Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 3061 (ALL)

RAM SWAROOP v. STATE OF U. P.

2015-09-28

ARVIND KUMAR TRIPATHI, RANJANA PANDYA

body2015
JUDGMENT Hon’ble Arvind Kumar Tripathi, J.—The present appeal has been preferred by the appellants Ram Swaroop and Munnu Maharaj against the judgement and order dated 25.9.1982 passed by Sessions Judge, Lucknow in S.T. No. 193 of 1982 arising out of Crime No. 78A/1981, Police Station-Sahadatganj, District Lucknow, whereby the accused Ram Swaroop was found guilty under Section 302 and Munnu Maharaj was found guilty under Section 302 read with Section 34 I.P.C. and both were sentenced to undergo imprisonment for life. 2. The prosecution story unfolded as per F.I.R. and as per the prosecution case is that Nand Kishore, brother of the deceased lodged the written report before the Station Officer, Police Station-Sahadatganj, Lucknow stating that his younger sister Smt. Munni was married to Becha Lal 7 to 8 years prior to the occurrence. After sometime Becha Lal starting maltreating Smt. Munni. She was also assaulted by the family members of Becha Lal. About 3 or 4 months prior to the occurrence Smt. Munni was suffering from Scrofula disease (Kanthmala), but instead of getting her treatment, she was being beaten by Becha Lal. He also used to threaten to kill Smt. Munni. Becha Lal wanted to get rid of Smt. Munni, so that he could get re-married. He used to beat Smt. Munni and wanted to throw her out of his house. When Smt. Munni refused to go then in the intervening night of 27/28 February, 1981 Bechal Lal, Ram Swaroop and Munnu Maharaj who are all neighbours sprinkled kerosene oil on her and set her ablaze. She was in a serious condition, hence F.I.R. was lodged. 3. On the basis of F.I.R., chick report was subscribed by Head Constable Krishna Kumar Shukla, who further entered the details of the case in the G.D. and proved them as Exhibit Ka-6 and Ka-7. Station Officer, P.W. 8 R.K. Mishra was interested the investigation, he went to the medical college and collect the inquest report, which was proved as Exhibit Ka11. The body of the deceased was kept in the mortuary under the supervision of Constable Suresh. On 4.4.1981 the I.O. obtained the dying declaration of Smt. Munni recorded on 28.2.1981. On the same day he converted the case from Section 307 to Section 302 I.P.C. 4. On 30.3.1981 the I.O. recorded the statement of informant Nand Kishore, witness Ram Prasad and Dhani Ram. On 4.4.1981 the I.O. obtained the dying declaration of Smt. Munni recorded on 28.2.1981. On the same day he converted the case from Section 307 to Section 302 I.P.C. 4. On 30.3.1981 the I.O. recorded the statement of informant Nand Kishore, witness Ram Prasad and Dhani Ram. On 1.4.1981 he inspected the spot and prepared the site plan and proved it as Exhibit Ka-12. On the same day, the statement of Ghuru was recorded. The I.O. wanted to record the statement of Smt. Munni, but she was serious and was unable to speak, thus, her statement could not be recorded. On 11.4.1981 the statement of Vidya Devi, Shanti Devi and Shavitri and sister-in-law of the deceased was also recorded. After the investigation the charge-sheet was submitted against the accused person and was proved as Exhibit Ka-13. The postmortem of the deceased was conducted by Dr. R.P. Maurya, Medical Officer, State Blood Bank, Lucknow on 4.4.1981. He found the following ante mortem injuries on the body of the deceased : (i) Burn area on left lower extemity extending from anterior iliac spine upto left anke joint. Sepsis present. Burn present all round. (ii) Burn area on right lower extending on medial side of thigh, extending grown to 16 cm below the popliteal fossa. Se-pis present. (iii) Burn area on right leg 12 cm x 6 cm on the back & medial aspect upto right ankle joint. se-pis present. (iv) Perineum is burnt & sepsis present. (v) Both hips are burnt & sepsis presen. (vi) Burn area on left forearm 21 cm x 9 cm on the medial & posterior aspect. Sepsis present. (vii) burn present on the dorsum of left hand including fingers & thum sepsis present. 5. On external examination the Doctor found that Rigor Mortis had passed off from both the extremities. PM Staining was present on the back. The Pleura, Trachea, Larynx, and Kidney were also found congested, abscess was present in the body. The Small Intestine was filled with gases and fluid. The Large Intestine was containing faecal matter and gases. 