Allahabad High Court
Kesh Chandra @ Pappu vs State Of U.P. on 8 November, 2024
Bench: Siddharth, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:176137-DB
Reserved On:- 21.10.2024
Delivered On:- 08.11.2024
Case :- CRIMINAL APPEAL No. - 3091 of 2012
Appellant :- Kesh Chandra @ Pappu
Respondent :- State of U.P.
Counsel for Appellant :- Aditya Yadav,Rajeev Upadhyay,Sushil Kumar Dwivedi,Vikas Singh
Counsel for Respondent :- Govt. Advocate
Hon'ble Siddharth,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Subhash Chandra Sharma, J.)
1. Heard Sri Sushil Kumar Dwivedi learned counsel for the appellant, Sri G. N. Kannuajia learned A.G.A. Ist for the respondent and perused the material on record.
2. This criminal appeal has been preferred against the judgment and order dated 15.06.2012 passed by learned Additional Session Judge (X-Cadre) Mahoba in S.T. No.24 of 2010 (State vs. Kesh Chandra @ Pappu) u/s 302 I.P.C. arising out of Crime No.1944 of 2009, Police Station Kotwali Charkhari District Mahoba by which the learned trial court has convicted and sentenced the appellant u/s 302 I.P.C. for rigorous life imprisonment and with fine of Rs.10,000/-; in case of default in payment of fine, 6 months additional imprisonment.
3. Facts in brief are that the deceased Shakuntala @ Shagun Devi was wedded to the appellant on 20.04.2009. In marriage ceremony sufficient dowry was given by the father of the deceased but the appellant and members of his family were not satisfied. They were subjecting her to torture for additional demand of dowry and caused harassment. All these facts were narrated by the deceased to her family members. On 23.10.2009 at about 8:00 A.M. information was given to the informant about the burning of Shagun Devi who was taken to the hospital Panwadi and then referred to Medical College, Jhansi where she died of burn injuries. During the course of treatment her dying declaration was recorded by the Magistrate in which she made accusation of setting her ablaze by her husband at the time of quarrel between them due to illicit relationship of the deceased with her brother-in-law (Jija).
4. The F.I.R. was lodged u/s 498A, 304B I.P.C. & Section ¾ Dowry Prohibition Act on 19.12.2009.
5. The inquest of the dead body of deceased was done by Naib Tehsildar and after preparing the relevant papers dead body of the deceased was sent for post-mortem.
6. In post-mortem, the cause of death of the deceased was found as a result of burn injuries.
7. The investigation of the case was handed over to the Circle Officer, Brijmohan Singh, who recorded the statements of the witnesses during the course of investigation, prepared site plan and filed charge sheet u/s 304 I.P.C.
8. After making compliance of Section 207 Cr.P.C., the case was committed for trial before the learned court of Sessions where the trial court framed charges against the appellant u/s 304 I.P.C. and alternative charge u/s 302 I.P.C. which was denied by him and he sought trial.
9. The prosecution examined PW-1 Kandhilal the informant; PW-2, Smt. Girja; PW-3 Amarchandra; PW-4, Shubodh Mani Sharma, the Naib Tehsildar; PW-5, Om Prakash; PW-6, Dr. O.P. Maheshwari; PW-7, Dr. Manoj Kumar Srivastava and PW-8, Brij Mohan Singh, the Investigating Officer. After conclusion of prosecution evidence statements of accused/appellant was recorded u/s 313 Cr.P.C. in which he admitted the fact of his marriage with the deceased on 20.04.2009 and the fact of her death on 27.10.2009 in Medical College, Jhansi. Other evidence of prosecution witnesses was said to be false and given in revenge. He also stated that the deceased was an obstinate lady and at the time of cooking food in the kitchen she set herself ablaze and when he heard her scream, he went there and tried to set off the fire in which his hands were also got brunt and thereafter he took her to the hospital.
10. After hearing the arguments of learned prosecutor and the defence learned trial court passed the judgment and order dated 15.06.2012, convicting and sentencing the appellant as aforesaid against which present appeal has been preferred.
11. We have gone through the record and considered the arguments as extended by the learned counsel for the appellant as well as learned A.G.A.
