# Sanjay Maurya (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 473
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Case number:** Criminal Appeal No. 3660 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-maurya-in-jail-v-state-of-u-p-46829
- **Pages:** 5

## Headnote

Law-Charge
was
formed
u/s304 B, 498A and 3/4 D.P. Act-later
charge reframed u/s302 IPC even after
about 11 witnesses were recorded and
2 witnesses were left and accused was
partly examined u/s313 Cr.P.C.-Dying
declaration does not speak about any
dowry
demand-no
motive-conviction
u/s 302 IPC converted into 304 -part
II.

List of Cases cited: -

## Text

2 All. Sanjay Maurya Vs. State of U.P.
473
transmitted to the Court concerned for
necessary compliance. A compliance report
be sent to this Court within one month.
Office is directed to keep the compliance
report on record.
----------
(2021)02ILR A473
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

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

Criminal Appeal No. 3660 of 2013

Sanjay Maurya ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Satya Dheer Singh Jadaun, Sri Sudist,
Sri Babu Lal Ram, Sri Ram Prakash Singh,
Sri Ravi Prakash Singh Kushwaha, Sri Vishal
Kumar Shukla, Sri Arvind Singh

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

Criminal
Law-Charge
was
formed
u/s304 B, 498A and 3/4 D.P. Act-later
charge reframed u/s302 IPC even after
about 11 witnesses were recorded and
2 witnesses were left and accused was
partly examined u/s313 Cr.P.C.-Dying
declaration does not speak about any
dowry
demand-no
motive-conviction
u/s 302 IPC converted into 304 -part
II.

List of Cases cited: -

1. R. Rachaiah Vs Home Secretary, Bangalore,
2016 0 Supreme (SC) 383

2.Surendra Singh Vs St. of U.P., 2018 0 Supreme
(All) 2467
3.Karuppasamy Vs St., 2001 Cri.L.J. NOC 70
(Madras).

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

1. Heard Sri S.D. Singh Jadaun for
the sole appellant and learned A.G.A. for
the respondent.

2. This appeal challenges the
judgment dated 3.8.2013 passed by Shri
Krishan Pratap Singh, Additional Session
Judge, Court No.1, Varanasi, in Sessions
Trial No.717 of 2010, under Sections
498A/302/304B of IPC and 3⁄4 D.P. Act,
Police Station - Shivpur, District -
Varanasi, convicting and sentencing the
appellant under Section 302 IPC for life
imprisonment and fine of Rs. 25,000/-
failing in payment of fine two years
additional rigorous imprisonment.

3. Before we begin to pen down the
reasons, we are shocked that the charge
was framed on 12.1.2011 which was for
commission of offence under Section
304B/498A and also under Section 3⁄4 of
D.P. Act. This charge came to be framed
against the accused on 12.1.2011. The
charge was framed by one Sri D.K.
Srivastava,
learned
Addl.
District
&
Sessions Judge, Varanasi.

4. After his transfer, very strangely
the new incumbent Sri Krishna Pratap
Singh altered the charge and charged the
accused for commission of offence under
Section 302 I.P.C. Unfortunately, the
wordings of the charge were the same. We
would not have discussed this but the
learned Judge reframed the charge after
about evidence of 11 witnesses were
recorded and evidence of Umesh Narain
474 INDIAN LAW REPORTS ALLAHABAD SERIES
Pandey and Dr. Jayesh Mishra were to be
recorded. The accused was also partly
examined under Section 313 on 19.2.2013
but very strangely the learned Judge again
examined him on 4.4.2013 and went on to
examine 2 witnesses namely PW-13 and
PW-14 and again put him to further
statement under Section 313 Cr.P.C. and
convicted the accused for 302 IPC
acquitting him under other charges and
imposed Rs. 25,000/- as a fine. The
judgment, as such, will lost sanctity but as
the accused is in Jail since long, we are
constraint to pen down our judgment as the
learned Counsel for the appellant has
though made his submissions but has
contended that 302 is not made out and
looking to the period of incarceration does
not call for full hearing of the matter.

