# Vijai Shankar v. State of U.P

- **Citation:** (2023) 3 ILRA 940
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-21
- **Case number:** Criminal Appeal No. 3811 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijai-shankar-v-state-of-u-p-49882
- **Pages:** 7

## Headnote

Criminal Law- Indian Penal Code-1860Section 304B- Accused persons have set
ablaze the victim by pouring kerosene oil
on her upon non fulfillment of dowry
demand-Conviction
U/s
304B
IPCPostmortem report st.s that the injuries
on the body of the deceased would be the
cause of death and that it was homicidal
death- Dying Declaration has to accepted
as it is proved that the accused have
committed the crime alleged against
them-Accident
occurred
without
premeditation-The deceased was taken to
hospital and the husband has repentedQuantum of sentence is too harsh and
requires
to
be
modified-No
accused
person is incapable of being reformed and
therefore, all measures should be applied
to
give
them
an
opportunity
of
reformation in order to bring them in the
social stream-Impugned judgment and
order modified.

Appeal partly allowed. (E-15)

List of Cases cited:

## Text

940 INDIAN LAW REPORTS ALLAHABAD SERIES
release the accused Prema Devi, if she is
not wanted in any other case.
----------
(2023) 3 ILRA 940
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.02.2023

BEFORE

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

Criminal Appeal No. 3811 of 2011
and
Criminal Appeal No. 3812 of 2011
and
Criminal Appeal No. 2350 of 2011

Vijai Shankar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Arvind Kumar Kushwaha, Ms. Pooja, Sri
Upendra Kumar Rai, Sri R.S. Yadav, Sri Amit
Saxena, Sri Raj Kishore Yadav, Sri S.D. Dwivedi,
Sri Sanjay Kumar Yadav

Counsel for the Respondent:
A.G.A.

Criminal Law- Indian Penal Code-1860Section 304B- Accused persons have set
ablaze the victim by pouring kerosene oil
on her upon non fulfillment of dowry
demand-Conviction
U/s
304B
IPCPostmortem report st.s that the injuries
on the body of the deceased would be the
cause of death and that it was homicidal
death- Dying Declaration has to accepted
as it is proved that the accused have
committed the crime alleged against
them-Accident
occurred
without
premeditation-The deceased was taken to
hospital and the husband has repentedQuantum of sentence is too harsh and
requires
to
be
modified-No
accused
person is incapable of being reformed and
therefore, all measures should be applied
to
give
them
an
opportunity
of
reformation in order to bring them in the
social stream-Impugned judgment and
order modified.

Appeal partly allowed. (E-15)

List of Cases cited:

1. Maniben Vs St. of Guj., 2009 (5) Supreme
700

2. Sikander and another Vs St. of U.P.( Criminal
Appeal No.1030 of 2013) decided on 13.7.2022

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

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

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

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

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

8. Mohd. Giasuddin Vs St. of A.P., [AIR 1977 SC
1926]

9. Deo Narain Mandal Vs St. of U.P. [(2004) 7
SCC 257]

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

11. Jameel Vs St. of U.P. [(2010) 12 SCC 532]

12. Guru Basavraj Vs St. of Karn., [(2012) 8 SCC
734]

13. Sumer Singh Vs Surajbhan Singh, [(2014) 7
SCC 323]

14. St. of Punjab Vs Bawa Singh, [(2015) 3 SCC
441]

15. Raj Bala Vs St. of Har., [(2016) 1 SCC 463]

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J. & Hon'ble Ajit Singh, J.)
3 All. Vijai Shankar Vs. State of U.P.
941

1.

Heard
Sri
Arvind
Kumar
Kushwaha, learned Advocate assisted by
Ms. Pooj and Sri Upendra Kumar Rai,
learned Advocates for the appellant and
learned A.G.A. for the State.

2. A short prelude about the period of
incarceration of accused-appellants and the
death of the deceased is necessary.
Accused, Vijai Shankar and Smt. Meena
Devi, are in jail for more than 12 years and
Accused-Chandrawati
was
also
incarcerated before she was released on
bail by this Court. The deceased died after
a period of 01 month and 07 days. In her
Dying Declaration the deceased stated that
her mother-in-law and father-in-law have
brought her to the hospital and therefore,
mother-in-law was granted bail by this
Court. The incident occurred because of
harassment to her. The court below
acquitted the accused under Section 498A
but convicted them under Section 304B for
life imprisonment.

3. All the three appeals arise out of
same incident and challenge the judgment
and order dated 14.04.2011 passed by
Additional Sessions Judge, New Court
No.2, Jaunpur in Sessions Trial No.188 of
2010 (State vs. Vijai Shanker & Others)
whereby the learned Additional Sessions
Judge has convicted accused-appellants
under Section 304B of Indian Penal Code,
1860 (hereinafter referred to as 'IPC') and
sentenced them to undergo imprisonment
for life.

4. Brief facts as culled out from the
record are that on the basis of complaint of
the father of the deceased a First
Information Report was lodged under
Section 498A, 307 of IPC and Section 3/4
of Dowry Prohibition Act, at P.S. Sarai
Khwaja, Jaunpur against the accused with
an allegation that accused-persons have set
ablaze the daughter of informant by
pouring kerosene oil on her. She sustained
burn injuries and died during the course of
treatment. After her death Section 304 B of
was added by the investigating agency. The
investigating
officer
recorded
the
statements of all the witnesses and
submitted the charge-sheet to the learned
Magistrate.
The
learned
Magistrate
summoned the accused and committed
them to Court of Sessions as prima facie
the case was triable by Sessions Court.

