# Sikander & Anr v. State of U.P. Opp. Party

- **Citation:** (2022) 7 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-13
- **Case number:** Crl. Appel. No. 1030 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sikander-anr-v-state-of-u-p-opp-party-48875
- **Pages:** 10

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 299,302/34 ,304B & 498A
- The Code of Criminal Procedure, 1973 -
Dowry Prohibition Act,1961 - Section 4 -
Indian Evidence Act, 1872 - Section 32 -
dying declaration - it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused - when such dying declaration
is true, reliable and has been recorded in
accordance with established practice and
principles - if it is recorded so then there
cannot be any challenge regarding its
correctness and authenticity. (Para -
23,34)

Deceased died after four days of burning - post
mortem report - died due to septicaemia shock -
septicaemial death - homicidal death - dying
declaration - Death caused by accused persons -
not pre-meditated - intentionally caused such
bodily injuries which were likely to cause death -
culpable homicide not amounting to murder -
accused in jail for last more than 14
years.(Para -28,29,36)

(B) Evidence Law - evidence of a hostile
witness cannot be discarded as a whole,
180 INDIAN LAW REPORTS ALLAHABAD SERIES
and relevant part thereof, which are
admissible in law, can be used by
prosecution or the defense - none of
witnesses or authorities - involved in recording
dying declaration - turned hostile - fully
supported
case
of
prosecution
-
dying
declaration - reliable, truthful and voluntarily -
can be acted upon without corroboration - can
be made sole basis of conviction - trial court
committed no error on acting on the sole basis
of dying declaration .(Para -16,26)

HELD:-Case falls under exceptions (1) and (4)
to Section 300 of IPC. While considering Section
299 IPC, offence committed will fall under
Section
304
(Part-I)
IPC.
Conviction
of
appellants under Section 302 IPC converted into
conviction under Section 304 (Part-I) IPC.
(Para -35,36,37)

Appeal partly allowed.(E-7)

List of Cases cited:-

## Text

7 All. Sikander & Anr. Vs. State of U.P.
179
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 as there are no injuries caused
by knife found from room where dead body
was found.

18. From the upshot of the aforesaid
discussions, it appears that the death caused
by the accused was not premeditated, but
the intention has to be inferred as the
injuries were sufficient in the ordinary
course of nature to have caused death,
hence the instant case falls under the
Exceptions 1 and 4 to Section 300 of IPC.
While
considering
Section
299
as
reproduced
herein
above
offence
committed will fall under Section 304 PartI as per the observations of the Apex Court
in Veeran and others Vs. State of M.P.
Decided, (2011) 5 SCR 300 which have to
be also kept in mind.

19. In view of the above, we hold that
the
accused
has
committed
culpable
homicide not amounting to murder and
punish
him
to
undergo
rigorous
imprisonment for 10 years and fine of
Rs.10,000/-.
Sentence
of
default
is
maintained. Period of sentence for six
months imprisonment under Section 25
Arms Act has already been undergone by
the appellant. Fine and imprisonment for
default under Section 25 Arms Act is
maintained. If 10 years' incarceration is
over, the Jail authority would release the
accused if not wanted in any other offence.

20. This appeal is partly allowed.
Record and proceedings be sent back to the
Tribunal forthwith.
----------
(2022)07ILR A179
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.07.2022

BEFORE

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

Crl. Appel. No. 1030 of 2013

Sikander & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Uma Shankar Pal, Sri Raj Kumar Mishra, Ms.
Pooja, Sri Arvind Kumar Kushwaha

Counsel for the Respondents:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Sections 299,302/34 ,304B & 498A
- The Code of Criminal Procedure, 1973 -
Dowry Prohibition Act,1961 - Section 4 -
Indian Evidence Act, 1872 - Section 32 -
dying declaration - it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused - when such dying declaration
is true, reliable and has been recorded in
accordance with established practice and
principles - if it is recorded so then there
cannot be any challenge regarding its
correctness and authenticity. (Para -
23,34)

