# Susheela Devi v. State of U.P. Opp. Party

- **Citation:** (2022) 11 ILRA 1166
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-31
- **Case number:** Crl. Appeal No. 1257 of 2020
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/susheela-devi-v-state-of-u-p-opp-party-47978
- **Pages:** 11

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Section
154-
Hostile
Witness-
The
testimony of hostile witnesses cannot be
thrown away just on the basis of the fact
that
they
have
not
supported
the
prosecution
case
and
were
crossexamined
by
the
prosecutor.
The
testimony of the hostile witnesses can be
relied upon to the extent it supports the
prosecution case. Needless to say that the
testimony of hostile witnesses should be
scrutinized
meticulously
and
very
cautiously.

Settled law that the entire testimony of a hostile
witness cannot be discarded but that part,
which supports the case of the prosecution, has
to be considered.

Indian Evidence Act, 1872- Section 32-
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
11 All. Susheela Devi Vs. State of U.P.
1167
sole basis for recording conviction- 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. The hostility of witnesses
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- None of the witnesses or the
authorities involved in recording the dying
declaration had turned hostile.

Where the court finds the dying declaration to be
truthful, credible and natural after subjecting the
same to close scrutiny then conviction can be
secured solely on the basis of the dying declaration
without seeking any further corroboration despite
the witnesses turning hostile.

Indian Penal Code, 1860- Sections 302 &
304 (Part-I) IPC- The offence would be
punishable under Section 304 (Part-I)
IPC.- it appears that the death caused by
the
accused
was
not
pre-meditated.
Accused had no intention to cause the
death of the deceased. The injuries were
though sufficient in the ordinary course of
nature to have caused death, accused had
no
intention
to
do
away
with
the
deceased. Hence the instant case falls
under the exceptions (1) and (4) to
Section 300 of IPC. The conviction of the
appellant
under
Section
302
IPC
is
converted into conviction under Section
304 (Part-I) IPC and the appellant is
sentenced
to
undergo
10
years
of
incarceration with remission.

Where death is due to septicaemia after several
days and the accused had no intention to
commit murder, then instead of Section 302 IPC,
the offence would be punishable u/s 304 (Part -
I) IPC. (Para 14, 21, 22, 24, 26, 27, 36)

Criminal Appeal partly allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

1166 INDIAN LAW REPORTS ALLAHABAD SERIES

13. Accordingly, the appeal is partly
allowed. The substantive sentence of
imprisonment is reduced to the period
already undergone. However, an amount of
Rs 50,000 is imposed as fine. The appellant
shall deposit the fine within three months
and, if not, he shall undergo imprisonment
for a period of six months. On payment of
fine, his bail bond will stand cancelled."

20. From the evidence lead by the CBI
particularly considering the fact of recovery
of foreign currency and the evidence of two
passengers whose testimony has remained
unshaken, this Court is of the view that the
offence under Section 13(1)(d) of Prevention
of Corruption Act is proved against the
appellants.

21. So far the appeals on merit are
concerned, there is no merit in the present
appeals, which are hereby dismissed and
the conviction of the appellants is upheld.

22.

However,
considering
the
judgement of the Supreme Court in the case
of
V.K.
Verma
(supra),
the
special
circumstance i.e. 22 years of time period
having been lapsed from the date of the
alleged offence and their official positions
which they held at the time of commission
of offence, this Court is of the view that the
minimum sentence should be reduced to
the sentence already undergone with a fine
of Rs.35,000/- to be deposited by each
appellant within a period of four weeks
from today in favour of Armed Forces
Battle
Casualties Welfare
Fund,
S/B
Account
No.90552010165915,
Canara
Bank, South Block, Defence Headquarters,
New
Delhi-110011,
IFSC
Code:CNRB0019055. If the appellants fail
to deposit the fine as directed above, they
shall undergo the sentence as awarded by
the learned trial court.
----------
(2022) 11 ILRA 1166
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.10.2022

BEFORE

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

Crl. Appeal No. 1257 of 2020

Susheela Devi ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Abdul Mazeed, Sri Kuldeep Mishra, Sri Nazrul
Islam Jafri(Senior Adv.)

Counsel for the Opp. Party:
G.A.

