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Allahabad High Court · body

2018 DIGILAW 49 (ALL)

Mahesh v. State of U. P.

2018-01-06

ANIL KUMAR SRIVASTAVA II

body2018
JUDGMENT & ORDER : ANIL KUMAR SRIVASTAVA, J. 1. Instant appeal has arisen against the judgment and order dated 26.9.2014 passed by learned Additional Sessions Judge, Lucknow in S.T. No. 1013/2013, case crime No. 216/2013, Police Station Husainganj, District Lucknow, whereby the learned trial court has convicted and sentenced the accused-appellant under sections 498-A and 307, IPC and sentenced to rigorous imprisonment for ten years and fine of Rs. 5,000/- with default stipulation of two and half months under section 307, IPC and two years rigorous imprisonment and fine of Rs. 2000/- with default stipulation of one month under section 498-A, IPC. 2. As per the prosecution version, a first information report was lodged by Seema, wife of the accused Mahesh alias Rahul on 15.9.2013 at Police Station Husainganj, District Lucknow, stating that she was married with the accused-appellant about nine years back. Daughter was born out of their wedlock. During the intervening night of 14/15.9.2013 at about 01:00 a. m. accused came to the house in drunken condition. When the victim asked him about the whereabouts for the last two days, he poured kerosene oil upon her and set her ablaze. On the basis of first information report chik FIR was registered at case crime No. 216/2013, under sections 498-A, 307, IPC. Investigation was handed over to SI Radheshyam Singh. Victim was medically examined on 15.9.2013 at 09:00 a.m. at Dr. SPM Civil Hospital, Lucknow wherein superficial to deep burn all around 18% were found. Investigating Officer recovered a bottle of kerosene oil and match box, prepared the site plan, recorded the statement of witnesses. Thereafter charge sheet was submitted against the accused-appellant under sections 498-A, 307, IPC. 3. Accused was charged under sections 307 and 498-A, IPC. He denied the charges and claimed trial. 4. In order to prove its case, prosecution has produced PW-1 Seema Kashyap (victim), PW-2 Kumari Sakshi daughter of the victim and accused PW-3 S. I. Radheyshyam Singh Investigating Officer, PW-4 Constable Anuj Singh formal witness, PW-5 Dr. Suroor Ali, who has medically examined the victim. 5. In the statement under section 313, Cr.P.C. accused has stated that the victim is his legally wedded wife. He had taken the victim to the hospital. There was no demand of dowry as it was a love marriage. 6. Suroor Ali, who has medically examined the victim. 5. In the statement under section 313, Cr.P.C. accused has stated that the victim is his legally wedded wife. He had taken the victim to the hospital. There was no demand of dowry as it was a love marriage. 6. After appreciating the evidence on record, learned trial court has recorded the finding of conviction and sentenced the accused. 7. We have heard Shri. Dilip Singh Bhadauria, learned counsel for the appellant and learned A.G.A. Smt. Madhulika Yadav and perused the record. 8. At the very outset learned counsel for the appellant submits that the conviction of the appellant under section 498-A, IPC could not be sustained as there is neither any allegation of demand of dowry in the first information report nor any evidence was adduced by the prosecution in support of the charge. 9. Fir shows that there is no allegation of demand of dowry. Even the victim PW-1 Seema Kashyap has stated that it was a love marriage. There was no demand of dowry by the accused, rather his family members have demanded dowry but accused has refused to accept any dowry. Section 498-A, IPC specifically provides that there should be cruelty or harassment with a view to coerce the wife or any person related to her to meet any unlawful demand for any property or valuable security. Demand of dowry is unnecessary ingredient to make out a case under section 498-A, IPC. Burden lies upon the prosecution to prove the charges against the accused beyond reasonable doubt. It is the cardinal principle of criminal jurisprudence that prosecution should prove the charges against the accused beyond all reasonable doubt. Accused need not to prove his innocence, rather his culpability is to be proved by the prosecution by adducing evidence. Courts are obliged to appreciate the evidence keeping in view the basic cardinal principles of criminal jurisprudence. Learned trial court has convicted the accused under section 498-A, IPC merely on the ground that the statement of PW-1 is wholly reliable. When the testimony of PW-1 has been accepted as wholly reliable by the trial court then it should have been read as a whole wherein PW-1 Seema Kashyap has stated that there was no demand of dowry from the side of the accused. When the testimony of PW-1 has been accepted as wholly reliable by the trial court then it should have been read as a whole wherein PW-1 Seema Kashyap has stated that there was no demand of dowry from the side of the accused. In such circumstances, conviction of the accused-appellant under section 498-A, IPC cannot be sustained in the eyes of law. Accordingly, conviction and sentence passed by the learned court below under section 498-A IPC is liable to be set aside. 