[AFR]

Reserved On : 22.9.2022

Delivered On : 21.10.2022

Court No. - 44

Case :- CRIMINAL APPEAL No. - 5184 of 2021

Appellant :- Sultan @ Munna And Another

Respondent :- State of U.P.

Counsel for Appellant :- Mohd. Abrar Khan, Sukhvir Singh

Counsel for Respondent :- G.A.

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per Dr. Kaushal Jayendra Thaker,J.)

1.This appeal has been preferred against the judgment and

order dated 28.2.2019, passed by the learned Additional

Sessions Judge, Court No.6, Farrukhabad, in Session Trail

No.12 of 2018 ( State of UP vs. Sultan and another) arising out

of Case Crime No.53 of 2017, under Section 302/34 and 498A

of Indian Penal Code ( hereinafter referred to as 'IPC'), Police

Station-Shamsabad, District Farrukhabad, whereby the accused-

appellants are convicted and sentenced for the offence under

Section 302/34 IPC for life imprisonment with a fine of

Rs.20,000/- each and in default of payment of fine, further

rigorous imprisonment for one year; accused- appellants were

further convicted under Section 498A of IPC and sentenced to

undergo imprisonment for two years each with fine of

Rs.5000/- each and in case of default of payment of fine, to

undergo further rigorous imprisonment for one month each. All

the sentences were to run concurrently as per direction of the

Trial Court. .

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

of this case was lodged by complainant-Aslam ( father) with the

averments that the marriage of his daughter was solemnized

with accused Munna @ Sultan son of Nabeedraj before about

eight years. Earlier also before the said incident, the appellant

after about four years of marriage life had tried to push her from

the terrace and in that his daughter had sustained injuries. The

accused Sultan contracted the marriage with one Yashmeen and

because of that there were constant quarrel and Sultan and his

second wife Yasmeen hatched a common intention to do away

with his daughter and that is how, she was set ablaze . Sabeen

received several burn injuries. The accused got Sabeen admitted

in hospital and absconded. Sabeena had suffered about 70%

burn injuries and she was in the hospital.

3.A first information report was registered on the basis of

above written report. During course of investigation, I.O.

recorded statement of witnesses, prepared site-plan. Dying-

declaration of deceased was recorded by Magistrate. After the

death of the deceased, inquest report was prepared and post

mortem was conducted. Post mortem report is also placed on

record. After making thorough investigation, charge sheet was

submitted against the accused Sultan @ Munna, husband of the

deceased and Smt. Yasmeen, second wife of Sultan @ Munna.

Learned trial court framed charges against both the accused

persons under Sections 498A, 302/34 of IPC. Accused-

appellants denied the charges and claimed to be tried.

4.Prosecution examined following witnesses:

1.Aslam PW-1

2. Irfan PW-2

3.Constable Mahesh PW-3

4.Kadeer PW-4

5.Dr. Amrit Singh PW-5

6.Dr. Kailash Chandra PW-6

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7.SI Veerpal Singh PW-7

8.SI Ravindra Nath Yadav PW-8

9.SI Jitendra Singh PW-9

10.Churamani- Nayab Tehsildar PW-10

5.Apart from aforesaid witnesses, prosecution submitted

following documentary evidence, which was proved by leading

the evidence:

1.FIR Ex.ka.1

2.Written report Ex.ka.2

3. Dying-declaration Ex.ka.13

4.Post mortem report Ex.ka.4

5.Panchayatnama Ex.ka.9

6.Charge-Sheet Ex.ka.7-8

7.Site plan Ex.ka.6

6.Deceased was hospitalised after the incident by the

accused persons themselves. The deceased died after four

months of the incident during the course of treatment at her

father's home. The cause of death according to PW-5, who

conducted the postmortum report was septicaemic. The oral

testimony of Dr. namely PW-6 Kailash Chandra also shows that

her dying declaration was recorded when she was in

conciousness and he has proved the said document. .

