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2003 DIGILAW 2632 (ALL)

VIJAY KUMAR v. STATE OF U P

2003-11-11

KAMAL KISHORE, VISHNU SAHAI

body2003
VISHNU SAHAI, J. Through this appeal, which has been preferred from jail, Vijay Kumar has challenged the judgment and order dated 25-5-2001 passed by the Sessions Judge, Lucknow in Sessions Trial No. 311/2001, whereby he has been convicted and sentenced in the manner stated hereinafter: (i) Under Section 302 IPC to imprisonment for life and to pay a fine of Rs. 1,000 ; and (ii) Under Section 498-A IPC to three years RI and to pay a fine of Rs. 1,000. The sentences were directed to run concurrently. It is pertinent to mention that during the pendency of this appeal. Mr. R. K. Dwivedi, learned Counsel for the appellant, has filed vakalatnama on behalf of the appellant. 2. Shortly stated, the prosecution case runs as under: The informant deceased Smt. Chanda was the wife of the appellant. At the time of the incident, the informant alongwith her husband Vijay Kumar her son Anil Kumar PW 1, her daughter Anita Kumari PW 2 and two other children, was living in Martin Purwa within the limits of Police Station Hazratganj, District Lucknow. The appellant was a drunkard and under the influence of liquor persistenly used to ill- treat and beat the informant. On the night of 28/29-9-2000 the informant, the appellant, Amit Kumar PW 1. Anita Kumari PW 2, two other children of the informant and the appellant slept at their house in Martin Purwa. At about 2. 00 a. m. the appellant in an intoxicated state started abusing and assaulting the information. An altercation also took place between the appellant and the informant hearing which Amit Kumar and Anita woke up. Thereafter the appellant picked up a cane containing kerosene oil and poured the kerosene oil on the informant. He then set her on fire. Hearing the cries of the informant. Amit Kumar, Anita Kumari and other members of the family rushed there. In the morning, Amit Kumar on a rickshaw took the informant, who was in a precariously injured condition, to Police Station Hazratganj, Lucknow, where the informant lodged her written FIR. 3. The evidence of Head Moharrir Chandrama Yadav PW 5 shows that on 29-9-2000 at 9. 10 a. m. the informant Smt. Chanda lodged her FIR at Police Station Hazratganj, Lucknow, on the basis of which he registered CR No. 810/2000 under Sections 326/504/ 506/323 IPC. 3. The evidence of Head Moharrir Chandrama Yadav PW 5 shows that on 29-9-2000 at 9. 10 a. m. the informant Smt. Chanda lodged her FIR at Police Station Hazratganj, Lucknow, on the basis of which he registered CR No. 810/2000 under Sections 326/504/ 506/323 IPC. Since Smt. Chanda was precariously injured he sent her for medical examination through two female Homeguards, alongwith a chithhi majroobi (a letter of request for medical examination), to Civil Hospital, Lucknow. 4. The evidence of Dr. A. K. Singh PW 3 shows that on 29-9-2000 at 10. 30 a. m. the medically examined Smt. Chanda, who was accompanied by Homeguards, and found on her person superficial to deep burns over right upper arm, hands, chest and stomach. In the injury report, Dr. A. K. Singh has mentioned that smell of kerosene oil was coming from the burns and they were fresh. In his statement in the trial Court, Dr. Singh reiterated the said facts and stated that the victim could have received the burns at 2. 00 a. m. on the night of 29-9-2000. Since the condition of Smt. Chanda was serious and proper treatment was not possible at Civil Hospital, Lucknow on the advice of Dr. Singh, Smt. Chanda was sent to King Georges Medical College, Lucknow. 5. The evidence of Uday Veer Singh PW 4 shows that on 30-9-2000 while he was posted as Additional City Magistrate-I (ACM-I) at Lucknow he received information on wireless set to record the dying declaration of a victim in King Georges Medical College, Lucknow. On the said information, he came to King Georges Medical College, Lucknow. He commenced the process of recording the dying declaration of Chanda at 4. 15 p. m. Prior to recording it he enquired from Dr. Mahesh about the mental fitness of Chanda. Dr. Mahesh gave a certificate, which is appended on the top of the paper on which the dying declaration was recorded, that she was in a fit condition to make the statement. Thereafter, he also satisfied himself regarding the mental fitness of Chanda and having been convinced that she was fit to make a statement recorded her statement. Part of the statement she gave of her own free will and part of it as answers of the questions put by him. In English the said statement would read thus: About 12 years ago I was married to the appellant. Part of the statement she gave of her own free will and part of it as answers of the questions put by him. In English the said statement would read thus: About 12 years ago I was married to the appellant. I have four children from him, two sons and two daughters. My husband is a drunkard and does not not work. I work in a school at Martin Purwa. On account of the bad habits of my husband quarrels used to take place between him and me. My husband used to beat me and children. On 28-9-2000 between 12. 