# Jamshed Khan Revisionist v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 14
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-26
- **Case number:** Criminal Revision No. 3037 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jamshed-khan-revisionist-v-state-of-u-p-ors-45774
- **Pages:** 5

## Headnote

Code,
1973Application u/s 319 -Dying declarationaccusation on husband and father-in -law-not
against the prospective accused-statements of
PW-1and PW-3 -is no avail-as they were not
present on the spot-and statement of Pw-2 do
not corroborates with autopsy report-Application
u/s 319 Cr.P.C. rightly rejected.

Criminal Revision dismissed. (E-9)

Held, Evidence is to be appreciated at this
stage because on the basis of evidence,
recorded, before the Trial court, this application
has been moved. Hence, at that juncture,
evidence is to be appreciated by the Trial court
and
learned
Trial
court
has
appreciated
evidence led before it. Neither evidence of
informant nor of his wife, PW-1 and PW-3, was
6 All. Jamshed Khan Vs. State of U.P. & Ors.
15
of any avail because they were not present on
the spot and testimony of PW-2 of this fact is
that those in-laws, firstly, beaten and injured
the deceased, thenafter, she has been put at
ablaze in which she succumbed due to above
injuries during treatment, but, in autopsy
examination report, there is no anti-mortem
injury, except burn injuries. Hence, contention
of Muskan, PW-2, is not supported by the
autopsy examination report. Therefore, on the
basis of law laid down, by the Apex Court, in the
case of Hardeep Singh (Supra), as above, as
well as discussed by the Trial court in its
impugned order, facts and law placed before it,
have been rightly appreciated by the Trial court
and, thereby, Application, moved, under Section
319 of Cr.P.C., has been rightly rejected. (Para
9)

List of cases Cited:-

## Text

14 INDIAN LAW REPORTS ALLAHABAD SERIES
determined by Motor Accident Claim
Tribunal, wherein, award of compensation
was there. Meaning thereby, this fact that
appellant-revisionist was or was not driver
of above truck on above date, time and
place was adjudicated priorly.

6. PW-1, in his examination-in-Chief,
has categorically said that he was present,
on that date and time on above spot, when
this accident occurred, wherein, driver of
above truck, registration UP 21 N/9471,
driving the same rashly and negligently, did
dash with the motorcycle of Mangu Khan,
resulting him serverly hurt. He was
instantly taken to district hospital, where he
was declared dead. He died owing to above
injuries. This fact is very well there in
examination-in-Chief. Whereas, no cross
questioning is on this fact that it was not a
death owing to above accident. The same is
the situation with P.W.-2. Investigating
Officer has proved his formal investigation.
But no variance is there in crossexamination. This Court in Kunwar Singh
Vs. State of U.P. 1993 (3) AWC 1305
Alld., has held about the effect of non cross
examination of a witness, regarding the
averment made in Examination-in-Chief
and has held that once the fact has been
said in Examination-in-Chief, but has not
been controverted or cross-examined in
cross-examination by other side, then the
unrebutted Examination-in-Chief, will be
taken in toto. The factum of death, owing to
above accident, was said by PW-1 and PW2, but it was not cross-examined by learned
counsel for the defence. Hence, it was
unrebutted and uncontroverted sentence of
both and the same is to be taken with intact
evidence. On the basis of those witnesses
as well as formal exhibits, proved by
Investigating Officer as well as informant,
the judgment of conviction and sentence
was passed. It was well in accordance with
law and facts on record. There was neither
any illegality or irregularity or any
perversity in the impugned judgment.
Accordingly,
this
revision
merits
its
dismissal.

7. Hence, dismissed as such.

8. Record of trial Court with copy of
judgment be sent back.
----------
(2020)06ILR A14
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.02.2020

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Criminal Revision No. 3037 of 2019

Jamshed Khan ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Yogesh Kumar

Counsel for the Opposite Parties:
A.G.A., Sri Samarth Sinha, Sri Vijay Sinha

Criminal
Procedure
Code,
1973Application u/s 319 -Dying declarationaccusation on husband and father-in -law-not
against the prospective accused-statements of
PW-1and PW-3 -is no avail-as they were not
present on the spot-and statement of Pw-2 do
not corroborates with autopsy report-Application
u/s 319 Cr.P.C. rightly rejected.

