# Jai Kishan @ Bablu v. State of U.P - **Citation:** (2023) 6 ILRA 122 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2023-05-29 - **Case number:** Criminal Appeal No. 3963 of 2013 - **Bench:** Dr. Kaushal Jayendra Thaker, Shiv Shanker Prasad - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-kishan-bablu-v-state-of-u-p-50438 - **Pages:** 19 ## Headnote Criminal Law - Indian Penal Code, 1860 - Sections 302/120B - Punishment for murder - Code of Criminal Procedure, 1973 - Sections 161 & 313 - Appeal against conviction - Life imprisonment - As per FIR, accused had illicit relationship with co-accused - Accused brother encourage him for such relationship and he along with co-accused poured kerosene oil on deceased and set her on fire - Charge-sheet submitted - Charges framed - Appellant no.1 St.d that on date of incident, he was not at home and when he returned on next day, he found that she has been burnt and his family members have taken her to hospital - No direct evidence connecting appellants with commissioning of crime, as testimony of star independent witness P.W.-3 can't be reliable as he was aged about 5 years - Held, trial court rightly recorded that deceased was burnt upto 70% and it was due to kerosene oil being poured on her and set her on fire - Accused brother got benefit of doubt - Police have recovered kerosene oil canister, matchbox, semi burnt clothes from the spot - No evidence available to suggest deceased committed suicide by herself - P.W.-1 and P.W.-2 were aware of relationship, and corroborated the same version as unfolded in FIR - P.W. -3 in his testimony has specifically implicated his father and supported by P.W.-1 and P.W.-2 - After incident P.W.-3 went to his maternal grandmother - Strong motive to kill the deceased. (Para 1, 4, 8, 11, 14, 17, 47, 49, 50, 52, 53, 62) Criminal Appeal dismissed. (E-13) List of Cases cited: ## Text _Characters 0–39,829 of 65,031. This is a partial read: ask again with offset=39829 for what follows._ 122 INDIAN LAW REPORTS ALLAHABAD SERIES incarcerated 14 years as per the policy of Government as the death cannot be said to be so gruesome that he will have to serve life in jail. ---------- (2023) 6 ILRA 122 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 29.05.2023 BEFORE THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J. THE HON'BLE SHIV SHANKER PRASAD, J. Criminal Appeal No. 3963 of 2013 with Criminal Appeal No. 4249 of 2013 Jai Kishan @ Bablu ...Appellant Versus State of U.P. ...Respondent Counsel for the Appellant: Sri D.S. Pandey, Sri Gajendra Kumar Gautam, Sri K.K. Srivastava, Sri Mohammad Arshad Khan, Sri Saurabh Gour, Sri R.V. Pandey, Sri Sanjay Kumar Yadav, Sri Vikash Chandra Tiwari Counsel for the Respondent: Govt. Advocate, Sri Sunil Kumar Dubey Criminal Law - Indian Penal Code, 1860 - Sections 302/120B - Punishment for murder - Code of Criminal Procedure, 1973 - Sections 161 & 313 - Appeal against conviction - Life imprisonment - As per FIR, accused had illicit relationship with co-accused - Accused brother encourage him for such relationship and he along with co-accused poured kerosene oil on deceased and set her on fire - Charge-sheet submitted - Charges framed - Appellant no.1 St.d that on date of incident, he was not at home and when he returned on next day, he found that she has been burnt and his family members have taken her to hospital - No direct evidence connecting appellants with commissioning of crime, as testimony of star independent witness P.W.-3 can't be reliable as he was aged about 5 years - Held, trial court rightly recorded that deceased was burnt upto 70% and it was due to kerosene oil being poured on her and set her on fire - Accused brother got benefit of doubt - Police have recovered kerosene oil canister, matchbox, semi burnt clothes from the spot - No evidence available to suggest deceased committed suicide by herself - P.W.-1 and P.W.-2 were aware of relationship, and corroborated the same version as unfolded in FIR - P.W. -3 in his testimony has specifically implicated his father and supported by P.W.-1 and P.W.-2 - After incident P.W.-3 went to his maternal grandmother - Strong motive to kill the deceased. (Para 1, 4, 8, 11, 14, 17, 47, 49, 50, 52, 53, 62) Criminal Appeal dismissed. (E-13) List of Cases cited: 1. Mekala Sivaiah Vs St. of Andhara Pradesh reported in 2022 SCC Online SC 88, (Para 25 and 26) 2. Ram Kumar Madhusudan Pathak Vs St. of Guj. reported in 1998 0 Supreme (SC) 836 3. Arulvelu & anr. Vs St. Rep. By the Public Prosecutor & anr. reported in 2009 0 Supreme (SC) 1628 4. Ram Nath Nonia Vs St. of Bihar reported in 1999 0 Supreme (Pat) 778 5. P. Ramesh Vs St. Represented by Inspector of Police reported in (2019) 20 SCC 593, (Para 14 to 16) (Delivered by Hon'ble Shiv Shanker Prasad, J.) 1. Both the criminal appeals are directed against the impugned judgment 6 All. Jai Kishan @ Bablu Vs. State of U.P. 123 dated 20th August, 2013 passed by the Additional Sessions Judge, Court No.2, Ghaziabad in Sessions Trial No. 1476 of 2011 (State Vs.Jaikishan @ Bablu and 2 Others), arising out of Case Crime No. 112 of 2011, under Sections 302/120B I.P.C., Police Station-Bahadurgarh, DistrictGhaziabad, whereby accused-appellants Jaikishan @ Bablu and Smt. Anita have been convicted for an offence Section 302 I.P.C. and have been sentenced to life imprisonment along with Rs.10,000/- fine for commissioning of offence under Section 302.; in default of payment of fine they have to further undergo one year additional imprisonment, whereas the other co-accused Kuberdutt has been acquitted for the offence under Sections 302/120B I.P.C. 2. Since the basic facts, issues and the judgment of the trial court are similar and common, both criminal appeals have been clubbed and heard together and the same are being decided by this common judgment. 