00 to 2. 00 a. m. my husband poured kerosene oil on me and set me on fire. My daughter poured water to extinguish the fire. My husband did not extinguish it. I sustained burn injuries on my hands, legs, stomach and chest. My husband took me to Balrampur Hospital, but since he had no money I could not be treated there. The owner of the school got me admitted in Medical College. After Uday Veer Singh had recorded her statement, she affixed her thumb impression on it. Thereafter, he again called Dr. Mahesh who gave a certificate that Smt. Chanda was in a fit mental condition. It is pertinent to mention that this certificate is incorporated at the bottam of the paper on which Chandas dying declaration had been recorded. 6. It is pertinent to mention that Chanda succumbed to her injuries on 9-10-2000 at 12. 00 p. m. at King Georges Medical College, Lucknow. Thereafter, the case was converted to one under Section 302 IPC. 7. The autopsy on the corpse of Chanda was conducted on 10-10- 2000 at 2. 00 p. m. by Dr. A. K. Trivedi PW 9 and Dr. H. G. Singh (not examined ). Dr. Trivedi found septic burns on front of her chest, abdomen, upper limbs, and front of neck. On cutting open the corpse, he found pus in lungs, liver, spinal cord, and kidney. The cause of death spelt out in the autopsy report was septicaemia as a result of ante mortem extensive burns. It is pertinent to mention that in his deposition in the trial Court Dr. Trivedi reiterated the said cause of death and also stated therein that the deceased could have died on 9-10-2000 at 12. 00 Noon. 8. The cause of death spelt out in the autopsy report was septicaemia as a result of ante mortem extensive burns. It is pertinent to mention that in his deposition in the trial Court Dr. Trivedi reiterated the said cause of death and also stated therein that the deceased could have died on 9-10-2000 at 12. 00 Noon. 8. The case was investigated in the usual manner by SI Sanjay Kumar Singh PW 8 and Deputy Superintendent of Police Gotendra Pal Singh PW 7. The former recorded the statement of Smt. Chanda (Exhibit Ka-14) at Civil Hospital, Lucknow and also that of Amit Kumar PW 1 and Anita Kumari PW 2. He also did some other investigation to which in our view, a reference is not necessary for the disposal of this appeal. The latter submitted the charge- sheet against the appellant. 9. The case was committed to the Court of Sessions in the usual manner, where the appellant was charged for offences punishable under Sections 302 and 498-A IPC. He pleaded not guilty to the charges and claimed to be tried. His defence was of denial. During trial, in all the prosecution examined nine witnesses. Two of them, namely, Amit Kumar PW 1 and Anita Kumari PW 2, the son and daughter respectively of the deceased and the appellant, were examined as eye-witnesses. In addition, prosecution also led evidence of the three dying declarations made by the deceased Chanda prior to her death, one in the form of the FIR lodged by her, one in the form of her statement under Section 161 Cr. P. C. and one in the form of her statement recorded Additional City Magistrate Uday Veer Singh PW 4. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellant in the manner stated in para 1. Hence, this appeal. 10. We have heard Mr. R. K. Dwivedi for the appellant and Mr. B. K. Nigam, Additional Public Prosecutor, for the respondent. We have also perused: - the depositions of the prosecution witnesses, the material exhibits tendered and proved by the prosecution, the three dying declarations made by the deceased prior to her death, the statement of the appellant recorded under Section 313 Cr. P. C. and the impugned judgment. We are constrained to observe that we do not find any merit in this appeal. 11. P. C. and the impugned judgment. We are constrained to observe that we do not find any merit in this appeal. 11. It would become manifest from the above that the conviction of the appellant is founded on evidence of a twofold nature, namely: (a) The ocular account furnished by Amit Kumar PW 1 and Anita Kumari PW 2, the son and daughter respectively of the appellant and the deceased. (b) The three dying declarations made by Chanda prior to her death, one in the form of the FIR lodged by her, one in the form of her statement under Section 161 Cr. P. C. and one in the form of her statement recorded by ACM Uday Veer Singh PW 4. In our judgment both these categories of evidence inspite confidence. We now propose furnishing our reasons for reaching the said conclusion. 