Mahendra vs State
2014 Latest Caselaw 7008 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								A    F    R
 
 				 Judgment Reserved on : 29th August 2014
 
       			                  Date of delivery : 25th September 2014
 
Court No. - 10
 
Case :- CRIMINAL APPEAL No. - 1229 of 1993
 
Appellant :- Mahendra
 
Respondent :- State
 
Counsel for Appellant :- Virendra Singh,Ashish Mishra
 
Counsel for Respondent :- A. G. A.
 
Hon'ble Arun Tandon,J.

Hon'ble Akhtar Husain Khan,J.

Heard Shri Ashish Mishra, Advocate on behalf of appellant and Shri N. K. Singh Yadav, learned A.G.A. on behalf of State-respondents.

This Criminal Appeal under Section 374 (2) Cr. P. C. is directed against the judgment and order dated 13.7.1993 passed by the IVth Additional District & Sessions Judge, Aligarh in Sessions Trial No.36 of 1993. Under the judgment and order in appeal, the appellant Mahendra s/o Gyasi Ram has been convicted of an offence under Section 302 IPC and has been sentenced to undergo Rigorous Imprisonment for life with fine of Rs.10,000/-(rupess ten thousand). In default of payment of fine the appellant is required to undergo further Rigorous Imprisonment for a period of three (3) years.

The case of the prosecution as disclosed from the records is as follows :

On 24.8.1992 a first information report was lodged at 14.40 pm at Police Station-Banna Devi, District-Aligarh by one Sukhbir. It was stated that his sister Rajwati @ Rajjo was married to the accused-appellant Mahendra s/o Gyasi Ram, r/o Sarai Nawab, P. S. Banna Devi, District-Aligarh nearly a year earlier. Mahendra along with his father Gyasi Ram and mother Shanti Devi has been manhandling his sister Rajwati @ Rajjo for dowry, since their desire of dowry could not be satisfied. All the aforesaid three persons on 23.8.1992 with an intention to kill the sister of the informant poured kerosene oil upon her and put her to fire. On receiving the information of the said incident, the informant along with his mother, father and brother rushed to the Government Hospital where his sister Rajwati @ Rajjo had been admitted. His sister had severe burn injuries.

After registration of the FIR, primary investigation was done by Suresh Singh Saingar, who recorded statement of informant and others and also prepared site plan.

Statement of the deceased Rajwati @ Rajjo was recorded when she was alive by the A. C. M. Shri K. P. Saxena on 23.8.1992 at 5.45 pm. in the presence of Dr. P. K. Tyagi who specifically recorded that the patient remained conscious throughout her dying declaration and was fit enough to depose.

In her statement amongst others Rajwati @ Rajjo had specifically stated that it was her husband, who had poured kerosene oil upon her and had put her to fire. She stated that her husband had come after gambling, hot talks had taken place in the afternoon between 12-1 pm. Her father-in-law, mother-in-law and husband were present in the house. Her husband poured kerosene oil upon her and put her on fire. Thereafter, he had dropped her at the hospital. It was also stated that the cause of dispute between husband and wife was the habit of gambling and drinking by the husband.

On 30.8.1992 Rajwati @ Rajjo succumbed to burnt injuries suffered by her.

The investigation was taken over to C. O. Shri Subhash Singh Baghel. After Panchayatnama, the body was sent for post mortem. The autopsy of the dead body was done by Dr. V. S. Agnihotri, who found following ante mortem injuries on the dead body of the deceased :

"Severe burn injuries on the chest, whole abdomen, both thighs, lower half of the back. Pus was present at places over the body. Cut open wound was present on the left leg.

Internal examination : lower part of the left lung contained mampus. Certain part of Liver contained pus. Stomach was empty."

According to doctor cause of death were the burn injuries suffered by the deceased.

After investigation was completed the charge sheet was filed against the accused, his father and mother. On 23.4.1993 charges were framed by the Sessions Court under Section 498A and 304B IPC and in the alternative under Section 302 IPC.

The accused denied the charges and prayed for trial. However, they did not lead any evidence in their defence.

Constable Atar Singh, who had recorded the FIR and had made the G. D. entry was examined as PW 1. Sharman, the father of deceased was examined as PW 2. Smt. Premwati Devi, mother of deceased was examined as PW 3. Sukhbir Singh, brother of deceased and the first informant was examined as PW 4. All the three witnesses of fact i.e. PW 2 to PW 4 have stated that Rajwati @ Rajjo was married to Mahendra but no rituals were performed. It was further stated that the accused Mahendra used to indulge in maarpit with Rajwati for dowry and they were informed that Rajwati was done to death, after kerosene oil was poured upon her and put to fire. PW 4 has also proved the first information report, which was lodged at the police station. Dr. V. S. Agnihotri, who had performed the post mortem was examined as PW 5, he proved the medical report. Suresh Singh Saingar, the first Investigating Officer was examined as PW 6. Subhash Singh Baghel, C. O. the second investigation officer was examined as PW 7. Additional City Magistrate (A.C.M.) who had recorded the dying declaration of deceased Rajwati @ Rajjo was examined as PW 8. He proved Ext 13, which contains the dying declaration of the deceased. Dr. P. K. Tyagi was examined as PW 9, he proved that at the time when dying declaration of Rajwati @ Rajjo was recorded, she was conscious and was capable to make a statement. He also proved the certificates Ext Ka/16 & Ext Ka/ 17.

