Court No. - 44 A.F.R.

Reserved on 07.09.2022

Delivered on 20.10.2022

Case :- CRIMINAL APPEAL No. - 3856 of 2015

Appellant :- Munna @ Parvez

Respondent :- State of U.P.

Counsel for Appellant :- Mahesh Prasad Yadav

Counsel for Respondent :- Govt.Advocate

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per : Nalin Kumar Srivastava, J.)

1.This Criminal Appeal has been directed against the

judgment and order dated 15.7.2015 passed by the Additional

Sessions Judge, Fast Track Court, Pilibhit in Sessions Trial No.

435 of 2013 (Case Crime No. 362 of 2013), P.S. Kotwali Pilibhit,

District Pilibhit convicting and sentencing the appellant under

Section 302 I.P.C. for life imprisonment and a fine of Rs.

10,000/-, under Section 354-ka IPC for three years rigorous

imprisonment and a fine of Rs. 5,000/- and under Section 354-

gha IPC for three years rigorous imprisonment and a fine of Rs.

5,000/- with stipulation of default clause. All the sentences were

directed to run concurrently.

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

Information Report was lodged by the informant, Zahid Khan son

of Shri Puttan, resident of Veni Chaudhary, Police Station Kotwali

Sadar, Pilibhit, at Police Station Kotwali Sadar, District Pilibhit

with the averments that Munna, Adnan son of Dilshel Khan and

Amar son of Mohd. Umar used to tease her daughter Hima by

passing comments which was complained to their guardians but

they did not stop their activities. On 20.5.2013, at about 8.00

p.m. when his daughter was returning from the house of her Bua

in front of the gate of the house, the aforesaid Munna and others

gave mobile to Hima and asked her to call to them with the said

mobile but Hima did not accept the mobile, due to which being

angry they tried to drag her. Angreed with Hima’s protest, the

aforesaid Munna and others sprinkled kerosene on her and set

her ablaze. Hearing her cry, Shahid, son of the informant and

Gudia, wife of Afaq and the local residents reached there and on

their exhortation, the aforesaid Munna and others ran away.

Information about the incident was given at Police Station Kotwali

at 9.30 p.m. and the injured was hospitalized in District Hospital,

Pilibhit where her dying declaration (Ext. ka-11) was recorded by

the Nayab Tehsildar, Pilibhit. He also took her thumb impression

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

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

Information Report (Ext. Ka-2) was registered at Police Station

concerned on 20.5.2013 at 9.30 p.m. against Munna, Adnan and

Amar at case crime no. 362 of 2013 under Sections 354-ka and

354-gha and 307 IPC.

4.Investigation of the case proceeded. During course of

investigation, the Investigating Officer recorded the statement of

witnesses, prepared site plan, inquest report was prepared and

post mortem was performed. During the course of instigation,

the victim died. After making thorough investigation, charge

sheet was submitted against the accused. Concerned Magistrate

took cognizance on the charge sheet. On 19.7.2013 and

13.9.2013 respectively accused Adnan and Amar were declared

juvenile in conflict with law and their files were separated and

sent to Juvenile Justice Board. The learned Magistrate summoned

the accused Munna and committed the case to Court of Sessions,

as prima facie charges were for the sessions triable offences.

5.The charges framed were under Sections 354-ka, 354-gha,

307 IPC read with Section 34 IPC and 302 IPC read with Section

34 IPC. The accused-person pleaded not guilty and wanted to be

tried. Trial started and in support of its case, prosecution

examined 10 witnesses, who are as follows:

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1 Zahid PW-1 (informant) (father of the

deceased)

2 Rashid PW-2 (brother of deceased)

3 Asma Bee PW-3 (aunt of deceased)

4 Ram Chandra

Sharma

PW-4 (scribe of the F.I.R.)

