KII-189/(Jail) C.J.P.R. 11/94/2,000 IIJBI CF0000060286 C^4 ^|97 APPEAL OF F'RI^ONER O _ liiVi..-.:. No.^^......?./^.Z.......^.......Na«e....^^.^ F^b^'^name ...~.^^^^.^ %^\(v^-'C7)-q^:-------- Residence......—•........•••.........—.......e. Age .....•...—........••...••.••••• ^.....•—........^ S^tencedto ...yy^^^.^^^^......... On......\s?47../..0/.?^.............. ......... "<;>sff3TCT^RRfHT""""" -^-•—- --•••^" Under section .^.g:^.y^..^.^;...... by^^.^-.g^^..^^^.^ C It is explained to the prisoner that ifhe states or wishes to be represented by legal practitioner the Appellate Court will not proceed with the base for seven days unless fehe legal practitioner appears . If the legal practitioner does not appear within seven days he may not heard at all . Ifthe prisoner states that he does not wish to be repre- sented by legal practitioner the court may proceed at once with the case and will not be obliged to give a hearingto any legal practitioner whoshould appear . 1 Date of Application for copy of Judgement 2 Uate on which copyreceived .. 3 Date on which Appeal sent 4 Whether the prisoner wishes to be represented or not - Yes / No No.... ...................iZ^S/.?.............. Name \. ^ T -^T^"7W •^"a')fb"^T^ Confined in .••.•• •^..^•^y^.^^.».••••....Jail .•...£^4^^..^A^:^'-^^-^-'|i-^.--•••---*-• J^o............ .........C5.71^^Dated...........{/..././.. 199^.... ...... r^. V............. ^^^T-r-^ _J^ , t,S'^^\ , ;, ?:-^arded to the CiimF JUDICIAt-MAGI^ATfi M^c?^~.^3^^;^^@ ^^^^ ^-^--^^o^l^pS^' '^^•''^^K^ togather which a copy of judgement or order passed in the case for favour of traris-" mission to the proper Appellate Court, ~<;-\^\')-~\ TT-^- ^\W-~<AVW^% 'S.^c^s^^ r_^--^^^^^^ Dateofreceiptia... ........ .................... office Date of receipt record to accompany the —....•.•..........,•...........•••.U^, Memo ofAppeaI to ihe Appellate court No Forwarded to the Date ofreceiptm^ fc^-?-^ Dated ....................199, iS^»^tl! ^9^f^ Court tt«^ vo ^ <h (yP. T. O. ) r~?^s^t XI-HC-22 STT^T^T w\^ ^^ ^^^n ^er -^rqM^, ei>Ti1y<t<c, fa<ni<-i^ 3?riw ^^^ •^^8? STI^T'^n^n: ^f^r &msi©n.B^nch:«' - ' .. t Hon'bte Mr. L.C. BhQdQO &nd Hon'ble Mr. &hirendra Mishra. JJ. 21-3-2006 :,••;.•';•.-•.: Mr. V.D, BajpGi, Senior Advo^ Qppeiiant Mr. U.N.S. Oeo, AddJtionGJ Put ©ovt.Adyocate for the StQte/respont Oral judgment dictated on £>a/\ Per L.C. Bhadoe. J;- | By this Gpp€<si under Section Qccused/Q|5pejlant Khemin Bai has jydgment of convic+ion and order o1 Sessions Judge^Raipur, in Se^sions Jud9e after hoidin9 the accused/app^ Section 302 .of the Indian Penai Codi nameiy/ KripaJ, sentenced her to undet The case of the prosecution, ii 1), Panch of ViII^e: Tor/lodged th© Station^ Dhorsi^a to the - effect Ramkhilgwon Verma came to his hous< husbmd Kripai on fire after pourjng Qn receivin9 this information; he wen <=hl^<rl41'l TTP^f^^S T^R?R '^3T^?3in^T ot@ with Mr. R.K. Tiwari, Advocate for the ^iic Prosecufor1 with Mr. D.K ^waire, Deputy lent - ' , • • ' • .: . ' . '. .' , • :' |374 (2} of the Code , of CriniinQ? Prqcedure, uestioned le9Qiify and correctness of the sehtence dated 27-11-1996 possed by the Tria! No.i42/96/ wher!eby iecrned Sessions tllant gyilty for commission of offence under for committing the murder of her husband Igo impr'isonment for iife. brief, is that Santram Mirza @ Mehar (PW- First InformQtion Report (Ex.P-l) in Police 1-hat at about 1 a.m., binesh Chauhan & fc and informed that Khemin Bai has set her p<ertosene on his body whiie he was sleepmg. ^ to the house 6f Kripai ond SQW that he vifas [J^ ^pa^ ' . ^is^^WfyH'i^ XI-HC22 STT^T^T 'f^W'S^T ^H\^ ^n -3-^ '^TRT^PT, "^^PT^^^iTOy W^g^T^^lcb 3?I^T 'q^? ...