IW 'CF'0'000659350 w^on Bend. (Crimlnal) • SiViSi< IN TH2 HIGH ,COURT Oi* FAaiYA PRAI3SSH KF' JABAL?U8< Cm:MlNAL .APPSAL N0.|6^ O? i.991. APP3LLMT s- Radhelai s cn of Chhabllal Chandrakar^ aged 38 years^ ros J3ent of Borgehan^ Accused ^" P.S• Ranchirai^ District .Du rg* (M. P^) • vs^ur. R_?SPONX)ENTk t- State' of Madhya Pradesh<» ^'~' h HIGH COURT OF CHHATTCSGARH AT BILASPUR DIVISION BENCH: Hon'ble Shri Dhirendra Mishra <& Hon'ble Shri Manindra Mohan Shrivastava, JJ. *« Criminal Appeal No. 108 of 1991 APPELLANT (In Jail) Vs RESPONbENT Radhelal son of Chhabi.lal Chandrakar, aged 38 years, resident of Borgahan, P.S. Ranchirai, bistrict Durg (M.P.) State of Madhya Pradesh *, Present: Mrs. Kiran Jain, Advocate for the Qppellant. Mr. S. Yadav, by. 6overnment Advocate for the State. ORAL JUbGMENT (Delivered on 20th January, 2010^ *. Dhirendra Mishra, J. 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 18.1.1991 passed in S.T. No.30/90 whereby learned 3rd Additional Sessions Judge, t)urg, after holding the appellant guilty for cousing death of his wife namely Revati Bai, has convicted him y under Section 302 of the IPC and sentenced to undergo Life Imprisonment and fine of Rs.2,000/-, in default of payment of fine to undergo additional RI for two years. ^< 2. Case of the prosecution, as projected from Para-3 of the impugned judgment, is that the appellant suspected that his wife had illicit relationship with Ramraj Sahu and on account of this on 8.6.1988 when deceased Revati Bai, after returning from the filed, was cooking food in A, the hearth, the appellant poured kerosene and set her on fire. When Revati Bai tried to come out of the house, the appellant pushed her by both his hands and did not allow her to run away and as a result, he sustained burn injuries on both his hands. Information of the incident was given by the appellant himself on 8.6.1988 at about 15.45 ht-'s which was recorded in daily diary vide Ex.P-8. The deceased was token to ^ Gunderdehi Hospital with 100% burn injun'es by the villagers*and her medico legal injury report is Ex.P-1. However, in reply to the query of Ex.P-2 the doctor reported that she was not in a fit condition to give dying declaration. Revati Bai died on the same day at about 8.30 p.m. 3. After performing inquest over the person of the deceased, the dead body was sent for autopsy to the Government Hospital, burg where t)r. M.C. JainA Dr. S.S. Ohillon (PW-1) conducted postmortem and gave their report vide Ex.P-4A. On the memorandum (Ex.P-6) of the appellant, wearing apparels in burnt conditions were taken into possession vide Ex.P-7 from the house of the appellant. Burnt clothes and glass bottle were sent for medical examination to FSL, Sagar and as per FSL report of Ex.P-10, smell of kerosene was emanating from the semi-burnt clothes and bottle. Crime was registered on 16.6.1988 vide Ex.P-11. Appellant was atso sent for medical examination'to the Government Hospital, Durg vide Ex.P-13 and his medico legal examination report is Ex.PlSA. 4. After completing investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate 1st Class, Durg^'who, in turn, committed the case to the Court of Sessions Judge, burg and the same was received on transfer for trial by the learned Additional Sessions Judge, Raigarh, who framed charge under Section 302 of the IPC against the appeltant. The appellant abjured his gujlt. The prosecution in order to establish charge against the appellant examined 10 witnesses in all. Thereafter statement of appellant was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances Qppearing against him in the prosecution case. ^, 5. The trial Court after hearing counsel for the respective parties convicted and sentenced the appellant as mentioned in para9raph-l of thejudgment. 6. Mrs. Kiran Jain, learned counsel for the appellant submits that none of circumstances relied upon by the trial Court connects the appellant ^^ with crime in question. The appellant himself sustained burn*injuries while trying to save the deceased, which is proved from the evidence of br. Mehnot (PW-9). The trial Court has erroneously disbelieved the version of Shailesh (PW-4) who has deposed that his mother told him that she go-t burnt due to her own fault. 7. On the other hand, Mr. Yadav, learned Dy. Government Advocate for the State has supported the impugned judgment. 8. We have heard learned counsel for the parties and also perused the record of the trial Court including the impugned judgment. *, 9. t)r. S.S. Dhillon (PW-1), who has proved the postmortem report of Ex.P-4A, has deposed that the deceased was brought in 100% burnt condition at about 5.00 p.m. She was admitted in the hospital. Smell of kerosene was emanating from her person. He gave mediFp legal examination report of Revati Bai vide Ex.P-1. The deceased was not in a fit condition to make dyin9 declaration and information to this effect was given to the police vide Ex.P-2. On postmortem, it was found that rigor mortis was present, superficial burn injuries were present all over (^, the body,skin peeled of at many places leaving raw red surface, eyes -. closed, mouth closed, pubic <& auxiliary hairs burnt, scalp hairs are also partially burnt, eye lashes and eyebrows burnt, trachea <& lungs congested, right chamber of heart contai'ns blood, stomach was empty and cause of death is shock due to excessive burn injuries. Bti'rns are ante mortem in natures ahd death has taken place within twenty four hours. 