12. Learned counsel for the appellants argued that in this case the prosecution witnesses, the father and mother of the deceased were examined as PW-1 & PW-2 who made allegation of demand of dowry and her harassment by the appellant and other members of his family of the deceased but it was not got proved before the trial court. It was also stated by them that there was quarrel between the deceased and the appellant in which he set herself on fire as a result she got burn injuries and died during the course of treatment. These allegations were not found to be proved by the learned trial court. During the course of treatment the statement of the deceased was recorded by Sri Subodh Mani Sharma, Naib Tehsildar after getting fitness certificate from the doctor, providing treatment to the deceased. In her dying declaration the deceased stated that there was quarrel between her and her husband regarding illicit relationship between the deceased and her brother-in-law (Jija). There was no one in the house except her husband and in the course of quarrel her husband poured kerosene oil on her and set her ablaze. She did not state any word regarding demand of dowry or harassment either by her husband or by any other member of his family. The trial court relied on the dying declaration made by the deceased and convicted and sentenced the appellant for the charge u/s 302 I.P.C., though during the course of investigation the offence was found to be established u/s 304 I.P.C. It is also argued that since the incident took place under the heat of passion and provocation relating to the illicit relation of the deceased with her brother-in-law (Jija), therefore, it cannot be said that the appellant intended to commit murder of the deceased but the case squarely falls within the purview of exception to section 300 I.P.C. To the utmost, it may come within the purview of Section 304 I.P.C. in the place of Section 302 I.P.C. In this way, the judgment and order passed by the learned trial court cannot be said to be in accordance with law and finding recorded by the learned trial court in this regard being illegal is likely to be set aside and the conviction of the appellant can be made u/s 304 I.P.C. and accordingly, the sentence can be modified.
13. Learned A.G.A. rebutted the arguments of the counsel for the appellant and contended that the deceased was set ablaze by the appellant himself by pouring kerosene oil on her. It infers that he committed the act intentionally though he took her to the hospital for treatment but it cannot be said to be an excuse. The dying declaration which was recorded by the learned Magistrate is totally reliable. It is also contended that the matter is related to illicit relationship between the deceased and her brother-in-law (Jija) as disclosed by her in her dying declaration which was the cause of quarrel between the husband and wife. It shows that the quarrel was not sudden, therefore, it cannot be said that under the impression of grave and sudden provocation the appellant committed the offence. Any such relationship was never seen by the appellant between the deceased and her brother-in-law (Jija) but it was only suspicion in his mind, therefore, he cannot be said to be entitled for benefit of exception of grave and sudden provocation or quarrel between both of them. In this way, the learned trial court has passed the judgment and order in question, after considering the entire material on record. There is no perversity or illegality in holding the conviction and awarding the sentence against the appellant u/s 302 I.P.C. and also the punishment provided for the offence. The offence said to be committed squarely comes within the purview of Section 302 I.P.C. and not u/s 304 I.P.C. So, this appeal is liable to be dismissed as having no force.
14. Considering the facts and arguments advanced on behalf of both the parties and from perusing the evidence on record, it is not in dispute that the appellant is husband of the deceased. The incident also took place on 23.10.2009 in which the deceased got burnt and was taken to the hospital by the appellant himself and from there she was referred to Medical College, Jhansi where during the course of treatment she died. The cause of death of the deceased was shown as a result of ante-mortem burn injuries.
15. There was allegation of demand of dowry and harassment of the deceased by the appellant and other members of his family but this allegation was not found to be established during the course of investigation since there was dying declaration by the deceased in which no such allegation was made by her against the appellant or any other member of his family as a result charge sheet was filed u/s 304 I.P.C.
16. During the course of trial PW-1, the father and PW-2, the mother of deceased, both were examined who stated about the demand of dowry and harassment by the appellant and other members of his family but in dying declaration this allegation was not supported by the deceased herself. In this way, the incident cannot be said to be related to demand of dowry and harassment.
17. So far as the dying declaration of the deceased is concerned it was recorded by Sri Shubodh Mani Sharma, Naib Tehsildar on 23.10.2009 after taking fitness certificate from Dr. Manoj Kumar Srivastava providing treatment to the deceased. After the statement having been recorded the doctor gave certificate regarding her fitness during the course of statement.
