@ HIGH COURT OF CHHATIISGARH AT BILASPUR HON. MR. DHIRENDRA MISHRA, & HON. MR. R.N. CHANDRAKARI JJ’ DIVISION BENCH: CRIMINAL APPEAL NO.1014 OF 2002 Suresh Kumar' and oTher‘s APPELLANTS (In Jail) Vs RESPONDENT Sfa‘re of Chha'r‘risgar'h JUDGMENT FOR CONSIDERATION Sd/- DHJRENDRA SI-IR mA Judge HON'BLE SHRI R.N.CHANDRAKARI J Sdl- Judge 9 W } RN. Chandrakarr 54’ POST FOR JUDGMENT ON§2l OCTOBER, 2009 Sd/- 1 m Dhirendra Mishra 1 \ Judge \ y ‘ \ é? IGH COURT OF CHHATTISGARH AT ‘BILASPUR DIVISION BENCH: HON. MR. DHIRENDRA MISHRAK & HON. MR. R.N. CHANDRAKAR, JJ CRIMINAL APPEAL NO.1014 OF 2002 APPELLANTS ‘ . Suresh Kumar‘, S/o Jageshwar Pr'asad Qn Jail) aged 32 yr‘s. 1 2. Shan‘ri Bai, W/o Jageshwar‘ Pd. Aged 48 year‘s. 3. Rakesh Kumar', 5/0 Jageshwar‘ Prasad, aged 3O year‘s. All R/o village Kui, P5. Kukdur‘, Dis’rT. Kawardha. REsPONDENT State of Chha1+isgarh, Through‘SHo, P.S. Kukdur‘, Dis'r‘r. Kawor‘dha. Present: Mr. U’rkarsh Verma, learned counSel for The appellunfs. Mr. Ashish Shukla, learned Governmenf Advoca‘re for ’rhe Sfa’re. 'JUDGMENT (Delivered ona2 I . 10.2009) Per Dhirendra Mishra. J: 1. This criminal appeal is direc'red againsf the judgmenf of convic’rion and order of sen‘rence dafed 22.7.2002 passed in 5T No.481/00 whereby fhe learned II Addifional Sessions Judge, FTC, Mungeli, Disfricf Bilaspur has convicted appellanfs under Sections 302 of th‘e IPC and sentenced each of them to undergo life imprisonment for causing homicidal death of 1 % years Satyendra Kumar—son of appellant No.1. 2. Case of the prosecution, in brief, is that on the basis of information given by appellant Suresh Kumar Morgue No.21/00 was registered and on morgue inquiry, it was found that Uttarabai, wife of appellant Suresh, was murdered by throttling and thereafter, her dead body ms set on fire with a view to conceal the evidence of murder and to show that she committed suicide. Deceased Safyendr'a was Thrown over The burning body of deceased U’r’rarabai. Affer‘ morgue inquiry, SHO Rajesh Devdas 'lodged a report on 5.11.2000 agoinsf The appeiianfs for causing homicidal deafh of Safyendra Kumar vide EXP/9. Inquesi’ over The dead body was prepared in fhe presence of witnesses vide EXP/2. Thereaffer, dead body was sem for au’ropsy ’ro Primary Heal’rh Cenfer, Pandariya, where Dr. V.P.JaisWal and Dr. PL Kurre, conducfed pos’rmor’rem and gave Their repor‘r of Ex.P/6. Spo‘i map was go’r prepared vide EXP/20. 3. Affer complefing inves’rigai’ion, charge shee‘r was filed againsf The accused/appeilanTs in The CourT of Judicial MagisTraTe FirsT Class, Mungeli, who in Turn commiTTed The case To The CourT of Sessions Judge, Bilaspur and The same was received on Transfer for Trial by The learned AddiTional Sessions Judge. 4. Learned Trial CourT framed charge under SecTion 302 or in The aITernaTive 302/34 of The IPC againsT The appellanTs, who abjured Their guiIT. The prosecuTion in order To esTablish charge againsT The accused/appellanTs examined 8 wiTnesses in all. ThereafTer, sTaTemenTs of accused/appellanTs were recorded, in which They denied The circumsTances appearing againsT Them in The prosecuTion case and pleaded innocence and false implicaTion. AppellanT Suresh also conTended ThaT aT The Time of incidenT, he was in his Tea shop in The weekly markeT of Kui, whereas appellanT Rakesh Kumar Took a defence ThaT he was employed as WaTchman in PanchayaT Bhavan and he resided in The PanchayaT Bhavan, he does noT know abouT The incidenT, and he reached The spoT aT 2.30 hours. They also examined Laxmi Thakur and Krishna Kumar in Their defence as DW-1 and DW-Z respecTively. 