7.Heard Sri Sukhvir Singh, learned counsel for the

appellants and Shri Patanjali Mishra, learned AGA for the State.

8.Learned counsel for the appellants submitted that accused

persons have been falsely implicated in this case. The deceased

caught fire while cooking and they have not caused her death.

No dowry was ever asked for. It is submitted that the accused

has not set the deceased on fire. She caught fire while she was

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trying to go inside the room. It was the accused who tried to

save her. The learned counsel has further submitted that the

Court has not even relied on the DW-1, PW-4 did not support

the prosecution case. PW-1 is not the eye witness and PW-4

has not supported the prosecution case. Learned counsel for the

appellant has relied on the decision of this High Court in

Criminal Appeal No.318 of 2015 ( Pramod Kumar Vs. State of

U.P.) decided on 28.2.2019 and has contended that the accused

are innocent and in the alternative has submitted that if this

Court comes to the conclusion that the death was because of the

act of the accused then the offence would be falling within the

provision of Section 304 of IPC and not Section 302 of IPC

9.Learned counsel for the appellants next submitted that

dying-declaration of the deceased was recorded when she was

surviving, but this dying-declaration has no corroboration with

any prosecution evidence. Most of the witnesses of fact have

turned hostile and the version of FIR is not supported by the

oral testimony. Therefore, learned trial court committed grave

error by convicting the accused on the basis of dying-

declaration .

10.Learned counsel for the appellants additionally submitted

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

have committed the offence, in that case also no offence under

Section 302 IPC is made out. Maximum this case can travel up

to the limits of offence under Section 304 IPC because the

deceased died after 4 months of the incident due to developing

the infection in her burn-wounds, i.e., septicemia. As per catena

of judgments of Hon’ble Apex Court and this Court, offence

cannot travel beyond section 304 IPC, in case where the death

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occurred due to septicemia. Learned counsel for the appellants

also submitted that postmortem report also shows that cause of

death was septicemia. Learned counsel relied on the judgment

in the case of Maniben vs. State of Gujarat [2009 Lawsuit SC

1380], and the judgment in Criminal Appeal Nos.1438 of 2010

and 1439 of 2010 dated 7.10.2017 and judgment in Criminal

Appeal No.2558 of 2011 delivered on 1.2.2021 by this Court.

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

counsel for the appellants and confined his arguments on above

points only.

12.Learned AGA, per contra, vehemently opposed the

arguments placed by counsel for the appellants and submitted

that conviction of accused can be based only on the basis of

dying-declaration, if it is wholly reliable. It requires no

corroboration. Moreover, testimony of hostile witnesses can

also be relied on to the extent it supports the prosecution case.

Learned trial court has rightly convicted the appellants under

Section 302 IPC and sentenced accordingly. There is no force in

this appeal and the same may be dismissed.

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

the issue relating to the evidence of witness PW-4 who has not

supported the prosecution case. It is further submitted that the

deceased died due to septicemia hence it can interred that there

was intention to do away with the deceased. There was no

demand of dowry so as to convict the accused under Section

498A of IPC. None of the ingredients of the provision of

Section 498A IPC are made out. It is not even the case of the

prosecution witnesses that any demand of dowry was made.

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The only allegation of PW-1 is that due to presence of second

wife, both the accused used to harass his daughter (deceased). It

is not borne out from the dying declaration that there was any

demand of dowry. Quarrel will not be sufficient for convicting a

person under 498A of IPC.

14.Hon’ble Apex Court in Koli Lakhmanbhai Chandabhai

vs. State of Gujarat [1999 (8) SCC 624], as held that evidence

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

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

be relied upon or rejected as a whole. It is settled law that

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

to which it supports the prosecution version. Evidence of such

witness cannot be treated as washed off the record. It remains

admissible in the trial and there is no legal bar to base his

conviction upon his testimony if corroborated by other reliable

evidence.

