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2022 DIGILAW 1006 (ALL)

Pushpa Devi v. State of U. P.

2022-07-05

GAUTAM CHOWDHARY, K.J.THAKER

body2022
JUDGMENT : K.J. Thaker, J. 1. Both these appeals challenges the judgment and order dated 9.2.2017 passed by Additional Sessions Judge, Court No.8, Firozabad in Sessions Trial No.245 of 2015 convicting accused-appellant-Pushpa Devi, under Section 498A of Indian Penal Code, 1860 ( hereinafter referred to as 'IPC') and sentenced her to undergo simple imprisonment for two years with fine of Rs.2,000/- and in default of payment of fine, further to undergo simple imprisonment for three months; she was further convicted under Section 323 IPC and sentenced to undergo simple imprisonment for three months with fine of Rs.500/- and in case of default of payment of fine, to undergo further simple imprisonment for one months; she was further convicted under Section 302 IPC and sentenced to undergo imprisonment for life with fine of Rs.5,000/- and in default of payment of fine, further to undergo simple imprisonment for six months. The accused-appellant-Bantu @Vimal Babu and accused-appellant-Munni Devi were convicted under Section 498A IPC and sentenced them to undergo simple imprisonment for two years each with fine of Rs.2,000/- each and in default of payment of fine, further to undergo simple imprisonment for three months each. All the sentences were to run concurrently as per direction of the Trial Court. 2. Accused-appellants, Pushpa Devi, Bantu @ Vimal Babu and Munni Devi were trying along with Dilip Kumar for commission of offence under Section 498A, 304B, 314 and 323 read with Section 3/4 Dowry Prohibition Act. ON 4.7.2015, learned Magistrate committed the case to the Court of sessions which was numbered as Sessions Case No. 245 of 2015 (State Vs. Dilip Kumar and others). 3. Factual scenario as culled out from the record and the judgment of the Court below is that on 03.12.2014, a written First Information Report ( hereinafter referred as 'FIR) was given mentioning that Rajni was married with Dilip Kumar on 4.6.2013 but after the marriage, the in-laws started harassing the deceased-Rajni and demanded more dowry. For which on 2.12.2014, a phone was received that all the four persons had set ablaze the deceased-Rajni at about 3:00 ( afternoon). She was taken to the hospital at Firozabad. Thereafter she was referred to Agra. She has pregnancy of eight months. 4. For which on 2.12.2014, a phone was received that all the four persons had set ablaze the deceased-Rajni at about 3:00 ( afternoon). She was taken to the hospital at Firozabad. Thereafter she was referred to Agra. She has pregnancy of eight months. 4. On the complaint of the father of the deceased, First Information Report being No.491 of 2014 was registered under Sections 498A, 307, 323 IPC and ¾ D.P. Act and thereafter, the investigation was moved into motion. After recording statements of various persons, the investigating officer submitted the charge-sheet against accused persons under Sections 498A, 304B, 314, 323 IPC and ¾ D.P. Act.. The learned Chief Judicial Magistrate before whom charge sheet was laid put the same before the learned Sessions Judge. The learned Sessions Judge, on hearing the learned Government Advocate and learned counsel for the accused-Pushpa Devi, framed charges under Section 302, 498A, 323 of I.P.C. and the accused-Dilip Kumar, Bantu @ Vimal Babu and Smt. Munni Devi framed charge under Section 498A IPC. 5. On being read over the charges, the accused-appellants pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 15 witnesses who are as follows : 1. Ramveer Singh PW 1 2. Omkar PW 2 3. Manoj Kumar PW 3 4. Shankar Lal PW 4 5. Dharmendra Singh PW 5 6. Dr. R.C. Johri PW 6 7. Dr. Anand Kumar PW 7 8. Nanhey Ram PW 8 9. Kehar Singh Rana PW 9 10. Geeta Ram PW 10 11. Prashan tKumar Prasad PW 11 12. Yogendra Kumar Yadav PW 12 13. Raj Kamal Singh PW 13 14. Krishna Murari Dixit PW 14 15. Dr. R.D. Gautam PW 15 6. In support of ocular version following documents were filed : 1. F.I.R. Ex.Ka.5 2. Written Report Ex.Ka.1 3. Dying Declaration Ex. Ka.12 4. Medical Report Ex. Ka.13 5. Postmortem Report Ex. Ka.4 6. Panchayatnama Ex.Ka.2 7. Charge-sheet Ex.Ka.6 8. Site Plan with Index Ex.Ka.7 7. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused - appellants as mentioned above. 8. Postmortem Report Ex. Ka.4 6. Panchayatnama Ex.Ka.2 7. Charge-sheet Ex.Ka.6 8. Site Plan with Index Ex.Ka.7 7. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused - appellants as mentioned above. 8. Heard Yogesh Kumar Srivastava, learned counsel for the appellant, Sri Vikas Goswami, learned A.G.A-I, in Criminal Appeal No.1689 of 2017 and Sri Nagendra Kumar Srivastava and Sri Janardan Prakash, learned A.G.A in Criminal Appeal No.1425 of 2017 for the State and perused the record. 