Pawan Kumar vs State Of U.P.

A.F.R.
RESERVED
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 4280 of 2011
Pawan Kumar
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Abhishek Sharma, Pankaj Kumar
Srivastava, Ram Ashish Pandey
Counsel for Respondent(s) : Aditya Kumar Misra, Aditya Kumar
Tripathi, Govt. Advocate
Court No.43
HON'BLE SALIL KUMAR RAI, J.
HON'BLE DR. AJAY KUMAR-II, J.
(Per : DR. AJAY KUMAR-II, J.)
1. The instant Criminal Appeal has been directed against the
judgment and order dated 07.07.2011 / 11.07.2011 passed by
Additional Sessions Judge / Special Judge (S.C./S.T. Act), Etawah
in Sessions Trial No.394 of 2008 (State Vs. Pawan Kumar) arising
out of Case Crime No.90 of 2008, under Sections 452, 354, 302
IPC, Police Station - Ekdil, District Etawah convicting and
sentencing the appellant under Section 302 I.P.C. for life
imprisonment and a fine of Rs. Rs.10,000/- with stipulation of
default clause, under Section 452 IPC for seven years rigorous
imprisonment and a fine of Rs.5000/- with stipulation of default
clause and under Section 354 IPC for two years rigorous

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CRLA No. - 4280 of 2011
imprisonment and a fine of Rs.2000/- with stipulation of default
clause. All the sentences were directed to run concurrently.
2. Prosecution story, in nutshell, as unfolded in written report
(Ex.Ka.-1), is as follows:
On 02.04.2008 at about 12:00 Noon, when Kanchan,
daughter of the complainant Santosh Kumar, aged about 16 years
and a student of class XI returned home from school, kept her bag
and was changing her clothes and the younger son of the informant
namely, Vikas aged about 13 years was at home, the accused Pawan
Kumar entered into the house of the complainant through the roof
of the neighbour and started outraging the modesty of the daughter
of the complainant. On being objected, he became annoyed. The
son of the informant, who was outside the house came inside, to
which the accused Pawan picked the kerosene container, poured it
on Kanchan, lit the matchstick, set her ablaze and fled away from
the roof of the house. The son of the informant, who witnessed the
incident, started shrieking, on which the neighbour Smt. Urmila
came at the spot and extinguished the fire that broke out in the roof
of the house. At the time of incident, the complainant was working
as a labourer along with his wife. Urmila told that he had seen
Pawan Kumar running from the place of incident.
3. On the basis of written report (Ex.Ka.-1), on 02.04.2008 at
16:30 hours, Chik First Information Report (Ex.Ka-5) as Case
Crime No.90 of 2008, under Sections 354, 452, 307 IPC was
registered against the accused at Police Station - Ekdil, District
Etawah.
4. The complainant immediately took his daughter in burnt
condition to Moti Jheel Hospital, Etawah by rickshaw and got her
admitted there, where she was medico legally examined. On
02.04.2008 itself, the statement / dying declaration of the victim
(Ex. Ka.3) was recorded by the Tehsildar. He also took her signature

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over the same. Victim was conscious at the time of statement. On
the very next day her daughter was referred to Kanpur Ursala
Hospital, where she remained admitted for 6 - 7 days and during
treatment, she took her last breath.
5. On 10.04.2008 at 3:20 P.M., the autopsy of the deceased
Kanchan was performed by Dr. V.P. Chaturvedi, who found
following injuries on her person :
(i) Superficial to deep burn injuries all over the body except some
parts of chest, stomach, knee joints, legs and soles were saved from
burning.
As per opinion of the Doctor, the cause of death of the
deceased was due to septicemia, as a result of ante-mortem burn
injury. The postmortem report is Ex. Ka.-17.
6. Sub Inspector Sajjan Singh P.W.6 started the investigation and
after inspection of the spot, prepared the site plan (Ex.Ka.-7). He
recorded the statements of witnesses Kiran, Urmilla Devi, Vikas,
Satya Prakash, Raghuveer and Amar Singh. Thereafter he recorded
the injury report of the victim in case diary and took remand of the
accused on 20.04.2008. After the death of victim, inquest report was
prepared and postmortem was performed. Thereafter, Investigating
Officer recorded the proceedings of inquest in case diary and also
recorded the statements of witnesses of inquest. In G.D. No.29
dated 22.04.2008 time 18:10 hours, Section 302 IPC was added and
thereafter he handed over the investigation to Station House Officer.
The then Station Officer Pradeep Kumar Sharma took over the
investigation and after perusal of the case diary and conclusion of
the investigation, submitted charge-sheet (Ex.Ka.-16) against the
accused. Thereafter cognizance was taken upon the said charge-
sheet and the case was committed to the Court of Sessions.
7. Accused appeared before the Court and after hearing both the
parties, charges were framed under Sections 452, 354, 302 IPC

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CRLA No. - 4280 of 2011
against the accused. The accused pleaded not guilty and claimed to
be tried.
8. Trial started and in order to prove it’s case, the prosecution
adduced P.W.1 Santosh Kumar, complainant (father of the
deceased), P.W.2 Vikas (brother of the deceased), P.W.3 Panna Lal
(Tehsildar, who recorded the dying declaration of the deceased),
P.W.4 Dr. V.S. Agnihotri (who prepared injury report of the victim
at District Hospital, Etawah), P.W.5 Virendra Pratap Singh (Head
Moharrir, P.S. Ekdil), P.W.6 S.I. Sajjan Singh (Investigating Officer,
who inspected the spot, prepared site plan and recorded the
statements of the witness and prepared other papers), P.W.7 S.I.
Girja Shanker (performed the inquest and prepared other papers),
P.W.8 S.I. Pradeep Kumar (subsequent Investigating Officer who
investigated the matter and submitted charge-sheet against the
accused) and P.W.9 Dr. V.P. Chauturvedi (conducted the post-
mortem of the deceased).
9. In support of oral version, following documents were filed
and proved on behalf of the prosecution:
Written report / tehrir dated 02.04.2008 (Ex.Ka.-1), inquest
report dated 09.04.2008 (Ex.Ka.-2), dying declaration dated
02.04.2008 (Ex.Ka.-3), injury report (Ex.Ka.-4), chik first
information report (Ex.Ka.-5), G.D. report dated 02.04.2008
(Ex.Ka.-6), site plan (Ex.Ka.-7), photo nash (Ex.Ka.-8), G.D. Entry
dated 22.04.2008 (Ex.Ka.-9), sample seal (Ex.Ka.-10), challan nash
(Ex.Ka.-11), Application to S.S.P. (Ex.Ka.-12), Letter to C.M.O.
(Ex.Ka.-13), Report (Ex.Ka.-14), inquest report (Ex.Ka.-15),
charge-sheet (Ex.Ka.-16) and postmortem report (Ex.Ka.-17).
10. After the prosecution evidence was over, all
adverse/incriminating circumstances relied upon by the prosecution
were disclosed to accused in question answer form for his version

