# Vikram Prasad v. State of U.P

- **Citation:** (2022) 8 ILRA 1035
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-27
- **Case number:** Criminal Appeal No. 289 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikram-prasad-v-state-of-u-p-48701
- **Pages:** 9

## Headnote

1036 INDIAN LAW REPORTS ALLAHABAD SERIES
Govt. Advocate

Criminal Law- Indian Evidence Act, 1872-
Sections 154 & 32- 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 hostile witnesses can be
relied upon to the extent it supports the
prosecution
case
-
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.

Settled law that not only the relevant parts of
evidence of a hostile witness which are
admissible in law can be used by prosecution or
the defence but also

Criminal Law - Indian Evidence Act, 1872-
Section 32- Dying Declaration- 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-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- 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.

The court can record conviction of the accused
solely upon the dying declaration and without
seeking corroboration where the same has been
recorded in a legal and proper manner, specially
by a magistrate who cannot have any animus
with the accused, although the dying declaration
has to be treated with scrutiny and caution as
the defence cannot avail the opportunity of
cross examining the maker of the dying
declaration.

Criminal Law - Indian Penal Code, 1860
- Section 302 of I.P.C. or Section 304
Part-I or Part-II- Fire was put out by the
appellant himself and deceased was
admitted to the hospital in injured
condition by the appellant and his family
members,
it
is
transpired
that
appellant's had no intention to do away
with the deceased. Deceased died after
four days of the occurrence and during
this period, she constantly remained
admitted in Medical College and was
under treatment. Doctor conducted the
post-mortem, has also mentioned the
cause of death as "Shock"- The offence
would be punishable under Section 304
(Part-I) IPC because the burn injuries
were
caused
to
the
deceased
by
appellant with the intention to cause
such bodily injuries as were likely to
cause death and, therefore, the instant
case falls under the Exceptions 4 of
Section 300 IPC.

Where death is caused without premeditation
and intention but the bodily injuries were likely
to cause death then the offence would be
punishable under section 304 (Part - I) of the
IPC. Para (15, 21, 22, 23, 25, 27, 32, 33, 34,
35)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case Law relied upon:-

## Text

8 All. Vikram Prasad Vs. State of U.P.
1035
It is an explanation offered to a person
affected by one's action that no offence was
intended. Further, held 'apology' should be
unquestionable in sincerity and tempered
with sense of genuine remorse and
repentance, and not a calculated strategy to
avoid punishment. The apology tendered
by the contemnor is a matter of last resort,
therefore, it cannot be accepted.

8. It has been noted by the Court
in the order dated 04.08.2022, that the
contemnor, though, has served a notice
under Section 41-A Cr.P.C. on the accused,
but, to bypass the mandate of the Supreme
Court,
he
willfully
and
deliberately
recorded in the GD that accused declined to
accept the terms and condition of the
notice. Further, communal colour was
attempted to be given by the contemnor
taking advantage that the accused belongs
to a muslim community, by stating that
there was an apprehension of communal
riots. It is noted in the order that no such
apprehension did exist as admittedly, the
FIR was not lodged at the police station
until intervention by the higher authorities.
There is no entry in the GD that there was
any such apprehension of communal flare
up in the event of the accused not being
arrested. The misleading entry in the GD
was made willfully and deliberately with
sole purpose to bypass the mandate in
Arnesh Kumar (supra), in order to arrest
the accused. The contemnor, in the
circumstances, has circumvent the mandate
which was binding upon him.

9. In the event of the Court taking
a sympathetic view, it would not sub-serve
public interest and the administration of
justice. In order to secure public respect
and confidence in the judicial process, the
Court
is
constrained
in
awarding
punishment to the contemnor, Investigating
Officer, Shri Chandan Kumar, Incharge of
Police
Station,
Kanth,
District
Shahjahanpur, for committing contempt.

10. In the circumstances, Shri
Chandan
Kumar,
Incharge
of Police
Station, Kanth, District Shahjahanpur, is
sentenced to undergo simple imprisonment
for 14 days and fine is imposed at Rs.
1000/-. On default, the contemnor shall
undergo
one
week
further
simple
imprisonment.

11. The sentence shall be kept in
abeyance for 60 days from today as the
learned counsel for the contemnor pleads
that the contemnor would like to prefer an
appeal under Section 19 of Contempt of
Court Act, 1971.

