HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench:Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri Rangnath Chandrakar, JJ, Criminal Appeal Nojtt45pf2003 Appellant Rajendra Tiwari Respondent Vs. State of Chhattisgarh JUDGMEN1 FOR CONSIDERATION Sd/- R.N.Chandrakar Judge Hon'ble Shri Dhirendra Mishra, J. ^ a^-e-- POST FOR JUDGMENT ON ^6-6-2010 .Sd/'- JUDGE 2.^ /6/2010 Sd/- Dhirendra Mishra Judge HIGH COURT OF CHHATTISGARH^AT BILASPUR DB: Hon'ble Shri Dhirendra IVIishra & Hon'ble Shri R.N. Chandrakar. JJ. Criminal Appeal No. 1145 of 2003 Appellant Vs. Respondent Rajendra Tiwari, s/o. Vishnu Prasad Tiwari, aged 42 years, r/o. village Tulsaghat Lormi, P.S. Lormi, Distt. Bilaspur (CG). StateofChhattisgarh. Present: Shri D.R. Sharma, Sr. Advocate with Shri B.D. Badgaiyya, counsel forthe appellant. Shri Sandeep Yadav, Dy. Govt. Advocate for the State JUDGMENT (Delivered on^O .06.2010) 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 30-8-2003 passed by 2nd Additional Sessions Judge (F.T.C), Mungeli, District Bilaspur (CG) in Sessions Trial No. 397 of 2002, whereby learned Sessions Judge, after holding the appellant guilty for commission of offence under Section 302 of the IPC., has sentenced him to undergo life imprisonment and to pay fine of Rs.1,000/-, in default of payment offine to further undergo S.l. for three months. 2. The case of the prosecution, in brief, is that the accused/appellant was a. habitual drinker and used to ask money from his wife for fulfillment of liquor. He also used to quarrel and harass his wife whenever his demand was not fulfilled. On 4-5-2001 at 9.00 a.m. when the accused/appellant was going to sell rice from his house, the wife of the accused objected him. On being objected, the accused started quarreling, and threatening her to kill he poured kerosene oil over her body and set her on fire, then she raised cries. On hearing the cries, neighbours Ramavtar (PW/1), Santram Yadav (PW/8), Bhaggu Yadav (PW/10) and others came to the house of the accused and tried to rescue herand at the relevant point of time the accused/appellant was found present in his house. All the neighbours who came there tide the accused/appellant with rope, however, the accused managed to flee away from the scene of occurrence. Thereafter, she was taken by the neighbours by bullock-cart to Community Health Center, Lormi, where DoctorG.S. Dau (PW/3) medically examined her and thereafter gave intimation to the Incharge, Narendra Pujari, Sub Inspector, (PW/12) Police Station, Lormi, on the very day on which basis, Police registered the first information report (Ex.P/11). After registering the crime, policeproceeded to the scene of occurrence and prepared site map vide Ex. P/12 and seized half burnt blouse, petticoat, saree, kerosene oil and match sticks from the house ofthe accused in presence ofthe witnesses vide Ex P/12-A Doctor R.K. Agrawal (PW/6) who also medically examjned the deceased, gave his report vide Ex. P/5 and opined that the injuries caused to Kumari @ Shiv Kumari were due to burn which might lead to death and she was diagnosed as 85% burnt. She gave her dying declaration vide Ex.P/6 in presence of Doctor R.K. Agrawal (PW/6) to Naib Tahsildar & Executive ^ lv^:'_ ^^.A;^, f^'^\ 5 ./' ^^^' 4. Magistrate, Lormi Shri A.K. Mishra (PW/18). From there she was referred to District Hospital, Bilaspur, where she was medically examined by Dr. J.P. Sharma and thereafter on duty period of Dr. K.K. Sahu (PW/14), she died on 8-5-2001 at 5.25 p.m ahd information thereof was given to Police Station, City Kotwarli, Bilaspur, vide Ex.P/14. 3. On receiving the aforesaid information, R.D. Singh, Assistant Sub- Inspector (PW/11) registered the merg vide Ex.P/10. Thereafter, P.C. Singh,Assistant Sub Inspector (PW/16) reached District Hospital, Bilaspur on 9-5-2001 andprepared inquest (Ex.P/16) on the person of the deceased in presence of the witnesses. Thereafter, the dead body of the deceased was sent for post mortem examinatiQn vide Ex.P/17 where Dr. R.K. Gupta (PW/13) conducted postmortem on the person of the deceased on 9-5- 2001 and gave his report vide Ex.P/13 and opined that the cause of death was shock due to excessive burns. The seized articleswere sent for chemical examination to FSL, Sagar vide Ex.P/21 and report thereof has been received vide Ex.P/22 in which it was found that smell of kerosene oil was found on half burnt clothes of the deceased i.e., saree, blouse, petticoat and also on one plastic boxand brown coloured soil in a tin box. After completing the investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, Mungeli, against the appellant, who in turn committed the case to the Court of Sessions Judge, Mungeli, for trial. Learned Additional Sessions e^^ "e^ "\ ^€^^.