Allahabad High Court
Bachau Alias Sidhnath & Others vs State Of U.P. on 20 November, 2018
Equivalent citations: AIRONLINE 2018 ALL 4769
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Court No. - 42 Case :- CRIMINAL APPEAL No. - 5099 of 2002 Appellant :- Bachau Alias Sidhnath & Others Respondent :- State Of U.P. Counsel for Appellant :- Ashwani Kumar Awasthi,Manish Tiwary Counsel for Respondent :- Govt. Advocate,Vikas Singh Hon'ble Arvind Kumar Mishra- I.J.
Appellants have preferred this appeal against the judgment and order of conviction dated 25.11.2002 passed by the Additional Sessions Judge (Fast Track Court No.3), Varanasi in Sessions Trial No.327 of 1996, State Vs. Bachau @ Sidhnath and another, arising out of Case Crime No.239 of 1990, under Section 304 IPC, Police Station- Sigra, District- Varanasi, whereby the accused-convicts have been sentenced to 10 years' rigorous imprisonment with fine Rs.2000/- under Section 304/34 IPC, in default of payment of fine, two months' additional imprisonment.
Heard Sri Manish Tiwary, learned counsel for the appellants as well as Sri Vikas Singh, learned counsel for the informant and learned A.G.A. for the State.
Factual matrix of this case is that an F.I.R. was lodged at Police Station- Sigra at 11.40 a.m. on 27.05.1990 by Baikunth Nath Gupta s/o Gauri Shanker Gupta against two accused- Bachau @ Sidhnath and Rajendra Prasad, the real brother of the informant for causing death of his wife- Meera Devi- with the allegations that on 27.05.1990 he was lying idle in his house, it was around 10.00 a.m. when his son Arun Kumar, aged about 8 years informed him that his mother is under flames and she has been put to flames by his uncles- Bachau @ Sidhnath and Rajendra Prasad and he saw them fleeing away from the spot. His mother is wriggling with pain. The informant too arrived on the roof, thereafter came to his room, took the quilt and covered his wife with the quilt. While he was preparing to start for the hospital, his wife succumbed to her injury. The dead body has been placed in the room, while the informant has came to lodge the report. Motive behind the incident was stated to be enmity on account of partition of the property, due to which the incident was caused by his brothers- Bachau @ Sidhnath and Rajendra Prasad.
The contents of aforesaid information were taken down in Check FIR on 27.05.1990 at 11.40 a.m. at case crime No.239 of 1990, under Section 304 IPC, Police Station- Sigra, District Varanasi. Check FIR is Exhibit Ka-1 on record. On the basis of entry so made in Check FIR, a case was registered against the aforesaid accused persons in the General Diary, which is Exhibit Ka-9.
Thereafter, the investigation ensued and the same was taken over by P.W.6 M.P. Singh, who took note of contents of the Check FIR and recorded statement of eye- witness- Arun Kumar Gupta and inspected the spot and obtained various articles- bottle, match- stick, ash- from the spot and prepared the recovery memo and proved the same as Exhibit Ka- 6. He also prepared the site map of the place of occurrence, Exhibit Ka-5 and also got recorded statement of the informant under Section 164 Cr.P.C. on 25.05.1990 before A.C.J.M. VIII, Varanasi and arrested the accused and also recorded the statement of the other family members of the informant and the accused.
Relevant to mention that after the information of death was received, the preparation of inquest commenced at 12.40 P.M. on 27.05.1990 and completed at 01:40 p.m. the same day. This inquest report is Ext. Ka-3. In the opinion of inquest witnesses, it was suggested that dead body of deceased- Meera Devi- be sent for postmortem examination, for ascertaining real cause of death. In this way, certain relevant papers were prepared for sending the dead body for postmortem examination.
Thereafter, the dead body of Meera Devi was sent for autopsy, where Dr. C.V. Tripathi PW-3 conducted postmortem examination on the corpse of Meera Devi on 25.05.1990 at 3.00 p.m. Following ante-mortem injuries were found on the corpse of the deceased- Meera Devi by Dr. C.V. Tripathi PW-3, which are extracted herein below:-
"Dermo Afidermaldingi burn all over body with deep burn on the stomach. The right side of the hair on the head received severe burn and smell of kerosene oil was felt."
Cause of death was stated to be due to shock as a result of burn injury.
Dr. C.V. Tripathi PW-6 has proved this postmortem examination report, as Exhibit Ka-2.
The Investigating Officer, M.P. Singh, PW-6, after completing various formalities, filed charge-sheet against the accused under Section 304 IPC at Case Crime No.239 of 1990 and has proved the same as Exhibit Ka-7 on record.
