Court No. - 48
Reserved on 30.07.2021
Delivered on 29.10.2021
Case :- CRIMINAL APPEAL No. - 3036 of 1983
Appellant :- Jagmohan Lal And Ors.
Respondent :- State of U.P.
Counsel for Appellant :- P.N. Misra,Arun Kumar Shukla,K.K. Dwivedi
Counsel for Respondent :- D.G.A.
Hon'ble Anjani Kumar Mishra,J. Hon'ble Deepak Verma,J.
(Delivered by Anjani Kumar Mishra,J.)
Vide order dated 29.07.2021, the appeal on behalf of appellants, namely, Jagmohan Lal, Smt. Ganga Devi and Ramesh Chandra has been abated on account of their death. Therefore, we proceed to decide the appeal against the surviving appellants, namely, Umesh Chandra, Suresh Chandra and Mahesh Chandra.
Heard Sri Arun Kumar Shukla, learned counsel for the appellants, learned A.G.A. on behalf of State and perused the record.
The instant appeal has been preferred by the surviving appellants against the judgment and order dated 08.12.1983 passed by the Special Judge (E.C. Act)/ Additional Sessions Judge, Farrukhabad in S.T. No.347 of 1982 (State Vs. Jagmohan Lal and others), Case Crime No.242/1982 whereby all the appellants have been convicted under Section 147 I.P.C. and sentenced to one year rigorous imprisonment each and further convicted under Section 302/149 I.P.C. and sentenced to undergo life imprisonment. Both the sentences were ordered to run concurrently.
Present appeal has been filed on the ground that the conviction of the appellants is against the weight of evidence on record, against the law and sentence is too severe.
The F.I.R. of the incident had been lodged on 14.7.1981 at about 8:40 am. by a written application by Chhote Lal S/o Suraj Prasad at P.S. Gursahaiganj, sub district Chibramau, District Farrukhabad which is marked as Exhibit Ka-11. The allegation in the F.I.R. is that informant's niece, Ram Dulari, daughter of Hari Narain was married to Umesh Chandra S/o Jagmohan Lal three years before the present occurrence. It has been alleged that on 14.07.1981 at about 6 am. Nand Kishore and Ram Prakash, residents of village Rasoolpur, reached to the house of the informant and informed them that Ram Dulari had died due to burn injuries. The complainant/informant along with family members rushed to the village where they found dead body of Ram Dulari kept on a cot and she was burnt from top to bottom and prima facie the injury over the body were seen. Case was registered as Case Crime No.242/1982 under Section 302 I.P.C.
On 14.07.1981, Sri Satish Chand S.O., Raj Narayan Dube R.O. and Subedar Tiwari S.O. and Kunj Bihari Lal R.O. reached the place of incident and from the spot they collected piece of dhoti and ashes of burnt dhoti from Verandah and backyard which has been marked as Exhibit Ka-8. Recovery memo and supurtaginama (Doli, quilt, cot, balli and rope) had been prepared by Subedar Tiwari, S.O. Jagmohan Lal R.O., in presence of witnesses Satish Chandra and Stya Narayan on 14.07.1981 which has been marked as Exhibit-Ka-9. One Dibbi of kerosene oil in which kerosene oil was not filled, had been marked as Exhibit Ka-10 and baan (rope) from the cot over which deceased is said to have slept, had been prepared as Exhibit Ka-14. Inquest report was prepared on 15.07.1981 which is marked as Exhibit Ka-3. The dead body of the deceased was sent for postmortem. The postmortem was done on 15.07.1981 and it was found that death was caused due to ante mortem burn injures and shock which is marked as Exhibit Ka-2.
