# Smt. Preeti & Anr v. State Of U.P

- **Citation:** (2022) 1 ILRA 508
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-01
- **Case number:** Criminal Appeal No. 2209 of 2019
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-preeti-anr-v-state-of-u-p-47474
- **Pages:** 7

## Headnote

Criminal Law - Indian Evidence Act, 1872 -
Section 32- Dying Declaration- The dying
declaration can be acted upon without
collaboration if it inspires truth. Thus
having summarize the law we are of the
considered opinion that no other view than
that taken by the learned Judge can be
taken for upholding the conviction of the
accused on the basis of dying declaration.

It is settled law that if the Court is satisfied that
the dying declaration is true and voluntary, it can
record conviction on its basis without
corroboration.

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Section 304 II - Death was
due to ante thermal burns and due to
septicemia. The law as far as it concerned
septicemia is well
settled the
death
occurred after few days. The deceased died
during
treatment,
this
High
Court
substituted the sentence as the deceased
died out of septicemial septicemia. The
offence is not under Section 302 of I.P.C.
but is culpable homicide.

Where the deceased died as a result of
septicaemia after a few days of the occurrence,
the offence would be one of culpable homicide
not amounting to murder. ( Para 10, 12, 13, 14,
15)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

508 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In the present case, we have
come to the irresistible conclusion that the
role of the appellants is clear from the dying
declaration and other records. However, the
point which has also weighed with this court
are that the deceased had survived for
around 30 days in the hospital and that his
condition worsened after around 5 days and
ultimately died of septicemia. In fact he had
sustained about 35% burns. In that view of
the matter, we are of the opinion that the
conviction of the appellants under section
302 of Indian Penal Code is required to be
converted to that under section 304(I) of
Indian Penal Code and in view of the same
appeal is partly allowed.

55. A Division Bench of this Court in
the case of Criminal Appeal No.1944 of
2014, Ram Prakash Alias Pappu Yadav
Vs. State of U.P. decided on 12.11.2021
wherein one of the judges (Justice Dr. K.J.
Thaker) was a member had the occasion to
consider the legal issue as to whether in case
of a death on account of septicemia either the
provisions contained under Section 302 IPC
or 304(1) of the IPC would apply. This Court
mandated that once facts of the death is
septicemia that conviction under Section 302
IPC to be converted into conviction under
Section 304 (1) IPC.

56. Over all scrutiny of the facts and
circumstances coupled with the medical
evidence and the opinion of the Medical
Officer and considering the numbers of law
laid down by the courts of law in the above
referred cases, we are considered opinion that
in the case at hand the offence would be
punishable under Section 304(1) IPC.

57. Upshot from the aforesaid
discussion and inescapable position emerges
that the death caused by the accused of the
victim/deceased
was
on
account
of
septicemia and further accused had no
intention to caused the death of the deceased.
The injuries were though sufficient in
ordinarily course of nature to have cause
death however accused had no intention to do
away with deceased. Hence the incident falls
under Ex.1 and 4 to Section 300 IPC, while
considering the Section 299 IPC offence
committed will fall under Section 304(1) IPC.

58. 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
seven 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.

59. Accordingly, the appeal is partly
allowed.
----------

(2022)01ILR A508
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2021

BEFORE

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

Criminal Appeal No. 2209 of 2019

Smt. Preeti & Anr. ...Appellants
Versus
State Of U.P. ...Opposite Party

Counsel for the Appellants:
Sri
Shiv
Sharan
Tripathi,
Sri
Noor
Mohammad

Counsel for the Opposite Party:
1 All. Smt. Preeti & Anr. Vs. State of U.P.
509
A.G.A.

Criminal Law - Indian Evidence Act, 1872 -
Section 32- Dying Declaration- The dying
declaration can be acted upon without
collaboration if it inspires truth. Thus
having summarize the law we are of the
considered opinion that no other view than
that taken by the learned Judge can be
taken for upholding the conviction of the
accused on the basis of dying declaration.

It is settled law that if the Court is satisfied that
the dying declaration is true and voluntary, it can
record conviction on its basis without
corroboration.

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Section 304 II - Death was
due to ante thermal burns and due to
septicemia. The law as far as it concerned
septicemia is well
settled the
death
occurred after few days. The deceased died
during
treatment,
this
High
Court
substituted the sentence as the deceased
died out of septicemial septicemia. The
offence is not under Section 302 of I.P.C.
but is culpable homicide.