&...:£^ '^ ^F^S* 3^T'^^rr^^rf^T -.2-i Eying on the 9rouhd in the courtyQrd Bai were sitting by his side. KripQ| once". On enquiry from Kripa!, he ^ after pouring kero^ene on his body ciosing the door from outside. On | s^hich Sukbati Bd A Kheduram ent^ Than^ar brou9ht woter and the fircj of Kripai ^ere burnt and smell of ^as made about Khemin BGJ, but her| brou9ht trGctor and Kripal ^as fake^ i^as consdous and he i^as tdking hosplta!, KripQJ succumbecl to the bur|i Based on this report, ttiie registered Crime Mo.14/96 under Se|; hospital. He prepared the PQnchnQm|3 notice Ex.PaB2 to the Panchds. TTieH and took intb posses^ion one tin box in burnt condjtjon, one bedding/one under Ex.P-4. Sit@ ptan (ExP-65 of Patt^ari. Po^t-mDrt'em on th©h^dy o^ Rdjpur by &r. ,D.C. Jain (PW-t4), Prol (Ex.P-lT) was prepcred by the Invest ^hl^fd^l'l ^l^ldi'^f^t <FJi<^R ^>3T{^R3T[^T md s^os ^rithing in pdn. Birevo Bd A Sukbati identifjed him and he WQS s^/ing swe me rid that his mfe Khemm Bai set him on fire Aeri he i^as sieeping and she ran c^voy after, being ccught by fire, he raised screams on ^red the house after op@nin9 the dc^r, one i^as extingulshed. Jhe cot and the beddin9 kertosene wos emanQtlng from the room. Search Whereabouts couid not be tmced out. They to OhGrsi^a, hospital for treatment. Kripal )H the way. H6wever/ after reaching the Injuries sustained by him. Stcfri&n House Officer; Poiice Stations Dharsivya |;tion 302 of the IP.C. and proceeded to the (ExP-3) of the body of Kripai ofter 9iving ^after, he ieft for the ^cene of occurrence |ontaining small quantity of kerosene/one cot ^ed-yellow cobur bedding and one matchbox )he piace of occurrence was prepQred by the Kripa} was conducted in Mekohara Hospitai, |essor <& Heod of the DepGrtment. Sife piQn Igating Gfficer. : [^^fe^ T' XI-HC-22 3TI^T'^T i^3TT|^T ?^^f^T ^ ^^ ^TqT^PT, ^iilW^ t^rRT^: , 3?1^T ^^K >..&4.^0/22' ' \^ WH^Tf.^MT^ •N^ST' ^TT^T ^7TT^R Trft^t -3.1- After completion of investig^t Judjcicij MagistrQte, First CJc^s/RQ| Sessionsjudge, RQipur.fortriai. rtion, charge sheet wos filed in the Court of ipur, who in turn committed the case to the ac4used The prQsecution in order to e{ 15 ^itnesses. Statemenf of the CrP.C. in ^hich she denied the stated that she i^as not at residerice impiicQted in fhe crime, rtQblish char9e a9Qmst t^le accusecl, examined WQS recorded under Section 313 of the pr^secutjon evidence Gppeonng (^ainst her and ^ she is mhocent and she has been fdseiy aftir Learned Sessions Judge counsel, convicted dnd sentenced I judgment. W^ have heard Mr. V.D. BGJ Tman, iearned counsel for the app^ Pubfic Prosecutor with T^r. D.K. @wa| of the State/respondent. - ^cro^ne As far ^ invoivement.of Kripal on fire after pouring ^cro^r eyewitne^s to the ihcident and the ^yjn9 ^ec'arQtton r^Gde by Kripal conviction based on the circumstantilQi <^l^(^j<i1l 'RFi^ff ^ 'fe^lf ifa^K ^-3:ri^p:r^n^T conciusion of tridl and heGring' respectiv^ h©accused c^ m€ntioned in pora 1 of this Ipd; learned Senior^ Advocote s^ith Mr. R.K. |;Ilant and Mr. U.N.S. Deo, leQrned Additibnd re, iearned Deputy 6'ovt. Advocate on behalf The fact of the death of Kri^al on account of extensive burn injuries ap to 90% is not in dispute. tHe Gccused/appeiiant in setting her husband on his body is concerned, there is no fcose rests on circumstontiai evidence i.e. the Ibefore the witnesses. In order to rest evidence, cxs per the settled law; the Court [Tfr^ ^Hsi^ XI-HC-22 •^T ^'^rTli^T ^Hi^^n '3'^r ^I^IH^, '0^FTO, ^way . 