Sikander vs State of U. P. - 2022 Supreme(All) 717

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 717

IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, AJAI TYAGI, JJ.
Sikander and Another – Appellants
Versus
State of U.P. – Respondent
Criminal Appeal No. 1030 of 2013
Decided On : 13-07-2022

Advocates:
Advocate Appeared:
For the Appellants : Uma Shankar Pal, Raj Kumar Mishra.

Headnote:
Indian Penal Code, 1860 - Section 302/34, 498A and 304B, 304, (1), 60, 326, 300, (4), 299 - Dowry Prohibition Act, 1961 - Section 4 - Evidence Act, 1872 - Section 32 - Husband - Illicit Relations - Culpable Homicide - Relation between husband and wife were cordial but in meantime Sikander developed illicit relations with his elder sister-in-law - This was intimated by his daughter to her parents - On this score the relations between her daughter and son-in-law became strained - Once his daughter caught her husband and sister-in-law red handed in compromising position - Husband had beaten her badly - His son-in-law came to his house at evening and told that his daughter had caught fire - Whether it would be a murder or culpable homicide not amounting to murder and punishable under Section 304 IPC. – Held, There is also evidence on record to prove and establish that action of appellant to throw burning tonsil was preceded by a quarrel between deceased and appellant - From aforesaid evidence on record it cannot be said that appellant had intention that such action on her part would cause death or such bodily injury to deceased, which was sufficient in ordinary course of nature to cause death of deceased - Deceased had survived for around 30 days in hospital and that his condition worsened after around 5 days and ultimately died of septicemia - In fact he had sustained about 35% burns - In that view of matter, Court is of opinion that conviction of appellants under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code - Appeal partly allowed.

JUDGMENT :

AJAI TYAGI, J.

1. This appeal has been preferred against the judgment and order dated 31.01.2013, passed by the learned Additional Sessions Judge, Court No. 6, Jaunpur, in Session Trail No. 362 of 2010 State of U.P. vs. Sikander and another arising out of Case Crime No. 328 of 2010 under Section 302/34 IPC, Police Station-Machhlishahar, District-Jaunpur, whereby the appellants are convicted and sentenced for the offence under Section 302 IPC for life imprisonment with a fine of Rs. 10,000/- and in default of payment of fine, further imprisonment for one year.

2. The brief facts of the case are that first information report of this case was lodged by complainant with the averments that the marriage of his daughter was solemnized with accused Sikander S/o Ram Khelawan. Till the two years of marriage, the relation between the husband and wife were cordial but in the meantime Sikander developed illicit relations with his elder sister-in-law (Badi Bhabhi). This was intimated by his daughter Seema to her parents. On this score the relations between her daughter and son-in-law became strained and Sikander started beating his daughter and pressurized her to bring Rs. 50,000/- from her house. Once his daughter caught her husband and sister-in-law (Jethani) red handed in compromising position. Husband had beaten her badly. On 09.04.2010 his son-in-law came to his house at evening and told that his daughter had caught fire. He reached to the spot and found his daughter was lying unconscious in burning condition. She had 95 percent burn. She made dying-declaration also and died on 13.04.2010 during the course of treatment.

3. A first information report was registered on the basis of above written report. During course of investigation, I.O. recorded statement of witnesses, prepared site-plan. Dying-declaration of injured Seema was recorded by Nayab Tehshildar, Jaunpur. After the death of the deceased, inquest report was prepared and post mortem was conducted. Post mortem report is also placed on record. After making thorough investigation, charge sheet was submitted against the accused Sikander, husband of the deceased and Ram Khelawan, father-in-law of the deceased. Learned trial court framed charges against both the accused persons under Sections 498A and 304B IPC and under Section 4 Dowry Prohibition Act. Accused-appellants denied the charges and claimed to be tried. In alternative charge under Section 302 read with Section 34 IPC was also framed.

4. Prosecution examined following witnesses:

1.	Hawal Dar	PW-1
2.	Kala Vati	PW-2
3.	Ram Bodh	PW-3
4.	Pyare	PW-4
5.	Ramesh Chandra Srivastava	PW-5
6.	Awdhesh Kumar	PW-6
7.	Dr. A.K. Srivastava	PW-7
8.	Suresh Kumar	PW-8
9.	Ombir Singh Dhaka	PW-9
10.	Shyam Narayan Mishra	PW-10

5. Apart from aforesaid witnesses, prosecution submitted following documentary evidence, which was proved by leading the evidence:

1.	FIR	Ex.Ka-5
2.	Written report	Ex.Ka-2
3.	Dying-declaration	Ex.Ka-4/17
4.	Post mortem report	Ex.Ka-7
5.	Panchayatnama	Ex.Ka-8
6.	Charge-Sheet	Ex.Ka-15
7.	Site plan	Ex.Ka-14

6. Deceased was hospitalised after the occurrence by the accused persons themselves. She died after 4 days of the occurrence during the course of treatment.

7. Heard Arvind Kumar Kushwaha, learned counsel assisted by Ms. Pooja, learned counsel for the appellants-Sikander and Ram Khelawan and Shri Patanjali Mishra, learned AGA for the State.

8. Learned counsel for the appellants submitted that accused persons have been falsely implicated in this case. The deceased caught fire while cooking the food. It is further submitted by learned counsel that all the witnesses have turned hostile. PW-1 is complainant and father of the deceased. He has not supported the prosecution case and declared