Kunwar vs State Of U.P.
2017 Latest Caselaw 3759 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 14                                                                   
 
                                                                                 AFR
 
Case :- JAIL APPEAL No. - 5991 of 2010
 

 
Appellant :- Kunwar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Siya Ram Padney A/C
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

By way of instant jail appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 25.08.2008 passed by the Additional Sessions Judge, FTC No.1, Banda, in Sessions Trial No.213 of 2007 State of U.P. Vs. Kunwar, arising out of Case Crime No.164 of 2007, under Section 306 IPC, Police Station- Mataundh, District- Banda whereby the appellant Kunwar has been sentenced to undergo seven years rigorous imprisonment coupled with fine Rs.5000/-, in default of payment of fine, one year additional imprisonment.

Heard Sri Siyaram Pandey, learned amicus curiae for the appellant, learned AGA for the State and perused the record of this appeal.

Factual evolution leading up to this appeal as discernible from the record is primarily rooted in the first information report lodged by the informant Durga Prasad son of Ram Nath against the accused Kunwar, at Police Station Mataundh on 27.08.2007 at 2:10 p.m. for committing abetment of suicide to his daughter Km. Jagrani which divulges that the informant's daughter aged 16 years consumed hair dye on 25.08.2007 at 4:30 p.m. and she was taken to the district hospital Banda where she succumbed to her injury on 26.08.2007 at 5:00 a.m. It has been further described in the first information report that the informant's daughter was being teased by the appellant as and when he got the occasion to do it and he used to tease her by indecent gestures. On the day of the incident, the deceased Km. Jagrani was taking bath when the appellant climbed on the roof of her house and made indecent gestures which was watched by the informant's wife who at that point of time was present outside the house. When the informant's daughter raised alarm, she went inside the house and admonished the appellant to leave the place whereupon the appellant left the scene. Request was made for lodging the report and taking appropriate action. The written report is Ext. Ka-1.

Contents of the aforesaid information were taken down in the concerned Check FIR at Case Crime No.164 of 2007 under Section 306 IPC, at Police Station Mataundh, District Banda, on 27.08.2007 at 2:10 p.m. Check FIR is Ext. Ka-2. On the basis of entries so made in the check F.I.R., a case was registered against the appellant in the relevant G.D. at serial no.26 on 27.08.2007 at 2:10 p.m. at aforesaid case crime number at Police Station Mataundh under aforesaid section of I.P.C. against appellant. General diary copy is Ext. Ka-3.

Record reflects that the investigation of this ensued and preparation was made for holding inquest of the deceased Km. Jagrani. S.I. Kedar Nath Singh PW-6 prepared inquest report. It commenced at 11:00 a.m. and completed at 12:30 p.m. The inquest witnesses concurred with the Investigating Officer that the dead body be sent for post mortem examination in order to ascertain real cause of death. Inquest report is Ex. Ka-7.

In the course of proceedings, relevant papers were prepared for sending the dead body for post mortem examination. These papers are Ext. Ka-8 to Ext. Ka-12. Thereafter, post mortem examination on the cadaver of the deceased was done by Dr. Mrigendra Rajpoot PW-4 on 26.08.2007 at 4:00 p.m. in the mortuary at Banda who at the time of autopsy did not notice any external injury mark except an intra venous puncture site of hospital drip in left forearm. Cause of death could not be ascertained, therefore, viscera was preserved. The doctor has proved post mortem examination report Ext. Ka-4.

As the investigation proceeded further, the Investigating Officer K.P. Dwivedi PW-5 made relevant entries of the Check FIR and the concerned general diary and prepared site plan of the incident which is Ext. Ka-5. The Investigating Officer arrested the appellant and recorded statement of various witnesses and after completing investigation, filed charge sheet against the appellant which is Ext. Ka-6.

Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of Additional Sessions Judge, FTC No.1, Banda, who in turn heard both the sides on point of charge and was prima-facie satisfied with the case against the appellant, accordingly, framed charge under Sections 306 IPC. Charge was read over and explained to the appellant who abjured charge and opted for trial.

In turn the prosecution was required to adduce its testimony. The prosecution produced in all six prosecution witnesses. A brief reference of whom entails hereinbelow.

Durga Prasad PW-1 is the informant. Constable Durga Prasad PW-2 has made relevant entries in the Check FIR and general diary which are Ext. Ka-2 and 3, respectively. Smt. Puniya is mother of the deceased Km. Jagrani. She is a star witness of this case. She has been cross-examined at length by the prosecution. Dr. Mrigendra Rajpoot has proved autopsy report Ext. Ka-4. S.I. Kashi Prasad Dwivedi PW-5 has detailed various steps which he took in the investigation and he has filed charge sheet against the appellant Ext. Ka-6. S.I. Kedar Nath Singh has prepared inquest report and has proved the same as Ext. Ka-7. Apart from above, the trial court has also examined Natthu as CW-1. He has testified on certain factual aspect of the case and about the condition of the deceased after the occurrence. Similarly, the trial court also examined Ram Saran as CW-2. He has also testified on the same lines as CW-1.

