Shiv Bux & Others vs State Of U.P.,
2017 Latest Caselaw 4749 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                       		AFR			   
 
Reserved On :  4.8.2017                 
 
Delivered on :  21.9.2017                
 
Court No. - 28
 

 
Case :- CRIMINAL APPEAL No. - 1216 of 2011
 

 
Appellant :- Shiv Bux & Others
 
Respondent :- State Of U.P.,
 
Counsel for Appellant :- R.N.S. Chauhan
 
Counsel for Respondent :- G.A., U.C. Yadav
 

 
Hon'ble Mrs. Rekha Dikshit,J.

1. This appeal assails the correctness of the judgment and order dated 12.7.2011 passed by Additional Sessions Judge, Court no. 2, Unnao, in State of U.P. vs. Shiv Bux & others. The Additional Sessions Judge has convicted the appellants-accused Shiv Bux and Smt. Sundara under Section 306 IPC and sentenced them to undergo four years rigorous imprisonment with fine of Rs. 2000/- each, in default six months additional imprisonment to each of the accused respectively and appellant-accused Suryapal @ Nanhku for six years rigorous imprisonment with fine of Rs. 4000/-, in default one year additional imprisonment respectively.

2. Narrated concisely, prosecution case against the appellants is that the daughter of complainant Smt. Kushma was married to accused Surya Pal @ Nanhku around 10 years back and had three children out of the wedlock. On the occasion of Rakshabandhan deceased visited her parental house and narrated the cruelty and harassment by her husband, Jeth Raghuraj Pal, Shiv Bux and mother-in-law Sundara towards her. The deceased did not want to return to her in-laws house but the complainant somehow cajoled her and sent her back. On 19.9.2007 he was informed that his daughter Kushma has committed suicide by burning herself alive.

3. The informant Nihal lodged F.I.R. on 19.9.2007 registered as Crime No. 1045/2007 under Section 306 I.P.C. against the accused-appellants. The dead body of the deceased Kushma was sent for postmortem where she was examined by Dr. G.P. Bajpai (P.W. 4) Exhibit Ka-2 is postmortem report. The case was investigated by R.B. Sharma and consequently charge-sheet Exhibit Ka-3 was submitted after completing the investigation. The charge was framed against all the accused under section 306 I.P.C. on 31.5.2008 by the trial court.

4. To bring home the guilt of the appellants, the prosecution has examined six witnesses which are as follows :

(1) P.W. 1 Nihal is the informant of the case and father of the deceased who has categorically supported the prosecution version and the report lodged by him alleging that his daughter Smt. Kushma died due to harassment and cruelty, mental and physical by the accused respondents during her wedlock of 10 years and stay in the house of in-laws. He has also stated that all the family members were living in a joint family and his daughter was over-burdened with the household work as such she wanted a separate living but the accused constantly harassed her on account of household work and trivial issues. He has also proved the written report Exhibit Ka-1.

(2) P.W. 2 Umesh Kumar Pal, brother of the deceased has also supported the prosecution story as well as the statement of P.W. 1 regarding cruelty and harassment of the deceased in his oral testimony. He has categorically stated that his sister used to get fed up with the household work and the accused-respondents used to even assault her on account of the said work.

(3) P.W. 3 Smt. Prayag Dei, mother of the deceased has also supported the prosecution story in her testimony and deposed that she used to cajole her daughter to adjust with her in-laws for the sake of her children.

(4) P.W. 4 Dr. G.P. Bajpai has proved Postmortem Report, Exhibit Ka-2 in his testimony and has stated that the entire body of the deceased was burnt and she died due to shock and the injuries caused by burning.

(5) P.W. 5 Awadhesh Kumar Tripathi, Head Constable has proved lodging of chik F.I.R., Exhibit Ka-3 and copy of G.D. Exhibit Ka-4.

(6) P.W. 6 S.I. Raj Bahadur Sharma is the investigating officer of the present case who conducted the investigation and proved inquest report Exhibit Ka-5, site plan Exhibit Ka-6, recovery memo Exhibit Ka-7 and charge sheet (Exhibit Ka-3) in his testimony. He has also proved relevant documents pertaining to the investigation Exhibit Ka-8, Exhibit Ka-9, Exhibit Ka-10 & Exhibit Ka-11 in his deposition.

5. Incriminating evidence and circumstances were put to the appellants under section 313 Cr.P.C. who admitted marriage with the deceased but denied rest of the facts and claimed false implication. They have further stated that the deceased wanted a separate living but accused Surya Pal was not in a position to leave his old parents. On account of this, the deceased committed suicide. In defence the accused have adduced D.W. 1 Shiv Nath, D.W. 2 Suresh and D.W. 3 Ori Lal as defence witnesses. No other documentary evidence has been adduced in defence.