6. The Doctor opined the cause of death being due to septisemia as a result of extensive burn. This witness P.W. 6 proved the postmortem report as Exhibit Ka-8. The prosecution examined P.W. 1 Nand Kishore, who proved the F.I.R. Exhibit Ka-1. The Small Intestine was filled with gases and fluid. The Large Intestine was containing faecal matter and gases. 6. The Doctor opined the cause of death being due to septisemia as a result of extensive burn. This witness P.W. 6 proved the postmortem report as Exhibit Ka-8. The prosecution examined P.W. 1 Nand Kishore, who proved the F.I.R. Exhibit Ka-1. P.W. 2 is Shri M.S. Raizada the then City Magistrate, Lucknow who recorded the dying declaration of Smt. Munni and proved it as Exhibit Ka-5. P.W. 3 is Ram Prasad, who has stated that altercations took place between the brother of the deceased and family members of the deceased. P.W. 4 is Shanti Devi, Auty (Mausi) of the deceased, who has stated that Smt. Munni and her family members did not have cordial relations. P.W. 7 is Satya Narain Dixit, Record Keeper, Surgery Department, Medical College, Lucknow, who has proved the dying declaration and treatment summary of the deceased as Exhibit Ka-9. He has further proved the signatures of Dr. V.K. Gupta as Exhibit Ka-10 and the prosecution closed it evidence. 7. The evidence of the accused was recorded under Section 313 Cr.P.C. Munnu Maharaj, while denying the prosecution case has stated that on hearing hue & cry he reached the spot from his house. He had no enmity with informant Nand Kishore and Smt. Munni. He did not know how Smt. Munni Devi died. Accused-appellant Ram Swaroop while denying the prosecution version has stated that he is a brother-in-law of the deceased only due to his living in the same locality, he has been implicated, actually he is not Jeth (Brother-in-law) of the deceased. 8. The defence examined D.W. 1 Becha Lal, husband of the deceased, who has proved the report lodged by him against his wife Smt. Munni-deceased. 9. The defence filed two papers Exhibit Kha-1 being copy of the written report lodged by Becha Lal, husband of the deceased and Exhibit Kha-2 being copy of the G.D. of above mentioned case. 10. The Court summoned Shri G.P. Agarwal, Reader and Surgeon, Medical College, Lucknow as Court Witness C.W. 1, who has proved the signatures of Dr. V.K. Gupta as Exhibit Ka-10 and Ka-7. 11. After hearing the arguments of both the parties, learned lower Court passed the aforesaid sentence. 12. Feeling aggrieved, the accused have come up in the appeal. Mr. 10. The Court summoned Shri G.P. Agarwal, Reader and Surgeon, Medical College, Lucknow as Court Witness C.W. 1, who has proved the signatures of Dr. V.K. Gupta as Exhibit Ka-10 and Ka-7. 11. After hearing the arguments of both the parties, learned lower Court passed the aforesaid sentence. 12. Feeling aggrieved, the accused have come up in the appeal. Mr. Rajesh Kumar Dwivedi, Advocate, appeared on behalf of appellant Ram Swaroop, Mr. Arun Sinha, Advocate, appeared for appellant Munnu Maharaj and Mr. Umesh Verma, learned AGA for State. 13. We have heard learned counsels for the parties and have carefully gone through the record. Mr. Dwivedi, learned counsel for the appellants assailed the judgment on the following grounds : * That the motive assigned is too weak for the accused to commit offence. * That the consecutive dying declaration said to have been recorded by the Doctor and the City Magistrate are contradictory to each other and being inconsistent cannot be relied on. * Mr. Arun Sinha, learned counsel, contended that no overt-act has been assigned to Munnu Maharaj. * That accused Ram Swaroop is not the Jeth (Brother-in-law) of the deceased. * Conviction is bad in the eyes of law. 14. Learned counsel for the appellant challenging the reliability of the dying declaration submitted that there was in ordinate delay in lodging the First Information Report and scribe of the written report was not produced before the Court. The statement of the deceased before P.W.1, before the police, before Dr. V.K. Gupta at the time of her admission in the hospital and before the Magistrate, concerned, are inconsistent and there are contradictions. She has not disclosed to P.W. 1, when he reached at the residence, that appellant Ram Swaroop sprinkled kerosene oil and put her on fire. In the FIR husband Becha Lal was also named but he was not charge-sheeted. In the First Information Report, which was lodged by Becha Lal on