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STATE OF U.P. versus RAM KISHAN AND ANOTHER

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State Of U.P. v. Ram Kishan And Another - GOVERNMENT APPEAL No. 3087 of 1999 [2005] RD-AH 1068 (13 April 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

                            Government Appeal No.  3087  of 1999

   State of U.P...............................................................Appellant

                             Versus

  1. Ram Kishan

  2. Smt Kiran Devi ......................................................Accused

                                                                                                    Respondents

Hon'ble M.C.Jain,J.

Hon'ble M. Chaudhary,J.

(Delivered by Hon'ble M Chaudhary,J.)

This government appeal has been filed on behalf of the State of U.P. from the judgment and order dated 31st of May 1999 passed by IV Additional Sessions Judge Agra in Sessions Trial no. 697 of 1994 State versus Ram Kishan & others under sections 498A and 304 B IPC acquitting accused Ram Kishan and Kiran Devi.  Co-accused Ram Bharosi and Fauran Singh died during the trial and their trial was abated.

         Brief facts giving rise to this appeal are that at 6: 15 p.m. on 9th of September 1993  Ramesh Chandra, father of the deceased lodged an FIR at police station Saiyan District Agra  alleging that he resided at village Semar-ka-Pura hamlet of Baretha, District Dhaulpur (Rajasthan) and  married his daughter Meena  with Ram Kishan son of Ram Bharosi,  resident of Nagla Chhahri within the limits of police station Saiyan District Agra  according to Hindu rites,  but her husband Ram Kishan and her        in-laws were not satisfied with the dowry provided by him and she was used to be harassed and tormented by them on the pretext  that  golden chain and ring were not provided in dowry. On 8th of September 1993 Ramesh Chandra alongwith his co-villagers Kedar Singh and Prem Singh went to the house of in-laws of his daughter to fetch her.  On reaching at the house of her in-laws, Ram Kishan alongwith his brother Fauran Singh, father Ram Bharosi  and mother Kiran Devi met him at the door of their house and as he asked them as to why  his daughter Meena was used to be beaten by them now and then Ram Bharosi told that he should provide them golden chain and ring otherwise his daughter would be set ablaze  or killed and he would perform another marriage of his son. Then Ramesh Chandra replied that when a child would  born to his daughter he would provide them golden chain and ring and thereon they made him to leave that place. At about 3:00 p.m. all of them went inside the house and he sat under the ''Neem' tree near the house. In the meanwhile on hearing the outcry of his daughter Meena, Ramesh Chandra alongwith Prem Singh and Kedar Singh went inside the house and saw that Meena was set ablaze and all the four inmates of the house left that place and went  away.  Then  Ramesh Chandra with the help of Kedar and Prem singh extinguished the fire and took the victim to S N Medical College Agra  and got  her admitted there.

On the basis of the written report the  police registered the crime under section 498 A and 307 IPC.  HM Chandra Pal Singh prepared check report and made entry regarding registration of the crime in GD (Exts Ka 4 and Ka 5).  

On 10th of September 1993 Sri Ram Avtar Additional City Magistrate Agra on receiving the information from the police went to S N Medical College  and recorded dying declaration of Smt Meena after fitness certificate by  Dr Vijai Shanker Jha at 10: 15 a.m. She succumbed to the burn injuries sustained by her in the Hospital on 13th of September 1993 at 5: 30 p.m. Inquest proceedings on the dead body of Smt Meena were drawn by  SI Kheem Singh  under the supervision of CO Shyam Pal Singh  who prepared the inquest report (Ext Ka 12) and other necessary papers (Exts    Ka 9 to Ka 11) and handed over the dead body in a sealed cover alongwith necessary papers to constable Nek Ram  for being taken for its post mortem.

SI Khem Singh visited the scene of occurrence, inspected the site and prepared its site plan map (Ext Ka 8).  He also recorded statements of the witnesses and did other necessary things.

Autopsy conducted on the dead body of Smt Meena by Dr  R.C.Joshi  Medical officer District Hospital Agra  on 14.9. 1993 at 3:00 p.m. revealed below noted ante mortem injuries on the dead body:

1. Septic burn  superficial to deep present on whole of the body  excepting right foot, both sole and some part of lower abdomen.

2. Open cut mark  present on both the ankles inner aspect. Surgical dressing was found on the body.

He found 100% burn present on the body. Brain and its membranes,  pleura, larynx , trachea and bronchi  were congested. Spleen and both the kidneys also congested.  The doctor opined  that the death was caused due to  septicemia as a result of burn injuries.

        After post mortem on 29th of September 1993 crime was altered under section 498A and 304 B IPC vide GD entry no. 30 (Ext Ka 6).  

         After completing the investigation CO Shyam Pal Singh submitted charge sheet against the accused accordingly.