-... -^<^: ^ i j' 1^^' Judge framed charges under Section 302 of the Indian Penal Code against the appellant who abjured his guilt. 5. In order to bring home the. guilt of the accused/appellant, the prosecution examined as many as22 witnesses in all. Thereafter the statement of accused was recorded under Section 313 of the Code of Criminal Procedurein which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. 6. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph one of the judgment. 7. Shri D.R. Sharma, learned Sr. Advocate with Shri B.D. Badgayya, learned counsel for theappellant vehemently argued that there was no eye-witness of the alleged incident.. Learned counsel further submits that the prosecution witnesses, namely, Santram (PW/8), Bishouha (PW/9), Ramvatar (PW/1) and Ramnarayan (PW/2) have not supported the prosecution and they turned hostile. Even the son of the deceased namely Krishna Kumar PW/9 has also not supported the prosecution story. It has also been contended that dying declaration given by the deceased does not inspireconfidenceand cannot be made the basis for conviction in the facts and circumstances ofthe case. 8) Per contra, Shri Sandeep Yadav, learned Deputy Govt. Advocate for the State supporting the judgment of conviction and sentence has stated that though there is no eye-witness, yet, the prosecution has proved the guilt of the appellant from established ^-...^..^ ^^ ^i^,' 'Y^^^ f Is^.'? and proved chain of circumstances by the seized articles and above all by dying declaration of the deceased- Kumari @ Shiv Kumari given to Naib Tahsildar & Executive Magistrate, Shri A.K. Mishra (PW/18) in the Hospital in presence of the Doctor. Learned State counsel further contended that the learned trial Court has not committed anyillegality in holding the appellant guilty for commission of offence on the basis of the dying declaration. 9. We have heard learned counsel for the parties and perusedthe records ofthe Court below. 10. Death ofthe deceased Kumari @ Shiv Kumari due to burn injuries has been established by the prosecution. Ramavtar (PW/1) though turned hostile has admitted the fact in the evidence that he was residing nearby the house of the deceased. On the date of incident at about 9.00 a.m the deceased was burnt and was taken to Lormi hospital by the neighbors by bullock-cart. He also deposed that at the time of incident the accused was present in the house. He further deposed that on the date of incident after hearing the cries, he along with Bishouha and Santram went to the house of the accused, but 1 was standing a little bit far. He deposed that he did not caught hold of the accused and also did not know whether Bishouha and Santram caught hold of the accused, but he knew that Bishouha and Santram went to Police Station to lodge the report. When he along with Bishouha and Santram went to the house of the accused, the accused was \^^ found sitting inside his house where Kumari @ Shivkumari was alive in burnt condition. 11. Ramnarayan (PW/2) though also turned hostile has deposed that Bhaggu, Santram, Kewal and Baisakhu came to him and asked him to take deceased Shivkumari to hospital in his bullock-cart then he took her to the hospital and at that time deceased Shivkumari was alive. He has further deposed that Shivkumari was taken to the hospital accompanied by Bhaggu Rawat, Shivshankar Yadav, Bade Yadav and the wife of Bhaggu Rawat. 12. Santram (PW/8) though turned hostile deposed that on the date of incident he had gone for his daily bread and butter and after coming from there at 1:00 p.m., he came to know that the deceased Shivkumari died due to burn injuries. He has further deposed that he did not know who took deceased Shivkumari to the hospital. 13. Bishouha (PW/9) though turned hostile has deposed that when he went to the house of accused Rajendra, he came to know that the wife of accused Rajendra was set on fire and as there was crowed he could not enter the house of the accused Rajendra. He went to the house of the accused Rajendra along with Santram from where they went to Police Station Lormi to give information about the incident and when they came back to the accused, they found that the accused fled away from the scene of occurrence. He has further deposed that it is incorrect to say that when he along with Santram went to the house of the accused, at relevant point of time, the wife of the accused was in burnt condition. It is .