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RANJEET & ANOTHER versus STATE OF U.P.

High Court of Judicature at Allahabad

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Ranjeet & Another v. State Of U.P. - CRIMINAL APPEAL No. 1080 of 2001 [2007] RD-AH 11944 (13 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.11

Judgment Reserved on 31.5.2007

Criminal Appeal No. 1080 of 2001

Ranjeet and another.----------------Appellants.

Versus.

State of U.P.----------------------Opposite party.

Hon'ble K.N. Ojha, J

Hon'ble R.N. Misra, J

(Delivered by Hon. R.N. Misra, J)

This appeal has been preferred by the appellants Ranjeet and Vishambhar, against the judgement and order dated 27.3.2001, passed by Sri  Muzaffar Hussain, the then XIth Additional Sessions Judge, Agra in S.T. No. 193 of 1998, by which they have been convicted for the offence, punishable, under Section 302 and 354 I.P.C and sentenced life imprisonment and one year R.I respectively.

The facts giving rise to this case are as under:

The complainant-informant Jagdish son of Ram Charan was the resident of village Albatiya, P.S. Jagdishpura, district Agra. The appellants were also residents of same village. On 17.12.1997, the complainant-informant had gone to serve in Shoe Factory situate at a distance of about 2 or 3 Km from his house. His wife had gone to her Maika and his daughter Km. Mamta aged about 17 years was at the house. It was about 11.00 A.M when the appellants entered the house of complainant-informant and made attempt to commit rape upon her daughter Km. Mamta. She raised alarm and gave threats to the appellants to apprise her father about their misdeeds and due to that fear, the appellants Vishambhar poured   Kerosene Oil on her and the appellant Ranjeet lit the fire. Km. Mamta was badly injured due to burn injuries. The village people seeing the smoke coming out of the house of complainant-informant reached there and opened the door of the room, in which the occurrence had taken place. PW-3 Sajjan, the real uncle of the deceased Km. Mamta and one Rakesh, resident of same village were coming towards house of complainant-informant and heard the alarm raised by km. Mamta, they reached first on the place of occurrence. They saw the appellants running away from the room through stairs(Zeena). They were chased but they jumped down from the roof of the house and fled away. The victim Km. Mamta told them about the incident. She was shifted to S.N. Medical College, Agra, where  her injuries were examined by Dr. S.N. Gupta. The injury report is ext. Ka-3. She remained in hospital for a few days and ultimately she died of burn injuries on 19.12.1997 at about 5.30 P.M in S.N. Medical College, Agra. The  complainant-informant was also informed of the incident. He reached directly to the hospital on 17.12.1997 from his factory, where he was working as Labourer and he had a talk with his daughter Km. Mamta, who had told him about entire incident and on the basis of same, he lodged the F.I.R. Ext. Ka-1 at Police Station Jagdishpura, district Agra. The chik is ext. Ka-5. The police registered a case under Section 326 and 354 I.P.C as is evident from copy of G.D. Ext. Ka-6, but when the injured died, the case was converted under section 304 I.P.C as is evident from the copy of G.D ext. Ka-7. The doctor informed the police about the case as is evident from Ext.Ka-4 and Sri Shivendra Singh Yadav, the S.D.M, Sadar, Shahjahanpur reached the hospital and recorded dying declaration of the deceased on 18.12.1997 at 3.40 P.M which is ext. Ka-8. The police also reached there. The dead body of the deceased was inspected by Investigating Officer and an inquest report was prepared which is ext. Ka-9. The photo and challan of the dead body were also prepared by the police and the dead body was sent for autopsy, the report of which is Ext. Ka-2. After completing the investigation, the Investigating Officer submitted charge sheet against the appellants, which is Ext. Ka-11.

The appellants were charged for the offence, punishable under section 354 and 302 I.P.C. They denied the allegation levelled against them and alleged their false implications due to enmity and village parti-bandi. They also examined Babu Lal as DW-1 in their defence.