the same day i.e. on 28.2.1981 next day in the morning of 28.2.1981, but no proper investigation was conducted rather investigation was closed, which was under Section 306 IPC against the deceased Smt. Munni Devi. In the First Information Report, which was lodged by Becha Lal on the same day i.e. on 28.2.1981 next day in the morning of 28.2.1981, but no proper investigation was conducted rather investigation was closed, which was under Section 306 IPC against the deceased Smt. Munni Devi. The statement of Smt. Munni Devi was not recorded by the I.O. According to evidence and statement of Smt. Munni Devi police reached there in the night on the date of incident and she did not make any allegations against the appellants to the effect that they set her on fire. Subsequently, in the alleged statement before the Dr. V.K. Gupta, allegation was against the appellant Ram Swaroop, but no date has been mentioned in that statement and even Dr. V.K. Gupta was not examined by the prosecution. The other statement alleged to have been recorded by the City Magistrate in which Dr. V.K. Gupta gave certificate but Dr. V.K. Gupta was not examined to support that certificate to the effect that she was mentally and physically fit for giving her statement. Hence none of the dying declarations is reliable and trustworthy, so no reliance can be placed treating those statements under Section 32 of the Evidence Act. Further in the statement before the Magistrate name of the petitioner Ram Swaroop was not disclosed rather word ‘Jeth’ was mentioned and in view of the evidence it is correct that the appellant Ram Swaroop is not real brother nor cousin of Becha Lal, husband of deceased though evidence was given that appellant Ram Swaroop was of the same village and he was also addressed as ‘Jeth’ (the elder brother of the husband is called as ‘Jeth’). Further according to evidence her mother, sister, mausi and P.W. 1, her brother, were present with Smt. Munni Devi in the hospital and since there was no apprehension of her death as only lower part of her body received burn injury hence there were chances of tutoring. 15. He further submitted that according to statement of Becha Lal, husband of the deceased, who was examined as D.W. 1, the door of the house was closed from inside and if Becha Lal was sleeping in the same room along-with deceased Smt. Munni Devi then it is unbelievable that any outsider would enter inside the house and room, where they were sleeping. It is said that Ram Swaroop dragged her, outside the room, in Courtyard and then put her on fire and husband will kept on sleeping. These circumstance create doubt regarding the genuineness and reliability of the alleged statement recorded by the doctor and by the Magistrate. He also contended that she had received injuries only below the abdomen and not above the abdomen hence had there been no intention to kill her. The kerosene oil would had been sprinkled over the head and upper part of the body also and not only on the lower part of the body. Hence either it was attempt to commit suicide to threat to the husband and other in-laws or it was accidental burn. In support of his argument regarding dying declaration he relied on the judgements in Darshan Singh and others v. State of Punjab, AIR 1983 SC 554 ; Kanchy Komuramma v. State of Andra Pradesh, 1996 SCC (Cri) 31; Bhupan v. State of Madhya Pradesh, 2002(44) ACC 589 (SC); Banarsi Dass and others v. State of Haryana, 2015 (1) JIC 757 (SC); Raj Kumar v. State of M.P., 2005(1) JIC 149 (SC). 16. Learned counsel for the appellant also submitted that in the dying declaration alleged to have been recorded by the Magistrate she has made allegations against the ‘Jeth’ and it is clear that the appellant Ram Swaroop is not brother of her husband. No query was made to ascertain name of accused hence prosecution failed to prove its case beyond reasonable doubt against the appellants and as such conviction is based on no evidence and evidence is not reliable and the conviction is bad in the eyes of law. 17. Learned counsel for the appellant Ram Swaroop again submitted that no question was put by the Magistrate to satisfy himself that she was Munni Devi and she was in a position to give statement. She (deceased) was suffering from scrofula (Kanthmala) hence this might have also been one of the reasons to commit suicide. 