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Court No. - 44 A.F.R.

Case :- CRIMINAL APPEAL No. - 1791 of 2014

Appellant :- Shri Prakash Gupta

Respondent :- State of U.P.

Counsel for Appellant :- Pushkar Srivastava,Akhilesh Kumar

Counsel for Respondent :- Govt. Advocate

Hon'ble Dr. Kaushal Jayendra Thaker, J.

Hon'ble Nalin Kumar Srivastava,J.

(Per: Hon'ble Nalin Kumar Srivastava, J)

1.This criminal appeal is directed against the judgement and

order dated 25.2.2014 and sentence dated 27.2.2014 passed by

learned Additional Sessions Judge, Court No.6, Deoria in Sessions

Trial No. 246 of 2010 arising out of Case Crime No. 221 of 2010

under Section 302 I.P.C., P.S.-Bhatparani, District- Deoria

convicting and sentencing the appellant under Section 302 I.P.C. to

undergo life imprisonment with a fine of Rs.20,000/- and in default

of payment of fine further one year simple imprisonment.

2.The prosecution story as emerged out from the FIR is that

Chandni, the sister of the informant was married with Rajan Gupta

on 12.12.2006 but the husband was not satisfied with the dowry

given in the marriage and always used to quarrel over that. On

8.6.2010, the informant came to know that the in-laws of the

deceased had set ablaze his sister. On the next day when the

informant went to the District Hospital, Deoria, he found his sister

in a bitterly burnt condition and she told that her mother-in-law,

Guddi Devi (Chacheri), father-in-law Shriprakash Gupta caught

hold her and her mother-in-law Guddi Devi, sister-in-law Km. Rani

and husband Rajan Gupta set her ablaze. The deceased (then

injured) referred to the Medical College, Gorakhpur and during

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treatment she died on 12.6.2010. Subsequently FIR, Ex.Ka-3 was

lodged on the written report Ex.Ka-1 on 16.6.2010 and G.D.

Ex.Ka-4 was also prepared. The inquest of the deceased was

performed and autopsy report was also prepared by Dr. Arvind

Kumar Gupta, who found injuries as whole on the body of the

deceased.

(i) Septic burn all over body except some part of abdomen and

scalp. Superficial to deep first layer present at some place.

3.In the injury report the doctor also opined that the death was

caused due to septic shock as a result of anti mortem burning.

After completion of investigation charge sheet Ex.Ka-16 was

submitted by the I.O against the Guddi Devi and Shriprakash

Gupta, mother-in-law and father-in-law respectively of the

deceased. The I.O. Inspected the spot and prepared site plan

Ex.Ka-13, Inspection memo Ex.Ka-14 and submitted charge sheet

Ex.Ka16 to the Court.

4.During the trial of the case accused Smt. Guddi Devi died

and the case was abated against her.

5.The accused Shriprakash Gupta were charged under Section

498A, 304 B I.P.C. and Section 3/4 D.P. Act. He was also charged

under Section 302/34 I.P.C. The accused denied of the charges and

claimed to be tried.

6.The prosecution in order to prove its case in oral evidence

has relied upon the testimonies of P.W.1 Santosh Kumar Gupta, the

informant/ brother of the deceased, P.W.2 Urmila Devi, mother of

the deceased, P.W.3 Cons. Kalicharan Yadav, the witness of the

inquest, P.W.4 Head Moharir Veer Bahadur Yadav scribe of the

FIR, P.W.5 S.I. Amarjeet Singh Yadav, witness of the inquest,

P.W.6 Gulab Singh, retired Nayab Tehsildar, witness of the dying

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declaration and P.W.7 Dr. Arvind Kumar Gupta, who performed

autopsy of the deceased.