In support of its case, the prosecution has examined PW-1 Jagdish, who was the informant of the case but not an eye witness. PW-3 Sajjan and PW-9 Nemi Chand have been examined as eye witnesses of the occurrence. PW-2 is Dr. R.C.Jain who had conducted the postmortem examination on the dead body of deceased and has proved the report ext. Ka-2. PW-4 Dr. S.N. Gupta of S.N. Medical College, Agra had examined the injuries of deceased and has proved the  injury report Ext. Ka-3 and letter to the police Ext. Ka-4. PW-5 is constable Ganga Dass, who had prepared chik report ext. Ka-5, on the basis of written report of complainant-informant ext. Ka-1 and had made entry in G.D Ext. Ka-6. PW-6 is Shivendra Singh Yadav, S.D.M, who had recorded dying declaration of deceased which is Ext. Ka-8. PW-7, Harish Chandra and PW-8, Mukandi Ram are witnesses of inquest and are formal in nature. PW-10 is S.I. Rameshwar Prasad Verma, who had investigated the case and has proved police papers.

After considering the evidence on record and hearing the parties, the learned trial court came to the conclusion that the prosecution version are totally proved and convicted the appellants by awarding sentences referred to above and aggrieved by the same, they have preferred this appeal.

We have heard Sri N.I. Zafri, the Amicus Curiae appointed by the Court for the appellants and learned A.G.A for the State.

This fact is not disputed that on 17.12.1997 at about 11.00 A.M, the deceased Km. Mamta aged about 17 years sustained burn injuries in her own house. The Postmortem report Ext. ka-2 supported by statement of Dr. R.C. Jain, PW-2 also proved the case of death by burn. The only question which is to be decided by this Court is whether the appellants had caused burn injuries to the deceased?.

No motive has been imputed  for the crime. PW-1 Jagdish is father of the deceased. He has also not stated about any motive . Learned counsel for the appellants has argued that the appellants have been falsely implicated in this case due to enmity and groupism in the village. The appellants have also stated so in their statements, under section 313 Cr.P.C. However, no specific enmity or groupisam has been alleged or proved by them.

The prosecution has examined Sajjan PW-3 and Nemi Chand PW-9 as eye witnesses of the occurrence. These two witnesses are real uncle of deceased Km. Mamta and real brother of PW-1, Jagdish. Admittedly Jagdish had not seen the occurrence. He was working in a Shoe Factory, where he got the information about the incident and directly went to the Hospital, where the deceased was admitted and he lodged the F.I.R Ext. Ka-1 at the police station Jagdishpura, district Agra, on which the police investigated the case. PW-3, Sajjan says that he along with Rakesh, who was his neighbourer were walking towards the house of Jagdish and heard the alarm raised by deceased. Admittedly, their houses were situate in the same village at some distance from the house of Jagdish and it appears that when they heard the alarm raised by the deceased, they rushed up to the house of Jagdish and saw that the smoke was coming out from one of the rooms. They chased the door of the room and opened it. He has further stated that the room was shut down from inner side. However, he could not see whether Kundi was locked from inside or not. When they reached in the room, they saw that the body of the deceased was burning. He put Bichhauwa( a kind of bed) on the deceased and flames were extinguished. The deceased told them that the kerosene oil was poured by the appellant Vishambhar and fire was lit by appellant Ranjeet because they wanted to rape her and when she resisted and gave threats to tell the fact to her father, she was done to such condition. At page 2 of his statement on oath, PW-3 Sajjan has stated that after telling the facts, the deceased became unconscious.In his cross-examination, Sajjan at page 3 of his statement on oath, has stated that he did not found any container of kerosene oil there. Further,he has stated that when he saw the deceased at the first time, she was lying unconscious. However,he did not report the matter to the police. He went to the hospital with the injured and his brother Sahab Singh got the injured admitted in the hospital.Further,he has stated at page 5 that Jagdish PW-1 had come to the hospital in his presence.However, he did not tell anything about the incident to Jagdish. His this contention was quite suspicious because being real brother of Jagdish and real uncle of deceased and claiming himself to be eye witness of the occurrence, why he did not tell anything to Jagdish. In the last portion of page 5, he has stated that he told the Investigating Officerthat he had seen the appellants while running away from the spot. At page8,he stated that in his presence, the deceased had not told anything to her father Jagdish.As against  evidence of PW-3, Sajjan, the statement of PW-9 Nemi Chand falsifies his presence on the spot at the time of occurrence. Nemi Chand has stated that he was taking sun-bath behind the house of Jagdish and saw the appellant Vishambhar standing   outside of the   house of    Jagdish. He has