18. Learned AGA opposed the submission and submitted that in view of the statement of witnesses and dying declaration, motive is not relevant in the present case though in view of the evidence suspicion against the deceased was that she has taken the jewellries and the same were not returned by her regarding which before the incident query was made from her. He further submitted that the dying declarations were recorded by the doctor and by the Magistrate, in the presence of the doctor, after fitness certificate was given by the doctor in which the appellant Ram Swaroop, was addressed as ‘Jeth’ by the deceased. According to her, ‘Jeth’ poured kerosene oil and put her on fire. There is no contradiction in both the dying declarations. Even in absence of certificate of doctor, regarding fitness the dying declaration is admissible. In the present case, in respect of dying declaration even otherwise the Magistrate was satisfied that the deceased was in fit state of mind to give statement. Hence in view of the judgment of the Apex Court in Laxman v. State of Maharastra, 2003(1) JIC 30, in which the admissibility of the dying declaration was considered by the constitution Bench consisting of five Hon’ble Judges, the dying declaration of Munni Devi is trustworthy. He also relied upon the judgement of Apex Court in Sayara Bano @ Sultan Devi v. State of Maharastra, 2007 Cr LJ 1458. He further submitted that in the above noted judgement it was held that if the dying declaration is truthful, inspires confidence, the same is reliable then the judgment can be based on the dying declaration. Learned AGA also contended that from the evidence and even statement of P.W. 1, it is clear that Ram Swaroop was cousin of Becha Lal @ Bechu Lal, husband of deceased. Further apart from that it was admitted by the other witness and even by the accused (Ram Swaroop) that Ram Swaroop was being called as Jeth. The smell of kerosene oil was present when she was medically examined. In the dying declaration recorded by the Magistrate it was stated that Jeth put her on fire and accused appellant Munnu Maharaj was standing at the door. When query was made by the Dr. V.K. Gupta when she was admitted, she named Ram Swaroop that he put her on fire. According to her statement at the time of incident her husband was sleeping. After hearing the cry he came, extinguished the fire and then she was taken to hospital in the morning. 19. Learned AGA further submitted that the dying declaration is corroborated by the other evidence and there is no material contradiction to create suspicion in respect of dying declaration, which was proved by the Magistrate. Though Dr. After hearing the cry he came, extinguished the fire and then she was taken to hospital in the morning. 19. Learned AGA further submitted that the dying declaration is corroborated by the other evidence and there is no material contradiction to create suspicion in respect of dying declaration, which was proved by the Magistrate. Though Dr. V.K. Gupta was not examined but the record keeper Satya Narain Dixit was examined as PW.7, who stated that he has never seen Dr. V.K. Gupta writing and signing, however, he had seen papers written and signed by him being record keeper. He also submitted that though no overtact was assigned to appellant Munnu Maharaj and specific allegation was only against Ram Swaroop. However, It is clear that Munnu Maharaj was also accompanying appellant Ram Swaroop and he was present at the time of incident when deceased was burnt. Hence in view of the fact and evidence on record, he was rightly convicted and sentenced with aid of Section 34 IPC. There is no illegality committed by the trial Court and no interference is required in the judgement of conviction and sentence awarded against the appellants. 20. Learned counsel for the appellant appearing on behalf of Munnu Maharaj challenging the conviction further submitted that there were number of dying declarations. First before the police party when she did not make any allegation against any person and it was an accidental burn or there was attempt to commit suicide because according to First Information Report lodged by her husband D.W.