Mithlesh vs State of U.P.

Pratyush Kumar, J.—1. The present appeal filed on behalf of the accused-appellant under section 374 (2) Cr.P.C. is directed against judgment and orders dated 25.1.2008 passed by Sushree Renu Agarwal, the then Additional Sessions Judge, Fast Track, Court No. 1 Unnao in S.T. No. 541 of 2004, arising from Crime No. 276 of 2004 registered at P.S. Makhi, Unnao whereby the appellant has been convicted under section 302 IPC and sentenced to undergo imprisonment for life. He was acquitted from charges under sections 498A, 304B IPC and section 4 of the Dowry prohibition Act.

Briefly stated the prosecution version in the appeal is that Hanuman married his daughter Sunita in June, 2000 with Mithlesh and gave dowry according to his status. Her husband, Jeth and in-laws were demanding Rs. 20,000 cash and one motorcycle more in dowry, which could not be met by him. For this reason in the night 14/15 August, 2004 his daughter was murdered by Mithlesh (husband), Kamlesh Dudu (Jeth), his wife and in-laws by sprinkling kerosene oil on her and putting her on fire. Hearing about it he reached sasural of his daughter, from there District Hospital, Unnao where his daughter told him that she was set at fire by the aforesaid persons for dowry. She died on that day at 3 p.m.

On 20th August, 2004 at 4 p.m. at this report chick FIR was scribed, case crime No. 276 of 2004 under sections 498A, 304B IPC and section 3/4 Dowry Prohibition Act was registered at p.s. Makhi, District Unnao. Investigation was entrusted to Circle Officer Hasanganj. Before that on the death memo on 16th August, 2004 inquest proceedings were held. On that day at 4.20 p.m. postmortem examination of the dead body of Smt. Sunita was conducted. Charge sheet was submitted against only the present appellant. Against rest closure report was submitted.

In the Court of Sessions the appellant charged under section 498A, 304B IPC and section 3/4 Dowry Prohibition Act. In the alternative he was charged under section 306 and 302 IPC to which he denied and claimed to be tried.

On behalf of the prosecution Hanuman P.W.1, the first informant, father of the deceased Smt. Phool Dulari P.W.2 mother of the deceased, were examined to prove date of marriage, demand of dowry. They fully supported the prosecution version. Hasan Ahmad P.W. 3 is the retired Naib Tehsildar who held the inquest proceedings and proved inquest report Ext. Ka-2. He also recorded the dying declaration of the deceased and proved it Ext. Ka-11.

Tribhubhan Singh P.W.4 the then Circle Officer, Hasanganj is the investigating officer who gave the details of steps taken during the course of investigation and proved site plan Ext. Ka-7 and charge sheet Ext. Ka-8. Constable Ramesh Babu P.W.5 brought the dead body of the deceased from the district hospital to the mortuary. Dr. Pawan Kumar P.W.6 deposed that when dying declaration of Smt. Sunita was recorded he gave certificate about her mental fitness.

Dr. who conducted the postmortem examination was not examined. Postmortem report Ext. Ka-7 was admitted in evidence under section 294 Cr.P.C. Therein doctor has recorded the following antemortem injuries:

"Ist, 2nd, 3rd degree burns present all over body except some area of abdomen, line of redness present. Skull pupic hairs and axillary (sic)."

Therein cause of death has been recorded as shock due to antemortem burn injuries.

After close of prosecution evidence statement of the appellant under section 313 Cr.P.C. was recorded wherein he denied the facts stated by the prosecution witnesses and claimed that death of his wife had taken place after more than seven years of marriage. His wife was taken in burned condition to the hospital by his father. In the defence Dr. Pawan Kumar D.W.1 was examined and BHT Ext. Kha-1 was filed.

After hearing the arguments the learned trial Judge has concluded that unnatural death of the deceased within seven years of marriage was not proved. But her death by ante mortem burns stood proved and she was burned by the appellant. The appellant was convicted under section 302 IPC and sentenced as above.

Feeling aggrieved the present appeal has been filed.

We have heard Sri Amit Chaudhary, learned counsel for the appellant and Mrs. Madhulika Yadav, learned AGA for the State and perused the record.

The only point canvassed before us on behalf of the appellant is that the appellant is not guilty of committing murder of his wife. They had lived for fairly long time together. The prosecution could not prove any intention on the part of the appellant to murder his wife. In support of his argument he has drawn our attention to the dying declaration Ext. Ka-11. On behalf of the State-respondent this argument has been repelled and it has been argued that the learned trial Judge has rightly convicted the present appellant under section 302 IPC.

In the present matter death of the deceased on the stated date and time by ante mortem burn injury is not disputed. It is also not disputed that appellant is the husband of the deceased. Though Hanuman P.W.1 and Phool Dulari P.W.2 have reiterated the averments contained in the FIR but we find that in the dying declaration, recorded by Hasan Ahmad P.W.2, Smt. Sunita deceased has stated that she was having quarrel with her husband who beat hear with kalcha. When she fell down after sprinkling kerosene oil he put her to fire but he also brought her to the hospital.

From her dying declaration it stands proved that both were quarreling and during the quarrel deceased was beaten by the appellant and put her on fire. Thereafter he himself brought her to the hospital. She reached the hospital alive. This fact stands proved by BHT Ext. Kha-1.

Now we have to consider whether the present case falls under the category of culpable homicidal not amount to murder or murder.

The prosecution could not prove any intention to murder on the part of the appellant. Though he put her on fire but also took her to the hospital for treatment, that negates any intention to murder on the part of the appellant. The incident appears to be result of marital discord between the spouses. Offence was committed in heat of passion which was the result of altercation and feeling provoked by such altercation this offence has been committed.

In burn injury cases often prompt treatment saves the life of the victim. The act of the appellant in such condition cannot be said to be so eminent dangerous that it would have in all probability resulted in the death of the deceased.

We notice that the act of the present appellant does not fall within the definition of murder as contained in section 300 IPC. at the most he can be said to be guilty of committing culpable homicide not amount to murder punishable under section 304 (I) IPC.

To this extent the impugned judgment and orders requires alteration so far as finding recorded by the learned trial Judge holding the appellant guilty of killing the deceased is affirmed by us, therefore, the appellant is not entitled to be acquitted. To this extent his appeal deserves to be dismissed.

Criminal Appeal No. 439 of 2008 is partly dismissed and partly allowed. The impugned judgment and orders as also conviction and sentence of the appellant are modified and his conviction and sentence are altered from section 302 IPC to section 304 (1) IPC and his sentence is reduced from imprisonment for life to rigorous imprisonment of ten years. He is directed to pay the fine of Rs. 5,000/-. In default thereof to further undergo imprisonment of one month.

Period already undergone by him shall be adjusted under section 428 Cr.P.C. against the substantive sentence awarded to him.

Office is directed to certify this order to the court concerned forthwith and send back the lower court record.