Sanjay Gupta vs State Of U.P.
2017 Latest Caselaw 1311 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
		Judgment Reserved on 3.4.2017
 
                   Judgment Delivered on 29.5.2017
 

 
Court No. - 36
 

 
Case :- JAIL APPEAL No. - 2080 of 2011
 
Appellant :- Sanjay Gupta
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Dina Nath Joshi,Kamal Kumar,Namit Srivastava
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Harsh Kumar,J.

Delivered by Hon'ble Ramesh Sinha, J.

1. The present Criminal Appeal arises out of impugned judgment and order dated 23.2.2011 passed by Special Judge, E.C. Act/Additional Sessions Judge, Ballia passed in S.T. No.318 of 2010 by which the appellant has been convicted under Section 302 IPC for imprisonment for life and further a fine of Rs.3,000/- has been imposed upon the appellant and in default of payment of fine, one year additional rigorous imprisonment.

2. The prosecution case as emerges out from the FIR which has been lodged by the maternal uncle of the deceased namely Prahlad Gupta with an allegation that his niece (Bhanji) Kanchan Gupta was living along with him since her childhood. He has also taught her. She was married by him on 9.5.2006 with Sanjay Gupta, S/o Sri Shyam Deo Gupta, R/o village Bahokha Khurd, Police Station Ujhaon, District Ballia. Her niece was also having two years old child. Sanjay Gupta used to be annoyed often with his niece and abused her and also assault her. On 24.5.2010 at about 10 a.m. Sanjay Gupta was cutting the hair of his two years old son on which his wife who is the niece of the informant asked him as to why he himself was cutting the hair of his son and not take him to the Barber for hair cutting on which Sanjay Gupta became angry and abused his niece. Thereafter he poured Kerosene oil on her and set her ablazed by lighting the match stick. Thereafter Sanjay Gupta left his wife in the house by bolting the door from outside. On the scream made by the niece of the informant, one child of the village had opened the door. The Pradhan of the village Shah Alam and neighbour Surendra Gupta reached the spot where they saw her burning and scolded to Sanjay Gupta and also asked him to take her for medical treatment at Mau. His niece was admitted in Fatima Hospital who was struggling for life. On receiving an information, he also reached at the Fatima Hospital to meet his niece who told him about the incident while crying. He prayed to the Station Officer of the police station for registering the FIR and take action accordingly.

3. On 8.6.2010, the FIR was lodged by the informant Prahlad Gupta against the accused-appellant Sanjay Gupta at police station Ubhao, District Ballia which was registered as Case Crime No.230 of 2010 under Section 326, 504 IPC at 11.40 a.m. The distance of police station was 4 k.m. away from the place of occurrence.

4. On the written report Ext. Ka-1, the said FIR was lodged against the accused-appellant Sanjay Gupta by Prahlad Gupta. On 2.7.2010 the niece of the informant Kanchan Gupta while being treated at Fatima Hospital, Mau died on account of the injuries and after her panchayatnama and post-mortem on 2.7.2010, her last rites were performed by him.

5. An information Ext. Ka-2 was given to the police station Ubhao of district Ballia with the request to take action against the accused-appellant Sanjay Gupta. On the basis of the said information given by the informant Prahlad Gupta, the case was converted u/s 304 IPC. The investigation of the case was carried on and charge sheet was submitted against the accused-appellant Sanjay Gupta for offence u/s 326, 504 IPC on 29.6.2010 (Ext. Ka-5) and thereafter supplementary charge sheet u/s 304 IPC also on 19.8.2010 (Ext. Ka-6) wherein learned Magistrate took cognizance on 8.9.2010. The case was committed to the Court of Sessions and the trial court on 25.11.2010 framed charge under Section 302 IPC against the accused-appellant Sanjay Gupta who denied the charge and claimed to be tried.