Except as above, no other testimony was produced by the prosecution. Consequently, evidence for the prosecution was closed and the statement of the appellant was recorded under Section 313 Cr.P.C. wherein he claimed to have been falsely implicated due to enmity and further claimed himself to be innocent and has been wrongly involved in this case.

No evidence, whatsoever, was led by the defence.

The case was heard on merit by the learned trial Judge who after appraisal of facts and evaluation of the evidence and circumstances of the case, returned finding of conviction against appellant under Section 306 IPC and sentenced the appellant to seven years rigorous imprisonment under Section 306 IPC.

Consequently, this appeal.

Learned counsel for the appellant has vehemently contended that as per factual aspect of the case, neither dying declaration of the deceased Km. Jagrani was recorded nor any genuine effort was made to record her statement so as to clarify things as to what happened to her and under what circumstances, she consumed hair dye in question. In absence of any such effort, it cannot be said that the deceased being harassed because of teasing done at the hand of the appellant, consumed hair dye.

Learned counsel for the appellant has next contended that the allegations contained in the first information report and testimony available on record allude to clear cut inference that the allegations are vague on the face and the same are not specific. There is no specific description of any illegal or indecent gesture that can be imputed against the appellant.

Learned counsel for the appellant has next contended that testimony on record profusely indicates that testimony is not directly applicable against the appellant but the entire testimony is based on hearsay evidence. Though the name of Bhaiyyadin and another person have been mentioned in the statement of PW-1, who used to help the appellant in committing the crime, but they have been exonerated by the Investigating Officer and no charge sheet was filed against them and no consequential action taken by the trial court against them for reasons best known to it.

Learned counsel for the appellant has next contended that entire evidence on record does not convince under facts and circumstances that an ordinary person would consume hair dye because of teasing done by the appellant. It is a fact based more on presumption than on record and the conviction cannot be had merely on basis of presumption but it requires concrete proof. Factual position is that the parents of the deceased had settled marriage of the deceased with some person but the deceased was not pleased with the settlement of her marriage. To say that she died due to annoyance caused by teasing done by the appellant is wholly baseless allegation. The entire evidence on record does not reflect that any specific immoral gesture aiming at the deceased was ever made by the appellant. All the allegations made and the testimony on record are vague and opaque and nothing comes out of it.

Per contra, it has been submitted in reply by the learned Additional Government Advocate that in this case, testimony on record is sufficient with clarity and transparency and it inspires confidence in the sense that the very cause of committing suicide has been given in the first information report itself and in the testimony of both the witnesses of fact, the first informant PW-1 and the mother of the deceased, Smt. Puniya PW-3.

It has further emerged in the testimony of PW-3 that the deceased Km. Jagrani was embarrassed to great extent because of bad and immoral gestures made by the appellant and she consumed hair dye, as a result of which she was taken to the hospital where she succumbed to her injury on 26.08.2007 at 5:00 a.m. The trial court has acted on the wholesomeness of testimony and has rightly recorded conviction against the appellant and has passed appropriate sentence.

Also considered the above rival submissions and taken into consideration rival claims. In view of above, the point for determination of this appeal specifically relates to fact whether the prosecution has been able to prove charge under Section 306 IPC beyond reasonable doubt against the accused and has sentenced condignly.

On the onset, it is gathered that the deceased Km. Jagrani, aged 17 years, died on 26.08.2007. Report was scribed by one Pushpendra Singh after the death of the deceased Km. Jagrani on 27.08.2007 and was handed over at Police Station Mataundh at 2:10 p.m. The informant PW-1 has lodged the written report Ext. Ka-1. The delay under circumstances stands explained in the sense that the informant was busy with the treatment of her daughter and when she died in the following morning at 5:00 a.m. on 26.08.2007, necessary legal process followed and post mortem examination also took place the very same day 26.08.2007 around 4:00 p.m. Naturally after that the informant received dead body of his daughter and after doing last rites, the informant had occasion on 27.08.2007 to lodge the first information report against the appellant. This way, it cannot be said that delay in lodging the first information report is either deliberate or afterthought in order to circumvent circumstances of this case.

