# Smt. Angoori Devi & Ors v. The State of U.P

- **Citation:** (2022) 10 ILRA 239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-14
- **Case number:** Criminal Appeal No. 4094 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-angoori-devi-ors-v-the-state-of-u-p-47710
- **Pages:** 11

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860-Sections 498-A, 304-B &
302/34 - 3⁄4 Dowry Prohibition Act,1961Challenge
to-Conviction-
dying
declaration-deceased
died
due
to
septicemia
caused
by
burn
injuriesStatement of PW-1 proves that the
ingredient of 'soon before death' has not
established at all- death caused by the
accused was not premeditated-husband
was not present at the time of incident
and he had been acquitted while others
had been found guilty on the basis of
dying declaration -From the statement of
PW-6, PW-7 it is clear that there was no
tutoring in the whole process of the
recording of the dying declaration- the
deceased died after two and a half months
of incident due to the poisonous infection
developed in her burn injuries, hence it
cannot be said that the deceased was
murdered -Hence, the case falls within the
ambit of Section 304 IPC and not under
Section 302 IPC-The sentence of accused
persons is reduced to the period of 10
years with remission-the period already
undergone can be sustained in the full
period of incarceration. (Para 1 to 44)

B. 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, it can be the sole basis
for recording conviction. In such an
eventuality no corroboration is required.
(Para 43)

The appeal is partly allowed. (E-6)
List of Cases cited:

## Text

10 All. Smt. Angoori Devi & Ors. Vs. The State of U.P.
239
IPC and are sentenced to undergo ten years
of incarceration with remission with fine of
Rs. 10,000/-. We maintain the default
sentence, which will start if fine is not
deposited after ten years with remission.

41. Record and proceedings be sent
back to the Court below forthwith.

42. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2022) 10 ILRA 239
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 4094 of 2016

Smt. Angoori Devi & Ors. ...Appellants
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ashutosh Yadav, Abhilasha Singh, Sri
Shyam Lal, Sri Yogesh Kumar Srivastava

Counsel for the Respondent:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860-Sections 498-A, 304-B &
302/34 - 3⁄4 Dowry Prohibition Act,1961Challenge
to-Conviction-
dying
declaration-deceased
died
due
to
septicemia
caused
by
burn
injuriesStatement of PW-1 proves that the
ingredient of 'soon before death' has not
established at all- death caused by the
accused was not premeditated-husband
was not present at the time of incident
and he had been acquitted while others
had been found guilty on the basis of
dying declaration -From the statement of
PW-6, PW-7 it is clear that there was no
tutoring in the whole process of the
recording of the dying declaration- the
deceased died after two and a half months
of incident due to the poisonous infection
developed in her burn injuries, hence it
cannot be said that the deceased was
murdered -Hence, the case falls within the
ambit of Section 304 IPC and not under
Section 302 IPC-The sentence of accused
persons is reduced to the period of 10
years with remission-the period already
undergone can be sustained in the full
period of incarceration. (Para 1 to 44)

B. 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, it can be the sole basis
for recording conviction. In such an
eventuality no corroboration is required.
(Para 43)

The appeal is partly allowed. (E-6)
List of Cases cited:

1. Devendra Singh & ors. Vs St. of U.K. (2022)
AIR SC 2965

2. Mahendra Singh Vs St. of M.P. (2022) 7 SCC
157

3. Kailash Vs St. of M. P. (2007) AIR SC 107

4. Devinder Vs St. of Har. (2010) 10 SCC 763:
2012 (10) JT 249

5. G.V. Siddaramesh Vs St. of Karn. (2010) 3
SCC 152

6. St. Vs Veer Pal & ors. (2022) 2 SCC Crl. 224

7. St. of U.P. Vs Ram Sagar Yadav (1985) 1 SCC
552; 1985 ACC Cri. 127
240 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Ramwati Devi Vs St. of Bih. (1983) 1 SCC
211: 1983 SCC Cri 169

9. B. Sanghikala Vs St. of A. P.(2005) SCC
Cri.171

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

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1.

Heard
Sri
Yogesh
Kumar
Srivastava,
learned
counsel
for
the
appellants and Sri N.K. Srivastava, learned
AGA appearing for the State and perused
the record.