Criminal Revision dismissed. (E-9)

Held, Evidence is to be appreciated at this
stage because on the basis of evidence,
recorded, before the Trial court, this application
has been moved. Hence, at that juncture,
evidence is to be appreciated by the Trial court
and
learned
Trial
court
has
appreciated
evidence led before it. Neither evidence of
informant nor of his wife, PW-1 and PW-3, was
6 All. Jamshed Khan Vs. State of U.P. & Ors.
15
of any avail because they were not present on
the spot and testimony of PW-2 of this fact is
that those in-laws, firstly, beaten and injured
the deceased, thenafter, she has been put at
ablaze in which she succumbed due to above
injuries during treatment, but, in autopsy
examination report, there is no anti-mortem
injury, except burn injuries. Hence, contention
of Muskan, PW-2, is not supported by the
autopsy examination report. Therefore, on the
basis of law laid down, by the Apex Court, in the
case of Hardeep Singh (Supra), as above, as
well as discussed by the Trial court in its
impugned order, facts and law placed before it,
have been rightly appreciated by the Trial court
and, thereby, Application, moved, under Section
319 of Cr.P.C., has been rightly rejected. (Para
9)

List of cases Cited:-

1. Hardeep Singh vs. State of Punjab and
others, reported in (2014) 3 Supreme Court
Cases

(Delivered by Hon'ble Ram Krishna
Gautam, J.)

1. This Criminal Revision, under
Section 397/401 of Code of Criminal
Procedure, 1973 (Hereinafter, in short,
referred to as ''Cr.P.C.'), has been filed by
the revisionist, Jamshed Khan, against the
order, dated 1.6.2019, passed by the
learned Additional Sessions Judge, Fast
Track, court no.2, Hapur, in Sessions Trial
No. 332 of 2018, State vs. Shoaib and
others, arising out of Case Crime No.302 of
2018, under Sections 498-A and 304-B of
Indian Penal Code, 1860 (Hereinafter, in
short, referred to as ''IPC'), read with 3/4 of
Dowry Prohibition Act, Police StationDhaulana, District-Hapur.

2. Learned counsel for revisionist
argued that the first information report of
Case Crime No. 302 of 2018 was got
lodged, at Police Station-Dhaulana, District
Hapur, for offences, punishable, under
Sections 498A and 304B of IPC, read with
Sections 3/4 of Dowry Prohibition Act,
upon a report of the revisionist, Jamshed
Khan, against Shoaib, husband, Aslam,
father-in-law, Smt. Nazrin, mother-in-law,
Parvez, brother-in-law, Gulbej @ Kalu,
brother-in-law and Smt. Gullo, sister-inlaw, with this contention that informant's
daughter, Mumtaz was married with Shoaib
and another daughter was married with
Salman, and sufficient dowry was given,
but, in-laws of his daughter, Mumtaz, were
not satisfied with it. Husband, Shoaib,
father-in-law, Aslam, Mother-in-law, Smt.
Nazrin, brothers-in-law, Parvez and Gulbej
@ Kalu, and sister-in-law, Smt. Gullo, wife
of Parvez, were persistently demanding an
Alto Car, with Rupees Two Lakhs, in cash,
as additional dowry, for which cruelty is
being done with her. On 13.4.2018, at
about 6.00 PM, Shoaib, his mother and
father, alongwith his two brothers, named
as above, and one sister-in-law, also named
in the first information report, assaulted
Mumtaz and they, under joint mens-rea,
poured kerosene oil over her body and set
her at ablaze. This was a death, owing to
demand of dowry and cruelty with regard
to it. Informant's other daughter, Muskan,
who was present at the place of occurrence,
has tried to intervene, but, she, too was
extended of repeating same occurrence
with her. Hence, she informed informant,
who rushed at the spot, alongwith other
family members and other villagers, where,
he found his daughter, Mumtaz, in burn and
miserable condition. He, alongwith other
persons, took her to Safdarjang Hospital, at
Delhi, for her treatment, but, she died at
5.00 AM of 15.6.2018. Report of the
incident was submitted.

3. This contention was there, in the
statement, recorded, under Section 161 of
16 INDIAN LAW REPORTS ALLAHABAD SERIES
Cr.P.C., as of informant, his daughter,
Mumtaz and his wife, but, chargesheet was
filed against Shoaib, husband and Aslam,
father-in-law, only, and other accused
persons, who have been named in the first
information report, were not chargesheeted.

