Bachcha vs State on 5 May, 2025

[Cites 6, Cited by 0]

Allahabad High Court

Bachcha vs State on 5 May, 2025

1. Present appeal has been filed challenging the judgment and order dated 19.7.1991 passed in Session Trial No. 256 of 1990 by which the applicant has been convicted for life imprisonment under Section 302 IPC.

2. List has been revised. None is present to press this appeal on behalf of the appellant.

3. Heard Sri S.S.R. Dwivedi, learned A.G.A. and perused the record.

4. On 24.1.2025 following order was passed:-

"1. As per office report dated 22.01.2025, sole appellant Bachcha is not residing at the address given for the last 34 years.

2. The office is directed to send the details of sureties with photocopy of the bail bonds indicating the details of the sureties of the appellant to the concerned Chief Judicial Magistrate forthwith so that appropriate action be taken against the sureties under Section 446 Cr.P.C.

3. The Chief Judicial Magistrate concerned is directed to proceed in accordance with Section 446 Cr.P.C. against the sureties and submit a report in this regard to this Court within four weeks.

4. List this appeal in the additional cause list on 25.02.2025."

5. Pursuant to the aforesaid order Office has submitted its report dated 24.4.2025 based on the report of the Chief Judicial Magistrate, Kanpur Nagar dated 24.1.2025 according to which the bail bonds are missing from the record and for fixing responsibility a letter has been sent to the District and Sessions Judge, Kanpur Nagar. It is, therefore, clear that neither the appellant nor the sureties are traceable as earlier also it was reported that the sole appellant Bachcha is not residing at the address given for last about 34 years.

6. It can safely be presumed that sole appellant is absconding.

7. In Surya Baksh Singh vs. State of Uttar Pradesh, (2014) 14 SCC 222, the Hon'ble Apex Court has held that it is always not necessary to adjourn the matter in case both the appellant or his counsel/lawyer are absent and that the Court can decide the appeal on merits after perusal of the record and the judgement of the trial Court. It has further been observed that if the case is decided on merits in the absence of the appellant, the higher court can remedy the situation. It has also been observed that appointment of Amicus Curiae is also on the discretion of the court. In paragraph 26 of the said judgement, it was held that it is always not essential for the High Court to an appoint Amicus Curiae, paragraphs 24 and 26 of the said judgement whereof are quoted as under:

"24. It seems to us that it is necessary for the Appellate Court which is confronted with the absence of the convict as well as his Counsel, to immediately proceed against the persons who stood surety at the time when the convict was granted bail, as this may lead to his discovery and production in Court. If even this exercise fails to locate and bring forth the convict, the Appellate Court is empowered to dismiss the appeal. We fully and respectfully concur with the recent elucidation of the law, profound yet perspicuous, in K.S. Panduranga v. State of Karnataka, (2013) 3 SCC 721. After a comprehensive analysis of previous decisions our learned Brother had distilled the legal position into six propositions:

"19.1. that the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits;

19.2. that the Court is not bound to adjourn the matter if both the Appellant or his Counsel/lawyer are absent;

19.3. that the court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so;

19.4. that it can dispose of the appeal after perusing the record and judgment of the trial court.

19.5. that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and 19.6. that if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation.

25.....

26. Reverting back to the facts of the present case a perusal of the impugned order makes it abundantly evident that the High Court has considered the case in all its complexities. The argument that the High Court was duty-bound to appoint an amicus curiae is not legally sound. Panduranga correctly considers Mohd. Sukur Ali v. State of Assam (1996) 4 SCC 729 as per incuriam, inasmuch as the latter mandates the appointment of an amicus curiae and is thus irreconcilable with Bani Singh vs. State of U.P. (1996) 4 SCC 720. In the case in hand the High Court has manifestly discussed the evidence that have been led, and finding it of probative value, has come to the conclusion that the conviction is above Appellate reproach correction and interference. In view of the analysis of the law the contention raised before us that it was essential for the High Court to have appointed an amicus curiae is wholly untenable. The High Court has duly undertaken the curial responsibility that fastens upon the Appellate Court, and cannot be faulted on the approach adopted by it. In this respect, we find no error."

