Mahesh And 2 Others vs State Of U.P.
2015 Latest Caselaw 1274 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 43                                                                       AFR
 
Case :- CRIMINAL APPEAL No. - 3413 of 2013
 
Appellant :- Mahesh And 2 Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Prakash Chandra
 
Srivastav,Motilal,R.K.S. Nishith,Smt.Meera
 
Counsel for Respondent :- Govt. Advocate
 

 
Connected with
 

 
Case :- CRIMINAL APPEAL No. - 3411 of 2013
 
Appellant :- Kumari Rekha
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Prakash Chandra Srivastav,R.K.S.
 
Nishith
 
Counsel for Respondent :- Govt. Advocate
 
 
 
and
 

 
Case :- CRIMINAL APPEAL No. - 3412 of 2013
 
Appellant :- Durgesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Prakash Chandra Srivastav,R.K.S.
 
Nishith
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

1. Heard Sri Moti Lal and Smt. Meera, learned counsel for the appellants, Sri L.D. Rajbhar, learned AGA for the State and perused the record.

2. The three appeal nos.3413 of 2013, 3412 of 2013 and 3411 of 2013 have been filed against the common judgment and order dated 10.7.2013 passed by Additional District and Sessions Judge, Court No.04, Aligarh. The appeal nos.3413 of 2013 and 3412 of 2013 arises out of S.T. No.45 of 2011 State Vs. Durgesh and others and appeal no.3411 of 2013 arises out of S.T. No.104 of 2011 State Vs. Kumari Rekha relating to case crime no.275 of 2010, u/s 498-A, 304-B IPC and ¾ D.P. Act. The aforesaid judgment and order has been passed convicting and sentencing the appellants u/s 304-B IPC for ten years rigorous imprisonment and fine of Rs.5,000/- and in default of payment of said fine, the appellants will have to undergo for further rigorous imprisonment for a period of three months and also convicting and sentencing the appellants u/s 498-A I PC for three years rigorous imprisonment and fine of Rs.5,000/- and in default of payment of said fine the appellant will have to undergo further rigorous imprisonment for a period of three months, the appellants have been further convicted and sentenced for two years R.I. U/s 4 of Dowry Prohibition Act and fine of Rs.5,000/- and in default of payment of said fine the appellants will have to undergo further rigorous imprisonment for a period of three months R.I. All the sentences shall run concurrently.

3. All the aforesaid three appeals are being heard and decided by this Court by this common judgment.

4. The prosecution story in brief is that a written report was given by the informant Soran Singh to Station House Officer, Gabhana, district Aligarh stating that his daughter namely Mundra Devi was married three years ago to one Mahesh S/o Kali Charan of village Mahrawal. After the marriage, there was often dispute and marpeet between the in-laws and his daughter. He used to visit his daughters matrimonial home after pacifying them. On 16.7.2010 at about 12 in the afternoon he received an information that his daughter had set-her-ablaze and is in hospital. On receiving the said information, he reached the hospital, Medical College and met his daughter who informed that Durgesh, Mahesh, Bhola Prasad, Kalicharan, mother-in-law and Nanad have set-her-ablaze. His daughter received 90% burn injuries and gave a written report of and prayed that FIR be lodged against them.

