An appeal was preferred against the judgment and order dated 7.1.2020, passed by the learned Additional Sessions Judge, under Section 302 IPC, whereby the appelant was convicted and sentenced for the offence under Section 302 IPC for life imprisonment with a fine of Rs.60,000/-. First information report of this case was registered by complainant, father of the deceased, in which it is stated that complainant’s daughter, namely, Jaikali got married with accused Amar Dayal Sahu about 7-8 years before the occurrence. They had two children. Amar Dayal Sahu had illicit relationship with one Kiran Sahu, which was bone of contention between husband and wife and the accused always got support of his family members. All of them were harrassing his daughter and were giving life-threats. His daughter used to disclose all that matter with him, his wife and relatives. On 13.5.2015 accused Amar Dayal Sahu with the help of his family members poured kerosene oil on his daughter and set her on fire with the intention to kill her. She was admitted in hospital and during treatment she succumbed to injuries.

Learned counsel for the appelant argued that all the witnesses of fact had turned hostile. Learned counsel for the appellant submitted that dying declaration of deceased was recorded when she was surviving, but this dying declaration has no corroboration with any prosecution evidecne. Learned counsel for the appellant submitted that even if it is assumed that appellant had committed the offence then also no offence under Section 302 IPC was made out and that this case could maximum travel to offence under Section 304 IPC because the deceased died after 11 days of the occurrence 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 the death occurred due to septicimia. Learned counsel for the appellant submitted that postmortem report also shows that cause of death was septicimia. Learned counsel relied on the judgment in the case of Maniben vs. State of Gujarat [2009 Lawsuit SC 1380] and  several other judgments.

Learned AGA 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.

Dying delcaration of deceased was recorded on 20.5.2015 and the deceased died on 24.5.2015 while the incident took place on 13.5.2015. It means that she remained alive for 4 days after making dying declaration. Therefore, truthfulness of dying declaration can further be evalated from the fact that she survived for 4 days after making it from which it can reasonably be inferred that she was in a fit condition to make the statment at the relevant time. Moreover, in the dying declaration, the deceased did not unnecessarily involved the other family members of the accused appellant. She only attributed the role of burning to her husband. The dying declaration was 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.

In postmortem report, cause of death was found to be septicimia. Hence, there was no doubt that deceaced died due to septicimia. Death of deceased was a homicidal death. The fact that it was a homicidal death took the Court to a question as to whether it would fall within the four-corners of murder or culpable homicide not amounting to murder. The question was whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC. Accused was in jail for the last more than 14 years.

In Bengai Mandal alias Begai Mandal vs. State of Bihar [(2010) 2 SCC 91], the deceased died due to septicemia caused by burn injuries. The accused was convicted and sentenced for life imprsonment 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 septicemia and not as a consequence of burn injuries and, accordingly, sentenced for seven years’ rigorous imprisonment.

In Chirra Shivraj vs. State of Andhra Pradesh [(2010) 14 SCC 444], kerosene oil was poured upon the deceased, who succumbed to the injuries. Cause of death was septicemia. 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 septicemia, which was caused due to burn-injuries and as a result thereof, she expired.

Court relied upon the decision of the Gujarat High court in Gautam Manubhai Makwana Vs. State of Gujarat decided on 11.9.2013 wherein the Court held as under:

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, 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.

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.

After overall scrutiny of the facts and circumstances coupled with medical evidence and the opinion of the Medical Officer and considering the principle laid down by the Courts in above referred case laws, Court was of the considered opinion that, the offence would be punishable under Section 304 (Part-I) IPC. According to the Court, the death caused by the accused was not pre-meditated. Accused had no intention to cause the death of the 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 IPC, offence committed will fall under Section 304 (Part-I) IPC. The conviction of the appellant under Section 302 IPC was converted to conviction under Section 304 (Part-I) IPC and the appellant was sentenced to undergo seven years of incarceration with fine of Rs. 10,000/-. Accordingly, the appeal was partly allowed.

Reference:

https://elegalix.allahabadhighcourt.in/elegalix/StartWebSearch.do

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