Deceased died after four days of burning - post
mortem report - died due to septicaemia shock -
septicaemial death - homicidal death - dying
declaration - Death caused by accused persons -
not pre-meditated - intentionally caused such
bodily injuries which were likely to cause death -
culpable homicide not amounting to murder -
accused in jail for last more than 14
years.(Para -28,29,36)

(B) Evidence Law - evidence of a hostile
witness cannot be discarded as a whole,
180 INDIAN LAW REPORTS ALLAHABAD SERIES
and relevant part thereof, which are
admissible in law, can be used by
prosecution or the defense - none of
witnesses or authorities - involved in recording
dying declaration - turned hostile - fully
supported
case
of
prosecution
-
dying
declaration - reliable, truthful and voluntarily -
can be acted upon without corroboration - can
be made sole basis of conviction - trial court
committed no error on acting on the sole basis
of dying declaration .(Para -16,26)

HELD:-Case falls under exceptions (1) and (4)
to Section 300 of IPC. While considering Section
299 IPC, offence committed will fall under
Section
304
(Part-I)
IPC.
Conviction
of
appellants under Section 302 IPC converted into
conviction under Section 304 (Part-I) IPC.
(Para -35,36,37)

Appeal partly allowed.(E-7)

List of Cases cited:-

1. Maniben Vs St. of Guj. , 2009 Lawsuit SC
1380

2. Koli Lakhmanbhai Chandabhai Vs St. of Guj.
,1999 (8) SCC 624

3. Ramesh Harijan Vs St. of U.P. , 2012 (5) SCC
777

4. St. of U.P. Vs Ramesh Prasad Misra & anr.
,1996 AIR (Supreme Court) 2766

5. Lakhan Vs St. of M.P. ,(2010) 8 SCC 514

6. Krishan Vs St. of Har. ,(2013) 3 SCC 280

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

8. St. of U.P. Vs Mohd. Iqram & anr., (2011) 8
SCC 80

9. Bengai Mandal @ Begai Mandal Vs St. of
Bihar, (2010) 2 SCC 91

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

11. Chirra Shivraj Vs St. of A.P., (2010) 14 SCC 444
12. Gautam Manubhai Makwana Vs St. of Guj.,
Criminal Appeal No.83 of 2008

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

1. This appeal has been preferred
against the judgment and order dated
31.01.2013,
passed
by
the
learned
Additional Sessions Judge, Court No.6,
Jaunpur, in Session Trail No.362 of 2010
State of UP vs. Sikander and another
arising out of Case Crime No.328 of 2010
under Section 302/34 IPC, Police StationMachhlishahar, District-Jaunpur, whereby
the appellants are convicted and sentenced
for the offence under Section 302 IPC for
life
imprisonment
with
a
fine
of
Rs.10,000/- and in default of payment of
fine, further imprisonment for one year.

2. The brief facts of the case are that
first information report of this case was
lodged by complainant with the averments
that the marriage of his daughter was
solemnized with accused Sikander S/o Ram
Khelawan. Till the two years of marriage,
the relation between the husband and wife
were cordial but in the meantime Sikander
developed illicit relations with his elder
sister-in-law (Badi Bhabhi). This was
intimated by his daughter Seema to her
parents. On this score the relations between
her daughter and son-in-law became
strained and Sikander started beating his
daughter and pressurized her to bring
Rs.50,000/- from her house. Once his
daughter caught her husband and sister-inlaw (Jethani) red handed in compromising
position. Husband had beaten her badly. On
09.04.2010 his son-in-law came to his
house at evening and told that his daughter
had caught fire. He reached to the spot and
found his daughter was lying unconscious
in burning condition. She had 95 percent
burn. She made dying-declaration also and
7 All. Sikander & Anr. Vs. State of U.P.
181
died on 13.04.2010 during the course of
treatment.