2. The instant criminal appeal has
been filed against the judgment and order
dated 28.07.2016/29.07.2016 passed by
Additional Sessions Judge/Fast Track Court
No. 1, Hathras, in S.T. No. 493 of 2014,
State vs. Arjun Singh and one another, S.T.
No. 194 of 2015, State vs. Bachchoo Singh
and one another and S.T. No. 146 of 2015,
State vs. Sukhvir, arising out of Case Crime
No. 322 of 2014, under Sections 498A,
304B
IPC
and
Section
3⁄4
Dowry
Prohibition Act, P.S. Chandpa, District
Hathras, whereby the applicants have been
convicted under Section 302/34 IPC and
sentenced to imprisonment for life with a
fine of RS. 10,000/- each and in default to
undergo
6
months
additional
simple
Imprisonment.

3. All the three sessions trials were
consolidated with S.T. No. 493 of 2014,
State vs. Arjun Singh and the another,
which was mentioned as leading case.

4. The factual scenario as emerged out
from the FIR (Ext. K-3) is that Smt. Hema,
sister of the informant Sunil Kumar was
married to the accused Arjun Singh on
01.05.2013. After
marriage
she
was
harassed and subjected to cruelty for
demand of dowry by her husband Arjun
Singh, mother in-law Anguri Devi, Jeth
Bachchoo Singh and Jethani Anjali Devi,
who were not satisfied with the dowry
given in the marriage and were demanding
Rs. 50,000/- more as dowry. When the
informant and his father shown their
inability to pay this huge amount, they set
ablaze the aforesaid Hema on 03.05.2014 at
her matrimonial home. The informant on
information went there and took away his
sister to the hospital and when they have no
money left for treatment, they left away
Smt. Hema to her matrimonial home on
03.05.2014. The in-laws of the deceased
took no interest in her treatment and
ultimately she died on 19.07.2014.

A written report Ext. K-1 was
was given to the station officer at P.S.
Chandpa, District Hathras by the informant
and FIR was lodged on 19.07.2014 at 09:15
a.m.

5. The investigation of the case was
conducted by C.O. Narendra Dev, who
recorded the statements of witnesses and
made a site plan (Ext. K-6) after inspection
of the house of the accused persons. The
inquest report Ext. K-2 was prepared on
19.07.2014 by Tehsildar Ram Jeevan
Verma
and
necessary
papers
for
postmortem were also prepared. The
postmortem of the deceased was performed
by Dr. R.P. Singh on 19.07.2014 and
autopsy report Ext. K-5 was prepared by
him, who found the following antemortem
injuries on the person of deceased as
mentioned below :-

1.Superficial to deep burn (old)
on neck and chest and face, surface of skin
is covered with granulated tissues.
10 All. Smt. Angoori Devi & Ors. Vs. The State of U.P.
241

2.Superficial to deep burn (old)
on both asens (Anteriorly and posteriorly).
Surface of skin is covered with granulatial
tissues.

3. Superficial to deep burn (old)
on back of chest where skin surface is
covered with granulated tissues.

It was opined that the cause of
death was septicemic shock as a result of
old burn .

6. After investigation three chargesheets Ext. K-7, Ext. K-8 and Ext. K-9 was
submitted by the Investigating Officer.
Meanwhile the dying declaration (Ext. K10) of Smt. Hema aforesaid was recorded
by
Sri
P.S.
Rana,
Additional
City
Magistrate
on
04.05.2014
at
Maraj
Hospital, Aligarh.

7. The accused persons were appeared
before the court and their cases being
exclusively triable by the Sessions court
were committed to the court of Sessions.

8. Accused Arjun Singh and Anguri
Devi were charged under Sections 498A,
304B read with Section 302/34 IPC and
Section 4 D.P. Act, accused Bachchoo and
Smt. Anjali were charged under Sections
498A, 304B read with Section 302/34 IPC
as alternative charge and Section 3⁄4 D.P.
Act and charges under Sections 498A,
304B read with Section 302/34 IPC as
alternative charge and Section 4 D.P. Act
were framed against accused Sukhvir.

