# Smt. Kushma Devi v. The State of U.P. Opp. Party

- **Citation:** (2022) 9 ILRA 1559
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-12
- **Case number:** Crl. Appeal No. 6073 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kushma-devi-v-the-state-of-u-p-opp-party-49048
- **Pages:** 7

## Headnote

A. Criminal Law - Evidence Act, 1872 -
Section 32 - Dying Declaration - A dying
declaration can be oral or in writing and in
any adequate method of communication
whether by words or by signs or otherwise,
provided the indication is positive and
definite - Typically, such statements are
made verbally before the person's death and
then documented by a magistrate, doctor, or
police officer - When it is recorded, no oath
is necessary nor is the presence of a
1560 INDIAN LAW REPORTS ALLAHABAD SERIES
magistrate
is
absolutely
necessary,
although to assure authenticity it is usual
to call a magistrate, if available for
recording the statement of a man about to
die. - There is no requirement of law that a
dying declaration must necessarily be
made to a magistrate and when such
statement is recorded by a magistrate
there is no specified statutory form for
such recording - what evidential value or
weight has to be attached to such
statement necessarily depends on the facts
and circumstances of each particular case -
what is essentially required is that the
person who records a dying declaration
must be satisfied that the deceased was in
a fit state of mind (Para 13)
B. Criminal Law - Indian Penal Code, 1860 -
Exception 4 to Sections 300 & 304 (Part I) -
Offence would be punishable under Section
304 (Part-I) IPC because the burn injuries
were caused to the deceased by appellant
with the intention to cause such bodily
injuries as were likely to cause death - case
falls under the Exceptions 4 of Section 300
IPC - conviction of the appellant under
Section 302 IPC converted into conviction
under Section 304 (Part-I) of IPC (Para 17,
21)
Partly Allowed. (E-5)
List of Cases cited:

## Text

9 All. Smt. Kushma Devi Vs. The State of U.P.
1559

35. This takes us to the last question
which is with regard to the punishment to be
imposed upon the accused appellant. The
charge against the accused appellant is of
committing offence under Section 376 IPC
upon a minor 12 year girl who was returning
from her school. The charge against the
accused appellant is extremely serious. The
accused appellant was a person of nearly 45
years of age on the date of commissioning of
the offence and, therefore, he was expected
to be aware of his actions and its
consequences.

36. Learned counsel for the accused
appellant
submits
that
the
maximum
punishment under Section 376 IPC ought not
to exceed above 10 years in the facts of the
case.

37. Learned AGA on the other hand
submits that the punishment of life is
appropriate in the facts of the case.

38. Considering the fact that minor
victim was only 11-12 year of age at the time
of commissioning of the offence, we are of
the view that the accused appellant does not
deserve any leniency and sentence of ten
years would clearly be inadequate. However,
in the facts of the case we find that the
accused appellant has already suffered
incarceration with remission of more than 25
years. In our view, this would be sufficient
punishment for the accused appellant who
otherwise by now would be a person of 65-70
years and has spent major part of his life in
imprisonment. In such circumstances, we
substitute the punishment for life awarded to
the accused appellant under section 376 IPC
with the sentence already undergone by the
appellant. The fine is reduced to Rs. 10,000/-
and on its failure to pay the accused appellant
shall undergo further imprisonment of three
months.

39.

This
Criminal
Appeal,
accordingly, is partly allowed.

40. A copy of this order shall be
communicated to the accused appellant in
Jail through Chief Judicial Magistrate/Jail
Superintendent concerned, forthwith.

41. The accused appellant shall be
released from Jail, forthwith, unless he is
wanted in any other case, subject to
compliance of Section 437A Cr.P.C.
----------
(2022) 9 ILRA 1559
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2022

BEFORE

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

Crl. Appeal No. 6073 of 2016
with
Crl. Appl. No. 6611 of 2016

Smt. Kushma Devi ...Appellant
Versus
The State of U.P. ...Opp. Party

Counsel for the Appellant:
Ms. Archna Singh Jadaun, Sri Noor Mohammad,
Sri Mayank Rastogi

Counsel for the Respondents:
G.A.

