Partly allowed

Vinay Kumar Pandey v. State of U.P.

Allahabad HC7 Nov 2019CRLA/3815/2014

Case brief

AI extract

What is this about?

The High Court altered the appellant's conviction from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part II IPC). The court set aside the life sentence and imposed a ten-year rigorous imprisonment term, citing facts indicating no premeditated intent to kill but recklessness regarding burns.

What did the court decide?

Conviction under Section 302 IPC set aside and convicted under Section 304 Part II IPC with ten years rigorous imprisonment.

Vinay Kumar Pandey Vs State of U.P. — Matrimonial and Divorce | Allahabad HC (2019)

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A.F.R

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Judgement Reserved on 27.9.2019. Judgement delivered on 7.11.2019

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Court No. - 1

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Case :- CRIMINAL APPEAL No. - 3815 of 2014

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Appellant :- Vinay Kumar Pandey Respondent :- State Of U.P. Counsel for Appellant :- R.K. Yadav,Rajeev Lochan Shukla,Santosh Kr. Singh Paliwal,Sushil Kumar Dwivedi Counsel for Respondent :- Govt.Advocate

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Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.

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(Delivered by Ramesh Sinha, J.)

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The appellant being aggrieved by the judgement and order dated 20.9.2014 passed by the Addl. Sessions Judge, Court No.2, Azamgarh passed in S.T. No.535 of 2012 State Vs. Vinay Kumar Pandey, district Azamgarh has preferred the present appeal by which the trial court has convicted and sentenced him under Section 302 IPC for imprisonment of life and further fine of Rs.10,000/- and in default of payment of fine, he has been ordered to undergo three months additional imprisonment.

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The informant Jagdish Prasad Pandey submitted a written report on 8.7.2012 to the Station Officer of Police Station Ahraula, district Azamgarh for lodging a FIR against the accused Vinay Kumar Pandey (husband of the deceased), Sriram Pandey (fatherin-law), Smt. Gayatri w/o Sriram Pandey (mother-in-law), Muniya, d/o Sriram Pandey (Nanad), Dileep Kumar S/o Sriram Pandey (devar of the deceased), elder brother-in-law of Vinay Kumar Pandey narrating that the informant had married his daughter Amrawati Devi according to Hindu rites and traditions five years ago to Vinay Kumar Pandey and he has given dowry in the marriage according to his means. After the marriage, the in-laws of the deceased namely Sriram Pandey, mother-in-law Smt. Gayatri, husband Vinay Kumar Pandey, Nanad Muniya, Devar Dileep Kumar and elder brother-in-law of Vinay Kumar Pandey namely

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Gaya Prasad used to cruel treat the deceased for want of dowry. When the informant visited the house of the in-laws of his daugher , she told him about the said harassment and torture made to her by her in-laws on which he pacified his daughter that every thing would be fine but after some days when the harassment and torture increased then informant brought his daughter to his house. After lapse of some days due to intervention of relatives, he sent his daughter to the in-laws house but after one or two days again her in-laws started harassing her. On 1.7.2012 at about 11 in the night he received an information from an unknown call that his daughter has been burnt to death by pouring kerosene oil for want of dowry by the aforesaid accused persons. On receiving the said information on phone, the informant along with his son Sachchidanand, wife Asha Devi and father Ram Keerat and also some persons of his village rushed immediately on a vehicle at her in-laws house then he was informed by the villagers that his daughter has been burnt and has been taken to the Azamgarh in a critical condition. Thereafter the informant along with other persons rushed to Azamgarh by vehicle and came to know that his daughter has been admitted in Vidya Hospital, Sidhari. When they reached the said hospital, they did not find any person of the family of his daughter's in-laws. The informant was getting her daughter Amrawati medically treated and when her condition deteriorated then on 6.7.2012 in the evening she was referred to Sadar Hospital, Azamgarh by the doctor. On reaching the gate of Sadar Hospital, his daughter Amrawati succumbed to her injuries. He gave information about the incident at Sadar Kotwali, Azamgarh where after the inquest procedings, post-mortem was conducted on the body of the deceased. After the post-mortem, the dead-body of the deceased was handed over to him. Thereafter he performed her last rites. After committing the said incident, none of the family member of Vinay Kumar Pandey had come to see his daughter. The daughter of the informant was burnt to death due to want of dowry, he gave the said written report to the concerned police station for taking necessary action. As per postmortem report following injuries were found on the body of the

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deceased:-

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“About 55-60% burn injuries on the both lower extremities except lower part of both leg and foot and lower 2/3^rd both of trunk, most of the part of abdomen both breast and lower 2/3^rd of left upper extremities pealing of skin present all over the burnt area and wound woos white, pus present at places, singeing of hairs present.

