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Shyam Sunder @ Samundar vs State Of U.P. on 30 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 47 Reserved on: 25.07.2019

Delivered on: 30.08.2019

CRIMINAL APPEAL No. – 4911 of 2015

Appellant :- Shyam Sunder @ Samundar

Respondent :- State Of U.P.

Counsel for Appellant :- Virendra Singh Patel,Hitesh Pachori,Kashif Zaidi,Rajendra Prasad Tiwari,Vinay Kumar Tiwari

Counsel for Respondent :- G.A.

Hon’ble Ram Surat Ram (Maurya),J.

Hon’ble Umesh Kumar,J.

(Delivered by Umesh Kumar, J)

1. This criminal appeal has been preferred against the judgment and order dated 31.07.2015 passed by Addl. Sessions Judge, Court No.3, Jhansi in S.T. No. 97 of 2013, ( State Vs. Shyam Sunder @ Samundar) convicting and sentencing the appellant under Section 302 IPC for life imprisonment with a fine of Rs. 10,000/- and in default to further undergo one year rigorous imprisonment.

2. In brief, prosecution story is that on 8.3.2007, Sharda-daughter of (P.W.1)-informant-Rameshwar was got married to Parashu Ram by Hindu rituals and a sum of Rs. 2,00,000/- and a Motor Cycle was given in dowry, but the in-laws of his daughter were demanding more; that on 30.09.2012 when on the call of his daughter, the informant went to village Baral, where, the in-laws of his daughter demanded a sum of Rs. 1,00,000/- to which the informant expressed his inability and returned to his home; on 03.10.2012, the informant got information that his daughter-Sharda was burnt by pouring kerosene oil and when, the informant reached village Baral, he came to know that his daughter is admitted in Medical College and the in-laws of his daughter fled away; the statement of deceased-Sharda was recorded by concerned doctor; and that his daughter has been brutely murdered by the in-laws on account of non fulfilment of dowry demand. This report was submitted to the police station 0n 13.10.2012. Prior to this information, deceased-Sharda was admitted in the Medical College, Jhansi where she expired on 5.10.2012 at 9.30 PM. The information regarding death of Sharda-deceased was communicated by concerned hospital to the police Station and entry to this effect was made at GD No. 36 on 6.10.2012. In the hospital, dying declaration of the deceased-Sharda was recorded by Naib Tehsildar Rajendra Kumar on 4.10.2012 (Ex.Ka.7). Fitness certificates given by the doctor before and after recording the statement of deceased are (Ex.Ka.8 and Ex.Ka.9).

3. Thereafter, inquest (Ex.Ka-2) was conducted by Naib Tehsildar Preeti Jain. She prepared inquest and other relevant papers (Ex.Ka. 3 to Ex.Ka-6), letter to CMO, challan nash, photo nash, nakal rapat, death memo, specimen seal and then dead body was sent for post mortem which was conducted by Dr. D.S. Gupta; during examination, he prepared autopsy report (Ex.Ka.12) and found following injuries on the body of deceased-Sharda;

Superficial to deep burn all over body except both soles, back of chest and abdomen. Whitish powder applied all over body. Sunging of hairs present. Line of redness present. Feetus (length 15 cm.) 300 gram present.

Cause of death shock as a result of ante mortem burn injuries.

4. Thereafter, on 13.10.2012, a written report was filed by P.W.1 Rameshwar and after receipt of the said report, chick FIR (Ex.Ka.9) was executed by Moharrir-Ram Bahadur and GD entry No.11 whereof was made at 7.30 a.m. on 13.10.2012 (Ex.Ka.10), Case was registered under Section 498A, Section304B IPC and Section ¾ D.P. Act. During investigation, after recording the statement of witnesses and taking into account the dying declaration of the deceased, the offence was altered into Section 302 IPC. The Circle Officer, Prashant Kumar visited the place of occurrence and prepared site Plan (Ex.Ka.11). After conversion of the said offence, matter was further investigated by S.I. Anil Kumar Singh who after completion of investigation submitted charge sheet (Ex.Ka.13) against the accused-appellant under Section 302 IPC.

