Dismissed

Sunil Kumar Bishwas v. State of U.P.

Allahabad HC7 Sept 2021CRLA/6828/2007

Case brief

AI extract

What is this about?

In a criminal appeal against a life sentence for murder under Section 302 I.P.C., the High Court rejected the argument that the appellant's hospital expenditures or the child witness's testimony warranted reducing the charge to causing death under Section 304 part I I.P.C., upholding the original conviction.

What did the court decide?

The appeal is dismissed; the conviction under Section 302 I.P.C. is upheld.

Sunil Kumar Bishwas Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2021)

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Reserved on 19.07.2021

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Delivered on 07.09.2021

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Court No. - 48

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Case :- CRIMINAL APPEAL No. - 6828 of 2007

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Appellant :- Sunil Kumar Bishwas Respondent :- State of U.P. Counsel for Appellant :- Shahroze Khan,C.K. Mishra,Daya Shankar Misra,Lihazur R. Khan,P.K. Singh,Yogesh Kumar Srivastava Counsel for Respondent :- Govt. Advocate

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Hon'ble Anjani Kumar Mishra,J. Hon'ble Deepak Verma,J.

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Heard Shri Y.K. Srivastava, learned counsel for the appellant and Shri Ajit Ray, learned A.G.A. for the State.

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The instant appeal is directed against the judgment and sentence passed by the Sessions Judge, Siddharthnagar in Sessions Trial No. 33 of 2006 arising out of Case Crime No. C-7/2005, Police Station- Shohratgarh, District- Siddharthnagar.

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The appellant has been sentenced to life imprisonment of the offence under Section 302 I.P.C. and a fine of Rs. 1,000/- has been imposed. The incident is of 14.04.2005. On that day, the appellant on the investigation of other persons including some relatives is alleged to have poured kerosene over his wife Anima Bishwas and set her on fire. This was allegedly done to eliminate her as the appellant was in an illicit relationship with one Tripti Mandal, who was the resident of Village Station Pada, Police Station Jirath, District Hugli, West Bengal.

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It is also the prosecution case that prior to the incident on 06.03.2005 that on the application of the deceased, the accusedappellant was challaned under Section 151, 107, 116 Criminal Procedure Code.

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Another application was given by the deceased at the local police station on 22.03.2005.

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Aggrieved by these complaints and since the deceased opposed the illicit relations of the appellant with Tripti Mandal, the incident took place so as to eliminate her. It appears that the first information report was lodged on 20.08.2005 at 9.30 A.M. consequent to the order passed on an application under Section 156(3) Cr.P.C. The case was registered under Section 304-B, 498 I.P.C. read with Section 3/4 of the Dowry Prohibition Act, P.S. Shohratgarh, District Siddharthnagar. It appears that the statement of the injured Anima Bishwas was recorded on 20.04.2005. The said document has been marked as Ex. A-2. It was recorded on 20.04.2005 at 5.30 P.M. On it is the endorsement by the Emergency Medical Officer and the S.G. District Hospital that the injured was conscious during the declaration made by her.

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It appears that the injured Anima Bishwas died on 17.05.2005. The post mortem was conduced on 18.05.2005 at 4.30 P.M. after the death of the injured on 17.05.2005 and consequent thereof, the application was charged under Section 302 I.P.C. As many as nine prosecution witnesses were examined during trial.

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PW-1, Satish Kumar Srivastava, Naib Tehsildar is the person who has recorded the dying declaration of Anima Bishwas. He has stated that he recorded the statement of the deceased after the doctor informed him that she has been in position to depose. The statement has been recorded in the presence of the E.M.O., Netaji Shubhash Chandra Bose, District Hospital, Gorakhpur, who has also countersigned the same. He has also stated in cross-examination that while the dying declaration was recorded by the members of her family was present but her husband was not present, nor was anybody from her in-laws side present. He has denied the suggestion that Anima Bishwas was not conscious at the time of the dying declaration.