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As per postmortem report, cause of death was septicemia shock due to antemortem burn”.

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On the basis of the written report lodged by Jagdish Prasad Pandey, an FIR was registered against the aforesaid accused persons namely Vinay Kumar Pandey, Sriram Pandey, Smt. Gayatri, Muniya, Dileep Kumar and Gaya Prasad which was registered as case crime no.273 of 2012 u/s 498-A, 304-B IPC and ¾ Dowry Prohibition Act on 8.7.2012 at 19.30 hours. The FIR was endorsed in the G.D No.16.

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The Investigating Officer carried on the investigation of the case and made a spot inspection about the place of occurrence and recorded the statement of the witnesses u/s 161 Cr.P.C. He prepared the site-plan Ext.Ka-9 and after investigation of the case, he submitted charge sheet against the accused Vinay Kumar Pandey u/s 498-A, 304-B IPC and ¾ Dowry Prohibition Act which was marked as Ext.Ka-12.

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The case was committed to the Court of Sessions and the trial court framed charges against the accused-appellant Vinay Kumar Pandey 498-A, 304-B IPC and ¾ Dowry Prohibition Act on 19.1.2013 and further on 22.3.2013 an alternative charge under Section 302 IPC was framed against the appellant.

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The accused denied the charge and claimed his trial. The dyingdeclaration of the deceased was recorded by the Nayab Tehsildar Ramashankar Pathak (P.W.7) under the orders of the S.D.M., Azamgarh which has been proved as Ext.Ka-2.

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The prosecution in support of it's case has examined P.W.1 Asha Devi, P.W.2 Jagdish Prasad, P.W.3 Heera Lal, P.W.4 Ram

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Lal Pandey, P.W.5 Ashok Kumar Pandey, P.W.6 Awadhesh, P.W.7 Nayab Tehsildar Ramashankar Pathak (retired), P.W.8 Dr. Amod Kumar, P.W.9 Satyanarayan Chauhan Nayab Tehsildar.

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The accused have admitted the prosecution documents.

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The statement of the accused was recorded u/s 313 Cr.P.C. He denied the prosecution case and also denied the allegation made in dying-declaration of the deceased against him. He stated that he was not present at the time of the incident and reached the hospital on receiving the information. He has donated the blood to the deceased and also performed her last rites.

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Heard Sri Sushil Kumar Dwivedi, learned counsel for the appellant and Sri Amrit Raj Chaurasia, learned AGA for the State and perused the record.

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Learned counsel for the appellant has vehemently argued that all the prosecution witnesses including the informant i.e. P.W.1 to P.W.6 who are family members of the deceased and other persons of the village have admitted the factum of the marriage with the deceased but they have denied the prosecution case against the appellant who have stated that the deceased was never tortured by the appellant for want of dowry and on the other hand the relationship between the two was cordial. He submited that so far as dying-declaration of the deceased is concerned, the said dyingdeclaration is unworthy to be believed as P.W.7 namely Ramashankar Pathak though has recorded the dying-declaration of the deceased on 2.7.2012 at 2.10 P.M under the orders of the S.D.M, Azamgarh but no orders of the S.D.M has been produced before the trial court which may show that he had visited the hospital for recording dying-declaration of the deceased Amrawati. He further submitted that the doctor Vivek Prakash who has given the fitness certificate that the deceased was fully conscious to give her statement on 2.7.2012 at 2.10 p.m and again when her statement was completed at 2.30 p.m. on the same day she remained conscious while giving the statement at Vidya Hospital, Azamgarh, the said doctor was not produced to prove the certificate of fitness. Hence the dying-declaration of the deceased

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wherein allegation has been made against the appellant for throwing burning lantern (Dibhari) in anger by the appellant on the deceased should not be relied upon.