3. A first information report was registered
on the basis of above written report. During
course of investigation, I.O. recorded
statement of witnesses, prepared site-plan.
Dying-declaration of injured Seema was
recorded by Nayab Tehshildar, Jaunpur.
After the death of the deceased, inquest
report was prepared and post mortem was
conducted. Post mortem report is also
placed on record. After making thorough
investigation, charge sheet was submitted
against the accused Sikander, husband of
the deceased and Ram Khelawan, father-inlaw of the deceased. Learned trial court
framed charges against both the accused
persons under Sections 498A & 304B IPC
and under Section 4 Dowry Prohibition
Act. Accused-appellants denied the charges
and claimed to be tried. In alternative
charge under Section 302 read with Section
34 IPC was also framed.

4. Prosecution examined following
witnesses:

1.
Hawal Dar
PW1
2.
Kala Vati
PW2
3.
Ram Bodh
PW3
4.
Pyare
PW4
5.
Ramesh Chandra Srivastava
PW5
6.
Awdhesh Kumar
PW6
7.
Dr. A.K. Srivastava
PW7
8.
Suresh Kumar
PW8
9.
Ombir Singh Dhaka
PW9
10.
Shyam Narayan Mishra
PW10

5. Apart from aforesaid witnesses,
prosecution
submitted
following
documentary evidence, which was proved
by leading the evidence:

1.
FIR
Ex.ka5
2.
Written report
Ex.ka2
3.
Dying-declaration
Ex.ka4/17
4.
Post mortem report
Ex.ka7
5.
Panchayatnama
Ex.ka8
6.
Charge-Sheet
Ex.ka15
7.
Site plan
Ex.ka14

6. Deceased was hospitalised after the
occurrence
by
the
accused
persons
themselves. She died after 4 days of the
occurrence during the course of treatment.

7. Heard Arvind Kumar Kushwaha,
learned counsel assisted by Ms. Pooja,
learned counsel for the appellants-Sikander
and Ram Khelawan and Shri Patanjali
Mishra, learned AGA for the State.

8. Learned counsel for the appellants
submitted that accused persons have been
falsely implicated in this case. The
deceased caught fire while cooking the
food. It is further submitted by learned
counsel that all the witnesses have turned
hostile. PW1 is complainant and father of
the deceased. He has not supported the
prosecution case and declared hostile. PW2
Kalavati is mother of the deceased. She has
also denied the demand of any amount or
any sort of torturing her daughter by the
accused persons. PW3 Ram Bodh is
grandfather of the deceased and he has not
supported the prosecution version. PW4
Pyare is also a witness of fact and has
turned hostile. All these witnesses have not
supported the prosecution version and on
the basis of analysis of their evidence, no
182 INDIAN LAW REPORTS ALLAHABAD SERIES
guilt against the accused appellants is
established and proved.

9. Learned counsel for the appellants
next submitted that dying-declaration of the
deceased was recorded when she was
surviving, but this dying-declaration has no
corroboration
with
any
prosecution
evidence. All the witnesses of fact have
turned hostile and nobody supported the
version, which is mentioned in dyingdeclaration. Therefore, learned trial court
committed grave error by convicting the
accused on the basis of dying-declaration
only when it was not corroborated at all.

10. Learned counsel for the appellants
additionally submitted that if, for the sake of
argument, it is assumed that appellants have
committed the offence, in that case also no
offence under Section 302 IPC is made out.
Maximum this case can travel up to the limits
of offence under Section 304 IPC because the
deceased died after 4 days of the occurrence
due to developing the infection in her burnwounds, i.e., septicaemia. As per catena of
judgments of Hon'ble Apex Court and this
Court, offence cannot travel beyond section
304 IPC, in case the death occurred due to
septicaemia.
Learned
counsel
for
the
appellants also submitted that postmortem
report also shows that cause of death was
septicaemia. Learned counsel relied on the
judgment in the case of Maniben vs. State of
Gujarat [2009 Lawsuit SC 1380], and the
judgment in Criminal Appeal Nos.1438 of
2010 and 1439 of 2010 dated 7.10.2017 and
judgment of Criminal Appeal No.2558 of
2011 delivered on 1.2.2021 by this Court and
several other judgments.

11. No other point or argument was
raised by the learned counsel for the
appellants and confined his arguments on
above points only.

