RAMAKANT MISHRA @ LALU Vs. STATE OF UP

JUDGEMENT

(1.) These Appeals assail the Judgment dated 13.07.2010 of the learned Single Judge, High Court of Judicature at Allahabad, Lucknow, who had affirmed the conviction of the Appellants and the sentencing under Sections 498A and 304B of the IPC pronounced by the VIIIth Additional District & Sessions Judge, Faizabad on 15.4.1999. The essay, therefore, is to reverse the concurrent findings and sentence of the Courts below.

(2.) The endeavour of the learned counsel for the Appellants is almost entirely predicated on an exculpatory Dying Declaration allegedly made by the deceased, who was the wife of the 1st Appellant and the sister-in-law of the 2nd Appellant and the 3rd Appellant. The deceased Vijay Lakshmi was married to the 1st Appellant, Ramakant Mishra, in 1989 and from that wedlock a son named Sonu was begotten. Sonu has been living with his maternal grandparents who have cared for all his requirements, without any efforts on the part of the Accused towards taking over his custody or making any contribution for his expenses. The prosecution has shown/proved that due to non-fulfillment of demands of dowry the deceased was harassed, tortured and treated with cruelty. The exact date of the marriage is not forthcoming, but it avowedly took place much before the expiry of seven years of the unnatural death of Vijay Lakshmi. On the morning of 21.9.1994 she has been shown by the prosecution to have been put on fire after sprinkling kerosene oil on her body. The husband/Appellant No.1 and the other Accused appear to have admitted her in a hospital and, thereafter, disappeared from the scene, not even being bothered to be present at her cremation. She succumbed to 90-95 per cent burn injuries at 11.30 p.m. that very day. Jagdamba, Appellant No.2 and brother-in-law of the deceased, has stated that when the deceased was preparing milk on the chulah, Sonu toppled the container of kerosene oil and its contents spilled on the floor; in her endeavour to pick up her son Sonu, her saree allegedly got caught in the chulah, resulting in the saree catching fire and her receiving 90-95 per cent burns. In the Impugned Order it has been noted that the opinion of the Doctor was that death resulted from burn injuries. The Chargesheet was submitted against four Accused named in the FIR, one of whom (the father-in-law of the deceased) has died.

(3.) Very recently, this Court had the opportunity of interpreting Section 304B of the IPC in Criminal Appeal No.1592 of 2011, titled Sher Singh v. State of Haryana, 2015 1 SCR 29 which was authored by one of us (Vikramajit Sen,J.). Succinctly stated, it had been held therein that the use of word 'shown' instead of 'proved' in Section 304B indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, 'shown' will have to be read up to mean 'proved' but only to the extent of preponderance of probability. Thereafter, the word 'deemed' used in that Section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The 'deemed' culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong 'presumption' of his culpability. However, the accused is required to dislodge this presumption by proving his innocence beyond reasonable doubt as distinct from preponderance of possibility.