Ashwani vs State
2017 Latest Caselaw 6731 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on 16.09.2017.
 
Judgment delivered on 13.11.2017.
 

 
A.F.R.
 
Court No. - 49 
 

 
Case :- JAIL APPEAL No. - 8285 of 2008 
 

 
Appellant :- Ashwani 
 
Respondent :- State 
 
Counsel for Appellant :- From Jail,Radhey Shyam Yadav A/C 
 
Counsel for Respondent :- A.G.A. 
 

 
Hon'ble Mrs. Vijay Lakshmi,J. 

Hon'ble Ifaqat Ali Khan,J.

(Delivered by Hon'ble Ifaqat Ali Khan, J.)

1. We have heard Sri Radhey Shyam Yadav (amicus curiea) learned counsel for appellant and Sri Syd Ali Murtuza, learned A.G.A.

2. This appeal is filed by convict appellant Ashwani Kumar through Senior Supretendent Jail against the judgment dated 15.03.2002 passed by Additional Sessions Judge Court No. 6, Meerut in S.T. No.1476 of 1997 State vs. Ashwani Kumar under Section 302, IPC, Police Station - Nauchandi, District - Meerut. By impugned judgment, Lower Court has convicted appellant Ashwani Kumar under section 302 IPC and is sentensed with the life imprisonment with the fine of Rs. 5,000/-. It was also ordered that in case convict does not pay the amount of fine then he will under go the Additional imprisonment for six months.

3. Facts giving rise to this appeal are that the complainant Paras lodged the written complaint at Police Station Nauchandi, Meerut on 03.08.1997 at 02:15 am with the allegations that on 02.08.1997 at about 11.00 pm he alongwith his mother and brother-in-law Rajkumar went to the house of Smt. Bilas and saw that his brother-in-law Ashwani Kumar set his sister on fire with the intention to kill her after pouring the kerosine on her. They saved Bilas and admitted her in the hospital they caught hold of his brother-in-law Ashwani Kumar on the spot.

4. On the basis of this written complaint of Paras FIR was lodged and the case was registered at the police station. During the treatment Smt. Bilas died on 08.08.1997 in the medical college Meerut at about 11:35pm. Investigating Officer prepared the site plan and recorded the statement of witnesses and after completing the investigation, filed the chargesheet against Ashwani Kumar under section 302 IPC.

5. Charge under section 302 IPC was framed against accused Ashwani Kumar by Session Court he denied it and demanded trial. To prove its case, Prosecution examined seven witnesses in all, viz. PW1 Paras Kumar, PW2 Rajkumar and PW3 Dr. N. K. Sharma, PW4 Arvind Singh Hayanki, PW5 Swaraj Singh, PW6 R.B. Dixit S.I., PW7 Rais Ul hasan Zafari, S.I. And PW8 Dr. Ramesh Chandra Awasthi.

6. The statement of accused under section 313 Cr.P.C. was recorded. Accused denied the version of prosecution and stated that kerosine lamp was lighting at about 11:30pm. All of sudden he heard the cry of Smt.Bilas and he saved Smt. Bilas. Bilas was not much burned. He alongwith his landlord took Bilas to the hospital. Due to enimity he is falsely implicated in this case. After marriage his wife and the his-in-laws were pressurising him to reside with them and due to this enimity he is falsely implicated in this case.

7. Accused examined DW1 Vijay Kumar in his defence.

8. PW1 Paras is the complainant, brother of deceased Bilas as well as the eye witness of the occurance. In his statement he has stated that on 02.08.1997 at about 11:00pm he alongwith his mother and brother-in-law Rajkumar (Bahnoi) went to the house of accused Ashwani Kumar to give the prasad of Shivratri. When they knocked the door of Ashwani Kumar, it was not oppened then they peeped from the window and saw that accused Ashwani Kumar is setting his sister on fire after pouring the kerosine on her. His sister also raised alarm then landlord of the house also reached there then Ashwani Kumar tried to run away but he was caught hold on the spot by them. This witness has proved the written report. After eight days Bilas expired. Inquest report was prepared and this witness also proved the inquest report.

