# Jugal v. State of U.P

- **Citation:** (2023) 8 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-07
- **Case number:** Capital Case No. 3809 of 2015
- **Bench:** Ashwani Kumar Mishra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jugal-v-state-of-u-p-50530
- **Pages:** 18

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 504 - Code of Criminal
Procedure, 1973 - Sections 161 & 313 -
Dying
declaration
-
Relevancy
of
-
Deceased and her son both were burnt
alive by accused-appellant - Incident
occurred in day when accused came to
house of deceased, enquired about his
wife (PW-4) and daughter - Informed they
have not come to house of deceased, he
hurled abuses and taking advantage of
night committed offence - Neither genesis
proved by prosecution nor exact reason
for discord placed on record - Accused
arrested at 6 PM, not proved by P.W.-1 to
P.W.-3, all St.d arrest prior to registration
of F.I.R
- Regarding night incident,
prosecution relied upon testimony of
P.W.-1
to
P.W.-3,
not
support
to
prosecution case, in addition to dying
128 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration of deceased son - The dying
declaration
made
to
Magistrate,
not
reliable as factual assertion with regard to
having gone to room of his mother to see
TV, other facts contradicted by evidence
on record, also feigned ignorance about
reason for which accused poured petrol
and set him and his mother ablaze - Thus,
dying declaration not correctly evaluated.
(Para 2, 27, 31, 32, 34, 35, 39, 44, 45)
Appeal allowed. (E-14)
List of Cases cited:

## Text

_Characters 0–39,916 of 62,238. This is a partial read: ask again with offset=39916 for what follows._

8 All. Jugal Vs. State of U.P.
127
in absence of any pre or post criminal
antecedent or conviction in any other case.

30. So far as the imposition of fine is
concerned, all the accused persons have
been fined Rs. 5,000/- each under Section
498-A I.P.C. and Section 4 of the D.P. Act
also.

31. A compensation for Rs. 75,000/-
has also been awarded upon all the accused
persons cumulatively under Section 357
Cr.P.C. According to this Court, the fine
imposed by the trial Court and also the
compensation awarded by it, is not liable to
be interfered with. Hence, this appeal is
liable to be decided accordingly.

Order

(i) Criminal Appeal no. 1045 of
2016 (Puneet Tripathi Vs. State) is
dismissed partly in respect of conviction
and is allowed with regard to the sentence
as under:

The sentence awarded to the
accused-appellant Puneet Tripathi under
Section 498- A I.P.C. and Section 4 of the
D.P. Act, is maintained. The sentence
awarded under Section 304-B I.P.C. is
modified to the extent that instead of life
imprisonment, he is sentenced to the period
already undergone.

(ii) Criminal Appeal No. 1044 of
2016 (Shiv Kumar Tripathi and 3 Others
Vs. State) is allowed in respect of
conviction and sentencing under Section
304-B I.P.C. and the conviction under
Section 498-A I.P.C. and Section 4 of the
D.P.
Act
is
maintained.
However,
sentencing is modified to the extent that
they are sentenced to the period already
undergone by them.

(iii) In case of non-payment of
fine and compensation imposed by the trial
Court, the accused persons shall undergo to
the period specified by the trial Court, if the
same is not deposited within thirty days
from today.
----------
(2023) 8 ILRA 127
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.08.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Capital Case No. 3809 of 2015
With
Reference No. 10 of 2015

Jugal ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
From Jail, Sri A.K. Dwivedi (Amicus Curiae),
Sri Rajrshi Gupta (A.C.)

Counsel for the Respondent:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 504 - Code of Criminal
Procedure, 1973 - Sections 161 & 313 -
Dying
declaration
-
Relevancy
of
-
Deceased and her son both were burnt
alive by accused-appellant - Incident
occurred in day when accused came to
house of deceased, enquired about his
wife (PW-4) and daughter - Informed they
have not come to house of deceased, he
hurled abuses and taking advantage of
night committed offence - Neither genesis
proved by prosecution nor exact reason
for discord placed on record - Accused
arrested at 6 PM, not proved by P.W.-1 to
P.W.-3, all St.d arrest prior to registration
of F.I.R
- Regarding night incident,
prosecution relied upon testimony of
P.W.-1
to
P.W.-3,
not
support
to
prosecution case, in addition to dying
128 INDIAN LAW REPORTS ALLAHABAD SERIES
declaration of deceased son - The dying
declaration
made
to
Magistrate,
not
reliable as factual assertion with regard to
having gone to room of his mother to see
TV, other facts contradicted by evidence
on record, also feigned ignorance about
reason for which accused poured petrol
and set him and his mother ablaze - Thus,
dying declaration not correctly evaluated.
(Para 2, 27, 31, 32, 34, 35, 39, 44, 45)
Appeal allowed. (E-14)
List of Cases cited:

1. Motilal & ors. Vs St. of Raj., 2009 (8) SCR
303, (Para 6)

2. Surendra Singh Vs St. of U.P.; 2019 1
Allahabad Law Journal 290

3. Sharda Vs St. of Raj., 2010 (68) ACC 274 (SC)

4. St. of Guj. Vs Jayrajbhai Puniabhai Varu, AIR
2016 SC 3218 (Para 10 & 11)
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Syed Aftab Husain Rizvi, J.)

