# Smt. Rajendri Devi v. State of U.P

- **Citation:** (2023) 3 ILRA 976
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-21
- **Case number:** Criminal Appeal No. 5955 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rajendri-devi-v-state-of-u-p-49892
- **Pages:** 7

## Headnote

Criminal Law- Indian Penal Code, 1860
- Accused was convicted under Section
498A, 304B, 302/34 of I.P.C. & Section
4 of D.P. Act - deceased was being
harassed for dowry - incident occurred
on 29.04.2017, she was set ablaze by
pouring kerosene on her in which, she
suffered grievous injuries - she died on
06.05.2017 - accused is in jail since
15.07.2017 - the question which falls
for consideration is whether conviction
of the accused under Section 302 of
I.P.C.
should
be
upheld
or
the
conviction
to
be
converted
under
Section 304 Part-I or Part-II of the
I.P.C (Para 3, 4, 9, 16)

Held - Death was due to septicemia -
Offence is not under Section 302, I.P.C. but
is culpable homicide and therefore, accused
convicted under Section 304 (II) I.P.C.
(Para 24, 27)

The appeal is partly allowed. (E-13)

List of Cases cited:

## Text

976 INDIAN LAW REPORTS ALLAHABAD SERIES
in the length were there cannot be
explained.

19. Further the statement of Ramdayal
in his cross-examination absolutely falsifies
the case of the prosecution. Throughout the
prosecution he has said that Ramdayal is
the person who had gone to fetch
Vidyasagar, the deceased, from the place
where he had entered into a verbal
altercation with Baikunthnath but in his
cross-examination Ramdayal had given out
a different picture and which was that when
Ramdayal had come to his in-laws house in
the afternoon and from that time and till the
time vidyasagar was killed, Vidhyasagar
never moved out of the house. Ram Dayal
is the prosecution's eyewitness. Also this
witness cannot be disbelieved as he is not
related by blood and therefore while he was
giving
this
statement
in
his
crossexamination he had divulged the truth.

20. Under such circumstances, we
have no reason to believe that Dharamvir
and Ram Ashrey had committed the crime
and, therefore, we are of the view that the
Appeal deserves to be allowed and Ram
Ashrey and Dharamvir deserve to be
acquitted.

21. Since Totaram and Baikunthnath
had died during the Trial and the Trial had
abated
vis-a-vis
them,
there
is
no
requirement to give any verdict with regard
to their roles.

22. The Appeal is allowed. The
appellants are acquitted.

23. The appellants if are not wanted in
any other case may be released.
----------
(2023) 3 ILRA 976
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.02.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 5955 of 2018

Smt. Rajendri Devi ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rajiv Lochan Shukla, Sri Ashfaq Ahmed
Ansari, Sri Neeraj Kumar Sharma, Sri Shanda
Prasad Mishra

Counsel for the Respondent:
G.A.

Criminal Law- Indian Penal Code, 1860
- Accused was convicted under Section
498A, 304B, 302/34 of I.P.C. & Section
4 of D.P. Act - deceased was being
harassed for dowry - incident occurred
on 29.04.2017, she was set ablaze by
pouring kerosene on her in which, she
suffered grievous injuries - she died on
06.05.2017 - accused is in jail since
15.07.2017 - the question which falls
for consideration is whether conviction
of the accused under Section 302 of
I.P.C.
should
be
upheld
or
the
conviction
to
be
converted
under
Section 304 Part-I or Part-II of the
I.P.C (Para 3, 4, 9, 16)

Held - Death was due to septicemia -
Offence is not under Section 302, I.P.C. but
is culpable homicide and therefore, accused
convicted under Section 304 (II) I.P.C.
(Para 24, 27)

The appeal is partly allowed. (E-13)

List of Cases cited:

1. Sohan Lal alias Sohan Singh & ors. Vs St. of
Punj., AIR 2003 SC 4466
3 All. Smt. Rajendri Devi Vs. State of U.P.
977
2. Panchdeo Singh Vs St. of Bihar, AIR 2002 SC
526

3. Kanti Lal Vs St. of Raj., (2009) 12 SCC 498

4. Krishna Chandra Vs The St. of U.P., 1996 Crl.
LJ 1507

5. Sher Singh Vs St. of Punj., AIR 2008 SC 426

6. Tukaram & ors.Vs St. of Mah., reported in
(2011) 4 SCC 250

7. B.N. Kavatakar & anr. Vs St. of Karn., reported
in 1994 SUPP (1) SCC 304

8. Veeran & ors. Vs St. of M.P. Decided, (2011)
5 SCR 300

9. Anversinh Vs St. of Guj., (2021) 3 SCC 12

10. Pravat Chandra Mohanty Vs St. of Odisha,
(2021) 3 SCC 529

11. Pardeshiram Vs St. of M.P., (2021) 3 SCC
238

12. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926

13. Deo Narain Mandal Vs St. of U.P., (2004) 7
SCC 257

14. Ravada Sasikala Vs St. of A.P, AIR 2017 SC
1166

15. Jameel Vs St. of U.P., (2010) 12 SCC 532

16. Guru Basavraj vs St. of Karnatak, (2012) 8
SCC 734

17. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

18. St. of Punj. Vs Bawa Singh, (2015) 3 SCC
441

19. Raj Bala Vs St. of Har., (2016) 1 SCC 463

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

1. Heard Sri Rajiv Lochan Shukla,
learned counsel assisted by Sri Neeraj
Kumar Sharma, Sri Shanda Prasad Mishra,
learned counsels for appellant, learned
A.G.A. for the State.