5. Learned Counsel for the appellant
has made three fold submissions; that
perversity has crept in after the learned new
Additional Sessions Judge was allotted the
matter and after the learned Judge realised
that the charge which was framed,no case
was made out even from the dying
declaration.
He
unilaterally
without
following the contours for alteration of
charge framed the charge under Section
302 I.P.C. which has vitiated the entire
proceedings and has heavily relied on the
case of R. Rachaiah Vs. Home Secretary,
Bangalore, 2016 0 Supreme (SC) 383. He
has taken us through the judgment of this
High Court in the case of Surendra Singh
Vs. State of U.P., 2018 0 Supreme (All)
2467, so as to contend that the allegations
made are not proved and the dying
declaration, as such, was not supported by
any other independent witness and has
contended that the judgments on which
reliance is placed by the learned Judge to
hold
that
the
dying
declaration
is
acceptable would not apply in the facts of
this case.

6. The learned Advocate further has
submitted that if this Court is satisfied that
the trial is not vitiated and that the dying
declaration is believable, the deceased did
not die on the same day. The evidence on
the record goes to show that it was the
husband, who out of sheer anger, had done
the act and it was he, who had taken his
wife to the hospital. These circumstances
have been totally ignored by the learned
Judge in his overzeal to convict the
accused. It is submitted by the Counsel that
in this case the learned Judge has given a
decision but has failed to do justice and has
contended that life sentence was not
necessary or what was the punishment
awardable. It is submitted that the learned
Judge has only with an overseal to punish
the accused altered the charge as from the
evidence even on the dying declaration, it
was clear that in no case under Sections
498-A/304B or 3⁄4 D.P. Act, the accused can
be convicted. We are, at this stage, not
going into the genesis of alteration of the
charges and/or whether alteration if proper
or not and whether the dying declaration
was vulnerable or not.

7. The fact that the accused in Jail for
more than a decade and jail report shows
that has has shown remorse for his act, we
go by third alternative suggested by Sri
Jadaun and we are convinced that from the
post-mortem and from the evidence on the
record, it was the case of he who took his
wife to the hospital. Even in the statement
of PW1, he has mentioned that it was the
accused, who had informed them about
untoward incident of his wife. This seems
to have waived with the learned Additional
Sessions Judge to punish the accused for
2 All. Sanjay Maurya Vs. State of U.P.
475
untimely death of his wife which has
occurred in a short span of their marriage.

8. This takes us to the issue of
whether the offence would be punishable
under Section 299 or Section 304 I.P.C.

9. Considering the evidence of these
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 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.

10. 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.
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;
KNOWLE
DGE
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.

11. We have not discussed the
testimony of the witnesses, who have
476 INDIAN LAW REPORTS ALLAHABAD SERIES
turned hostile but it is now well established
that evidence of hostile witnesses if it
brings out some facts, which are helpful to
the prosecution, their evidence may be
relied on likewise if to the certain extent if
the Court feels that the evidence is not
tainted only with a view to save the
accused, the same can also be looked into
with the circumscription by the Court. The
factual data which emerges is that the
learned Judge has lost sight of the fact that
it was an accused, who had taken the
deceased to the hospital. He has relied on
the decisions cited before him and has
distinguished the same but unfortunately
the said decision applies in all contours
here on all floor (Karuppasamy Vs. State,
2001 Cri.L.J. NOC 70 (Madras).