5. On the basis of the said written report, an FIR was lodged at the Police Station Gabhana which was registered as Case Crime No.275 of 2010 under Section 326 read with 34 IPC on 17.7.2010. On 30.7.2010 another written report Ext. Ka-2 was given to Station Officer of Police Station Gabhana, Aligarh with an allegation that on 16.7.2010, the in-laws of his daughter poured Kerosene oil on her daughter and set her ablaze and the reason for burning her was demand of dowry as they used to harass her for the same. His daughter had made complaint to him several times about it but he tried to pacify her in-laws. He stated that the first report lodged by him was in haste and he forgot to mention that his daughter was done to death for demand of dowry. On 30.7.2010 at about 7.30 a.m. his daughter died and his report be converted under the appropriate offences. The said written report was marked as Ext. Ka-2 which was endorsed in the general diary of the concerned police station in G.D. No.2. Panchayatnama of the deceased was conducted on 30.7.2010 at 14.20 hours and ended at 15.45 hours. The Panchayatnama was exhibited as Ext. Ka-3 and in the opinion of panches, she died on account of burn injuries. The post-mortem of the deceased was conducted on 30.7.2010 at 5-15 hours which was exhibited as Ext. Ka-4. The dying-declaration of the deceased Mundra Devi, W/o Mahesh was recorded on 16.7.2010 at 7-35 p.m. by the Chief Medical Officer, J.N. Medical College Hospital in the presence of A.M.U Aligarh which is Ext.Ka-5. During the course of investigation, police documents were prepared i.e. Police Form No.13 (Ext.Ka-6), R.I. of Police Lines, Aligarh prepared the papers for sending the dead-body Ext. Ka-7. for ascertaining the cause of death of the deceased for post-mortem, the report to that effect was marked as Ext.Ka-8, Photonash Ext. Ka-9 and other police documents as Ext.Ka-10. The Chik FIR about the incident dated 16.7.2010 at 12 p.m. was registered at Police Station Gabhana, Aligarh which was registered on 17.7.2010 at 13.30 p.m and marked as Ext.Ka-11. The confidential injury report was prepared before Dr. Naseem Alam, Medical Officer, J.N. Medical College Hospital, Aligarh as Ext. Ka-12 in which 90% burn injuries were found on her person. The site plan was prepared as Ext.Ka-14. Thereafter concluded the investigation and submitted charge sheet against accused Durgesh, Mahesh, sons of Kalicharan, Bhola Prasad, Kalicharan S/o Jalim Singh and Smt. Omwati, W/o Kalicharan as Ext.Ka-13.

6. The case was committed to the Court of Sessions and charges were framed by the trial court on 25.5.2011 against accused. The accused denied the prosecution and sought their trial.

7. The prosecution in support of this case examined P.W.1 Soran Singh (father of deceased), P.W.2 Smt. Urmila (mother of the deceased), P.W.3 Ram Khiladi (witness of Panchayatnama), P.W.4 Mukesh (maternal uncle of the deceased), P.W.5 Lalit (brother of the deceased), P.W.6 Dr. Madhup Kaushal who conducted the post-mortem of the deceased, P.W.7 M.P.Singh the then Additional City Magistrate who recorded dying-declaration of the deceased, P.W.8 Girish Chandra Maurya, Nayab Tethsildar who conducted the Panchayatnama and got the same written by S.I. Chiraunji Lal and prepared the challan Nash report for R.I., report of C.M.O Photonash and other papers for the inquest and proved Ext. Ka-6 to Ka-9. He has proved the paper no.33 which was prepared in the name of S.I. Chiraunji Lal which was marked as Ext.Ka-10. P.W.9 Head Constable Ram Das Yadav who was Head Moharir at P.S. Gabhana at the time of incident. P.W.10 Dr. Naseem Alam J.N. Medical College, Aligarh, P.W.11 Dr. Ahsham Ahmad was present at the time of dying-declaration of the deceased and given certificate that she was in conscious state of mind to give dying-declaration and proved the same as Ext.Ka-5. P.W.12 Sunil Kumar the Investigating Officer of the case who submitted charge sheet against the accused u/s 498-A, 304-B IPC and ¾ Dowry Prohibition Act and proved Ext. Ka-13. P.W.14 Sunil Yadav.

8. The statement of the accused Bhola Prasad, Durgesh, Omwati, Mahesh and Km. Rekha was recorded u/s 313 Cr.P.C.

9. The accused Kalicharan died during the course of trial. Hence his trial was abated.

10. The accused Bhola Prasad has denied the prosecution case and submitted that he was living separately from the deceased and her in-laws. The accused Durgesh, Omwati, Mahesh and Km. Rekha have stated that the deceased died while cooking food in her house as the stove burst.

11. From the side of defence, D.W.1 Madanpal Singh and D.W.2 Nannu Singh were examined.

12. The accused Durgesh, Omwati, Bhola Prasad, Mahesh and Km. Rekha have denied the statement of P.W.7 M.P.Singh, City Magistrate and P.W.10 Dr. Naseem Alam and stated that the deceased died while cooking food in the house when the stove burst. The husband of the deceased Mahesh took her to the hospital and admitted her who led evidence to that effect.