9. PW2 Rajkumar who is the husband of the sister of accused Ashwani Kumar's wife is also examined by the prosecution as eye witness. He has also supported the prosecution version and stated that at about 11:00 PM he alongwith Paras and his mother-in-law Shravarna Rani saw the accused Ashwani Kumar pouring kerosine on Bilas and setting her on fire.

10. PW3 Dr. N. K. Sharma prepared the injury report of Smt. Bilas on 03.08.1997 at 02.50am. In his statement, he said that there were wounds of burning on the neck, face, on both side of chest, stomach and thigh of Bilas and the smell of kerosine was also present on the body of Smt. Bilas. This witness proved the injury report Exhibit Ka 5. PW3 stated that there is the probability of inflecting these injuries on the body of Smt. Bilas on 02.08.1997 at about 11:00 pm 65 percent body of Smt. Bilas was burned. This witness also stated that Smt. Bilas told her that her husband has set her on fire after pouring the kerosine on her.

11. PW4 Arvind Singh Hayanki the City Magistrate recorded the dying decleration statement of Smt. Bilas on 03.08.1997 at 04:00am.

12. PW5 Swaraj Singh has written the Check Report on the basis of written complaint. He proved Check Report Ka 8.

13. PW6 R. B. Dixit prepared the inquest report of Smt. Bilas and he proved the inquest report.

14. PW7 Rais Ul-hasan Zafari is the Investigating Officer and he prepared the site plan Ka-4 and recorded the statement of the witnesses. He recovered the container of the kerosine and burnt salwar suit of Smt. Bilas and the matchbox and matchstick. This witness proved the recovery memo Exhibit Ka-3 and Ka-4. After conducting the investigation, he filed the chargesheet and proved the chargesheet Exhibit Ka 15 in his statement.

15. PW8 Sri Ramesh Chandra Awasthi prepared the Post mortem Examination Report of Smt. Bilas on 09.08.1997 at P. L. Sharma hospital. He proved that during examination he found the wounds of burning on the face, neck, abdomin, back, chest and thighs. In his opinion the cause of death was septicemia due to burning. He proved the post mortem report Exhibit Ka-16. Statement of accused under section 313 was recorded.

16. In the defence accused examined DW-1 Vijay Kumar, who is the resident of the house of Pushpa which is in front of the house of Virendra in which Ashwani Kumar was a tenant. This witness stated that on 02.08.1997 the house of Ashwani Kumar caught fire. Ashwani Kumar came out of the house and raised alarm of "Bachao Bachao" . He alongwith Ashwani Kumar put out fire of Smt. Bilas. Ashwani Kumar did not set Smt. Bilas on fire. Ashwani Kumar also sustained the burn injury in his hand in rescuing Bilas.

17. Learned counsel for the appellant argued that presence of prosecution witness P.W.1 Paras and P.W.2 Rajkumar at 11:00 pm at the residence of accused Ashwani Kumar is highly improbable, which creates doubt on the prosecution case. We disagree with this argument of the learned counsel for the appellant because the presence of PW1 Paras and PW2 Rajkumar is not improbable at the time of occurance because they are not stranger, PW1 Paras is the brother-in-law (Sala) of accused Ashwani Kumar and PW2 Raj Kumar is the husband of the sister of accused Ashwani Kumar's wife. PW1 in his cross examination clarified it that he is resident of Punshil colony and his elder brother-in-law PW2 Rajkumar resides in Nehru Nagar. There is only the distance of two lane between his house and the hourse of P.W.2 Rajkumar. Accused Ashwani Kumar and PW2 Raj Kumar resides in the same lane. The house of Rajkumar is near about only 22 to 25 yards away from the house of Ashwani Kumar. Paras in his statement also stated that on 02.08.1997 at 11:00 pm he alongwith his mother Swarna and elder brother-in-law Rajkumar went to the house of Ashwani Kumar to give Prasad of Shivratri. Both witnesses PW1 Paras and PW2 are closely related to the accused Ashwani Kumar and residents of the same locality. Under such circumstances, it is highly probable that at 11:00 am they went to the house of Ashwani Kumar to give Prasad of Shivratri on 02.08.1997 and saw the occurance.

