# Sultan @ Munna & Anr v. State of U.P

- **Citation:** (2022) 11 ILRA 1278
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-21
- **Case number:** Criminal Appeal No. 5184 of 2021
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sultan-munna-anr-v-state-of-u-p-47791
- **Pages:** 11

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section 32- Dying Declaration- Legal
position of dying declaration to be the sole
basis of conviction is that it can be done
so if it is not tutored, made voluntarily and
is wholly reliable- Deceased survived for 4
months after the incident took place. Her
dying
declaration
was
recorded
by
Magistrate after obtaining the certificate
11 All. Sultan @ Munna & Anr. Vs. State of U.P.
1279
of medical fitness from the concerned
doctor.
Dying
declaration
cannot
be
disbelieved, if it inspires confidence-
Truthfulness of dying declaration can
further be evaluated from the fact that
she survived for 4 months after making it
from which it can reasonably be inferred
that she was in a fit mental condition to
make the statement at the relevant time.
Moreover, in the dying declaration, the
deceased did not unnecessarily involve
the other family members of the accused
appellants. She only attributed the role of
burning to her husband and his second
wife. The hostility of one of the witness of
fact cannot demolish the value and
reliability of the dying declaration of the
deceased.

Settled law that where the court finds the dying
declaration to be truthful, reliable and voluntary
then conviction can be secured solely based on
the dying declaration without seeking further
corroboration, hence hostility of witness cannot
dent the dying declaration.

Indian Penal Code, 1860- Section 302-
Section 304 (Part-I) - It appears that the
death caused by the accused persons was
not pre-meditated but they intentionally
caused such bodily injuries which were
likely to cause death. Hence the instant
case falls under the exceptions (1) and (4)
to Section 300 of IPC. While considering
Section 299 IPC, offence committed will
fall under Section 304 (Part-I) IPC.

Where the deceased died after 4 months of the
occurrence due to septicaemia and there is no
evidence to show that the offence was premeditated then even though the accused had
the intention to cause such bodily injuries which
were likely to cause death, the offence would be
one u/s 304 (Part-I) IPC instead of Section 302.
(Para 20, 21, 24, 25, 28, 37)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

1278 INDIAN LAW REPORTS ALLAHABAD SERIES

50. So far as conviction of accused
appellants Vinod and Karm Singh @
Ganjja for offences under section 25/4 of
Arms Act is concerned, we find that neither
the recovered articles i.e. knife and dagger
have been produced before the court below
nor the recovery is proved, inasmuch as the
witness to alleged recovery Shyam Kumar
has not been produced. The conviction and
sentence of accused appellants under the
Arms Act, for such reasons, also cannot be
sustained.

51. The trial court while analysing the
evidence on record has blindly accepted the
prosecution case without subjecting the
evidence on record on the aspect of motive,
plea of last seen and indulgence of the
accused appellants in the occult practices.
The trial court has erroneously placed the
burden upon the accused appellants of
disclosing the whereabouts of deceased by
relying upon the provisions of Section 106
of the Indian Evidence Act, without
analysing the evidence on the factum that
the accused appellants had taken the
deceased. The dead body has otherwise
been found in the sugarcane field and not
within the premises of the accused
appellants. The judgment of the court of
sessions on material aspects is therefore
found wanting. The available evidence has
not been subjected to careful scrutiny by
the court below and, therefore, finding of
guilt returned by the court of sessions
cannot be sustained and is liable to be
reversed.

52. In view of the discussions and
deliberations held above, the present
appeals succeed and are allowed. The
judgment and order of conviction and
sentence dated 28.07.2009, passed by the
Sessions Judge, Saharanpur against the
accused appellants, is set aside.

53. Since the accused appellant Manoj
@ Bhoora is on bail, he need not surrender
and his bail bonds stands discharged. He
shall be set free subject to compliance of
Section 437-A Cr.P.C., unless he is wanted
in any other case. The other accused
appellants, namely Vinod and Karm Singh
@ Ganjja, who are reported to be in jail,
shall be released forthwith, unless they are
wanted in any other case on compliance of
Section 437-A Cr.P.C.

54. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Saharanpur,
henceforth,
for
necessary
compliance.
----------
(2022) 11 ILRA 1278
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.10.2022

BEFORE

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

Criminal Appeal No. 5184 of 2021

Sultan @ Munna & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Mohd. Abrar Khan, Sri Sukhvir Singh

Counsel for the Respondent:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section 32- Dying Declaration- Legal
position of dying declaration to be the sole
basis of conviction is that it can be done
so if it is not tutored, made voluntarily and
is wholly reliable- Deceased survived for 4
months after the incident took place. Her
dying
declaration
was
recorded
by
Magistrate after obtaining the certificate
11 All. Sultan @ Munna & Anr. Vs. State of U.P.
1279
of medical fitness from the concerned
doctor.
Dying
declaration
cannot
be
disbelieved, if it inspires confidence-
Truthfulness of dying declaration can
further be evaluated from the fact that
she survived for 4 months after making it
from which it can reasonably be inferred
that she was in a fit mental condition to
make the statement at the relevant time.
Moreover, in the dying declaration, the
deceased did not unnecessarily involve
the other family members of the accused
appellants. She only attributed the role of
burning to her husband and his second
wife. The hostility of one of the witness of
fact cannot demolish the value and
reliability of the dying declaration of the
deceased.

Settled law that where the court finds the dying
declaration to be truthful, reliable and voluntary
then conviction can be secured solely based on
the dying declaration without seeking further
corroboration, hence hostility of witness cannot
dent the dying declaration.

Indian Penal Code, 1860- Section 302-
Section 304 (Part-I) - It appears that the
death caused by the accused persons was
not pre-meditated but they intentionally
caused such bodily injuries which were
likely to cause death. Hence the instant
case falls under the exceptions (1) and (4)
to Section 300 of IPC. While considering
Section 299 IPC, offence committed will
fall under Section 304 (Part-I) IPC.

Where the deceased died after 4 months of the
occurrence due to septicaemia and there is no
evidence to show that the offence was premeditated then even though the accused had
the intention to cause such bodily injuries which
were likely to cause death, the offence would be
one u/s 304 (Part-I) IPC instead of Section 302.
(Para 20, 21, 24, 25, 28, 37)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Koli Lakhmanbhai Chandabhai Vs St. of
Guj.1999 (8) SCC 624
2. Ramesh Harijan Vs St. of U.P. 2012 (5) SCC
777

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

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

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

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

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

8. Bengai Mandal @ Begai Mandal Vs St. of Bih.
[(2010) 2 SCC 91]

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

10. Chirra Shivraj Vs St. of A.P. (2010) 14 SCC
444

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

12. Khokan@ Khokhan Vishwas Vs St. of
Chattis., 2021 LawSuit (SC) 80

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

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

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

16. Tukaram& ors. Vs St. of Maha. (2011) 4 SCC
250

17. B.N. Kavatakar & Anr. Vs St. of Kar. 1994
SUPP (1) SCC 304
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.)

1. This appeal has been preferred
against the judgment and order dated
28.2.2019, passed by the learned Additional
1280 INDIAN LAW REPORTS ALLAHABAD SERIES
Sessions Judge, Court No.6, Farrukhabad, in
Session Trail No.12 of 2018 ( State of UP vs.
Sultan and another) arising out of Case Crime
No.53 of 2017, under Section 302/34 and
498A of Indian Penal Code ( hereinafter
referred
to
as
'IPC'),
Police
StationShamsabad, District Farrukhabad, whereby
the accused-appellants are convicted and
sentenced for the offence under Section
302/34 IPC for life imprisonment with a fine
of Rs.20,000/- each and in default of payment
of fine, further rigorous imprisonment for one
year; accused- appellants were further
convicted under Section 498A of IPC and
sentenced to undergo imprisonment for two
years each with fine of Rs.5000/- each and in
case of default of payment of fine, to undergo
further rigorous imprisonment for one month
each. All the sentences were to run
concurrently as per direction of the Trial
Court. .

