Kalloo and Others vs State of U.P.

R.K. Rastogi, J.—All these bail applications have been moved in Criminal Appeal No. 3385 of 2005, Kalloo and Ors. v. State of U.P. Appeal No. 3385 of 2005,, which has been filed against the judgment and order dated 17.6.05 in S. T. No. 146/2003, State v. Kalloo and Ors. and in S.T. No. 249/2003, State v. Smt. Majitun and Ors. of District Banda which had been decided by Sri Raj Kumar-II Additional Sessions Judge Court No. 3 Banda vide his judgment and order dated 17.6.2005 whereby he convicted the accused Appellants Kalloo, Abdul Rahman, Waheed, Naim, Smt. Majitun, Smt. Hasmatun and Smt. Bhoori u/s 302/34, I.P.C. and sentenced them to life imprisonment and to a fine of Rs. 1,000 each. It was further provided that in case of default in payment of fine, they will have to undergo imprisonment for six more months.

The prosecution case starts with the F.I.R. lodged by Salim son of Kalloo at Police Station Kotwali Nagar, Banda on 5.12.02 at 10.15 p.m. in which it was stated that he is resident of Mohalla, Mardan Naka near Gazimiya Dargah, Police Station, Kotwali Nagar, Banda and he had gone to offer namaz. When he was returning back to his house after offering namaz, he saw his father Kalloo and brothers Naim and Abdul Rahman and one Waheed son of Sajjan were coming out of his house and his wife Rafikun Nisha was shouting "bachao, bachao". He went inside the house and noticed that all these four accused persons had burnt his wife after pouring kerosene oil upon her. He shouted for help. Then his neighbour Mr. Ajij reached there and he and Mr. Ajij tried to extinguish the fire and in this process Salim and Ajij received burn injuries. It was alleged that the above named four persons had burnt his wife with an intent to kill her. Thereafter he and Ajij took Rafikun Nisha to the District Hospital Banda and got her admitted there in a serious condition. This incident had taken place at about 8 p.m. Mohd. Salim had enmity with the above named persons who were threatening to kill them.

On the basis of the above report police registered a case u/s 307/506, I.P.C.

It appears from perusal of the record that Rafikun Nisha was admitted in the District Hospital at 8.15 p.m. and the doctor on emergency duty sent a letter to the Tahsildar/S.D.M., Banda through the Kotwali Nagar Banda for sending a Magistrate to record the dying declaration of Smt. Rafikun Nisha. This letter was sent at 9.25 p.m. and then the Naib Tehsildar reached the hospital at about 11.40 p.m. The Doctor certified that Smt. Rafikun Nisha was in proper senses and she was in a position to give her statement. Then Sri Raj Bahadur, Magistrate/Naib Tehsildar, Banda recorded her statement in question answer form in which she stated that Kalloo (Sasur), Abdul Rehman (Jeth), Waheed (Jeth), Naim (Dewar), Bhoori (Sas), Hasmatun (Jethani) and Majitun (Devrani) had poured kerosene oil upon her and Hasmatun (Jethani) had burnt her by lighting a match stick. The process of recording the dying declaration was completed at 11.50 p.m. and then the Doctor again gave a certificate that Rafikun Nisha was in proper senses at the time of recording her statement. It further appears from perusal of the record that Salim and Ajij both were medically examined at the District Hospital, Banda on 5.12.02 at 9 p.m. and 9.10 p.m. respectively and both of them had burn injuries on their hands, and hair of their head and moustache were also burnt. Since the condition of Rafikun Nisha was serious, she was referred to the Medical College, Lucknow. When she was being taken to Lucknow, she died in the way. Then the case was converted u/s 302, I.P.C.

The police after investigation submitted a charge-sheet against all the accused persons named in the dying declaration. They were tried by the learned Additional Sessions Judge who convicted all of them u/s 302, I.P.C. Aggrieved with the above judgment and order Smt. Majitun and Smt. Bhoori filed Criminal Appeal No. 2806 of 2005 on 14.7.2005.

This appeal was listed before a Bench consisting of Hon''ble K. K. Misra and Hon''ble R. C. Pandey, JJ., for hearing on admission on 18.7.2005. After admission of appeal, their Lordships assessed the following order on the prayer for bail of these two Appellants on the same date:

According to the F.I.R. four persons have been given the role of pouring kerosene oil on the deceased and one person has been given the role of setting fire with a match stick.