12. We would first like to take up ocular account furnished by Amit Kumar PW 1 and Anita Kumari PW 2, the son and daughter respectively of the appellant and the deceased. In short, their evidence shows: The appellant is their father. He was married to their mother Smt. Chanda. He was a drunkard and persistently under intoxication used to beat and ill-treat her. On the night of 28/ 29-9-2000 they, their sister, their brother, the appellant and the deceased slept in their house, in Martin Purwa. At about 2. 00 a. m. they woke up on hearing the altercation between the appellant and Chanda. They saw the appellant slapping Chanda. Thereafter, the appellant picked up a cane, wherein there was kerosene oil, and poured kerosene oil on Chanda. He then set her on fire. The evidence of Amit Kumar shows that in the morning he took his mother Smt. Chanda who was precariously injured, to Police Station Hazratganj, Lucknow, where she lodged the FIR. 13. We have gone through the evidence of Amit Kumar and Anita Kumari and make no bones in observing that we find them to be implicitly truthful witnesses. In the first place, it should be borne in mind that being the son and daughter respectively of the appellant and the deceased it was natural for them to have been living with them and to have been sleeping alongwith them in the same house, at the time of the incident. Secondly, the manner of assault as furnished by them is corroborated by medical evidence. Secondly, the manner of assault as furnished by them is corroborated by medical evidence. They stated that the appellant poured kerosene oil on Chanda and set her on fire and both Dr. A. K. Singh PW 3, who medically examined Chanda in her life-time and Dr. A. K. Trivedi PW 9 who performed the autopsy on her corpse found ante mortem burn injuries on her person. It is pertinent to mention that in the injury report Dr. Singh has noted that smell of kerosene was coming from the burns and their duration was fresh. It is significant to point out that although both of them were extensively cross-examined, but nothing could be extracted therefrom which could erode their credibility. It should be borne in mind that Amit Kumar is the son of the appellant and Anita Kumari is his daughter. In our view, unless the appellant would have actually poured kerosene oil on their mother and set her on fire, they would not have foised an accusation of the instant type against him. In our judgment, the circumstance that the own children of the appellant have given evidence against him strongly goes against him. 14. For the aforesaid reasons, we are of the view that the evidence of Amit Kumar PW 1 and Anita Kumari PW 2 is itself sufficient to hold that the learned trial Judge acted correctly in convicting the appellant for both the offences, namely, under Sections 302 IPC and 498-A IPC. 15. Apart from the ocular account furnished by Amit Kumar PW 1 and Amita Kumari PW 2 we also have the evidence in the form of three dying declarations made by Chanda prior to her death, one in the form of the FIR lodged by her, one in the form of her statement under Section 161 Cr. P. C. and one in the form of her statement recorded by ACM Uday Veer Singh PW 4. In our judgment, the aforesaid dying declarations also inspires implicit confidence. We would now like to briefly deal with them. 16. We would first take up the declaration in the form of the FIR lodged by Smt. Chanda at Police Station Hazratganj, Lucknow. The evidence of Amit Kumar PW 2 shows that in the morning he, alongwith Chanda went to Police Station Hazratganj, where Chanda lodged her written FIR. We would now like to briefly deal with them. 16. We would first take up the declaration in the form of the FIR lodged by Smt. Chanda at Police Station Hazratganj, Lucknow. The evidence of Amit Kumar PW 2 shows that in the morning he, alongwith Chanda went to Police Station Hazratganj, where Chanda lodged her written FIR. The evidence of Head Moharrir Chandrama Yadav corroborates the evidence of Amit Kumar. His evidence shows that on 29-9- 2000 at 9. 