12. In view thereof, the contempt
petition and pending application, if any,
stands disposed of.
----------
(2022) 8 ILRA 1035
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.07.2022

BEFORE

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

Criminal Appeal No. 289 of 2015

Vikram Prasad ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Pradeep Kumar VI, Sri Bhaju Ram
Prasad Sharma, Sri Dinesh Kumar Pandey,
Sri Manu Sharma, Sri Rajrshi Gupta

Counsel for the Opposite Party:
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
Govt. Advocate

Criminal Law- Indian Evidence Act, 1872-
Sections 154 & 32- 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 hostile witnesses can be
relied upon to the extent it supports the
prosecution
case
-
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.

Settled law that not only the relevant parts of
evidence of a hostile witness which are
admissible in law can be used by prosecution or
the defence but also

Criminal Law - Indian Evidence Act, 1872-
Section 32- Dying Declaration- 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-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- 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.

The court can record conviction of the accused
solely upon the dying declaration and without
seeking corroboration where the same has been
recorded in a legal and proper manner, specially
by a magistrate who cannot have any animus
with the accused, although the dying declaration
has to be treated with scrutiny and caution as
the defence cannot avail the opportunity of
cross examining the maker of the dying
declaration.

Criminal Law - Indian Penal Code, 1860
- Section 302 of I.P.C. or Section 304
Part-I or Part-II- Fire was put out by the
appellant himself and deceased was
admitted to the hospital in injured
condition by the appellant and his family
members,
it
is
transpired
that
appellant's had no intention to do away
with the deceased. Deceased died after
four days of the occurrence and during
this period, she constantly remained
admitted in Medical College and was
under treatment. Doctor conducted the
post-mortem, has also mentioned the
cause of death as "Shock"- The offence
would be punishable under Section 304
(Part-I) IPC because the burn injuries
were
caused
to
the
deceased
by
appellant with the intention to cause
such bodily injuries as were likely to
cause death and, therefore, the instant
case falls under the Exceptions 4 of
Section 300 IPC.

Where death is caused without premeditation
and intention but the bodily injuries were likely
to cause death then the offence would be
punishable under section 304 (Part - I) of the
IPC. Para (15, 21, 22, 23, 25, 27, 32, 33, 34,
35)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case Law 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
8 All. Vikram Prasad Vs. State of U.P.
1037
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. Tukaram & ors. Vs St. of Maha., (2011) 4 SCC
250

8. B.N. Kavatakar & anr. Vs St. of Kar., 1994
SUPP (1) SCC 304
(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred
against the judgment and order dated
17.12.2014, passed by learned Additional
Sessions Judge, Court No.4, District
Maharajganj, in Session Trail No. 90 of
2006 (State of UP vs. Vikram Prasad and
Others), arising out of Case Crime No.336
of 2006, under Section 302 of Indian Penal
Code (in short "IPC"), Police Station-
Shyamdeorva,
District
Maharajganj
whereby the appellant is convicted and
sentenced for the offence under Section 302
IPC for life imprisonment with a fine of
Rs.20,000/- and in default of payment of
fine, further imprisonment for one year.

2. The brief facts of the case are that a
written report was filed by informant
Jhinak at Police Station Shyamdeorva,
Maharajganj, District Maharajganj with the
averments that complainant's daughter
Shanti Devi was married to Vikram R/o
Village
Belrai,
Police
Station
Shyamdeorva, District Maharajganj before
one and half year. For want of Rs.10,000/-,
in the night of 20.03.2006 the accused
Vikram and his mother-Simirata Devi set
his daughter ablaze and after getting her
admitted
into
the
Medical
College,
Gorakhpur they (the accused) absconded
from there. On getting the information from
the villagers on phone, the complainant and
others reached Medical College, Gorakhpur
where on 24.03.2006 at about 6:00 PM
Shanti Devi passed away during the course
of treatment.

3. On the basis of the aforesaid
written report, a case crime no.336 of 2006
was
registered
against
the
aforesaid
accused persons under Sections 498-A and
304-B
I.P.C.
During
the
course
of
investigation, I.O. has visited the spot and
prepared the site plan. I.O. has also
collected the piece of cot, piece of burn
bedding, container of kerosene oil along
with matchstick etc. from the spot and
prepared the recovery memo. On the next
day of occurrence, a dying declaration of
the deceased was recorded by Naib
Tehsildar Sunil kumar patel. The injured
Shanti Devi died after four days of the
occurrence
i.e.
24.03.2006
during
treatment. Post-mortem was conducted, in
which cause of death was mentioned as
shock. Before post-mortem inquest report
was also prepared. I.O. recorded the
statement
of
the
witnesses.
After
completion of investigation, a charge sheet
under Section 498-A, 304-B I.P.C. and
Section 3/4 of Dowry Prohibition Act, 1961
was submitted against the accused persons
namely Vikram and Semirata Devi.