2. The record is before this Court
hence instead of deciding application for
release on bail we venture to decide the
main appeal as appellant is in fact since
15.07.2017 and is an aged lady.

3. This appeal challenges the
judgment and order dated 12.09.2018
passed by Additional Sessions Judge, Court
No.5, Ghaziabad in Sessions Trial No.07 of
2018 convicting accused-appellant under
Sections 498A & 304B of Indian Penal
Code, 1860 (hereinafter referred to as 'IPC')
and Section 3/4 of the Dowry Prohibition
Act, Police Station Masoori, District
Ghaziabad alternate charge under Section
302 IPC read with Section 34 IPC and
sentenced
the
accused
to
undergo
imprisonment
for
life
with
fine
of
Rs.20,000/- under Section 302 of I.P.C. and
half of the amount of the total fine has to be
paid to Munni, the mother of the deceased.

4. Factual scenario as culled out from
the record and the judgment of the Court
below is that the complainant lodged a
complaint that his daughter was married
with Sumit alias Bholu. After she went to
matrimonial home, she was being harassed
for dowry. The family members of the
accused and accused demanded motorcycle
and Rs.50,000/-. Incident occurred on
29.04.2017, she was set ablaze by pouring
kerosene on her in which, she suffered
grievous injuries and she was sent to
Safdarganj Hospital, Delhi for further
treatment where she died on 06.05.2017.
The complainant lodged the complaint on
30.04.2017.
978 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Investigation was moved into
motion. After recording statements of
various persons, the investigating officer
submitted the charge-sheet against accused
under 498A & 304 B of I.P.C. and Section
3/4 of Dowry Prohibition Act, 1961 (in
short 'D.P. Act'). The learned Chief Judicial
Magistrate before whom charge sheet was
laid put the same before the learned
Sessions Judge. The learned Sessions
Judge, on hearing the learned Government
Advocate and learned counsel for the
accused, framed charges under Section
498A, 304B, 302/34 of I.P.C. & Section 4
of D.P. Act.

6. On being summoned, the accused
pleaded not guilty and wanted to be tried,
hence, the trial started and the prosecution
examined 9 witnesses who are as follows:

1
Rama
PW1
2
Keshpal
PW2
3
Munni
PW3
4
Kuldeep
PW4
5
Esha
PW5
6
Dr.
Vedant
Kulshrestha
PW6
7
Ravindra
Kumar Singh
PW7
8
Atar Singh
PW8
9
Pawan Kumar PW9
10
Jogendra
PW10
11
Ishwar Singh
PW11
12
Aatish Kumar
Singh
PW12
13
Danish Alam
PW13
14
Rajkumar
Pandey
PW 14
15
Ravindra
Yadav
PW15

7. In support of ocular version
following documents were filed:

1
F.I.R.
Ex.Ka.7
2
Written Report
Ex.Ka.1
3
Statement of Gunjan Ex. Ka.3
4
Medico-Legal
Report
Ex.Kha.1
5
Postmortem report &
Death Report
Ex.Ka.2
6
Death summary
Ex.Kha.2
7
Final Form/Report
Ex.Ka.8

8. At the end of the trial and after
recording the statement of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the appellants as mentioned
aforesaid.

9. It is submitted by learned counsel
for accused-appellant that the accused is in
jail since 15.07.2017.

10. Learned counsel for the appellant
has vehemently submitted that dying
declaration is not worth believing. It is
submitted that it is an admitted position of
fact that deceased died out of septicemia
after seven days of incident.

11. It is further submitted by learned
counsel for the appellant that most of the
witnesses have turned hostile (thereby have
not supported the prosecution) despite that,
learned Sessions Judge has convicted
accused/appellant
for
commission
of
offence under Section 302 of I.P.C.
3 All. Smt. Rajendri Devi Vs. State of U.P.
979

12. In support of the his submission,
learned counsel for the appellant has relied
on (i) Sohan Lal alias Sohan Singh and
others v. State of Punjab, AIR 2003 SC
4466; (ii) Panchdeo Singh v. State of
Bihar, AIR 2002 SC 526; (iii) Kanti Lal v.
State of Rajasthan, (2009) 12 SCC 498;
(iv) Krishna Chandra v. The State of
U.P., 1996 Crl. LJ 1507; (v) AIR 2008 SC
426, Sher Singh v. State of Punjab, so as
to contend that the dying declaration has
being wrongly relied by court below so
as to convict the accused who is innocent.