6. The prosecution in support of its case has produced seven prosecution witnesses namely P.W.1 Prahlad Gupta, informant of the case who is the maternal uncle of the deceased. The P.W.2 Mohan Prasad Gupta who is also the maternal uncle of the deceased. P.W.3 Suresh Chandra Yadav, the Investigating Officer of the case, P.W.4 Constable Moharrir Dharm Dev, P.W.5 Dr. A.P. Gupta who medically examined the deceased when she was admitted in the hospital while she was alive, P.W.6 Dr. Kapil Dev who conducted the post-mortem of the deceased, P.W.7 Nayab Tehsildar Kanhaiya Lal who recorded the statement of the injured u/s 164 Cr.P.C. The informant produced before the trial court a letter which is stated to have been written by the deceased before her death as well as photocopy of marriage card.

7. The accused-appellant Sanjay Gupta in his statement recorded u/s 313 Cr.P.C. has stated that he has been falsely implicated in the present case and had denied his involvement and the charge levelled against him stating that he was not present in the house and the deceased died in an accidental fire while cooking food in the house. In defence, he has not produced any evidence.

8. P.W.1 Prahlad Gupta who is the maternal uncle and informant of the case has deposed before the trial court that in the year 1996, he had married the deceased with accused-appellant Sanjay Gupta but thereafter again he stated that he married her on 9.5.2006. He deposed before the trial court that the deceased while she was three years old, was living with him and also studied. He has stated that the deceased used to live in her in-laws house. The witness used to live at Mumbai in connection with his business and on receiving the information that his niece who has been burnt and admitted in the Fatima Hospital, Mau, he reached there and his niece told him about the incident which he has narrated in the FIR. He stated that a written report Ext.Ka-1 was written by his nephew on which he had signed and given to the concerned police station and further information about the death of the deceased was also given by him on 15.7.2010 which is Ext. Ka-2 and the Panchayatnama was conducted on the dead-body of the deceased and proved the same Ext.Ka-3. In his cross-examination, he stated that his sister Kanti Gupta was married to Mithai Lal Gupta, resident Bahokha, District Deoria and his sister had one daughter which was not of Mithai Lal Gupta as she was of Kanhaiya Lal, resident Isari Salem. He stated that his sister lived with Kanhaiya Lal for three years where the girl Kanchan Gupta was born. Kanhaiya Lal had left her sister who performed second marriage with Mithai Lal and started living with him in district Deoria. He stated that his sister has left his niece Kanchan Gupta when she was four years old and had gone to district Deoria and since then he was taking care of the deceased Kanchan Gupta. He further deposed that he used to carry his business from Mumbai where he used to live and his niece Kanchan Gupta complaint to him regularly that after the marriage her husband used to cruelly treat her and assault her for money. The accused-appellant Sanjay Gupta used to live along with Kanchan Gupta at Mumbai but did not do any work and live with his father but as he was unemployed and did nothing, he came back to district Ballia where he was living with the deceased. The witness further deposed that when he met with his niece on 2.6.2010, then father-in-law and mother-in-law were not present and only accused Sanjay Gupta was present. In the hospital she was in conscious state of mind who narrated the incident to him. He further stated before the trial court that Kanchan Gupta did not inform him about the name of the child who had opened the door. The house of the accused-appellant Sanjay Gupta is adjacent to one Surendra Gupta but he was not told by Kanchan Gupta that he saved her. The witness further deposed before the trial court that accused-appellant Sanjay Gupta before going to jail has given all the ornaments of Kanchan Gupta to him who sold the same on the instructions of the parents of Sanjay Gupta for medical treatment of the deceased Kanchan Gupta.

9. P.W.2 Mohan Prasad Gupta who is the maternal uncle of the deceased has also repeated the prosecution version as has been given by P.W.1. He further deposed that the accused-appellant Sanjay Gupta had threatened the deceased while being taken to the Fatima Hospital, Mau that she should make statement in the hospital that she was burnt while cooking food and her Sari caught fire, only then the doctor would admit and treat her. This witness has further proved letter material Ext. Ka-1 which is stated to have been written by the deceased in which the deceased has written that the appellant has sold out his Lorry (Thela) and has further told her that he would leave the deceased at her mothers house at Mumbai and also levelled allegation against the deceased that she has been away for eight days along with the boy. She in the said letter stated that the accused-appellant Sanjay Gupta was not doing any work and threatened her that she would be done to death cruelly. The said witness in his cross-examination has stated that on 24.5.2010 he received information about the incident at Mumbai and he along with his brother had come to District Ballia. The parents of accused-appellant Sanjay Gupta were also living at Mumbai and they used to carry a small shop of Tea etc. but could not state whether the accused-appellant Sanjay Gupta was used to live with his parents or not.

