Lallan Khan (in Jail) vs State

N.K. Mehrotra, J.—This is a criminal appeal against the judgment and order dated 26.11.1990, passed by the Ist Additional Sessions Judge, Bahraich in Sessions Trial No. 103 of 1989 convicting the Appellant to undergo rigorous imprisonment for ten years u/s 304/34, I.P.C., 8 year R.I. u/s 436, I.P.C. three years R.I. u/s 429, I.P.C. and one year''s R.I. u/s 427, I.P.C. All the sentences were directed to run concurrently.

In this appeal at the time of hearing neither the accused-Appellant nor his counsel appeared to argue the appeal.

Since this appeal was filed in November, 1990 and the crime pertains to the date 3.12.1988 and there was sufficient notice to the Appellant''s counsel, it was considered proper in the interest of justice to hear and dispose of the appeal on merit after following the decision of the Supreme Court in Bani Singh and ohters Vs. State of U.P., . It was held by the Supreme Court that:

It is the duty of the Appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the Appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court.

In this case, it was not found a fit case to grant indulgence when the appeal was filed in the year 1990 and since then, it is pending and there is sufficient notice to the learned Counsel for the Appellant. Therefore, I heard Shri C.P.M. Tripathi, learned Additional Government Advocate, perused the record and made scrutiny of the evidence on record myself.

The prosecution story is that informant Gur Bachan was sleeping inside his house along with his family members. In the night between 2/3.12.1988 at about 3 a.m., accused-Appellant Lallan along with Raunak Ali, (now deceased) came to his house and set fire in it. The entire household goods were burnt along with two bullocks and 12 goats. Apart from that the wife of Jagdish, his daughter and a son aged about 2 months sustained severe burn injuries. All the injured persons were admitted to District Hospital, Bahraich. According to the prosecution, Gur Bachan and his family members had previous enmity with Lallan Khan. On alarm, the witnesses Ram Kewal, Bachchu, his mother and so many persons reached there and saw these two accused-persons setting fire in his house and running also.

Informant Gur Bachan got prepared a written report Ext. Ka-1 and handed over to the Superintendent of Police, Bahraich, who directed this written report to the Station Officer, P.S. Hardi, district Bahraich for lodging the F.I.R. of this incident. On the basis of the written report Sri Jwala Prasad Chaturvedi posted at P.S. Hardi, district Bahraich, prepared a chik F.I.R. Ext. Ka-3 on 3.12.1988 at 4.35 p.m. and made an entry in the G.D. which is Ext. Ka-4. The distance between the place of occurrence and the police station Hardi district Bahraich is 10 miles.

The investigation was entrusted to S.I. N. D. Pandey. The Investigating Officer recorded the statements of the witnesses Gur Bachan, Bachchu, Smt. Yoshodhra, Ram Kewal, Jagdish and other witnesses on 4.12.1988. Thereafter he inspected the place of occurrence and prepared the site plan which is Ext. Ka-6. On 11.12.1988, he again went on the place of occurrence and collected the ashes and after sealing it into a container prepared its memo which is Ext. Ka-7. After completing the investigation, he submitted the charge-sheet against the accused persons on 14.1.1989 which is Ext. Ka-8.

Injured Smt. Kamla Devi succumbed to burn injuries on 15.12.1988 and the Investigating Officer prepared the inquest report of the dead body of Smt. Kamla Devi and sent it for post-mortem.

The post-mortem examination on the dead body of Sri Kamla Devi was conducted by Dr. Suresh Chandra, Medical Officer, T. B. Clinic on 16.12.1988 at 2.00 p.m. According to the doctor, she was young lady of thin built, eyes and mouth were closed. Rigor mortis passed of from both upper limb and present in both lower limps. The following ante mortem injury was found on the dead body of Smt. Kamla Devi:

A.M. burn present on the face, both upper limbs, neck, chest and abdomen, right side breast and lower part of both her thighs, and both legs and foot and sides of varying a degree about 70%.

In the opinion of the doctor, the cause of death of Smt. Kamla Devi was due to shock and haemorrhage as a result of ante-mortem burn injury.

The case was committed to the Court of Sessions on 1.5.1989 and after committal, charges, under Sections 436, 429, 427 and 304/34, I.P.C. were framed against the accused persons who pleaded not guilty.

In support of its case, the prosecution examined P.W. 1 Gur Bachan, P.W. 2 Jagdish, P.W. 3 Ram Kewal, P.W. 4 Jwala Prasad Chaturvedi, P.W. 5 Dr. Subhash Chandra, P.W. 6 Dr. H.A. Qurreshi, P.W. 7 S.I. Narain Dutt Pandey, and P.W. 8 S.I. Krishna Gopal Tripathi. The case of the accused u/s 313 of the Code of Criminal Procedure is that he has been falsely implicated in this case due to enmity. He has stated that a quarrel took place with the father of Gur Bachan in respect of some field and Ram Kewal was doing the business of wood with him. In that business a misunderstanding arose between the parties and due to that enmity Ram Kewal has given evidence against him. He has examined D.W. 1 Bhaggu Khan as defence witnesses in support of his case.

After taking into consideration the entire evidence on record, the learned Sessions Judge found the accused guilty and convicted and sentenced the accused Lallan Khan as aforesaid. It is against this judgment the present appeal has been filed.

After seeing the case of the prosecution as well as the defence, I find that it is admitted that the fire was caused to the house of Gur Bachan at the alleged date and place. At the time the fire was caused, Jagdish, his wife, mother, father and children were present inside the house. It is also admitted that the wife of Jagdish and his two children had sustained burn injuries and all of them succumbed to burn injuries later on. It is also admitted that two bullocks and 12 goats and entire household goods were burnt in this incident.

The prosecution witnesses Gur Bachan, P.W. 1, Jagdish, P.W. 2 and Ram Kewal, P.W. 3 are the witnesses of facts. They have corroborated the whole prosecution story. The statement of Gur Bachan is corroborated by the F.I.R. The delay of few hours in lodging the F.I.R. is natural. The fact that the wife of Jagdish had succumbed to burn injuries is proved by the post-mortem report and the medical evidence. It is not denied that the two children of Jagdish had succumbed to death later on and no post-mortem of the dead bodies of these two children were done by the doctor. In view of these admitted facts, now there remains only one important question about the involvement of the accused Lallan Khan in the commission of the crime. I find that there is a strong motive to the accused in the commission of the crime because of admitted enmity. Moreover, there are three eye-witnesses who have seen the accused causing fire to the house of Gur Bachan. There is nothing to disbelieve the testimony of these three witnesses. Even the defence witness Bhaggu has admitted the manner of the incident in which the wife of Jagdish and two children had succumbed to burn injuries and there was loss of animal and property in that fire. The defence witness has denied the presence of Gur Bachan at the time of the incident which is not worth believing. The ocular testimony of three witnesses is sufficient for proving that the accused caused fire and he is guilty for the charges levelled against him.

After perusal of the entire evidence on the record and the reasons given by the learned trial court, I am of the opinion that the findings recorded by the learned trial court are in accordance with the evidence on record.

In result, the appeal is dismissed. The impugned judgment dated 26.11.1990 of conviction and punishment under Sections 304/34, 436, 429 and 427, I.P.C. against Appellant Lallan Khan is hereby confirmed.

Let a copy of this judgment be sent to the Chief Judicial Magistrate concerned within ten days for immediate compliance and report within one month.