Gajendra Singh vs State Of U.P.
2023 Latest Caselaw 16239 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:119422-DB
 
AFR					   
 
Reserved on 13.04.2023 
 
Delivered on 23.05.2023
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No.2989 of 2010
 
Appellant :- Gajendra Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- P.K. Singh,Anupam Laloriya
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Umesh Chandra Sharma,J.

(Per : Hon'ble Umesh Chandra Sharma,J.)

1. Heard Sri P.K. Singh, learned counsel for the appellant, Sri Vikas Goswami, learned AGA for the State and perused the record.

2. This appeal has been preferred against the impunged judgment and order dated 11.03.2010 passed by Special Judge (SC/ST Act), Kanpur Nagar, in Sessions Trial No.1210 of 2006 (State Vs. Maya Verma and another) arising out of Case Crime No.226 of 2006, under Sections 302, 506 IPC and Section 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short 'SC/ST Act'), Police Station Barra, District Kanpur Nagar by which the appellant has been convicted and sentenced for life imprisonment under Section 302 IPC alongwith fine of Rs.1,00,000/- and in default of payment of fine to undergo rigorous imprisonment for one year and further to undergo rigorous imprisonment for one year under Section 506 IPC.

3. By the same judgment co-accused Maya Verma was also convicted and sentenced similarly but during her incarceration, she was granted remission by the State Government and was set free. On account of that, the Division Bench disposed of her appeal i.e. Criminal Appeal No.2318 of 2010 (Smt. Maya Verma Vs. State of UP) on 23.03.2023.

4. The appellant-Gajendra Singh has taken ground that the conviction is against the weight of evidence on record; the incident occurred accidentally; proper information was made to the authorities; fire brigade was informed on intervening night of 07/08.01.2006 at 01:15 a.m. and the witness has also stated that in the night hearing the hue and cry, he went to the spot and extinguished fire; the son, daughters and house-holdings were taken out from the house and the place of occurrence, therefore, the appeal be allowed and the impugned judgment be set aside.

5. In brief, facts of the case are that the informant, Kumari Rama Verma, daughter of the deceased Ravindra Kumar Verma, moved a written complaint stating that her father who was posted as Bank Manager at Bank of Baroda, Chaure Bazar, District Faizabad, generally used to come home on Saturday evening and in his absence neighbour Gajendra Singh Chauhan used to often visit her house. In spite being forbidden by her father, her mother used to meet Gajendra Singh. On 07.01.2006 her father came to house, her mother served the dinner all by herself. As soon as her father had the dinner, he fell unconscious. The remaining dinner was consumed by her younger brother who thereafter also fell unconscious. On the same night at around 12:00 p.m. someone knocked the door, her mother opened the door and Gajendra Singh entered in the house. Both of them after conversation and hatching a conspiracy in order to remove the obstacle in their way, put some inflammable substance in the room where her father was sleeping. Everything started burning in the house. Gajendra Singh Chauhan and her mother threatened her that if she tells anyone about this incident, they would also face the same consequence. Her father died on the spot and Gejendra Singh fled away.

6. The informant further stated that she came down after saving the lives of her younger brother and sister. In such a situation, she could not tell the truth to the people. In the morning postmortem of the dead body of her father was conducted. They are three siblings. She is the elder sister. Her younger brother Prashant Verma was aged about 16 years and younger sister Harshita Verma was aged about 14 years. As a result of this her mother married Gajendra Singh Chauhan and they lived together. They have been left helpless for about five months and they often kept wandering here and there. Now her mother's intention is to grab the money and house of her father and attempts were being made to kill them also. Gajendra Singh Chauhan and her mother had conspired and killed her father.

7. On 24.07.2006, the FIR was somehow lodged at Crime No.226 of 2006, under Section 302/506 IPC. The Investigating Officer (IO) started the investigation. The inquest and postmortem reports had already been prepared. The spot map Ex.Ka-9 was prepared later on during the course of investigation on the pointing of the informant. Some documents such as report of fire brigade Department were also collected. Statements of the witnesses of fact and formal witnesses were recorded by the IO. Statements of the accused persons were also recorded and after finding that a case under Section 302/506 IPC has been caused by the appellant, the charge sheet Ex.Ka-10 was submitted on 29.09.2006 against the appellant upon which cognizance was taken on 12.10.2006. Accused were summoned and after framing of charge trial started.

8. On 06.02.2007, charge under Sections 302, 506 IPC and Section 3(2)(v) SC/ST Act was framed by the trial Judge against the accused-appellant which they denied and claimed trial thereafter following witnesses were examined:-

PW-1

Kumari Rama Verma, informant and witness of fact, elder daughter of the deceased and accused Maya Verma, who has proved written complaint Ex.Ka-1.

PW-2

Kumari Harshita @ Hansa Verma, witness of fact, younger daughter of the deceased and accused Maya Verma and younger sister of the informant.

PW-3

Rajendra Kumar - real brother of the accused Maya Verma.

PW-4

Sudhir, cousin brother of the accused Maya Verma (witness of fact).

PW-5

Shivdaras Prasad, Fire Fighting Officer, Mariyampur, Kanpur Nagar who has proved Ex.Ka-2.

PW-6

HC 118, Radhey Shyam Pandey, Police Station Naubasta, Kanpur Nagar who has proved chik FIR Ex.Ka-3 and carbon copy GD Ex.Ka-4.

PW-7

Dr. Santosh Narayan Shukla who has proved the postmortem report Ex.Ka-5.

PW-8

Ramsharan Verma, SI has proved inquest report Ex.Ka-6 and has also proved material Exs.7 to 12.