Where the deceased died as a result of
septicaemia after a few days of the occurrence,
the offence would be one of culpable homicide
not amounting to murder. ( Para 10, 12, 13, 14,
15)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

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

2. Crl. Appeal No. 245 of 2004 of the Guj.
High Court dec. on 13.09.2013.

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

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

1. By way of this appeal, the
appellant has challenged the Judgment and
order 20.2.2019 passed by Additional
Sessions Judge, Court No.1, Etah in S.T.
No. 228 of 2016, State Vs. Veerpal @ Anuj
and another arising out of Case Crime No.
0014 of 2016, under Sections 302/34 of
IPC, Police Station Marhara, District Etah
whereby
the
accused-appellant
was
convicted under Section 302 IPC and
sentenced to life imprisonment with fine of
Rs.25,000/-, and in case of default of
payment of fine, to undergo further
imprisonment for one year.

3. The brief facts as per prosecution
case are that
complainant's daughter
Manisha was married to Mahipal and he
had given dowry and gifts according to his
capacity, a 4 year daughter was born out of
their wedlock. Manisha in-laws were not
happy with the dowry and gifts and there
was a demand of motor-cycle by them but
due to nonfulfilment of demand they use to
torture and harass Manisha. On 07.01.2016
at about 2:00 O' clock, they poured
kerosene oil on Manisha and put her
ablaze, On telephonic information by the
villagers complainant and his family
reached to Manisha's matrimonial home
and brought her to Varun Trauma Centre,
Aligarh
for
treatement
where
she
succumbed to death on 13.01.2016.

4. The investigation Officer tookup
the investigation visited the spot, prepared
site plan, recorded statements of the
deceased
and
witnesses
and
after
completing investigation submitted charge
sheet against the accused.

5. The prosecution so as to bring
home the charges examined six witnesses,
who are as under:-
510 INDIAN LAW REPORTS ALLAHABAD SERIES
1.
Suraj
Pal
(Complainant)
P.W.1
2.
Smt.
Reshma
Devi(mother of
deceased)
P.W.2
3.
Jugendra Singh(
brother)
P.W.3
4.
Sri Son Pal
P.W.4
5.
Sri
Mahipal(Husba
nd)
P.W.5
6.
Dr. Anil Kumar
Singh
P.W.6
7.
Sri Ram Surat
Pandey, S.D.M
P.W.7
8.
Dr.
Virendra
Singh Sisaudia
P.W.8
9.
Sri
Jinendra
Kumar Jain
P.W.9
10.
Sri
Arun
Kumar, CC
P.W.10
11.
Sri
D.S
Garbyal,
Rtd
C.O/I.O
P.W.11
12.
Sri
Naurangi
Lal
Rtd.
SHO/I.O
P.W.12
13.
Sri
Manveer
(faher-in-law)
P.W.13
14.
Smt.
Phool
Shree (motherin-law)
P.W.14
1

7. In support of the ocular version of
the witnesses, following documents were
produced and contents were proved by
leading evidence:
1.
Tehreer
Ext. Ka-1
2.
Postmorterm
report
Ext. Ka-2
3.
Proform
384B
Full Body view
Ext. Ka-3
4.
Inquest Report
Ext. Ka-4
5.
Police Proforma Ext. Ka-5
6.
Letter to R.I
Ext. Ka-6
7.
Letter to C.M.O Ext. Ka-7
8.
Photograph
of
deadbody,
Proforma 379
Ext. Ka-8
9.
Dying
declaration
of
the deceased
Ext. Ka-9
10.
Chik FIR
Ext. Ka-10
11.
Copy of G.D
Ext. Ka-11
12.
Site Plan
Ext. Ka-12
13.
Charge-sheet
Ext. Ka-13

8. Heard Noor Mohammad, learned
counsel for the appellant and learned AGA
for the State and also perused the record.

9. It is submitted by the counsel for
the appellant that P.W.-1, P.W.-2 and P.W.-
3 have deposed that there was no demand
of dowry. The deposition is supported by
the evidence of P.W.-5 who is the husband
of the deceased. The present appellants
were not staying with the deceased. The
appellants are in jail since 14.06.2016 and
has submitted that Dr. Anil Kumar Singh
who conducted the postmortem of the
deceased deposed that the deceased died
due to 95% of burn but there was no
kerosene or petrol oil present on the body
of the deceased. It was further submitted
that Dr. Virendra Singh Sisodia and Dr.
Jinendra Kumar Jain, Additional City
1 All. Smt. Preeti & Anr. Vs. State of U.P.
511
Magistrate, Aligarh who recorded the dying
declaration of the deceased have conveyed
no specific depositions regarding the smell
of petrol or kerosene oil from the body of
the deceased was recorded.