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He further submitted that even if the dying-declaration of the deceased is believed by this Court, then the conviction and sentence of the appellant under Section 302 IPC for life imprisonment by the trial court is against the evidence on record and the case would not travel beyond Section 304 Part-II IPC and the appellant who has already served out the sentence of seven years of imprisonment may be released and his conviction under Section 302 IPC by the trial court be set-aside. In support of his arguments, he has placed reliance on the judgement of the Apex Court reported in 2019 LawSuit (SC) 1139 Kalabai Vs. State of M.P . Paragraph No.16 and 17 of the said judgement is quotted herebelow:-

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[16] Learned counsel for the appellant has placed reliance on the judgement of this Court in Hari Shankar (supra). In the above case the appellant had also picked up a burning kerosene wick-stove and threw it on the deceased. Kerosene from stove spilled over the clothes they caught the fire. The deceased in the said case also died as a result of the burns received by him.This Court held that since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death. It is useful to extract paragraphs 2, 3 and 4 of the judgement which is to the following effect:

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“2. Only question that we have to consider in this appeal is what offence can be said to have been committed by the appellant on the basis of the facts found by the High Court. It has been held that while the appellant, deceased Bheem Singh and one Shah Megan were taking tea in the tea-club of the Air Force, 32 Wing (MT Section), an exchange of words took place between the appellant and the deceased on account of the demand made by the appellant for returning Rs.50,000/- which he had advanced to the

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deceased. The appellant became angry and picked up the burning kerosene wick-stove and threw it on the deceased. Kerosene from the stove spilled over the clothes of the deceased and as the burning wicks came in contact with his clothes they caught fire. The deceased ultimately died as a result of the burns received by him.

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3. What was submitted by the learned counsel for the appellant was that the appellant had no enmity with the deceased. He had no intention to kill the deceased as by killing him he could not have recovered the amount of Rs.50,000/- which he had advanced to the deceased. He further submitted that the quarrel between the two took place all of a sudden and in the heat of the moment the appellant had picked the stove and had thrown it towards the deceased. He, therefore, submitted that it was merely a rash and negligent act on the part of the appellant. We cannot agree with the submission of the learned counsel. Since the appellant had thrown a burning stove on the deceased, he would have known that his act was likely to cause burns resulting in death. In view of the facts and circumstances of the case, he can be said to have committed an offence under Section 304 Part II IPC.

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4. We, therefore, allow this appeal partly, alter the conviction of the appellant from under Section 302 to Section 304 Part II IPC and reduce the sentence of imprisonment for life to rigorous imprisonment for five years.”

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[17] Following the above decision, we are of the view that the present is also a case where in the facts and circumstances of the case, the appellant can be said to have committed offence under Section 304 Part II IPC.

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He has further placed reliance upon the judgement of the Apex Court in 2019 LawSuit (SC) 1129 Govind Singh Vs. State of Chhattisgarh . Paragraph No.7 and 8 of the said judgement is quotted herebelow:-

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[7] The entire occurrence was in a spur of moment. There was quarrel between the father and daughter as to where the bulb is to be put on. In the sudden quarrel and in spur of the moment, the appellant threw the chimney lamp on his daughter. The occurrence was sudden and there was no premeditation. The chimney lamp was burning there which the appellant had picked up and thrown on the deceased. Since the occurrence was in sudden quarrel and there was no premeditation, the act of the accused would fall under Exception 4 to Section 300.

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[8] The conviction of the appellant-accused under Section 302 IPC is modified as the one under Section 304 Part-II IPC. As per jail certificate, the appellant-accused had undergone about 10 years, 2 months and 25 days as on 26.8.2017. By now, the appellant-accused has undergone about eleven years and eight months of imprisonment. Considering the facts and circumstances of the case and the period of imprisonment which the appellant-accused has undergone, the sentence of imprisonment is modified to the period already undergone.

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Per contra learned AGA on the other hand has opposed the argument of learned counsel for the appellant and has argued that as per the dying-declaration of the deceased, the appellant is said to have thrown the burning lantern (dibhari) on the deceased. There was some bitterness between the appellant and his wife as it appears from the dying-declaration and after the incident, the appellant did not make any effort to save the deceased from fire and had gone away. The deceased was rescued by her Jeth and Chachia Sasur who rushed her to Vidya Hospital. The appellant did not visit the hospital to inquire about the welfare of the deceased. He submitted that as per dying-declaration, the deceased has stated that since his marriage her husband used to hate her on the ground that he was more handsome than his wife. He argued that the trial court had framed alternative charge under Section 302 IPC against the appellant and found on the basis of

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evidence on record that the conduct of the appellant goes to show that he had intention to kill his wife by throwing the burning lantern (dibhari) on her and had gone away to sleep. Thus the trial court has rightly convicted the appellant under Section 302 IPC. Hence he prayed that the appeal of the appellant be dismissed.

