Prem Shanker vs State of U.P.

Surendra Vikram Singh Rathore, J.—Heard learned counsel for the appellant, learned A.G.A. for the State and perused the lower court record.

Under challenge in this appeal is the judgment and order dated 26.3.2008 passed by learned Additional Sessions Judge/Fast Track Court No. 6, Kanpur Nagar in Sessions Trial No. 646 of 2001 arising out of Case Crime No. 89 of 2001, Police Station G.R.P. Kanpur, District Kanpur, whereby present appellant Prem Shankar was convicted for the offence under Section 302 I.PC. and he was sentenced with imprisonment for life and also with fine of Rs. 25,000/- with default stipulation of one year additional imprisonment.

It a case of murder of his wife by the appellant. The case of the prosecution is that on 28.1.2001, one Bhawani Shankar Agnihotri received a phone call from the appellant that he brought deceased Suman Devi to Kanpur where she has expired. After getting this information, complainant Mool Chandra, who happens to be the brother of the deceased, immediately went to Chaudagra, Police Station Aung, District Fatehpur where he came to know that appellant after administering something to his wife, had taken him on the pretext of her treatment on 26.1.2001 to Kanpur and left her at Kanpur Railway Station. She was admitted by the police in Hallet Hospital where she died. It was alleged that after the marriage, father in law of the deceased, namely, Sankata Prasad, mother in law, Devar Daya Shankar, Shiv Shankar and the appellant used to treat her with cruelty in connection with demand of dowry. The deceased used to make complaint of such cruel behaviour of her family members of her in laws house. The complainant and his family members had talked with the accused persons but it paid no dividend. When complainant sold some part of his land, then these persons again pressed their demand saying that now you have sufficient money and made a demand of Rs. 25,000/-. The complainant in his F.I.R., which was registered at Police Station on 28.1.2001 at 21:40 hours expressed apprehension that his sister has been murdered by administering poison on her.

Before registration of this case, on 26.1.2001, deceased Suman Devi was found crying with pain at railway station Kanpur Nagar. She was offered help by PW-2 Meena Devi, who was a Datoon vendor at the railway station. She was told by the deceased that her husband had administered something on the pretext of medicine, which increased her pain and thereafter he went away saying that he is going to bring medicine. Since she was crying badly, and saying that her husband has administered poison to her because even after several years of her marriage, she could not give birth to a child. In the meantime, police personnel also reached there and her dying declaration was recorded. On the said dying declaration, her thumb impression was obtained. Thereafter she was taken to Hospital. Ultimately she died in Hallet hospital on the same day. Her postmortem was conducted on 28.1.2001 at 1:30 p.m. But in the postmortem report, the cause of death could not be ascertained, hence Viscera was preserved. According to the Viscera Report dated 15.6.2001, aluminum phosphide poison was found in Viscera. During the course of investigation, inquest proceedings were conducted and the place of occurrence was inspected.

On the F.I.R. of the complainant, the case was registered and subsequently it was transferred to District Fatehpur. But subsequently it was again transferred to Kanpur because the death had occurred at Kanpur Central (City Side) Station.

After completing the investigation, charge sheet was filed only against the present appellant.

The defence of the appellant was of total denial and his false implication at the hands of the police. In defence DW-1 Sankata Prasad, father of the appellant, has been examined.

After appreciating the evidence available on record, the trial court has convicted the appellant as above, hence, the instant criminal appeal.

Submission of learned counsel for the appellant is that in this case, the complainant was not an eye witness of any fact and dying declaration recorded by the police, was not reliable and there is no other evidence to connect the appellant with the instant offence.

Per contra, learned A.G.A. has submitted that there is evidence of PW-2 Meena Devi before whom, the deceased has given statement that she has been administered poison by her husband. So this amounts to her oral dying declaration. Apart from it, PW-9 S.I. Ram Vishal Singh Yadav has also proved the written dying declaration, which was recorded by him. According to the inquest report, the deceased died on 26.1.2001 in Hallet Hospital. So there was absolutely no occasion for the police to get the dying declaration recorded by any Magistrate. Her dying declaration was recorded when even the F.I.R. was not in existence, therefore, the police had absolutely no occasion to falsely implicate any person and the Investigating Officer recorded the correct statement, whatever was told by the deceased. So the trial court has not committed any illegality in relying upon the said dying declaration.