Criminal Law- Indian Evidence Act, 1872-
Section
154-
Hostile
Witness-
The
testimony of hostile witnesses cannot be
thrown away just on the basis of the fact
that
they
have
not
supported
the
prosecution
case
and
were
crossexamined
by
the
prosecutor.
The
testimony of the hostile witnesses can be
relied upon to the extent it supports the
prosecution case. Needless to say that the
testimony of hostile witnesses should be
scrutinized
meticulously
and
very
cautiously.

Settled law that the entire testimony of a hostile
witness cannot be discarded but that part,
which supports the case of the prosecution, has
to be considered.

Indian Evidence Act, 1872- Section 32-
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
11 All. Susheela Devi Vs. State of U.P.
1167
sole basis for recording conviction- 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. The hostility of witnesses
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- None of the witnesses or the
authorities involved in recording the dying
declaration had turned hostile.

Where the court finds the dying declaration to be
truthful, credible and natural after subjecting the
same to close scrutiny then conviction can be
secured solely on the basis of the dying declaration
without seeking any further corroboration despite
the witnesses turning hostile.

Indian Penal Code, 1860- Sections 302 &
304 (Part-I) IPC- The offence would be
punishable under Section 304 (Part-I)
IPC.- it appears that the death caused by
the
accused
was
not
pre-meditated.
Accused had no intention to cause the
death of the deceased. The injuries were
though sufficient in the ordinary course of
nature to have caused death, accused had
no
intention
to
do
away
with
the
deceased. Hence the instant case falls
under the exceptions (1) and (4) to
Section 300 of IPC. The conviction of the
appellant
under
Section
302
IPC
is
converted into conviction under Section
304 (Part-I) IPC and the appellant is
sentenced
to
undergo
10
years
of
incarceration with remission.

Where death is due to septicaemia after several
days and the accused had no intention to
commit murder, then instead of Section 302 IPC,
the offence would be punishable u/s 304 (Part -
I) IPC. (Para 14, 21, 22, 24, 26, 27, 36)

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 (SC) 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. Bengai Mandal @ Begai Mandal Vs St. of Bih.
(2010) 2 SCC 91

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

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

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred
against the judgment and order dated
4.1.2020, passed by the learned Additional
District and Session Judge, Court No.6,
Pilibhit, in Session Trail No.123 of 2018
arising out of Case Crime No.34 of 2018
under Section 302 IPC, Police StationDiyoriya, District-Pilibhit, whereby the
appelant is convicted and sentenced for the
offence under Section 302 IPC for life
imprisonment with a fine of Rs.50,000/-
and in defalut of payment of fine, further
imprisonemnt for one year.

2. None has appeared for appellant.
We are intending to modify the order in
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
favour of the appellant. Hence, we have
heard and taken assistance from Shri N.K.
Srivastava, learned AGA and perused the
record.

3. The brief facts of the case are that a
written report was submitted by informantJagdish Prasad at Police Station-Diyoriya
Kalan, District-Pilibhit on 23.2.2018 with
the
averments
that
the
daughter
of
informant, namely, Roopwati was married
to Rajendra Kumar before three years of
occurrence. Informant had given sufficient
dowry as per his financial status, but inlaws of her daughter were not satisfied and
continuously demanding the additional
dowry. Due to non-fulfilment of demand of
additional dowry, she used to be beaten and
tortured. On 22.2.2018, at about 11:00 a.m.,
Rajendra Kumar (husband of Roopwati),
Sunil Kumar (dewar) and her mother-inlaw poured kerosene oil on Roopwati and
set her ablazed. On getting the information
by neighbours, informant and others went
to the house of in-laws of her daughter and
found her in burning condition where she
told them that aforesaid persons had set her
ablazed for want of additional dowry. She
was admitted in the hospital at Pilibhit.