10. P.W.3 S.I. Suresh Chandra Yadav who was the Investigating Officer of the case has deposed before the trial court that he recorded the statement of the informant u/s 161 Cr.P.C and prepared the site plan Ext.Ka-4 of the incident and other witnesses and also recorded the statement of the injured Kanchan Gupta while she was alive at Fatima Hospital. The injured Kanchan Gupta prayed that her dying-declaration be recorded which was recorded by the Nayab Tehsildar Kanhaiya Lal. After completing the investigation, the charge sheet was submitted u/s 326, 504 IPC and on receiving information of the death of the deceased, Section 304 IPC was added by a supplementary charge sheet. He proved the charge sheet Ext. Ka-5 and supplementary charge sheet Ext. Ka-6. In his cross-examination he stated that he has recorded the statement of the neighbours where the occurrence had taken place and recorded statement of the wife of Surendra Gupta namely Nirmala Devi. He visited the place of occurrence and no one was found at the house of the accused-appellant Sanjay Gupta and after opening the lock, he went inside where he did not find Lantern, Kerosene box etc. The Kerosene oil was found spread about one meter. The lantern and other items were not found. He further deposed that the deceased had told him that the Lamp which was kept in front of Kitchen was thrown by the accused Sanjay Gupta on which her cloths were caught fire and she was burnt. The deceased while she was alive and her statement was recorded, her maternal uncle Mohan Prasad Gupta and aunt (mausi) was also present. He recorded the statement of the injured on 10.6.2010 and on 2.7.2010 she died at Fatima Hospital.

11. P.W.4 Constable Dharam Dev Yadav formal witness who has proved the Chik FIR Ext.Ka-7 and G.D. Entry Ext. Ka-8. He in his exmination-in-chief stated that he had written the Chik FIR on the basis of written report given by Prahlad Gupta.

12. P.W.5 Dr. A.P. Gupta who had examined the deceased while she was brought in injured condition at Fatima Hospital, Mau has stated that on 24.5.2010 at 10 p.m. he had medically examined the injured Smt. Kanchan Gupta and proved the medical report as Ext.Ka-9. He stated that the injured was in conscious state of mind. The injuries sustained by the injured Smt. Kanchan Gupta while she was alive and medically examined by P.W.5 is quoted here-in-below:-

Superficial to deep burn, dermal and epidermic burn. Line of redness present, some places skin peeled of, some places blister present.

Area of burn on Head and Neck 6%, Upper limb left and right side 10%, Anterior abdomen 36%, Per 17%

Opinion 53% burn injuries

13. He in his cross-examination has stated that in an accidental case, information is sent to the police which is also endorsed in the accidental register. The police was informed but medical examination of the injured was not conducted in the presence of the police. The victim/injured was brought by her husband Sanjay Gupta. As the injured was brought in the burnt condition and she was to be given first aid, hence the arrival of the police was not necessary for her medical treatment. The victim was in a conscious state and suffered 53% burn injuries. The said injuries is possible if the victim is fallen on hearth (Choolha). He stated that the burn injuries could be caused by any manner, hence whether it is caused by sprinkling Kerosene oil or by fall on the hearth, it hardly makes any difference.

14. P.W.6 Dr. Kapil Dev had conducted the post-mortem of the deceased and has proved the same as Ext.Ka-10 and found following ante-mortem injuries on her person:-

** e`R;q iwoZ pksVksa dk fooj.k& vR;f/kd tys dk ?kko] eokn dh FkkSfy;ks lfgr xnZu ds lkeus ,ao nkfgus rjQ lhus vkSj isV es nksuks rjQ iwjh ihB es nkW;s rjQ nkfgus ckg es dU/ks ls ysdj vaxqfy;ksa rd pkjks rjQ rFkk nkfguh tkW?k ds mijh Hkkx es lkeus dh rjQ ekStwn gSA ,UVh lsIVhd dzhe ?kko ij tgkW ogkW ekStwn **

e`R;q dk dkj.k lsIVhlsfed 'kkd gS tks e`R;q iwoZ tyus dh pksVksa }kjk tfur gSA **

15. In his cross-examination he has stated that on the body of the deceased, there was no injuries found excepting burn injuries and has stated that hairs were not burnt and private parts were burnt. He stated that as the hair were not burnt, hence it appears that the deceased was burnt while Kerosene oil was thrown on her and if the deceased would have burnt herself, then her hair would have been definitely burnt.