-1 earlier she has threatened to commit suicide and to falsely implicate the family members. The FIR was lodged under Section 306 IPC though no action was taken by the police on the FIR lodged by Becha Lal D.W. 1. Even the deceased did not make any allegation against the appellants in the alleged dying declaration recorded by the doctor. Allegation was that Jeth put her on fire but there was no overtact assigned to the accused appellant Munnu Maharaj. Dr. V.K. Gupta, who alleged to have recorded dying declaration and given certificate when dying declaration was recorded by the Magistrate, was not examined and according to record keeper P.W. 7 he has never seen Dr. V.K. Gupta writing and signing on any paper hence statement recorded by Dr. Dr. V.K. Gupta, who alleged to have recorded dying declaration and given certificate when dying declaration was recorded by the Magistrate, was not examined and according to record keeper P.W. 7 he has never seen Dr. V.K. Gupta writing and signing on any paper hence statement recorded by Dr. V.K. Gupta and the certificate given by him had not been proved in the present case hence those exhibits are not admissible. 21. Considered the submission of learned counsel for the parties. In the present case, initially First Information Report was lodged on 28.2.1981 by Becha Lal husband of the deceased Munni Devi. The incident took place in the night of 27/28.2.1981. According to First Information Report lodged by Becha Lal, who was examined as D.W. 1 in the present case while after taking meal(dinner) he was sleeping along-with children then suddenly his wife cried at about 11.30 P.M. He and his old mother awoke and saw that his wife had caught fire. He raised alarm then his neighbours Ghuru and Rama Shanker came there with whose assistance he doused the fire and saved his wife. Further it was mentioned that to commit suicide she herself put her on fire after pouring kerosene oil on her. He also made remarks against her character and further made allegation that by putting her on fire she wanted to implicate him. She was taken to hospital and admittedly she was got admitted by Becha Lal. According to statement of P.W. 1, Nand Kishore when he came to know regarding the incident he reached the house of Becha Lal and no First Information Report was lodged. He gave an application dated 26.3.1981 before the City Magistrate, Lucknow, with the allegation against Becha Lal, Ram Swaroop and Munnu Maharaj that there was attempt to kill her by them, under a conspiracy by sprinkling kerosene oil upon her, she was put on fire with intention to kill. No proper treatment was provided and during the whole night she was kept in the house and in the morning she was taken to hospital and report was not written. Police had not taken any action on complaint. Thereafter, the First Information Report was lodged and registered at case crime No. 78-A, under Section 307 IPC at P.S. Saadatganj, Lucknow on 29.3.1981. Hence it appears that before 26.3.1981 no complaint was filed before Magistrate, concerned. Police had not taken any action on complaint. Thereafter, the First Information Report was lodged and registered at case crime No. 78-A, under Section 307 IPC at P.S. Saadatganj, Lucknow on 29.3.1981. Hence it appears that before 26.3.1981 no complaint was filed before Magistrate, concerned. On the application under Section 156(3) Cr.P.C. the First Information Report was lodged. The allegation was that Becha Lal threatened to kill his sister deceased Munni Devi and he wanted to re-marry. Even earlier she was beaten by him hence if there was any motive that was against her husband Becha Lal but in the present case no charge-sheet was submitted against him. No protest petition or complaint was filed by the informant/complainant, against Becha Lal. Subsequently, he was examined as D.W. 1. There was no motive against Ram Swaroop and Munnu Maharaj though the motive is not relevant but when there is no eye-witness then the motive is very relevant. Even if there was any dispute regarding jewellery belonging to Becha Lal or his family, Ram Swaroop and Munnu Maharaj were not concerned with the same. They did not belong to the family of Becha Lal though as per evidence Ram Swaroop was being addressed as Jeth. 22. According to evidence they are cousins of Becha Lal. In the statement recorded by the Magistrate appellant Ram Swaroop was not named rather accused was addressed as Jeth. There is no eye-witness to corroborate that in the dying declaration word ‘Jeth’ was used in reference to appellant Ram Swaroop. The exhibit ka-9 has been placed on record, according to which she gave statement before Dr. V.K. Gupta, who was on duty. In alleged statement of deceased name of Ram Swaroop has been mentioned that he poured kerosene oil and put her clothes on fire but that alleged dying declaration is undated and even Dr. V.K. Gupta was not examined to prove that statement. Hence the said statement is not reliable. 