The Allahabad High Court has reduced the sentence of a man and his second wife, who were convicted for killing his first wife, from life imprisonment to seven years of incarceration.
The Division Bench of Justice Kaushal Jayendra Thaker and Justice Nalin Kumar Srivastava passed this order while hearing a Criminal Appeal filed by Sultan alias Munna and Another.
It observed that the death caused by the accused persons was not premeditated but they intentionally caused such bodily injuries which were likely to cause death. Hence the case falls under the exceptions (1) and (4) to Section 300 of IPC. While considering Section 299 IPC, offences committed will fall under Section 304 (Part-I) IPC.
The appeal has been preferred against the order dated 28.2.2019, passed by the Additional Sessions Judge, Farrukhabad, in Session Trail arising out of Case under Section 302/34 and 498A of Indian Penal Code, Police Station-Shamshabad, District Farrukhabad, whereby the accused appellants are convicted and sentenced for the offence under Section 302/34 IPC for life imprisonment with a fine of Rs 20,000/- each and in default of payment of fine, further rigorous imprisonment for one year; accused- appellants were further convicted under Section 498A of IPC and sentenced to undergo imprisonment for two years each with fine of Rs 5000 each and in case of default of payment of fine, to undergo further rigorous imprisonment for one month each.
The facts of the case are that the first information report of the case was lodged by complainant Aslam (father) with the averment that the marriage of his daughter was solemnized with accused Munna alias Sultan, son of Nabeedraj, about eight years ago.
Earlier also before the said incident, the appellant had tried to push the victim from the terrace, leading to injuries to the complainant’s daughter, around four years ago.
Sultan contracted the marriage with one Yashmeen and because of that, there was constant quarrel and Sultan and his second wife Yasmeen hatched a common intention to do away with his daughter and that is how, she was set ablaze . Sabeen received several burn injuries. The accused got Sabeen admitted in hospital and absconded. Sabeena had suffered about 70% burn injuries and she was in the hospital.
A first information report was registered on the basis of the above written report. During the course of investigation, IO recorded statements of witnesses, prepared a site-plan. The Dying Declaration of the deceased was recorded by the Magistrate. After the death of the deceased, an inquest report was prepared and a post mortem was conducted. After a thorough investigation, a charge sheet was submitted against the accused Sultan, husband of the deceased and Yasmeen, second wife of Sultan. The trial court framed charges against both the accused under Sections 498A, 302/34 of IPC.
Accused appellants denied the charges and claimed to be tried.
Counsel for the appellants submitted that the accused have been falsely implicated in the case. The deceased caught fire while cooking and they have not caused her death. No dowry was ever asked for.
It is further submitted that the accused has not set the deceased on fire. She caught fire while she was trying to go inside the room. It was the accused, who tried to save her.
The counsel further submitted that the Court has not even relied on the PW-1, PW-4 did not support the prosecution case. PW-1 is not the eye witness and PW-4 has not supported the prosecution case.
Counsel for the appellant has relied on the decision of the High Court in Criminal Appeal (Pramod Kumar vs State of UP) on passed on February 28, 2019 and has contended that the accused are innocent and in the alternative, has submitted that if the Court comes to the conclusion that the death was because of the act of the accused, then the offence would be falling within the provision of Section 304 of IPC and not Section 302 of IPC
Counsel for the appellants said that dying-declaration of the deceased was recorded when she was surviving, but this dying-declaration has no corroboration with any prosecution evidence. Most of the witnesses have turned hostile and the version of FIR is not supported by the oral testimony. Therefore, the trial court committed grave error by convicting the accused on the basis of dying declaration.
Counsel for the appellants additionally submitted that if, for the sake of argument, it is assumed that appellants have committed the offence, in that case also no offence under Section 302 IPC is made out. Maximum this case can travel up to the limits of offence under Section 304 IPC because the deceased died after 4 months of the incident due to developing the infection in her burn-wounds, i.e, septicemia. As per the catena of judgments of the Apex Court and the Court, offence cannot travel beyond Section 304 IPC, in case where the death occurred due to septicemia.
Per contra, the AGA vehemently opposed the arguments placed by counsel for the appellants and submitted that conviction of accused can be based only on the basis of dying-declaration, if it was wholly reliable. It required no corroboration.
Moreover, testimony of hostile witnesses could also be relied on to the extent it supported the prosecution’s case. The trial court has rightly convicted the appellants under Section 302 IPC and sentenced accordingly. There was no force in the appeal and the same may be dismissed.
The Court noted that the submission by the counsel for the appellants that deceased died due to septicaemia, hence the case falls within the ambit of Section 304 IPC and not under Section 302 IPC. In this regard, counsel has submitted that the deceased died after four months of incident due to septicemia. There was no intention of the appellants to cause the death of the deceased.
The Court held that the finding of fact regarding the presence of witnesses at the place of occurrence cannot be faulted with. Death of the deceased was a homicidal death. The fact that it was a homicidal death takes this Court to most vexed question whether it would fall within the four corners of murder or culpable homicide not amounting to murder. Therefore, it was considering the question whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC. The accused-appellants have been in jail since February 3, 2017.
“On overall scrutiny of the facts and circumstances of the case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the case of Tukaram and Ors vs State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of BN Kavatakar and Another vs State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that it was a case of homicidal death not amounting to murder. We are also of the considered opinion that in the case at hand, the offence would be punishable under Section 304 (Part-I) IPC.
From the upshot of the aforesaid discussions it appears that the death caused by the accused persons was not premeditated but they intentionally caused such bodily injuries which were likely to cause death. Hence the case falls under the exceptions (1) and (4) to Section 300 of IPC. While considering Section 299 IPC, offences committed will fall under Section 304 (Part-I) IPC. In view of the aforesaid discussion, we are of the view that appeal has to be partly allowed”, the Court observed while allowing the appeal.
“The conviction of the appellants under Section 302 IPC is converted into conviction under Section 304 (Part-I) IPC and the appellants are sentenced to undergo seven years of incarceration. The fine and default sentence are maintained”, the Court ordered.