6. The trial court held that the appellants committed the said incident and the prosecution established the circumstance proving their guilt under Section 306 IPC and sentenced Shiv Bux & Smt. Sundara to undergo four years rigorous imprisonment with fine of Rs. 2000/- each, in default six months additional imprisonment to each of the accused respectively and appellant-accused Suryapal @ Nanhku for six years rigorous imprisonment with fine of Rs. 4000/-, in default one year additional imprisonment.

7. Heard Sri R.N.S. Chauhan, learned counsel for the appellant and Sri U.C. Yadav learned AGA for the State and perused the record.

8. Learned counsel for the appellants submitted that the defence witnesses adduced during the trial had categorically stated that the deceased was a smart lady and wanted a separate living. On account of this she herself committed suicide. It is noticeable that the marriage is 10 years old and the deceased had three children out of the wedlock. There is no evidence of abetment by the appellants. Admittedly the living of the deceased at her in-laws place was a joint family and she was over-burdened with the household work but no one harassed her or abeted her to commit suicide that too after a span of 10 years.

9. It has further been argued that the door of the room where the deceased burnt herself was found closed from inside by the investigating officer which indicates no active role in the death of the deceased by the appellants. The witnesses of fact are the family members of the deceased as such their evidence cannot be said to be wholly trustworthy and reliable. No independent witness to support the prosecution story has been produced during the trial.

10. Per contra, learned counsel for the State contended that the prosecution has established the guilt of the appellants in the commission of crime in this case. The F.I.R. version has fully been supported by the medical and ocular evidence, based on the said evidence the trial court rightly convicted the appellants and the impugned judgment warrants no interference.

11. I have considered the rival contentions and perused the impugned judgment and order of trial court and material on record.

12. In the present case the witnesses of fact P.W. 1, P.W. 2 and P.W. 3 have narrated the same story deposing that the deceased was married to accused Surya Pal ten years back and she continuously complained of ill-treatment and harassment by her husband and his family members on trivial issues. She wanted a separate living but her husband was not prepared for the same. It has also been stated by all the three witnesses that the accused-appellants even used to assault her physically on account of which she was upset, resulting in suicide by her. There is no reason to disbelieve the witnesses of fact as no material contradiction or serious discrepancy has been pointed out by the appellants. Though all these witnesses are interested witnesses but on account of only this point their testimony cannot be dismissed outrightly. The corroboration of the prosecution story and inter se by all the witnesses do establish death of the deceased due to abetment by the appellants.

13. The prosecution case being established to the extent aforementioned it is for the accused to establish the fact as to why the deceased committed suicide in their own house. Admittedly the deceased committed suicide in the house of her in-laws and the facts pertaining to her death were best known to her husband and his family members as such as per the provisions of section 106 of the Evidence Act it is for them to establish whether the suicide was on her own account or due to their abetment. The circumstances due to which the deceased committed suicide have to be assessed and it is for the appellants to prove their innocence as such. Admittedly the deceased was having three children out of the wedlock of ten years then the question is what were the compelling circumstances in which she burnt herself alive.

14. The accused-appellants have merely taken a defence that the deceased wanted separate living in Lucknow which her husband could not fulfill as such she committed suicide on her own but such explanation does not appear to be plausible after ten years of marriage. Had it been a recent marriage then it could have been tenable but after a span of ten years it is of no avail. The witnesses adduced in defence have not given any cogent testimony regarding the suicide of the deceased on her own account, their evidence pertains to the fact that the deceased wanted separate living because the burden of household work of the whole joint family was entirely on the deceased but this does not go to the extent of explaining the reason behind the suicide of the deceased.

The accused-appellants have not discharged their burden as per provision of section 106 of Evidence Act which runs as follows :

"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."

15. Accordingly, in view of the prosecution evidence and its case established by the testimony of witnesses of fact that the accused-appellants have not discharged their burden as legally required. In the circumstance there can be no other inference regarding the guilt of the appellants but the one held by the trial court.

16. Thus, I am of the opinion that the trial court rightly held appellants guilty of offence under Section 306 I.P.C. and convicted the appellants-accused Shiv Bux & Smt. Sundara and sentenced them to undergo four years rigorous imprisonment with fine of Rs. 2000/- each, in default six months additional imprisonment to each of the accused respectively and appellant-accused Suryapal @ Nanhku for six years rigorous imprisonment with fine of Rs. 4000/-, in default one year additional imprisonment.

17. For all the reasons stated above I find no reason to interfere with the order of Additional Sessions Judge and dislodge the same, therefore, this appeal is liable to be dismissed and is accordingly dismissed.

18. The appellants are on bail. Their bail stands hereby canceled. Consequently, it is directed that the accused-appellants be taken into custody forthwith to serve out the remainder of their sentence.

19. Senior Registrar is directed to ensure the compliance by forwarding the copy of the judgment to the District Judge, Unnao.

20. Let a copy of the judgment along with the lower court record be sent to the learned Sessions Judge concerned for its onward transmission to the court concerned for information and further action in the matter.

Order Date :- 21.9.2017

Om.

( Rekha Dikshit, J.)