F.T.C. 2nd
Court No. 7, Banda in Session Trial No.
86/2004 arising out of Case Crime No.
198/2003, Police Station- Baberu, District-
Banda convicting and sentencing the
appellant to go rigorous life imprisonment
under Section 302/34 I.P.C. with a fine of
Rs. 5000/- each in default thereof to
undergo six month additional rigorous
imprisonment by each is hereby confirmed.

69. During appeal appellants Makrand
Singh, Ramjeet Singh, Ramkaptan and
Rishikesh remained in judicial custody,
accused are directed to serve out the
remaining period of sentence.

70. The appeal under Section 302/34
I.P.C. is devoid of merits and dismissed
accordingly.
----------
(2022)01ILR A562
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 4718 of 2018
&
Criminal Appeal No. 4859 of 2018

Niranjan Singh ...Appellant
Versus
State Of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Yogesh Kumar Srivastava, Sri Dileep
Kumar,
Sri
Rajrshi
Gupta,
Sri
Noor
Muhammad

Counsel for the Opposite Party:
A.G.A., Sri Gaurav Kakkar

Death of deceased was a homicidal death-
assailants made fire towards complainant Bobby
with intention to kill him but complainant saved
himself by running towards roof from staircase
and fire hit the mother of the complainant,
Tanushree, due to which she sustained injury,
hence, the meticulous analysis of entire
evidence available on record permits us to form
the opinion that appellants were having no
intention at all to kill the mother of the
complainant.
1 All. Niranjan Singh Vs. State of U.P.
563
Dying declaration of deceased-Tanushree also
suggests that appellants came to kill the
complainant and not his mother but she
sustained bullet injury accidentally. Hence, in
this occurrence, the intention to kill or to cause
such bodily injury to the deceased-Tanushree is
missing.

there was no intention of appellants to kill the
deceased or to cause such bodily injury to the
deceased which was inflicted to her.

cause of death of the deceased was septicemia
shock which was due to septicemia in entire
body- the direct result of death of deceased is
development of infection in whole body due to
the injury sustained in the occurrence that
caused septicemia. in the case in hand, from the
angle of septicemia also, offence would be
punishable under Section 304 Part II of IPC.

the
death
of
the
deceased
was
not
premeditated. Appellants had no intention to
cause death of the deceased and she died due
to septicemia in whole of her body which was
not the direct result of the injury sustained in
the accident. The instant case falls within the
purview of culpable homicide not amounting to
murder.

(Delivered by Hon'ble Ajai Tyagi, J.)

1. Both these appeals have been
preferred by the appellants against the
judgment and order dated 7.8.2018, passed
by learned Additional Sessions Judge, Fast
Track Court No.1, Firozabad in Sessions
Trial No. 7 of 2016 (State of Uttar Pradesh
v. Bangali Babu and others) arising out of
Case Crime No.142 of 2015, under
Sections 452, 506, 302 read with Section
34 of Indian Penal Code, 1860 (in brevity
'IPC'), Police Station Pachokhara, District
Firozabad, whereby, accused-appellants,
Bangali Babu and Pinki alias Ramakant
have been convicted and sentenced under
Section 302 read with Section 34 of IPC for
life imprisonment and fine of Rs.50,000/-
each. They were further directed to
undergo 1 year simple imprisonment in
case of default of fine. Accused-appellant,
Niranjan
Singh,
was
convicted
and
sentenced under Section 302 of IPC for life
imprisonment and fine of Rs. 50,000/-. He
was further directed to undergo 1 year
simple imprisonment in case of default of
fine. All the accused-appellants namely,
Bangali Babu, Niranjan Singh and Pinki
alias Ramakant were further convicted and
sentenced under Section 452 of IPC for
rigorous imprisonment of 7 years and fine
of Rs.5,000/- each. They were further
directed to undergo 6 months simple
imprisonment in case of default of fine.
They were also convicted and sentenced
under Section 506 (Part 2) of IPC for 7
years rigorous imprisonment and fine of
Rs.5,000/- each and they were directed to
further
undergo
6
months
simple
imprisonment in case of default of fine. All
the
sentences
were
directed
to
run
concurrently.