Thereafter, the case of the appellants was committed to the Court of Sessions from where it was made over to the aforesaid trial court for conduction of trial. The learned trial Judge heard the appellants on the point of charge and found prima facie ground existing for framing charge under Section 304 IPC, vide his order dated 29.08.1996. The charge was read over and explained to the accused, who denied the charge and opted for trial.
The prosecution in order to prove guilt of the accused examined as many as seven prosecution witnesses. Brief reference of the same is sketched herein under:-
Arun s/o Bakunth PW-1 is the star witness of the incident and has described about the incident.
Ram Naresh Upadhyaya P.W.2 has made relevant entry in the concerned Check FIR and has proved the same as Exhibit Ka.1.
Dr. C.V. Tripathi P.W.3 is the doctor witness. He has conducted postmortem examination on dead body of the deceased- Meera Devi and has proved postmortem examination report Ext. Ka-2.
Smt. Narendra Kaur Bhatia is P.W.4. She facilitated preparation of the inquest report along with the Investigating Officer on 27.05.1990 and has proved the inquest report, Exhibit Ka-3.
Kallu P.W.5 is the brother of the P.W.1 Arun and son of the deceased. He has proved the written report, which is Exhibit Ka-3.
M.P. Singh P.W.6 is the Investigating Officer. He has detailed about the various steps taken by him for completing the investigation. Besides proving a number of papers, he has also proved charge sheet Ext. Ka-7.
Ram Naresh Upadhyaya P.W.7 is the then Head Mohirrir of Police Station- Sigra, who has proved the carbon copy of the concerned General Diary, whereby the case was registered against the accused, which General Diary entry was made by the then Head Mohirrir Triveni Prasad. The Carbon Copy of the G.D. is Exhibit Ka-9.
M.P. Singh, the Investigating Officer was again summoned by the trial court as C.W.1, wherein he has proved preparation of inquest report on 27.05.1990.
Thereafter, the evidence for prosecution was closed and statement of appellants was recorded under Section 313 Cr.P.C., wherein, both the accused-appellants have claimed to be innocent and submitted that deceased was not having good relations with her husband, therefore, she committed suicide and they have been implicated on account of grudge and enmity.
Thereafter, the defence also led ocular testimony and has produced Gauri Shankar DW-1. He is the father of the informant and father-in-law of the deceased- Meera Devi. He has testified to fact that he had partitioned his property 25 years ago and Ram Prashad and Baikunth- the other to sons- were residing in separate rooms of the house, whereas he used to reside with the accused sons Rajendra and Bachau on the ground floor of the house.
Ram Prasad is DW-2. He claims himself to be brother of the accused.
Smt. Veena Devi is D.W.3. She is the sister of the accused and the informant. She has stressed fact of suicide being committed by the deceased herself.
Rathan Dubey is D.W.4. He is the independent witness and has proved the fact that the deceased put herself on fire on the roof.
Thereafter evidence for the defence was closed and the matter was posted for arguments. Learned trial court after hearing both the parties and appreciation of evidence and marshalling of facts passed the aforesaid judgment and order of conviction dated 25.11.2002 and sentenced the appellants under Section 304/34 IPC to 10 years R.I. coupled with fine Rs.2000/- with default stipulation to suffer additional imprisonment for two months, which paved way for this appeal.
Consequently, this appeal.
Contention has been raised that cumulative reading of facts and circumstances, vis-a-vis, evidence on record would indicate that it is purely a case of suicide. No offence, whatsoever, was committed by the present accused because there was no motive to commit the offence in question. The only testimony of P.W.1 Arun, who is the son of the deceased, is tutored one and he is a chance witness, his testimony is full of embellishments, improvements, inherently self contradictory and cannot be believed and it does not inspire confidence. Testimony of defence witnesses shall stand at par with the prosecution witnesses of fact, but their testimony has been brushed aside by the trial court for no worthy reason. The police infact took with them the two accused to the police station and detained them on the day of the incident. Testimony of prosecution witness particularly Arun P.W.1 is indicative of presence of accused in the house after the occurrence and there was quarrel going on. This is an exclusive independent circumstance, which alludes to innocence of the accused. Police raised concocted and false theory of subsequent to the incident, whereas, P.W.1 Arun himself has testified about the arrest of the accused on the day of the occurrence by the police. He also submits that the investigation is faulty and unfair and has been done in a mechanical way. Lastly, learned counsel also contended that in this case, punishment awarded against the appellants is too harsh and is not justified under facts and circumstances of the case. The prosecution evidence is shallow and sketchy and it does not inspire confidence.