1. Additional Sessions Judge, Fast
Track Court, Lalitpur has made a reference
to this Court on 13.08.2015 under Section
366 of the Code of Criminal Procedure,
consequent upon death sentence awarded to
the accused Jugal on the charge that he has
poured petrol on his mother-in-law and
brother-in-law and set them ablaze. The
reference has been registered as Reference
No. 10 of 2015. An appeal has also been
filed at the instance of accused being
Capital Criminal Appeal No. 3809 of 2015.
The appeal and the reference have been
heard together and are being disposed of by
this common judgment.

2. Dinesh (PW-1)is the first informant
in the present case, who happens to be the
son of deceased Chameli Bai wife of
Udaiya and brother of Deepchand, who too
has died, stating that on 17.06.2013 at
about 4.00 in the afternoon his brother-inlaw Jugal son of Kashi belonging to
Chamar caste came to the house and
enquired about his wife Meena and
daughter Seema. The family members
informed that these two have not come to
the house. For this reason, the accused
started abusing them and kept roaming in
the village and at about 1.00 in the night, he
poured petrol and set ablaze the deceased.
On hearing the commotion of villagers,
Tiju (PW-2) and Karan Singh (not
produced) came on the spot and tried to
douse the fire. Deceased Chameli Bai and
Deepchand were sleeping in the dallan
(kind of a verandah attached to the house).
Both the persons were taken for treatment
to the hospital where the informant's
mother has died and the brother was in
injured condition. Appropriate action was
requested to be taken in the matter. On the
basis of such written report (Ex.Ka.1), a
First Information Report came to be lodged
at PS Banpur, District Lalitpur at about
12.30 PM on 18.06.2013. The distance
between the place of occurrence and the
police station is five kilometres.

3. Record reveals that prior to lodging
of F.I.R. inquest was started on 18.06.2013
at about 10.30 AM and concluded at around
11.30 AM at the mortuary situated in
District Hospital. As per the inquest, the
information was given by the ward-boy and
the deceased died during the course of
treatment. The inquest specifically records
that information with regard to death was
received at 6.20 in the morning itself. The
inquest
witnesses
included
the
first
informant also. In the opinion of the
inquest witnesses, the deceased died on
account
of
burnt
injuries
and
for
ascertaining the correct cause of death the
8 All. Jugal Vs. State of U.P.
129
postmortem was necessary. The body was
ultimately sealed and the postmortem was
conducted on 18.06.2013 at 4.30 PM. As
per the opinion of the autopsy surgeon, the
deceased was 44 years old female with
average body built and rigor mortis had
passed from neck towards lower limbs. The
cause of death as per postmortem is shock
as a result of ante-mortem burn injuries.
Following ante-mortem injuries have been
noticed in the postmortem:-

"Whole body mixed burn present
except in lateral aspect of left thigh."

4. Investigation proceeded in the
matter and the place of occurrence was
inspected by the Investigating Officer, who
collected a two litres plastic container,
wherein smell of petrol was present. A
lamp was also found near the place of
occurrence. Ashes and plain earth etc. were
also collected in a separate bag vide
Ex.Ka.2 by the Investigating Officer. This
recovery
has
been
proved
by
the
independent witness Shanker Singh, who
appeared as PW-3.

5. Deepchand, who allegedly was
sleeping close to his mother and had also
sustained burnt injuries was hospitalized in
the District Hospital, Lalitpur where his
dying declaration has been recorded by the
concerned Naib Tehsildar Awadhesh Kumar
Nigam, who has appeared as PW-5. Before
recording such dying declaration the
Emergency Medical Officer Dr. Pawan
Sood (PW-9) certified that the injured is in
fit mental state to make his declaration. The
dying declaration is in the question answer
form and is extracted hereinafter:-

" बयान दीपचन्द एस/ओ श्री ऊदई, उम्र लगभग
15 साल कनवासी-ग्राम अजनौरा, थाना- बानपुर, लकलतपुर
कद० 18.6.2013, समय 16.55 पी०एम०

प्रश्न- क्या नाम है, िहाँ िे हो

उत्तर- दीपचन्द, अजनौरा िे

प्रश्न- िैसे जल गये?