A. Criminal Law - Evidence Act, 1872 -
Section 32 - Dying Declaration - A dying
declaration can be oral or in writing and in
any adequate method of communication
whether by words or by signs or otherwise,
provided the indication is positive and
definite - Typically, such statements are
made verbally before the person's death and
then documented by a magistrate, doctor, or
police officer - When it is recorded, no oath
is necessary nor is the presence of a
1560 INDIAN LAW REPORTS ALLAHABAD SERIES
magistrate
is
absolutely
necessary,
although to assure authenticity it is usual
to call a magistrate, if available for
recording the statement of a man about to
die. - There is no requirement of law that a
dying declaration must necessarily be
made to a magistrate and when such
statement is recorded by a magistrate
there is no specified statutory form for
such recording - what evidential value or
weight has to be attached to such
statement necessarily depends on the facts
and circumstances of each particular case -
what is essentially required is that the
person who records a dying declaration
must be satisfied that the deceased was in
a fit state of mind (Para 13)
B. Criminal Law - Indian Penal Code, 1860 -
Exception 4 to Sections 300 & 304 (Part I) -
Offence would be punishable under Section
304 (Part-I) IPC because the burn injuries
were caused to the deceased by appellant
with the intention to cause such bodily
injuries as were likely to cause death - case
falls under the Exceptions 4 of Section 300
IPC - conviction of the appellant under
Section 302 IPC converted into conviction
under Section 304 (Part-I) of IPC (Para 17,
21)
Partly Allowed. (E-5)
List of Cases cited:
1. Khokan @ Khokhan Vishwas Vs St. of
Chhattisgarh 2021 0 Supreme (SC) 73

2. State of Uttar Pradesh Vs Subhash @ Pappu
2022 0 Supreme (SC) 260

3. Tuka Ram & ors. Vs St. of Mah. [(2011) 4
SCC 250]

4. BN Kavadakar & anr. Vs St. of Karn.[1994
Supp (1) 304]

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

1. By way of these appeals the two
accused who have filed the appeals out of
them the appellant of Criminal Appeal
No.6611 of 2016 namely Rajesh Kumar
breathed his last during pendency of this
appeal therefore qua him the appeal is
abated.

2. The sole surviving appellant Smt.
Kushma Devi who is incarcerated since
17.3.2012 has preferred this appeal against
the judgement and order dated 03.10.2016,
passed by learned Additional Sessions
Judge/ Fast Track Court No.1, Aligarh in
Session Trail No. 164 of 2013 (State of UP
vs. Rajesh Kumar and Others), arising out
of Case Crime No. 102 of 2012, under
Sections 498-A, 304B, 302/34 Indian Penal
Code, 1860 (in short ''I.P.C.'), Police
Station-
Harduaganj,
District Aligarh,
whereby the appellant- Smt. Kushma Devi
was convicted and sentenced for the
offence under Section 302/34 I.P.C. for life
imprisonment with fine of Rs.20,000/- and
in default of payment of fine, further
imprisonment for three months.

3. Brief facts of the case giving rise to
this appeal are that a written report was
submitted by complainant Raj Kumar
Singh (father of the deceased) at police
station Harduaganj, District Aligarh with
the averments that marriage of his daughter
Manoj Kumari was solemnized with
accused- Rajesh Kumar three years ago. He
had given dowry as per his capacity. After
marriage accused- Rajesh Kumar and his
family members demand motorcycle and
Rs.1,00,000/-
(Rupees
one
lakh)
as
additional dowry and used to compel his
daughter to bring the aforesaid articles. It is
further
averred
that
on
16.03.2012,
appellant- Rajesh Kumar and his family
members had murdered his daughter by
9 All. Smt. Kushma Devi Vs. The State of U.P.
1561
pouring kerosene oil on her and setting her
ablaze.

4. On the basis of above written
report, a Case Crime No.102 of 2012 was
registered at Police Station Harduaganj,
under Sections 498-A, 304-B, 302/34
I.P.C.. Investigation was taken up by
Investigating Officer, who visited the spot,
prepared the site plan and recorded the
statement of witnesses. Inquest report was
prepared and post-mortem of the dead body
was conduced and its report was also
prepared by doctor. After completion of
investigation, I.O. submitted the charge
sheet against accused- Rajesh Kumar who
was the husband and Smt. Kushma Devi,
who is the mother-in-law of the deceased.
As the case against accused Rajesh Kumar
and Smt. Kushma Devi was exclusively
triable by the court of session the case was
committed to the court of session for trial
by the Magistrate, hence, trial took place
against accused- Rajesh Kumar and Smt.
Kushma Devi.

5. Learned Sessions Court framed the
charges against accused- Rajesh Kumar and
Smt. Kushma Devi under Section 498-A,
304-B and 302/34 I.P.C. Charges were read
over to the accused, who denied the charges
and claimed to be tried.