23. According to medical report there was 40% burns and all the burn injuries were on lower extremities and lower part of the abdomen hips, legs and ankle joint so there were no burn injuries above abdomen. Had there been intention to kill her the kerosene oil would not be thrown only on the lower part of the body, which appears to be unnatural. 24. Had there been intention to kill her the kerosene oil would not be thrown only on the lower part of the body, which appears to be unnatural. 24. According to Becha Lal, husband of the deceased, she had threatened to commit suicide due to her illness and to implicate them. Hence either it was accidental burn or there was attempt to put herself on fire just to extend threat to her husband and other in-laws. Further her husband was sleeping along-with her and her children in the same room. The door was closed from inside hence during night no one would enter into the house and drag the deceased from the room where her husband was also sleeping along-with her and thereafter, she would be put on fire. Her mother-in-law was also in the house. 25. The incident took place in the night on 27/28.2.1981 and she died on 3.4.1981 after more than one month and cause of death was due to septicemia as a result of intensive burn so it appears that there was some negligence in her treatment also. Hence there was apprehension of death at that time when alleged statement was recorded. P.W. 1 brother of the deceased is not eye-witness. When Magistrate recorded the statement the certificate was given by Dr. V.K. Gupta as mentioned above but he was not examined by the prosecution. According to P.W. 1, where Munni Devi (deceased) was admitted and she remained there, his mausi and sister were visiting Munni Devi and his mother permanently remained there with Munni Devi. So there is chance of tutoring by her brother, mother, mausi and sister as they were present along-with Munni Devi. These circumstances create doubt regarding the genuineness and alleged dying declaration appears to be doubtful, unreliable and not trustworthy. Unless the dying declaration inspires confidence no conviction and sentence can be awarded merely on the basis of dying declaration though the statement of deceased in view of provisions of Section 32 of the Evidence Act if is trustworthy and reliable then it cannot be disbelieved merely on the ground that there was no shadow of immediate death but when it is expected that at any moment the shadow of immediate death was there then in these circumstance it is expected from injured to speak truth. In view of the judgment of the Apex Court in case of Kanchy Komuramma v. State of Andra Pradesh, 1996 SCC (Cri) 31, the prosecution is required to establish that the deceased, before she made the dying declaration was in proper mental condition to make the dying declaration. Merely because the dying declaration was recorded by a Magistrate itself is not a proof of truthfulness of the dying declaration. In the present case, though the doctor was not produced, however, even if such dying declaration was recorded by the Magistrate, the name of appellant was not mentioned and no other witnesses were examined to prove that the word ‘Jeth’ was referred in respect of Ram Swaroop because he was neither real brother of Becha Lal nor cousin and Becha Lal had two cousins. The above noted circumstance clearly shows that the prosecution failed to prove its case beyond reasonable doubt with regard to the involvement of Ram Swaroop, hence he will be entitled for benefit of doubt. Both the appellants are entitled for benefit of doubt. 26. Hence in view of aforesaid discussion, the judgement and order dated 25.9.1982 passed by Sessions Judge, Lucknow in S.T. No. 193 of 1982 arising out of Crime No. 78A/1981, Police Station-Sahadatganj, District Lucknow, whereby the accused Ram Swaroop was found guilty under Section 302 and Munnu Maharaj was found guilty under Section 302 read with Section 34 I.P.C. is hereby set aside. If appellants are in jail they have to be set at liberty forthwith in the present case. 27. Accordingly, present appeal is allowed. 28. We appreciate the assistance by the counsel for the parties including learned AGA. and Mr. Rajesh Kumar Dwivedi, who prepared and argued the appeal very well, who was appointed as ‘Amicus Curiae’.