4. On the basis of aforesaid, written
report,
first
information
report
was
registered on 23.2.2018 under Section 498A, 307, 323 IPC and Section 3/4 Dowry
Prohibition Act against all the accused
persons. Investigation was started by the
Investigating Officer. After 9 days of
occurrence, injured-Roopwati succumbed
to injuries and the case was converted into
Section-304
B
and
302
IPC.
The
Investigating Officer visited the place of
occurrence and site plan was prepared.
During the course of investigation, I.O.
Recorded the statements of witnesses under
Section 161 Cr.P.C. Burnt clothes were
recovered by I.O. of which recovery memo
was prepared. Dying-Declaration of injured
/deceased Roopwati was recorded at
District-Pilibhit on 23.2.2018 by Naib
Tehsildar, Pilibhit, Sadar. After the death of
injured
Roopwati,
proceedings
of
panchayatnama
were
conducted
and
enclosed report was prepared. Dead-body
was sent for postmortem where postmortem
was
conducted
on
dead-body
and
postmortem report was prepared. After
conclusion of investigation, I.O. Submitted
charge-sheet against Rajendra Kumar and
Sushila Devi under Sections 498A, 304B,
302 IPC and 3⁄4 of Dowry Prohibition Act.
Named
accused
Sunil
Kumar
was
exonerated as no sufficient evidence was
found against him.

5. The case being triable exclusively
by court of session, was committed by
Magistrate to the court of session. Learned
trial-court framed charges against the
appellant under Sections 498A, 304-B, 302
IPC read with Section 34 IPC and Section 4
of Dowry Prohibition Act. Accusedappellant denied the charges and claimed to
be tried.

6. Prosecution examined following
witnesses:

1.
Jagdish Prasad
2.
Yadwati
3.
Chatrapal
4.
Neeraj Kumar
5.
Rekha Sharma
6.
Shikha
7.
Mukesh Kumar
8.
Dr.Rajesh Kumar
11 All. Susheela Devi Vs. State of U.P.
1169
9.
Praveen Malik
PW9
10.
Sher Bahadur Singh
PW10
11.
Parvati Devi
PW11
12.
Ram Bresh Yadav
PW12
13.
Mod. Aslam
PW13

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

1.
Written Report
Ex.ka1
2.
Recovery
memo
of
clothes
Ex.ka2
3.
Statement u/S 161 Cr.P.C. Ex.ka3
4.
Site plan with Index
Ex.ka4
5.
Postmortem report
Ex.ka5
6.
Final Report
Ex.ka6
7.
Panchayatnama
Ex.ka7
8.
F.I.R.
Ex.ka8
9.
Dying-Declaration
Ex.ka10

Statements of accused were recorded
u/S 313 Cr.P.C. No defence evidence is
produced.

8. Deceased was hospitalised just
after the occurrence took place and she died
after about 9 days of the incident. In the
meantime, she remained under treatment,
continuously. Her medical papers were also
filed by prosecution, which are on record.

9. In this case, no prosecution witness
has supported the prosecution case and all the
witnesses of fact have turned hostile. Jagdish
Prasad-PW1 is the father of the deceased as
well as informant, but in his testimony before
trial-court, he has specifically stated that he
had not dictated the written report. He had
only signed it. He was declared hostile and
put to the cross-examination by prosecutor. In
his cross-examination, he has stated that the
written report was getting typed by villagers
and he had only put his signature. He had not
blamed any of the accused persons for the
death of her daughter. He has denied his
statements under Section 161 Cr.P.C. also. It
is specifically deposed by PW1 that the
deceased was under depression due to not
conceiving the child.

10. PW2 is mother of the deceased. She
has also not supported the prosecution case
and turned hostile. She has also denied her
statement under Section 161 Cr.P.C. during
cross-examination by prosecutor. Neeraj
Kumar-PW4 is witness of recovery of empty
lamp of kerosene oil, but he has stated that
I.O. Procured his signature on blank papers.
He was also turned hostile. Chatrapal-PW3 is
witness of recovery memo. Hence, in this
way, only two witnesses of fact, namely,
PW1 and PW2 are produced by prosecution
and both have not supported the prosecution
version and specifically deposed that no
additional dowry was demanded by the
accused-appellant.

11. It is brought to our notice that dying
declaration of deceased was recorded when
she was surviving, but this dying declaration
has no corroboration with any prosecution
evidence. All the witnesses of fact have
turned hostile and nobody supported the
version which is mentioned in dying
declaration. Therefore, learned trial court
committed grave error by convicting the
accused on the basis of dying declaration
only when it was not corroborated at all.

12. It is brought to our notice that if,
for the sake of arugment, it is assumed that
appellant has committed the offence, in that
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
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 9
days of the occurrence 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 the death occurred due to septicimia.
Learned counsel for the appellant also
submitted that postmortem report also
shows that cause of death was septicimia.
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 of Criminal Appeal No.2558 of
2011 delivered on 1.2.2021 by this Court
and several other judgments.