In order to bring the charge home to the accused the prosecution examined Ramesh Chand (PW 1), Kedar Singh (PW 2) and Prem Singh (PW 3) as eye witnesses of the occurrence. Out of three eye witnesses namely PW 1 Ramesh Chand, PW 2 Kedar Singh and PW 3 Prem Singh none has supported the prosecution case at all against any of the accused. All the three witnesses were declared hostile and cross-examined by the prosecution with the permission of the court but to no use.  PW 5 Prem Singh son of  Bahadur  Singh  who scribed the report  on  the dictation of  Ramesh Chand  has proved the same  in his examination -in-chief but in his cross-examination he stated that he scribed the report on the dictation  of the sub-inspector as he was terrorized by him. PW 4 Dr R.C.Joshi who conducted autopsy on the dead body of Smt Meena has proved the post mortem report stating that she had suffered  100% burns all over the body. PW 6  Sri Ram Avtar ACM who recorded dying declaration of Smt Meena, the victim in the Hospital has proved her dying declaration.

Both the accused pleaded not guilty denying the alleged occurrence altogether. Accused Kiran Devi stated that she was ill and due to ailment she was getting herself  treated in the Hospital at Agra. Co-accused Ram Kishan stated that since Smt Meena was not sent alongwith her father to her parents' house she committed suicide and that he and his family members and her father  got her admitted in SN Medical College Agra. He also stated that at the time her dying declaration was allegedly recorded in the Hospital she was not in the condition to make any statement.

On an appraisal of evidence on the record the Trial Judge disbelieved the prosecution case and finding the accused not guilty of the charge levelled  against them acquitted them.

Feeling aggrieved by the impugned judgment and order this government appeal has been filed on behalf of the State of U.P. for redress.

We have heard learned AGA for the state appellant and learned counsel for the accused respondents.

The only piece of evidence against the accused is the dying  declaration of Smt. Meena allegedly  made by her  to Sri Ram Avtar, Additional City Magistrate, Agra and recorded by him on 10th of September, 1993 at 10:15 a.m.  Learned  AGA  for the State vehemently argued that the court below  committed error   by ignoring the dying  declaration of Smt. Meena recorded  by Sri Ram Avtar, Additional City Magistrate, Agra.  In our opinion, the  said argument  advanced by the learned AGA has not got  much substance  in it.  The  trial judge was perfectly justified in  not placing implicit reliance on the said  dying declaration due to material discrepancies in the two dying declarations and prosecution evidence. PW1 Ramesh Chand, father of the  deceased  stated in his cross-examination that  after breaking down the  door leaves  of the room in which she  set herself  ablaze on fire and getting the fire  extinguished,  on being asked by him Meena told him that since he   did  not take her  with him to her  parental home she set herself ablaze on fire. However in the  dying  declaration  allegedly made by Smt Meena to the ACM in the Hospital she stated that the  demand of  scooter  in dowry made  by her husband and parents-in-law could not be  satisfied by her parents, that at about 2:00 p.m. on 8th of September, 93 her father came to  fetch her but her husband  and in-laws  refused to send her with him and  thereafter  they beat  her and her mother-in-law  poured kerosene on her and  her husband ignited  fire  to her; that on her shrieks her father alongwith other villagers reached there and extinguished the fire and that it was her father who got her admitted in the Hospital at about 5:00 p.m. that very evening. Smt. Meena  stated in her dying declaration that she was  used to be harassed and tormented by her husband  and  in-laws  as the demand of scooter  in dowry made by them  could not be satisfied by her parents.  However PW1 Ramesh Chand, father of the deceased mentioned in the FIR that  his son-in-law  and his  parents used to  demand golden chain and  ring in dowry which he could not provide  due  to his poor financial condition.   He also mentioned in  the written report that his daughter  Meena was used to be  harassed and tormented by her husband and in-laws now and then as the demand of golden chain and ring in dowry made by  them could not be fulfilled by him.  Thus these two dying  declarations are too inconsistent to be reconciled and the dying declaration made by Smt Meena in the Hospital is too discrepant on material  points  going to the very  root of the case.

Learned counsel for the accused respondents  placed reliance  on  Chacko Vs. State of Kerala reported in 2003(8) JIC 38(SC) in which  the Hon'ble Apex Court  observed that  it is difficult to accept that the  victim  who had suffered 80% burns   could make  detailed dying declaration after 8-9 hours of burning.  No doubt  in that case there  was  no  certificate  given by a  competent doctor  as to the mental and  physical condition of the deceased to make  dying declaration. In the instant case, the doctor  who gave the certificate of fitness for making the dying declaration has not been examined  by the prosecution. The bed head ticket of Smt Meena, the victim too has not been brought on the record for the reasons best known to the prosecution.  Dr. R.C. Joshi who  conducted autopsy on the dead body of  Meena stated that she  had suffered 100%  burns. Under the circumstances it is doubtful if Smt Meena, the victim who had suffered 100% burns was in a fit mental state to make the statement ( dying declaration) alongwith the date and time giving the description of the incident within five minutes as the dying declaration  was concluded by the ACM at 10: 20 a.m.      

In view of  above  facts and circumstances, the learned  trial judge was justified in holding that  it was not safe to  place  implicit reliance  on  the dying declaration allegedly made by  Smt. Meena to Sri Ram Avtar, ACM, Agra recorded in the Hospital on 10th of September, 93 at 10: 15 a.m.

Since the  view taken by the learned trial judge can not be said to be  perverse or unreasonable it would not be   proper  for this Court to interfere  with the finding of the  acquittal arrived at  by the court below.

The appeal has got no merit and is liable to be dismissed.

The appeal is dismissed.

Office shall send copy of the judgment alongwith record of the case to the  court concerned immediately for necessary compliance under intimation to this court within  two months from today.

Dated: 13.4.2005/P.P.

GA-3087-99

After going through the record we find ourselves in complete agreement with the findings recorded by the court below. The only piece of evidence in this case is the dying declaration of Smt Meena recorded by ACM Ramautar (PW6).  Out of the three eye witnesses examined by the prosecution none has supported the prosecution case against any of the accused. PW 1 Ramesh father of the deceased and the first informant deposed that he had married his daughter Meena with Ram Kishan some five years ago; that her daughter  Meena never told them that she was subjected to cruelty or used to be beaten by her husband or in-laws nor did she ever complain regarding demand of any dowry;  that on the alleged day he had gone to the house of in-laws of Meena to fetch her but her husband and father-in-law told him that since her mother-in-law was ill and admitted in Agra Hospital she would not go that time and that thereafter Meena committed suicide by putting fire to herself and then  in-laws of Meena got her admitted in Medical College Agra. He also disowned the FIR lodged by him  with the police stating  that the sub inspector had obtained his thumb impression on some blank paper. He stated in his cross-examination that Jeth and father-in-law of Meena got the door leaves broken and  extinguished the fire  and at that time Meena told him that since he was not taking her with him she set herself ablaze on fire.  PW 2 Kedar and PW 3 Prem Singh also stated likewise.  Both of them stated that  the  day Ramesh went to fetch his daughter from her in-laws' house  her mother-in-law was suffering with some ailment  and was admitted in the Hospital at Agra.  PW 4 Dr R.C.Joshi who conducted autopsy on the dead body of Meena stated that she had suffered 100% burns.  PW 5 Prem Singh II scribe of the FIR stated in his cross-examination that he scribed the FIR under police pressure on the dictation of sub inspector.   PW 6 ACM Ramautar who recorded dying declaration  of Smt Meena in SN Medical College Agra on 10.9.93 at 10: 15 a.m. has proved the dying declaration recorded by him deposing that she told to him that her husband and in-laws used to rebuke her and beat her as her parents could not satisfy the demand of scooter made by them and that on 8th of September 93 at about 2:00 p.m.  her father had come to fetch her but her husband and in-laws made him to leave that place and her mother-in-law poured kerosene oil on her and her husband ignited fire to her and that since her both hands got burnt impression of her right toe was taken on the dying declaration (Ext Ka 3).  Thus the only piece of evidence against the accused remains the dying declaration of Meena Devi allegedly made by her to ACM Ranmautar (PW 6).  In our opinion implicit reliance can not be placed on her this dying declaration as her father Ramesh (PW 1) stated in his cross-examination that after breaking open the door leaves of the room in which she set herself ablaze on fire and after extinguishing the same she told him that since he did not take her with him  therefore she set  herself ablaze on fire.  Learned counsel for the respondents has placed reliance on   Chacko versus State of Kerala reported in 2003 (1) JIC 38 (SC) in which the Apex Court observed that it is difficult to accept that the victim who had suffered 80-%  burns could make  detailed dying declaration after 8-9 hours of  burning giving minute details.  However facts of that case are somewhat different as in that case there was no certificate by a competent doctor as to the mental and physical condition of the deceased to make such a dying declaration. However since in the instant case both the dying declarations first made by the deceased to her father soon after the occurrence and subsequently her dying declaration recorded by ACM Agra Ramautar (PW 6) are inconsistent and contradictory on material aspects .It would not be safe to place implicit reliance on the alleged dying declaration made by her and recorded by ACM Agra in the Hospital.  Moreover the view taken by the learned trial judge can not be said to be perverse or so unreasonable as no court would reach  to such conclusion  and under the circumstances it would not be proper for this court to interfere with the finding of acquittal arrived at by the court below.  The appeal has no merit and is liable to be dismissed.

The government appeal is dismissed.

Dated:13.4. 2005

Dks/GA3087-99


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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