12. The prosecution examined about
11 witnesses and produced the following
documents:

Sl.
No.
DESCRIPTIO
N
DATE
EXHIB
IT
1.
F.I.R.
1.9.2010 Ex.Ka.8
2.
F.I.R.
1.9.2010
3.
Written Report 1.9.2010 Ex.Ka.1
4.
Dying
Declaration
1.9.2010 Ex.Ka.1
5
5.
Recovery
memo of burnt
and Plain Earth
2.9.2010 Ex.Ka.4
6.
Recovery
memo
if
Kerosene
oil
''Dibba'
2.9.2010 Ex.Ka.5
7.
Recovery
memo of burn
Cloth
2.9.2010 Ex.Ka.6
8.
Recovery
2.9.2010 Ex.Ka.7
memo of burn
Cloth
9.
P.M. Report
2.9.2010 Ex.Ka.2
10. ''Panchayatnam
a'
2.9.2010 Ex.Ka.1
2
11. Charge-Sheet
''Mool'
28.9.2010 Ex.Ka.3

13. The witnesses of fact have not
supported the prosecution. The evidence of
Doctor and dying-declaration being the sole
reason for convicting the accused and the
change of charge.

14. Sri Jadan has submitted that once
the learned Judge after recording the
evidence of some of the witnesses and
when it was found out that charge under
Section 304 Part-B could not be sustained.
He of his own under Section 216 read with
Section 217 of the Cr.P.C. framed new
charge under Section 302 IPC and under
which he has convicted the accused with
his perverse eye of law.

15. He has further submitted that once
the learned Judge held that Section 304-B
was not attracted, he could not have
punished the accused under Section 302 of
I.P. Code. Learned Counsel has placed
reliance on the judgment of Division Bench
of this High Court in Surendra Singh Vs.
State of U.P., 2018 0 Supreme (All) 2467,
and has submitted that no fresh charge
could have been framed and if it has to be
framed, the proceedings be started which
has not been done for which he has placed
reliance in the case of R. Rachaiah Vs.
Home Secretary, Bangalore, 2016 0
Supreme (SC) 383.

16. In the alternative, he has
submitted that the accused is in Jail since
2 All. Tarun Vs. State of U.P.
477
10 years. From the evidence, it is clear that
even if the Court believes the dying
declaration which is very doubtful, his
client could not have been convicted under
Section 302 of I.P.C. It was the accused,
who has taken the deceased to the hospital
and he has requested for lesser punishment
looking to the young age of the accused.

17. As against this, learned Counsel
for the State has contended that by
declaration is proper as per Section 32 of
the Evidence Act, 1872 and has been
rightly relied upon the learned Judge.

18. Learned Counsel for the State
has taken us to Section 216 of Cr.P.C.
and has submitted that there is no
illegality in re-charging the accused and
it is further submitted that the way the
accused has ablaze, his wife within one
year of the marital life, the conviction
was just and proper.

19. Even if we hold that there is no
illegality in re-framing the charge, justice
would demand us to see that reasoning of
the learned Judge, which are perverse.
The dying-declaration which has been
made the basis of the punishment does
not speak about any demand for dowry.
The death of the deceased was caused on
the spur of moment as the accused was
alleged to have disliked the practice of
the deceased in serving the parent of the
accused also and it was he, as it appears
from the evidence, who had taken the
deceased to the hospital. He has no
motive nor any intention of doing away
with his wife.

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

21. The conviction of the appellant
under Section 302 I.P.C. is converted to
conviction under Section 304-Part-II of
IPC. We reduce the sentence to 7 years and
the fine has been reduced to Rs. 5,000/-
and, in default of payment of fine, 6
months additional rigorous imprisonment.

22. The appellant is in Jail for 10
years, if his period of incarceration as held
above is over, he shall be released
forthwith, if not required in any other case.
The judgment and order impugned shall
stand modified accordingly.

23. Let a copy of the judgment along
with the trial court record be sent to the
court below and jail authorities for
compliance.
----------
(2021)02ILR A477
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2021

BEFORE

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

Criminal Appeal No. 3686 of 2014

Tarun ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Shishir Tandon, Sri Amitabh Agarwal, Sri
Apul Misra, Sri Sikandar Khan, Sri Sunil
Singh

Counsel for the Opposite Party:
A.G.A., Sri Rajeev Tiwari

(A) Criminal Law - Indian Penal Code,
1860 - section 304-B - Dowry death,
section 498-A - Husband or relative of a