3. Heard Sri Mohammad Arshad, learned counsel for the accused-appellants and learned counsel for the State. Sri Sunil Kumar Dubey, learned counsel for the informant was not present at the time of hearing of both the appeals. 4. The present case proceeds on a written report of the informant/P.W.-1 Niranjan Sharma (Exhibit-ka-1), which has been scribed by Tarun Sharma (P.W.-2) dated 20th July, 2011, wherein it has been stated that he solemnized the marriage of his daughter Rekha with Jai Kishan alias Bablu son of Radhe Shukla village Bhadsyana about 14 years ago. Some time ago, the accused-appellant Jai Kishan alias Bablu started establishing illicit relationship with accused-appellant Anita wife of Hari Prakash Sharma village Bhadsyana police station Bahadurgarh, who is a peon in Sarvitaishi Inter College Bhadsyana. Daughter of the informant Rekha used to repeatedly object her husband (accused-appellant Jaikishan) for having illicit relations with accusedappellant Anita. On that objection, her husband used to beat her time and again. It has further been stated that accused Kuber Dutt, Rekha's brother-in-law i.e. Jeth used to encourage his brother i.e. Jaikishan for such illicit relationship. On 19th July, 2011 at 11:00 p.m. (night), as per the conspiracy hatched by accused Kuber Dutt, the accused-appellants Jaikishan and Anita, they poured kerosene on Rekha and set her on fire, due to which Rekha died. Information about the death of the deceased Rekha was given to the informant on telephone by the Village Pradhan, Mr. Satish Fauji and he has informed him that in-laws of the deceased Rekha took her in burnt condition to the Hospital at Meerut. On receiving the said information, the informant reached the Meerut Medical College/Hospital where he was informed that the deceased was referred to the hospital at Delhi. When they were on the way to Delhi by Ambulance along with deceased Rekha for her treatment, she succumbed to death. Informant reached the Police Station for lodging the FIR along with Ambulance wherein the dead body of the deceased was kept. 5. Pursuant to the above written report dated 20th July, 2011, a FIR (Exhibitka/10) came to be registered as Case Crime No. 112 of 2011 under Sections 302, 120-B I.P.C. at Police Station-Bahadurgarh, District-Meerut. After lodging of the FIR, the first Investigating Officer Sub-Inspector Ram Prasad Sharma (P.W.-4) proceeded 124 INDIAN LAW REPORTS ALLAHABAD SERIES and after perusing and making entry in the Case Diary about the written report and chik FIR, he reached the place where the Ambulance was standing. He got the inquest of the body of the deceased prepared (Exhibit-ka/2) in the presence of inquest witnesses, who have been appointed by him. After getting the dead body sealed and making all necessary formalities like preparing of documents, draft of seal, photo lash, police form-13, letters wrote to Chief Medical Officer and R.I. P.W.4 got the dead body sent to the Mortuary. After that P.W.-4 has recorded the statements of P.W.1 and P.W.-2 and went to the place of occurrence along with P.W.-1. P.W.-4 has prepared the site plan (Exhibit-ka/9), whereafter he has collected plastic jar (jerkin) containing kerosene oil, a matchbox, some matches, some pieces of clothes of deceased Rekha which she had worn at the time of incident from the place of occurrence and prepared recovery memo (Exhibit-ka/10) in the presence of witnesses Desh Deepak, Sushil Kumar, Dinesh Kumar. He has also recorded their statements. P.W.-4 has also arrested the accused-appellants Jaikishan and Anita and their statements were also recorded. 6. The autopsy of the body of the deceased Rekha was conducted on 20th July, 2011 at 05:00 p.m. by Autopsy Surgeon Dr. Jitendra Kumar Tyagi (P.W.-6) and in the autopsy report (Ex.Ka-7), P.W.-6 has found superficial to deep burn injuries about 70% on the body of the deceased. He has opined that the cause of death of the deceased is sock due to following ante mortem burn injuries: "1. Singeing of hair present. 2. Line of redness present. 3. Superficial to deep burn present. 4. Areas spared-lower back, both foot, half of lower extremities, 5. About 70% to burn area is present. 6 Foley's catheter is present in place." 7. On 11th August, 2011, SubInspector Sanjeev Kumar (P.W.-7) took over the further investigation after P.W.-4 and has recorded the statement of HCP Netrapal Singh. After conclusions of the statutory investigation under Chapter XII Cr.P.C.. P.W.