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IN THE HIGH COURT OF ALLAHABAD
MANOJ MISRA, SAMEER JAIN, JJ.
Sarwari – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No.7387 of 2018
Decided on : 18-11-2021
Indian Penal Code, 1860 - Sections 147, 307, 326, 302, 376, 452 and 120B - Criminal Procedure Code, 1973 - Sections 161, 313, 319 and 437-A - Offence of Committed suicide and Murder - Dying declaration - Reliability of - Benefit of doubt - Burn injuries - Died due to septicaemic shock - Appeal against conviction - As per FIR informant's (PW-1's) niece (deceased) was residing with him for last about one and half years after death of her parents. Co-accused developed illicit relations with deceased and exploited her. When deceased asked co- accused to marry her, co- accused refused; upon which, deceased warned co- accused that if he will not perform marriage with her then she will inform Police. Alleged, that co-accused, his father; his uncles and his mother (appellant) entered house of informant (PW-1) and set deceased ablaze after pouring kerosene oil on her.
Finding of the Court :
Dying declaration has to be judged and in light of surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence - Surrounding circumstances, as narrated by witnesses of facts, demonstrated that deceased was an obstinate girl and she herself committed suicide by pouring kerosene oil upon her, as she wanted immediate marriage with son of the appellant, namely, Guddan, whereas, the accused persons were not ready for immediate marriage as their economic condition was weak and they wanted that marriage may be performed after one year. All the witnesses clearly stated that the deceased bore a grudge against appellant (sister of co-accused), as according to her, both were main hurdle in her immediate marriage with co-accused - Court unable to accept the reasons given by the trial court in convicting the appellant in present case. Hence prosecution has failed to prove guilt of appellant (Sarwari) beyond reasonable doubt. The incident does not appear to have happened in manner stated by prosecution and the appellant is entitled to benefit of doubt. Consequently, appellant is entitled to be acquitted of all charges for which she was tried - Conviction set-aside.
Result: Appeal allowed
JUDGMENT :
Sameer Jain, J.
1. The present appeal has been preferred by the appellant against the judgment and order dated 15.11.2018/16.11.2018 passed by Additional Sessions Judge/FTC I, Deoria in Sessions Trial No. 374 of 2014 by which learned trial court convicted the appellant under Section 302 read with 120B IPC and punished her with imprisonment for life and a fine of Rs.10,000/-(Rs.Ten Thousand) with a default sentence of six months rigours imprisonment. She was, however, acquitted of the charge for offences under Sections 147, 452, 326, 149 and 376 IPC.
2. Prosecution story in nutshell is that on 1.4.2014 at about 12.10 AM, PW-1 Azhar Ali, the informant of the case, lodged an FIR against appellant Sarwari and four others under Sections 307, 326, 376, 120B, 147 and 452 IPC at Police Station Salempur, District Deoria vide Case Crime No. 478 of 2014. As per FIR informant's (PW-1's) niece Ayesha Khatoon (the deceased) was residing with him for the last about one and half years after the death of her parents. Co-accused Guddan S/o Islam developed illicit relations with Ayesha Khatoon and exploited her. When Ayesha Khatoon asked co-accused Guddan to marry her, Guddan refused; upon which, Ayesha warned Guddan that if he will not perform marriage with her then she will inform the Police. In that background, it is alleged, on 27.3.2014, at about 2:00 PM (14 hours), co-accused Guddan, his father Islam; his uncles Abdul; Jabbar and Riyaz; and his mother Sarwari (appellant) entered the house of the informant (PW-1) and set the deceased ablaze after pouring kerosene oil on her. Immediately after the incident Ayesha Khatoon (the deceased) was rushed to Primary Health Centre, Salempur where Doctor referred her to the District Hospital, Deoria where she was fighting for her life.
3. As per prosecution, the statement of injured Ayesha Khattoon was recorded by Naib Tehsildar on 1.4.2014 (Ext.Ka-7). Injured Ayesha Khatoon succumbed to her burn injuries on 3.4.2014 at about 3.30 AM. On the information of her death sent by the Hospital, inquest proceeding was conducted on 3.4.2014. Thereafter, on 3.4.2014 her post mortem was conducted. As per post mortem report (Ext.Ka.8), Ayesha Khattoon died due to septicaemic shock as a result of ante mortem burn injuries.
4. A perusal of the post mortem report (Ext.Ka.8) shows that the deceased Ayesha Khatoon sustained superficial to deep burn all over the body except lower part of leg and sole (around 92%). After investigation, charge sheet was submitted against the appellant and four others under Sections 147, 307, 326, 302, 376, 452 and 120B IPC (Ext. Ka-16).
5. After submission of charge sheet case was committed to the court of session. On 12.1.2015 charges were framed against appellant and four other co-accused persons under Sections 147, 452, 326/149, 376 and 302 IPC. Appellant and other co-accused refused to plead guilty and claimed trial.
6. During trial, prosecution examined Azhar Ali, informant (PW-1); Shabana Khatoon (PW-2); Abdul Aziz (PW-3); Ali Hasan (PW-4); Mustaq Ahmad (PW-5); Vinod Singh (PW-6); Zarina Khatoon (PW-7); Zainul Abdeen (PW-8); Dr. Alpana Rani Gupta (PW9); Constable Nikita Singh (PW-10); Hadish Ahmad (PW11); Mithlesh Kumar Tripathi, Naib Tehsildar (PW-12); SHO (Retd.) Ram Autar Yadav (PW-14); SI (Retd.) Uma Shanker Mishra (PW-15); Meraj Alam alias Meraj Rai (PW-16); Vijendra Bahadur Singh (PW-17) (Retired Inspector); and Dr. Surendra Ram (PW-18). Out of total 18 prosecution witnesses, five witnesses are witnesses of fact, namely, Azhar Ali (PW-1)(informant); Shabana Khatoon (PW-2)(wife of PW-1); Zarina Khatoon (PW-7) (sister of deceased); Hadish Ahmad (PW-7) (uncle of deceased) and Meraj Ahmad @ Meraj Rai (PW-16) (brother-in-law) (Bahnoi) of deceased Ayesha Khatoon. Rest of them are formal witnesses.
7. After recording the statement of prosecution witnesses, statement of accused persons including appellant Sarwari was recorded under Section 313 Cr.P.C. by the trial court.
8. After pe
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