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2018 DIGILAW 2505 (ALL)

Subhash Chandra v. State of U. P.

2018-12-10

SANJAY HARKAULI

body2018
JUDGMENT : Sanjay Harkauli, J. 1. By means of this petition under Section 482 Cr.P.C., the judgment passed in Criminal Revision No. 288 of 2008 dated 06.09.2008 and the order passed by the learned Chief Judicial Magistrate, Barabanki dated 21.05.2008 have been challenged. 2. By the impugned order dated 21.05.2008, the learned Chief Judicial Magistrate, Barabanki had rejected the protest petition of the complainant-petitioner and accepted the final report as submitted against the accused-respondent no. 3. A criminal revision being Criminal Revision No. 288 of 2008 was preferred, but the same was also dismissed as warranting no interference. Aggrieved by the said two judgments, the present petition under Section 482 Cr.P.C. has been filed. 3. Brief facts are that the petitioner moved an application under Section 156(3) Cr.P.C. with the allegations that his daughter Km. Poonam @ Gudiya aged about 17 years was a student of B.A. Part-I in Patel Mahila Degree College and in connection with her studies, she was living with her maternal uncle-respondent no. 3. On 06.04.2005, at about 4:15 p.m., respondent no. 3 informed the complainant-petitioner by telephone that Poonam had met with some accident. Upon hearing this, the petitioner and his wife went to the spot where he was informed by respondent no. 3 that Poonam had committed suicide by lighting herself on fire with gas cylinder. Upon seeing the charred dead body of Poonam, the complainant lost his mental balance. A near relation of the complainant (brother-in-law) Anand Prakash Gautam came to the spot and assured the complainant that he will lodge a F.I.R. in Kotwali and got the signatures of the complainant done on a plain piece of paper. Later on, the complainant came to know that with the active assistance of the three accused, Anand Prakash Gautam had given an application narrating therein that Poonam had committed suicide. 4. According to the complainant, accused no. 2, the wife of accused no. 1/respondent no. 3, was having illicit relationship with the third accused. Poonam had become aware of this and had given information to accused no. 1/respondent no. 3. The matter may not leak to others was a motivating factor by reason of which, the three accused poured kerosene oil upon Poonam/strangulated her to death and with a view to remove evidence, lit Poonam on fire. Poonam had become aware of this and had given information to accused no. 1/respondent no. 3. The matter may not leak to others was a motivating factor by reason of which, the three accused poured kerosene oil upon Poonam/strangulated her to death and with a view to remove evidence, lit Poonam on fire. The complainant had clearly seen that the body of Poonam was charred and smell of kerosene oil was present over her body. After the panchayatnama, corpse of Poonam was subjected to postmortem examination and in the report of said examination, it was clearly written that the smell of kerosene oil was present. 5. The complainant approached S.H.O. of Police Station Kotwali Nagar, Barabanki, Superintendent of Police, Barabanki and also wrote letters to the Chief Minister of Uttar Pradesh, Inspector General of Police and Deputy Inspector General of Police (Zone), but no result came out, as such, he filed an application under Section 156(3) Cr.P.C. The learned Magistrate allowed the said application on the basis of which, a criminal case was registered against the three accused persons. 6. After investigation, a final report was submitted by the investigating officer in the court of the learned Magistrate. The learned Magistrate issued notice to the complainant. Upon receipt of notice, the complainant filed a protest petition. Learned Magistrate rejected the protest petition and accepted the final report. Aggrieved thereby, Criminal Revision No. 231 of 2006 was filed and vide judgment passed by the learned Sessions Judge, Barabanki dated 14.1.2007, the revision was allowed and the matter was remanded back to the learned Magistrate with direction to take evidence on the police report. 7. The learned Magistrate examined Ram Chandra, Prem Chandra and Shambhoo Nath and thereafter heard the parties and passed the impugned order thereby rejecting the protest petition and accepting the final report. 8. Aggrieved by the said judgment of the learned Magistrate, Criminal Revision No. 288 of 2008 was filed. After hearing the parties thereon, the learned revisional court held that the complainant was not an eye-witness and he was making accusation on the basis of some signs on the spot, which no longer existed, on the basis of which, complainant formed opinion that murder has been committed. After hearing the parties thereon, the learned revisional court held that the complainant was not an eye-witness and he was making accusation on the basis of some signs on the spot, which no longer existed, on the basis of which, complainant formed opinion that murder has been committed. Learned revisional court also observed that the revisionist himself had given information to the police prior to moving the application under Section 156(3) Cr.P.C. to the effect that Poonam had committed suicide and that nothing was borne out from the record that there was commission of any cognizable offence by the accused. The revisional court accordingly dismissed the revision. Aggrieved by the judgment of the revisional court, present petition under Section 482 has been filed. 9. Learned counsel for the petitioner and learned A.G.A. for the State have been heard and record has been perused. 10. Perusal of record goes to show that the complainant was not present at the time of occurrence. The three witnesses recorded by the learned Magistrate in pursuance of direction of the revisional court i.e. Ram Chandra, Prem Chandra and Shambhoo Nath had also not supported the theory of murder in their statements. The motive ascribed for the commission of offence is that there were illicit relations between accused no. 2 and accused no. 3. Admittedly, accused no. 2 was the wife of accused no. 1/respondent no. 3. When Poonam herself narrated this fact to accused no. 1/respondent no. 3, all the three accused persons connived and committed murder of Poonam. This only remains a theory as no such evidence of any illicit relationship between accused no. 2 and accused no. 3 has been brought to light by any independent and credible evidence at all. 11. Further, when accused no. 2 was the wife of accused no. 1/respondent no. 3 and to prevent leak of information of the aforesaid illicit relation, all the three accused conspired and committed the murder, then the natural conduct would have been spoiling of relationship between accused no. 2 and accused no. 3 on one hand and husband of accused no. 2 i.e. respondent no. 3 on the other hand. This obviously and naturally ought to have led to some overt act by accused no. 1, the husband. However, no evidence of any act by accused no. 1/respondent no. 2 and accused no. 3 on one hand and husband of accused no. 2 i.e. respondent no. 3 on the other hand. This obviously and naturally ought to have led to some overt act by accused no. 1, the husband. However, no evidence of any act by accused no. 1/respondent no. 3 on account of discovering some illicit relationship between his wife and accused no. 3 has been shown by any evidence at all. No witness of even hearing any such rumour regarding illicit relationship between accused no. 2 and accused no. 3 has been brought on record. 12. Learned counsel for the petitioner has argued only one point, which is to the effect that smell of kerosene oil was found to be present in the postmortem report. This obviously was not possible if Poonam had died on account of burns from a gas cylinder. However, when there is no evidence on record to the effect that accused no. 1/respondent no. 3 was present on the spot at the time of occurrence, how exactly Poonam got burnt could not have been within his special knowledge and, therefore, he was not in a position to specifically allege as to whether burn injury was on account of fire from gas cylinder or pouring kerosene oil and setting on fire. 13. This argument alone, therefore, is wholly insufficient to corroborate the theory of murder. There is no other evidence on record to implicate and connect the accused persons with the alleged crime. 14. In totality of the circumstances and considering the evidence as borne out from the case diary and statements of three witnesses as recorded by the learned Magistrate, the theory of murder cannot be said to be proved even prima facie. 15. I find no infirmity in the impugned judgments. 16. This petition also lacks merit and deserves to be dismissed. 17. The petition under Section 482 Cr.P.C. is hereby dismissed.