1. The present jail appeal has been preferred against the judgment and order dated 29.1.2016 passed by Additional Sessions Judge/FTC, Pratapgarh convicting and sentencing the appellant 10 years Rigorous Imprisonment for the offence under Section 304 I.P.C. in S.T.No.232 of 2014 (State Vs. Putti Lal alias Lallan), Police Station-Kotwali Nagar, District Pratapgarh.
2. Prosecution case in brief are that; the informant-Anoop Kumar Mishra gave a written report at the concerned police station i.e., Kotwali, District Pratapgarh stating therein that the accused, namely, Putti Lal alias Lallan, son of Ram Sukh Gaur had brought one lady, namely, Soni who was aged about 25 years four months prior to the incident and kept her in his house, who also had a daughter aged about 3 years, namely, Nandini. On 21.3.2014 at 9.30 a.m., Soni was set ablaze by the appellant by pouring kerosene oil on her. The informant Anoop Kumar Mishra while going to his orchard had witnessed the said incident. On an alarm being raised by him and other villagers, many people arrived at the place of occurrence who took the injured Soni to the District Hospital, Pratapgarh where her medical treatment was going on.
3. On the basis of the said written report, an FIR was lodged against the accused appellant, namely, Putti Lal alias Lallan which was registered as Case Crime No.280 of 2014, under Section 326 I.P.C..Police Station-Kotwali Nagar, District Pratapgarh. The registration of the FIR was further endorsed in the G.D. of the said police station. On 22.3.2014, the injured Soni died during her medical treatment and thereafter the case was converted under Section 304 I.P.C. The inquest of the deceased Soni, wife of the appellant-Putti Lal alias Lallan was conducted on 22.3.2014 at 10.55 hrs. at the mortuary, Allahabad, which was marked as Ex. Ka.-8.
4. The investigation of the case was conducted by the Investigating Officer who recorded the statements of the witnesses, prepared the site plan and submitted charge sheet against the accused appellant under Section 304 I.P.C. which was marked as Ex. Ka.-7.
5. The case was committed to the Court of Sessions by the Magistrate and the charges were framed against the accused appellant by the trial Court for the offence under Section 304 I.P.C. The accused denied the charges and claimed trial.
6. The prosecution in support of its case has examined PW1-Sanjay Gaur, PW2-Anoop Kumar Misra, PW3-Ram Khelawan Prajapati, PW4-Rajesh Kumar, PW5-S.I. Uma Agrawal and PW6-S.I. Ajeet Kumar Shukla.
7. The prosecution in support of its placed reliance on 14 documents, i.e., recovery memo of kerosene oil Ex.Ka.-1, written report Ex.Ka.-2, post mortem report Ex. Ka.-3, Chick FIR Ex. Ka.-4, G.D. Ex.Ka.-5, site plan Ex. Ka.-6, charge sheet Ex.Ka.-7, panchayatnama Ex.Ka.-8, response to the letter Inspector Ex. Ka.-9, letter of C.M.O. Ex. Ka.-10 & 11, police form no.13 Ex. Ka.-12, photonash Ex. Ka.-13 and sample of seal Ex. Ka.-14.
8. The statement of the accused was recorded under Section 313 Cr.P.C. in which the accused stated that he has been falsely implicated in the present case. He further stated that he married the deceased and the said marriage was a love marriage and he used to maintain her. On the day of incident, he was pulling rickshaw at Allahabad and on receiving an information about the same he was coming to the District Pratapgarh and the police arrested him at the Roadways Bus Stand. He further stated that the father of the informant was a Zamindar in the village, who wanted to take work from him without paying any money and he refused to do the same, on account of which FIR was lodged at a great delay against him. He further stated that there was an altercation between his wife and mother, on account of which his wife (deceased) out of anger had burnt herself by pouring kerosene oil.