16. P.W.7 Nayab Tehsildar Kanhaiya Lal deposed before the trial court that on 12.6.2010 he was posted there and recorded the dying-declaration of the deceased at Fatima Hospital, Mau where she was admitted. She was in a fit state of mind and was able to give statement for which a certificate was also issued by Dr. Shoori who has also deposed about her mental state the said certificate was given by him. He has further proved the dying-declaration as Ext. Ka-11. He in his cross-examination has stated that he has recorded the dying-declaration of the deceased under the orders of the City Magistrate and prior to it, he has also recorded the other dying-declarations also. He further stated that he did not recorded the dying-declaration in question-answer form as there was no format prescribed under law and if the person given the dying-declaration is in a fit state of mind, hence in such a situation, his dying-declaration is recorded as stated by him and there is no need for recording in question-answer form. At the time of recording the dying-declaration, the doctor was present and no one else was there. The dying-declaration was recorded on 12.6.2010. As the right hand of deceased was burnt, hence she signed the dying-declaration by her left hand.

17. The trial court after placing reliance upon the dying-declaration of the deceased and other evidences on record convicted and sentenced the accused-appellant under Section 302 IPC for imprisonment for life and further a fine of Rs.3,000/- has been imposed upon the appellant and in default of payment of fine, one year additional rigorous imprisonment by the impugned judgment and order. Aggrieved by the same, the instant appeal has been filed before this Court by the appellant.

18. Heard Sri Namit Srivastava, learned counsel for the appellant and Sri Ashish Pandey, learned AGA for the State. Perused the impugned judgment and order as well as record of the trial court.

19. It has been argued by learned counsel for the appellant that the FIR of the incident has been lodged after a great delay though incident had taken place on 24.5.2010 and the FIR was lodged on 8.6.2010, deceased was admitted in the hospital on 24.5.2010 at 10 a.m. The informant P.W.1 had arrived in the Fatima hospital on 2.6.2010 and met the deceased who told him about incident but the FIR was not lodged promptly by him. The husband of the deceased while she was injured was taken to the hospital and admitted there as is apparent from the statement of P.W.5 Dr. A.P. Gupta and further it is clear from the evidence of P.W.1 that when he met the deceased Kanchan Gupta on 2.6.2010, the appellant Sanjay Gupta was present there but his parents were not present. He urged that as per FIR, it is apparent that the deceased who was bolted by the husband from outside after burning by throwing Lantern and on the alarm raised by her, a child of the village had opened the door but the prosecution has not produced the said child nor his identity was disclosed. Moreover, the Pradhan of the village Shah Alam and neighbour Surendra Gupta scolded the accused-appellant Sanjay Gupta and also asked him to take his wife for medical treatment to the hospital. He next submitted that the dying-declaration which is stated to have been recorded by the Nayab Tehsildar Kanhaiya Lal does not inspire confidence as it has not been recorded in accordance with law. Moreover the deceased was burnt while cooking food and her Sari caught fire and was admitted in the hospital by her husband Sanjay Gupta and the appellant before going to jail had handed over all the ornaments of his wife to P.W.1 Prahlad Gupta which were used by him for the medical treatment of the deceased on the instructions of the parents of the appellant which shows that the accused-appellant is innocent and the trial court relying upon the dying-declaration of the deceased has convicted the accused-appellant and sentenced to life imprisonment which is unworthy to be relied upon. He further submitted that even if the prosecution case is taken to its own face value, it is a case of sudden provocation and in heat of passion the accused-appellant who was cutting the hair of his minor son himself when was asked by his wife to take him to barber for hair cut, he became annoyed, had thrown the burning lantern on his wife on account of which she burnt. She received 53% of burn injuries and on 2.7.2010 while she was being medically treated in the hospital, died and her postmortem was conducted on 3.7.2010. As per postmortem report, cause of death is septicemia as a result of burn injuries which she has received earlier. The case falls under Exception4 of Section 300 IPC and the appellant at the most can be convicted under Section 304 IPC. The appellant has already served out six years and ten months in jail, hence the conviction u/s 302 IPC is liable to be set-aside by this Court. Learned counsel for the appellant in support of his contention has placed reliance on the judgment of Apex Court passed in the case of K. Ravi Kumar Vs. State of Karnataka reported in 2014 LawSuit (SC) 999 and also in the case of Sayaji Hanmat Bankar Vs. State of Maharashtra reported in 2011 (5) Supreme 90.

