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Court No. - 45 A.F.R.

Case :- CRIMINAL APPEAL No. - 2137 of 2015

Appellant :- Smt. Sudha And Another

Respondent :- State of U.P.

Counsel for Appellant :- Nipun Singh,Manoj Vashisth,Santosh

Kumar Tiwari,Santosh Tripathi

Counsel for Respondent :- Govt.Advocate

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Vikas Budhwar,J.

(Oral Judgment by Hon'ble Vikas Budhwar, J.)

1.This appeal has been preferred against the judgment and order

dated 8.5.2015 passed by learned Sessions Judge, Meerut in Special

Trial No.519 of 2011 (State Vs. Smt. Sudha and another) arising out of

Case Crime No.190 of 2000, under Sections 498A, 304B in alternate

Section 302 IPC and Section 3/4 the Dowry Prohibition Act, P.S.

Partapur, Meerut whereby the appellants have been convicted under

Section 302 of the IPC for life imprisonment along with find of

Rs.20,000/- each and in default of the payment of fine an additional

imprisonment of one year.

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

registered on 19.5.2000 at 15.30 p.m. on the basis of an application

moved by the complainant, father of the deceased being Smt. Jaya in

police station Partapur, District Meerut alleging that the daughter of

the complainant being Smt. Jaya aged about 23 years solemnized

marriage with one Sri Raghuvir s/o Dev Dutt Swarnkar r/o

Acchrauden, P.S. Partapur, District Meerut on 15.2.1999 after offering

expensive gifts such as Shelf, T.V., Cooler, Double Bed, Sofa, Sewing

Machine, Cooking ware, Wall Clock, Gas Cylinder, Clothes and

Jewellery but neither the accused nor the family members were happy

with gifts so offerred to them, whenever Smt. Jaya (Deceased) used to

visit her parental house, then she used to make complaint of the

appellants being sister-in-laws and Sri Raghuvir s/o Dev Dutt

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Swarnkar the husband, that dowry was being demanded them and they

used to administer beating.

3.In the FIR, it was further alleged by the complainant that on

5.5.2000, he received information that his daughter being the

deceased/victim had sustained burn injuries. Accordingly, he along

with his wife rushed to the matrimonial house of his daughter on

6.5.2000 and thereafter, the complainant was apprised that Smt. Jaya,

being the daughter of the complainant, has been admitted by her

husband namely Sri Raghuvir s/o Dev Dutt Swarnkar and mother-in-

law in Jeevan hospital at Modi Nagar, Meerut.

4.Accordingly, the complainant visited the hospital and the

daughter of the complainant, however, did not disclose any facts to

either the complainant or his wife. Subsequently, the daughter of the

complainant being Smt. Jaya wife of Sri Raghuvir s/o Dev Dutt

Swarnkar was referred to Safdarjung Hospital Delhi for treatment. The

statement of Smt. Jaya being the daughter of the complainant was

recorded by the Magistrate on 7.5.2000 in the presence of the

complainant, in which, the daughter of the complainant narrated the

facts that on 30.4.2000, the appellants, who happened to be her sister-

in-laws, used to often quarrel and administer beating upon her and on

30.4.2000, the appellants poured kerosene oil over her and thereafter

the appellant no.1 ignited the same. At the relevant point of time, Sri

Raghuvir, who happened to be the husband of the deceased/ Smt. Jaya

was present, but he allowed her sisters, being the appellant, to push

away from the spot, he poured water over the deceased and when

request was being made by the deceased for taking her for proper

treatment, the husband of the deceased took the deceased to a medical

practitioner in village Saidpur, bandage was wrapped over her. In her

statement, the deceased also stated that she was not taken anywhere

with a view that she may not write a letter to anyone narrating the said

incident and she was locked in the room. It was further alleged in the

first information report that during the course of the treatment, the

complainant's daughter being Smt. Jaya succumbed to burn injuries on

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12.5.2000 in Safdarjung Hospital. On the basis of the complaint dated

19.5.2000, the FIR was registered.

5.Consequent to the lodging of the complaint, as noted above, a

first information report was lodged under Section 304B IPC, 1860 on

18.5.2000 against the appellants being Case Crime No.190 of 2000

before the police station Partapur, Meerut. S.I. Om Prakash took up

the investigation. During the course of the investigation, he recorded

the statement of the witnesses, prepared site plan, victim's dying

declaration was also recorded by S.D.M. Najafgarh. After the death of

the victim, inquest report was prepared and the dead-body was sent for

postmortem.

6.After completing the investigation, the Investigation Officer

submitted the charge sheet against the accused Raghuvir s/o Dev Dutt

Swarnkar (husband) and against the appellants, who were absconding.

Hence the investigation was kept pending against them.

7.The file of Sri Raghuvir s/o Dev Dutt Swarnkar being the

husband of the victim was committed to the Court of Sessions by the

Magistrate concerned and the Sessions Trial No.1095 of 2000 was

proceeded with, which culminated into an order passed by the Court

of Fast Track/Additional District and Sessions Judge, Meerut on

14.3.2003. However, the investigation which was pending against the

appellants was concluded and given to its logical end while filing of

the charge sheet against the appellants for the offences punishable

under Sections 498A, 304B of the IPC, 1860 read with Section 3/4

Dowry Prohibition Act. The case being triable by the Court of

Sessions was committed by the competent Magistrate to the Court of

Sessions.

8.Learned Trial Court framed charges against the appellants under

Sections 498A, 304 IPC read with Section 3/4 D.P. Act. Accused

denied the charges and claimed to be tried.

9.To bring home the charges, the prosecution produced following

witnesses, namely:

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1.Dharmvir Singh PW1

2.Prem Narayan PW2

3.Arun Kumar PW3

4.Dr. Arvind PW4

5.S.I. Omprakash PW5

6Navneet Singh SikeriaPW6

7Roshan Lal Sharma PW7

Apart from the aforesaid witnesses the prosecution submitted

following documents which were proved by alleging the evidence.

1.First Information ReportEx.ka1

2.Dying Declaration Ex.ka2

3.Application for

postmortem

Ex.ka3

4.Brief facts Ex.ka4

5.Death report Ex.ka5

6.Postmortem report Ex.ka6

7.Medico legal reportEx.ka7

8Death summary Ex.ka8

9Death report Ex.ka9

10Charge-sheet Ex.ka10

11Charge-sheet Ex.ka11

12Site-plan Ex.ka13

10.Heard Sri Santosh Kumar Tiwari learned counsel for the

appellants, learned AGA for the State and perused the record.

Learned counsel for the appellants had made manifolds

submissions namely:

(a) As the star witness being PW2 and also PW1 have not

supported the prosecution case and they have turned hostile so

conviction of appellants is not legally justified.

(b) Though dying declaration was recorded when the victim was

surviving, but the dying declaration has no corroboration with any

prosecution evidence. Therefore, the trial court has committed grave

error by convicting the accused on the basis of dying declaration.

(c) Once the accused were acquitted under the offences

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punishable under Section 3/4 of the Dowry Prohibition Act read with

Sections 498A and 304 IPC then there was no occasion to convict the

appellants under Section 302 of the IPC particularly when there was a

doubt as to whether the deceased succumbed on account an act of

suicide or by virtue of the burns sustained while pouring of kerosene

by the appellants.

(d) The appellants could not have been convicted under Section

302 of the IPC particularly when the death was on account of

septicemia and at maximum the case could have travelled up to the

limits of offences under Section 304 IPC.