9. Accused persons pleaded not guilty
and claimed to be tried and the trial started.

10. The prosecution to bring home the
charges against the accused person has
relied upon oral and documentary evidence.

11. In oral evidence P.W. 1 Sunil
Kumar, informant/brother of the deceased,
P.W. 2 Raju Singh, witness of inquest
report, P.W. 3 Constable Clerk Narendra
Singh scribe, P.W. 4 Dr. Ravindra Pratap
Sing, P.W. 5 C.O. Narendra Dev, the
Investigating Officer and P.W. 6 Pooran
Singh, Tehsildar, the witness of dying
declaration and P.W. 7 Dr. Mairaj Ali,
Mairaj
Hospital,
Aligarh
have
been
examined.

12. As documentary evidence, written
report Ext. K-1, inquest report Ext. K-2,
Chick FIR Ext. K-3, Case registration GD
Ext. K-4, Autopsy Report Ext. K-5, site
plan Ext. K-6, charge-sheet Ext. K-7, 8 and
9 and dying declaration Ext. K-10 have
been produced by prosecution.

13. After the prosecution evidence is
over, the incriminating circumstances and
evidence adduced against accused persons
were put before them. In their statements
under section 313 Cr.P.C., they claimed
whole prosecution evidence as false and
fabricated. Accused Arjun Singh, Sukhvir,
Anjali and Bachchoo Singh have taken
defence of separate leaving and also
claimed the suicidal death of the deceased
and false implication of the accused
persons.

14. Accused Arjun Singh, husband of
the deceased has stated that at the time of
occurrence he has not present in the village.
His wife was short tempered. He has also
stated that he bore of the expenses
regarding treatment of his wife and has also
claimed that she herself has committed
suicide by pouring kerosene oil upon her
and all the accused persons have been
falsely implicated.
242 INDIAN LAW REPORTS ALLAHABAD SERIES

15. On behalf of accused persons
DW-1, Pawan Kumar, who is the resident
of the village of the appellants has been
examined to prove the ill tempered nature
of the deceased and also the factum of
suicide committed by her.

16. As oral evidence PW-1 Sunil
Kumar, the brother of the deceased has
been examined who in his Examination-InChief has corroborated the prosecution
story and proved the written report Ext. Ka1 was reiterated the fact.

17. The main ingredients of the offence
under
Section
304-B
required
to
be
established are determined by the Hon'ble
Apex Court in a catena of decisions and
recently in Devendra Singh and others v.
State of Uttarakhand, AIR 2022 SC 2965
they have been reiterated as follows: -

"(i) that soon before the death, the
deceased was subjected to cruelty and
harassment in connection with the demand of
dowry;

CRIMINAL APPEAL NO.383 OF 2018

(ii) the death of the deceased was
caused by any burn or bodily injury or some
other circumstance which was not normal;

(iii) such a death has occurred within 7
years from the date of her marriage;

(iv) that the victim was subjected to
cruelty or harassment by her husband or any
relative of her husband;

(v) such a cruelty or harassment should
be for, or in connection with the demand of
dowry; and

(vi) it should be established that such
cruelty and harassment were made soon
before her death."

18. In the aforesaid matter the Hon'ble
Apex Court explaining the Provision of
Section 113B of Indian Evidence Act has
laid down that :-

"Section 304BIPC read along with
Section 113B of the Indian Evidence Act,
1872 makes it clear that once the prosecution
has succeeded in demonstrating that a
woman has been subjected to cruelty or
harassment for or in connection with any
demand for dowry soon after her death, a
presumption shall be drawn against the said
persons that they have caused dowry death as
contemplated under Section 304B IPC. The
said presumption comes with a rider
inasmuch as this presumption can be rebutted
by the accused on demonstrating during the
trial that all the ingredients of Section 304B
IPC have not been satisfied. [Ref.: Bansi Lal
vs. State of Haryana, (2011)11 SCC 359: AIR
2011 SC 691, Maya Devi and Anr. vs. State of
Haryana,(2015) 17 SCC 405: AIR 2016) SC
125, G.V. Siddaramesh v. State of Karnataka
(2010) 3 SCC 152: 2010 AIR SCW 1387 and
Ashok Kumar vs. State of Haryana (2010) 12
SCC
350:
AIR
2010
SC
2839]."