stated that he had seen the appellant Ranjeet while running away from the house of Jagdish. He heard the alarm raised by the deceased. He reached the house of Jagdish and saw the deceased in burning condition. She told him name of Ranjeet to have committed crime. At page 1, he has further stated that when the village people reached there, the deceased had become unconscious. Further at page 2, he has stated that he sent the information to Jagdish and Sajjan, who had gone to work in the Shoe Factory. Further, he has stated that Sajjan and Jagdish had taken the deceased to the Hospital. This statement of PW-9 clearly shows that Jagdish was also not present at the time and place of occurrence and he was called by PW-9 from shoe factory, where he was working. In his cross examination at page 2, PW-9 has stated that he had told the Investigating Officer that he had come to know the fact that the appellant Ranjeet had burned the deceased . On the same page, he has stated that while extinguishing fire, he had also got burn injuries on his hand, but he did not show his hand to the Investigating Officer. Further he has stated that he had put clothes on the body of deceased which was also partly burn but that cloths was also not shown to the Investigating Officer. Learned counsel for the appellants has argued that on the basis of this statement of PW-9, it can be said that he had not seen the occurrence. At page 3, he has stated that he went inside the house of Jagdish by Zeena and opened the door of the room, in which the occurrence had taken place and then village people reached there. His this statement also belies the statement of PW-3 Sajjan that he and Rakesh  had opened the door of the room, which was bolted from inside. Further, at page 3 he has stated that he had gone to police  station to report the matter, but the police did not record his report, but no such allegation has been made by PW-1 against the police, who has lodged the report. Thus, the statement of PW-3, Sajjan and PW-9, Nemi Chand are totally contradictory to each other. Thus, we come to the conclusion that either both were not present at the time and place of occurrence or anyone of them was not there and both are not believable.

The dying declaration of deceased Km. Mamta is quoted below:

"MAI POORN HOSH ME APNE BAYAN DE RAHI HOON MAI GHAR PAR AKELI THI RANJIT AUR VISHAMBHAR MERE GHAR AAYE IN LOGO NE KAPRE PHAR DIYE AUR GALAT KARYA KARNEY KA PRAYAS KIYA MAINEY JABARJASTI KA VIRODH KIYA IS PAR RANJIT SON OF MALKHAN SINGH, VISHAMBHAR SON OF LAHORE NE MARA PEETA TATHA MAINE BHAGNEY KA PRAYAS KIYA LEKIN DARWAZA KA KUNDA BAND THA ISLIYE BHAG NAHI PAYI. VISHAMBHAR AUR RANJIT NE TAB MITTI KA TEL DALKAR MERE AAG LAGA DI. MAI CHILLLAI AUR BEHOSH HO GAI. YAH DONO LOG PHIR GHAR SE BHAG KAR BOUNDARY PHAND KAR NIKAL GAYE. YAH GHATNA MERE SAATH DINAK 17.12.97 KO PRATAH 11.00 BAJE KE AAS PAAS GHATI THI. ISKE ATIRIKT MUJHE KUCHH NAHI KAHNA HAI. BYAN POOREY HOSH ME DIYA HAI".

Learned A.G.A arguing on behalf of the State has laid much emphasis on the so called dying declaration ext. Ka-8, recorded by PW-6 Shivendra Singh Yadav, the then S.D.M, Sadar, Shahjahanpur. This statement was recorded by the Magistrate on 18.12.1997 at about 3.40 P.M. This statement shows that the deceased had told the Magistrate that the appellants entered her house and wanted to rape her and when she resisted, they poured kerosene oil on her and lit fire.  She became unconscious. Learned counsel for the appellants has argued that this so called dying declaration is not believable because deceased was not in a position to give such statement. The Investigating Officer, R.P. Verma, PW-10, has also stated that he has recorded the statement of deceased, under section 161 Cr.P.C. The evidence on record shows that the deceased was not in a position to give such statement either to the Investigating Officer or to the Magistrate. As we have discussed earlier, PW-3, Sajjan has  specifically stated that when he reached the place of occurrence, he saw that Km. Mamta was lying unconscious. Relevant line of his statement is quoted below:

"JAB MAINEY PAHLI BAAR MAMTA KO DEKHA TO WAH BEHOSH PARI THI".

