# Pawan v. State of U.P. Opp. Party

- **Citation:** (2022) 7 ILRA 206
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-24
- **Case number:** Crl. Appel. No. 1770 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-v-state-of-u-p-opp-party-48878
- **Pages:** 8

## Headnote

(A) Criminal Law - Indian Penal Code, 1860
- Sections 299,300,302 & 307 - The Code of
Criminal Procedure, 1973 - Section 313 -
Evidence Act, 1872 - Section 32 - dying
declaration and its evidentiary value -
murder - culpable homicide - not an
absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused - twin principle of
deterrence and correction would be served
by reducing the period of incarceration
already undergone by the accused. (Para -
19,20)

Accused poured kerosene on deceased - set ablaze
- dying declaration - poured water to save her -
second dying declaration - accused was brother in
law of deceased - demanded monies - gave him
two slaps - in infuriation, set her ablaze - Death
caused by accused - not premeditated - no
intention to cause death - injuries were though
sufficient in the ordinary course of nature to have
caused death - no intention to do away with
deceased. (Para - 13,18)

HELD:-Case falls under Exceptions 1 and 4 to
Section 300 of IPC. Considering Section 299,
offence committed will fall under Section 304 PartI of IPC. Death due to septicemia. Offence not
under Section 302 of I.P.C. but culpable homicide .
Sentence of accused appellant reduced to the
period eight years with remission. (Para -18,22 )

Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

206 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)07ILR A206
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.06.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Crl. Appel. No. 1770 of 2017

Pawan ...Appellant
Versus
State of U.P. ...Opp. Party

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

Counsel for the Respondents:
G.A.

(A) Criminal Law - Indian Penal Code, 1860
- Sections 299,300,302 & 307 - The Code of
Criminal Procedure, 1973 - Section 313 -
Evidence Act, 1872 - Section 32 - dying
declaration and its evidentiary value -
murder - culpable homicide - not an
absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused - twin principle of
deterrence and correction would be served
by reducing the period of incarceration
already undergone by the accused. (Para -
19,20)

Accused poured kerosene on deceased - set ablaze
- dying declaration - poured water to save her -
second dying declaration - accused was brother in
law of deceased - demanded monies - gave him
two slaps - in infuriation, set her ablaze - Death
caused by accused - not premeditated - no
intention to cause death - injuries were though
sufficient in the ordinary course of nature to have
caused death - no intention to do away with
deceased. (Para - 13,18)

HELD:-Case falls under Exceptions 1 and 4 to
Section 300 of IPC. Considering Section 299,
offence committed will fall under Section 304 PartI of IPC. Death due to septicemia. Offence not
under Section 302 of I.P.C. but culpable homicide .
Sentence of accused appellant reduced to the
period eight years with remission. (Para -18,22 )

Appeal partly allowed. (E-7)

List of Cases cited:-

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

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

3. Rama Devi @ Ramakanti Vs St. of U.P. ,
Criminal Appeal No.1438 of 2010

4. Smt. Kanti & anr. Vs St. of U.P., Criminal
Appeal No. 2558 of 2011

5. Govindappa & ors. Vs St. of Karn., (2010) 6
SCC 533

6. Tukaram & ors Vs St. of Mah., (2011) 4 SCC
250

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

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

9. Gautam Manubhai Makwana Vs St. of Guj.,
Criminal Appeal No.83 of 2008

10. Khokan@ Khokhan Vishwas Vs St. of
Chattisgarh, 2021 LawSuit (SC) 80

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

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

13. Pardeshiram Vs St. of M.P., (2021) 3 SCC
238

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

1. This appeal challenges the
judgment and order dated 9.3.2017 passed
7 All. Pawan Vs. State of U.P.
207
by Additional Sessions Judge/Fast Track
Court No.2, Firozabad in Sessions Trial
No.616 of 2014 convicting accusedappellant under Section 302 of Indian Penal
Code, 1860 (hereinafter referred to as 'IPC')
and
sentenced
him
to
undergo
imprisonment
for
life
with
fine
of
Rs.10,000/- and in default of payment of
fine, further to undergo imprisonment for
six months.

2. Factual scenario as culled out from
the record and the judgment of the Court
below is that the accused-appellant is
alleged to have set ablaze the deceased on
9.5.2014 when the accused went to the
house of the deceased and demanded sum
of Rs.10,000/- and when the deceased
refused to give the said amount and
requested him to come when her husband
was in the house, the accused started
abusing her and in his anger, poured
kerosene on her and set her ablaze.