6. To bring home the charges, the
prosecution examined following witnesses:

1.
Raj Kumar
P.W.-1
2.
Prem Pal Singh
P.W.-2
3.
Ram Veer Singh P.W.-3
4.
Sunita
P.W.-4
5.
Dr.
Sanjay
Kumar Singhal

P.W.-5
6.
Kapoor Chand
P.W.-6
7.
Gyan
Kumar
Singh
P.W.-7
8.
K.L. Verma
P.W.-8
9.
D.P. Singh
P.W.-9
10
Dr.
Vimal
Kumar Gupta
P.W.-10

7. In support of oral evidence,
prosecution
submitted
following
documentary evidence, which was proved
by leading oral evidence:-

1.
FIR
Ex.ka-3
2.
Written report
Ex.ka-1
3.
Dying
Declaration
Ex. ka-11
4.
Post-mortem
report
Ex.ka-2
5.
Panchayatnama Ex.ka-6
6.
Charge
sheet
Mool
Ex.ka-5
7.
Site plan with
index
Ex.ka-13

8. After completion of prosecution
evidence, the statement of accused were
recorded under Section 313 of Criminal
Procedure Code (Cr.P.C.), in which they
denied their involvement in the crime and
told that false evidence was led against
them. The accused examined D.W-1 Chol
Singh in defence.

9. We have heard Shri Noor Mohd.
for the sole surviving appellant. It is further
submitted by Shri Noor Mohd. that dying
declaration should not have been acted
upon by the Court below. It is further
submitted that death of the deceased was
1562 INDIAN LAW REPORTS ALLAHABAD SERIES
due to septicaemia and therefore the
punishment be converted from 302 to 304
Part-I in view of the recent decisions of
Apex Court in Khokan @ Khokhan
Vishwas Vs. State of Chhattisgarh 2021 0
Supreme (SC) 73 and in State of Uttar
Pradesh Vs. Subhash Alias Pappu 2022 0
Supreme (SC) 260 cited by learned
counsel for the appellant.

10. Learned A.G.A. for the State has
taken objection to the submissions of
learned counsel for the accused-appellant
and submitted that death of deceased had
taken place within 7 years of her marriage.
The dying declaration has been proved by
ocular version of P.W.9 and P.W.10 and the
statement of the deceased and therefore
there is no question of not believing the
same and upholding the conviction. The
incident occurred on 17.3.2012 and the
death occurred on 21.3.2012 (which is
admitted position of fact).

11. Having gone through the factual data
it cannot be said that dying declaration cannot
be acted upon. The dying declaration
categorically mentions that there was some
altercation with the husband when the deceased
was going for taking her bath in the morning at
that time her husband namely Rajesh Kumar,
who died, during the pendency of this appeal
poured kerosene on her and it was her motherin-law set her ablaze. They were alleging that
she had illicit relation with somebody. The
medical evidence and the post-mortem report
goes to show that the death occurred on
21.3.2012, the evidence of P.W.5 shows as
follows :-

"मृर्िा िे मृत्यु िा सही िारर् जलना (हीट
बनत ) ही था। मृत्यु मृर्िा िा एि िारर् जलने से
हुई सेप्टीसीगमया भी था सेप्टीसीगमया िौरान इलाज
जो इन्फेक्शन होर्ा है उससे होर्ा है।"

12. The death was caused due to
septicaemia. In the cross-examination, the
Dr. has accepted the fact that due to burn
injuries some patients are infected.

13. The judgement relied upon by the
learned trial Judge in the case of Laxman
Vs. State of Maharashtra 2003(1) JIC 30
SCC cannot be found fault with.

A dying declaration can be oral
or in writing and in any adequate method
of communication whether by words or by
signs or otherwise will suffice provided the
indication is positive and definite. In most
cases, however, such statements are made
orally before death ensues and is reduced
to writing by someone like a magistrate or
a doctor or a police officer. When it is
recorded, no oath is necessary nor is the
presence of a magistrate is absolutely
necessary, although to assure authenticity it
is usual to call a magistrate, if available for
recording the statement of a man about to
die. There is no requirement of law that a
dying declaration must necessarily be made
to a magistrate and when such statement is
recorded by a magistrate there is no
specified statutory form for such recording.
Consequently, what evidential value or
weight has to be attached to such statement
necessarily depends on the facts and
circumstances of each particular case.
What is essentially required is that the
person who records a dying declaration
must be satisfied that the deceased was in a
fit state of mind.

14. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind about the
guilt of the present appellant coupled with
overt act of her son who was also convicted
but has passed away.
9 All. Smt. Kushma Devi Vs. The State of U.P.
1563

15. However, the question which falls
for our consideration is whether, on
reappraisal of the peculiar facts and
circumstances of the case, the conviction of
the appellant under Section 302 of I.P.C. of
the Indian Penal Code should be upheld or
the conviction deserves to be converted
under Section 304 Part-I or Part-II of the
Indian Penal Code. It would be relevant to
refer Section 299 of the Indian Penal Code,
which read as under:

"299. Culpable homicide: Whoever
causes death by doing an act with the
intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide."

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

Section 299
Section 300
A
person
commits culpable
homicide if the
act by which the
death is caused is
done-
Subject
to
certain
exceptions
culpable
homicide is murder if
the act by which the
death is caused is done.
INTENTION
(a)
with
the
intention
of
causing death; or
(1) with the intention of
causing death; or
(b)
with
the
intention
of
causing
such
bodily injury as is
likely to cause
death; or
(2) with the intention of
causing
such
bodily
injury as the offender
knows to be likely to
cause the death of the
person to whom the
harm is caused;
KNOWLEDGE
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.

17. On overall scrutiny of the facts
and circumstances of the case coupled
with the opinion of the medical officer
and considering the principle laid down
by the Hon'ble Apex Court in the case of
Tuka Ram and others vs. State of
Maharashtra [(2011) 4 SCC 250] and in
the case of BN Kavadakar and another
vs. State of Karnataka [1994 Supp (1)
304], we are of the considered opinion
that the offence would be punishable
under Section 304 (Part-I) IPC because
the burn injuries were caused to the
deceased by appellant with the intention
to cause such bodily injuries as were
likely to cause death and, therefore, the
instant case falls under the Exceptions 4
of Section 300 IPC.
1564 INDIAN LAW REPORTS ALLAHABAD SERIES

18. In the case on hand, after perusal
of dying declaration of the deceased, it is
not revealed as to why the appellant had
poured the kerosene oil on the deceased
and set her ablaze. Moreover, it is stated by
the deceased in dying declaration that fire
was also put out by the mother-in-law
herself, hence, there is no dispute to the
fact that fire was put out by the present
appellant- Smt. Kushma Devi.

19. And therefore even before us Shri
Noor Mohd. has based his submission on
the judgements of the Apex Court that the
punishment be converted to be one under
Section 304 part-I of I.P.C. and not Section
302 I.P.C. as deceased died out of
septicaemial death.

20. In this case from perusing the
dying declaration it is proved that there was
altercation and some exchange of words
between husband and wife which gave rise
to the incident, however it cannot be said
that the case would fall within 304 part-II
of I.P.C. the finding of fact in paragraph 31
which is reproduced as follows is also
perused by us :

"उपरोक्त िे पश्चार् जहां र्ि मृर्िा िे
पगर् राजेश िुमार व सास श्रीमर्ी िुसुमा िेवी
िा प्रश्न है र्ो उनिे गवरुि मृत्युप वत बयान में
स्पष्ट रूप से यह िहा िया है गि .........सास
सुबह में क्लेश िर रही थी, मैं नहाने जा रही थी।
राजेश ने गमट्टी िा र्ेल मेरे ऊपर डाला, िुसुमा
मेरी सास ने मागचस से आि लिाई, गजससे मैं
जल िई अथातर् मृर्िा िे मृत्यु प वत बयान में पगर्
राजेश द्वारा गमट्टी िा र्ेल डालने व सास श्रीमर्ी
िुसुमा िेवी द्वारा मागचस से आि लिाने िे स्पष्ट
िथन गिए िए हैं । जहां र्ि अगभयुक्ता िु0
रूबी िा प्रश्न है, र्ो उसिे संबंध में मृत्यु प वत
बयान में मृर्िा ने मात्र यह िहा है गि ......ननि
ने सास से िहा गि बह ससुर में िलर् संबंध हैं
अथातर् अपने इस बयान में मृर्िा ने स्वयं िे
ऊपर गमट्टी िा र्ेल डालने या उसिे बाि
मागचस से आि लिाने में अगभयुक्ता िु0 रूबी
िी िोई भ गमिा या सहभागिर्ा नहीं बर्ाई है।
उि्धृर् बयान से यह भी स्पष्ट नहीं है गि रूबी ने
बह ससुर में िलर् संबंध होने िी बार् िब िही
थी, गजससे गमट्टी िा र्ेल डालिर आि लिाने व
उसिे पररर्ाम स्वरुप मृर्िा िी मृत्यु होने
संबंधी आरोप, मात्र पगर् राजेश िुमार व सास
श्रीमर्ी िुसुमा िेवी िे गवरुि ही सागबर् होर्े हैं
अथातर् अगभयुक्ता िु0 रूबी िे गवरुि मृगर्िा
िो गमट्टी िा र्ेल डालिर जला डालने संबंधी
आरोपों िी बाबर् िोई गवश्वसनीय साक्ष्य प्रस्तुर्
नहीं हुआ है, गजससे अगभयुक्तिर् राजेश
िुमार, श्रीमर्ी िुसुमा िेवी िे गवरुि मृर्िा िी
उसिे ऊपर गमट्टी िा र्ेल डालिर आि
लिािर साशय हत्या गिए जाने व मृर्िा िा
उत्पीड़न गिए जाने िे आरोप युखक्तयुक्त संिेह
से परे सागबर् है । अगभयुक्ता िु0 रूबी िी
गिसी प्रिार िी िोई भ गमिा मृर्िा िो जलाए
जाने या उसे प्रर्ागड़र् गिए जाने में सागबर् नहीं
होर्ी है, गजससे िु0 रूबी िे गवरुि धारा 302,
498ए भा0िं0सं0 िे आरोप भी युखक्तयुक्त संिेह
से परे सागबर् नहीं होर्े हैं।"