15.In Ramesh Harijan vs. State of U.P. [2012 (5) SCC

777], the Hon’ble Apex Court has also held that it is settled

legal position that the evidence of a prosecution witness cannot

be rejected in toto merely because the prosecution chose to treat

him as hostile and cross-examined him. The evidence of such

witness cannot be treated as effaced or washed off the record

altogether.

16.In State of U.P. vs. Ramesh Prasad Misra and another

[1996 AIR (Supreme Court) 2766], the Hon’ble Apex Court

held that evidence of a hostile witnesses would not be totally

rejected if spoken in favour of the prosecution or the accused

but required to be subjected to close scrutiny and that portion of

the evidence which is consistent with the case of the

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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

defense.

17.Perusal of impugned judgment shows that learned trial

court has scrutinised the evidence on record but has failed to

appreciate the fact that there is no demand of dowry which will

come within the purview of Section 498A of IPC and we

exonerate both the accused–appellants of the punishment under

Section 498A of IPC. .

18.Learned counsel for the appellants has argued that dying

declaration is doubtful and not corroborated by witnesses of

fact, hence, it cannot be the sole basis of conviction. Legal

position of dying declaration to be the sole basis of conviction

is that it can be done so if it is not tutored, 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 directed, i.e., it must be the evidence of a witness, who

says he saw it. The dying declaration is, in fact, the statement of

a person, who cannot be called as witness and, therefore, cannot

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be cross-examined. Such statements themselves are relevant

facts in certain cases.

19. The dying declaration is truthful and we rely on the

same.

20.The law on the issue of dying declaration can be

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

conclusion that the dying declaration is true and reliable, has

been recorded by a person at a time when the deceased was fit

physically and mentally to make the declaration and it has not

been made under any tutoring/duress/prompting; it can be the

sole basis for recording conviction. In such an eventuality no

corroboration is required. It is also held by Hon’ble Apex Court

in the aforesaid case, that a dying declaration recorded by a

competent Magistrate would stand on a much higher footing

than the declaration recorded by office of lower rank, for the

reason that the competent Magistrate has no axe to grind

against the person named in the dying declaration of the victim.

21.Deceased survived for 4 months after the incident took

place. Her dying declaration was recorded by Magistrate after

obtaining the certificate of medical fitness from the concerned

doctor. In the wake of aforesaid judgments 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

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accordance with law, the deceased made the dying declaration

of her own accord and upon due certification by the doctor with

regard to the state of mind and body, then it may not be

necessary for the court to look for corroboration. In such cases,

the dying declaration alone can form the basis for the

conviction of the accused. Hence, in order to pass the test

reliability, a dying declaration has to be subjected to a very

close scrutiny, keeping in view the fact that the statement has

been made in the absence of the accused, who had no

opportunity of testing the veracity of the statement by cross-

examination. But once, the court has come to the conclusion

that the dying declaration was the truthful version as to the

circumstance of the death and the assailants of the victim, there

is no question of further corroboration.

22.In Ramilaben Hasmukhbhai Khristi vs. State of

Gujarat, [(2002) 7 SCC 56], the Hon’ble Apex Court held that

under the law, dying declaration can form the sole basis of

conviction, if it is free from any kind of doubt and it has been

recorded in the manner as provided under the law. It may not be

necessary to look for corroboration of the dying declaration. As

envisaged, a dying declaration is generally to be recorded by an

Executive Magistrate with the certificate of a medical doctor

about the mental fitness of the declarant to make the statement.

It may be in the from of question and answer and the answers

be written in the words of the person making the declaration.

But the court cannot be too technical and in substance if it feels

convinced about the trustworthiness of the statement which

may inspire confidence such a dying declaration can be acted

upon without any corroboration.

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23.The fact that dying declaration gets corroboration from

oral evidence also. We are convinced that the Court has not

committed any mistake in relying on the same.