20. Per-contra learned AGA has opposed the contention of learned counsel for the accused-appellant and submitted that the deceased suffered burn injuries at the hands of her husband who is accused-appellant Sanjay Gupta who as per the evidence on record and dying-declaration of the deceased recorded by the Nayab Tehsildar shows that a lamp was thrown on the deceased due to which Kerosene oil spread and thereafter a burning match stick was thrown by her husband Sanjay Gupta when she had questioned the accused-appellant as to why he himself was cutting the hair of his two years old son and not by the Barber. Thereafter the accused-appellant Sanjay Gupta bolted the door of the house and went away leaving his wife in burning condition which show the cruel act of the accused-appellant. Moreover the accused-appellant who was an unemployed person, had earlier used to abuse and mal treat his wife, assaulted her and thrown hot oil as is evident from the dying-declaration of the deceased. The accused-appellant on being scolded by the Pradhan of the village Shah Alam and neighbour Surendra Gupta, took the deceased in an injured condition to Fatima Hospital, Mau and admitted her where she struggled for life and died on 2.7.2010 because of the injuries sustained in the incident dated 24.5.2010. The dying-declaration of the deceased recorded by the Nayab Tehsildar Kanhaiya Lal in the presence of the doctor is sufficient enough for the conviction of the accused-appellant as has been ordered by the trial court as there appears to be no reason to discard the same as it has been recorded by the Nayab Tehsildar in the presence of the doctor who has given a fitness certificate of the deceased for recording the said dying-declaration. The argument of learned counsel for the accused-appellant that the case falls under Exception 4 of Section 300 IPC and it is a case of sudden provocation and the appellant is liable to be convicted under Section 304 IPC in place of Section 302 IPC has no force as firstly the conduct of the accused-appellant as has been narrated in the dying-declaration of the deceased narrates his atrocities towards his wife as she was annoyed on account of the fact that accused-appellant did not do any work to earn livelihood for his family, secondly the accused-appellant has suggested P.W.1 and P.W.2 who are maternal uncles of the deceased and P.W.3 I.O in cross-examination that in a rage of anger, the deceased herself poured Kerosene and ablazed her and lastly in his statement under Section 313 Cr.P.C. the accused has stated that the deceased caught an accidental fire by Hearth (Chulha) at the time of cooking food when he had gone to market at 9 a.m. which shows the self contradictory stands taken by the accused-appellant in his defence, hence the trial court has rightly convicted the accused-appellant under Section 302 IPC. The appeal is devoid of merit and is liable to be dismissed. The case law cited by learned counsel for the appellant is distinguishable from the facts and circumstances of the present case.

21. We have come over the thoughtful consideration to the argument of learned counsel for the parties. It is an admitted fact that the wife of the appellant had received 53% burn injuries on her person which appears from the medical examination report. The dying-declaration of the deceased was recorded by the Nayab Tehsildar Kanhaiya Lal (P.W.7) in the presence of the doctor who gave fitness certificate which shows the narration of the incident wherein it has been stated by the deceased that she only questioned her husband that as to why he himself was cutting the hair of his two year old son and not take him to the Barber for hair cutting on which the accused-appellant became annoyed and thrown the lantern filled with Kerosene Oil and also sprinkled Kerosene Oil on her and set her ablazed by lighting the match stick. Thereafter the appellant left his wife in the house by bolting the door from outside. On the scream made by the wife, one child of the village had opened the door and the Pradhan of the village Shah Alam and neighbour Surendra Gupta reached there and saw her burning and scolded to appellant and also instructed him to take her for medical treatment then the wife of the appellant was admitted in Fatima Hospital, Mau on 24.5.2010 at 10 p.m. where she was struggling for life.