PW-9

Virendra Singh, SI, the then Constable Clerk, Police Station Barra who has proved information submitted by the accused Maya Verma regarding death of the deceased on account of short circuit which was entered in the GD rapat no.4 at 02:20 a.m. on 08.01.2006 as Ex.Ka-7 and its carbon copy GD as Ex.Ka-8.

PW-10

SSI Bankey Bihari, SHO/IO who has proved map Ex.Ka-9.

PW-11

Om Prakash Singh DSP/CO City, Firozabad, IO of the case who has proved charge sheet Ex.Ka-10 and photographs of the place of occurrence as material Exs.1-6.

9. Following documentary evidences had been relied on by the prosecution:-

Written report

Ex.Ka-1

Report of Fire Fighting Officer

Ex.Ka-2

Chik FIR/FIR

Ex.Ka-3

Carbon copy GD

Ex.Ka-4

Postmortem report

Ex.Ka-5

Panchayatnama

Ex.Ka-6

GD rapat no.4

Ex.Ka-7

Carbon copy GD

Ex.Ka-8

Map

Ex.Ka-9

Charge sheet

Ex.Ka-10

Photographs of place of occurrence

Material Exs.1-6

Clothes and watch of the deceased

Material Exs.7-12

10. Statements of the accused persons were recorded under Section 313 CrPC on 16.09.2008 in which Maya Verma denied the allegations, charge and evidence produced from the side of the prosecution and has stated that the information was given to the police station that due to short circuit her husband had died. The fire was extinguished by the fire brigade. After recovering his daughter and brother false statements have been recorded. Accused Gajendra Singh Chauhan has also denied the allegations, evidence and has said that he helped Maya Devi in learning to drive a car, therefore, he has also been falsely implicated.

11. After hearing the argument, the trial court found that the charges under Sections 302, 506 IPC have been proved beyond reasonable doubt, hence accused-appellant was convicted and sentenced as noted above and was exonerated under the charge of Section 3(2)(v) SC/ST Act.

12. In brief, statements of the witnesses are being reproduced hereinafter.

13. PW-1, Kumari Rama Verma, daughter of the deceased and accused Maya Verma has deposed in favour of the prosecution that during the course of learning to drive the car, her mother and Gajendra Singh came very close and became intimate. Gajendra Singh started visiting her house in absence of her father and illicit relation arose between the two. She herself had seen it 1-2 times and had informed her father upon which her father directed her mother not to meet Gajendra Singh and also restricted entry of Gajendra Singh in the house but Gajendra Singh did not follow the same and visited the house any time in absence of her father, either it is day or night. When she used to come to the house from school, he was found to be inside the house. When her younger brother and sister used to make objection, they were scolded by her mother and the illicit relationship remained intact. Her mother used to meet him in the car.

14. About the main incident PW-1 has deposed that lastly at about 10:30 p.m. on 07.01.2006 (Saturday) her father had come to the house. He took off his pant as he had upset stomach, he kept looking for slippers and when he could not find slippers, he went bearing shoes (in bathroom) and after getting fresh her father sat down for dinner at the dining table. Her mother had served food to her father. She used to cook the food but that day the food was cooked by her mother. After dinner her father fainted, he sat on the floor. For a while mother and father sat with her thereafter she went to another room to study. After studying as soon as she was going to sleep, there was a sound of knocking on the door, she saw that Gajendra Singh had come. He had a white coloured plastic bag in his hand in which some inflammable substance was there and after arrival of Gajendra Singh her mother also talked to him for a while. After that Gajendra Singh threw the inflammable material brought in the box towards her father and threw it from the door towards their (children's) room and her mother lit the fire by match. The fire spread severely to her father's room and in their room also. Due to this fire her father died on the spot. When the fire spread in her room she woke up her younger brother and sister shouting loudly then her mother and Gajendra Singh Chauhan had seen them that they had witnessed them setting fire. Her mother and Gajendra Singh threatened them that if they tell the fact to anyone, all the three of them will be in the same condition as their father. They locked them in the room and threw inflammable material in their room with the intention to burn them to death. After her father's death, mother Maya Verma and Gajendra Singh dragged the dead body together and put it near the TV switch board, her mother took off the shoes from the dead body and threw them away. When he died, accused Gajendra Singh stayed with her mother for a while and then left. On the information of the local people, the fire brigade came and extinguished the fire.

15. Her mother and Gejendra Singh had an illicit relationship and she used to love Gajendra Singh. They were obstacles in their path that is why accused persons killed their father and also tried to kill them.

16. At the end of February, 2006 at 11:30 p.m. she received a call from Gajendra Singh Chauhan that her mother had met with an accident near Gujaini Bridge, you all three should go there, they were alone at home and they suspected that an attempt could be made to kill them that is why they did not go there but called and told Sudhir, their maternal uncle (mama) about the same who went to Gujaini Bridge and found that there was no accident and informed them accordingly. Her father had already died, her hair and her sister's hair were scorched and her feet and clothes were burnt. The witness recognized her signature at the written complaint Ex.Ka-1 and proved it.

17. Regarding delay in lodging the FIR this witness had deposed that they were young, her father had been killed, only mother was their support, if mother is jailed, they would have been helpless but her conscience forced her that the murderers should be punished. About another incident this witness has deposed that before killing her father her mother had locked up Sarvesh Dixit, the tutor who used to come to the house, and got him beaten up by goons, seeing this they were very scared of her mother. There was also fear that they might be killed by her mother somewhere else. When she came to know that her mother had been sent to jail in the case of Sarvesh Dixit, then they overcame their fear and she gave a letter to SSP. The witness has also deposed that her statement was recorded by the IO and CO police. She also recognized the photo relating to the incident.