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of occurrence as per mandate of Section 313 Cr.P.C. Accused
denied all those adverse/incriminating facts put to him and said that
the prosecution case is false, he is innocent and falsely implicated.
Investigation was not done in fair and impartial manner. Accused
also pleaded that the statement of the victim was wrongly recorded,
as she (victim) was not in a position to speak and did not say
anything.
11. Trial Court, having heard learned counsel for parties and
going through entire record, vide impugned judgment and order,
convicted and sentenced the accused-appellant as above. Hence,
feeling aggrieved with said judgment and order, present accused-
appellant has filed this appeal.
12. Heard Sri Abhishek Sharma, Amicus Curiae for the appellant,
Sri Aditya Kumar Tripathi, counsel for the complainant and Sri
Virendra Kumar Pal, the A.G.A. for the State.
13. The Amicus Curiae appearing for appellant argued that the
prosecution case is totally baseless and from the evidence available
on record, no case is made out as against the convict / appellant. It
was further argued that the learned trial court has misinterpreted the
evidence available on record. No ingredient to bring home the guilt
of the accused under Sections 452, 354, 302 IPC was proved by the
prosecution. On the basis of analysis of prosecution evidence, no
guilt against the accused appellant is established and proved.
Learned trial court misread the evidence and convicted and
sentenced the appellant. It was further argued that this appeal
pertains to the year 2011 and the appellant is languishing in jail for
a considerable period of time. The sentence for life imprisonment
awarded to the appellant by the trial court is very harsh and
excessive.

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CRLA No. - 4280 of 2011
14. The Amicus Curiae for the appellant further submitted that the
injuries sustained by the deceased did not result into her
instantaneous death. If, for the sake of argument, it is assumed that
appellant has committed the offence, in that case also no offence
under Section 302 IPC is made out. This case can maximum travel
up to the limits of offence under Section 304 IPC, because the
deceased died after 7 days of the occurrence due to developing the
infection in her burn-wounds, i.e., septicaemia. As per catena of
judgments of Hon'ble Apex Court and this Court, offence cannot
travel beyond section 304 IPC, in case the death occurred due to
septicaemia. He further submitted that autopsy report also shows
that cause of death was septicaemia as a result of ante mortem burn
injuries.
15. The counsel for the complainant as well as the A.G.A. for the
State vehemently opposed the submissions made on behalf of the
appellant and submitted that PW-1, the father of the deceased and
P.W.-2, the brother of the deceased have fully supported the
prosecution case in their testimony. Other witnesses of fact have
also corroborated the prosecution version. Severe burn injuries were
found on the body of the deceased. Hence, while going through the
evidence on record, it cannot be said that the offence under Sections
452, 354, 302 IPC is not made out against he appellant. The learned
trial court has not committed any error in convicting and sentencing
the accused- appellant under Sections 452, 354, 302 IPC. There is
no merit in the appeal and the same is liable to be dismissed.
Analysis
16. In the light of above, following questions arise for
consideration in present appeal :
(i) Whether the dying declaration of the deceased is reliable or not ?

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CRLA No. - 4280 of 2011
(ii) Whether the prosecution could be said to have proved it’s case
against the appellant - convict beyond reasonable doubt ?
(iii) Whether the present case is a case of culpable homicide not
amounting to murder and, therefore, conviction / sentence of the
appellant - convict is liable to be converted / reduced under section
304 I.P.C. ?
Oral Evidence on Record.
17. Informant Santosh Kumar, who is the father of the deceased
Kanchan, has been examined by the prosecution as P.W.1. He is not
an eyewitness of the incident. However, in his deposition, he has
stated that the incident is of 02.04.2008. He and his wife had gone
for labour work. At around 12:00 noon, a boy named Chaman came
to this witness and asked him to come to his home immediately as
some untoward incident had happened. He immediately returned to
his home on the motorcycle of Chaman and found his daughter
Kanchan, aged about 16 years, lying completely burnt. He
immediately took Kanchan in burnt condition to Moti Jheel
Hospital, Etawah by rickshaw and got her admitted. He asked his
daughter Kanchan and his son Vikas regarding the incident on
which, both of them have told him that when Kanchan had returned
from school as usual and was changing her clothes, just then
accused, who is present in Court, came down from roof of adjacent
house through stairs and molested his daughter with bad intention.
When his daughter tried to save herself and resisted, the accused
poured kerosene oil upon her and thereafter set her on fire with a
matchstick. At that time his son had also entered the house. Accused
Pawan Kumar fled away from the roof by taking stairs. Hearing the
noise of his son Vikas, their neighbours Satya Prakash, Urmila Devi
and others also came on spot. After getting his daughter Kanchan
admitted to Moti Jheel Hospital, he came back to Etawah Court
where he got typed his written report / Tehrir from typist. Aforesaid

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CRLA No. - 4280 of 2011
written report / Tehrir was read out to him and thereafter he signed
the same. This witness has proved the written report / Tehrir as
Ex.Ka.-1. He gave the written report / Tehrir to Senior
Superintendent of Police, Etawah. His daughter was referred to
Ursala Hospital, Kanpur on the next day of her admission where she
remained admitted for about 6 – 7 days and died therein. On the
second day of Kanchan’s death, he was made the witness of the
inquest along with Arvind, Raju and his wife Kiran Devi. He signed
on the inquest report and has proved inquest report as Ex.Ka.-2. He
had also shown the scene of crime to the Investigating Officer. He
also identified signature of his daughter Kanchan Kumari on Paper
No.10-Ka, which is the dying declaration of his daughter.
18. The cross-examination of P.W.1 was deferred on 20.01.2009
and was cross-examined at length on 03.03.2009. As this witness is
not an eyewitness of the incident, therefore, his all cross-
examination is with respect to timing of his arrival on the spot.
However, in his cross-examination, he has confirmed that
information of the incident was given to him by Chaman. He has
also confirmed that when he arrived in his house, he found his
daughter completely burnt. This witness is the informant and has
proved his written report / Tehrir as Ex.Ka.-1 as well as inquest
report as Ex.Ka.-2. This witness has also proved the fact that on his
arrival in his home on the date of incident, he found his daughter
lying in a burnt condition.
19. The younger brother of the deceased namely, Vikas has been
examined as P.W.2. The trial Court after recording his age and
putting some questions, came to the conclusion that he understands
right and wrong and thereafter recorded its satisfaction that witness
is capable of giving testimony. In his examination-in-chief, P.W.2
has stated that on the date and time of incident, he was in the gallery
of his house. He did not go to school as he was unwell on that day.

