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Non-Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

   CRIMINAL APPEAL NO.714 OF 2009

State of U.P.         …. Appellant

Versus

Damodar & Anr.                  …. Respondents

O R D E R

Uday Umesh Lalit, J.

1.   This  appeal  by  special  leave  challenges  the  order  dated  07.09.2006

passed by the High Court of Judicature at Allahabad  in Govt. Appeal No. 2923

of  2003  rejecting  leave  to  appeal  preferred  by  the  appellant  against  the

judgment  and order of  acquittal  dated 24.03.2003 passed by the Additional

Sessions Judge, Court No.8, Azamgarh in Sessions Trial No.484 of 1995.

2. According to the prosecution, marriage between the deceased Sunita and

Respondent  No.1  was  solemnized  in  the  year  1988  while  her  gona  was

performed in 1992 whereafter she started living in her matrimonial home.   Her

father  Laldev had given  dowry and gifts  in  the marriage according to  his

capacity but could not fulfil the demand for a gold chain and ring, because of

which  her  husband  i.e.  Respondent  No.1  and  his  family  members  were

harassing Sunita.  

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3.    On 01.09.1994 in the early hours a dhebri i.e. lamp is said to have fallen

on  the  mattress  on  which  Sunita  was  sleeping.   She  caught  fire  and  was

completely burnt.   The fact  that  she was so burnt  at  4.00 am was seen by

neighbour PW4 Bachhi Devi.   According to the witness Sunita’s brother in law

came to her place asking for a torch stating that Sunita had suffered burns.  The

witness  went  to  the  house  of  Respondent  No.1  and  found  Sunita  in  burnt

condition.  Sunita then  stated to the witness “jo hona tha ho gaya”.

4. Sunita was taken to Primary Health Centre, Azamgarh where PW6 Dr.

Om  Prakash  Shrivastava  treated  her  at  7.00  AM  and  found  that  she  had

suffered 100 per cent burns.  Since her condition was serious she was referred

to Sadar Hospital but Sunita died while she was being taken to that Hospital.   

5. Around 3.00 PM on that  day her  brother-in-law went  to  the parental

house  of  Sunita  in  a  jeep  and  told  PW1  Tara  Devi,  her  mother  that  the

condition of Sunita was serious and insisted that she accompany them.  PW1

Tara Devi along with her sister-in-law PW2 Reena Devi accompanied them.

They  found  Sunita  in  completely  burnt  condition.   It  is  the  case  of  the

prosecution that the in-laws of Sunita obtained thumb impression of PW1 Tara

Devi forcibly on a piece of paper and thereafter cremated Sunita.

6. Laldev, father of Sunita at the relevant time was working in Mumbai.  He

received information through a telegram and came home.  He approached the

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police  station  but  no  action  was  taken.   Subsequently  Laldev  sent  an

application on 09.09.1994 to the SSP, Azamgarh stating full details whereupon

the  case  was  registered  on  20.10.1994  against  the  respondents.   After

conducting investigation the charge sheet was filed and charges were framed

against the respondents under Sections 498A and 304B IPC.

7. The trial court after considering the material on record found that the

prosecution had failed to establish that the death of  Sunita had occurred in

unnatural manner.  It referred to the fact that PW4 Bachhi Devi had gone to the

house  of  Respondent  No.1  at  4.00  AM  and  had  found  that  mattress  was

burning  and  Sunita  was  lying  at  some  distance.   She  also  found  smell  of

kerosene oil emitting from the bed.  It was held that the possibility could not be

ruled out that the death of Sunita had occurred as a result of a lamp having

fallen on the mattress.   The trial  court  further  relied upon the fact  that  the

parents of deceased Sunita were informed and that the cremation had taken

place after their consent.  Though PW1 Tara Devi had stated that her signatures

were obtained on a piece of paper forcibly, the trial court concluded that the

death occurred as a result of falling of a lamp on the mattress and acquitted the

respondents of the charges leveled against them.

8. The  appellant-  State  sought  leave  to  appeal  against  the  aforesaid

judgment and order of acquittal, by preferring Government Appeal No.2923 of

2003,  which was rejected by the High Court vide its order dated 07.12.2006.

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The order passed by the High Court is quoted below:

“We have heard learned A.G.A. for the State appellant and perused the impugned judgment.  The deceased Sunita died of burn injuries.  Her cremation was made in presence of her parents.  A delayed F.I.R. was lodged with the allegation that there was demand of dowry and she was done to death. The trial court appears to have considered all the facts and circumstances of the case emerging from the record.

In above view of the matter, we do not find any force in the prayer to grant the leave to appeal.

The leave to appeal is rejected.”

9. The aforesaid order of the High Court is under challenge in the present

appeal.  Appearing for the State Mr. Pramod Swarup, learned senior Advocate

invited  our  attention  to  the  relevant  material  and  evidence  on  record  and

submitted that the assessment made by the trial court was completely incorrect

and that the High Court ought to have independently assessed the evidence.  In

his  submission,  the  order  of  the  High  Court  was  very  cryptic.     Learned

counsel appearing for the respondents supported the view taken by the High

Court.

10. In our considered view the approach of the High Court in the instant case

was completely incorrect.  The order does not indicate that it considered the

evidence led by the prosecution.  To say the least, it appears improbable that a

person as a result of falling of a lamp on the mattress could be reduced to the

status of 100 per cent burns.  Even if he was asleep, the normal reaction of

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such person and the other inmates of the house would be to douse the fire.

Therefore  the  matter  had  to  be  considered  whether  the  death  occurred  in

suspicious  circumstances  or  not.   The  statement  “jo  hona  tha  ho  gaya”

attributed  to  Sunita  is  not  indicative  that  whatever  happened  was  a  pure

accident.   We are conscious that the appeal itself was of the year of 2003 and

left  to  ourselves,  we  would  have  gone  into  the  matter  and  considered  the

merits.  However, leave to appeal having been dismissed without even issuing

notice to the other side, screening of the material and consideration of rival

submissions at the appellate stage stood completely denied.

11. In the circumstances we set aside the order passed by the High Court and

remit  the  matter  to  the  High  Court,  which  may  be  considered  afresh.  We

request the High Court to dispose of the same as expeditiously as possible.

We may not be taken to have expressed any opinion on merits of the matter.   

12. The appeal stands allowed in these terms.

………………………..J. (Pinaki Chandra Ghose)

………………………..J. (Uday Umesh Lalit)

New Delhi, May 06, 2015

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ITEM NO.1D               COURT NO.11               SECTION II (for Judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  714/2009 STATE OF U.P.                                      Appellant(s)                                 VERSUS DAMODAR & ANR.                                     Respondent(s)

Date : 06/05/2015 This appeal was called on for pronouncement of  judgment today.

For Appellant(s) Mr. Pramod Swarup, Sr. Adv. Mr. Sandeep Singh, Adv. Mr. Anuvrat Sharma, Adv. Ms. Alka Sinha, Adv.

                     For Respondent(s) Mr. Mukesh Kr. Sharma, Adv.                    Mr. Rameshwar Prasad Goyal, Adv.                      

Hon'ble  Mr.  Justice  Uday  Umesh  Lalit  pronounced  the non-reportable  judgment  of  the  Bench  comprising  Hon'ble  Mr. Justice Pinaki Chandra Ghose and His Lordship.  

The appeal is allowed in terms of the signed non-reportable judgment.

(R.NATARAJAN)        (SNEH LATA SHARMA)  Court Master       Court Master