A.F.R.

Reserved on 10.10.2022

Delivered on 20.10.2022

Court No. - 44

Case :- CRIMINAL APPEAL No. - 1005 of 2013

Appellant :- Deepak And Anr.

Respondent :- State of U.P.

Counsel for Appellant :- Shailendra Kumar Verma, Sheshadri Trivedi

Counsel for Respondent :- Govt. Advocate

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per : Nalin Kumar Srivastava, J.)

1.The instant Criminal Appeal has been directed against the

judgment and order dated 2.3.2013 passed by the Special Judge

(SC/ST Act) / Additional Sessions Judge, Ghaziabad in Sessions

Trial No. 402 of 2008 (Case Crime No. 230 of 2007), P.S.

Babugarh, District Ghaziabad convicting and sentencing the

appellants under Section 302 I.P.C. read with Section 34 I.P.C.

for life imprisonment and a fine of Rs. 10,000/- each with

stipulation of default clause, under Section 354 IPC for one year

rigorous imprisonment, under Section 452 IPC for two years

rigorous imprisonment and under Section 3 (2)(v) The Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities) Act (in

short ‘the SC/ST Act’) for life imprisonment each and a fine of Rs.

5,000/- with stipulation of default clause.

2.Brief facts, as culled out from the record, are that a First

Information Report was lodged by the informant, Sukhpal son of

Ram Chandra, resident of village Garhi Hoshiyarpur, Police

Station Babugarh, Ghaziabad, at Police Station Babugarh, District

Ghaziabad with the averments that on 16.7.2007 at 11.30 a.m.

when her niece Km. Laxmi, daughter of Kripal (Julaha), was

present in the house, Pintu and Deepak sons of Satpal @ Sattu

entered in the house and asked her as to why outstanding rent of

Rs. 100/- for the video C.D. was not paid by her. Pintu inquired

that many days ago he had given a letter to her and why she had

not given answer? To this, niece of the informant objected and

started scolding them. This angered the accused. Deepak

brought the canister containing kerosene oil, opened the lid and

poured upon the niece of informant at once and Pintu set her

ablaze. On her shrieks, informant and other persons reached

there and they both ran away. She was severely burnt and sent

to Hapur for treatment.

3.On 19.7.2007, dying declaration of the victim (Ext. ka-9)

was recorded by the Tehsildar. He also took her signature over

the same. Victim was conscious at the time of statement.

4.On the basis of the written report (Ext. ka-1), chik First

Information Report (Ext. Ka-5) was registered at Police Station

concerned on 16.7.2007 at 12.35 p.m. against the accused

appellants as case crime no. 230 of 2007. G.D. entry was also

registered at the same time.

5.The F.I.R. was investigated by the Sub-Inspector of the

concerned Police Station and subsequently it was investigated by

the Station House Officer of the concerned Police Station. During

course of investigation, the Investigating Officer recorded the

statement of witnesses and victim, prepared site plan, inquest

report was prepared and post mortem was performed. The

investigation was over and after completing all formalities,

charge sheet was submitted against the accused appellants. The

learned Magistrate summoned the accused and committed the

case to Court of Sessions, as prima facie charges were for the

sessions triable offences.

6.The Court of Sessions framed the charges as accused were

summoned in commission of the offence under Sections 452,

354, 302/34, 504, 506 IPC and Section 3(2)(v) SC/ST Act. The

accused pleaded not guilty and wanted to be tried. Trial started

2

and in support of its case, prosecution examined 14 witnesses,

who are as follows:

1Kripal PW-1 (father of the deceased)

2Sukhpal PW-2 (informant) (uncle of deceased)

3Mithlesh PW-3

4Savitri PW-4 (aunt of deceased)

5Kamlesh PW-5

6Raju @ Raj KumarPW-6

7Ummed Singh PW-7

8Rumal Singh PW-8

9Indrajeet PW-9 (witness of recovery)

10Praveen Kumar

Tyagi

PW-10 (Investigating Officer-II)

11H.C.P. Rampal

Singh

PW-11 (scribe of the F.I.R.)

12S.I. Bijendra

Singh

PW-12 (Investigating Officer-I)

13Harish Chandra

Pandey

PW-13 (Technical Assistant posted in

G.T.B. Hospital, Delhi, who proved the

writing and signature of Dr R.P. Singh,

who performed the post mortem of the

deceased.