13. P.W.1 Soran Singh who is the informant of the case and father of the deceased in his examination-in-chief on 18.7.2011 has stated before the trial court that the marriage of his daughter Mundra Devi was solemnized four years prior to the incident on 16.7.2010 and at about 12 noon he received information that his daughter has been burnt and admitted to the hospital. He stated that after 14.-15 days of the incident, his daughter died and he lodged FIR at the concerned police station about the said incident and he preferred FIR dated 17.10.2010 i.e. Ext. Ka-1. On 30.7.2010 when his daughter died, he lodged FIR about her death and proved the same as Ext.Ka-2. He further in his cross-examination submitted that his daughter was not being tortured for demand of dowry nor she was assaulted by in-laws for want of dowry. P.W.1 was declared hostile by the court.

14. P.W.2 Smt. Urmila who is the wife of P.W.1 and mother of the deceased has also not supported the prosecution case in her examination-in-chief and was also declared hostile.

15. P.W.3 Ram Khiladi who is the Phoopha of the deceased has also turned hostile and has not supported the prosecution case.

16. P.W.4 Mukesh who was the maternal uncle of the deceased who was also the witness of panchayatnama has also denied the prosecution case and has also denied the signatures on the inquest report and has stated that the Sub-Inspector who conducted the Panchayatnama has taken the signature on blank paper.

17. P.W.5 Lalit Kumar who is the real brother of deceased has also turned hostile and not supported the prosecution case.

18. P.W.6 Dr. Madhup Kaushal has deposed that on 30.7.2010 he was posted as Pathologist in Deen Dayal Hospital and has conducted the post-mortem of the deceased at 5.15 p.m and has stated that the deceased died at Jawahar Lal Nehru Medical College, Aligarh on 30.7.2010 at 8 a.m. and found following injuries on his person:-

1. Injuries were superficial to deep burn all over the body except a part on right upper thigh and both soles. Approximately 90% burn. Pus present.

Both lungs were congested and on cutting pus was oozing.

19. The cause of death is septicemia, shock as a result of ante-mortem injury and proved the post-mortem as Ext. Ka-4. He further stated in his cross-examination that there was no burning in her brain nor there was any injury but due to burning her brain was congested and when he was questioned by the defence counsel whether in the congested position of mind a person can speak, then he stated that only Forensic Expert can state about it.

20. P.W.7 M.P. Singh has deposed that on 16.7.2010 he was posted as Additional City Magistrate II and has stated that he received an information for recording dying-declaration through memo on which he reached the J.N. Medical College, Aligarh in Emergency Unit and has recorded the statement of the deceased Mundra Devi, W/o Mahesh who stated that the deceased was in conscious state of mind and further she stated that her mother-in-law Omwati and her husband Mahesh had poured kerosene oil and set her to fire. Thereafter the Magistrate further interrogated her who submitted that her Nanad Rekha and her husband's uncle Bhola Prasad also present and participated in the incident. While she was giving statement, she was in painful state. She further stated that she was pregnant. Though P.W.6 Madhup Kaushal has stated that there was no pregnancy found as her uterus was non gravid. The said witness further stated that both of her thumbs of hands were burnt and were not in a position to take thumb impression hence her right leg thumb was taken on dying-declaration who proved the same as Ext.Ka-5.

21. P.W.8 Nayab Tehsildar Girish Chandra Maurya has deposed that on 30.7.2010 he was posted as Nayab Tehsildar and under the orders of S.D.M. Kol he reached the Medical College where Chiraunji Lal, Sub-Inspector was present and prepared the inquest report of the deceased which was written by the Sub-Inspector Chiraunji Lal and Panchayatnama as Ext. Ka-3 and proved the same. He also proved the various other papers as Ext.Ka-6, Ka-7, Ka-8, Ka-9 and Ka-10. He further submitted that the dead-body of the deceased was burnt up-to 90%.

22. P.W.9 Ram Das Yadav, Head Moharrir has deposed that on 31.7.2010, he was posted as Head Moharrir and has stated that Sub-Inspector Chiraunji Lal had given written report under the signatures of informant Soran Singh about the incident for which he made an endorsement in the general diary of the said police station in G.D. No.2 about 00.30 a.m. and has also registered the same on 31.7.2010 as Case Crime No.275 of 2010 u/s 326/34, 498-A, 304-B IPC and Section ¾ Dowry Prohibition Act. He has proved the said general diary which in original was brought in the court and the said general diary has been proved which is on record as paper no.13-B. He proved Chik FIR as paper no.4-A/1 and 4-A/3 as Ext. Ka-11 and G.D. Carbon copy as 13-B/1 which was prepared by Clerk Sunil Kumar.