21. In view of the aforesaid
discussion, we are of the view that appeal
has to be partly allowed. The conviction of
the appellant under Section 302 IPC is
converted into conviction under Section
304 (Part-I) of IPC as per the decision of
Apex Court in Khokhan (supra) is
concerned and the appellant is sentenced to
undergo ten years of rigorous imprisonment
with remissions and fine of Rs.20,000/- is
reduced to Rs.5,000/-. In case of default of
payment of fine, the appellant- Smt.
Kushma Devi shall further undergo simple
imprisonment for three months after the
incarceration period of ten years with
remission is over.
9 All. Pohpee @ Pohap Singh Vs. State
1565

22. Accordingly, the appeal is partly
allowed, as modified above.

23. Record be sent to trial court
immediately.

Suo Moto Correction

While going through the judgment we
find that there is an error, in the third line of
the order dated 12.09.2022 in place of
Criminal Appeal No.6611 of 2016 it should
be read as Criminal Appeal No.6073 of
2016, in place of namely Rajesh Kumar it
should be read as namely Kushma Devi, in
place of his it should be read as her in line
three and four of first paragraph and in first
line of paragraph second in place of Smt.
Kushma Devi it should be read as Rajesh
Kumar and in eighth line of paragraph 21
in place of Smt. Kushma Devi it should be
read as Rajesh Kumar.

The order is corrected accordingly.

Order Date :- 14.9.2022
----------
(2022) 9 ILRA 1565
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA , J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 1262 of 2012
Connected With
Criminal Appeal No. 1684 of 2011
And
Criminal Appeal No. 1741 of 2011
And
Criminal Appeal No. 1945 of 2011
And
Criminal Appeal No. 2636 of 2011

Pohpee @ Pohap Singh ...Appellant
Versus
State ...Opposite Party
Counsel for the Appellant:
From Jail, Sri Arun Kumar Vishwakarma, Sri
Manoj Kumar Pandey, Sri Uttar Kumar
Goswami

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

A. Criminal Law - Criminal Procedure
Code, 1973-Section 374(2) - Indian Penal
Code,1860- Section 364-A-Challenge toConviction- In the present case, there is a
clear and categorical evidence of the
kidnappee when he was going to his
sister's house, he was kidnapped by the
accused persons and thereafter, rest of
the appellants also joined them and
participated
in
his
kidnapping
and
confinement-The kidnappee was confined
there for about two months-He was also
made to write a letter to his father for
ransom of Rs. 1,50,000/-. The version of
PW 1, is supported by other witnesses- All
the witnesses have been subjected to
cross-examination, but there is no major
contradiction or infirmity in the evidence
of the witnesses- After his release, PW 1
has even pointed out the alleged house,
where he was kept in confinement-There
is
evidence
on
record,
which
unmistakeably establishes that PW 1 was
kidnapped by the accused-appellants and
was kept in confinement for two monthsThe evidence on record fulfills all the
ingredients of Section 365 of IPC-The
evidence on record clearly makes out a
case of kidnapping as punishable u/s 365
of IPC. Accordingly, the conviction of
appellants recorded by the trial court
under Section 364-A of IPC should be
altered and modified to one under Section
365 of IPC only.(Para 81 to 97)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Shaik Ahmed Vs St. of Telangana (2021) 9
SCC 59

2. Deshraj Vs St. of U.P. (2019) 107 ACC 176