# Vinay Kumar Pandey (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 1412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-07
- **Case number:** Criminal Appeal No. 3815 of 2014
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-pandey-in-jail-v-state-of-u-p-45211
- **Pages:** 8

## Headnote

A. Code of Criminal Procedure, 1973 -
Section 374(2) & Indian Penal Code,
1860 - Sections 302 -challenge to-dying
declaration worthiness - two certificate
regarding mental fitness of deceased
issued by the doctor - the deceased
remained alive for a week-husband did
not visit to enquire about her welfareaccused convicted u/s 304 Part II instead
u/s 302 in the light of the dying
declaration of the deceased. (Para 20 & 21)
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
Accused conduct in not saving his wife after
the incident nor, had taken her to hospital soon
after the incident and in fact the Jeth and
Chachiya Sasur rescued the deceased and
rushed her to hospital coupled with the fact
that the deceased remained alive for about a
week after the incident and yet the appellant
did not even visit to enquire about her welfare
and condition and are also of the opinion that
ends of justice would be served if appellant is
convicted and sentenced to ten years rigorous
imprisonment under Section 304 Part II IPC.
(Para 20)

Criminal Appeal partly allowed. (E-6)

List of cases cited: -

## Text

1 All. Bijendra Singh & Anr. Vs. State of U.P.
1413
transferred his 11-12 bighas of land to the
deceased Smt. Ram Devi. The deceased
was trying to get her name mutated on the
said land, which was objected by the
appellant Bijendra. However, when the
deceased did not listen to the objections of
the appellant and continued to pursue her
efforts in that regard the appellant Bijendra
murdered her. We find from the evidence
on record that the deceased Ram Devi was
issue-less, therefore, after her death
appellant Bijendra alone would inherit
entire properties of his father, and that
being so, there was no reason for the
appellant Bijendra to have committed
murder of his step mother, who, according
to evidence on record, had brought up the
appellant after the appellant's mother had
died when the appellant was only 7-8
years old. Even other-wise the prosecution
story that the father of the appellant
Bijendra had transferred his 11-12 bighas
of land to the deceased and the deceased
was making endeavors in the consolidation
proceedings to get her name mutated on
that property does not merit acceptance as
the prosecution has not proved by
documentary evidence the fact of transfer
of said land in favour of the deceased by
her husband Ramchand and the fact that
the deceased had initiated any mutation
proceedings for recording of her name on
the said transferred properties. In the
circumstances we are unable to accept the
version of motive as set up by the
prosecution. On the other hand there may
be a reason or motive for the PW-1 to
implicate the two appellants in this case, as
she was aware that if the appellants are
convicted she would be a beneficiary of
the properties of the father of the appellant
Bijendra. It was for this reason that the
defence has given a suggestion in the trial
that it is not the appellants but the
informant had murdered the deceased.

19. Hence, on the cumulative evaluation
of the evidence on record and testing the
prosecution evidence on the anvil of
probabilities we are of the view that the
prosecution has failed to establish the guilt of
the appellants beyond all reasonable doubts
and as such the appellants are entitled to get the
benefit of doubt. We, therefore, allow the
appeal and set aside the judgement and order
of conviction and sentence of the appellants
and acquit them of the charges. The appellants
are on bail, their bail bonds are cancelled and
sureties are discharged.
----------
(2020)1ILR 1412

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.11.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Criminal Appeal No. 3815 of 2014

Vinay Kumar Pandey ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.K. Yadav, Sri Rajeev Lochan Shukla,
Sri Santosh Kumar Singh Paliwal, Sri Sushil
Kumar Dwivedi

Counsel for the Respondent:
A.G.A.

A. Code of Criminal Procedure, 1973 -
Section 374(2) & Indian Penal Code,
1860 - Sections 302 -challenge to-dying
declaration worthiness - two certificate
regarding mental fitness of deceased
issued by the doctor - the deceased
remained alive for a week-husband did
not visit to enquire about her welfareaccused convicted u/s 304 Part II instead
u/s 302 in the light of the dying
declaration of the deceased. (Para 20 & 21)
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
Accused conduct in not saving his wife after
the incident nor, had taken her to hospital soon
after the incident and in fact the Jeth and
Chachiya Sasur rescued the deceased and
rushed her to hospital coupled with the fact
that the deceased remained alive for about a
week after the incident and yet the appellant
did not even visit to enquire about her welfare
and condition and are also of the opinion that
ends of justice would be served if appellant is
convicted and sentenced to ten years rigorous
imprisonment under Section 304 Part II IPC.
(Para 20)

Criminal Appeal partly allowed. (E-6)

List of cases cited: -

1. Kalabai Vs. St. of M.P. 2019 reported in 2019
LawSuit (SC)

2. Govind Singh Vs. St.of Chhattisgarh 1139
LawSuit (SC) 1129

(Delivered by Hon'ble Ramesh Sinha, J.)