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CRLA No. - 4280 of 2011
Both of his parents had gone to work. His younger brother, aged
about 2½ years at that time, was with him. His sister Kanchan, who
was aged about 16 years at that time, had returned from the school
and was changing her clothes inside the room. On hearing shrieks
of his sister Kanchan, he went inside and saw that accused Pawan
Kumar was molesting his sister and his sister was resisting, just
then accused poured kerosene oil from a container kept there, on his
sister and set her on fire with a matchstick. After setting her ablaze,
accused went to the roof taking stairs and ran away from there. His
sister Kanchan in a burning state came out of the room and went to
the bathroom located in the courtyard. He tried to extinguish the fire
by sprinkling water and raised alarm, then their neighbours Urmila
Devi, Satya Prakash and other villagers came on spot and
extinguished the fire. Chaman of his village brought his father on
his motorcycle. Thereafter his father took his sister to the hospital.
His sister Kanchan died in Kanpur Hospital about seven days after
the burning. Accused Pawan Kumar’s house is situated at a distance
of 5 - 6 houses from his house. Accused Pawan Kumar is present in
Court, whom he knew and identified.
20. On the request of defence, the cross-examination of P.W.2
was deferred, however, an adjournment application was moved,
which was rejected. No cross-examination was done, therefore,
cross-examination of this witness was closed. This witness was
again recalled on 10.02.2010, however, no one came to cross-
examine this witness. His cross-examination was again closed. On
the application of defence, this witness was again recalled and his
cross-examination was concluded on 14.07.2010. P.W.2 in his
cross-examination has stated that on the date of incident, he had
fever and, therefore, he was at home. He was cross-examined
regarding the place of incident and its directions. He, in his cross-
examination, again affirmed that his sister came from school and

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CRLA No. - 4280 of 2011
was changing her clothes when accused Pawan Kumar came there.
Before this incident, Pawan Kumar had never come to his house. He
came to know about it when the noise started. Pawan Kumar was
molesting his sister. When he reached, Pawan ran away after setting
her sister ablaze. Therefore, this witness has confirmed the
prosecution story in his cross-examination as well.
21. The then Naib Tehsildar, Etawah Pannalal P.W.3 in his
deposition has stated that on 02.04.2008, he had recorded the dying
declaration of Kanchan daugher of Santosh on the direction of
S.D.M., Etawah. Kanchan was in a very burnt state. Whatever was
stated by Kanchan, he had recorded the same. He started recording
her statement on 02.04.2008 at 2:30 P.M. and concluded the same at
2:46 P.M. After recording her statement, he obtained the signature
of Kanchan. He also obtained the fitness certificate from
Emergency Medical Officer, Etawah that injured / victim is in a fit
state to give her statement and only thereafter he recorded her
statement. After recording the statement of the injured / victim, he
again obtained certificate from the same Medical Officer that she
was in a fit state. This witness has proved the dying declaration of
the deceased as Ex.Ka.-10. Inspite of giving opportunity to the
defence, no one turned to cross-examine this witness, therefore, his
cross-examination was closed. However, on the application of
defence, this witness was also recalled for cross-examination and in
his cross-examination done on 21.11.2009, this witness has stated
that when he arrived in hospital for recording the statement, family
members of the victim were there, however, he had sent them
outside. He had put questions to the victim to which she had
answered. However, he had not recorded the dying declaration in
question - answer form. The victim was promptly giving answers to
the questions asked to her and was not taking time in giving the

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CRLA No. - 4280 of 2011
answers. This witness has proved the dying declaration of the
deceased.
22. Dr. V.S. Agnihotri P.W.4 medico legally examined the
deceased when she was admitted in District Hospital, Etawah on
02.04.2008 and prepared her medico legal examination report. This
witness has proved the injury report of Kanchan as Ex.Ka.-4. He
has found wounds of burn injuries, light on some places and dark on
other places, both legs were positioned forward. Except knees, back
side of both palms, some part of abdomen and head, the entire body
was burnt. Colour was red and on some part blackening was
present, hair of skull and eyebrows were singed. Smell of kerosene
oil was there on burn injuries. Ulcers / sores were also present on
some parts. The injured was conscious. Pulse and blood pressure
was zero. Injuries were kept under observation and injured was
admitted in the hospital. In his opinion, Kanchan has sustained
those burn injuries as a result of burning from kerosene oil on
02.04.2008 at 12:00 noon. This witness was not cross-examined by
the defence.
23. Head Constable Virendra Pratap Singh P.W.5, who was the
scribe of the first information report, is a formal witness, who has
proved the first information report as Ex.Ka.-5 and G.D. Report
dated 02.04.2008 time 16:30 hours as Ex.Ka.-6.
24. Sub Inspector Sajjan Singh P.W.6 is the first Investigating
Officer of this case, who after taking the investigation in hand
inspected and prepared the site plan. He recorded the statement of
various witnesses and took the accused on remand. When Section
302 I.P.C. was added after the death of deceased Kanchan, he
handed over the investigation to Station Officer of concerned police
station. This witness has proved the site plan as Ex.Ka.-7.
25. Sub Inspector Girja Shanker Pandey P.W.7 conducted the
inquest proceedings of deceased Kanchan and has prepared the

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CRLA No. - 4280 of 2011
inquest report. He has proved various papers viz. Photo nash, G.D.
Entry, sample seal, challan nash, Application to S.S.P., Letter to
C.M.O., Report P.S. Kotwali, Kanpur Nagar as Ex.Ka.-8 to
Ex.Ka.-14. This witness has also proved inquest report as Ex.Ka.-15
by verifying his signature. This witness has stated that Ex.Ka.-2 is
already marked earlier on the inquest report.
26. The then Station Officer Pradeep Kumar Sharma P.W.8
concluded the investigation and submitted the charge-sheet, which
has been proved by this witness as Ex.Ka.-16.
27. Dr. V.P. Chaturvedi P.W.9 is the autopsy surgeon, who has
conducted postmortem examination of the deceased Kanchan and
has proved the postmortem report as Ex.Ka.-17. Antemortem burn
injuries found on the body of deceased and cause of death have
already been mentioned in Para 5 of this judgment.
Question No.1 : Whether the dying declaration of the deceased is
reliable or not ?
28. The then Naib Tehsildar, Etawah Pannalal P.W.3 has recorded
the dying declaration of Kanchan on 02.04.2008 at 2:30 P.M. P.W. 3
in his deposition has categorically stated that prior to recording the
dying declaration of Kanchan, he obtained the fitness certificate
from the Emergency Medical Officer that she is in a fit state to give
statement. Only thereafter, he recorded her statement. He further
deposed that after recording the statement of the injured / victim, he
again obtained certificate from the same Medical Officer that she
was in a fit state during recording of her dying declaration.
Therefore, P.W.3, after obtaining the fitness certificate from the
Emergency Medical Officer, started recording the statement of
victim at 2:30 P.M. and concluded the same at 2:46 P.M. He, after
recording the statement of victim, again obtained fitness certificate.

