Yameen vs State Of U.P.
2021 Latest Caselaw 3223 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Reserved on 19.2.2021
 
Delivered on 09.03.2021
 
In chamber
 

 
Case :- CRIMINAL APPEAL No. - 3452 of 2019
 
Appellant :- Yameen
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sunil Kumar
 
Counsel for Respondent :- G. A.
 

 
Hon'ble Subhash Chand,J.

1. The instant Criminal Appeal has been preferred on behalf of the appellant-convict Yameen against the judgment dated 10.04.2019 passed by the Additional Sessions Judge/Fast Track Court-3, Bulandshahar in Sessions Trial No. 767 of 2015 (State of U.P Vs. Yamin and others) arising out of Case Crime No. 452 of 2015, under Section 304B, 498A, 316 I.P.C and Section 4 of D.P. Act, P.S. Kotwali Dehat, District Bulandshahar whereby the accused Yunus and Smt. Jubaida were acquitted from the charge levelled against them and held appellant Yameen guilty for the offence under Section 304B, 498A and 316 of I.P.C and Section 4 of D.P. Act and was punished for the offence under Section 304B of I.P.C with rigorous imprisonment of 10 years, for the offence under Section 498A was punished imprisonment of 2 years and fine of Rs. 5000/-, in default of payment of fine an additional imprisonment of 3 months was to be under gone, for the offence under Section 316 of I.P.C was punished with rigorous imprisonment of 10 years and fine of Rs. 7000/-, in default of payment of fine an additional imprisonment of 6 months was to be under gone, for the offence under Section 4 of D.P Act was punished with imprisonment of 1 year and fine of Rs. 5000/-, in default payment of fine an additional imprisonment of 1 month to be under gone. All the sentence were directed to run concurrently.

2. The brief facts giving rise to this criminal appeal are that the informant Mohd. Javed moved a written information with the police station concerned with these allegations that his sister Razina was married with Yameen on 19.03.2011. The in-laws of his sister were not satisfied with the dowry given at the time of marriage and an additional demand of one Scorpio car and Rs. 1 lakhs in cash was made and for non fulfillment of the same, his sister was subjected to physical and mental cruelty. On 11.10.2013, on the ground of the additional demand of dowry his sister was bitterly beaten, F.I.R of the same was lodged with the police station concerned by his brother Mohd. Sazid which was register as case crime no. 92 of 2013. In that case a compromise was arrived at between both the parties and it was settled that his sister would be taken to in-laws house from the parental house and accused persons will not repeat their alleged demand of dowry. The sister of informant was residing at her parental house since 09.06.2015 and she was sent to her in-laws house on 11.06.2015. On 12.06.2015 at 5 'O' clock the sister of informant was dragged by the accused persons- husband Yameen, mother-in-law Smt. Jubaida, three sister-in-laws namely Nazma, Asma and Reshma, father-in-law Yunus, devar Yaseen and Faizan, after having poured kerosene oil over the body of his sister set her ablaze. His sister was burnt 80% and with the fear of her parents she was rushed to Adbulla hospital of Bulandshahar, from there she was referred to Green hospital in Meerut. His sister was also pregnant and 5 months child was in her womb that also died in the womb. The informant was busy in the treatment of his sister, therefore, could not lodge the F.I.R and the same was lodged on 18.06.2015 but no case was registered. Thereafter, an application was moved to the Senior Superintendent of Police, Bulandshahar on which by the order of S.S.P, Bulandshahar case crime no. 452 of 2015 was registered under Sections 498A, 307, 316 of I.P.C and 3/4 of D.P. Act against the accused Yameen, Smt. Jubaida, Yunus, Nazma, Asma, Reshma, Yaseen and Faizan. During treatment the sister of informant died on 15.07.2015 in Ram Manohar Lohiya hospital New Delhi where she had been referred earlier. An application in this regard was moved by informant Javed to the Station Officer of Kotwali Dehat.

3. The Investigating Officer after having concluded the investigation filed charge-sheet before the court of Magistrate concerned against the accused Yameen, Smt. Jubaida and Yunus under Section 498A, 316, 304B of I.P.C and 3/4 of D.P.Act and remaining accused were exonerated. The C.J.M, Bulandshahar took cognizance on the charge-sheet and committed the case to the court of Sessions for trial.