9. It is submitted that the deceased in her first dying declaration mentioned that the Pushpa Devi (sister-in-law) locked her in the room and set her ablaze by pouring kerosene. Mother-in-law and husband had helped Pushpa Devi in the occurrence of the said crime. Four family members (Pushpa Devi, Banti, Mother-in-law and husband) had harassed her after marriage. The neighbors brought her to the hospital. Her statement was recorded at 5:40 p.m. on 7.12.2014 namely after five days of incident i.e. on 2.12.2014. Meaning thereby she was alive till 7.12.2014. 10. Learned counsel for appellants has thereafter taken us to the depositions of other witnesses who are declared as hostile witnesses. Be that as it may, the main crux on which submission is made by Sri Yogesh Kr. Srivastava, learned counsel for the appellant are (i) the deceased died out of burn injuries after six days, (ii)there are multiple dying declarations in which she has given different version, (iii) The medical evidence according to the counsel for the appellant shows that she died due to septicemic shock and, therefore, it is submitted that looking to the F.I.R. and the dying declarations, it cannot be said that the deceased was done to death and she was murdered. It is submitted that even if it is considered that it was culpable homicide, it would be culpable homicide not amounting to murder. 11. It is submitted that even if it is considered that it was culpable homicide, it would be culpable homicide not amounting to murder. 11. In support of the these submissions, learned counsel for the appellants has relied on the decisions in Maniben vs. State of Gujarat, 2009 (8) SCC 796 , Chirra Shivraj vs. State of Andhra Pradesh, 2010 (14) SCC 444 , Criminal Appeal No.1438 of 2010 (Rama Devi alias Ramakanti vs. State of U.P.) decided on 7.10.2017 & Criminal Appeal No. 2558 of 2011 (Smt. Kanti and another vs. State of U.P.) decided on 1.2.2021 but is punishable under Section 302 IPC as it was cold blooded murder with predetermination. 12. Learned A.G.A. for the state has vehemently submitted the death of the deceased was though due to septicemic shock, the burn injuries goes to show that it would not be an offence punishable under Section 304 part I or II of I.P.C. 13. While going through the evidence of the witnesses in light of the judgments of the Apex Court referred by both the learned Advocates, we would have to evaluate whether deceased was done to death with a premeditation. Just because death was due to septicemic shock will not take it out from the purview of Section 300 of I.P.C. The evidence of most of the witnesses which has been recorded goes to show that most of them have given go by of their statements before the police under Section 161 of Cr.P.C. But, the medical evidence and dying declaration which are multiple in number have to be evaluated. 14. This fact is borne out in both the dying declarations and the doctor has also opined against the accused. Therefore, this dying declaration has not been challenged by the counsel for the appellant and in the light of the decision in Govindappa and others Vs. State of Karnataka, (2010) 6 SCC 533, there is no reason for us not to accept the dying declaration and its evidentiary value under Section 32 of Evidence Act, 1872. The main allegations is that Pushpa Devi w/o Banti bolted the room and poured kerosine on her and at that time the husband and mother in law were present. This is the dying declaration dated 7.12.2014 taken by Krishna Murari in presence EMO Hospital. The fact is proved that the deceased had 40% burn injuries. The main allegations is that Pushpa Devi w/o Banti bolted the room and poured kerosine on her and at that time the husband and mother in law were present. This is the dying declaration dated 7.12.2014 taken by Krishna Murari in presence EMO Hospital. The fact is proved that the deceased had 40% burn injuries. Witnesses PW-1 to PW-5 have not supported the prosecution case. Dr. Jauhari, has deposed on oath that he along with other doctor had treated the deceased patient from 5.12.2014 to 9.12.2014 when she had 40% burn injuries. Dr. Anand Kumar had carried out the post mortem and they were septicemic death because of the burn injuries. Her death was because to septicemia. Tehsildar as PW-8 had performed the punchnama. PW-8 is also signatory of Panchayatnama. She died due to septicemia after about 20 days. All these facts go to show that the death occurred due to septicemia which developed because of the setting her ablaze the deceased which is corroborated by oral testimony. Thus, the death has occurred due to the act of Pushpa who has been aided by the other co-accused and it is a homicidal death. 15. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellants. 16. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellants under Section 302 IPC of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under : "299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." 17. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done. INTENTION (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; KNOWLEDGE KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 18. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the case of Tukaram and Ors. Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC. 19. Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC. 19. We are holding that the offence would be under Section 304 Part-I of IPC as (i) the death occurred after 20 days, (ii) the burns were only 36%, (iii) the death was due to septicemia and the judgments on septicemia cited by the learned AGA cannot be made applicable to the facts of this case. 20. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused had no intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention to do away with deceased, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind. 21. 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. 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 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. 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 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. 17. 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. 17. The conviction of the appellants - original accused under Section 302 of Indian Penal Code vide judgment and order dated 19.12.2007 arising from Sessions Case No. 149 of 2007 passed by the Additional Sessions Judge, Fast Track Court No. 6, Ahmedabad is converted to conviction under Section 304 (Part I) of Indian Penal Code. However, the conviction of the appellants - original accused under section 452 of Indian Penal Code is upheld. The appellants - original accused are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/- each in default rigorous imprisonment for six months under section 304 (Part I) of Indian Penal Code instead of life imprisonment and sentence in default of fine as awarded by the trial court under section 302 IPC. The sentence imposed in default of fine under section 452 IPC is also reduced to two months. Accordingly, the appellants are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/-, in default, rigorous imprisonment for six months for offence punishable under section 304(I) of Indian Penal Code and rigorous imprisonment for a period of five years and fine of Rs. 2,000/-, in default, rigorous imprisonment for two months for offence punishable under section 452 of Indian Penal Code. Both sentences shall run concurrently. The judgement and order dated 19.12.2007 is modified accordingly. The period of sentence already undergone shall be considered for remission of sentence qua appellants - original accused. R & P to be sent back to the trial court forthwith." 22. 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. R & P to be sent back to the trial court forthwith." 22. 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. 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. Judgments in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused. 23. All others judgments which were pressed into service by the learned counsel for the appellant are not discussed as that would be repetition of what we have decided. 24. We come to the definite conclusion that the death was due to septicemia. The judgments cited by the learned counsel for the appellant would permit us to uphold our finding which we conclusively hold that the offence is not under Section 302 of I.P.C. but is culpable homicide and, therefore, sentence of the accused-appellants is reduced to the period of eight years with remission under Section 304 Part-I of IPC. The fine is reduced to Rs.2,000/- each. The default sentence would be six months without remission and will run after completion of eight years of incarceration. The accused-appellants are in jail. They have suffered for eight years imprisonment and must have repented to his deed which was out of anger. 25. The accused-appellants in Criminal Appeal No.1425 of 2017 have been convicted for the offence under Section 498A IPC. Looking to the facts and circumstances of the case, we confirmed the conviction of Bantu and Smt. Munni Devi to the period already undergone as they have been convicted under Section 498A IPC. The fine is maintained. The default sentence is also maintained. Looking to the facts and circumstances of the case, we confirmed the conviction of Bantu and Smt. Munni Devi to the period already undergone as they have been convicted under Section 498A IPC. The fine is maintained. The default sentence is also maintained. If they have not paid fine the fine be deposited within eight weeks from today failing which they shall surrender for undergoing the default sentence. If the fine is already paid, they did not pay the fine. 26. The accused have already undergone the punishment under Section 498A IPC and under Section 323 of IPC, hence, we do not delve into the same. 27. Both the appeals are partly allowed. Record and proceedings be sent back to the Court below forthwith. 28. This Court is thankful to learned Advocates for ably assisting the Court.