4. During trial, informant, as PW-1,
his daughter, as PW-2 and his wife as PW3, have reiterated same contentions in their
statements, recorded before the Trial court.
Hence, an application, under Section 319 of
Cr.P.C., was filed with a prayer for
summoning those leftover accused persons,
but, it was rejected by the impugned order.

5. The ground for rejection of the
application, moved, under Section 319 of
Cr.P.C., was
held
to
be
of dying
declaration, recorded by the deceased.
Even, if this dying declaration is being
accepted, offence, for demand of dowry
and cruelty with regard to it, is made out
and this Court, at this stage, is not to make
analytic analysis of evidence on the basis of
which existence of a prima facie case is to
be seen and the argument regarding
statement in dying declaration is to be
appreciated at later stage and not at this
stage. Hence, Trial court has failed to
appreciate facts and law placed before it
and, thereby, failed to exercise jurisdiction
vested in it, and as such, this Criminal
Revision, with above prayer, has been
preferred, challenging impugned order.

6. Learned counsel for Opposite
party no.2, on the other hand, while
vehemently
opposing
arguments
advanced
by
learned
counsel
for
revisionist, has contended that it was
deceased, who, in her dying declaration,
has categorically narrated scene and
sequence of occurrence, wherein, an
altercation took placed, in between the
deceased and her husband, Shoaib,
regarding giving of some lower (a kind
of Trouser) to Shoaib, which she asked
to be made available subsequently to
the husband, after his taking bath. This
furiated her husband and he, with the
assistance
of
his
father,
put
the
deceased ablaze, after pouring kerosene
over her. Hence, role of causing death
to
the
deceased
was
assigned
specifically to the deceased's husband
and
father-in-law.
No
contention,
against any other family member is
there and this dying declaration is fully
admissible. Summoning at the stage of
319 of Cr.P.C., never requires a prima
facie case, only, rather, it requires much
more than initial summoning and in
present case not even a single iota of
evidence is there against prospective
accused
persons.
Deceased
was
instantly taken to the hospital by her
husband and his cousin and neither the
informant
nor
any
other
family
members
of
informant
were
accompanying deceased. She was given
treatment at the hospital. This report
was got lodged after two days of
occurrence
and
in
between
no
accusation
was
levelled
by
the
revisionist
or
any
of
his
family
members,
including
Muskan.
This
subsequent accusation is under ulterior
motive. Hence, learned Trial court has
rightly appreciated facts and law placed
before it and, thereby, rightly passed
impugned order, in accordance with
law.
This
Criminal
Revision,
challenging the order passed by the
learned Trial court, being devoid of
merits, is liable to be dismissed.

7. Learned AGA, representing State
of U.P., has also vehmently opposed this
Revision.
6 All. Jamshed Khan Vs. State of U.P. & Ors.
17

8. First information report reveals
that occurrence was of 13.6.2018, but,
report was got lodged on 15.6.2018 and
in this report it has been stated that
Muskan was an eye witness account,
but this eye witness, Muskan, has never
made
any
complaint
before
this
registration of this very case crime
number. As per the contention of this
report, neither informant nor his wife,
was present at the place of occurrence.
Whatever, he could perceive, it was on
the basis of the information given by
Muskan and Muskan has not lodged any
complaint, prior to registration of this
report. Her testimony is with this
contention that she too was subjected to
demand of dowry, but, her husband was
in her favour, whereas, husband of the
deceased was not favouring her.