1. The appellant being aggrieved by
the judgement and order dated 20.9.2014
passed by the Addl. Sessions Judge, Court
No.2, Azamgarh passed in S.T. No.535 of
2012 State Vs. Vinay Kumar Pandey,
district Azamgarh has preferred the
present appeal by which the trial court has
convicted
and
sentenced
him
under
Section 302 IPC for imprisonment of life
and further fine of Rs.10,000/- and in
default of payment of fine, he has been
ordered
to
undergo
three
months
additional imprisonment.

2. The informant Jagdish Prasad
Pandey submitted a written report on
8.7.2012 to the Station Officer of Police
Station Ahraula, district Azamgarh for
lodging a FIR against the accused Vinay
Kumar Pandey (husband of the deceased),
Sriram
Pandey
(father-in-law),
Smt.
Gayatri w/o Sriram Pandey (mother-inlaw), Muniya, d/o Sriram Pandey (Nanad),
Dileep Kumar S/o Sriram Pandey (devar
of the deceased), elder brother-in-law of
Vinay Kumar Pandey narrating that the
informant had married his daughter
Amrawati Devi according to Hindu rites
and traditions five years ago to Vinay
Kumar Pandey and he has given dowry in
the marriage according to his means. After
the marriage, the in-laws of the deceased
namely Sriram Pandey, mother-in-law
Smt. Gayatri, husband Vinay Kumar
Pandey, Nanad Muniya, Devar Dileep
Kumar and elder brother-in-law of Vinay
Kumar Pandey namely Gaya Prasad used
to cruel treat the deceased for want of
dowry. When the informant visited the
house of the in-laws of his daugher , she
told him about the said harassment and
torture made to her by her in-laws on
which he pacified his daughter that every
thing would be fine but after some days
when the harassment and torture increased
then informant brought his daughter to his
house. After lapse of some days due to
intervention of relatives, he sent his
daughter to the in-laws house but after one
or two days again her in-laws started
harassing her. On 1.7.2012 at about 11 in
the night he received an information from
an unknown call that his daughter has been
burnt to death by pouring kerosene oil for
want of dowry by the aforesaid accused
persons. On receiving the said information
on phone, the informant along with his son
Sachchidanand, wife Asha Devi and father
Ram Keerat and also some persons of his
village rushed immediately on a vehicle at
her in-laws house then he was informed by
the villagers that his daughter has been
burnt and has been taken to the Azamgarh
in a critical condition. Thereafter the
informant along with other persons rushed
to Azamgarh by vehicle and came to know
that his daughter has been admitted in
1 All. Vinay Kumar Pandey Vs. State of U.P.
1415
Vidya Hospital, Sidhari. When they
reached the said hospital, they did not find
any person of the family of his daughter's
in-laws. The informant was getting her
daughter Amrawati medically treated and
when her condition deteriorated then on
6.7.2012 in the evening she was referred to
Sadar Hospital, Azamgarh by the doctor.
On reaching the gate of Sadar Hospital, his
daughter Amrawati succumbed to her
injuries. He gave information about the
incident at Sadar Kotwali, Azamgarh
where after the inquest procedings, postmortem was conducted on the body of the
deceased. After the post-mortem, the deadbody of the deceased was handed over to
him. Thereafter he performed her last rites.
After committing the said incident, none
of the family member of Vinay Kumar
Pandey had come to see his daughter. The
daughter of the informant was burnt to
death due to want of dowry, he gave the
said written report to the concerned police
station for taking necessary action. As per
postmortem report following injuries were
found on the body of the deceased:-

"About 55-60% burn injuries on
the both lower extremities except lower
part of both leg and foot and lower 2/3rd
both of trunk, most of the part of abdomen
both breast and lower 2/3rd of left upper
extremities pealing of skin present all over
the burnt area and wound woos white, pus
present at places, singeing of hairs
present.

As per postmortem report, cause
of death was septicemia shock due to
antemortem burn".