(Emphasis supplied)

8. The aforesaid view has been followed by the Hon'ble Full Bench in Criminal Reference No.1 of 2024, In Re-Procedure To Be Followed In Hearing Of Criminal Appeals vs. State of U.P., decided on 22.01.2025, paragraph Nos. 151 and 152 whereof are quoted as under:

"151. The crux of the aforesaid observations of the three celebrated judgments rendered by the Hon'ble Supreme Court in Bani Singh and others Vs. State of U.P. 11, Surya Baksh Singh Vs. State of Uttar Pradesh 12 and K.S. Panduranga Vs. State of Karnataka 13, thus, covers the entire length and breadth of Question No. 5 formulated by the Division Bench at Lucknow for consideration by this Bench and no fresh exercise, in our considered opinion, is required to be undertaken by this Bench, including on one point which has been highlighted by the Division Bench at Lucknow i.e. whether the amicus curiae may be appointed even when the presence of the convict, appellant or accused-respondent may be secured and without his consent.

152. The aforesaid legal precedents would evidently canvass that the emphasis of the Apex Court has been on providing opportunity of being heard to the appellant who is willing to cooperate with the appellate court or his counsel and in this regard a process to cause his presence for the purpose of giving opportunity of being heard is required to be issued to him and when the court is satisfied that such appellant is deliberately avoiding his presence before the court, in such a situation, the court may dispose of the appeal in the manner approved by the Hon'ble Supreme Court in Bani Singh and others Vs. State of U.P. 11, Surya Baksh Singh Vs. State of Uttar Pradesh 12 and K.S. Panduranga Vs. State of Karnataka 13 (i.e. after perusing the record/evidence vis-a-vis judgment of the trial court with the assistance of prosecutor and Amicus, if appointed) and we do not have any reason to deviate from the settled proposition laid down by the Apex Court in the above mentioned cases, moreover, the appointment of amicus is only for the purpose to provide fair trail to the appellant and also for rendering the assistance to the Court."

9. We, therefore, proceed to consider this appeal on merits with the help of Sri S.S.R. Dwivedi, learned A.G.A. for the State.

10. Prosecution story, in brief, is that Bachcha accused was the tenant of the informant; a litigation was pending between them for vacating the house and consequently there was a dispute between them; on 29.3.1990 the informant was sitting at his shop and was selling milk and at the same time his mother reached there crying for help; her entire body was burnt; she told the informant that three persons had put fire on her body by sprinkling kerosene oil and amongst three persons out of which two persons could not be identified but she told the informant that the third person was accused-Bachcha; the injured was taken to the hospital and was admitted; report of this occurrence Ex. Ka-1 was scribed by Kuldeep Kumar s/o Lalta Prasad r/o 111A/361, Ashok Nagar, Kanpur; on that basis written report, first information report no. 17 was registered at the Police Station Nazirabad on 29.3.1990 at 23:50 O'clock against the accused persons; entry of this case was made in the general diary at the same time; the case was investigated by Sri Om Prakash Sharma, S.H.O., Police Station Nazirabad, who had recorded statements of witnesses and accused; during the course of investigation one Investigating Officer visited the spot and prepared site plan as Ex.Ka-6; he also recorded statement of Smt. Savitri Devi on 30.3.1990 and that statement has been proved subsequently after her death as Ex.Ka-5; the deceased succumbed to the above injuries on 5.4.1990 at 9:15 P.M. and the inquest report was prepared next day; postmortem examination was conducted subsequently; the accused-Bachcha was arrested on 30.3.1990; Sri Shyam Lal Singh, Executive Magistrate recorded dying declaration of the injured/deceased on 30.3.1990 at 4:00 P.M. in the district hospital before the death of the injured/deceased; Savitri Devi was medically examined at L.L.R. Hospital, Kanpur; superficial two types burn on all over the body of the deceased were found at the time of local examination; surging hairs, charring skin was found, smell of kerosene oil was also found on her body; burns were fresh; the injured died due to dry heat.

11. The following ante-mortem injuries were found on the body of the deceased at the time of postmortem examination:-

"Burns all over the body, including the head and face, palm and sole. Skull hairs surged. Skin peeled at most of the places. Cause of death of the deceased was due to burn injuries."