13. Learned AGA 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 righty convited the
appellant under Section 302 IPC and
sentenced accordingly. There is no force in
this appeal and the same may be dismissed.

14. First of all, there is issue relating
to the hostality of witnesses. Two witnesses
of fact were examined before learned trial
court, namely Jagdish Prasad, complainant
and father of the deceased (PW1), Yadwatimother of the deceased (PW2). Both these
witnesses have turned hostile, but the
testimony of hostile witnesses cannot be
thrown away just on the basis of the fact
that
they
have
not
supported
the
prosecution case and were cross-examined
by the prosecutor. The testimony of the
hostile witnesses can be relied upon to the
extent it supports the prosecution case.
Needless to say that the testimony of
hostile witnesses should be scrutinized
meticulously and very cautiously.

15. 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.

16. 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.

17. 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
11 All. Susheela Devi Vs. State of U.P.
1171
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
defence.

18. Perusal of impugned judgment
shows
that
learned
trail
court
has
scrutinised the evidence on record very
carefully.

19. As far as the dying declaration is
concerned, it was recroded by Mod. Aslam,
Nayab Tehsildar, who was examined as
PW13. Dying declaration is recorded by
PW13 after obtaining the certificate of
mental-fitness from the doctor. After
completion of dying delaration also the said
docter has given certificate that during the
course of statement, the victim remained
conscious.

20.

Legal
position
of
dying
declaration to be the sole basis of
conviction is that it can be done so if it is
not tutored male 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.

21. 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.

22. Deceased survived for 9 days after
the
incident
took
place.
Her
dying
declaration
was
recorded
by
Nayab
Tehsildar and doctor appended certificate
of mental health of the victim before and
after making of dying declaration, which is
proved. PW13 is absolutely independent
witnesses. In the wake of aforesaid
judgments
of
Lakhan
(supra),
dying
declaraion cannot be disbelived, 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
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

23. 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.

24. From the above case laws, it
clearly emerges that it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused when such dying declaration is
true, reliable and has been recorded in
accordance with established practice and
principles and if it is recorded so then there
cannot be any challenge regarding its
correctness and authenticity.

25. In dying declaration of deceased
(Ex.ka10), it is also important to note that it
was recorded on 23.2.2018 and the
deceased died on 3.3.2018 while the
incident took place on 22.2.2018. It means
that she remained alive for 8 days after
making
dying
declaration.
Therefore,
truthfulness of dying declaration can
further be evalated from the fact that she
survived for 8 days after making it from
which it can reasonably be inferred that she
was in a fit condition to make the statment
at the relevant time. Moreover, in the dying
declaration,
the
deceased
did
not
unnecessarily involved the other family
members of the accused appellant. She only
attributed the role of burning to her motherin-law.

26. In such a situation, the hostality of
witnesses 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.

27. As already noticed, none of the
witnesses or 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,
11 All. Susheela Devi Vs. State of U.P.
1173
hence, this dying declaration can be acted
upon without corroboration and can be
made the sole basis of conviction. Hence,
learned trial court has committed no error
on acting on the sole basis of dying
declaration.
Learned
trial
court
was
completely justified in placing reliance on
dying
declaration
Ex.
KA-10
and
convicting the accused-appellant on the
basis of it.

28. Now we come to the point that
deceased died due to septicemia, 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 9 days of incident due
to the poisonous infection developed in her
burn injuries, which could be avoided by
good treatment. There was no intention of
the appellant to cause the death of his wife.

29. 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.

30. Perusal of postmortem report of
the deceased goes to show that the cause of
death is mentioned as septicemia due to
antemortem thermal burn injuries. Hence, it
is a case of death of the deceased due to
septicemia, which developed in her wounds
during treatment. There is no dispute to the
fact that the death of the deceased occurred
due to poisonous effect of the injuries
because septicemia was developed during
the course of treatment, which was the
main cause of the death of the deceased.

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
septicemia caused by burn injuries. The
accused was convicted and sentenced for
life imprsonment 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
septicemia
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 septicemia, 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 appellant 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
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
version, kerosene oil was poured upon the
deceased, who succumbed to the injuries.
Cause of death was septicemia. Accused
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 septicemia, 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-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
11 All. Susheela Devi Vs. State of U.P.
1175
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.