18. The next argument advanced by the learned counsel for the appellant is that PW-1 Paras and PW-2 Rajkumar are also closely related to the deceased Smt. Bilas, therefore, their testimony is not credible. We do not agree with this argument of the learned counsel for the appellant because being closely related to each other or closely related to the deceased does not make the statement of the witness in-credible as Hon'ble Supreme Court in the ruling Prasad Mohoto vs. State of Bihar 1994 SCC Criminla Page 55 has held that the son of deceased would not let real assailent escape and substitute him by innocent person. Hon'ble Supreme Court believed the testimony of the son. In another case Surendra Singh and another vs. State of U.P. 2004 SCC (CRI) page 717, Hon'ble Supreme Court has held that the relationship of witness is not a factor to effect the credibility of the witness. These both rulling applies to the facts of this case.

19. Learned couonsel for the appellant argued that as per prosecution case, the landlord Virendra also reached at the time of occurance but he is not examined by the prosecution who was the independent witness. This creates doubt on the prosecution case. We also do not agree with this argument of the learned counsel for the appellant bacause it is not necessary to examine all the witnesses of fact. Hon'ble Supreme Court in the ruling of Amar Singh vs. Balvindar Singh SCC 2003 (46) page 619 has held that the examination of all the witnesses of the fact is not necessary. No particular number of witnesses require for proving any fact. In another ruling Ram Kumar vs. State of Hariyana 1997 SCC (CRI) page 1087 Hon'ble Supreme Court has held that where statements of several persons was recorded by I.O but only the father and borther of deceased are produced as prosecution witness, non examination of other witnesses of fact is not fatal. Hon'ble Supreme Court in the ruling of Surendra Singh vs. State of U.P. 2004 SCC (CRI) page 717 has held that relationship of the witnesses is not a factor to effect the credibility of the witness. These rulings applies on the fact of this case.

20. Learned counsel for the appellant further argued that PW-4 Arvind Singh Hayanki in his statement has admitted that he recorded the dying decleration statement of Smt. Bilas on 03.08.1997 at 04.30 am and he sent this statement of Bilas on 07.08.1997 to the Court of CJM Meerut. Thus keeping of this dying decleration statement in the custody for the four days by PW-4 City Magistrate Arvind Kumar Hayanki makes the dying decleration doubtful. This argument of learned counsel for the appellant is not tenable on two points. Firstly PW4 is not an interested person. He is a government officer and he is an independent person and he has no enimity with the accused. If due to busyness and carelessness he could not sent the dying decleration statement of Smt. Bilas immediately to the Court of CJM does not make the Dying Decleration doubtful. Secondly this dying decleration bears the certificate of doctor in his hand writing and it also bear the signature of the doctor. He is also an independent person.

21. Learnd counsel for the appellant also argued that Smt. Bilas died of septicemia and not because of the burning. This argument of learned counsel for the appellant carries no weight as in the post mortem report that cause of death is specifically mentioned by the doctor "septicimia due to burning."

22. Learned counsel for the appellant further argued that in the inquest report, it is not mentioned that Smt. Bilas was set on fire by her husband. This argument is also not tenable because it is not necessary to mention in the inquest report that who set Smt. Bilas on fire.

23. Learned counsel for the appellant further argued that in the dying decleration Smt. Bilas has stated that "jkr esa FkIiM+ ekjdj mUgksaus eq>ij feV~Vh dk rsy Mky fn;k vkSj dgk fd esa frYyh Mkydj tk jgk gWw rqe ty tkuk''. This statement of Smt. Bilas shows that Ashwani Kumar did not set Smt. Bilas on fire, he has simply thrown the matchstick on Smt. Bilas. This argument of learned counsel for the appellant does not help the accused / appellant because the statement of any witness is to be read as a whole and a part of statement cannot be taken into consideration excluding other parts of the statement. In the dying decleration itself in the three line below Smt. Bilas has stated ''mlds }kjk Mkys x;s frYyh ls esjs diM+s esa vkx yx xbZ eSaus vius ifr dks idM+us dh dksf'k'k dh vkSj 'kksj epk;k''. Thus if we read the dying decleration statement of Smt. Bilas as a whole then it reveals that she has stated in her dying decleration statement that her husband set her on fire.