2. Brief facts giving rise to this appeal
are that a written report (Ex.Ka.1) was
submitted by the complainant, Bobby alias
Nar Singh Pal at Police Station Pachokhara,
Firozabad with the averments that in the
night of 30.3.2015 at about 10.00 p.m.,
complainant's
mother
Tanushree
and
daughter, Kumari Shalini were sleeping in
the house on separate cots. Light was on.
On that time residents of same village,
Bangali Babu, s/o Bachha Singh, Niranjan
Singh s/o Bangali Babu and Pinki alias
Ramakant, s/o Singh Pal Singh entered the
house by opening the main gate with
country made pistol in their hands. Just
entering the house, Bangali Babu fired at
the complainant with intention to kill him
but he saved himself and climbed on the
roof using staircase and screamed from
564 INDIAN LAW REPORTS ALLAHABAD SERIES
there. Gunshot was fired at the mother of
the complainant, Tanushree, with intention
to kill her which hit in her stomach. On
hearing the screaming of complainant and
noise of fires, many people gathered on the
spot who saved complainant and others. All
the accused persons ran away after giving
life
threat
to
the
complainant.
The
complainant took his injured mother,
Tanushree, to the Police Station but his
report was not lodged in Police Station and
she was sent to District Hospital, Agra
where she was medically examined and
was referred to S.N. Medical College, Agra
but looking to the serious condition of his
mother, the complainant admitted her
mother in Akash Hospital, Agra, where she
was treated.

3. On this written report, First
Information Report was registered at Police
Station Pachokhara on 2.4.2015 under
Sections 307, 452 & 504 of IPC. During
treatment, Tanushree, the mother of the
complainant, succumbed to the injuries
after two months of the occurrence.

4. Investigation was taken up by S.I.
Vijendra Kumar Singh. He visited the spot,
prepared site plan and recorded statements
of witnesses under Section 161, Cr.P.C.
Medical examination of injured mother of
the
complainant
was
conducted
and
medical report was prepared. During course
of investigation, dying declaration of
Tanushree was recorded. After two months
of the occurrence, Tanushree died due to
septicemia which took place due to injury
caused to her in the occurrence. After the
death of the injured Tanushree, case was
converted into Section 302 of IPC.
Postmortem of the deceased was conducted
after inquest report and postmortem report
was
prepared.
After
completing
investigation, charge-sheet was submitted
by Investigating Officer against the accused
persons Bangali Baba, Niranjan Singh and
Pinki alias Ramakant under Section 452,
506 & 302 IPC. The case being triable
exclusively by the Court of Sessions was
committed to the Court of Sessions by the
competent Magistrate for trial.

5. Learned Trial Court framed charges
against all the accused persons under
Sections 452, 302 read with 34, and 506 of
I.P.C. Accused persons denied the charges
and claimed to be tried.

6.

To
bring
home
charges,
prosecution produced following witnesses:

1.
Bobby@ Nar Singh Pal PW1
2.
Pushpa Devi
PW2
3.
Shalini Yadav
PW3
4.
Dr. Alok Kumar
PW4
5.
Dr. Dharmveer Singh
PW5
6.
Vijendra Kumar Singh
PW6
7.
Krishna Pal Singh
PW7
8.
Kamlesh Singh
PW8

7. In support of ocular testimony of
the witnesses, prosecution filed following
documentary evidence

1.
F.I.R.
Ex.Ka.9
2.
Written Report
Ex.Ka.1
3.
Statement of Tanushree Ex.Ka.6
4.
Panchayatnama
Ex.Ka.11
5.
Postmortem Report
Ex.Ka.3
6.
Site Plan
Ex.Ka.4
7.
Charge-sheet

Ex.Ka.8
1 All. Niranjan Singh Vs. State of U.P.
565

8. After completion of prosecution
evidence, statements of accused persons
were recorded under Section 313 of
Cr.P.C., in which they had told that false
evidence was led against them and they
were implicated falsely due to enmity with
the complainant. Six witnesses, namely,
Mishri Lal, D.W.1, Hari Vilas, D.W.2,
Vinod Kumar, D.W.3, Gopal Singh,
D.W.4, Dharmendra Singh @ Dharmveer,
D.W.5, and Pushpendra Singh, D.W.6,were
examined in defence.

9. Heard Sri Rajarshi Gupta and Sri
Yogesh
Kumar
Srivastava,
learned
Advocate
for
accused-appellants,
Sri
Gaurav Kakkar, learned counsel for the
complainant and learned A.G.A. for the
State.