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

note that it was recorded on and the deceased died while the

incident took place. It means that the deceased remained alive

for 4 months after making dying declaration. Therefore,

truthfulness of dying declaration can further be evaluated from

the fact that she survived for 4 months after making it from

which it can reasonably be inferred that she was in a fit mental

condition to make the statement at the relevant time. Moreover,

in the dying declaration, the deceased did not unnecessarily

involve the other family members of the accused appellants.

She only attributed the role of burning to her husband and his

second wife. .

25.In such a situation, the hostility of one of the witness of

fact cannot demolish the value and reliability of the dying

declaration of the deceased, which has been proved by

prosecution in accordance with law and is a truthful version of

the event that occurred and the circumstances leading to her

death.

26.As already noticed, 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.

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27.Now we come to the submission by learned counsel for

the appellants that deceased died due to septicaemia, hence this

case falls within the ambit of Section 304 IPC and not under

Section 302 IPC. In this regard, learned counsel has submitted

that deceased died after four months of incident due to the

septicemia. There was no intention of the appellants to cause

the death of the deceased.

28.It is an admitted fact that the deceased died after four

months of burning and post mortem report goes to show that

she died due to septicemia. PW-6 who has recorded the dying

declaration has been examined as PW-6. The doctor , who had

conducted the post mortem of the deceased was also the same

doctor. He has specifically written in the post mortem report

and deposed before the learned trial court that the cause of

death was septicemia due to burn injuries. Hence, the death of

the deceased was septicemial death.

29.The finding of fact regarding the presence of witnesses at

the place of occurrence cannot be faulted with. Death of

deceased was a homicidal death. The fact that it was a

homicidal death takes this Court to most vexed question

whether it would fall within the four-corners of murder or

culpable homicide not amounting to murder. Therefore, we are

considering the question whether it would be a murder or

culpable homicide not amounting to murder and punishable

under Section 304 IPC. Accused-appellants are in jail since

3.2.2017.

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

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

observations in paragraph 26, therein:

"26. Once the prosecution has brought home the

evidence of the presence of the accused at the scene

of the crime, then the onus stood shifted on the

defence to have brought-forth suggestions as to what

could have brought them to the spot in the dead of

night. The accused were apprehended and, therefore,

they were under an obligation to rebut this burden

discharged by the prosecution and having failed to

do so, the trial-court was justified in recording its

findings on this issue. The High Court committed an

error by concluding that the prosecution had failed

to discharge its burden. Thus, the judgment proceeds

on a surmise that renders it unsustainable."

31.In Bengai Mandal alias Begai Mandal vs. State of

Bihar [(2010) 2 SCC 91], incident occurred on 14.7.1996,

while the deceased died on 10.8.1996 due to septicaemia caused

by burn injuries. The accused was convicted and sentenced for

life imprisonment under Section 302 IPC, which was confirmed

in appeal by the High Court, but Hon'ble The Apex Court

converted the case under Section 304 Part-II IPC on the ground

that the death ensued after twenty-six days of the incident as a

result of septicaemia and not as a consequence of burn injuries

and, accordingly, sentenced for seven years' rigorous

imprisonment.

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

incident took place on 29.11.1984. The deceased died on

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

was admitted in the hospital with about 60 per cent burn

injuries and during the course of treatment developed

septicaemia, which was the main cause of death of the

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deceased. Trial-court convicted the accused under Section 304

Part-II IPC and sentenced for five years' imprisonment, but in

appeal, High Court convicted the appellants under Section 302

IPC. Hon'ble The Apex Court has held that during the aforesaid

period of eight days, the injuries aggravated and worsened to

the extent that it led to ripening of the injuries and the deceased

died due to poisonous effect of the injuries. Accordingly,

judgment and order convicting the accused under Section 304

Part-II IPC by the trial-court was maintained and the judgment

of the High Court was set aside.

33.In Chirra Shivraj vs. State of Andhra Pradesh [(2010)

14 SCC 444], incident took place on 21.4.1999. Deceased died

on 1.8.1999. As per the prosecution version, kerosene oil was

poured upon the deceased, who succumbed to the injuries.