3n^r'q^^ ,.:..a..^ ^ro^ii ^Mi<=h ^ee— •f^r ^T^T ^gr^'^crf^r ^l has to ascertam and see that the crli on the circuiiistontiat evidence on th4 1, the circumstances from whicHi must be cogentlv and fir^Iy e^| 2. those circumstances should b4 towar^ guilt of the accused; 3. the circum^tQnces, takeh that there te no escape probabiiity the crime was 4. the circumstantial evidence in| and incapabie of ©xplanQtion of the accused and such guilt of the accused but shoulc Now,.n we sha!I prQceed to SantrcOT Mir'za © Mehar (PW-1), InformQtion Report (Ex.P-l) in ^hid house of Kripai and on enquiry; K Qccused/GppelIant namely, Khemin B< his body, has turned hostile and not of orai dying declaration made by Kri at fhe request of Public Prosecutor, not made Qny dying declarGtion befc Dihesh Slngh Chauhan (PW-3), Sukhfcati 'SFFifeR^T T?TT^Tf ^ fi^t ipsi^K ^3^rP:T 371^1 me is etstciblished against the accused bc^ed fotiowing points^- cn inference of guiit is sought to be drawn fir^Iy e^tablished; - of-Q definite tendency unerringly pointing cut|nyiativ©!y,shoutd form G, chain so complete ffom the conciuslon'thdt within atl human comtnitted by the accused and none eise; and orden to sustain conviction must be compiete any other hypothesis thon that of the guilt evi^ence shoulcj not only be consistent with the be inconsistent with hi5 innocence, sxamine the evidence- avaiiable on record. for^ner Panch qf the villc^e who lodged the First h©mentioned thot on hjs reQchin9 to the qip<si informed him that his wife i.e. the |i set him on fire after pouring kerosene .on |upported the prosecution case to the extent ibal before him. He has been dedared hostiie |>ut even then/he has stated that KripGl had Fo^e him. Similarly/.Kheduram Nishad (PW-n2)/ ukht>ati (PW-4) <& <?Qnesh Ram (PW-7) hwe also [Tft^ ^fo^ XI-HC-22 ^n^T'^T Pw^ ^nt^T s^^i^ 'yf^a "^S? ^FTR^/ ^Tl1^S.<o, f^ aff^T ^ra^? G>.4.^^ WR^IT^RTc^ p:r turned hostile and they hove not ^ KripQi made dying declarotibn befor^ rdsing cries "swe scive" and his roo Khemin Bai has set him on fire. H^ room. In cross-exQmination (pQra 2 that when he reached the house of to speak. Even on enquiry, he WQS r bumt, I Gm burnt". Kripal has not chl^id4i^ ^i^^iT'? 1^T^ <fa<^K i73tf^W'2R7^I pported the prosecution case that decedsed them. - However, TTianwor (PWa-5) h^s stated in his evidence that on heanng the screQms he wok©from sleep, went t^ the house of Kripd anrfso^ thcrt" Kripal was ^ wos burning. KripQl informcd that his wife s extinguished the fire and c^me out of the ) by counsel for the accused, he hcis stated » SIripal he was writhing in paih and was not Gbl^ ^t oble to tell anything, he was S€ym9, UI om aid onything to hjm. Even he did not enquire from him thot QS to ho^ he receiv€^,theburn injuries. Agcsin, in pcira 4, he has stated that Kripai said that Khemirj hpw he received thej^urn injuries h incorrect to soy thot Kripal was not to th@ house of Kripcil and ^vhen Kr| Bai, Kheduram <& Sukhbati Bai were ^ No^, the question ^hich ari^ to th©reliability on the evidence.of the wholiy relidbte witness/as no CQse. Therefore, the evidence of| verGdty of the evidence given b^ KhedurQm & Sukhbctti 801 were pi^ declGrotion and they heard the sa^ Bai ran Qwcy after setting