In this case, charge was framed under Section 302 I.P.C. and also an additional charge was framed under Section 498-A and 306 I.P.C. After trial, the appellant was convicted under Section 302 I.P.C.

In order to prove its case, the prosecution has examined PW-1 Mool Chand, who is the complainant of this case. It is true that he is not the witness of any fact. However, he has stated about the marriage of the deceased with the appellant and also regarding the demand of dowry and consequential ill-treatment of the deceased. So the evidence of this witness was not of much consequence because he got the information of this incident only on 28.1.2001 by phone while the deceased died two days prior to the said date on 26.1.2001. PW-2 Meena Devi is the Datoon Vendor. She has stated that she has been doing this work for the last 20-22 years. She has stated that on railway station she met a lady, who disclosed her name as Yamuna Devi wife of Prem Shankar (appellant) and at that time she was crying with stomach pain. She disclosed that her husband asked her to sit and has given some medicine in a Pudiya, which increased her stomach pain. Thereafter he ran away from there saying that he is going to take medicines. She was crying and praying for help to save her. She had also stated that perhaps she has been administered poison by her husband because even after several years of her marriage, she could not give birth to any child. In the meantime, the police personnel also reached there and had noted her dying declaration. In her cross-examination on behalf of the appellant, she has stated that the age of the deceased was about 20-25 years or she may be less than 20 years. However, she could not remember as to what clothes, she was wearing. We cannot ignore the fact that the evidence of this witness was recorded on 21.7.2007 i.e. after more than six years of occurrence. She remained lying there on the platform for about 2 hours and she could not control her Urine and Stool, which also passed during the said period. During this period, none of her family members came to her. PW-2 Meena Devi has fairly admitted in her cross examination that the deceased was not administered anything by her husband in her presence. This witness also remained present at the time when the police had recorded her dying declaration before taking her to hospital. She has also accompanied her to hospital. After reaching the hospital, the deceased died only after half an hour in the hospital. Since the deceased had become unconscious by the time she reached the hospital, so her statement could not be recorded by the doctors. PW-2 Meena Devi has also stated that when the statement of the deceased was recorded by the police, the deceased was conscious. During cross examination, father of the appellant, namely, Santaka Prasad, who has been examined as DW-1, was present in court and this witness has specifically stated that this person was not present at the place of occurrence nor was present in the hospital. PW-3 is Constable Vishal Singh Bahdauria, after getting the information about one ailing lady (Suman Devi), this witness went there. The name of the deceased was enquired into, then she disclosed her name as Suman Devi, wife of Prem Shankar, Police Station Aung, District Fatehpur. He got his papers prepared and thereafter took her to K.P.M. Hospital where-from she was referred to Hallet Hospital on the same day. She died in Hallet Hospital. This witness has also stated that he had taken PW-2 Meena Devi along with him, who used to sell Datoon on the platform on the city side. Dying declaration was recorded in her presence. This witness has also stated that Suman Devi was not known to her and her name, parentage and address was disclosed by her. PW-4 Dr. Shashank Srivastava had conducted the postmortem on the body of the deceased on 28.1.2001. PW-5 is Constable Manoj Kumar Sharma, who has stated that he was on duty at the railway platform on the city side. When he reached near Suman Devi, then she told him that her husband, on the pretext of medicines, has administered some poison to her. Her statement was recorded by S.I. Ram Vishal Singh Yadav. She was admitted in hospital and she was accompanied by PW-2 Meena Devi to hospital also. PW-6 is C.P. Ram Sagar Tiwari, this witness had taken the deceased to hospital. So the evidence of this witness is formal in nature. PW-7 is P.K. Mishra, S.O. G.R.P. Kanpur, who has furnished details of investigation. He has investigated this case and filed charge sheet against the appellant. PW-8 S.I. Ramendra Singh, who is a formal witness, who has prepared chik report and G.D. of this case. PW-9 S.I. Ram Vishal Singh Yadav, who has recorded the dying declaration of the deceased and has proved it. In the instant case F.I.R. was registered subsequent to recording of the dying declaration by PW-9 Ram Vishal Singh Yadav. So he was not the Investigating Officer of that case who may be interested in the success of his investigation. Investigation of this case was conducted by PW-7 P.K. Mishra, S.O. G.R.P.