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In order to examine and appreciate the rival contentions of learned counsel for the parties, it would be appropriate to consider the submissions in the light of the dying-declaration of the deceased which is the basis of the conviction of the appellant under Section 302 IPC for life imprisonment by the trial court. The dying-declaration of the deceased recorded by the P.W.7 on 2.7.2012 at 2.10 p.m. at Vidya Hospital, Azamgarh which is Ext.Ka-2 is reproduced here under:-

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^^ e`R;q iwoZ c;ku Jherh vejkorh iRuh fou; dqekj

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eS] vejkorh iRuh fou; dqekj] mez yxHkx 30 o"kZ lk0 xgth cktkj] fudV ikaMs iqjk Fkkuk& vfgjkSyk ftyk& vktex<+ c;ku fd;k fd esjh 'kknh vjlk 4&5 o"kZ iwoZ gqbZ FkhA esjs ,d iq=h] ,d iq= gS] iq= cM+k gSA esjs ifr QksVks xzkQj gS gekjs ek;ds okyks dh vis{kk /kuk<~; gSA esjs ek;ds okys xjhc gSA esjs ifr eq>ls eksVj lkbfdy fnykus dks dgk esjs ?kj okys iwjk ugh dj ik jgs gS] D;ksfd xjhc gS] esjk ifr eq>ls lqUnj gS] ek;ds okyks dh vis{kk iSls okyk gS bl otg ls eq>ls uQjr djrk gSA eS 1& ½ o"kZ ls vius ek;ds esa jgrh Fkh] llqjky okys ugh ys tkrs gSA ifr ds ifjokj ds fj'rsnkjks ds ncko ls ifr vius ?kj yk;s ijUrq ifr eq>ls dksbZ fj'rk ugh j[krs gSA eSa dy fn0 1-7-12 dh 'kke yxHkx 8 cts [kkuk idk jgh Fkh] mlh le; esjs ifr viuh cgu tks pky pyu ls Bhd ugh gS] dks le>k cq>k@ekjihV dj jgs Fks eS uun dks NqM+kus yxh rc esjs ifr esjs Åij xqLlk gks x;s vkSj tyrh f<cjh esjs Åij Qsad nh ftlls fpYykus ij cpkus esjs tsB tks [kkuk [kk jgs Fks vk;s cpk;kA esjk ifr f<cjh esjs Åij Qsddj Åij lksus pyk x;kA eq>s esjs tsB] pfp;k llqj bykt gsrq lh/ks fo|k gkfLiVy esa HkrhZ djk;kA esjs ifr eq>s ns[kus vHkh rd ugh vk;sA esjk ek;dk ealjxat Fkkuk tgkaxhjxat ftyk vEcsMdj uxj gSA esjs llqj dk uke f'kojke gSA esjs ifr tc ls esjh 'kknh gqbZ gS rc ls uQjr j[krs gSA

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c;ku i<+dj@lqudj rLnhd fd;kA

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fu0v0 vejkorh**

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The marriage of the deceased Amrawati with the appellant is

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admitted to the parties. Though the case was registered for offence under Section 498-A, 304-B IPC and ¾ D.P. Act, the charges were framed against the appellant by the trial court for offence u/s 498-A, 304-B IPC and ¾ D.P. Act on 19.1.2013 and alternative charge was framed against the appellant by the trial court under Section 302 IPC on 22.3.2013.

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As all the witnesses of fact have turned hostile including the family members of the deceased who have stated before the trial court that the deceased was not harassed by the appellant for want of dowry and moreover the relationship between them was cordial, hence the trial court has acquitted the appellant under Section 498-A, 304-B IPC and ¾ D.P. Act but taking into account the dying-declaration of the deceased, it has convicted the appellant under Section 302 IPC for life imprisonment. As the informant P.W.2 Jagdish Prasad Pandey and his wife Amrawati P.W.1 Asha Devi who are the parents of the deceased and other witnesses of fact i.e. P.W.3 to 6 have turned hostile and not supported the prosecution case. Hence we do not think it proper to discuss their evidence and proceed to examine the case under Section 302 IPC against the appellant which the trial court found proved against the appellant in the light of the dying-declaration of the deceased.

