Ramu Agrahari And Another vs State Of U.P.
2017 Latest Caselaw 5066 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
RESERVED
 
AFR
 

 
Case :- CRIMINAL REVISION No. - 413 of 2004
 

 
1.  Ramu Agrahari, aged about 27 years son of Shambhoo Nath, resident of Bilwai, Police station Akhand Nagar District Sultanpur.
 

 
2.  Smt. Chintamani Agrahari, aged about 65 years, wife of Shambhoo Nath, resident of Bilwai, Police station Akhand Nagar, District Sultanpur.
 
.............. Revisionists
 

 
Versus
 

 
State of U.P.
 
................... Opposite party
 

 

 
Counsel for Revisionist :- Sunil Kumar Singh
 
Counsel for Opposite Party :- Govt.Advocate
 

 
Hon'ble Anil Kumar Srivastava-II,J.

1. Accused Ramu Agrahari and Smt. Chintamani Agrahari were convicted and sentenced by learned Second Additional Chief Judicial Magistrate, Sultanpur on 02.11.2000 in Case No.2586/2000, arising out of crime no.21/99, Police Station Akhand Nagar, District Sultanpur and was convicted under section 326 IPC and sentenced to five years rigorous imprisonment and fine of Rs.5000/- with default stipulation of six months imprisonment, under section 498 A IPC for one and half year rigorous imprisonment and fine of Rs.1000/- with default stipulation of four months imprisonment and under section 4 D.P. Act sentenced for six months rigorous imprisonment and fine of Rs.2000/- with default stipulation of one month's imprisonment. All the sentences were directed to run concurrently.

2. Criminal Appeal No.56/2000 preferred by the appellants-accused was dismissed by the learned Additional Sessions Judge, Court No.2, Sultanpur on 06.8.2004 and conviction and sentence was upheld.

3. Feeling aggrieved, accused-revisionists have preferred this revision. Pending revision, accused no.2 Smt. Chintamani Agrahari died and her case stands abated.

4. According to the prosecution version, Manju Devi, daughter of Shanti Devi, complainant, was married to accused Ramu Agrahari on 01.5.1996, wherein Rs.2100/- cash and other household articles were given in the marriage. There was a demand of golden ring which could not be fulfilled by the complainant due to his poverty. In the night of 17/18.01.1999, when Manju was sleeping, she was taken to the first floor of the house by the accused along with one Raju. Her mouth was closed by a cloth. A rope was tighten in the neck, kerosene oil was poured upon her and she was put to fire. She got unconscious. In the morning on 18.01.1999 at 05:00 AM when she regained some consciousness and asked her mother-in-law as to how she was burnt, mother-in-law said that Manju was going upstairs with a ''dhibari' which caught fire in her clothes. When the mother of the victim got the information then she came to the in-laws' house of victim on 31.01.1999 and lodged the first information report on 02.02.1999. FIR was registered under section 498-A, 326 IPC and 3 /4 D.P. Act.

5. Victim was medically examined on 03.02.1999 wherein superficial to deep burn involving left side of face, neck, upper chest and breast and a part back of scalp, left axilla and back. Infection and pus was found at places.

6. After investigation, Investigating Officer submitted the charge sheet against the accused under section 498-A, 326 and 3/4 D.P. Act. Accused was charged under section 498-A, 326, 4 D.P. Act. They denied the charges and claimed trial.

7. Prosecution has produced PW-1 Shanti Devi, PW-2 Manju, victim, PW-3 Moti Lal, PW-4 Dr Rajiv Srivastava who has medico-legally examined the victim, PW-5 Constable Radhey Shyam, PW-6 Anugrah Singh Investigating Officer, PW-7 Dr. A.K. Singh who has treated the victim and found injuries as grievous in nature.

8. In the statement under section 313 CrPC accused-revisionist Ramu has stated that the victim was going with the ''dhibari' but sari caught fire. After appreciating the evidence on record, learned trial court has recorded the finding of conviction against the accused.

9. Heard learned counsel for the revisionist, learned A.G.A. and perused the record.

10. Admittedly victim Manju Devi PW-2 is the wife of accused Ramu Agrahari. It is also admitted in the statement of the accused Ramu Agrahari recorded under section 313 CrPC that the victim received burn injuries in the house of accused. A defence was taken that the victim was going with a ''dhibari' in her hand and her 'aanchal' (part of sari) caught fire. Accused did not put her to fire.