5. Learned Trial CourT afTer hearing counsel for The respecTive parTies, convicTed & senTenced‘ The appellanTs as menTioned in para-1 of This judgment ~ . Convicfion of The appellan‘rs is basad on circumstanfial evidence. The ’rriul Cour‘r affer framing issues for consideration in para—10 of ifs judgment held fha’r Dr. VP Jaiswal (PW-7), who conduc‘red posimor’rem and proved The report of Ex.P/6, has opined fhaf deceased Sa’ryendra died 18—24 hours before pos’rmor‘rem, cause , of deafh is shock as a resui‘r of burn injuries sus’rained by him. The version of Dr. Jaiswal has no? been challenged in fhe cross examination. Learned trial Court referring To fhe evidence available in S.T.No.480/OO, wherein if has been conclusively held fhaf U’rfarabai-mofher of Safyendra was murdered by fhro’n‘Iing and her dead body was sef on fire lafer on, inferred fhaf affer murdering Uffarabai, her dead body was placed on bed spread on fhe floor, Safyendra Kumar was made To lie on The abdomen of Uffarabai and fhereaffer, kerosene was poured and fhey were sef on fire. However, The accused persons could noT wiThsTand The horrible scene and Therefore, They mighT have Taken ouT deceased SaTyendra in semi—burnT condiTion. RejecTing The evidence of The appellanTs ThaT They were noT presenT on The spoT aT The Time of incidenT, iT has been held ThaT deceased SaTyendra susTained 95% burn injuries in The bedroom of appellanT Suresh Kumar, from where he was Taken ouT in semi-burnT condiTion, in fhese circumsTances, The onus was on The appellanTs To give conclusive explanaTion as To how UTTarabai died due To ThroTTling and how Their son SaTyendra susTained burn injuries. In The absence of any valid ‘explanaTion, adverse inference can be drawn againsf ‘Them under SecTion 114G of The Evidence AcT. Since some of The wiTnesses have sTaTed ThaT appellanT No.2 reTurnedafTer Taking baTh and she Was wearing weT cloThes, iT has been observed ThaT iT is very likely ThaT Some kerosene mighT have fallen on The cloThes of appellanT No.2 ShanTibai and To cause iTs disappearance, she mighT have gone To river and washed her cloThes and again reTurned back on The spoT. Accordingly, iT has been held ThaT all The Three appellanTs 0n 18.10.2000 aT 12.30 in day sprinkled \ \a-gm kerosene on The person 'of deceased Safyendm, aged 1 % year's in The bedroom of appellan’r Suresh Kumar and his wife, and se’r him on fire with an infenTion ’ro cause his deafh. Affer Sa'i'yendra Kumar susfained 95% burn injuries, he was Taken ouT, however, he died whiie being taken 1‘0 hospi'ral on way. Thus, the appellanfs have caused intenfional dea’rh of Sa‘ryendra Kumar, which is proved beyond reasonable doub’r. 7. Shri Ufkarsh Verma, Iearned counsel appearing for The appellan1s, argued fha‘l‘ finding of fhe frial Courf is based on no evidence. The whole finding is based on conjecfure and surmises wifhou‘r fhere being any iofa of evidence To establish the same. The trial Court has relied upon the finding recorded in $.T.No.480/00, which is not permissible under the law. The appellants were not given any opportunity by the trial Court to rebut the presumption that has been drawn on the basis of finding recorded by the trial Court in S.T.No.480/OO. 8. On the other hand, learned counsel for the State supported the impugned judgment of the trial Court. 9. We have heard learned counsel for the parties. We have also perused the record of the trial Court as also the impugned judgment. 10. At the outset, we strongly disapprove separate prosecution of the appellants for murder of Uttarabai and Satyendra Kumar. Admittedly, both the persons died as a result of incident, which oc‘curred in the house of appellant Suresh Kumar at 12.30 hours on 18.10.2000. From the case of the- prosecution itself, it is evident that the act alleged against the appellants in both the trials is one series of act so connected together as to form the same transaction and are committed by the same persons. In these circumstances, the appellants could be tried for both the acts by one trial. \\ ~ @‘3 11.The frial Court in The impugned judgmen’r has extensively referred To fhe finding recorded in connecfed S.T.No.480/00 and has based iTs conclusion for convic’ring fhe ’appeHan‘rs on ’rhe findings recorded in connecfed session ’rrial, which, in our opinion, “ is no? permissible under 1‘he law. 12. Deceased Safyendra Kumor is son of appellanf Suresh Kumar born through his wife U1‘Tarobai. PW—1 Udanlal Dinkar is fo'iher of I U’rforabai. Sum and subsfunce of evidence of ‘rhis wifness is ’rho‘r