24. Learned counsel for the appellant argued that in the dying decleration Smt. Bilas has stated that '' jkr esa FkIiM+ ekjdj mUgksaus eq>ij feV~Vh dk rsy Mky fn;k vkSj dgk fd esa frYyh Mkydj tk jgk gWw rqe ty tkuk vkSj ;g dgdj og lkbfdy ysdj pyk x;k''. This statement of Smt. Bilas in his dying decleration statement falsifies this version of the prosecution that accused was caught hold on the spot by the complainant and his companions was produced at the police station at the time of lodging of the FIR. On the other hand, this statement of deceased supports the version of the accused that he tried to save Smt. Bilas and took her to the hospital. This argument of learned counsel for the appellant is against the evidence available on the record. Firstly as stated earlier no statement cannot be read in part. Smt. Bilas in her statement has also said that matchstick thrown by her husband set her on fire, she tried to caught her husband and raised alarm. Thus, this statement of Smt. Bilas makes it clear that at the time of occurance accused Ashwani Kumar was present on the spot and this statement of Smt. Bilas is in the corroboration of the statement of PW-1 that after setting Bilas on fire when Ashwani Kumar tried to run away then they caught hold of Ashwani Kumar. The fact that accused Ashwani was caught hold by the witnesses PW-1 and PW-2 on the spot and took her to the police station is also supported by the FIR which is prompt and also by the GD, in which it is mentioned that at the time of lodging of the FIR accused Ashwani Kumar was brought to the police station by the complainant.

25. Accused in his statement under section 313 has stated that he tried to put off the fire of Smt. Bilas and in its consequence he got the burned injuries on his hand. DW-1 has also in his statement said that Ashwani Kumar tried to put off the fire of Bilas and in this course he got burned injuries on his hand but this fact is not corroborated by any medical evidence as there is no injury report on the record to show that the accused Ashwani Kumar has sustained any kind of injuries on his hand.

26. DW-1, who is not the family member of accused or complainant, in his statement has no where said that he entered in that room where Smt. Bilas was set on fire thus the statement of DW-1 is not reliable to establish that Ashwani Kumar did not set Smt. Bilas on fire and Ashwani Kumar tried to put off the fire of Smt. Bilas.

27. This shows that accused Ashwani Kumar and DW-1 are telling lie that Ashwani Kumar tried to put off fire of Smt. Bilas and Ashwani Kumar did not burn Bilas by pouring kerosine on her and litting the fire.

28. Ashwani Kumar in his statement under section 313 Cr.P.C. said that he took Smt. Bilas to the hospital and on the basis of this statement of accused under section 313 Cr.P.C. learned counsel for the appellant argued that this version of the prosecution is false that accused Ashwani Kumar was arrested on the spot . This fact and argument are against documentary evidence available on the file because in the injury report of Smt. Bilas prepared by Dr. N. K. Sharma on 03.08.1997 at 02:50 am. It is mentioned that Smt. Bilas is brought to the hospital by her mother Swarna Rani and nowhere it is mentioned that Ashwani took Bilas to the hospital.

29. In this case dying decleration statement of Smt. Bilas is recorded twice. Firstly, by Dr. N. K. Sharma when she is brought to the hospital on 03.08.1997 at 02:50 am. While examining her injuries. Smt. Bilas told Dr. N. K. Sharma that she has received burn injuries when her husband sprinkled kerosine on her and lit the fire. PW-3 has recorded this fact in injury report also. PW-3 Dr. N. K. Sharma has also corroborated this fact in his statement. P.W-3 Dr. N. K. Sharma has also stated that when she told her this fact at that time she was conscious.

30. Second time the dying decleration statement of Smt. Bilas is recorded by PW-4 (City Magistrate, Arvind Kumar Hayanki) on 03.08.1997 at about 04:30 A.M. PW4 Arvind Kumar Hayanki has stated that before recording the statement of Smt. Bilas by him, Doctor checked her and told that she is in position to give the statement. He himself confirmed that she is conscious and he also told Smt. Bilas to given statement without any pressure and any fear. Smt. Bilas was mentally fit to give the statement till her statement was completed. In her dying decleration recorded by Sri Arvind Kumar Hayanki, she has stated that her husband ask her to bring money from her parents when she said that she don't have father and her mother works as domestic help, how can she bring the money. On her denial her husband slapped and poured the kerosine on her and by matchstick lit the fire.