4. The trial court took cognizance on the charge-sheet and summoned the accused persons and the charge was framed against them under Sections 498A, 304B and 316 of I.P.C and Section 3/4 of D.P. Act and the alternate charge under Sections 302 read with 34 of I.P.C was also framed. All the accused persons denied the charge and claimed for trial.

5. On behalf of prosecution to prove the charge against the accused persons in documentary evidence, adduced the written information Exhibit Ka-1, application in regard to information of death of Razina during treatment, Exhibit Ka-2 and Exhibit Ka-3 death report issued by Executive Magistrate, Exhibit Ka-4, statement of brother of deceased Javed, Exhibit Ka-5, letter to the Head of Department of F.M.T.L.H.M college, New Delhi for postmortem of deceased, Exhibit Ka-6, death summary of Razina, Exhibit Ka-7, death report legal information to be added to death register, Exhibit Ka-8, chick F.I.R, Exhibit Ka-9, G.D entry in regard to registration of case crime no. 452 of 2015, Exhibit Ka-10, dying declaration of deceased Razina recorded by Nayab Tehsildar Dev Raj Singh, Exhibit Ka-11, charge-sheet, Exhibit Ka-12, postmortem report of deceased, Exhibit Ka-13, statement of Razina under Section 161 Cr.P.C recorded by female constable 767 Sheetal, Exhibit Ka-14, site plan of place of occurrence Exhibit Ka-15.

In oral evidence, examined P.W.1-Javed, P.W.2-Smt. Raheesa, P.W.3-Mohd. Sazid, P.W.4-Executive Magistrate Manoj Kumar, P.W.5-Dr. Shyam Gupta, P.W.6-S.I Charan Singh, P.W.7-Naib Tehsildar Dev Raj Singh, P.W.8-Abhishek Yadav, S.S.P (I.O), P.W.9-Dr. Rishabh Kumar, P.W.10- Constable 767 Sheetal, P.W.11-S.I Sunil Kumar.

6. The statement of accused persons under section 313 Cr.P.C., were recorded. All the accused persons denied the incriminating circumstances in the evidence against them and accused Yameen stated that death of Razina was accidental because the dibiya of kerosene oil had fell down on her whereby she caught fire and the efforts were made to extinguish the fire, she was also rushed to the hospital for immediate treatment. No demand of alleged dowry was ever made. Moreover accused Smt. Jubaida and Yunus in their statement stated that they resided separately from their son Yameen and no alleged demand of dowry was ever made by them.

7. On behalf of accused persons in defence evidence, examined D.W.1-Rakesh and D.W.2-Naushad.

8. The learned trial court after hearing the contentions of the learned counsel for the parties passed the impugned judgment dated 10.04.2019 whereby the accused Yunus and and Smt. Jubaida were acquitted from the charge levelled against them while the accused Yameen was convicted for the offence under Sections 304B, 498A, 316 of I.P.C and Section 4 of D.P. Act and was punished as stated above.

9. Aggrieved from the impugned judgment 10.04.2019, this criminal appeal has been preferred on behalf of the appellant Yameen on the grounds that the impugned judgment is based on perverse and illegal finding. There are material contradictions in the oral testimony of prosecution witnesses in contrast to the documentary evidence available on record. The F.IR of this case was lodged belated of which there is no explanation. Out of 11 witnesses examined on behalf of prosecution P.W.-1, Javed, P.W.-2, Smt. Raheesa, P.W-3, Sazid are the witnesses of the fact and they have not supported the prosecution version. P.W-7, Dev Raj Singh, Naib Tehsildar has not proved the dying declaration recorded by him likewise P.W-10, constable 767 Sheetal has not proved the statement of deceased under Section 161 Cr.P.C. That statement does not contain thumb impression or signature of the deceased as such the same can not be read as dying declaration of the deceased under Section 32 of the Evidence Act. The defence witness D.W-1, Rakesh and D.W-2, Naushad have proved that deceased died due to accidental burn injuries. The dying declaration recorded by P.W-7 and P.W-10 are contradictory to each other and does not inspire the confidence of the court.

10. I have heard submissions made by Shri Sunil Kumar, learned counsel for the appellant and also learned A.G.A. for the State, and perused the materials brought on record.

11. On behalf of prosecution to prove the charge against the accused persons in ocular evidence examined P.W.1-Javed, P.W.2- Raheesa and P.W.3-Mohd. Sazid.

