# Pushpa Devi v. State of U.P

- **Citation:** (2022) 7 ILRA 791
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-05
- **Case number:** Criminal Appeal No. 1689 of 2017
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pushpa-devi-v-state-of-u-p-48845
- **Pages:** 8

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 32- Dying Declaration-This dying
declaration has not been challenged by
the counsel for the appellant- There is no
reason for us not to accept the dying
declaration and its evidentiary value
under Section 32 of Evidence Act, 1872.

Where the dying declaration is found to be
reliable and trustworthy and the same is also
not challenged, then the Court would accept the
said dying declaration and secure the conviction
of the accused solely on the basis of the dying
declaration.

Criminal Law - Indian Penal Code, 1860-
Sections 302 & 304 Part - I- The deceased
died due to septicemia after about 20
days. All these facts go to show that the
death occurred due to septicemia which
developed because of the setting her
ablaze the deceased which is corroborated
by oral testimony. Thus, the death has
occurred due to the act of Pushpa who has
been aided by the other co-accused and it
is a homicidal death- The offence would
be under Section 304 Part-I of IPC as (i)
the death occurred after 20 days, (ii) the
burns were only 36%, (iii) the death was
due to septicemia - 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- The offence is
not under Section 302 of I.P.C. but is
culpable
homicide
and,
therefore,
sentence of the accused- appellants is
reduced to the period of eight years with
remission under Section 304 Part-I of IPC.
The fine is reduced to Rs.2,000/- each.

Where the death is due to septicaemia, the
offence was not premeditated and
the
accused did not have the intention to commit
the murder of the deceased, the offence will
fall under Exceptions 1 and 4 of Section 300
IPC and will therefore be punishable under
Section 304 Part-1 of the IPC. (Para 14, 18,
19, 20, 24)

Criminal Appeal Partly Allowed. (E-3)

Judgements Case Law relied upon:-

## Text

7 All. Pushpa Devi Vs. State of U.P.
791
him by the trial court. Let the original
record received be sent back along with
copy of this judgment to the trial court for
information and necessary action.
----------
(2022)07ILR A791
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.07.2022

BEFORE

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

Criminal Appeal No. 1689 of 2017
&
Criminal Appeal No. 1425 of 2017

Pushpa Devi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Anil Kumar Srivastava, Sri Ram Bahadur,
Sri Yogesh Kumar Srivastava, A/R0050, Sri
Raghubeer Singh, Sri Noor Muhammad.

Counsel for the Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 32- Dying Declaration-This dying
declaration has not been challenged by
the counsel for the appellant- There is no
reason for us not to accept the dying
declaration and its evidentiary value
under Section 32 of Evidence Act, 1872.

Where the dying declaration is found to be
reliable and trustworthy and the same is also
not challenged, then the Court would accept the
said dying declaration and secure the conviction
of the accused solely on the basis of the dying
declaration.

Criminal Law - Indian Penal Code, 1860-
Sections 302 & 304 Part - I- The deceased
died due to septicemia after about 20
days. All these facts go to show that the
death occurred due to septicemia which
developed because of the setting her
ablaze the deceased which is corroborated
by oral testimony. Thus, the death has
occurred due to the act of Pushpa who has
been aided by the other co-accused and it
is a homicidal death- The offence would
be under Section 304 Part-I of IPC as (i)
the death occurred after 20 days, (ii) the
burns were only 36%, (iii) the death was
due to septicemia - 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- The offence is
not under Section 302 of I.P.C. but is
culpable
homicide
and,
therefore,
sentence of the accused- appellants is
reduced to the period of eight years with
remission under Section 304 Part-I of IPC.
The fine is reduced to Rs.2,000/- each.

Where the death is due to septicaemia, the
offence was not premeditated and
the
accused did not have the intention to commit
the murder of the deceased, the offence will
fall under Exceptions 1 and 4 of Section 300
IPC and will therefore be punishable under
Section 304 Part-1 of the IPC. (Para 14, 18,
19, 20, 24)

Criminal Appeal Partly Allowed. (E-3)

Judgements Case Law relied upon:-

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

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

3. Crl. Appeal No.1438 of 2010 (Rama Devi @
Ramakanti Vs State of U.P.) dec. on 7.10.2017

4. Crl. Appeal No. 2558 of 2011 (Smt. Kanti &
anr. Vs State of U.P.) dec. on 1.2.2021
792 INDIAN LAW REPORTS ALLAHABAD SERIES
5. Govindappa & ors. Vs St. of Kar., (2010) 6
SCC 533