14Suryabhan Giri PW-14 (Tehsildar, who recorded the dying

declaration of the deceased)

7. In support of oral version, following documents were filed

and proved on behalf of the prosecution:

1Written report Ext. A-1

2Memo of recovery of vacant

canister

Ext. A-2

3Letter of deceased Ext. A-3

4Memo of recovery of cloths of

deceased

Ext. A-4

5Chik F.I.R. Ext. A-5

6G.D. Ext. A-6

7Post Mortem Report Ext. A-7

8Charge sheet Ext. A-8

9Dying declaration of the deceasedExt. A-9

8.Deceased was hospitalised after the occurrence. She died

after 17 days of the occurrence during the course of treatment.

3

9.After conclusion of evidence, statements of accused were

recorded under Section 313 of Cr.P.C., in which they pleaded their

innocence and false implication. In support of its case defence

has examined DW-1 Kajal, DW-2 Pramod Kumar and DW-3 Ashok

Kumar.

10. Heard Shri Satish Trivedi, learned Senior Advocate assisted

by Shri Sheshadri Trivedi, learned counsel for the appellants and

Shri Patanjali Mishra, learned AGA for the State.

11. Learned Senior Advocate appearing for the appellants

submitted that accused persons have been falsely implicated in

this case. They have not committed the present offence. It is

further submitted by learned counsel that all the witnesses of

fact have turned hostile and have not supported the prosecution

version and on the basis of analysis of their evidence, no guilt

against the accused appellants is established and proved.

Learned Senior Counsel for the appellants next submitted that in

this case there are two dying declarations i.e. one recorded by

the Investigating Officer in the form of statement under Section

161 CrPC and the other by the Tehsildar. When two sets of dying

declarations are available and same are contrary to each other,

the subsequent dying declaration implicating the appellants could

not have been believed and accepted and on the basis of the said

dying declaration the appellants could not have been held guilty

for a serious offence of murder. It is further submitted that the

dying-declarations of the deceased were recorded when she was

surviving, but the same have no corroboration with any

prosecution evidence. All the witnesses of fact have turned

hostile and nobody supported the prosecution version. 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. Offence under Section 3(2) (v) SC/ST Act is

not made out, as F.I.R. nowhere states that the deceased was

belonging to a particular community. No documentary evidence

to prove that the deceased was belonging to Scheduled Caste or

4

Scheduled Tribe, has been produced either before Investigating

Officer or Sessions Court.

12. Learned Senior Counsel for the appellants additionally

submitted that if, for the sake of argument, it is assumed that

appellants have 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 17 days of the occurrence due

to developing the infection in her burn-wounds, i.e., septicaemia.

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 septicaemia. Learned Senior Counsel for the

appellants also submitted that autopsy report also shows that

cause of death was septicaemic shock due to ante mortem flame

burning. Learned counsel relied on the judgment in the case of

Maniben vs. State of Gujarat [2009 Lawsuit SC 1380], and the

judgment in Criminal Appeal Nos.1438 of 2010 and 1439 of 2010

dated 7.10.2017 and judgment of Criminal Appeal No.2558 of

2011 delivered on 1.2.2021 by this Court and several other

judgments.

13. No other point or argument was raised by the learned Senior

Counsel for the appellants and he confined his arguments on

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 requires no

corroboration. Moreover, testimony of hostile witnesses can also

be relied upon to the extent it supports the prosecution case.

Learned trial court has rightly convicted the appellants under

Section 302 IPC and sentenced accordingly. Offence under

Section 3(2)(v) SC/ST Act is clearly made out against the

appellants. There is no merit in the appeal and the same may be

dismissed.

5

15. First of all learned counsel for the appellants has raised the

issue relating to the hostility of the witnesses. Witnesses of the

fact were examined before learned trial court. All the 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 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.While examining the testimonies of witnesses of fact PW-1,

PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9, it

appears that they have denied the fact as to who was the main

assailant and who set ablaze the victim and on this point they

have been declared hostile by the prosecution and cross-

examination has been conducted by the prosecution but it is very

significant to note that from the entire deposition of the aforesaid

witnesses it is quite clear that they admitted some significant

points which are helpful to the prosecution case. They have

admitted the burning of the victim, her hospitalization, date, time

and place of the occurrence, hence except the name of the

offenders, they have admitted all the facts relating to the

occurrence.

