Allahabad High Court
Kul Bhushan vs State on 28 September, 2018
Equivalent citations: AIRONLINE 2018 ALL 4511
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
JUDGMENT RESERVED ON : 12.09.2018
JUDGMENT DELIVERED ON :28.09.2018
Case :- CRIMINAL APPEAL No. - 1191 of 1988
Appellant :- Kul Bhushan
Respondent :- State
Counsel for Appellant :- Harish Chandra, Prakash Chandra Srivastava
Counsel for Respondent :- D.G.A., A.G.A.
Hon'ble Sudhir Agarwal,J.
Hon'ble Om Prakash-VII,J.
(Delivered by Om Prakash-VII, J.)
1. Present Criminal Appeal has been preferred by accused-appellant Kulbhushan against judgment and order dated 12.5.1988 passed by IIIrd Additional Sessions Judge, Budaun in Session Trial No. 321 of 1984 (State of U.P. Vs. Smt. Shanti Devi and others) under Section 302/34 I.P.C. and Section 4 of Dowry Prohibition Act, Police Station Alapur, District Budaun convicting and sentencing accused appellant Kulbhushan under Section 302 IPC for life imprisonment and under Section 4 of Dowry Prohibition Act rigorous imprisonment for one year. Rest of accused charge sheeted in the matter who were also facing trial have been acquitted and there is no Government Appeal against their acquittal.
2. Prosecution story in nutshell, as unfolded in written report Ext. Ka-2, is as follows:
3. P.W.-2, informant, Lal Bahadur, moved a written report (Ext. Ka-2) before Superintendent of Police, Budaun mentioning therein that deceased Smt. Sarla Devi, daughter of informant was married to accused Kulbhushan about 1-1/4 years ago. Accused appellant Kulbhushan used to ask deceased to bring Rs. 5,000/- cash and a Motor Cycle for him which she refused to do as financial condition of informant did not permit to fulfill the demand raised by accused appellant. Deceased was beaten by accused persons and was also tortured. Smt. Sarla Devi, deceased, had received minor injuries and came to informant's house about a month ago before her death and narrated about the atrocities committed on her by her in-laws and also informed about the demands being made by her in-laws. It is also mentioned that after a month accused appellant along with his uncle came to the house of informant to take Smt. Sarla Devi back. On being intervened by people of the village informant sent his daughter with accused Kulbhushan on assurance of accused appellant that he will not torture Smt. Sarla Devi, deceased in future. It is also mentioned that when informant had gone to take her daughter back on "Chhatthi" then she informed him entire facts. On 8.8.1983 informant's daughter Smt. Sarla Devi was burnt by accused persons. When first informant reached his village in the evening from Kachala, he received information about incident then in the morning he came to District Hospital, Budaun and found Smt. Sarla Devi, his daughter, dead. Thus prayer was made to take action against the accused persons. Endorsement was made by Circle Officer concerned Budaun on written report (Ext. Ka-2) on 10.8.1983 directing S.O., Alapur to get a case registered under Section 302 IPC and Section 4 Dowry Prohibition Act. This endorsement is proved by the prosecution as Ext. Ka-12.
4. It also appears that deceased had already been admitted in District Hospital, Budaun on 8.8.1983 by her in-laws and she was medically examined and following injuries were found on her body :
"Superficial burn present all over right forearm, left fore arm, front of chest and upper part of abdomen and front of knee in the area of 40 cm x 12 cm and below the umbilical and both lower limb and lower half of back, lower part of the scalp hair, front part singed."
5. In the last Doctor examining the deceased endorsed his conclusion as follows :
"Caused by flame, duration fresh. No smell of any combustible substance present."
6. She remained hospitalised and bed head ticket filed in the matter Ext. Ka-1 shows that deceased died on 9.8.1983 at 8.15 A.M. It also appears that information was also given to local police about death of the informant through Kanhai Lal, Ward Boy of District Hospital, Budaun. Inquest report was prepared on 9.8.1983 at 11 AM, which is Ext. Ka-3. Other police papers, letter to C.M.O. (Ext. Ka-4); letter to R.I. (Ext. Ka-5); G.D. Entry (Ext. Ka-6); photo lash (Ext.Ka-9) and sample seal (Ext. Ka-10) were prepared. Dead body was kept in sealed cloth and was sent for post mortem. Post mortem on the body of the deceased was conducted on 9.8.1983 at 11.15 P.M. On general examination she was found 22 years old, time of death is mentioned as 8.15 A.M., she was average built body, rigor mortis present over upper and lower limb, eyes half open, mouth closed, bluish spots found over places of body.