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

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

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

9. Crl. Appeal No.83 of 2008 (Gautam Manubhai
Makwana Vs St. of Guj.) dec. on 11.9.2013

10. Khokan@ Khokhan Vishwas Vs St. of
Chattis., 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. Both these appeals challenges the
judgment and order dated 9.2.2017 passed by
Additional Sessions Judge, Court No.8,
Firozabad in Sessions Trial No.245 of 2015
convicting accused-appellant- Pushpa Devi,
under Section 498A of Indian Penal Code,
1860 ( hereinafter referred to as 'IPC') and
sentenced
her
to
undergo
simple
imprisonment for two years with fine of
Rs.2,000/- and in default of payment of fine,
further to undergo simple imprisonment for
three months; she was further convicted
under Section 323 IPC and sentenced to
undergo simple imprisonment for three
months with fine of Rs.500/- and in case of
default of payment of fine, to undergo further
simple imprisonment for one months; she
was further convicted under Section 302 IPC
and sentenced to undergo imprisonment for
life with fine of Rs.5,000/- and in default of
payment of fine, further to undergo simple
imprisonment for six months. The accusedappellant-Bantu @Vimal Babu and accusedappellant- Munni Devi were convicted under
Section 498A IPC and sentenced them to
undergo simple imprisonment for two years
each with fine of Rs.2,000/- each and in
default of payment of fine, further to undergo
simple imprisonment for three months each.
All the sentences were to run concurrently as
per direction of the Trial Court.

2. Accused-appellants, Pushpa Devi,
Bantu @ Vimal Babu and Munni Devi were
trying along with Dilip Kumar for commission
of offence under Section 498A, 304B, 314 and
323 read with Section 3⁄4 Dowry Prohibition
Act.
ON
4.7.2015,
learned
Magistrate
committed the case to the Court of sessions
which was numbered as Sessions Case No. 245
of 2015 ( State Vs. Dilip Kumar and others).

3. Factual scenario as culled out from
the record and the judgment of the Court
below is that on 03.12.2014, a written First
Information Report ( hereinafter referred as
'FIR) was given mentioning that Rajni was
married with Dilip Kumar on 4.6.2013 but
after
the
marriage,the
in-laws
started
harassing the deceased-Rajni and demanded
more dowry. For which on 2.12.2014, a
phone was received that all the four persons
had set ablaze the deceased-Rajni at about
3:00 ( afternoon). She was taken to the
hospital at Firozabad. Thereafter she was
referred to Agra. She has pregnancy of eight
months.

4. On the complaint of the father of
the deceased, First Information Report
being No.491 of 2014 was registered under
Sections 498A, 307, 323 IPC and 3⁄4 D.P.
Act and thereafter, the investigation was
moved
into
motion. After
recording
statements
of
various
persons,
the
investigating officer submitted the charge-
7 All. Pushpa Devi Vs. State of U.P.
793
sheet
against
accused
persons
under
Sections 498A, 304B, 314, 323 IPC and 3⁄4
D.P. Act.. 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-Pushpa
Devi,
framed
charges
under Section 302, 498A, 323 of I.P.C. and
the accused- Dilip Kumar, Bantu @ Vimal
Babu and Smt. Munni Devi framed charge
under Section 498A IPC.

5. On being read over the charges, the
accused-appellants pleaded not guilty and
wanted to be tried, hence, the trial started
and the prosecution examined 15 witnesses
who are as follows:

1
Ramveer Singh
PW 1
2
Omkar
PW2
3
Manoj Kumar
PW3
4
Shankar Lal
PW4
5
Dharmendra Singh
PW5
6
Dr. R.C. Johri
PW6
7
Dr. Anand Kumar
PW7
8
Nanhey Ram
PW8
9
Kehar Singh Rana
PW9
10
Prashan tKumar Prasad
PW10
11
Yogendra Kumar Yadav
PW11
12
Geeta Ram
PW12
13
Raj Kamal Singh
PW13
14
Krishna Murari Dixit
PW14
15
Dr. R.D. Gautam
PW15

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

1.
F.I.R.
Ex. Ka.5
2.
Written Report
Ex. Ka.1
3.
Dying Declaration
Ex. Ka.12
4.
Medical Report
Ex. Ka.13
5.
Postmortem Report
Ex. Ka.4
6.
Panchayatnama
Ex. Ka.2
7.
Charge-sheet
Ex. Ka.6
8.
Site Plan with Index
Ex. Ka.7

7. 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 accused - appellants as
mentioned above.

8. Heard Yogesh Kumar Srivastava,
learned counsel for the appellant, Sri Vikas
Goswami, learned A.G.A-I, in Criminal
Appeal No.1689 of 2017 and Sri Nagendra
Kumar
Srivastava
and
Sri
Janardan
Prakash, learned A.G.A in Criminal Appeal
No.1425 of 2017 for the State and perused
the record.