10. Learned counsel for the appellants
submitted that First Information Report of
this case was lodged after the delay of three
days which is not explained either in the
F.I.R. itself or in the statement of
complainant. Learned counsel submitted
that delay of 3 days in lodging F.I.R in such
type of case clearly shows that it was
lodged after consultation to implicate the
appellants falsely due to previous enmity
between parties, hence, delay in lodging
F.I.R. is fatal to the prosecution case.

11. Learned counsel for the appellants
further submitted that perusal of written
report (Ex. Ka.1) shows that it is dated as
2.4.2015 which means that it was written
by the complainant on 2.4.2015 while the
alleged
occurrence
took
place
on
30.3.2015.

12. Learned counsel for the appellants
next submitted that medical evidence of
this case does not match with the averments
of F.I.R. and the evidence of so called
eye-witnesses. In F.I.R. it is specifically
stated that fire was made at the mother of
the complainant with intention to kill her
which hit in her stomach. Same statements
were given by P.W.1, P.W.2, and P.W.3
but the medical examination of deceasedTanushree which was conducted by Dr.
Alok Kumar who was examined as P.W.4
speaks otherwise. He has described the
injury of deceased-Tanushree as ''lacerated
wound size 1 x 1 c.m. in the lower side of
the stomach'. He has specifically stated that
there is no blackening and tattooing around
the
wound
and
further
in
cross
examination, he has stated that it is correct
that at the time of medical examination he
did not find any gunshot injury on the body
of the injured-Tanushree.

13. Learned counsel for the appellants
vehemently argued that the aforesaid
statement of P.W.4, Dr. Alok Kumar, has
shattered the prosecution case because no
gunshot injury was found by the doctor on
the body of injured-Tanushree while
prosecution has brought specific case that a
fire was made towards Tanushree with
intention to kill her which hit in her
stomach,
hence,
there
are
serious
contradictions in ocular testimony and
medical evidence which go to the root of
the case and it is proved that entire story of
prosecution is fabricated just to implicate
accused persons falsely due to ongoing
previous enmity between them.

14. Learned counsel for the appellant
also submitted that six witnesses were
examined by the accused persons in
defence. Their statements also indicate that
there
was
previous
enmity
between
complainant and the accused persons but
Trial Court did not consider this aspect.
566 INDIAN LAW REPORTS ALLAHABAD SERIES
Learned counsel for the appellants further
submitted that injured-Tanushree died after
two months of the occurrence due to
septicemia, hence, cause of death was not
hitting the bullet if prosecution case is to be
believed for a while. It is argued that Dr.
Dharmveer Singh, P.W.5, was produced by
prosecution who conducted the postmortem
of the deceased who has stated in
examination in chief that cause of death of
the deceased was septicemia shock which
was due to septicemia in entire body.

15. Learned counsel for the appellant
also argued that injured-Tanushree was
discharged from the hospital after 12 days of
treatment. In cross-examination also Dr.
Dharmveer Singh, P.W.5, has affirmed his
opinion that deceased died due to septicemia.

16. After above arguments, learned
counsel for the appellants has submitted that
he is not inclined to argue further on merit of
appeal but prayed for reduction of sentence
for the reasons of aforesaid arguments.

17. Learned A.G.A. submitted that
delay in lodging the F.I.R. is explained that
his report was not lodged by the police just
after the date of occurrence, hence, delay
cannot be fatal to the prosecution case. It is
further submitted by learned A.G.A. that
there are eye witnesses in this case namely
P.W.1, son of deceased, P.W.2, daughter-inlaw of deceased, P.W.3, grand daughter of
deceased. Since the incident is of 10 O'Clock
in the night, the presence of all these three
eye-witnesses was natural on the spot, hence
their testimonies cannot be disbelieved on the
ground that they are family members of the
deceased.

18. Learned A.G.A. next submitted
that deceased made dying declaration
before her death in which she has named all
the three accused persons and it was also
stated by her that she sustained bullet injury
in the occurrence. Learned A.G.A. stated
that the bullet was recovered from the body
of the deceased-Tanushree at the time of
her medical examination and it was
collected by the Investigating Officer from
Akash Hospital, Agra where she was
treated. Hence, it cannot be said that there
was no gunshot injury on the body of
deceased-Tanushree.

19.