19. In the light of relevant
provisions, ingredients of the offences
and the evidence adduced, the case has to
be scrutinized. PW-1 Sunil Kumar,
brother of the deceased, in his statement
has reiterated the fact of dictating written
report and lodging of FIR and has stated
that the deceased. Hema was married
with
the
accused Arjun
Singh
on
1.5.2013. She was harassed and subjected
to cruelty by her in-laws with a demand
of Rs. 50,000/- as additional dowry. He
has further submitted that on 3.5.2014
accused persons Arjun Singh, Anguri
Devi, Anjali Devi, Bachchu Singjh and
Sukhbir Singh with the common object
set ablaze his sister by pouring kerosene
oil and ultimately she died on 19.7.2014.
10 All. Smt. Angoori Devi & Ors. Vs. The State of U.P.
243

20. In his cross-examination, he has
stated that his sister deceased Hema was
very loose tempered and irritable and used
to come to her parents without informing
her in-laws. He has also admitted in his
cross-examination that she used to make
quarrel with her in-laws on the issue of the
partition of the house and had grudge with
them. His brother-in-law never demanded
any dowry and he was not present on spot
on the day of occurrence. He has further
stated that one day before the occurrence,
his sister came to her parental house but
she was bitterly harassed there and was sent
back to her inlaws. Since, she was a
peevish and ill tempered lady, she set
ablazed herself. The accused persons
neither set ablazed her nor assaulted.

21. PW-2 Raju Singh, witness of
Panchayanama, is a resident of the village
of accused persons. It is to be noted that
PW-1 has also proved the inquest report as
Ext. K-2 and PW-2 has also identified his
signature over the inquest report. PW-3,
Constable Narendra Singh is the scribe of
FIR and he has proved the Chik FIR Ext.
K-3 and case Registration GD as Ext. K-4.
In his cross-examination, he has stated that
it is true that the informant or any of his
family members never informed the police
regarding the said incident for a period of 2
months and 16 days.

22. PW-4 Dr. Ravindra Pratap Singh
has proved autopsy report as Ext. K-5. In
his cross-examination, he has stated that the
deceased had died due to Septesemia and
infection and pus was found in the both
lungs of the deceased at the time of post
mortem.

23. PW-5, Circle Officer Narendra
Dev, is the Investigating Officer of the
case, he has proved the topography of the
place of occurrence and the site plan Ext.
K-6. He has recorded the statement of the
informant, scribe of the FIR, witness of the
inquest report and also made a copy of the
dying declaration in the case diary. After
completion
of
investigation,
he
also
submitted charge-sheets Ext. K-7, 8 and 9
in the court. In his cross-examination he
had admitted that during investigation
witness Netrapal had stated that the
deceased Hema was very ill tempered and
irritable lady.

24. PW-6, Tehsildar, Pooran Singh
Rana, in his deposition has categorically
stated that on 4.5.2014 at 11:53 am he has
recorded the dying declaration of Smt.
Hema at Mairaj Hospital, Aligarh, and prior
to the recording of that statement he
obtained the certificate from the doctor that
she was fully conscious and, in a position
to record her statement. After recording the
dying declaration, he obtained certificate
from the doctor that during the course of
recording the statement, she had been fully
conscious and, in a position to record her
statement. PW-6 has proved the dying
declaration as Ext. K-10.

25. PW-7 Dr. Mairaj Ali, has also
proved the process of recording of dying
declaration in his deposition and has
confirmed this fact that dying declaration
was recorded on 4.5.2014 at 11:50 am in
Mairaj Hospital, Aligarh, by Sri P.S Rana,
Additional City Magistrate I, Aligarh, he
has
also
confirmed
his
certificate
mentioned upon Ext. K-10.

26. In his cross-examination, PW-7
has deposed that at the time of admission in
his Hospital, she was 50%-60% burnt
where she remained admitted in the
hospital along with her parents for 4-5
days.
244 INDIAN LAW REPORTS ALLAHABAD SERIES

27. It is a settled principle of law that
the defence evidence to be weighed in the
same manner as the prosecution evidence.
On this aspect, shalter can be taken of
Mahendra Singh vs State of M.P. (2022) 7
SCC 157.

