Allahabad High Court
Arvind Bajpai vs State Of U.P. on 1 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1667, (2020) 110 ALLCRIC 95 (2020) 1 ALLCRIR 478, (2020) 1 ALLCRIR 478
Bench: Sudhir Agarwal, Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on : 18.04.2019 Delivered on : 01.10.2019 Court No. - 34 Case :- JAIL APPEAL No. - 3231 of 2015 Appellant :- Arvind Bajpai Respondent :- State Of U.P. Counsel for Appellant :- From Jail,A.N. Mishra,Lal Chandra Mishra (A.C.) Counsel for Respondent :- Syed Ali Murtaza (A.G.A.) Hon'ble Sudhir Agarwal,J.
Hon'ble Rajendra Kumar-IV,J.
(Delivered by Hon'ble Rajendra Kumar-IV,J.)
1. Accused-appellant stood for trial in Sessions Trial No. 762 of 2012 (State v. Arvind Bajpai, Crime No. 464 of 2012), under Section 302, Police Station Barra, district Kanpur Nagar, pending in the Court of Additional District and Sessions Judge, Court No.6, Kanpur Nagar and came to be decided by the said Court vide judgment and order dated 09.04.2015 convicting and sentencing him under Section 302 IPC to undergo imprisonment for life and fine of Rs. 5,000/-. Appellant sought interference of this Court by filing this Jail Appeal from Jail through Jail Superintendent concerned.
2. Prosecution story, in brief, is that PW-1 Vishal Bajpai, submitted a written Tehrir Ex. Ka-1 getting it scribed by PW-2 in the Police Station Barrar stating that his mother Smt. Aneeta Bajpai was present in the house at 8:00 a.m. on the fateful day i.e. 25.05.2012. Accused (his father) came there and set her at fire by pouring kerosene oil on her. PW-1 and 2 went to take water at that time. When they came back to house, came to know that accused (father) set victim at fire. Accused started to abuse PW-1 and 2 also. Ex.Ka-1 further recites that incident was witnessed by Vinod Tiwari and Kalka Prasad (both unexamined), residents of same vicinity. Victim was taken to hospital, where she was admitted for medical treatment.
3. On the basis of written Tehrir, chick First Information Report (herein after referred to as 'FIR') was registered by Head Constable clerk, Arvind Kumar, PW-4, as Case Crime No. 464 of 2012 under Sections 307, 323, 504 IPC against accused-appellant and entry of case was made by him in General Diary, copy whereof is Ex. Ka-4. During course of treatment, victim Smt. Aneeta Bajpai succumbed to burn injuries on 07.06.2012.
4. PW-3, Dr. Sanjeev Kumar, who was posted on 03.06.2012, as Medical Officer in District Hospital, Kanpur Nagar, conducted autopsy over dead body of Smt. Aneeta Bajpai, aged about 40 years, wife of Arvind Bajpai and prepared postmortem report Ex. Ka-2. Doctor opined that Smt. Aneeta Bajpai died due to burn injuries and infection.
5. PW-6, SI Chandra Prakash Bhatt, held inquest over dead body of deceased, prepared panchayat-nama, Ex. Ka-6, and case was converted to Sections 304, 323 and 504 IPC. Later on, Court directed it to be converted in Section 302 IPC.
6. PW-5, SI Ghanshyam Yadav, undertook investigation and during the course of investigation recorded statements of Panch witnesses and other witnesses. After completing entire formalities of investigation, he submitted charge-sheet Ex.Ka-7 against accused.
7. Case, being exclusively triable by Court of Sessions, was committed to Sessions Judge, wherefrom, it was transferred to Additional Sessions Judge, Court No. 6, Kanpur Nagar for disposal in accordance with law.
8. Trial Court framed charge on 10.01.2013 against accused under Section 302 IPC, which reads as under :-
"eSa] vejthr f=ikBh vfrfjDr ftyk ,oa l= U;k;k/kh'k] ^U;k;ky; d{k la[;k&6^] dkuiqj uxj vki vjfoUn cktisbZ ds fo:) v/kksfyf[kr vkjksi fojfpr djrk gwW %& ;g fd fnukad 25-05-2012 dks lel 8-00 cts iwokZUg] LFkku e-ua- bZ-MCyw-,l- 285 xqTtu fogkj] djZgh] pkSdh o Fkkuk {ks= cjkZ] tuin dkuiqj uxj esa vkius viuh iRuh vuhrk cktisbZ dh gR;k djus dh fu;r ls feV~Vh dk rsy ml ij Mkydj tyk fn;k] ftlls mldh e`R;q gks xbZ vkSj vkius gR;k dk vijk/k dkfjr fd;kA rn~uqlkj vki mijksDr dk ;g d`R; Hkkjrh; n.M lafgrk dh /kkjk 302 ds vUrxZr n.Muh; ,oa bl U;k;ky; ds izlaKku esa gSA vr% eSa ,rn~}kjk funsZf'kr djrk gwW fd mDr vkjksi ds fy, vki mijksDr dk fopkj.k bl U;k;ky; }kjk fd;k tk;sA "I, Amarjeet Tripathi, Additional District and Sessions Judge, Court Room No. 6, Kanpur Nagar, frame you, Arvind Bajpeyee, with the following charge:-
That on 25.05.2012 at 8:00 a.m. at the House No. EWS 285, Gunjan Vihar, Karrahi, Police Outpost and PS - Barra, District - Kanpur Nagar, you, with the intention to kill your wife, poured her with kerosene and set her a fire, resulting in her death, thereby you committed an offence of murder. Accordingly, this act of yours is an offence punishable under Section 302 IPC and is in the cognizance of this court.
