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2023 Supreme(All) 427
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
KAUSHAL JAYENDRA THAKER, AJIT SINGH, JJ.
Smt. Rajendri Devi - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 5955 of 2018
Decided On : 21-02-2023
Subject
Criminal Law - Homicide
Act Referred
DOWRY PROHIBITION ACT : S.3, S.4
EVIDENCE ACT : S.32
INDIAN PENAL CODE : S.299, S.302, S.304 PART I, S.304 PART II, S.304(b), S.34, S.498(a)
Headnote
Indian Penal Code, 1860 – Sections 498A, 304B, 34, 302, 299 – Criminal Procedure Code, 1973 – Section 313 – Dowry Prohibition Act – Section 3, 4 – Evidence Act – Section 32 – Offence of Murder – Power to examine accused – Learned counsel assisted by counsels for appellant – Court hence instead of deciding application for release on bail we venture to decide main appeal as appellant – Held, Court considers no accused person is incapable of being reformed applied to give them an opportunity of reformation in order to bring them social stream – Learned trial court for life term is very harsh keeping entirety of case and gravity of offence – Court held that undue harshness should be avoided taking into account reformative approach underlying in criminal justice system – Court come definite conclusion that death was due to septicaemia judgments cited by learned counsel appellant would permit us to uphold our finding which we conclusively hold that offence – Appeal is partly allowed.
For the Appellant : Rajiv Lochan Shukla, Ashfaq Ahmed Ansari, Neeraj Kumar Sharma.
JUDGMENT :
[K.J. Thaker, J.]
1. Heard Sri Rajiv Lochan Shukla, learned counsel assisted by Sri Neeraj Kumar Sharma, Sri Shanda Prasad Mishra, learned counsels for appellant, learned A.G.A. for the State.
2. The record is before this Court hence instead of deciding application for release on bail we venture to decide the main appeal as appellant is in fact since 15.07.2017 and is an aged lady.
3. This appeal challenges the judgment and order dated 12.09.2018 passed by Additional Sessions Judge, Court No.5, Ghaziabad in Sessions Trial No.07 of 2018 convicting accused-appellant under Sections 498A & 304B of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and Section 3/4 of the Dowry Prohibition Act, Police Station Masoori, District Ghaziabad alternate charge under Section 302 IPC read with Section 34 IPC and sentenced the accused to undergo imprisonment for life with fine of Rs.20,000/-under Section 302 of I.P.C. and half of the amount of the total fine has to be paid to Munni, the mother of the deceased.
4. Factual scenario as culled out from the record and the judgment of the Court below is that the complainant lodged a complaint that his daughter was married with Sumit alias Bholu. After she went to matrimonial home, she was being harassed for dowry. The family members of the accused and accused demanded motorcycle and Rs.50,000/-. Incident occurred on 29.04.2017, she was set ablaze by pouring kerosene on her in which, she suffered grievous injuries and she was sent to Safdarganj Hospital, Delhi for further treatment where she died on 06.05.2017. The complainant lodged the complaint on 30.04.2017.
5. Investigation was moved into motion. After recording statements of various persons, the investigating officer submitted the charge-sheet against accused under 498A & 304 B of I.P.C. and Section 3/4 of Dowry Prohibition Act, 1961 (in short 'D.P. Act'). The learned Chief Judicial Magistrate before whom charge sheet was laid put the same before the learned Sessions Judge. The learned Sessions Judge, on hearing the learned Government Advocate and learned counsel for the accused, framed charges under Section 498A, 304B, 302/34 of I.P.C. & Section 4 of D.P. Act.
6. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 9 witnesses who are as follows:
| 1 | Rama | PW1 |
| 2 | Keshpal | PW2 |
| 3 | Munni | PW3 |
| 4 | Kuldeep | PW4 |
| 5 | Esha | PW5 |
| 6 | Dr. Vedant Kulshrestha | PW6 |
| 7 | Ravindra Kumar Singh | PW7 |
| 8 | Atar Singh | PW8 |
| 9 | Pawan Kumar | PW9 |
| 10 | Jogendra | PW10 |
| 11 | Ishwar Singh | PW11 |
| 12 | Aatish Kumar Singh | PW12 |
| 13 | Danish Alam | PW13 |
| 14 | Rajkumar Pandey | PW 14 |
| 15 | Ravindra Yadav | PW15 |
7. In support of ocular version following documents were filed:
| 1 | F.I.R. | Ex.Ka.7 |
| 2 | Written Report | Ex.Ka.1 |
| 3 | Statement of Gunjan | Ex. Ka.3 |
| 4 | Medico-Legal Report | Ex.Kha.1 |
| 5 | Postmortem report & Death Report | Ex.Ka.2 |
| 6 | Death summary | Ex.Kha.2 |
| 7 | Final Form/Report | Ex.Ka.8 |
8. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned aforesaid.
9. It is submitted by learned counsel for accused-appellant that the accused is in jail since 15.07.2017.
10. Learned counsel for the appellant has vehemently submitted that dying declaration is not worth believing. It is submitted that it is an admitted position of fact that deceased died out of septicemia after seven days of incident.
11. It is further submitted by learned counsel for the appellant that most of the witnesses have turned hostile (thereby have not supported the prosecution) despite that, learned Sessions Judge has convicted
