Manish vs State Of U.P.
- Court
- Allahabad High Court
AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 565 of 2019
Manish …..Appellant.
Versus
State of U.P. …..Respondents(s)
Counsel for Petitioners(s) : Pankaj Kumar Tripathi, Abdul
Rafey Siddiqui, Ajeet Kumar Singh,
Pradeep Kumar Tripathi, Punit
Kumar Shukla, Rehan Ahmad
Siddiqui
Counsel for Respondent(s) : Govt. Advocate
Court No. - 9
HON’BLE RAJESH SINGH CHAUHAN, J.
HON’BLE INDRAJEET SHUKLA, J.
(Per: Indrajeet Shukla, J.)
For the sake of explication, the instant judgement is set out in the
following parts:
INDEX
Serial No. Heading Page Nos.
1. Factual Matrix 02-02
2. Prosecution case in nutshell 02-05
3. Scope of Criminal Appeal against conviction 06-07
4. Prosecution evidence 07-10
5. Dying declaration 10-18
6. Submission of parties
(I) Contentions raised on behalf of
the appellant
18-20
2
(Criminal Appeal No.565 of 2019)
(II) Submissions advanced on behalf of
20-27
the State
7.
Statutory perceptions and authoritative
27-33
pronouncements
8. 33-54
Analysis and Reasoning
9. 54-54
Conclusion
10. 55-61
Proportionality of Sentence
FACTUAL MATRIX
1. Convicted and sentenced for the one of the most depraved offences
i.e., burning of his wife who was carrying pregnancy of eight months,
consequently death of an unborn child in mother’s womb, the appellant is
before this Court.
2. Under challenge is conviction and sentence recorded under Section
302 IPC for life imprisonment and fine to the extent of Rs.20,000/-, further
with default stipulation i.e. six months additional imprisonment, rendered
vide impugned judgment and order dated 15.02.2019 passed by Additional
Sessions Judge/Fast Track Court (New), Sitapur in Sessions Trial
No.775/2011 arising out of crime no. 28/2011 Police Station- Ramkot,
District Sitapur.
3. Custody certificate as well as conduct report of the appellant
submitted by learned State Law Officer is taken on record and the same is
marked as 'x'.
PROSECUTION CASE IN NUTSHELL
4. The prosecution story, as unfolded in the written Tehrir Exhibited as
Ka-1 dated 28.01.2011, submitted by the informant, Smt. Maya Devi
(mother of the deceased) is, she solemnized the marriage of her daughter,
Ruchi (the deceased), with the accused-appellant, Manish (son of Gajodhar,
resident of Village Adhaval Khurd, Police Station Kotwali, District
Sitapur), approximately three years prior to the incident.
3
(Criminal Appeal No.565 of 2019)
5. It is further stated that shortly after the marriage, the accused-
appellant, Manish, began demanding ₹50,000/- as additional dowry. 50,000/- as additional dowry.
Owing to the first informant’s poor financial background, the demand
could not be fulfilled. Consequently, the appellant started physically
assaulting and harassing her daughter. He used to say that if she did not
bring Rs.50,000/-, he would kill her. The demand of dowry and ill
treatment was informed to the first informant over the telephone. The first
informant had been allotted a house under the Kashi Ram Urban Housing
Scheme in Sitapur. On 27.11.2010, the appellant and the first informant's
daughter came to her house and asked for the keys of the aforesaid house,
stating that they wanted to stay there for a few days. The keys were handed
over, and on 28.11.2010 at 11:00 A.M, the first informant came to know
that her daughter had been burnt and admitted to the District Hospital.
Upon receiving the information, the first informant and her son reached the
Hospital, where she found her daughter in burnt condition. It is further
stated that apart from her daughter, no one else was present there. During
treatment at the District Hospital, her daughter died. It is further mentioned
that first informant became extremely distressed due to the death of her
daughter. She stated that a few days later, when she went to the house
(place of occurrence) the neighbours informed her, that after severely
assaulting her daughter, her son-in-law, Manish, poured kerosene oil on her
and burnt her to death. The application further mentions that the above-
mentioned chain of events led her to believe that due to non-fulfilment of
additional dowry demand, her daughter had been killed by her son-in-law.
6. After being hospitalized, first informant’s daughter battled with her
injuries, but ultimately succumbed on 21.12.2010 in the hospital.
Thereafter, inquest proceedings (Exhibit Ka-2) were conducted on the same
day in the presence of Naib Tehsildar- Yaduveer Singh Yadav. The dead
body of the deceased was sealed and sent for post-mortem examination.
7. As per the opinion of the inquest witnesses mentioned in the inquest
report Exhibited as Ka-2, deceased Ruchi was set to ablaze by her husband-
4
(Criminal Appeal No.565 of 2019)
Manish. It is further mentioned in the opinion that on the previous night,
the deceased had delivered a baby girl found dead. The deceased died due
to burn injuries; however, for certainty, an autopsy report was said to be
expedient.
8. The prosecution primarily relied upon the testimonies of two
witnesses of fact viz PW-1 Maya Devi (Mother of deceased), being first
informant, PW-2 Dinesh (Brother of deceased) and also relied upon the
dying declaration (Exhibit Ka-10), which was proved by PW-4, Yaduveer
Singh Yadav (Naib Tehsildar- Sitapur) and the certificate of fitness was
proved by PW-6 Dr. Pankaj Awasthi.
9. The investigating officer submitted charge-sheet (Exhibit Ka-13),
under Sections 302, 498A, 304-B IPC and Section ¾ Dowry Prohibition
Act, thereafter, the case, being triable by Court of Sessions, was committed
to the Sessions Court. The learned trial Court framed charge under Sections
302, 498-A, 304-B IPC, and Section 4 of DP Act. The accused person
pleaded ‘not guilty’ and demanded for trial.
10. In order to bring home the guilt of the accused-appellant, the
prosecution has examined following witnesses:
PW- 1 Maya Devi (First Informant and
Mother of the deceased)
PW-2 Dinesh (Brother of the deceased)
PW-3 H.C. Inamullah Khan CBCID
(Police official, PS- Ramkot)
PW-4 Yaduveer Singh Yadav ( Naib
Tehsildar Sadar, Sitapur)
recorded and proved dying
declaration.
PW-5 Dr S. Bhardwaj (Senior
Consultant Surgeon, District
Hospital, Sitapur)
PW-6 Dr. Pankaj Awasthi (Physician,
District Hospital, Sitapur)
PW-7 Vidhya Sagar Mishra
(Superintendent of Police
(Rural), Saharanpur (Then C.O
City, Sitapur)
5
(Criminal Appeal No.565 of 2019)
PW-8 Hafizurrahman (Additional
Superintendent of Police
(Traffic), Directorate Lucknow,
(then C.O City Sitapur)
11. Apart from the aforesaid witnesses, the prosecution produced the
following documentary evidence:-
Exhibit Ka-1 Written Report (Tehrir)
Exhibit Ka- 2 Inquest Report
Exhibit Ka-3 First Information Report
Exhibit Ka-4 GD Entry
Exhibit Ka- 5 Specimen Seal
Exhibit Ka-6 Photo of a Dead Body
Exhibit Ka-7 Police form -challan- dead
body
Exhibit Ka-8 Letter to Reserve Inspector
Exhibit Ka- 9 Letter to CMO
Exhibit Ka-10 Dying Declaration report
Exhibit Ka-11 Postmortem report
Exhibit Ka-12 Site plan
Exhibit Ka-13 Charge-Sheet
12. After the closure of prosecution evidence, the appellant was
examined under section 313 CrPC, wherein he outrightly denied all the
charges and incriminating evidence against him and claimed himself to be
innocent. Dying declaration Exhibited as Ka-10 was placed as
incriminating material against the appellant at the stage of examination
under Section 313 CrPC, and upon confrontation of the same, he once
again disavowed it, stating that it had been wrongly proved. The appellant-
convict had filed a written statement wherein he stated that his marriage
with the deceased was the result of love affairs, which displeased his in-
laws. The deceased used to reside at her parental house, where the
unfortunate occurrence took place. It was the appellant who admitted the
deceased to the hospital.
13. No defence evidence was adduced by the appellant despite an
opportunity being granted.
6
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SCOPE OF CRIMINAL APPEAL AGAINST CONVICTION
14. Before we thrash out the evidence adduced before the trial Court, we
would like to recollect and remind ourselves of the manner in which an
appeal against conviction is required to be heard by this Court, considering
the scope of jurisdiction conferred by Sections 374 and 386 Cr.P.C.
15. We are privileged to have glimpse of ratio laid down in the
judgement rendered by Hon’ble Supreme Court in the case of State of
Uttarakhand Versus Anil and others reported in 2025 SCC OnLine SC
2099, wherein the Hon’ble Supreme Court in Unequivocal terms observed
that the High Court is a first appellate Court is under mandate of law
to reassess the evidence led by the parties, statement of victim
including medical examination, scientific reports and the defence
version with due care to arrive at a just conclusion in deciding whether
the trial Court was justified in convicting the accused or not. The
relevant paragraphs of said judgement are quoted below:-
“8. We observe that while hearing appeals under Section 374(2) of the CrPC, the High
Court is exercising its appellate jurisdiction. There has to be an independent
application of mind in deciding the criminal appeal against conviction. It is the duty of
an appellate court to independently evaluate the evidence presented and determine
whether such evidence is credible. Even if the evidence is deemed reliable, the High
Court must further assess whether the prosecution has established its case beyond
reasonable doubt. The High Court, though being an appellate Court, is akin to a Trial
Court and must be convinced beyond all reasonable doubt that the prosecution's case is
substantially true and that the guilt of the accused has been conclusively proven while
considering an appeal against conviction.
9. As the first appellate court, the High Court is expected to evaluate the evidence
including the medical evidence, statement of the victim, statements of the witnesses and
the defence version with due care. While the judgment need not be excessively lengthy,
it must reflect a proper application of mind to crucial evidence. Albeit the High Court
does not have the advantage to examine the witnesses directly, the High Court should,
as an appellate Court, re-assess the facts, evidence on record and findings to arrive at
a just conclusion in deciding whether the Trial Court was justified in convicting the
accused or not. We are also cognizant of the large pendency of cases bombarding our
courts. However, the same cannot come in the way of the Court's solemn duty,
particularly, when a person's liberty is at stake.
10. This Court, in State of Uttar Pradesh v. Ambarish, (2021) 16 SCC 371 held that
while deciding a criminal appeal on merits, the High Court is required to apply its mind
to the entirety of the case, including the evidence on the record before arriving at its
conclusion. In this regard, we may also refer to the orders passed by this Court in
Shakuntala Shukla v. State of Uttar Pradesh, (2021) 20 SCC 818 and State Bank of
India v. Ajay Kumar Sood, (2023) 7 SCC 282.”
7
(Criminal Appeal No.565 of 2019)
16. The law mandates and casts a duty upon the appellate court for
reassessment of the entire evidence, so as to arrive at an independent
finding regarding the guilt or innocence of a convict; thus, the
testimonies of witnesses of facts are being re-appreciated as under:
(emphasis added)
PROSECUTION EVIDENCE
17. PW-1 Maya Devi happens to be the first informant and the mother
of the deceased, appeared in the witness box and deposed that, the
deceased, Ruchi was married to the accused-Manish, approximately three
years prior to the incident, and at the time of the incident, the deceased was
six months pregnant. She further deposed that the deceased used to
telephonically inform her that the accused demanded Rs. 50,000/- as
additional dowry and subjected her to beatings due to non-fulfillment.
Despite her having spoken to the accused about her financial helplessness,
he continued his demand until the death of the deceased. She further
deposed that prior to the incident, the accused had come to her residence on
27.11.2010 and obtained the keys of her house at Kashi Ram Colony,
Sitapur, whereafter the accused and the deceased departed together. She
further deposed that on the following day, she received information that the
deceased had sustained burn injuries, and upon reaching the District
Hospital, she found the deceased in a severely burnt condition, in the
absence of the accused. She stated that the deceased, who was then
conscious, disclosed to her that the accused had first beaten her, poured
kerosene upon her, set her on fire, bolted the door from outside and fled.
She further deposed that the deceased remained hospitalised for
approximately one and a half months before succumbing to her injuries, in
the meantime, the Naib Tehsildar recorded her statement as to the cause of
death and obtained her thumb impression. She further stated that the child
born to her daughter also subsequently died. She further stated that her
complaint was not registered by the police despite repeated attempts, and it
was only upon her approaching a senior officer that her report was formally
registered, and the same is exhibited as Ka-3 (F.I.R.).
8
(Criminal Appeal No.565 of 2019)
18. The testimony of PW-1 was subjected to lengthy cross-examination,
and in her cross-examination, she stated that she had no prior animosity
with the accused or his family. She deposed that at the time of the marriage
of her daughter with the accused, there was no dispute with respect to the
demand of dowry, and the marriage was happily celebrated. PW-1 denied
the suggestion that the marriage between her daughter and the accused was
against her wishes or against the wishes of her family. However, she
admitted that she was not aware of the alleged court marriage, said to have
taken place at the Sub-Registrar's office, Viswan, on 15.06.2006 .
19. The glaring feature of the testimony of PW-1 is, that she has certified
the pregnancy of her daughter and further, her statement that Manish was
not found at the hospital concerned when she reached to the hospital. Apart
from the aforesaid fact, the testimony of PW-1 finds corroboration with the
dying declaration in question, and even the said witness unequivocally
stated that her daughter had disclosed to her that after being set ablaze, the
door was bolted from outside. The said witness remained intact in relation
to the timing of the dying declaration as well as her daughter’s conscious
and lucid condition. The statement mentioned in the dying declaration that
the accused Manish poured the kerosene oil and set her ablaze is also
corroborated in the testimony of PW-1, though PW-1 is not an ocular
account, but her statement still corroborates the dying declaration and
gelled with the same.
20. The second witness of fact adduced by prosecution is Dinesh- PW-2
who stated in his statement-in-examination that Ruchi, was his sister, who
was married to the accused- Manish, approximately three years prior to the
incident, though dowry was given as per the family's means, the accused
remained dissatisfied and demanded an additional sum of Rs.50,000/-
which the family was unable to pay owing to the death of their father, on
account of which the accused used to beat and harass the deceased. PW-2
further deposed that on the day preceding the incident, the accused came to
their residence at Durgapurwa along with the deceased and sought the keys
9
(Criminal Appeal No.565 of 2019)
of their mother's house in Kashiram Colony, which were handed over by
his mother in his presence, whereafter both the accused and the deceased
departed together. Accused Manish deposed that on 28.11.2010 at around
11:00 A.M, he received information that the accused had poured kerosene
on the deceased, set her on fire, locked the room from outside and fled, and
that upon reaching Kashiram Colony, he learnt that the colony residents
had already taken the deceased to the hospital. P.W.- 2 stated that upon
reaching the District Hospital, Sitapur, he found the deceased in the
emergency ward in a groaning and burnt condition, whereupon the
deceased disclosed to him that the accused had beaten her and set her on
fire by pouring kerosene on her on account of the non- fulfilment of his
monetary demand. He further deposed that the deceased was subsequently
shifted to the burn ward, where she remained for approximately 22-23 days
before succumbing to her injuries, and that the accused did not visit the
deceased even once during her entire period of hospitalisation. PW-2
identified his signature on the Panchnama, which was exhibited as Exhibit
Ka-2 , and stated that the demand for additional dowry had continued from
after the marriage until the death of the deceased.
21. PW-2 was cross-examined by the defence, where P.W.-2 admitted that
he did not know from whom the call regarding the incident had been
received, and he did not know who had admitted the deceased to the
hospital. He denied the suggestion that the deceased had sustained burn
injuries accidentally, the accused had admitted her to the hospital and
informed the family thereof, or that a false case had been instituted against
the accused on account of any grudge.
22. In order to ascertain whether the deceased died, otherwise than under
normal circumstances, the consideration of the testimony of PW-5 - Dr S.