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CRLA No. - 4280 of 2011
The dying declaration of the injured / victim Kanchan has been
proved by this witness as Ex.Ka.-10.
29. Before going into the submissions made by both the parties on
facts and law it would be proper to have a glance over the dying
declaration of the deceased recorded by Naib Tehsildar P.W.3 and
proved as Ex.Ka.-3, which contains the certification by Emergency
Medical Officer, Sadar Hospital, Etawah regarding the medical
fitness of the victim both prior to and after recording the dying
declaration. The dying declaration of the victim is reproduced here-
in-below :-
"
बयांन कंचन पुत्री संतोष उम्र लगभग १६ वर्ष निवासी वमनपुरा ने किया की
हम पढ़ने के लिये सुबह संत कबीर पब्लि क स्कूल नगला खादर में पढ़ने के लिये गई
हुई थी जब हम घर लौट कर आई तो माँ व पिता घर पर नहीं थे मैं अपने कपड़े बदलने
लगे तो पड़ोस के माकन जो मेरे पिता का मकान है उसके मकान के दक्षिण को दीवाल
से ज़ालिम का मकान है उसी दीवाल से एक लड़का चढ़ आया और छीना झपटी करने
लगा जब मैंने विरोध किया और चिल्लाई तो पवन पुत्र रामहंस ने आग लगा दिया और
उसी रास्ते जिस रास्ते से आया उसी से भाग गया जब हम चिल्लाई तो पड़ोस से जो
चाची थी वह छत से आई और मोहल्ले वाले आये जिन्होंने आग बुझाई मेरे पिता से
"
किसी की कोई दुश्मनी नहीं है और न ही मैं किसी को फ़साने का बयांन दे रही हूँ
The dying declaration of the victim, originally made in hindi
language is translated / reproduced in english as under :
“ The statement was made by Kanchan, daughter of Santosh,
aged approximately 16 years, resident of Vamanpura, stating that : I
had gone to study at Sant Kabir Public School, Nagla Khadar in the
morning. When I returned home, my mother and father were not at
home. I started changing my clothes. Then, from the south wall of
the neighbor's house (which belongs to my father and is adjacent to
Zalim's house), a boy climbed over and began scuffling with me.
When I resisted and screamed, Pawan, son of Ramhans, set me on

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CRLA No. - 4280 of 2011
fire and fled back the same way he had come. When I screamed, an
aunt from the neighborhood came from the roof, and other people
from the locality arrived and extinguished the fire. My father has no
enmity with anyone, nor am I giving this statement to falsely
implicate anyone.”
30. A dying declaration is admitted in evidence on the principle of
“Nemo moriturns proesumitur mentiri i.e. a man will not meet his
maker with a lie in his mouth. Dying declaration does not require
any corroboration as long as it creates confidence in the mind of the
Court and is free from any form of tutoring. In Lakhan V. State of
MP(2010) 8 SCC 514, the Apex Court in para no.9 of it’s judgment
has observed as under :-
"9. The doctrine of dying declaration is enshrined in the legal maxim
nemo moriturus praesumitur mentire, which means ''a man will not
meet his Maker with a lie in his mouth'. The doctrine of dying
declaration is enshrined in Section 32of the Evidence Act, 1872
(hereinafter called as ''the Evidence Act') as an exception to the general
rule contained in Section of the Evidence Act, which provides that oral
evidence in all cases must be direct i.e. it must be the evidence of a
witness, who says he saw it. The dying declaration is, in fact, the
statement of a person, who cannot be called as witness and, therefore,
cannot be cross-examined. Such statements themselves are relevant
facts in certain cases.”
31. In Khushal Rao v. State of Bombay AIR 1958 SC 22, Kusa v.
State of Orissa (1980) 2 SCC 207 and in Meesala Ramakrishan v.
State of A.P. (1994) 4 SCC 182 (SCC p. 183, para 4) it has been
held that the law is well settled that the conviction can be founded
solely on the basis of dying declaration, if the same inspires full
confidence.
32. In Ranjit Singh v. State of Punjab (2006) 13 SCC 130, it has
been held that: (SCC p. 134, para 13)
“conviction can be recorded on the basis of a dying declaration alone, if
the same is wholly reliable, but in the event there exists any suspicion
as regards the correctness or otherwise of the said dying declaration,
the courts in arriving at the judgment of conviction shall look for some
corroborating evidence.”

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CRLA No. - 4280 of 2011
33. The Apex Court in Nanhau Ram v. State of M.P. 1988 Supp
SCC 152 has held that normally, the court, in order to satisfy itself
whether the deceased was in a fit mental condition to make the
dying declaration, looks up to the medical opinion. But, where the
eyewitness said that the deceased was in a fit and conscious state to
make the dying declaration, the medical opinion cannot prevail.
While dealing with the evidence of the declarant's mind, the
Constitution Bench in Laxman v. State of Maharashtra (2002) 6
SCC 710, has laid down thus: (SCC pp. 713-14, para 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 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 itself 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.”
34. In the State of MP V. Dal Singh (2013) 14 SCC 159, an issue
arose regarding the acceptability of dying declaration where the
victim suffered from 100% burn injuries and had placed her thumb
impression on her statement and the ridges and curves were clearly

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CRLA No. - 4280 of 2011
found on the thumb impression. The Apex Court in para 30 of this
judgement has observed that
“There may also be in a given case, a situation where a part of the body
may bear upon it severe burns, but a small part of the body may have
none. When burns occur on the scalp, they may cause greater
difficulties. They can usually be distinguished from wounds inflicted
before the body was burnt by their appearance, their position in areas
highly susceptible to burning, and on fleshy areas by the findings
recorded after internal examination. Shock suffered due to extensive
burns is the usual cause of death, and delayed death may be a result of
inflammation of the respiratory tract, caused by the inhalation of
smoke. Severe damage to the extent of blistering of the tongue and the
upper respiratory tract can follow due to the inhalation of smoke.”
35. The Apex Court in para 16 of PV Radhakrishnan V. State of
Karnataka (2003) 6 SCC 443 has observed that
“The residuary question whether the percentage of burns suffered is a
determinative factor to affect the credibility of the dying declaration
and the improbability of its recording. There is no hard-and-fast rule of
universal application in this regard. Much would depend upon the
nature of the burn, part of the body affected by the burn, impact of the
burn on the faculties to think and convey the idea or facts coming to
mind and other relevant factors. Percentage of burns alone would not
determine the probability or otherwise of making the dying
declaration.”
36. In Ram Bihari Yadav V. State of Bihar & Ors.
MANU/SC0302/998 in para 9, the Apex Court has held that
“Generally, the dying declaration ought to be recorded in the form of
questions and answers but if a dying declaration is not elaborate but
consists of only a few sentences and is in the actual words of the maker
the mere fact that it is not in question-answer form cannot be a ground
against its acceptability or reliability. The mental condition of the
maker of the declaration, alertness of mind, memory and understanding
of what he is saying, are matters which can be observed by any person.
But to lend assurance to those factors having regard to the importance
of the dying declaration, the certificate of a medically trained person is
insisted upon. In the absence of availability of a doctor to certify the
above-mentioned factors, if there is other evidence to show that the
recorder of the statement has satisfied himself about those requirements
before recording the dying declaration there is no reason as to why the
dying declaration should not be accepted.”
37. The Hon’ble Apex Court in para 22 of Atbir V. Govt. (NCT of
Delhi) (2010) 9 SCC 1 has observed as under :
“(i) Dying declaration can be the sole basis of conviction if it inspires
the full confidence of the court.

