- (1.) Following order was passed by this Court in this case on 28.11.2017 :- "Heard Sri Jai Shanker Audichya and Sri Yatindra Dubey, learned counsel for the appellants, Sri Saghir Ahmad and Sri J. K. Upadhyay, learned A. G. As. appearing for the State. We will give reasons later on, but we make the operative order now: "The impugned judgement and order dated 2.7.2012 passed by Additional Sessions Judge, Court No. 1, Firozabad in S. T. No. 534 of 2009; State of U. P. Versus Atul Kumar and another, convicting the appellants under Sections-498A, 302/34 IPC and Section-4 of D. P. Act, P. S.-Nagla Khangar, distrtict-Firozabad and sentencing them to undergo three years' R. I. coupled with fine of Rs. 2000/- each for offence under Section-498A I. P. C., rigorous imprisonment for life coupled with fine of Rs. 20,000/- each for offence under Section-302/34 I. P. C. and one year's R. I. coupled with fine of Rs. 2000/- for offence under Section-4 of D. P. Act along with default clauses, is liable to be set-aside and is hereby set-aside and modified to the extent hereinbelow: The recorded conviction of the appellants under Sections-302/34 IPC is converted into Section-304 Part I IPC and sentence of life is reduced to ten years and the appellants are acquitted of the charges under Sections-498A IPC and 4 of D. P. Act and the fine imposed is reduced to Rs. 10,000/- each. The appeal stands allowed in part."
(2.) Here are the reasons :- The brief facts of the case are that P. W. 1 Hari Om Sharma gave a written report at P. S.-Nagla Khagar, district-Firozabad on 10.10.2008 at about 6.30 P. M. stating therein that his sister Vandana was married to Atul Kumar (A1), S/o Ram Naresh, R/o village-Roochan, Manikpur, P. S.-Nagla Khagar on 4.3.2003. However soon after the marriage, her husband Atul Kumar, her mother-in-law Smt. Asha (A2) and, Smt. Ramwati, her maternal grand mother (Nani of his husband, Atul Kumar), all residents of village-Roochan, Manikpur, P. S.-Nagla Khagar, started demanding motorcycle as additional dowry and on account of the non-fulfilment of the aforesaid demand she was subjected to torture and maltreatment by them and whenever his sister, Vandana used to visit her parental home, she used to narrate the incidents of her torture by her husband's relatives and although her parents tried to remonstrate with them, but there was no change in their attitude and the ill-treatment, which was being meted out by them to his sister, continued. In the meanwhile, his sister Vandana, about three years before the incident, gave birth to a female child and thereafter, there was further increase in her torture. He had gone to the matrimonial home of his sister one week before the incident and on meeting him, she told him that her mother-in-law and grand mother-in-law were suggesting that she should be killed and if any case was filed against them, they would contest the same by selling their agricultural land. On 2.10.2008 at about 8.00 A. M. one Uma Shankar, resident of the same village informed the informant on his mobile phone that his sister had been burnt by her matrimonial relatives on which he along with his neighbours rushed to the matrimonial home of his sister in village-Roochan Manikpur and on reaching there, he found his sister lying on the ground and groaning on account of severe burn injuries. She while groaning told him that her husband Atul, mother-in-law Smt. Asha and maternal grand mother of Atul, Smt. Ramveti had stopped giving her food for the last three days on account of non-fulfilment of the alleged demand of motorcycle and when she got ready to go to her parental home, all three of them sprinkled kerosene oil on her and set her ablaze. The informant took his sister from her matrimonial home to the District Hospital, Firozabad and got her admitted there for treatment of her burn injuries, where her injuries were examined by P. W. 11 Dr. V. P. Kaushik who after examining her injuries at 11.30 A. M. , prepared injury report (Ext. Ka 12) and on the same day at about 4.20 P. M. her dying declaration (Ext. Ka 2) was recorded before P. W. 5 Sant Das Pawar, Naib Tehsildar, Firozabad. On the same day, i. e. 2.10.2008 considering the serious nature of the injuries received by Vandana, she was referred to Sri Ram Hospital, Agra, where she died on 8.10.2008. His sister's husband, Atul, mother-in-law Smt. Asha and Atul's maternal grand mother Ramveti, who resided in the neighbourhood burnt his sister Vandana on account of non-fulfilment of the alleged demand of motorcycle as additional dowry. After cremating her sister Vandana he had gone to the police station for lodging F. I. R. On the basis of the written report (Ext. Ka 1) of the incident given by him at P. S.-Nagla Khagar, district-Firozabad Case Crime No. 240 of 2008, under Sections-498A, 304B, 302/34 IPC and Section-4 of D. P. Act was registered against A1 Atul Kumar, A2 Smt. Asha and Smt. Ramveti, maternal grand mother of Atul and corresponding G. D. entry vide rapat No. 29, carbon copy whereof was brought on record and recorded as Ext. Ka 10 was prepared by P. W. 9 Constable Roop Singh. Information of the death of Smt. Vandana in Sri Ram Hospital, Agra was given at P. S.