Bhardwaj, who conducted the post-mortem examination of the deceased
Ruchi, is expedient. He stated that the deceased was aged about 20 years,
had sustained extensive ante-mortem burn injuries of first to third degree
over the head, chest, neck, abdomen, and back.
10
(Criminal Appeal No.565 of 2019)
23. The said witness, qua internal examination, stated that the brain,
lungs, liver, spleen and kidneys were found to be congested, with
crystalline effusions present in both lungs and liver, and the uterus was
found to be of approximately 24 weeks' gestation, though empty. He
opined that the cause of death was septicemia resulting from ante-mortem
burn injuries and proved the post-mortem report as Exhibit Ka-11.
24. In cross-examination, the witness stated that no injuries other than
burn injuries were found on the body and admitted that due to severe burns,
a patient may go into shock or coma, and such burns may result in death.
He further stated that he could not say whether the deceased had delivered
a child prior to death and denied the suggestion that the post-mortem report
was prepared under any external pressure.
25. The autopsy examination report, having been juxtaposed to the
testimony of medical jurist – PW5/ Dr S. Bhardwaj, it comes out that the
post-mortem report exhibited as Ka-11 reflects following injuries on the
person of deceased Ruchi:
“I to III degree burns with sepsis and healing process on the head,
chest, neck, upper portion of abdomen and back.”
26. The column of internal reproductive organs mentions ‘uterus
containing an aborted 24-week foetus. The column of opinion mentions
that the cause of death is septicemic shock resulting from ante-mortem
burn injuries.
DYING DECLARATION
27. The vital and crucial piece of evidence led before the learned trial
Court is the dying declaration of Smt. Ruchi i.e. deceased who succumbed
to burn injuries. The dying declaration so recorded by the Executive
Magistrate/ PW4 – Naib Tehsildar Yaduveer Singh Yadav (Exhibit Ka-
10) reads as under:
11
(Criminal Appeal No.565 of 2019)
-10
प्रदर्श क
D/D
डाँइग डिडक्लेरेर्शन
–
श्रीमती रूडि
6337 28.11.2010 11-50 PM
पुलि स मेमो दिद० समय
27 12.30 P.S.
रपट संख्या समय कोतवा ी सदर सीतापुर।
-14. Burn Ward
भत& बेड संख्या जि) ा अस्पता सीतापुर।
This is certified that Ruchi W/o Manish is admitted in isolate ward in District Hospital Sitapur. I have
examine, is full in conscious level and she is given him self our statement. at 16.13 PM.
Sd/- Illegible
30/11/010
30-11-2010 16-14 -
बयान प्रारम्भ समय ब)े ।
20
श्रीमती रूडि पत्नी मनीष आयु वष दिनवासी अढाव खुद ने बयान दिकया दिक मेरा मैका मो दुगा पुरवा में है। मेरी माता
( )
को कार्शीराम आवास का ोनी में मकान दिमा है। उसी मकान में दिदन र्शदिनवार को मैं और मेरा पडित गया था। आदमी पडित
11-00
ने कहा था दिक का ोनी टह आवे तब गयी थी। रात में काोनी में रूकी। पडित भी रूका था। ब)े दिदन रदिववार को
12 8
मेरे पडित ने मेरे ऊपर दिमट्टी का ते डाकर आग गा दी। मेरा ड़का वष का है व पेट में माह का बच्चा है। मेरे ड़के
के मुहां था। उसकी दवा के लि ए मैं पैसा मांग रही थी। पडित ने कहा पैसा नही दे पाऊंगा। पडित ने कहा दिक तुम मेरी मेहरूवा
नही हो। ज्यादा मुंह गोगी तो ते)ाब डा दूंगा। सक दिदखाने वाी नही रहोगी। मेरे एक ात मारी। दा का कटोरा
रखा था वह उठाकर मार दिदया। फेंका कर मारा था। मैं खदिटया पर बैठी थी। मुझे पकड़कर अन्दर वा ा कमरा में े गया
दिमट्टी का ते रखा था वह उठाकर मेरे जिसर पर डा दिदया। माडिस उठा कर )ाकर दूर से मेरे ऊपर डा दी उससे मैं
)
ी हूँ। दरवा)ा बाहर से बन्द कर दिदया। )ब मैं डिल्लाने गी तब पब्लिGक इकट्ठा हो गयी। लिखड़की खुी थी उसी से
देखा। मैं ब ाने के लिए डिल्लायी थी। दस्तखत कर ेती हूँ। हाथ )े है इसलिए दस्तखत नही कर पाऊंगी। सुनकर
तसदीक दिकया।
.
दिन० अं० रूडि
- 30.11.2010
समाप्त दिदनांक
16.34
समय ब)े ।
बयान मेरे द्वारा लि या गया।
ह० अपठनीय
30.11.2010 .
ना
तहसी दार सदर
सीतापुर
During statement she is in fully conscious and given self statement.
- -
सं ग्नक पुलि स मेमो
6337
2. -27
पुलि स रपट
3.
प्राथ ना पत्र मायादेवी
Sd/- Illegible
30/11/010
EMERGENCY MEDICAL OFFICER DISTT.
HOSPITAL SITAPUR
DD
उपरोक्त डा० पंक) अवस्थी दिफ)ीशिर्शयन )ो दिक वत मान में जि)ा डिक० सीतापुर में तैनात है दिक द्वारा सम्पन्न दिकया
गया है और उन्ही के हस्त ेख में है।
ह० )ी० ए ० रस्तोगी फामP
28. The dying declaration, having been recorded by PW-4/Yaduveer
Singh Yadav( Naib tehsildar Sadar, Sitapur ), stated in his statement-in-
12
(Criminal Appeal No.565 of 2019)
chief that on 30.11.2010, on the directions of the Tehsildar, he recorded the
dying declaration of the deceased at District Hospital, Sitapur, after the
attending doctor had certified her fit to give the statement. He further stated
that the declaration was recorded between 16:14 to 16:34 hours in his own
handwriting, bearing the thumb impression of the deceased, thus proving
Exhibit Ka-10.
29. The prosecution has heavily relied upon the dying declaration for
“bringing home the guilt of the accused”, thus, it is apt to extract Section
32(1) of the Indian Evidence Act as under:
“(1) When it relates to cause of death. -- When the statement is made by a person as to
the cause of his death, or as to any of the circumstances of the transaction which
resulted in his death, in cases in which the cause of that persons death comes into
question. Such statements are relevant whether the person who made them was or was
not, at the time when they were made, under expectation of death, and whatever may be
the nature of the proceeding in which the cause of his death comes into question.”
30. We have dealt with evidentiary value of dying declaration and culled
comprehensive guidelines in judgement rendered by us in another case i.e.
Criminal Appeal No.2275 of 2019 (Ramrati v. State of U.P.). The
relevant paragraphs of said judgement read as under:-
“We have had privilege of combing through various authorities on the subject i.e.
‘Dying Declaration’ since pre independence era (time of privy council whose decision
guided Indian Law pre 1950) and post independence era (after enforcement of
constitution and the law declared by the Hon’ble Apex Court) such as Queen Empress
v. Abdullah (1885 ILR 7 All 385), Pakala Narayana Swami v. Emperor (1939 PC 47),
Dalip Singh & Others v. State of Punjab (AIR 1953 SC 364), Kushal Rao v. State of
Bombay (AIR 1958 SC 22), K. Ramachandra Reddy & Another v. State of Andhra
Pradesh (AIR 1976 SC 1994), Munnu Raja & Another v. State of M.P. (1976) 3 SCC
104 (AIR 1976 SC 2199), Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984
SC 1622), Smt. Paniben v. State of Gujarat (1992) 2 SCC 474 (AIR 1992 SC 1817),
Kamla v. State of Punjab (AIR 1993 SC 374), Paparambaka Rosamma & Others v.
State of Andhra Pradesh (1999) 7 SCC 695, Laxman v. State of Maharashtra (2002) 6
SCC 710 (AIR 2002 SC 2973), Atbir v. Government of NCT of Delhi (2010) 9 SCC 1,
Bhajju alias Karan Singh v. State of M.P. ((2012) 4 SCC 327), Jayamma & Another v.
State of Karnataka (AIR 2021 SC 2399), Irfan v. State of Uttar Pradesh (2023 SCC
OnLine SC 1060), Naeem v. State of Uttar Pradesh (2024 SCC OnLine SC 237), Neeraj
Kumar @ Neeraj Yadav Vs. Stateo f U.P. and others, 2025 SCC Online SC 2639, State
of Himanchal Pradesh Vs. Chaman Lal, 2026 SCC Online SC 85.
Thus, we are taking it an opportunity to comprehensively sum up the law on dying
declarations taking into account aforesaid authoritative pronouncement as under:
13
(Criminal Appeal No.565 of 2019)
(i) ‘Dying Declaration’ having passed the muster of law are admissible by virtue of
legal sanctity envisaged u/s 32 (1) Indian Evidence Act, such declarations being
exception to the hearsay rule carry immense weight in criminal trials. Over the
decades, the Supreme Court of India has shaped the law on dying declarations,
clarifying their admissibility, the need or absence of corroboration, and the
safeguards required to ensure reliability.
(ii) The root of ‘Dying Declaration’ lies in the latin maxim “nemo moriturus
praesumitur mentire” (no one at the point of death is presumed to lie). Sanctity of
a dying declaration comes from the grave position of the declarant. Essentially,
unless there is some concrete reason to suspect the dying declaration, the court can
safely rely on it alone. The declaration must be scrutinized to ensure it was not the
result of tutoring, prompting or imagination, and that the victim had a clear
opportunity to identify the perpetrator and was in a fit condition to speak. If a
dying declaration appears suspicious or suffers from any infirmity, the court should
look for corroboration and not rely on it exclusively. For example, if evidence
suggests the deceased was unconscious or physically incapable of making the
statement, that declaration must be discarded.
(iii) There cannot be an absolute rule of law that the dying declaration cannot form the
sole basis of conviction unless it is corroborated. The requirement of corroboration
is merely a rule of prudence, not a mandatory legal rule. Insisting on corroboration
in every case would defeat the very purpose of the statutory exception, further, lack
of detail in the dying declaration is not a reason to discard it.
(iv) If a dying declaration has been recorded in a proper manner by a competent
authority and the court is satisfied of its truthfulness, it is a “substantive piece of
evidence” sufficient to sustain a conviction on its own and cannot be regarded as a
weak piece of evidence.
(v) The dying declaration must pass the test of it being voluntary, coherent, and made
with the declarant’s faculties intact. A dying declaration should be accepted if it
inspires confidence after examining all the surrounding circumstances (who
recorded it, when and how it was recorded, and the condition of the victim).
(vi) The omissions of detail do not invalidate a dying declaration, a statement cannot
be rejected merely because it is brief or lacks particulars. In fact, brevity by itself is
not a ground to doubt a statement; sometimes “the shortness of the statement itself
guarantees truth” .
(vii) The requirement of medical fitness/certificate is pitted against eye witness
testimony, the consistent law is, if an eyewitness testifies that the deceased was in a
fit and conscious state to make a declaration, that can override a doctor’s contrary
opinion. The logic is that a person present at the scene may better observe the
victim’s condition in real time than a belated medical inference.
(viii) In case of multiple dying declaration i.e. more than one dying declaration with
material inconsistencies, those declarations cannot be accepted at face value
without corroborative support. Specifically, if the declarations differ on essential
facts or implicate different individuals, the court must examine them in light of
other evidence. Further the declarations should corroborate each other; if they do
not, they must at least be consistent with the overall circumstantial and medical
evidence of the case. In essence, where multiple dying declarations conflict, the
14
(Criminal Appeal No.565 of 2019)
benefit of doubt generally goes to the accused unless one of the versions is clearly
proven true by independent evidence. This principle ensures that the prosecution
cannot cherry-pick one dying statement out of several contradictory ones to secure
a conviction without addressing the discrepancies.
(ix) The absence of a doctor’s certificate is not by itself a ground to discard a dying
declaration if the circumstances otherwise indicate the victim was fit. The guiding
principles emerges from Constitution Bench judgement rendered by Hon’ble
Supreme Court in the case of Laxman (supra) which overruled the earlier dictum
of Hon’ble Supreme Court rendered in the case of Paparambaka Rosamma (supra).
Thus, merely not having a doctor’s signature or certificate at the foot of the
statement will not render it inadmissible or untrustworthy.
(x) The impact of judgment rendered by five judges bench of Hon’ble Supreme Court in
the case of Laxman (supra) on Indian jurisprudence was to settle the law on
recording procedure for dying declarations. It resolved the confusion by clarifying
that a doctor’s certification of mental fitness is though ideal but is not a sine qua
non for the acceptance of a dying declaration. What matters is that the person who
recorded the statement or others present can verify the victim’s consciousness and
clarity.
(xi) The law does not require the declarant to be under the “shadow of death” or
expect imminent death at the time of making the statement. A statement is a valid dying
declaration as long as it relates to the cause of death or circumstances leading to it
regardless of whether a substantial period passed between the statement and the death.
(xii) There is no rule barring police from recording of dying declaration, however,
note of caution must be observed while relying such declarations but they are not
outright inadmissible.”
31. PW4/Yaduveer Singh Yadav, in whose presence inquest
proceedings had taken place, proved the inquest memo Ka-2 and stated that
on 21.12.2010, while being posted at Sadar Tehsil, Sitapur, he prepared the
Panchayatnama of the deceased Ruchi at the mortuary of District Hospital,
Sitapur, on the directions of the SDM. He stated that in the presence of
police officials and members of the deceased’s family, the dead body was
inspected, relevant injuries were noted, and necessary documents,
including Panchayatnama, sample seal, challan, and related papers, were
prepared and duly signed by him, and thereafter the sealed body was
handed over for post-mortem.
32. However, in cross-examination, the witness admitted that in the
Panchayatnama, no injury other than burn injuries was found, and no
mention of dowry demand was recorded in the opinion of the Panchas. He
further conceded that while recording the dying declaration, he did not
mention that he had disclosed his identity as a Magistrate to the deceased,
15
(Criminal Appeal No.565 of 2019)
nor did he independently ascertain or record her mental fitness, and that the
declaration was not recorded in a question-answer format. He also admitted
that the deceased had not stated anything regarding dowry demand in the
said dying declaration.
33. The prosecution in order to ensure that the dying declaration may
remain an unimpeachable document, produced PW- 6/Dr. Pankaj
Awasthi, who appended the fitness certificate on the dying declaration
Exhibited as Ka-10. The said witness deposed that on 30.11.2010, while
posted on emergency duty, he examined the deceased Ruchi, who was
admitted to the burn ward. He stated that upon examination, he found her
fully conscious and fit to give her statement, and accordingly certified her
fitness prior to the recording of the dying declaration and also endorsed that
she remained conscious throughout the process. He proved his certification
on the dying declaration (Exhibit Ka-10), stating that the statement was
recorded between 16:14 to 16:34 hours.
34. However, in cross-examination, the witness admitted that he had not
recorded the pulse rate, vitals, or any specific parameters of examination in
the document and neither he questioned the deceased nor her answers were
recorded by him.
35. The prosecution also produced certain formal witnesses to prove the
conduct of the investigation and police papers, etc., such as PW-3 H.C.
Inamullah Khan, who stated in his statement-in-chief that on 01.02.2011,
he was posted at Police Station Ramkot and was performing Office Record
duty. An application was received via "Dakpad" (dispatch), which had been
submitted by Maya Devi, wife of Badri Prasad, resident of Durgapurwa,
P.S. Kotwali, Sitapur, addressed to the Circle Officer (CO) City, Sitapur.
On the basis of said application, FIR No. 28/11 was registered under
Sections 498-A, 304-B of the IPC, and 3/4 of the D.P. Act against the
accused Manish through Chik No. 15/11.