2. The brief facts of the case are that
first information report of this case was
lodged by complainant-Aslam ( father) with
the averments that the marriage of his
daughter was solemnized with accused
Munna @ Sultan son of Nabeedraj before
about eight years. Earlier also before the said
incident, the appellant after about four years
of marriage life had tried to push her from the
terrace and in that his daughter had sustained
injuries. The accused Sultan contracted the
marriage with one Yashmeen and because of
that there were constant quarrel and Sultan
and his second wife Yasmeen hatched a
common intention to do away with his
daughter and that is how, she was set ablaze .
Sabeen received several burn injuries. The
accused got Sabeen admitted in hospital and
absconded. Sabeena had suffered about 70%
burn injuries and she was in the hospital.

3. A first information report was
registered on the basis of above written
report. During course of investigation, I.O.
recorded statement of witnesses, prepared
site-plan. Dying-declaration of deceased
was recorded by Magistrate. After the death
of the deceased, inquest report was
prepared and post mortem was conducted.
Post mortem report is also placed on
record.
After
making
thorough
investigation, charge sheet was submitted
against the accused Sultan @ Munna,
husband
of
the
deceased
and
Smt.
Yasmeen, second wife of Sultan @ Munna.
Learned trial court framed charges against
both the accused persons under Sections
498A, 302/34 of IPC. Accused-appellants
denied the charges and claimed to be tried.

4. Prosecution examined following
witnesses:

1.
Aslam
PW-1
2.
Irfan
PW-2
3.
Constable Mahesh
PW-3
4.
Kadeer
PW-4
5.
Dr. Amrit Singh
PW-5
6.
Dr. Kailash Chandra
PW-6
7.
SI Veerpal Singh
PW-7
8.
SI Ravindra Nath Yadav
PW-8
9.
SI Jitendra Singh
PW-9
10. Churamani- Nayab Tehsildar
PW-10

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

1.
FIR
Ex.ka.1
2.
Written report
Ex.ka.2
3.
Dying-declaration
Ex.ka.13
4.
Post mortem report
Ex.ka.4
5.
Panchayatnama
Ex.ka.9
6.
Charge-Sheet
Ex.ka.7-8
11 All. Sultan @ Munna & Anr. Vs. State of U.P.
1281
7.
Site plan
Ex.ka.6

6. Deceased was hospitalised after the
incident
by
the
accused
persons
themselves. The deceased died after four
months of the incident during the course of
treatment at her father's home. The cause of
death according to PW-5, who conducted
the postmortum report was septicaemic.
The oral testimony of Dr. namely PW-6
Kailash Chandra also shows that her dying
declaration was recorded when she was in
conciousness and he has proved the said
document. .

7. Heard Sri Sukhvir Singh, learned
counsel for the appellants and Shri
Patanjali Mishra, learned AGA for the
State.

8. Learned counsel for the appellants
submitted that accused persons have been
falsely implicated in this case. The
deceased caught fire while cooking and
they have not caused her death. No dowry
was ever asked for. It is submitted that the
accused has not set the deceased on fire.
She caught fire while she was trying to go
inside the room. It was the accused who
tried to save her. The learned counsel has
further submitted that the Court has not
even relied on the DW-1, PW-4 did not
support the prosecution case. PW-1 is not
the eye witness and PW-4 has not
supported the prosecution case. Learned
counsel for the appellant has relied on the
decision of this High Court in Criminal
Appeal No.318 of 2015 ( Pramod Kumar
Vs. State of U.P.) decided on 28.2.2019 and
has contended that the accused are innocent
and in the alternative has submitted that if
this Court comes to the conclusion that the
death was because of the act of the accused
then the offence would be falling within the
provision of Section 304 of IPC and not
Section 302 of IPC

9. Learned counsel for the appellants
next submitted that dying-declaration of the
deceased was recorded when she was
surviving, but this dying-declaration has no
corroboration
with
any
prosecution
evidence. Most of the witnesses of fact
have turned hostile and the version of FIR
is not supported by the oral testimony.
Therefore, learned trial court committed
grave error by convicting the accused on
the basis of dying-declaration .