3. On the complaint of the husband of
the deceased, First Information Report
being No.387 of 2014 was registered under
Section 307 of I.P.C. and thereafter, the
investigation was moved into motion. After
recording statements of various persons,
the investigating officer submitted the
charge-sheet
against
accused
under
Sections 302 & 307 of I.P.C.. The learned
Chief Judicial Magistrate before whom
charge sheet was laid put the same before
the learned Sessions Judge. The learned
Sessions Judge, on hearing the learned
Government Advocate and learned counsel
for the accused, framed charges under
Section 302 & 307 of I.P.C..

4. On being read over the charges, the
accused pleaded not guilty and wanted to
be tried, hence, the trial started and the
prosecution examined 12 witnesses who are
as follows:

1
Deen Dayal
PW1
2
Gulab Singh
PW2
3
Smt. Rekha
PW3
4
Jawahar Singh
PW4
5
Rajesh
PW5
6
Dr. Shadab Alam
PW6
7
Raksha Pal
PW7
8
Laxmi Narayan
PW8
9
Sanjeev Ojha
PW9
10
Surendra Pal Singh
PW10
11
Lal Mani Dubey
PW 11
12
Umesh Chandra
PW 12

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

1
F.I.R.
Ex.Ka.13
2
Written Report
Ex.Ka.1
3
Dying Declaration
Ex. Ka.8 &
12
4
Postmortem Report
Ex. Ka.2
5
Panchayatnama
Ex.Ka.3
6
Charge-sheet
Ex.Ka.11

6. 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 appellant as mentioned
above.
208 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Heard Yogesh Kumar Srivastava,
learned counsel for the appellant, Sri Vikas
Goswami, learned A.G.A-I, assisted by Sri
Nagendra Kumar Srivastava
and Sri
Janardan Prakash, learned A.G.As. for the
State and perused the record.

8. It is submitted that the deceased in
her first dying declaration mentioned that
the accused poured kerosene and set her
ablaze and then poured water on her, and
that people started coming in and, her
husband, after he came back from service,
brought her to the hospital. Her statement
was recorded at 7.12 p.m. on 9.5.2014
namely on the date of incident.

9. Learned counsel has thereafter
taken us to the depositions of other
witnesses who are hostile witnesses. Be
that as it may, the main crux on which
submission is made by Sri Yogesh Kr.
Srivastava,
learned
counsel
for
the
appellant are that the deceased died out of
burn injuries after six days, there are
multiple dying declarations which give
different version. The medical evidence
according to the counsel for the appellant
shows that she died due to septicemic
shock and, therefore, it is submitted that
looking to the F.I.R. and the dying
declarations, it cannot be said that the
deceased was done to death and she was
murdered. It is submitted that even if it is
considered that it was culpable homicide, it
would be culpable homicide not amounting
to murder.

10. In support of the his submissions,
learned counsel for the appellant has relied
on the decisions in Maniben vs. State of
Gujarat, 2009 (8) SCC 796, Chirra
Shivraj vs. State of Andhra Pradesh,
2010 (14) SCC 444, Criminal Appeal
No.1438 of 2010 (Rama Devi alias
Ramakanti vs. State of U.P.) decided on
7.10.2017 & Criminal Appeal No. 2558 of
2011 (Smt. Kanti and another vs. State of
U.P.) decided on 1.2.2021.

11. Learned A.G.A. for the state has
vehemently submitted the death of the
deceased was though due to septicemic
shock, the burn injuries goes to show that it
would not be an offence punishable under
Section 304 part I or II of I.P.C.

12. While going through the evidence
of the witnesses in light of the judgments of
the Apex Court referred by both the learned
Advocates, we would have to evaluate
whether deceased was done to death with a
premeditation. Just because death was due
to septicemic shock will not take it out
from the purview of Section 300 of I.P.C.
The evidence of most of the witnesses
which has been recorded goes to show that
most of them have given go by of their
statements before the police under Section
161 of Cr.P.C. But, the medical evidence
and dying declaration which are multiple in
number have to be evaluated.