36. The original Chik FIR, which is in his handwriting and signature,
16
(Criminal Appeal No.565 of 2019)
was identified as having been marked as Exhibit Ka-3. The General Diary
(GD) entry regarding the institution of the case (GD No. 46, Time 21:30,
dated 01.02.11) was made by CC359 Gokul Chandra Tiwari in his own
handwriting and signature.
37. PW- 7 Vidhya Sagar Mishra (Superintendent of Police (Rural),
Saharanpur (Then C.O City, Sitapur) in his statement-in-chief has stated
that on 02.04.11, he was posted as the Circle Officer (CO) City, Sitapur.
The investigation of Case Crime No. 28/11, under Sections 302, 498A,
304B of the IPC, and 3/4 of the D.P. Act (State vs. Manish, P.S. Ramkot),
was conducted by the former CO, Shri Hafizur Rehman. Following his
transfer, the investigation of the said case was taken over by him on
02.04.11. On 08.4.11, the Case Diary (CD) prepared by the previous
Investigating Officer (IO) was perused. On the same date, the investigation
was completed, and a charge sheet was submitted against the accused
Manish under Sections 302, 304-B, 498-A of the IPC, and 3/4 of the D.P.
Act, having found prima facie offence against the accused. The charge
sheet, bearing the signature of the witness, was presented and identified; it
has been marked as Exhibit Ka-12.
38. The lengthy cross-examination of the investigating officer/PW7
could not elicit anything that could dislodge the authenticity of police
papers and shroud any doubt on the investigation conducted. The witness
proved the police papers, including the chargesheet.
39. PW-8 Hafizurrahman (Additional Superintendent of Police
(Traffic), Directorate Lucknow, (then C.O City Sitapur) in his
statement-in-chief stated that information regarding the registration of Case
Crime No. 28/11, under Sections 498-A, 304-B of the IPC, and 3/4 of the
D.P. Act against Manish at P.S. Ramkot, was received by him via
telephone. Upon receiving the information, an investigation was
commenced after obtaining copies of the Chik FIR and the GD entry from
the station office. After perusal, the details of the Chik FIR and GD were
recorded in the Case Diary (CD). Subsequently, the statements of the scribe
17
(Criminal Appeal No.565 of 2019)
of FIR, Head Constable Inamullah Khan, and the scribe of GD, Constable
Moharrir Gokul Chandra Tiwari, were recorded. Thereafter, the
complainant's statement was recorded, the spot was inspected, and a site
plan was prepared, which has been proved as Exhibit Ka-12. After
recording the statement of witnesses perusal of the dying declaration, the
charge of Section 302 IPC was added. After his transfer, the investigation
was handed over to the next person in the office.
40. However, in his cross-examination, he stated that information
regarding this incident was first received via telephone. Prior to this, no
knowledge of the incident was possessed by him. He further stated that he
could not recall whether any prior complaint regarding this incident had
been received or not. The residence of the deceased Ruchi is recorded as
Mohalla Durgapurwa in the Inquest report, Post-mortem report, and the
dying declaration. No mention of a demand for dowry was made anywhere
in the dying declaration.
41. The chronology of events in this case is crucial for eliciting the truth
i.e., separating the grain from the chaff. The unfortunate occurrence of
setting the deceased ablaze took place on 28.11.2010, and the injured was
hospitalized on the same day. Her statement (treated as dying declaration)
was recorded on 30.11.2010 by the Executive Magistrate - Naib Tehsildar/
PW-4. The injured succumbed to her injuries on 21.12.2010 in the hospital,
i.e. after about 23 days. The post-mortem examination was conducted on
the same day. Thereafter, FIR was registered on 28.01.2011 on the basis of
the written report submitted by the first informant. The Investigating
Officer filed a charge sheet on 10.04.2011 under Sections 498-A, 304-
B,302 of IPC and Section 3/4 of the Dowry Prohibition Act. The case was
committed to the Court of Session on 28.09.2011, and thereafter, the
charges were framed on 17.11.2011. The prosecution adduced two
witnesses of facts, and their testimony has only corroborative value,
coupled with a dying declaration which has been proved by Executive
18
(Criminal Appeal No.565 of 2019)
Magistrate/ PW4. The medical fitness appended to the dying declaration
has been certified and proved by PW6/ Dr. Pankaj Awasthi. Witnesses of
facts are not ocular accounts, thus excluding dying declaration, instant case
has nothing to bring home the guilt of the accused/ appellant.
SUBMISSIONS OF PARTIES
(I) CONTENTIONS RAISED ON BEHALF OF THE
APPELLANT
42. Heard learned counsel for the Appellant, Mr. Punit Kumar Shukla
and learned State Law Officer Mr. Bipul Kumar Singh on behalf of State
and perused the record.
43. Learned counsel for the appellant, while impeaching the
prosecution's evidence, including dying declaration submitted that the
learned trial Court erred in convicting the appellant as the prosecution
miserably failed to prove its case beyond reasonable doubt. The testimony
of two witnesses of fact have been referred in extenso, where it comes out
that they are not ocular account; thus, it is strenuously urged that it is not
safe to rely on such sketchy witnesses. The alleged dying declaration
Exhibited as Ka-10 shrouded with inherent doubts and does not inspire
confidence. In the absence of any corroborative evidence, the alleged dying
declaration may be discarded. The alleged dying declaration is not
trustworthy; thus, the conviction recorded under Section 302 IPC is purely
on surmises and conjectures.
44. Learned counsel for appellant, Mr. Shukla vehemently argued that
the alleged dying declaration exhibited as Ka-10 is not worthy of reliance
as its author PW-4, Yaduveer Singh Yadav (Executive Magistrate),
conceded that the dying declaration was not recorded in a question-and-
answer format, rather it is in the shape of a continuous narrative.
45. The dying declaration, having not been recorded in question-answer
format, indicates that the executive magistrate himself did not make
19
(Criminal Appeal No.565 of 2019)
himself sure that the correct narrative in relation to the cause of injury was
disclosed by the declarant.
46. The further contention raised by Mr. Shukla is that though there is a
certification by doctor before recording dying declaration but doctor-PW-6
admitted in his statement before trial Court that injured/patient was not
objectively assessed in relation to her physical and mental condition and
the medical certificate recorded by the doctor stands belied in view of
extensive burn injuries including burns on the head, neck, and upper limbs,
and in such a condition, her ability to make a coherent and reliable
statement becomes highly questionable.
47. The counsel for appellant laid much emphasis with respect to
delayed lodging of FIR by pointing out that unfortunate occurrence is
alleged to be of 28.11.2010, whereas victim succumbed to her injuries on
21.12.2010 but even after said demise, the written complaint exhibited as
Ka-1 which stands translated in the shape of FIR was submitted on
28.1.2011 thus, there is an unexplained delay casting doubt on genuineness
of the prosecution story and suggests the possibility of false implication
after due deliberation.
48. The prosecution has adduced only two witnesses of fact viz PW-1
and PW-2, who are interested and partisan witnesses and in such a
background, the dying declaration being a shaky one ought not to be given
any credence. It is further submitted that non-examination of independent
witnesses of the locality where the unfortunate occurrence took place is the
last nail in the coffin of the prosecution.
49. Mr. Shukla, lastly, submitted that learned trial Court utterly failed to
appreciate the statement of the appellant-convict recorded under Section
313 Cr.P.C., qua admission of the victim to the hospital by him and the
marriage being result of love affairs had no place for the demand of dowry.
More so, the appellant, being fully aware of the poor financial condition of
the informant’s family had no occasion to demand any money. Thus,
20
(Criminal Appeal No.565 of 2019)
prosecution could not attribute any motive against appellant, in such
backdrop, appellant is entitled to a clean acquittal or at least he should be
extended the benefit of doubt.
50. Alternatively, Mr. Shukla has also submitted that even if this Court
does not interfere with respect to conviction part, the appellant deserves
some leniency qua sentence as the burn injuries are the remote cause of
death, in view of septicaemia developed over the period of time and death
itself occurred after 23 days. The conviction needs to be altered from
Section 302 IPC to 304 IPC, that is, from murder to culpable homicide not
amounting to murder. Mr. Shukla relied upon a reported judgment of the
coordinate bench of this Court rendered in the case of Shushila Devi
Versus State of U.P. (Criminal Appeal No.1257 of 2020), wherein the
conviction was altered.
(II) SUBMISSIONS ADVANCED ON BEHALF OF THE STATE
51. Per contra, learned State Counsel, Mr. Bipul Kumar Singh submitted
that the dying declaration exhibited as Ka-10 itself has been proved by its
author/Executive Magistrate-PW-4 and after lengthy cross-examination,
nothing could be elicited, which could doubt the genuineness and
authenticity of the statement of the victim.
52. He further submitted that law does not prescribe any format for
recording dying declaration and as such, the absence of it on question
answer format does not diminish its evidentiary value, particularly the
statement being consistent and trustworthy to the prosecution story.
53. Mr. Singh laid great emphasis that even on the dying declaration, the
medical certificate is appended and the same has been duly proved by its
author/medical jurist-Dr. Pankaj Awasthi, thus, the dying declaration
passes all the muster of law as required by Section 32(1) of the Indian
Evidence Act.
54. Learned State Counsel further submitted that the delay in lodging
21
(Criminal Appeal No.565 of 2019)
FIR is attributable to the police authorities, as per the statement of first
informant, thus, the delay in lodging FIR would not prove fatal in the
factual background of this case, particularly considering the socio-
economic condition of the first informant, who does not appear to be
vigilant for her rights. The delay in lodging FIR may be examined in the
social background of the informant, particularly her being illiterate.
55. Learned trial Court has appreciated the evidence of prosecution
witnesses, which corroborates the dying declaration as such the conviction
recorded does not call for any interference by this Court, as the opinion
formed by the learned trial Court cannot be said to be perverse in view of
the unimpeached dying declaration.
56. Mr. Singh, appearing for the State, further pointed out that the
deceased was carrying an eight month pregnancy, which was very well in
the knowledge of appellant-convict being husband and his conduct of
burning a young lady carrying pregnancy needs to be dealt with iron hands
through stern punishment, and no interference/indulgence may be granted.
57. The further submission advanced by counsel for State, qua
reliability of dying declaration is, there is medical certificate by the doctor
concerned, and the dying declaration had been recorded by an Executive
Magistrate, thus, same is worthy of reliance. In order to bolster his
submission, he has relied upon the Constitution Bench judgment rendered
by the Hon’ble Supreme Court in the case of Laxman Vs. State of
Maharashtra reported in (2002) supp. 1 SCR 697 . We have been taken
to relevant paragraphs of Laxman (supra) , which reads as under:-
"3. The juristic theory regarding acceptability of a dying declaration is that such
declaration is made in extremity, when the party is at the point of death and when every
hope of this world is gone, when every motive to falsehood is silenced, and the man is
induced by the most powerful consideration to speak only the truth. Notwithstanding the
same, great caution must be exercised in considering the weight to be given to this
species of evidence on account of the existence of many circumstances which may affect
their truth. The situation in which a man is on the deathbed is so solemn and serene, is
the reason in law to accept the veracity of his statement. It is for this reason the
requirements of oath and cross-examination are dispensed with. Since the accused has
no power of cross-examination, the courts insist that the dying declaration should be of
such a nature as to inspire full confidence of the court in its truthfulness and
correctness. The court, however, has always to be on guard to see that the statement of
22
(Criminal Appeal No.565 of 2019)
the deceased was not as a result of either tutoring or prompting 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 looks 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 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 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 depends on the facts and circumstances of each
particular 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. 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.
4. Bearing in mind the aforesaid principle, let us now examine the two decisions of the
Court which persuaded the Bench to make the reference to the Constitution Bench. In
Paparambaka Rosamma v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] the
dying declaration in question had been recorded by a Judicial Magistrate and the
Magistrate had made a note that on the basis of answers elicited from the declarant to
the questions put he was satisfied that the deceased is in a fit disposing state of mind to
make a declaration. The doctor had appended a certificate to the effect that the patient
was conscious while recording the statement, yet the Court came to the conclusion that
it would not be safe to accept the dying declaration as true and genuine and was made
when the injured was in a fit state of mind since the certificate of the doctor was only to
the effect that the patient is conscious while recording the statement. Apart from the
aforesaid conclusion in law the Court had also found serious lacunae and ultimately
did not accept the dying declaration recorded by the Magistrate. In the latter decision
of this Court in Koli Chunilal Savji v. State of Gujarat [(1999) 9 SCC 562 : 2000 SCC
(Cri) 432] it was held that the ultimate test is whether the dying declaration can be held
to be a truthful one and voluntarily given. It was further held that before recording the
declaration the officer concerned must find that the declarant was in a fit condition to
make the statement in question. The Court relied upon the earlier decision in Ravi
Chander v. State of Punjab [(1998) 9 SCC 303 : 1998 SCC (Cri) 1004] wherein it had
been observed that for not examining by the doctor the dying declaration recorded by
the Executive Magistrate and the dying declaration orally made need not be doubted.
The Magistrate being a disinterested witness and a responsible officer and there being
no circumstances or material to suspect that the Magistrate had any animus against the
accused or was in any way interested for fabricating a dying declaration, question of
doubt on the declaration, recorded by the Magistrate does not arise.
5. The Court also in the aforesaid case relied upon the decision of this Court in Harjit
Kaur v. State of Punjab [(1999) 6 SCC 545 : 1999 SCC (Cri) 1130] wherein the
Magistrate in his evidence had stated that he had ascertained from the doctor whether
she was in a fit condition to make a statement and obtained an endorsement to that
effect and merely because an endorsement was made not on the declaration but on the
application would not render the dying declaration suspicious in any manner. For the
reasons already indicated earlier, we have no hesitation in coming to the conclusion
that the observations of this Court in Paparambaka Rosamma v. State of A.P. [(1999) 7
SCC 695 : 1999 SCC (Cri) 1361] (at SCC p. 701, para 8) to the effect that “in the
23
(Criminal Appeal No.565 of 2019)
absence of a medical certification that the injured was in a fit state of mind at the time
of making the declaration, it would be very much risky to accept the subjective
satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the
time of making a declaration” has been too broadly stated and is not the correct
enunciation of law. It is indeed a hypertechnical view that the certification of the doctor
was to the effect that the patient is conscious and there was no certification that the
patient was in a fit state of mind especially when the Magistrate categorically stated in
his evidence indicating the questions he had put to the patient and from the answers
elicited was satisfied that the patient was in a fit state of mind whereafter he recorded
the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma
v. State of A.P. [(1999) 7 SCC 695 : 1999 SCC (Cri) 1361] must be held to be not
correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji
v. State of Gujarat [(1999) 9 SCC 562"
58. Mr. Singh in order to further fortify his submissions relied upon
another judgement of Hon’ble Supreme Court in relation to dying
declaration rendered in the case of Naeem Vs. State of U.P reported in
(2024) 17 SCC 735 the relevant paragraphs of the said judgement reads as
under:-
“12. Undisputedly, in the present case, the conviction is based solely on the dying
declaration (Ext. Ka-6). The law with regard to conviction on the sole basis of dying
declaration has been considered by this Court in a catena of judgments. After
considering the earlier judgments, this Court in Atbir v. State (NCT of Delhi) [Atbir v.
State (NCT of Delhi), (2010) 9 SCC 1 : (2010) 3 SCC (Cri) 1110] , has laid down
certain factors to be taken into consideration while resting the conviction on the basis
of dying declaration.
13. It will be apposite to refer to para 22 of the said judgment [Atbir v. State (NCT of
Delhi), (2010) 9 SCC 1 : (2010) 3 SCC (Cri) 1110] , which reads thus: (Atbir case
[Atbir v. State (NCT of Delhi), (2010) 9 SCC 1 : (2010) 3 SCC (Cri) 1110] , SCC pp. 8-
9)
“22. The analysis of the above decisions clearly shows that:
(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence
of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at the time
of making the statement and that it was not the result of tutoring, prompting or
imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can base
its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot
form the sole basis of conviction unless it is corroborated. The rule requiring
corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon without
corroborative evidence.