17. 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 the

6

conviction upon testimony of such witness if corroborated by

other reliable evidence.

18. 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.

19. 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.

20. Perusal of impugned judgment shows that learned trial court

has scrutinised the evidence on record very carefully.

21. As far as the dying-declaration is concerned, it was recorded

by Shri Surya Bhan Giri, Tehsildar, who was examined as PW-14.

Dying-declaration was recorded by him after obtaining the

certificate of mental-fitness from doctor in the hospital.

22. Learned Senior Counsel for the appellants has argued that in

this matter two dying declarations have been recorded and same

are 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.

23. PW-12, the Investigating Officer, who is said to be recorded

the statement under Section 161 CrPC of the deceased when she

7

was injured but utter surprise to the Court not a single word has

been stated by him in examination-in-chief regarding recording

of statement of injured / deceased under Section 161 CrPC (then

alive). It is for the first time in his cross-examination, PW-12 has

stated whatsoever was stated by the deceased in her statement

under Section 161 CrPC (then alive). No doubt statement

recorded by the Investigating Officer during course of the

investigation of the victim or injured may be treated as dying

declaration if subsequently he / she dies so far as it relates to the

cause of death but law of evidence requires that such statement

must be proved in the Court in due course of law. The said

statement should find place in verbatim in the statement of the

Investigating Officer and the relevant portion of the statement

should be exhibited before the Court during deposition of the

Investigating Officer as prosecution witness. But in the matter in

hand the aforesaid procedure has not been followed and that is

why whatsoever was stated allegedly by the deceased (then

alive) cannot be termed the statement of the victim as dying

declaration in strict legal sense. That is why we are bound to

opine that in the present case the statement under Section 161

CrPC of the victim recorded by the Investigating Officer cannot

be termed as ‘dying declaration’ and as such there is only one

dying declaration on record which was recorded by the PW-14.

24.Hon'ble Apex Court has summarized the law relating to

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 direct, i.e., it must be the evidence of a

witness, who says he saw it. The dying declaration is, in fact, the

8

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.

25. 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

thereof 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.

26. Deceased survived for 17 days after the incident took place.

Her dying declaration was recorded by PW-14, Tehsildar after

obtaining the certificate of medical fitness from the concerned

doctor. This dying declaration was proved by him as Ext. ka-9.

This witness is absolutely an independent witness and has no

grudge or enmity to the convicts at all. PW-14 in his deposition

has stated that the victim / injured in her statement had narrated

that:

‘A.FResrvdF16.07.2007 को सुबह 7.30 बजे स्क

ूल जाने के लिलए

अपने भाई बदिहनों को तैयार कर रही थी। क्योंदिक मेरी मां घर पर नहीं थी। वह

.JrH2FRN:r0'Fd2 FNroFRek'F,f'Fb'KF.JrH2FRN:r0'FRek'FJmFJ2.s:FJ0e

ूरी

dH:2Fb2KFSoCif2FOoFResFyHFNHFs.'Fb'KFOos2F*,2F1:rfrFRdFJpFtNs2

भाई बदिहनों को तैयार कर स्क

ूल छोड़कर घर वापस आ गयी

, घर वापस आने

NHFJ-FtNs2FyHFNHFdrJFdHFH.'Fb'KF:-'Fe'NdFAFRN./

ू मेरे घर में घूसे और

मां के बारे में पूछा तो उसने आगे बताया दिक मैंने उन्हें माँ के घर में न होने की

1r:Fd.'F:-'Fe saFRN./

ूFAFe'NdFs2FJ2H2ForbFJ2H'FS3:Fil/s2Fd2 FCiu

बेइज्जती करने लगे। मैं बह

ुत छटपटाई और आंह

?-2 मैं चि5ल्लाती रही। मेरे

9

45krsrFe26dHFOsFe saFs2F(दिपन्ट

ूFAFe'Nd

) ने पास में पड़ी दिमट्टी के (कागज

फटा) की दि9बरी जिजसमें दिमट्टी का तेल पड़ा ह

ुआ था

(कागज फटा) उपर दिमट्टी

drF:2iFO92idHF*,Fi,rFe'KF*,Fi,:2F.'F0isFd FJ-F+/N/rs2Fi,'F:br

वहां से उठकर मेरे पड़ोस में अपने ताई के घर भाग कर गई, जहां ताई के

परिरवार वालों ने मेरी आग बुझाई।’

27.In the wake of aforesaid judgment of Lakhan (supra), dying

declaration cannot be disbelieved, 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 of 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.