4. Learned Magistrate committed the
case to the sessions court as the case was
triable by sessions court.

5. Learned trial judge framed the
charges against both the accused persons
under Sections 498-A, 304-B I.P.C. and
Section 3/4 of Dowry Prohibition Act,
1961.

6. To bring home the charges, the
prosecution
examined
following
witnesses:
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
1.
Jhinak
P.W.-1
2.
Smt. Devi
P.W.-2
3.
Manoj Kumar
P.W.-3
4.
Smt. Chandrawati Devi
P.W.-4
5.
Ram Naresh Prasad
P.W.-5
6.
Ram Sawar
P.W.-6
7.
Anil Kumar
P.W.-7
8.
Devi Lal
P.W.-8
9.
Leelawati
P.W.-9
10.
Shiv Lal Prasad
P.W.-10
11.
Prakash
P.W.-11
12.
Ram Rekha Yadav
P.W.-12
13.
Rekha Devi
P.W.-13
14.
Smt. Anarkali Devi
P.W.-14
15.
Dr. Santosh Kumar
P.W.-15
16.
Nagendra Bahadur Singh
P.W.-16
17.
Sanjay Kumar
P.W.-17
18.
Satish Kumar Srivastava
P.W.-18
19.
Sunil Kumar Patel
P.W.-19
20.
Dr. A.K. Srivastava
P.W.-20

7. In support of oral evidence,
prosecution
submitted
following
documentary evidence, which was proved
by leading oral evidence:

1.
FIR
Ex.ka-3
2.
Written report
Ex.ka-1
3.
Dying-declaration
Ex.ka-14
4.
Recovery memo
Ex.ka-7
5.
Post mortem report
Ex.ka-2
6.
Panchayatnama
Ex.ka-9
7.
Charge sheet
Ex.ka-6
8.
Site plan with index
Ex.ka-5

8. It is borne out from the record
and dying declaration that deceased was
hospitalised after the occurrence by
accused
persons
themselves.
The
deceased died after 4 days of the
occurrence and during the course of
treatment.

9. Heard Mr. Rajrshi Gupta, learned
counsel for the appellant and learned
AGA appearing on behalf of the State.
Perused the record and paper book.

10.
Learned
counsel
for
the
appellant has submitted that accused
persons have been falsely implicated in
this case. It is further submitted by
learned counsel that all the witnesses
have turned hostile. PW-1, Jhinak is
complainant and father of the deceased.
He has not supported the prosecution case
and was declared hostile by prosecution.
PW-2, Smt. Devi is mother of the
deceased. She has also denied the demand
of any amount or any sort of torturing to
her daughter by the accused persons.
Apart
from
P.W.-1
and
P.W.-2,
prosecution has examined 12 other
witness of fact i.e. P.W.-3 to P.W.-14, who
are relative of the deceased. All these
witnesses
have
not
supported
the
prosecution version and on the basis of
analysis of their evidence, no guilt
against
the
accused
appellant
is
established and proved.

11.

Learned
counsel
for
the
appellant next submitted that dyingdeclaration of the deceased was recorded
when she was surviving, but this dyingdeclaration has no corroboration from
any
prosecution
evidence.
All
the
witnesses of fact have turned hostile and
nobody has supported the version, which
is mentioned in dying-declaration. It is
submitted
that
learned
trial
court
committed grave error in convicting the
accused on the sole basis of dyingdeclaration
only
when
it
was
not
corroborated at all.
8 All. Vikram Prasad Vs. State of U.P.
1039

12. Learned counsel for the appellant
has submitted that it is the husband-accused
who got the deceased admitted to Medical
College,
(Hospital)
Gorakhpur.
The
deceased got burn injuries accidently
because a small lamp fell on her while she
was sleeping. Learned counsel for the
appellant has also submitted that in dying
declaration itself it is stated by the deceased
that accused put out the fire, if the offence
was committed by the accused-appellant,
there was no reason for him to put out the
fire.

13. No other point or argument was
raised by the learned counsel for the
appellants and has confined his arguments
to above points only.

14. 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 is also submitted that
the deceased has specifically stated in her
dying declaration that accused set her
ablazed. 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.

15. First of all learned counsel for the
appellants has raised the issue relating to
the non support of the witness to
prosecution story, that 14 witnesses of the
fact were examined before learned trial
court. All these witnesses have turned
hostile/namely
not
supported
the
prosecution story, 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 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.

16. 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.

17. 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.