Learned AGA, while replying to the aforesaid arguments, has submitted that testimony of all the prosecution witnesses is consistent, clinching and inspiring confidence. All ingredients of Section 304 IPC have been proved and every aspect, as required under law, has been established. The appellants were unable to bring out and establish their case of suicide committed by the deceased. The trial court has considered all the substantial facts and circumstances of the case comprehensively and based its judgment of conviction on the same, which cannot be faulted with.
Also considered above submissions.
The moot point that arises for adjudication of this appeal relates to fact whether the charge under Section 304/34 IPC stands proved beyond reasonable doubt against the accused?
The genesis of the first information report is rooted in the death of Meera Devi wife of informant- Baikunth Nath Gupta s/o Gauri Shanker Gupta regarding which a written report was lodged at Police Station- Sigra, district- Varanasi on 27.05.1990 at 11.40 a.m., wherein allegations was made, inter alia, that around 10.00 a.m. on 27.05.1990, when the informant was lying idle in his room, he was informed by his son Arun that his mother was got burnt by his uncle- Bachau and Ranjendra- and they have fled away from the scene after causing burn. The informant rushed onto the roof, found his wife Meera Devi burning, then came back to the room, took the quilt, again came to the spot and covered his wife with quilt. While he was about to start for Hospital, her wife- Meera Devi- died.
The motive behind the offence was stated to be partitioned of property. It would be fair at the outset to take note of testimony of D.W.1 Gauri Shanker that he had partitioned his property among his four sons and two of them- the informant and Ram Prasad- were residing in separate accommodation of the same house, whereas, he (D.W.1) was residing on the ground floor with the Bachau and Rajendra. His testimony further reflects that Bachau and Rajendra were helping him in running his shop. The Confectionery Shop was given previously to the informant- Baikunth, but he was not satisfied and wanted share in the shop of his father- D.W.1 Gauri Shanker.
Under the aforesaid proved facts, it can be concluded that the property of the father of the informant had been partitioned and no specific challenge has been made to D.W.1 Gauri Shanker that it was not so partitioned by him, therefore, the motive behind the incident is not proved specifically to the ambit that the dispute related to partition of the property.
Now, the testimony of the star witness- P.W.1 Arun can be scrutinized, at this juncture. He has stated that it was 10 a.m. on the day of occurrence (27.5.1990). He was eating bread and his mother has gone onto the roof of the house. His mother - Meera Devi- had gone to the roof for drying clothes. His uncle- Rajendra and Bachau- also went on the roof. They were holding bottles with kerosene oil. Some whispering sound of his mother was heard by him, then he rushed onto the roof, where he saw, his uncle- Rajendra gagging mouth of his mother and Bachau was sprinkling kerosene oil on her; and after sprinkling the kerosene oil, he applied lighted match-stick to his mother, due to which, her mother was engulfed by the flames.
In his examination-in-chief, P.W.1 has testified that both his uncles fled way from the scene after putting her mother on fire by applying match-stick. He rushed down stairs and informed his father- the informant- Bakunth- that his mother is burning and burn has been caused by his uncle- Bachau and Rajendra and they have fled away. His father went- up stairs, from there he came back to his room, took the quilt and went upstairs and covered the deceased with it so as to extinguish the fire and his mother was taken down stairs in the room of the informant. His brother and sister also arrived on the spot. But his mother had expired on the roof itself.
This is the solitary testimony regarding the incident having been caused by the accused. His testimony clarifies that after the incident, both the accused- Bachau and Rajendra- fled away from the scene. However, in his cross-examination, he has admitted fact that he has presented some affidavit along with affidavit of his father (informant) signed by him and also identified photographs of his own and that of his father, which have been proved as Exhibit Kha-1 to Kha-3 and which was presented before the Court. In this affidavit, it was stated that he did not see his mother- Meera Devi being burnt by Rajendra and Bachau. He, however, has denied suggestion that averment made in the affidavit that his mother died on account of suicide. He further claims that a compromise was reached, therefore, affidavits were prepared and filed. But the compromise was not worked out, then his father asked him to adduce testimony.
However, on point of partition, he himself has testified in his cross-examination on page- 16 of the paper book that his father and uncles all were residing separately in their respective rooms. This also proves partition having taken place prior to the incident. However, there is great inconsistency and contradiction as to what he testified before the trial court and what statement he gave to the Investigating Officer. As per his statement given to the I.O., he along with his father went onto the roof, his testimony reflects that he followed his father upto the roof. He has been asked as to how can he assign reason for such statement, but he could not assign any worthy reason for his statement recorded under Section 161 Cr.P.C.