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

11. No other point or argument was
raised by the learned counsel for the
appellants and confined his arguments on
above points only.
1282 INDIAN LAW REPORTS ALLAHABAD SERIES

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

13. First of all learned counsel for the
appellants has raised the issue relating to
the evidence of witness PW-4 who has not
supported the prosecution case. It is further
submitted that the deceased died due to
septicemia hence it can interred that there
was intention to do away with the
deceased. There was no demand of dowry
so as to convict the accused under Section
498A of IPC. None of the ingredients of the
provision of Section 498A IPC are made
out. It is not even the case of the
prosecution witnesses that any demand of
dowry was made. The only allegation of
PW-1 is that due to presence of second
wife, both the accused used to harass his
daughter (deceased). It is not borne out
from the dying declaration that there was
any demand of dowry. Quarrel will not be
sufficient for convicting a person under
498A of IPC.

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

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

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

17. Perusal of impugned judgment
shows
that
learned
trial
court
has
scrutinised the evidence on record but has
failed to appreciate the fact that there is no
demand of dowry which will come within
the purview of Section 498A of IPC and we
exonerate both the accused-appellants of
the punishment under Section 498A of IPC.
.

18. Learned counsel for the appellants
has argued that dying declaration is
doubtful and not corroborated by witnesses
11 All. Sultan @ Munna & Anr. Vs. State of U.P.
1283
of fact, hence, it cannot be the sole basis of
conviction.
Legal
position
of
dying
declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored, made voluntarily and is wholly
reliable. In this regard, Hon'ble Apex Court
has summarized the law regarding dying
declaration in Lakhan vs. State of Madhya
Pradesh [(2010) 8 Supreme Court Cases
514], in this case, Hon'ble Apex Court held
that the doctrine of dying declaration is
enshrined in the legal maxim nemo
moriturus praesumitur mentire, which
means, "a man will not meet his Maker
with a lie in his mouth". The doctrine of
dying declaration is enshrined in Section 32
of Evidence Act, 1872, as an exception to
the general rule contained in Section 60 of
Evidence Act, which provides that oral
evidence in all cases must be directed, i.e.,
it must be the evidence of a witness, who
says he saw it. The dying declaration is, in
fact, the statement of a person, who cannot
be called as witness and, therefore, cannot
be
cross-examined.
Such
statements
themselves are relevant facts in certain
cases.

19. The dying declaration is truthful
and we rely on the same.

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

21. Deceased survived for 4 months
after the incident took place. Her dying
declaration was recorded by Magistrate
after obtaining the certificate of medical
fitness from the concerned doctor. In the
wake of aforesaid judgments of Lakhan
(supra), dying declaration cannot be
disbelieved, if it inspires confidence. On
reliability of dying declaration and acting
on it without corroboration, Hon'ble Apex
Court held in Krishan vs. State of Haryana
[(2013) 3 Supreme Court Cases 280] that it
is not an absolute principle of law that a
dying declaration cannot form the sole
basis of conviction of an accused. Where
the dying declaration is true and correct,
the attendant circumstances show it to be
reliable and it has been recorded in
accordance with law, the deceased made
the dying declaration of her own accord
and upon due certification by the doctor
with regard to the state of mind and body,
then it may not be necessary for the court to
look for corroboration. In such cases, the
dying declaration alone can form the basis
for the conviction of the accused. Hence, in
order to pass the test reliability, a dying
declaration has to be subjected to a very
close scrutiny, keeping in view the fact that
the statement has been made in the absence
of the accused, who had no opportunity of
testing the veracity of the statement by
cross-examination. But once, the court has
come to the conclusion that the dying
declaration was the truthful version as to
the circumstance of the death and the
assailants of the victim, there is no question
of further corroboration.
1284 INDIAN LAW REPORTS ALLAHABAD SERIES

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

23. The fact that dying declaration
gets corroboration from oral evidence also.
We are convinced that the Court has not
committed any mistake in relying on the
same.

24.

In
dying
declaration
of
deceased, it is also important to note that
it was recorded on and the deceased died
while the incident took place. It means
that the deceased remained alive for 4
months after making dying declaration.
Therefore,
truthfulness
of
dying
declaration can further be evaluated from
the fact that she survived for 4 months
after making it from which it can
reasonably be inferred that she was in a
fit
mental
condition
to
make
the
statement at the relevant time. Moreover,
in the dying declaration, the deceased did
not unnecessarily involve the other
family
members
of
the
accused
appellants. She only attributed the role of
burning to her husband and his second
wife. .