-7 has submitted the chargesheet (Exhibit-ka/14) against the accusedappellants. 8. On submission of charge-sheet, the concerned Magistrate took cognizance in the matter and committed the case to the Court of Sessions by whom the case was to be tried. On 16th March, 2012, the concerned Court framed charges under Sections 302/34 and 120-B I.P.C. against the accused-appellants Jaikishan and Anita and co-accused Kuberdutt. The charges were read out and explained to the accusedappellant, who denied the accusation and demanded trial. 9. The trial started and the prosecution has examined seven witnesses, who are as follows:- 1 Niranjan Sharma (informant/complainant) PW1 2 Tarun Sharma (scriber of the written report) PW2 3 Tanu PW3 4 Sub-Inspector Ram Prasad Sharma (first Investigating Officer) PW4 6 All. Jai Kishan @ Bablu Vs. State of U.P. 125 5 Head Constable-06 Ram Charan Singh PW5 6 Dr. Jitendra Kumar Tyagi (Autopsy Surgeon) PW6 7 Sub-Inspector Sanjeev Kumar (Investigating Officer, who submitted the charge-sheet) PW7 10. The prosecution in order to establish the charges levelled against the accused-appellant has relied upon following documentary evidence, which were duly proved and consequently marked as Exhibits: 1 Written report dated 20th July, 2011 Ex.Ka.-1 2 Inquest report dated 20th July, 2011 Ex.Ka.-2 3 FIR dated 20th July, 2011 Ex. Ka.-10 4 Recovery memo of plastic jar of kerosene oil, matchbox, matches, pieces of clothes of the deceased Ex.Ka/10A 5 Post-mortem/autopsy report dated 20th July, 2011 Ex.Ka.-13 6 Documents relating to paper no.33, draft of seal, photo lash, police form 13, letters to CMO and RI Ex. Ka.-3 to 8 7 Charge-sheet Ex.Ka/14 8 Site plan with index Exhibit-ka/9 11. After recording of the prosecution evidence, the incriminating evidence were put to the accused for recording his statement under section 313 Cr.PC. In their statements recorded U/s 313 Cr.P.C. the accused-appellants including co-accused Kuber Dutt denied his involvement in the crime. Accused appellants specifically stated before the trial court that they have been falsely implicated in this case. The accused-appellant Jaikishan @ Bablu has stated that on the date of incident, he was not at home and when he returned on the next day of the incident, he came to know that his wife has been burnt and his family members have taken her to the hospital. Two witnesses namely, Jeetpal as DW-1 and Viresh Kumar as DW-2 were examined by the defence. 12. On the basis of above evidence adduced during the course of trial, the court below after relying upon the documentary as well as oral evidence adduced by the prosecution and after recording categorical findings of facts has come to the conclusion while passing impugned judgment of conviction that the prosecution has been able to fully prove that the accusedappellants have committed the offence of murder of deceased Rekha. As such, the trial court has found the offence under Sections 302 I.P.C. to have been committed by both the accused-appellants and the trial court has not found the offence under Sections 302/120-B I.P.C. against the coaccused Kuber Dutt. The trial court has accordingly convicted the accusedappellants under Section 302 of the Indian Penal Code and sentenced him life imprisonment with fine of Rs. 10, 000/- for the offence under Sections 302 I.P.C. 13. Being aggrieved with the impugned judgment and order of conviction passed by the trial court, the accused-appellant has preferred the present jail appeal. 14. The submission of the learned counsel for the accused-appellants is that 126 INDIAN LAW REPORTS ALLAHABAD SERIES there is no direct evidence connecting the accused-appellants with the commissioning of the crime as the testimony of star independent witness Tanu (P.W.-3) cannot be said to be reliable as at the time of incident he was aged about 5 years and was under the custody of his maternal grandfather; the motive is absolutely weak; the prosecution case rests on circumstantial evidence in which the accused-appellants have been implicated only on the basis of suspicion that there were illicit relationship between both the accused-appellants and no evidence exist to hold the accusedappellants guilty. 15. It is further submitted that the trial court has relied upon the statement of Tanu which was recorded by the Investigating Officer after four days of the incident in which there is no whisper of the version as unfolded in the FIR. It is further submitted that the accused-appellants have not committed the alleged offence, whereas the deceased has committed suicide by pouring kerosene oil on herself and set her on fire, as being a loose temper lady, she used to quarrel with the accused-appellant Jaikishan due to suspicion of his having illicit relationship with accused-appellant Anita. Qua the aggressive conduct of the deceased due to suspicion of accusedappellant having illicit relationship with accused-appellant Anita, he had made an application before the concerned Police Station. It is then submitted that since the marriage of the accused-appellant Jaikishan was solemnized with the deceased 14 years ago, there was no occasion for the accusedappellant to commit the murder of the deceased. It is also submitted that the conviction and sentence passed by the trial court against the accused-appellant is too severe and without considering the evidence available on record. It is next submitted that the accused-appellant has no criminal antecedents to his credit except the present and he was on bail during the course of trial. 