11. At the very initial stage both the learned court below have recorded a concurrent finding of fact that the victim was put to fire by pouring kerosene oil upon her by the accused for demand of dowry. It is a concurrent finding. Only the legality of the finding could be looked into in the revision.

12. In State of Rajasthan Vs. Fateharan Mehdu, (2017) 3 SCC 198, Hon'ble the Apex Court has held in para 28 as under :-

"28. It is useful to refer to judgment of this Court in Amit Kapoor and Ramesh Chander (2012) 9 SCC 460 where scope of Section 397 Cr.P.C. has been succinctly considered and explained. Para 12 and 13 are as follows:-

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well - founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.

13. It was held in K. Chinnaswamy Reddy v. State of A.P. AIR 1962 SC 1788 that-

"where the appeal court wrongly ruled out evidence which was admissible, the High Court would be justified in interfering with the order of acquittal in revision, so that the evidence may be reappraised after taking into account the evidence which was wrongly ruled out as inadmissible. But the High Court should confine itself only to the admissibility of the evidence and should not go further and appraise the evidence also....."

14. It was held in Akalu Ahir v. Ramdeo Ram (1973) 2 SCC 583 that "where the material evidence have been overlooked by the trial court or Sessions Court, the High Court in revisional jurisdiction can interfere with the finding of acquittal."

15. Aforesaid views of Hon'ble the Apex Court were reaffirmed in Suryakant Dadasaheb Bitale V. Dilip Bajrang Kale and another (2014)13 SCC 496.

16. Relying upon Duli Chand V. Delhi Admn. (1975) 4 SCC 649, it was held in State of Maharashtra V. Jagmohan Singh Kuldip Singh Anand (2004) 7 SCC 659 that:-

"The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse.

It is necessary to note that in the case of Duli Chand the High Court had reappreciated the whole evidence and confirmed the findings of the two courts below. This Court, therefore, did not interfere with them."

17. Coming to the facts of the case if we go through the evidence on record we found that the first information report was lodged by mother of the victim Shanti Devi. Admittedly, the report was lodged on 02.02.1999 but the delay is duly explained by PW-1 Shanti Devi and PW-2 victim Manju. PW-2 Manju victim has stated that she was tortured for demand of dowry. There was a demand of a gold ring which could not be given in the marriage due to the poverty of her parents. Since the very beginning her husband, mother in law and brother in law (devar) used to torture and beat her to bring the ear ring. She narrated this fact to her mother. On the date of incident she was sleeping on the western Kothari on the ground floor but the accused Ramu alongwith her mother and brother gagged her mouth with cloth, tied a rope in her neck and put her on fire at the first floor in the night. She got unconscious. In the morning she regained consciousness. When she asked her mother in law then she told her that when she was going upstairs with dhibari she caught fire.

18. She was being treated secretly at her in laws house. She asked her husband and mother in law to send her to parental house but they did not hear then she requested one Ram Padarath son of her cousin brother in law who informed the Moti Lal who is the ''phoopha' of accused Ramu then he informed her mother. Thereafter, report was lodged. This delay is duly explained by PW-2 Manju. PW-1 Shanti Devi has also narrated same story. Specific assertion is made that the information was given by Moti Lal to Shanti Devi PW-1. PW-2 has not been examined on this point that Moti Lal has not informed her mother although Moti Lal is produced as PW-3 but he was declared as hostile. PW-3 Moti Lal although declared hostile but has stated that Ram Padarath has informed him about the incident and requested him to inform Shanti Devi. He went to Shanti Devi to inform about the incident. Even in the cross-examination he has admitted that he went to inform Shanti Devi. This fact is duly established by the statement of PW-1 Shanti Devi, PW-2 Manju and PW-3 Moti Lal that after the incident Ram Padarath informed Moti Lal to inform Shanti Devi about the incident then Shanti Devi was informed by Moti Lal. Thereafter, Shanti Devi came to the house of Manju Devi and lodged the FIR, hence, there was no undue delay in lodging the first information report.

