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A.F.R.

[Reserved]

Court No. - 50

Case :- CRIMINAL APPEAL No. - 1197 of 2020

Appellant :- Amar Dayal Sahu

Respondent :- State of U.P.

Counsel for Appellant :- Laxmi Narayan Rathour,Akhilesh Kumar

Khare,Noor Muhammad,Yogesh Kumar Srivastava

Counsel for Respondent :- G.A.

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per Hon'ble Ajai Tyagi, J.)

1.This appeal has been preferred against the judgment and

order dated 7.1.2020, passed by the learned Additional

Sessions Judge, Court No.5, Jhansi, in Session Trail No.55 of

2016 State of UP vs. Amar Dayal Sahu arising out of Case

Crime No.202 of 2015 under Section 302 IPC, Police Station-

Lahchura, District-Jhansi, whereby the appelant is convicted

and sentenced for the offence under Section 302 IPC for life

imprisonment with a fine of Rs.60,000/- and in defalut of

payment of fine, further imprisonemnt for one year.

2.The brief facts of the case are that first information

report of this case was registered on the basis of application

moved by complainant, father of the deceased, through the

application under Section 156 (3) Cr.P.C. in which it is stated

that complainant’s daughter, namely, Jaikali got married with

accused Amar Dayal Sahu about 7-8 years before the

occurrence. They had two children. Amar Dayal Sahu had

illicit relationship with one Kiran Sahu, which was bone of

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contention between husband and wife and the accused always

got support of his family members. All of them were

harrassing his daughter and were giving life-threats. His

daughter used to disclose all that matter with him, his wife and

relatives. He tried to convince the accused so many times, but

accused and his family members did not mend the ways. On

12.5.2015, his daughter Jaikali was in her matrimonial home

then mobile phone of accused was rang up, which was took up

by his daughter. Accused snatched his mobile from her and

abused and gave beating to his daughter. He locked her in the

room and in the morning at about 5:00 a.m., on 13.5.2015

accused Amar Dayal Sahu with the help of his family members

poured kerosene oil on his daughter and set her on fire with the

intention to kill her. Consequently his daughter sustained

serious burn injuries. She was admitted in hospital and during

treatment on 24.5.2015, she succumbed to injuries.

3.On the basis of above application under Section 156 (3)

Cr.P.C., a Case Crime No.202 of 2015 was registered under

Section 302 IPC at Police Station-Lahchura, District-Jhansi. SI

Sundar Lal took up the investigation. During the coruse of

investigation, he recorded the statements of witnesses,

prepared site-plan. Victim’s dying declaration was recorded by

Priti Jain-Nayab Tehsildar. After the death of the victim,

inquest report was prepared and dead body was sent for post

mortem. Dr. S.N. Kanchan conducted the postmortem and

prepared report. After completing the investigation,

Investigating Officer submitted charge-sheet against the

appellant Amar Dayal Singh under Sections 302, 323, 504, 506

IPC. The case being triable exclusively by the court of session,

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was committed by competent Magistrate to the court of

session. Learned Trail Court framed charges against the

appellant under Section 302 IPC. Accused denied the charge

and claimed to be tried.

4.Prosecution examined following witnesses:

1.Har Prasad PW1

2. Pukhan PW2

3.Dr. SN Kanchan PW3

4.Sundar Lal PW4

5.Chandrabhan Dubey PW5

6.SI Sanjeev Kumar PW6

7.Jitendra Sahu PW7

8.Pradeep Sahu PW8

9.Laxmi Prasad PW9

10.Dr. Mahendra Pal SinghPW10

11.Priti Jain PW11

5.Apart from aforesaid witnesses, prosecution submitted

following documentary evidence, which was proved by leading

the evidence:

1.Application U/S 156 (3)

Cr.P.C.