23. P.W.14 Sunil Yadav was constable clerk posted and proved the FIR as Case Crime No.275 of 2010 u/s 326/34 IPC which was registered on the basis of written report given by the informant. He also deposed that he has prepared the same on computer and has made reference of the same in general diary no.26 about 13.30 on 27.7.2010 and has proved the original general diary. The carbon copy of which was given to the Investigating Officer. He proved the Chik Paper No.4-Ka/1 and 4-Ka/2 which was marked as Ext. Ka-11 and proved the same special report about the same which was also sent on the same day to the high officials by P.W.9.

24. P.W.10 Dr. Naseem Alam who had prepared the confidential injury report before the death of the deceased on 16.7.2010 has proved the same as Ext.Ka-12. He was posted as Chief Medical Officer on 16.7.2010 at J.N. Medical College and the deceased was brought by her husband at the said hospital. Her condition was serious and received burn injuries up-to 90% and the body was smelling of kerosene oil. He further stated that on the injury report, the thumb impression of deceased Mundra Devi and her husband Mahesh were taken.

25. P.W.11 Dr. Ethsham Ahmad has stated that in the presence of M.P. Singh, Additional City Magistrate (P.W.7) the dying-declaration of the deceased was recorded and he has stated that the deceased was in a conscious state and he recorded her statement and proved the dying-declaration as Ext.Ka-5 and has stated that he has given certificate regarding the consciousness of the deceased.

26. P.W.12 Sunil Kumar Singh who was posted on 17.7.2010 as Circle Officer, II, District Aligarh and he has stated that on 31.7.2010 when the case was converted from Section 326/34 IPC to Section 498-A and 304-B IPC he started investigation of the case on 1.8.2010 and submitted the charge sheet after investigation against the accused persons and proved the same as Ext.Ka-13. The brother of the deceased Lalit Kumar had also given him the marriage card and brought on record as item no.Ext.Ka-1 and he has prepared the site plan of the place of occurrence which was prepared by S.I. Chiraunji Lal and proved the same as paper no.5-A/1 as Ext.Ka-14. He has not recovered anything from the place of occurrence.

27. P.W.13 Chiraunji Lal has stated that on 17.7.2010 he was posted as S.I. at police station Gabhana, district Aligarh. The present FIR as Case Crime No.275 of 2010 u/s 326/34 IPC was registered in his presence which was investigated by him and he proved the same as Ext.Ka-14 and further proved the pancyayatnama as Ext.Ka-3 which was prepared at the dictation of Nayab Tehsildar Girish Chandra Maurya who has send the special report to the Magistrate and other higher officials.

28. From the side of defence D.W.1 Madan Lal was examined who has stated that when he received information about the burning of the wife of accused Mahesh, he reached at the place of occurrence with some people and found that the deceased died while cooking food in the house and she received injuries as the stove burst. Thereafter he along with other villagers had taken the deceased to Malkhan Singh Hospital, Aligarh from where she was taken to J.N. Medical College and the deceased was not in conscious state nor was able to speak and thereafter he left. He being the Pradhan of the village had conversation with the Investigating Officer Chiraunji Lal at several times and has also met the second Investigating Officer and also got spot inspection with both the Investigating Officers.

29. D.W.2 Nannu Singh has also stated that when he came out from his house, he saw that there was large number of people gathered at the house of Mahesh and the people were assuming that fire had taken place. He also stated that when he reached the house of Mahesh that stove was lying and people have informed that the same was burst on account of which clothes caught fire and the deceased has been burnt.