28. DW-1 Pawan Kumar Sharma who
is a resident of the village of the
appellants/accused persons has stated that
at the time of occurrence he was present at
the house of the deceased and saw that the
deceased set ablazed herself and was
crying. He had also tried to save the
deceased. In his cross-examination he has
stated that he was also burnt when he was
trying to save the deceased. However, he
has admitted that the deceased had not set
ablazed herself before him. Hence, the
deposition of D.W. 1 is of no help of the
accused persons.

29. On taking note of the evidence
and other aspects of the matter it is
evident that the death of the deceased had
occurred within seven years from the date
of her marriage. From the Medical
Evidence, it has been proved beyond
reasonable doubt that death of the
deceased
had
occurred
in
such
circumstances which were not normal.
Thus, the fact of unnatural death of the
deceased within 7 years of her marriage
has been fully established. Now, the
question arises for consideration as to
whether the allegations made by the
prosecution would be sufficient to satisfy
the ingredients of Section 304-B IPC with
regard to demand of dowry, perpetration
of cruelty and harassment in connection
with demand of dowry. Further, if such
cruelty and harassment suffered by the
deceased was continuous and had put to
her life miserable so as to bring her home
death. It is well settled that such cruelty
or harassment are to be linked with the
close proximity of time soon before her
death.

30. It is pertinent to mention here that
there is no witness of fact on record to
corroborate the deposition of PW-1 who is
the brother of the deceased. No other
family member from the parental side of
the deceased has been examined. The
evidence of PW-1 if taken as a whole, is
shaky and is of uncertain character so far as
the dowery death in concerned. Whereas in
his examination in chief he has stated about
harassment and demand of dowry from his
sister, in the cross-examination, he has
stated that she was very ill tempered and
after used to come to her parental house
without any information to her in-laws to
which she was scolded and rather beaten by
her parents and this incident happened just
before her death. Hence, the statement of
PW-1 ultimately proves that the ingredient
of ''soon before death' has also not been
established at all. Since the prosecution
failed to establish the necessary ingredient
of ''soon before death' which was a must to
prove the guilt of the accused persons
under Section 304-B IPC, it can be
concluded that the offence under Section
304-B is not established from the evidence
on record and therefore, no presumption
can be drawn under Section 113B of the
Indian Evidence Act, which means that the
burden
of
proof
remains
upon
the
prosecution and it is not shifted on the
defence side by virtue of non-application of
section 113B of the Indian Evidence Act.
Depending
upon
the
facts
and
circumstances of the case reference can be
made in Kailash vs. State of Madhya
Pradesh, AIR 2007 SC 107, wherein it has
been held that the word ''soon before death'
in section 113B cannot be limited by fixing
time limit. It is left to be determined by the
10 All. Smt. Angoori Devi & Ors. Vs. The State of U.P.
245
Courts, depending upon the facts and
circumstances of the case. It has been held
by Hon'ble Apex Court in Devinder vs.
State of Haryana, (2010) 10 SCC 763:
2012 (10) JT 249 that Section 113B read
with Section 4 of the Act would mean that
unless and until it is proved otherwise, the
Court shall hold that a person has caused
dowry death of a woman if it is established
before the Court that soon before her death
such woman has been subjected by such
person to cruelty or harassment for, or in
connection with any demand for dowry.
The similar view has been taken in G.V.
Siddaramesh vs. State of Karnataka,
(2010) 3 SCC 152 wherein it has been held
that there must be material to show that
soon before the death of woman, such
woman was subjected to cruelty or
harassment for or in connection with
demand of dowry, then only a presumption
can be drawn that a person has committed
the dowry death of a woman.

31. It is pertinent to mention here that
alternative charge under Section 302 IPC
has been framed against the accused
persons and the learned Trial Court has
relied upon the dying declaration of the
deceased Ext. K-10, as a proof thereof.

