HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA. & HON'BLE SHR1 R.N. CHANDRAKAR. *U Appellant In Jail Respondent Criminal Appeal No. 405/03 Rajesh Ramteke, S/o Jagdish Ramteke, ege 35 yeare, Clerk, Tehsil Office, Patari, Distt. Raipur (CG) R/o Janata Colony, Q.N0.219 PS Gudiyari, Raipur (CG) Versus State of Chhattisgarh, Through Police Station Palari, Distt. Raipur (03) Present Mr. Satyendra Sahu. learned counsel for the appellant Mr. Kishore Bhaduri, learned Addt. AG forthe State. ORAL JUDGMENT (Delivered on 8th October, 2009) Per Dhirendra Mishra. J 01. The appellant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 25th February, 20C^ passed in S.T.No.247/01, whereby learned II Additional Sessiorfs Judge. Baloda Bazar, Distt. Raipur, has convicted him under Section 302 of the IPC and sentenced to undergo life imprisonment and pay a fine of Rs.500/-. in default to further undergo Rl of six months for causing homicidal death of his wife Meenakshi @ Tanuja Ramteke. 02. Briefly stated, case of the prosecution is that on 24.2.2001 at about 10 am the appellant, who resided with his wife-deceased Meenakshi @ Tanuja Ramteke in a tenanted house in Palari, poured kerosene on her person and set her on fire by matehstidc. Dr. Hemkumar Verma, the landlord of the appellant, treated the deceased and also Snformed her family members at Nagpur and Gudiyari. The deceased was taken to Ralpur, where she was admitted in MECOHORA (Medical College Hospital Raipur) with 85% burn injuries. In the meantime, her family members came from Nagpur and being dissatisfied with the treatment, they took her to Nagpur on 25.2.2001. The deceased was admitted in Suretec Hospital, Nagpur on 25.2.2001. Her statement was recorded by Dhantoli police of Nagpur and thereafter. the Executive Magistrate also recorded her dying declaration and information regarding the aforesaid incident was sent by Dhantoli police to Police Station-Palari, on the basis of Which initially >^^, 03. 04. 05. offence under Section 307 of IPC was registered against the appellant on 27.2.2001 at 17 hours vide Ex.P/10. However, before registration of the offence.from the record it appears ttiat potice constable Purushottam Sahu, who was posted at the relevant time at Police Outpost-MECOHORA, sent a memorandum of Ex.P/21 to Chief Medical Officer, MECOHORA, Raipur for medico tegal examination of the deceased and on the same date the appellant was also sent for medical examination vide Ex.P/22. The above constable also addressed a memorandum of Ex.P/22 to the CMO, MECOHORA and requested to apprise whether the deceased was in a position to give her statement. While the deceased was admitted in Suretech Hospital, Nagpur, her statement was recorded by PW-6 N.N. Bevade, Sub-lnspeclor, who subsequently requested the SHO, Tehsildar and the Special EKecutive Magistrate, Nagpur for recording dying declaration of the deceased, whereupon Shri V.P. Robert, Executive Magistrate, Nagpur recorded dying declaration of the deceased vide Ex.P/23. On the basjs of intjmation of Ex.P/24 and deathcertificate dated 10.3.2001 issued bySuretech Hospital, Nagpur, merg intlmation of Ex.P/14 was recorded in Police Station-Dhandoli. Inquest over the dead body was prepared vide Ex.P/19 and the dead body was forwarded by Nagpur police for postmortem to MECOHORA. Postmortem report of Ex.P/27 has been proved by Dr. Girish Deshpandey. After completing investigation. charge sheet was filed in the Court of Judicial Magistrate First Class, Baloda Bazar, who, in turn, committed the case to the Court of Sessions Judge, Raipur and the same was received on fransfer for trial by the learned Additional Sessions Judge. Learned trial Court framed charge under Section 302 of the IPC against the appellant, who abjured his guilt. The prosecution in order to establish charge against the appellant examined seventeen witnesses in all. Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C., in which he denied the circumstances appearing against him in the prosecution case, and pleaded innocence and false implication. Learned trial Court after hearing counsel for the respectwe parties, convicted and sentenced the appellant as described in para-1 of this judgment. 3 06. Undisputedly, at the time of incident the appellant resided with his wife-deceased and children at Palari where he was working as a clerk in the office of Tehsildar, Palari. Deceased Tanuja sustained burn injuries while residing with the appellant in his presence. She was treated initially by the landlord Dr. Verma and was subsequently shifted to MECOHORA with 85% burn injuries. After her relatives came from Nagpur, she was shifted to Nagpur and admitted Sn the Suretec Hospital. 07. Case of the prosecution is that statement of tiie dweased was recorded by R/V-6 N.N. Bevade, Sub Ihspector, on 25.2.2001 vtele Ex.P/6. wherein she stated that she was married to ttie appellant some six years back, she has two children through him. The appellant suspected her character and on account of this. there was quarrel between them. He had once assaulted her by a knjfe; however, she did not lodged report with the police. On 24.02.2001 while she was cooking and her husband was preparing to 90 to office, her husband kicked on her back.Whereupon she retaliated that she js sick of him and she would pore kerosene and die. Rajesh snatehed stove from her and set her on fire by matchstick. On catehing fire she shouted, whereupon Dr. Verma came there and treated her. At 3:00 p.m. her father-in-law came to Palari and brought her to Raipur. Her parents also came to Raipur and took her to Nagpur for treatment. She has also stated that she reads and writes in Hindi, Marathi and English and she has studied up to B.A. He recorded the statement in the presence of Dr. Deshpandey in the hospital in Marathi. and Hindi franslation of her statement is annexed as Ex.P-6/A. 08. Further case of the prosecution is that after taking down her statement. the Sub-inspector sent a request tetter to the Executive Magistrate for recording her dying declaration and he has ateo ascertained from the doctors treating the deceased whether she was in a fit condition to give statement or not. whereupon they said that she is fit to give statement vide Ex. P-7. 