Learned
Counsel
for
the
appellants again reiterated that he was not
arguing for clean acquittal of the appellants
but sentence awarded to them must be
reduced in view of the above arguments
made by him. He has again reiterated that
this case does not fall within the ambit of
Section 302 of IPC and does not travel
beyond the scope of Section 326 I.P.C. or
Section 304 of I.P.C.

20. The finding of fact regarding the
presence of witnesses at the place of
occurrence cannot be faulted with. Death of
deceased was a homicidal death. The fact
that it was a homicidal death takes this
Court to most vexed question whether it
would fall within the four-corners of
murder
or
culpable
homicide
not
amounting to murder. Therefore, we are
considering the question whether it would
be a murder or culpable homicide not
amounting to murder and punishable under
Section 304 IPC.

21. In State of Uttar Pradesh vs.
Mohd. Iqram and another, [(2011) 8
SCC 80], the Apex Court has made the
following observations in paragraph 26,
therein:

"26. Once the prosecution has
brought home the evidence of the presence
1 All. Niranjan Singh Vs. State of U.P.
567
of the accused at the scene of the crime,
then the onus stood shifted on the defence
to have brought-forth suggestions as to
what could have brought them to the spot
in the dead of night. The accused were
apprehended and, therefore, they were
under an obligation to rebut this burden
discharged by the prosecution and having
failed to do so, the trial-court was justified
in recording its findings on this issue. The
High Court committed an error by
concluding that the prosecution had failed
to discharge its burden. Thus, the judgment
proceeds on a surmise that renders it
unsustainable."

22. 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."

23. 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
568 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

24. In the case in hand, deceasedTanushree was first examined by Dr. Alok
Kumar who was produced as P.W.4. He
has mentioned following injury on the
person of injured-Tanushree at the time of
medical examination:

"Lacerated wound size 1 x 1 c.m.
right side 5 c.m. below navel."

He has also mentioned in medical
report (Ex.Ka.2) that no blackening or
tattooing was present around the wound.

25. Learned counsel for the appellants
has vehemently argued that there was no
blackening or tattooing around the wound of
the injured-Tanushree which shows that there
was no gunshot injury but, we are not in
agreement with learned counsel for the
appellants regarding this argument because if
fire is made from a distance of more than 6
ft., there is no possibility of blackening or
tattooing as is the case of prosecution that fire
was made towards Tanushree from distance.
Although Dr. Alok Kumar, P.W. 4, has also
suggested in his statement that there was no
gunshot injury on the body of the deceased
but it is possible that this statement was made
by P.W.4, due to absence of blackening or
tattooing around the wound. It cannot be
ruled out that the deceased sustained bullet
injury as bullet was collected by Investigating
Officer from Akash Hospital, Agra where
deceased-Tanushree
was
examined
and
treated further.

26. Hence, we reached to the
conclusion that injured sustained bullet injury
but at the very same time after perusing the
evidence of P.W.1, P.W.2 & P.W.3,
threadbare as well as considering averments
made in First Information Report, it is
transpired that assailants made fire towards
complainant Bobby with intention to kill him
but complainant saved himself by running
towards roof from staircase and fire hit the
mother of the complainant, Tanushree, due to
which she sustained injury, hence, the
meticulous analysis of entire evidence
available on record permits us to form the
opinion that appellants were having no
intention at all to kill the mother of the
complainant. Dying declaration of deceasedTanushree also suggests that appellants came
to kill the complainant and not his mother but
she sustained bullet injury accidentally.
Hence, in this occurrence, the intention to kill
or to cause such bodily injury to the
deceased-Tanushree is missing.

27. Hence, on considering the
principle laid down by the Apex Court in
the case of Tuka Ram and others v. State
of Maharashtra (2011) 4 SCC 250 and in
the case of B.N. Kavadakar and another
v. State of Karnataka, 1994 Supp. (1)
304, we are of the considered opinion that
offence would be punishable under Section
304 Part II of IPC from the angle that there
was no intention of appellants to kill the
deceased or to cause such bodily injury to
the deceased which was inflicted to her.