5 Dr. Bhagwan

Das

PW-5 (who performed the post mortem

of the deceased and and gave certificate

before the dying declaration of the

deceased)

6 Gandhi Lal

Sharma

PW-6 (who conducted the inquest of the

deceased and prepared other papers)

7 Rajeev Nigam PW-7 (Nayab Tehsildar Sadar, Pilibhit who

recorded the dying declaration of the

deceased)

8 Satendra Kumar

Singh

PW-8 (Investigating Officer-III)

9 Rakesh Singh PW-9 (Investigating Officer-I)

10 Anand Kumar

Verma

PW-10 (Investigating Officer-II)

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

and proved on behalf of the prosecution:

1Written report Ext. A-1

2Chik F.I.R. Ext. A-2

3G.D. entry Ext. A-3

4Post mortem report Ext. A-4

5Inquest report Ext. A-5

6Challan Nash Ext. A-6

7Photo Nash Ext. A-7

8Letter to C.M.O. Ext. A-8

9Letter to R.I. Ext. A-9

10Specimen Seal Ext A-10

11Dying declaration Ext. A-11

12Charge sheet Ext. A-12

13Memo of clothings of deceased Ext. A-13

14Site plan Ext. A-14

15Copy G.D. Ext. A-15

16Certificate before recording the

dying declaration

Ext. A-16

17Certificate after recorded the

dying declaration

Ext. A-17

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7.Deceased was hospitalised after the occurrence. She died

on the same day of the occurrence during the course of

treatment.

8.The incriminating circumstances emanating from the

prosecution evidence were put to the accused. In his statement

recorded under Section 313 CrPC, he denied his involvement in

the incident and pleaded false implication on account of enmity.

9.The accused in his defence has examined DW-1 Ishaq

Ahmad, DW-2 Fahim, DW-3 Sharfuddin and DW-4 Jalil Miyan.

10.Relying upon the aforesaid evidence adduced by the

prosecution, the trial court concluded that the prosecution

succeeded in proving its case beyond reasonable doubt and

convicted and sentenced the accused appellant accordingly.

11.The learned counsel for the appellant assailing the findings

of the trial court recorded in the impugned judgment argued that

the impugned judgment is a product of surmises and and

conjectures. The trial court did not appreciate the evidence on

record in a legal and proper manner and the findings are contrary

to law. The impugned judgment does not appear to be fair and

just conclusion of the episode which invites interference of the

appellate court and deserves to be set-aside. It has also been

submitted that the sentence imposed by the trial court is too

severe and the accused appellant invites indulgence of the

appellate court to acquit him. The dying declaration, which also

formed basis of conviction, is also not legally reliable. On the

aforesaid grounds it has been prayed that the accused appellant

be acquitted by allowing the present appeal.

12.Per contra, learned AGA appearing for the State has

contended that there is no legal or factual error in the impugned

judgment and it is a result of proper appreciation of facts and

evidence on record and the dying declaration is also a reliable

and cogent piece of evidence. On the aforesaid grounds,

dismissal of the present appeal was prayed for.

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13. Heard Shri Mahesh Prasad Yadav, learned counsel for the

appellant and Shri N.K. Srivastava, learned AGA for the State.

14.At the very outset, the fact which draws our attention is

that the present case rests upon the eye witness account. The

facts of the case find support from oral evidence as well as the

dying declaration of the deceased. It is found in the F.I.R. itself

and also in the oral testimonies of PW-1, father of the deceased

and PW-2, brother of the deceased, that earlier from the

occurrence the named accused persons including the present

appellant used to passing comments upon the deceased and their

mischief was complained of by the informant to their family

members also. As per the F.I.R. version at the time of occurrence

the appellant alongwith other two co-accused whose trial was

separated and sent to the Juvenile Justice Board, tried to give

mobile phone to the deceased forcibly but she refused to take it

being angry of which they tried to drag her and in the course of

this incident they poured kerosene oil upon the deceased and set

her ablaze.

15.PW-2, the brother of the deceased, has categorically stated

in his evidence that when on cry of his sister he reached the

spot, he saw the appellant Munna and other co-accused Adnan

and Amar surrounding his sister. Co-accused Adnan and Amar

poured kerosene oil over his sister and present appellant Munna

set her ablaze. At the time of occurrence his father Zahid, mother

Shamshadi Begum and other neighbourers came over there.