11.Learned AGA, per contra, vehemently opposed the arguments

placed by counsel for the appellant 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 on to the extent it supports the

prosecution case. Learned trial court has rightly convicted the

appellant under Section 302 IPC and sentenced accordingly. There is

no force in this appeal and the same may be dismissed.

12.Learned counsel for the appellants while elaborating his first

submission had sought to argue that main prosecution witness has not

supported the prosecution case and the witnesses had turned hostile as

so far as the PW-1 Sri Dharmvir Singh is concerned, he turned hostile

to the prosecution as in his examination-in-chief, he has only stated

that he is well-versed with Sri Raghuvir, Sudha and Madubal @

Anuradha accused (appellants) as they were the resident of his village

and he is not aware that Raghuvir married to whom. Even in fact in

the cross-examination of PW1 Dharmvir has also denied his

statement alleged to be recorded under Section 161 Cr.P.C., meaning

thereby he did not support the prosecution version.

13.According to the learned counsel for the appellants, the most

crucial witness was the complainant, who happens to be the father of

the deceased/victim (PW-2), though in his examination-in-chief had

admitted lodging of the above noted FIR and the same has also been

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proved but the PW2 in his statement had come up with the case that

the deceased daughter was never harassed for demand of dowry and

she never complained about the same. It was further deposed by the

PW2 that his deceased daughter denied that the appellants had ever

beaten or quarrelled with her or committed the occurrence which

culminated into the conviction of the appellants. It has further been

argued by the learned counsel for the appellants that once the PW2 has

resiled from his statement recorded under Section 161 of the Cr.P.C.

while alleging that FIR was prepared under the dictation of some

police personnel and was not signed by him then in these

circumstances there remained no witness so as to suggest the story so

propounded by the prosecution was true and reliable.

14.In nutshell, the submission of learned counsel for the appellants

is to the extent that once the prosecution witnesses do not support the

prosecution version and they have also been declared hostile then the

entire case of the prosecution has no legs to stand and thus the

conviction of the appellants is unsustainable in the eyes of law.

15.The argument so raised by the learned counsel for the appellants

with respect to the PW-1 Sri Dharmvir Singh and PW-2 Sri Prem

Narayan being declared to be hostile and thus the entire prosecution

case has no legs to stand though appears to be attractive but is not

liable to be accepted particularly in view of the fact that here in the

present case, there is a distinguishable feature that admittedly a first

information report was lodged on 19.5.2000 at 15.30 p.m. on an

application moved by the complainant Sri Prem Narayan PW2, who

happens to be the father of the deceased/victim. PW5 S.I. Sri Om

Prakash in his testimony had deposed that while he was posted as head

Munshi at Police Station Partarpur District Meerut on 9.5.2000, he

lodged Chik No.109 of Case Crime No.190 of 2000, under Section

304B of the IPC upon written report of the complainant. The

registration of the case crime number was entered in General Diary

No.26 at 15.30 p.m. on 19.5.2000. The said documents were

compared and proved also. Even otherwise PW6 I.O. Navneet Singh

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Sikeria also proved the said document being complaint lodged by the

PW1 Prem Narayan. The aforesaid facts itself reveal that it is the

complainant being PW2, who had moved complainant which

transformed into lodging of an FIR. Thus it is only on the basis of the

complaint that FIR was lodged and the motion for conducting

investigation commenced. Even spot map was also prepared on the

basis of the directions of the complainant Prem Narayan (PW2).

16.Hon'ble Apex Court had the occasion to consider the

contingency wherein the witnesses turned hostile and it was held that

the evidence of hostile witness can be relied upon to the extent it

supports the version of the prosecution and it is not necessary that it

should be relied upon or rejected as well as even otherwise it is a

settled law that evidences of hostile witness can be relied upon to the

extent to which it supports the prosecution version.

17.In the case of State of U.P. vs. Ramesh Prasad Misra and

another 1996 AIR (Supreme Court) 2766, the Hon'ble Apex Court

has held as under:-

“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.”

18.In the case of Koli Lakhmanbhai Chanabhai Vs. State of

Gujarat, reported in (1999 ) 8SCC 624, the Hon'ble Apex Court in

paragraphs-5 and 6 has held as under:-

5. From the aforesaid evidence on record, in our view, it

cannot be said that the High Court erred in relying upon

some portion of the evidence of P.W. 7 who was cross-

examined by the prosecution. 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

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there is no legal bar to base his conviction upon his

testimony if corroborated by other reliable evidence. In

the present case, apart from the evidence of P.W.7, the

prosecution version that he saw that appellant was

having knife in his hand and was quarreling with the

deceased gets corroboration from the evidence of P.Ws

11 and 12 to whom he disclosed the incident

immediately. On the basis of the said information, within

one hour, FIR was lodged disclosing the name of the

appellant as the person who has inflicted the knife blow.

Number of incised wounds are found as per the

Postmortem report. The prosecution version gets further

corroboration from discovery of Muddamal knife

containing human blood Group 'A' Further the bush-

shirt and baniyan which were put on by the accused at

the time of incident were having extensive blood stains

which were also found containing human blood group

'A'. Learned counsel for the appellant, however,

contended that accused is also having blood Group 'A'

and that he was having injury on the thigh as per the

evidence of the Doctor. In our view there is no substance

in his contention because as per the medical evidence,

the injuries caused to the accused were minor and that

because of such injuries, there would not be extensive

bloodstains on the bush-shirt and baniyan put on by the

accused. In his 313 statement also, accused has not

explained how he got bloodstains on his bush-shirt and

baniyan. He has also not denied the recovery of the said

bush-shirt and baniyan from his person at the time of his

arrest.

6. Hence, considering the above stated evidence on

record, it cannot be said that High Court committed any

error in convicting the appellant for the offence

punishable under Section 302 IPC.

19.Further in the case of Ramesh Harijan Vs. State of Uttar

Pradesh 2012(5) SCC 777 para 23 and 24, the Hon'ble Apex Court

in paragraphs- 23 and 24, has held as under:-

23. It is a settled legal preposition that the evidence of

a prosecution witness cannot be rejected in toto merely

because the prosecution chose to treat him as hostile

and cross examine him.

24The evidence of such witnesses cannot be treated

as effaced or washed off the record altogether but the

same can be accepted to the extent that their version is

found to be dependable on a careful scrutiny thereof.

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In the case of Vinod Kumar Vs. State of Punjab (2015) 3

SCC 220, the Hon'ble Apex Court in paragraphs- 31 and

32 has held as under:-

31. The next aspect which requires to be adverted to is

whether testimony of a hostile evidence that has come on

record should be relied upon or not. Mr. Jain, learned

senior counsel for the Appellant would contend that as

PW-7 has totally resiled in his cross-examination, his

evidence is to be discarded in toto. On a perusal of the

testimony of the said witness, it is evincible that in

examination-in-chief, he has supported the prosecution

story in entirety and in the cross-examination he has

taken the path of prevarication. In Bhagwan Singh v.

State of Haryana (1976) 1 SCC 389, it has been laid

down that even if a witness is characterised has a hostile

witness his evidence is not completely effaced. The said

evidence remains admissible in the trial and there is no

legal bar to base a conviction upon his testimony, if

corroborated by other reliable evidence. In Khuji @

Surendra Tiwari v. State of Madhya Pradesh (1991) 3

SCC 627, the Court after referring to the authorities in

Bhagwan Singh (supra), Rabindra Kumar Dey v. State of

Orissa (1976) 4 SCC 233 and Syad Akbar v. State of

Karnataka (1980) 1 SCC 30, opined that the evidence of

such a witness cannot be effaced or washed off the record

altogether, but the same can be accepted to the extent it

is found to be dependable on a careful scrutiny thereof.