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

26.

As
already
noticed,
the
authorities involved in recording the
dying declaration had turned hostile. On
the contrary, they have fully supported
the case of prosecution. The dying
declaration is reliable, truthful and was
voluntarily made by the deceased, hence,
this dying declaration can be acted upon
without corroboration and can be made
the sole basis of conviction.

27. Now we come to the submission
by learned counsel for the appellants that
deceased died due to septicaemia, hence
this case falls within the ambit of Section
304 IPC and not under Section 302 IPC.
In this regard, learned counsel has
submitted that deceased died after four
months of incident due to the septicemia.
There was no intention of the appellants
to cause the death of the deceased.

28. It is an admitted fact that the
deceased died after four months of burning
and post mortem report goes to show that
she died due to septicemia. PW-6 who has
recorded the dying declaration has been
examined as PW-6. The doctor , who had
conducted the post mortem of the deceased
was also the same doctor. He has
specifically written in the post mortem
report and deposed before the learned trial
11 All. Sultan @ Munna & Anr. Vs. State of U.P.
1285
court that the cause of death was septicemia
due to burn injuries. Hence, the death of the
deceased was septicemial death.

29. The finding of fact regarding the
presence of witnesses at the place of
occurrence cannot be faulted with. Death of
deceased was a homicidal death. The fact
that it was a homicidal death takes this
Court to most vexed question whether it
would fall within the four-corners of
murder
or
culpable
homicide
not
amounting to murder. Therefore, we are
considering the question whether it would
be a murder or culpable homicide not
amounting to murder and punishable under
Section 304 IPC. Accused-appellants are in
jail since 3.2.2017.

30. In State of Uttar Pradesh vs.
Mohd. Iqram and another, [(2011) 8 SCC
80], the Apex Court has made the following
observations in paragraph 26, therein:

"26. Once the prosecution has
brought home the evidence of the presence
of the accused at the scene of the crime,
then the onus stood shifted on the defence
to have brought-forth suggestions as to
what could have brought them to the spot in
the dead of night. The accused were
apprehended and, therefore, they were
under an obligation to rebut this burden
discharged by the prosecution and having
failed to do so, the trial-court was justified
in recording its findings on this issue. The
High Court committed an error by
concluding that the prosecution had failed
to discharge its burden. Thus, the judgment
proceeds on a surmise that renders it
unsustainable."

31. In Bengai Mandal alias Begai
Mandal vs. State of Bihar [(2010) 2 SCC
91], incident occurred on 14.7.1996, while
the deceased died on 10.8.1996 due to
septicaemia caused by burn injuries. The
accused was convicted and sentenced for
life imprisonment under Section 302 IPC,
which was confirmed in appeal by the High
Court, but Hon'ble The Apex Court
converted the case under Section 304 PartII IPC on the ground that the death ensued
after twenty-six days of the incident as a
result of septicaemia and not as a
consequence
of
burn
injuries
and,
accordingly, sentenced for seven years'
rigorous imprisonment.

32. In Maniben vs. State of Gujarat
[(2009) 8 SCC 796], the incident took place
on 29.11.1984. The deceased died on
7.12.1984. Cause of death was the burn
injuries. The deceased was admitted in the
hospital with about 60 per cent burn
injuries and during the course of treatment
developed septicaemia, which was the main
cause of death of the deceased. Trial-court
convicted the accused under Section 304
Part-II IPC and sentenced for five years'
imprisonment, but in appeal, High Court
convicted the appellants under Section 302
IPC. Hon'ble The Apex Court has held that
during the aforesaid period of eight days,
the injuries aggravated and worsened to the
extent that it led to ripening of the injuries
and the deceased died due to poisonous
effect
of
the
injuries.
Accordingly,
judgment and order convicting the accused
under Section 304 Part-II IPC by the trialcourt was maintained and the judgment of
the High Court was set aside.