09. PW-15, V.P. Robert, Executive Magistrate. Nagpur has disposed that after receiving the memo of Ex. P-8 from Dhantoli police, h© went to Apollo Hospital, Nagpur and ascertained from the treating doctor whether Minakshj Ramteke was in a fit condition to giw statement, who replied that she is in a position to give statement and thereafter, recorded her dying declaration in question-answer ^ ^IMN^ form. In her dying declaration before the Executive Magistrate also. she repeated the same allegations against the appellant fliat he poured kerosene over her and set her on fire. Since Minakshi was not in a posjtion to put her signature, her thumb impression was obtained. 10. PW-17. Dr. Girish Deshpandey. I.C.U. In-charge Doctor of Suretec Hospitalt has also disposed that the deceased was admitted in the hospital and she was undergoing treatment under him. She had sustained 80% to 85% burn injuries and he treatwl her from 25th February to 10th March 2001 and during treatment, she died on 10th March 2001 at 3:10 p.m. He has stated that she died as a result of terminal cardio respiratory arrest due to 85% mix flame burn due to septicemia. This witness has also proved the post mortem reportof Ex. P-27. 11. In view of the aforesaid evidence available on record we are of the opinion that homicidal death of deceased Minakshi @ Tanuja Ramteke is established. 12. Shri Satyendra Sahu, learned counsel for the appellant, submits that conviction of the appellant is based on alleged dying declaration made by the deceased before the Executlve Magistrate, Robert. However. no doctor has been examined to establish that the deceased was conscious and frt to give statement when her dying declaration was recorded. There is evidence of PW-13, Purushottam Sahu, Police Constable, who made queries from the Chief Medical Officer of MECOHORA to the effect whether the deceased was in a fit condition to give stetement or not, and the doctor replied to the query that she is not fit for giving statement, whereas her statement was allegedly recorded at Nagpur on the same date in detail. Therefore, in the absence of any certificate duly proved by the treating doctor, the alleged dying dedaration becomes suspicious. He further submits that the appellant himself sustained 20% burn injuries while trying to save the deceased and in these circumstances, he was entitled for benefit of doubt as the deceased died since she had caught fire accidentally while cooking. 13. On the other hand . learned counsel for the State has supported the impugned judgment of the trial Court. 5 L-- 14. We have heard learned counsel for the parties and perused the materials available on record as also impugned judgment. 15. From the evidence of PW-2 Madhukar, Aabaji Meshram, maternal uncle. PW-3 Smt. Banmala Meechandra Gedam, mother, PW-4 Meechandra Kavadji Gedam, father of the deceased as also the dying declaration made by the deceased before N. N. Bevade (R/V-6), we find that relationship between the appellant and ttie deceased was strained since long. The appellant had eariier also assaulted her with a knife. however no report was lodged. The deceased herself disclosed in her dying declaration before Mr. Bevade that the appellant suspected her character and on account of the same. there was quarrel between them and he had assaulted her with knife in the past. Thought, the parente and other relatives of the deceased have also stated that the deceas^l informed them during treatment ttiat the appellant poured kerosene and set her ablaze, but their statements under Section 161 of Cr.P.C do not mention the same. However, from close scrutiny of the aforesaid witnesses. it can be inferred that the deceased and the appellant did not have cordial relationship and there was frequent quarrel between them as the appellant suspected her character. 16. We have already reproduced dying declaration (Ex. P/6) recorded by Mr. Bevade, and dying declaration (Ex.P/23) recorded by the Executive Magistrate. They are officers of the other states they have been subjected to cross examination by defence in detail, however. the defence could not impeach the credibllity of the aforesaid witnesses and there is no reason to disbelieve the evidence ofthe above two witnesses. who are independent officers of the State of Maharashtra. The dying declaration was recorded immediately after the incident whereas the deceased was alive till the 10th March 2001 when she ultimately succumbed to the burn Injuries. 17. In these circumstances, we are of the opinion that the trial Court was justified in relying upon the evidence of the aforesaid witnesses. So far as defence of the appellant that the deceased accidentally caught fire and hesustained burn jnjuries while trymg to extinguish fire is concerned, no such suggestion has been given to the witnesses of dying declaration in this regard, and the appellant. who was admittedly present at the time of incident in the 6 18. ^ house and also susteined burn injury in the same incidwit, has nowhere stated in his statement under Section 313 of Cr.P.C. ttiat the deceased accidentally caught fire while cooking and he sustained burn injufy while trying to extinguish the fire. The incident occurred in the house where only Uie appellant and ttie deceased were present and in these circumstances, in the absence of any cogent and reliable defence by the appellant that the deceased accidentally caught fire, the dying declaration made by the deceased before the police Sub-inspector and the Executive Magistrate can not be disbelieved. On the basis of aforesaid discussion, we are of the opinion that there is no illegaljty or infirmity in the impugned judgment of the trial Court. The appeal is without substance, the same deserves to be dismissed and is, accordingly, dismissed. Sd/- Sd/- i R-N. Chandrakar Dhirendra Mishra i Judge Judge i^