On behalf of the defence, DW-1 Sankata Prasad was examined, who has stated that he had brought his daughter in law for treatment to Kanpur Nagar because the village doctor was not properly treating her. They got down at railway station where her condition deteriorated. So leaving the deceased on the platform, he went to make arrangement of conveyance. By the time, he came back, Smt. Suman Devi (deceased) was not present there. He was informed by the public that she has been taken by the police personnel and in his absence something was consumed by Smt. Suman Devi or it was administered by some other person. He went to K.P.M. Hospital but she was not present there. He went to Hallet Hospital, by that time, she died. He has stated that it is wrong to say that appellant Prem Shankar had brought her for treatment to Kanpur.

Perusal of the impugned judgment shows that learned trial court, has placed implicit reliance upon the dying declaration of the deceased and on the basis of the same, has convicted the appellant keeping in view the other attending circumstances.

We have gone through the evidence available on record and we find that the evidence of PW-2 Meena Devi was wholly reliable as she was absolutely unknown and unconcerned with the appellant. She had absolutely no occasion to falsely implicate the appellant. The other police witnesses have also supported the presence of PW-2 Smt. Meena Devi near deceased Suman Devi. This witness has also disclosed the name and husband''s name of the deceased. Since the deceased was resident of a different district, different village, therefore, neither the police personnel nor this witness were in a position to know her name and address. So the only conclusion is that whatever was told by the deceased to this witness or to the police personnel was recorded by the police. Keeping in view the serious condition of the deceased, her dying declaration was recorded, which has been proved during trial wherein the deceased has specifically made allegation against her husband. The deceased has nowhere stated that she was brought to Kanpur by her father in law while she has stated that her husband brought her for treatment to Kanpur where she was asked by her husband to take something on the pretext of medicine saying that it is a Bhabhuti given by a Baba and it will cure you. Thereafter her husband gave water to her to drink, which increased her stomach pain within ten minutes. When she told it to her husband then he went away from there saying that he is going to the market. She was crying with pain. In the meantime, the police personnel and one lady also reached there, who took her to the hospital. She has expressed apprehension that her husband had administered poison to her because she could not give birth to any child after marriage. Thus the defence of the appellant that he had not taken his wife to Kanpur stands fully falsified. The deceased has specifically stated that appellant was the person who brought her to this place i.e. Kanpur Central Railway Station. Apart from it, the evidence of DW-1 also appears to be false. The statement of DW-1 that leaving the deceased on platform, he went to make arrangement of conveyance and came out of station is unbelievable because Kanpur is a Central Station and round the clock every type of conveyance is available on both the sides of Kanpur Railway Station. So there was absolutely no occasion for DW-1 to go out of station alone. When the deceased was in pain then he must have taken the deceased with him out of station and thereafter to make arrangement of conveyance. This conduct of the witness shows that he is giving a false statement only to save his own son (appellant). Apart from it, PW-2 Meena Devi during her cross examination, has specifically stated that he had not seen DW-1 Sankata Prasad at any point of time neither at railway station nor in hospital. There is yet another aspect to disbelieve the evidence of DW-1 Santaka Prasad. According to his evidence, when he reached Hallet Hospital, by that time, Suman Devi (deceased) had expired. But admittedly, in this case the complainant got the information of the the death of Suman Devi on 28.1.2001 i.e. after about two days of the occurrence. So if DW-1 Santaka Prasad was present in Kanpur and got the information of the death of his daughter in law on 26.1.2001 then why he had not preferred to inform the family members of the deceased. So this conduct of DW-1 Santaka Prasad clearly shows that he is giving absolutely false evidence simply to save his own son. The fact of death of Smt. Suman Devi was not even in his knowledge upto 28.1.2001 when the family members of the deceased were informed. The presence of aluminum phosphide in Viscera report corroborates the dying declaration that her husband had administered poison to her. It is true that in this case the police has recorded the dying declaration. In hospital there was no sufficient time and deceased was also not found in fit medical condition in the hospital so her dying declaration could not be recorded by a magistrate. We do not find any reason to disbelieve the said dying declaration. It is not a case where dying declaration was recorded by the Investigating Officer.

In the peculiar facts and circumstances of this case, when the police personnel and PW-2 Meena Devi were not aware of the whereabouts and name of the deceased, inspite of that they have recorded the statement, wherein she has given her correct name and address, gives rise to the only conclusion that the police has acted absolutely in fair manner. The Police personnel and PW-2 Meena Devi had absolutely no occasion nor any reason to falsely implicate any person because neither the deceased nor the appellant were known to them. PW-2 Meena Devi has proved her oral dying declaration, PW-9 Ram Vishal Singh Yadav has recorded her written dying declaration and the same stands fully corroborated by the presence of aluminum phosphide poison in the Viscera. The fact of recording the dying declaration also stands proved by the ocular evidence of other witnesses. The evidence of other witnesses also establishes that at that point of time she was in a fit mental condition to give statement.