13. In alternative, it is submitted that
if this court concerns with the trial court
that it was accused who was author of the
offence at the most punishment can be
under Section 304 II or Section 304 I of
I.P.C as the deceased died after few days. If
the Court feels, as the accused has been in
jail for more than 5 years without
remission, she may be granted fixed term
punishment of incarceration. It is submitted
that accused had no intention to do away
with the deceased.

14. Learned A.G.A. for the state has
vehemently submitted that facts of this case
will not permit the Court to convert the
sentence to that under Section 304 Part I of
I.P.C. as none of the judgments relied by
the accused-appellant will apply to the facts
of this case as the accused is proved to have
committed the offence.

15. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind that it was
homicidal death. The question whether it
was accused who was perpetrator. The
dying declaration of deceased corroborates
with medical evidence Section 32 of
Evidence
Act
for
believing
dying
declaration that it was accused who was
guilty of committing the offence.

16. 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."

17. 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
Subject
to
certain
exceptions
culpable
homicide is murder is the
act by which the death is
980 INDIAN LAW REPORTS ALLAHABAD SERIES
act by which the
death is caused
is done-
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.

18. 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.

19. 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. Decided,
(2011) 5 SCR 300 which have to be also
kept in mind.

20. In latest decision in Khokan@
Khokhan (Supra) where the facts were
similar to this case, the Apex Court has
allowed
the
appeal
of
the
accused
appellant. The decision of the Apex Court
in the case of Anversinh v. State of
Gujarat, (2021) 3 SCC 12 which was
related to kidnapping from legal guardian,
wherein it was established that the Court
while respecting the concerns of both
society and victim, propounded that the
twin principle of deterrence and correction
would be served by reducing the period of
incarceration already undergone by the
accused. In our case, this is not that
gruesome matter where the accused cannot
be dealt with in light of all these judgments.
Judgments in Pravat Chandra Mohanty
v. State of Odisha, (2021) 3 SCC 529 &
Pardeshiram v. State of M.P., (2021) 3
SCC 238 will also enure for the benefit of
the accused.

21. All others judgments which were
pressed into service by the learned counsel
for the appellant are not discussed as that
3 All. Smt. Rajendri Devi Vs. State of U.P.
981
would be repetition of what we have
decided.

22. In Mohd. Giasuddin Vs. State of
AP, [AIR 1977 SC 1926], explaining
rehabilitary & reformative aspects in
sentencing it has been observed by the
Supreme Court:

"Crime is a pathological aberration.
The criminal can ordinarily be redeemed
and the state has to rehabilitate rather than
avenge. The sub-culture that leads to antesocial behaviour has to be countered not by
undue cruelty but by reculturization.
Therefore, the focus of interest in penology
in the individual and the goal is salvaging
him for the society. The infliction of harsh
and savage punishment is thus a relic of
past and regressive times. The human today
vies sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

23. 'Proper Sentence' was explained in
Deo Narain Mandal Vs. State of UP
[(2004) 7 SCC 257] by observing that
Sentence should not be either excessively
harsh
or
ridiculously
low.
While
determining the quantum of sentence, the
court should bear in mind the 'principle of
proportionality'. Sentence should be based
on facts of a given case. Gravity of offence,
manner of commission of crime, age and
sex of accused should be taken into
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

24. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme Court
referred the judgments in Jameel vs State
of UP [(2010) 12 SCC 532], Guru
Basavraj vs State of Karnatak, [(2012) 8
SCC 734], Sumer Singh vs Surajbhan
Singh, [(2014) 7 SCC 323], State of
Punjab vs Bawa Singh, [(2015) 3 SCC
441], and Raj Bala vs State of Haryana,
[(2016) 1 SCC 463] and has reiterated that,
in operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
982 INDIAN LAW REPORTS ALLAHABAD SERIES
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

25. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

26. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

27. 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
and,
therefore,
we
convict
accused under Section 304(II) IPC and
sentence of the accused appellant is
reduced to the period already undergone till
date.

28. Appeal is partly allowed. Record
and proceedings be sent back to the Court
below forthwith.

29. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2023) 3 ILRA 982
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, A.C.J.
THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 6904 of 2011
with
Criminal Appeal No. 6903 of 2011

Rajjan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Apul Misra, Sri P.N. Misra, Sri Vindeshwari
Prasad, Sri Sushil Kumar Dwivedi, Sri Dhirendra
Kumar Srivastava

Counsel for the Respondent:
Sri H.M.B. Sinha, A.G.A.

Criminal Law- Indian Penal Code-1860Sections 34, 96-106, 302, 304 (I) -
Evidence Act, 1872-Sections 3 & 134Accused attacked the deceased with sickle
(hasiya) and lathis over dispute regarding
cutting of the clump of bamboo trees
(banskot) in which the deceased received
fatal
injuries
and
resultantly
died-
Conviction U/s 302 r/w Section 34 IPC-