40 a. m. Chanda lodged her written FIR on the basis of which he registered an offence punishable under Sections 326/504/506/323 IPC. In his cross-examination, when he was suggested that she had not brought the FIR and the same was prepared at the Police Station, he emphatically denied the suggestion and stated that she had brought the FIR. It is pertinent to mention that this witness had no enmity with the appellant and, in our view, in the absence of the same he would not have falsely deposed that Chanda had brought the written FIR which she lodged at the Police Station Hazratganj. It is pertinent to mention that in the FIR Chanda has categorically stated that the appellant was a drunkard, used to persistently beat and ill-treat her under the spell of liquor, and on the night of the incident at about 2. 00 a. m. poured kerosene oil and set her on fire. For the aforesaid reasons, this dying declaration in the form of FIR lodged by Chanda inspires confidence. 17. We now come to the dying declaration of Chanda in the form of her statement under Section 161 Cr. P. C. The evidence of SI Sanjay Kumar Singh PW 8 shows that after taking over the investigation he went to Shyama Prasad Mukherji Hospital (Civil Hospital), Lucknow, where Chanda had been admitted and recorded her statement (Exhibit Ka-14 ). He in it recorded what she told him. It is pertinent to mention that since the recitals contained therein are identical to those contained in the FIR lodged by Chanda we are not adverting to them. We feel it pertinent to mention that although SI Sanjay Kumar Singh was extensively cross-examined but nothing could be elicited therefrom which could make us entertain any doubt about the authenticity of this statement made by Chanda to him, which he recorded under Section 161 Cr. We feel it pertinent to mention that although SI Sanjay Kumar Singh was extensively cross-examined but nothing could be elicited therefrom which could make us entertain any doubt about the authenticity of this statement made by Chanda to him, which he recorded under Section 161 Cr. P. C. It is significant to mention that he is an independent witness, who had no rancour or ill-will against the appellant. In our view in the absence of the same he would not have manufactured this dying declaration. For the said reasons, this declaration also inspires confidence. 18. We now come to the dying declaration of Chanda recorded by ACM Uday Veer Singh PW 4. His evidence shows that on 30-9- 2000 he received information on a wireless set to record a dying declaration at King Georges Medical College, Lucknow. Consequently, he went there and commenced recording the dying declaration of Chanda. We have earlier seen that prior to recording it he ascertained from Dr. Mahesh about the mental fitness of Chanda and only after Dr. Mahesh had appended a certificate on the paper on which the dying declaration was to be recorded in terms that Chanda was fit to make a statement he recorded the same. We have also seen that after he had recorded the statement of Chanda he again called Dr. Mahesh who again examined Chanda and gave a certificate, which is incorporated at the bottom of the paper, on which the dying declaration was recorded, in term that Chanda was mentally fit. It is pertinent to mention that the evidence of ACM Uday Veer Singh shows that before recording the dying declaration of Chanda he asked for those who were present there to leave. In that view of the matter, it cannot be said that Chanda was being prompted while she was giving her statement. We have gone though the statement of ACM Uday Veer Singh and have no reservations in observing that he was also cross-examined extensively but nothing could be scored out therefrom which could create any doubt on the reliability of this dying declaration. It is pertinent to mention that ACM Uday Veer Singh also had to rancour or ill-will against the appellant. In our view, in the absence of the same he would not have manufactured a dying declaration incriminating the appellant. It is pertinent to mention that ACM Uday Veer Singh also had to rancour or ill-will against the appellant. In our view, in the absence of the same he would not have manufactured a dying declaration incriminating the appellant. We make no bones in observing that the suggestion given to him in his cross- examination that he prepared the same at the Police Out Post of King Georges Medical College, Lucknow and thereafter, sent it in the ward where Chanda was admitted and Chanda affixed her thumb impression on it is a tissue of lies, which is not supported by any evidence. For the aforesaid reasons, in our view, this dying declaration also inspires confidence. 19. In view of the overwhelming evidence incriminating the appellant, we are of the judgment that this appeal is devoid of substance. 20. In the result, we confirm the convictions and sentences of the appellant for offences punishable under Sections 302 IPC and 498-A IPC and dismiss this appeal. The appellant is in jail and shall serve out his sentence. Appeal dismissed. .