18. In her dying declaration the deceased stated that she was married to the appellant on 20.04.2009 and just after marriage her husband, Pappu, used to quarrel with her and say that she was being kept by her brother-in-law (Jija). That was the reason he did not let her go to her maika. On the date of incident at about 7 to 8 O'clock when she was cooking food in the house her husband started quarreling and there was no other person except deceased and her husband because her mother-in-law went to her maika with her father-in-law. During the course of quarrel her husband, Pappu, poured kerosene oil over her and set her ablaze with match stick as a result she got burnt. No any other statement was made by her.
19. Now it is to be seen as to whether the dying declaration as recorded by the learned Naib Tehsildar was true and voluntary. If it is so, the conviction can be based on such dying declaration without requiring any corroboration. In the case of Khushal Rao vs. State of Bombay AIR 1958 SC 22, the Hon'ble Supreme Court has clearly propounded the principles that a dying declaration can be the sole basis of conviction. A true and voluntary declaration needs no corroboration since the shadow of impending death is by itself the guarantee of the truth of the statement made. It is not weaker kind of evidence than any other piece of evidence, each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. For ensuring the true and involuntariness of such declaration the Court is required to be satisfied that there was no element of tutoring, the deceased was in a fit state of mind and the statement was not a product of his imagination.
20. From perusal of dying declaration, Exibit Ka-2 and statement of PW-4, Nayab Tehsildar S.M. Sharma, who recorded the dying declaration and PW-7, Dr. Manoj Kumar Srivastava, it is evident that the deceased was in fit mental condition to make statement and even after her statement was recorded she remained fit. There appears no infirmity in her statement as recorded by the Nayab Tehsildar. No other person related to the deceased was said to be present there except the Nayab Tehsildar and doctor. It shows that the dying declaration as recorded by the Nayab Tehsildar was not tutored, therefore, it was true and voluntary. In view of the aforesaid circumstances, the dying declaration being true and voluntary, can be used as the basis of conviction without need of any other corroborative evidence. The learned trial court also relied on the dying declaration as aforesaid after considering the circumstances in which it was recorded and convicted the appellant for the offence and discarded the allegations regarding demand of dowry and harassment of the deceased either by the appellant or other members of his family. In this way, there appears to be no perversity in the findings recorded by the learned trial court, since there appears to be no other view possible to be taken in this appeal warranting interference by this Court.
21. So far as the conviction and sentence u/s 302 I.P.C. is concerned, it is clear from the dying declaration itself that there was quarrel between the deceased and her husband (the appellant) regarding illicit relationship between the deceased and her brother-in-law (Jija). Even on the date of incident the appellant and the deceased were quarreling with each other on the same issue and in the course of quarrel the appellant poured kerosene oil on her and set her ablaze with match stick. It shows that there was suspicion in the mind of the appellant that the deceased was in illicit relation with her Jija and even there was quarrel in relation thereto that was the reason he committed the act of pouring kerosene oil and setting her ablaze. It was in the spur of the moment under the heat of passion but cannot be said that he already intended to commit her murder. It is also evident that when the deceased got burn injuries the appellant took her to the hospital for treatment from where she was referred to Medical College, Jhansi where during the course of treatment she died. It also infers that in case the appellant had intended to commit her murder he would not have taken her to the hospital for treatment. In this way, the incident being committed under heat of passion in the spur of moment cannot be said to come within the purview of offence of murder u/s 302 I.P.C. but it comes squarely within the purview of offence u/s 304 I.P.C.
22. As a result the conviction and sentence as recorded and awarded by the learned trial court requires interference by this Court, therefore, the conviction and sentence of appellant is hereby modified from Section 302 I.P.C. to Section 304 I.P.C.
23. Appellant has been languishing in jail from 27.01.2010 as mentioned in the custody certificate dated 27.01.2023 issued by Central Jail. He has served sentence of more than fourteen and a half years and with remission about 17 years in jail which appears to be sufficient punishment and proportionate to the offence committed by him. Sentence of appellant is reduced to period already undergone in jail. Therefore, now appellant is liable to be released from jail, if not wanted in any other case.
24. Accordingly, this appeal is partly allowed.
25. Copy of this judgment alongwith original record be transmitted to the learned Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.
Order Date :- 8th November, 2024
Ashok Gupta
(Subhash Chandra Sharma, J.) (Siddharth J.)