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CRLA No. - 4280 of 2011
(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 be 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.
(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.”
38. The Apex Court in Paniben v. State of Gujarat (1992) 2 SCC
474 has laid down some factors, which can be considered to
determine when a dying declaration should be accepted. The
relevant para 18 of this judgment is reproduced herein below :-
“(i) There is neither rule of law nor of prudence that dying declaration
cannot be acted upon without corroboration. (See Munnu Raja v. State
of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764] )
(ii) If the court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration. (See State
of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 : 1985 SCC (Cri) 127 :
AIR 1985 SC 416] and Ramawati Devi v. State of Bihar [(1983) 1 SCC
211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164] .)
(iii) The court has to scrutinize the dying declaration carefully and must
ensure that the declaration is not the result of tutoring, prompting or
imagination. The deceased had an opportunity to observe and identify
the assailants and was in a fit state to make the declaration. (See K.
Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976
SCC (Cri) 473 : AIR 1976 SC 1994] .)
(iv) Where a dying declaration is suspicious, it should not be acted
upon without corroborative evidence. (See Rasheed Beg v. State of
M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )
(v) Where the deceased was unconscious and could never make any
dying declaration the evidence with regard to it is to be rejected. (See
Kake Singh v. State of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645 :
AIR 1982 SC 1021] )

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(vi) A dying declaration which suffers from infirmity cannot form the
basis of conviction. (See Ram Manorath v. State of U.P. [(1981) 2 SCC
654 : 1981 SCC (Cri) 581] )
(vii) Merely because a dying declaration does not [Added by official
Corrigendum No. F.3/Ed. B.J./107/2003 dated 28-10-03] contain the
details as to the occurrence, it is not to be rejected. (See State of
Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 :
1981 SCC (Cri) 364 : AIR 1981 SC 617] .)
(viii) Equally, merely because it is a brief statement, it is not to be
discarded. On the contrary, the shortness of the statement itself
guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC
769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505] .)
(ix) Normally, 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 eyewitness said that the deceased was
in a fit and conscious state to make the dying declaration, the medical
opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp
SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912] )
(x) Where the prosecution version differs from the version as given in
the dying declaration, the said declaration cannot be acted upon. (See
State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989 SCC (Cri) 585
: AIR 1989 SC 1519] .)
(xi) Where there are more than one statements in the nature of dying
declaration, the one first in point of time must be preferred. Of course,
if the plurality of the dying declaration could be held to be trustworthy
and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v.
State of Maharashtra [(1982) 1 SCC 700 : 1982 SCC (Cri) 334 : AIR
1982 SC 839] .”
39. The Hon’ble Apex Court in Irfan alias Naka Vs. State of Uttar
Pradesh, 2023 SCC OnLine 1060 in para 62 has affirmed the
aforesaid factors for determining when a dying declaration should
be accepted. However, the Apex Court has made it clear that these
factors will only affect the weight of the dying declaration and not
its admissibility. In this case, there were two dying declarations,
which were not found consistent and were rather found
contradictory to the oral evidence on record.
40. The Apex Court in PV Radhakrishnan V. State of Karnataka
(2003)6SCC443 in para 12 and in Naeem V. State of UP (2024) 3
SCR 36 in para 6, has observed that a dying declaration carries
great evidentiary weight but lacks the safeguard of cross-
examination, so courts must ensure it inspires full confidence. The
declaration must be free from tutoring, prompting, or imagination,

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and the deceased must have been in a fit mental state with a clear
opportunity to identify the assailant. Once the court is satisfied of
its truth and voluntariness, a conviction can be based solely on it
without corroboration. The rule requiring corroboration is not an
absolute rule of law but merely a rule of prudence. Thus, a credible
and reliable dying declaration alone is sufficient to sustain a
conviction.
41. The Apex Court in Surajdheo Ojha & Ors. V. State of Bihar
1980 (Supp) SCC 769 in para 3 observed that
“Moreover, the deceased has also given a short statement which is a
proof of the manner in which the deceased was assaulted. The shortness
of the statement itself, appears to be the guarantee of its truth. Even the
Doctors who examined the deceased do not say, that having regard to
the injuries, the deceased would have become unconscious
immediately. In this view of the matter we are fully satisfied about the
truth of the dying declaration.”
42. Law thus can be summarized that a credible and reliable
dying declaration alone is sufficient to sustain a conviction. The
rule requiring corroboration is not an absolute rule, but merely a
rule of prudence. A dying declaration, even if brief or short in
nature, holds significant evidentiary value under Indian law and is
well recognized as an exception to the hearsay rule under Section
32(1) of the Indian Evidence Act, 1872. It is well settled that the
value of a dying declaration depends not upon its length but upon
its truthfulness, clarity, and the conscious state of the declarant. The
absence of elaborate detail does not diminish its legal sanctity.
Whenever there is a brief dying declaration it is indictive of the fact
that it is neither the result of tutoring nor prompting. The shortness
of the statement is itself a guarantee of its veracity.
43. Generally, the dying declaration ought to be recorded in the
form of questions-answers but if a dying declaration is not elaborate
but consists of only a few sentences and is in the actual words of the

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maker the mere fact that it is not in questions-answer form cannot
be a ground against its acceptability or reliability.
44. If a person recording the dying declaration finds the victim /
deceased to be in a fit physical and mental condition to make a
statement, absence of fitness certificate in respect of such state of
deceased is not essential in every case. The percentage of burns
marks on the deceased is not a determinative factor in assessing the
credibility of a dying declaration, as mental fitness depends on
various factors such as the nature and impact of injuries, not solely
on the extent of physical harm. The mental condition of the maker
of the declaration, alertness of mind, memory and understanding of
what he is saying, are matters which can be observed by any person.
But to lend assurance to those factors having regard to the
importance of the dying declaration, the certificate of a medically
trained person is insisted upon. In the absence of availability of a
doctor to certify the above mentioned factors, if there is other
evidence to show that the recorder of the statement has satisfied,
himself about those requirements before recording the dying
declaration there is no reason as to why the dying declaration
should not be accepted. Normally the court looks to the medical
opinion about the fit condition of the declarant at the time of
making the statement. But this cannot be an inelastic rule. If the
person who records the statement or the witness to the declaration
tenders satisfactory evidence as to the fit mental condition, the
Dying Declaration will be accepted.
45. In the light of above principles, the acceptability of the
alleged dying declaration in the instant case has to be considered.
The dying declaration is only a piece of untested evidence and
must, like any other evidence, satisfy the court that what is stated
therein is the unalloyed truth and that it is absolutely safe to act
upon it. If after careful scrutiny, the court is satisfied that it is true

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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.
46. The incident happened on 02.04.2008 at about 12:00 noon,
immediately thereafter injured / victim Kanchan was admitted to
District Hospital, Etawah where she was medico legally examined
by Dr. V.S. Agnihotri P.W.4 at 12:15 P.M. and prepared her injury
report Ex.Ka.-4. Thereafter, Naib Tehsildar Panna Lal P.W.3
recorded her dying declaration at 2:30 P.M. Meaning thereby, the
dying declaration of the victim was recorded within 2 hours 30
minutes of the occurrence of the incident. The victim was referred
to Ursala Hospital, Kanpur on the next day of her admission where
she remained admitted for 6 - 7 days and died therein during the
course of treatment. Kanchan in her dying declaration has
specifically stated that she was burnt by Pawan son of Ramhans.
She in her dying declaration has also briefly and precisely stated the
manner of incident that when she returned home after attending her
school and was changing her clothes, one boy entered into their
house and started scuffling with her, to which she resisted and
raised noise, on this Pawan son of Ramhans set her on fire and ran
away. Victim’s dying declaration is a brief statement in which she
has not only named her assailant, but even the manner of incident
has been precisely stated by her. P.W.3 has proved the aforesaid
dying declaration and it has come in his deposition that he obtained
requisite fitness certificates from the Emergency Medical Officer
both prior to and after recording of dying declaration of the victim.
The veracity of her dying declaration further strengthens the fact
that Dr. V.S. Agnihotri found burn injuries on the body of the victim
with smell of kerosene oil on her burn injuries. Therefore, we are of
the opinion that prosecution has been able to prove the dying