उत्तर- रात िो मै अपनी माँ िे साथ सो रहे थे। जुगले
जो मेरे जीजा लगता है उसने हम दोनो िे ऊपर पेट्रोल फेंि िर आग
लगा दी।

प्रश्न- जीजा ने क्यो जलाया।

उत्तर- क्या पता सहाब, जुगला ने जलाया।

प्रश्न- जुगला िहाँ रहता है।

उत्तर- खोंखरा रहता है।

प्रश्न- जुगला से झगडा हुआ था?

उत्तर- मै खेल रहा था उसने एि बार मेरे गले मे लात
रखी थी।

प्रश्न- तुम्हारी माँ से उसिी लडाई हुयी थी

उत्तर- क्या पता सहाब

प्रश्न- तुम्हे किसने बचाया?

उत्तर- जब आग लगी तो मै उठिर आांगन मे भागा,
पानी बरसा था इसकलये आांगन मे पानी भरा था, मै उसमे िूद गया
खुद बचा।

प्रश्न- जब जलाया उस समय घर मे िौन-िौन था।

उत्तर- हम, कदनेश मेरा भाई, डबला जो मेरा भइया
लगता है, तथा मेरी माँ तथा मेरे बडे भाई आशा िा? लडिा नीलेश

प्रश्न- जलते हुये किसने देखा

उत्तर- मै टी०वी० देखने माँ िे िमरे मे गया था वही
उनिे पास लेट गया था, जब वह मेरी माँ िे ऊपर पेट्रोल डाल रहा
था तो मैने देख कलया, मैने िहा तू यह क्या िर रहा तो उसने मेरे
ऊपर भी पेट्रोल डालिर आग लगा दी।

प्रश्न- ओर िुछ िहना है?

उत्तर- नही क्या िरे? उसने मेरी माँ िो मार डाला
साहब, उसे सजा दो।"

6. The investigation further proceeded
in the matter and statement was recorded of
Deepchand under Section 161 Cr.P.C. The
statement in that regard has not been
exhibited but its Scontents have been
disclosed by the Investigating Officer, who
has appeared during the course of trial as
PW-13. He has disclosed that Deepchand
130 INDIAN LAW REPORTS ALLAHABAD SERIES
informed him that he could identify the
accused from his voice.

7. The other deceased, namely,
Deepchand
remain
hospitalized
with
superficial and deep facial burn up to an
extent of 60 %. Deepchand also died later,
on 30.06.2013 in respect of which inquest
was prepared and the postmortem was also
conducted, wherein his age has been
assessed as 17 years. The autopsy surgeon
has found that the cause of death is
septicaemic shock due to ante-mortem burn
injuries and found following injuries on the
deceased:-

"Burn injury on face, neck all
over the back, front and back of abdomen.
Both upper limb, part of hip and right foot,
superficial to deep, slough present. Pus
present in plural cavity and pus pocket
present in left lung and abdominal cavity."

8. Statement was also recorded of the
wife of the accused, namely, Meena PW-4,
whereafter a charge-sheet came to be
submitted against the accused under
Sections 302, 504 IPC. The Magistrate took
cognizance and committed the case to the
court of Sessions where it got registered as
Sessions Trial No. 109 of 2013. Charges
were framed under Sections 302 and 504
I.P.C. and read out to the accused and
explained in Hindi. The accused pleaded
not guilty and claim to be tried. The charge
framed by the court reads as under:-

" CHARGE

I, Shyam Sunder, Sessions Jude,
Lalitpur hereby charge you : Jugal son of
Kashi, resident of village Khokhra, P.S.
Kotwali Lalitpur, District Lalitpur as
follows:-

FIRSTLY:- That on 17.6.2013 at
about 4.00 p.m. at the house of complainant
Dinesh, situated in village Ajnora, P.S.
Banpur, District Lalitpur, you intentionally
insulted and thereby gave provocation to
Dinesh intending or knowing it to be likely
that such provocation would cause him to
break the public peace or to commit any
other offence and thereby committed an
offence punishable u/s 504 IPC and within
the cognizance of this court.

SECONDLY:-
That
in
the
intervening night of 17/18.6.2013 at about
1.00 at the aforesaid place, you did commit
murder by intentionally or knowingly
causing the death of Smt. Chameli Bai and
Deep Chandra and thereby committed an
offence punishable u/s 302 IPC and within
the cognizance of this court.

And I hereby direct that you be
tried by this court on the said charge."