PW-1 Jagdish has stated in his cross examination in chief that when he reached the Hospital, his daughter Km. Mamta told him entire incident  involving these appellants and on the basis of same, he had lodged the report ext. Ka-1. At page 3, he has clearly stated that when he reached the Hospital, his daughter was lying unconscious and she remained unconscious for two days. Relevant line is quoted below:

"MERE GAON KE DO LADKE AUR KAARKHANE ME KAM KARTEY THE JINKE NAAM BABLU WA RAJOO HAI MERE MALIK SOOCHNA DENE KE BAAD MERE SATH NAHI GAYE YN  BABLU WA RAJOO MERE SATH GAYE ASPATAL ME MUJHA MERA KOI BHAI DIKHAI NAHI DIYJ THA KEWAL LADKI HI ASPATAL ME PARI THI MUJHE NAHI MALOOM KI USE ASPATAL ME KISNEY BHARTI  KARAYA LARKI US SAMAY BEHOSHG KI HALAT ME THI WAH DO DIN BEHOSH RAHI MAI PADHA LIKHA NAHI HOON ASPATAL SE REPORT KARNE JATEY SAMAY MERA BHAI SATH GAYA THA"

As against this, PW-3 Sajjan has stated at page 4 that when he reached the place of occurrence, he found that the injured were  unconscious. He has further stated that he had also accompanied the injured to the Hospital. In his cross examination at page 8, he has further stated that in his presence, Mamta did not say anything to Jagdish PW-1 in the hospital. Thus, it is clear that this statement of Jagdish PW-1 is not relevant that the Mamta was conscious in the hospital and was in a position to tell something. At page 5, Sajjan has stated that Jagdish has reached the Hospital in his presence at about 6.45 P.M. Further, he has stated that he did not  tell anything to Jagdish about the incident.

PW-6, Shivendra Singh Yadav, the then S.D.M, Sadar, district Shajahanpur had allegedly recorded dying declaration of deceased and has proved it which is ext. Ka-8. In his statement before the court, he has stated that the deceased was  in  a position to tell things and was conscious, but he has not said a single word about the fact that before recording statement, he got the certificate of any doctor about mental and physical condition of the deceased, but ext. Ka-8 says that the certificate in following words was given by any doctor before recording statement which runs as under:

"The patient was fully conscious before giving statement"

Sd/doctor

3.30 P.M

18.12.1997"

Further, there is a certificate of some doctor at the end of statement of deceased Km. Mamta in following words.

"After giving statement, the patient( Mamta 17 years/ female) was fully conscious".

PW-9, Nemi Chand has also stated that the Mamta was unconscious and was not in a position to speak. He has stated at page 2 that the Mamta was brought to the Hospital by his brother Sajjan and Jagdish from the place of occurrence.

As we have discussed above, Km. Mamta was unconscious and she remained unconscious for two days as stated by his father himself. Thus, it is not believable that in the hospital, she was in a position to speak and give statement to the Magistrate. PW-4, Dr. S.N. Gupta, who had treated the deceased in the hospital also could not say before the court whether patient was conscious and was in a position to speak. At page 18, he has stated that neither he had asked the patient that how she sustained the injuries nor the patient told him. Further, he has stated that the deceased was in his supervision in the hospital from the time of admission and till death. He has stated not a single word that the Magistrate, who had recorded the statement of deceased had taken any certificate from him before recording  it about her physical and mental condition. Not only this, the certificate of doctor on Ext. Ka-8 is also not clear and the endorsement allegedly made by the doctor has also not been proved.