10. While going through the factual
scenario we are of the opinion that even if
we go by the factual data that the dying
declaration was not a tutored one and could
have been voluntarily made and that it
satisfies the quantoes of dying declaration,
we would concur with the learned trial
court rather the Sessions Judge. The
learned Judge has relied on several
judgements . The learned Judge has
categorically mentioned that when the
dying declaration would be acted upon and
when the same cannot be he has traced the
judicial history beginning from 1962 and
has traced it right upto 1992 and has
summed
up
the
same.
The
dying
declaration can be acted upon without
collaboration if it inspires truth. Thus
having summarize the law we are of the
considered opinion that no other view than
that taken by the learned Judge can be
taken for upholding the conviction of the
accused on the basis of dying declaration.
We are fortified in view of the decision of
the Apex Court in "Krishan Vs. State of
Haryana, reported in (2013) 3SCC 280"
wherein the same decision was considered
by one of us in Criminal Appeal No. 245
of 2004 of the Gujrat High Court decided
on 13.09.2013.

11. We can safely rely upon the decision
of the Gujarat High court in Criminal Appeal
No.83
of
2008
(Gautam
Manubhai
Makwana Vs. State of Gujarat) decided on
11.9.2013 wherein the Court held as under:

"12. In fact, in the case of
Krishan vs. State of Haryana reported in
(2013) 3 SCC 280, the Apex Court has held
that it is not an absolute principle of law
that a dying declaration cannot form the
sole basis of conviction of an accused.
Where the dying declaration is true and
correct, the attendant circumstances show
it to be reliable and it has been recorded in
accordance with law, the deceased made
the dying declaration of her own accord
and upon due certification by the doctor
with regard to the state of mind and body,
then it may not be necessary for the court
to look for corroboration. In such cases,
the dying declaration alone can form the
basis for the conviction of the accused. But
where the dying declaration itself is
attended by suspicious circumstances, has
not been recorded in accordance with law
and settled procedures and practices, then,
it may be necessary for the court to look for
corroboration of the same.

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

14. However, we have also not
lost sight of the fact that the deceased had
died after a month of treatment. From the
medical reports, it is clear that the
deceased suffered from Septicemia which
happened due to extensive burns.
512 INDIAN LAW REPORTS ALLAHABAD SERIES

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

20. There is also evidence on
record to prove and establish that the
action of the appellant to throw the burning
tonsil was preceded by a quarrel between
the deceased and the appellant. From the
aforesaid evidence on record it cannot be
said that the appellant had the intention
that such action on her part would cause
the death or such bodily injury to the
deceased, which was sufficient in the
ordinary course of nature to cause the
death of the deceased. Therefore, in our
considered opinion, the case cannot be said
to be covered under clause (4) of Section
300 of IPC. We are, however, of the
considered opinion that the case of the
appellant is covered under Section 304
Part II of IPC."

16. In the present case, we have
come to the irresistible conclusion that the
role of the appellants is clear from the
dying declaration and other records.
However, the point which has also weighed
with this court are that the deceased had
survived for around 30 days in the hospital
and that his condition worsened after
around 5 days and ultimately died of
septicemia. In fact he had sustained about
35% burns. In that view of the matter, we
are of the opinion that the conviction of the
appellants under section 302 of Indian
Penal Code is required to be converted to
that under section 304(I) of Indian Penal
Code and in view of the same appeal is
partly allowed.

17. The conviction of the appellants -
original accused under Section 302 of Indian
Penal Code vide judgment and order dated
19.12.2007 arising from Sessions Case No. 149
of 2007 passed by the Additional Sessions
Judge, Fast Track Court No. 6, Ahmedabad is
converted to conviction under Section 304 (Part
I) of Indian Penal Code. However, the
conviction of the appellants - original accused
under section 452 of Indian Penal Code is
upheld. The appellants - original accused are
1 All. Smt. Preeti & Anr. Vs. State of U.P.
513
ordered to undergo rigorous imprisonment for
a period of ten years and fine of Rs. 5000/- each
in default rigorous imprisonment for six months
under section 304 (Part I) of Indian Penal Code
instead of life imprisonment and sentence in
default of fine as awarded by the trial court
under section 302 IPC. The sentence imposed
in default of fine under section 452 IPC is also
reduced to two months. Accordingly, the
appellants are ordered to undergo rigorous
imprisonment for a period of ten years and fine
of Rs. 5000/-, in default, rigorous imprisonment
for six months for offence punishable under
section 304(I) of Indian Penal Code and
rigorous imprisonment for a period of five
years and fine of Rs. 2,000/-, in default,
rigorous imprisonment for two months for
offence punishable under section 452 of Indian
Penal Code. Both sentences shall run
concurrently. The judgement and order dated
19.12.2007 is modified accordingly. The period
of sentence already undergone shall be
considered for remission of sentence qua
appellants - original accused. R & P to be sent
back to the trial court forthwith."