The case was investigated by S.S.I. Surajmal. The investigating officer recorded statement of the complainant Chotey Lal at police station. S.I. Ram Jatan Singh on the direction of investigating officer conducted the inquest of dead body and prepared a letter to C.M.O. as exhibit K-4, photo lash Exhibit Ka-5, Chhitthi R.I. Exhibit Ka-6 and Challan lash Exhibit Ka-7. The deadbody was taken by the constables Suraj Pal (P.W.6) and Ram Prakash. The investigating officer recorded the statements of Hari Narain, Man Singh, Bachan Singh. Thereafter he recorded the statements of Mohd. Salim (P.W.8) and Raja Ram (P.W. 3). On 19.07.1981, the accused Jagmohan Lal, Mahesh and Ramesh were arrested by the investigating officer from jungle of Mauza Larpur and rest of the appellants surrendered in court. After completing investigation, the investigating officer submitted charge sheet (Exhibit Ka-15) against the accused persons. The C.J.M. Farrukhabad vide order dated 22.11.1982 committed the case to the court of sessions.
On 04.04.1983 charges were framed against the accused persons under Sections 147, 149 and 302 I.P.C.
During course of trial, testimony of as many as 10 witnesses was recorded by prosecution, namely, Chhotey Lal (P.W.1), Hari Narain (P.W.2), Raja Ram (P.W. 3), Dr. Rajendra Shukla (P.W.4), who conducted postmortem of the deceased, Bachan Singh (P.W.5), Suraj Pal Sharma (P.W.6), Man Singh (P.W.7), Mohd. Salim (P.W.8), Ram Jatan Singh (P.W.9), Suraj Mal (P.W.10).
P.W. 1 (Chhotey Lal), who is complainant of the case, deposed that he is uncle of deceased Ram Dulari and Hari Narain (P.W.2) is his real younger brother. His niece, Ram Dulari was married to Umesh Chandra five years ago and on account of non-fulfilment of dowry, she was being ill-treated by her husband and in-laws. He further averred that Nand Kishore and Ram Prakash informed him that Ram Dulari had received burn injuries and had died. On receiving the information, P.W. 1 along with Hari Narain (P.W.2) and other family members went to village where they found deadbody of Smt. Ram Dulari kept on a bandstand (chabutara). She died due to burn injuries. Complainant's suspicion was aroused, hence, he lodged a report (Exhibit Ka-1) at the police station. In cross examination, P.W. 1 denied that Hari Narain (P.W.2) had refused to lodge F.I.R. whereas Hari Narain was disturbed after death of his daughter, therefore, he did not go to lodge the F.I.R. In cross examination, he stated that he received letter of deceased, regarding demand of dowry two or three months after the marriage.
P.W. 2 (Hari Narain), who is father of the deceased, has stated that deceased was married to accused Umesh Chandra three years before the present occurrence. She was maltreated by her husband and other family members on account of inadequate dowry. He further averred that earlier deceased informed him about maltreatment by her husband and in-laws. On enquiry, he was told by accused appellant Jagmohan Lal and his son that she caught fire from a burning dibbi, as such, she died due to burn injury. The investigating officer came to the spot at about 11. At that time, husband and in-laws were not on the spot. The report was scribed at the spot and P.W.1, Chhotey Lal went to police station Gursahaiganj to lodge the report.
P.W. 3 (Raja Ram) in his statement deposed that on the date of occurrence, he went to work at the tube-well of Salim Khan which is situated in jungle in Uncha larpur. He was accompanied by Munne and two others and Nijamuddin was also present at the tube-well to give tools to him. He stated that when he was passing by the house of the accused Jagmohan Lal in the evening at about 5 pm., he heard accused Jagmohan Lal and his sons shouting at deceased Ram Dulari. When he made enquiry from accused Jagmohan Lal, he was told that he had not received sufficient dowry in spite of promise. Next day he heard news regarding death of deceased Ram Dulari due to burn injury.
P.W.4 (Dr. Rajendra Shukla) conducted postmortem of deceased Ram Dulari on 15.07.1981. As per medical examination report, deceased was about 22 years and she died one and a half day before the postmortem. On medical examination, the doctor found that she was of average built. Rigor mortis was present partially in upper limbs but had not passed off from lower limbs. As per postmortem report following injuries were received by the deceased:-
1. Mixed first to fourth degree burns on the body enveloping face, neck, front chest, abdomen, lower extremity back, genital organ, back of neck, back of buttocks. Hair of scalp singed at places. Scalp burnt at places. Eyelashes and brows, axillary hair, pubic hair singed. Blisters at the feet, sole line of redness and vesiculation.