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CRLA No. - 4280 of 2011
declaration of Kanchan as Ex.Ka.-10 and the same is brief, precise
and reliable. Accordingly, Question No.1 is answered in the
affirmative.
Question No.2 : Whether the prosecution could be said to have
proved it’s case against the appellant - convict beyond reasonable
doubt ?
47. In the present case, prosecution has successfully proved the
dying declaration of the deceased Ex.Ka.-3. As per the aforesaid
dying declaration, it was accused Pawan Kumar, who has burnt her.
The aforesaid dying declaration has been found by this Court to be
reliable and conviction of the appellant can be sustained only on the
strength of aforesaid dying declaration without there being any
corroboration. However, P.W.2 Vikas, who is the younger brother of
the deceased Kanchan, has also deposed regarding the incident.
Vikas P.W.2 in his deposition has stated that on the date of incident,
he was in his house. He, on hearing shrieks of his sister Kanchan,
went inside and saw accused Pawan Kumar molesting his sister. His
sister was resisting and just then accused Pawan Kumar poured
kerosene oil from a container upon his sister and set her on fire with
the matchstick. Accused Pawan thereafter ran away from the spot.
48. Vikas P.W.2 in his deposition has stated that on the date of
incident, he tried to extinguish the fire of his sister by sprinkling
water and also raised alarm, then their neighbours Urmilla Devi,
Satya Prakash and others came on spot. However, victim in her
dying declaration has clearly stated that on her shrieks, one auntie
from their neighbourhood came from the roof and other people
from the locality also arrived and extinguished her fire. It is
important to observe here that victim has not stated anything about
the presence of her younger brother Vikas on the spot or even at the
time of extinguishing her fire. Victim in her dying declaration has

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CRLA No. - 4280 of 2011
stated that accused was scuffling with her. However, Vikas P.W.2
has deposed that accused was molesting her. We have already found
the dying declaration to be truthful and, therefore, when deposition
of P.W.2 is tested in the light of specific averments made in the
dying declaration of the deceased, a serious doubt arises in our
mind regarding the presence of P.W.2 on the spot at the time of
incident. We have carefully perused and evaluated the deposition of
P.W.2 in the light of dying declaration of the deceased and are of the
opinion that the presence of P.W.2 on the spot at the time of incident
is doubtful, therefore, his depostion cannot be relied upon.
49. Informant Santosh Kumar P.W.1 is the father of the deceased,
who in his deposition as P.W.1, has categorically stated that when
he arrived on spot, he found his daughter Kanchan lying completely
burnt. Therefore, the aforesaid evidence of P.W.1 also partially
corroborates the prosecution version.
50. Ocular as well as documentary medical evidence prove it on
record that the deceased Kanchan sustained burn injuries and she
died due to septicemia as a result of antemortem burn injuries.
Therefore, ocular as well as documentary evidence corroborate this
part of the prosecution story that the deceased suffered burn injuries
on the date and time of the alleged incident and she finally
succumbed to her injuries due to septicemia, as a result of
antemortem burn injuries.
51. Site plan Ex.Ka.-7 also proves that towards southern side of
the house of informant, house of Zalim Singh is there, from where
appellant - convict Pawan Kumar climbed over and thereafter ran
away from the same route after committing the crime, which further
corroborate the contents of dying declaration of deceased.
52. In the totality of the circumstances, the prosecution has been
able to successfully prove the dying declaration of the deceased,
which is a reliable piece of evidence, which in the present case is in

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CRLA No. - 4280 of 2011
itself sufficient to convict the appellant. However, in the instant
case, the aforesaid dying declaration also finds partial corroboration
from the deposition of P.W.1. The ocular as well as documentary
medical evidence strengthen the prosecution version that the
deceased sustained burn injuries on her body at the time of incident
and ultimately she died due to septicemia, which was a result of
burn injuries. It is also clear from the dying declaration (Ex. Ka.3)
of the deceased that no allegation whatsoever regarding molestation
has been made by the victim and this Court has found the presence
of P.W.2 on the spot at the time of incident as doubtful, therefore,
the prosecution has not been able to prove the charge of molestation
framed against the appellant - convict. Prosecution has been able to
prove the charge of house-trespass passed against the appellant -
convict and the aforesaid house-trespass by the appellant - convict
has been committed for assaulting the deceased and she was even
set on fire. Therefore, the prosecution has been able to prove the
charge under Section 452 I.P.C. against the appellant - convict.
Therefore, we are of the opinion that in the present case,
prosecution has been able to prove its case against the appellant -
convict beyond reasonable doubt so far as charges of culpable
homicide and criminal trespass are concerned, however, the
prosecution has not been able to prove the charges under Section
354 I.P.C. Question No.2 is, therefore, accordingly decided.
Question No. 3 : Whether the present case is a case of culpable
homicide not amount to murder and, therefore, conviction /
sentence of the appellant - convict is liable to be converted /
reduced under section 304 I.P.C. ?
53. The Supreme Court while analyzing difference between
culpable homicide amounting to murder and culpable homicide not

25
CRLA No. - 4280 of 2011
amounting to murder in Anbazhagan V. State Represented by the
Inspector of Police (2024) 20 SCC 500 in paras 39-44 has held that-
“39” This Court in Phulia Tudu (2007) 14 SCC 588 has observed that
the academic distinction between ‘murder’ and ‘culpable homicide not
amounting to murder’ has always vexed the courts. The confusion is
caused if courts losing sight of the true scope and meaning of the terms
used by the legislature in these sections, allow themselves to be drawn
into minute abstractions. The safest way of approach to the
interpretation and application of these provisions seems to be to keep in
focus the keywords used in the various clauses of Sections 299 and 300
of the IPC. The following comparative table will be helpful in
appreciating the points of distinction between the two offences:-
Section 299 Section 300
A person commits culpable homicide if
the act by which the death is caused is
done-
Subject to certain exceptions culpable
homicide is murder if the act by which death
is caused is done-
Intention
(1)with the intention of causing death; or
(a)with the intention of causing death;
or
(b)with the intention of causing injury
as is likely to cause death; or
(2)with the intention of causing such bodily
injury as the offender knows to be likely to
cause the death of the person to whom the
harm is caused; or
(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; or
Knowledge
(c) with the knowledge that the act is
likely 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, and commits such
act without any excuse for incurring the risk
of causing death or such injury as is
mentioned above
“40”Clause (b) of Section 299 of the IPC corresponds with clauses (2)
and (3) of Section 300 of the IPC. The distinguishing feature of the
mens rea requisite under clause (2) is the knowledge possessed by the
of ender regarding the particular victim being in such a peculiar
condition or state of health that the internal 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 clause (2). Only the intention
of causing the bodily injury coupled with the of ender's knowledge of
the likelihood of such injury causing the death of the particular victim,