Bare perusal of the first information report indicates that in this case, specific allegations have been made against the appellant that he climbed on the roof of the house of the deceased and was involved in some lewd remarks/indecent physical gestures whereby the deceased was agitated and she called her mother inside the house when the appellant was admonished by PW-3, he fled away from the scene. This specific testimony itself is indicative of fact that the appellant was indulged in teasing the deceased by making ugly remarks and gesture as and when he found opportune moment at his convenience.

It has also been mentioned in the first information report that the appellant used to say to the deceased that he is in love with her and in case she does not respond properly, he will kill her. This gesture very much vexed and annoyed the deceased and she committed suicide because of the aforesaid activities of the appellant. This specific piece of testimony stood established in the testimony of PW-3 itself when she has stated all the aforesaid facts in her examination-in-chief that because of nefarious design and indecent gesture, the deceased was annoyed a lot and she out of sheer annoyance and being embarrassed of indecent gesture committed suicide by consuming hair dye on a day prior to the occurrence (25.08.2007) while she died on 26.08.2007 at 5:00 p.m. in the hospital during treatment. This testimony remains unassailed and nothing adverse has emerged in the cross-examination of PW-3 although she has been cross examined at length by the defence. There is nothing adverse which may effect credibility of PW-3 that she is not telling the truth.

Argument advanced on behalf of the appellant to the ambit that the entire episode has been concocted by the informant in order to evade legal consequences which would have been flown against the informant because the deceased had consumed hair dye as a measure of protest against settlement of her marriage. Therefore, in order to invent false pretext, the informant found it convenient to implicate the appellant in this case who was a young boy of 21 years at the time of the incident whereas fact is that he has nothing to do with the death of the victim. There was no motive to commit the offence in question and abetment of suicide was neither aimed nor intended but it is obvious that the entire allegations are based on false fact and the same cannot be accepted.

Perusal of the record further reflects that viscera preserved at the time of conduction of post mortem examination was sent for examination to the forensic science laboratory, Lucknow. A report Ext. Ka-13 was obtained which indicates presence of phenylenediamine (dye) in stomach, intestine, liver, kidney and spleen of the deceased. Thus, it is obvious that the allegation of consumption of hair dye by the deceased stands established by the above report of forensic science laboratory, Lucknow. Therefore, report Ext. Ka-13 corroborates testimony of PW-1 and PW-3 regarding consumption of hair dye by the deceased on 25.08.2007.

Insofar as point of absence of recording of dying declaration is concerned, it is worthy to observe that it is not necessary in all cases that dying declaration should invariably be recorded in all eventuality while the deceased was alive. Merely non-recording of the dying declaration in a given case where the facts are obviously affecting physical condition of the deceased and the deceased is not in a fit position to state anything then the dying declaration in all probability cannot be recorded, therefore, non-recording of the dying declaration in this case does not vitiates merits of the case insofar as the allegations made in the first information report and the testimony forthcoming in respect thereto.

Insofar as the allegations contained in the first information report are concerned, it entails description of specific indecent gesture imputed against the accused which impelled the deceased to consume hair dye which led to her death. Even testimony of PW-3 is very specific as to what in fact happened and particularly the very manner and style of teasing was stated that was voluntary gesture made by the appellant on the day of the occurrence which in fact led to consumption of hair dye by the deceased. Therefore, the allegations of consuming hair dye by the deceased due to annoyance created by ugly immoral gesture by the accused cannot be said to be either vague or opaque but well established. The testimony of the prosecution witnesses particularly PW-3 cannot be said to be based on hearsay. Her testimony on the point under consideration is direct testimony.

Lastly, insofar as name of the other co-accused Bhaiyyadin and another as surfaced in the testimony of PW-1 is concerned, it cannot be said that because of absence of penal action against him/them main accused should not be put to trial and, exoneration of the other accused from proceeding would not give any benefit to the the main accused say- the present appellant. Therefore, argument raised on behalf of the appellant to that extent remains without substance and force and the same will not give any advantage to the appellant.

The trial Judge who appraised the facts and evaluated evidence on record was conscious of the aforesaid facts and has recorded detailed finding on the guilt of the accused and has taken into consideration all the aforesaid aspects both factual as well as legal and has passed just finding of conviction and sentence which needs no interference by this Court.

Accordingly, the judgment and order of conviction dated 25.08.2008 passed by the Additional Sessions Judge, FTC No.1, Banda, in Sessions Trial No.213 of 2007 State of U.P. Vs. Kunwar, arising out of Case Crime No.164 of 2007, under Section 306 IPC, Police Station- Mataundh, District- Banda against the appellant is upheld.

In view of above, the appeal lacks merit and is dismissed.

Let a copy of this judgment be certified to the trial court for necessary information and follow up action.

Order Date :- 29.08.2017

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