On internal examination of the deceased, it was found that the brain and its memberance were congested. The memberance of the lungs, trachea, lungs, memberance of the heart were congested. Dark colour blood was found in the heart. The walls of the stomach and memberance were congested. 100 C.C. of semi digested food was found in the stomach. The large and small intestines were congested. The liver was also found to be congested. In the opinion of the doctor death occurred because of ante-mortem burn injuries and shock. The Post-mortem report prepared by the doctor is Exhibit Ka-2.
P.W.5 (Bachan Singh) is resident of village Uncha. He stated that he was employed in State Bank of India, Kannauj branch and denied any knowledge about the incident. He was declared hostile by the prosecution.
P.W.6 is constable Suraj Pal Sharma took the sealed dead body of the deceased for postmortem examination along with constable Ram Prakash.
P.W. 7 (Man Singh) is neighbour of accused Jagmohan Lal. He stated that at the relevant time, he was not in the village but had heard that Ram Dulari succumbed to burn injuries. He was also declared hostile by the prosecution.
P.W.8 (Mohd. Salim) averred that his tube well is situated between villages Uncha and Larpur. Two years before, his tube well was out of order. Nijamuddin and Rajaram and others were called to get the tube-well repaired. He accompanied Rajaram to village Uncha. He further deposed that when they were passing by the house of Jagmohan, they heard abuses from inside the house of accused. Rajaram went inside the house and when he came back, he told him that there was altercation in the family regarding dowry. In the morning of the next day when Mohd Salim (P.W.8) was going to the house of Hari Narain (P.W.2) he heard that Ram Dulari had died due to burn injuries.
P.W. 9 (Ram Jatan Singh) S.I. accompanied the investigating officer, Suraj Mal (P.W.10) to the scene of occurrence and prepared Fard and other relevant documents on the direction of the investigating officer.
P.W.10 (Suraj Mal) was posted as S.S.I. at P.S. Gursahaiganj on 14.07.1981. He conducted the investigation in this case and submitted charge sheet (Exhibit-Ka-15) against the appellants All the accused persons denied their complicity and implication in the present F.I.R. They have stated that they have been falsely implicated due to enmity.
In his defence, appellant no. 1 Jagmohan Lal has stated that complainant Chhotey Lal (P.W.1) and his brother Hari Narain (P.W.2) had dispute regarding house on account of which Chhotey Lal/informant had implicated the accused persons in the alleged offence. He deposed that on the date of occurrence all the accused persons were sleeping on the roof. On the relevant night, they heard the shrieks of his daughter-in-law. They came down a ladder and saw that deceased was burning in the courtyard and his son put a quilt over the deceased and tried to extinguish the fire. He could not know as to how Ram Dulari was burnt. After death of deceased, information was sent to village Rasoolpur and Ram Prakash and Nand Kishore were called. They were sent to village Ismilpur to give information and also to the police station to lodge a report. The report of Chhotey Lal was taken by the police but the police did not register the report. In the evening, the dead body was taken on bullock-cart to police station Gursahaiganj by him, Ramesh Chandra and Mahesh Chandra where they were arrested.
Appellant, Umesh Chandra, husband of the deceased stated that he never abused his wife. Since she had no issue, hence she was disturbed. After postmortem examination, he took the ashes of the dead body and consigned the same to the Ganga. Rest of the accused persons have repeated the same version of accused Jagmohan Lal.
