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2019 Supreme(All) 1077
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Pritinker Diwaker, Raj Beer Singh, JJ.
Smt. Vidya Devi – Appellant
Versus
State of Uttar Pradesh – Respondent
Criminal Appeal No. 1225 of 2010
Decided On : 14-03-2019
For the Appellant : Sri. Kripa Kant Pandey.
For the Respondent: Sri. Amit Sinha.
Headnote:
Penal Code,1860 – Section 302 – Murder – Whether committed – Appeal against conviction – Whether proved beyond reasonable doubt – Challenging order – Held, There is no cross-examination of these witnesses insofar as charge under Section 302 IPC is concerned – The trial, therefore, stands vitiated and there could not have been any conviction under Section 302 of the IPC – Applying the law laid down by the Apex Court in the aforesaid case, the outcome of the trial can be questioned and on this ground also, the appeal deserves to be allowed – Taking cumulative effect of the evidence, we are of the considered view that the trial Court has erred in law in convicting the appellant Smt. Vidya Devi under Section 302 of IPC – The appeal is, accordingly, allowed – Impugned judgment and order of the trial Court, insofar as it relates to the conviction of the appellant under Section 302 of IPC, is set aside – Petition allowed. (Para 42 and 43)
Facts of the case:
This appeal arises out of impugned judgment and order dated 17.02.2010 passed by the learned Additional Sessions Judge, Court No. 6, Mathura in Sessions Trial No. 192/2008, convicting appellant Smt. Vidya Devi under Section 302 of IPC and sentencing her to undergo rigorous imprisonment for life with a fine of Rs. 2,000/- in default thereof, to undergo six months' additional imprisonment.
Findings of the case:
There is no cross-examination of these witnesses insofar as charge under Section 302 IPC is concerned – The trial, therefore, stands vitiated and there could not have been any conviction under Section 302 of the IPC – Applying the law laid down by the Apex Court in the aforesaid case, the outcome of the trial can be questioned and on this ground also, the appeal deserves to be allowed – Taking cumulative effect of the evidence, we are of the considered view that the trial Court has erred in law in convicting the appellant Smt. Vidya Devi under Section 302 of IPC – The appeal is, accordingly, allowed – Impugned judgment and order of the trial Court, insofar as it relates to the conviction of the appellant under Section 302 of IPC, is set aside.
Result: Petition allowed
JUDGMENT :
Pritinker Diwaker, J.
1. This appeal arises out of impugned judgment and order dated 17.02.2010 passed by the learned Additional Sessions Judge, Court No. 6, Mathura in Sessions Trial No. 192/2008, convicting appellant Smt. Vidya Devi under Section 302 of IPC and sentencing her to undergo rigorous imprisonment for life with a fine of Rs. 2,000/- in default thereof, to undergo six months' additional imprisonment.
2. In the present case, the name of the deceased is Meena wife of acquitted accused Mukesh. The appellant herein is a mother-in-law of the deceased. The marriage of deceased Meena was solemnized with Mukesh about three years prior to the date of occurrence, i.e. 15.08.2007 on which date, in between 7:00 pm to 8:00 pm, Meena suffered 96% burn injury. Immediately after the incident, she was taken to hospital where her dying declaration (Ex.Ka.12) was recorded on 16.08.2007 by (PW-6) Kapil Singh at 12:40 afternoon. Her medical examination was also conducted, vide Ex.Ka.13 on 15.08.2007 by Dr. Nishant Jain, which has been proved by (PW-7) Vishav Dutt Gautam. In the meanwhile, on 16.08.2007, FIR, Ex.Ka.19 was lodged at 3:30 pm by (PW-1) Mordhwaj Singh against the appellant, her husband Hari Singh, Mukesh-husband of the deceased, Kailash and Jagdish, (brother-in-laws) Jeths of the deceased under Sections 307, 498A, 120B and 326 of IPC read with Section 3/4 of Dowry Prohibition Act.
3. After the death of the deceased, inquest on her dead body was conducted, vide Ex.Ka.4 on 21.08.2007 and the body was sent for postmortem which was conducted on the same day, vide Ex.Ka.2 by (PW-3) Dr. R.S. Maurya and 96-97% burn injury was noticed on the body of the deceased, which is as under:
"Infected burn all over body, except head, foot and soles."
Cause of death of the deceased is due to septicemia shock as a result of ante-mortem injuries.
4. While framing charge, the trial Judge has framed charge against the appellant, her husband and the husband of the deceased, under Sections 498A, 304B of IPC, read with Section 3/4 of Dowry Prohibition Act. Charge was framed against the acquitted accused persons on 23.01.2008 under Sections 498A, 304B of IPC, read with Section 3/4 of Dowry Prohibition Act, whereas against the appellant on 06.05.2008, for the same offences.
After recording the court statements of three witnesses, i.e. (PW-1) Mordhwaj Singh, (PW-2) Raj Pal Singh and (PW-3) Dr. R.S. Maurya, on 17.03.2009, additional charge was framed against all the accused persons under Section 302 of IPC.
5. So as to hold accused persons guilty, prosecution has examined nine witnesses, whereas one defence witness has also been examined. Statements of the accused persons were recorded under Section 313 of Cr. P.C. in which, they pleaded their innocence and false implication.
6. By the impugned judgment and order, the trial Judge has acquitted co-accused Hari Singh and Mukesh of all the offences, whereas the present appellant though, has been acquitted under Sections 498A, 304B of IPC and 3/4 of Dowry Prohibition Act, but has been convicted under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life and a fine of Rs. 2000/- in default thereof, to undergo six months' additional imprisonment.
7. Learned counsel for the appellant submits:-
(i) that the most important witnesses (PW-1) Mordhwaj Singh and (PW-2) Raj Pal Singh (father and maternal uncle of the deceased) have not supported the prosecution case and have been declared hostile.
(ii) that demand of dowry has not been proved by any of the witnesses.
(iii) that there are two dying declarations in the present case, one recorded by the Executive Magistrate, vide Ex.Ka.12, whereas the second is the diary statement of the deceased which, after her death, is to be treated as her dying declaration.
(iv) that both these dying declarations are not consistent, in the first dying declarati