I hereby direct you that for the aforesaid charges, you be tried by this court.
The aforesaid charges were read over and explained to the witnesses who pleaded not guilty and sought trial."
(English Translation by Court)
9. Accused denied charges leveled against and claimed trial.
10. In order to substantiate its case, prosecution examined as many as seven witnesses in the following manner :-
Sr. No. Name of PWs Nature of witness Paper proved 1 Vishal Bajpai Fact Ex. Ka-1 2 Vikas Bajpai Fact Ex.Ka-12 3 Dr. Sanjeev Kumar Formal Ex.Ka-2 4 HC Arvind Kumar Formal Ex.Ka-3 and 4 5 SI Ghanshyam Yadav Formal Ex.Ka-7, 8, 9, 10 and 14 6 SI Chandra Prakash Bhatt Formal Ex.Ka-5
11. On closure of prosecution evidence statement of accused under Section 313 Cr.P.C. was recorded by Court explaining all incriminating evidence and circumstances. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong. He claimed false implication and statement of witnesses is said to be wrong. He did not choose to adduce evidence in defence. In response of question no.9, he answered that his wife herself died.
12. After hearing counsel for the parties and analyzing entire evidence led by prosecution on record, Trial Court has found accused-appellant guilty and convicted him, as stated above. Feeling aggrieved and dissatisfied with impugned order of conviction and sentence, present appeal has been filed through Jail.
13. We have heard Sri Lal Chandra Mishra, Advocate (Amicus Curiae) for appellant and Sri Syed Ali Murtaza, learned A.G.A for State-respondent at length and have gone through the record carefully with valuable assistance of learned Counsel for parties.
14. Learned Amicus Curiae assailed order of conviction and sentence advancing following submissions :-
i. There is no motive to accused-appellant to commit murder of his wife.
ii. PW-1 and PW-2 are not eye-witnesses. As per FIR, they were not present in the house at the time of incident. Later, they both turned hostile.
iii. Witness named in FIR namely Vinod Kumar and Kalka were not produced from the side of prosecution.
iv. Victim is said to be admitted in the Hospital for medical treatment but eventually her dying declaration under Section 32 of Indian Evidence Act has not been recorded till her death with no proper explanation.
v. It is a case of no evidence but Trial Court has wrongly convicted accused relying on statement under Section 161 Cr.P.C. made by victim before Investigating Officer during investigation.
vi. Prosecution has failed to establish its case beyond reasonable doubt.
15. Learned A.G.A. opposed the submission of learned counsel for accused-appellant and submitted that accused-appellant is named in FIR, Investigating Officer recorded statement of victim under Section 161 Cr.P.C., in which she has given statement against her husband, which is admissible in evidence under Section 32 of Indian Evidence Act,1872 (hereinafter referred to as 'Act,1872,) after her death. Incident took place in the house of accused-appellant and accused-appellant has been rightly convicted by Trial Court.
16. Although place, time and date of occurrence, death of victim due to burn injuries could not be disputed from the side of prosecution but according to learned counsel counsel for accused-appellant, he is not responsible for the present crime. Even otherwise PW-1 and PW-2, though have turned hostile but they proved that their mother got injured by burn injuries in the house and evidence of doctor shows that victim died due to burn injuries. In this way, time, date and place of incident and death of Smt. Aneeta Bajpayee due to burn injuries stand established.
17. Thus, only two questions remain for consideration of this Court are "Whether accused-appellant is responsible for causing burn injuries to victim-Aneeta Bajpayee due to which, she succumbed to death" and "Whether Trial Court rightly convicted him or not?"
18. We may now proceed to consider the rival submissions of learned counsel for parties and briefly consider evidence of prosecution.