18. In the cross-examination the witness has remained intact and has also deposed that sometimes there used to be a fight on this point between her parents. Her father used to remain tense. Her mother was an active politician from the Congress party. The maruti car was purchased in December, 2002. She had informed the matter to her maternal uncle and aunt (mausi). She deposed that wherever inflammable material was thrown, it was burnt. Chair, table were burnt. Nothing was visible in her father's room. His room was completely arsoned and the door started burning gradually. Some part of her bed was also burnt. When the fire broke out, first her younger brother and sister were picked up. The room was not burning so much. Accused Gajendra Singh and Maya Verma had threatened that what happened with their father would happen with them too if it is told to the inspector. They did not cry or shout because they were scared. There was fire all over her father's body. There was slight fire in his leg. The whole body was not burnt. The body was scorched and turned black. The pajama was burnt at the bottom. The neighbours extinguished the fire. She had seen her mother and Gajendra Singh setting fire to the house. She could not raise noise while the fire was lit up or the kerosene was thrown as all of this happened suddenly. They (children) had came out after 5-7 minutes of fire, father's screams and shout was not heard. He died in front of them. He was alive for 2-3 minutes. When she came back home, her father's dead body was kept and the policemen were present there. (After the incident, the informant and rest two children were shifted at the neighbour's home).

19. This witness has further deposed in cross-examination that the burnt bed was shown to the CO but he did not take it in his possession. He himself had inspected the rooms. She could not go to save her father in his room because her room had also caught fire. Her father could not scream, even though his body was on fire. Gajendra and Maya Verma were standing at a little distance in the same room 3-4 steps away from her father. Gajendra Singh and her mother dragged him and put near the switch board. According to this witness, after 3-4 months of the death of her father, her mother had withdrawn about one and a half lac rupees (Rs.1,50,000/-) from his fund. She wanted to grab her father's money. She denied that there was any enmity regarding fund money of her father and the house between her mother and her maternal uncle. The witness further deposed that when she came to the house nothing was there, all the household articles were lost.

20. PW-2, Kumari Harshita @ Hansa Verma has given a similar statement to that of PW-1. This witness has also deposed that there were illicit relations between her mother and accused Gajendra Singh which was informed to her father. There is no dissimilarity, contradiction and variation between the evidence of this witness and that of PW-1. This witness has also deposed that her mother and Gajendra Singh were present at the scene of occurrence. In Gajendra's hands there was a white plastic bag containing inflammable material. Since they had seen the incident, hence the accused had threatened them that what happened with their father would happen with them if they tell anyone about the incident. They were very scared because of threats. She admits that her hair and skirt were burnt and her sister's kurta was also burnt. After tendering threat the accused persons had grabbed her father by the hands and put him near the switch board. His father had died on the spot. After the incident, her mother had sent them to the neighbour's house. Her father was killed by her mother for having an illicit relationship with Gajendra Singh in which her father was an obstruction. This witness has also given similar statement regarding call by the accused Gajendra Singh at about 11:30 p.m. at the end of February, 2006 regarding a fake accident of her mother. She has also given similar statement regarding maltreatment with tutor Sarvesh Dixit.

21. PW-3, Rajendra Kumar, maternal uncle, real brother of accused Maya Verma has deposed in support of the prosecution. He has deposed that about 3-4 months before the incident, his brother-in-law, Ravindra Kumar Verma had called him, he reached Kanpur with his elder sister, Vimla. His brother-in-law told him that he was very upset. There is very serious problem as Maya Verma had stolen all the jewelleries and had given all the money to one Gajendra Singh who kept coming to his house from time to time. He has an illicit relationship with Maya. When brother-in-law tried to make her understand, Maya did not realize the same and bent on fighting. He and Vimla also tried to convince her. They came to know that there was a very intimate relationship between the two and she could do anything. Thereafter he heard about the death of his brother-in-law. At that time his nephew and nieces did not tell anything as they were very scared and he brought them Bharatpur and left them back to Kanpur after a few days. After a month and a half Rama Verma called him on the phone, he reached Kanpur. The children were very scared. The police arrested his sister Maya Verma. His nephew and nieces informed that their mother and Gajendra Singh had killed their father by setting him on fire. They were also called at Gujaini Bridge in the night by Gajendra Singh on the pretext of her mother's accident but due to wisdom of Rama Verma they were saved otherwise all the three children would have been killed. He deposed that he was of the considered belief that his brother-in-law was killed by Gajendra and Maya Verma together because of his obstruction in their illicit relationship. Since the nephew and nieces had seen the incident, there was a plan to kill them too. Gajendra and Maya took away all the belongings from his brother-in-law's house and money. This witness has given similar statement even in cross-examination and in favour of the prosecution.

22. Learned AGA argued that this witness is the real brother of the accused Maya Verma and there was no reason to falsely implicate his sister that is why his evidence is quite material which explains as to how and in which circumstances his brother-in-law was killed by his real sister in connivance with her lover Gajendra Singh.