7. On examination of the body, following ante mortem injuries were found :
"Superficial burn second and third degree over the lower part of the face up to cheek sinjing of hairs, scalp present from upper part of the neck, front of chest, abdomen lower limb, anterior and posterior aspects up to dorsum of foot, buttock and lower part of abdomen, both forearms and upto hand and lower part of arm.
No smell of combustible substance was found coming out of the body."
8. Cause of death was shown in the Post Mortem Report (Ex. Ka-11) as a result of ante mortem burn injuries.
9. It also appears that on information received about incident P.W.-3 Suresh along with P.W.-4 Dharmsheela had reached the District Hospital in the night itself. P.W.-1, informant, reached in the morning. As per inquest report, at the time of preparation of inquest, informant, P.W.-1 and Om Prakash, uncle of accused, along with other witnesses were present and they have made their signature on the inquest report. In the column of opinion of Panchs following facts have been shown :
"हम पंचायन की राय में श्रीमती सरला की मौत स्टोव से जल कर हुई है. इसके मरने में कुछ स्वाह या संदेह नजर आ रहा है इसीलिए इसका पोस्ट मोर्टेम कराना जरूरी है."
10. It appears that on the basis of order passed by Circle Officer on Ext. Ka-2 and on the direction of S.O. Concerned, case crime no. 290 of 1983, under Section 302 IPC through G.D. No. 17 at 9.40 A.M. on 11.8.1983 was registered (Ext. Ka-13). Investigating Officer started investigation and visited place of occurrence, prepared site plan (Ext. Ka-14) mentioning all the details. Concerned S.O. who has investigated the matter has recorded statement of witnesses and accused persons were arrested. Completing entire formalities of the investigation charge sheet (Ext.Ka-16) was submitted against all accused including present appellant.
11. Prosecution case is also that deceased made oral dying declaration about the cause of her death to PW-3 and PW-4 in the hospital naming the accused persons that they after pouring kerosene on her body set ablaze her.
12. Cognizance was taken. Case being exclusively triable by Court of Sessions was committed to the Court of Sessions. Accused appeared. Prosecution opened its case describing all the evidence collected during investigation and proposed to be adduced during trial. Trial Court after hearing both parties framed charges for the offence under Section 302 read with Section 34 IPC and Section 4 Dowry Prohibition Act against all accused to which they denied and claimed their trial pleading not guilty.
13. In order to prove its case, prosecution examined P.W.-1 Dr. I. P. Gupta; P.W.-2 Lal Bahadur, informant; P.W.-3 Suresh, relative of deceased; P.W.-4 Dharmsheela, mother of deceased; P.W.-5 Babu Ram; P.W.-6 S. M. Manjar; P.W.-7 Dr. S.R. Gupta, who conducted post mortem on the dead body of deceased; P.W.-8 R.D. Gaur, Investigating Officer.
14. After completion of prosecution evidence statement of accused persons under Section 313 Cr.P.C. were recorded in which accused appellant has admitted the fact of marriage with deceased but denied about the prosecution evidence regarding demand of additional dowry and causing injuries to deceased at any point of time. It was specifically stated that since no demand was made at any point of time nor cruelty was caused to the deceased thus no panchayat was ever held. Prosecution evidence in this regard is based on false facts. Accused appellant also stated prosecution story to be false about manner of incident stated by prosecution witnesses. He has also stated the fact mentioned in the post mortem report to be false. Written report was also moved on the basis of false facts. Charge sheet was based on false facts. Prosecution witnesses have deposed before Court against accused due to enmity. Prosecution was also started against them on the ground of enmity and ''party-bandi'. It was specifically stated that he was one of the witnesses in a case in which Khursheed was accused and trial was going on. Prithvi Pal was also one of accused in the murder case of grandfather of accused. There is ''party-bandi' in the village Bichaula and on instigation of Prithvi Pal written report mentioning false facts was presented in the matter. Prithvi Pal and Khursheed were pursuing the matter on behalf of informant. It was also stated that at the time of incident he was not present in the house but he had gone to his sister's place and stayed there till 8.8.1983. He received information in the night of 8.8.1983 about the incident. Since there was no mode of conveyance to reach hospital in the night, therefore, he proceeded to the hospital from his sister's house in the morning and reached the hospital, then came to know that his wife Smt. Sarla Devi had died. Dead body of deceased was handed over to uncle of accused and cremation was done at Kachchala by accused appellant himself. It is also stated that when she was cooking food on the stove her sari caught fire and due to that reason she received burn injuries and his family members themselves had taken Smt. Sarla Devi in the Hospital for treatment.