9. Meaning thereby, accusation of
demand of dowry and cruelty with
regard to it was against the husband of
the deceased and her father-in-law. This
fact is there in the dying declaration,
recorded by the Magistrate, under
supervision and Medical Certificate of
the Medical Officer, wherein, no such
statement
or
accusation
against
prospective accused persons was there.
Mere contention and guilt, written in
dying
declaration,
is
against
her
husband and father-in-law. General
allegation of demand of dowry and
cruelty with regard to it and that, too, in
this delayed report, by the informant,
was there. Apex Court, in the case of
Hardeep Singh vs. State of Punjab and
others, reported in (2014) 3 Supreme
Court Cases, rendered by Constitution
Bench, has elaborately discussed and
laid down law, for allowing and
rejecting application, moved, under
Section 319 of Cr.P.C., wherein, it has
been held that at the time of passing an
order over an application, moved, under
Section 319 of Cr.P.C., much more than
initial summoning is required. Evidence
is to be appreciated at this stage
because on the basis of evidence,
recorded, before the Trial court, this
application has been moved. Hence, at
that
juncture,
evidence
is
to
be
appreciated by the Trial court and
learned Trial court has appreciated
evidence led before it. Neither evidence
of informant nor of his wife, PW-1 and
PW-3, was of any avail because they
were not present on the spot and
testimony of PW-2 of this fact is that
those
in-laws,
firstly,
beaten
and
injured the deceased, thenafter, she has
been put at ablaze in which she
succumbed due to above injuries during
treatment, but, in autopsy examination
report, there is no anti-mortem injury,
except burn injuries. Hence, contention
of Muskan, PW-2, is not supported by
the
autopsy
examination
report.
Therefore, on the basis of law laid
down, by the Apex Court, in the case of
Hardeep Singh (Supra), as above, as
well as discussed by the Trial court in
its impugned order, facts and law
placed before it, have been rightly
appreciated by the Trial court and,
thereby, Application, moved, under
Section 319 of Cr.P.C., has been rightly
rejected. There is no failure in exercise
of jurisdiction vested in Trial court or
over-exercise of jurisdiction, vested in
it, nor there is any apparent error on the
face of impugned order.

Accordingly, in view of what has
been discussed, hereinabove, this Criminal
Revision, being devoid of merits, deserves
dismissal and it stands dismissed as such.
----------
18 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)06ILR A18
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

First Appeal From Order No. 3409 of 2010

Smt. Maya Devi & Ors. ...Appellants
Versus
Sri Sunil Kumar & Anr. ...Respondents

Counsel for the Appellants:
Sri M.N. Siddiqui

Counsel for the Respondents:
Sri S.K. Mehrotra, Sri Archit Mehrotra, Sri
Baleshwar Chaturvedi

Quantum of compensation - Notional Income -
Unless any evidence is led to the contrary, it may be
presumed that every family in India leads a
reasonably happy and respectable life. If a person
has met an accidental death and is survived by
dependents, and has no record of income, it would
be quite inhuman to presume that he had no income
and so his family was leading a beggars life. In the
absence of record of income, unless and until proved
to the contrary there has to be a presumption that
breadwinner of a family was earning sufficiently
enough for the survival of his family (Para 10)

Average income of a person to lead a reasonably
good and respected life depends upon the size of the
family and place where he lives. It will all depend
upon the social economic condition of the area where
he lives in. Broad classification could be urban, semi
urban and rural areas. (Para 12)

The basic requirement for ascertaining the minimum
wage in the unskilled sector is two meals a day and
medical expenses. (Para 19)

The dependents being the wife, two minor sons, a
minor daughters and the mother therefore, 1/5
deduction towards personal expenses will be valid.
Multiplier of 16 would be applicable for the decease
having died at the age of 33 years (Para 29, 31)

First Appeal from Order Allowed. (E-10)

List of cases cited:-

1. Laxmi Devi Vs. Mohammad Tabbar and anr.
2008 (12) SCC 165 (followed)

2. Chameli Devi & ors Vs. Jivrail Mian & ors. Civil
Appeal No. 7004 of 2019

3. Union for Democratic Rights Vs. Union of
India AIR 1982 (SC) 1473

4. Sarla Verma & ors Vs. Delhi Transport Corp &
anr (2009) 6 SCC 121 (followed)

5.
Santosh
Devi
Vs.
National
Insurance
Company Limited (2012) 6 SCC 421

6. National Insurance Company Limited Vs
Pranay Sethi & others (2017) 16 SCC 680

(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Ajit Kumar, J.)

1. Heard Sri M.N. Siddiqui, learned
counsel for the appellants, Sri Archit
Mehrotra, Advocate holding brief of Sri
S.K. Mehrotra, learned counsel for opposite
party no. 2 and perused the record.

2. This first appeal from order is
directed against the award dated 19th
August, 2010 passed by Motor Accident
Claims Tribunal/Additional District Judge,
Court No. 2, Kanpur Nagar allowing the
compensation of the petitioners-claimant
raised vide claim petition no. 338 of 2008.

3. It has been argued on behalf of the
appellants
that
on
the
point
of
determination
of
compensation,
the
Tribunal has not correctly appreciated the
legal authorities on contemporary law