12. P.W.1-Javed in his examination-in-chief supports the contents of the written information and it also verified that the written information was given by him with his signature and during treatment his sister died. He gave the information of the same Exhibit Ka-2 with the police station concerned.

In cross-examination by the defence this witness says that his sister was never subjected to physical or mental cruelty by her husband or any member of in-laws house for non fulfillment of additional demand of dowry. He got the information in regard to burning of his sister from some neighbour of his brother-in-law (bahnoi). Accordingly, he reached to Abdulla hospital, Bulandshahar to see his sister, she was admitted by the in-laws of his sister to the Green hospital, Meerut. His sister did not tell him that she was set ablaze by any inmate of in-laws house. The occurrence took place in her in-laws house, he was not present there. From Green hospital, Meerut his sister was also referred to Delhi hospital where she underwent treatment and during treatment his sister died. He lodged the F.I.R at the behest of his family and persons of the village.

During trial this witness was declared hostile. In cross-examination by prosecution, this witness had stated that the statement which he has given on 15.01.2016 in his examination-in-chief and the statement which he has given today on 09.02.2016 both are correct.

13. P.W.-3, Smt. Raheesa, mother of the deceased in her statement says that her daughter Razina never made complaint in regard to demand of the alleged dowry from her, she was never subjected to cruelty for the alleged demand of dowry and she caught fire as the kerosene oil dibiya fell upon the gas oven. Her daughter was not set ablaze by any persons of in-laws house after having poured kerosene oil on her. This witness was also declared hostile. In cross-examination, this witness denied the statement under Section 161 Cr.P.C which was given to the Investigating Officer.

14. P.W.-3, Mohd. Sazid in his examination-in-chief says that deceased was never subjected to cruelty by any members of in-laws for the alleged demand of dowry and she caught fire due to falling of the kerosene oil dibiya on the gas oven. This witness was also declared hostile as she had denied her own statement under Section 161 Cr.P.C.

15. On behalf of prosecution in regard to prove the cause of death of deceased has examined P.W.4-Manoj Kumar, Executive Magistrate. This witness says that on 15.07.2015 he received a call from police outpost of Ram Manohar Lohiya hospital, Delhi to conduct the inquest and postmortem of a female who had died during treatment. Accordingly, he reached to the mortuary and in his presence the inquest report was prepared by S.I Devendra Kumar on his direction and same was also signed by him. He also recorded the statement at 12:15 p.m of P.W.-1, Javed, brother of the deceased. This witness had also signed over his own statement and verified his statement, which was marked as Exhibit Ka-5. From the perusal of the in this inquest report Exhibit Ka-3 and postmortem report Exhibit Ka-4 the cause of death is shown as burn injuries.

16. On behalf of prosecution P.W-10, constable 767 Sheetal in her statement says that on 02.07.2015 she was deployed as female constable with the Police Station Kotwali Dehat, Bulandshahar. She recorded the statement of injured Razina on that day.

17. P.W-11, S.I. Sunil Kumar, the first Investigating Officer in his statement says that on 02.07.2015 female constable 767 Sheetal interrogated injured Razina and videography of her statement was also made. The statement of injured under Section 161 Cr.P.C was perused by him and entry of the same was also made in the G.D.

This witness in his cross-examination also says that while the female constable recorded the statement of injured, he was very much present there, he also made queries in between, he has videography and voice recording of injured.

18. On behalf of prosecution in medical evidence examined P.W-5, Dr. Shyam Gupta and P.W-9, Dr. Rishabh Kumar.

P.W-5, Dr. Shyam Gupta in his statement says that he was Senior resident in Delhi hospital. Injured Razina was admitted on 15.06.2015 at 3 'O' clock of day time and it was told that she was set ablaze by her in-laws. During treatment of 15 days her condition was deteriorated and on 15.07.2015 at 7:30 a.m Razina died during treatment. Her death summary was prepared by him, her death report was also prepared by him which is Exhibit Ka-8, she was 70% burnt.

P.W-9, Dr. Rishabh Kumar proved the postmortem report of deceased Razina Exhibit Ka-13 and says that Razina was 80% superficial to deep thermal burn. Cause of death was due to septicemia shock and thermal burn infection.