24
(Criminal Appeal No.565 of 2019)
(vi) A dying declaration which suffers from infirmity such as the deceased was
unconscious and could never make any statement cannot form the basis of conviction.
(vii) Merely because a dying declaration does not contain all the details as to the
occurrence, it is not to be rejected.
(viii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state
to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort
to induce the deceased to make a false statement and if it is coherent and consistent,
there shall be no legal impediment to make it the basis of conviction, even if there is no
corroboration.”
59. Though the arguments stand repeated on behalf of the State, he
summarised his contentions, dying declaration can be the sole basis of the
conviction if it inspires the full confidence of the court. The Court is
required to satisfy itself that the deceased was in a fit state of mind at the
time of making the statement and that it was not the result of tutoring,
prompting or imagination. It would be submitted that where the Court is
satisfied about the dying declaration being true and voluntary, it can base
its conviction without any further corroboration. Further submission is that
there cannot be an absolute rule of law that the dying declaration cannot
form the sole basis of conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of prudence. The Court has
observed that if, after careful scrutiny, the court is satisfied that it is true
and free from any effort to induce the deceased to make a false statement,
and if it is coherent and consistent, there shall be no legal impediment to
make it the basis of conviction, even if there is no corroboration.
60. Since a lot of emphasis has been laid by defence with respect to
cause of death as septicemia, further submitting that burn injuries are not
the proximate cause of death, countering the aforesaid, Mr. Singh relied
upon the judgment of Hon’ble Supreme Court rendered in Maniklal Sahu
Vs. State of Chhattisgarh reported in 2025 Livelaw (SC) 905 the relevant
paragraphs read as under:
58. Septicemia is described by the medical experts as the condition which results
25
(Criminal Appeal No.565 of 2019)
where the circulation becomes flooded with bacteria, either due to the failure of local
defensive reactions at the site of infection or to delayed or inadequate treatment.
According to the learned author, every penetrating wound except those inflicted by the
surgeon is potentially infected, though a certain period elapsed before invading
organisms actually establish themselves become embedded in the tissues to multiply
and form toxins. [See: The Essentials of Modern Surgery by Handfield Jones and
Pokitt, V Edn]
59. In one of the recent pronouncements of this Court in Prasad Pradhan v. State
of Chhattisgarh, (2023) 11 SCC 320, this Court stated in paragraphs 30 and 31
respectively as under:—
31. There can be no stereotypical assumption or formula that where
death occurs after a lapse of some time, the injuries (which might have
caused the death), the offence is one of culpable homicide. Every case has
its unique fact situation. However, what is mportant is the nature of
injury, and whether it is sufficient in the ordinary course to lead to death.
The adequacy or otherwise of medical attention is not a relevant factor in
this case, because the doctor who conducted the post-mortem clearly
deposed that death was caused due to cardiorespiratory failures, as a
result of the injuries inflicted upon the deceased. Thus, the injuries and
the death were closely and directly linked.”
(Emphasis supplied)
61. In Patel Hiralal Joitaram v. State of Gujarat, (2002) 1 SCC 22, the interval between
the date of the incident when the deceased sustained burns and the date of her death
was a fortnight. It was argued on behalf of the appellant therein that the death of the
deceased had no direct nexus with the burn injuries as during the interregnum period
some other complications cropped up as a result of which the victim succumbed. While
negativizing such contention, this Court observed as under:—
“16. Harping on an answer given by PW 12 in cross-examination that death of
the deceased had occurred due to “septic” learned Senior Counsel made out an
argument that such septic condition could have developed on account of other
causes. Mere possibility of other causes supervening during her hospitalisation
is not a safe premise for deciding whether she would not have died due to the
burns sustained on 21-10-1988. The cause of death can be determined on broad
probabilities. In this context we may refer to a passage from Modi's Medical
63. ' Culpable homicide' according to section 299, I.P.C.
has the following ingredients: Jurisprudence and Toxicology, dealing
with death by burns:
“As already mentioned, death may occur within 24 to 48 hours, but usually the first
week is the most fatal. In suppurative cases, death may occur after five or six weeks
or even longer.”
17. In Om Parkash v. State of Punjab [(1992) 4 SCC 212] the victim was set ablaze on
17-03-1979 and she sustained burns with which she died only 13 days thereafter. The
assailant was convicted of murder and the conviction was confirmed by this Court.
18. It is preposterous to say that the deceased in this case would have been healed of
the burn injuries and that she would have contracted infection through some other
causes and developed septicemia and died of that on 15-11-1988. Court of law need not
countenance mere academic possibilities when the prosecution case regarding death of
the deceased was established on broad probabilities as a sequel to the burns sustained
26
(Criminal Appeal No.565 of 2019)
by her. Hence we repel the contention of the learned counsel on that score.”
(Emphasis supplied)
69. We may highlight few broad principles that the courts must keep in mind.
a. If it is proved that the injury was fatal and the intention was to cause death, though
the death occurred after several days of septicaemia or other complications having
supervened, yet it is undoubtedly a murder as it falls within the first limb of Section 300
of the IPC.
b. If it is proved that the injuries by themselves were sufficient to cause death in the
ordinary course of nature, and if it is established that those injuries were the intended
injuries, though the death might have occurred after septicaemia or other complications
had supervened, yet the act of the accused would squarely fall under the third limb of
Section 300 of the IPC and the accused is therefore liable to be punished under Section
302 of the IPC.
c. If it is proved that the injuries were imminently dangerous to life, though the death
had occurred after septicaemia or other complications had supervened, yet the act of
the accused would squarely fall under the fourth limb of Section 300 of the IPC,
provided, the other requirements like knowledge on the part of the accused, etc. are
satisfied and so the accused would be liable to be punished under Section 302 of the
IPC. Here also, the primary cause of the death is the injuries and septicaemia.
d. In judging whether the injuries inflicted were sufficient in the ordinary course of
nature to cause death, the possibility that skilful and efficient medical treatment might
prevent the fatal result is wholly irrelevant.
e. If the supervening causes are attributable to the injuries caused, then the person
inflicting the injuries is liable for causing death, even if death was not the direct result
of the injuries.
f. Broadly speaking, the courts would have to undertake the exercise to distinguish
between two types of cases; first, where the intervening cause of death, like peritonitis,
is only a remote and a rather improbable consequence of the injury; then it can be said
that the injury is one which may, in particular circumstances, result in death, but which
may not in ordinary course of nature be likely to lead to it. Secondly, where the
complication which is the intervening cause of death is itself a practically inevitable
sequence to the injury. In that event, the probability is very high indeed, amounting to
practical certainty i.e., death is a result in due course of natural events. A deep
abdominal thrust with a knife followed by injury to the internal organs is practically
certain to result in acute peritonitis causing death. It is clearly a case of murder under
Section 302 and not merely of culpable homicide.
g. Even when the medical evidence does not say that any one of the injuries on the
body of the deceased was sufficient to cause death in the ordinary course of nature, yet
it is open to the Court to look into the nature of the injuries found on the body of the
deceased and infer from them that the assailants intended to cause death of the
deceased. If none of the injuries alone were sufficient in the ordinary course of nature
to cause the death of the deceased, cumulatively, they may be sufficient in the ordinary
course of nature to cause his death.
h. What the courts must see is whether the injuries were sufficient in the ordinary
27
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course of nature to cause death, or to cause such bodily injuries as the accused knew to
be likely to cause death although death was ultimately due to supervention of some
other cause. An intervening cause or complication is by itself not of such significance.
What is significant is whether death was only a remote possibility, or is one which
would have occurred in due course.
i. To sum it up, where death is delayed due to later complications or developments, the
courts should consider the nature of the injury, complications or the attending
circumstances. If the complications or developments are the natural, or probable, or
necessary consequence of the injury, and if it is reasonably contemplated as its result,
the injury could be said to have caused death. If on the other hand, the chain of
consequences is broken, or if there is unexpected complication causing new mischief,
the relation of cause and effect is not established, or the causal connection is too
remote then the injury cannot be said to have caused death. If the original injury itself
is of a fatal nature, it makes no difference that death is actually caused by a
complication naturally flowing from the injury and not the injury itself, since causal
connection is proximate .”
61. Further submission advanced by Sri Singh is, to the effect, the
inquest witnesses also stated at the time of inquest proceeding that
deceased was put to ablaze by appellant-convict, Manish but mentioning of
appellant, Manish as an author of injury in the inquest proceeding
(conducted as per rigours of Section 174 Cr.P.C.) by the inquest witnesses
as highlighted by counsel for State is of no significance in criminal trial as
inquest proceedings are only carried out for ex-facie determining whether
the death caused, is natural or unnatural. Such an inquiry does not proceed
for finding the author of the crime.
STATUTORY PRESCRIPTIONS AND AUTHORITATIVE
PRONOUNCEMENTS
62. Since counsel for appellant has argued that in the factual matrix of
the instant case, appellant’s conviction and sentence may be altered from
murder to culpable homicide not amounting to murder, as such, the
relevant statutory provisions contained in Chapter XVI of Indian Penal
Code need to be re-glanced.
Chapter XVI
OF OFFENCES AFFECTING THE HUMAN BODY
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.
Explanation 1.— A person who causes bodily injury to another who is labouring under
28
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a disorder, disease or bodily infirmity, and thereby accelerates the death of that other,
shall be deemed to have caused his death.
Explanation 2 .—Where death is caused by bodily injury, the person who causes such
bodily injury shall be deemed to have caused the death, although by resorting to proper
remedies and skilful treatment the death might have been prevented.
Explanation 3 .—The causing of the death of a child in the mother's womb is not
homicide. But it may amount to culpable homicide to cause the death of a living child,
if any part of that child has been brought forth, though the child may not have breathed
or been completely born.
63. ' Culpable homicide' according to section 299, I.P.C. has the
following ingredients:
1. Causing of death of a human being;
2. Such death must have been caused by doing an act;
3. The act must have been done:
(i) with the intention of causing death;
(ii) with the intention of causing such bodily injury as is likely to cause death; or
(iii) with the knowledge that the doer is likely by such act to cause death.
300. Murder. —Except in the cases hereinafter excepted, culpable homicide is murder,
if the act by which the death is caused is done with the intention of causing death, or—
Secondly.— If it is done 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, or—
Thirdly. —If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to
cause death, or—
Fourthly. —If the person committing the act knows that it is so imminently dangerous
that it must, in all probability, cause death, or such bodily injury as is likely to cause
death, and commits such act without any excuse for incurring the risk of causing death
or such injury as aforesaid.
Exception 1 . — When culpable homicide is not murder .—Culpable homicide is not
murder if the offender, whilst deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the provocation or causes the
death of any other person by mistake or accident. The above exception is subject to the
following provisos:—
First. —That the provocation is not sought or voluntarily provoked by the offender as
an excuse for killing or doing harm to any person.
Secondly .—That the provocation is not given by anything done in obedience to the law,
or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly .—That the provocation is not given by anything done in the lawful exercise of
the right of private defence.
Explanation .—Whether the provocation was grave and sudden enough to prevent the
offence from amounting to murder is a question of fact.
Exception 2. — Culpable homicide is not murder if the offender in the exercise in good
faith of the right of private defence of person or property, exceeds the power given to
him by law and causes the death of the person against whom he is exercising such right
of defence without premeditation, and without any intention of doing more harm than is
necessary for the purpose of such defence.
Exception 3. — Culpable homicide is not murder if the offender, being a public servant
29
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or aiding a public servant acting for the advancement of public justice, exceeds the
powers given to him by law, and causes death by doing an act which he, in good faith,
believes to be lawful and necessary for the due discharge of his duty as such public
servant and without ill-will towards the person whose death is caused.
Exception 4 .— Culpable homicide is not murder if it is committed without
premeditation in a sudden fight in the heat of passion upon a sudden quarrel and
without the offender's having taken undue advantage or acted in a cruel or unusual
manner.
Explanation. —It is immaterial in such cases which party offers the provocation or
commits the first assault.
Exception 5 .— Culpable homicide is not murder when the person whose death is
caused, being above the age of eighteen years, suffers death or takes the risk of death
with his own consent.
64. The ingredients of the offence of murder as defined under Section
300 IPC may be understood in vernacular language as under:-
“(1) Section 300 begins with the words "except in the cases hereinafter excepted
culpable homicide is murder." This means that culpable homicide is not murder if the
case falls within any of the exceptions mentioned in section 300.
(2) Whenever there is an intention to cause death it would always be a case of murder
unless the case falls within one of the exceptions to section 300.”
65. The ingredients of the offence under Section 300 IPC have been
elaborately stated in judgement of Virsa Singh Vs. State Of Punjab
reported in 1958 SCC OnLine SC 37 by the Hon’ble Supreme Court.
There are four such ingredients and they are said to be:
“14. To put it shortly, the prosecution must prove the following facts before it can
bring a case under Section 300 “thirdly”.
15. First, it must establish, quite objectively, that a bodily injury is present.
16. Secondly, the nature of the injury must be proved; These are purely objective
investigations.
17. Thirdly, it must be proved that there was an intention to inflict that particular bodily
injury, that is to say, that it was not accidental or unintentional, or that some other kind
of injury was intended.
18. Once these three elements are proved to be present, the enquiry proceeds further
and.
19. Fourthly, it must be proved that the injury of the type just described made up of the
three elements set out above is sufficient to cause death in the ordinary course of
nature. This part of the enquiry is purely objective and inferential and has nothing to do
with the intention of the offender.”
66. Further in Virsa Singh (supra) elaborated upon the elements laid
30
(Criminal Appeal No.565 of 2019)
down and involved in committal of offence of murder:
“20. Once these four elements are established by the prosecution (and, of course, the
burden is on the prosecution throughout) the offence is murder under Section 300
“thirdly”. It does not matter that there was no intention to cause death. It does not
matter that there was no intention even to cause an injury of a kind that is sufficient to
cause death in the ordinary course of nature (not that there is any real distinction
between the two). It does not even matter that there is no knowledge that an act of that
kind will be likely to cause death. Once the intention to cause the bodily injury actually
found to be present is proved, the rest of the enquiry is purely objective and the only
question is whether, as a matter of purely objective inference, the injury is sufficient in
the ordinary course of nature to cause death. No one has a licence to run around
inflicting injuries that are sufficient to cause death in the ordinary course of nature and
claim that they are not guilty of murder. If they inflict injuries of that kind, they must
face the consequences; and they can only escape if it can be shown, or reasonably
deduced, that the injury was accidental or otherwise unintentional.”
67. This court now proceeds to examine the fine distinction between
culpable homicide and murder inasmuch as the maximum thrust is the
offence in question, even if dying declaration is treated to be ex-facie
correct, the offence would not travel beyond culpable homicide not
amounting to murder and for that, the statutory prescriptions and various
authorities of this court as well as Hon’ble Supreme court are looked into.
68. There exists a thin line of distinction between the offence of murder
and culpable homicide not amounting to murder because the difference is
merely a question of the degree of probability of death ensuing. In light of
the above statement, explain the distinction between clause (2) of section
299 and clause (3) of section 300 IPC with the help of Illustrations and
decided cases.
69. For the purposes of comparison and bringing out the distinction
clearly, sections 299 and section 300 IPC may be put as follows:
Section 299 Section 300
A person commits
culpable homicide by
which the death is
caused.
Except in the cases if the act hereinafter excepted
is done. Culpable homicide is murder if the act by
which death is caused is done.
INTENTION
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(a) With the intention of
causing death;
(1) With the intention of causing death;
(b) With the intention of
causing such as is likely
to cause death;
(2) With the intention of causing such bodily
injury as the offender known to be likely to cause
the death of the person to whom the harm is
caused;
(3) With the intention of causing bodily injury to
any person, and the bodily injury intended to be
inflicted is sufficient in the ordinary course of
nature to cause death;
KNOWLEDGE
(c) The knowledge that
he is likely by such act to
cause death.
(4) With the knowledge that the Act is so
imminently dangerous that it must in all
probability cause death, or such bodily injury as is
likely to cause death.