12. Learned AGA, per contra,
vehemently opposed the arguments placed
by counsel for the appellants and submitted
that conviction of accused can be based
only on the basis of dying-declaration, if it
is
wholly
reliable.
It
requires
no
corroboration. Moreover, testimony of
hostile witnesses can also be relied on to
the extent it supports the prosecution case.
Learned trial court has rightly convicted the
appellants under Section 302 IPC and
sentenced accordingly. There is no force in
this appeal and the same may be dismissed.

13. First of all learned counsel for the
appellants has raised the issue relating to
the hostility of the witness, 4 witnesses of
the fact were examined before learned trial
court, namely, PW1 Hawal Dar, PW2
Kalavati, PW3 Ram Bodh, PW4 pyare. All
these witnesses have turned hostile, but the
testimony of hostile witnesses cannot be
thrown away just on the basis of the fact
that
they
have
not
supported
the
prosecution case and were cross-examined
by the prosecutor. The testimony of hostile
witnesses can be relied upon to the extent it
supports the prosecution case. Needless to
say that the testimony of hostile witnesses
should be scrutinized meticulously and
very cautiously.

14. Hon'ble Apex Court in Koli
Lakhmanbhai Chandabhai vs. State of
Gujarat [1999 (8) SCC 624], as held that
evidence of hostile witness can be relied
upon to the extent it supports the version of
prosecution and it is not necessary that it
should be relied upon or rejected as a
whole. It is settled law that evidence of
hostile witness also can be relied upon to
the extent to which it supports the
prosecution version. Evidence of such
witness cannot be treated as washed off the
record. It remains admissible in the trial
7 All. Sikander & Anr. Vs. State of U.P.
183
and there is no legal bar to base his
conviction
upon
his
testimony
if
corroborated by other reliable evidence.

15. In Ramesh Harijan vs. State of
U.P. [2012 (5) SCC 777], the Hon'ble Apex
Court has also held that it is settled legal
position that the evidence of a prosecution
witness cannot be rejected in toto merely
because the prosecution chose to treat him
as hostile and cross-examined him. The
evidence of such witness cannot be treated
as effaced or washed off the record
altogether.

16. In State of U.P. vs. Ramesh
Prasad Misra and another [1996 AIR
(Supreme Court) 2766], the Hon'ble Apex
Court held that evidence of a hostile
witnesses would not be totally rejected if
spoken in favour of the prosecution or the
accused but required to be subjected to
close scrutiny and that portion of the
evidence which is consistent with the case
of the prosecution or defence can be relied
upon. Thus, the law can be summarized to
the effect that evidence of a hostile witness
cannot be discarded as a whole, and
relevant part thereof, which are admissible
in law, can be used by prosecution or the
defense.

17. Perusal of impugned judgment
shows
that
learned
trail
court
has
scrutinised the evidence on record very
carefully.

18. As far as the dying-declaration is
concerned, it was recorded by Ramesh
Chandra Srivastava, Nayab Tehsildar, Sadar
District Jaunpur who was examined as
PW5. Dying-declaration was recorded by
PW5 after obtaining the certificate of
mental-fitness from doctor in the hospital.
After completion of dying-declaration also
the said doctor has given certificate that
during the course of statement, the victim
remained conscious.

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

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

21. Deceased survived for 4 days after
the incident took place. Her dying declaration
was recorded by Ramesh Chandra Srivastava
Nayab Tehsildar after obtaining the certificate
of medical fitness from the concerned doctor.
This dying declaration was proved by PW5
Ramesh
Chandra
Srivastava,
Nayab
Tehshildar. These witnesses have absolutely
independent witnesses. In the wake of
aforesaid judgments of Lakhan (supra), dying
declaration cannot be disbelieved, if it
inspires confidence. On reliability of dying
declaration
and
acting
on
it
without
corroboration, Hon'ble Apex Court held in
Krishan vs. State of Haryana [(2013) 3
Supreme Court Cases 280] that it is not an
absolute principle of law that a dying
declaration cannot form the sole basis of
conviction of an accused. Where the dying
declaration is true and correct, the attendant
circumstances show it to be reliable and it has
been recorded in accordance with law, the
deceased made the dying declaration of her
own accord and upon due certification by the
doctor with regard to the state of mind and
body, then it may not be necessary for the
court to look for corroboration. In such cases,
the dying declaration alone can form the basis
for the conviction of the accused. Hence, in
order to pass the test reliability, a dying
declaration has to be subjected to a very close
scrutiny, keeping in view the fact that the
statement has been made in the absence of
the accused, who had no opportunity of
testing the veracity of the statement by crossexamination. But once, the court has come to
the conclusion that the dying declaration was
the truthful version as to the circumstance of
the death and the assailants of the victim,
there is no question of further corroboration.