The accused persons have led evidence in defence and have examined Nand Kishore (D.W.1) as defence witness. Accused persons filed two papers in defence, namely, receipt of telegram and the copy of telegram alleged to have been sent by accused Jagmohan Lal to I.G. Police, Lucknow on 17.7.1981. D.W. 1 (Nand Kishore) stated that he had no idea of demand of dowry from the side of the accused persons. He received information about the death of Ram Dulari (deceased) and went to village Uncha along with Ram Prakash where he was told about the occurrence. Appellant Jagmohan Lal told to go to house of Hari Narain (P.W.2) in village Ismilpur and give information about the death of Ram Dulari (deceased) to him and also to make a report at the police station. Therefore, he went to P.S. Gursahaiganj and made a report at the police station, thereafter informed Hari Narain about the death of his daughter. The Police came to the spot and on suggestion of S.I. to Jagmohan Lal a report was lodged. The report lodged by Jagmohan Lal was not accepted.
Prosecution moved application under Section 311 Cr.P.C. to summon and examine P.W.9 (S.I. Ram Jatan Singh) for exhibiting the dibbi alleged to have been taken in custody by the police at the spot. P.W.9 stated that dibbi was 3 inch in height and was about two to two and a half inch in diameter. The said dibbi was exhibited as Exhibit-1. The dibbi was found by him in a verandah at a distance of 4 or 5 steps from the cot. He further stated that the cot which he found at the spot was at a distance of about four paces towards north in the verandah from the almirah on which the alleged dibbi is said to have burning at the time of occurrence.
All the accused appellants have stated under Section 313 Cr.P.C. that the dibbi which was exhibited during trial, was not collected from the scene of occurrence. It was also stated that the dibbi, which was in the house of the appellant, was different and was about three or four times bigger than the dibbi (Exhibit-1) and I.O. had not collected the dibbi from the spot.
The contention of learned counsel is that the appellants have been wrongly and illegally convicted and sentenced. The first information report has been lodged by the uncle of the deceased and not her father. The two bothers were not on good terms on account of a property dispute and therefore the report was lodged by the uncle of the deceased on account of enmity, falsely implicating the appellants.
It has also been submitted that the first informant PW-1 Chhote Lal has deposed that the first information report was scribed by him in consultation with his brother PW-2, Hari Narain, which factum has been denied by PW-2. In any case PW-3 Raja Ram is a chance witness and his statement that he had, on the evening the incident took place, heard a commotion while passing by house of accused Jagmohan Lal, is extremely doubtful. Even the presence of this witness on the spot is not liable to be accepted. Moreover, two of the neighbours of the accused have not supported the prosecution case and have turned hostile. PW-1 and PW-2 are highly interested witnesses and, therefore, there is no independent or corroborative evidence to convict the appellants.
The last rites of the deceased were performed by the husband. The death took place three years after the marriage and during this intervening period, the deceased frequently went to her father's house, accompanied also by her husband. The death was duly intimated to her father and other family members by the messengers of the appellants. DW-1, Nand Kishor has stated that he was sent by the appellants to the village of PW-2 to inform him about the death. He even went to the police station to lodge a report but no case was registered by the police. The first information report was in fact lodged on the suggestion of the Investigating Officer.
It has also been submitted that it has been admitted by PW-1 and PW-2 that they left the spot around 2 pm. This is unnatural in case they suspected any foul play as regards the death of the deceased.
It has lastly been submitted that two of the accused are alleged to have been arrested from the jungle on 19.07.1981. The arrest memo, though filed on record, has not been proved.
In the afore-noted facts and circumstances, the order of conviction is liable to be set aside and surviving appellants are liable to be acquitted.
Learned AGA, on the other hand, submitted that the order of conviction is perfectly justified. PW-1 has categorically stated that letters were received from the deceased regarding demand of dowry soon after the marriage took place and that the deceased was harassed on account of inadequate dowry having been paid. He has also submitted that the clinching circumstance as regards the guilt of the appellants is that after the incident they absconded from the spot. Two of the appellants were arrested from the jungle while the rest surrendered in Court. This clearly shows that they were not present on the spot and this is a clear indication of their guilt.
