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MEGHAI versus STATE OF U.P.

High Court of Judicature at Allahabad

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Meghai v. State Of U.P. - CRIMINAL APPEAL DEFECTIVE No. 280 of 2005 [2005] RD-AH 3290 (21 September 2005)

 

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

Hon'ble M.C. Jain, J.

Hon'ble K.K.Misra, J.

Filing of certified copy of the impugned judgment is dispensed with as the same is on the record of connected Criminal Appeal No.3053 of 2005.

We have heard Sri Ram Shiromani Shukla,  counsel for the appellant and Sr M.C. Joshi,  A.G.A. on bail prayer during the pendency of appeal. The record has been summoned in connected Criminal Appeal No. 3053 of 2005 which we have perused including the impugned judgment.

Admit and connect with Criminal Appeal No.3053 of 2005.

The deceased Rai Singh was the husband of the sister of the appellant. He was burnt on 20.2.1994 at about 7 P.M. at his house. The FIR was lodged by his mother Loko Devi PW 3 on 21.2.1994 at 1.10 A.M. The victim was alive by that time and as such the case was registered under Section 307 IPC. The appellant, his sister (wife of the deceased) and two sons of the deceased, namely, Dharmendra and Pyare Lal were named as culprits in the FIR with the allegations that the appellant handed over bottle of kerosene to his sister which she poured on the victim and her two sons set him ablaze. At the trial, Loko Devi PW 3 (informant and the mother of the deceased) and Bitania PW 4 sister of the deceased turned hostile. The only evidence at the trial was that of the dying declaration of the deceased  purportedly recorded in T.B. Sapru Hospital, Allahabad by S.D.M. Mahadeo Prasad PW 5 on 20.2.1994 between 11.40 P.M. and 11.55 P.M. The victim died on 21.2.1994 at 5.45 A.M.

The argument of the counsel for the appellant is that the deceased was not at all in a position to give dying declaration and as such the conviction could not be based thereon. On going through the record, it is noted that the deceased had suffered 100% burns. He was admitted in the hospital by one Jaipal (not examined at the trial). Initially he was examined by Dr Syed Nazimuddin Ahmad PW 2 at 9.30 P.M. The victim was in serious condition. His pulse was recorded as 110 per minute and blood pressure was so low that it was not recordable. The S.D.M. Mahadeo Prasad PW 5 stated in his deposition before the court that at the time of recording dying declaration the victim was in semi-conscious condition but was in a position to make dying declaration. Glucose was being administered to him at that time. The post mortem was conducted by Dr S.K. Singh PW 9 on 21.2.1994 at 5 P.M. In post mortem, lungs were found congested. The brain, liver and pericardium were badly burnt and congested. He opined that the victim could not speak after being completely burnt.

Sri M.C.Joshi, A.G.A. has argued that before recording of dying declaration, Dr. Syed Nazimuddin Ahmad PW 2 had certified that the victim was in a position to make dying declaration.

But in view of the condition of the victim set out above, what is attributed to be his dying declaration could be no better than vague and incoherent whimpering or whispering. We do not think it proper to say anything further at this stage and would like the matter to rest here.

Under the circumstances, the appellant--Meghai convicted and sentenced in Sessions Trial No.419 of 1994 (State Versus Prempati and others) shall be released on bail during pendency of the appeal  on his executing  a personal bond and furnishing two sureties each in the like amount to the satisfaction of the C.J.M., Allahabad.

The realisation of fine shall also remain stayed during the pendency of appeal.

The C.J.M., Allahabad shall send photocopies of personal and surety bonds executed and furnished by and on behalf of the appellant to this Court immediately after their execution.

Dt:21.9.2005.

Akn.280(Def)-05.


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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