7.The prosecution also relied upon documentary evidence and

written report Ex.Ka-1, panchayatnama Ex.Ka-2, Chick FIR

Ex.Ka-3, Kayami Rapat Ex.Ka-4, papers prepared for the purpose

of autopsy as Ex.Ka-5, Ex.Ka-6, Ex.Ka-7, Ex.Ka-8, Ex.Ka-9,

Ex.Ka-10, photo nash Ex.Ka-11, dying declaration Ex.Ka-12, site

plan Ex.Ka-13, inspection memo Ex.Ka-14, arresting memo

Ex.Ka-15 and charge sheet Ex.Ka-16.

8.It is pertinent to mention here that the genuineness of the site

plan and charge sheet has been admitted by the defence side, hence

the I.O. was not examined during the trial. In his statement under

Section 313 Cr.P.C., the accused stated that he has been falsely

implicated. The dying declaration is a forged document and the

total incident is false. It has also been stated that at the time of the

incident, the husband of the deceased Rajan Gupta had gone to the

market. When the information of burning was given to him he

brought the injured to District Hospital, Deoria and subsequently

to the Medical College, Gorakhpur where she was admitted and

during treatment she was died. The cremation was also performed

by her husband Rajan Gupta. The charge sheet has been filed

without any evidence on false grounds and it was not a case of

homicidal or dowry death. However, no defence evidence has been

adduced by the convict/ appellant.

9.The trial Court after considering the entire evidence on

record, recorded the acquittal of the convict/ appellant

Shriprakash. Gupta under Section 498A, 304B and 3/4 D.P. Act

and at the same time recorded his conviction under Section 302

I.P.C. and sentenced him for life imprisonment and a fine to the

tune of Rs.20,000/-

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10.Being aggrieved and dissatisfied with the aforesaid

judgement and order passed by the learned trial Court, the

appellant has preferred the present appeal.

11.Heard Shri Naushad Ahmad Siddiqui, learned counsel for

the appellant and Shri N.K. Srivastava, learned A.G.A. for the

State.

12. Learned counsel for the appellant has submitted that no

offence as alleged has been committed by the accused. It is further

submitted that the accused had no motive to do away with the

deceased and that the death of the deceased was due to medical

negligence and occurred was after a considerable period of time

from the date of commission of occurrence.

13.It has been vehemently argued by learned A.G.A. for the

State that the offence alleged is gruesome and is conclusively

proved by dying declaration. Learned counsel has taken us through

the evidence on record. He further submitted that life

imprisonment awarded to the accused in the facts and

circumstances of the case was the only punishment which could be

awarded to the accused-appellant and requested for dismissal of

appeal.

14.Before we start considering the evidence which we are not

elaborately discussing, the reason being it is proved conclusively

that the accused has caused injuries to the deceased and set her

ablaze which was primarily responsible for her death. The

alternative prayer about lesser punishment is to be considered.

15.After perusal of the impugned judgement, we find that the

learned trial Court was not convinced as to the ingredients of

Section 304B of Indian Penal Code and fully establishing in the

present case on appreciation of the evidence of P.W.1 and P.W.2,

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who happened to be the brother and mother of the deceased

respectively. The trial Court has opined that the ingredients of

Section 304B, 498A I.P.C. and Section 3/4 Dowry Prohibition Act

were not established. The impugned judgement leads us towards

the definition of Section 304B I.P.C. Necessary ingredients of the

offence of dowry death under Section 304B I.P.C. reads as

follows:

304B. Dowry death.—

(1) Where the death of a woman is caused by any

burns or bodily injury or occurs otherwise than under

normal circumstances within seven years of her

marriage and it is shown that soon before her death

she was subjected to cruelty or harassment by her

husband or any relative of her husband for, or in

connection with, any demand for dowry, such death

shall be called “dowry death”, and such husband or

relative shall be deemed to have caused her death.

Explanation.—For the purpose of this sub-section,

“dowry” shall have the same meaning as in section 2

of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished

with imprisonment for a term which shall not be less

than seven years but which may extend to

imprisonment for life.]