Safyendra is son of his daughfer U‘h‘arabai married To appellan’r Suresh. He received informafionfrom SHO, Kui fhm‘ U’ri'arabai is sick. He came To Village-Kui wifh his wife and was appriSed Tha'r U’riarabai and Safyendra are dead. The villagers of Kui apprised Them fhaf Safyendra was presenf in ’rhe room wi’rh Uffarabai. He had also sus’rained burn injuries, he was alive. However, he died while be was being faken for Treatmenf fo Pandariya hospifal on way. 13. PW—Z Mohanlal has deposed Thai when he reTurned from Pandariya To Village-Kui, he learnT ThaT UTTarabai and her son have died. He heard in Kui markeT ThaT UTTarabai and her son have been seT on fire afTer pouring kerOSene. 14.PW—3 Narendra Singh has depOSed ThaT on The daTe and Time of incidenT, on hearing The noise, They wenT To The hou3e of Suresh and found UTTarabai lying dead due To burn injuries. Her child, aged abouT 1 % years, was Taken ouT in a semi—burnT condiTion from The room. He died on way while he was being Taken for TreaTmenT To Pandariya hospiTal, whereupon his dead body was broughT back To The house of Suresh. The police reached The spoT afTer an hour. Tehsildar was called from Pandariya, Panchanama was prepared in The presence of Tehsildar, seizures were made and \ inquesT over The dead bady of SaTyendra was also prepared. :3131*1 (p 15.5imilar is ’rhe evidence of Shan’ribai (PW-4). She has been cross examined by ’rhe prosecution: however, she has s’ruck To her examinafion-in-chief. 16.PW-5 Ramprasad has also deposed ‘l‘haf he was called by police a? The time of inques’r over The dead body. He signed The inquesT of Ex.D/2. He is noT aware as To how UTTarabai and her child died. However, They had received burn injuries. He reached The spoT aT abouT 2.30 only afTer hearing in The markeT abouT The same. 17.PW-6 Jagmohan has also deposed ThaT he wenT To The house of Suresh aT 9-9.30 where he meT his wife. He informed her ThaT he is Taking his goods, aT ThaT Time only Suresh was presenT There. He did noT see oTher accused persons in The house. AfTer some Time he heard commoTion ThaT wife of Suresh has died after burning and his son is injured. This wiTness has been declared hosTile, however, he has sTuck To his examinaTion-in-chief. 18.PW—7 Dr. Jaiswal has conducTed posTmorTem and proved his reporT of EXP/6. He has deposed ThaT he examined SaTyendra Kumar, aged abouT one year. Smell of kerosene was emanaTing from his dead body. ExcepT abdominal parT of The deceased, righT elbow, inTerior side of forearm, backside of neck, inTerior parT of boTh Thighs, over resT of his body burn injuries were presenT. Skin had blackened due To burning, base of vesicaTion was red in colour, The line of redness was presenT beTween‘ The burnT and unburnT skin, blue colour medicine was pasTed over The injuries. OrfinTernal examinaTion, he found carbon parTicles in Trachea, righT chamber was full of blood whereas lefT chamber was empTy. All The burn injuries were anTemorTem in naTure and exTenT of burn was 85%. Thus, he opined ThaT SaTyendra died as a resuIT of shock due To burn injuries. 19.PW-8 Rajesh Devdas is The invesTigaTing officer. EnTire invesTigaTion was conducTed by him and he has proved The same. $ \_~ 20.0n due considerafion of overall evidence available on record, we do nof find cm iofa of incrimina'ring evidence againsf The appellan’rs. We have already observed fhe finding of The friul Cour’r in the foregoing paragraphs. The whole finding is based on maferials, which are nof available on record of 'rhe ins‘lan‘l session friol. 21. For The aforesaid reasons, we are of The opinion ThaT The enTire finding recorded by The Trial CourT is perverse and beyond The evidence available on record of The preSenT session Trial and The some canno’r be susTained. 22.In The resulT, The appeal is allowed. ConvicTion of The appellanTs under SecTion 302 of IPC and senTenced imposed Thereon, are seT aside. They are acquiTTed of The above charge. They be seT aT liberTy forThwiTh, if noT required in any oTher case. / / e, Sd/- Sdl- i DI‘HRENDRA MISHRA Chandrakafg Judge 1m.