9. Trial proceeded in the matter in
which
the
prosecution
has
produced
following documentary evidence:-

"1. Written Report Ext.Ka.1

2. Recovery memo of Plastic
'Katti', Ash, Cot and Plain Earth as
Ext.Ka.2

3. Dying Declaration of Deep
Chand Ext.Ka.3

4. P.M. Report of Chameli Bail
Ext.Ka.4

5. P.M. Report of Deep Chand
Ext.Ka.5

6. Medical Examination Report
of Deep Chand Ext.Ka.12

7. Inquest Report of Chamil Bai
and Autopsy related papers Ext.Ka.13 to
Ka.18

8. Chik F.I.R. Ext.Ka.19

9. Copy of G.D. Ext.Ka.20

10. Inquest Report of Deep
Chand
and
Autopsy
related
papers.
Ext.Ka.21 to Ka.25

11. Site Plan Ext.Ka.26
8 All. Jugal Vs. State of U.P.
131

12. Charge-sheet Ext.Ka.27"

10. In addition, informant Dinesh has
appeared as PW-1, wherein he has
disclosed that the accused came at around
4:00 to his house on 17.06.2013 and
enquired about his wife and daughter from
him and his mother. Accused was informed
that they have not come, on which accused
left, hurling abuses to them. On the same
night when the two deceased were sleeping
in
the
verandah
whereas
informant
alongwith Ravi and Nilesh were sleeping in
a room at a little distance. The witness
heard screams of his mother and brother.
Accused had poured kerosene on the two
deceased and set them on fire and fled from
the place of occurrence. This incident has
been seen by Tiju and Karan Singh. PW-1
also saw the accused fleeing in the light on
account of fire caused by him. The fire was
doused with the help of the villagers and
the witness took his mother and brother to
the hospital where his mother died at about
4.00 in the morning. Brother was sent for
treatment to Gwalior. He died 10-12 days
later. This witness has proved the written
report which is exhibited as Ex.Ka.1. PW-1
has been cross-examined, wherein he
admitted that he studied up to class 9. He
has disclosed that the written report was not
scribed by him but was got scribed by
someone else. He had not written the report
as he was perplexed. He had reached the
police station at about 12:00-1:00 in the
afternoon and Tiju and Karan Singh had
accompanied him. He has admitted that in
the written report he has not disclosed that
Tiju and Karan Singh had seen the accused
fleeing in the light of fire. He has also
denied that his statement is based upon the
advice received later. As per him, the
accused got married to his sister long back
and out of such wedlock three children
were born. Accused used to harass his
sister, however, no complaint was ever
made to police about such harassment. In
reply to a specific query, PW-1 has stated
that till date, he has not been able to know
as to on the date of incident where were the
wife and daughter of the accused. He has
also feigned ignorance about the fact that
his bhanji (sister's daughter) was getting
married on that day. At the time when the
accused came to the house, the deceased
mother as well as Deepchand (deceased
brother) were at home and that the accused
came in their presence at the house. This
witness has specifically stated that there are
two rooms in the house and there is no
television in the house. In the further crossexamination, this witness has stated that his
mother and brother were sleeping on the
same cot and that there is no lock put on
the door on account of which anyone could
come inside the house, particularly, as the
height of wall is only 4 feet. He has also
disclosed that it was raining when the
incident occurred. He has also stated that
he had tried to douse the fire by putting the
cloth on his mother and brother. He has
specifically stated that fire was not doused
by water. The house of Tiju and Karan
Singh is in front of his house. He has also
stated that when he arrived at the place of
occurrence by then Tiju and Karan Singh
were already present at the dallan. He has
also stated that dying declaration of his
brother was recorded in his presence. He
has also stated that the accused was
arrested at about 8-9 in the morning itself.
He has also stated that from the hospital he
had gone straight to the police station at
about 8-9. He has also admitted that he had
not seen accused coming with the petrol
can. He has denied the suggestion that
because there was a matrimonial dispute
between his sister and the accused on
account of which a false report is being
lodged against him.
132 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Teeju son of Gorelal is PW-2 and
has supported the prosecution case. As per
this witness, daughter of accused got
married
at
Amjhara
Temple
during
summers of the previous year. On the same
day at about 4:00 the accused came to his
in-laws house and finding that his wife and
daughter were not present, the accused
hurled abuses and also extended threats to
the deceased. The accused thereafter kept
roaming in the village. As per this witness,
he came out of the house at about 12 in the
night to ease himself when he saw the
accused coming out of the house of the
deceased. The witness could hear screams
and that he saw alongwith Karan Singh the
accused coming out of the house. When he
entered the house, the witness saw Chameli
Bai engulfed in fire and her son Deepchand
was also in fire. PW-2 and Karan doused
the fire. He claims to have been informed
by Chameli Bai and Deepchand that Jugal
had entered the house and had poured
petrol upon them. There was a burnt kuppi
at the place of occurrence and he could
smell petrol from it. In the crossexamination, PW-2 has stated that the IO
recorded his statement on the next morning.
The police had come at about 10:00 and the
accused was already arrested by then. He
has been confronted with his statement
under Section 161 Cr.P.C., wherein he has
not disclosed the IO that accused was
roaming around the well or that he had
come out of the house at 12:00 to ease
himself. He has also been confronted with
his previous statement, wherein there is no
reference of the accused coming out of the
house. On the date of incident wife and
daughter of accused were at home and that
only Asha Ram (another son of deceased
Chameli Bai) alone had gone to Amjhara
Temple in the marriage. Deceased had also
not attended the marriage. PW-2 has stated
that there was nobody at home at 4:00 PM
as Chameli Bai had gone to the well which
is at a distance of about half a kilometre
from his house. Accused came to the house
first and when he found none, he went
towards the well and that he had not seen
the accused thereafter. He has stated that at
the time of incident informant was sleeping
in the house and he arrived after PW-2 had
reached the place of occurrence. He has
also stated that there is no wall around
house of Chameli Bai. He has emphatically
stated that there is no television in the
house of the informant. He has also stated
that it was raining and there was no
electricity.