5. On being summoned, the accusedappellant pleaded not guilty and wanted to
be tried. The Trial started and the
prosecution examined 15 witnesses who are
as follows:

1
Savitri Devi
PW1
2
Rajesh
PW2
3
Neetu Devi
PW3
4
Sunil Yadav
PW4
5
Meera
PW5
6
Rajesh Chandra
Srivastava
PW6
7
Prakash Kumar
PW7
8
Ramesh Kumar PW8
9
Shiv
Pratap
Singh
PW9
10
Dr. Satish Singh PW10
11
Dr.
Prabha
Shankar
Chaturvedi
PW11
12
Dr. R.K. Jaiswal PW12
13
Vinod
Kumar
Singh
PW13
14
Santosh Kumar PW14
942 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh
15
Jyoti
Prasad
Sonkar
P.W.15

6. In support of ocular version
following documents were filed and
proved:

1
F.I.R.
Ex.Ka.17
2
Written Report
 Ex.Ka.1
3
Dying Declaration Ex.
Ka.
10/16/11
4
Injury Report
Ex.Ka.
12
5
Postmortem
Report
Ex.Ka.9
6
Charge-sheet
Ex. Ka.8
7
Site Plan
Ex.Ka.14

7. At the end of the trial, after
recording the statements 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
accused-appellants
as
mentioned above.

8. It is submitted by learned counsel
for the appellants that the incident occurred
at the spur of moment which arose due to
sudden quarrel and the accused had not
premeditated to do away with the deceased.

9. In alternative, it is submitted that at
the most, the death can be said to be
homicidal death not amounting to murder
and punishable under Section 304 II or
Section 304 I of I.P.C. If the Court decides
that the accused is guilty, then the accused
may be granted fixed term punishment of
incarceration. In support of his arguments
learned counsel for the appellant has relied
on the decision passed in Maniben vs.
State of Gujarat, 2009 (5) Supreme 700
& decision of this Court in Criminal
Appeal No.1030 of 2013 (Sikander and
another vs. State of U.P.) decided on
13.7.2022

10. Per contra, learned A.G.A. for the
State submits that there was no grave and
sudden provocation from the side of the
deceased
and
that
looking
to
the
gruesomeness of the offence and the
evidence of prosecution witnesses, this
Court should not show any leniency in the
matter. It is further submitted by learned
A.G.A. that ingredients of Section 304B of
IPC are rightly held to be made out by the
learned Sessions Judge who has applied the
law to the facts in case.

11. We have considered the evidence
of witnesses and the Postmortem report
which states that the injuries on the body of
the deceased would be the cause of death
and that it was homicidal death, we concur
with the finding of the Court below.

12. The Dying Declaration has to
accepted as it is proved and we concur with
the Court below in accepting it which
shows that the accused have committed the
crime alleged against them.

13. Even if we go by the dying
declaration, it is clear that the accident
occurred without premeditation. The fact
that the deceased was taken to hospital and
the husband has repented. The deceased
died after few days of incident as a result of
septicemia and hence the gravity of offence
will have to be looked into. Trial Court
itself has held that there was no demand of
3 All. Vijai Shankar Vs. State of U.P.
943
dowry and have exonerated the accused for
the charge under Section 498A of IPC.

14. Even if we consider the offence
under Section 304B of IPC and concur with
the learned Sessions Judge, it is to be seen
whether the quantum of sentence is too
harsh and requires to be modified. In this
regard, we have to analyse the theory of
punishment prevailing in India.

15. 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
along with her daughter came to fetch
944 INDIAN LAW REPORTS ALLAHABAD SERIES
water and when she was returning, the
appellant came and threw a burning tonsil
on the clothes of the deceased. Since the
deceased was wearing a terylene cloth at
that relevant point of time, it aggravated
the fire which caused the burn injuries.

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

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

17. The conviction of the appellants -
original accused under Section 302 of
Indian Penal Code vide judgment and
order dated 19.12.2007 arising from
Sessions Case No. 149 of 2007 passed by
the Additional Sessions Judge, Fast Track
Court No. 6, Ahmedabad is converted to
conviction under Section 304 (Part I) of
Indian
Penal
Code.
However,
the
conviction of the appellants - original
accused under section 452 of Indian Penal
Code is upheld. The appellants - original
accused are 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."

16. 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
3 All. Vijai Shankar Vs. State of U.P.
945
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 as the

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

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

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

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

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

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

22. The accused-appellants, Vijay
Shanker & Meena Devi are reported to have
undergone 12 years of sentence and therefore,
we hold that the period undergone will be
sufficient punishment for them. As far as
accused-appellant, Chandrawati (mother-inlaw of deceased) is concerned, it has come in
the Dying Declaration itself that she along
with others has taken the deceased to the
hospital and looking to her age, the period
undergone by her would be sufficient
punishment for her. The accused-appellants be
set free forthwith, if not wanted in any other
case.

23. In view of the above, the appeal is
partly allowed. Judgment and order passed by
the learned Sessions Judge shall stand
modified to the aforesaid extent. Record be
sent back to the Trial Court forthwith.
----------
(2023) 3 ILRA 946
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.03.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAJIV JOSHI, J.

Criminal Appeal No. 4587 of 2018
with
Criminal Appeal No. 4646 of 2018

Satish Nagar ...Appellant
Versus
State of U.P. ...Respondent