Ex.ka1

2.Inquest Report Ex.ka2

3. Postmortem Report Ex.ka3

4.First Information ReportEx.ka6

5.Site-Plan Ex.ka4

6.Charge-Sheet Ex.ka5

7.General Diary Ex.ka7

8.Dying-Declaration Ex.ka8

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6.Deceased was hospitalised just after the occurrence took

place and she died after about 11 days of the incident. In the

meantime, she remained under treatment, continuously. Her

medical papers were also filed by prosecution, which are on

record.

7.Heard Mr.Noor Mohammad, learned counsel for the

appelalnt, Shri Vikas Goswami, learned AGA appearing on

behalf of the State and perused the record.

8.Learned counsel for the appelant argued in the very

beginning that in this case no prosecution witness has

supported the prosecution case and all the witnesses of fact

have turned hostile. Learned Counsel submitted that Harprasad

(PW1) is complainant and father of the deceased, but in his

statement before learned trial court, he did not support the

prosecution story. He was cross-examined by prosecutor, but

nothing was extracted in his cross-examination agaisnt the

accused. Similarly, Pukhan (PW2) was examined who was the

mother of the deceased. She also did not support the

prosecution case. Apart from PW1 and PW2, Jitendra Sahu

(PW7), Pradip Sahu (PW8) and Laxmi Prasad (PW9) were also

examined. Jitendra Sahu (PW7) and Laxmi Prasad (PW9) are

relative of the deceased while Pradip Sahu (PW8) is brother of

the deceased. All these witnesses also did not support the

prosecution version and they were also declared hostile. On the

basis of analysis of all the five witnesses of fact, no guilt

against accused appellant is established.

9.Learned counsel for the appellant next submitted that

dying declaration of deceased was recorded when she was

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surviving, but this dying declaration has no corroboration with

any prosecution evidecne. All the witnesses of fact have turned

hostile and nobody supported the version which is mentioned

in dying delcaration. 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.

10.Learned counsel for the appellant additionally submitted

that if, for the sake of arugment, it is assumed that appellant

has committed the offence, in that 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 11 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.

11.No other point or argument was raised by learned cousel

for the appellant and confined his arguments on above points

only.

12.Learned AGA, per contra, vehemently opposed the

arguments placed by counsel for the appellant and submitted

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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.

13.First of all, learned counsel for the appellant has raised

the issue relating to the hostality of witnesses. Five witnesses

of fact were examined before learned trial court, namely

Harprasad, complainant and father of the deceased (PW1),

Pukhan, mother of the deceased (PW2), Jitendra Sahu, relative

(PW7) and Laxmi Prasad, relative (PW9) and Pradip Sahyu

(PW8), brother. All 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.

14.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

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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.

15.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.

16.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 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.

17.Perusal of impugned judgment shows that learned trail

court has scrutinised the evidence on record very carefully.

18.As far as the dying declaration is concerned, it was

recroded by Priti Jain, Nayab Tehsildar, who was examined as

PW11. Dying declaration as recorded by PW11 after obtaining

the certificate of mental-fitness from Dr. Mahendra Pal Singh,

who was examined as PW10. After completion of dying

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delaration also the said docter has given certificate that during

the course of statement, the victim remained conscious.

19.Learned counsel for the appellant 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 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.

20.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

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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.

21.Deceased survived for 11 days after the incident took

place. Her dying declaration was recorded by Priti Jain Nayab

Tehsildar and doctor Mahendra Pal Singh appended certificate

of mental health of the victim before and after making of dying

declaration, which is proved as Ex.ka8. Both the above

witnesses PW10 and PW11 are 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 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

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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.

22.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.

23.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.

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24.In dying delcaration of deceased (Ex.ka8), it is also

important to note that it was recorded on 20.5.2015 and the

deceased died on 24.5.2015 while the incident took place on

13.5.2015. It means that she remained alive for 4 days after

making dying declaration. Therefore, truthfulness of dying

declaration can further be evalated from the fact that she

survived for 4 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 husband.

25.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.

26.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, 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-8 and convicting

the accused-appellant on the basis of it.

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27.Now we come to the point of argument raised by learned

counsel for the appellant that deceased died due to septicimia,

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 11 days of incident due to

the poisonous infection developed in her burn injuries, whcih

could be avoided by good treatment. There was no intention of

the appellant to cause the death of his wife.