13. Whether the F.I.R. corroborates
the dying declaration of the deceased? It is
an admitted position of fact that it was the
accused who had poured kerosene on the
deceased, however, in one of her dying
declaration she mentioned that the accused
had poured water so as to save her. But the
second dying declaration which is latest in
point of time is silent. Therefore, one fact is
that the accused was the brother in law of
the deceased and when he demanded
monies she gave him two slaps and in
infuriation, he set her ablaze. This fact is
borne out in both the dying declarations
and the doctor has also opined against the
accused. Therefore, this dying declaration
has not been challenged by the counsel for
7 All. Pawan Vs. State of U.P.
209
the appellant and in the light of the decision
in Govindappa and others Vs. State of
Karnataka, (2010) 6 SCC 533, there is no
reason for us not to accept the dying
declaration and its evidentiary value under
Section 32 of Evidence Act, 1872.
However, it is submitted that looking to the
facts,
the
accused-appellant
had
no
intention to do away with his sister-in-law.

14. 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.

15. 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."

16. 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 if 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
KNOWLED
GE
(c) with the knowledge that (4) with the
210 INDIAN LAW REPORTS ALLAHABAD SERIES
the act is likely to cause
death.
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.

17. 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.

18. 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.

19. 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
7 All. Pawan Vs. State of U.P.
211
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
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
212 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

20. In latest decision in Khokan@
Khokhan
Vishwas
v.
State
of
Chattisgarh, 2021 LawSuit (SC) 80
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
guardian, 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 enure for the benefit of
the accused.

21. All others judgments which were
pressed into service by the learned counsel
for the appellant are not discussed as that
would be repetition of what we have
decided.

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 and, therefore, sentence of the
accused appellant is reduced to the period
eight years with remission. The fine is
reduced to Rs.5000/- to be paid to the
original complainant. The default sentence
would be six month without remission and
will run after completion of eight years of
incarceration. The accused is in jail since
long. At least he has suffered for eight
years
imprisonment
and
must
have
repented to his deed which was out of
anger.

23. Appeal is partly allowed. Record
and proceedings be sent back to the Court
below forthwith.
7 All. Babu Vs. The State of U.P.
213

24. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2022)07ILR A213
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.07.2022

BEFORE

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

Crl. Appel. No. 2878 of 2013

Babu ...Appellant
Versus
The State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri A.P. Tewari, Sri R.S. Tripathi

Counsel for the Opp. Party:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Section 304 Part I read with
Section 34 IPC - Arms Act, 1959 - Section
4/25 - The Code of Criminal Procedure,
1973 - Section 313 - Rehabilitary &
Reformative - Crime is a pathological
aberration - criminal can ordinarily be
redeemed - state has to rehabilitate rather
than avenge - brutal incarceration of the
person merely produces laceration of his
mind - to punish a man retributively -
must injure him - to reform him - must
improve him - men are not improved by
injuries .(Para - 14,20)

Deceased stabbed by accused-appellant - in her
abdomen - occurrence took place in public place
- appellant not pressing appeal on merit - prays
only for reduction of sentence - sentence of life
imprisonment awarded to appellant by trial
court - harsh - recovery of knife - ocular version
of eye-witness PW2 - corroborated by medical
evidence .(Para - 9,11)

(B) Criminal Law - The Code of Criminal
Procedure, 1973 - Punishment - 'Proper
Sentence'
-
quantum
of
sentence
-
'principle of proportionality' - 'reformative
theory of punishment' - Discretion of
Court in awarding sentence cannot be
exercised arbitrarily or whimsically -
operating the sentencing system - law
should adopt corrective machinery or
deterrence based on factual matrix -
undue harshness should be avoided taking
into account the reformative approach
underlying in criminal justice system.
(Para - 15,16)

HELD:-Accused-appellant
convicted
under
Section 304 Part I read with Section 34 IPC .
Sentence awarded to appellant modified.
Default
sentence
maintained.
Fine
and
imprisonment for default under Section 4/25
Arms Act maintained. (Para -21,22 )

Appeal partly allowed. (E-7)

List of Cases cited:-

1. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926

2. Deo Narain Mandal Vs St. of U.P. , (2004) 7
SCC 257

3. Ravada Sasikala Vs St. of A.P. , AIR 2017 SC
1166

4. Jameel Vs St. of UP , (2010) 12 SCC 532

5. Guru Basavraj Vs St. of Karn., (2012) 8 SCC
734

6. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

7. St. of Punj. Vs Bawa Singh, (2015) 3 SCC 441

8. Raj Bala Vs St. of Har., (2016) 1 SCC 463

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

1. By way of this appeal, the
appellant-Babu
has
challenged
the
Judgment and order dated 02.05.2013
passed by Court of Additional Session