28. 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

10

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.

29. 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.

30. In dying declaration of deceased, it is also important to note

that it was recorded on 19.7.2007 and the deceased died on

2.8.2007 while the incident took place on 16.7.2007. It means

that she remained alive for 14 days after making dying

declaration. Therefore, truthfulness of dying declaration can

further be evaluated from the fact that she survived for 14 days

after making it from which it can reasonably be inferred that she

was in a fit mental condition to make the statement at the

relevant time. Moreover, in the dying declaration, the deceased

did not unnecessarily involved the other family members of the

accused appellants. She only attributed the role of burning to the

accused appellants, who were actual culprit.

31. 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

also of the circumstances leading to her death.

11

32. 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 Ext. ka-9

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 and convicting the accused-appellants on the basis

thereof.

33.Although no specific defence has been taken in their

statement under Section 313 CrPC by the convicts / appellants

but they have adduced oral evidence and have relied upon the

statement of DW-1, DW-2 and DW-3, who stated that the

deceased herself set her ablaze at the time of occurrence and

there was no fault of the accused persons.

34.DW-1 is the sister of the deceased. In her examination-in-

chief she has stated that on the fateful day she was present at

her house when the accused persons came over there and

demanded Rs. 100/- for C.D. and a quarrel took place; her sister

herself poured kerosene over her and set her ablaze herself but

in the cross-examination she has admitted that on the day of

occurrence, she had gone to her school and does not remember

whether the deceased herself set her ablaze or any one else set

her ablaze.

35.DW-2 in his examination-in-chief has also stated that there

was some letter of the deceased which was in the possession of

Bala. Feeling ashamed of this Laxmi herself had set her ablaze by

pouring kerosene over her. He was present at the time of

occurrence and the accused persons did not set her ablaze. He

has also stated that occurrence took place at 11.00-11.30 a.m..

However, in his cross-examination he has admitted that he

usually goes to his field in the morning at 7.00 a.m.. He has not

12

clarified this fact in his deposition that as to why he was present

on the spot at about 11.00 – 11.30 a.m. when at 7.00 a.m. only

he used to go to his field.

36.Hence, DW-1 and DW-2 both are not reliable witnesses and

same is the position of the deposition of DW-3 who has admitted

that he has reached the spot after the deceased was set ablaze.

Hence, he is not the eye witness of the occurrence.

37.Learned trial court has discussed the evidence of DW-1,

DW-2 and DW-3 and has opined that the defence gets no help

from the depositions of the aforesaid witnesses and we concur

with the same.

38.So far as the submission that offence under Section 3(2)(v)

SC/ST Act is not made out against the appellants is concerned,

in this matter the F.I.R., in the case at hand, was lodged by the

brother of the deceased. Whether it can be said that the incident

was committed on the ground that the deceased belonged to a

particular community falling in the term 'Scheduled Castes' or

'Scheduled Tribes' so as to attract the provision of Section 3 (2)

(v) of SC/ST Act, the F.I.R. is silent about this aspect.

Documentary evidence showing as to what caste to the deceased

belonged, has not been brought on record. For attracting the

provisions of Section 3(2) (v) of SC/ST Act, there should be

corroboration by way of documentary evidence to prove that the

injured / deceased, to whom the act is committed, belongs to

'Scheduled Castes' or 'Scheduled Tribes'. Just because a person

belongs to and says so, will it be a piece of evidence? It is

nobody's case that the appellants committed this crime on the

ground that the deceased belong ed to a particular community.

Even if we believe that there is no documentary evidence and

that the deceased belongs to the community which is alleged

then also can it be said that the offence has been committed as

she belongs to a particular community? This is moot question

which arises before us.