32. In this context, we think it apt to reproduce some

passages from Rammi @ Rameshwar v. State of Madhya

Pradesh (1999) 8 SCC 649, where the Court was

dealing with the purpose of re-examination. After

referring to Section 138 of the Evidence Act, the Court

held thus:

17. There is an erroneous impression that

reexamination should be confined to clarification of

ambiguities which have been brought down in cross-

examination. No doubt, ambiguities can be resolved

through re-examination. But that is not the only

function of the re-examiner. If the party who called the

witness feels that explanation is required for any

matter referred to in cross-examination he has the

liberty to put any question in re-examination to get the

explanation. The Public Prosecutor should formulate

his questions for that purpose. Explanation may be

required either when the ambiguity remains regarding

any answer elicited during cross-examination or even

otherwise. If the Public Prosecutor feels that certain

answers require more elucidation from the witness he

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has the freedom and the right to put such questions as

he deems necessary for that purpose, subject of course

to the control of the court in accordance with the other

provisions. But the court cannot direct him to confine

his questions to ambiguities alone which arose in

cross-examination.

18. Even if the Public Prosecutor feels that new

matters should be elicited from the witness he can do

so, in which case the only requirement is that he must

secure permission of the court. If the court thinks that

such new matters are necessary for proving any

material fact, courts must be liberal in granting

permission to put necessary questions.

20.Accordingly, we are satisfied that the learned trial court had

meticulously scrutinized the evidence available on record and after

following the proposition of law laid down by the Hon'ble Apex Court

in the afore-noted decision had proceeded to consider the statements

of the hostile witnesses, in so far as it supports the prosecution

version.

21.Learned counsel for the appellants has next contended that the

dying declaration of the deceased/victim cannot be relied upon as the

same is doubtful and not corroborated by witness of facts, hence it

cannot be the sole basis of conviction.

22.As far as the issue of dying declaration is concerned, it has

come on record that one Sri Arun Kumar Mishra, the then S.D.M.

Nazafgarh and presently posted as Director Delhi Municipal

Corporation was examined as PW3. Dying declaration as recorded by

PW3 was after obtaining the certificate of medical fitness from the

doctor. Even after completion of dying declaration also the doctor as

given a certificate that during the course of the statement, fit state of

mind of the deceased was not there.

23.The reliability of dying declaration has always been subject

matter of scrutiny before the courts of law and it has been held that

dying declaration is in fact the statement of person, who cannot be

called a witness and therefore cannot be cross-examined and same

cannot be brushed-aside. In case the Court comes to a conclusion that

dying declaration is true and reliable and has been recorded by a

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

make the said declaration then it can be the sole basis for recording

conviction.

24.In the case of Prakash and another Vs. State of Madhya

Pradesh (1992) 4 SCC 225, the Hon'ble Apex Court in paragraph-11

has held as under:-

11.After giving our anxious consideration to the facts

and circumstances of the case and the arguments

advanced by the counsel for the parties and judgment

delivered both by the Additional Sessions Judge and the

High Court of Madhya Pradesh, it appears to us that the

fatal injuries had been inflicted by Prakash with the

gupti. The gupti was recovered at the instance of the

accused and such recovery was not otherwise possible if

the accused himself had not assisted for such recovery of

the gupti. The said gupti was stained with human blood

and no reasonable explanation has been given by

accused for such blood stain. The injuries found on the

person of the deceased could be inflicted by a gupti and

complicity of Prakash in inflicting the fatal injuries by

gupti has been corroborated by the eye-witness. There

may be some minor discrepancies in the evidence of the

eye-witness but so far as the complicity of Prakash is

concerned, the depositions of the eye-witnesses were

consistent. In discarding the evidence of the brother of

the deceased namely Ajay Singh the learned Additional

Sessions Judge was influenced by the tender age of Ajay

(about 14 years) and was of the view that he was likely to

be tutored. We do not think that a boy of about 14 years

of age cannot give a proper account of the murder of his

brother if he has an occasion to witness the same and

simply because the witness was a boy of 14 years it will

not be proper to assume that he is likely to be tutored.

The High Court has given very convincing reasons for

accepting the evidence of Ajay Singh as an eye-witness of

the murderous act and we do not find any infirmity in the

finding made by the High Court. In so far as the dying

declaration is concerned, we are inclined to accept the

finding of the High Court that the deceased was alive at

least up to half an hour after the assault. He had been

taken to the hospital where he received some treatment

for about 10-15 minutes. It is not borne out from the

evidence of the doctor that the injuries were so grave and

the condition of the patient was so critical that it was

unlikely that he could make any dying declaration. As a

matter of fact, on second thought, the learned Additional

Sessions Judge has accepted the dying declaration and

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has convicted Prakash on the basis of dying declaration.

The injuries inflicted by Prakash were very serious on

vital parts of the body causing death of the deceased

within a very short time. In such circumstances,

conviction under Section 302, I.P.C. and sentence of life

imprisonment of the accused Prakash is justified and no

interference is called for. In our view, the High Court has

taken a very reasonable view in convicting the other

accused namely Shiv Narayan under Section 326 read

with Section 34, I.P.C. and has considered his case with

such sympathy as the said accused deserved by

sentencing him for imprisonment for the period already

undergone by him, for an offence under Section 326 read

with Section 34, I.P.C. We, therefore, find no reason to

interfere with the conviction or the sentence passed

against the accused Shiv Narayan. The appeals therefore

fail and are dismissed. The bail bond of the accused

Prakash is discharged and he would surrender and serve

out the sentence.

25.In the case of Laxman Vs. State of Maharashtra (2002) 4

SCC 710, the Hon'ble Apex Court in paragraph-11 has held as under:-

The court, however has to always be on guard to see that the

statement of the deceased was not as a result of either

tutoring or promoting or a product of imagination. The court

also must further decide that the deceased was in a fit state of

mind and had the opportunity to observe and identify the

assailant. Normally, therefore, the court in order to satisfy

whether the deceased was in a fit mental condition to make

the dying declaration dying declaration look up to the

medical opinion. But where the eyewitnesses state that the

deceased was in a fit and conscious state to make the

declaration, the medical opinion will not prevail, nor can it be

said that since there is no certification of the doctor as to the

fitness of the mind of the declarant, the dying declaration is

not acceptable. A dying declaration can be oral or in writing

and in any adequate method of communication whether by

words or by signs or otherwise will suffice provided the

indication is positive and definite. In most cases, however,

such statements are made orally before death ensues and is

reduced to writing by someone like a magistrate or a doctor

or a police officer. When it is recorded, no oath is necessary

nor is the presence of a magistrate is absolutely necessary,

although to assure authenticity it is usual to call a magistrate,

if available for recording the statement of a man about to die.

There is no requirement of law that a dying declaration must

necessarily be made to a magistrate and when such statement

is recorded by a magistrate there is no specified statutory

form for such recording. Consequently, what evidential value

or weight has to be attached to such statement necessarily

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depends on the facts and circumstances of each particular

case. What is essentially required is that the person who

record a dying declaration must be satisfied that the

deceased was in a fit state of mind. Where it is proved by the

testimony of the magistrate that the declarant was fit to make

the statement even without examination by the doctor the

declaration can be acted upon provided the court ultimately

holds the same to be voluntary and truthful. A certification by

the doctor is essentially a rule of caution and therefore the

voluntary and truthful nature of the declaration can be

established otherwise.