32. The learned counsel for the
appellant has vehemently argued that the
dying declaration in this case is not a valid
piece of evidence. It has not been
corroborated by any cogent evidence. On
the other hand the learned AGA has relied
upon the case law of Hon'ble Apex Court in
State v. Veer Pal and Others (2022) 2 SCC
(Criminal) 224 wherein it has been held as
under :-

16 Now, on the aspect, where in the
absence of any corroborative evidence, there
can be a conviction relying upon the dying
declaration only is concerned, the decision of
this Court in Munnu Raja (Munnu Raja vs.
State of M.P., (1976) 3 scc 104: 1976 SCC
(Cri) 376) and the subsequent decision in
Paniben vs. State of Gujrat [Paniben v. State
of Gujarat, (1992) 2 SCC 474: 1992, SCC
(Cri) 403] are required to be referred to. In
the aforesaid decisions, it is specifically
observed and held that there is neither a rule
of law nor of prudence to the effect that a
dying declaration cannot be acted upon
without a corroboration. It is observed and
held that if the Court is satisfied that the
dying declaration is true and voluntary it can
base
its
conviction
on
it,
without
corroboration. Similar view has also been
expressed in State of U.P. Vs. Ram Sagar
Yadav [State of U.P. vs. Ram Sagar Yadav]
(1985) 1 SCC 552; 1985 ACC (Cri) 127] and
Ramawati Devi vs. State of Bihar. [Ramwati
Devi vs. State of Bihar] (1983) 1 SCC 211:
1983 SCC (Cri) 169]. Therefore, there can be
a conviction solely based upon the dying
declaration without corroboration.

33. In the present case, PW-6 has
recorded the dying declaration of the
deceased in the Mairaj Hospial, Aligarh on
4.5.2014 at 11:53 a.m. and has proved it as
Ext. K-10. What the deceased had spoken
is verbatim written in Ext. K-10 like this:-

" आग कैसे लगी- मेरे सास, जेठानी
अोंजली, जेठ बच्चू कसह, देवर सुखवीर ने 3-4 कदन पहले
मारा था। शुक्रवार को इन लोगो ने कमट्टी तेल डाल कर
आग लगाई। यह घटना सुवह की है। तुम कहाूँ थी- मैं
कपड़े धो रही थी। आग क्ोों लगाई- मुझे कनकालने को
कहते थे। घरवाला कहाूँ था- काम पर गये थे। शादी कब
हुई- एक साल हो गया है। बच्चे हैं- नहीों । मुझे कहते थे
तीन लाख रूपया कजाष हटाने के कलये लाओ लोन का।"

34. A certificate has been given by Dr.
Mairaj Ali PW-7 before and after recording
of the dying declaration which has been
246 INDIAN LAW REPORTS ALLAHABAD SERIES
endorsed on Ext. K-10 to the effect that
Smt. Hema Devi is all conscious and will
oriented with time, place and person and is
fit for recording of statement. He has also
certified
that
the
patient
remained
conscious and oriented till the end of
recording of statement. From the statement
of PW-6 and PW-7 it is absolutely clear
that there is no tutoring in the whole
process of the recording of the dying
declaration of Ext. K-10 and it is genuine
and innocent statement. PW-6 Pooran
Singh Rana, the then Additional City
Magistrate I, Aligarh, is a responsible
officer and an interested witness. No
material circumstance comes out from the
analysis of the evidence on record to
establish that the Magistrate had any
orientation against the accused hence,
question of doubt on declaration recorded
by PW-6, does not arrive at all.

35. Learned counsel for the appellant
submitted that the medical evidence shows
that the deceased died due to Septicemic
shock after about two and a half months
from the date of occurrence and, therefore,
it cannot be said that the deceased was
done to death and she was murdered.

36. The Trial Court has also relied
upon the dying declaration made by Smt.
Hema and has found that offence under
Section 304 B IPC is not made out against
the accused persons but they could not get
rid of the charge under Section 302/34 IPC.
It has also been observed by learned Trial
Court that perusal of dying declaration Ext.
K-10 shows that accused Arjun, husband of
the deceased, was not present at the time of
occurrence and as such he has been
acquitted from all the charges by Trial
court. Accordingly, the present appellants
have also been acquitted from the charges
under Section 498A, 304B and Section 4
Dowry Prohibition Act, but at the same
time on the basis of dying declaration they
have been found guilty under Section
302/34 IPC and have been sentenced
accordingly.