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

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

24. In dying declaration of deceased
(Ex.ka4/17), it is also important to note that
it was recorded on 09.04.2010 and the
deceased died on 13.04.2010 while the
7 All. Sikander & Anr. Vs. State of U.P.
185
incident took place on 09.04.2010. It means
that she remained alive for 4 days after
making
dying
declaration.
Therefore,
truthfulness of dying declaration can
further be evaluated from the fact that she
survived for 4 days after making it from
which it can reasonably be inferred that she
was in a fit mental condition to make the
statement at the relevant time. Moreover, in
the dying declaration, the deceased did not
unnecessarily involved the other family
members of the accused appellants. She
only attributed the role of burning to her
husband and father-in-law.

25. In such a situation, the hostility of
witnesses of fact cannot demolish the value
and reliability of the dying declaration of
the deceased, which has been proved by
prosecution in accordance with law and is a
truthful version of the event that occurred
and the circumstances leading to her death.

26. As already noticed, none of the
witnesses or the authorities involved in
recording the dying declaration had turned
hostile. On the contrary, they have fully
supported the case of prosecution. The
dying declaration is reliable, truthful and
was voluntarily made by the deceased,
hence, this dying declaration can be acted
upon without corroboration and can be
made the sole basis of conviction. Hence,
learned trial court has committed no error
on acting on the sole basis of dying
declaration.
Learned
trial
court
was
completely justified in placing reliance on
dying declaration Ex. Ka-4 and convicting
the accused-appellants on the basis of it.

27. Now we come to the point of
argument raised by learned counsel for the
appellants that deceased died due to
septicaemia, hence this case falls within the
ambit of Section 304 IPC and not under
Section 302 IPC. In this regard, learned
counsel has submitted that deceased died
after 11 days of incident due to the
poisonous infection developed in her burn
injuries, which could be avoided by good
treatment. There was no intention of the
appellants to cause the death of his wife.

28. It is admitted fact that the
deceased died after four days of burning
and post mortem report goes to show that
she died due to septicaemia shock. Dr. A.K.
Srivastava has been examined as PW7, who
had conducted the post mortem of the
deceased. He has specifically written in the
post mortem report and deposed before the
learned trial court that the cause of death
was septicaemia shock due to burn injuries.
Hence, the death of the deceased was
septicaemial death.

29. 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. Accused is in jail for the
last more than 14 years.

30. 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 of the
accused at the scene of the crime, then the
onus stood shifted on the defence to have
186 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

31. 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
septicaemia caused by burn injuries. The
accused was convicted and sentenced for
life imprisonment 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 septicaemia and not as a
consequence
of
burn
injuries
and,
accordingly, sentenced for seven years'
rigorous imprisonment.

32. 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 septicaemia, 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 appellants 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 trialcourt was maintained and the judgment of
the High Court was set aside.

33. 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 septicaemia. 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 septicaemia, which
was caused due to burn-injuries and as a
result thereof, she expired on 1.8.1999.

34. 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,
7 All. Sikander & Anr. Vs. State of U.P.
187
then it may not be necessary for the court
to look for corroboration. In such cases,
the dying declaration alone can form the
basis for the conviction of the accused. But
where the dying declaration itself is
attended by suspicious circumstances, has
not been recorded in accordance with law
and settled procedures and practices, then,
it may be necessary for the court to look for
corroboration of the same.