19. PW-1, Vishal Bajpayee, Informant, did not support prosecution case and turned hostile. He deposed in his statement that on 25.05.2012, at about 8:00 am, his father (accused) neither entered the house, nor assaulted her mother, nor poured kerosene oil on her. In his cross-examination, he deposed that he submitted written report, Ex.Ka-1, against her father at the behest of other people and signed it without reading. His mother herself was burnt with oil. Witness was declared hostile on the request of prosecution and was subjected to lengthy cross-examination.
20. PW-2, Vikash Bajpayee, also did not support prosecution case. Witness was declared hostile on the request of State Counsel. In his cross examination, he deposed that he did not see the incident by his own eyes and he was not present in the house at the time of incident.
21. Both the witnesses withstood lengthy cross-examination by prosecution but nothing could be brought so as to support prosecution case and their statement could be disbelieved. As per FIR itself, both witnesses did not appear to be eye-witnesses.
22. PW-3, Dr. Sanjeev Kumar deposed that on 3.6.2012 he was posted in District Hospital, Kanpur Nagar and on postmortem duty, at about 2:50 pm, he conducted autopsy over the dead body of Smt. Aneeta Bajpayee and found superficial deep burn injuries over her body. Line of redness was also present. He noted ante-mortem injuries as under :-
"About 60% superficial to deep burn injury our back, abdomen."
23. Doctor opined that death was possible one day prior to postmortem and might have occurred due to Coma and infection due to ante mortem burn injuries.
24. PW-5, SI Ghanshyam Yaday, deposed that on 24.6.2010, he commenced investigation, recorded statements of Vishal Bajpayee, victim-Aneeta Bajpayee, witness Vikas Bajpayee under Section 161 Cr.P.C., visited spot on pointing out of Vishal and prepared site plan, Ex.Ka-5. In statement under Section 161 Cr.P.C., victim told him that her husband poured kerosene oil and set her at fire. He arrested accused and recorded his statement. On the death of Aneeta Bajpayee on 7.6.2012, PW-6, SI Chand Prakash, held inquest, prepared inquest report Ex. Ka-6, case was converted into under Section 302 IPC and he submitted charge-sheet under Section 302 IPC against the accused-appellant. In his cross-examination, he deposed that victim remained alive 12-13 days after the incident and her dying declaration could not be recorded for the reason that she died before he took investigation.
25. PW-6, SHO Chand Prakash Bhatt, deposed that on 26.5.2012, he was posted as In-charge, outpost, PS Barrar, District Kanpur Nagar. He took investigation of case Crime No. 364 of 2012 under Section 307 IPC, recorded statement of Smt. Aneeta Bajpayee, in which, she stated that on 25.5.2012, at about 8:00 am, her husband entered the house, started abusing, poured kerosene oil and set her at fire. She rushed out of her house and jumped into a dirty canal to save herself. People of the same vicinity took out her from the Canal. She sustained burn injuries on her body. He visited spot, prepared site plan and on receiving information of her death, he held inquest over the dead body of Aneeta Bajpayee.
26. It is thus evident from record that victim died after 12-13 days from the incident due to burn injuries. It is said that her statement under Section 161 Cr.P.C. has been recorded by PW-6 but no statement under Section 32 of Act, 1872 was recorded where as victim remained alive 12-13 day after the incident took place. Only evidence against accused-appellant is statement under Section 161 Cr.P.C. of victim said to have been made before Investigating Officer, which does not find support from any other evidence. Reason shown by prosecution for not recording statement under Section 32 of Act, 1872 does not appear to be cogent and convincing. Apart from that, PW-2 specifically stated in his cross-examination that it was wrong to say that his mother told Investigating Officer that her husband set her at fire.
27. Before us, it was contended on behalf of appellant that the said statement of victim under Section 161 Cr.P.C. cannot be accepted as dying declaration for the reason that it was recorded by Investigator as statement under Section 161 Cr.P.C. and not as statement under Section 32 of Act, 1872 and admittedly statement of victim was not attested by two respectable witness as required in Police Regulation.
28. Paragraph 115 of Police Regulations reads as under :-
"The officer investigating a case in which a person has been so seriously injured that he is likely to die before he can reach a dispensary where his dying declaration can be recorded should himself record the declaration at once in the presence of two respectable witnesses, obtaining the signature or mark of the declarant and witnesses at the foot of the deceleration." (Emphasis added)
29. Section 32(1) of Act, 1872, provides as under:-
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant-Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
30. Going by Section 32(1) of Act, 1872, it is quite clear that such statement would be relevant even if the person who made statement was or was not at the time when he made it under the expectation of death. Having regard to extraordinary credence attached to such statement fall under Section 32(1) of Act, 1872 time and again Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a 'dying declaration'.