Insofar as the contention that the first information report has not been lodged by the father but by the uncle of the deceased who was on inimical terms with his younger brother, the father of the deceased, we find on a perusal of the oral testimony of PW- 1 that this circumstance has been explained PW-1 has stated that the father of the deceased was disturbed on account of death of his daughter and therefore did not go to the police station to lodge the first information report. The suggestion that the two brothers namely PW-1 and PW-2 were not on good terms has also been categorically denied by them during cross- examination. We therefore, are not inclined to accept the submission of learned counsel for the appellants in this regard.
Insofar as the discrepancy in the statement made by PW-1 that the application was scribed by him with consultation with his brother, PW-2, which fact has been denied by PW-2 in his testimony, in our considered opinion, is not material. In any case a person who was not in a fit mental condition to go to the police station to lodge the first information, would hardly have been in a position to enter in deliberations as regards the contents of the first information report. Under the circumstances, nothing turns upon this argument advanced by learned counsel for the appellants.
The defence case of a telegram etc. having been sent by the accused has not been proved and, therefore, has rightly been discarded and ignored by the trial court. The death due to burn injuries occurred within three years from the marriage and admittedly in the house of the accused. Therefore, in view of the provisions contained in Section 106 of the Indian Evidence Act, it was for the accused to explain the circumstances leading to the death. The defence version and the statement of the accused Jagmohan Lal under Section 313 Cr.P.C. is that all the male members of the family were sleeping on the roof and therefore they were not aware as to how the deceased caught fire. The Investigating Officer, PW-10, the S.O. Soorajmal has stated that when went to the spot he was informed by the women folk present that the accused and the deceased were sleeping on the ground floor as was the deceased.
He has lastly submitted that the testimony of the witness of fact namely PW-1 and PW-2 is natural and bereft by any exaggeration. The same clearly inspires confidence and is enough to convict the appellants.
In rejoinder, learned counsel for the appellants, as regards the submission of learned AGA regarding the presumption under Section 106 of the Indian Evidence Act has placed reliance upon Joydeb Parta and Others Vs. State of West Bengal, 2014 (12) SCC 444, specially paragraphs 9 and 10, thereof wherein it has been held that the burden of proving guilt of the accused is on the prosecution and it is only after this burden has been discharged that the accused can prove any fact within their special knowledge under Section 106 of the Indian Evidence Act to establish that they are not guilty. The Court has further gone on to hold that since the burden was not discharged by the prosecution in the case cited, no burden could not have been cast upon the accused to explain the circumstances under which the deceased died.
The other judgment relied upon by learned counsel for the appellants in this regard is Vikramajit Singh @ Vicky Vs. State of Punjab, 2006 (12) SCC 306 especially paragraph 14, thereof, wherein it has again been held that Section 106 of the Indian Evidence Act, does not absolve the prosecution of proving its case beyond all reasonable doubt and it is only when the prosecution case has been proved, the burden, in regard to such facts which are within the special knowledge of the accused, may be shifted to accused for explaining the same. Further, relying upon the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, it has been held that the circumstances from which the conclusion of guilt is to be drawn should be fully established.
We therefore proceed to appreciate the evidence to determine as to whether the prosecution has been able to prove the guilt of the appellants.
The scene of occurrence is admitted being the house of the accused. The death occurred on account of burn injuries. The defence case is that a burning kerosene lamp fell over the deceased who was sleeping on a cot resulting in burn injuries, which ultimately led to her death. The site-plan as also the testimony of the prosecution witnesses especially the author of the site-plan clearly shows that the location of the lamp viz-a- viz the location of the cot on which the deceased was allegedly sleeping is not such that the lamp could have fallen upon a person sleeping on the said cot. This theory is also borne out by the site-plan on record.
Insofar as the recovery of the said kerosene lamp is concerned, the item produced in court and exhibited has been stated by all the accused as not being the one that was burning on the spot. In fact the defence case is that the actual kerosene lamp was much larger in size.
