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2023 DIGILAW 1819 (ALL)

Jeetu v. State of U. P.

2023-07-28

K.J.THAKER, UMESH CHANDRA SHARMA

body2023
JUDGMENT Dr. Kaushal Jayendra Thaker, J. Heard Sri Ajay Kumar Mishra, learned counsel for the appellant and learned A.G.A. for the State. 2. Both these appeals challenge the judgment and order dated 17.1.2018 passed by Additional District and Sessions Judge, Court No. 15, Meerut in Sessions Trial No.713 of 2015 convicting and sentencing the appellants in both the appeals under Section 302 read with Section34 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P. Code') for life imprisonment with fine of Rs.20,000/- each and, in case of default of payment of fine, further to undergo simple imprisonment for six months. 3. Brief facts as culled out from the record are that the deceased was set ablaze by the appellants on 20.11.2014 at the house which was sold by the appellants to the deceased but possession was not given to the deceased. So as to settle the dispute deceased was called by the appellants. The appellants set ablaze the deceased as a result of which she was severely burnt and died in the hospital on 28.11.2014 namely after about eight days during treatment. A complaint to that effect was lodged which was registered as Case Crime No.595 of 2014 against the accused-appellants. Dying Declaration of the deceased was recorded in the hospital on the very same day of incident. 4. Investigation was moved into motion and after recording statements of various persons, the Investigating Officer submitted the charge-sheet against Raja and Jeetu (both accused) to the competent court. 5. The accused were facing charges which were exclusively triable by the Court of Sessions, hence, the case was committed to the Court of Sessions. 6. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined about 9 witnesses who are as follows: 1 Deposition of Ravi PW1 2 Deposition of Rani PW2 3 Deposition of Usha PW3 4 Deposition of Sheela PW4 5 Deposition of Ravindra Singh PW5 6 Deposition of Rajiv Kumar Malik PW6 7 Deposition of Dr. Sachin Gupta PW7 8 Deposition of Devraj Singh PW8 9 Deposition of Jitendra Singh PW9 10 Deposition of Tilak Chand PW10 11 Deposition of Gajendra Pal Singh PW11 12 Deposition of Dr Sunil Gupta PW12 13 Deposition of Dr. Sachin Gupta PW7 8 Deposition of Devraj Singh PW8 9 Deposition of Jitendra Singh PW9 10 Deposition of Tilak Chand PW10 11 Deposition of Gajendra Pal Singh PW11 12 Deposition of Dr Sunil Gupta PW12 13 Deposition of Dr. Yashveer Singh PW13 14 Deposition of Rakesh Kumar PW14 15 Deposition of Ranjeet PW15 16 Deposition of Dr Rajkumar PW16 In support of ocular version following documents were filed: 1 Written Report Ex.Ka.1 2 F.I.R. Ex.Ka.2 3 Dying Declaration Ex. Ka. 5 4 Postmortem Report Ex. Ka. 4 5 Panchayatnama Ex.Ka.7 6 Charge-sheet Ex. Ka.15 7 Site Plan with Index Ex. Ka.6 8 Medical Certificate Ex. Ka. 17 9 Injury Report Ex. Ka. 18 10 Medical Report Ex. Ka. 19 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 appellants as mentioned aforesaid. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the appellants have preferred the present appeal. 8. Learned counsel for the appellants has relied on the decisions in Maniben v. State of Gujarat, 2009 Law Suit (SC) 1380, Bengai Mandal @ Begai Mandal v. State of Bihar, 2010 (1) Supreme 49 , Chirra Shivraj v. State of Andhra Pradesh, 2010 Law Suit (SC) 843, and the decisions of this High Court in Criminal Appeal No.1438 of 2010 (Smt. Rama Devi alias Ramakanti v. State of U.P.) decided on 7.10.2017, Criminal Appeal No.26 of 2007 (Banwari & Another v. State of U.P.) decided on 20.8.2015 and Criminal Appeal No.318 of 2015 (Pramod Kumar v. State of U.P.) decided on 28.2.2019 so as to contend that life could not be till the last breath. It is submitted that the conviction under Section 302 of I.P.C. is not sustainable and is bad as the incident occurred without common object and as the offence occurred on spur of moment is not that henious. In alternative, it is submitted that at the most punishment can be under Section 304II or Section304I of I.P.C. If the Court holds that accused have committed murder, as the accused have been in jail for more than 10 years without remission, they may be granted fixed term punishment of incarceration. 9. It has been vehemently objected by learned A.G.A. for the State. 9. It has been vehemently objected by learned A.G.A. for the State. He has taken us through the evidence on record and the manner in which the appellants and his brother, set ablaze the deceased in the disputed house. 10. 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. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under: "299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide." 11. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done. Intention (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; Knowledge Knowledge (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 12. 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 v. State of Maharashtra, reported in (2011) 14 SCC 250 and in the case of B.N. Kavatakar and Another v. 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. 13. 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 v. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind. 14. 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 v. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind. 14. We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana v. State of Gujarat) decided on 11.9.2013 wherein the Court held as under: "12. In fact, in the case of Krishan v. 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. 15. 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. 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. 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 304I 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. 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 304I 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." 15. While considering the facts as narrated herein above the deceased was 30 years of age as in her dying declaration given on 20.11.2014 has declared that when she demanded a sum of Rs. 1,30,000/- from accused Raja and his brother Jeetu, Jeetu poured the kerosene and she got burnt and therefore the dying declaration cannot be said to be such which cannot be acted upon and has been rightly been acted upon as opined by us. Unfortunately, the incident occurred on the spur of the moment when the deceased demanded the money for the house, however, the act cannot be said to in furtherance of the common object to do away with the deceased. Even evidence of P.W.- 1 does not testify to this fact. The deceased died on 28.11.2014, consistent version of all the witnesses will not permit us to accept the submission of the learned counsel for the appellant that the accused are innocent. P.W.-3 and P.W.-4 did not support the prosecution, however, P.W.-4, expressed ignorance about knowing Raja the accused. Further, the medical evidence will not permit us to accept the submission of the learned counsel for the appellant that the accused are not guilty, there was deep burn injuries which was 40% on the body, both the hands, chest, stomach and the thorax region were having burn injuries. The deceased died out of septicemial death, the judgment herein above will permit us to concur with the learned Judge as it was homicidal death but not amounting to murder. The deceased died out of septicemial death, the judgment herein above will permit us to concur with the learned Judge as it was homicidal death but not amounting to murder. Circumstances will also show that the incident occurred in the house, the dying declaration is truthful dying declaration, however, this was not a case of circumstantial evidence that the learned Judge has discussed the principles of same. The incident occurred at the house of Raja where they had called the deceased. The deceased was taken for treatment at hospital by P.W.-2, all these facts will permit us to alter the sentence. Even if we consider the facts and hold that it was not illegal but irregularity which has crept in, in no circumstances; the accused could have been convicted under Section 302 of I.P.C. 16. In view of the aforementioned discussion, we are of the view that both these appeals have to be partly allowed, hence, are partly allowed. 17. The conviction of the appellants under Section 302 read with Section34 of I.P.C. of Indian Penal Code is converted to conviction under Section 304 (Part I) of Indian Penal Code and the appellants are sentenced to undergo 10 years of incarceration with fine which is reduced to Rs.1,000/- for each appellant-accused. 18. If period of incarceration is over, the accused shall be released forthwith, if not required in any other case. The judgment and order dated 17.1.2018 of trial court shall stand modified accordingly. 19. Let a copy of this judgment along-with the trial court record be sent to the Court and Jail Authorities concerned for compliance. 20. This Court is thankful to the learned Advocates for ably assisting the Court.