15. Accused appellant has examined D.W.-1 Nusrat Ali, who has proved G.D. No. 23 recorded at 15.10. hrs. on 9.8.1983 at Police Station Civil Lines, Budaun which has been marked as Ext. Ka-3 and D.W.-2 Om Prakash Gupta, uncle of accused appellant.
16. On closer of evidence, Trial Court after hearing the parties and appreciating prosecution evidence convicted and sentenced accused appellant Kulbhushan under Section 302 IPC and Section 4 Dowry Prohibition Act as above and acquitted all other accused persons.
17. Feeling aggrieved with the said judgment, accused appellant has preferred this appeal.
18. We have heard Sri Prakash Chandra Srivastava, learned counsel for appellant and Sri Ratan Singh, learned A.G.A. for State.
19. Submission of learned counsel for appellant is that prosecution was not able to prove its case beyond reasonable doubt. Findings recorded by Trial Court are perverse and against the law. Since offence is said to have been committed on 8.8.1983, provision of Section 113-B of Indian Evidence Act (hereinafter referred to as the "Act") was not in existence, therefore, findings of Trial Court based on provision of Section 113-B of the Act is illegal. FIR is lodged belatedly. Plausible explanation was not given. Informant and his family members were also present at the time of preparation of inquest report and in the Hospital during treatment but no complaint was made at any point of time to the Police nor FIR was lodged. Trial Court has disbelieved theory of oral dying declaration but illegally on the basis of presumption convicted the accused applicant. Referring to entire evidence it was also argued that demands said to have been made on part of accused appellant as well as cruelty said to have been caused to the deceased before the incident were not proved by the prosecution. No complaint in this regard was ever made nor accused appellant caused injuries to the deceased at any point of time. Findings of Trial Court regarding convening of panchayat is also illegal and perverse. Thus referring to the entire evidence it was argued that impugned judgment and order suffers from illegality, perversity and infirmity which calls for interference by this Court.
20. Sri Ratan Singh, learned A.G.A. argued that delay in lodging F.I.R. has been properly and satisfactorily explained. Cruelty and harassment was being caused to deceased by accused appellant and accused persons caused burn injuries by pouring kerosene over the body of deceased and during treatment she had made oral dying declaration before P.W.-3 and P.W.-4. Medical evidence fully supports cause of death of deceased in the manner stated by prosecution witnesses. Findings recorded by Trial Court are absolutely correct. There is no illegality, perversity or infirmity in the impugned judgment and order.
21. We have considered rival submissions and have gone through the entire record.
22. In this matter, as is evident from record, deceased received burn injuries on 8.8.1983 in the night and she was admitted by her in-laws to the District Hospital, Budaun in the night itself. It is also evident from record that P.W.-3 and P.W.-4 both have reached the hospital in the night itself. Information about incident was given by one Prithvi Pal to P.W.-3 in his village. Thereafter he reached at village Bichaula. P.W.-1 had gone for holy dip at Kachla, therefore, P.W.-3 along with P.W.-4 Dharamsheela went to District Hospital and reached there in the night itself and they also stayed there during treatment. P.W.-2, informant reached Hospital in the next morning and in his presence inquest report was prepared. He is also one of the witnesses of the inquest. No complaint was made at that time regarding incident as disclosed in (Ext. Ka-2). P.W.-3 and P.W.-4 have also not made complaint to any one in the night or on the next day. Inquest report and police papers have been prepared without mentioning any crime number. A perusal of inquest report also reveals that witnesses of the inquest report were of the opinion that deceased died due to stove flame. Although post mortem was done because death was due to burn injuries but Doctor conducting post mortem on the body of the deceased did not find any smell of kerosene over the body of deceased. Injury report dated 8.8.1983 also reveals that no smell of combustible substance found present over the body of deceased. Charge sheet had been submitted against present appellant and other accused who were acquitted after trial.