5. Charge against the accused-appellant was framed under Section 302 IPC , to which, he denied and claimed to be tried.

6. In support of its case, the prosecution has examined 9 witnesses. P.W.1(Informant) Rameshwar, P.W.2 Smt. Lalli-mother of deceased, P.W.3 Preeti Jain (Naib Tehsildar) who conducted inquest report, P.W.4 Rajendra Kumar, Naib Tehsildar who recorded dying declaration of deceased-Sharda, P.W.5 Dr. Mahendra Pal Singh who gave fitness certificate while recording dying declaration, P.W.6 Constable Ram Bahadur Singh who has proved chick FIR and G.D. entries, P.W.7 Prashant Kumar Prasad, first I.O. of the case, P.W.8 Dr. D.S. Gupta who conducted post mortem and P.W.9, second Investigating Officer.

7. In defence, D.W.1 Kripa Shanker and D.W.2 Aarun Kumar have been examined.

8. Statement of the accused-appellant under Section 313 Cr.P.C. was recorded who denied the offence and stated that on the instigation of relatives, the deceased-Sharda has given wrong dying declaration. He has reported the death of deceased due to burn and admitted the post mortem report; in defence he has stated that deceased-Sharda due to severe abdominal pain poured Kerosene oil and set herself on fire; and he has been implicated by her relatives on account of his failure to arrange money for her better treatment.

9. We have heard Sri Kashif Zaidi, learned Counsel for the appellant and Sri Anil Kumar Kushwaha, learned AGA for the State and perused the record.

10. Learned Counsel for the appellant argued that the Trial Judge has not relied upon the verbal dying declaration made by the deceased-Sharda as disclosed by P.W.2(Mother of deceased) in her statement. Moreover, witnesses of fact namely P.W.1 and P.W.2 have not supported the prosecution case. The D.W.1 Kripa Shanker and D.W.2 Arun Kumar who were the prosecution witnesses, were not produced by the prosecution, then they were produced by the accused in his defence. They had also supported the defence version; the Trial Judge has convicted the accused-appellant only on the basis of dying declaration recorded by Rajendra Prasad, Naib Tehsildar and has not at all considered the rival arguments advanced by the defence counsel. Learned Counsel has placed before the Court some decisions.

11. Per contra, learned AGA has argued that conviction is based on evidence available on record treating the dying declaration (Ex.Ka-7) reliable and the learned Trial Judge has rightly convicted with the finding that the prosecution has established its case. He further, argued that dying declaration can be made sole basis for conviction of the accused.

12. P.W.1-Rameshwar (informant) in his statement has stated that he got married his daughter-Sharda to Parashu Ram and has denied that her husband Parashu Ram, mother-in-law Kamla, Jeth Shyam Sunder and Jethani-Mohani ever demanded dowry and or treated her with cruelty. Contrary to the allegation made in FIR, he has stated that he never went to village Baral on 30.9.2012; his daughter expired on 5.10.2012 in the Medical College; how she died, he did not know; when he reached Medical College, his daughter was alive; he denied about lodging of any report, but accepted that some one has obtained his signature on (Ex.Ka.1), but he cannot tell his name; he stated that when inquest report was being prepared, he was there and had signed over it. By that time, he was unknown about the reason of death of his daughter. In cross examination, he stated that he met his daughter, but could not have any talk, because she was crying; he never went to lodge report at the police Station; however, if any relative might have gone, he could not say. He stated that he knew that Shyam Sundar is in jail for the charge of murder of his daughter. He has denied the statement recorded under Section 161 Cr.P.C. by the Investigating Officer during investigation. In cross, he admitted that on 4.10.2012, some relatives told deceased-Sharda to name Shyam Sundar for burning herself before the Magistrate and that is why, deceased-Sharda named Shyam Sundar for causing said injuries. He further stated that now he has complete knowledge that due to severe stomach pain, his daughter got herself burnt after pouring Kerosene oil and at the time of occurrence, none was present in the home. He also admitted the fact that his daughter and his son-in-law lived separately, whereas, his Jeth Shyam Sundar resided at Chirgaon with his family and that is why, he did not report the matter to the police station for a week; thereafter, some persons called him to the Medical College and obtained his signature on a typed paper saying that wrong story set up in the statement of deceased-Sharda has to be ractfied.