-Hari Parwat, Agra in the prescribed format No. 9A/2 which was recorded in G. D. vide rapat No. 10, at 6.30 Hrs. on 9.10.2008 and on the same day an application was received at P. S. Hari Parwat to the effect that Smt. Vandana who was admitted in Sri Ram Hospital, Agra on 2.10.2008 died during treatment on 8.10.2008 at 6.50 Hrs. and her dying declaration has been recorded and inquest proceedings on the dead body were to be conducted. On the basis of the aforesaid information P. W. 7 Dharmendra Singh, A. C. M.-III, Agra conducted the inquest on the dead body of Smt. Vandana on 9.10.2008 and prepared the inquest report and other related documents (Ext Ka 4 to Ext. Ka 7) and dispatched her dead body to mortuary for conducting post mortem. The post mortem on the dead body of the deceased Vandana was conducted on 9.10.2008 at about 3.00 P. M. by P. W. 8 Dr. Satyendra Kumar at District Hospital, Agra who also prepared her post mortem report. Dr. Satyendra Kumar. The investigation of the case was entrusted to P. W. 10 Ram Mohan Singh who at the relevant point of time was posted as Circle Officer in Shikohabad, who reached the place of occurrence on 11.10.2008 and after inspecting the place of occurrence prepared site plan (Ext Ka 11) and after completing the investigation submitted charge-sheet (Ext. Ka 13) against the appellants before the C. J. M., Firozabad. Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, the case was committed for trial to the court of the Sessions Judge, Firozabad where it was registered as S. T. No. S. T. No. 534 of 2009 from where it was made over for trial to the court of Additional Sessions Judge, Court No. 1, Firozabad, who on the basis of the material on record and after hearing the prosecution witnesses as well as the accused on the point of charge, framed charge under Sections-498A, 304 B IPC and Section-4 of D. P. Act. Alternative charge under Sections-302/34 IPC was also famed against them. The accused abjured the charge and claimed trial.
(3.) The prosecution in order to prove its case examined P. W. 1 Hari Om Sharma, brother of the deceased and P. W. 2 Ram Kanti, mother of the deceased and P. W. 3 Ram Prakash, father of the deceased, P. W. 4 Lajjawati and P. W. 7 Dharmendra, neighbour of the appellants as witnesses of fact while P. W. 6 Dr. Ajay Agarwal, Emergency Medical Officer of S. N. M. Hospital, Firozabad who had examined the injuries of the deceased on 2.10.2008 and prepared and proved her injury report as Ext. Ka 12. P. W. 7 Dharmendra Singh, A. C. M.-III who had conducted the inquest on the dead body of Smt. Vandana and prepared and proved her inquest report and other related documents namely letter addressed to R. I., chalan lash, letter addressed to C. M. O. and photo lash as Exts. Ka 4, 5, 6 and 7 respectively and had thereafter dispatched the dead body of the deceased to the mortuary for conducting post mortem report, P. W. 8 Dr. Satyendra Kumar who had conducted the post mortem on the cadaver of Smt. Vandana and prepared and proved her post mortem report as Ext. Ka 8. P. W. 9 constable Roop Singh who had prepared and proved the check F. I. R. and the corresponding G. D. entry vide rapat no. 29 Ext. Ka 10, P. W. 10 Ram Mohan Singh, Dy. Superintendent of Police, Investigating Officer of this case, P. W. 11 Dr. V. P. Kaushik who had examined the injuries of the deceased on 2.10.2008 at about 11.30 A. M. in district hospital, Firozabad prepared and proved her injury report as Ext. Ka 12, P. W. 12 Sri Sundar Lal, the second I. O. of the case who had taken over investigation from P. W. 10 Ram Mohan Singh and had after completing the investigation submitted chargesheet against the accused, P. W. 5 Sant Das Pawar, Naib Tehsildar before whom dying declaration of the deceased was recorded on 2.10.2008 and P. W. 6 Dr. Ajay Agarwal who had certified that the deceased at the time of recording her dying declaration was in a fit mental fit condition and was able to speak were produced as formal witnesses. The accused in their statements recorded under Section 313 Cr. P. C. denied the prosecution case and alleged false implication and pleaded that the so-called dying declaration of the deceased was forged and fabricated by the police as Vandana after sustaining severe burn injuries was throughout un-conscious and was not in a position to talk. The defence also examined D. W. 1 Santosh Kumar and D. W. 2 Ashok Tiwari. D. W. 1 Santosh Kumar who is the neighbour of the appellant, had deposed that he had rushed to the house of Ram Naresh on hearing noise on 2.10.2008 at about 8.00 A. M. and on reaching his house, he saw Vandana lying in a burnt condition in the courtyard of the house and was conscious and when he enquired from her about the cause of the burn injuries, she told him that her clothes had caught fire while cooking. D. W. 2 Ashok Tiwari another neighbour of the appellants also deposed in identical terms.;