Nishar vs State Of U.P.
2011 Latest Caselaw 1463 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 43
 
RESERVED
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 1571 of 2005
 

 
Petitioner :- Nishar
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Sanjeev Trivedi,R.B. Singh
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Naheed Ara Moonis,J.

The instant appeal has been filed by the appellant Nisar against his conviction vide order dated 25.2.2005 passed by the Additional Sessions Judge, Court No. 5, Kanpur Dehat in S.T. No. 263 of 2003 whereby the appellant has been convicted under Section 498-A I.P.C. for one year and six months imprisonment and a fine of Rs. 5,000/- and in default of payment of fine four months further imprisonment, under Section 304-B I.P.C. for ten years rigorous imprisonment and under Section 3/4 of D.P. Act for one year imprisonment and a fine of Rs. 10,000/- and in default of payment of fine four months further imprisonment has been awarded.

The prosecution case in nutshell is that a first information report was lodged by Ahmad Ali (P.W.4) on 13.4.2002 at 12.30 P.M. who was the uncle of the deceased in respect of the occurrence of the same day by stating that the appellant was married to his niece one year ten months before from the date of incident and at the time of marriage sufficient dowry was given by her brother but soon after the marriage her in-laws started nagging and torturing her for demanding more dowry. They were not satisfied even when the complainant brother has told them about their inability to fulfil their demand. On account of non-fulfilment of demand of dowry his niece was set on fire by her in-laws, Shafiq son of Sultan and Shafi alias Lale Khan. The complainant when received this information he reached there it was disclosed by his niece about the incident and thereafter he went to lodge the first information report. The case was registered as case Crime No. 173 of 2002, under Section 498-A I.P.C. and Section 3/4 Dowry Prohibition Act. After registration of the first information report the investigation was handed over to Anupam Sharma, S.I. (P.W.7). After the death of victim Rijwana in hospital on 15.4.2002 at 11.10 A.M. offence under Section 304-B I.P.C. was added and the same was entered in the general diary on 17.4.2002. During investigation from the spot a plastic can of kerosene oil and lighted match sticks were recovered Ex. Ka.5. The statement of the witnesses were recorded and site plan was also prepared and after conducting thorough investigation the charge sheet was submitted against accused/appellant Nisar, Safique and Shafi alias Lale Khan. Thereafter the case was committed to the court of sessions and the charges were framed against them on 12.8.2002 under Section 498-A, 304-B I.P.C. and Section 3/4 D.P. Act. All the accused pleaded not guilty and claimed to be tried.

In order to prove its case the prosecution examined three witnesses of fact, P.W.2 Ashraf Ali who is the brother of the deceased, P.W.3 Idrish Khan, brother-in-law of the deceased who was the witness of the recovery memo prepared by the Investigating Officer and P.W.4 Ahmad Ali who is the complainant and uncle of the deceased. The prosecution has also examined formal witnesses Ashok Kumar, P.W. 1 who had proved the check first information report Exhibit Ka.1, Dr. U.K. Srivastava as P.W.5 who had conducted the post mortem on 16.4.2002 at 11.30 A.M. and proved the post mortem report of the deceased Exhibit Ka.5, J.P. Tiwari, S.I. was examined as P.W.6 who is the second Investigating Officer and had recorded the statements of the witnesses and inspected the place of occurrence and had submitted the charge sheet Exhibit Ka.8, Anupam Sharma was examined as P.W.7 who was the first Investigating Officer who after lodging of the first information report had recorded the statement of the witnesses and also the statement of the deceased under Section 161 Cr.P.C. in the hospital and prepared the site plan, Ex. Ka. 9. and arrested the accused/appellant Nisar and Shafique and prepared their arrest memo, P.W.8 Mohan Singh in whose presence the dying declaration of the deceased was recorded who has proved the same, which is Ex. Ka. 10. The statement of the accused/appellant and other accused persons were also recorded under Section 313 Cr.P.C. where they denied their involvement and have stated that they have been implicated due to enmity. The accused/appellant has stated that on the day of occurrence he was lying up stairs and his wife and other persons were on the ground floor. The wife had received injuries on account of fall of kerosene lamp, which was burning. He had taken her to community health centre for medical treatment. The co-accused Shafi in his statement recorded under Section 313 Cr.P.C. has stated that 7/8 months prior to the marriage of Nisar he was residing separately on the day of occurrence he had gone to his sister's house. Safique has also denied his involvement in the incident and has contended that he had also gone to his sister's house and after his return from there he heard that the deceased died due to burn injuries. The sister of the appellant was produced as defence witness and was examined as D.W.1 and Ram Singh as D.W. 2 who resides adjacent to the house of the appellant. The learned trial court after going through the entire evidence on record did not find the complicity of the co-accused Safique and Safi and hence they were acquitted while the appellant was convicted as stated above.