19. Section 304B of I.P.C reads as under:-

"304B. Dowry death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation.-For the purpose of this sub-section, "dowry' shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

20. The Hon'ble Apex Court in Pawan Kumar Vs. State of Haryana (1998) 3 SCC 309 (para 6), Kansraj Vs. State of Punjab (2005) SCC 207 (para 9), Heera Lal Vs. State (Govt. of NCT of Delhi) (2003) 8 SCC 80 (para 8), Bakshish Ram Vs. State of Punjab (2013) 4 SCC 131 (para 14) had indicated the following ingredients of Section 304B of I.P.C:-

(a) that the married women had died otherwise than under normal circumstances;

(b) such death was within seven years of marriage;

(c) the prosecution has established that there was cruelty or harassment by her husband or near relative of her husband in connection with demand of dowry soon before death.

21. The Hon'ble Apex Court in Suresh Kumar Vs. State of Haryana (2013) 16 SCC 553 pargraph 27 held:

"In death occurrence otherwise 'than under normal circumstances', can be homicidal, suicidal or accidental."

The Hon'ble Apex Court in State of Andhra Pradesh Vs. Raj Gopal Asawa, AIR 2004 SCW 1566 held:

" definition of dowry is not restricted to agreement or demand for payment of dowry before or at the time of marriage; but also includes demand subsequent to marriage."

The Hon'ble Apex Court in Ashok Kumar Vs. State of Haryana, AIR 2010 2839 SC held:

"husband or relative will be deemed to have committed offence under Section 304B of I.P.C if ingredients of the offence have been satisfied by deemed fiction of law."

The Hon'ble Apex Court in Sher Singh @ Pratap Vs. State of Haryana, AIR 2015 SC 980 held:

"word soon before death is not to be interpreted in terms of days or months or years. But necessarily indicating domain of dowry should not be stale, it should be continuing cause of death under Section 304B of I.P.C or under Section 306 I.P.C."

The Hon'ble Apex Court in Satbir Singh Vs. State of Punjab, AIR 2001 SC 2828 held:

"There should be nexus between the death of wife and dowry related harassment inflicted on her. If the interval elapsed is wide, court would guage the immediate cause of her death."

22. In the case in hand, so far as the date of marriage of Razina with Yameen is concerned, same is admittedly 19.03.2011. So far as the demand of the dowry and for non fulfillment of the same, harassment or cruelty is concerned P.W-2, Raheesa, mother of deceased, P.W-3, Mohd. Sazid, brother of deceased both have turned hostile during trial and have not supported the prosecution version.

23. So far as the testimony of P.W-1, Javed who is informant and brother of deceased is concerned, he in his examination-in-chief proved the written information Exhibit Ka-1 and also the application in regard to the death of his sister Exhibit Ka-2. This witness in examination-in-chief also proved the contents of prosecution story as narrated in the written information. This statement of P.W.1-Javed was recorded on 15.01.2016. On 09.02.2016, P.W.1-Javed was cross-examined. In cross-examination by defence P.W.1-Javed gave the statement against the prosecution and therefore, was declared hostile by the trial court. On the very day on behalf of prosecution, cross-examination of P.W.1-Javed was done and he admitted that the statement given by him on 15.01.2016 and today i.e on 09.02.2016, both are correct. Again this witness was cross-examined by prosecution on 03.11.2018 and this witness stated that the statement given by him on 09.02.2016 was true.

The testimony of P.W.1-Javed can not be discarded in toto. The testimony of this witness will be relied by the court because this witness has stated on 09.02.2016 that the statement given by him on 15.01.2016 and 09.02.2016 are correct. The whole prosecution case has been deposed by this witness in his examination-in-chief.

His testimony becomes tainted, therefore, it requires corroboration.

24. The statement of P.W.1-Javed was also recorded by P.W-5, Manoj Kumar, Executive Magistrate which is Exhibit Ka-5. This statement is signed by Javed and also by P.W-5, Manoj Kumar, Executive Magistrate. This statement has been proved by P.W-5, Manoj Kumar, Executive Magistrate and in this statement it is stated that demand of Rs. 1 lakh was made by brother-in-law (jija) and for non fulfillment of the same his sister was beaten. Earlier the settlement was also arrived at in presence of persons of the village and F.I.R was also lodged for the same at that time, and therefore, this act of burning the in-laws of his sister are responsible.

