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ASHOK & ANOTHER versus STATE OF U.P.

High Court of Judicature at Allahabad

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Ashok & Another v. State Of U.P. - CRIMINAL APPEAL No. 808 of 2006 [2007] RD-AH 2943 (22 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.  54  

Reserved.

Criminal Appeal No. 737 of 2006

Subhash Vs. State of U.P.

Connected with

Criminal Appeal No. 808 of 2006

Ashok and another Vs. State of U.P.

Connected with

Criminal Appeal No. 1677 of 2006

Smt.Chameli Vs. State of U.P.

Connected with

Criminal Appeal (Defective) No. 135 of 2006

Ram Phal Vs. State of U.P.

Connected with

Criminal appeal (defective) No. 163 of 2006

Hemu Vs. State of U.P.

Hon'ble M. K. Mittal, J.

Criminal Appeal No. 737 of 2000 has been filed by Subhash, Criminal appeal no. 808 of 2006 has been filed by Ashok and Anil, Criminal appeal no. 1677 of 2006 has been filed by Chameli, Criminal appeal (defective) No. 135 of 2006 has been filed by Ram Phal and Criminal appeal (defective) No. 163 of 2006 has been filed by Hemu against the judgement and order dated 10.2.2006 passed by Addl. Sessions Judge, Court No. 6, Ghaziabad in S. T. No. 52 of 2005 whereby the appellants have been found guilty and convicted under Sections 304-B, 498-A IPC and Section 3/4 D.P.Act and have been sentenced to undergo rigorous imprisonment up to ten years and fine has also been imposed on them under Section 498-A IPC and Section 3/4 D.P. Act with default stipulation.

The appeals filed by Ashok, Anil, Subhash and Smt. Chameli have been connected. The delay in the appeal filed by Hemu has been condoned by order dated 11.52006 but the office has not yet allotted a regular number. Office is directed to allot a regular number to the appeal filed by Hemu. Application for condonation of delay filed by Ram Phal is still pending. At this stage, learned counsel for the appellants have pressed the relief for release on bail during pendency of these appeals on behalf of accused Ashok, Anil, Subhash and Smt. Chameli and the same is being decided by a common order.

I have heard learned counsel for the parties and have perused the trial court record.

Brief facts of the case are that Smt. Rekha was married with Hemu on 11.2.2000 according to Hindu Rites and dowry was given but it could not satsfy the accused persons and demand for additional dowry was being made. She gave birth to a son in 2002 and the informant, who is brother of the deceased gave 'Chochak' worth Rs. 25,000/-. After that accused persons kept silence for some time but they again started making demand and also gave poison to Smt. Rekha. However, she survived at that time.

On 9.12.2003, the informant came to know that his sister was burnt and was admitted in K.K. Sood Nursing Home, Nehru Nagar, Ghaziabad. He went with his family members to see her and she told him that on 6.12.2003 at about 11.30 p.m., the accused persons had sprinkled kerosene oil on her and had set her on fire. Smt. Rekha was admitted in Nursing Home on 7.12.2003 in the day time by her husband Hemu. Her first dying declaration was recorded on 61.2004 by Harishchandra Verma, Naib Tehsildar (P.W.-9). This statement was recorded after the doctor had given a certificate about her fitness. She remained admitted in Sood Nursing Home up to 18.1.2004. She was thereafter shifted to Safdarjung Hospital, New Delhi and her second dying declaration was recorded on 19.1.2004 by Rajesh Chopra P.W.-4 who was then posted as S.D.M., Basant Bihar. He had also obtained certificate of fitness from doctor before recording the statement of Smt. Rekha. She succumbed to her burn injuries on 21.1.2004 in Safdarjung Hospital at 3.30 p.m.