37. While replying to the plea of the
learned counsel for the appellants that since
the death was caused due to septicaemia
and it took place after about two and half
months from the date of occurrence, dying
declaration is not reliable and inadmissible,
the learned AGA has relied upon the case
of B. Sanghikala v. State of Andhra
Pradesh, 2005 SCC (Criminal) 171,
wherein it has been held that there is no
legal requirement that dying declaration
could be admissible in evidence only when
made under expectation of death.

38. While considering the conclusion
arrived at by the learned Trial court and the
sentence imposed upon by it, we would
have to see as to whether the deceased was
done to death, however, the cause of death
due to Septisemic Shock will not take out
from the purview of Section 300 IPC.

39. However, the question which falls
for our consideration is whether, on
reappraisal of the peculiar facts and
circumstances of the case is that 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 reads 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
10 All. Smt. Angoori Devi & Ors. Vs. The State of U.P.
247
that he is likely by such act to cause death,
commits the offence of culpable homicide."

40. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A person commits
culpable homicide if the
act by which the death is
caused is done-
Subject to certain exceptions
culpable homicide is murder is
the act by which the death is
caused is done.

INTENTION

(a) with the intention of
causing death; or

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

41. 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.

42. 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. (2011) 5 SCR
300 which have to be also kept in mind.

43. 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
248 INDIAN LAW REPORTS ALLAHABAD SERIES
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 certificate given by the doctor are
consistent and seem 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 oil and setting her 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 about two and half months 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 vs. State of Gujrat, 2009 (8) SCC
796, the Apex Court has observed as
under:-

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

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

20. There is also evidence on
record to prove and establish that the
action of the appellant to throw the
burning tonsil was preceded by a quarrel
between the deceased and the appellant.
From the aforesaid evidence on record it
cannot be said that the appellant had the
intention that such action on her part
would cause the death or such bodily
injury to the 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."
10 All. Smt. Seema Vs. State of U.P.
249

44. 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 two and half months after the
occurrence
and
ultimately
died
of
septicemia. 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 and the sentence of the
accused persons/ appellant is reduced to the
period of 10 years with remission. The
period already under gone can be sustained
in the full period of incarceration.

45. The fine is reduced to Rs. 5000/-
each to be paid to the original complainant.
The default sentence would be 6 months
with
remission
and
will
run
after
completion of 10 years incarceration. The
accused persons have been languishing in
jail since long, at least each of them has
suffered for about 8 years of imprisonment
and must have repented to their deed which
was out of anger.

45. It is to be made clear that
accused/appellant Smt. Anguri Devi, has
already been released from the prison on
the basis of mercy petition of 4.8.2022
hence, she need not under go any
imprisonment.

Accordingly, the appeal is partly
allowed. Record and proceedings be sent
back to the court below forthwith
----------
(2022) 10 ILRA 249
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 4599 of 2015
with
Criminal Appeal No. 4601 of 2015
with
Criminal Appeal No. 4597 of 2015

Smt. Seema ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Atul Tej Kulshreshtha, Sri Rajrshi Gupta,
Sri Vinay Kumar Khokhar, Sri Vinay Singh,
Sri Dileep Kumar

Counsel for the Respondent:
G.A., Sri Braham Singh, Sri Sushil Kumar
Tewari

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 498-A, 304-B,
201,
302
-
3/4
Dowry
Prohibition
Act,1961-Challenge
to-ConvictionAccidental death converted into dowry
death-Applicant and his wife met accident
while returning home on a motorcyclewife
succumbed
to
injuries-informant
gave a colour of accidental death to dowry
death-applicant
proved
the
medical
reports of the treatment while trial court
did not consider the Panchnama in proper
manner
upon
which
signature
of
informant was taken and he was also
present in the cremation-Hence, on the
basis of defence evidence, both oral and
documentary and in the circumstances of
the case, the convicts/appellants have
succeeded to create a doubt about the
genuineness of the prosecution case-It is
well settled principle of law that when the
genesis and the manner of the incident is
doubtful,
the
accused
cannot
be