Hima ran towards the house and laid on a cot. They took her to

the hospital but after some time she died. The accused fled away

from the scene of occurrence. This statement finds support from

the statement of PW-1, informant, who has also categorically

confirmed the role of present appellant in the occurrence. PW-1

and PW-2 both have stated that the present appellant and other

co-accused used to tease the deceased and when she protested

on the fateful day she was set ablaze by them. The informant has

also proved the written report as Ext. A-1.

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16.PW-3, Smt. Asma Bee, who is a native of the same vicinity,

has also corroborated the prosecution version and has stated that

when on the cry of Hima she reached the spot, she saw her

burning and Munna, Adnan and Amar running away from there.

PW-1 and PW-2 have also stated that when Hima laid on the cot

after the occurrence she had told that Amar, Adnan and Munna

had set her ablaze and they used to tease her.

17.There is nothing in the cross-examination of PW-1, PW-2

and PW-3 which can be termed as inconsistent or untrustworthy

statement.

18.It has been contended by the learned counsel for the

appellant that there is no independent witness of the incident and

all the aforesaid three witnesses are the family members of the

deceased, which makes the prosecution story suspicious.

19.We do not find ourselves in agreement with the aforesaid

plea taken by the learned counsel for the appellant. The legal

position in respect of a relative witness has been made clear in a

catena of decisions by the Hon’ble Apex Court and by this Court

also. It is well settled that the testimony of a witness in a

criminal trial cannot be discarded merely because the witness is

relative or family member of the victim of the offence. In such a

case the Court has to adopt a careful approach in analysing the

evidence of such a witness and if the testimony of the related

witness is otherwise found credible the accused can be convicted

on the basis of testimony of such related witness. Recently, in

Surinder Kumar Vs. State of Punjab (2020) 2 SCC 563 Hon’ble

Supreme Court has reiterated that merely because prosecution

did not examine any independent witness, would not necessarily

lead to conclusion that accused was falsely implicated. The same

view has been taken in Bhagwan JagannathMarkad Vs. State of

Maharastra (2016) 10 SCC 537, Dhari & Others Vs. State of U.P.,

AIR 2013 SC 308, Shyam Babu Vs. State of U.P., AIR 2012 SC

3311, Shyamal Ghosh Vs. State of WB, AIR 2012 SC 3539, Dayal

Singh Vs. State of Uttaranchal, AIR 2012 SC 3046, Amit Vs.

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State of U.P., AIR 2012 SC 1433 and State of Haryana Vs.

Shakuntala & Others, 2012 (77) ACC 942 (SC). In view of the

aforesaid case laws and the trustworthy and cogent evidence of

PW-1, PW-2 and PW-3 we are of the considered view that the

learned trial court did not make any illegality in relying upon the

testimonies of the aforesaid witnesses.

20.PW-4, Head Constable Ram Chandra Sharma, has proved

the registration of F.I.R. on the basis of written report of

informant Zahid Khan. He has proved the chik F.I.R. as Ext. A-2

and G.D. as Ext. A-3 and no adversity is found in his deposition.

The proceedings of inquest has been proved by PW-6 S.I. Gandhi

Lal Sharma who has not only proved the inquest report but also

the papers sent for the post mortem i.e. challan nash, photo

nash, letter to C.M.O., letter to R.I. as Ext. A-5 to Ext. A-9 and

specimen seal as Ext. A-10. No unnatural statement has been

made by this witness also.

21.It is pertinent to mention here the evidence of PW-5 Dr.

Bhagwan Das, who has performed the autopsy of the deceased

Hima. In his deposition PW-5 has proved the Autopsy Report as

Ext. A-4 and the following ante mortem injuries were found by

him :

“Superficial to almost deep burn injury present over

body except lower abdomen and back of head. Front scalp

hair burnt. Skin peeled out at places read colour of base of

burn injury.”

