Partly allowed

Shabbir v. State of U.P.

Allahabad HC12 Nov 2021CRLA/4606/2012

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal partly. The trial court had convicted the appellant under Section 302 IPC for murder after burning. The High Court held that since the deceased died of septicemia 30 days later, the conviction was downgraded to culpable homicide not amounting to murder under Section 304 Part-I IPC, with a reduced sentence.

What did the court decide?

Conversion of conviction from Section 302 IPC to Section 304 Part-I IPC; sentence reduced to ten years' rigorous imprisonment and fine of Rs. 10,000/-.

Shabbir Vs State of U.P. — Dowry and Cruelty | Allahabad HC (2021)

¶1

Court No. - 50

¶2

Case :- CRIMINAL APPEAL No. - 4606 of 2012

¶3

Appellant :- Shabbir Respondent :- State of U.P. Counsel for Appellant :- K.K. Dwivedi,Diwan Saifullah Khan,Imran Ullah,M.P. Pandey,R.L. Verma,S.K. Tiwari Counsel for Respondent :- Govt. Advocate,Birendra Kumar Mishra

¶4

Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Ajai Tyagi,J.

¶5

(Per: Hon'ble Dr. Kaushal Jayendra Thaker,J.)

¶6

This appeal has been preferred against the judgement and order dated 21.09.2012 passed by Additional Sessions Judge, Court No.1in Session Trial No.684 of 2010 (State of U.P. Vs. Shabbir), arising out of Case Crime No.189 of 2010), under Section 302 and 323 IPC, Police StationHariparwat, District- Agra, whereby the appellant was convicted and sentenced under Section 302 IPC for life imprisonment and fine of Rs.50,000/-. He was directed to undergo one year simple imprisonment in case of default of fine. Appellant was acquitted for the offence under Section 323 IPC.

¶7

Brief facts of the case are that first information report of this case was lodged by Salim Khan, father of the deceased, at police station- Hariparwart, District- Agra on

¶8

01.03.2010 stating that the marriage of her daughter Shahin was solemnized with Shabbir on 05.03.1999, in which he has spent 1.50 lac. Just after marriage, in-laws of his daughter including husband and his brothers and sisters along with parents started demanding of Rs.50,000/- as additional dowry and due to non-fulfilment of that demand they started torturing her. On that account, a compromise took place between the parties on 17.06.2005 in Case Crime No.327 of 2005, under Section 498A and 323 IPC.

¶9

After about said compromise, aforesaid persons started demanding Rs.1 lac and one motorcycle as additional dowry. They used to harass and torture her due to non-fulfilment of the above demand. On 28.02.2010 at about 7:00-8:00 pm one unknown person informed him that his daughter had been set ablazed by her in-laws. On this information, he reached to the concerned hospital, where his daughter Shahin told him that her in-laws have set her ablazed for non-fulfilment of demand of additional dowry.

¶10

On the above written report a Case Crime No.189 of 2010 was registered under Section 498A, 323, 307 IPC and ¾ Dowry Prohibition Act. Investigation was taken up by S.I. Pramendra Kumar, who recorded the statements of witnesses, prepared site-plan and the victim/deceased was medically examined. Deceased’s dying-declaration was recorded by the Additional City Magistrate II, Agra, in which she placed her husband accused Shabbir for the occurrence. After one month of the occurrence, during the course of treatment, the victim-Shahin was succumbed to the injuries. Post mortem

¶11

¶12

on her body was conducted and post mortem report was prepared, in which cause of death was told as septicemia shock due to burn injuries. After the death of the deceased, the case was converted under Section 302 IPC along with Section 323 IPC. After completing the investigation, the investigating officer submitted the charge sheet only against accused-Shabbir in the concerned Magisterial Court. The case being exclusively triable by the session of court was committed to the court of session for trial.

¶13

Learned trial court framed charges against accused Shabbir under Section 302 and 323 IPC, which was read over to the accused. Accused denied the charges and claimed to be tried.

¶14

Prosecution examined the following witnesses, namely:-

¶15

1.	Salim Kha	PW1
2.	S.I. Pramendra Kumar	PW2
3.	H.C.P. Vare Lal	PW3
4.	Aslam Kha	PW4
5.	Dr. S.N. Gupta	PW5
6.	Savari	PW6
7.	D.P. Singh	PW7
8.	Dr. Pramod Sikarwar	PW8
9.	Inspector Devendra Singh	PW9
10.	Dr. A.K. Upadhyay	PW10

¶16

¶17

Apart from the aforesaid witnesses, prosecution filed following documentary evidence which was proved by leading the evidence:

¶18

1.	Written report	Ext. Ka-1
2.	FIR	Ext. Ka-2
3.	Inquest report	Ext. Ka-4
4.	Medical report	Ext. Ka-5
5.	Dying-declaration	Ext. Ka-6
6.	Charge sheet	Ext. Ka-7
7.	Post mortem report	Ext. Ka-8

¶19

After completion of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C., in which he said that he was falsely implicated. Accused examined two witnesses in his defence. After considering the facts and evidence on record, the learned trial Judge acquitted the accused for the charges under Section 323 IPC and convicted and sentenced him for the charge under Section 302 IPC. Hence this appeal.

¶20

Heard learned counsel for the appellant, learned AGA for the State and perused the record.

¶21

Learned counsel for the appellant submitted that prosecution has produced one witness of fact only in this case, who is father of the deceased, PW1- Salim Khan. He is not eye-witness of the case. He has deposed before the trial court on the basis of heresay. He has stated that both the parties have reached to compromise earlier regarding the demand of additional dowry but after sometime the scooter

¶22

¶23

of accused was stolen and then he started demanding one motorcycle and Rs.1 lac in cash. He has further deposed that on 28.02.2010 some unknown person informed him on phone that his daughter has been set ablazed. When he reached to the house of her in-laws, it was locked and neighbours told that she has been taken to the hospital.