16. On the cumulative strength of the aforesaid, learned counsel appearing for the appellants submits that in view of the inconsistency in the statements of the prosecution witnesses; the prosecution has failed to establish the guilt of accusedappellant beyond reasonable doubt based on circumstantial evidence. As such the sentence is excessive and ought not be sustained and the order of sentence must be modified taking lenient view in the matter. 17. Per contra, Mr. N.K. Sharma, learned A.G.A. for the State, supporting the judgment and order of conviction, submits that the first information report has been lodged promptly naming the accused person; there is clinching evidence to support the prosecution's case; the incident in which the deceased is alleged to have been murdered by the accused-appellants Jaikishan @ Bablu and Anita at about 11:00 p.m. which is alleged to have been witnessed by the son of accused-appellant Jaikishan and deceased Rekha (P.W.-3); P.W.-3 is star eye witness of the alleged incident; the place of occurrence has not been disputed by the defence; and the accused-appellants have strong motive or intention and the same has also been explained by the evidence of prosecution. Therefore, the prosecution has proved the charges levelled against the accusedappellants beyond reasonable doubt. 18. To bolster the aforesaid submissions, learned A.G.A. has invited the attention of the Court to the latest judgment of the Apex Court in the case of Mekala Sivaiah vs. State of Andhara Pradesh 6 All. Jai Kishan @ Bablu Vs. State of U.P. 127 reported in 2022 SCC Online SC 887, whereby the Apex Court in paragraph nos.25 and 26 has held as follows: "25. The facts and evidence in present case has been squarely analyzed by both Trial Court as well the High Court and the same can be summarized as follows: i. The prosecution has discharged its duties in proving the guilt of the appellant for the offence under Section 302 I.P.C. beyond reasonable doubt. ii. When there is ample ocular evidence corroborated by medical evidence, mere non-recovery of weapon from the appellant would not materially affect the case of the prosecution. iii. If the testimony of an eye witness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected merely because certain insignificant, normal or natural contradictions have appeared into his testimony. iv. The deceased has been attacked by the appellant in broad daylight and there is direct evidence available to prove the same and the motive behind the attack is also apparent considering there was previous enmity between the appellant and PW-1. 26. Having considered the aforesaid facts of the present case in juxtaposition with the judgments referred to above and upon appreciation of evidence of the eyewitnesses and other material adduced by the prosecution, the Trial Court as well as the High Court were right in convicting the appellant for the offence under Section 302 I.P.C. Therefore, we do not find any ground warranting interference with the findings of the Trial Court and the High Court." (Emphasis added) 19. Mr. N.K. Sharma, learned A.G.A. for the State has also placed reliance upon the following judgments of the Apex Court and Patna High Court: (a) Ram Kumar Madhusudan Pathak vs. State of Gujurat reported in 1998 0 Supreme (SC) 836; (b) Arulvelu & Anr. Vs. State Rep. By the Public Prosecutor & Anr. Reported in 2009 0 Supreme (SC) 1628; and (c) Ram Nath Nonia vs. State of Bihar reported in 1999 0 Supreme (Pat) 778. On the cumulative strength of the aforesaid submissions, learned A.G.A. submits that as this is a case of direct evidence, the impugned judgment and order of conviction does not suffer from any illegality and infirmity so as to warrant any interference by this Court. As such the present jail appeal filed by the accused appellants who committed heinous crime by murdering the deceased is liable to be dismissed. 20. We have examined the respective contentions urged by the learned counsels for the parties and have perused the records of the present appeal including the lower court records as also the impugned judgment of conviction. 21. The only question requires to be addressed and determined in this appeal is whether the conclusion of guilt arrived at by the learned trial court and the sentence awarded is legal and sustainable in law and suffers from any infirmity and perversity. 128 INDIAN LAW REPORTS ALLAHABAD SERIES 22. Before entering into the merits of the case set up by the learned counsel for the accused-appellants and the learned A.G.A. qua impugned judgment and order of conviction passed by the trial court, it is desirable for us to briefly refer to the statements of the prosecution witnesses. 