31. As far as implication of 162 (2) of Cr.P.C. is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161Cr.P.C. assumes the character of dying declaration falling within the four corners of Section 32(1) of Act, 1872, then whatever credence would apply to a declaration governed by Section 32(1), should automatically deemed to apply with all force to such a statement though recorded under Section 161 Cr.P.C. The above statement of law would result in a position that a purported recorded statement under Section 161 Cr.P.C. of a victim having regard to the subsequent event of death of the person making statement who was a victim would enable prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Act, 1872 and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.
32. We now propose to deal the validity of the dying declaration. Court in Paniben vs. State of Gujarat, (1992) 2 SCC 474, laid down certain principles regarding dying declaration, which are as under :-
"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. this Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:-
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Mannu Raja v. State of M.P.).
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of M.P. v. Ram Sugar Yadav, Ramawati Devi vs. State of Bihar).
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (Ram Chandra Reddy v. Public Prosecutor).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Beg v. State of Madhya Pradesh).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.).
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurthi Laxmipati Naidu).
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar).
(ix) Normally the court in Order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram and Anr. v. State of M.P.).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan).
33. In the case in hand we thus found that statement under Section 161 Cr.P.C. which was relied upon as dying declaration, does not fulfill the requirement of every provisions of law and fact.
34. PW-6, Chandra Prakas Bhatt, deposed that on 26.05.2012, he undertook investigation, recorded statement of Smt. Aneeta Bajpai (injured). He further deposed in cross-examination that dying declaration was not got recorded because she had come to her house after getting cured from hospital. He did not take container and Match box in his possession from spot; she died after five days from the date of incident. Thus, it is very clear, when Investigator recorded statement of victim under Section 161 Cr.P.C., she was not under the expectation of death and she remained alive about two weeks. Evidently, dying declaration was not recorded by Investigating Officer before two reliable witnesses, therefore, statement under Section 161 Cr.P.C. does not fall under the category of 'dying declaration' under Section 32 of Act,1872.
35. It is well settled that where on the evidence, two possibilities are available or open one which goes in favour of prosecution and other which benefits an accused, the accused is undoubtedly entitled to benefit of doubt.
36. In Bhagwan Singh & Others v. State of M.P. (2002) 4 SCC 85, Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Court observed as under:-
"7. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided."
(Emphasis added)
37. In Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SCC 1622, Court said that at any rate, the evidence clearly shows that two views are possible - one pointing to the guilt of the accused and the other leading to his innocence. It may be very likely that the appellant may have administered poison (potassium cyanide) to Manju but at the same time a fair possibility that she herself committed suicide cannot be safely excluded or eliminated. Hence, on this ground alone appellant is entitled to benefit of doubt resulting in his acquittal.
38. In Kali Ram v. State of Himachal Pradesh, 1973 AIR 2773, Court made following observations:
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."
(Emphasis added)
39. We have deeply considered entire evidence available on record to connect accused-appellant with present crime but find no iota of evidence to hold accused-appellant guilty.
40. We are surprised as to how without any incriminating circumstances and cogent evidence, Trial Court has convicted and sentenced accused-appellant in a serious offence on the basis of statement of victim under Section 161 Cr.P.C assuming it 'dying declaration' without any corroboration. Sentencing of accused-appellant in this manner erodes public faith on judicial system.
41. Considering the entire facts and circumstances and evidence led by the prosecution, in entirety, we do not find any cogent and convincing evidence against accused-appellant to connect him with present crime and, in our considered opinion, accused-appellant is entitled to benefit of doubt and deserves acquittal.
42. Appeal is, accordingly, allowed. Impugned judgment and order dated 09.04.2015 passed, in Sessions Trial No. Sessions Trial No. 762 of 2012 (State v. Arvind Bajpai, Crime No. 464 of 2012), by Additional District and Sessions Judge, Court No.6, Kanpur Nagar, is hereby set aside. Appellant is acquitted of charges levelled against him. He is in jail and shall be released forthwith, if not wanted in any other case.
43. Keeping in view provisions of Section 437-A Cr.P.C., appellant is directed to furnish a personal bond and two sureties before Trial Court to its satisfaction, which shall be effective for a period of six months, along with an undertaking that in event of filing of Special Leave Petition against instant judgment or for grant of leave, appellant on receipt of notice thereof shall appear before Hon'ble Supreme Court.
44. Lower Court record along with a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.
45. Before parting, we provide that Sri Lal Chandra Mishra, Amicus Curiae for appellant in present Jail Appeal, shall be paid counsel's fee as Rs. 11,500/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer, posted in the office of Advocate General at Allahabad, without any delay and, in any case, within one month from the date of receipt of copy of this judgment.
Order Date :-01.10.2019 Akram