18. 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
1040 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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

20. As far as the dying-declaration is
concerned, it was recorded by Sunil Kumar
Patel, Nayab Tehsildar, who was examined
as PW-19. Dying-declaration was recorded
by PW-19 after obtaining the certificate of
mental-fitness from doctor in the hospital.
After completion of dying-declaration also
the said doctor has given certificate that
during the course of statement, the victim
remained conscious.

21. Learned counsel for the appellants
has argued that dying declaration is
doubtful and not corroborated by witnesses
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.

22. 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.

23. Deceased survived for 4 days after
the
incident
took
place.
Her
dying
declaration was recorded by Sunil Kumar
Patel, Nayab Tehsildar after obtaining the
certificate of medical fitness from the
concerned doctor. This dying declaration
was proved by PW-19, Sunil Kumar Patel,
Nayab Tehshildar. These witnesses have
absolutely independent witnesses. In the
wake of aforesaid judgments of Lakhan
(supra),
dying declaration
cannot
be
disbelieved, if it inspires confidence. On
8 All. Vikram Prasad Vs. State of U.P.
1041
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.

24. 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.

25. From the above precedents, 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.

26. In dying deceleration of the
deceased, it is also relevant to note that
deceased died after three days of recording
it. It means that she remains alive for three
days after making dying declaration,
therefore, truthfulness of dying declaration
can further be evaluated from the fact that
she survived for three days. After making it
from which it can reasonably be that
inferred she was in a fit mental condition to
make the statement at the relevant time.

27. In such a situation, 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.

28. 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
1042 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 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-14 and convicting
the accused-appellants on the basis of it.

29. 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 appellant.

30. However, the question which falls for
our consideration is whether, on reappraisal of
the peculiar facts and circumstances of the case,
the conviction of the appellant under Section
302 of I.P.C. of the Indian Penal Code should be
upheld or the conviction deserves to be
converted under Section 304 Part-I or Part-II of
the Indian Penal Code. It would be relevant to
refer Section 299 of the Indian Penal Code,
which read as under:

"299. Culpable homicide: Whoever
causes death by doing an act with the intention
of causing death, or with the intention of
causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by
such act to cause death, commits the offence of
culpable homicide."

31. 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.C. 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 if 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.

32. 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.

33. In the case in hand, after perusal
of dying declaration of the deceased it is
8 All. Ajeet Shukla & Ors. Vs. State of U.P. & Ors.
1043
not revealed as to why the appellant had
poured the kerosene oil on the deceased
and set her ablazed. Moreover, it is stated
by the deceased in dying declaration that
fire was also put out by the appellant
himself, hence, there is no dispute to the
fact that fire was put out by the appellant
and as per the dying declaration, it is also
not in dispute that appellant and his family
members had taken the deceased to the
Medical College, Gorakhpur for treatment
and she was admitted by them.

34. Keeping in view of the aforesaid
fact that fire was put out by the appellant
himself and deceased was admitted to the
hospital in injured condition by the
appellant and his family members, it is
transpired that appellant's had no intention
to do away with the deceased. Deceased
died after four days of the occurrence and
during this period, she constantly remained
admitted in Medical College and was under
treatment. Doctor conducted the postmortem, has also mentioned the cause of
death as "Shock".

35. On overall scrutiny of the facts
and circumstances of the case coupled
with the opinion of the medical officer
and considering the principle laid down
by the Hon'ble Apex Court in the case of
Tuka Ram and others vs. State of
Maharashtra [(2011) 4 SCC 250] and in
the case of BN Kavadakar and another
vs. State of Karnataka [1994 Supp (1)
304], we are of the considered opinion
that the offence would be punishable
under Section 304 (Part-I) IPC because
the burn injuries were caused to the
deceased by appellant with the intention
to cause such bodily injuries as were
likely to cause death and, therefore, the
instant case falls under the Exceptions 4
of Section 300 IPC.

36. 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
ten
years
of
incarceration with remissions and fine of
Rs. 10,000/-. In case of default of payment
of fine, the appellant shall further undergo
simple imprisonment for one year. This
default sentence would commence on
completion of ten years of incarceration for
the main sentence of ten years with
remission.

37. Accordingly, the appeal is partly
allowed, as modified above.

38. Record be sent to trial court
immediately.
----------
(2022) 8 ILRA 1043
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.08.2022

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Application U/s 482 No. 5776 of 2017

Ajeet Shukla & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Nadeem Murtaza

Counsel for the Opposite Parties:
Govt. Advocate, Ajit Shukla, Amrendra Nath
Tripathi

Criminal
Law
-
Code
of
Criminal
Procedure,1973 -Section 197 - Impugned
revisional order-summoning order-mandatory