hini on flre, buf ^ has not informed. Again, }ie said that tt is n a condition to speok, His house is acljcicent |)Q| said about setting Him on fire by Khe.min |so present and they heard. |es for constderation before this Court, is as li'his witness (Th<2nw<3r (PW-5)}, whether he is c^ther witne^s has supported the prosecution this witness requires close scrytmy about him. Eyen this witness hos stated that |esent j^hen the deceased mode orat dying ic. But/Sykhbati BQ? <& Kheduram have not [Tft^ ^Psi^ ~:f~ XI-HC-22 ^I^T'^T, f^n^^n^T <5fe^i<=b ^f^a E—! ^^ ^iTsn^R, ^ftw^,'f^ra^ . ^ni^r 'q5ra? W^Ti^Hlch •^^t' ^n^T ^IT^R ^rf^T —<^ stoted in theip evidence regarding deceased. Other witnesses namely, S4i Chauhan (PW-3) <& eanesh Rom (PV^ decectsed Kripai mdde any dying d€c| accused Khemin Bai. Therefore, the does ndt find corroborGtibn from otHer > when he was there is ddmitted. rhe ,orQf dying deciGratipn made by the itram Mirza @ Mehar ^W"-!); Dinesh Singh ^7) have also not stated anything 1+iat aration regording setting hirn on fire by ^vidence of this wjtness {ThQn^ar (PWaB5)} ier witnesses vtfhose presence at the time thbt 'In the circumstances, in this / Than^ar (PW-5), he hcss ^o taken exQminQtion-in-chief he has stated regordin9, ^tting him on fire by the ^c 3, he hcs^ given a totclly contradktc excEmination-Jn-chief and sdd that eve ^rithirig in pdn. Neither Kripal inform enquired froni Kripal that hoii/ he recei^ cross-exammation, he has stated that Ba|hQ^sethimonfire.TTierefore,thi rejiable and trusttoorthy, becQuse oth< the scene have not supported his versi< In the circumstonces, this witn< Qnd in the bQck9roundwhich has been evidence of this witness for holdin9^ setting Xripal on fire. Aport from tha •^FifeNh 'RTR^f ^ t^zt T^??R iT^OT^n^i fc|Qckground, if ^e examine th©evidence of ^he somersQuSt. Ih the first instance, in h|st deceased Kripoi made dying deciarcrtion :^;used, whereGS in cross-exQmmation in parG ry evidence to whot he has sctid in the jn Knpai ^GES not able fo speak and hc was i^d him regarding^etting him on fire nor he ^ed the bumlhjuries. AQQJH in pQra4 ofhis JKnpal mcsde dying deciQration that Khemin j^ witness cannot be considercd to be wholly |;r persons who ^vere sdd to be present at jn.."- . . , -; -". . • . •" ..: i^ss (Thdnwor (PW-"5)}i5 not wholly reliable (iscussed above, it is not safe to re!y on the |used Khemin Bd responsjble for the oct of "/there is no other circumstantia! evidence [Tit^ ^Rsi^t F XI-HC-22 ffSTT^T^F f<rii5h 3T1^T 5S'?yi<^ ^iii^ 5omG r^ ?x . ^ ' -^ST ^?qM^,^TH^^<g, f^p"^ ^I^T ^TSR ...&.:.tf:^0^ ws-r^i^w^ '1^^' y -59fr^ W^T ^^TT^TC ^T?^T -7 QyQiIable oh record, which connects t it has come in the evidence of witrfi consumin9 iiquor and used to qucr| foregoing reasons, findin9 of the tri^ for cornmission of offence under Secltion In the resuit, the appea! succ) acquitted of charge under Section Qyyarded under thot Secti^n are set 1 required inQny other csse. Parties are entitled for8 certif Sd/.. L.C. Bhadoo Tudge cr>i^I<^<fli ^IH^I '^ Fs^l <pii'^i< ^^Ti^r^n^T 'he accused with the crime in questiofi. Even esses that the accused I^QS in the hdbit of 'el with the accysed. Therefore/ for the 1 Court convicting and sentencin9 the accused 302 of the I.P.C. cannot be sustained. • seds and the same i^ dlbwed. The accused i^ 302 of the I.P.C, and conviction & sentence sside. Sh©be set ot liberty forthwith, if not ied copy of this brder. Sd/- Dhirendra Mishra Judge [^^fe^