23. PW-4, Sudhir is the cousin of accused Maya Verma. According to him, her children used to call him uncle (mama). After the death of Ravindra Verma he used to come to her house to take care of the children. When he used to visit their house, Maya Verma's children had told him and their real maternal uncle that their father was burnt to death by her mother and Gajendra Chauhan and they also threatened them to kill. On February, 2006 at around 11:30 p.m. Maya Verma's daughter Rama Verma called and told him that Gajendra has called that her mother had met with an accident near Gujaini and they all three had been called there. They were scared to go there. Then he went to their house, the children told him the matter and after hearing, he went to Gujaini Bridge where he came to know that no such accident had taken place there. He called Maya Verma who informed that she was in Priya Nursing Home, when he reached, Maya Verma and Gajendra Singh and 2-3 other persons were there, shops were closed. Seeing him Gajendra and the other persons left the place and he came to the house with Maya from which it became clear that Maya Verma and Gajendra Singh Chauhan were planning to kill the children. After this the children had called their real maternal uncle from Bharatpur and on his arrival they went with him to Bharatpur. This witness has given similar statement in cross-examination.

24. PW-5, Shivdaras Prasad, Fire Fighting Officer has deposed that on 07/08.01.2006 at 01:15 a.m. an information from a wireless set was received that House No.H-1-103, Vishwakarma Bank, Barra has been set on fire. On this information he reached there with his colleagues and found that the fire was burning on the first floor of the said building and the local people were trying to extinguish the fire. They extinguished the fire and went inside the house and found that kitchen was safe and three pet dogs were hidding in the bathroom, they were taken out, in another room a person was sitting cross-legged near the TV and telephone wire had fallen upon him. The window was open. A person was sitting and one side of his body was scorched by fire. That person was Sri Ravindra Kumar aged about 42 years who was declared dead by the police. The police started investigation of the incident questioning land-lady. On questioning about the fire, land-lady could not give a clear and satisfactory answer about the cause of fire. Sonu Dixit and B.K. Tiwari who had already extinguished the fire told that all the three children were put out from the fire through the escape route. On being asked they said that fire spread to both the rooms in no time. The article kept in the room were safe, only the door and bed were burnt. This witness was of the view that the fire did not start due to short circuit rather it was planted by pouring inflammable material that is why he had written other reason as the source of fire in his report that is why he had marked the cause of fire as suspicious. When he was talking to Maya Verma about the fire, her daughter cried and said that "mummy you have killed our father". Then Maya Verma shut her mouth. His report was also counter-signed by CFO and it was submitted to Deputy Inspector General of Police, Fire Services, UP, Lucknow in original and its copies were also sent to the other authorities. The witness has proved his report Ex.Ka-2.

25. In cross-examination also this witness has given intact evidence and has deposed that there was smell of burning in the room, he found it suspicious because the kitchen and cylinder were safe. A live wire had fallen on Ravindra Verma and it was not connected to anything (circuit). There was no blast on the TV screen but it was intact. The wire inside the room was not intact as it was spoiled to some extent due to fire.

26. PW-6, HC 118, Radhey Shyam Pandey has proved chik FIR Ex.Ka-1 and carbon copy GD Ex.Ka-4.

27. PW-7, Dr. Santosh Narayan Shukla who conducted autopsy of the deceased has deposed that the deceased was burnt about 65%. The hair on the head was scorched. There was a line of redness in burnt parts of the dead body. Brain and membranes were congested. The deceased had died due to shock and hemorrhage on account of antemortem burn injuries. According to this witness the death is possible due to fire on the night of 07/08.01.2006 at around 12:00 o'clock and the death has not occurred due to electrocution. It is not possible that the deceased also caught fire due to electrical short circuit. It is not possible to start a fire even with a blast. It was not a suicidal death. The witness denied the suggestion that the deceased's burning was possible from a short circuit.

28. PW-8, SI Ramsaran Verma has proved the inquest. This witness has also proved the material Exs.7-12 which were the clothes and watch of the deceased. This witness denied that the deceased had died due to short circuit.

29. PW-9, SI Virendra Singh, the then Constable Clerk has proved the application Ex.Ka-7 moved by the accused Maya Verma and carbon copy GD Ex.Ka-8.

30. PW-10, SSI Bankey Bihari, IO has deposed that after lodging the FIR, he started investigation. Maya Verma had reported that her husband had died due to electric sparking. He arrested the accused Maya Verma and interrogated her in which she accepted the illicit relation with co-accused Gajendra Singh Chauhan and also accepted that since her husband was an obstacle in their relationship, therefore, they killed him. The witness recorded the statement of the deceased's son Prashant Verma and daughter Kumari Harshita Verma and prepared the map on the pointing of Kumari Rama Verma, recorded the statement of Jitendra and Prem Singh, collected panchayatnama and postmortem report, report of Fire Fighting Officer, arrested Gajendra Singh Chauhan and recorded his statement in District Jail, Kanpur Nagar in which he admitted his illicit relationship with accused Maya Verma and also accepted that he had borrowed Rs.35,000/- from the deceased Ravindra Kumar Verma for her wife's treatment. He also confessed that after making a conspiracy they killed the deceased in a planned way. Since the deceased belonged to scheduled caste, hence adding Section 3(2)(v) of SC/ST Act, the investigation was transferred to CO Police. He admits that he had not recorded the statement of neighbours Jagdish Narayan, Chandra and Virendra Tiwari.

