[i(!i! CF0000062300 iilli gtitlII ienci) B.! THE HI6H GOURT QF JUDIC;ABTRE_^_ AffiX-.PUR o^..-'"" Griminal Appeal No.^Q_of 99 J»PPBr,TAN'rS ~s^t~»'-mi, J> 1- > J^ Ved prasad son of Kanakdas, aged about 55 years. premabai wife of Ved prasad»^ aged about 4s years«: Lakshidas son 6f Ved prasad, aged about 25 years» All issident of Thakurjura, Police Station Birra-aDistt. Bilaspur (Mp)«' Versus 1311 E'iili ^ila^rtj^—. RESpOKTQEi're A .State of Madhya gradesh, through polioe StationHirrl, Distt. BilasDur aim ^ APPELLANTS RESPONDENT HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 1077 of 1999. Ved Prasad and others. VERSUS State of Madhya Pradesh (now Chhattisgarh). Shri Anand Vermfl, counsel for the appellants. Shri Neeraj Mehta PL for the respondenVState. CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. JUDGMENT (13.01.2010) This appeal is directed against the judgment dated 07.04.1999 passed by the Additional Sessions Judge, Bilaspur, in Sessions Trial No. 46/1999 convicting the accused/appellants for the offences punishable under Sections 498-A'and 304-B of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for two years with fine of Rs. 200 and rigorous imprisonment for seven years respectively for both the offences plus default stipulations. It is worth mentioning that during the pendency of appeal, appellants Ved Prakash and Lakshidas have expired and consequently their appeal abated vide order dated 27.8.2009. Now this appeal relates to accused/appellant Premabai only. ft 2. Case of the prosecutron in brief is that dn 11.9.1998 merg intimation Ex. P-4 was given by deceased/appellant Ved Prakash to the effect that deceased Gangabai wife of deceased/appellant Lakshidas had suffered 98 per cent burn injuries and succumbed to the same on the that very day. Based on the merg (Ex.P-4) the matter was investigated and ultimately on 15.9.1998 FIR (Ex. P-5) was registered against the three accused persons. 3; So as to hold the accused/appellant guilty, prosecution has examined 09 witnesses in support of its case. Statement of the w..'^'"t. ItanBiE'il I'll!!..]! accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in she denied the charges levelled against her and pleaded her innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused / appellant for the offence as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the.judgment impugned. 6. Counsel for the appellant submits that there are general and omnibus allegations against the accused/appellant and no specific role has been attributed to her. He submits that in fact the deceased has died an accidental death by coming into contact with the lamp. He submits that there is nothing on record to show that soon before her death she was subjected to cruelty or harassment at the hands of the accused/appellant. 7. On the other hand counsel for the respondent/State supports the impugned judgment and submits that as the deceased has died within two years of her marriage, burden of proof lies on the appellant. According to him, from the evidence available on record it is clear that the deceased was subjected to cruelty by the accused/appellant and therefore the judgment impugned is just and proper. 8. Statement of Dilharan Das' (PW-1) cousin of the deceased reveals that marriage of deceased Gangabai was performed with the deceased/accused Lakshidas about two years prior to the date of incident and.one year after the marriage Gavna ceremony was also performed. He has stated that,husbandof the deceasedused to demand bicycle, watch and money and used to say that deceased Gaogabai was from a poor family and therefore he did not like her. Punnidas (PW-2) father of deceased Gangabai has made almost similar allegations as made by Dilharan Das (PW-1). He however has stated that he was informed by the deceased that the accused S4 % @ ll'K:: persons were demanding bicycle, watch and money from the deceased. This witness has further stated that before the death of Gangabai she had lived with him for about one month and thereafter she was sent to her matrimonial house where she died. He has stated that when the deceased was being sent to her matrimonial house, she was not willing to go there saying that she would be again harassed by the accused persons. Though certain allegations have been made by thisWitness, there is no specific allegation against the present appellant' except the general and omnibus ones. There is nothing on record to show that soon before her death the deceased was subjected to cruelty by the accused/appellant in any manner. Dashrath Das (PW-3) who happens to be grand father of the deceased inrelation, has stated that deceased Ganga Bai had informed him that her husband used to demand money and harass her. Khelawan Yadav (PW-6), the neighbour of the accused persons has stated that on the date of incident, accused Lakshidas and one Rohit had come to him at about 10.30 p.m. saying that deceased Ganga Bai had suffered burn injuries. He has stated that thereafter he went to the house of the deceased where he saw her lying on the cot and was feeling tremendous pain. Thereafter she was taken to the hospital in a tractor by the accused persons. When this witness put a specific question to the deceased as to how she got burnt, she was simply crying and did not say anything. Investigating Officer - A.K. Khan (PW-7) has stated in his evidence that number of allegations made by Punnidas (PW-2) and Dashrath Das (PW-3) in the Court statement do not find place in the diary statement. Dr. Manoj Jaiswal (PW-8) who conducted the post mortem examination on tbe body of the deceased has stated in his evidence that he had not found any smell of kerosene oil on the body of the deceased though burn injuries were present thereon. 9. From the entire material available on record it is clear that the prosecution has been unable to establish as to how the deceased sustained burn injuries and died an unnatural death. Further, there is no evidence available on record to suggest that soon before her death, the deceased was subjected to cruelty by the accused :'.?""!a8'' "^ ^ .^ • ..r''3f' Il;;!! :' Et! -</- persons. Apart from this, there are several contradiction and omissions in the statements of the witnesses examined by the prosecution. From the record it is apparent that the main allegation is against the husband of the deceased (deceased/appellant) only and so far as otheraccused persons including the present appellant are concerned, the allegations made against them are general and omnibus in nature. Moreover, conviction of the accused/appellants is mainly based on presumption as defined under Section 113-B ofthe Evidence Act. Accordingly, this Court is of the considered opinion that it will not be safe to convict the sole surviving accused/appellant on the evidence led by the prosecution especially when the main allegation is against the husband of deceased Gangabai, who too has expired during the pendency of the appeal. In these circumstances, the present appellant Premabai is entitled for benefit of doubt. 10. Having analyzed the factual position of the case in hand in the light of the evidence adduced by the prosecution, this Court has no hesitation to hold that the impugned judgment convicting and sentencing the accused/appellant as mentioned above is based on no evidence and therefore the same is liable to be set aside. 11. Resultantly, the appeal is allowed. Impugned judgment dated 7.4.1999 is hereby set aside. Appellant (Premabai) is acquitted of all the charges levelled against her. ^d/-^ Pritinker Diwakar Judge rf\]\^ ,Ki