¶24

9 . Although, PW1 has deposed regarding occurrence on the basis of heresay but dying declaration of deceased was recorded before her death by Additional City Magistrate after obtaining fitness certificate from the doctor. Dr. Pramod Sikarwar has given certificate before and after dying declaration that the injured was in fit mental state to give statement and she remained in fit mental state during the course of statement also. This Dr. Pramod Sikarwar is examined before the trial court as PW8. In his statement, he has proved the certificates, appended by him on dying declaration. Dying-declaration was recorded by Additional City Magistrate, who is examined before the trial court as PW7. In his statement, he has proved that he had recorded the dying declaration. In this way dying declaration of deceased is legally proved in which she has stated that she was set ablazed by her husband but it is pertinent to mention that occurrence of this case took place on 28.02.2010 and she died on 01.04.2010. It means deceased survived for one month after the occurrence and post mortem Ext. Ka-8 clearly shows that the cause of death was septicemia shock as a result of burn injury. Hence, we are of the opinion that the direct result of death of the deceased is development of infection in burn injuries that caused septicemia.

¶25

¶26

In Bengai Mandal alias Begai Mandal vs. State of Bihar [(2010) 2 SCC 91], incident occurred on 14.7.1996, while the deceased died on 10.8.1996 due to septicemia caused by burn injuries. The accused was convicted and sentenced for life imprsonment under Section 302 IPC, which was confirmed in appeal by the High Court, but Hon'ble The Apex Court converted the case under Section 304 Part-II IPC on the ground that the death ensued after twenty-six days of the incident as a result of septicemia and not as a consequence of burn injuries and, accordingly, sentenced for seven years' rigorous imprisonment.

¶27

In Maniben vs. State of Gujarat [(2009) 8 SCC 796], the incident took place on 29.11.1984. The deceased died on 7.12.1984. Cause of death was the burn injuries. The deceased was admitted in the hospital with about 60 per cent burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. Trial-court convicted the accused under Section 304 Part-II IPC and sentenced for five years' imprisonment, but in appeal, High Court convicted the appellant under Section 302 IPC. Hon'ble The Apex Court has held that during the aforesaid period of eight days, the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. Accordingly, judgment and order convicting the accused under Section 304 Part-II IPC by the trial-court was maintained and the judgment of the High Court was set aside.

¶28

¶29

In Chirra Shivraj vs. State of Andhra Pradesh [(2010) 14 SCC 444], incident took place on 21.4.1999. Deceased died on 1.8.1999. As per the prosecution version, kerosene oil was poured upon the deceased, who succumbed to the injuries. Cause of death was septicemia. Accused was convicted under Section 304 Part-II IPC and sentenced for five years' simple imprisonment, which was confirmed by the High Court. Hon'ble The Apex Court dismissed the appeal holding that the deceased suffered from septicemia, which was caused due to burn-injuries and as a result thereof, she expired on 1.8.1999.

¶30

We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as under:

¶31

"12. In fact, in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280, the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.

¶32

However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. The same is also duly corroborated with the evidence of witnesses and the medical reports as well

¶33

¶34

as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellants in pouring kerosene and setting him ablaze. We do find that the dying declaration is trust worthy.

¶35

However, we have also not lost sight of the fact that the deceased had died after a month of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns.

¶36

In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly.

¶37

15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as under:

¶38

"18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries.

¶39

It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.

¶40

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

¶41

¶42

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."

¶43

In the present case, we have come to the irresistible conclusion that the role of the appellants is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 30 days in the hospital and that his condition worsened after around 5 days and ultimately died of septicemia. In fact he had sustained about 35% burns. In that view of the matter, we are of the opinion that the conviction of the appellants under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code and in view of the same appeal is partly allowed.

¶44

On the overall scrutiny of the facts and circumstances of the case coupled with medical evidence and the opinion of the Medical Officer and considering the principle laid down by the Courts in above referred case laws, we are of the considered opinion that in the case at hand, the offence would be punishable under Section 304 (Part-I) IPC.

¶45

From the upshot of the aforesaid discussions it appears that the death caused by the accused was not pre-meditated. Accused had no intention to cause the death of the deceased. The injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention to do away with deceased. Hence the instant case falls under the exceptions (1) and (4) to Section 300 of IPC. While considering Section 299 IPC, offence committed will fall under Section 304 (Part-I) IPC.

¶46

¶47

In view of the aforesaid discussion, we are of the view that appeal has to be partly allowed. The conviction of the appellant under Section 302 IPC is converted into conviction under Section 304 (Part-I) IPC and the appellant is sentenced to undergo ten years of incarceration with fine of Rs. 10,000/- and in case of default of payment of fine, the appellant shall further undergo simple imprisonment for 1 year.

¶48

Accordingly, the appeal is partly allowed.

¶49

(Ajai Taygi, J.) (Dr. Kaushal Jayendra Thaker, J.)

¶50

Order Date :- 12.11.2021 Ashutosh Pandey

¶51

Shabbir v. State of U.P.

Case brief

What is this about?

What did the court decide?

Shabbir v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Latoori Vs State of U.P.

Kumari Beena Misra Vs State of U.P. and Another

S.K. Gupta and Another Vs Navin Chandra Pandey

Mohsin and Another Vs State of U.P.

Nadeem Vs State of U.P.

Suresh Vs State of U.P.