12. PW-3 is Shanker Singh, who has
also supported the prosecution case. He
claims that the accused had come to the
village at 4:00 when his wife had gone for
the marriage of her daughter at Amjhara
Temple. Accused
enquired
from
the
deceased Chameli Bai about the incident
and when he could ellicit no reply, he
started abusing his mother-in-law. Several
persons came on the spot and the accused
was forced to flee from the house. As per
this witness, accused came at about 1:00 in
the night carrying petrol in kuppi from
Banpur. He claims that there was a burnt
kuppi near the place of occurrence which
smelt of petrol. He also claims to have seen
accused
fleeing
from
the
place
of
occurrence. As per this witness also, he
arrived inside the house and saw the two
deceased in a burnt state. This witness has
also proved the recovery memo Ex.Ka.2. In
the cross-examination, PW-3 has stated that
his statement was recorded at about 7:008:00 in the next morning. This witness has
been
confronted
with
his
previous
statement under Section 161 Cr.P.C.,
wherein there is no reference to the fact
that daughter of accused was getting
married at Amjhara Temple or that the
8 All. Jugal Vs. State of U.P.
133
accused was forced to flee from the house
or that he kept roaming around the house of
Chameli Bai; or that he saw the accused
fleeing from the house of the deceased. As
per this witness, his house is at 50-60 paces
from the house of Chameli Bai. In his
further cross-examination, PW-3 has stated
that he saw the accused crossing from his
house and as he was trying to save the
injured he could not apprehend the accused.
He claims that accused fled from the front
of his house. As per him, he had seen the
accused in the light of electricity as well as
fire. He has stated that the informant came
at the place of occurrence after hearing the
screams/commotion. As per this witness
also, the accused was arrested at about
10:00-11:00 in the morning. The witness
has further stated that a five litre plastic can
was
recovered
from
the
place
of
occurrence, which smelt of petrol.

13. PW-4 is Smt. Meena, who
happens to be the wife of the accused. She
has stated that his eldest daughter is already
married. She claims that the accused used
to say that he would keep her daughter and
would often beat them on account of which
he started residing in Lalitpur city. She had
also married her daughter in Lalitpur. She
has alleged that her daughter got married at
Amjhara Temple and she was present on
the date of marriage. It was on the same
day that the accused came to her mother's
house and abused her after she was not
found there. She has also supported the
prosecution case of the accused pouring
petrol upon the two deceased. This witness
has been cross-examined as per which her
statement was recorded at the hospital two
days after the incident. The witness has
been
confronted
with
his
previous
statement, wherein she has not disclosed
the I.O. that accused wanted to keep her
daughter. She has also been confronted
with her previous statement where she had
not alleged that on account of torture, she
had started living at Lalitpur. She stated
later that she was assaulted by accused two
days prior to the incident, whereafter she
came to Lalitpur. She has also alleged that
the accused alleged about two days prior to
the incident that he would keep her
daughter. The witness also could not
correctly disclose the name of her son-inlaw.

14. Awadhesh Kumar Nigam (Naib
Tehsildar) has appeared as PW-5, who has
proved the dying declaration of Deepchand.
He has alleged that he had removed the
family members from the place where the
deceased was kept in the hospital before
recording the dying declaration. He also
feigned ignorance about the fact that the
family members were talking to the
deceased when he came to the hospital.
This
witness
has
proved
the dying
declaration (Ex.Ka.3).

15. PW-6 is Dr. D.K. Raj, who has
proved the postmortem of Chameli Bai.
This witness has not alleged existence of
thermal burn on the deceased and as per
him the deceased had sustained about 93%
burnt injuries. The witness has proved the
postmortem report.

16. PW-7 is Dr. Rajesh Tripathi, who
has proved the postmortem report of
deceased
Deepchand.
Deepchand
had
sustained 70 % burnt injuries.