16.From the above definition the following ingredients to

establish the offence under Section 304B I.P.C. are follows:

(i) the death of a woman must have been

caused by burns or bodily injury or otherwise

than under normal circumstances;

(ii) such death must have occurred within

seven years of her marriage;

(iii) soon before her death, the woman must

have been subjected to cruelty or harassment

by her husband or any relatives of her

husband;

(iv) such cruelty or harassment must be for, or

in connection with, demand for dowry”.

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17.The aforesaid ingredients have been reiterated in a catena of

decisions of the Hon’ble Apex Court and of this High Court also

and very recently in Devendra Singh Vs. State of Uttrakhand

AIR 2022 SC 2965 also.

18.We have gone through the evidence of P.W.1 and P.W.2 and

find that although the factum of demand of dowry and harassment

caused to the deceased finds place in their deposition but they have

made only general allegations against all the in-laws of the

deceased and no specific role of any of the in-laws including the

present accused has been stated in their entire testimony. The trial

court considering the aforesaid deposition has also held that no

case is made out against the accused under Section 498A I.P.C.

and Section 3/4 D.P. Act. So far as the offence under Section 304B

I.P.C. is concerned the essential ingredients of 'soon before' does

not find place any where in the respective testimonies of P.W.1 and

P.W.2.

19.The phrase 'soon before' has not been defined any where in

the Indian Penal Code rather it has been explained in a catena of

decisions of the Hon'ble Apex Court and of this Court.

20.In Mustafa Shahdal Shaikh Vs. State of Maharashtra,

AIR 2013 SC 851, the Hon'ble Apex Court held that ‘Soon before

her death’ means interval between cruelty and death should not be

much. There must be existence of a proximate and live links

between the effect of cruelty based on dowry demand and the

concerned death. If the alleged incident of cruelty is remote in

time and has become state enough not to disturb the mental

equilibrium of the woman concerned, it would be of no

consequence.

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21.Also in Kaliyaperumal Vs. State of Tamil Nadu AIR 2003

SC 3828, the Hon’ble Apex Court held that “ The expression ‘soon

before her death’ used in the substantive section 304B, I.P.C. and

Section 113B of the Evidence Act is present with the idea of

proximity text. No definite period has been indicated and the

expression ‘soon before her death’ is not defined. The

determination of the period which can come within the term ‘ soon

before’ is left to be determined by the courts, depending upon facts

and circumstances of each case. Suffice, however, to indicate that

the expression’ soon before would normally imply that the interval

should not be much between the concerned cruelty or harassment

and the death in question. There must be existence of a proximate

and live-link between the effect of cruelty based on dowry demand

and the concerned death. If alleged incident of cruelty is remote in

time and has become stale enough not to disturb mental

equilibrium of woman concerned, it would be of no consequence.

22.The trial Court has come to the conclusion that since the

essential ingredient of 'soon before' is also absent in the

testimonies of the witnesses, the death occurred of the deceased

cannot be termed as dowry death in the facts and circumstances of

this case. It is to be noted here that the formal evidence adduced

by the prosecution support the prosecution case in many aspects.

P.W.4 Head Moharrir Veer Bahadur Yadav has fully proved the

Chick FIR and G.D. of the case as Ex.Ka-3 and Ka-4 and has

stated that the FIR was lodged on the basis of the application given

by the informant Santosh Kumar, which has been proved by the

informant P.W.1 Santosh Kumar as Ex.Ka-1. Like wise the

performance of inquest has been proved by Constable Kalicharan

P.W.3 and also by P.W.5 S.I. Amarjeet Singh Yadav. P.W.5 has also

proved the papers prepared for the purpose of autopsy as Ex.Ka-5,

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Ex.Ka-6, Ex.Ka-7, Ex.Ka-8, Ex.Ka-9 and Ex.Ka-10. Both the

witnesses have also proved that the inquest was performed on

13.6.2010 at the mortuary house of the B.R.D. Medical College,

Gorakhpur.