It is really strange to note that deceased Smt. Suman died in the evening of 26.1.2001. Appellant Prem Shankar, who happens to be her husband made absolutely no effort to inform the police that his wife is missing. The defence taken by the appellant that it was his father who brought her for treatment has been found to be false. So this false defence plea taken by the appellant also provides an additional circumstance against him. Reference may be made on this point to the pronouncement of Hon''ble the Apex Court in the case of Rameshbhai Mohanbhai Koli and Others Vs. State of Gujarat, and Kuldeep Singh and Others Vs. State of Rajasthan, .

Learned counsel for the appellant has also placed reliance on the pronouncement of this Court passed in Criminal Appeal No. 6891 of 2006 but the facts of that case were absolutely different. So no benefit of the same can be extended to the appellant. There is yet another aspect of the case because the deceased in her dying declaration had stated that her husband Prem Shankar brought her to Kanpur and after administering something, he went away from there saying that he is going to market. Since the deceased was brought to Kanpur by her husband, therefore, it was the duty of her husband to explain under what circumstance her wife was administered poison. The appellant could not furnish any explanation and as discussed earlier has come with a false defence. So whatever occurred was exclusively within the knowledge of the appellant only, therefore, Section 106 of the Indian Evidence Act shall come into play. Section 106 of the Indian Evidence Act reads as under:--

"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

At this juncture, we would like to quote the pronouncement of Hon''ble the Apex Court in the case of State of Rajasthan Vs. Kashi Ram, , Hon''ble Apex Court in paragraph-23 has held as under:---

"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain."

(emphasis added)

Learned counsel for the appellant has also raised some other arguments which were also raised before the trial court. After going through the impugned judgment, we are of the considered view that the learned trial court has considered the said arguments and has rightly rejected the same. Since we concur with the view taken by learned trial court, so we do not consider it necessary to deal with said arguments again as it would be a futile exercise and would unnecessarily lengthen the judgment.

It transpires form the evidence on record that during the course of investigation, Ration card and the marriage invitation card of the appellant was taken into custody by the police. There is no dispute to the fact situation that the appellant happens to be the husband of the deceased. The Ration card of the appellant has been proved by the prosecution and only the appellant and his wife (deceased) have been shown as the family members in the said Ration card. DW-1 Santaka Prasad was not shown as member of the said family. It also transpires from the record that inquest proceedings on the body of the deceased took place on 27.1.2001 in the evening and DW-1 Sankata Prasad was a Panch in the said inquest report. We simply failed to understand as to why DW-1 Sankata Prasad did not inform the husband of the deceased or members of the parental home of the deceased regarding the said incident. This fact came to his notice, according to his own evidence on 26.1.2001. As discussed earlier, the evidence of DW-1 Sankata Prasad was totally false. Apart from it, though the evidence of PW-1 was not very material. But he has stated that he came to know that the appellant had taken his sister for treatment to Kanpur.

Perusal of the inquest report shows that Panch witness including DW-1 Sanakata Prasad was of the view that the deceased died in suspicious circumstances, therefore, postmortem requires to be conducted. But inspite of that, DW-1 Sankata Prasad made no effort to lodge the F.I.R. at Police Station in Kanpur or to inform the parental family members of the deceased. Therefore, this conduct of DW-1 Sankata Prasad shows that he was subsequently called by the police and was not the least present in Kanpur on the date of incident i.e. 26.1.2001 as he has stated in his evidence.

In view of the discussion made above, and keeping in view the fact that the evidence of PW-2 Meena Devi is wholly corroborated by the evidence of PW-9 Ram Vishal Singh Yadav, who has proved the dying declaration. The said dying declaration finds full corroboration by the medical evidence, therefore, the trial court has not committed any illegality in convicting the appellant.

In view of the discussion made above, this appeal sans merits, deserves to be dismissed and is hereby dismissed. The judgment of the trial court is hereby confirmed. The appellant is in jail. He shall serve out his sentence as awarded by the trial court.

Office is directed to communicate this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.