Heard the learned counsel for the appellant and the learned A.G.A. on behalf of the State.

It is vehemently argued by the learned counsel for the appellant that the appellant is throughout in jail since 14.4.2002 and has thus served out eight years and 11 months maximum period of sentence as awarded by the trial court. The appeal is also pending since long and the appellant has served maximum period of sentence therefore a lenient view may be taken. No other grounds raised on merit of the case.

The learned A.G.A. has not disputed this fact that the appellant is in jail throughout and more than eight years have been passed. It has been vehemently argued that the deceased who was the wife of the appellant died within a period of one year and ten months of her marriage and her dying declaration which was recorded by the Tehsildar unerringly points towards the guilt of the appellant alone. The statement of the victim, which was recorded in the presence of P.W. 8 Mohan Lal is a clinching evidence to disapprove the claim of the appellant that she died accidentally as she caught fire when the burning kerosene lamp fell upon her. She has specifically stated in her statement that first her mouth was gagged with clothes so that she may not cry and thereafter kerosene oil was poured upon her from can and lighted match sticks were thrown upon her and she tried to extinguish the same but she could not save herself and ultimately fire caught her. The statement given by her in burn condition cannot be doubted. She had given the detail of motive i.e. the illicit relation of the appellant with some other lady and constant demand of dowry so that she would leave the house herself are the sufficient circumstances, which leaves no room of doubt that the appellant is guilty of the offence. Her statement cannot be said to be tutored one. The learned trial court had discussed extensively about the two dying declaration, which were recorded one by the Investigating Officer and the other recorded before the Tehsildar and merely there were two dying declaration the prosecution case cannot be disbelieved. It is not the number of dying declaration, which is weighed by the court. Both the dying declaration were not only cogent and convincing but also firm and consistent, which lend support to the prosecution case.

This court has given thoughtful consideration since the appellant has not pressed this appeal on merits, therefore, this court is not entering into detail examination of factual controversies and the prosecution evidence. It is a crucial point whether sentence of the appellant can be reduced to already under gone as he has already remained in jail for eight years and 11 months and his maximum sentence is 10 years on one count under Section 304-B I.P.C. The learned trial court after appraisal of the entire evidence on record has ordered that the appellant is sentenced to ten years, under Section 304-B I.P.C., one years six months under Section 498-A I.P.C. with fine of Rs. 5,000/- and one year under Section 3/4 of D.P. Act, with fine of Rs. 10,000/-. The victim was married to the appellant only one year ten months anterior the incident. The appellant and his family members were dissatisfied on account of dowry given at the time of marriage hence she was harassed by her in-laws. The appellant took the drastic step by setting her on fire in a very inhuman manner and given it a colour of accidental burning by stating that burning lamp fell upon her, that the appellant and his other family members tried to extinguish fire by putting blanket upon her and that they had admitted her in hospital, which was not accepted by the trial court and each of the offences were fully proved against the appellant. This is the reason that the learned trial court while passing the order of conviction and sentence has not specifically mentioned that the sentences awarded to the appellant shall run concurrently. Separate sentences have been awarded for each offences, which is less than maximum aggregate sentence of fourteen years and in that view of the matter the appellant has been awarded total sentence of twelve years and six months the trial court has not directed that such punishment shall run concurrently. In the instant case from thread bare analysis the total period of sentence required to be served was twelve 12 years six months consecutively one after the expiration of the other and in view of the provision of Section 31 Cr.P.C. three years and seven months period of sentence subject to any correction, is remained to be served out by the appellant. The provision relating to sentence under Section 31 of Cr.P.C. reads as follows;

"31. Sentence in cases of conviction of several offences at one trial. (1) When a person is convicted at one trial of two or more offences, the Court may subject to the provisions of Section 71 of the Indian Penal Code sentence him for such offences, to the several punishments prescribed therefore which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the Court directs that such punishments shall run concurrently."

Therefore, the appellant was rightly convicted by the trial court as all the charges were well proved against him. Merely long passage of time while remaining in jail or long pendency of appeal would not justify minimum sentence to release the appellant when the gravity of offence is too much as highlighted by the learned A.G.A. Any liberal attitude by taking too sympathetic view merely on account of lapse of time in respect of such offence would do more harm. The court has not only keep in view the rights of the criminal but also the rights of the victim and his family of the crime and the society at large. Therefore, the judgment and order of the trial court is upheld. There is no other arguments on merit has been placed by the learned counsel for the appellant as such there is no merit in this appeal and is accordingly dismissed. The appellant shall serve out the remaining sentences as passed by the learned trial court.

Accordingly, the criminal appeal is dismissed.

Order Date :- 3.5.2011

Shahnawaz