13. P.W.2-Lalli (Mother of deceased) also denied prosecution version and stated that the in-laws of her daughter never demanded any dowry. She stated that information that her daughter was admitted in the Medical College, was given on telephone by the in-laws and during treatment, her daughter expired. This witness has been declared hostile by the prosecution. In her cross examination, she denied her statement under Section 161 Cr.P.C recorded by the Investigating Officer during investigation; she stated that her daughter poured Kerosene Oil and set herself aflame due to severe abdominal pain. She further stated that on the second day, when she was in the hospital, her daughter was in a position to speak and when she asked her daughter, that how she has been burnt, she told that due to abdominal pain, she poured Kerosene oil. Shyam Sundar has not poured Kerosene oil on her and that she has given wrong statement on saying of some people.

14. Learned Counsel for the appellant has vehemently argued that learned Trial Judge has not appreciated this oral dying declaration in his judgment. The dying declaration as stated above, is in complete in itself and that speak only about pouring of Kerosene oil and not regarding who lit the fire. The said dying declaration is contrary to the earlier statement given by the witness to the Investigating Officer, though it was not controverted to the witness as was required under the provisions of Section 145 of Indian Evidence Act, but the statement of witness is on record. Moreover, this oral dying declaration was introduced for the first time before the Court during trial. There is one clinching circumstance shows that this dying declaration is not reliable for the reason that first information of the case was registered on 3.10.2012, whereas deceased expired on 5.10.2012 and the said fact was never disclosed to any person nor to any police authority during whole investigation, hence, non reliance by the Trial Judge on the said dying declaration is fully justified and acceptable. The arguments in this respect advanced by learned Counsel for the appellant is not sustainable.

15. For convenience, dying declaration ( Ex.Ka.7) of deceased-Sharda recorded on 4.10.2012 at 4.45 PM is quoted here in below;

**c;ku ‘kkjnk iRuh ij’kqjke] mez 22 o”kZ] fuoklh cjy] Fkkuk fpjxkao ds e`R;q iwoZ c;ku ysus jk0 y0 okMZ esa dk0 Fks] ouZ okMZ esas vk;k fpfdRlkf/kdkjh dh vk[;k fuEu gS% ejht c;ku ds iwoZ iw.kZ gks gok’k esa gSA

Ext. Ka-8 g0 viBuh;

lhy viBuh;

Dated 04-10-12 at 4:45 P.M.

iz’u

mRrj

1- vkidk D;k uke gS

1- esjk uke ‘kkjnk gSA

2- vkids ifr dk D;k uke gS

2- esjk ifr dk uke ij’kqjke gSA

3- vki fdl fcjknjh ¼tkfr½ dh gS

3- eSa lkgw fcjknjh dh gwWA

4- vki fdl Dykl rd i+h gS

4- eSa d{kk 9 ikl gwWA

5- vkids ifr D;k dk;Z djrs gS

5- esjs ifr xkao esa lkbfdy iapM+ cukrs gSA

6- vkidh ‘kknh dc gqbZ

6- esjh ‘kknh djhc 5 o”kZ igys gqbZA

7- vkids fdrus cPps gS

7- esjs ,d yM+dk lk+s pkj ekg dks gksdj ej x;kA bl le; ,d cPpk djhc ikWp ekg dk isV gSA

8- vkids ‘kjhj esa vkx dSls yxh

Ext. Ka-7

8- esjs o esjs tsB ds chp esa vkt xsgwW ¼filh½ dks ysdj xM+k gqvk vkSj fQj tsB ‘;ke lqUnj ,[email protected] edqUnh yky lkgw us xqLls esa vkdj feV~Vh dk rsy Mkydj vkx yxk nhA