26.In the case of Babulal and others Vs. State of M.P. (2003) 12

SCC 490, the Hon'ble Apex Court in paragraph-7 has held as under:-

7. The pivotal point which was pressed into service with some amount

of vehemence was acceptability of dying declaration . There is no

legal bar for the information given by the deceased to be treated as a

dying declaration. This position was stated succinctly by this Court in

Munnu Raja and Anr. v. State of M.P. 1976CriLJ1718 . Section 32 of

the Indian Evidence Act, 1872.

The materials on records clearly established that the

deceased was in mentally fit condition, though

battered in the physical frame. The High Court has

rightly held that presence of PWs 1 and 2 did not

result in any presumption of tutoring, when the FIR

was recorded. Merely because there was a thumb

impression on the FIR, and not the signature as

stated by PW-1, that does not falsify the prosecution

version. The same has been clarified by the High

Court. It has to be noted that PW-16, who had

scribed the FIR, stated that the contents were read

over to the deceased, who had thereafter put his

thumb impression. In fact the defence itself has

suggested to PW-1 during cross examination that

the thumb impression was taken on the paper first

and thereafter the writings were inserted. In other

words, there was acceptance of the fact that the

thump impression was there but writings were done

later which have been denied by PW-1. We do not

find any reason to discard the dying declaration

only on this ground. The High Court has also found

in analyzing the evidence that the plea relating to

anti dating or anti timing of the FIR is a myth.

Though some of the accused persons have been

acquitted by the trial Court, the High Court has

carefully analysed the evidence and have sifted the

grain from the chaff and disengaged truth from

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falsehood.. Merely because some persons have not

been named in the FIR and have given the benefit of

doubt, that cannot be a reason for discarding the

dying declaration or the evidence of the witnesses.

27.In the case of Lakhan Vs. State of Madhya Pradesh (2010) 8

SCC 514, the Hon'ble Apex Court in paragraphs-18 and 19 has held

as under:-

18. In Amol Singh v. State of M.P. (2008) 5 SCC 468,

this Court, placing reliance upon the earlier Judgment in

Kundula Bala Subrahmanyam and Anr. v. State of

Andhra Pradesh (1993) 2 SCC 684, held that it is not

the plurality of dying declarations but the reality thereto

that aids weight to the prosecution's case. If a dying

declaration is found to be voluntary, reliable and made

in a fit mental condition, it can be relied upon without

any corroboration. If there is more than one dying

declaration, they should be consistent. In case of

inconsistencies between two or more dying declarations

made by the deceased, the Court has to examine the

nature of inconsistencies namely, whether they are

material or not and in such a situation, the Court has to

examine the multiple dying declarations in the light of

the various surrounding facts and circumstances.

19.In Heeralal v. State of Madhya Pradesh (2009) 12

SCC 671, this Court considered the case having two

dying declarations, the first recorded by a Magistrate,

wherein it was clearly stated that the deceased had tried

to set herself ablaze by pouring kerosene on herself.

However, the subsequent declaration was recorded by

another Magistrate and a contrary statement was made.

This Court set aside the conviction after appreciating

the evidence and reaching the conclusion that the courts

below came to abrupt conclusions on the purported

possibility that the relatives of the accused might have

compelled the deceased to give a false dying

declaration. No material had been brought on record to

justify such a conclusion.

28.In the case of Vijay Pal Vs. State (Government of NCT of

Delhi) (2015) 4 SCC 749, the Hon'ble Apex Court in paragraph-22

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has held as under:-

22. Thus, the law is quite clear that if the dying

declaration dying declaration is absolutely credible and

nothing is brought on record that the deceased was in

such a condition, he or she could not have made a dying

declaration to a witness, there is no justification to

discard the same. In the instant case, PW-1 had

immediately rushed to the house of the deceased and she

had told him that her husband had poured kerosene on

her. The plea taken by the Appellant that he has been

falsely implicated because his money was deposited with

the in-laws and they were not inclined to return , does

not also really breathe the truth, for there is even no

suggestion to that effect.

29.Another aspect also needs to be considered i.e. the issue of

reliability of the dying declaration when the deceased had sustained

high degree of injuries. The Apex Court has observed that it is not an

abstract principle of law that a dying declaration of a person

sustaining high degree of burn injuries cannot be relied upon as the

same depends upon facts and circumstances of every individual case.

30.In the matter of Mafabhai Nagarbhai Raval Vs. State of

Gujarat (1992) 4 SCC 69 the Hon'ble Apex Court in paras 3, 4 & 5

have held as under: -

3. The deceased aged about 40 years was the widow of

one Savaji and was living in a wooden cabin near the

maternity hospital in Harij and she was maintaining

herself by doing casual work in the maternity hospital.

She developed illicit intimacy with the accused. Her

grown-up children were dissatisfied with her character

and other members of her community were also

dissatisfied. Since then she was living alone in the

wooden cabin near the maternity hospital. There was

some quarrel between the accused and the deceased. At

about midnight on 9.7.78 the accused went to her cabin

and sprinkled kerosene oil on her and set fire to her

clothes and then fled. The deceased ran from her cabin

inside the compound of the maternity hospital raising

cries. One Patavala Motibhai came there and put a quilt

on her body. The said Patavala Motibhai went and

informed the Medical Officer, P.W. 2 of the Government

Hospital who immediately ran to the spot and separated

the burnt clothes from her body and gave first aid. He

questioned as to who had set lire and the deceased

replied that the accused was the culprit. P.W. 2 recorded

16

her statement which is the first dying declaration in the

case. P.W. 2 shifted her to the hospital and he himself

went to the police station and gave a report. The police

Jamadar also recorded her statement in the hospital

which is yet another dying declaration in the case. By

that time information was sent to the Taluka Magistrate

with a request to record the dying declaration. P.W. 3,

the Taluka Magistrate went to the spot and he also

recorded the dying declaration. The deceased died in the

early morning of 10.7.78. Inquest was held over the dead

body and post-mortem was conducted by P.W. 2. The

learned Sessions Judge, in our view, has unnecessarily

doubted the veracity of P.W. 2, the Doctor. He observed

that the moment the flames had been seen by the

deceased on her person she must have received a severe

shock and the same must have become "graver and

graver" and in that state of mind it is not believable at

all that the deceased could keep balance of her mind and

full consciousness so as to make the statement. With this

initial doubt the learned Sessions Judge proceeded to

examine the evidence of the Doctor. The Doctor stated

that in some cases mental shock immediately does . not

develop and that in the instant case the deceased

developed the mental shock for the first time at 4 A.M.

Thereafter it gradually increased. The learned Sessions

Judge called it irresponsible statement. It is in the

medical evidence that 99% of the body of the deceased

was affected by extensive bums and that the clothes of

the deceased were also burnt to ashes. Therefore, the

learned Judge thought that it was not at all possible to

believe that the lady might. have developed the shock

only at 4 A.M. and he gave his firm opinion that the

moment the deceased had seen the flames she must have

sustained mental shock and these circumstances

convinced him that right from the very beginning she

must have been under a mental shock and on that

ground the learned Judge disbelieved the Doctor.

Likewise he has pointed out certain circumstances

purely based on surmises and on his inferences.