70. Fine distinction between murder and culpable homicide not
amounting to murder has been considered in detail in the judgement
rendered by the Hon’ble Supreme Court in the case of State of Andhra
Pradesh Vs. Rayavarapu Punnayya and another reported in 1976 SCC
OnLine SC 316. The relevant paragraphs of said judgement are quoted as
under :-
“12. In the scheme of the Penal Code, “culpable homicide” is genus and “murder” its
specie. All “murder” is “culpable homicide” but not vice-versa. Speaking generally,
“culpable homicide” sans “special characteristics of murder”, is “culpable homicide
not amounting to murder”. For the purpose of fixing punishment, proportionate to the
gravity of this generic offence, the Code practically recognises three degrees of
culpable homicide. The first is, what may be called, “culpable homicide of the first
degree”. This is the greatest form of culpable homicide, which is defined in Section 300
as “murder”. The second may be termed as “culpable homicide of the second degree”.
This is punishable under the first part of Section 304. Then, there is “culpable homicide
of the third degree”. This is the lowest type of culpable homicide and the punishment
provided for it is, also, the lowest among the punishments provided for the three grades.
Culpable homicide of this degree is punishable under the second part of Section 304.
13. The academic distinction between 'murder' and 'culpable homicide not amounting
to murder' has vexed the courts for more than a century. 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 minutae abstractions. The safest way
of approach to the interpretation and application of these provisions seems to be to
keep in focus the key words used in the various clauses of ss. 299 and 300 . 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 Subject to certain if the
32
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act by which the death exceptions culpable is caused is done homicide is murder if the
act by which the death caused is done--
…………………….
14. Clause (b) of s. 299 corresponds with cls. (2) and (3) of s. 300 . The
distinguishing feature of the mens rea requi- site under cl. (2) is the knowledge
possessed by the offend- er regarding the particular victim being in such a peculiar
condition or state of health that the intentional harm caused to him is likely to be fatal,
notwithstanding the fact that' such harm would not in the ordinary way of nature be
sufficient to cause death of a person in normal health or condition. It is noteworthy that
the 'intention to cause death' is not an essential requirement of el. (2). Only the
intention of causing the bodily injury coupled with the offender's knowledge of the
likelihood of such injury caus- ing the death of the particular victim, is sufficient to
bring the killing within the ambit of this clause. This aspect of cl. (2) is borne out by
illustration (b) appended to s. 300 .
15. Clause (b) of s. 299 does not postulate any such knowl- edge on the part of the
offender. Instances of cases falling under cl. (2) of s. 300 can be where the assailant
causes death by a fist blow intentionally given knowing that the victim is suffering from
an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause
death of that particular person as a result of the rupture of the liver, or spleen or the
failure of the he,art, as the case may be. If the assailant had no such knowledge about
the disease or special frailty of the victim, nor an inten- tion to. cause death or bodily
injury sufficient 'in the ordinary course of nature to cause death, the offence will not be
murder, even if the injury which caused the death, was intentionally given.
16. In clause (3) of s. 300 , instead of the words 'likely to cause death' occurring in
the corresponding el. (b) of s. 299 , the words "sufficient in the ordinary course of
nature" have been used. Obviously, the distinction lies between a bodily injury likely to
cause death and a bodily injury sufficient in the ordinary course of nature to cause
death. The distinction is fine but real, and, if over- looked, may result 'in miscarriage of
justice. The differ- ence between cl. (b) of s. 299 and cl. (3) of s. 300 is one of the
degree of probability of death resulting from the intended bodily injury. To put it more
broadly, it is the degree of probability of death which determines whether a culpable
homicide is of the gravest, medium or the lowest degree. The word "likely" in cl. (b) of
s. 299 conveys the sense of 'probable' as distinguished from a mere possibili- ty. The
words "bodily injury... sufficient in the ordinary course of nature to cause death" mean
that death will be the "most probable" result of the injury having regard to the ordinary
course of nature.
17. In cases to fall within cl. (3), it is not necessary that the offender intended to
cause death, So long as death ensues from the intentional. bodily injury or injuries
sufficient to cause death in the ordinary course of nature. Rajwant and anr. v. State of
Kerala(2) is an apt illustra- tion of this point.
18. In Virsa Singh v. The State of Punjab, (2) Vivian Bose j. speaking for this
Court, explained the meaning' and scope of Clause (3), thus (at p. 1500):
“The prosecution must prove the following facts before it can bring a case
under s. 300, 3rdly'. First, it must establish, quite objective- ly, that a bodily
injury is present;. secondly the nature of the injury must be proved. These are
purely objective investigations. It must be proved that there was an intention to
inflict that particular injury, that is to say,. that it was not accidental or
unintentional or that some other kind of injury was intended. Once these three
elements are proved to be present, the enquiry proceeds further, and, fourthly it
must be ,proved that the injury of the type just described made up of the three
elements set out above was suffi- cient to cause death in the ordinary course of
nature. This part of the enquiry is purely objec- tive and inferential and has
nothing to do with the intention of the offender.”
19. Thus according to the rule laid down in Virsa Singh's case (supra) even if the
intention of accused was limited to the infliction of a bodily injury sufficient to cause
death in the ordinary course of nature and did not extend to the intention of causing
33
(Criminal Appeal No.565 of 2019)
death, the offence would be murder. Illustration (c) appended to s. 300 clearly brings
out this point.
20. Clause (c) of s. 299 and cl. (4) of s. 300 both require knowledge of the
probability of the causing death. It is not necessary for the purpose of this case to dilate
much on the distinction between these corresponding clauses. It will be sufficient to say
that cl. (4) of s. 300 would be applicable where the knowledge of the offender as to the
probability of death of a person or persons in general--as distinguished from a
particular person or persons---being caused from his imminently dangerous act,
approximates to a practical certainty. Such knowledge on the part of the offender must
be of the highest degree of probability, the act having been committed by the offender
without any excuse for incurring the risk of causing death or such injury as aforesaid.
21. From the above conspectus, it emerges that whenever a court is confronted
with the question whether the offence is 'murder' or 'culpable homicide not. amounting
to murder,' on ,the facts of a case, it will' (1) A.I.R. 1966 S.C. 1874. (2) [1958] S.C.R.
1495 be convenient for it to approach the problem in three stages. The question to be
considered at the first stage would be, whether the accused has done an act by doing
which he has caused the death of another. Proof of such causal connection between the
act of the accused and the death, leads to the second stage for considering whether that
act of the accused amounts to "culpable homicide" as defined in s. 299 . If the answer to
this question is prima facie found in the affirmative, the stage for considering the
operation of s. 300 , Penal Code is reached. This is the stage at which the Court should
determine whether the facts proved by the prosecution bring the case within the ambit
of any of the four Clauses of the definition of murder' contained in s. 300 . If the answer
to this question is in the negative the offence would be 'culpable homicide not
amounting to murder', punishable under the first or the second part of s. 304 ,
depending. respectively, on whether the second or the third Clause of s. 299 is
applicable. If this question is found in the positive, but the case comes, within any of the
Exceptions enumerated in s. 300, the offence would still be 'culpable homicide not
amounting to murder' punishable under the First Part of s. 304 , Penal Code .”
22 . The above are only broad guidelines and not cast-iron imperatives. In
most cases, their observance will facilitate the task of the court. But
sometimes the facts are so inter-twined and the second and the third stages
so tele- scoped into each other, that it may not be convenient,to give a
separate treatment to the matters involved in the second and third stages.”
ANALYSIS AND REASONING
71. Learned counsel for the appellant has claimed the benefits of the
exceptions to the offence of murder as provided in the statute book,
particularly Exception 1 and Exception 4 attached to Section 300 IPC,
which is examined in the light of ingredients contained under Exception 1
of Section 300 IPC and the same can be split as under:-
“(1) The deceased must have given provocation to the accused.
(2) The provocation must be such as would deprive any reasonable man of his power of
self-control over himself.
(3) The act of killing of the accused must have been done when he was deprived of his
power of self-control by the grave and sudden provocation. It must be done under the
immediate impulse of provocation.
(4) The offender must not have reflected, deliberated or cooled, between the
provocation and the mortal stroke. Thus, there must not be sufficient time for the
passion caused by the provocation to cool down and reason to reassert its control;
34
(Criminal Appeal No.565 of 2019)
Datta Gem v. State of Maharashtra, AIR 1974 SC 387.
(5) The offender must have caused the death of the person who gave the provocation or
that of any other person by mistake or accident.
The First exception is however subject to three exceptions:
(a) Where the accused courts provocation or merely uses it as an excuse for
assaulting another. In other words, provocation must come to him and he must
not seek to get provocation.
(b) Where the act is legal but is done in an illegal manner which offers
sufficient provocation, killing in pursuant there is no murder.
(c) A person who acts in the exercise of his right of self-defence performs a
legal act and may provoke another and if he retaliates on account of the
provocation so received, it will not be an extenuation of this crime.”
72. In the scenario, no defence evidence has been adduced the only
material for examination is prosecution evidence, including the dying
declaration which does not suggest that the provocation was given at the
end of deceased, thus, further inquiry for meeting other parts of Exception
1 to Section 300 IPC does not arise.
73. Now the next question that arises for consideration is whether
Exception 4 to Section 300 IPC comes to the rescue of appellant or not. To
attract Exception-4 following ingredients are expedient :-
(i) There must be a sudden fight;
(ii) The act must have been committed in a heat of passion;
(iii) The act must have been committed without pre-meditation;
(iv) The accused must not have taken undue advantage;
(v) The accused should not have acted in a cruel manner ; and
(vi) The fight must have been with the person killed .
74. To attract Exception 4, four ingredients must be satisfied and all the
four ingredients must cumulatively be present and even the absence of one
of the ingredient would disentitle the appellant-accused from claiming the
benefit of Exception 4 to Section 300 IPC. The Hon’ble Supreme Court in
a recent decision rendered in case of Surender Kumar v. State of
Himachal Pradesh reported in 2025 SCC OnLine SC 2750 has held as
under:-
“8. As far as Exception 4 is concerned, an act of culpable homicide does not amount
to murder if following ingredients are fulfilled (i) there is no pre-meditation; (ii)
there is a sudden fight; (iii) the act is committed in the heat of passion; and (iv) the
assailant has not taken any undue advantage or acted in a cruel manner. Although
35
(Criminal Appeal No.565 of 2019)
the term ‘fight’ has not been defined in IPC , but the consistent view is that it implies
mutual assault by use of criminal force and not mere verbal duel.
9. In Bhagwan Munjaji Pawade v. State of Maharashtra , (1978) 3 SCC 330 (para 6),
followed and affirmed in Awadhesh Kumar v. State of U.P. & Anr. , (2019) 10 SCC 323,
this Court held that where the accused is armed and the deceased is unarmed,
Exception 2 can have no application and Exception 4 to Section 300 would not apply if
there is sudden quarrel but no fight between the deceased and the accused. It was
held that ‘fight’ postulates a bilateral transaction in which blows are exchanged.
10. In the instant case, there is no evidence of exchange of blows. In our view,
therefore, case would not fall under Exception 4 to Section 300 . Moreover, infliction of
4 knife blows to an unarmed person, on vital parts of the body, is indicative of the
accused acting in a cruel manner.
11. At last, the appellant’s counsel argued that case may fall under Exception 1 to
Section 300 because infliction of knife blows took place after a quarrel. In our view,
there is not much evidence on record to disclose that provocation was so grave and
sudden that the appellant was deprived of his self-control.”
75. In the instant case, the judgment of Surender Kumar (supra)
squarely applies qua sudden fight as there is no allegation of a fight in the
instant case also.
76. The material on record including dying declaration is examined on
the touchstone of essential elements of Exception 4 to Section 300 IPC. It
comes out that there is absolutely absence of fight, what to say sudden
fight, as for satisfying the term fight two individuals active involvement is
needed, it cannot be unilateral as in the instant case. Neither in the dying
declaration nor in the statement under Section 313 Cr.P.C. it is mentioned
that there was a fight more so the appellant having locked the door after
putting the deceased to ablaze, clearly indicates that he acted in a cruel
manner and has taken undue advantage of his position i.e. after burning his
own pregnant wife, he did not allow the deceased to go outside for help.
Thus, in view of aforesaid factual matrix from no stretch of imagination
Exception 4 to Section 300 IPC comes to rescue of appellant. This Court
cannot lose sight of the fact that deceased was unarmed and no instigation
on her part has been alleged by defence.
77. For claiming the benefit of Exception 4, the accused must establish,
on a balance of probabilities, that the act was committed without
premeditation, arose out of a sudden fight in the heat of passion upon an
36
(Criminal Appeal No.565 of 2019)
abrupt quarrel, and that the offender neither took undue advantage nor
acted cruelly or unusually. The rationale underlying this exception is that
where premeditation is absent, and the offender acts under a complete loss
of self-control driven by the heat of passion, the resulting act is one that a
person of ordinary temperament would not ordinarily commit.
78. The submission that appellant has not taken undue advantage or
acted in a cruel or unusual manner as comes out from evidence on record is
tested in the light of the ratio laid down by the Hon’ble Supreme Court in
the case of Anil Kumar Vs. State of Kerala reported in (2024) 1 SCC
327 . The relevant paragraphs of the said judgement are quoted below:-
“It is on the strength of the above exception that from the side of the appellant it has
been argued that the appellant is not guilty of murder as he had no premeditated mind
and that the action of the appellant arose out of a sudden fight. In the first place, the
fight was not sudden. The appellant and the Page 10 | 14Criminal Appeal No.2697 of
2023 deceased wife had a past history of quarrel and that they had been quarrelling on
the fateful day also since before the actual incident. During their quarrel, a neighbour
(Sahajan) i.e. PW 1 had visited their house and the deceased wife had shown some
injuries received by her during the assault. However, realising the quarrel between the
two, he left saying that he would come home later on. It was thereafter that the incident
ofpouring kerosene and burning took place. So, there was sufficient time in between
the two acts and it cannot be said that there was a sudden quarrel and provocation
leading to burning. The appellant saw the deceased wife drenched inkerosene and was
conscious that if lighted, she would be burnt to death even then ignited her to fire. This
shows premeditated mind to kill her. More particularly, the appellantcannot take
advantage of the 4th Exception only on the pretextthat it was not on account of
premeditated mind or out of a Page 11, 14 Criminal Appeal No.2697 of 2023 sudden
fight or that his intentions were not bad as he tried hisbest to douse the fire and to save
the life of the deceased wifefor the reason that the benefit of the above exception
wouldhave been available to him, had he not taken undue advantage of the situation.
21.The exception clearly in unequivocal term states that it would be applicable where
culpable homicide is committed not only without premeditated mind in a sudden fight
or quarrel but also without the offender taking “undue advantage” of the situation. In
the instant case, the appellant upon seeing the deceased drenched in kerosene clearly
took advantage of the situation and lighted a matchstick and threw it upon her so that
she can be burnt. The appellant having taken “undue advantage” of the situation
cannot be extended the benefit of Exception 4 to Section 300 IPC so as to bring the case
within the ambit of Part II of 304 IPC Page 12, 14 Criminal Appeal No.2697 of 2023
22. In view of the above legal position, the ruling cited above, viz. Kalu Ram (supra)
would not benefit the appellant. 23. The First Information Report and the dying
declarations on record clearly contain the statement of the deceased that when she had
poured kerosene upon herself to deter the appellant from fighting and assaulting, he
lighted a matchstick and with the intention to kill her, threw it upon her by saying “You
Die”. 24. The aforesaid evidence clinches the issue and establishes beyond doubt that
the appellant is guilty of the offence of culpable homicide amounting to murder and is
not entitled to benefit of the Exception 4 to Section 300 IPC.