23. Trial Court while passing impugned judgment and order did not place reliance on the said oral dying declaration but believing statement of P.W.-2, P.W.-3, P.W.-4 and P.W.-5 about demand of dowry, cruelty, beating drew presumption against present appellant for causing death of deceased. While drawing presumption about involvement of accused appellant in the present matter, Trial Court has also disbelieved the plea of alibi of accused appellant. Information regarding commission of offence has been given by P.W.-2 on 10.8.1983. It appears that on the basis of order passed on Ext. Ka-2, matter was investigated. Thus on the basis of above factual backdrop of the case, we will proceed to discuss submissions raised by learned counsel for the parties.
24. First and foremost question to discuss in the matter is that, whether Ext.-Ka-2, information given by P.W.-2 on 10.8.1983 is after thought due to instigation of Prithvi Pal and Khursheed. It is evident from record, and as has been mentioned herein above, that at the time of preparation of inquest report informant and his family members were present. P.W.-2 is also one of the witnesses of inquest report. No complaint was made at that time nor FIR was lodged. Dead body of deceased was cremated on 09.8.1983 and thereafter Ext. Ka-2 was moved. Nothing is mentioned in Ext.Ka-2 whether P.W.-3 accompanied PW-2 or informant all alone had gone to lodge FIR. Certainly in the present matter information through Ext. Ka-2 has been given at belated stage. No effort was made at the end of P.W.-2 to lodge F.I.R. at initial stage. Since on the ground of delay in lodging of FIR prosecution case cannot be discarded, therefore, other evidence available in the matter adduced in support of prosecution case has to be analysed.
25. As far as medical evidence is concerned, certainly it is a case of burn injury. Deceased also died as a result of burn injuries. Prosecution case is that deceased was burnt after pouring kerosene upon her body. When she was first attended by Doctor concerned on 8.8.1983 no smell of combustible substance was found present over the body of deceased. Nothing is also mentioned in the bed head ticket (Ext. Ka 10) to substantiate this fact. In the post mortem report also Doctor concerned did not mention any fact to substantiate that there was smell of kerosene from the body of deceased or from the clothes which deceased was wearing at the time of incident. Death of deceased is result of superficial burn injuries found on her body and deceased died due to that injuries then it cannot be said that her death is natural one. Defence has taken specific plea that deceased received burn injuries from the flames of stove while cooking food. Thus in the present matter it is to be seen whether version taken by the prosecution is correct or the plea taken by the accused appellant. Medical evidence to the extent that deceased died due to burn injuries received on 8.8.1983 in the house of accused appellant is proved.
26. Before dealing with statement of P.W.-2 and P.W.-3 on the point of demand of dowry, causing cruelty, it is made clear that Trial Court itself did not believe statement of P.W.-2 and P.W.-3 about oral dying declaration said to have been made by deceased. We have also scrutinized the prosecution evidence to see correctness of finding of Trial Court on this issue and no error or illegality is found. If statement of P.W-2, P.W.-3 and P.W.-4 are taken cumulatively in entirety on the point of additional demand of dowry or cruelty, findings recorded by Trial Court that accused appellant caused cruelty to deceased on account of demand of dowry is illegal. Trial Court has also taken aid of Section 113-B of the Act to draw presumption against accused appellant which is also illegal. It may be mentioned here that at no point of time before moving Ext. Ka-2, P.W-2, P.W.-3 and P.W.-4 made any complaint to anyone. Even FIR was not lodged by them. If for the sake of argument allegation levelled by prosecution witnesses against accused appellant be assumed to be true then also medical evidence does not support prosecution case because Doctor attending the deceased at initial stage while she was admitted for treatment, has specifically mentioned in the injury report that no smell of combustible substance is found on the body of injured-deceased. Oral dying declaration said to have been made by deceased was also found false. Thus, in our considered opinion there was no occasion to take recourse to Section 113-B of the Act. In the present matter offence is said to have been committed on 8.8.1983. Section 113-B of the Act was inserted in the year 1986, at the time of inserting penal provision of Section 304-B IPC. It is also evident that impugned judgment and order against the present appellant is passed by Trial Court keeping in mind Section 304-B IPC also, as would also be clear from the impugned judgment and order itself.