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39.In Ram Das vs. State of U.P., AIR 2007 SC 155 wherein

there was rape on woman belonging to Scheduled Caste, it was

held that these could be no ground to convict the accused under

Section 3 (2) (v) when there was no evidence to support the

charge under Section 3 (2) (v) of SC/ST Act. Mere fact that

victim happened to be a girl belonging to Scheduled Caste did

not attract provisions of SC/ST Act.

40.In Dharmendra vs. State of U.P., 2011 Cri LJ 204 (All), the

Court has held that there was no evidence on record to show that

incident was caused by the accused on the ground that victim

belonged to Scheduled Caste. Fact of victim, belonging to

Scheduled Caste by itself was not sufficient ground to bring case

within the purview of Section 3 (2) (v) of Act. Conviction under

Section 3 (2) (v) was improper.

41.In State of Gujarat v. Munna, 2016 Cri LJ 4097 (Guj), the

Court held as under:

"In the instant case, so far as the charge against the accused for

the offence punishable under Section 3 (2) (v) of the Atrocity

Act, 1989 was concerned, from the deposition of the witnesses it

had not come out that the accused committed the offence

against the deceased on the ground that deceased was a

member of Scheduled Caste or Scheduled Tribe. In absence of

such evidence it could not be said that the original accused had

committed the offence punishable under Section 3 (2) (v) of the

Atrocity Act, 1989. Under the circumstances on the basis of the

evidence of record the accused could not be held guilty for the

aforesaid offence."

42.Decision of the Division Bench of this Court in case of

Criminal Appeal No. 204 of 2021 (Vishnu vs. State of U.P.)

decided on 28.1.2021 penned by one of us (Dr. K.J. Thaker, J.)

held as under :

"38. Section 3(2)(v) of Scheduled Casts and Scheduled Tribes

( Prevention of Atrocities) Act, 1989 is concerned, the FIR and the

evidence though suggests that any one or any act was done by the

accused on the basis that the prosecutrix was a member of Scheduled

Castes and Scheduled Tribes then the accused can be convicted for

commission of offence under the said provision. The learned Trial

Judge has materially erred as he has not discuss what is the evidence

that the act was committed because of the caste of the prosecutrix.

The sister-in-law of the prosecutrix had filed such cases, her husband

and father-in-law had also filed complaints. We are unable to accept

the submission of learned AGA that the accused knowing fully well

14

that the prosecutrix belongd to lower strata of life and therefore had

caused her such mental agony which would attract the provision of

Section 3(2)(v) of the Atrocities Act. The reasoning of the learned

Judge are against the record and are perverse as the learned Judge

without any evidence on record on his own has felt that the heinous

crime was committed because the accused had captured the will of the

prosecutrix and because the police officer had investigated the matter

as a attrocities case which would not be undertaken within the

purview of Section 3(2)(v) of Atrocities Act and has recorded

conviction under Section 3(2)(v) of Act which cannot be sustained. We

are supported in our view by the judgment of Gujarat High Court in

Criminal Appeal No.74 of 2006 in the case of Pudav Bhai Anjana Patel

Versus State of Gujarat decided on 8.9.2015 by Justice M.R. Shah and

Justice Kaushal Jayendra Thaker (as he then was).

39. Learned Judge comes to the conclusion that as the prosecutrix

belonged to community falling in the scheduled caste and the

appellant falling in upper caste the provision of SC/ST Act are

attracted in the present case.

40. While perusing the entire evidence beginning from FIR to the

statements of PWs-1, 2 and 3 we do not find that commission of

offence was there because of the fact that the prosecutrix belonged to

a certain community.

41. The learned Judge further has not put any question in the

statement recorded under Section 313 of the accused relating to rape

or statement which is against him.

42. In view of the facts and evidence on record, we are convinced that

the accused has been wrongly convicted, hence, the judgment and

order impugned is reversed and the accused is acquitted. The accused

appellant, if not warranted in any other case, be set free forthwith."

43.Initially the case was registered under Sections 452,

326 IPC. Section 3(2)(v) SC/ST Act was added during

investigation but on what basis it was added has no where

been clarified by PW-12 and PW-10 in their testimonies,

who are said to be the I and II Investigating Officers of the

case, respectively. It is pertinent to mention here that

neither in the F.I.R. nor in the depositions of the witnesses

of fact it has been mentioned any where that the deceased

belonged to SC/ST community and the offence was

committed due to her caste.