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is sufficient to bring the killing within the ambit of this clause. This
clause (2) is borne out by illustration (b) appended to Section 300 of
the IPC.
“41” Clause (b) of Section 299 of the IPC does not postulate any such
knowledge on the part of the offender. Instances of cases falling under
clause (2) of Section 300 of the IPC 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 heart, as
the case may be. If the assailant had no such knowledge about the
disease or special frailty of the victim, nor an intention 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. In clause (3) of Section 300 of the
IPC, instead of the words “likely to cause death” occurring in the
corresponding clause (b) of Section 299 of the IPC, 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 overlooked, may
result in miscarriage of justice. The difference between clause (b) of
Section 299 of the IPC and clause (3) of Section 300 of the IPC 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 clause (b) of Section
299 of the IPC conveys the sense of probable as distinguished from a
mere possibility. 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.
“42” For cases to fall within clause (3), it is not necessary that the
offender intended to cause death, so long as the death ensues from the
intentional bodily injury or injuries sufficient to cause death in the
ordinary course of nature. The decision in the case of Rajwant Singh v.
State of Kerala, AIR 1966 SC 1874, is an apt illustration of this point.
“43” The scope of clause thirdly of Section 300 of the IPC has been the
subject matter of various decisions of this Court. The decision in Virsa
Singh (supra) has throughout been followed in a number of cases by
this Court. In all these cases the approach has been to find out whether
the ingredient namely the intention to cause the particular injury was
present or not? If such an intention to cause that particular injury is
made out and if the injury is found to be sufficient in the ordinary
course of nature to cause death, then clause thirdly of Section 300 of
the IPC is attracted.
“44”Analysing clause thirdly and as to what the prosecution must
prove, it was held in Virsa Singh (supra) as under:-

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CRLA No. - 4280 of 2011
“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
suficient 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 of ender.”
It was further observed as under:-
“20. … 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.” (Emphasis supplied)
The Apex court also observed in para 66 that
“66”Few important principles of law discernible from the aforesaid
discussion may be summed up thus:-
“66.1”When the court is confronted with the question, what offence the
accused could be said to have committed, the true test is to find out the
intention or knowledge of the accused in doing the act. If the intention
or knowledge was such as is described in Clauses (1) to (4) of Section
300 of the IPC, the act will be murder even though only a single injury
was caused. To illustrate : 'A' is bound hand and foot 'B' comes and
placing his revolver against the head of 'A', shoots 'A' in his head
killing him instantaneously. Here, there will be no difficulty in holding
that the intention of 'B' in shooting 'A' was to kill him, though only
single injury was caused. The case would, therefore, be of murder
falling within Clause (1) of Section 300 of the IPC. Taking another
instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is
asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges
a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter.
The injury to 'A' was found to be sufficient in ordinary course of nature
to cause death. There may be no difficulty in holding that 'B'
intentionally inflicted the particular injury found to be caused and that
the said injury was objectively sufficient in the ordinary course of
nature to cause death. This would bring the act of 'B' within Clause (3)
of Section 300 of the IPC and render him guilty of the offence of murder
although only single injury was caused.

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“66.2” Even when the intention or knowledge of the accused may fall
within Clauses (1) to (4) of Section 300 of the IPC, the act of the
accused which would otherwise be murder, will be taken out of the
purview of murder, if the accused's case attracts any one of the five
exceptions enumerated in that section. In the event of the case falling
within any of those exceptions, the offence would be culpable homicide
not amounting to murder, falling within Part 1 of Section 304 of the
IPC, if the case of the accused is such as to fall within Clauses (1) to
(3) of Section 300 of the IPC. It would be offence under Part II of
Section 304 if the case is such as to fall within Clause (4) of Section
300 of the IPC . Again, the intention or knowledge of the accused may
be such that only 2nd or 3rd part of Section 299 of the IPC, may be
attracted but not any of the clauses of Section 300 of the IPC. In that
situation also, the offence would be culpable homicide not amounting
to murder under Section 304 of the IPC. It would be an offence under
Part I of that section, if the case fall within 2nd part of Section 299,
while it would be an offence under Part II of Section 304 if the case
fall within 3rd part of Section 299 of the IPC .
“66.3” To put it in other words, if the act of an accused person falls
within the first two clauses of cases of culpable homicide as described
in Section 299 of the IPC it is punishable under the first part of Section
304. If, however, it falls within the third clause, it is punishable under
the second part of Section 304. In effect, therefore, the first part of this
section would apply when there is ‘guilty intention,’ whereas the second
part would apply when there is no such intention, but there is ‘guilty
knowledge’.
“66.4”Even if single injury is inflicted, if that particular injury was
intended, and objectively that injury was sufficient in the ordinary
course of nature to cause death, the requirements of Clause 3rdly to
Section 300 of the IPC, are fulfilled and the offence would be murder.
“66.5” Section 304 of the IPC will apply to the following classes of
cases:
(i) when the case falls under one or the other of the clauses of
Section 300, but it is covered by one of the exceptions to that
Section,
(ii) when the injury caused is not of the higher degree of
likelihood which is covered by the expression 'sufficient in the
ordinary course of nature to cause death' but is of a lower
degree of likelihood which is generally spoken of as an injury
'likely to cause death' and the case does not fall under Clause (2)
of Section 300 of the IPC,
(iii) when the act is done with the knowledge that death is likely
to ensue but without intention to cause death or an injury likely
to cause death.
“66.6” To put it more succinctly, the difference between the two parts of
Section 304 of the IPC is that under the first part, the crime of murder
is first established and the accused is then given the benefit of one of

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the exceptions to Section 300 of the IPC, while under the second part,
the crime of murder is never established at all. Therefore, for the
purpose of holding an accused guilty of the offence punishable under
the second part of Section 304 of the IPC, the accused need not bring
his case within one of the exceptions to Section 300 of the IPC.
“66.7” The word 'likely' means probably and it is distinguished from
more 'possibly'. When chances of happening are even or greater than
its not happening, we may say that the thing will 'probably happen'. In
reaching the conclusion, the court has to place itself in the situation of
the accused and then judge whether the accused had the knowledge
that by the act he was likely to cause death.
“66.8” The distinction between culpable homicide (Section 299 of the
IPC) and murder (Section 300 of the IPC) has always to be carefully
borne in mind while dealing with a charge under Section 302 of the
IPC. Under the category of unlawful homicides, both, the cases of
culpable homicide amounting to murder and those not amounting to
murder would fall. Culpable homicide is not murder when the case is
brought within the five exceptions to Section 300 of the IPC. But, even
though none of the said five exceptions are 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
of Section 300 of the IPC to sustain the charge of murder. If the
prosecution fails to discharge this onus in establishing any one of the
four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the
charge of murder would not be made out and the case may be one of
culpable homicide not amounting to murder as described under Section
299 of the IPC
“66.9” The court must address itself to the question of mens rea. If
Clause thirdly of Section 300 is to be applied, the assailant must intend
the particular injury inflicted on the deceased. This ingredient could
rarely be proved by direct evidence. Inevitably, it is a matter of
inference to be drawn from the proved circumstances of the case. The
court must necessarily have regard to the nature of the weapon used,
part of the body injured, extent of the injury, degree of force used in
causing the injury, the manner of attack, the circumstances preceding
and attendant on the attack.
“66.10” Intention to kill is not the only intention that makes a culpable
homicide a murder. The intention to cause injury or injuries sufficient
in the ordinary cause of nature to cause death also makes a culpable
homicide a murder if death has actually been caused and intention to
cause such injury or injuries is to be inferred from the act or acts
resulting in the injury or injuries.
“66.11” When single injury inflicted by the accused results in the death
of the victim, no inference, as a general principle, can be drawn that
the accused did not have the intention to cause the death or that
particular injury which resulted in the death of the victim. Whether an
accused had the required guilty intention or not, is a question of fact
which has to be determined on the facts of each case.