23. P.W.-1/informant/complainant, who happens to be the father of the deceased Rekha in his examination-in-chief has stated that deceased Rekha was his daughter. Her marriage was solemnized with accused Jaikishan @ Bablu before 14 years of incident. The character of the accused-appellant Jaikishan @ Bablu was very bad. He had illicit relations with accused-appellant Anita. She is wife of Hari Prakash, who is working as a peon at Sarva Hitaishi Inter College, Bhadsyana. Rekha and Jaikishan had relations earlier. Later when Jaikishan had an illicit relationship with Anita, Jaikishan used to beat Rekha after consuming alcohol. Rekha told Jaikishan not to go near Anita and this witness also told Jaikishan about the said matter, on which he had beaten Rekha in front of him. Accused Kuber Dutt supported Jaikishan in continuance of such illicit relationship. It was Kuber Dutt who got Rekha killed in collusion with. The accused Kuber Dutt was the Jeth (brotherin-law of the deceased), who used to encourage Jaikishan. He used to torture his daughter Rekha. 24. In the Court this witness has identified the accused persons, namely, Anita, Jaikishan alias Bablu, who conspired with Kuber Dutt and set Rekha on fire by pouring kerosene oil at around 11.00 pm on 19-7-11 in the night. Rekha was tied with a rope and was set on fire. The village head (Gram Pradhan) Satish Fauji informed the informant/P.W.-1 about Rekha's burning through telephone. The informant/P.W.-1 told Satish Pradhan how much Rekha was burnt on which Satish Pradhan made Rekha talk on the phone and in reply Rekha said that she had completely burnt. 25. This witness has further stated that Rekha was assaulted by the accused persons on 22-5-11 prior to the incident due to which she had come to him, then she went to Bahadurgarh Police Station on 23rd May, 2011 and gave a written report for lodging of the FIR against the accused persons for torturing and assaulting her on which the FIR was registered, the signatures appended thereon have been proved by the informant/P.W.-1 before the trial court. On 24-5-2011, the informant/P.W.-1 got Rekha medically examined at Medical Garh Hospital and the photo copy of the medical examination is on record. Then the deceased went to the house of informant/P.W.1 and after that a meeting was held between both the family members and the Police in which the accused Kuber Dutt took responsibility that accused Jaikishan alias Bablu would never go to accused Anita, resultantly a settlement has been arrived at bearing Faisalanama N.C.R. No. 41 of 2011, a photo copy of the same is on record as Paper No. 11A. When it was read out to the witness, the witness said that it was the same. 26. In the cross -examination, this witness has stated that in the Meerut Medical Hospital, he did not met with accused Kuber Dutt and the people of the village fled after seeing him. The informant/P.W.1 met his daughter Rekha, where she told that the accused Jaikishan, Anita and Kuber set her on fire. Rekha also told that first she was tied on the cot, then accused Anita poured kerosene oil on her 6 All. Jai Kishan @ Bablu Vs. State of U.P. 129 and accused Jai Kishan lit the fire. This was disclosed to him on 20-7-11 at 7.30 a.m. in the Medical Hospital, where Rekha was admitted. In the cross-examination, this witness has also stated that his statement was recorded by the Inspector on 20th July, 2011 at 12:00 noon. 27. P.W.-2 Tarun, who happens to be the real brother of the deceased and son of informant/P.W.1, in his examination-inchief has stated that Rekha (deceased) was married 14 years before her murder. His sister Rekha was kept well after marriage for one or two years, after that a woman named Anita came in the village, whose husband's name is Hari Prakash, who is a peon in Sarva-Hitaishi Inter College. Rekha's husband, namely, Jai Kishan alias Bablu had illicit relations with accused Anita. His sister Rekha repeatedly told Jaikishan not to meet Anita on which her husband Jaikishan alias Bablu and brotherin-law Kuber Dutt used to beat his sister. Her brother-in-law Kuber also used to abuse her badly saying that Rekha should be killed and would keep Anita in the house in her place. On hearing the illicit relationship of Jai Kishan with Anita, this witness along with other family members including (informant/P.W.-1) tried to convince Jai Kishan not to meet Anita and they also complained to Kuber Dutt about the same. 28. This witness has further stated that before this incident, the accused persons Jaikishan, Kuberdutt and Anita had beaten his sister Rekha badly and thrown her out from their house in relation to which Rekha had informed the Police and Rekha's medical was also done. Rekha had given the written information on 23-5-11. This witness has also attested the signatures of Rekha appended on NCR. 29. This witness has further stated that after some days, on the advice of some respectable person and relatives, this witness's side and accused persons reached on an agreement, wherein the accused Kuberdutt assured that such thing would not happen in the future and it was his responsibility. This witness has also verified the photocopy of the compromise entered into between the parties arising out of the N.C.R. lodged by the deceased Rekha which is also on record. 