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From the perusal of the dying-declaration of the deceased, it is apparent that the appellant was posing himself to be handsome husband and well of as compared to the family members of the deceased on account of which he used to hate the deceased. The deceased was living with her parents for about one and half years and due to intervention of some relatives, she was sent back by her parents to the house of the appellant. On the day of the incident i.e. on 1.7.2012 in the evening at 8 p.m. when she was cooking food, her sister-in-law who was not of good character, had some altercation with the husband of the deceased and husband was beating her sister-in-law on which her husband became annoyed with her and had thrown a burning lantern on her and she screambed and her Jeth who was taking the food came and

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rescued her. Her husband after throwing the burning lantern (dibhari) on her went to sleep in the house. She was admitted by her Jeth and Chachiya Sasur who rushed her to the hospital and admitted her. Her husband did not come to see the deceased in the hospital.

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Thus from the dying-declaration of the deceased it is apparent that though the incident which has taken place appears to be a sudden quarrel between the appellant and his sister and the deceased intervened to save her husband's sister from her husband who out of anger had thrown the burning lantern (dibhari) on her and went to sleep goes to show that the appellant can not be said to have any intention to burn the deceased to death but he would likely known that due to the said act, the deceased would die on account of fire. The deceased was rescued by her Jeth who rushed her to the hospital along with her Chachiya Sasur as it appears from her dying-declaration itself. The case law which have been relied upon by learned counsel for the appellant of the Apex Court squarely covers the case of the appellant wherein the Apex Court in a similar situation has come to the conclusion that the conviction of the appellant of the said case would not attract the offence under Section 302 IPC. Hence has set-aside the conviction of the accused-appellant and altered the conviction under Section 304 Part-II IPC.

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So far as the argument of learned counsel for the appellant regarding the veracity of the dying-declaration of the deceased is concerned is of not much significance as P.W.7 has categorically stated before the trial court that he recorded the dying-declaration of the deceased in the presence of Dr. Vivek Prakash at 2.10 p.m on 2.7.2012 who has certified about the mental condition of the deceased before recording her dying-declaration and also after same was completed at 2.30 p.m. on the same day and simply because no orders of the S.D.M, Azamgarh has been produced by the prosecution before the trial court of the S.D.M concerned for recording the dying-declaration by P.W.7 Ramashankar Pathak and Dr. Vivek Prakash who certified the mental fitness of the

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deceased have not been produced the said dying-declaration cannot be disbelieved as P.W.7 has proved the dying-declaration (Ext.Ka-2) before the trial court and further he has categorically stated that the two certificates by which Dr. Vivek Prakash has certified about the mental state of the deceased. Moreover, the accused has admitted the prosecution documents which includes the dying-declaration also. Therefore, in view of Section 294(3) Cr.P.C, the two certificates regarding mental fitness of deceased issued by Dr. Vivek Prakash at the time of recording the dyingdeclaration of deceased by P.W.7 requires no formal proof. Hence the dying-declaration Ext.Ka-2 proved by P.W.7 cannot be discarded. Thus having considered the submissions of learned counsel for the appellant particularly in the light of the dyingdeclaration of the deceased, we are of the opinion that conviction of the appellant under Section 302 IPC cannot be sustained in the eyes of law. Therefore, the conviction of the appellant under Section 302 IPC by the trial court is set-aside and he is convicted under Section 304 Part II IPC. Now comes the question which is to be determined by this Court regarding the quantum of sentence which may be imposed on the appellant for offence u/s 304 Part II IPC.

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The learned counsel for the appellant has argued that as the appellant has already served out seven years and two months, hence he may be released. Considering the said argument of learned counsel for the appellant we are of the considered opinion that taking into account his conduct in not saving his wife after the incident nor, had taken her to hospital soon after the incident and in fact the Jeth and Chachiya Sasur rescued the deceased and rushed her to hospital coupled with the fact that the deceased remained alive for about a week after the incident and yet the appellant did not even visit to enquire about her welfare and condition and are also of the opinion that ends of justice would be served if appellant is convicted and sentenced to ten years rigorous imprisonment under Section 304 Part II IPC.

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In view of the foregoing discussions and preposition of law as has been laid down by the Apex Court and relied upon by the counsel for the appellant, we convict the appellant under Section 304 Part II IPC and sentence him to ten years R.I. accordingly. The appellant is stated to be in jail. He shall serve out the sentence as awarded by this Court

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The appeal stands partly allowed.

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(Ajit Kumar, J.) (Ramesh Sinha, J.)

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Order Date :- 7.11.2019 Gaurav

Vinay Kumar Pandey v. State of U.P.

Case brief

What is this about?

What did the court decide?

Vinay Kumar Pandey v. State of U.P.

Case brief

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What did the court decide?

What the court decided

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