4. On the same process of reasoning the learned

Sessions Judge has also doubted the evidence of P.W. 3,

the Executive Magistrate. The learned Judge found fault

with the procedure . adopted by the Executive

Magistrate namely that he did not record the statement

in the form of questions and answers. The learned

Judge, in our view, without any basis reached the

conclusion that the Executive Magistrate did not record

the dying declaration dying declaration exactly in the

words stated by the deceased. There is third dying

declaration recorded by the police Jamadar but we need

17

not consider the same.

5. It must be noted that P.W. 2 recorded the statement

within five minutes and noted the time also in the

statement. The High Court has rightly pointed out that

both the dying declarations are true and voluntary. It is

not the case of the defence that she gave tutored version.

The entire attack of the defence was on the mode of

recording the dying declarations and on the ground that

the condition of the deceased was serious and she could

not have made the statements. On these aspects as noted

above, the evidence of the Doctor is relevant and

important. We have gone through the evidence of the

Doctor as well as that of the Executive Magistrate. We

find absolutely no infirmity worth mentioning to discard

their evidence; It therefore emerges that both the dying

declarations are recorded by independent witnesses and

the same give a true version of the occurrence as stated

by the deceased. The dying declarations by themselves

are sufficient to hold the appellant guilty. The High

Court has rightly interfered in an appeal against

acquittal. The appeal is accordingly dismissed.

31.Following the said judgment the Hon'ble Supreme Court in the

case of State of Madhya Pradesh Vs. Dal Singh and others (2013)

14 SCC 159 in paras 14 to 22 have observed as under:-

Whether 100 per cent burnt person can make a dying declaration

or put a thumb impression:

14. In Mafabhai Nagarbhai Raval v. State of Gujarat

AIR 1992 SC 2186, this Court dealt with a case wherein

a question arose with respect to whether a person

suffering from 99 per cent burn injuries could be deemed

capable enough for the purpose of making a dying

declaration. The learned trial Judge thought that the

same was not at all possible, as the victim had gone into

shock after receiving such high degree burns. He had

consequently opined, that the moment the deceased had

seen the flame, she was likely to have sustained mental

shock. Development of such shock from the very

beginning, was the ground on which the Trial Court had

disbelieved the medical evidence available. This Court

then held, that the doctor who had conducted her post-

mortem was a competent person, and had deposed in

this respect. Therefore, unless there existed some

inherent and apparent defect, the court could not have

substitute its opinion for that of the doctor's. Hence, in

light of the facts of the case, the dying declarations

made, were found by this Court to be worthy of reliance,

18

as the same had been made truthfully and voluntarily.

There was no evidence on record to suggest that the

victim had provided a tutored version, and the argument

of the defence stating that the condition of the deceased

was so serious that she could not have made such a

statement was not accepted, and the dying declarations

were relied upon. A similar view has been re-iterated by

this Court in Rambai v. State of Chhatisgarh (2002) 8

SCC 83.

15. In Laxman v. State of Maharashtra : AIR 2002 SC

2973, this Court held, that a dying declaration can

either be oral or in writing, and that any adequate

method of communication, whether the use of words,

signs or otherwise will suffice, provided that the

indication is positive and definite. There is no

requirement of law stating that a dying declaration

must necessarily be made before a Magistrate, and when

such statement is recorded by a Magistrate, there is no

specified statutory form for such recording.

Consequently, the evidentiary value or weight that has to

be attached to such a statement, necessarily depends on

the facts and circumstances of each individual case.

What is essentially required, is that the person who

records a dying declaration must be satisfied that the

deceased was in a fit state of mind, and where the same

is proved by the testimony of the Magistrate, to the

extent that the declarant was in fact fit to make the

statements, then even without examination by the doctor,

the said declaration can be relied and acted upon,

provided that the court ultimately holds the same to be

voluntary and definite. Certification by a doctor is

essentially a rule of caution, and therefore, the voluntary

and truthful nature of the declaration can also be

established otherwise.

16. In Koli Chunilal Savji v. State of Gujarat AIR 1999

SC 3695, this Court held, that the ultimate test is

whether a dying declaration can be held to be truthfully

and voluntarily given, and if before recording such dying

declaration, the officer concerned has ensured that the

declarant was in fact, in a fit condition to make the

statement in question, then if both these aforementioned

conditions are satisfactorily met, the declaration should

be relied upon. (See also: Babu Ram and Ors. v. State of

Punjab AIR 1998 SC 2808).

17. In Laxmi v. Om Prakash and Ors. AIR 2001 SC

2383, this Court held, that if the court finds that the

capacity of the maker of the statement to narrate the

facts was impaired, or if the court entertains grave

doubts regarding whether the deceased was in a fit

19

physical and mental state to make such a statement, then

the court may, in the absence of corroborating evidence

lending assurance to the contents of the declaration,

refuse to act upon it.

18. In Govindappa and Ors. v. State of Karnataka

(2010) 6 SCC 533, it was argued that the Executive

Magistrate, while recording the dying declaration did

not get any certificate from the medical officer regarding

the condition of the deceased. This Court then held, that

such a circumstance itself is not sufficient to discard the

dying declaration. Certification by a doctor regarding

the fit state of mind of the deceased, for the purpose of

giving a dying declaration, is essentially a rule of

caution and therefore, the voluntary and truthful nature

of such a declaration, may also be established

otherwise. Such a dying declaration must be recorded on

the basis that normally, a person on the verge of death

would not implicate somebody falsely. Thus, a dying

declaration must be given due weight in evidence.

19. In State of Punjab v. Gian Kaur and Anr. AIR 1998

SC 2809, an issue arose regarding the acceptability in

evidence, of the thumb impression of Rita, the deceased,

that appeared on the dying declaration, as the trial court

had found that there were clear ridges and curves, and

the doctor was unable to explain how such ridges and

curves could in fact be present, when the skin of the

thumb had been completely burnt. The court gave the

situation the benefit of doubt.

20. The law on the issue can be summarised to the effect

that law does not provide who can record a dying

declaration, nor is there any prescribed form, format, or

procedure for the same. The person who records a dying

declaration must be satisfied that the maker is in a fit

state of mind and is capable of making such a statement.

Moreover, the requirement of a certificate provided by a

Doctor in respect of such state of the deceased, is not

essential in every case.

21. Undoubtedly, the subject of the evidentiary value and

acceptability of a dying declaration, must be

approached with caution for the reason that the maker

of such a statement cannot be subjected to cross-

examination. However, the court may not look for

corroboration of a dying declaration, unless the

declaration suffers from any infirmity.

22. So far as the question of thumb impression is

concerned, the same depends upon facts, as regards

whether the skin of the thumb that was placed upon the

dying declaration was also burnt. Even in case of such

20

burns in the body, the skin of a small part of the body,

i.e. of the thumb, may remain intact. Therefore, it is a

question of fact regarding whether the skin of the thumb

had in fact been completely burnt, and if not, whether

the ridges and curves had remained intact.

32.In case of Vijay Pal (Supra) in paragraphs 23 and 24 the

Hon'ble Apex Court has relied upon the judgment in the case of

Mafabhai Nagarbhai Raval (Supra) and Dal Singh has observed as

under:-

23. It is contended by the learned Counsel for the

Appellant when the deceased sustained 100% burn

injuries, she could not have made any statement to her

brother. In this regard, we may profitably refer to the

decision in Mafabhai Nagarbhai Raval v. State of

Gujarat (1992) 4 SCC 69 wherein it has been held a

person suffering 99% burn injuries could be deemed

capable enough for the purpose of making a dying

declaration. The Court in the said case opined that

unless there existed some inherent and apparent defect,

the trial Court should not have substituted its opinion for

that of the doctor. In the light of the facts of the case, the

dying declaration was found to be worthy of reliance.