30. This witness has further stated that they went to Meerut Medical Colelge from their home. His sister Rekha was found in the hospital in a serious burnt condition. She told that her husband Jaikishan alias Bablu and brother-in-law Kuber Dutt and Anita were set her on fire. This witness has identified the accused persons in the Court and has stated that they killed his sister Rekha after setting her on fire. This witness has further stated that the doctor told them that Rekha was seriously burnt due to which they refused to admit her and advised to take her to Delhi. But the deceased was admitted due to decent approach of Jai Kishan and Kuber Dutt in the hospital, after that Doctor told that the deceased has been referred to Delhi. After referring Delhi, they went to Delhi with Rekha but Rekha succumbed to severe burns on the way. He had written the report of the incident at the behest of his father Niranjan Sharma (informant/P.W.-1). 31. This witness has further stated that all the three accused had murdered his sister Rekha as Jaikishan alias Bablu had illicit relations with Anita and the refusal of Rekha to keep Anita in her house resulted in her murder. 32. P.W.-3 Tanu, who happens to be the son of the deceased Rekha and accused 130 INDIAN LAW REPORTS ALLAHABAD SERIES Jaikishan @ Bablu, has stated in his examination-in-chief that he was staying with his maternal grand-father (Nana) at Nangla Karan. He had been living at the place of maternal grand-father and maternal uncle since his mother's death. His mother's name was Rekha. His mother died many days ago. His mother died in the fire. His father, his uncle and Anita aunty had set his mother on fire. This witness has identified the accused persons, Jaikishan alias Bablu, Tau Kuber and Anita in the Court. 33. This witness has stated that his father jumped into the house and opened the latch, then Anita Aunty and Tau Kuber entered, injected his mother in the arm and then all three together tied up her and poured kerosene oil on her, then his father took out a matchbox from his pocket and set her on fire. At that time he was there he asked them why were they burning his mother, then his father hit him in the house due to which he sustained injuries on his head that is why he cried and shouted, then the people of the neighborhood came, then his father took him in his lap to a Thakur's house. He did not know the name of that Thakur. He kept him locked up in the same Thakur's house. On the next day in the evening, sons of his uncle and neighbour came, they brought him out from that house and on the way his maternal uncle met him at Dehra Kuti and from there he went to maternal uncle's house with him. Since then he has been living with maternal uncle and maternal grandfather. 34. This witness has further stated that his father (accused Ramkishan @ Bablu) used to beat his mother (deceased Rekha). His mother used to tell his father not to go to Anita aunty's house, on this his father used to beat his mother. His father used to go to Anita aunty's house and stay there and his father did not live with his mother. His father used to come to their house in drunken condition and used to beat his mother. His maternal grand-father and uncle used to convince his father and accused Kuber Dutt, but such act of his father did not stop. He also asked his father to live at Hapur with Anita and leave his mother. This witness has also stated that he has disclosed all the facts to the Inspector, which he has stated in his testimony. 35. This witness has also stated that his father used to work as a driver of bus and truck. He, his mother and his sister lived at home. His father used to go out for work on a day and come home on the next day. When his mother was burnt by the accused-persons, his mother and he were in the house at that time. His mother cooked food on that day, he ate it but his mother (deceased) did not eat. His father had killed his mother in the evening. His mother cooked food at 9 o'clock after that his father came. This witness had finished eating when his father came. He could not tell as to when his father came. He has further stated that the door of the house was closed with latch. His father (accusedappellant Jaikishan @ Bablu) entered into the house by jumping across the wall of which no sound was raised. He could not point out the height of the wall from which his father jumped. At that time he was lying with his mother on the cot but he was not sleeping. 36. This witness has further stated that on the date of incident, his father was at the place of accused Anita, so they did not make any phone call to him on that day. Co-accused persons Anita and Kuber Dutt entered through the door when his father (accused-appellant Jaikishan) opened the door. On the date of incident the deceased 6 All. Jai Kishan @ Bablu Vs. State of U.P. 131 i.e. his mother had gone to Pradhan's place, when his father had beatten her. He was there in the house when his mother was burning. His mother was wearing salwar suit at that time. He did not know the colour of her mother's Salvar suit. There is a wall between the place where food was cooked and where they laid down. While his mother was cooking, at that time he was there with his mother. 