9. The accused has led no oral or documentary evidence in his defence.
10. The statement of the PW2-Anoop Kumar Mishra, the informant of the case, was recorded by the trial Court who deposed that on 21.3.2014 at about 8-8.30 A.M. in the morning while he was coming back to his house from his orchard, he heard altercation and reached at the place of occurrence and saw that the accused appellant had bolted his house from outside and was dispersing the people by displaying lathi and danda. He further stated that when he opened the door of the house of the appellant, he saw the smoke coming out from the room and the wife of the appellant, namely, Soni was lying on the ground and was in burning condition, further there was no clothes found on her body. He along with other villagers had tried to put-off the fire and brought the injured Soni outside the house and made a call for an ambulance and also informed the police about the incident who had arrived at the place of occurrence. The accused Putti Lal alias Lallan and his mother were apprehended by the villagers and were handed over to the police. He further stated that the injured Soni was taken to the District Hospital, Pratapgarh and seeing her serious condition, she was referred to the S.R.N. Hospital, Allahabad. The villagers after arranging the money took the injured Soni to the S.R.N. Hospital at Allahabad where she died during her treatment. He further deposed that on the day of incident, there was an altercation between the appellant and his wife. It was commonly known that the accused used to behave badly with his wife and it was stated that the appellant has set ablaze his wife and killed her. He took the deceased to the S.R.N. Hospital, Allahabad in the ambulance and while she was being taken by him then the deceased told him that the appellant had poured kerosene oil on her and set her ablaze. She further told him that she was beaten by the appellant at several places and thereafter she was set ablaze by him by pouring kerosene oil. This witness proved the written report which was marked as Ex. Ka.-2. He denied the suggestion that he has not seen the incident nor was present at the place of occurrence. He further denied the suggestion that on account enmity he has falsely implicated the appellant. He further denied the suggestion that the accused was arrested by the police at the Roadways Bus Stand at Allahabad after two days of the incident and has also denied the suggestion that there was some altercation between the appellant and his wife, on account of which the deceased had burnt herself.
11. PW1-Sanjay Gaur who is next door neighbour of the appellant has further reiterated the prosecution case and has submitted that on the day of incident, i.e., 21.3.2014 at about 9.30 A.M., the accused in a drunken state had beaten the deceased and thereafter the deceased had gone inside the house and subsequently smoke was coming from out of the house, then he along with Anoop Mishra, Dinesh and many other persons went to the house of the appellant and saw that the appellant was coming out of the house and trying to flee away from the place of occurrence. They went in the room and saw that the deceased Soni was burning and kerosene oil was lying there and they further found match stick and pieces of clothes at the place of occurrence. They took the deceased out of the house and dialed 108 number and called an ambulance and took the deceased to the District Hospital, Pratapgarh. As the condition of the Soni (deceased) was serious, she was referred to the S.R.N. Hospital, Allahabad for further treatment where she died. He further stated that the first wife of the appellant also died because of cruel treatment given to her by the appellant, who also used to remain ill and from the first wife of the appellant two children were born. He deposed that the accused was a drunker and he used to beat his wife in a drunken state. The police had arrived at the place of occurrence and recovered the used match-sticks, kerosene oil fallen on the earth and took burnt hair, pieces of sari and plain earth. The recovery memo of the said articles were sealed, on which he along with other persons had put their signatures of the same. He stated that the appellant used to beat his wife oftenly and when they used to save her, the appellant objected for the same by saying as to why they are interfering in their affair and further abused them. He has also proved the recovery memo Ex. Ka.-1. This witness has also made complaint about the conduct of the appellant to the police who had also arrived and tried to pacify him but he did not mend his ways. He stated that when the smoke was coming from the house of the appellant, he along with other persons reached there and while the accused was fleeing there, he was apprehended by them and thereafter he was handed over to the police. He stated that he has not seen whether the deceased was burnt by the appellant or she on her own burnt herself. He denied the suggestion that on account of being neighbour of the appellant, he due to inimical relationship is deposing against him. He further denied the suggestion that the deceased herself set her ablaze on account of quarrel with her mother-in-law.
12. PW3-Ram Khelawan who is also a neighbour of the appellant has reiterated the prosecution story as has been stated by PW1 and PW2. He further denied the suggestion that at the instance of PW1 and PW2 he is falsely deposing against the appellant. He further denied the suggestion that he was not present at the place of occurrence.