10. Badrinath (PW-2) has proved the seizure (Ex.P-7) of semi-burnt clothes of the deceased on the basis of disclosure statement (Ex(.P-6) of appellant. This witness has deposed that the appellant did not make any statement in his presence about the burnt clothin9. The appellant was brought to his home by the police. Village Kotwar had taken out the gunny bag containing semi burnt clothing of the deceased fj'pm the hoyse of the appellant. -/^w^ % 11. Dhirendra Kumar (PW-3), Head Constable, has deposed fhat the oppellant Radhelal came to police station on 8.6.1988 and informed that the deceased burnt while cooking food at about 12.00 noon. His information was recorded in the daily dairy vide Ex.P-8. He also deposed that Radhelal had taken the deceased to Gunderdehi }-1ospital and thereafter came to lodge report. 12. Shailesh Kumar (PW-4) is 11 years old son of the appellant and the deceased. Learned trial Court after putting preliminary questions examined this witness without administering oath. This witrjess has deposed that a year before his mother died as a result of burning inside the house, at that time he went to take bath and when he returned house at about 1-2 pm he saw that his mother was sitting in the courtyard in burning condition. Thereafter, he raised alarm. His *« father was not present. His mother was not speaking. He does not know as to how his mother caught fire. Learned trial Court atso observed that while this witness was deposing, the appellant was forbidding him through gesture not to state anything. In the cross-examination, he promptly replied that as soon as he peached, his mother told him that she sustained burn injuries on account of his own mistake. 13. Chandrabhan (PW-5) is 13 years old son of the appellant and the deceased. This witness has deposed that in the year of inciden^'he was residing with his parents and before that he was residing in his maternal uncle's house. When this witness resiled from his daily diary statement before the police, the prosecution after declaring him hostile confronted him with 'A to A' part of his diary statement of Ex.P-9, however, this witness denied having made any such statement. 14. Kaliram (PW-6) is Kotwar of the village. He has deposed that on hearing about the incident he rushed to the place of incident and found Revati Bai burning in the courtyard. Radhelal was present in tl^e house. Revati Bai was conscious and when he asked Revati Bai as to how she A, ^^ caught fire, the appellont came forward and answered that she sustained burn injuries while cooking. However, in the cross- examination he deposed that he asked Radhelal and not Revati Bai as to how she caught fire. 15. Kejuram (PW-7) has also deposed that on the date and time of incident Radhelal came there and thereafter he went to his house and found that Revati Bai was in the courtyard in burning condition. Her mother- in-law removed the burnt clothes from her body and gave some primary treatment. *, ^16. br. M.C. Mehnot (PW-9) has examined the dppellant and proved his injury report of Ex.P-13A according to which appellant sustained burn injuries on both his palms and left wrist. The extent of burn was 8%. 17. The learned trial court on the basis of proved circumstances detailed in v para-11 of the judgment has held that the appellant failed to offer any explQnation with rtspect to aforesaid circumstances and in these circumstances, the only inference that can be drawn is that the ^ ^Kfl^ ^ appellant s^p&y kerosene on Revati Bai while she was cooking i@,hearth as a result she sustained 100% burn injuries and died. i8. From the evidence available on record and not disputed by the appellant, it is clear that at the time of incident the appellant and the deceased were only two persons present in the house. On the^basis of injuries sustained by the appellant, the appellant has taken a defence that he sustained those injuries while trying to save the deceased. However, from the un-controverted oral evidence available on record in the shape of Shailesh (PW-4), son of the deceased, Kaliram (PW-6), Village Kotwar, <& Kejuram (PW-7), we find that all of them reached on the spot and found the deceased in burning condition in her courtyard and till then no efforts were made by the appellants to extinguish fire. Thus, the defence of the appellant that he sustained injuries while trying to save the deceased appears to be false. That apart; if the defence of the appellant is to be believed, then the deceased caught *« '^:-- /' ^. .•/"€ ^- s ^^•: burnt injuries while she was cooking on chulha, however, presence of the smell of kerosene from her person, as observed by the doctor who has proved the medico legal examination report of the deceased as well as postmortem, is not explained. 19. Therefore, in our considered opinion, the other circumstances that have been relied by the trial Court to record finding of guilt against the appellant appears to be strictly on the basis of evidence available on record. We also observed that it is a case of house murder and the *• offence was committed when there was no other person except the appellant and the deceased in the house and in the absence of any explanation from the appellant regarding the manner in which the deceased died, the same may be considered as additibnal circumstance against the appellant. *, 20.In the resutt, the appeal has no substance, the same deserves to be dismissed and is hereby dismissed. 21. Vide order dated 10.10.2001 the appellant was granted bail, however, his bail bonds are cancelled and he is directed to surrender betbre the trial court forthwith. <s Roshe^/- Sd/- DffiRENDRA MISHRA Judge Sd/- Manindra Mohan Shrivastava Judge i