9. It is submitted that the deceased in
her first dying declaration mentioned that
the Pushpa Devi (sister-in-law) locked her
in the room and set her ablaze by pouring
kerosene. Mother-in-law and husband had
helped Pushpa Devi in the occurrence of
the said crime. Four family members
(Pushpa Devi, Banti, Mother-in-law and
husband) had harassed her after marriage.
The neighbors brought her to the hospital.
Her statement was recorded at 5:40 p.m. on
7.12.2014 namely after five days of
incident i.e. on 2.12.2014. Meaning thereby
she was alive till 7.12.2014.

10. Learned counsel for appellants has
thereafter taken us to the depositions of
other witnesses who are declared as hostile
witnesses. Be that as it may, the main crux
on which submission is made by Sri
Yogesh Kr. Srivastava, learned counsel for
794 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant are (i) the deceased died out
of burn injuries after six days, (ii)there are
multiple dying declarations in which she
has given different version, (iii) 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.

11. In support of the these submissions,
learned counsel for the appellants 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 but is punishable under Section
302IPC as it was cold blooded murder with
predetermination.

12. 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.

13. 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.

14. 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 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. The main allegations
is that Pushpa Devi w/o Banti bolted the
room and poured kerosine on her and at
that time the husband and mother in law
were present. This is the dying declaration
dated 7.12.2014 taken by Krishna Murari in
presence EMO Hospital. The fact is proved
that the deceased had 40% burn injuries.
Witnesses PW- 1 to PW-5 have not
supported the prosecution case. Dr. Jauhari,
has deposed on oath that he along with
other doctor had treated the deceased
patient from 5.12.2014 to 9.12.2014 when
she had 40% burn injuries . Dr. Anand
Kumar had carried out the post mortem and
they were septicemic death because of the
burn injuries. Her death was because to
septicemia.
Tehsildar
as
PW-8
had
performed the punchnama. PW-8 is also
signatory of Panchayatnama. She died due
to septicemia after about 20 days. All these
facts go to show that the death occurred
due to septicemia which developed because
of the setting her ablaze the deceased which
is corroborated by oral testimony. Thus, the
death has occurred due to the act of Pushpa
who has been aided by the other co-accused
and it is a homicidal death.
7 All. Pushpa Devi Vs. State of U.P.
795

15. 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.

16. 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 appellants under Section 302 IPC 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 PartII 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."

17. 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
Subject to certain exceptions
culpable homicide is murder if
the act by which the death is
caused is done-
caused is done.

INTENTION

(a) with the intention of
causing death; or
(1) with the intention of
causing death; or
(b) with the intention of
causing such bodily injury as is
likely to

cause death; or
(2) with the intention of
causing
such
bodily
injury as the offender
knows to be likely to
cause the death of the
person to whom the
harm is caused;
KNOWLEDGE
KNOWLEDGE
(c) with the knowledge that the
act is likely to cause death.

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

18. 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.

19. We are holding that the offence
would be under Section 304 Part-I of IPC
as (i) the death occurred after 20 days, (ii)
the burns were only 36%, (iii) the death
was due to septicemia and the judgments
on septicemia cited by the learned AGA
cannot be made applicable to the facts of
this case.
796 INDIAN LAW REPORTS ALLAHABAD SERIES

20. 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.

21. 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
7 All. Pushpa Devi Vs. State of U.P.
797
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
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.
798 INDIAN LAW REPORTS ALLAHABAD SERIES
R & P to be sent back to the trial court
forthwith."

22. 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.

23. 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.

24. 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- appellants is reduced to the
period of eight years with remission under
Section 304 Part-I of IPC. The fine is reduced
to Rs.2,000/- each. The default sentence
would be six months without remission and
will run after completion of eight years of
incarceration. The accused-appellants are in
jail. They have suffered for eight years
imprisonment and must have repented to his
deed which was out of anger.

25. The accused-appellants in Criminal
Appeal No.1425 of 2017 have been convicted
for the offence under Section 498A IPC.
Looking to the facts and circumstances of the
case, we confirmed the conviction of Bantu
and Smt. Munni Devi to the period already
undergone as they have been convicted under
Section 498A IPC. The fine is maintained.
The default sentence is also maintained. If
they have not paid fine the fine be deposited
within eight weeks from today failing which
they shall surrender for undergoing the
default sentence. If the fine is already paid,
they did not pay the fine.

26.
 The
accused
have
already
undergone the punishment under Section
498A IPC and under Section 323 of IPC,
hence, we do not delve into the same.

27. Both the appeals are partly allowed.
Record and proceedings be sent back to the
Court below forthwith.

28. This Court is thankful to learned
Advocates for ably assisting the Court.
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(2022)07ILR A798
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.07.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 2422 of 2008

Shrawan Kumar Maurya ...Appellant
Versus
State of U.P. ...Respondent