13. PW4-Dr. Rajesh Kumar Srivastava has deposed before the trial Court that on 23.3.2014 he was posted as Medical Officer at District Women Hospital, Allahabad and conducted the post mortem of the deceased, namely, Soni Devi wife of Putti Lal alias Lallan. He stated that the dead body of the deceased was brought to him in a sealed condition by Constable Radhey Shyam Yadav. This witness has stated that on all over body of the deceased there were superficial and deep burn except the lower abdomen and both lower limb there was smell of kerosene oil in hair and carbon particle were found present in trachea and in both the lungs. After cutting the burn part, the line of redness was seen. Liver, spleen and kidneys were congested. In the opinion of the doctor the cause of death of the deceased was shock as a result of ante mortem superficial and deep burn. He proved the post mortem report as Ex. Ka.-3. The doctor found that the deceased was burnt by 80-90% and further deposed that after receiving burn injuries the deceased was able to speak but could not able to give extempore lecture.
14. PW5-Uma Agarwal who was also examined by the trial Court has stated that on 21.3.2014 she was posted as Constable Moharrir at the Police Station Kotwali, District Pratapgarh, on which date Anoop Kumar Mishra had given a written report to her about the incident, on which an FIR was registered as Case Crime No.280 of 2014 and Chick FIR was also prepared by her and endorsed in the G.D. which was marked as Ex.Ka.-4 & 5.
15. PW6-Ajeet Kumar Shukla has stated that he was posted as Sub Inspector on 22.3.2014 at the Police Station Kotwali, District Pratapgarh. On the said date, he was entrusted with the investigation of the present case and he recorded the statement of PW1-Anoop Kumar Mishra, the informant of the case and prepared the site plan and proved the same as Ex. Ka.-6. He further deposed that he recorded the statement of the of other witnesses also and prepared the recovery memo of plain earth and pieces of Sari which was soaked with keorsene oil along with the pieces of the used match-stick and proved the same as Ex. Ka.-1. He further stated that he had arrested the accused on 23.3.2014, recorded his statement and made an endorsement in Parcha No.2 of the case diary. He also recorded the statement of eye witness, namely, Santosh Kumar Kahar, Niranjan Tripathi and Ram Khilawan. He made endorsement of the inquest report and also mentioned the details of the post mortem report in the case diary and submitted charge sheet against the accused appellant under Section 304 I.P.C. and proved the same as Ex. Ka.-7.
16. This witness in his cross-examination has stated that he had arrested the accused on 23.3.2014 at 2 P.M. in the afternoon from the Roadways Bus Stand. He did not record the statement of the deceased as her condition was serious and she was not able to give statement, hence, he did not record her statement. He stated that PW1-Sanjay and PW2-Anoop Kumar Mishra had not given statements that the appellant was a drunker and there was some quarrel between them on the day of incident. He denied the suggestion that all the investigation which was done by him was only a table work and the appellant has been falsely implicated in the present case and false charge sheet was submitted against him at the instance of father of Anoop Kumar Mishra (the informant) who was an influential person and was a Zamindar and accused being Kahar by caste was exploited by him for doing the work without payment.
17. Heard Ms. Nisha Srivastava, Advocate, Amicus Curiae for the appellant and Sri Mohd. Airaj Siddiqui, learned AGA for the State.
18. It has been contended by learned counsel for the appellant that the appellant has been falsely implicated in the present case by PW2-Anoop Kumar Mishra, the informant of the case, as his father was a Zamindar who wanted to take work from the appellant without paying any money to him and when he refused for the same, he was falsely implicated in the present case. She further argued that the appellant was not present at the place of occurrence on the date and time of the incident as he was at Allahabad plying rickshaw and when he received an information about the incident he was coming to Pratapgarh and on 23.3.2014 he was arrested by the police at 2 P.M. at the Roadways Bus Stand, Allahabad, hence, the allegation that the appellant was arrested by the villagers and eye witness on the date and time of the incident on 21.3.2014 at about 9.30 A.M. is wholly belied by it. She next submitted that there was an altercation between the mother of the appellant and his wife, on account of which the deceased committed suicide by burning herself. She further submitted that an information given by the deceased to the informant, namely, Anoop Kumar Mishra while she was being taken to S.R.N. Hospital, Allahabad in the ambulance, also appears to be false one as the the appellant neither informed about the same to any person nor any family members of the deceased had lodged the FIR against the appellant about the incident. She further argued that as per the prosecution case, the incident had taken place in the house of the appellant and none of the witnesses, i.e., PW1,PW2 & PW3 have stated that they had seen the appellant setting ablaze his wife by pouring kerosene oil. Thus, the trial Court has misread the evidence on record and has wrongly convicted the appellant for the offence in question, hence, the impugned judgment and order passed by the trial Court is liable to be set aside.