31. PW-11, DSP Om Prakash Singh, the then CO City, Govind Nagar has deposed that when he visited the spot, the children were with his maternal uncle at Bharatpur. Maya Verma was in jail. He recorded the statement of Smt. Guddi and tried to record the statement of other persons but they did not come forward. When Rama Verma appeared with other persons before him he recorded statements of Rama Verma, Rajendra Kumar, Vimla Devi and Prashant Verma. There was no need to sketch and another site plan. After inspection of place of occurrence, the incident was confirmed from the statement of the informant and the photographs attached with CD and it had also been confirmed that the deceased was set ablaze after pouring inflammable material upon him. There was no sign of fire due to short circuit. He recorded statement of Kumari Harshita Verma and Sudhir Kumar, Suresh Chandra, Shyam Chandra, Pappu, Satish and Raghuvir Singh and Fire Fighting Officer-Shivdaras Prasad and the doctor who did the autopsy. On the basis of evidence a commission of offence under Sections 302, 506 IPC and Section 3(2)(v) SC/ST Act was proved against Maya Verma and Gajendra Singh Chauhan, therefore, charge sheet Ex.Ka-10 was submitted accordingly. This witness has also proved photographs material Exs.1 to 6.

32. DW-1 Shivratan neighbour has been examined in defence. He has deposed that at about 11-12 o'clock on the night of 07.06.2006 when he was arriving at his house, he heard a noise, when he reached the house of the deceased, many people had gathered. Everyone was putting out the fire. They went inside the house and took out the children. When he reached the spot Gajendra Singh was not present there. Gajendra Singh had not threatened the children. This witness had denied the illicit relation between Gajendra Singh and Maya Verma and accepted that the house of Gajendra Singh would be 300 yards away from that of Maya Verma. The fire started from the electric short circuit. He did not see the fire. Those who reached earlier were telling. The witness denied that Gajendra Singh and Maya Verma set the house on fire planting inflammable material.

33. After perusal of the oral and documentary evidence adduced on behalf of the prosecution and after hearing the arguments accused-appellant was convicted and sentenced as noted above.

34. The appeal is decided as under:

(I) FIR:

35. Learned counsel for the appellant argued that there is undue delay in lodging the FIR. The incident had occurred on the night of 07.01.2006 and the FIR was lodged on 24.07.2006 for which no explanation has been given.

36. In the facts and circumstances of this case, it cannot be said that there is unreasonable, undue and unexplained delay in lodging the FIR. In this case the informant was a girl of tender age, rest two children i.e. son Prashant and daughter Harshita were minor. The accused persons had threatened to kill them also as their father had been killed. Being scared they were not in a position to lodge the FIR. They were taken to Bharatpur. The children were aware about the killing of their father but they were not in position to approach the police. Later on anyhow the informant moved an application on 29.06.2006 but the FIR could be lodged only on 24.07.2006.

37. He further argued that even when there was no sign of fire on account of electric short circuit and there was no positive report of Fire Fighting Officer in this regard and the whole incident was doubtful, it was duty of the concerned police station to lodge the FIR and proceed to investigate the case.

38. Though the FIR should be lodged at the earliest after the incident but in this case on the above ground it was not possible for the informant to lodge the FIR just after the incident as they were dependent upon her mother.

39. In Chapter XXXVI CrPC limitation for taking cognizance of offences has been enumerated. In cases of Sections 302 and 506 IPC, there is no limitation regarding taking cognizence. Hence, if the proceeding initiated after a lapse of six months, it cannot be said that the present proceeding is barred by limitation. So far as the delay in lodging the FIR is concerned, it has been held by the Apex Court that if causes are not attributable to any effort to concoct a version and the delay is satisfactorily explained by prosecution, no consequence shall be attached to mere delay in lodging FIR and the delay would not adversely affect the case of the prosecution. Delay caused in sending the copy of FIR to Magistrate would also be immaterial if the prosecution has been able to prove its case by its reliable evidence.

40. In Tara Singh and others Vs. State of Punjab, 1991 SCC (Crl) 710 the Apex Court held that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay.

41. In Ravinder Kumar and another Vs. State of Punjab, (2001) 7 SCC 690 it was held that the attack on prosecution cases on the ground of delay in lodging the FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence, a delayed FIR is not illegal. Of course a prompt and immediate lodging of FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.

42. In Amar Singh Vs. Balwinder Singh and others, (2003) 2 SCC 518 the Supreme Court held that there is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR.

43. In Sahebrao and another Vs. State of Maharashtra, (2006) 9 SCC 794 it was held that the delay in lodging the FIR cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory.

44. In Bhookan Vs. State of UP, (2020) 110 ACC 729 it was held that so far as the question of delay in lodging FIR is concerned, it is well settled, if delay in lodging FIR has been explained from the evidence on record, no adverse inference can be drawn against prosecution merely on the ground that the FIR was lodged with delay. There is no hard and fast rule that any length of delay in lodging FIR would automatically render the prosecution case doubtful.

45. In Mukesh Vs. State for NCT of Delhi and others, AIR 2017 SC 2161 (three-Judge Bench) it was held that if causes are not attributable to any effort to concoct a version and the delay is satisfactorily explained by prosecution, no consequence shall be attached to mere delay in lodging the FIR and the delay would not adversely affect the case of the prosecution. Delay caused in sending the copy of FIR to Magistrate would also be immaterial if the prosecution has been able to prove its case by its reliable evidence.

46. On the basis of above discussion and in view of the statement and surrounding circumstances in which the informant could lodge the FIR anyhow, this Court is of the view that though there is delay in lodging the FIR but the delay has been satisfactorily explained, therefore, the argument regarding delay in lodging the FIR from the side of defence is not tenable, hence rejected.