He has also opined that death was caused due to shock and mild

asphyxia as a result of extensive burn injury over the body (in

the ante mortem injury). He has further stated that the deceased

was 95% burnt. She was brought to the emergency of the

hospital in a burn and living condition and was referred to

surgery and was examined on 20.5.2013 at 9.00 p.m. General

condition of the patient was very bad and pulse was not being

found and B.P. was very much low. It is noteworthy that the post

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mortem of the deceased was conducted on 21.5.2013 at 1.40

p.m. and the death occurred on 21.5.2013 at 5.30 a.m..

22.On the basis of aforesaid evidence, we reach the conclusion

that the offence was committed by the present appellant with the

aid of other co-accused by burning and the prosecution has

successfully proved its case to this extent.

23.Furthermore, from the statement of PW-1, PW-2 and PW-3

it is clear that the occurrence happened on the road near the

house of the informant. The topography of the place of

occurrence has been clearly shown in the site plan Ext. A-14

proved by PW-9, who has stated in his deposition that on

pointing out of the informant of the case he had inspected the

spot and prepared the site plan. Hence, the place of occurrence is

certain and we, therefore, do not find any force in the contention

of the learned counsel for the appellant regarding the fixation of

place of occurrence.

24.The motive of the case was also hit by the learned counsel

for the appellant, who has vehemently argued that the appellant

had no reason to set the deceased ablaze and there was no

previous enmity between the parties. Learned AGA has opposed

this plea and submitted that since the present case rests upon

the evidence of eye witnesses, there is no need to prove the

motive of the offence for the prosecution. We also find ourselves

in support of the plea taken by the learned AGA. In Bikau Pandey

Vs. State of Bihar (2003) 12 SCC 616 it has been held that when

the direct evidence establishes the crime, motive is of no

significance and pales into insignificance. In Anil Rai Vs. State of

Bihar (2001) 7 SCC 318 it has been held that enmity is a double

edged weapon which can be a motive for the crime as also the

ground for false implication of the accused persons.

25.There are catena of decisions on the point that in a case

based upon the eye witness account, the motive loses its

significance. In Deepak Verma Vs. State of Himachal Pradesh

(2011) 10 SCC 129 It has been held as under:

8

“...Proof of motive is not a sine qua non

before a person can be held guilty of

commission of crime. Motive being a matter of

mind, is more often than not difficult to

establish through evidence.”

26.Moreover, in the present case it has been fully established

by the cogent and reliable evidence of PW-1 PW-2 that the

accused appellant used to tease the deceased who was a young

girl alongwith other co-accused persons and when they failed in

their planning to give a mobile phone to her to be in regular

contact with her, they set her ablaze.

27.The trial court in the impugned judgment has discussed the

aforesaid points at length and has made a categorical finding

that the prosecution case is fully established on the basis of

cogent and reliable evidence on the aforesaid points.

28.Both sides have made their rival contentions upon the

veracity of dying declaration of the deceased. PW-7 the Nayab

Tehsildar, Sadar has recorded the dying declaration of the

deceased on 20.5.2013. Dying-declaration was recorded by him

after obtaining the certificate of mental-fitness from doctor in

the hospital. After completion of dying-declaration also the said

doctor has given certificate that during the course of statement,

the victim remained conscious.

29. 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 so done, if it is not tutored, made voluntarily and is wholly

reliable. In this regard, Hon'ble Apex Court has summarized the

law regarding dying declaration in Lakhan vs. State of Madhya

Pradesh [(2010) 8 Supreme Court Cases 514], in this case,

Hon'ble Apex Court held that the doctrine of dying declaration is

enshrined in the legal maxim nemo moriturus praesumitur

mentire, which means, "a man will not meet his Maker with a lie

in his mouth". The doctrine of dying declaration is enshrined in

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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 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.

30. The law on the issue of dying declaration can be summarized

to the effect that in case the court comes to the conclusion that

the dying declaration is true and reliable, has been recorded by

a person at a time when the deceased was fit physically and

mentally to make the declaration and it has not been made

under any tutoring/duress/prompting; it can be the sole basis

for recording conviction. In such an eventuality no corroboration

is required. It is also held by Hon'ble Apex Court in the aforesaid

case of Lakhan (supra) that a dying declaration recorded by a

competent Magistrate would stand on a much higher footing

than the declaration recorded by officer 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.