23.P.W.7 Dr. Arvind Kumar Gupta has performed the autopsy

of the deceased and he has proved the autopsy report as Ex.Ka-12

and has found that the death of the deceased was caused due to

septic shock as a result of anti mortem burning . The post mortem

has been conducted on 13.6.2010 and the deceased died on

12.6.2010.

24.The learned trial Court has relied upon the dying declaration

of the deceased (then injured) recorded by P.W.6 retired Nayab

Tehsildar Gulab Singh.

25.P.W.6 in his deposition has stated that by order of S.D.M.

Sadar, Deoria he had recorded the dying declaration of Chandni

Devi on 9.6.2010 in the female ward of District Hospital, Deoria.

He has proved the dying declaration as Ex.Ka-11 and has also

stated that the dying declaration was prepared by him in his own

hand writing and signature.

26.The deceased (then injured) in her dying declaration has

stated like this

“मैं बयान करती हूँ किक मेरी उम्र 23 plnoAdo1s.sofHou's

हैं। मेरे सासु व ससुर जलाये है। मेरे उपर किमट्टी का तेल

छि"ड़क कर जलाये तथा मारे पीटे है मेरे पतित गाड़ी से लेकर

अस्पताल लेकर देवरिरया आये अस्पताल भत- कराये। मेरे

सासु ससुर मुझे व मेरे पतित को घर से किनकाल रहे हैं कहते हैं

तुम लोगों का हक किहस्सा नहीं है। भसुर मेरा ठीक है। के वल

मेरे सासु ससुर ही बदमाश है वही जलाये हैं बयान सुनकर

तस्दीक किकया।”

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27.P.W.6 in his testimony has stated that the thumb impression

of Chandni Gupta was taken over the dying declaration. He has

also clarified that at the time of statement, the victim was bitterly

burnt but was in a condition to make statement. He had orally

taken permission from the doctor concerned who had told him that

the victim is in a condition to make statement. He has further

stated that the statement of the victim was verified by the duty

doctor.

28.The trial Court has examined the veracity of the dying

declaration Ex.Ka-11 in detail in the impugned judgement. From

the perusal of the whole deposition of P.W.6, we do not find any

adversity in his statement. The learned trial Court has made the

dying declaration to be the sole basis of the conviction in the facts

and circumstances of the present case. We are duty bound to

examine the legal position of the dying declaration. The dying

declaration to be the sole basis of the conviction.

29.Legal position of dying declaration to be the sole basis of

conviction is that it can be done so if it is not tutored, made

voluntarily and is wholly reliable. In this regard, Hon'ble Apex

Court has summarized the law regarding dying declaration in

Lakhan vs. State of Madhya Pradesh [(2010) 8 Supreme Court

Cases 514], in this case, Hon'ble Apex Court held that the doctrine

of dying declaration is enshrined in the legal maxim nemo

moriturus praesumitur mentire, which means, "a man will not

meet his Maker with a lie in his mouth". The doctrine of dying

declaration is enshrined in Section 32 of Evidence Act, 1872, as an

exception to the general rule contained in Section 60 of Evidence

Act, which provides that oral evidence in all cases must be 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

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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, 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.

31.P.W.6 is absolutely independent witness. 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 reliability, a dying

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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.In the present case though the certificate of the doctor was

oral, and not in written form but this fact cannot be ignored that

P.W.6 has recorded the statement on the instructions of S.D.M.

Sadar in his official capacity and he had no grudge or enmity with

the accused.

34.There is no possibility of false implication of the accused by

this independent witness.

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35.From the above precedents, it clearly emerges that it is not

an absolute principle of law that a dying declaration cannot form

the sole basis of conviction of an accused when such dying

declaration is true, reliable and has been recorded in accordance

with established practice and principles and if it is recorded so

then there cannot be any challenge regarding its correctness and

authenticity.