The trial Court after considering the evidence brought on record proceeded to consider as to whether offences under Section 498A and Seciond 304B IPC were made out against the accused or not. The trial Court after considering the various factors held that offence under Section 498A read with Section 304 IPC could not be established against any of the accused.

The trial Court, thereafter, proceeded to examine as to whether the alternate offence under Section 302 IPC was established against the accused.

The trial Court after considering the dying declaration of the deceased, which was fully established by the testimony of the A.C. M. Shri K. P. Saxena and the testimony of Dr. P. K. Tyagi, who proved that the deceased was in a conscious state of mind and capable of giving the statement at the time and date mentioned therein, came to a conclusion that the dying declaration of the deceased as recorded appears to be normal and coherent. In her dying declaration, the deceased had not referred to any demand of dowry. On the contrary, she had stated that the cause of fight between the husband and wife was the drinking and gambling habits of her husband. The trial Court also referred to the statement of father of the deceased, who specifically stated that he was informed by his girl that it was Mahendra who had poured kerosene oil and had put her on fire. Reference has also been made to the statement of deceased referable to Section 32 of the Indian Evidence Act, which was established by the Investigating Officer. The two statements were in tune with each other and there was no contradiction thereon. The trial Court further went on to examine as to whether the deceased Rajwati @ Rajjo had died because of the burn injuries or otherwise. After considering the post mortem report as well as the testimony of the doctor, who had performed autopsy, came to a conclusion that the cause of death of the deceased on 30.8.1992 was the burn injuries suffered by her.

The trial Court has found that Rajwati @ Rajjo had implicated only her husband Mahendra in her dying declaration as well as in her statement recorded under Section 161 Cr. P. C before the Investigating Officer. She had not implicated her father-in-law or mother-in-law for any offence.

Therefore, it has been held by the trial Court that it was Mahendra, the husband of the deceased, who had committed the offence under Section 302 IPC. He has accordingly been convicted for the same. Convict Mahendra has been punished for the offence as noticed above.

Challenging the judgment and order of the trial Court, counsel for the petitioner made an attempt to take the Court to the various facts, which was on record. He laid emphasis more on the fact that the prosecution story as disclosed in the FIR qua deceased Rajwati @ Rajjo having been done to death only because the demand of dowry, could not meet, which allegation could not be established by any cogent evidence. Therefore, he submits that the case of the prosecution must fail. Attempts were also made on behalf of the appellant to suggest aht the dying declaration, which has been heavily relied upon by the trial Court, was not in the handwriting of the deceased. It only had her thumb impression and that she was not in a mental state where she could depose honestly and freely. It is also stated that the deceased in her same statement had stated that it was her husband, Mahendra who had brought her to the hospital, which further corroborates the case of the accused that it was only an accident and that the husband had not caused the death of his wife.

We have heard learned counsels for the parties and have examined the records of the present appeal.

From the evidence which has been brought on record it is established that cause of death of deceased Rajwati @ Rajjo were the burn injuries suffered by her due to kerosene oil being poured upon her body and she being put to fire. According to the dying declaration of Rajwati @ Rajjo and the statement given by her it was clear that said kerosene oil was poured upon her by her husband Mahendra and thereafter he had put her to fire. We find that the statement of deceased Rajwati @ Rajjo is well supported by the ocular testimony of the father and mother of the deceased, who specifically stated that they were told by Rajwati @ Rajjo about kerosene oil having been poured upon her by her husband Mahendra and thereafter she being been put to fire with the help of match-stick. Similar is the testimony of the brother of the deceased Sukhbir, the first informant.

The statement made by the deceased Rajwati @ Rajjo under Section 161 Cr. P. C. on 24.8.1992 before the I. O. and the dying declaration made were cohesive and in the same line. Absolutely no discrepancy could be noticed in the two statements.

The victim was capable of making the statement/dying declaration on 23.8.1992 at 5.45 pm, is well established from Ext Ka 13, Ext Ka 14 to Ext Ka 17, which were proved by the Additional City Magistrate Shri K. P. Saxena (PW 8) as well as by Dr. P. K. Tyagi (PW 9) in their testimonies respectively.

Merely because the prosecution could not establish the demand of dowry as the motive for death of the victim or merely because the rituals of marriage could not be established and, therefore, the trial Court having come to a conclusion that offence under Section 498A and 304 B IPC had not been made out against the accused, the same cannot be the basis for drawing any adverse inference in the matter of Rajwati @ Rajjo having been done to death by the appellant in the manner stated above.

From the post mortem report it is established beyond doubt that the death of deceased Rajwati @ Rajjo was caused because of excessive burnt injuries received by her. The victim being brought to the hospital by the accused husband will not in any way mitigate against the offence committed by him.

The legal question with regards to the acceptance of dying declaration has been explained by the Hon'ble Apex Court in the case of State of Karnataka v. Shivalingappa, 2001 (4) RCR(Criminal) 237 (Karnataka) (DB).

In the totality of the circumstances on record, we find that the judgment and order dated 13.7.1993 is strictly in accordance with law. The prosecution had been able to bring home the charge levelled against the accused with all certainty. There is no merit in this appeal.

The Criminal Appeal is dismissed. Accused appellant is on bail. He may be arrested for undergoing the sentence as awarded under the judgment and order dated 13.7.1993 of the trial Court.

Order Date : 25.9.2014

himwan