79. In the present case, there is no fight alleged, as for fight requires two
37
(Criminal Appeal No.565 of 2019)
individuals and exchange of blows is sine qua non, which is missing in the
instant case and any assault at the end of appellant is found to be unilateral
and cannot be construed to be a fight even if an altercation if any, was
result of spur of moment. Absence of fight disentitles appellant to claim
any benefit of exception 4 attached to section 300 IPC.
80. The prosecution evidence had brought the offence in question within
the purview of culpable homicide in terms of section 299 of the IPC. The
only further question that crops up for consideration of this Court is
whether such culpable homicide is to be put under the category of murder
(as envisaged under section 300 IPC) or it remains as a part of section 299
IPC to the extent of culpable homicide not amounting to murder.
81. The first part of Section 299 of the Indian Penal Code speaks of the
intention of causing death. Here, in the instant case, from the evidence on
record, we are satisfied that the deceased had the intention to cause the
death. The Intention is always a matter of inference. Such inference should
be reasoned and well founded. Motive, words uttered at the time of
occurrence, weapon used, number of injuries, location of injuries,
opportunity to complete the task of killing are some of the factors which
would weigh in the judicial mind of the Court while deciding whether the
accused had intention to kill. In this case, having considered all the above
relevant facts, we hold that the accused had definite intention to kill and
therefore, the act of the accused would fall under the first limb of Section
299 I.P.C. and so under the first limb of Section 300 I.P.C. It does not fall
under any of the special exceptions appended to Section 300 I.P.C.
82. During the pre-Constitution era, in the case of Doraisamy Servai
Vs. Emperor , reported in 1943 M.W.N. Cr. 185 , it was held that the real
test is "whether the cause of death is directly associated with the act of the
accused " That was a case where there were two accused. Out of whom the
first accused cut the deceased on the back of the neck with a vettaruval and
the second accused was standing by his side holding a stick. When a
38
(Criminal Appeal No.565 of 2019)
witness in the case intervened, the second accused cried out, "Will you go
away or shall I cut you also?" Then the first accused cut the witness with
aruval on his neck. The deceased was taken to the hospital. He underwent
treatment as in-patient. The deceased died after 16 days. According to the
Doctors who conducted postmortem, the death was due to septicaemia and
pyaemia resulting from the multiple injuries; none of the injuries could
each by itself have caused the death, but cumulatively the injuries should
have proved necessarily fatal in the case of a normal man. The deceased
appeared to have had a physique above the normal; he was well built; so in
this case, the injuries need not have been necessarily fatal; but they were
sufficient in the ordinary course of nature to cause death. Relying on the
above medical opinion, it was argued before the Division Bench that since
the death was due to septicaemia, the offence would fall either under
Section 326 of I.P.C. or Section 304 of I.P.C. While deciding the said
question, the Division Bench formulated that the test is whether the cause
of death is to be directly associated with the act of the accused. After
having referred to various English cases as well as Indian cases, Justice
Mockett (O.C.J), speaking for the Bench, held as follows:
It would be a strange position if a man who inflicts a wound causing almost
"
immediate death should be guilty of murder, whilst a man who inflicts a very
similar wound from which pneumonia supervenes should not. On the facts of
this case it is clear to me that the deceased man, in spite of his physique which
is said to have been exceptionally robust, died as a direct result of the injuries
inflicted upon him by the appellant; and that the appellant intended his death is
evident from the facts. The result was not as immediate as he intended and not
perhaps quite in the manner that he intended. But in the processes of nature, in
spite of medical attention one of the well-known perils from a wound
supervened, namely, blood poisoning, and the deceased died. The chain of
causation is in my view direct. " (Emphasis added) On such view, the Division
Bench held the accused guilty under Section 302 I.P.C.
83. In one of the decisions, rendered by Hon’ble Supreme Court State of
Haryana Vs. Pala and others reported in (1996) 8 SCC 51, Hon'ble
Supreme Court had an occasion to draw a fine distinction in homicidal
cases between the primary effect of the injuries and the secondary effect of
the injuries. In the aforementioned case, the deceased was hit on his head
three times and when the deceased had fallen, the other accused had beaten
39
(Criminal Appeal No.565 of 2019)
him thrice on his chest and abdomen. The deceased was taken to the
hospital. The deceased died several days later, while in the hospital. The
doctor's opinion in respect of the cause of death was as follows:
"Cause of the death was due to septicaemia, which resulted as a result of
the head injury and was sufficient to cause death in ordinary course of
nature."
84. The contention before the Hon'ble Supreme Court was that the
offence committed by the accused would not fall under any of the limbs of
Section 300 I.P.C. This question was considered in the light of further
information given by the doctors which is as follows:
"Septicasemie is the direct result of the head- injury. This is not a disease.
In other words, head injury is the cause of death."
85. The Trial Court convicted the accused, applying clause 3 of Section
300 I.P.C., under Section 302 I.P.C. On appeal, the High Court applied
Exception 4 to Section 300 I.P.C. and converted the offence of murder into
culpable homicide not amounting to murder and convicted the accused
under Section 304 Part II of I.P.C . In the further appeal to the Hon'ble
Supreme Court, in paragraph 3 of the judgment, the Hon'ble Supreme
Court has held as follows:
"3......On the other hand he contended that when death was due to
septicasemie, it cannot be referable to the cause of the death in the ordinary
course of nature due to anti mortom injuries and that, therefore, the offence of
murder has not been made out. In support thereof, he sought to place reliance
on Lyon's Medical Jurisprudence for India (Tenth Edition) at page 222. It is
stated therein that "Danger to life depends, primarily, on the amount of
hemorrhage, on the organ wounded, and on the extent of shock; secondarily, on
secondary hemorrhage, on the occurrence of septicaemia, erysipelas, tetanus,
or other complications. In answering the question whether a wound is
dangerous to life, the danger must be assessed on the probable primary effects
of the injury : Such possibilities as the occurrence of tetanus or septicaemia,
later on, are not to be taken into consideration." Though the learned counsel
had not read the later part of the opinion, the medical evidence on record do
clearly establish that Septicaemia is not the primary cause and the death was
due to injuries caused to the deceased and they are sufficient to cause death in
the ordinary course of nature. Septicaemia would, therefore, not be taken into
account." (Emphasis added)
86. From the above judgement, it is crystal clear that it is not as though
in every case where the death is due to Septicaemia resulting on account of
the injuries, the offence would fall outside the scope of Section 300 I.P.C.
40
(Criminal Appeal No.565 of 2019)
On the contrary, the distinction lies as to whether the death was due to
the primary effects of the injury or due to the secondary effects of the
injury. If the injury caused to the deceased itself is either sufficient to
cause death or likely to cause death, then depending upon the other
circumstances, the offence would fall directly either under the third
limb or the fourth limb of Section 300 I.P.C.
(Emphasis added)
87. It is profitable to note the ratio laid down by Supreme Court in the
case of Jagtar Singh Vs. State of Punjab reported in (1999) 2 SCC 174,
wherein the Hon'ble Supreme Court had to decide as to whether the
offence would fall within the scope of Section 302 I.P.C. when the death
was due to Septicaemia. One of the pleas taken in that case was that
Septicaemia had occurred because of improper treatment given. It was
further contended that had there been proper treatment, the deceased would
not have died. This contention was negatived by the Hon'ble Supreme
Court by referring to Explanation-2 to Section 299 of I.P.C. which reads as
follows:
"Explanation 2 to Section 299 :- Where death is caused by bodily injury, the
person who causes such bodily injury shall be deemed to have caused the death,
although by resorting to proper remedies and skilful treatment the death might
have been prevented."
In paragraph 7 of the Judgment, the Hon'ble Supreme Court held as
follows:
"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 septecemia, but Dr. M.P.Singh (P.W.1), who held the post-
mortem 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 ,
41
(Criminal Appeal No.565 of 2019)
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 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." (Emphasis supplied)
88. In Veerla Satyanarayana Vs. State of Andhra Pradesh reported in
(2009) 16 SCC 316, the Hon'ble Supreme Court was invited to decide a
similar question where death was due to septicaemia on account of 60%
burn injuries caused by acid. In paragraphs 4 and 5 the Hon'ble Supreme
Court has held as follows:
"4. In our view, this submission is not tenable because of the burn injuries. By
throwing of the acid on the deceased who was sleeping, septicemia was caused
and he died. PW15 (doctor) has made it clear that even in the cases of proper
treatment also there is possibility of septicemia. For this purpose, the High
Court has rightly referred to and relied upon the decision of this Court in
Sudershan Kumar v. State of Delhi . In the said case, the court confirmed the
conviction under Section 302 IPC by considering the fact that there was 35%
burn injuries by pouring of acid which according to doctor's evidence was due
to toxaemia and septicemia from absorption of toxins. The Court also
considered the relevant explanation (2) to Section 299, which provides that
where death is caused by bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death, although by resorting to
proper remedies and skilful treatment the death might have been prevented.
5.In the present case, the prosecution has established beyond reasonable doubt
the motive of the accused of causing this injury. It is also established that the act
of the appellant in pouring acid on the body of the deceased was pre-planned
one; he selected night time when the deceased as well as PW1 were sleeping; he
poured the acid which caused 60% burn injuries and as the injuries caused by
the appellant were sufficient in ordinary course of nature to cause death, the
appellant is rightly held to be guilty of offence punishable under Section 302 of
IPC."
89. In State of Rajasthan Vs. Arjun Singh and others reported in
(2011) 9 SCC 115, the Hon'ble Supreme Court had to deal with a similar
situation where the death occurred after 35 days due to septicaemia on
account of gunshot injuries. Speaking for the Bench Hon'ble Mr. Justice
P.Sathasivam in paragraph 31 has held as follows:
42
(Criminal Appeal No.565 of 2019)
"31. Finally, learned senior counsel for the accused pointed out that inasmuch
as Himmat Raj Singh died after 35 days due to septicemia, the Courts below are
not justified in convicting the accused persons for an offence under Section 302
IPC for his death. Considering the medical evidence that Himmat Raj Singh
sustained 7 gun shot injuries which were sufficient to cause death in the
ordinary course, we are satisfied that the death of Himmat Raj Singh
undoubtedly falls within the ambit of 302 IPC . " (Emphasis supplied)
90. The judgments, thus far, we have referred to are all cases where the
Hon'ble Supreme Court found the accused guilty under Section 302 I.P.C.,
though the death was due to septicaemia on account of the injuries.
91. Now let us examine the ratio of certain authorities /judgments of
Hon’ble Supreme Court where the Hon'ble Supreme Court has convicted
the accused under Section 304 I.P.C. where death was also due to
septicaemia on account of the injuries.
92. In Jharmal and others Vs. State of Haryana reported in 1994 SCC
(Crl.) 593 that the deceased sustained injuries on the head due to single
blow with an iron pipe. He died after 17 days due to septicaemia. The
Court below convicted the accused under Section 302 I.P.C., but the
Hon'ble Supreme Court reversed the same and convicted the accused under
Section 304 Part II of I.P.C. In paragraph no. 6 of the judgement, the
Hon'ble Supreme Court has held as follows:
" 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 septicaemia 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 IPC and the sentence of imprisonment for life
awarded thereunder. Instead we convict him under Section 304 Part II IPC 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."
93. The counsel for the appellant cited the coordinate bench judgment of
this Court rendered in the case of Sushila (supra) in which the Hon’ble
Supreme Court rendered a judgment in the case of Maniben Vs. State of
43
(Criminal Appeal No.565 of 2019)
Gujarat reported in (2009) 8 SCC 796 was cited. In the case of Maniben
(supra) the deceased died after 8 days of the incident in which the
deceased had sustained burn injuries. The accused had thrown a burning
wick made of rags on the deceased and thereby set fire to the terylene
clothes put on by the deceased. In paragraph 20 of the judgment, it was
held as follows:-
"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 ."
94. From these judgments, one can easily perceive the difference. In
these cases, the Court held there was no intention to cause death. The
medical opinion was not certain as to whether the injuries, caused with
intention, would have been sufficient to cause the death in the ordinary
course of nature or not. But, the medical opinion was to the effect that the
injury is likely to cause death. It was because of these reasons that the
Hon'ble Supreme Court held that the offence would fall only under Section
304 I.P.C.
95. From the two sets of judgments which we have considered in detail,
indicates the point of difference is easily decipherable, which is thin but
fine. In all these cases referred to above, one common feature is that
the death was due to septicaemia on account of the injuries. In this
context we would like to mention that there is a general tendency to
contend in such cases, that if once it is found that the death is due to
septicaemia, the offence would fall under Section 304 of I.P.C. and not
under Section 302 of I.P.C. We have seen in our experience, in many
judgments of the Trial Courts, there is a slight lack of clarity on this
subject. That is the reason why, we have undertaken the exercise to refer to
both sets of judgments. From the above judgments and the discussions we
have made supra, we may state that the point of difference is this: "whether
44
(Criminal Appeal No.565 of 2019)
the death was primarily due to the injuries or due to the secondary cause
namely, the supervening cause like septicaemia, tetanus etc.,"
96. If it is proved that the injury is fatal and the intention was to cause
the death, though the death occurred after several days after septicaemia
had supervened, it is undoubtedly a murder as it falls within the first limb
of Section 300 I.P.C.
97. If it is proved that the injuries by themselves are sufficient to cause
death in the ordinary course of nature and if it is established that those
injuries were the intended injuries, though the death occurred after
septicaemia had supervened, the act of the accused would squarely fall
under the third limb of Section 300 I.P.C. and the accused is therefore
liable to be punished under Section 302 of I.P.C.
98. If it is proved that the injuries are imminently dangerous to life,
though the death had occurred after septicemia had supervened, then the act
of the accused would squarely fall under the fourth limb of Section 300
I.P.C., provided the other requirements like knowledge on the part of the
accused etc., are satisfied and so the accused will be liable to be punished
under Section 302 of I.P.C. Here also, the primary cause of the death is the
injuries and septicemia, tetanus etc., are only the secondary cause.
99. In the case in hand, learned trial Court recorded acquittal under
Section 304-B IPC, 498-A and Section 4 Dowry Prohibition Act, and there
being no challenge, this Court is bestowed with the task of only evaluating
the evidence qua whether conviction under Section 302 IPC sustains in
given facts and circumstance of the case, thus, proceed to analyse the
evidence and material on record and test the arguments raised by the
parties.
100. The first and foremost submission advanced by counsel for appellant
is with respect to delay in lodging FIR, is examined and from the record it
is gathered that PW-1 has stated in her statement that she attempted to
register the First Information Report but she was told that she should get
45
(Criminal Appeal No.565 of 2019)
her daughter treated first. The prompt recording of dying declaration
reveals the author of the crime, as such the delay in lodging FIR is of no
consequence, since roping of accused is not due to deliberation and
consultation. Rather, in dying declaration appellant has been said to be
author of crime.
101. Hon’ble Supreme Court in the case of Hariprasad @ Kishan Sahu
Vs. State of Chhatisgarh reported in 2024 SCC Online SC 1764 has held
that delay in lodging FIR is not always fatal, if cogent explanation is
furnished by prosecution and the said authority is in the same line of
Hon’ble Supreme Court’s another judgment rendered in the case of
Ravinder Kumar Vs. State of Punjab reported in (2001) 7 SCC 690.
Having considered the judgments of Supreme Court qua delay in lodging
FIR, in the facts of present case, it comes out that there is sufficient
explanation offered by none other than first informant stating that the delay
was caused on first hand due to engagement in treatment.
102. The witnesses of fact viz. PW-1 and PW-2 are not ocular accounts as
emerges from their testimonies recorded before the learned trial Court. The
dying declaration Exhibited as Ka 10 does not mention any demand of
dowry as such acquittal under Section 304 B and 4 D.P.Act appears to be
fully justified. Similarly, the evidence of cruelty could also not be led by
prosecution which impelled the learned trial Court to acquit the appellant
under Section 498-A IPC. We being an appellate court, need not to enter
into erena of acquittal in absence of any challenge in this regard.