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PW-2, Kallan is the neighbour of the deceased and the accused. He has stated that when he reach the house of the appellant his wife was lying burnt and that Sunil Kumar Bishwas, the appellant was not present and that the two daughters were there and they were crying. In his cross-examination, he has stated that he reach the house of the site of occurrence on hearing a hue and cry.

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PW-3, Sitaram Chaudhary is the Pradhan of the village on the date of incident. He has stated that the appellant was brought to the Police Chowki by the police of Nepal where he had escaped and was handed over to the police present at the Chowki. He has stated that the deceased was lying burnt but how she has got burnt, he was aware. This witness was declared hostile and was cross-examined by the prosecution. He has denied any knowledge of the deceased having been burnt after kerosene was poured over her and that he never went inside the house. He never saw the police taking out Anima Bishwas who was unconscious. He has also denied having his statement under Section 161 Cr.P.C. having been recorded.

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PW-4, Somen Bishwas is the brother of the deceased. He has stated that Sunil Kumar Bishwas had illicit relations with Tripti Mandal. He has stated that due to harassment by the appellant his sister, she has lodged complaint in Police Station Shohratgarh. The appellant also use to assault his wife, wherein the appellant was challaned. He has stated that he is received information of the incident via telephone. He has also stated that after burning his sister, Sunil Kumar Bishwas ran away while coming to the spot on motorcycle along with wife en-route, he met to people taking his sister hospital and that his sister at that time was conscious and had narrated to him the illicit relations of the accused with Tripti Mandal. At the District Hospital Siddharthnagar and finding the condition of Anima Bishwas to be serious, she was referred to Gorakhpur Medical College where a dying declaration was recorded.

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From Gorakhpur, his sister was referred to PGI, Lucknow. He has also stated that the house of the appellant was just one house away from the Nepal border. He has denied any knowledge of any information having been given to the police by his eldest sister Sahna Rai and that his house is situated at a distance of 30-35 kilometer from the scene of occurrence. He has also stated that he was informed by his niece Poonam that the accused had poured kerosene over her mother and burnt her and, thereafter he had escaped to Nepal. He has also stated that from the Medical College, Gorakhpur, he took his sister to a private hospital looking at her serious condition.

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In his cross-examination, he has further stated that the allegation that she was burnt by father sprinting kerosene on her was stated by him on the basis of the information given to him by his sister.

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PW-5, Girgesh Sahi, Sub Inspector has stated that he took over investigation of the case on 07.03.2006 and who arrest the appellant. In his crossexamination, he has stated that although other persons were named in the report. However, no charge-sheet was filed against them in the absence of any evidence and the charge-sheet was filed only against the appellant.

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PW-6, Dr. Laldeo, Medical Officer, Subhash Chandra Bose, Hospital, Gorakhpur has stated that the dying declaration was recorded on his application and information and that before the dying declaration was recorded, he had examined the mental and physical condition and certified that she was fit to depose.

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PW-7, Dr. A.K. Jha who conducted the post mortem on the body of the deceased and has proved the post mortem, which was marked as Ex. A-8.

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PW-8, Rajbanshi Singh is the retired Sub Inspector, who took over the investigation on 21.08.2005. He has prepared the site plan and is recorded the statement of Somen Bishwas, Dr. Laldeo, Satish Chandra Srivastava, Naib Tehsildar and Raju @ Vijay Bahadur, Baleshwar Gupta and others. In his cross-examination, he has stated that he came to spot on 26.08.2005 and that the case was registered on an application under Section 156(3) Cr.P.C.