9- vkids ‘kjhj esa yxh vkx dks lcls igys fdlus cqk;k

9- esjs ‘kjhj esa yxh vkx dks lcls igys fdlus cqk;kA eqs gks’k ugha gSA

10- vkidks vkSj dksbZ ckr dguh gS

10- eqs vkSj dksbZ ckr ugha dguh gSA

mDr ejht c;ku ds nkSjku iw.kZ gks’k gok’k esa jghA

c;ku lqudj rlnhd fd;kA

fu-va- nkfguh

g0 viBuh; 04-10-12] 5-00 P.M.

(Sic) esMhdy dkyst fpfdRlky;] kalhA ¼jktsUnz dqekj½

Dated 04-10-12 at 5.00 P.M. uk;c rglhynkj

izn’kZ d9 rglhykWlh lnj**

16. P.W.1, P.W.2, D.W.1 and D.W.2, all have stated that Sharda-deceased, on account of severe abdominal pain has poured Kerosene oil herself and this has also been asserted by the accused in his statement under Section 313 Cr.P.C which is totally contrary to the dying declaration (Ex.Ka.7) recorded by P.W.4 (Naib Tehsildar) Rajendra Prasad. P.W.7-Prashant Kumar Prasad, the first I.O. who was Circle Officer and was conducting investigation before conversion of the case from Sections 498-A, Section304B IPC and ¾ D.P. Act into Section 302 IPC has taken note of the dying declaration in his statement, relevant extract is quoted below;

**eSa eqyfteksa dh ryk’k esa yxk jgk fn0 20-10-12 dks xokg /khjt flag] cgknqj [kka] v:.k dqekj] d`ik ‘kadj] fl;k ‘kj.k ds c;ku vafdr fd;s e`R;q iwoZ c;kuksa ls Li”V gqvk fd ‘;ke lqUnj }kjk ‘kkjnk ds mij feV~Vh dk rsy Mkydj vkx yxkdj gR;k dh xbZ bl dkj.k mDr eqdnek 498] 304 ch] [email protected] Mhih ,DV ls gVkdj 302 vkbZihlh esa rjehe dj fn;k rFkk mDr eqdnes ds foospuk Fkkuk/;{k fpjxkao dks nh xbZA** ——

**xokg v:.k dqekj o d`ik’kadj us Hkh eqs vius c;ku esa ugha crk;k Fkk fd fnukad [email protected]@12 dks ‘kke ds 06 cts ‘kkjnk ds mij mlds tsB ‘;ke lqUnj us feV~Vh dk rsy Mkydj vkx yxk nh gks ftlls mldh ckn esa e`R;q gks xbZ gksA**

17. This dying declaration (Ex.Ka.7) is proved by P.W.3 Preeti Jain in inquest report, P.W.4 Rajendra Kumar, Naib Tehsildar, P.W.5 Dr. Mahendra Pal Singh who gave fitness certificate before and after recording the dying declaration and thus, it leaves no doubt in our mind that this dying declaration is fully reliable and is proved, in accordance with the guidelines laid down by the Apex Court about testing the truthfulness of the dying declaration. It has been held that the Court has to weigh all attendant circumstances and come to the independent finding whether the dying declaration was properly recorded and whether it was voluntary and truthful. Once the Court is convinced that the dying declaration is so recorded, it may be acted upon and can be made a basis of conviction. The Court must bear in mind that each criminal trial is an individual aspect. It may differ from the other trial in some or the other respect and, therefore, a mechanical approach to the law of dying declaration has to be shunned.(See State of Gujrat Vs. Jayrajbhai Punjabhai Varu, ) A.I.R. 2016 SC 3218.

18. The dying declaration is an important piece of evidence under Section 32(1) of Evidence Act and if a dying declaration is found to be true and voluntary and is not a result of tutoring or prompting or a product of imagination, then there is no need for corroboration by any witness and conviction can be recorded on its basis alone. (see Jayabhan Vs. U. T. of Pondichery) 2010(68) ACC 308(SC), Bijoy Das Vs. State of West Bengal (2008)4 SCC 511, Muthu Kutty Vs. State of U.P. (2005)9 SCC 113.