103. Thus, the dying declaration Exhibited as Ka-10 is the only
material/evidence that has been formed basis for conviction and its
authenticity and genuineness is once again reassessed. We appreciate and
note that the dying declaration has been proved by PW-4 and the certificate
of fitness appended on dying declaration has also been proved by the
doctor i.e. Dr. Pankaj Awasthi-PW-6 but before we proceed further we put
ourselves to guard to examine the veracity of dying declaration exhibited as
Ka-10.
46
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104. The truthfulness, authenticity and genuineness of dying declaration
in question needs to be tested in view of proposition laid by Hon’ble
Supreme Court in Banarsi Dass and others Vs. State of Haryana (2014)
15 SCC 485 wherein essential of dying declaration to be relied as an
evidence, has been set out. The relevant paragraphs read as follows:
" A bare analysis of the provision, for the purpose of the case at hand, would
show that a statement by a person made before his death to be relevant, the
following ingredients are to be satisfied:
(i) The statement is made by a person who is conscious and believes or
apprehends that death is imminent.
(ii) The statement must pertain to what the person believes to be the cause or
circumstances of death.
(iii) What is recorded must be the statement made by the person concerned,
since it is an exception to the rule of hearsay evidence.
(iv) The statement must be confidence bearing, truthful and credible as held by
this Court in Laxman v. State of Maharashtra , (2002) 6 SCC 710 and followed
in Mallella Shayam Sunder v. State of A.P., (2015) 2 SCC 486.
(v) The statement should not be one made on tutoring or prompting.
(vi) The court may also scan the statement to see whether the same is prompted
by any motive of vengeance."
It was further held in Najam Faraghi v. State of West
Bengal, (1998) 2 SCC 45 that merely because a person died long after
making the dying declaration, the statement does not become irrelevant.
105. In Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 (three judges
bench), Hon'ble the Apex Court after placing reliance upon Atbir v. State
(NCT of Delhi), (2010) 9 SCC 1, Paniben v. State of Gujrat (1992) 2
SCC 474 and Paneerselvam v. State of T.N., (2008) 17 SCC 190 has
held in paras 176 and 177 as under:-
"176. The legal position regarding the admissibility of a dying declaration is
settled by this Court in several judgments. This Court inAtbir v. State(NCT Of
Delhi), taking into consideration the earlier judgment of this Court in Paniben
v. State of Gujrat and another judgment of this Court in Paneerselvam v. State
of T.N., has exhaustively laid down the following guidelines with respect to the
admissibility of dying declaration: ( Atbir case, SCC pp. 8-9, para 22).
47
(Criminal Appeal No.565 of 2019)
"22. (i) Dying declaration can be the sole basis of conviction if it inspires the
full confidence of the court.
(ii) The court should be satisfied that the deceased was in a fit state of mind at
the time of making the statement and that it was not the result of tutoring,
prompting or imagination.
(iii) Where the court is satisfied that the declaration is true and voluntary, it can
base its conviction without any further corroboration.
(iv) It cannot be laid down as an absolute rule of law that the dying declaration
cannot form the sole basis of conviction unless it is corroborated. The rule
requiring corroboration is merely a rule of prudence.
(v) Where the dying declaration is suspicious, it should not be acted upon
without corroborative evidence.
(vi) A dying declaration which suffers from infirmity such as the deceased was
unconscious and could never make any statement cannot form the basis of
conviction.
(vii) Merely because a dying declaration does not contain all the details as to
the occurrence, it is not to be rejected.
(vii) Even if it is a brief statement, it is not to be discarded.
(ix) When the eyewitness affirms that the deceased was not in a fit and
conscious state to make the dying declaration, medical opinion cannot prevail.
(x) If after careful scrutiny, the court is satisfied that it is true and free from any
effort to induce the deceased to make a false statement and if it is coherent and
consistent, there shall be no legal impediment to make it the basis of conviction,
even if there is no corroboration.
177. It is well settled that dying declaration can form the sole basis of
conviction provided that it is free from infirmities and satisfies various other
tests. In a case where there are more than one dying declaration, if some
inconsistencies are noticed between one and the other, the court has to examine
the nature of inconsistencies as to whether they are material or not. The court
has to examine the contents of the dying declarations in the light of the various
surrounding facts and circumstances."
106. Upon a close scrutiny of the dying declaration Exhibited as Ka-10, it
comes out that when the victim asked for money for the treatment of her
one and a half year old son having mouth sores, she was assaulted by the
appellant, who threw a bowl of lentils at her and threatened that if she
disclosed the incident to anyone, her face would be disfigured by pouring
acid. The dying declaration exhibits the appellant did not stop and took the
deceased to the inner portion of the house, poured kerosene oil over her
head and body, lit a match stick and threw it upon her from a distance, as a
result of which she caught fire. Even thereafter, the appellant did not stop
48
(Criminal Appeal No.565 of 2019)
even here rather to ensure her death, he bolted the door from outside. On
screaming of the deceased, people from the locality gathered at the stop.
107. The tenor of the dying declaration reflects a barbaric act of burning
the pregnant wife and thereafter bolting the door from outside in order to
ensure her death. There is not even an iota of evidence with respect to
sudden fight as such even if the incident had happened in the spur of
moment, the act of bolting the house from outside brings no other inference
except that appellant’s intention to cause death of his pregnant wife.
108. The fabric of the dying declaration, as proved by the Executive
Magistrate having certification of mental fitness the authenticity of
contents which does not appear to be result of tutoring, prompting or
imagination. The dying declaration appears to be voluntary, thus, it is
coherent and consistent. The defence failed to impeach the dying
declaration as such, the reliability by the trial Court cannot be doubted by
us in appellate jurisdiction.
109. The contention raised by counsel for State that the instant case is
covered by first clause appended to Section 300 IPC, in view of an
unimpeached dying declaration is examined on the touchstone of the
requirements/parameters of law. It is profitable to note the judgment of the
Bombay High Court rendered in Irra Gonda Deesai Vs. State of Goa,
Criminal Appeal No. 7 & 8 of 2006, in relation to first clause appended to
section 300 IPC. The relevant paragraphs are extracted as follows:
“ 13. On behalf of the respondent, the learned Public Prosecutor has placed
reliance on the case of State of Andhra Pradesh v. Rayavarapu Punnayya and
Anr. to support the case of the prosecution that the case is squarely covered by
clause firstly to Section 300 I.P.C. In this case, the Apex Court has said that
whenever a court is confronted with the question whether the offence is `murder'
or `culpable homicide not amounting to murder', on the facts of a case, it would
be convenient for it to approach the problem in three stages. The question to be
considered at the first stage would be whether the accused has done an act by
doing which he has caused the death of another. Proof of such causal
connection between the act of the accused and the death leads to the second
stage for considering whether that act of the accused amounts to culpable
homicide as defined in Section 299. If the answer to this question is prima facie
found in the affirmative, the stage for considering the operation of Section 300,
Penal Code is reached. This is the stage at which the Court should determine
49
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whether the facts proved by the prosecution bring the case within the ambit of
any of the four clauses of the definition of `murder' contained in Section 300. If
the answer to this question is in the negative, the offence would be `culpable
homicide not amounting to murder', punishable under the first or the second
part of Section 304, depending, respectively, on whether the second or third
clause of Section 299 is applicable. If this question is found in the positive, but
the case comes within any of the exceptions enumerated in Section 300, the
offence would still be `culpable homicide not amounting to murder', punishable
under the first part of Section 304, Penal Code. The Apex Court also noted that
the above are only broad guidelines and not cast iron imperatives.
15. Clause firstly of Section 300 IPC deals with death being caused by an act
with intention of causing death. Once the intention to kill is proved, the offence
is murder unless one of the exceptions are applied. It is well said that intention
is what intention does. In deciding the question of intention Courts generally
look at factors such as the nature of weapon used, the part of the body on which
the blow is given, the force of the blow and its number. In this case, from the
nature of injuries, the weapon used, their location on vital parts of the body and
force with which they were inflicted lead only to one inference that the accused
inflicted the same with the intention of killing his wife.”
110. The first clause appended to Section 300 IPC talks about intention,
the act done and the death caused. It does not talk about injuries or nature
of injuries meaning thereby if there is an intention coupled with an overact
and the death ensues the first clause of Section 300 IPC would stand
attracted. In the totality of factual matrix, both the first clause and fourth
clause of Section 300 IPC are attracted in the present case, on account of
putting a helpless lady to ablaze by pouring kerosene oil after taking her to
the inner portion of house and thereafter bolted the door from outside.
111. The alternative argument advanced on behalf of the appellant is that
the offence would not escalate beyond culpable homicide not amounting to
murder. This argument is being made on the premise that the burns caused
to the victim did not result in her death during the initial fatal period and
that her death happened on account of the setting in of some later
complications termed as septicemia by the medical jurists.
112. Section 299 IPC defines 'culpable homicide' as "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."
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113. Explanation 2 to Section 299 has a material bearing on the said
contention and hence that is extracted below:
"Explanation 2.- Where death is caused by bodily injury, the person who causes
such bodily injury shall be deemed to have caused the death, although by
resorting to proper remedies and skilful treatment the death might have been
prevented."
114. Section 300 IPC carves out two segments, one is culpable homicide
amounting to murder and the second segment consists of culpable homicide
not amounting to murder. Four clauses enumerated in the Section are
enveloped in the first segment. What is set apart for the second segment is
compendiously described as "except in the cases hereinafter excepted"
from the first segment. For the purpose of the present case, we deem it
necessary to quote only the second clause in Section 300 IPC.
"secondly.-If it is done 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."
115. In the present case, the appellant could not bring the case within the
five exceptions enumerated in Section 300 IPC. Hence, the only question to
be answered is whether he did the act with the intention of causing such
bodily injury as he knew "to be likely to cause death of the deceased". It is
inconceivable that appellant would not have known that setting a human
being ablaze after soaking her clothes with inflammable liquid would cause
her death, as the type of burn resulting therefrom would at least be "likely"
to cause her death (if not sufficient in the ordinary course of nature to cause
her death). The fact that the victim died after 23 days sustaining those burn
injuries cannot exclude the act from the contours of the "secondly" clause
of Section 300 IPC. Hence, the interval of twenty-three days between the
attack and her death is not a cause for mitigation of the offence perpetuated
by the offender. We are, therefore, not impressed by the alternative
argument advanced by the learned counsel for the appellant.
116. This Court also tests whether, if intention to cause death is not
established in the facts of the present case, the offence in question would
meet the fourth clause appended to Section 300 IPC to bring the offence of
51
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murder to the credit of appellant or not. The dying declaration
unequivocally states that deceased was taken to inner portion of the house
and was drenched with kerosene oil and thereafter was set ablaze and in
order to ensure death the door was bolted the door from the outside,
particularly when deceased was carrying eight months advance pregnancy.
It is beyond understanding that appellant being husband could not have had
knowledge and cognizance of the factum of pregnancy. Thus, setting the
deceased ablaze and thereafter boulting the door brings the test of intention
to cause death against appellant but even if alternatively it is assumed then
it is a case where the act of the accused falls under clause “Fourthly” of
section 300 IPC, i.e. the act of causing injury so imminently dangerous
where it will in all probability cause death. It is profitable to note paragraph
no.13 of the judgment rendered by Hon’ble Supreme Court in the case of
Nagabhushan Vs. State of Karnataka reported in AIR 2021 SC 1290.
The relevant paragraphs of the judgment are extracted as follows:
“13. Even assuming that the accused had no intention to cause the death of the
deceased, the act of the accused falls under clause Fourthly of Section 300 IPC
that is the act of causing injury so imminently dangerous where it will in all
probability cause death. Any person of average intelligence would have the
knowledge that pouring of kerosene and setting her on fire by throwing a lighted
matchstick is so imminently dangerous that in all probability such an act would
cause injuries causing death.
18. Upon analysis of the evidence adduced by the prosecution, the courts below
recorded concurrent findings that the accused caused the death of deceased
Saraswatibai and convicted the appellant. It is well settled that concurrent
findings of fact cannot be interfered with unless the findings are perverse and
unsupportable from the evidence on record. This view has been reiterated in
Dhananjay Shanker Shetty v. State of Maharashtra [(2002) 6 SCC 596 : 2002
SCC (Cri) 1444] . In the totality of the facts and circumstances, in our view, the
concurrent findings of facts recorded by the courts below are based on evidence
and we see no infirmity in the impugned judgment warranting interference”.
Therefore, after pouring kerosene on t he deceased and thereafter setting her
ablaze, thereafter merely because the accused might have tried to extinguish the
fire will not take the case out of the clutches of clause fourthly of Section 300 of
the IPC. The act of the accused pouring kerosene on the deceased and
thereafter setting her ablaze by matchstick is imminently dangerous which, in
all probability, will cause death. Therefore, the High Court has rightly
convicted the accused for the offence under Section 302 IPC.”
117. The learned trial Court’s inference that “the act of bolting the door
from outside completely negates the defence of sudden and grave
52
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provocation. As regards the defence plea that the accused was not present
at the spot and had only arrived later upon receiving information and
thereafter admitted the victim to the hospital, the Court is of the opinion
that according to the dying declaration, accused Manish was present at the
spot and it was he who committed the murder, and that thereafter people
gathered, he might have admitted the victim to the hospital merely due to
public pressure.” Such inference appears to be plausible.
118. Further, the cause of death of the deceased may be found due to
septicaemia but there is no material to demonstrate that any medical
negligence and supervening circumstance if any, etc. The proximate cause
of septicaemia would be burn injuries resulting in the unfortunate death of
deceased.
119. The contention raised by counsel for appellant that the dying
declaration in present case may not be relied upon having lacked
corroboration from other prosecution evidence is not worthy of acceptance
as if a dying declaration has been recorded in a proper manner by a
competent authority and the court is satisfied of its truthfulness, it is a
“substantive piece of evidence” sufficient to sustain a conviction on its own
and cannot be regarded as a weak piece of evidence.
120. The argument put forth by counsel for appellant that a dying
declaration is not on the question answer format does not inspire
confidence as Hon’ble Supreme Court unequivocally observed that there is
no such requirement in law of recording dying declaration on question
answer format as held in the case of Surinder Kumar vs State Of Punjab
reported in (2012)12 SCC 120, the relevant paragraph is quoted under :
“Insofar as the case before us is concerned, we may only note that there is no
format prescribed for recording a dying declaration. Indeed, no such format can
be prescribed. Therefore, it is not obligatory that a dying declaration should be
recorded in a question-answer form.”
121. The presence of medical certification upon dying declaration and
having it formally been proved by PW-6 fortifies the authenticity of dying
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declaration. It is worthy to mention that the dying declaration in question
has been recorded by a competent Executive Magistrate, who has no reason
to depose against appellant.
122. The argument of death due to septicemia having been developed over
the period of time suggesting that burn injuries may be remote cause is
tested on the touchstone of the ratio of judgement rendered in Sushila Devi
(supra) but the said dictum as relied by appellant is not attracted in factual
backdrop of this case though in both the cases the death occurred due to
septicemia but in the case in hand the appellant is imputed to have taken
the deceased to another room after initial altercation and poured kerosene
oil from the head by putting her to ablaze and thereafter, bolted the house
from outside, so the helpless victim may not save herself. Such conduct as
described in the dying declaration is not only cruel but appellant had taken
undue advantage of situation where deceased was carrying eight months
pregnancy. The facts of the instant case are not similar to the facts of
Sushila Devi (supra) as such the authority as relied by appellant in the case
of Sushila Devi (supra) stands distinguished on the facts. For awarding
sentence and coming to the conclusion of conviction nature of injury is not
only the sole determinative factor, rather its cause and intention and
knowledge of perpetrator is also to be looked into before coming to a
definite conclusion, thus, the authority of Sushila Devi (supra) does not
come to the rescue of appellant in relation to conviction of the appellant.
We cannot lose sight of the fact that an authority and similarly little
difference of facts as well as an addition of a single new fact, can
completely alter precedential value of a past decision as held in the case of
Bhavnagar University Vs. Palitana Sugal Mill Pvt. Ltd. and others
reported in AIR 2003 SC 511.