17. Dr. Shailesh Ranjan has appeared
as PW-8, who had examined Deepchand
when he was brought to the hospital. As per
him, the injured was in a serious condition
and he was administered vobvaran to
subside the pain. He has also proved the
injury report of Deepchand. According to
134 INDIAN LAW REPORTS ALLAHABAD SERIES
injury report Ext.Ka12 Deepchand was
brought to hospital by Dinesh (brother) and
was examined on 18.06.2013 at 3:05 AM.
There was superficial to deep facial burn
about 60%.

18. PW-9 is Dr. Pawan Sood, who has
certified that Deepchand was in fit,
physical and mental state for making his
declaration.

19. PW-10 is Man Singh Pal, who
was posted as Sub-Inspector and has
proved the inquest of Smt. Chameli Bai. He
has also proved other police papers. This
witness in the cross-examination has stated
that the inquest was conducted between
10:30 to 11:30 in the morning and that the
informant had not disclosed the fact that the
accused had poured petrol on the deceased
or that he had seen any such incident.

20. PW-11 is also a police personnel,
who has proved the chik FIR. As per him,
the informant came alone at 12:30 at the
police station and had given the written
report, which was incorporated in the GD.
This witness has denied the suggestion that
the F.I.R. was written on the dictates of the
SHO or that the F.I.R. was written with the
consultation and advice of the SHO.

21. PW-12 is Sub-Inspector, Gajraj
Prasad, who has proved the inquest of
Deepchand.

22. PW-13 is the Investigating
Officer. As per him, on 18.06.2013 the case
was registered in his presence at police
station on the written report of complainant
Dinesh that his mother and brother have
been set on fire by his brother-in-law Jugal
and his mother has died. He has alleged
that the accused was arrested at about 6:00
in the evening. Statement of Deepchand
was recorded by him on 19.06.2013,
whereas the statement of PW-4 was
recorded on 20.06.2013. Statement of
Karan Singh and Tiju Kushwaha was
recorded on 29.06.2013. In the crossexamination, PW-13 has stated that the
informant is not an eye-witness and his
statement was recorded at the police
station. He has clearly disclosed that Karan
Singh and Tiju Kushwaha had disclosed the
informant of having seen the accused
running from the place of occurrence in the
fire. He has denied the suggestion that the
statements of witnesses were recorded on
the next day and has reasserted that the
statement of PW-2 was recorded on
29.06.2013. I.O. has proved the site plan
and has admitted that there is no electricity
pole shown therein. It is also admitted that
from the statement of witnesses any source
of light had not surfaced. He has further
stated that the kuppi mentioned as 'kutti' in
the cross-examination of PW-13, denotes a
can. As per him, the can was of two litres
and not of five litres. He has also admitted
that PW-4 never disclosed him that the
accused had asserted of keeping her
daughter with him.

23. The evidence produced during
trial by the prosecution has been confronted
to the accused for recording his statement
under Section 313 Cr.P.C. The accused has
denied his implication and has stated that at
the instance of the in-laws, he has been
falsely implicated. No defence witness,
however, has been produced.

24. Trial court on the basis of
evidence led in the matter has come to the
conclusion that the accused had poured
kerosene on the deceased and had killed
them. The motive for such a ghastly act is
alleged to be the desire of the accused to
keep his daughter, which was objected to
8 All. Jugal Vs. State of U.P.
135
by her in-laws and the wife. The wife of the
accused had got her daughter married on
the date of incident and apparently the
accused was enraged by such act on
account of which he committed the ghastly
act resulting in brutal death of two persons.
The trial court, therefore, found the charges
under Sections 302, 504 IPC to have been
proved against the accused-appellant. The
severity of the offence has been considered
while awarding sentence of death penalty
upon the accused. It is in that context that
the reference has been made by the trial
court for confirmation of death sentence.
The appeal preferred by the accused is thus
being
considered
alongwith
the
confirmation proceedings.