31. Dying decleration is very important peace of evidence if it is untutored and independent then it can be the sole base of conviction. Hon'ble Supreme Court in case of Babu vs. State of Maharastra 2007 (1) All India Judicial Interpretation on crime page 7 has held that if dying decleration is found to be reliable then there is no need for corroboration by any witness and conviction can be sustained on its basis alone. In another case Ravi Kumar @ Kutti Ravi vs. State of Tamil Nadu 2006 (55) SCC page 288 the Division Bench of Hon'ble Supreme Court held that doctor certifying that patient was fit in state of mind there is no material to show that dying decleration was result of tutering or prompting and the Court is satisfied that dying decleration was true and voluntary then conviction can base on it without further corroboration.

32. In the ruling Kamalwa and others vs. State of Karnataka (Cr. LJ) 448 and in the ruling Laxman vs. State of Maharastra 2002 (6) SCC 710, Kori Chunni Lal vs. State of Gujrat 1988 (9) SCC 303, Vikas vs. State of Maharastra 2008 (2) SCC 516, Kaushal Rao vs. State of Gujrat AIR 1958 SC Nanapati Shivaji vs. SDO Gungtoor AP AIR 2008 SC 19 Hon'ble Supreme Court has held that when where the deceased was mentally fit at the time of giving her statement and the doctor present at the time of recording the statement of deceased gives the certificate and the statement is voluntary then accused can be convicted on the basis of dying decleration without corroboration.

33. In this case, this is also important that when the occurance took place in the house, the accused was present in the room with his wife Smt. Bilas then under section 106 Cr.P.C. of Indian Evidence Act, this fact was specially in the knowledge of the accused that how Smt. Bilas burned. In such type of cases the burden of prosecution to prove the case becomes lighter then other cases as Hon'ble Supreme Court in Trimukh Bhar Utir Kirlana vs. Maharashtra 2006 (10) SCC 6811 has held.

34. The accused has failed utterly to explain that how Smt. Bilas caught the fire if he has not set Smt. Bilas on fire. He has given the wrong defence that he tried to put off fire of Smt. Bilas and took her to the hospital and he was not caught hold on the spot by the complainant are proved to be false by the documentary evidence as discussed above.

35. In our opinion PW1 Paras and PW2 Rajkumar have fully proved the facts of this case and their statement is reliable. Injury report and Post mortem report also corroborate the version of prosecution that Smt. Bilas sustained the burn injuries by pouring kerosine on her and litting fire by accused.

36. Smt. Bilas in her dying decleration statement before the Dr. N. P. Sharma at the time of preparing the injury report and before the City Magistrate, Arvind Kumar Hayanki has stated that her husband Ashwani Kumar has poured the kerosine on her and lit the fire. At the time of both statement she was fully conscious. Doctor has given the certificate of her mental fitness at the time of recording the dying decleration by PW-4 Mr. Arvind Kumar Hayanki. Occurance took place on 02.08.1997 at about 11:00pm and the FIR is lodged promptly without any delay just after 3 hours 15 minutes of the occurance on 03.08.1997 at 02:15 pm.

37. On the basis of above discussion, we come to this conclusion that prosecution has proved the charge under section 302 IPC against accused Ashwani Kumar beyond doubt and there is no illegality or irregularity in the impugned judgment dated 15.03.2002 passed by Additional Session Judge, Court No. 6 Meerut in S.T. No.1476 of 1997 State vs. Ashwani Kumar under section 302 IPC, police station-Nauchandi, District-Meerut. We are not inclined to interfere in the impugned judgment. It is passed according to the fact and law. We confirm the impugned judgment dated 15.03.2002 passed by Additional Sessions Judge, Court No. 6, Meerut in S.T. No. 1476 of 1997 State Vs. Ashwani Kumar under Section 302 IPC, Police Station-Nauchandi, District Meerut. This appeal is liable to the dismissed.

38. The appeal is dismissed. The learned Amicus Curiae Sri Radhey Shyam Yadav, who has very efficiently assisted this Court, will get Rs. 11,000/- as fee.

Order Date :- 13.11.2017

Swati