CRIMINAL APPEAL U/s 374(2) CLIP, C t . @ mmymygggggygyum‘ $51M gercfw {C Ma BEFGRE THE HIGH ooURT OF Mm. ATJABAIPUR. géél CrLAppeal _/: (94 E?ELmNTS‘ 1. Mushtaq Ail, S/o Ramzan Taiior, ([Njqji) a96& 20 Yrsntf 7 ; 2. Jaybunnisa.Wo Ramzan Tailor, Aged 3: yrs.” Both a/o of Gorela,‘ matt. alasES/ur; (76 g6 ~Versus— RE$°NDENT‘ The state of mp" thrcugh the Police Station Gorela. Distt. Bilaspur. / HIGH COURT OF CHHATTISGARH AT BILASP UR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No. 61‘7 of 1994 Mushtaq Ali and another APPELLANTS Sat f Pades te o Madhya rh ri penr Patel counsel for th applas. Shri Niraj ehta P for responenState. JUDGMENT (12.08.2010) This appeal directed against the judgment d de e is an orr datd . 9.06.1994 passed by Aditional ession udge Bilapur i Ssi ra . 92/98 coicing t accs/appellnt dr ci IPC ndsentenci each ‘o the to u rigus ir afour years. 2. Case te prosecuti in bri is tha mriage of th accused/appellan No.1 as iemnized with dease Latifa u the year 1986 an th deceaed committed suicide ate p \ keosene on her by nd setting erlf la on 13.6.18 arimonial house. n the basis of erg itiation Ex.P- te 87 s n 1987 FI Ex.P-1O a 306 PC. Aer inven h l o .0 of h. on ef t ar e t w so ecd Begm in x d e s fr ouring” r r od a hse abze 097 in her" mt O m nm 12 dad 13.06.19 the invetigation was done and o 06.11. R was registered against the applicnts under section I ft stigatio te chalan was filed n 074.1988. . I order to pr the guilt f te accud/appean p‘roseti has examined 09 itsses. Sttement o the ccused/apean w lso recorded uner Secti 313 of the ode Criml rcedure i wh y d ch a peaded heir ich the enied the arge levelled gainst them and l t inonce an lse implicaton in the case. VERSUS RESPONDENT Sh Pushda e elnt M L dt/ CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE. 0 d Ss J, s n esons Til No 118 nvt he uedas une Seton 30d a‘ng f m ndergo oro mpisonment for I 3 n ove o h sellts, cuon wne as f apllts ere a d on C of ina Po n nce d fa i ,1- 4. Counsel for the appellants submits that even if the entire prosecution case is taken as it is the offence under Section 306 IPC Is not made out against the appellants He submits that present Is a casa where even mother and father (PW2 & PW—6 respectively) of the He submits that conviction of the accused/appellants is based on dying deciaration (EX.P3 7) of the deceased but from that it is not established that she vvas abetted in any manner which left her with no other option but to commit suicide and thus only on the ba3is of the dying declaration they cannot be convrcted r; 5. On the other hand supporting the impugned judgment it has been argued by the counsel for the State that from the very beginning of her marriage, the deceased was subjected to cruelty which ultimately left her with no other option but to commit suicide. deceased have not supported the prosecution case. 6. Heard counsel for the parties and perused the material available on record including the Judgment impugned 7. Abdul Jawar (PW-1) has stated that he knew the family of the accused/appellants and on the date of incident father of the deceased had informed him that his daughter had suffered burn injuries and along '. with him he had gone to the hospital. ln the hospital, he asked th j deceased as to how she sustained burn injuries then she had informed. that due to some disputes with her brother-in-law she set herself ablaze and after about 45 days of the said incident she died. Admittedly this itness has not made any allegation against the accused/appellants not according to him the deceased had informed him anything against the mother of the deceased has stated that appellants. Rahan Bai (PW-2) — after marriage of the deceased she used to visit her parental house but she had never made any complaint against any of the family members of the accused/appellants. She has however stated thatthe deceased died Even this important witness has not made any allegation against the appellants. Anbaro Begum (PW-3) — neighbour of the accused/appellant has stated that on the date of incident when she reached the house of the appellants, she saw the deceased on account of burn injuries. / N .1 w gé —‘3v burning and then she had extmgwshed the fire by putting a bad sheet on her body. She has stated that when she asked the deceased as to hovxt} ' she had got burnt, she had informed that while cooking food her Sari came in contact with fire as a resuit of which she sustained burn injuriesg ' According to this witness there is absoiuteiy no allegation against th accused/appellants. Adam Khan (PW—4) the witness of inquest has no“ supported the prosecution case. Dr. Rajdulani (PW-5) who conducted post mortem examination .on the body of the deceased has stated in his report Ex. P-4 that she died due to shock as a result of burn injuries and at the time of recording of dying declaration of the deceased it is he and , the Naib Tahsildar who were present there. Ramjan .Khan (PW-6) — father of the deceased has also not made any allegation against the accused/appellants and has been declared hostile. R. C. Mishra (PW-8) v‘ v is the Investigation Officer who has supported the ca'se of ,thd prosecution. Bhagawat Prasad Razak (PW—7) — Assistant Sub lnspecto‘ and Anup Singh (PW—9) e Head Constable had participated in the investigation. Thus from the evidence of all the witnesses it is apparen that there is absoiuteiy no allegation against the accused/appellants. A ,8. Now the only question which remains for consideration is the dying declaration Ex.P-7 of the deceased. In dying declaration the deceased U rl ghas stated that on the date of incident she poured kerosene oil on he body, lighted a match stick and set her ablaze. She has stated that about four days prior to the date of incident some dispute had arisen between she and her mother-in law over exchange of a glass and in respect o U ' ' cleansing of utenSils for which she was regularly abused by her mother in law and used to ask her to go to her parent’s house She has also given the reference of the preVIous inCIdent that on account of beating by her mother—in-law she had gone to her parent’s house. However, she had stated that after about one month her mother-in—law had brought her The’ deceased stated that she was subjected to cruelty only by hei husband (appellant No.1) and his mother. She has stated that on the‘ preVIous day of incident the accused/appellant had sat on her chest by pressrng her neck and she some how made herself free after the iintervention of her sister-inlaw and father—In law According to the ; V f l ” t f’ ~ , t ', @‘ deceased, her father-in-law had also scolded her husband then nobody)‘ _ said her anything. She has stated that as she was subjected to cruelty mt her husband and his mother, she waned to die and therefore she set herself abiaze. The Naib Tahsildar who had recorded the dying'deciaration has not ' been examined by the prosecution. Be that as it may, even if the dying declaration is taken into consideration, in the absence of any other evidence, in particular keeping in view the fact that even mother an father of the deceased have not supported'the case, it will not be safe fo " his Court to convict the accused/appellant merely on the basis of dyin ‘ declaration because the utterances made by the deceased in the samey do not attract the abetment as is defined under Section 107 IPC. 9. 10. Thus in view of the aforesaid discussion the findings recorded by; the Court below appear to be based on mis-appreciation of the evidence available on record and that being so the Judgment impugned cannot be allowed to stand Accordingly the appeal Is allowed Judgment impugned is set aSIde Accused/appellants are acqwtted of the charge levelle against them They are reported to be on bail Their bail bonds stan i cpl]- PrmnKer Dlwaii‘er Judge ‘ “x ‘ discharged. t ; i"