3. On the basis of the written report
lodged by Jagdish Prasad Pandey, an FIR
was registered against the aforesaid
accused persons namely Vinay Kumar
Pandey, Sriram Pandey, Smt. Gayatri,
Muniya, Dileep Kumar and Gaya Prasad
which was registered as case crime no.273
of 2012 u/s 498-A, 304-B IPC and 3⁄4
Dowry Prohibition Act on 8.7.2012 at
19.30 hours. The FIR was endorsed in the
G.D No.16.

4. The Investigating Officer carried on
the investigation of the case and made a spot
inspection about the place of occurrence and
recorded the statement of the witnesses u/s 161
Cr.P.C. He prepared the site-plan Ext.Ka-9 and
after investigation of the case, he submitted
charge sheet against the accused Vinay Kumar
Pandey u/s 498-A, 304-B IPC and 3⁄4 Dowry
Prohibition Act which was marked as Ext.Ka12.

5. The case was committed to the
Court of Sessions and the trial court
framed charges against the accusedappellant Vinay Kumar Pandey 498-A,
304-B IPC and 3⁄4 Dowry Prohibition Act
on 19.1.2013 and further on 22.3.2013 an
alternative charge under Section 302 IPC
was framed against the appellant.

6. The accused denied the charge and
claimed his trial. The dying-declaration of
the deceased was recorded by the Nayab
Tehsildar Ramashankar Pathak (P.W.7)
under the orders of the S.D.M., Azamgarh
which has been proved as Ext.Ka-2.

7. The prosecution in support of it's
case has examined P.W.1 Asha Devi,
P.W.2 Jagdish Prasad, P.W.3 Heera Lal,
P.W.4 Ram Lal Pandey, P.W.5 Ashok
Kumar Pandey, P.W.6 Awadhesh, P.W.7
Nayab Tehsildar Ramashankar Pathak
(retired), P.W.8 Dr. Amod Kumar, P.W.9
Satyanarayan Chauhan Nayab Tehsildar.

8. The accused have admitted the
prosecution documents.
1416 INDIAN LAW REPORTS ALLAHABAD SERIES

9. The statement of the accused was
recorded u/s 313 Cr.P.C. He denied the
prosecution case and also denied the
allegation made in dying-declaration of the
deceased against him. He stated that he
was not present at the time of the incident
and reached the hospital on receiving the
information. He has donated the blood to
the deceased and also performed her last
rites.

10. Heard Sri Sushil Kumar
Dwivedi, learned counsel for the appellant
and Sri Amrit Raj Chaurasia, learned AGA
for the State and perused the record.

11. Learned counsel for the appellant
has vehemently argued that all the
prosecution
witnesses
including
the
informant i.e. P.W.1 to P.W.6 who are
family members of the deceased and other
persons of the village have admitted the
factum of the marriage with the deceased
but they have denied the prosecution case
against the appellant who have stated that
the deceased was never tortured by the
appellant for want of dowry and on the
other hand the relationship between the
two was cordial. He submited that so far as
dying-declaration of the deceased is
concerned, the said dying-declaration is
unworthy to be believed as P.W.7 namely
Ramashankar Pathak though has recorded
the dying-declaration of the deceased on
2.7.2012 at 2.10 P.M under the orders of
the S.D.M, Azamgarh but no orders of the
S.D.M has been produced before the trial
court which may show that he had visited
the
hospital
for
recording
dyingdeclaration of the deceased Amrawati. He
further submitted that the doctor Vivek
Prakash who has given the fitness
certificate that the deceased was fully
conscious to give her statement on
2.7.2012 at 2.10 p.m and again when her
statement was completed at 2.30 p.m. on
the same day she remained conscious
while giving the statement at Vidya
Hospital, Azamgarh, the said doctor was
not produced to prove the certificate of
fitness. Hence the dying-declaration of the
deceased wherein allegation has been
made against the appellant for throwing
burning lantern (Dibhari) in anger by the
appellant on the deceased should not be
relied upon.

12. He further submitted that even if
the dying-declaration of the deceased is
believed by this Court, then the conviction
and sentence of the appellant under
Section 302 IPC for life imprisonment by
the trial court is against the evidence on
record and the case would not travel
beyond Section 304 Part-II IPC and the
appellant who has already served out the
sentence of seven years of imprisonment
may be released and his conviction under
Section 302 IPC by the trial court be setaside. In support of his arguments, he has
placed reliance on the judgement of the
Apex Court reported in 2019 LawSuit
(SC) 1139 Kalabai Vs. State of M.P.
Paragraph No.16 and 17 of the said
judgement is quotted herebelow:-