28. Another angle in this case is that
the death of the deceased took place after
1 All. Niranjan Singh Vs. State of U.P.
569
two months of the occurrence and the
postmortem report (Ex.Ka.3) shows that
cause of death was septicemia shock.
Postmortem of deceased was conducted by
Dr. Dharmveer Singh, P.W.5. He has stated
in his statement that cause of death of the
deceased was septicemia shock which was
due to septicemia in entire body. This
opinion was also affirmed by P.W.5 in his
cross examination. Evidence in this regard
shows that deceased-Tanushree survived
for two months after the occurrence.
Hence, we are of the opinion that the direct
result of death of deceased is development
of infection in whole body due to the injury
sustained in the occurrence that caused
septicemia.

29. In Bengai Mandal alias Begai
Mandal vs. State of Bihar [(2010) 2 SCC
91], incident occurred on 14.7.1996, while
the deceased died on 10.8.1996 due to
septicemia caused by burn injuries. The
accused was convicted and sentenced for
life imprsonment under Section 302 IPC,
which was confirmed in appeal by the High
Court, but Hon'ble The Apex Court
converted the case under Section 304 PartII IPC on the ground that the death ensued
after twenty-six days of the incident as a
result
of
septicemia
and
not
as
a
consequence
of
burn
injuries
and,
accordingly, sentenced for seven years'
rigorous imprisonment.

30. In Maniben vs. State of Gujarat
[(2009) 8 SCC 796], the incident took place
on 29.11.1984. The deceased died on
7.12.1984. Cause of death was the burn
injuries. The deceased was admitted in the
hospital with about 60 per cent burn
injuries and during the course of treatment
developed septicemia, which was the main
cause of death of the deceased. Trial-court
convicted the accused under Section
304 Part-II IPC and sentenced for five
years' imprisonment, but in appeal, High
Court convicted the appellant under Section
302 IPC. Hon'ble The Apex Court has held
that during the aforesaid period of eight
days, the injuries aggravated and worsened
to the extent that it led to ripening of the
injuries and the deceased died due to
poisonous
effect
of
the
injuries.
Accordingly,
judgment
and
order
convicting the accused under Section 304
Part-II
IPC
by
the
trial-court
was
maintained and the judgment of the High
Court was set aside.

31. In Chirra Shivraj vs. State of
Andhra Pradesh [(2010) 14 SCC 444],
incident took place on 21.4.1999. Deceased
died on 1.8.1999. As per the prosecution
version, kerosene oil was poured upon the
deceased, who succumbed to the injuries.
Cause of death was septicemia. Accused
was convicted under Section 304 Part-II
IPC and sentenced for five years' simple
imprisonment, which was confirmed by the
High Court. Hon'ble The Apex Court
dismissed the appeal holding that the
deceased suffered from septicemia, which
was caused due to burn-injuries and as a
result thereof, she expired on 1.8.1999.

32. 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
570 INDIAN LAW REPORTS ALLAHABAD SERIES
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-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.

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
1 All. Tarun Pandit Vs. State of U.P. & Anr.
571
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."

33. On overall scrutiny of the facts
and circumstances of this case coupled with
medical evidence and the opinion of medical
officers and considering the principle laid
down by the Courts in above referred case
laws, we are of the considered opinion that
in the case in hand, from the angle of
septicemia
also,
offence
would
be
punishable under Section 304 Part II of IPC.

34. From the upshot of the aforesaid
discussion, it appears that the death of the
deceased was not premeditated. Appellants
had no intention to cause death of the
deceased and she died due to septicemia in
whole of her body which was not the direct
result of the injury sustained in the
accident. The instant case falls within the
purview
of
culpable
homicide
not
amounting
to
murder.
Hence,
entire
evidence on the record and position of law
in this regard permit us to convert the
conviction and sentence of all the accusedappellants from the offence punishable
under Section 302 of IPC into offence
punishable under Section 304 Part II of IPC.

35. The conviction and sentence of
accused-appellants under Section 302 read
with Section 34 of IPC is converted into
offence punishable under Section 304 Part II
read with Section 34 of IPC and, therefore,
we convict and sentence the accusedappellants
for
10
years
rigorous
imprisonment and Rs.10,000/- fine each.
They shall further undergo 1 year simple
imprisonment in case of default of fine.
Conviction and sentence of all accusedappellants for rest of the offences shall
remain intact. All the sentences shall run
concurrently.

36. In this way, appeal is liable to be
partly allowed. Accordingly, the appeal is
partly allowed as modified above. Record
and proceedings be sent back to the Trial
Court forthwith.
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(2022)01ILR A571
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2022

BEFORE
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Revision No. 1154 of 2021

Tarun Pandit ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties