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VIJAY PAL SINGH AND ANOTHER versus STATE OF U.P.

High Court of Judicature at Allahabad

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Vijay Pal Singh And Another v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 12457 of 2006 [2006] RD-AH 10933 (4 July 2006)

 

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

RESERVED

Criminal Misc. Bail Application No.12457  of  2006

Vijai Pal Singh and another  . . . . .  Vs.  . . . . .  . .  . . . . .  .State of U.P.

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Hon'ble R.K.Rastogi,J.

The applicants, Vijai Pal Singh and  Smt. Vimala Devi have applied for bail  in this case crime no. 404 of 2006 under sections 498-A, 304-B I.P. and ¾, Dowry Prohibition Act. of police station Katghar district Moradabad.

The prosecution case starts with a F.I.R. lodged by Satyendra Singh Yadav  at police station  Katghar district Moradabad at 4.05 P.M.  It is stated therein that marriage of his daughter, Girish Kumari  had taken place with Rakesh son of Vijai Pal Singh and Smt. Bimla Devi on 20.2.2002. Sufficient dowry was given in the marriage but the accused were demanding a Pulsar motor cycle and Rs.50,000/- cash. Two children were also born out of this wedlock, but the accused were demanding money and committing atrocities upon her. On 2.4.2006 at about 8.30 P.M. Smt.Girish Kumari made a phone call from a P.C.O. on mobile phone of Satyendra  Singh that her life was in danger  and so he should reach there immediately because her husband, father-in-law and mother-in-law were doing Marpit   with her. Upon receipt of this information Satyendra Singh  came to Moradabad. Upon inquiries neighbours told him that the accused after burning his daughter had taken her to  get her admitted in the district hospital Moradabad, but when he went to the district hospital Moradabad he came to know that she has been referred to Delhi for treatment. He tried to establish contact on phone with the accused persons but no contact  could be established and then he lodged this report at the police station Katghar against the accused persons  on 3.4.2006 at 4.05 P.M.

Smt. Girish Kumari was admitted in Maulana Azad Medical College ( Lok Nayak Hospital), New Delhi. It is alleged that her dying declaration was recorded  on 3.4.2006 at 10.45 A.M. and in that dying declaration she stated that a Chirag was burning  in the worship  room of the house and at about 9 P.M.  her younger son was playing in that room and doing mischief, so she rushed to that place to protect him but  her Saree caught fire  and then her husband protected her. Her father-in-law and mother-in-law, who resided  on upper storey  of the house  also rescued  her. Her husband covered her body with a blanket. She was first taken to private hospital and then to that hospital.

Smt. Girish Kumari died on 8.4.2006 at 11.15 A.M. and  then  the charge under section 304-B, I.P.C. was added.

The applicants have alleged that they are innocent and have been falsely implicated in this case. Their learned counsel submitted that it is a case of accidental burn injuries as is apparent from dying declaration. It was further submitted that the applicants are father-in-law and mother-in-law of the deceased and so bail should be granted to them on the ground of their old age.

The  learned A.G.A. has opposed the bail application. He submitted that it is a case of demand of dowry and of burning in connection with this demand. He has further submitted that the above dying declaration is completely a forged document. He made the following submission in support of this contention:

(1)    According to medical examination report of Smt. Girish     Kumari when she was brought to the district hospital Moradabad for her treatment, there was smell of kerosene-oil present  upon her body. He submitted that if Smt. Girish Kumari caught fire from a small

Deepak in the room of worship, there could not  come smell  of kerosene oil from her body.

(2) According to the description of burn injuries present at the time of admission of Girish Kumari in Maulana Azad Medical College ( Lok Nayak Hospital ) New Delhi,       that she  had superficial  to deep burn injuries on the face, both upper limbs 90-95%. He contended that a person whose upper limbs had  90 - 95% burn injuries could not be in a position to speak.

The learned counsel for the applicant  has referred to  the postmortem examination report of the deceased  prepared on 9.4.2006, in which it has been stated that approximate area of burn injuries was 70% only and there was no smell of kerosene oil.

It was submitted by the learned counsel for the prosecution  in reply that it is immaterial that on 9.4.2006 no smell of kerosene oil  was found on the dead body  because sufficient time  had passed from the time  of incident and so smell of kerosene oil  would have been disappeared  by that time. Moreover, it was contended  that  in the admission slip 90-95% burn injuries were shown upon upper limbs but it has been stated in the postmortem  report  that percentage of burn injuries  on the entire body was 70%. He submitted that according to postmortem report  there were infected superficial to deep ante mortem burning present  all over the body except outer front of right thigh, front back of both legs, buttock and back of abdomen. He further submitted that  the above description of burn injuries  goes to show that almost upper portion of the deceased  was  totally burnt while lower portion was partly burnt and this fact goes to show that kerosene oil was poured upon the deceased from her head and that is why upper portion was burnt  90 to 95. He further contended that if accidental fire incident had taken place from a Deepak kept in the worship room, the burn injuries would have been on the lower portion of legs and not on the upper portion of the body of the deceased.

As regards the dying declaration  the learned A.G.A. contended that a person whose upper  limbs  have been 90--95% burnt could never  be in a position to give statement. But in the present case  the deceased was admitted in the hospital at Delhi for treatment on 3.4.2006 at 9.15 A.M. and soon thereafter  her dying declaration was recorded at 10.45 A.M. and after recording of this so called statement she  never gained senses during the period of entire treatment at the hospital and all these circumstances go to  show that this dying declaration was obtained  in collusion with the doctor and the Magistrate.

The learned counsel for the applicant has submitted that even a lady having 90-95% burn injuries could give statement. He cited before me following rulings  of the Hon'ble Supreme Court in support of his contentions:

(1) P.V.Radhakrishna Vs. State of Karnataka 2003 SCC (Crl.)      1679;

(2)  Sree Vijaya Kumar and another Vs. State, by Inspector of       Police, Kanya Kumari, 2005 SCC (Crl.)1896;

(3)  Gaffar Badshah Pathan Vs. State of Maharashtra, 20043       SCC (Crl.) 2037;

(4)  Sohan Lal Vs. State of Punjab, 2004 SCC (Crl.) 226;

(5)  Muthu Kutty Vs. State of Tamilnadu, 2005 SCC (Crl.)       1202;

(6)  Shanti and others Vs. State of  Haryana, 2006 (1) SCC       (Crl.) 557;

(7)  Luxman Vs. State of Maharashtra, 2002 SCC(Crl.) 1491.

I have carefully gone through all these rulings. In P.V. Radhakrishna Vs. State of Karnataka (supra) it was held in para 16 that physical state or injuries do not by themselves become  determinative of mental fitness of the declarant. In Sree Vijaya Kumar Vs. State (Supra) the deceased  having 90% burn injuries had named the accused  persons and it was believed holding that she had no motive  to falsely implicate them and spare the  real culprits. In Gaffar Badshah Pathan Vs. State ( Supra ) it has been held that where the dying declaration is in favour of the accused the burden lies on the prosecution to prove that it is concocted and forged. In Sohan Lal Vs. State ( Supra ) it was held that where there is nothing on record to suspect bona fides of the officers recording the dying declaration, there is no reason to discard it. In Muthu Kutti Vs.State ( Supra ) there were 90% burn injuries, but it was held  that if the officer recording the statement  was satisfied about the declarant's mental condition, the dying declaration was reliable. In Shanti Vs. State (supra) it was held that where dying declaration is found  to be absolutely coherent, cogent and inspiring confidence and there is nothing  to discredit or disbelieve it, it is to be relied upon. In Luxman Vs. State ( supra ) it has been held that a dying declaration shall be valid even in the absence of the doctors certificate if the authority  recording it was  satisfied  about mental condition of the declarant.

Let me now consider the applicability of the above rulings to the facts of the present case. It is true that a final verdict on the dying declaration can be recorded only after examining the doctor who certified the condition of the declarant  and the Magistrate who recorded it. But at this stage  there are the following circumstances which create doubt regarding its genuineness:

(1) Presence of smell of kerosene oil upon the body of the     deceased which would not have been there if she had     accidentally caught fire from a Diya in the worship room.

(2) In case of accidental fire from that small diya the deceased     would have first received  burn injuries on her lower limbs     and so burn injuries would have been more dense on lower     limbs than  on upper limbs. In the present case, burn injuries     are  more dense on upper limbs  than on lower limbs and     the presence of kerosene oil on the body leads to conclusion     that she was burnt after pouring kerosene oil upon her     head.

(3) The deceased  had 90 - 95% burn injuries  on her upper      limbs including her scalp, face, eyes, neck, chest, abdomen      and it appears highly improbable that having so much burn      injuries on her upper  vital part of  the body she could  give      a statement just after  her admission in the hospital. It is      noteworthy  that this dying declaration  was recorded before      arrival of her parents in the  hospital in their absence. She   remained alive for  six days thereafter in  the hospital      but she never regained senses to speak.

All these circumstances  prima facie cast serious doubts regarding genuineness  of the dying declaration. Hence, I am of the view that no benefit can be given to the accused at this stage of bail on the basis of this dying declaration.

It was further submitted that the husband of the deceased had also received burn injuries while  rescuing his wife. He was also medically examined. A copy of his medical examination report  has been filed as Annexure no. 6 to the affidavit in support of the bail application. It goes to show that he was medically examined on 8.2.2004 and superficial to deep injuries were found on the fingers  of his right  and left hand. The injuries were about  ten days old. It is not clear as to why he had not got himself medically examined earlier.

The learned counsel for the  applicants further submitted that the husband of the deceased   has deposited  money in the name of the deceased in Sahara India Ltd. and  in the LIC policies  he has made Smt. Girish Kumari as nominee and this goes to show that he had love and affection for her.

It was argued by the learned A.G.A. that after the death of Smt. Girish Kumari her husband was to get the entire amount of the aforesaid  deposit and policy in case of death of Girish Kumari in his life time, so these documents  do not have any effect upon the merits of the case.

The learned counsel for the applicants further submitted that  the present applicants are  father-in-law and mother-in-law of the deceased  and there are general allegations against them , so taking into consideration their old age, bail should be granted to them.

In reply the  learned A.G.A. has submitted that the applicants  and were residing in the same house where the deceased was residing with her husband. They committed atrocities upon her. The deceased complained  to her parents  regarding demand of dowry and  atrocities committed  upon her  The witness Govind Kumar Sharma has stated that about two months ago Girish Kumari had come to the house of her father at Noorpur and she was weeping  stating  that her in-laws had thrown her out of their house  after beating her and  atrocities were being committed upon her for not bringing Rs.50,000/- in cash and motor cycle and they had also snatched both the children from her, so the  applicants should not be granted bail on the ground of being father-in-law and mother-in-law of the deceased.

Without  expressing any opinion on the merits of the case but taking into consideration the facts and circumstances  pointed out above, I am of the view that the applicants do not deserve to be bailed out.

The bail application is, therefore, rejected.

However, it is directed that the court below will  try to conclude the trial of the case  within six months from the date of receipt of certified copy of this order. In case the  trial is not concluded within the said period for no fault of the applicants,  then the applicants will be entitled to move  fresh  application for bail.

Dated:4.7.06.

RPP.


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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