25. Shri Rajrshi Gupta, Advocate has
been appointed as Amicus Curiae in the
present case to represent the accusedappellant. Learned counsel for the accusedappellant submits that the court below has
grossly erred in returning a finding of
conviction against the accused, inasmuch
as the evidence on record do not justify
such
conclusion
and
consequential
conviction of the accused. Learned counsel
for the accused-appellant has further urged
that the dying declaration of deceased
Deepchand is tutored and is not reliable,
particularly as the facts narrated therein are
contrary to the admitted material available
on record. He further submits that there is a
contradiction in the other dying declaration
recorded by the I.O. under Section 161
Cr.P.C. Various contradictions in the
statements
of
witnesses
have
been
highlighted, which shall be dealt with while
analysing the evidence on record. Learned
counsel for the accused-appellant submits
that the only material on record against the
accused-appellant would at best justify a
suspicion against him and in view of the
settled law that suspicion howsoever strong
cannot be a substitute for evidence to
establish the guilt of the accused, the
conviction
and
sentence
cannot
be
sustained. Learned counsel for the accusedappellant has also placed reliance upon the
judgment of the Supreme Court in Motilal
& Others Vs. State of Rajasthan 2009 (8)
SCR 303 in order to submit that the inquest
of Smt. Chameli Bai shows that police was
made aware of the incident much prior to
registration of the FIR and the delay in
lodging of the FIR has not been explained.
Observations of the Court contained in para
6 have been referred to in order to discredit
the prosecution case. So far as the motive
for commissioning of the offence is
concerned, learned counsel for the accusedappellant submits that the allegation against
the accused of wanting to keep his daughter
is a clear improvement and a result of
afterthought inasmuch as none of the
witnesses have made any such disclosure to
the police during recording of their
statements under Section 161 Cr.P.C. and it
is only when PW-4 appeared in the witness
box that such a case has been set up. It is
further argued that the motive in that regard
has not been confronted to the accused for
recording his statement under Section 313
Cr.P.C. and, therefore, this circumstance
cannot be read against the accused.
Reliance is placed upon a Division Bench
judgement of this Court in Surendra Singh
Vs. State of U.P.; 2019 1 Allahabad Law
Journal 290 in order to submit that the
dying declaration is not reliable in the facts
of the present case. So far as the testimony
of eye-witnesses are concerned, learned
counsel
for
the
accused-appellant
straneously urges that their presence at the
place of occurrence or their statements of
having seen the accused fleeing from the
place of occurrence is not reliable. It is
lastly urged that the accused-appellant has
already suffered enough on account of
136 INDIAN LAW REPORTS ALLAHABAD SERIES
being kept in a solitary confinement for ten
years and that he is entitled to be set free by
granting him the benefit of doubt.

26. Ms. Archana Singh appearing for
the State, on the other hand, submits that
this is a case of brutal murder of a lady and
her son by her son-in-law, who wanted to
keep his daughter as his mistress. It is
submitted that this is one of those rarest of
rarest cases where the father enraged by
marriage of his daughter against his wishes
and has ultimately killed his mother-in-law
and brother-in-law and that the conclusion
of guilt recorded by the court below is
clearly borne out from the evidence on
record. Learned A.G.A., therefore, submits
that this being a case of rarest of rare nature
justifies the award of death punishment on
the accused and that such punishment is
liable to be confirmed by this Court by
rejecting the appeal of the accused.

27. We have heard learned counsel for
both the parties and have carefully perused
the records including the records of the trial
court. The prosecution case has already
been noticed by us, according to which, the
deceased Chameli Bai and her son
Deepchand both were burnt alive by the
accused-appellant, as he was annoyed with
them. As per the prosecution case an
incident occurred prior in the day at 4.00
PM, when the accused came to the house of
the deceased Chameli Bai and enquired
about his wife (PW-4) and daughter. The
accused was informed that they have not
come to the house of the deceased
thereafter the accused hurled abuses and
taking advantage of the night ultimately
poured petrol upon the two deceased and
set them ablaze.

28. The prosecution case is apparently
in two parts. The first part relates to the
incident at 4.00 PM, when the accused
came to the house looking for his wife and
daughter and not finding them got annoyed
and hurled abuses upon his mother-in-law
and other family members. The second part
relates to the actual offence of pouring
kerosene upon the two deceased and setting
them ablaze. We propose to deal with the
two distinct parts of the prosecution case
with reference to the evidence on record.

29. So far as the incident occurred at
4.00 PM on the fateful day is concerned,
the written report of PW-1 states that the
accused came from his village Khokhra and
enquired about his wife Meena and
daughter Seema. The family members
informed that these two are not there after
which the accused started abusing the
family
members.
This
part
of
the
prosecution case is supported by the
testimony of PW-1, which merely states
that the accused came to the house of the
deceased
and
enquired
about
the
whereabouts of his wife and children. On
being informed that they have not come to
the house of the deceased, the accused
abused them and left. Similar statements
have been made by PW-2 and PW-3. PW-4
has also supported the prosecution case in
that regard. We have carefully examined
the testimony of these witnesses in order to
decipher as to what exactly was the
conversation made by the accused, which
ultimately enraged the accused to such an
extent that he went on to commit the
second part of the offence.