19. A dying declaration made by a person on the verge of his death, has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of deceased regarding the circumstances leading to his death. The dying declaration if found reliable can form the base of conviction. A person who is facing imminent death, with even a shadow of continuing in this word practically non existent, every motive of falsehood is obliterated and the mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. In this respect, Matthew Arnold said ” truth sits on the lips of a dying man”

20. It has been held that if the dying declaration is found to be reliable, then there is no need for corroboration by any witness and conviction can be sustained on its basis alone. In the case in hand,

the dying declaration is corroborated by P.W.4 (Naib Tehsildar) Rajendra Prasad, P.W.3 Preeti Jain (Naib Tehsildar) in the inquest report, P.W.5 Dr. Mahendra Pal Singh.

21. Apart from above, the deceased was found burnt inside the in-laws house and the reason as to how the the deceased-Sharda was found burnt was within their knowledge but the burden under Section 106 of the Evidence Act was not discharged by the accused and false explanation has been given under Section 313 Cr.P.C that on account of stomach pain, he got herself burnt. In such a circumstance, in Joshinder Yadav Vs. State of Bihar(2014) 4 SCC 42, the Apex Court drawing adverse inference, has confirmed the conviction of the accused person. Moreover, we cannot ignore one important factor in the case at hand that the deceased was having an unborn male fetus ( male child) in her womb and it can be inferred that affection and love of a mother in this respect, always stop a woman to end her life, until and unless, there is some very grave and tough situation in her mind. Relevant extract of the statement of (P.W.8) Dr. D.S. Gupta who conducted autopsy is quoted below;

**vkUrfjd ijh{k.k esa oszu dh ffYy;ka datsLVsM FkhA efLr”d dtLVsM Fkk nksuksa QsQMs dUtsLVsM FksA g`n; dk pSEcj nkgyk Qqy o ok;ka [kkyh FksA vkek’; esa yxHkx 150 ,e,y v/kipk Hkkstu FkkA fyoj dUtsLVsM FkkA Liyhu o nksuksa xqnsZ datsLVsM FksA is’kkc dh FkSyh [kkyh FkhA ;wVjl esa 15 lseh0 yEck 300 xzke dk esy cPpk FkkA mldh e`R;q fnukad 05-10-12 lqcg 09-30 ij gqbZ FkhA**

22. We have also gone through the decisions cited by learned Counsel for the appellant, but we find that they are not applicable in the facts and circumstances of the present case.

23. In so far as, argument of learned Counsel for the appellant for conversion and alteration of sentence from Section 302 IPC to that of Section 304 Part-II is concerned, in the facts and circumstances and taking into consideration the materials available on record, we are not inclined to accept the same because the case in hand does not fall within the category provided in Section 304 IPC. The apex Court in Nankaunoo Vs. State of U.P.(2016)3 SCC 317, has held that when sufficiency of injury exists and death follows, causing of such injury is intended and causing of death is murder. In this case, lady has been set on fire by pouring Kerosene oil and the intention of the accused is apparent to cause death of the victim and thus, the accused-appellant is not entitled for extending benefit of Section 304 IPC, in the facts and circumstances of the case.

24. In the result, we do not find any infirmity in the impugned judgment and order passed by learned Trial Judge convicting and sentencing the appellant as mentioned here in above. The appeal has no substance.

25. The appeal is dismissed. Conviction and sentence awarded by learned Trial Judge under Section 302 IPC is affirmed.

26. The appellant is in jail. Registry is directed to transmit the original record to Trial Court and the judgment for immediate compliance to the Court concerned so as to ensure that the accused-appellant serves out the remaining sentence, in accordance with law.

27. The Trial Court is obliged to communicate compliance report to this Court forthwith.

(Umesh Kumar, J) [ Ram Surat Ram(Maurya,J)]

Order Date :- 30.08.2019

Shahid

 

 

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