Although P.W.1-Javed has been examined on behalf of prosecution and during examination P.W-1, Javed was not examined in regard to this statement Exhibit Ka-5 since this statement was signed by P.W.1-Javed himself, which was marked as Exhibit Ka-5 and has been proved by P.W.5-Manoj Kumar, Executive Magistrate therefore, the testimony of P.W.5-Manoj Kumar, Executive Magistrate also corroborates this fact that the demand of Rs. 1 lakh in additional dowry was made by husband of the deceased and for non fulfillment of the same she was subject to cruelty. Earlier from the occurrence of burning one more incidence took place in regard to the same F.I.R was also lodged and a settlement was also arrived at between the parties in presence of persons of village.

25. On behalf of prosecution there is dying declaration of deceased. The first dying declaration is dated 13.06.2015 which is Exhibit Ka-11, this dying declaration has been proved by P.W-7, Dev Raj Singh, Naib Tehsildar. This witness recorded the dying declaration of injured Razina on the telephonic directiion of District Magistrate, Meerut.

26. The learned counsel of appellant contended that only the execution of the dying declaration Exhibit Ka-11 was proved by this witness P.W.7-Dev Raj Singh, Naib Tehsildar but the contents of the same cannot be read in evidence because the same were not deposed by this witness.

This contention of learned counsel for the appellant is not sustainable because P.W.7-Dev Raj Singh, Naib Tehsildar has specifically deposed that the dying declaration of injured Razina was recorded by him while she was in fit state of mind. Dr. Mumtaz Ahmad also certified her mental fitness at 12:35 a.m on 13.06.2015, thereafter, at 12:40 a.m. he recorded the statement of injured Razina, whatever Razina told him same was recorded by him and this dying declaration is in his hand writing and signed by him and by Dr.Mumtaz Ahmad and R.T.I of the injured Razina was also verified by this witness. As such there was no need to depose the contents of dying declaration by P.W.7-Dev Raj Singh, Naib Tehsildar. It is also noteworthy here that P.W.7-Dev Raj Singh Naib Tehsildar was examined during trial, no cross-examination was made on behalf of the defence counsel in regard to the veracity of contents of the dying declaration.

The Hon'ble Apex Court in Rajendra Prasad Vs. Darshan Devi Uchattam Nyaylaya Nirnaya Saar 2001 at 501 held:

"If the opposite party says that statement of any witness to be false, his duty is to cross-examine the witness on that point; otherwise the statement of witness shall be accepted."

27. From the perusal of this dying declaration, it is found that the injured Razina (now deceased) has assigned the role of pouring kerosene oil and litting fire to her husband Yameen and also stated that her husband made demand of Rs. 1 lakh in dowry from her, which could not be fulfilled by her father, consequently at 5 'O' clock of evening her husband poured kerosene oil over her body and lit fire.

28. Second dying declaration on which prosecution has relied is the statement of Razina recorded under Section 161 Cr.P.C on 02.07.2015 by P.W.10-constable 767 Sheetal, this witness says that she recorded the statement of Razina on the direction of Darogaji on 02.07.2015. In this statement injured Razina stated that mother-in-law and three sister-in-laws caught hold of her, father-in-law, brother-in-laws and husband poured kerosene oil over her body and her husband lit fire with a match and it is also stated that demand of Rs. 1 lakh was made from her, she was sent to her parental house and thereafter on 11.06.2015 she was brought to her in-laws house and on 12.06.2015 for non fulfillment of demand of Rs. 1 lakh and Scorpio car, she was burned. This statement has been proved by P.W.10-female constable 767 Sheetal. Certainly on this statement there is no signature or thumb impression of Smt. Razina.

This very statement was recorded by P.W-10, constable 767 Sheetal on direction of the Investigating Officer and contents of the same were entered in the G.D by the Investigating Officer. This fact has been proved on behalf of prosecution by the witness P.W-11, S.I. Sunil Kumar, Investigating Officer. This witness has deposed that on 02.07.2015 the statement of victim Razina was recorded by P.W.10-constable 767 Sheetal in his presence videography of the same was prepared. After perusal of the contents of this statement under Section 161 Cr.P.C same was entered by him in the G.D. This witness also said that videography and voice recording of the victim were in his custody. As such, getting no signature or thumb impression of the victim on this statement can not be said to be fatal as the statement of victim was recorded under Section 161 Cr.P.C and same need not be signed by the witness in view of the Section 162 Cr.P.C.

The Hon'ble Apex Court in Mukeshbhai Gopalbhai Barot Vs. State of Gujrat, A.I.R 2010 SC 3692 held:

"the statement of a persons recorded under Section 161 Cr.P.C would be treated as dying declaration after his death."