10. Now there remains the charge under section 307, IPC. At the very outset learned counsel for the appellant submits that he is not pressing the appeal on merit, rather he is pressing the appeal on the point of sentence only. It is submitted that the accused and victim are husband and wife. They have a daughter who was aged about eight years at the time of incident. Now she is about 13 years old. Incident took place all of a sudden. As per the prosecution version accused was in drunken condition wherein the incident took place. Now, both husband and wife are willing to live peacefully. Accused-appellant is in jail since 15.9.2013. Learned counsel has also placed reliance upon B.S. Joshi and others v. State of Haryana and another, (2003) AIR SC 1386. 11. Learned A.G.A. submits that prosecution has successfully proved the charges against the accused under section 307, IPC. Accused has poured the kerosene oil upon his wife and set her ablaze. Although the doctor has found the burn to the extent of 18% only but this could not be a ground which could help the accused. 12. Although the learned counsel for the appellant has not pressed the appeal on merit but being the Court of appeal we have to appreciate the evidence available on record. 13. Fir was lodged by victim PW-1 Seema Kashyap herself, who was medically examined by PW-5 Dr. Suroor Ali on 15. 9. 2013. Incident took place in the intervening night of 14/15.9.2013 at about 01:00 a. m. Dr. Suroor Ali PW-4 has found burn injuries on the body of the victim to the extent of 18% which were caused by pouring the kerosene oil upon the body of the victim and thereafter setting her ablaze. 14. Now it is to be seen as to whether the prosecution has successfully proved the charges against the accused. 15. Suroor Ali PW-4 has found burn injuries on the body of the victim to the extent of 18% which were caused by pouring the kerosene oil upon the body of the victim and thereafter setting her ablaze. 14. Now it is to be seen as to whether the prosecution has successfully proved the charges against the accused. 15. Testimony of the PW-1 coupled with the testimony of PW-2 Kumari Sakshi establishes that the accused came to his house in drunken condition. When PW-1 victim Seema Kashyap asked him about his where about for the last two days, he got annoyed. Some heated words were exchanged between the two. Thereafter, accused poured the kerosene oil upon the victim and put her to fire. PW-1 Seema has also stated that she went to her parental house wherein in the morning she was taken to the hospital and got medically examined. PW-2 Kumari Sakshi is although daughter of the accused and victim but her statement inspires confidence as she was aged about eight years only wherein she has narrated the story as has been seen by her wherein it is stated that the accused has poured kerosene oil upon the victim and put her to fire. Accordingly, the testimony of PW-1 Seema and PW-2 Kumari Sakshi cannot be disbelieved, rather both the witnesses are wholly reliable witnesses. Pouring of kerosene oil upon the victim and putting her to fire is sufficient to cause death in the ordinary course of nature. Although the extent of injury was found as 18% but it could not be said that the intention of the accused was not to kill the victim, although she survived. Hence, the learned trial court has rightly convicted the accused under section 307, IPC which finding is liable to be confirmed. 16. So far as point of sentence is concerned, learned counsel for the appellant submits that accused and victim are husband and wife having a grown up daughter. Incident took place under the influence of liquor. Learned counsel has placed reliance upon B.S. Joshi and others v. State of Haryana and another, (2003) AIR SC 1386 wherein it was held by the Hon'ble Apex Court that :- "It becomes the duty of the court to encourage genuine settlements of matrimonial disputes." 17. Admittedly, accused and victim are husband and wife. Incident took place in a sudden provocation under the influence of liquor. Admittedly, accused and victim are husband and wife. Incident took place in a sudden provocation under the influence of liquor. Although offence under section 307, IPC is not compoundable but being a matter between husband and wife and keeping in view the extent of injuries, it would be appropriate that the accused-appellant be sentenced to the period already undergone which is about four years and three months. To meet the ends of justice, keeping in view the relationship of the accused and victim coupled with the fact that they have a grown up daughter who needs care, love and affection of her father at this age, period of sentence is liable to be modified as already undergone. 18. Accordingly, appeal is partly allowed. Conviction and sentence of accused-appellant under section 498-A, IPC is set aside. Accused-appellant is convicted under section 307, IPC and sentenced to the period already undergone with a fine of Rs. 3000/-. In default of payment of fine he has to undergo an imprisonment for one month. 19. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.