30. Learned counsel for the appellant vehemently argued that though there is dying-declaration of the deceased but as per her dying-declaration, there is no specific allegation against the uncle of accused Mahesh, Nanad and Devar of the deceased and only it is stated that they were present and took part in the incident and specific allegation of burning the deceased has been levelled against the husband Mahesh and mother-in-law Smt. Omwati. He submitted that the said dying-declaration of the deceased appears to be unworthy of credence and not true as the deceased remained alive for about 15 days and she died on 30.7.2010 on account of septicemia and there has been tutoring from her parents for implicating the uncle of the husband, Devar and Nanad of the deceased. No overt-act has been assigned to the appellants Bhola Prasad (uncle of the husband of the deceased), Nanad Rekha and Devar Durgesh. Charge sheet was also not submitted against Nanad Rekha who is unmarried girl. It appears that their implication in the case has been tutored one in the dying-declaration by the parents of the deceased. The family members of the deceased including the informant have not supported the prosecution case and have turned hostile and have stated that the deceased died on account of cooking food in the house and the stove burst. There was no demand of dowry by the husband and other family members. He further argued that the deceased in her dying-declaration has stated that she was pregnant but as per her post-mortem report and the evidence of doctor, her uterous was found to be empty. Hence the finding recorded by the trial court in convicting the appellants appears to be against the evidence on record and the appellants be acquitted. He lastly argued that even if the dying-declaration is taken to it's own face value no role has been assigned to Bhola, Nanad and Devar as no overt-act has been assigned to them only they were found to be present. Hence their participation in the incident is doubtful. The case of the said appellants is distinguishable from the case of husband and mother-in-law of the deceased who have given specific role of burning the deceased by pouring kerosen oil and setting her ablaze. Hence the judgment and order passed by the trial court against them being erroneous may be set-aside.

31. Learned AGA on the other hand has opposed the prayer and submitted that the dying-declaration of the deceased which has been recorded in the presence of doctor and there appears to be no reason to doubt the dying-declaration of the deceased in which specific allegation of burning the deceased has been levelled on the husband Mahesh as well as mother-in-law Smt. Omwati but he could not dispute the role of three appellants Bhola Prasad (uncle of the husband of deceased), Nanad Rekha and Devar Durgesh to whom no overt-act has been assigned and all the prosecution witnesses have turned hostile.

32. Considered the submissions advanced by learned counsel for the parties and perused the record.

33. It is an admitted case that there is dying-declaration of the deceased which has been recorded by the Additional City Magistrate in the presence of Dr. Ethsham Ahmad who has given certificate regarding the consciousness of the deceased and stated that the deceased was in the position to give dying-declaration. As per dying-declaration, the deceased levelled specific allegations against the husband and mother-in-law for setting her to fire by pouring kerosene oil and only stated about the presence of Nanad and uncle of her husband at the time of incident. No overt-act has been assigned to them. Names of the said appellants in the dying-declaration appears to be exaggeration and may be tutored one as she was alive for about 15 days and in the FIR also only general allegations were levelled against the said three accused persons by the informant who subsequently turned hostile. The finding recorded by the trial court in convicting and sentencing the said appellants appears to be not justified but so far as the appellants Mahesh who is the husband of the deceased and Smt. Omwati who is the mother-in-law of the deceased is concerned, their participation in the present crime as per dying-declaration cannot be ruled out and there is no material on record to discard the dying-declaration of the deceased against them. Though prosecution witnesses of fact including informant have turned hostile and have not supported the prosecution case but in the dying-declaration specific allegation has been levelled against the husband and mother-in-law of the deceased which cannot be brushed aside.

34. In view of the foregoing discussions of the case so far as appellant Bhola Prasad (uncle of the husband of the deceased), Rekha (Nanad) and Durgesh (Devar) is concerned they are given benefit of doubt and they are acquitted from the charges and the judgment and order of the trial court is set-aside. They are on bail. They need not to surrender and their bonds and sureties discharged.

35. So far as appellant Mahesh (husband) and Smt. Omwati (mother-in-law) are concerned, the finding recorded by the trial court in convicting and sentencing them is hereby confirmed.

36. The husband Mahesh is stated to be in jail. He shall serve out the sentence awarded by the trial court.

37. The appellant Smt. Omwati (mother-in-law) of the deceased is on bail. She shall be taken into custody forthwith to serve out the sentence awarded by the trial court. Her bail bonds and sureties are cancelled.

38. Thus, the Criminal Appeal No.3413 of 2013 Mahesh and two others Vs. State of U.P stands partly allowed. The Criminal Appeal No.3411 of 2013 Kumari Rekha Vs. State of U.P and Criminal Appeal No.3412 of 2013 Durgesh Vs. State of U.P. stands allowed.

39. Office is directed to send a certified copy of this order to CJM, concerned for its compliance.

15.07.2015

Gaurav