24. In State of Madhya Pradesh v. Dal Singh and Ors. :

(2013) 14 SCC 159, a two-Judge Bench placed reliance

on the dying declaration of the deceased who had

suffered 100% burn injuries on the ground that the dying

declaration was found to be credible.

33.Coming to the facts of the present case while applying the law

laid down by the Hon'ble Apex Court as referred to above an

inescapable conclusion emerges that the statement of the

deceased/victim was recorded on 7.5.2000 by one Sri Arun Kumar

Mishra the then S.D.M. Nazafgarh (PW3) at 12.15 p.m. and a

certificate of fitness was also obtained from the doctor and thumb

impression of the deceased was also taken on the same. The factum of

fitness was also certified by Medical Officer as apparent from the

deceased Bed Head Ticket which was also proved before the court

below. The testimony of Executive Magistrate PW3 Sri Arun Kumar

21

Mishra was found to be fully intact and he was held to be reliable

witness having no grudge or motive against any side.

34.As already noticed, none of the witnesses or the authorities

involved in recording the dying declaration had turned hostile. On the

contrary, they have fully supported the case of prosecution. The dying

declaration is reliable, truthful and was voluntarily made by the

deceased, hence, this dying declaration can be acted upon without

corroboration and can be made the sole basis of conviction. Hence,

learned trial court has committed no error on acting on the sole basis

of dying declaration. Learned trial court was completely justified in

placing reliance on dying declaration Ex. KA-2 and convicting the

accused-appellant on the basis of it.

35.Accordingly, we therefore, do not find any error committed by

the court below while also taking into consideration, the dying

declaration of the deceased as this Court of the opinion that the court

is below has scrutinized the issue in detail carefully.

36.Next argument so canvassed by the learned counsel for the

appellants is to the effect that once the appellants have not been

convicted for the offences under Sections 498A, 304B of the IPC read

with Section 3/4 of the D.P. Act then the conviction of the appellants

under Section 302 of the IPC is not justified.

37.Having heard arguments of the learned counsel for the parties

as well as perusal of the record, it reveals that the appellants have not

been convicted under Sections 498A, 304B IPC read with Section 3/4

of the D.P. Act. However, from the perusal of the records, it is

undoubtedly clear that the FIR was lodged against the appellants as

well as Sri Raghuvir Singh, the husband of the deceased/victim on

19.5.2000 alleging commissioning of the aforenoted offences.

Undisputedly, there exist dying declaration also of the deceased which

as observed earlier shows the cause of the death of the deceased on

account of burn injuries. Though there is a cloud of doubt on the issue

as to whether the death was an act of suicide or by pouring kerosene

oil by the appellants or on account of quarrel.

22

38.However, once there are sufficient evidence on record

demonstrating the fact that the deceased sustained burn injuries and

there also exist on record the dying declaration of the deceased as well

as the testimony of the prosecution witness which also cannot be

disbelieved or disregarded in toto then merely because there is doubt

with respect to the direct evidence supporting either the version of the

prosecution with relation to the cause of death occurring due to

pouring of kerosene oil or on account of quarrel, it cannot be said that

the deceased did not sustain burn injuries.

39.Hence in totality of the circumstances while considering the

testimony of the hostile prosecution witnesses as well as the dying

declaration of the deceased, this Court of the firm opinion that the

deceased sustained burn injuries which resulted to her hospitalization

then ultimately leading to her death.

40.Lastly, learned counsel for the appellants had argued that the

actual cause of the death of the deceased/victim was septicemia, thus,

the appellants even if are to be convicted then the offence would be

punishable under Section 304 Part-1 of the IPC and Section 302 of the

IPC. Elaborating the said submission of the learned counsel for the

appellants had argued that as per the prosecution case itself the

deceased/victim sustained 70% of burn injuries while pouring

kerosene oil on 30.4.2000 and she was admitted in the hospital on

6.5.2000 and as per the postmortem report of the Department of

Forensic Medicine Safdarjung Hospital New Delhi dated 16.5.2000,

the cause of death was shown to be septicemia. Hence the order under

challenge convicting the appellants under Section 302 IPC is illegal as

at best the present case can be said to be within the four-corners of

Section 304 Part-1 of the IPC.

41.The word Septicemia has been defined in Harrison's

Principles of Internal Medicine Volume 1 (14

th

Edition) Fauci

Braunwald Isselbacher Wilson Martin Kasper Hauser Longo

reads as under:-

Septicemia:-Systemic illness caused by the spread of microbes

23

or their toxins via the bloodstream.

42.Further Septicemia has been defined in Merriam Webster

dictionary as under:-

potentially life-threatening invasion of the bloodstream by

pathogenic agents and especially bacteria along with their

toxins from a localized infection (as of the lungs or skin) that is

accompanied by acute systemic illness

—called also blood poisoning

Britannica has defined Septicemia as under:

septicemia, formerly called blood poisoning, infection

resulting from the presence of bacteria in the

blood(bacteremia). The onset of septicemia is signaled by a

high fever, chills, weakness, and excessive sweating,

followed by a decrease in blood pressure. The typical

microorganisms that produce septicemia, usually gram-

negative bacteria, release toxic products that trigger

immune responses and widespread blood clotting

(coagulation) within the blood vessels, thus reducing the

flow of blood to tissues and organs. (For information on the

systemic inflammatory condition that occurs as a

complication of infection by any class of microorganism,see

sepsis.)

43Here in the present case the deceased/victim undoubtedly

sustained burn injuries to the tune of 70%, she was taken to Jevan

Hospital Modi Nagar on 6.5.2000 and thereafter admitted at

Safdarjung Hospital New Delhi and she succumbed on 12.5.2000. The

dates regarding sustaining of burn injuries on 30.4.2000 admission in

Jevan Hospital Modi Nagar on 6.5.2000 referring her to be admitted

in Safdarjung Hospital New Delhi on 6.5.2000 and succumbing on

12.5.2000 are not disputed. It is also not under dispute that the cause

of the death was septicemia as the opinion of the doctors of

Department of Forensic Medicine Safdarjung Hospital, New Delhi

itself shows that the cause of death was septicemia. The trial court has

itself recorded a finding that the deceased was burnt at her

matrimonial house in 70% degree and was admitted to the hospital

and further she was looked and treated by doctor by way of bandage

etc. and which itself shows that the victim was in hospital itself from

24

the period 6.5.2000 till 12.5.2000, when she was expired meaning

thereby that the patient was admitted to the hospital for approximately

more than six days. Once in the postmortem report the facts of death

was found to be septicemia then there is no doubt that the deceased

died due to septicemia.

44.The findings of the fact with regard to sustaining of burn

injuries on the basis of the testimony of the hospital witnesses as well

as dying declaration cannot be faulted with. Death of the deceased

was homicidal death. The fact that it was an homicidal death takes this

court to most vex question whether it will fall within the four-corners

of murder or culpable homicide not amounting to murder.

45.Therefore, we consider the question whether it would be a

murder or culpable homicide not amounting to murder punishable

under Section 304 IPC. Accused is in jail since six and half years.