19. Per contra, learned AGA on the other hand has vehemently refuted the arguments advanced by the learned counsel for the appellant and has submitted that on the date and time of the incident, PW1, PW2 and PW3 along with other villagers had reached at the house of the appellant and when they saw smoke coming out from a room of the house and further the appellant tried to fled away from the place of occurrence, they apprehended him and handed over to the police. He further submitted that the deceased was seen by the said witnesses in a burnt condition and kerosene oil was also found on on her body as well as on her clothes. He further argued that as per the post mortem report of the deceased, she died on account of the burn injuries found on her person and the trial Court has rightly convicted the appellant for the offence in question.
20. Having considered the submissions advanced by the learned counsel for the parties and perused the record.
21. It appears from the record that the deceased who was living with the appellant, was stated to be his wife and it was a love marriage between them and the appellant used to used to maintain her and her child who was born from her earlier marriage. The appellant was having two children from his first wife. It is not known that in which capacity the deceased was living with the appellant, but after going through the statement of the appellant it appears that the deceased was his second wife, who himself admitted the fact that the deceased was his wife and was living with him along with her minor daughter who was aged about 3 years at the time of the incident.
22. It is an admitted fact that the deceased died out of ante-mortem burn injuries which was found on her person. The incident had taken place in the house of the appellant from where the deceased was taken out in an injured condition by PW2 Anoop Kumar Mishra. PW1 and PW3 who were the next door neighbours of the appellant when saw the smoke coming out from the house of the appellant they went there and saw the deceased in a burning condition, on whom the kerosene oil was found. The appellant had tried to run away from the place of occurrence and he was caught-hold by PW1, PW2 and PW3 and other persons of the village and handed over to the police. Moreover, the deceased was immediately rushed by the PW2 and other persons to the District Hospital, Pratapgarh after arranging an ambulance and seeing her serious condition she was further referred to the S.R.N., Hospital, Allahabad for further treatment where she was medically treated and died after two days of the incident on 22.3.2014 at 4.30 A.M. in the morning.
23. The contention of the learned counsel for the appellant that the appellant was arrested on 23.3.2014 at 2 P.M. from the Roadways Bus Stand, Allahabad, in this regard he has pointed out towards the statement of PW6-Ajeet Kumar Shukla who has stated that he had arrested the accused on the said date and time from Allahabad does not find force as it was only a bald statement made by him when he was cross-examined by the counsel for the appellant without there being any further evidence led by the defence to support his statement.
24. The finding recorded by the trial Court for disbelieving the arrest of the accused appellant from Roadways Bus Stand, Allahabad appears to be correct and a plausible one as no independent person has come forward to support the arrest of the accused from the Roadways Bus Stand, Allahabad. On the contrary, prosecution has examined PW1, PW2 and PW3 showing that the accused was apprehended by them along with other villagers who tried to flee from the place of occurrence after committing the crime in question which also found prove the prosecution evidence. Hence, the participation of the appellant in the present case cannot be ruled out.
25. It further transpires that from the place of occurrence smell of kerosene oil was found on the dead body of the deceased. Moreover, used match-stick, pieces of burnt Sari, recoveries of which were made from the place of occurrence goes to show that the deceased was done to death in the house of appellant and except the appellant and his wife there was no other person found on the date and time of the incident at there. Hence, it is hardly of any significance that whether it was the appellant who had burnt his wife or the deceased herself had set her ablaze and on this ground participation of the appellant cannot be doubted. The finding of conviction and sentence recorded by the trial Court for the offence in question cannot be said to be against the evidence on record.
26. Thus, the judgment and order passed by the trial Court is hereby upheld. The appeal lacks merit. It is, accordingly, dismissed.
27. The appellant is already in jail. He shall serve out the sentence as awarded by the trial Court.
28. The Court appreciates the assistance given by Ms. Nisha Srivastava as Amicus Curiae who argued the appeal on behalf of the appellant. She shall be paid fee as per the Rules of the Court.
29. The Senior Registrar of this Court is directed to send a certified copy of this order to the District Judge concerned for being forwarded the same to the Jail Superintendent of the concerned jail where the appellant is confined for its necessary information.
Order Date :- 6.6.2016 NS