35. On the overall scrutiny of the
facts and circumstances of the case
coupled with medical evidence and the
opinion of the Medical Officer and
considering the principle laid down by
the Courts in above referred case laws,
we are of the considered opinion that in
the case at hand, the offence would be
punishable under Section 304 (Part-I)
IPC.

36. 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 the death of the deceased. The
injuries were though sufficient in the
ordinary course of nature to have caused
death, accused had no intention to do
away with the deceased. 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.

37. In view of the aforesaid
discussion, we are of the view that
appeal has to be partly allowed. The
conviction of the appellant under Section
302 IPC is converted into conviction
under Section 304 (Part-I) IPC and the
appellant is sentenced to undergo 10
years of incarceration with remission.
The fine of Rs. 50,000/- is reduced to
Rs.20,000/-.
Default
sentence
is
maintained.

38. Accordingly, the appeal is
partly allowed.

39. Record and proceedings be sent
back to the court below. A copy of this
order be also sent to the accused in jail.
----------
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 11 ILRA 1176
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2022

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Crl. Appeal No. 1636 of 1994

Ram Babu & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.S. Shukla, Sri Mahendra Pratap Singh

Counsel for the Respondents:
A.G.A.

Criminal Law- Indian Evidence Act, 1872 -
Section 134- The Indian Evidence Act has
not prescribed any minimum number of
witnesses required for proving a fact - In
the matter of appreciation of evidence of
witnesses, it is not number of witnesses,
but quality of their evidence which is
important.

Settled law that it's the quality of evidence and
not the quantity of witnesses that is important.

Indian Penal Code, 1860- Sections 308/34
& 325/34- Perusal of evidence of injured
PW1 Jagdish, it appears that his testimony
is
wholly
reliable
and
truthful-
The
evidence given by PW1 Jagdish and PW2
Jairam
has
been
corroborated
by
documentary evidence- From the perusal
of the injuries received by injured PW1
Jagdish and the x-ray report, it appears
that injuries on his forehead and face are
simple in nature. The only injury received
in the metacarpal phalynx of left forearm
is grievous as there is dislocation of the
aforesaid bone- PW4 has not stated in his
evidence that the injuries received by PW1
Jagdish were fatal or life threatening in
nature- From the evidence available on
record, it is not proved that the accusedappellants
had
attacked
the
injured
Jagdish with the intention of causing such
injury which may result in culpable
homicide not amounting to murder - Thus,
prosecution has failed to prove the charge
u/s 308 r/w 34 I.P.C. From the evidence
on record, the prosecution has proved the
charge u/s 325 r/w 34 I.P.C. against the
accused-appellants, for which they are
liable to be convicted.

Where the medical evidence shows that the
injury is not life threatening then the same
establishes that the intention of the accused
was not to commit culpable homicide not
amounting to murder and the offence would be
one punishable u/s 325 r/w34 IPC instead of
Section 308 r/w 34 IPC.

Code of Criminal Procedure, 1973- Section
357 Cr.P.C. provides power to the Court to
award compensation to victim, which is in
addition
and
not
ancillary
to
other
sentences. While granting just and proper
compensation
Court
ought
to
have
consider capacity of the accused for such
payment as well as relevant factors such
as medical expenses, loss of earning, pain
and sufferings etc.- Considering the facts
and circumstances of the present case as
well as keeping in view the position of law
as mentioned above and considering that
the incident was happened about 33 years
back; the incident was occurred in spur of
the moment, this Court is of the view that
if the sentence awarded is reduced to the
period
already
undergone
and
a
reasonable compensation is awarded to
the victim, the ends of justice would be
served-
Judgment
and
order
dated
21.10.1994 passed by IVth Additional
District
and
Sessions
Judge,
Kanpur
Dehat, in Sessions Trial No. 101 of 1992, is
hereby
modified
to
the
extent
that
accused-appellants, Ram Babu and Ram
Prakash, are convicted u/s 325 I.P.C.
instead of Section 308 r/w 34 I.P.C. as
done by the trial court.

Where the offence was not pre-meditated, there
was no intention to commit murder, injuries
inflicted by the accused were simple and a long
time has elapsed since the commission of the
offence then it would be just and proper to