We have gone through the statements as well as dying declaration. No specific role has been assigned to the present Appellants. Their case is different from them who have poured kerosene oil and have set in fire.

Considering the facts and circumstances of the case let the Appellants involved in S.T. No. 249 of 2003 be released on bail subject to his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the C.J.M., Banda.

Another appeal bearing Criminal Appeal No. 3385 of 2005 was filed by the present applicants on 9.8.2005 and it came up for hearing on admission before another Bench consisting of Hon''ble M. C. Jain and Hon''ble (Mrs.) M. Chaudhary, JJ., on 11.8.05 and on that date this Bench, after admission of the appeal, passed an order for summoning the lower court record and further ordered that the case be listed on 18.10.05 for orders on the bail application. The arguments on the prayer for bail of the Appellants were heard by a Bench consisting of Hon''ble K. K. Misra and Hon''ble M. Chaudhary, JJ., on 25.10.05 who rejected the prayer for bail with the following observations:

The contention of the learned Counsel for the Appellants is that the deceased had received 95% burn injury and it was not possible for her to speak. The learned A.G.A. has argued that the Doctor has given the certificate that she was in a fit mental condition to make dying declaration. Specific role have been assigned to the Appellants. Under the circumstances, no case for bail is made out. The prayer for bail is rejected.

After rejection of the prayer for bail the accused Abdul Rahman, Naeem and Smt. Hasmatun Appellant Nos. 3 to 5 of Criminal Appeal No. 3385 of 2005 moved second application for bail on 4.8.2006 which was registered as Criminal Misc. Second Bail Application No. 161721 of 2006. On this bail applciation the Bench consisting of Hon''ble K. K. Misra and Hon''ble M. Chaudhary, JJ., passed the following order on 1.9.2006:

The case is released. Lay it before Hon''ble Chief Justice for nomination of another Bench.

Then the Hon''ble the Chief Justice passed an order on 12.9.2006 for listing it before appropriate Bench.

On 27.10.06 the accused-Appellant Waheed, Appellant No. 2 of this appeal filed second bail application which was registered as Criminal Misc. Second Bail Application No. 223433 of 2006, Kallu Appellant No. 1 of this appeal also moved second bail application on 20.3.2008 which was registered as Criminal Misc. Second Bail Application No. 73799 of 2008. All these bail applications came up before a Bench consisting of Hon''ble Imtiyaz Murtaza and Hon''ble K. N. Ojha, JJ., on 25.8.08. This Bench, while considering the second bail applications, noticed that bail was granted to Smt. Majitun and Smt. Bhoori in Criminal Appeal No. 2806 of 2005 on the ground that no specific role had been assigned to these Appellants and their case was different from those who poured kerosene oil and had set fire. It was further pointed out that according to the dying declaration of the deceased the specific role of pouring kerosene oil had been given to both Majitun as well as Bhoori. Their Lordships made the following observations in this regard in their order dated 2.5.2008, passed in Second Bail Application No. 73799 of 2008 of Kallo:

It is submitted by learned Counsel for the Appellants that a Division Bench comprising of Hon''ble K. K. Misra and Hon''ble R. C. Pandey, JJ., has granted bail to co-accused Majitun and Bhoori on 18.7.2005 on the ground that: no specific role has been assigned to the Appellants and their case is different from them who have poured kerosene oil and have set in fire.

We have perused the dying declaration of the deceased which is as under:

Kalloo Sasur, Abdul Rahman Jeth, Waheed Jeth, Naim dewar, Bhoori Sas, Hasmatun Jethani, Majitun Devrani ne mitti ka tel dalkar jalaya hai. Hasmatun Jethani Ke hath me machis thi jisasey aag lagayee gayee thi. Yah Abdul Rehman ke gharwali hai. Thus, it is clear that the deceased in her dying declaration has clearly mentioned the names of Majitun and Bhoori, who have poured kerosene oil.

The above Bench was of the view that since first bail application of the Appellants had been rejected by the Bench consisting of Hon''ble K. K. Misra and Hon''ble M. Chaudhary, JJ. and since Hon''ble M. Chaudhary, J., was still available at Allahabad High Court, the matter should be heard by the Bench consisting of Hon''ble M. Chaudhary, J., the matter was therefore, referred to Hon''ble the Chief Justice for passing appropriate orders regarding putting this case before a Bench consisting of Hon''ble M. Chaudhary, J.