37. In the cross-examination, this witness has stated that earlier he had given his statement to the Police at Dehrakuti, 4 to 5 days after his mother was burnt. The police station is at Dehra Kuti itself. His maternal uncle Satish had brought him for giving his statement,. He has disclosed the Police that his father had entered the house by jumping. He has also disclosed the Police that his uncle i.e. accused Kuber was present there. He has further stated that his father had assaulted his mother in the evening on the date of incident. Even before that they used to beat her. The deceased was also beaten an hour or two of the burning. Bricks were hit on the back. He has disclosed the Inspector about the beating in the evening. His mother had also disclosed to his maternal grand-father after she was beaten. When his father was beating his mother, the people of the locality had gathered there. 38. This witness has further stated that before the incident of burning, his father did not come to his house for two-three months. Before two to three days, his father had beaten his mother and after that on the date of incident in the evening. He did not know whether his mother and his father had any meeting in these 2 to 3 days or not. His father did not come to his house 2 to 3 days before the date on which his mother was burnt. His father came to uncle's house i.e. accused Kuber Dutt. Two to three days before when his father came to his uncle's house, he had beaten his mother and this fact has been disclosed by him to the Inspector. This witness has denied that he stayed with his aunt Usha for several days after the incident. He has also denied that the police met him at his aunt Usha's place after the incident. He did not go with the police where his mother was burnt. 39. This witness has also stated that his mother fainted when his uncle (Tau i.e. accused Kuber Dutt) gave injection to her. The injection was given in front of him. His uncle Kuber Dutt kept the vial from which the injection was filled in his pocket. After getting the injection, his mother did not speak, these people had removed the clothes spread on the cot to which the mother was tied. 40. This witness has denied that he did not see the incident about which he has given the statement. He has also denied that his mother was alone at home at that time and burnt herself while cooking. This witness has also denied that his maternal grand-father had demanded Rs. Ten lacs and on refusal of the same, he has falsely implicated. He has also denied that because of staying with his maternal uncle, he was giving false testimony under their pressure. 41. P.W.-4 Sub-Inspector Ramprasad Sharma, who has been adduced by the prosecution, has investigated the case. This witness has stated in his cross examination that the deceased used to live with her family. The house of accused Kuber Dutt was different. The witness Tanu did not disclose him that his father jumped into the house and opened the latch, then accused 132 INDIAN LAW REPORTS ALLAHABAD SERIES Anita and his uncle Kuber entered, his uncle Kuber injected his mother, then all three together tied his mother and pured kerosene on her, then father took out a matchstick and struck on matchbox, set her on fire. P.W.-3 Tanu did not disclose him that at the time of setting her on fire, his father had hit him on ground and he did not disclose him whether he sustained any head injury or a lump had come out on his head. This witness has also not disclosed that when he cried and shouted, the people of the neighborhood came and his father picked him up and took him to Thakur's house. P.W.-3 has also not disclosed him that he was locked up in a Thakur's house. P.W.-4 has denied that his maternal uncle brought him for giving his statement. This witness has stated that P.W.-3 has not disclosed him about the presence of accused Kuber Dutt at the time of the incident. P.W.-3 has not disclosed him about accused Kuber setting the deceased on fire and his father hitting the deceased with bricks a couple of hours before the incident. Head Constable-06 Ram Charan Singh has been adduced as P.W.-5. This witness has prepared the chik FIR and proved the same in the Court. 42. Autopsy Surgeon Dr. Jitendra Kumar Tyagi who has conducted the autopsy of the deceased Rekha has been adduced as P.W.-6. In his examination-inchief he has stated that the age of the deceased was about 35 years. During the external examination of the body of the deceased Rekha, P.W.-6 has found that the deceased was of normal structure and stiffness after death was present all over the body; her eyes were congested, the skins of nose, ears and mouth of the deceased were burnt; the burn existed superficial to deep; there was no fracture; the hair of the head of the deceased was the distressed; line of redness was present; some part was superficial burn and some was deep burn; total about 70 percent of the body was burnt; the parts that were not burnt were the lower part of the waist and the anus, both the feet and the lower half of both the legs. A urine pipe was present in the dead body. 43. P.W.