123. In the instant case, after throwing the bowl of lentils, appellant took
his wife to another room poured kerosene oil from head set her to ablaze
and, thereafter, locked her inside the house as comes out from none other
than the dying declaration. In view of overt acts of pouring kerosene oil
54
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and setting it ablaze, thereafter, bolting the door from outside would
definitely come under the injury aimed and caused. Thus, requisite
intention is inferred against appellant.
124. Now turning to the instant facts of the case, the bodily injuries
inflicted upon the deceased were clearly intentional, as kerosene oil was
poured and match stick was lit putting the victim to ablaze, thus, the injury
was aimed/intended and caused which resulted into death and in order to
doubly sure the death of victim the door was bolted outside of the house,
thus, the only intention could be gathered is causing death and as such, the
act of appellant herein is covered by first limb of Section 300 IPC and none
of the exceptions attached to Section 300 IPC are attracted. The death in
the instant case was postponed for 23 days because of treatment in the
district hospital as such the primary cause which is directly associated with
the death of the victim is extensive burn injuries ranging from first to third
degree. In view of elaborated discussions herein-above, we are left with no
doubt that the offence in question would be covered by first, second and
fourth limb of Section 300 IPC.
Conclusion
125. Thus, as a sequel of above, an irresistible conclusion, which,this
Court reaches is, the intended burn injuries proved to be fatal. The bolting
of the door from outside after putting the deceased to ablaze, though the
death occurred after several days of septicemia, yet it is undoubtedly a
murder punishable under Section 302 I.P.C.
126. Having reassessed the evidence led by the parties before the learned
trial Court and having taken an overall view of the matter, including
statutory prescriptions enshrined in the penal law and the legal
requirements necessary to establish the offence to be conclusively proved,
against the appellant, we are not persuaded to disturb the finding of
conviction as recorded by the learned trial Court, thus, same is maintained
and is hereby affirmed.
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Proportionality of Sentence
127. This Court now proceeds to consider and examine the proportionality
of sentence, awarded to the appellant commensurate to the offence, in view
of evidence led by parties and the prayer of leniency qua sentence is again
examined.
128. The question whether the sentence of imprisonment for life can be
converted into a fixed term sentence, in this regard we would like to go
through the ratio of law laid down by Constitution Bench of the Hon’ble
Supreme Court, rendered in the case of Union of India v. V. Sriharan,
reported in (2016) 7 SCC 1, where Hon’ble Supreme Court dealt with issue
as to whether imprisonment for life in terms of Section 53 read with
Section 45 of the I.P.C. means imprisonment for the rest of the life of the
convict or the same can be reduced.
The relevant paragraph of V. Sridharan (supra) is extracted below:-
“Questions (i) and (ii)
(i) As to whether the imprisonment for life means till the end of convict's life with
or without any scope for remission?
(ii) xxx xxx
xxx xxx
61. Having noted the abovereferred to two Constitution Bench decisions in Godse
[Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 and Maru Ram [
Maru Ram v. Union of India, (1981) 1 SCC 107 which were consistently followed
in the subsequent decisions in Sambha Ji Krishna Ji [Sambha Ji Krishna v. State of
Maharashtra, (1974) 1 SCC 196, Ratan Singh [State of (2016) 7 SCC 1M.P. v.
Ratan Singh, (1976) 3 SCC 470, Ranjit Singh [Ranjit Singh v. UT of Chandigarh,
(1984) 1 SCC 31, Ashok Kumar [Ashok Kumar v. Union of India, (1991) 3 SCC
498 and Subash Chander [Subash Chander v. Krishan Lal, (2001) 4 SCC 458. The
first part of the first question can be conveniently answered to the effect that
imprisonment for life in terms of Section 53 read with Section 45 of the Penal
Code only means imprisonment for rest of the life of the prisoner subject,
however, to the right to claim remission, etc. as provided under Articles 72 and
161 of the Constitution to be exercisable by the President and the Governor of the
State and also as provided under Section 432 of the Criminal Procedure Code.”
[Emphasis added]
129. The aforementioned Constitution Bench after referring to the various
56
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precedents, including S wamy Shraddananda (2) v. State of Karnataka ,
reported in (2008) 13 SCC 767 ; has clarified the law in paragraph nos. 104
and 105, which reads as under:
"104. That apart, in most of such cases where death penalty or life imprisonment
is the punishment imposed by the trial court and confirmed by the Division Bench
of the High Court, the convict concerned will get an opportunity to get such
verdict tested by filing further appeal by way of special leave to this Court. By way
of abundant caution and as per the prescribed law of the Code and the criminal
jurisprudence, we can assert that after the initial finding of guilt of such specified
grave offences and the imposition of penalty either death or life imprisonment,
when comes under the scrutiny of the Division Bench of the High Court, it is only
the High Court which derives the power under the Penal Code, which prescribes
the capital and alternate punishment, to alter the said punishment with one either
for the entirety of the convict's life or for any specific period of more than 14
years, say 20, 30 or so on depending upon the gravity of the crime committed and
the exercise of judicial conscience befitting such offence found proved to have
been committed."
"105. We, therefore, reiterate that the power derived from the Penal Code for any
modified punishment within the punishment provided for in the Penal Code for
such specified offences can only be exercised by the High Court and in the event of
further appeal only by the Supreme Court and not by any other court in this
country. To put it differently, the power to impose a modified punishment
providing for any specific term of incarceration or till the end of the convict's life
as an alternate to death penalty, can be exercised only by the High Court and the
Supreme Court and not by any other inferior court."
130. The Hon’ble Supreme Court reiterated the said principle time and
again in the case of Shiva Kumar v. State of Karnataka , reported in
( 2023) 9 SCC 817 ; after considering both of the aforementioned
judgments of V. Sriharan (Supra) and Swamy Shraddananda (Supra);
wherein it has been held that Constitutional Courts may, even where
capital punishments is not in issue, can impose a fixed term sentence of
more than fourteen years in place of an ordinary life sentence, subject to
the mandate of Section 433-A Cr.P.C.
The relevant excerpt of Shiva Kumar (supra) is reproduced as
under:-
“ 11. What is held by the Constitution Bench in V. Sriharan, cannot be
construed in a narrow perspective. The Constitution Bench has held
that there is a power which can be derived from IPC to impose a fixed-
term sentence or modified punishment which can only be exercised by
the High Court or in the event of any further appeal, by the Supreme
Court and not by any other court in this country. In addition, the
Constitution Bench held that power to impose a modified punishment
of providing any specific term of incarceration or till the end of
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convict's life as an alternative to death penalty, can be exercised only
by the High Court and the Supreme Court and not by any other inferior
court.
XXX XXX
14. Hence, we have no manner of doubt that even in a case where capital
punishment is not imposed or is not proposed, the constitutional courts
can always exercise the power of imposing a modified or fixed-term
sentence by directing that a life sentence, as contemplated by "secondly"
in Secton 53 IPC, shall be of a fixed period of more than fourteen years,
for example, of twenty years, thirty years and so on. The fixed
punishment cannot b e for a period less than 14 years in view of the
mandate of Section 433-A Cr.P.C."
[Emphasis added]
131. The Hon’ble Supreme Court's judgment in Ravinder Singh v. State
(2023 INSC 426) is a testament to the judiciary's unwavering commitment
to justice, especially in cases involving heinous crimes against the most
vulnerable. By asserting the authority to impose fixed-term life sentences
exceeding standard remission periods, the Court ensures that the
punishment serves its intended purpose deterring future offences,
delivering justice to victims, and upholding societal moral standards. This
precedent not only fortifies the legal framework against severe crimes but
also champions the principle that justice must be both served and seen to be
served, thereby reinforcing public confidence in the judicial system.
Moving forward, this precedent will guide us in crafting sentences that are
commensurate with the gravity of offenses, particularly those that fracture
the fundamental trust within familial relationships. It underscores the
necessity for a robust legal deterrent while balancing the rights of the
accused, aligning with constitutional safeguards and the overarching
objectives of criminal jurisprudence.
132. We are enlightened, on the issue by the recent pronouncement of
Hon'ble Supreme Court rendered in the case of Munna Moyuddin Shaikh
v. State of Gujarat (Criminal Appeal No.2686 of 2026, arising out of
SLP (Crl.) Diary No.35717 of 2025) decided on 26.05.2026 in which
entire law qua awarding fixed sentence replacing life imprisonment by
Constitutional Courts has been summarised. The relevant paragraph of
Munna Moyuddin (supra) reads as under:-
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"16. The underlying ratio of the above quoted judgments is that when a sentence of life
imprisonment is imposed, Section 53 with Section 45 the IPC would convey the
meaning that it is till the natural life subject to the right of claiming remission. Hence,
modifying a sentence of life imprisonment and imposing a fixed sentence is permissible
under the interpretation placed in Sriharan (supra) and followed in Shiva Kumar
(supra), as long as the period imposed is more than fourteen years of imprisonment."
133. The Hon’ble Supreme Court while examining issue of remission has
taken note of Philosophy of Greek Philosopher ‘Plato’ in the judgement
rendered in the case of Bilkis Yakub Rasool v. Union of India and others
reported in (2024) 5 SCC 481 which reads as under:-
“1. …punishment is to be inflicted, not for the sake of vengeance, for what is
done cannot be undone, but for the sake of prevention and reformation
(Thomas L. Pangle, The Laws of Plato, Basic Book Publishers, 1980). In his
treatise, Plato reasons that the lawgiver, as far as he can, ought to imitate the
doctor who does not apply his drug with a view to pain only, but to do the
patient good. This curative theory of punishment likens penalty to medicine,
administered for the good of the one who is being chastised (Trevor J.
Saunders, Plato's Penal Code : Tradition, Controversy, and Reform in Greek
Penology, Oxford University Press, 1991).” In Plato’s rejection of
punishment as retroactive vengeance lies the deep insight that the past cannot
be changed. Instead, punishment is justified only insofar as it serves a future-
oriented purpose, namely, prevention, reform, and the restoration of order.
The comparison between the judge and the doctor is also 26 significant. A
doctor may incidentally cause pain through surgery or medicine, but the pain
is not the objective, healing is. Likewise, punishment may involve suffering,
but suffering itself is not normatively valuable. Its legitimacy comes only from
its capacity to heal the individual and protect the polis (a political/civic
community).”
134. We have had the privilege of considering the ratio laid down by the
Hon’ble Supreme Court in the case of Navas @ Mulanavas v. State of
Kerala, Criminal Appeal No. 1215 of 2011 (2024 INSC 215), wherein the
mitigating circumstances relevant for commutation of life imprisonment for
the remainder of natural life into a fixed-term sentence were considered.
The relevant observations made by the Hon’ble Supreme Court are
reproduced below:
“57. A journey through the cases set out hereinabove shows that the
fundamental underpinning is the principle of proportionality. The
aggravating and mitigating circumstances which the Court considers while
deciding commutation of penalty from death to life imprisonment, have a
large bearing in deciding the number of years of compulsory imprisonment
without remission, too. As a judicially trained mind pores and ponders over
the aggravating and mitigating circumstances and in cases where they decide
to commute the death penalty they would by then have a reasonable idea as to
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what would be the appropriate period of sentence to be imposed under the
Swamy Shraddananda (supra) principle too. Matters are not cut and dried and
nicely weighed here to formulate a uniform principle. That is where the
experience of the judicially trained mind comes in as pointed out in V.
Sriharan (supra). Illustratively in the process of arriving at the number of
years as the most appropriate for the case at hand, which the convict will have
to undergo before which the remission powers could be invoked, some of the
relevant factors that the courts bear in mind are:- (a) the number of deceased
who are victims of that crime and their age and gender; (b) the nature of
injuries including sexual assault if any; (c) the motive for which the offence
was committed; (d) whether the offence was committed when the convict was
on bail in another case; (e) the premeditated nature of the offence; (f) the
relationship between the offender and the victim; (g) the abuse of trust if any;
(h) the criminal antecedents; and whether the convict, if released, would be a
menace to the society. Some of the positive factors have been, (1) age of the
convict; (2) the probability of reformation of convict; (3) he convict not being
a professional killer; (4) the socioeconomic condition of the accused; (5) the
composition of the family of the accused and (6) conduct expressing remorse.
These were some of the relevant factors that were kept in mind in the cases
noticed above while weighing the pros and cons of the matter. The Court
would be additionally justified in considering the conduct of the convict in
jail; and the period already undergone to arrive at the number of years which
the Court feels the convict should, serve as part of the Sentence of life
imprisonment and before which he cannot apply for remission…”
135. The appellant is not reported to have any criminal past record prior
to unfortunate occurrence in question. The custody certificate itself exhibits
long incarceration. The jail report qua conduct of inmate/appellant has
certified as good and his lodging in modern jail is said to be with a view of
reformation.
136. In the instant case, the age of the convict at the time of commission
of the offence was merely 21 years and, as of now, he is approximately 37
years of age. Though age by itself is not a determinative factor, it remains a
relevant consideration while assessing the possibility of reformation and
reintegration of the convict into society. The probability of the accused
being reformed and rehabilitated, and the likelihood of his not indulging in
criminal conduct again, are equally important considerations while
evaluating whether continued incarceration for the remainder of natural life
would serve the ends of justice.
137. The report submitted by the Jail Authorities further substantiates that
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the convict has undergone a substantial positive transformation during his
incarceration spanning approximately 15 years. His conduct in jail
indicates a mark change in behaviour, demonstrating remorse and
reflecting a genuine possibility of reformation.
138. The socio-economic condition of the accused also deserves
consideration. The material on record reflects that the family of the accused
belonged to a financially weak background. Even the parental family of the
victim was residing in a small dwelling provided under a State welfare
scheme meant for economically weaker sections, indicating the socio-
economic conditions prevailing in the background from which the parties
emerged.
139. Considering the totality of circumstances, namely: (i) the young
age of the convict at the time of commission of the offence; (ii) the
substantial period of incarceration already undergone; (iii) the positive
conduct exhibited in prison; (iv) the probability of reformation,
rehabilitation; and reintegration to Society (v) the reduced likelihood
of reoffending; and (vi) the socio-economic background of the accused,
this Court is of the considered view that the ends of justice would be
adequately met by commuting the sentence of imprisonment for life to
a fixed term sentence of twenty years without remission.
140. Such commutation, in the facts and circumstances of the present
case, would strike an appropriate balance between the principles of
proportionality, deterrence and societal interest.
141. No theory of punishment appreciates and is founded on vengeance
and revenge. Prison always does not reform people. Someone has rightly
said that “in jail nights are darker and days are longer”, which means nights
becomes endless days becomes unbearable and lastly hope disappears.
Thus, a pragmatic view is taken to give a chance of reformation to the
appellant-convict with a view of re-intigration with society. Hence, in
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totality of circumstances, we impose fixed term sentence of 20 years
rigorous imprisonment and commute the sentence of life imprisonment to
aforesaid terms.
142. Hence, the instant appeal is partly allowed to the above extent.
143. The appellant shall comply with provisions enshrined under Section
437A Cr.P.C.
144. Let a copy of this judgment, along with record of trial court be
certified to the trial Court for compliance.
145. Before parting with the case, we record our appreciation for the able
and fair assistance rendered by Mr. Punit Kumar Shukla, learned counsel
for the appellant and Mr. Bipul Kumar Singh, learned State Law Officer
representing the State.
146. The Court records its appreciation for the diligent efforts and
valuable assistance rendered by Ms. Shreya Shukla and Ms. Simar Preet
Kaur, Research Associates. The precision and clarity reflected in the legal
research and analysis submitted by them demonstrates commendable
attention to details. The Court acknowledges their contribution in aiding
the adjudication of this matter.
(Indrajeet Shukla, J.) (Rajesh Singh Chauhan, J.)
June 03, 2026
S.P.
Digitally signed by :-
SANJAY PURI
High Court of Judicature at Allahabad,
Lucknow Bench