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PW-9, S.I. Ramayan Yadav, was the Chowki Incharge of Munuwa Market Police Colony on 19.04.2005. He has stated that the intimation of the death of Anima Bishwas was received on 17.05.2005 at 5.00 P.M. and who conducted the inquest. The statement of the accused was recorded under Section 313 Cr.P.C. He denied having poured kerosene over his wife and set her a light and is stated that she got burnt by a stove. He has denied any knowledge of the dying declaration. He has admitted having been arrested on 07.05.2005. He has finally stated that the case was lodged because after the death of his wife his brother-in-law, the first informant that he should transfer all his property in the name of his brother-in-law or else. He would

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be falsely implicated. He has also deposed about withdrawing money on four separate occasions for the treatment of his wife.

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Two defence witnesses have been examined during trial. DW-1, his ten years old Poonam Bishwas daughter of the deceased and the appellant. She has stated that after the accused was went to jail she is residing with her aunt Malti Bishwas. After examining the Court after questioning this witness opined that the witness understood what was meant by statement of fact and was capable so understanding and replying to the question put to court. She has stated that her mother got burnt while cooking in the kitchen. At that time her father was attending to patients and on being informed and the compounder came and put out the fire. The Police Chowki is situated at a distance of two house from her house. In her cross-examination she had denied that the first informant and maternal uncle of the witness arrived on the spot on the day of the incident. In her cross-examination, she has stated that after the incident, the police took her after to the police chowki and that he was released after he came to the hospital where her mother was admitted but maternal uncle had made threatened and therefore, he never again came to the visit her mother. He has categorically denied that her father had poured kerosene and set her mother burnt. She has also denied the suggestion that she has been tutored by her paternal aunt.

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DW-2, Ct. Nagendra Kumar Tiwari who was posted at Thana Shoratgarh on 23.04.2005 and has stated that he received the application filed by Jharnaram on 19.04.2005. In the application, it was stated that the applicant Jharnaram wife of Manilal Ram that her sister Anima Bishwas got burnt by the stove while cooking on 19.04.2005.

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On the aforenoted evidence and relying heavily upon the dying declaration, the order of conviction and sentenced was pronounced by the Sessions Judge, Siddharthnagar on 22.09.2007.

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The contention of learned counsel for the appellant is that he is not disputing the dying declaration. However, since the appellant had spent over one lac rupees after withdrawing the same from his bank account, for the treatment of his wife. The case will not travel upon the following judgments to canvass

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that the conviction of the appellant be converted into one under Section 304 part I I.P.C. and that the appellant has undergone more than 10 years of his incarceration, which is more than a maximum period of detention under the said section.

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Learned A.G.A. on the other hand has submitted that the conduct of the appellant is an important factor to be looked into the appellant is not the one who brought his wife admitted to hospital. It is however, clear from the dying declaration that the appellant has poured kerosene over the deceased and had set her on fire. Merely because the death occurred subsequently on account of severe injury with set in due to the burn injuries. It cannot be said that the appellant did not have any intention to kill and, therefore, the case could not file within the purview of Section 304 part 1 I.P.C.

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As regards the judgments cited on behalf of learned counsel for the appellant, it has been submitted that each case has to be decided on the basis of its facts and only if the facts of the case and the circumstances justified can a conviction under Section 302 I.P.C. be converted to one under Section 304 I.P.C. and or the accused-appellant can be let of on the sentenced already undergone. He has reiterated that the paid head ticket on the cord indicates that the deceased was got admitted to hospital by her brother, the first informant and not the appellant. He has however, admitted that the factum of several withdraws having been made by the appellant from his bank account allegedly for the treatment of his wife is something, which cannot be a readily disapproved. Moreover, the appellant had after the incident absconded and it is clear from the statement of PW-3, who has been declared hostile but had stated that the appellant was given in the custody of the police by villagers and police of Nepal. The border of Nepal is situated only two house away from the house of the appellant. He has lastly submitted that the dying declaration has been duly recorded by a competent officer and the person recording the dying declaration as also the attending doctor have duly certified that the person making the dying declaration was in a fit mental condition to depose. The conviction under the circumstances is fully justified and the appeal merits dismissed.

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We have considered the submissions made by learned counsel for the parties and perused the record as also the judgments cited.