12. In order to establish the prosecution case, PW-1 Surendra Kumar Gupta, PW-2 Dr. Ashok Kumar Srivastava, PW-3 Sri Shyamlal (Deputy Collector), PW-4 Om Prakash Sharma, PW-5 N.S. Tyagi, PW-6 Dr. N.C. Yadav, PW7 Dr. G.K. Tiwari and PW-8 Chandrakant Mishra were examined and certain documents were exhibited before the Court concerned. In addition to this, the prosecution produced certain documents, which were exhibited during the trial as under:

(i) First information report as Ext. Ka-16, (ii) Written report as Ext. Ka1, (iii) Statement of Savitri Devi as Ext. Ka-3, (iv) Copy of statement of Savitri Devi as Ext. Ka-5, (v) Injury Report as Ext. Ka-13, (vi) Postmortem Report as Ext Ka-2, (vii) Panchayatnama as Ext. Ka-7 and (viii) Charge-sheet 'Mool' as Ext. Ka-4

13. The grounds taken by the appellant in the present appeal is that the judgment of conviction passed by the court below is against the weight of evidence; the court below has misinterpreted the statements of the prosecution witnesses and there are material contradictions in their statements, which falsifies the prosecution case; the prosecution version is contrary to the medical report; as per medical report the deceased has received injuries on such parts of her body, which could not have been caused in the manner as alleged in the prosecution; there are contradictions in Ex. 3 (dying declaration of Savitri Devi) and Ex. 5 (statement of Savitri Devi) recorded by the Investigating Officer; the dying declaration was not in accordance with law and could not have been placed reliance for convicting the appellant; in any case the dying declaration is tutored one and is nothing but an afterthought, the same was not worth-belief and was liable to be rejected in toto; there were contradictions and discrepancies in relation to the presence of Mewa Lal (husband of the deceased) regarding statement and no reason has been assigned as to why the statement of the informant (Surendra Kumar) was not recorded first, therefore, it is clear that the first information report was ante-time; as per statement of PW-1 (Surendra Kumar) he was sitting on his shop and large number of customers were present but no one has been produced as witness; and that for the grounds taken in the appeal, the appeal is liable to be allowed.

14. Per contra, learned A.G.A. submits that it is a case where dying declaration recorded by Deputy Collector is on record and this alone is sufficient to convict the appellant. It is next submitted that PW-2, Dr. Ashok Kumar Srivastava, who has conducted postmortem and PW-6, Dr. N.C. Yadav, who had examined the injuries have proved the injuries and Dr. G.K. Tiwari, PW-7 has given certificate of witness of the deceased that the dying declaration was made in accordance with law. That apart, dying declaration was recorded by the PW-3, Sri Shyamlal, Deputy Collector and he categorically stated that no one was present while dying declaration was being recorded and that there is no discrepancy and contradiction in the prosecution case, in the dying declaration as well as in the medical report, therefore, no interference is warranted. Submission, therefore, is that the appeal is devoid of merits and is liable to be dismissed.