The case was thereafter ordered to be put up before appropriate Bench and on 23.3.09 it was ordered by the Bench consisting of Hon''ble Imtiyaz Murtaza and Hon''ble S. C. Nigam, JJ., to be listed before a Bench of which Hon''ble Imtiyaz Murtaza, J., is not a member. Thereafter this matter came up before this Bench for hearing.

We have heard learned Counsel for the applicants of the aforesaid three second bail applications as well as the learned A.G.A. for the State.

It was submitted by the learned Counsel for the applicants that the accused Smt. Majitun and Smt. Bhoori have already been granted bail in Criminal Appeal No. 2806 of 2005 and the same role, which was assigned to the above named Appellants released on bail, has been assigned to the present Appellants/ applicants also in the dying declaration of Smt. Rafikun Nisha and so bail should be granted to them on the ground of parity.

We do not agree with this contention. It is true that the role assigned to the present Appellants of Criminal Appeal No. 3385 of 2005 as well as to the Appellants of Criminal Appeal No. 2806 of 2005 in the dying declaration of the deceased Rafikun Nisha is the same, but it appears that at the time of disposal of the prayer for bail of the Appellants in Criminal Appeal No. 2806/05, correct facts were not put up before the Court hearing the bail application of those Appellants and in spite of the fact that specific role of pouring kerosene oil upon the deceased had been assigned to Smt. Majitun and Smt. Bhoori also in the dying declaration of Smt. Rafikun Nisha, it was misrepresented before the Court that no specific role had been assigned to them and that their case was different from those who had poured kerosene oil upon the deceased and had set fire. When bail has been granted to Smt. Majitun and Smt. Bhoori by misrepresentation of facts and concealing this fact that the specific role of pouring kerosene oil upon deceased Rafikun Nisha has been assigned to Majitun and Bhoori also in the dying declaration of Smt. Rafikun Nisha, the present Appellants cannot claim bail on the ground of parity on the basis of a bail order which was procured by misrepresentation of facts.

It was also submitted by the learned Counsel for the accused Appellants that it appears improbable that six persons jointly poured kerosene oil upon a lady. This plea is on the merits of the case and it was available to the learned Counsel for the Appellants at the time of hearing of the first bail application, and when the first bail application has been rejected on merits, they cannot take the same plea at the stage of second bail application which is entertainable on that new ground only which was not available at the time of hearing of the first bail application.

It was further submitted that the names of Majitun and Bhoori do not find place in the F.I.R. lodged by the informant who is husband of the deceased and so addition of names of these ladies in the dying declaration is an afterthought. This plea also could be taken at the time of hearing of the first bail application. Moreover, it is to be seen that the informant Salim is not an eye-witness of the fire incident, and as per the F.I.R. version, when he was returning back to his house after offering namaj, he saw the accused Kalloo, Waheed, Naim and Abdul Rahman coming out of his house, and after going inside the house, he saw that his wife was burning. His wife stated in the dying declaration before the Magistrate that the aforesaid four persons as well as Smt. Majitun Hasmatun and Bhoori had poured kerosene oil upon her and Hasmatun had burnt her by igniting a matchstick. It was submitted by the learned A.G.A. that, in this way, there is no contradiction between the F.I.R. version and the dying declaration.

It was further submitted by the learned Counsel for the Appellants that the Appellant Kallu was aged about 70 years on the date of his statement u/s 313, Cr. P.C. recorded on 9.11.04 and so his present age is about 75 years and so he should be belied out on the ground of his old age. Taking into consideration the seriousness of the allegation against him that he tried to burn his real daughter-in-law by pouring kerosene oil upon her and that his daughter-in-law died as a result of burn injuries, we are of the view that it is not such a case in which any relief should be given on the ground of old age of Appellant No. 1.

It was further submitted that the accused Waheed is not a family member of Kalloo and other accused persons and he has been falsely implicated and so he should be bailed out. It is to be seen that the name of Waheed finds place in the F.I.R., according to which, he alongwith other accused persons was seen coming out of the house of the informant and there is specific allegation in the dying declaration of the deceased that he had also poured kerosene oil upon Rafikun Nisha and so we are of the view that Waheed cannot be granted bail on this ground that he does not belong to the family of the remaining accused persons when there is direct allegation against him in the dying declaration.

In this way, we do not find any good ground for allowing the above noted second bail applications of the Appellants. They are, therefore, dismissed. However, hearing of appeal is expedited. Let paper book be prepared within two months and thereafter both the appeals be listed for hearing of arguments.