# Sunil Kumar Divakar v. State of U.P

- **Citation:** (2021) 11 ILRA 786
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-30
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-divakar-v-state-of-u-p-46704
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 1 & 4 -Deceased was wife of accuseddeceased caught fire while burning the fire crakerswhile saving her accused also sustained burn injuries
in hand-both admitted -wife died-trial court finding is
that incident happened out of quarrel and death
happened due to septicemia-death caused not
premediated-no intention-fall under exception 1 and 4
to section 300 IPC-offence is not under section 302
IPC
but
is
culpable
homicide-Appeal
partly
allowed. (E-9)

List of Cases cited:

## Text

786 INDIAN LAW REPORTS ALLAHABAD SERIES
is not established by prosecution because if it
was in front of police station then no police
personnel came on the spot and no police
personnel of that police station was produced in
evidence as it is not in evidence that any police
personnel came out from police station when
such type of trapping was led by the team. If it
was the place of occurrence, it is very busy
place, but no public witness is there.

18. These arguments regarding place of
occurrence do not convince this Court as it is in
evidence of witnesses that police station was 150200 steps away from the place of occurrence and
moreover, when trap-team set the trap, it was not
necessary for police personnel to come on the spot
because it is not the prosecution case that team
contacted or informed the said police station prior to
setting the trap.

19. Now, it comes the question of voluntary
acceptance of bribe by the appellant. In this regard,
perusal of first information report (Ex.ka10) itself
shows that it is mentioned in this report that when
trap-team caught the appellant then treated 60 notes
of Rs.500/- were recovered from his right-hand.
Ravindra Pal Singh Tomar (PW2), the then DSP,
has also stated in his statement that from his righthand, Rs.30,000/- were recovered and these were
the same notes, which were treated before laying the
trap. Hence, when treated-notes were recovered
from the hand of the appellant and that too 15-20
steps away from his car then it is itself proved that
he accepted the money voluntarily.

20. Recovery of Rs.30,000/- from the
possession of appellant at the place of occurrence is
not at all doubted. There is ample evidence on
record that at the time of apprehending the
appellant, the amount of Rs.30,000/- was recovered
from his right-hand and these were the same
currency-notes, which were treated before giving to
him as a bribe. Report received from Forensic
Science Laboratory, Agra (Ex.ka.16) states that in
the sample of liquid sent for chemical examination,
sodium-carbonate was found. This liquid was result
of washing the hands of appellant and due to
application of powder on currency-notes, which
were to be given as bribe. Demand of illegal
gratification is sine qua non to constitute the offence
under the Act. Mere recovery of currency-notes also
itself does not constitute the offence under the Act,
1988, unless it is proved beyond all reasonable
doubt that the accused-appellant voluntarily
accepted the money, knowing it to be bribe. But, in
the facts of the present case, I am of the opinion that
both the above ingredients of offence under
Sections 7 and 13 (1) (d) (ii) of the Act, 1988, are
completely satisfied and proved as discussed above.

21. With the above discussion, this Court
comes to the conclusion that in this case demand of
illegal gratification on the part of the appellant is
proved and it is also proved that he accepted it,
voluntarily. It is also proved that at the time of
apprehending him, the same treated-notes worth
Rs.30,000/- were recovered from his right hand.

22. Hence, the learned trial court has rightly
appreciated the evidence on record. There is no
infirmity or illegality in the impugned judgment.
The appeal is devoid of merit and is liable to be
dismissed.

23. The appeal is dismissed, accordingly.
----------
(2021)12ILR A786
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.11.2021

BEFORE

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

Criminal Appeal No. 7187 of 2017

Sunil Kumar Divakar ...Appellant
Versus
State of U.P. ...Respondent
11 All. Sunil Kumar Divakar Vs. State of U.P.
787
Counsel for the Appellant:
Sri Amar Singh Kashyap, Sri Ashwani Prakash
Tripathi.

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 1 & 4 -Deceased was wife of accuseddeceased caught fire while burning the fire crakerswhile saving her accused also sustained burn injuries
in hand-both admitted -wife died-trial court finding is
that incident happened out of quarrel and death
happened due to septicemia-death caused not
premediated-no intention-fall under exception 1 and 4
to section 300 IPC-offence is not under section 302
IPC
but
is
culpable
homicide-Appeal
partly
allowed. (E-9)

List of Cases cited:

1. Khokan@ Khokhan Vishwas Vs St. of Chattisgarh,
2021 LawSuit (SC) 80,

2. Banarsi Dass & ors. Vs St. of Har.,
Bhadragiri Venkata Ravi Vs Public Prosecutor
High Court of A.P., Hyderabad, (2013) 0
Supreme (SC) 511,