19. PW-2 Manju is the victim who has sustained the injuries. PW-4 Dr. Rajiv Srivastava has medically examined the victim on 03.02.1999 at District Hospital Sultanpur wherein he found superficial to deep burn involving left side of face, neck, upper chest and breast and a part back of scalp, left axila and back. Infection and pus present at places. There is evidence of healthy granulation at places also. Duration was more than a week. It was opined that it was a case of infected burn wound. Dr. Srivastava has stated that these injuries could not be caused when ''aanchal' of lady could caught fire by a ''dhibari'. In that event lower part of the body would get more injuries. Statement of PW-2 Manju Devi finds support from the medico legal examination report. It shows that the injuries were caused to the injured Manju Devi by pouring kerosene oil upon her and putting her to fire.

20. PW-1 Shanti Devi has stated that whenever Manju used to come to her house she told her that she was tortured and beaten for demand of a gold ring. This fact is also stated by PW-2 Manju victim herself stated that just after the marriage she was being tortured and beaten for the demand of a gold ring. A concurrent finding of the fact has been recorded by both the courts below holding that the prosecution has successfully established the demand of gold ring as dowry. Accordingly accused were also convicted and sentenced under section 498-A and section 4 Dowry Prohibition Act.

21. Admittedly, victim Manju received the burn injuries in the house of the accused. Section 106 of Indian Evidence Act shifts the burden upon the accused to prove as to how she received the burn injuries.

22. In this background, it is relevant to mention Section 106 of the Indian Evidence Act which reads as under:-

"106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

23. It is held by the Hon'ble Apex Court in Nizam and another vs. State of Rajasthan (2016)1 SCC 550 that:

15. Elaborating the principle of "last seen alive" in State of Rajasthan vs. Kashi Ram (2006)12 SCC 254 this Court held as under: (SCC p. 265, para 23)

23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, an additional link which completes the chain. The Principle has been succinctly stated in Naina Mohmad, AIR 1960 Mad 218."

24. In case Raviralalaxmaiah v. State of Andra Pradesh (2013) 9 Supreme Court Cases 283; It is a settled legal proposition that in a case based on circumstantial evidence, where no eye-witness account is available, the principle is that:

"6......when an incriminating circumstance is put to the accused and the said accused either offers no explanation for the same, or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete."

25. In Trimukh Maroti Kirkan v. State of Maharashtra, (2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80, Hon'ble Apex Court held that:

"22.Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime." (emphasis supplied)

26. It was held by a Division Bench of this Court in Criminal Appeal No.1158 of 2009, Buddhipal Verma vs. State of U.P., decided on 14.7.2016 that :-

"Offence of murder was committed inside the house of the accused. Initial burden to establish the case would undoubtedly be upon the prosecution. In view of section 106 of the Evidence Act there will be a corresponding burden on the accused to give cogent explanation as to how the crime was committed. The accused cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. Prosecution is not expected to prove impossible. What happened actually inside the house of the appellant was best known to him only. On the date of occurrence, only the husband and wife were inside the house and the wife was found dead. It was for the accused to offer an explanation as to how she died. Accused had offered an explanation of committing suicide by the deceased which is absolutely false. Hence, it is a strong circumstance against the accused that he is responsible for the commission of the crime."

27. When prosecution has successfully established that burn injuries were caused in the house of the accused then burden shifts upon the accused to explain those injuries under section 106 Indian Evidence Act which burden could not be discharged by the accused.

28. Having considered the rival submissions and evidence available on record we come to the conclusion that both the learned court below have rightly appreciated the evidence on record and held the accused guilty and convicted and sentenced him accordingly. There is no illegality or irregularity in the impugned judgments of the court below which calls for any interference by this Court. Accordingly, revision is devoid of merit and is dismissed.

29. Accused Ramu Agrahari is on bail. His bail is cancelled. Personal bonds and surety bonds are cancelled. Sureties are discharged. Accused should appear before the learned Magistrate within a period of four weeks from today to serve out the sentence failing which the learned Magistrate should ensure his attendance by issuing appropriate process. Fine should also be deposited within a period of four weeks from today. Compliance report be submitted by the learned Magistrate within a period of eight weeks.

30. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.

Date :- 6.10.2017

mks

(Anil Kumar Srivastava-II, J.)