28.In order to appreciate the rival contentions advanced by

the parties and issues involved, it would be necessary to

mention by us that incidence of this case took place on

13.5.2015 when the appellant poured kerosene oil on the body

of the deceased and set her ablazed. She was admitted in

Medical College, Jhansi, on 13.5.2015 and discharged on

15.5.2015 as suggested by medical papers on record. Doctor

has written that she was having 50% burn. Medical papers also

show that she was again hospitalized in the same hospital on

19.5.2015 where she succumbed to the injuries on 24.5.2015.

In postmortem report, cause of death was found to be

septicimia. Hence, there is no doubt that deceaced died due to

septicimia and it is very relevant fact that after first

hospitalization the deceased was discahrged after 2 days and

again she was hospitalized after 4 days of discharge where she

died after 5 days of her second admission.

29.The finding of fact regarding the presence of witnesses

at the place of occurrence cannot be faulted with. 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

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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. Accused is in jail for the last more than

14 years.

30.In State of Uttar Pradesh vs. Mohd. Iqram and

another, [(2011) 8 SCC 80], the Apex Court has made the

following observations in paragraph 26, therein:

"26. Once the prosecution has brought home the evidence of

the presence of the accused at the scene of the crime, then the

onus stood shifted on the defence to have brought-forth

suggestions as to what could have brought them to the spot in

the dead of night. The accused were apprehended and,

therefore, they were under an obligation to rebut this burden

discharged by the prosecution and having failed to do so, the

trial-court was justified in recording its findings on this issue.

The High Court committed an error by concluding that the

prosecution had failed to discharge its burden. Thus, the

judgment proceeds on a surmise that renders it

unsustainable."

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 Part-II 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

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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 trial-court 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 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:

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"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-

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in-law, the appellant herein, for many years and that on

the day in question she had a quarrel with the appellant at

her house. It is also clear from the evidence on record

that immediately after the quarrel she along with her

daughter came to fetch water and when she was

returning, the appellant came and threw a burning tonsil

on the clothes of the deceased. Since the deceased was

wearing a terylene cloth at that relevant point of time, it

aggravated the fire which caused the burn injuries.

20. There is also evidence on record to prove and

establish that the action of the appellant to throw the

burning tonsil was preceded by a quarrel between the

deceased and the appellant. From the aforesaid evidence

on record it cannot be said that the appellant had the

intention that such action on her part would cause the

death or such bodily injury to the deceased, which was

sufficient in the ordinary course of nature to cause the

death of the deceased. Therefore, in our considered

opinion, the case cannot be said to be covered under

clause (4) of Section 300 of IPC. We are, however, of the

considered opinion that the case of the appellant is

covered under Section 304 Part II of IPC."

16.In the present case, we have come to the irresistible

conclusion that the role of the appellants is clear from the

dying declaration and other records. However, the point

which has also weighed with this court are that the deceased

had survived for around 30 days in the hospital and that his

condition worsened after around 5 days and ultimately died

of septicemia. In fact he had sustained about 35% burns. In

that view of the matter, we are of the opinion that the

conviction of the appellants under section 302 of Indian

Penal Code is required to be converted to that under section

304(I) of Indian Penal Code and in view of the same appeal

is partly allowed.

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 pre-meditated.

Accused had no intention to cause the death of the deceased.

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The injuries were though sufficient in the ordinary course of

nature to have caused death, accused had no intention to do

away with deceased. Hence the instant case falls under the

exceptions (1) and (4) to Section 300 of IPC. While

considering Section 299 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 seven years of incarceration with fine of Rs.

10,000/- and in case of default of payment of fine, the

appellant shall further undergo simple imprisonment for 1 year.

38.Accordingly, the appeal is partly allowed.

(Ajai Tyagi,J.) (Dr. Kaushal Jayendra Thaker,J.)

Order Date :- 12.11.2021

LN Tripathi