(II) Inqust:

47. Since it was an unnatural death of a young man aged about 42 years, hence after the incident, the inquest proceeding was conducted by the concerned police station which has been proved by PW-8, Ram Charan Verma. This witness has refused that the inquest has wrongly been filled up and it was ante-timed. This witness deposed that prior permission of District Magistrate was necessary in conducting the inquest during the night hours, hence it could not be conducted in the night. In Podda Narayan Vs. State of Andhra Pradesh, (1975) 4 SCC 153 the purpose of inquest report under Section 174(1) CrPC has been discussed. In the said case the Apex Court held that the whole purpose of preparing an inquest report under Section 174(1) CrPC is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating in what manner, or by what weapon or instrument, if any, such woulds appear to have been inflicted. In other words, for the purpose of holding the inquest it is neither necessary nor obligatory on the part of the IO to investigate into or ascertain who were the persons responsible for the death.

48. In George Vs. State of Kerala, AIR 1998 SC 1376 it has been held that the object of the inquest proceedings thereunder is merely to ascertain whether a person died under suspicious cause. According to Supreme Court the question regarding the details how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings. With the above observation Supreme Court held that the High Court was right (in that case) that the ommissions in the inquest report were not sufficient to put the prosecution out of Court.

49. In Brahma Swaroop Vs. State of UP, AIR 2011 SC 280 it was held that the inquest report is not substantive evidence. But it may be utilized for contradicting witnesses of inquest. Any omission to mention crime number, names of accused penal provisions under which offences have been committed are not fatal to prosecution case. Such omission do not lead to inference that FIR is ante-timed and evidence of eye-witnesses cannot be discarded if their names do not figure in inquest report. The whole purpose of preparing an inquest report under Section 174 CrPC is to investigate into and draw up a report of the apparent cause of death, describing such wounds as may be found on the body of the deceased and stating as in what manner or by what weapon or instrument such wounds appear to have been inflicted. For the purpose of holding the inquest it is neither necessary nor obligatory on the part of the IO to investigate into or ascertain who were the persons responsible for the death. the object of the proceedings under Section 174 CrPC is merely to ascertain whether a person died under suspicious circumstances or met with an unnatural death and if so what its apparent cause was. the question regarding the details of how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedigns i.e. the inquest report is not the statement of any person wherein all the names of the persons accused must be mentioned. Omissions in the inquest report are not sufficient to put the prosecution out of court. The basic purpose of holding inquest is to report regarding the apparent cause of death namely whether it is suicidal, homicidal, accidental or by some machinery itc. It is therefore not necessary to enter all the details of the overt acts in the inquest report. Evidence of eye-witnesseses cannot be discarded if their names do not figure in the inquest report prepared at the earliest point of time.

50. In Radha Mohan Singh @ Lal Saheb Vs. State of UP, 2006 (54) ACC 862 (SC) (three-Judge Bench) it was held that the arguments advanced regarding omissions, discrepancies, overwriting, contradiction in inquest report should not be entertained unless attention of author thereof is drawn to the said fact and opportunity is given to him to explain when he is examined as a witness. Necessary contents of an inquest report prepared under Section 174 CrPC and the investigation for that purpose is limited in scope and is confined to ascertainment of apparent cause of death. It is concerned with discovering whether in a given case the death was accidental, suicidal or homicidal or caused by animal, and in what manner or by what weapon or instrument the injuries on the body appear to have been inflicted. Details of overt acts need not be recorded in inquest report. Question regarding details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted or who were the witnesses of the assault is foreign to the ambit and scope of proceedings under Section 174 CrPC. There is no requirement in law to mention details of FIR, names of accused or the names of eye-witnesses or the gist of their statements in inquest report, nor is the said report required to be signed by any eye-witness.

51. On the basis of above, this Court is of the view that there is no discrepancy or ante-timing in preparing the inquest report. It is also noteworthy that except an information prior to the inquest no FIR had been lodged against the appellant and if Maya Verma or the other appellant had any objection regarding the inquest, it ought to have been raised earlier.

(III) Postmortem:

52. Since a report regarding accident and fire due to short circuit had been given by the accused Maya Verma, the inquest and postmortem of the dead body of the deceased was conducted in due course. After postmortem, a report Ex.Ka-5 had been prepared by PW-7, Dr Santosh Narayan Shukla in which he has clearly concluded that there was possibility of death of the deceased at the alleged date and time of occurrence by fire and not by electric short circuit. This witness has clearly deposed that such pattern of fire may occur only due to kerosene oil or any other inflammable material. It is neither possible through suicidal burn nor due to electric short circuit. Thus from the postmortem report and the evidence of this witness it has been established beyond any doubt that the deceased was set ablaze by another person and not by himself or due to electric short circuit.

53. The evidence of medical expert is merely an opinion which lends corroboration to the direct evidence. In Chimanbhai Ukabhai Vs. State of Gujarat, AIR 1983 SC 484 it is was held that ordinarily the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence makes of the medical evidence, is to prove that the injuries could not possibily have been caused in the manner alleged and thereby discredit the eye-witnesses.

54. In antemortem burn injuries with following characteristix are normally found:-

(I) A line of redness involving the whole true skin is formed, around the injured part.

(II) Vesication occurs which contains a serous fluid and has a red inflamed base.

(III) The skin surrounding vesication area is of a bright red of copper colour.

(IV) Reparative process, such as sign of inflammation formation of granulation tissue pus may appear in the burn injury.

(V) Carbon particles are found in respiratory vessel.

(IV) Postmortem repot and its evidentiary value:

55. In State of UP Vs. Mohd. Iqram, (2011) 3 SCC (Cri) 354 it was held that postmortem report is not substantive piece of evidence. Substantive piece of evidence is that statement which is given by witness in court. If the postmortem repot is proved but that does not mean that its each and every content thereof also proved or can be held admissible.