This defence version in our opinion, goes against the defence and not in their favour because no other burnt item apart from the burnt pieces of the deceased's saree were collected from the spot. In case the deceased suffered burns while sleeping on a cot the bed clothes as also the cot itself would bear signs of burning, but no such item has been found on the spot. In this regard, the post mortem report, as also the testimony of the doctor who conducted the post mortem, is categorical that there were no burn marks on the hands of the deceased which would normally occur in case she had accidentally caught fire and as a natural reflex would make attempts to put out the fire. The total absence of any burn marks on the hands or palms, in our considered opinion, clearly rules out the defence that the deceased accidentally caught fire. The post mortom report also indicates that all the organs were found congested during post mortom.
The oral testimony of PW-1 and PW-2 is that they had been informed by the deceased and had also received letters regarding demand of dowry and these letters were produced before the Investigating Officer.
Under the circumstances, the factum of a demand of further dowry or at least the accused being aggrieved by insufficient dowry having been brought by the deceased, stand established and can be plausible motive for her killing. Existence of a motive is crucial as the case is one of circumstantial evidence and there is no direct evidence of the deceased having been set on fire by the accused. The prosecution case of the accused having set the deceased on fire is therefore plausible and acceptable. It is further supported by the fact that the deceased had not conceived even 3 years after marriage.
Under the circumstances, and since the prosecution has been able to prove its case the burden shifted upon the accused to explain the circumstances, which led to the death of the deceased to establish their innocence as was pleaded by them. This burden has not been discharged because nothing in this regard has been stated by the accused in their statements under Section 313 Cr.P.C. All the statements are only with regard to denial of the recovery of the kerosene lamp (dibbi), which has been produced and exhibited during trial.
We also find from the post mortem that the deceased had suffered 1st to 4th degree burns were on the head, scalp, neck, shoulders, front and back part of the body, the legs and feet and there were blisters on the soles. Such extensive burns are not likely to be caused in case a burning kerosene lamp had fallen on the deceased while she slept and that too with no burn marks on the hands. The defence version of the deceased having accidentally caught fire does not appear to be plausible.
Moreover, as noticed above, the accused have failed to discharge the burden cast upon them by Section 106 of the Indian Evidence Act.
The testimony of DW-1 is only to the effect that he was directed by Jagmohan Lal to inform the family members of the deceased about her death, is not enough to acquit the accused. In any case this fact that information of the death of the deceased was conveyed to the father of the deceased by DW-1 Nand Kishor, is not disputed. The remainder of his testimony is that he is a relative of the accused and has admitted being their well wisher. He also admits that he has not seen the incident.
It would also be relevant to note that the fard prepared while taking the weaving of the cot on which the deceased allegedly caught fire while sleeping, records that it bore no signs of fire nor had no strains of oil on it. This fard has been proved and has been marked as Ex. Ka-9. Moreover, PW-8, SI, Mahaveer, has deposed that no burnt mattress, quilt, blanket or bed sheet was found on the spot. This has been stated by him during cross- examination by the State Counsel and also by Counsel for the appellants. These facts belie the defence case that the accused accidentally caught fire.
The other/alternative defence case of the death being sucidal as the deceased failed to conceive even three years after marriage cannot be accepted as no container of any flammable material has been recovered from the spot. Obviously the dibbi recovered and exhibited is too small to have cause such extensive burns as were found on the person of the deceased.
The only other evidence which requires consideration is the testimony of PW-3 Raja Ram who is alleged to have witnessed a commotion while passing by the house of the accused prior to the incident and that the said commotion was on account of inadequate dowry having been brought by the deceased. This witness undoubtedly, as has been submitted by learned counsel for the appellants, is a chance witness. There is also no explanation as to how and under what circumstance his statement came to be recorded by the Investigating Officer under Section 161 Cr.P.C. His testimony that he was a mere passer by and on hearing the commotion entered the house of the accused, does not appear to be natural. His testimony under the circumstances, does not inspire confidence. However, even if this testimony is discarded as a whole, the case against the accused, as already discussed above, stands proved beyond reasonable doubt.
Accordingly, and for the reasons given above, we do not find substance in the appeal. It is therefore, dismissed.
Order Date :- 29.10.2021 Meenu/Mayank