46.The Hon'ble Apex Court in the case of Ganga Dass Alias

Godha Vs. State of Haryana1994 Supp(1) SCC 534 in para 6 has

observed as under:-

6. We find considerable force in this submission. As stated

above the occurrence took place on 18.11.88 and the

deceased died 18 days later on 5.12.88 due to septicemia

and other complications. The Doctor found only one injury

on the head and that was due to single blow inflicted with

an iron pipe not with any sharp-edged weapon. Having

regard to the circumstances of the case, it is difficult to

hold that the appellant intended to cause death nor it can

be said that he intended to cause that particular injury. In

any event the medical evidence shows that the injured

deceased was operated but unfortunately some

complications set in and ultimately he died because of

cardio failure etc. Under these circumstances, we set aside

the conviction of the appellant under Section 302 I.P.C.

and the sentence of imprisonment for life awarded

thereunder. Instead we convict him under Section 304 Part

II I.P.C. and sentence him to undergo six years' R.I.

Accordingly the appeal is partly allowed.

47.The Hon'ble Apex Court in the case of B.N. Kavatakar and

another Vs. State of Karnataka 1994 Supp(1) SCC 304 in paras 9

and 10 have observed as under:-

25

9. The next question that comes up for our consideration

is what is the nature of the offence that the appellants

have committed. The Medical Officer who conducted

autopsy on the dead body of the deceased has opined

that the death was as a result of septicemia secondary to

injuries and peritonitis. As we have indicated above, the

deceased died after five days of the occurrence in the

hospital. On an overall scrutiny of the facts and

circumstances of the case coupled with the opinion of the

Medical Officer, we are of the view that the offence

would be one punishable under Section 326 read with

Section 34 IPC.

10 .In the result, we set aside the conviction under

Section 302 read with Section 34 IPC and the sentence

of imprisonment for life imposed therefore on each of the

appellants. Instead we convict them under Section 326

read with Section 34 IPC and sentence each of the

appellants to undergo rigorous imprisonment for a

period of three years. With the above modification in the

conviction and sentence, the appeal is dismissed.

48.The Hon'ble Apex Court in the case of Jagtar Singh and

another Vs. State of Punjab (1999) 2 SCC 174 in para 7 has

observed as under:-

7. Having given our anxious consideration to the first

contention of Mr. Gujral we do not find any substance in it.

It is true that Naib Singh died 17 days after the incident due

to septicemia, but Dr. M. P. Singh (P.W. 1), who held the

postmortem examination, categorically stated that the

septicemia was due to the head injury sustained by Naib

Singh and that the injury was sufficient in the ordinary

course of nature to cause death. From the impugned

judgment we find that the above contention was raised on

behalf of the appellants and in rejecting the same the High

Court observed :--

"It is well settled that culpable homicide is not murder

when the case is brought within the five exceptions to

Section 300, Indian Penal Code. But even though

none of the said five exceptions is pleaded or prima

facie established on the evidence on record, the

prosecution must still be required under the law to

bring the case under any of the four clauses, firstly to

fourthly, of Section 300 , Indian Penal Code, to

sustain the charge of murder. Injury No. 1 was the

fatal injury. When this injury is judged objectively

from the nature of it and other evidence including the

medical opinion of Dr. M. P. Singh (P.W. 1), we are of

the considered view that injury was intended to be

26

caused with the intention of causing such a bodily

injury by Harbans Singh appellant on the person of

Naib Singh which was sufficient in the ordinary

course of nature to cause death ............."

On perusal of the evidence of P.W. 1 in the light of

explanation 2 to Section 299, I.P.C. we are in

complete agreement with the above- quoted

observations of the High Court.

49.The Hon'ble Apex Court in the case of Maniben Vs. State of

Gujarat (2009) 8 SCC 796 in paras 18, 19 and 20 have 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 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.

50.The Hon'ble Apex Court in the case of Bengai Mandal alias

Begai Mandal vs. State of Bihar [(2010) 2 SCC 91 in para 20 has

27

observed as under:-

The appellant has already served rigorous imprisonment

for a period of seven years. Considering the facts that the

death ensued after twenty six days of the incident as a

result of septicemia and not as a consequence of burn

injuries, we are of the considered view that the period

already undergone by the appellant would be sufficient to

meet the ends of justice. We, therefore, partly allow the

appeal to the aforesaid extent and direct that the appellant

be released forthwith if not wanted in connection with any

other case.

51.The Hon'ble Apex Court in the case of Chirra Shivraj Vs.

State of Andhra Pradesh (2010) 14 SCC 444 in paras 3, 4 and 21

have observed as under:-

3. At the time when the deceased was in flames, her

husband, Nagabhushanam arrived and upon seeing his

wife in flames, he immediately took her to the

Government civil Hospital, Nizamabad. Upon police

being informed, R. Gangaram, Assistant Sub Inspector

(P.W.11) rushed to the hospital and recorded the

statement of the deceased. FIR No. 46 of 1999 was filed

on the basis of the statement made by the deceased

against the appellant for commission of an offence

under Section 307 of IPC. Looking to the nature of burn

injuries suffered by the deceased, her dying declaration

was recorded by Mr. Narsimha Chary, First Class

Judicial Magistrate (Special Mobile Court), Nizamabad

(P.W.10) around 8 p.m. The deceased specifically stated

in the said statement that she was being abused by the

appellant and on that day also, as usual, when she was

being abused, she poured kerosene on herself and

thereafter the appellant had thrown a lighted match stick

on her, because of which she was in flames and she was

severely burnt and her husband Nagabhushanam had

brought her to the hospital.

4. Because of the burn injuries, the deceased suffered

from septicemia and as a result thereof she died on 1

st

August, 1999. The said fact was brought to the notice of

the authorities by the husband of the deceased. The said

information was recorded as FIR No. 152 of 1999 on 2

nd

August, 1999. As a result of the death of the deceased,

the appellant was also charged under Section 302 of the

IPC. At the time of the trial, most of the witnesses, who

are family members of the deceased as well as the

appellant, turned hostile. However, on the basis of the

dying declaration (Ext.P.12) recorded on 21

st

April,

28

1999, which supported the contents of the FIR filed by

the complainant, the trial court convicted the appellant

for the offence punishable under Section 304 Part II of

the IPC and sentenced the appellant to undergo simple

imprisonment for five years.

21. 19. Even the learned Counsel for the appellant

could not show that the information with regard to the

death of the deceased, which was recorded as second

FIR No. 152/99 caused any prejudice to the accused. In

the aforestated circumstances, we do not agree with the

submission made by the learned Counsel for the

appellant that merely because second FIR was filed, the

entire investigation was defective and that should result

into acquittal of the accused.

52.The Hon'ble Apex Court in the case of Sanjay Vs. State of

Uttar Pradesh (2016) 3 SCC 62 in paras 14, 15, 16 and 17 have

observed as under:-

14. However, in the instant case, it is apparent that the death

occurred sixty two days after the occurrence due to

septicemia and it was indirectly due to the injuries sustained

by the deceased. The proximate cause of death on

13.10.1998 was septicemia which of course was due to the

injuries caused in the incident on 11.08.1998. As noted

earlier, as per the evidence of Dr. Laxman Das (PW-9), Roop

Singh was discharged from the hospital in good condition

and he survived for sixty two days. In such facts and

circumstances, prosecution should have elicited from Dr.