22. It appears from the medical examination report of the injured Smt. Kanchan Gupta that she received 53% burn injuries who was treated by the doctor and an information was sent to P.W.1 Prahlad Gupta who is her maternal uncle arrived there from Mumbai on receiving the said information and met the deceased in the Fatima Hospital, Mau on 2.6.2010. After coming to know about the incident, he lodged FIR against the accused-appellant on 8.6.2010 for offence under Section 326, 504 IPC at the concerned police station on which the investigation of the case was carried out and the statement of the victim was recorded u/s 161 Cr.P.C by P.W.3 Suresh Chandra Yadav the Investigating Officer who also prepared the site plan etc. The argument of learned counsel for the accused-appellant that though the P.W.1 Prahlad Gupta had reached the hospital on 2.6.2010 and came to know about the incident and then too he lodged the FIR on 8.6.2010 after a considerable delay, has hardly of substance as the informant himself was residing at Mumbai and had come to Fatima Hospital on 2.6.2010 along with his brother and he after occurred from the deceased lodged the FIR. Thereafter the delay, if any, in lodging the FIR that may not be fatal to the prosecution case. The finding given by the trial court rejecting the argument of learned counsel for the appellant regarding delay in lodging the FIR appears to be the correct one.

23. Moreover, the argument of learned counsel for the appellant that the deceased Smt. Kanchan Gupta while injured was taken to Fatima Hospital and her ornaments were also given by the appellant to P.W.1 Prahlad Gupta for medical treatment shows his good conduct also does not find force as the deceased has stated in the dying-declaration that earlier also the appellant was treating the deceased in a cruel manner and used to assault her. Earlier to the present incident also the appellant has thrown hot oil on her. The appellant was unemployed person and was doing nothing due to which there was hardship in his family. It appears that due to frustration the accused-appellant again repeated such act of burning the deceased who questioned him on a trivial issue. The act and conduct of the appellant shows that after the incident, he had bolted the door from outside the house so that his wife may not be saved but as a child opened the door and she somehow saved and admitted in the hospital on the instructions given by his neighbours.

24. The dying-declaration of the deceased which was recorded by the Nayab Tehsildar, P.W.7 in the presence of the doctor shows that she was in a fit state of mind to give the statement and there is no reason to discard the same. The trial court believing the same has convicted and sentenced the appellant, has committed no illegality.

25. The argument of learned counsel for the parties that it is a case of sudden provocation and in heat of passion, the appellant had thrown the lantern filled with Kerosene Oil on her and thereafter set-her ablazed by lightning the match stick, the case would fall under Exception 4 of Section 300 IPC and the appellant be convicted under Section 304 IPC and not under Section 302 IPC, is also not acceptable as the appellant has not left any stone unturned which shows his intention to kill his wife and after she received 53% burn injuries, she died on 2.7.2010 on account of septicemia as a result of injuries sustained by her in the incident. Moreover the suggestion given by the accused-appellant to P.W.1, P.W.2 and P.W.3 Investigating Officer in cross-examination that the deceased herself poured Kerosene oil and set herself on fire is self contradictory to his statement under Section 313 Cr.P.C where he has stated that he had gone to market at 9 am. and when he came to know about the incident, he came back and deceased on asking told that while cooking food, she got burnt from the Hearth (Chulha) which shows his false explanation given for the death of deceased. Thus the finding of conviction recorded by the trial court and sentencing him u/s 302 IPC for life imprisonment with fine is based on cogent evidence and sound reasons, hence need no interference by this Court.

26. The appeal of the appellant lacks merit and is, accordingly, dismissed.

27. The appellant is in jail and he shall serve out the sentence awarded to him by the trial court.

28. The Registrar General of the Court is directed to send the certified copy of the judgment to the trial court concerned for necessary information and follow-up action.

	(Harsh Kumar, J.)                        (Ramesh Sinha, J.)
 
Dt.29.05.2017.
 
Gaurav