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At the very outset, it would be relevant to note that learned counsel for the appellant has not disputed the dying declaration. Moreover, the dying declaration has been recorded by a competent authority in the presence of doctors who had certified that she was in a fit condition to depose. Moreover, the dying declaration has been proved by the doctor who had certified the evidence of person from making as declaration as also officer before whom the statement was made and who prescribe it. In the dying declaration, the deceased had categorically stated that the accused have poured kerosene over her and set her on fire as she was opposed to his illicit relationship with one Tripti Mandal.

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There is under the circumstances no good reason for not believing the dying declaration and relying upon it, especially, when learned counsel for the appellant has also not disputed.

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In the aforenoted background, it only remains to be sealed whether the facts and the attended circumstances of the case are such which would lead to a conclusion that the conviction under Section 302 I.P.C. is not justified and that the offence would not travel beyond Section 304 part 1 I.P.C. as has been submitted on behalf of the appellant.

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In view of the above, we have scanned the evidence of the prosecution witness, especially the witnesses of fact.

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PW-2, a person residing in the vicinity of the house of the deceased and the appellant has clearly stated that when a hue and cry is raised and the villagers arrived at the spot the appellant was not present and had run away. PW-3, Seetaram Chaudhary has also stated about the appellant having run away, although he has stated that he was not aware as to why he was run away. He has also stated that he was brought to the appellant to the police chowki accompanied by the police of Nepal. This statement has been made by him in the examination in chief. Although, he has denied his statement

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allegedly recorded under Section 161 Cr.P.C. As a consequence whereof, he has been declared hostile.

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We see no justification as to why the statement of the said witness cannot be believed insofar as the factum of the appellant having absconded to Nepal after the incident is not liable to be believed.

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Similar is the situation as regards the oral testimony of PW-4, the first informant. He has also stated that after the incident Sunil Kumar Bishwas run away.

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As regards the aforenoted evidence on record, learned counsel for the appellant has not been able to offer any cogent explanation as to why in case, the appellant was not guilty and that the deceased got fire from the stove while cooking. There was again for the appellant being absconded.

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In the absence of any such cogent explanation, the mere fact that the appellant had spent money for the treatment of his deceased-wife is by itself not sufficient to hold that the appellant had no intention to kill her.

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All the judgment that has been cited by learned counsel for the appellant are not their own peculiar facts and circumstances and convictions under Section 302 I.P.C. had been modified to lower sentences. However, they do not lay down any short jacket formula.

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Under the circumstances and since we do not find any litigating circumstances, the submission of learned counsel for the appellant that the conviction should be converted into one under Section 304 part 1 I.P.C. cannot be accepted.

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It is no doubt true that the prosecution case has been belied by the statement of the daughter, DW-1 of the deceased and the appellant, who was about five and a half year old on the date of the incident. At the time, the statement was recorded she is aged about ten years. She is admitted that she is residing with her aunt, the sister of the appellant.

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In this background, it cannot be said with a degree of certainty that the said witness is not a tutored witness. Therefore, there appears no justification to rely exclusively upon her statement and to simultaneously discarded the

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other witness to the effect that after the incident, the appellant had absconded, there appears no justification for converting the conviction of the appellant under Section 302 into one under Section 304 part 1 I.P.C. It has neither been argued nor has been suggested that PW-2 an independent witness has any reason to depose wrongly as regards the appellant has been absconded after the incident. There is already discussed herein above, the statement of PW-3, who turned hostile in this regard also cannot be ignored. In view of the above discussion, we do not find any justification to convert the conviction of the appellant under Section 302 to one under Section 304 I.P.C. and to said in see on the sentenced already undergone.

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For the same reason, the appeal has to fail and is, hereby, dismissed .

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Order Date :- 07.09.2021 Mayank

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Sunil Kumar Bishwas v. State of U.P.

Case brief

What is this about?

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Sunil Kumar Bishwas v. State of U.P.

Case brief

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