Cause of death was septicaemia. Accused was convicted under

Section 304 Part-II IPC and sentenced for five years' simple

imprisonment, which was confirmed by the High Court.

Hon'ble The Apex Court dismissed the appeal holding that the

deceased suffered from septicaemia, which was caused due to

burn-injuries and as a result thereof, she expired on 1.8.1999.

34.We can safely rely upon the decision of the Gujarat High

court in Criminal Appeal No.83 of 2008 (Gautam Manubhai

Makwana Vs. State of Gujarat) decided on 11.9.2013 wherein

the Court held as under:

"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

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circumstances show it to be reliable and it has been

recorded in accordance with law, the deceased made

the dying declaration of her own accord and upon

due certification by the doctor with regard to the

state of mind and body, then it may not be necessary

for the court to look for corroboration. In such

cases, the dying declaration alone can form the

basis for the conviction of the accused. But where

the dying declaration itself is attended by suspicious

circumstances, has not been recorded in accordance

with law and settled procedures and practices, then,

it may be necessary for the court to look for

corroboration of the same.

13. However, the complaint given by the deceased

and the dying declaration recorded by the Executive

Magistrate and the history before the doctor is

consistent and seems to be trustworthy. The same is

also duly corroborated with the evidence of

witnesses and the medical reports as well as

panchnama and it is clear that the deceased died a

homicidal death due to the act of the appellants in

pouring kerosene and setting him ablaze. We do find

that the dying declaration is trust worthy.

14. However, we have also not lost sight of the fact

that the deceased had died after a month of

treatment. From the medical reports, it is clear that

the deceased suffered from Septicemia which

happened due to extensive burns.

15. In the case of the B.N. Kavatakar and another

(supra), the Apex Court in a similar case of

septicemia where the deceased therein had died in

the hospital after five days of the occurrence of the

incident in question, converted the conviction under

section 302 to under section 326 and modified the

sentence accordingly.

15.1 Similarly, in the case of Maniben (supra), the

Apex Court has observed as under:

"18. The deceased was admitted in the

hospital with about 60% burn injuries and

during the course of treatment developed

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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 which has also weighed

with this court are that the deceased had survived

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for around 30 days in the hospital and that his

condition worsened after around 5 days and

ultimately died of septicemia. In fact he had

sustained about 35% burns. In that view of the

matter, we are of the opinion that the conviction of

the appellants under section 302 of Indian Penal

Code is required to be converted to that under

section 304(I) of Indian Penal Code and in view of

the same appeal is partly allowed.

35. In latest decision in Khokan@ Khokhan Vishwas v.

State of Chattisgarh, 2021 LawSuit (SC) 80, where the facts

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

of the accused appellant and altered the sentence. The decision

of the Apex Court in the case of Anversinh v. State of

Gujarat, (2021) 3 SCC 12 which was related to kidnapping

from legal guardian, wherein it was established that the Court

while respecting the concerns of both society and victim,

propounded that the twin principle of deterrence and correction

would be served by reducing the period of incarceration already

undergone by the accused. In our case, this is not that gruesome

matter where the accused cannot be dealt with in light of all

these judgments. Decisions in Pravat Chandra Mohanty v.

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

of M.P., (2021) 3 SCC 238 will also enure for the benefit of the

accused.

36. 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 it was a case of

homicidal death not amounting to murder. We are also of the

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considered opinion that in the case at hand, the offence would

be punishable under Section 304 (Part-I) IPC.

37.From the upshot of the aforesaid discussions it appears

that the death caused by the accused persons was not pre-

meditated but they intentionally caused such bodily injuries

which were likely to cause death. Hence the instant case falls

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

considering Section 299 IPC, offence committed will fall under

Section 304 (Part-I) IPC.

38.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. The fine and default

sentence are maintained.

39.Accordingly, the appeal is partly allowed.

Order Date :-21.10.2022

Mukesh

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