(V) Ocular Evidence Vs. Medical Evidence:

56. Explaining the evidentiary value of ocular evidence the Supreme Court in Ramakant Rai Vs. Madan Ra, 2005 SCCrR 1126 (SC) held that it is trite that where the eye-witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said are the eyes and ears of justice. Hence the importance and primacy of the quallity of the trial process. Eye-witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness box; their power of observation etc. then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.

(VI) Death by burning - Homicidal or accidental or suicidal:

57. In Vijay Pal Vs. State (Government of NCT of Delhi), (2015) 4 SCC 749 superficial to deep burn injury over all the body surface area including scalp was found by the doctor conducting the postmortem of the deceased. Her ten years old daughter stated that when her mother was trying to light the stove, she caught fire. Held that presence of the kerosene oil residues in the scalp hair of the deceased clearly showed that death was not an accidental death, but circumstances reveal that the kerosene oil was poured on the skull of the deceased.

58. In Mallela Shyamsunder Vs. State of Andhra Pradesh, (2015) 2 SCC 115 the accused was charged for murder of his wife by pouring kerosene oil and then burning her. The doctor who attended the deceased stated that the injuries were self inflicted. The husband took the plea of suicidal death by deceased, but that plea was rejected on the following grounds:-

(a) The accused and his wife were living in a small rented accommodation, there was an LPG connection, so there was no need for having kerosene in such quantity as averted by defence.

(b) Antemortem dermo epidermal burns were over lower half of face, neck and then down the body to the legs of the victim. If one is to pour kerosene on oneself, it is normal human conduct to put it over the head and in any case not to pour it on the face sparing the head.

(c) The appellant did not take prompt action to move the deceased to the hospital.

59. In this case there is no variation and dissimilarity between the ocular and medical evidence, the evidence of fire fighting officer and the PM doctor and from the oral evidence of PWs-1 and 2 it has clearly been established that neither the deceased committed suicide nor he died due to electrocution on account of short circuit but he was set ablaze by putting inflammable material on his body. Hence, the PM report is in conformity with the oral evidence and the prosecution case as well.

(VII) Compliance of Section 157 CrPC:

60. In this case no argument has been advanced regarding non-compliance of Section 157 CrPC.

(VIII) Motive:

61. From the evidence of informant PW-1 and witnesses of fact PWs-2, 3 and 4 it has been established beyond reasonable doubt that accused Maya Verma had illicit relation with co-accused Gajendra Singh Chauhan, Maya Verma was forbidden by her deceased husband to meet and have relation with Gajendra Singh Chauhan. Hence, his existence was priking to both the accused persons, therefore, a motive was formed by both of them, mens rea arose in their mind, they both conspired and planned the murder of the deceased and killed him in the manner as noted above. Since it is a case of direct evidence, therefore, there is no need to prove the motive behind the crime but not only the daughters of the accused Maya Verma but also her real brother PW-3 Rajendra Kumar and cousin PW-4 Sudhir have also deposed against her and against the appellant. They both have deposed about the illicit relationship between the appellant and Maya Verma, and PW-3 has also deposed that Maya Verma was not ready to break up the relation with co-accused Gajendra Singh. If the occurrence would have been false, a real brother would not depose against his real sister. In this case from the oral, documentary and medical evidence it has been proved beyond reasonable doubt that the appellant in connivance with Maya Verma killed the deceased to continue their illicit relationship and when the case is proved beyond reasonable doubt especially a case based on oral evidence, the prosecution is not obliged/bound to prove the motive. Even in cases based on circumstantial evidence if chain of the circumstances are not broken, proof of motive is immaterial as held in Saddik @ Gulam Hussein Shaikh and others Vs. State of Gujarat, (2016) 10 SCC 663, Bhim Singh and another Vs. State of Uttarakhand, (2015) 4 SCC 281 (paragraph 21), Dasin Bai @ Shanti Bai Vs. State of Chhattisgarh, 2015 (89) ACC 337 (SC) similar principles have been laid down in Sanjeev Vs. State of Haryana, (2015) 4 SCC 387 (paragraph 16).

(IX) Post conduct of accused persons:

62. In this case post conduct of the appellant is also material. It has been established by oral evidence that after death of the deceased when the informant and the children wanted to raise alarm and objection, they were threatened to be killed in the same manner as their father had been killed by the accused appellant. Hence, they abstained from lodging the FIR and they were taken by their maternal uncle to Bharatpur. This fact has also been proved from the evidence of PWs-1, 2 and 4 (Sudhir) that in the end of February, 2006, the children were called to reach at Ghujaini Bridge on the pretext of accident of their mother where they did not go but when PW-4 reached there, no such accident had been occurred with any person and particularly with Maya Devi and when he was informed that she was in Priya Nursing Home, Maya Devi was found there in the company of co-accused Gajendra Singh Chauhan and some other unknown persons. From the report and evidence of fire fighting officer Shivdaras Prasad and PW-7 PM doctor it is proved that it was not a case of electrocution even then Maya Verma presented a false information to the concerned police station which has been proved to be false in view of the oral, technical and medical evidence. Evidence of PW-1 that after death of the deceased, Maya Verma solemnized marriage with co-accused Gajendra Singh Chauhan also goes against her. She removed all the belongings of the house and painted the house for concealing the evidence relating to the alleged occurrence. On the basis of above, this Court is of the considered view that from the post conduct of the accused appellant it is established that the deceased was an obstacle in their life, therefore, they removed the same by committing the alleged offence.