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“66.12” Where the prosecution proves that the accused had the
intention to cause death of any person or to cause bodily injury to him
and the intended injury is sufficient in the ordinary course of nature to
cause death, then, even if he inflicts a single injury which results in the
death of the victim, the of ence squarely falls under Clause thirdly of
Section 300 of the IPC unless one of the exceptions applies.
“66.13” In determining the question, whether an accused had guilty
intention or guilty knowledge in a case where only a single injury is
inflicted by him and that injury is sufficient in the ordinary course of
nature to cause death, the fact that the act is done without
premeditation in a sudden fight or quarrel, or that the circumstances
justify that the injury was accidental or unintentional, or that he only
intended a simple injury, would lead to the inference of guilty
knowledge, and the offence would be one under Section 304 Part II of
the IPC.
54. In the present case, in the statement recorded under section
313 Cr.P.C. in the year 2011, the accused has stated his age to be
about 21 years. Therefore, at the time of commission of offence i.e.
02.04.2008, the appellant was about 18 years of age and the
deceased was a school going girl of about 16 years at the time of
incident. The prosecution has successfully proved that the deceased
was set on fire by the appellant - convict. The victim Kanchan
sustained extensive burn injuries and she died after 7 days of the
incident due to septicemia, as a result of ante mortem burn injuries.
Therefore, it is clear that burn injuries were caused to the deceased
by appellant with the knowledge that his act is likely to cause death.
Any reasonable person by any stretch of imagination can easily
come to a conclusion that burning someone alive is likely to cause
death.
55. In the present case, P.W.4 although found smell of kerosene
oil on burn injuries, but no container of kerosene either empty or
partially filled was found on spot. Moreover, no traces of kerosene
oil were found on spot by the Investigating Officer.
56. It is an admitted fact that the deceased died after 7 days of
burning and her postmortem report (Ex. Ka.-17) clearly goes to

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show that she died due to septicemia as a result of antemortem burn
injuries. Autopsy Surgeon Dr. V.P. Chauturvedi P.W.9 in his
deposition has affirmed the aforesaid finding recorded by him in
postmortem report (Ex.Ka.-3) of the deceased. It is crystal clear that
death of deceased was a homicidal death. Now the question remains
that whether homicidal death of the deceased would fall within the
four corners of murder or culpable homicide not amounting to
murder. In the present case, there is no such evidence that appellant
- convict was previously known to the deceased or her family
members. Therefore, it is not a case of any previous enmity or
earlier harassment. The deceased in her dying declaration has not
stated any allegation of her molestation at the hands of appellant -
convict. The victim has clearly stated that the appellant - convict
was scuffling with her. The victim has stated that when she resisted
and screamed, then appellant - convict set her on fire. The victim
has not stated that how she was set on fire i.e. whether any kerosene
oil or any other inflammable material was poured upon her or not.
57. We have carefully gone through the entire dying declaration
of the deceased, which is the principle foundation for conviction of
the appellant - convict. However, we are of the opinion that that the
incident had happened in a spur of moment, that too during scuffle
with no prior bad intention or planning. In this background, when
evidence is again scrutinized, the victim was immediately shifted to
hospital for treatment and she ultimately died due to septicemia as a
result of burn injuries. As the death caused by the appellant -
convict was not a premeditated and there being no previous enmity
or instances of earlier harassment, therefore the present case falls
under clause (c) of Section 299 I.P.C. We have carefully gone
through the entire evidence and thus are of opinion that in the
present case none of clause of Section 300 I.P.C. is attracted in the
peculiar facts of the present case, therefore the offence committed

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by the appellant - convict falls under Part - II of Section 304 I.P.C.
Resultantly, we are of the view that present appeal is liable to be
partly allowed and the conviction of the appellant under Section
302 I.P.C. is liable to be converted into conviction under Section
304 Part-II I.P.C. However, fine amount imposed by learned trial
Court is liable to be maintained. The appellant - convict is in jail for
the last more than 18 years.
58. We have already arrived on the conclusion that prosecution
has not been able to prove the charge under Section 354 I.P.C.
against the appellant - convict. Therefore, the appellant - convict is
liable to be acquitted so far as offence under Section 354 I.P.C. is
concerned.
59. Accordingly, present Appeal is partly allowed and the
appellant is convicted for the offence under Section 304 Part-II
I.P.C. and is sentenced to undergo maximum imprisonment
provided therein i.e. 10 years imprisonment without remission and
is acquitted for the offence under Section 354 I.P.C. However, fine
and default sentence imposed upon the appellant - convict by
learned trial Court under Section 302 I.P.C. is maintained under
Section 304 Part-II I.P.C. with default sentence. Therefore, a fine of
Rs.10,000/- is imposed upon appellant under Section 304 Part-II
I.P.C. and in case of his failure to deposit the same, he shall undergo
an additional imprisonment of one year. However, we affirm the
conviction and sentence imposed upon the appellant by learned trial
Court under Section 452 I.P.C. along with the fine and sentence
imposed under default clause. The appellant / convict is in jail for
the last more than 18 years and as such has completed his sentence
alongwith the default sentence for Section 304 Part-II and Section
452 I.P.C., therefore, he shall be set at liberty forthwith, if he is not
wanted in any other case.

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60. Let a copy of the judgment be provided immediately to the
appellant through Superintendent Jail, free of cost.
61. The record of the ‘Trial Court’ be sent back immediately with
a copy of this judgment for necessary information and compliance.
62. Lastly, the Court records its word of appreciation for the able
assistance rendered by Sri Abhishek Sharma, Amicus Curiae for the
appellant, who assisted the Court in reaching to its logical
conclusion. Sri Abhishek Sharma, learned Amicus Curiae for the
appellant shall be paid Rs.15,000/- by the High Court Legal
Services Committee as fee, if not already paid in this case and if
any amount has already been paid to him, the same shall be
adjusted.
May 26, 2026
ss
(Dr. Ajay Kumar-II,J.) (Salil Kumar Rai,J.)

Digitally signed by :-
SANDEEP SHARMA
High Court of Judicature at Allahabad