[16] Learned counsel for the
appellant has placed reliance on the
judgement of this Court in Hari Shankar
(supra). In the above case the appellant
had also picked up a burning kerosene
wick-stove and threw it on the deceased.
Kerosene from stove spilled over the
clothes they caught the fire. The deceased
in the said case also died as a result of the
burns received by him.This Court held that
since the appellant had thrown a burning
stove on the deceased, he would have
known that his act was likely to cause
burns resulting in death. It is useful to
1 All. Vinay Kumar Pandey Vs. State of U.P.
1417
extract paragraphs 2, 3 and 4 of the
judgement which is to the following effect:

"2. Only question that we have to
consider in this appeal is what offence can be
said to have been committed by the appellant
on the basis of the facts found by the High
Court. It has been held that while the
appellant, deceased Bheem Singh and one
Shah Megan were taking tea in the tea-club of
the Air Force, 32 Wing (MT Section), an
exchange of words took place between the
appellant and the deceased on account of the
demand made by the appellant for returning
Rs.50,000/- which he had advanced to the
deceased. The appellant became angry and
picked up the burning kerosene wick-stove and
threw it on the deceased. Kerosene from the
stove spilled over the clothes of the deceased
and as the burning wicks came in contact with
his clothes they caught fire. The deceased
ultimately died as a result of the burns received
by him.

3. What was submitted by the
learned counsel for the appellant was that
the appellant had no enmity with the
deceased. He had no intention to kill the
deceased as by killing him he could not
have recovered the amount of Rs.50,000/-
which he had advanced to the deceased.
He further submitted that the quarrel
between the two took place all of a sudden
and in the heat of the moment the
appellant had picked the stove and had
thrown it towards the deceased. He,
therefore, submitted that it was merely a
rash and negligent act on the part of the
appellant. We cannot agree with the
submission of the learned counsel. Since
the appellant had thrown a burning stove
on the deceased, he would have known
that his act was likely to cause burns
resulting in death. In view of the facts and
circumstances of the case, he can be said
to have committed an offence under
Section 304 Part II IPC.

4. We, therefore, allow this
appeal partly, alter the conviction of the
appellant from under Section 302 to
Section 304 Part II IPC and reduce the
sentence of imprisonment for life to
rigorous imprisonment for five years."

[17]
Following
the
above
decision, we are of the view that the
present is also a case where in the facts
and circumstances of the case, the
appellant can be said to have committed
offence under Section 304 Part II IPC.

13. He has further placed reliance
upon the judgement of the Apex Court in
2019 LawSuit (SC) 1129 Govind Singh
Vs. State of Chhattisgarh. Paragraph
No.7 and 8 of the said judgement is
quotted herebelow:-

[7] The entire occurrence was in
a spur of moment. There was quarrel
between the father and daughter as to
where the bulb is to be put on. In the
sudden quarrel and in spur of the moment,
the appellant threw the chimney lamp on
his daughter. The occurrence was sudden
and there was no premeditation. The
chimney lamp was burning there which the
appellant had picked up and thrown on the
deceased. Since the occurrence was in
sudden
quarrel
and
there
was
no
premeditation, the act of the accused
would fall under Exception 4 to Section
300.

[8]
The
conviction
of
the
appellant-accused under Section 302 IPC
is modified as the one under Section 304
Part-II IPC. As per jail certificate, the
appellant-accused had undergone about
10 years, 2 months and 25 days as on
26.8.2017. By now, the appellant-accused
has undergone about eleven years and
eight
months
of
imprisonment.
Considering the facts and circumstances
1418 INDIAN LAW REPORTS ALLAHABAD SERIES
of the case and the period of imprisonment
which
the
appellant-accused
has
undergone, the sentence of imprisonment
is
modified
to
the
period
already
undergone.

14. Per contra learned AGA on the
other hand has opposed the argument of
learned counsel for the appellant and has
argued that as per the dying-declaration of
the deceased, the appellant is said to have
thrown the burning lantern (dibhari) on the
deceased. There was some bitterness
between the appellant and his wife as it
appears from the dying-declaration and
after the incident, the appellant did not
make any effort to save the deceased from
fire and had gone away. The deceased was
rescued by her Jeth and Chachia Sasur
who rushed her to Vidya Hospital. The
appellant did not visit the hospital to
inquire about the welfare of the deceased.
He submitted that as per dying-declaration,
the deceased has stated that since his
marriage her husband used to hate her on
the ground that he was more handsome
than his wife. He argued that the trial court
had framed alternative charge under
Section 302 IPC against the appellant and
found on the basis of evidence on record
that the conduct of the appellant goes to
show that he had intention to kill his wife
by throwing the burning lantern (dibhari)
on her and had gone away to sleep. Thus
the trial court has rightly convicted the
appellant under Section 302 IPC. Hence he
prayed that the appeal of the appellant be
dismissed.