44.In the case at hand, no independent witness has been

examined who would have deposed that the accused committed

the offence on the ground that deceased belonged to a

community covered under SC/ST Act. This omission proves fatal

to the prosecution in such a vital matter where punishment is for

life imprisonment. There is no deeming provision under SC/ST

15

Act. In view of the above, we cannot concur with the learned

Sessions Judge as the evidence which has been laid before the

learned judge has been misread by learned Sessions Judge in

this context and he has misconstrued the provisions of Section 3

(2) (v) of SC/ST Act. Hence, conviction and sentence under

Section 3 (2) (v) SC/ST Act of the accused-appellants is, set

aside.

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

Senior Counsel for the appellants that deceased died due to

septicaemia, 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 17 days of

incident due to the poisonous infection developed in her burn

injuries, which could be avoided by good treatment. There was

no intention of the appellants to cause the death of the deceased.

46. It is admitted fact that the deceased died after 17 days of

burning and post mortem report goes to show that she died due

to septicaemic shock by reason of ante mortem flame burning.

Though doctor, who has performed the autopsy of the deceased,

could not be examined yet the Technical Assistant posted in

G.T.B. Hospital, Delhi, has proved the writing and signature of Dr

R.P. Singh before the Court and he has been examined as PW-

13. It has been specifically mentioned in the post mortem report

that the cause of death was septicaemic shock due to ante

mortem flame burning. Hence, the death of the deceased was

septicaemial death.

47. 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 culpable homicide not

amounting to murder. Therefore, we are considering the question

16

whether it would be a murder or culpable homicide not

amounting to murder and punishable under Section 304 IPC.

48. 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."

49. 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 septicaemia caused by burn

injuries. The accused was convicted and sentenced for life

imprisonment 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

septicaemia and not as a consequence of burn injuries and,

accordingly, sentenced for seven years' rigorous imprisonment.

50. In Maniben vs. State of Gujarat [(2009) 8 SCC 796], the

incident took place on 29.11.1984. The deceased died on

7.12.1984. Cause of death was the burn injuries. The deceased

was admitted in the hospital with about 60 per cent burn injuries

and during the course of treatment developed septicaemia, which

was the main cause of death of the deceased. Trial-court

convicted the accused under Section 304 Part-II IPC and

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sentenced for five years' imprisonment, but in appeal, High Court

convicted the appellants 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.

51. In Chirra Shivraj vs. State of Andhra Pradesh [(2010) 14 SCC

444], incident took place on 6. Deceased was hospitalised after

the occurrence by the accused persons themselves. She died

after 4 days of the occurrence during the course of treatment.

52. 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

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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 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

19

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.

53. On the overall scrutiny of the facts and circumstances of the

case coupled with medical evidence, the opinion of the Medical

Officer, the dying declaration 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. It is pertinent to note

here that the offence under Sections 452 and 354 IPC are also

proved beyond reasonable doubt on the basis of dying

declaration.

54.From the upshot of the aforesaid discussions it appears that

the death caused by the accused persons was not pre-meditated.

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.

55. In view of the aforesaid discussions, we are of the view that

appeal is liable to be partly allowed and the conviction of the

appellants under Section 302 / 34 IPC is liable to be converted

20

into conviction under Section 304 (Part-I) IPC and fine amount is

liable to be maintained. The convicts / appellants are in jail for

the last more than 12 years. As such they have completed their

sentence alongwith the default sentence for Sections 452 and

354 IPC.

56.Accordingly, appeal is partly allowed and the appellants are

convicted for the offence under Section 304 (Part-I) IPC and are

sentenced to undergo ten years of incarceration with remission.

We maintain the fine and default sentence which will be

deposited by the appellants within twelve weeks from the date of

release.

57.Record and proceedings be sent back to the Court below

forthwith.

58. This Court is thankful to learned Advocates and Mr. Mohd.

Furkan Khan, Law Clerk (Trainee) of this Court for ably assisting

the Court.

Order Date :- 20.10.2022

safi

(Nalin Kumar Srivastava, J.) (Dr. Kaushal Jayendra Thaker, J.)

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