36.In context of the dying deceleration of the deceased, it is

also relevant to note that deceased died after three days of

recording it. It means that she remained alive for three days after

making dying declaration, therefore, truthfulness of dying

declaration can further be evaluated from the fact that she survived

for three days after making it from which it can reasonably be

inferred that she was in a fit mental condition to make the

statement at the relevant time.

37.Thus, the dying declaration in this case is a trust worthy,

cogent, reliable and innocent peace of evidence, which has

correctly been relied upon by the trial Court.

38.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. 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 reads 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

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cause death, commits the offence of culpable

homicide."

39.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

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,

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and without any excuse for

incurring the risk of causing

death or such injury as is

mentioned above.

40.From the upshot of the aforesaid discussions, it appears that

the death was caused by the accused in unison and it was a

homicidal death whether the same was not premeditated or

premeditated will have to be seen. From perusal of the dying

declaration itself, it is evident that the crime was committed due to

the property dispute. It transpires from the evidence of P.W.1 and

P.W.2 that on account of property dispute the deceased and her

husband were kicked out by the in-laws of the deceased from their

house. Under these circumstance, it can be concluded that though

the injuries over the body of the deceased were sufficient in the

ordinary course of nature to have caused death, the accused had no

intention to do away with the deceased, hence the instant case falls

under the Exceptions 1 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.

41.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

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be one punishable under Section 304 part-I of the IPC. The

deceased no doubt as per the the opinion of the doctor, has died

due to septic shock.

42.In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926],

explaining rehabilitary & reformative aspects in sentencing it has

been observed by the Supreme Court:

"Crime is a pathological aberration. The criminal can

ordinarily be redeemed and the state has to

rehabilitate rather than avenge. The sub-culture that

leads to ante-social behaviour has to be countered not

by undue cruelty but by reculturization. Therefore,

the focus of interest in penology in the individual and

the goal is salvaging him for the society. The

infliction of harsh and savage punishment is thus a

relic of past and regressive times. The human today

vies sentencing as a process of reshaping a person

who has deteriorated into criminality and the modern

community has a primary stake in the rehabilitation

of the offender as a means of a social defence. Hence

a therapeutic, rather than an 'in terrorem' outlook

should prevail in our criminal courts, since brutal

incarceration of the person merely produces

laceration of his mind. If you are to punish a man

retributively, you must injure him. If you are to

reform him, you must improve him and, men are not

improved by injuries."

43.'Proper Sentence' was explained in Deo Narain Mandal vs.

State of UP [(2004) 7 SCC 257] by observing that Sentence

should not be either excessively harsh or ridiculously low. While

determining the quantum of sentence, the court should bear in

mind the 'principle of proportionality'. Sentence should be based

on facts of a given case. Gravity of offence, manner of

commission of crime, age and sex of accused should be taken into

account. Discretion of Court in awarding sentence cannot be

exercised arbitrarily or whimsically.

44.In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166,

the Supreme Court referred the judgments in Jameel vs State of

UP [(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak,

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[(2012) 8 SCC 734], Sumer Singh vs Surajbhan Singh, [(2014)

7 SCC 323], State of Punjab vs Bawa Singh, [(2015) 3 SCC

441], and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] and

has reiterated that, in operating the sentencing system, law should

adopt corrective machinery or deterrence based on factual matrix.