15. In order to examine and
appreciate the rival contentions of learned
counsel for the parties, it would be
appropriate to consider the submissions in
the light of the dying-declaration of the
deceased which is the basis of the
conviction of the appellant under Section
302 IPC for life imprisonment by the trial
court.
The
dying-declaration
of
the
deceased recorded by the P.W.7 on
2.7.2012 at 2.10 p.m. at Vidya Hospital,
Azamgarh
which
is
Ext.Ka-2
is
reproduced here under:-

^^e`R;q iwoZ c;ku Jherh vejkorh
iRuh fou; dqekj

eS] vejkorh iRuh fou; dqekj] mez
yxHkx 30 o"kZ lk0 xgth cktkj] fudV ikaMs
iqjk Fkkuk& vfgjkSyk ftyk& vktex<+ c;ku
fd;k fd esjh 'kknh vjlk 4&5 o"kZ iwoZ gqbZ FkhA
esjs ,d iq=h] ,d iq= gS] iq= cM+k gSA esjs ifr
QksVks xzkQj gS gekjs ek;ds okyks dh vis{kk
/kuk<~; gSA esjs ek;ds okys xjhc gSA esjs ifr
eq>ls eksVj lkbfdy fnykus dks dgk esjs ?kj
okys iwjk ugh dj ik jgs gS] D;ksfd xjhc gS] esjk
ifr eq>ls lqUnj gS] ek;ds okyks dh vis{kk iSls
okyk gS bl otg ls eq>ls uQjr djrk gSA eS
1& 1⁄2 o"kZ ls vius ek;ds esa jgrh Fkh] llqjky
okys ugh ys tkrs gSA ifr ds ifjokj ds
fj'rsnkjks ds ncko ls ifr vius ?kj yk;s ijUrq
ifr eq>ls dksbZ fj'rk ugh j[krs gSA eSa dy fn0
1-7-12 dh 'kke yxHkx 8 cts [kkuk idk jgh
Fkh] mlh le; esjs ifr viuh cgu tks pky
pyu ls Bhd ugh gS] dks le>k cq>k@ekjihV
dj jgs Fks eS uun dks NqM+kus yxh rc esjs ifr
esjs Åij xqLlk gks x;s vkSj tyrh f

c;ku i<+dj@lqudj rLnhd fd;kA
fu0v0 vejkorh**

16. The marriage of the deceased
Amrawati with the appellant is admitted to
the parties. Though the case was registered
for offence under Section 498-A, 304-B
IPC and 3⁄4 D.P. Act, the charges were
framed against the appellant by the trial
court for offence u/s 498-A, 304-B IPC
and 3⁄4 D.P. Act on 19.1.2013 and
alternative charge was framed against the
appellant by the trial court under Section
302 IPC on 22.3.2013.
1 All. Vinay Kumar Pandey Vs. State of U.P.
1419

17. As all the witnesses of fact have
turned
hostile
including
the
family
members of the deceased who have stated
before the trial court that the deceased was
not harassed by the appellant for want of
dowry and moreover the relationship
between them was cordial, hence the trial
court has acquitted the appellant under
Section 498-A, 304-B IPC and 3⁄4 D.P. Act
but taking into account the dyingdeclaration of the deceased, it has
convicted the appellant under Section 302
IPC for life imprisonment. As the
informant P.W.2 Jagdish Prasad Pandey
and his wife Amrawati P.W.1 Asha Devi
who are the parents of the deceased and
other witnesses of fact i.e. P.W.3 to 6 have
turned hostile and not supported the
prosecution case. Hence we do not think it
proper to discuss their evidence and
proceed to examine the case under Section
302 IPC against the appellant which the
trial court found proved against the
appellant in the light of the dyingdeclaration of the deceased.

18. From the perusal of the dyingdeclaration of the deceased, it is apparent
that the appellant was posing himself to be
handsome husband and well of as
compared to the family members of the
deceased on account of which he used to
hate the deceased. The deceased was
living with her parents for about one and
half years and due to intervention of some
relatives, she was sent back by her parents
to the house of the appellant. On the day of
the incident i.e. on 1.7.2012 in the evening
at 8 p.m. when she was cooking food, her
sister-in-law who was not of good
character, had some altercation with the
husband of the deceased and husband was
beating her sister-in-law on which her
husband became annoyed with her and had
thrown a burning lantern on her and she
screambed and her Jeth who was taking
the food came and rescued her. Her
husband after throwing the burning lantern
(dibhari) on her went to sleep in the house.
She was admitted by her Jeth and
Chachiya Sasur who rushed her to the
hospital and admitted her. Her husband did
not come to see the deceased in the
hospital.