15. We have considered the grounds taken and the submissions and have perused the record.

16. We find that it is a case where there was enmity due to landlord and tenant strained relationship between the parties. The statement of the deceased to the effect that Bachcha along with two other persons set her on fire is consistent. For the first time this statement was made before the informant (PW-1 herein, Surendra Kumar), for the second time, the statement recorded by the Investigating Officer under Section 161 Cr.P.C. and for the third time, statement was made before the PW-3, Sri Shyamlal, Deputy Collector to the same effect. The stand taken by the injured/deceased in all three statements remain intact. The incident had taken place at 09:00 P.M. on 29.3.1990 and the first information report was lodged at 11:50 P.M. (23:50 hours) in the same night and the distance of the police station is about three furlongs. In our opinion, although the first information report is not delayed, however, the delay, if any, has been duly explained in the first information report itself that firstly the informant had taken his mother to the hospital and thereafter he came to lodge the first information report. Admittedly, no one has seen the incident, however, the deceased in burning condition came out from the house and narrated the story to her son (PW-1, Surendra Kumar). The informant had fairly stated that he had not seen the incident, however, the deceased while she was injured had also stated that out of three accused persons she could recognize only Bachcha, the accused herein and could not recognize other two persons. In her statement recorded by the Investigating Officer she had stated that she cannot say anything about it because she is not feeling well. The postmortem report were duly proved by PW-2, Dr. Ashok Kumar Srivastava, who had clearly proved that the burn injuries were on all over the body and in categorical terms he had opined to the effect that while the injured was in lying position it was more probable to have more injuries and the injuries were sufficient to cause death, however, he has not expressed any categorical opinion. As none of the witness has seen the incident, therefore, it cannot be said that in which position / situation the deceased was burnt by the accused persons. Therefore, we do not find any material contradiction or discrepancy in the evidence either in the prosecution case or in medical evidence. Dr N.C. Yadav, PW-6 has also proved the injuries suffered by the deceased and had stated that there was smell of kerosene oil on the body of the deceased. Dr. G.K. Tiwari, PW-7, Medical Officer of the hospital had categorically proved the dying declaration and categorically stated that he had examined the injured before recording dying declaration and at that time her pulse rate was 100 per minute, he had proved his handwriting and signatures certifying that she was in fit condition to make statement and had categorically stated that on the same page the Magistrate has written the dying declaration of the injured/deceased and thereafter again he had certified that the injured was in full senses. In cross-examination he had categorically stated that when he reached on the spot no one was there. PW-3, Sri Shyamlal, Deputy Collector had also categorically proved the dying declaration in categorical terms and in his cross-examination he had also stated that before recording dying declaration he had obtained certificate from the Medical Officer that the injured was in fit condition to make statement and that after recording her statement he had again obtained certificate from the Medical Officer and thumb impression of the injured. He had also proved his handwriting and signatures in the dying declaration. In his cross-examination he had categorically stated that all the persons were removed before recording dying declaration. This clearly reflects that the dying declaration was proved beyond any shadow of doubt.

17. In our opinion, the dying declaration alone is sufficient to convict the accused person. That apart, it may also be noted that the deceased had made her statement to the effect that Bachcha was involved in causing burn injuries at least at three stages, 1) while she came out in burning condition and had informed her son (PW-1, Surendra Kumar), 2) when her statement was recorded under Section 161 Cr.P.C. by the Investigating Officer and 3) in the dying declaration recorded by the Deputy Collector. We, therefore, find that there were no discrepancy in the medical report as well as in the prosecution story, and the discrepancy in Ex. Ka-3 and Ka-5 are not sustainable and gives no benefit to the accused.

18. While Coming to the statement of defence witnesses Madan Kishore Dwivedi, DW-1 and Rajendra Prasad Nigam, DW-2 is concerned, suffice to note that they have sought to prove that Bachcha was not present on the spot and was present at his shop. It may be noted that both the witnesses lived at some distance and are not resident of the same location / locality. Therefore, their presence on the spot is likely doubtful coupled with the fact that in his statement PW-1 Surendra Kumar and DW-2 have admitted that Bachcha was having some landlord tenant relationship with the family members of the deceased and they have admitted that for about one year they did nothing to inform the police to make complaint and never came forward to make any statement to the effect that the accused-Bachcha was not present on the spot.

19. We also find that even as per the statements of DW-1 and DW-2 the enmity between the parties is admitted and the place of occurrence is also admitted.

20. Under these circumstances, we do not find any force in the ground of memo of appeal. At this stage, we have gone through the impugned judgment, which has supported cogent reason while passing the judgment convicting the appellant.

21. The present appeal is accordingly dismissed. The conviction of surviving appellant Bachcha is confirmed.

22. Since the appeal has been dismissed and conviction and sentence awarded by the trial court has been confirmed by us, his bail bonds are cancelled and sureties are discharged. The Chief Judicial Magistrate, Kanupr Nagar is directed to take the appellant Bachcha into custody and send him to jail to serve out the sentence awarded by the trial court and confirmed by us.

23. Let a copy of this order be communicated by the Registrar (Compliance) to the Chief Judicial Magistrate concerned for compliance within a week.

24. The Chief Judicial Magistrate, Kanpur Nagar is also directed to send his compliance report within one month to this Court.

25. Lower court record be sent to the concerned Court forthwith.

Order Date :- 5.5.2025 Lalit Shukla

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Allahabad High Court