Facts and given circumstances in each case, nature of crime,

manner in which it was planned and committed, motive for

commission of crime, conduct of accused, nature of weapons used

and all other attending circumstances are relevant facts which

would enter into area of consideration. Further, undue sympathy in

sentencing would do more harm to justice dispensations and would

undermine the public confidence in the efficacy of law. It is the

duty of every court to award proper sentence having regard to

nature of offence and manner of its commission. The supreme

court further said that courts must not only keep in view the right

of victim of crime but also society at large. While considering

imposition of appropriate punishment, the impact of crime on the

society as a whole and rule of law needs to be balanced. The

judicial trend in the country has been towards striking a balance

between reform and punishment. The protection of society and

stamping out criminal proclivity must be the object of law which

can be achieved by imposing appropriate sentence on criminals

and wrongdoers. Law, as a tool to maintain order and peace,

should effectively meet challenges confronting the society, as

society could not long endure and develop under serious threats of

crime and disharmony. It is therefore, necessary to avoid undue

leniency in imposition of sentence. Thus, the criminal justice

jurisprudence adopted in the country is not retributive but

reformative and corrective. At the same time, undue harshness

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should also be avoided keeping in view the reformative approach

underlying in our criminal justice system.

45.Keeping in view the facts and circumstances of the case and

also keeping in view criminal jurisprudence in our country which

is reformative and corrective and not retributive, this Court

considers that no accused person is incapable of being reformed

and therefore, all measures should be applied to give them an

opportunity of reformation in order to bring them in the social

stream.

46.During course of argument, learned counsel for the appellant

has made an alternative prayer for reduction of the sentence and

has submitted that the sentence of life imprisonment awarded to

the appellant by the trial Court is very harsh. He has also

submitted that the appellant is languishing in jail for the past more

than 10 years and at present he is aged about 70 years and the co-

accused, the mother-in-law of the deceased died during the course

of trial itself. Hence a prayer has been made to reduce the sentence

of the convict to 10 years.

47.As discussed above, 'reformative theory of punishment' is to

be adopted and for that reason, it is necessary to impose

punishment keeping in view the 'doctrine of proportionality'. It

appears from perusal of impugned judgment that sentence awarded

by learned trial court for life term is very harsh keeping in view

the entirety of facts and circumstances of the case and gravity of

offence. Hon'ble Apex Court, as discussed above, has held that

undue harshness should be avoided taking into account the

reformative approach underlying in criminal justice system.

48.We are unable to agree with the submission of learned

learned A.G.A. as far as it relates to the finding of the court below

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that the death was a premeditated murder and falls within

provisions of Section 300 of IPC and the sentence under Section

302 IPC is just and proper. The reason for the same is that the

deceased did not die an insistence death; had it been a

premeditated murder, the injuries on the body would have caused

her immediate death.

49.One more glaring fact is that from the record of the medical

papers it is evident that the deceased survived for four days. She

was admitted in Medical College, Gorakhpur and thereafter she

developed fissure and later on during treatment, she breathed her

last due to septicemia. Though we concur with learned Trial Judge

that the death was homicidal death we are unable to accept the

submission of Sri Vikas Goswami, learned A.G.A.

50.The judgment of the Apex Court in State of Uttar Pradesh

Vs. Subhash @ Pappu ( supra) and Khokan @ Khokhan Vishwas

Vs. State of Chhattisgarh ( supra) will ensure for the benefit for the

accused-appellant as the death occurred after four days of the

occurrence, was not premeditated.

51.We come to the definite conclusion that the death was due to

septicemia. The judgments cited by the learned counsel for the

appellant would permit us to uphold our finding which we

conclusively hold that the offence is not under Section 302 of

I.P.C. but is culpable homicide.

52.The accused is in jail for more than 10 years. The Apex

Court in such cases has converted the conviction under Section

302 of I.P.C. to Section 304 Part I of I.P.C. which will come to the

aid of the accused.

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53.In view of the aforementioned discussion, we are of the view

that the appeal has to be partly allowed, hence, appeal is partly

allowed.

54.The conviction of the appellant under Section 302 of Indian

Penal Code is converted to conviction under Section 304 (Part-I)

of Indian Penal Code and the appellant is sentenced to undergo 10

years of incarceration with remission but the fine and default

sentence are maintained.

55.The convict- appellant shall be released on completion of

said period, if not required in any other case. The judgement and

order impugned in this appeal shall stand modified accordingly.

Order Date :- 17.10.2022

Fhd

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