33. In Chirra Shivraj vs. State of
Andhra Pradesh [(2010) 14 SCC 444],
incident took place on 21.4.1999. Deceased
died on 1.8.1999. As per the prosecution
version, kerosene oil was poured upon the
deceased, who succumbed to the injuries.
Cause of death was septicaemia. Accused
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
was convicted under Section 304 Part-II
IPC and sentenced for five years' simple
imprisonment, which was confirmed by the
High Court. Hon'ble The Apex Court
dismissed the appeal holding that the
deceased suffered from septicaemia, which
was caused due to burn-injuries and as a
result thereof, she expired on 1.8.1999.

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

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

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

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

15. In the case of the B.N.
Kavatakar and another (supra), the Apex
Court in a similar case of septicemia where
the deceased therein had died in the
hospital after five days of the occurrence of
the incident in question, converted the
conviction under section 302 to under
section 326 and modified the sentence
accordingly.

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

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

19. It is established from the
dying declaration of the deceased that she
was living separately from her mother-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
11 All. Sultan @ Munna & Anr. Vs. State of U.P.
1287
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.

35. In latest decision in Khokan@
Khokhan
Vishwas
v.
State
of
Chattisgarh, 2021 LawSuit (SC) 80,
where the facts were similar to this case,
the Apex Court has allowed the appeal of
the accused appellant and altered the
sentence. 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.
Decisions 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.

36. 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 it was a case of homicidal
death not amounting to murder. We are also
of the considered opinion that in the case at
hand, the offence would be punishable
under Section 304 (Part-I) IPC.

37. From the upshot of the aforesaid
discussions it appears that the death caused
by the accused persons was not premeditated but they intentionally caused
such bodily injuries which were likely to
cause death. Hence the instant case falls
under the exceptions (1) and (4) to Section
300 of IPC. While considering Section 299
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
IPC, offence committed will fall under
Section 304 (Part-I) IPC.

38. 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. The fine and default sentence
are maintained.

39. Accordingly, the appeal is partly
allowed.
----------
(2022) 11 ILRA 1288
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2022

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Application No. 42918 of
2021

Aditya Kumar ...Applicant
Versus
Union of India ...Opp. Party

Counsel for the Applicant:
Sri Abrar Ahmad Siddiqui, Sri Abhishek Kumar
Mishra, Sri Chandrakesh Mishra, Sri Rakesh Pati
Tiwari, Sri Daya Shankar Mishra (Sr. Advocate)

Counsel for the Opp. Party:
Ashish Pandey

Criminal
Law
-Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Section 8(C)/21/29-No independent witness
of the alleged recovery-the constables of
Railway Police Force cannot be said to be
independent witnesses- the recovery memo
does not bear signatures of the Gazetted Officer.
Page 6 of - a copy of the test report has not
been filed by the NCB- The test report filed by
the applicant categorically states that the
substance was not found to be Heroin but it was
Morphine- no criminal history- All the witnesses
in the present case are officers and officials of
Narcotic
Control
Bureau
and
personnel
belonging
to
Railway
Protection
Force,
therefore, there appears to be no reasonable
apprehension that in case the applicant is
released on bail, he would influence the
witnesses.

Bail granted. (E-9)

List of Cases cited:

1. Makhan Singh Vs St.of Har., (2015) 12 SCC
247

2. U.O.I. Vs Rattan Mallik, (2009) 2 SCC 624
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Daya Shankar Mishra,
Senior
Advocate
assisted
by
Shri
Chandrakesh Mishra Advocate, the learned
Counsel for the applicant and Sri Ashish
Pandey Advocate, the learned counsel for
the Narcotic Control Bureau.

2. The present application has been
filed for release of the applicant on bail in
N.C.B. Crime No. 28 of 2021, under
Section 8(C)/21/29 of Narcotic Drugs and
Psychotropic Substances Act, P.S. N.C.B.
Lucknow.

3. The search, seizure-cum- recovery
memo dated 04-07-2021 states that an
information was received in the N.C.B.
Office at Lucknow on 03-07-2021 at 21:30
hours that a person was carrying Heroin in
Coach No. 9 of Train No. 02357 from
Gaya, Bihar to Bareilly, U.P. and the train
would reach Bareilly junction on 04-072021 between 06:00 hours to 07:00 hours.
In furtherance of the aforesaid information,
a team of Officers of N.C.B consisting of
the Intelligence Officer Mohd. Farooq,