-6 on internal examination of the body of the deceased has found that the scalp and membranes were congested; the brain and its membranes were also congested; the walls were congested; both the lungs and their pleura were congested; larynx and trachea were also congested and shoot particles were present in it; the bone cord congested; the heart membrane was congested and the heart was full of blood. On the basis of aforesaid examination, P.W.-6 has opined that the cause of death of the deceased was shock due to ante-mortem burn injuries. In the cross-examination, this witness has stated that there was no mark of tying of any rope on the body of the deceased and there was no mark of any assault on her body. 44. Sub-Inspector Sanjeev Kumar has been adduced as P.W.-7, who has also investigated the case after P.W. 5. In his examination-in-chief this witness has stated that on 12th August, 2011, before her death, the deceased lodged an N.C.R. No. 41 of 2011 under Sections 323, 504 and 506 I.P.C. and on that N.C.R. settlement agreement (Faisalanama) was submitted. In the cross-examination, this witness has stated that in the N.C.R. lodged by the deceased, the investigation was conducted by an earlier incumbent. He has stated that it is true that on 22nd May, 2011, an application about the aforesaid incident mentioned in N.C.R. was given by the deceased wherein she claimed that in the presence of respectable persons of the 6 All. Jai Kishan @ Bablu Vs. State of U.P. 133 village, whatever the differences and suspicion, there might be in between the deceased and her husband, came to an end and therefore, she did not want any action against her husband. This witness has submitted the charge-sheet. 45. From the side of defence, Viresh Kumar has been adduced as D.W.-1. In his examination-in-chief this witness has stated that the accused Jaikishan and Kuber Dutt were his neighbours. He was sleeping on his terrace when the deceased died. He had come to the spot after hearing the noise. The time was around 11 to 11.30 in the night, he saw that the deceased was lying burnt. He did not see when she was burning. P.W.-3 Tanu son of accused Jaikishan and deceased disclosed him that his mother got burnt after pouring kerosene and at that time, his father was not at home, as he was on duty. He was a private bus driver. He saw that he goes to drive the bus in the morning and after staying for a night comes the next day in the morning. Accused Kuber Dutt and his wife had gone to get the deceased admitted to the Medical College in Meerut. The next day a panchayat was held in which the family members of the deceased demanded money. 46. Jeet Pal Singh has been adduced as D.W.-2. In his examination-in-chief, this witness has stated that at the time of occurrence he had reached the spot after hearing the noise. He heard that the deceased had set herself on fire. The accused Kuber Dutt and his wife took the deceased to the hospital. In the crossexamination, this witness has stated that he asked P.W.-3 as to how his mother was burnt, in reply he disclosed him that his mother got burnt after pouring kerosene oil on herself. 47. According to the story of the prosecution, in the night of 19th July, 2011, the informant/P.W.-1 was informed on the phone by Satish Fauji, Pradhan of village Bhadsyana that his daughter Smt. Rekha had been burnt by her in-laws at 11:00 p.m. (in the night) and she was taken to Meerut Medical Hospital in burnt condition. On this information, the informant/P.W.-1 went to the hospital to see his daughter where he saw his daughter in a burnt condition and his daughter was burnt up to 70%. Seeing the serious condition, daughter of the informant/P.W.1 was referred from Meerut Hospital to Safdarjung Hospital, Delhi, but she died on the way. On 20th July, 2011 at 11.00 a.m. a written report was lodged at the Police Station against husband of the deceased, namely, Jaikishan @ Bablu, lover of her husband, namely, Anita and her brother-in-law Kuber Dutt. After investigation, the Police has submitted the charge-sheet. 48. On the deeper scrutiny of the oral as well as documentary evidence led during the course of trial as also the judgment of the trial court, we are in full agreement with the categorical findings recorded by the trial court while passing the impugned judgment. The trial court has rightly recorded that according to P.W.-6 Dr. Jitendra Kumar Autopsy Surgeon, the deceased was burnt upto 70%. The deceased was burnt due to kerosene oil being poured on her and being set her on fire. The Police have recovered kerosene oil canister, matchbox, some matches and some semi-burnt clothes from the spot. On the basis of aforesaid facts and circumstances the trial court has opined that the untimely death of deceased Rekha was due to setting her on fire at her in-laws' house by pouring kerosene oil on her.