(X) Burden of proof and reasonable doubt:

63. Certainly the burden of proof lies on the shoulder of prosecution. It is upon the prosecution to discharge the burden by producing oral, documentary and medical evidence against the accused appellant. Benefit of reasonable doubt has been discussed in several cases by the Apex Court. In Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537; Chhotanney Vs. State of UP, AIR 2009 SC 2013; Gangadhar Behera Vs. State of Orissa, (2002) 8 SCC 381 and Vijayee Singh Vs. State of UP, (1990) 3 SCC 190 it was held that doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. the concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units costitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of poof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivilalities would make a mockery of administration of criminal justice. Exaggeration of the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape.

64. In Ramesh Harijan Vs. State of UP, (2012) 5 SCC 777; Such Singh Vs. State of Punjab, (2003) 7 SCC 643; State of UP Vs. Ashok Kumar Srivastava, AIR 1992 SC 840 and Inder Singh Vs. State of Delhi Administration, AIR 1978 SC 1091 it was held that a reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial, if a case has some inevitable flaws because human beings are prone to err; it is argued that it is too imperfect. Vague hunches cannot take the place of judicial evaluation.

65. In Bhagwan Jagannath Markad (supra); Jose @ Pappachan Vs. Sub-Inspector of Police, Koyilandy and another, (2016) 10 SCC 519 and Gurbachan Singh Vs. Satpal Singh, AIR 1990 SC 209 it was held that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicious and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice accoding to law.

66. Hence, this Court is of the view that the prosecution has successfully discharged the burden and the defence has failed in creating reasonable doubt about innocence of accused in the judicial mind of the Court. From the above discussion, it has been proved that it is a case of murder of the husband in presence of the accused wife and her lover inside the house. Hence, Section 106 of the Act, 1872 would play role which is of general application 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. Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."

67. Learned AGA argued that Section 106 of the Act, 1872 not only applies in case of dowry death but it also applies in case of Section 302 IPC and it would also apply without prejudice to the gender if a wife dies in mysterious circumstances inside the house under the custody and control of her husband, Section 106 would come into picture. Similarly, if a husband dies in mysterious circumstances inside the house and his wife has been charged for murder of her husband, it is to be seen as to whether any burden can be shifted upon such wife for explaining the circumstances of as to how her husband had died.

68. In this case though the accused-appellant have put a defence that the deceased died due to electrocution but from the report and evidence of fire fighting officer and PM doctor and also from the ocular evidence it has been proved that it was not an incident of electrocution. Hence, it is concluded that the accused-appellant have been failed in discharging the burden under Section 106 of the Act, 1872. Since from the evidence it has been established that at the time of occurrence accused Gajendra Singh Chauhan was also present inside the house, hence burden of Section 106 would also be on his shoulder. He could not explain that on the alleged date and time of occurrence how and why he was in the house of the deceased and it is also material that he has not taken a plea of alibi.

69. So far as the evidence of DW-1 is concerned, it is not reliable as he reached late. According to him, when he reached on the spot, several other persons were already gathered there and were trying to put out the fire and he alongwith other persons took the children out of the house. According to him, at that time Gajendra Singh was not there. At this juncture, evidence of PWs-1 and 2 is material who deposed that just after the incident Gajendra Singh had left their house. Hence, there was no occasion for this witness to see Gajendra Singh. It is also a material fact that if all the neighbourers gathered there and were trying to put out the fire, why Gajendra Singh whose house is situated only three houses away from the house in question and who was teaching Maya Devi to drive the car did not reach on the spot. Meaning thereby his role had been completed and he was disguising his appearance before the people on the spot. It is also not the case that when Gajendra Singh had threatened the children of the deceased, the witness DW-1, Shivratan was there. Generally nobody would threaten before any witness, hence the evidence of this witness that no threatening was tendered by Gajendra Singh to the children of the deceased is not trustworthy. It is also material that no injury was caused to Maya Verma and Gajendra Singh. Generally, if a husband comes after a week and the wife is not sleeping with the children, would normally sleep on the same bed with her husband. In this case it has been proved from the evidence that children used to live and sleep in separate room and wife and husband had a separate living room, in such a condition why even no burn injury was found on the person of Maya Devi, is material and no injury to her discloses the truth that the deceased was killed in isolation. Even in inquest it has been written by the IO that as per panchas the deceased was set ablaze to death.

70. On the basis of above discussion, this Court is of the considered view that the deceased was set ablaze by pouring inflammable material by the accused-appellant. It was not a case of electrocution or short circuit fire injury. Hence, the trial court has rightly convicted the accused-appellant under Section 302 IPC.

71. From the evidence of PWs-1 and 2 it has been proved that both the accused-appellant threatened to kill the informant and other children in the same manner as their father had been killed. Hence, the charge under Section 506 IPC is also proved beyond reasonable doubt against the accused-appellant.

72. On the basis of above discussion, this Court is of the considered view that the impugned judgment and order of conviction and sentencing passed by the trial court is not liable to be interfeared with. The appeal lacks merit and is liable to be dismissed.

ORDER

73. Accordingly, this appeal is dismissed.

74. The accused-appellant, Gajendra Singh is reported to be in jail.

75. Let the original records be sent back to the trial court alongwith a copy of this judgment for consignment and also for necessary compliance.

FURTHER ORDER

76. The accused-appellant would be entitled for remission after he is incarcerated 14 years as per the policy of Government as the death cannot be said to be so gruesome that he will have to serve life in jail.

 
Order Date :- 23.5.2023
 
Shahroz
 

 
(Umesh Chandra Sharma,J.)    (Dr. K.J. Thaker,J.)