On page 20, he has stated that the police had arrived in the meanwhile, when the body was taken down (from the roof) in the room and his brother and uncles were quarreling with each other and his father was also quarreling with them. In paragraph no.11 of his cross-examination on page- 20 of the paper book itself this witness says that police arrived on the spot and took with them- Rajendra and Bachau (the two accused). Rajendra and Bachau were taken by the police from the house of the accused itself. Statement of his father was recorded at the police station, however, the police detained his uncles at the police station. This testimony itself is fair enough to indicate that the police took with them both the accused on the very day of the incident from the house and detained them at the police station. The version of the I.O. M.P. Singh- P.W.6- that he arrested the accused subsequently to the incident is proved false and misleading.
Mere presence of the accused after the incident in the house itself is a circumstance, which may reflect innocence of the accused- appellants.
Contention has been raised by the appellants that it is a matter of suicide, but it has been deliberately coloured by the informant on account of acrimony of bitter relationship with his brothers- the present accused.
If the manner and style of the incident, as described by P.W.1 Arun, is taken to be correct, then one of the accused had gagged mouth of the victim- Meera Devi- whereas Bachau sprinkled kerosene oil and applied lighted match-stick on her, due to which, she was burnt. Had it been so then, the victim, who was putting on bangles in her hand, must have protested in order to extricate herself out of the grip of the accused and after the accused had fled away from the spot, she must have endeavour by all means to save herself and in the process of such gesture possibility of bangles being broken (at least one single bangle) worn by her at the time of the occurrence was in all likelihood imminent. But to utter surprise, no bangle was found broken, which was put on by the deceased. That is why, no pieces of broken bangles were found on the spot and not collected by the I.O. while collection of ash, match-stick, bottles etc. were made by him and no such description has been made in the memo- Exhibit Ka-6.
This aspect is an independent circumstances and is a sure indication that no protest, whatsoever, was made by the deceased while she was engulfed by the flames and she did not tried to save herself from the burn. It means, it was a burn case but without protest by the victim, whereas as per description of the occurrence by P.W.1 Arun, when the lighted match-stick was applied on her and burn was caused by the two accused they fled away from the scene, then the victim must have reacted at that point of time for saving herself and in the bid reaction would have the effect of breaking the bangles worn by her. Here in the context, non- breaking of bangles worn by the deceased support the theory of suicide being committed by the victim herself.
In that regard the independent testimony of D.W.4 Ratan Dubey inspires confidence that he saw the deceased pouring something on her self and thereafter she caused burn by lighting match-stick on her on the day of occurrence. This particular piece of testimony went almost unimpeachable and has not been put to challenge by the prosecution. He has denied suggestion that he did not see the occurrence. It can be conveniently observed that the Investigating Officer has tried to improve the situation and the fact is that he took with them both the accused and detained them and later on showed false arrest of them.
Statement of Arun P.W. 1 the sole eye-witness of the occurrence is on the face contradictory to the statement recorded by the I.O. on the vital point of his arrival on the spot and also is in contrast to the affidavit sworn and filed by him before the court, which speaks otherwise than the ocular testimony given by him before the trial court.
On these vital aspects and particularly on part of involvement and culpability of the accused in the commission of the offence the evidence and facts of the case was not properly scrutinized by the trial court, though the evidence and circumstance was apparent and tilting more in favour of appellants and it is correct to say that the testimony of the defence witnesses particularly that of D.W.1 and D.W.4 was not properly appreciated and was not given due weightage by the trial court.
On careful appraisal of the record as well as testimony and appraisal of facts and circumstances, preponderance of commission of suicide cannot be ruled out, whereas, the possibility of commission of the offence charged with, is not supported either by the testimony or the attendant facts and circumstances of this case.
Therefore, the conviction recorded against the appellant and the sentence imposed is not justified and is not sustainable and the judgment and order of conviction dated 25.11.2002 passed by the Additional Sessions Judge (Fast Track Court No.3), Varanasi in Sessions Trial No.327 of 1996, State Vs. Bachau @ Sidhnath and another, arising out of Case Crime No.239 of 1990, under Section 304 IPC, Police Station- Sigra, District- Varanasi is accordingly set aside. Consequently, this appeal is allowed.
The appellants are exonerated of charge under Section 304/34 I.P.C.
Both the appellants are on bail. They need not surrender. Their bail bonds are hereby cancelled and sureties are discharged. However, they will comply with the provisions of Section 437-A Cr.P.C.
Let a copy of this order be certified to the lower court for intimation and follow up action.
Dt.20.11.2018 Raj