3. Surinder Kumar Vs St. of Har., 2011 LawSuit (SC)
1149,

4. Arvind Singh Vs St. of Bihar, 2001 (3) Supreme
570,

5. Kashmira Devi Vs St. of Uttarakhand & ors., (2020)
11 SCC 343,

6. Smt. Rama Devi Vs St. of U.P., (2018) 102 ACrC
105,

7. Misri Lal Vs St. of U.P., (2017) 7 ADJ 14,

8. Sanjay & ors. Vs St. of U.P. (2016) 3 SCC 62

9. Manoj Kumar Vs St. of U.P., (2019) 1 ADJ 221

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

11. B.N. Kavatakar & anr. Vs St. of Karnataka,
reported in 1994 SUPP (1) SCC 304
12. Veeran & ors. Vs St. of M.P. Decided, (2011) 5
SCR 300

13. Criminal Appeal No.83 of 2008 (Gautam Manubhai
Makwana Vs St. of Gujarat) decided on 11.9.2013

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

15. Pravat Chandra Mohanty Vs St. of Odisha, (2021)
3 SCC 529 & Pardeshiram Vs St. of M.P., (2021) 3 SCC
238
(Delivered by Hon'ble Dr. Kaushal Jayendra
Thaker, J.)

1. This appeal challenges the judgment and
order dated 13.4.2016 passed by Additional
Sessions Judge, Court No.1, Kannauj in
Sessions Trial No.144 of 2009 convicting
accused-appellant under Sections 498 & 302 of
Indian Penal Code, 1860 (hereinafter referred to
as 'IPC') and sentenced him to undergo
imprisonment for life with fine of Rs.25,000/-
under Section 302 of I.P.C. and under Section
498A, sentenced him to undergo 2 years and 6
months rigorous imprisonment with fine of
Rs.5,000/- and in case of default of payment of
fine,
further
to
undergo
six
months
imprisonment.

2. 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 accused-appellant
namely Sunil Kumar Diwaker on 28.4.2008.
After she went to matrimonial home, she was
being harassed for dowry. On the fateful day,
she was sent back to matrimonial home on
28.10.2008, again accused demanded money and
gold chain. She was set ablaze by pouring
kerosene on her despite the fact that she was
pregnant. She was subjected to all kinds of
mental harassment. The child in the womb was
also declared dead and, therefore, the parents of
the deceased decided to see that the accused are
brought to trial. The complainant lodged the
complaint.
788 INDIAN LAW REPORTS ALLAHABAD SERIES

3. 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.

4. 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
Ramsaran
PW1
2
Rajrani
PW2
3
Jitendra
PW3
4
Surendra Kumar Sharma
PW4
5
Dr. Anil Nigam
PW5
6
Sameer Verma
PW6
7
Dr. G.N. Dwivedi
PW7
8
Indrajeet Singh
PW8
9
Ram Swaroop
PW9

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

1
F.I.R.
Ex.Ka.8
2
Written Report
Ex.Ka.1
3
Panchayatnama
Ex.Ka.2
4
Postmortem Report
Ex.Ka.6
5
Site-plan
Ex.Ka.10
6
Charge-sheet
Ex.Ka.11

6. 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.

7. Heard Sri Amar Singh Kashyap and Sri
Ashwani Prakash Tripathi, learned counsel for
accused-appellant, learned A.G.A. for the State
and perused the record.

8. It is submitted by learned counsel for
accused-appellant that the accused is in jail since
2008, more particularly from 19.12.2008. The
deceased was the wife of the accused-appellant. It
is submitted that the deceased caught fire while
burning the fire crackers and in saving her, the
accused also sustained burn injuries in his hand;
that both the deceased and accused sustained burn
injuries and admitted to Hallet Hospital Kanpur
where after giving her statement before the
Magistrate, the Smt. Renu died.

9. Learned counsel for the appellant has
vehemently submitted that dying declaration is not
worth believing and it is an admitted position of
fact that she died out of septicemia.

10. It is further submitted by learned
counsel for the appellant that most of the
witnesses have turned hostile despite that,
learned Sessions Judge has convicted him under
Section 302 of I.P.C. As far as conviction under
Section 498A of IPC is concerned, he has
completed the period of incarceration. It is
submitted that there is no evidence of demand of
dowry in the dying declaration which was the
sole base of the case and that neither any
specific charge was framed against the appellant
under Section 302 of I.P.C. nor any evidence
was led to that effect by any of the witnesses
and, therefore, conviction under Section 302,
could not have been recorded.