30. The testimony of witnesses is
limited to the statement of fact about the
accused coming to the house of the
deceased and making inquiries about his
wife and daughter. What exactly transpired
at this stage or what was the contents or
exchange of words between the witnesses
8 All. Jugal Vs. State of U.P.
137
and accused has not been elaborated. From
the evidence on record, this much is clear
that the wife and daughter of accused were
not traceable to the accused. The testimony
of witnesses have been examined by us in
order to ascertain as to what exactly may
have happened. P.W.-1 who is the first
informant and is the son of the deceased
has categorically stated that till date he
does not know where was the wife and
daughter of the accused. This witness says
nothing about the marriage of the daughter
of P.W.-4 on that day. In the crossexamination, he emphatically denies any
knowledge of the marriage of the daughter
of accused and P.W.-4. We find it somewhat
difficult to accept the testimony of P.W.-1
about his not knowing the whereabouts of
his sister or her daughter. This is
particularly shown, as P.W.-2 who is the
neighbour of the deceased has specifically
disclosed that on the date of incident the
daughter of P.W.-4 got married at Amjhara
Temple. If the P.W.-2 who is the neighbour
is aware that the daughter of accused was
getting married on the date of incident, it is
difficult to accept that such fact was not
within the knowledge of P.W.-1. P.W.-2 has
further stated that only Asharam had
attended the marriage of daughter of
accused. Asharam is brother of P.W.-1 but
has not been produced by the prosecution.
Asharam is elder to P.W.-1 and had gone to
Vanpur as per P.W.-1. P.W.-3 has also
supported the prosecution case but his
name neither figures in the first information
report nor has his presence been disclosed
by the other two prosecution witnesses i.e.
P.W.-1 and P.W.-2. P.W.-3 is the primarily
the witness of recovery of articles seized
from the place of occurrence. On the aspect
relating to marriage of the daughter of the
accused, P.W.-3 has not disclosed much.
The only other person who has thrown
some light on the cause of annoyance of
accused or render evidence on the aspect of
motive or cause of the incident is P.W.-4.
P.W.-4 has for the first time stated during
her statement in Court that the accused
wanted to keep his daughter. She has not
disclosed such fact even in her statement
under Section 161 Cr.P.C. The I.O. has also
admitted that such facts have not been
disclosed by P.W.4 to him.

31. Having analyzed the evidence led
by the prosecution with regard to first part
of the incident we, therefore, find that
neither the genesis is proved by the
prosecution nor the exact reason for discord
has been placed on record. We also find
substance in the contention of Sri Rajarshi
Gupta about admissibility of evidence on
the point of motive inasmuch as the
accused has not been confronted with the
statement of P.W.-4 about his stated wish to
keep his own daughter. We also find
substance in the contention of Sri Gupta
that this part of the evidence was later
introduced to portray a horrific picture of
the accused as being a person who wanted
to keep his own daughter and thereby to
suggest that he could go to any extent to
commit a brutal and barbaric act. The
evidence on this aspect of the matter,
however, is absolutely sketchy and does not
inspire the confidence of the Court. None
of the witnesses except P.W.-4 has
disclosed the desire of the accused to keep
his own daughter. Even the statement of
P.W.-4 in that regard surfaces for the first
time when she appeared in the witness box.
The statement of P.W.-4 has also not been
confronted to the accused for recording his
statement under Section 313 Cr.P.C. We,
therefore, disbelieve the prosecution case
founded on the premise that the accused
wanted to keep his daughter and as the
daughter
got
married
elsewhere
he
138 INDIAN LAW REPORTS ALLAHABAD SERIES
committed the barbaric act of killing the
deceased.

32. The prosecution has otherwise not
disclosed as to what exactly transpired
when the accused went to her-in-law's
house at 4 O' clock. The substance of
conversation has not been narrated by any
of the witnesses. Even if we accept the
prosecution case that the wife and daughter
of the accused were missing and he
suspected them to present in the house of
the deceased and having not found them
there, he felt annoyed yet this part of the
evidence would not lead to an inference
that the accused felt so enraged as to have
committed the kind of act as has been
attributed to him in the second part of the
incident.

33. Before proceeding to second part
from the evidence led by the prosecution on
the second part of the incident, we would like
to refer to some features of the present case
which have material bearing upon its
outcome. It is not in issue that the incident
occurred at around 12:30-1:00 in the night
intervening 17/18 June, 2021. The injured
were taken to the district hospital on the same
night. It also transpires that Smt. Chameli
Devi died at around 4 O'clock. Information
with regard to death of Smt. Chameli Devi
reached the police at 6:30 in the morning
through the wardboy. SI Man Singh Pal (PW10) in his statement has stated that he
conducted the inquest at about 6:20 in the
morning. The inquest report (Ext.23Ka) has
been proved by this witness. In the crossexamination, the witness claims that inquest
commenced at 10:30 and concluded at 11:30.
It is, therefore, quite apparent from the
evidence brought on record that the police
had received information with regard to
incident much prior to the time when the
F.I.R. itself was lodged.

34. According to prosecution, the
accused was arrested at 6 P.M. in the
evening.
However,
the
prosecution
witnesses have taken a different stand in
their deposition made before the Court.
P.W.-1 has stated that he came to the police
station from the hospital at 8-9 in the
morning. He has also stated that accused
was arrested at 8-9 in the morning.
Similarly, P.W.-2 has asserted that the I.O.
came at about 10 along with the accused.
P.W.-3 has also stated that the I.O. had
arrested accused in the morning.