29. The learned counsel for the appellant also submitted that these two dying declarations are contradictory to each other and same cannot be relied upon. This contention of learned counsel for the appellant is not sustainable because if there are two contradictory dying declarations the dying declaration which is corroborated by other evidence can be relied upon.

The Hon'ble Apex Court in Lakhan Vs. State of M.P (2010) 3 SCC Criminal 942 held:

"two contradictory dying declaration, the ascertainment of the reliable dying declaration can be made which one of the dying declaration is corroborated by other evidence to greater extent. Conviction can be confirmed on the same."

The Hon'ble Apex Court also in Mohanlal and others Vs. State of Haryana (2007) 9 SCC 151 held:

"where there are more than one statement in nature of dying declaration, the one first in point must be preferred. Of course if there are several dying declaration the dying declaration which is trustworthy and reliable has to be accepted."

30. Therefore, the first dying declaration which was recorded by P.W-7, Dev Raj Singh, Naib Tehsildar on 13.06.2015 on the very next day of occurrence is found to be more trustworthy and reliable and same is also corroborated with the second dying declaration, which is in the form of statement of injured Razina under Section 161 Cr.P.C and same was recorded by P.W-10, constable 767 Sheetal in presence of Investigating Officer P.W-11, Sunil Kumar and entry of the same was also made in the C.D, which corroborates with the first dying declaration, same is not contradictory. There is no discrepancy on the material point so as to ascertain the role of committing dowry death by the husband of the victim.

31. Therefore, in view of the evidence on record, the ingredients of Section 304B of I.P.C are fulfilled as the death of deceased also took place within seven years of marriage and death of deceased was not in normal circumstances rather it was homicidal, thermal burn and there is also evidence in regard to demand of Rs. 1 lakh and Scorpio car by the husband of deceased and also the evidence that for non fulfillment of the same she was subjected to cruelty. This harassment and cruelty indicate that demand of dowry is found to be continuous soon before the death, as is evident from the evidence adduced by the prosecution. As such the offence under Section 304B of I.P.C is proved beyond reasonable doubt by the prosecution.

32. Now the burden of proof shifts upon the accused. Section 113B of the Evidence Act reads as under:

"113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."

33. The Hon'ble Apex Court in Suresh Vs. State of Haryana (2013) 16 SCC 553 in paragraph 13 held:

"that the presumption under Section 113B of Evidence Act is the presumption of the law which is mandatory. Once the ingredients of Section 304B of I.P.C is made out the accused is deemed to have committed the dowry death of the women. The accused is entitled to rebutt the statutory presumption."

The Punjab and Haryana High Court in Bhateri Devi Vs. State of Haryana, 2011 Criminal Law Journal 463 (P&H) held:

"husband is the beneficiary in case of dowry demand hence he is liable to dowry death and to give the explanation as to how the death has occurred."

34. On behalf of accused to rebut this statutory presumption has been taken in statement under Section 313 Cr.P.C that the dibiya of kerosene oil fell upon Razina and as a result of that she caught fire and it was an accidental. Same kind of the suggestion were given by defence counsel to the prosecution witnesses. More-over, in defence evidence D.W-1, Rakesh and D.W-2, Naushad were examined. Both the witnesses have stated that the dibiya of kerosene oil fell on the gas oven as a result of which Razina caught fire. Both the witnesses in their cross-examination says that when Razina caught fire they were not present at the place of occurrence, they did not see the occurrence from their own eyes. Therefore, the testimony of these witnesses is not admissible in evidence, as such, accused has also failed to rebut this legal presumption.

35. In view of the over all assessment and re-appreciation of the evidence on record, it is established that the prosecution had proved its case beyond all reasonable doubts. The impugned judgment of conviction and sentence passed by the court below does not bear any infirmity and needs no interference. Accordingly, criminal appeal deserves to be dismissed.

36. Accordingly, Criminal Appeal is dismissed. Judgment dated 10.04.2019 passed by the Additional Sessions Judge/Fast Track Court-3, Bulandshahar in Sessions Trial No. 767 of 2015 (State of U.P Vs. Yameen and others) is hereby affirmed. The appellant is in jail. He is directed to serve out the remaining sentence as has been awarded by the trial court.

37. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.

(Subhash Chand, J.)

Dated: 09.03.2021

PS