13. However, the complaint given by
the deceased and the dying declaration
recorded by the Executive Magistrate and
the history before the doctor is consistent
and seems to be trustworthy. The same is
also duly corroborated with the evidence of
witnesses and the medical reports as well
as panchnama and it is clear that the
deceased died a homicidal death due to the
act of the appellants in pouring kerosene
and setting him ablaze. We do find that the
dying declaration is trust worthy.

14. However, we have also not lost
sight of the fact that the deceased had died
after a month of treatment. From the
medical reports, it is clear that the
deceased suffered from Septicemia which
happened due to extensive burns.
15. In the case of the B.N. Kavatakar and
another (supra), the Apex Court in a
similar case of septicemia where the
deceased therein had died in the hospital
after five days of the occurrence of the
incident
in
question,
converted
the
conviction under section 302 to under
section 326 and modified the sentence
accordingly.

15.1 Similarly, in the case of Maniben
(supra), the Apex Court has observed as
under:

"18. The deceased was admitted in the
hospital with about 60% burn injuries and
during the course of treatment developed
septicemia, which was the main cause of
death of the deceased. It is, therefore,
established that during the aforesaid period
of 8 days the injuries aggravated and
worsened to the extent that it led to
ripening of the injuries and the deceased
died due to poisonous effect of the injuries.

19. It is established from the dying
declaration of the deceased that she was
living separately from her mother-in-law,
the appellant herein, for many years and
that on the day in question she had a
quarrel with the appellant at her house. It
is also clear from the evidence on record
that immediately after the quarrel she
along with her daughter came to fetch
water and when she was returning, the
appellant came and threw a burning tonsil
on the clothes of the deceased. Since the
deceased was wearing a terylene cloth at
that relevant point of time, it aggravated
the fire which caused the burn injuries.

20. There is also evidence on record to
prove and establish that the action of the
appellant to throw the burning tonsil was
preceded by a quarrel between the
deceased and the appellant. From the
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
188 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

35. On the overall scrutiny of the facts
and circumstances of the case coupled with
medical evidence and the opinion of the
Medical Officer and considering the
principle laid down by the Courts in above
referred case laws, we are of the considered
opinion that in the case at hand, the offence
would be punishable under Section 304
(Part-I) IPC.

36. From the upshot of the aforesaid
discussions it appears that the death caused
by the accused persons was not premeditated but they intentionally caused
such bodily injuries which were likely to
cause death. Hence the instant case falls
under the exceptions (1) and (4) to Section
300 of IPC. While considering Section 299
IPC, offence committed will fall under
Section 304 (Part-I) IPC.

37. In view of the aforesaid
discussion, we are of the view that appeal
has to be partly allowed. The conviction of
the appellants under Section 302 IPC is
converted into conviction under Section
304 (Part-I) IPC and the appellants are
sentenced
to
undergo
ten
years
of
incarceration with fine of Rs. 10,000/- and
in case of default of payment of fine, the
appellants shall further undergo simple
imprisonment for 1 year.

38. Accordingly, the appeal is partly
allowed.
----------
(2022)07ILR A188
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.07.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Crl. Appel. No. 1507 of 2015

Vinod & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri A.K. Tripathi, Sri Ashok Kumar Tripathi, Sri
Namit Kumar Sharma

Counsel for the Respondents:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302 / 34, 201, 364 & 404 -
The Code of Criminal Procedure, 1973 -
Section 313 - circumstantial evidence -
conviction
can
be
based
solely
on
circumstantial evidence - Court must bear
in mind -while deciding the case involving
the commission of a serious offence based
on circumstantial evidence - prosecution
case must stand or fall on its own legs and
cannot derive any strength from the
weakness of the defence case. (Para -26)

Kidnapping - murder - no eyewitness account of
incident

-
prosecution
case
based
on
circumstantial evidence - No evidence against
accused - serious infirmities in prosecution
evidence - statements of witnesses are highly
inconsistent
-
major
contradictions
and
discrepancies in it on material points -
prosecution evidence not reliable . (Para -
18,29)

(B) Evidence Law - case based on
circumstantial evidence - circumstances
from which the conclusion of guilt is
drawn, should be fully proved - such
circumstances must be conclusive in