Learned counsel for the appellants has contended that the appellants have been wrongly implicated in this case and that the learned Trial Court has not properly appreciated the evidence on record. According to learned counsel for the appellants accused lived separately from deceased and her husband and in this connection ration card etc have also been filed. Learned counsel for the  appellants has also contended that there are two dying declarations and there are material differences and therefore none of the dying declaration can be relied upon. Against it, learned counsel for the State has contended that the accused lived jointly with the deceased and her husband in same house having one exit door and that there is no difference in two dying declarations recorded in this case. According to learned counsel for the State all the accused persons participated in setting the deceased on fire.

As far as the question of separate living is concerned, P.W.-1 brother of the deceased has denied the suggestion that the accused Subhash and Anil lived separately. According to him, they all lived in the same house together. It appears that the appellants did not adduce any evidence in the Trial Court regarding separate living, so much so that they even did not state this fact in their statement recorded under Section 313 Cr.P.C. Therefore the contention as made by the learned counsel for the appellants that the accused lived separately from the deceased and her husband is not tenable.

Learned counsel for the appellants has vehemently argued that there are two dying declarations and there are material differences in them and therefore they cannot be relied upon and the appellants are entitled to be released on bail. First dying declaration  has been recorded by Harishchandra Verma, Naib Tehsildar on 6.1.2004. He has made a positive statement that it was recorded in the presence of the doctor after he certified mental fitness of the deceased. In this statement the deceased stated that she was burnt by her Jeth Ashok Kumar, Subhash, Dewar Anil, Mother in law Smt. Chameli. At that time her father in law Ramphal was also present. She was sleeping, the oil was poured on her and the fire was made by her husband Hemu. At the time of setting her on fire, all these persons was present. She was burnt for non giving of the dowry. She was burnt on 6.12.2003 at 11 p.m. She had one and half years old son Ajay. Prior to it, her husband had made efforts to kill her by giving poison.  This statement shows that the deceased stated about the presence of all the accused persons and their active participation, although actual fire was made by her husband. In the second statement which was written in question answer form, she was put a question as to who set her on fire and she replied all the family members. Then she was asked who were in the family and she replied Jeth Ashok, Subhash, Father in law Ramphal, Mother in law Smt. Chameli, Dewar Anil and husband Hemu. She was sleeping and all had set her on fire. In that statement also she stated that earlier poison was given to her and demand of scooter and Rs. 50,000/- and a golden chain was being made. In the second statement also she states about the presence of all the accused persons and that she was set on fire by them. Therefore there is no material contradiction in the two statements and it cannot be said that there was no complicity of the accused persons in setting her on fire.

Learned counsel for the appellants has cited the case of State of Punjab Vs. Pravin Kumar (2005) 1 Apex Criminal Judgements page 169. In that case in the first dying declaration only husband was implicated but in the second dying declaration all family members (father in law, mother in law, sister and husband) were implicated and in that matter it was held that both the dying declarations were not reliable for want of any corroboration. In the instant case,  facts are different and this ruling does not help the appellants.

It is also important to mention that the accused persons have not given any plausible explanation as to how she received burn injuries. In their statements under Section313 Cr.P.C., accused have not stated anything as to how she received burn injuries. Suggestion was made to prosecution witness, P.W.-1 that Smt. Rekha set herself on fire but that suggestion  has been denied by the witness. Accused examined Shravan Singh, D.W.-1 and Devendra, D.W.-2 and they have given a different version. According to these witnesses on 7.12.2003 in the morning when Jagpal the brother of the deceased, was present, he enquired as to how she was burnt and then she stated that while she was boiling milk, the stove burst and she cought fire. But no such suggestion has been given to Jagpal rather a different case was put to him that Smt. Rekha set herself on fire.

It has also come in evidence that Smt. Rekha was taken to the hospital after 14 hours of the incident and till then no medical aid was given to her. This circumstance is also material. Thus I come to the conclusion that at this stage, the appellants Subhash, Ashok, Anil and Smt. Chameli who actively participated in the burning of Smt. Rekha are not entitled to be released on bail and their prayer for bail is liable to be refused and is hereby refused.

The appeals of Hemu and Ram Phal be listed on 2.4.2007.

Dated: 22.2.2007

RKS/


Copyright

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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