31. 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

10

accused. Hence, in order to pass the test reliability, a dying

declaration has to be subjected to a very close scrutiny, keeping

in view the fact that the statement has been made in the

absence of the accused, who had no opportunity of testing the

veracity of the statement by cross-examination. But once, the

court has come to the conclusion that the dying declaration was

the truthful version as to the circumstance of the death and the

assailants of the victim, there is no question of further

corroboration.

32. 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.

33. 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.

34.In the present case, dying declaration of the deceased was

recorded by Nayab Tehsildar, Sadar, Pilibhit after obtaining the

certificate of medical fitness from the concerned doctor. This

11

dying declaration was proved by him. This witness is absolutely

an independent witness and has no grudge or enmity to the

convict at all. 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 accused

appellant, who were actual culprit.

35.Learned counsel for the appellant has also assailed the

proceedings of the investigation and has argued hat the

investigation has not been done in a proper manner and there

are several lacunas in the investigation. Learned trial court has

elaborately discussed the several aspects of the investigation of

the case and has found that there is no material lacuna or

omission in the investigation of the case and we concur with the

same. Moreover, it is also to be kept in mind that even if the

investigation of the case is faulty but the prosecution succeeds to

prove its case on the basis of other cogent evidence on record, it

makes no adverse affect over the prosecution case. In Hema Vs.

State (2013) 81 ACC 1 (Supreme Court) it has been held by the

Hon'ble Apex Court that any irregularity or deficiency in

investigation by I.O. need not necessarily lead to rejection of the

case on prosecution when it is otherwise proved. The only

requirement is to use of extra caution. The defective investigation

cannot be fatal to prosecution when ocular testimony is found

credible and cogent. It may be reiterated at the cause of

repetition that investigation in the present case does not suffer

with any material irregularity which goes to the root of the

prosecution case.

36.One specific argument has been made from the side of the

appellant to the effect that the prosecution has not disclosed the

genesis of the case in truthful manner and many material facts

have been concealed. It is vehemently argued that it was not a

homicidal death but the deceased committed suicide by setting

her ablaze herself in the house of the informant himself. DW-1,

12

DW-2 and DW-4 have been examined from the defence side to

prove the aforesaid facts. They have stated in their respective

depositions that at the time of the occurrence they had seen the

deceased in burning condition over the roof of Zahid, the

informant. They went over there and found that Hima was lying

on the bed in burning condition and they had brought her away

to the hospital. They have also stated that at the time of

occurrence there was a power cut in the vicinity and they live

nearby the house of the accused. DW-3 has also been examined

to prove the factum of power cut at the time of occurrence. He is

an employee of Electricity Division, Pilibhit and on the basis of

official register he has proved this fact that on 20.5.2013 there

was a shut-down in mohalla Beni Chaudhary from 8.05 p.m. to

8.35 p.m..

37.Learned AGA has vehemently opposed the aforesaid plea

taken by the learned counsel for the appellant and contended

that the parties were known to each other as they lived in the

same vicinity which is called mohalla Beni Chaudhary, Pilibhit.

Even if it is presumed that there was power cut at the time of

occurrence, it cannot be said that the accused and his friends

could not be identified by the prosecution witnesses of fact.

Moreover, deceased was seen in burning condition by PW-1, PW-2

and PW-3 and in the light of the fire itself they could easily be

identified by the witnesses. Hence, the evidence of DW-3 is of no

help to the convict / appellant. The attention of this Court was

also drawn by the learned AGA to the fact that DW-1 has stated

in his evidence that the inquest proceedings were performed

before him and he had made signature over the inquest report

but he has admitted that at the time of inquest he did not

disclose this fact to the police that it was a suicidal case. This

omission makes his deposition unreliable. Likewise, testimony of

DW-2 is also not reliable. In his cross-examination he has stated

that whatsoever he has stated in his examination-in-chief he had

informed to the police. It is noteworthy that there is nothing on

13

record in writing regarding this fact. So far as the testimony of

DW-4 is concerned, he has not seen the occurrence and has only

seen the deceased crying and burning.