Laxman Das (PW-9) that the head injury sustained by the

deceased was sufficient in the ordinary course of nature to

cause death. No such opinion was elicited either from Dr.

Laxman Das (PW-9) or from Dr. Gulecha (PW-3). Having

regard to the fact that Roop Singh survived for sixty two days

and that his condition was stable when he was discharged

from the hospital, the court cannot draw an inference that

the intended injury caused was sufficient in the ordinary

course of nature to cause death so as to attract Clause (3) of

Section 300 Indian Penal Code.

15. In Ganga Dass alias Godha v. State of Haryana 1994

Supp (1) SCC 534, the accused gave iron pipe single blow on

the head of the deceased and the deceased died eighteen

days after the occurrence due to septicemia and other

complications, the conviction of the Appellant Under Section

302 Indian Penal Code was altered by this Court to Section

304 Part II Indian Penal Code. This Court observed as

under:

29

6. We find considerable force in this submission. As

stated above the occurrence took place on November

18, 1988 and the deceased died 18 days later on

December 5, 1988 due to septicemia and other

complications. The Doctor found only one injury on

the head and that was due to single blow inflicted with

an iron pipe not with any sharp-edged weapon.

Having regard to the circumstances of the case, it is

difficult to hold that the Appellant intended to cause

death nor it can be said that he intended to cause that

particular injury. In any event the medical evidence

shows that the injured deceased was operated but

unfortunately some complications set in and

ultimately he died because of cardiac failure etc.

Under these circumstances, we set aside the

conviction of the Appellant Under Section 302 Indian

Penal Code and the sentence of imprisonment for life

awarded thereunder. Instead we convict him Under

Section 304Part II Indian Penal Code and sentence

him to undergo six years' RI. The sentence of fine of

Rs. 2000 along with default clause is confirmed.

Accordingly the appeal is partly allowed.

16. In the instant case, the Appellants used firearms

countrymade pistol and fired at Roop Singh at his head and

the accused had the intention of causing such bodily injury

as is likely to cause death. As the bullet injury was on the

head, vital organ, second Appellant intended of causing

such bodily injury and therefore conviction of the Appellant

is altered from Section 302 Indian Penal Code to Section

304 Part I Indian Penal Code. The learned Counsel for the

Appellant-Sanjay submitted that it was only Narendra who

fired at Roop Singh at his head, Appellant-Sanjay fired on

Sheela (PW-2) on her neck, stomach and leg. Learned

Counsel for the Appellant-Sanjay contended that as Sanjay

fired only at Sheela, he could not have been convicted for

causing death of Roop Singh Under Section 302 Indian

Penal Code read with Section 34 Indian Penal Code. There

is no force in the above contention. The common intention

of the Appellants is to be gathered from the manner in which

the crime has been committed. Both the Appellants came

together armed with firearms in the wee hours of

11.08.1998. Both the Appellants indiscriminately fired from

their countrymade pistols at Roop Singh-deceased and

Sheela (PW-2) respectively. The conduct of the Appellants

and the manner in which the crime has been committed is

sufficient to attract Section 34 Indian Penal Code as both

the Appellants acted in furtherance of common intention.

The conviction of the Appellant-Sanjay Under Section 302

Indian Penal Code read with Section 34 Indian Penal Code

30

is modified to conviction Under Section 304 Part I Indian

Penal Code.

17. Conviction of the Appellants-Narendra and Sanjay

Under Section 302 Indian Penal Code and Section 302

Indian Penal Code read with Section 34 Indian Penal Code

respectively is modified to Section 304 Part I Indian Penal

Code and Section 304 Part I Indian Penal Code read with

Section 34 Indian Penal Code respectively and each of them

are sentenced to undergo rigorous imprisonment for ten

years and the same shall run concurrently alongwith

sentence of imprisonment imposed on the Appellants.

Conviction of the Appellants for other offences and the

respective sentence of imprisonment imposed on the

Appellants and fine is affirmed. The appeals are partly

allowed to the above extent.

53.The Hon'ble Apex Court in the case of Khokan Alias Khokhan

Vishwas Vs. State of Chhattisgarh (2021) 3 SCC 337 in paras 13,

14 and 15 have observed as under:-

13. Now so far as the reliance placed upon the decision

of this Court in the case of Sanjay (supra) by the

learned Counsel appearing on behalf of the Appellant-

Accused is concerned, on considering the said

decision, we are of the opinion that in the facts and

circumstances of the case, the said decision shall not be

applicable to the facts of the case on hand. In the said

case, the death occurred 62 days after the occurrence

due to septicemia. In between, the deceased was

discharged from the hospital in good condition and he

survived

14 .However, at the same time, it is also required to be

noted that the deceased was admitted to the hospital

after 24 hours and thereafter he died within three days

due to septicemia. If he was given the treatment

immediately, the result might have been different. In any

case, as observed hereinabove, there was no

premeditation on the part of the Accused; the Accused

did not carry any weapon; quarrel started all of a

sudden and that the Accused pushed the deceased and

stood on the abdomen and therefore, as observed

hereinabove, the case would fall under exception 4 to

Section 300 Indian Penal Code and neither Clause 3 of

Section 300 nor Clause 4 of Section 300 shall be

attracted.

15. In view of the above and for the reasons stated

hereinabove, the present appeal succeeds in part. The

impugned judgment and order passed by the High

31

Court as well as the judgment and order passed by the

learned trial Court convicting the Appellant-Accused

for the offence Under Section 302, Indian Penal Code

are hereby modified to the extent convicting the

Appellant-Accused for the offence Under Section 304-I,

Indian Penal Code and sentencing him to the period

already undergone by him i.e., 14.5 years. Rest of the

judgment and order passed by the learned trial Court,

confirmed by the High Court, is hereby confirmed.

54.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 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.

32

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 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

33

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.

55.A Division Bench of this Court in the case of Criminal Appeal

No.1944 of 2014, Ram Prakash Alias Pappu Yadav Vs. State of

U.P. decided on 12.11.2021 wherein one of the judges (Justice Dr.

K.J. Thaker) was a member had the occasion to consider the legal

issue as to whether in case of a death on account of septicemia either

the provisions contained under Section 302 IPC or 304(1) of the IPC

would apply. This Court mandated that once facts of the death is

septicemia that conviction under Section 302 IPC to be converted into

conviction under Section 304 (1) IPC.

56.Over all scrutiny of the facts and circumstances coupled with

the medical evidence and the opinion of the Medical Officer and

considering the numbers of law laid down by the courts of law in the

above referred cases, we are considered opinion that in the case at

hand the offence would be punishable under Section 304(1) IPC.

57.Upshot from the aforesaid discussion and inescapable position

emerges that the death caused by the accused of the victim/deceased

was on account of septicemia and further accused had no intention to

caused the death of the deceased. The injuries were though sufficient

in ordinarily course of nature to have cause death however accused

had no intention to do away with deceased. Hence the incident falls

under Ex.1 and 4 to Section 300 IPC, while considering the Section

299 IPC offence committed will fall under Section 304(1) IPC.

58.In view of the aforesaid discussion, we are of the view that

appeal has to be partly allowed. The conviction of the appellants

under Section 302 IPC is converted into conviction under Section 304

(Part-I) IPC and the appellants are sentenced to undergo seven years

of incarceration with fine of Rs. 10,000/- and in case of default of

34

payment of fine, the appellants shall further undergo simple

imprisonment for 1 year.

59.Accordingly, the appeal is partly allowed.

Order Date :- 27.11.2021

piyush