27. As far as injuries said to have been caused by accused appellant to deceased before this incident is concerned, there is no clear, firm and cogent evidence established by prosecution to form an opinion on this point. As far as convening of panchayat is concerned, although P.W.-4 Smt. Dharmsheela, P.W.-5 Babu Ram have supported this fact but in the cross examination P.W.-5 has specifically stated that fortunately he reached in the panchayat and no female was there. Trial Court while passing impugned judgment and order was also of the view that plea of accused appellant that deceased died due to burn injuries received by flame of stove while cooking food is not acceptable. In doing so, Trial Court has mentioned the reason in the impugned judgment and order that if such was the position, person present in the house himself would have reported the matter to police or any higher authorities at least after death of Smt. Sarala Devi. If findings recorded by Trial Court on this issue is analysed in the light of submissions raised by learned counsel as well evidence available on record in consonance with the documentary evidence Ext. Kha-3, since complainant side was also present in hospital at the time of preparing inquest report and also at the time of cremation, they have also not made any complaint. Apart to this, in-laws have admitted deceased in hospital. They have also informed police through Ext. Kha-3. Thus opinion formed by Trial Court appears to be based on conjectures and surmises.
28. Trial Court was also of the view that non disclosing of fact of additional demand said to have been made by accused appellant in the statement of P.W.-2 recorded under Section 161 Cr.P.C. will not be sufficient to disbelieve testimony of this witness. If the entire evidence is minutely analysed to see correctness of the finding of Trial Court, it also emerge that this fact did not find place in the statement of P.W.-2 and P.W.-4 recorded under Section 161 Cr.P.C. who are father and mother of deceased. If such was the position, P.W.-2 and P.W.-4 have not made this statement under Section 161 Cr.P.C. to Investigating Officer and the same were stated for the first time before Court, we are clearly of the view that it comes under the purview of improvement and finding recorded by Trial Court on this issue can not be said to have based on correct appreciation of evidence. This aspect of matter has not been considered by Trial Court in right perspective.
29. Moreover Trial Court has recorded its finding, keeping in mind Section 113-B of Evidence Act and also Section 304-B IPC. Offence is said to have been committed on 08.08.1983 and provisions of Section 113-B of Evidence Act and Section 304-B IPC were added in the statute book in the year 1986. Merely to the reason that impugned judgment and order was passed on 12.5.1988, aforesaid provisions were not applicable in the present case and could not have been relied by Trial Court. The approach of Trial Court basing its finding on the provisions of Section 113-B Cr.P.C. and Section 304-B IPC is erroneous and patently illegal.
30. Thus on close scrutiny of entire evidence and re-appreciating and comparing same with the findings recorded in impugned judgment and order, we are of the view that Trial Court has committed illegality while taking aid of Sections 113-B of Evidence Act and 304-B IPC at the time of appreciation of evidence. Trial Court has also mis-appreciated the fact and evidence of demand of additional dowry which has not been stated by prosecution witnesses to Investigating Officer at initial stage under 161 Cr.P.C and the same amounts to improvement. No complaint was made before police at the time of preparation of inquest report nor till cremation of dead body of the deceased, delay in lodging of the FIR has not been properly explained. Trial Court itself has disbelieved the dying declaration said to have been made by the deceased which is also correct, therefore, in our considered opinion on the strength of evidence available on record, accused appellant cannot be convicted and sentenced in the present matter. In-laws of the deceased have themselves hospitalized her for treatment. Even mother-in-law was present in the hospital. Accused appellant was not present at his house at the time of incident but he reached Hospital on the next day. Medical evidence does not support prosecution version instead supports the plea taken by accused appellant. Thus in our view, findings recorded by Trial Court about guilt of accused appellant under Section 302 IPC and Section 4 Dowry Prohibition Act cannot sustain and prosecution was not able to prove its case beyond reasonable doubt. Appeal, for the reasons discussed herein above, having merit is liable to be allowed. Accused appellant is liable to be acquitted of all the charges levelled against him.
31. Appeal is allowed. Impugned judgment and order dated 12.5.1988 passed by IIIrd Additional Sessions Judge, Budaun in Session Trial No. 321 of 1984 (State of U.P. Vs. Smt. Shanti Devi and others) convicting and sentencing accused appellant Kulbhushan under Section 302 IPC for life imprisonment and under Section 4 of Dowry Prohibition Act rigorous imprisonment for one year is hereby set aside. Accused appellant is acquitted of all the charges framed against him. He is on bail. He need not to surrender. Personal and surety bonds are cancelled. Sureties are discharged from their liability.
32. Copy of this order along with lower court record be sent to court concerned forthwith for compliance. Compliance report be also sent to this Court.
33. Keeping in view provisions of Section 437-A Cr.P.C., appellant Kulbhushan is directed to forthwith furnish a personal bond of the sum of Rs. fifty thousand and two reliable sureties each in the like amount before Trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
Order Dated : 28-09-2018.
Sachdeva