In the case of  Paparambaka Rosamma and others Vs. State of Andhra Pradesh; 1999 SCC (Crl) 1361, the three Judges Bench of Hon'ble Apex Court has clarified the legal position regarding dying declaration. Relevant portion is quoted below:

" Where conviction is solely based on the dying declaration, the court has to consider carefully the dying declaration and the evidence of the witnesses supporting it viz, the Magistrate who recorded the statement of the deceased and the doctor, who examined the deceased in the hospital" .The 90% burn injuries sustained by the deceased- whether deceased was conscious and in a fit mental condition to make a voluntary disclosure of the incident- Consciousness and fitness of mind are distinct conditions. Doctor's certification not only about consciousness but also about fit state of mind of the deceased that existed before recording of dying declaration is essential- Instead note, made by the Magistrate who recorded the dying declaration that deceased was fit to make the statement and certificate given by the doctor at the end of the dying declaration by merely stating that the patient was conscious while recording the statement was not compliance of legal requirement of Section 32 of Indian Evidence Act 1872.

In the case of Kanchy Komuramma Vs. State of A.P.;1996 SCC(Crl) 31, the Hon'ble Apex Court has given guide lines about recording of dying declaration. Relevant observations are quoted below:

"Dying declaration if found to be true and free from embellishment then it is sufficient for recording conviction. Prosecution must prove that the deceased was in proper mental condition to make the dying declaration. Merely because the dying declaration has been recorded by a Judicial Magistrate is not by itself a proof of its truthfulness... Non-examination of doctor who certified mental fitness of the deceased. Statement of the deceased' mother that the deceased was not good and that she was not in a fit condition. The failure of the prosecution to establish that the deceased , before she made the dying declaration,w as in proper mental condition to make the dying declaration detracts materially from the reliability of the dying declaration and it would not be safe to rely upon it. That the dying declaration has been recorded by a Judicial Magistrate by itself is not a proof of truthfulness of the dying declaration, which in order to earn acceptability has still to pass the test of scrutiny of the court. In the present case the prosecution did not examine the doctor who is alleged to have made endorsement on the dying declaration that "the patient was in a fit state of mind to depose". No other witness was examined to prove the certificate of the doctor either. The non- production of doctor to prove his certificate and subject himself to be cross examined by the appellants when considered in the light of the testimony of the mother of the deceased, who specifically stated that the condition of the patient was not good and that she was not in a fit condition, creates a doubt as to whether the patient was actually in a proper mental condition to make a consciously truthful statement. This infirmity renders it unsafe to rely on the dying declaration. There are certain safeguards which must be observed by a Magistrate when requested to record a dying declaration. The Magistrate before recording the dying declaration must satisfy himself that the deceased is in a proper mental state to make the statement. He must record that satisfaction before recording the dying declaration. He must also obtain the opinion of the doctor, if one is available, about the fitness of the patient to make a statement and the prosecution must prove that opinion at the trial in the manner known to law. These safeguards have not been observed in the present case.

As we have discussed earlier, the Magistrate allegedly recorded the statement of deceased and has stated that she was in a fit physical and mental condition to give statement but that is not reliable in view of statement of two eye witnesses namely Sajjan and Nemi Chand and father of deceased namely Jagdish. No opinion of doctor about fitness of mental condition of the deceased has been proved. Admittedly, there were 100% deep burn injuries on the body of deceased and in such a condition, she would not have been in a position to speak. Thus, we have no option, but to raise suspicion in the genuineness of dying declaration, recorded by the Magistrate.

In view of our above discussion, we come to the conclusion that the prosecution has failed to prove its case beyond all reasonable doubts against the appellants and learned trial court has not appreciated evidence on record in  right prospects. Thus, the appeal deserves to be allowed.

The appeal is allowed and the judgement and order dated 27.3.2001, passed by learned Sessions Judge are set aside. The appellants are acquitted of the charges levelled against them. They are in jail, they shall be released forthwith if they are not wanted in any other case.

Let a copy of this judgement and order be sent to the C.J.M, Agra for compliance, who shall submit compliance report to this Court by 13.8.2007.

Date July 13, 2007

sfa/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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