38.Learned trial court has discussed the defence evidence,

above mentioned, at length and found it not reliable and we

concur with the same.

39.Considering the evidence of the witnesses, the medical

evidence including post mortem report and also considering the

dying declaration, there is no doubt left in our mind about the

guilt of the present appellant.

40.However, the question which falls for our consideration is

whether, on reappraisal of the peculiar facts and circumstances of

the case, the conviction of the appellant under Section 302 of

I.P.C. of the Indian Penal Code should be upheld or the conviction

deserves to be converted under Section 304 Part-I or Part-II of

the Indian Penal Code. It would be relevant to refer Section 299

of the Indian Penal Code, which read as under:

“299. Culpable homicide: Whoever causes death by doing an act with

the intention of causing death, or with the intention of causing such

bodily injury as is likely to cause death, or with the knowledge that he

is likely by such act to cause death, commits the offence of culpable

homicide."

41.The academic distinction between ‘murder’ and ‘culpable

homicide not amounting to murder’ has always vexed the Courts.

The confusion is caused, if Courts losing sight of the true scope

and meaning of the terms used by the legislature in these

sections, allow themselves to be drawn into minute abstractions.

The safest way of approach to the interpretation and application

of these provisions seems to be to keep in focus the keywords

used in the various clauses of Section 299 and 300 of I.P.Code.

The following comparative table will be helpful in appreciating the

points of distinction between the two offences.

Section 299 Section 300

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A person commits culpable homicide if

the act by which the death is caused is

done-

Subject to certain exceptions culpable

homicide is murder is the act by which

the death is caused is done.

INTENTION

(a) with the intention of causing

death; or

(1) with the intention of causing

death; or

(b) with the intention of causing such

bodily injury as is likely to

cause death; or

(2) with the intention of causing such

bodily injury as the offender knows

to be likely to

cause the death of the person to

whom the harm is caused;

KNOWLEDGE KNOWLEDGE

(c) with the knowledge that the act is

likely to cause death.

(4) with the knowledge that the act is

so immediately dangerous

that it must in all probability cause

death or such bodily injury as is

likely to cause death, and without

any excuse for incurring the risk of

causing death or such injury as is

mentioned above.

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

present case coupled with the opinion of the Medical Officer and

considering the principle laid down by the Apex Court in the Case

of Tukaram and Ors Vs. State of Maharashtra, reported in (2011)

4 SCC 250 and in the case of B.N. Kavatakar and Another Vs.

State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are

of the considered opinion that the offence would be one

punishable under Section 304 part-I of the IPC.

43.From the upshot of the aforesaid discussions, it appears

that the death caused by the accused was not premeditated,

accused had no intention to cause death of deceased, 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

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and 4 to Section 300 of IPC. While considering Section 299 as

reproduced herein above offence committed will fall under

Section 304 Part-I as per the observations of the Apex Court in

Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300

which have to be also kept in mind.

44.In latest decision in Khokan Alias Khokhan Vishwas vs.

State of Chhattisgarh, (2021) 2 Supreme Court Cases 365 where

the facts were similar to this case, the Apex Court has allowed

the appeal of the accused appellant. The decision of the Apex

Court in the case of Anversinh v. State of Gujarat, (2021) 3 SCC

12 which was related to kidnapping from legal guardian, wherein

it was established that the Court while respecting the concerns of

both society and victim, propounded that the twin principle of

deterrence and correction would be served by reducing the

period of incarceration already undergone by the accused. In our

case, this is not that gruesome murder where the accused cannot

be dealt with in light of all these judgments. Judgments in Pravat

Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 &

Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure

for the benefit of the accused.

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

appeal is liable be partly allowed and the conviction of the

appellant under Section 302 IPC is liable to be converted into

conviction under Section 304 (Part-I) IPC.

46.Accordingly, appeal is partly allowed and the appellant is

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

sentenced to undergo ten years of incarceration with remission.

We maintain the fine amount and default sentence, which will

start if fine is not deposited after ten years with remission.

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

forthwith.

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48. 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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