11. In support of the his submission,
learned counsel for the appellant has relied on
Khokan@ Khokhan Vishwas v. State of
Chattisgarh, 2021 LawSuit (SC) 80, Banarsi
11 All. Sunil Kumar Divakar Vs. State of U.P.
789
Dass and Others v. State of Haryana,
Bhadragiri
Venkata
Ravi
v.
Public
Prosecutor High Court of A.P., Hyderabad,
(2013) 0 Supreme (SC) 511, Surinder Kumar
v. State of Haryana, 2011 LawSuit (SC) 1149,
Arvind Singh v. State of Bihar, 2001 (3)
Supreme 570, Kashmira Devi v. State of
Uttarakhand and others, (2020) 11 SCC 343,
Smt. Rama Devi v. State of U.P., (2018) 102
ACrC 105, Misri Lal v. State of Uttar
Pradesh, (2017) 7 ADJ 14, Sanjay and others
v. State of Uttar Pradesh, (2016) 3 SCC 62,
Manoj Kumar v. State of U.P., (2019) 1 ADJ
221. In alternative, it is submitted that at the
most punishment can be under Section 304 II or
Section 304 I of I.P.C. If the Court feels, as the
accused have been in jail for more than 17 years
without remission, they may be granted fixed
term punishment of incarceration.

12. 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.

13. Learned Judge has categorically relied
on the testimony of Dr. Anil Nigam and has
opined that she died out of septicemia. There
were formation of pus pocket on her body. She
died on 3.11.2008. The postmortem was
conducted on 4.11.2008. She was a young lady
of 22 years. P.W.1 has testified against all the
accused. The accused used to beat the deceased
after consuming alcohol and all the accused
persons used to take part in the same. There was
dying declaration of the deceased where also she
had categorically mentioned that the accused
had tried to set her ablaze. The genesis of setting
her ablaze was non fulfillment of dowry. The
learned Sessions Judge has relied on the
testimony of P.W.1 & P.W.2 and, therefore, we
have also no doubt in our mind that offence
under Section 498A & 304B of IPC has been
committed for which the punishment cannot be
said to be exaggerated. For section 498A of IPC,
the learned Sessions Judge has sentenced the
accused to undergo two & half years of
incarceration with fine of Rs.5000/- & under
Section 302, the accused has been sentenced to
undergo imprisonment for life with fine of Rs.
25,000/-. As far as offence under Section 304 B
is concerned, learned Sessions Judge has
coupled it with Section 302 of I.P.C. The death
was not due to demand of dowry but it was due
to the accused-husband having bad eye on other
girls for which the deceased-wife has cautioned
him. We are unable to fathom on why the
learned Sessions Judge then had convicted the
accused under Section 498A. But, as the period
of incarceration Section 498A of I.P.C. is over,
we are not delving into the same. As far as
Section 302 of IPC is concerned, as per the
finding of the learned Sessions Judge, incident
happened out of quarrel and death has happened
due to septicemia on which heavy reliance has
been placed by learned Sessions Judge.

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 appellants.

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
790 INDIAN LAW REPORTS ALLAHABAD SERIES
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.Code. The
following comparative table will be helpful in
appreciating the points of distinction between
the two offences.

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

 INTENTION
(a) with the intention of
causing death; or
(1) with the intention of
causing death; or
(b) with the intention of
causing such bodily injury
as is likely to cause death;
or
(2) with the intention of
causing such bodily injury as
the offender knows to be likely
to cause the death of the
person to whom the harm is
caused;
KNOWLEDGE
KNOWLEDGE

(c) with the knowledge
that the act is likely to
cause death.
(4) with the knowledge that the
act
is
so
immediately
dangerous that it must in all
probability cause death or such
bodily injury as is likely to
cause death, and without any
excuse for incurring the risk of
causing death or such injury as
is mentioned above.

17. 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.

18. 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.

19. 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
11 All. Sunil Kumar Divakar Vs. State of U.P.
791
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-in-law, 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
792 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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."

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 would be repetition of what
we have decided.

22. 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, sentence of the
accused appellant is reduced to the period he has
already undergone. The fine is reduced to Rs.10,000/-
to be paid to the original complainant.

23. Appeal is partly allowed. Record and
proceedings be sent back to the Court below
forthwith. If the accused-appellant fails to pay the
fine, the default sentence will start after 13 years of
incarceration.

24. This Court is thankful to learned Advocates
for ably assisting the Court.
----------
(2021)12ILR A792
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.11.2021

BEFORE

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

Criminal Appeal No. 5977 of 2019

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

Counsel for the Appellant:
Sri S.K. Agrawal, Sri Pushpendra Singh, Sri
Mandeep Singh