12. The death was because of after effect
of the treatment as she had developed other
diseases also and the deceased developed what
is known as septicemia.

13. No doubt suspicion, however graved
it may be, it can not take place of proof but here
we are clear that it is not only suspicion but
based on truth and we concur with the learned
Judge. This takes us to the issue of whether te
case would fall within under Section 304 or
Section 302 I.P.C. We are convinced that from
the basis of the postmortem report which was
conducted on 13.01.2016, the death was due to
ante thermal burns and due to septicemia. The
law as far as it concerned septicemia is well
settled the death occurred after few days. The
deceased died during treatment, this High Court
substituted the sentence as the deceased
died out of septicemial septicemia.

14. We come to the definite conclusion
that the death was due to septicemia. The
judgments cited by the learned counsel for the
appellant would permit us to uphold our finding
which we conclusively hold that the offence is
not under Section 302 of I.P.C. but is culpable
homicide.

15. The accused is in jail since
14.06.2016. The decision of this Court and and
of the Gujarat High Court in Gautam
Manubhai (Supra) wherein the undersigned
(Dr.K.J. Thaker,J.) was a also a signatory and
the decision in Maniben (Supra) wherein the
Apex Court has converted the conviction under
Section 302 of I.P.C. to Section 304 Part II of
I.P.C. which will come to the aid of the
accused.

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

17. Appellant-accused is in jail since
14.06.2016, if 8 years of incarceration for all
the offences and the default sentence is
maintained would start after the period of eight
years is over, the accused would be entitled to
all remissions. The judgment and order
impugned in this appeal shall stand modified
accordingly.

18. Let a copy of this judgment along
with the trial court record be sent to the Court
and
Jail
Authorities
concerned
for
compliance.

19. We are thankful to learned counsels
has ably assisted the Court.
----------
514 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)01ILR A514
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.12.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 2345 of 1983

Harnath Singh & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.D.N. Singh, Sri Pradeep Kumar
Mishra, Sri V.S. Sengar, Sri Vinay Saran

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code, 1860-
Section
149
-
Unlawful
Assembly-
Common Object- As per Section 149 IPC
to convict a person with the aid of this
Section, it is necessary to prove the
following ingredients; namely, (1) the
offence is committed by any member of an
unlawful assembly; and (2) the offence
must be committed in prosecution of the
common object of an unlawful assembly;
or such as the members of that assembly
knew to be likely to be committed in
prosecution of that object.

Section 149 of the IPC fastens vicarious liability
upon every member of an unlawful assembly for
the offence actually committed by other
members of the same unlawful assembly in
prosecution of a common object which the
members of such unlawful assembly had
knowledge of likelihood of the commission of
that offence.

Criminal Law - Indian Penal Code, 1860 -
Section 149- Keeping in mind that all the
accused were stated to be standing in
front of their own house and not having
gone as a group of persons, armed, to
another place to commit an offence, they
cannot be said to be part of an unlawful
assembly with a common object, at the
stage, when the gun shots were fired-
Members of an unlawful assembly may
have community of object upto the certain
point of time and not beyond that. It
cannot with certitude be held that the
common object of the assembly was
either to commit the murder of Dhirendra
Singh (the deceased) or to cause such
bodily injuries to him or to anybody else
that may result in death because the
accused persons did not move as a group
to assault the victims-As the prosecution
failed to provide evidence to prove that
accused persons including the surviving
appellants held a common object to cause
the death of Dhirendra Singh or to cause
any such injury which in ordinary course
of event would have resulted in his death,
the surviving appellants cannot be held
liable for the murder of Dhirendra Singh
under Section 302 IPC with the aid of
Section 149 IPC- Even the rest of the
accused persons could get collected with
their lathies but that by itself would not
be sufficient to infer that they shared
common object with the co-accused, who
fired at the deceased.

Where the appellants were standing infront of
their home and had not gone as a group and it
cannot be established that they shared the
common object of committing murder of the
deceased, as they were armed with lathies
which were wielded after shots were fired by
the other accused, the present appellants
cannot be convicted u/s 302 IPC with the aid of
Section 149 IPC.

Criminal Law - Indian Penal Code, 1860 -
Section 149 - In stage (C), according to
the prosecution, a total of five persons
including
the
surviving
appellants
Brijendra Singh (appellant no.5) and
Saleem (appellant no.7) participated, but
as we have earlier held that involvement
and presence of Saleem (appellant no.7)
appears to be doubtful and benefit of
doubt is, therefore, extended in his favour,
therefore, Saleem (appellant no.7) cannot
be convicted under Section 147 and 323