Allowed

Meena Kumari v. State of U.P. and Another

Allahabad HC22 Sept 2022A482/27993/2022

Case brief

AI extract

What is this about?

The High Court in this Section 482 application quashed the Additional Sessions Judge's order rejecting an application to summon the author of a second dying declaration and investigate contradictions. The court directed the trial court to hear the application afresh under Section 311 Cr.P.C.

What did the court decide?

The order dated 11.08.2022 is set aside; the trial court is directed to hear the applicant and prosecution afresh on application 95-Kha and pass appropriate orders.

Meena Kumari Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2022)

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 27993 of 2022

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Applicant :- Meena Kumari Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sikandar B. Kochar Counsel for Opposite Party :- G.A.

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Hon'ble Ram Manohar Narayan Mishra,J.

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Heard Shri Sikandar B. Kochar, learned counsel for the applicant, learned A.G.A. for the State and perused the material placed on record.

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The instant application under Section 482 Cr.P.C. has been filed on behalf of applicant with a prayer to quash the order dated 11.08.2022 passed by Additional Sessions Judge, F.T.C., Court No. 1, Etawah in Sessions Trial No. 155 of 2014 (State Vs. Meena Kumari and others) arising out of Case Crime No. 187 of 2013, Police Station Usrahar, District Etawah pending in the Court of Additional District and Sessions Judge/F.T.C., Court No. 1, Etawah and further direct the learned trial Court to pass fresh orders, in accordance with law, with an alternative prayer to stay the further proceedings of aforesaid case.

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The present application is supported with an affidavit of Ashish Singh, son of applicant. The applicant is mother-in-law of the deceased.

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The FIR in the present case was lodged on 15.10.2013, which was registered as Case Crime No. 187 of 2013, under Sections 498-A, 326, 352 I.P.C. and Section 3/4 of Dowry Prohibition Act against the applicant and three other family members at the instance of Madhuban, brother of the deceased, at the time when the deceased was hospitalized after suffering from burn injuries.

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The first dying declaration of the deceased was recorded by Shri R.K. Pandey, S.D.M. Safai, District Etawah on 13.10.2013 whereas the incident is said to have occurred on 12.10.2013. The second dying declaration of the deceased was recorded by Ms. Bhumija Saxena, S.D.M. Gwalior. On the basis of second dying declaration, the case was converted from Section 304-B I.P.C. to Section 306 I.P.C. and charge-sheet was filed under Section 306 I.P.C. against applicant Meena Kumari, mother-inlaw of the deceased and Avinash @ Raju Tomar, husband of the deceased. Thereafter, during the course of trial, the brother-inlaw of the deceased, Ashish was summoned under Section 319 Cr.P.C. to face trial alongwith co-accused.

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Learned counsel for the applicant submits that as per the second dying declaration of the deceased, it is apparent that the deceased committed suicide as she was annoyed on account of the fact that her husband was living at Delhi and was not taking her away. He further submits that accused Avinash @ Raju, husband of the deceased and applicant Meena Kumari, motherin-law of the deceased were enlarged on bail by this Court, copy of the bail orders are annexed as Annexure-8 to the application. He further submits that author of second dying declaration Ms. Bhumija, S.D.M. Gwalior has been made witness of charge-sheet at Serial No. 15, however, the author of first dying declaration Shri R.K. Pandey, S.D.M. Safai is not made witness of the charge-sheet, as first dying declaration was recorded prior to lodging of the FIR. The learned trial Judge vide impugned order dated 11.08.2022 rejected the application of applicant filed under Section 95-Kha, in which it is prayed that second dying declaration be taken on record and author of second dying declaration Ms. Bhumijha, S.D.M. Gwalior be summoned to prove the dying declaration. It was also prayed in the application that Investigating Officer Shri Siddharth Verma,

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PW-8 be also summoned for cross-examination of statement of witnesses of fact, which was recorded when denove trial began after summoning of co-accused Ashish. Both the prayers were rejected by learned trial Court on the ground that Ms. Bhumija, S.D.M. Gwalior, was not made witness in case diary. The Court has got full right to pass appropriate order under Section 311 Cr.P.C. as and when it deems fit. The accused may move appropriate application at the stage of defence evidence.

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Learned counsel for the applicant further submits that while rejecting the application 95-Kha, the learned trial Court has observed that objection of prosecution 98-Kha/1 to 98-Kha/6 will be considered at appropriate stage and charge can been amended or altered at the stage of trial, as there was prayer on behalf of prosecution to alter the charge under Section 304-B I.P.C.

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Learned A.G.A. opposed the application by submitting that there is no illegality in the impugned order and it is rightly held by learned trial Court that opportunity shall be given to prosecution to adduce evidence of witness at the stage of prosecution evidence and accused cannot suggest as to what witnesses should be examined at the stage of prosecution evidence.

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On perusal of record, it appears that there are two contradictory dying declarations of the deceased, one recorded by Shri R.K. Pandey, S.D.M., Safai, Etawah on 13.10.2013 after second day of incident i.e. 12.10.2013, when the deceased was stated to have suffered from burn injury in her matrimonial home and second dying declaration was recorded by Ms. Bhumija Saxena, S.D.M. Gwalior, which suggests that deceased committed suicide by setting her on fire and stated that her husband was not present at the time of incident. In first dying declaration, the

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deceased has made specific allegations against her mother-inlaw and brother-in-law regarding matrimonial cruelty and made specific allegation against them that they have set her on fire.

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Section 311 Cr.P.C. reads as follows:-

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" 311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."

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It appears that author of first dying declaration has not been made witness in charge-sheet. So far as dying declarations are concerned, these are undoubtedly relevant evidence for the purpose of trial and they should be placed on record and are liable to be proved by the evidence of their author and the doctor in whose presence the dying declarations were recorded irrespective of the fact that whether they are made witness of the charge-sheet or not or whether they are examined during investigation or not. The Investigating Officer of the case may be recalled on the application of co-accused Ashish Kumar, who has been summoned to face the trial under Section 319 Cr.P.C. or suo moto by the Court during de novo trial in respect of the said co-accused to seek clarification of Investigating Officer regarding contradictions in statement of witnesses of fact during their trial, from their previous statements recorded during investigation under Section 161 Cr.P.C., if any. This is not necessary that dying declaration of the victim may be recorded after lodging of first information report, it may be recorded even prior to lodging of the first information report, if the statement is given by the victim. Even if the dying declarations are not made part of record of case diary, by the Investigating Officer, it is duty of the Court to summon the dying declaration

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and make it as part of judicial record and summon their author to prove them as a piece of evidence for trial and if prosecution does not intend to examine them, it is duty of the Court to examine the author of the dying declarations as well as doctors concerned, in whose presence, the dying declaration was recorded. It is duty of the Court to summon any witness or person, if his evidence appears to be essential for just decision of the case.

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Considering over all facts and circumstances of the case, the impugned order dated 11.08.2022 rejecting the application 95Kha, moved by the applicant, is not sustainable. Accordingly, the order dated 11.08.2022 is set aside and trial Court is directed to hear the applicant and prosecution afresh on application 95-Kha, moved by the applicant and pass appropriate orders in the light of the aforesaid observations.

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The application under Section 482 Cr.P.C. stands disposed of.

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Order Date :- 22.9.2022 Shafique

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Digitally signed by SAFIKUR RAHAMAN Date: 2022.09.29 16:53:15 IST Reason: Location: High Court of Judicature at Allahabad

Meena Kumari v. State of U.P. and Another

Case brief

What is this about?

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Meena Kumari v. State of U.P. and Another

Case brief

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