19. Thus from the dying-declaration of
the deceased it is apparent that though the
incident which has taken place appears to be a
sudden quarrel between the appellant and his
sister and the deceased intervened to save her
husband's sister from her husband who out of
anger had thrown the burning lantern (dibhari)
on her and went to sleep goes to show that the
appellant can not be said to have any intention
to burn the deceased to death but he would
likely known that due to the said act, the
deceased would die on account of fire. The
deceased was rescued by her Jeth who rushed
her to the hospital along with her Chachiya
Sasur as it appears from her dying-declaration
itself. The case law which have been relied
upon by learned counsel for the appellant of
the Apex Court squarely covers the case of the
appellant wherein the Apex Court in a similar
situation has come to the conclusion that the
conviction of the appellant of the said case
would not attract the offence under Section
302 IPC. Hence has set-aside the conviction of
the
accused-appellant
and
altered
the
conviction under Section 304 Part-II IPC.

20. So far as the argument of learned
counsel for the appellant regarding the
veracity of the dying-declaration of the
deceased is concerned is of not much
significance as P.W.7 has categorically
stated before the trial court that he
recorded the dying-declaration of the
deceased in the presence of Dr. Vivek
Prakash at 2.10 p.m on 2.7.2012 who has
1420 INDIAN LAW REPORTS ALLAHABAD SERIES
certified about the mental condition of the
deceased
before
recording
her
dyingdeclaration and also after same was completed
at 2.30 p.m. on the same day and simply
because no orders of the S.D.M, Azamgarh
has been produced by the prosecution before
the trial court of the S.D.M concerned for
recording the dying-declaration by P.W.7
Ramashankar Pathak and Dr. Vivek Prakash
who certified the mental fitness of the deceased
have not been produced the said dyingdeclaration cannot be disbelieved as P.W.7 has
proved the dying-declaration (Ext.Ka-2) before
the trial court and further he has categorically
stated that the two certificates by which Dr.
Vivek Prakash has certified about the mental
state of the deceased. Moreover, the accused
has admitted the prosecution documents which
includes the dying-declaration also. Therefore,
in view of Section 294(3) Cr.P.C, the two
certificates
regarding
mental
fitness
of
deceased issued by Dr. Vivek Prakash at the
time of recording the dying-declaration of
deceased by P.W.7 requires no formal proof.
Hence the dying-declaration Ext.Ka-2 proved
by P.W.7 cannot be discarded. Thus having
considered the submissions of learned counsel
for the appellant particularly in the light of the
dying-declaration of the deceased, we are of
the opinion that conviction of the appellant
under Section 302 IPC cannot be sustained in
the eyes of law. Therefore, the conviction of
the appellant under Section 302 IPC by the
trial court is set-aside and he is convicted under
Section 304 Part II IPC. Now comes the
question which is to be determined by this
Court regarding the quantum of sentence
which may be imposed on the appellant for
offence u/s 304 Part II IPC.

20. The learned counsel for the
appellant has argued that as the appellant
has already served out seven years and two
months, hence he may be released.
Considering the said argument of learned
counsel for the appellant we are of the
considered
opinion
that
taking
into
account his conduct in not saving his wife
after the incident nor, had taken her to
hospital soon after the incident and in fact
the Jeth and Chachiya Sasur rescued the
deceased and rushed her to hospital
coupled with the fact that the deceased
remained alive for about a week after the
incident and yet the appellant did not even
visit to enquire about her welfare and
condition and are also of the opinion that
ends of justice would be served if
appellant is convicted and sentenced to ten
years rigorous imprisonment under Section
304 Part II IPC.

21. In view of the foregoing
discussions and preposition of law as has
been laid down by the Apex Court and
relied upon by the counsel for the
appellant, we convict the appellant under
Section 304 Part II IPC and sentence him
to ten years R.I. accordingly. The
appellant is stated to be in jail. He shall
serve out the sentence as awarded by this
Court

22. The appeal stands partly allowed.
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(2020)1ILR 1419

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.11.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Appeal No. 4229 of 2018

Anand Babu ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sanjay Rajpoot