^— also incorrect to say that in thatcondition only Shivkumari told that the accused Rajendra himself set her on fire. 14. Nayab Tehsildar and Exeeutive Magistrate A.K. Mishra, Lormi District Bilaspur(PW/18) deposed that on the fateful day i.e. on 04-05-2001, Dr.R.K.Agrawal (PW/6) found deceased Shivkumari mentally fit to give her dying declaration. Accordingly her dying declaration was recorded vide (ExP/6) in which he put his signature from its 'E to E'part. He has further deposed that he has written dying declaration of the deceased in his own hand writing in whichleft thumb impression of deceased Shivkumari was taken from 'F to F' by him. In dying declaration (Ex.P/6) deceased Shivkumari stated that her husband accused Rajendra Tiwari poured kerosene oil and set her on fire. 15. Dr. G.S. Dau (PW/3) deposed that on 04-05-2001 at about 4:30 A.M. deceased Shivkumari was brought to Community Health Centre, Lormi jn burnt condition, who was admitted by him for treatment and informed Station HouseOfficer, Lormi in writing. He has further deposed in the cross examination that he was not in emergency duty, therefore, he did not examine the deceased Shivkumari. 16. Dr. R.K. Agrawal (PW/6) has deposed that on 04-05-2001 at 11:35 A.M. the deceased Shivkumari was broughtby constable R. Ravindra Nath Tiwari No. 143, for medical examination and on examination he found thermal burn injury superficial to deep over lower chest, whole abdomen back of trunk, both upper limb, perineum (female genital area), both lower limb andover chin, ^^". ^; ^ which was about 85%. Blister is formed some where, skin pilling off, line of redness and reddish brown in colour, vide (Ex.P/6). He also found that the general condition of the deceased was not good, pulse rate 104/ per minute low value, B.P. 100/60 and opined that the above burn injury was possible by fire, dangerous in nature and possibility of death was there. Injuries were caused within duration of 2-12 hours. After primary treatment, the patient was referred to burn unit at District Hospital, Bilaspur, for further treatment. 17. Dr. R.K. Gupta (PW/13), deposed that he was working in Govt. Hospital, Bilaspur and conducted the post mortem on the person of the deceased Shivkumari and gave his report vide Ex.P-13, in which it was found that body cold, rigor mortis present, eyes closed, mouth closed, tongue inside the mouth, dressing material present overbody, burnt area at lower chest, abdomen, perineum (female genital area), both thighs, both leg and feet's, back upper and lower parts, lines of redness and burn 85%. The Burns were ante-mortem in nature and duration was stated to be 24 hours. In the opinion of Doctor Gupta, (PW/13), cause ofdeath was shock dueto extensive burns. 18. Dr. K.K. Sao, (PW/14) has deposed that on 08.05.2001 on receiving the call from District Hospital, Bilaspur (Burn Unit), he went there and found deceased Shivkumari in critical condition, who died on the very day at 5:25 p.m. and thereafter he gave the above information to City Kotwali, Bilaspur, vide ExP-14. 16. -^i-.^ ^A ^^s^ /f^^ ^ ''^-^:-. .N "^S&s ::v^? 19. On close scrutiny of the evidence available on record, it is manifestly clear that the evidence of Ramavtar (PW/1), Ram Narayan (PW/2), Santram (PW/8) and Bisauha (PW/8) though turned hostile, they conceded that when they heard the cries of the deceased, they went to the house of the accused and found the deceased in a burnt condition where the accused was present. This fact clearly supports the dying declaration of the deceased given by the deceased to Executive Magistrate and proved by this witness. There is no reason to disbelieve the dying declaration recorded by the Magistrate. Therefore, the dying declaration of the deceased is acceptable and credible. From material found in cross examination of the above witnesses also the dying declaration made by the deceased has been clearly established. The fact of the death of the accused is duly corroborated by the medical witnesses. Moreover, FSL report also indicates that smell of kerosene oil was present on half burnt blouse, saree, petticoat and the other seized articles. 20. On the basis of aforesaid discussion, we are of the opinion that the prosecution successfully proved the involvement of the appellant in the crime in question beyond all reasonable doubt and the Sessions Court rightly found the appellant guilty of the offences charged against him. We do not find any illegality or infirmity in the impugned judgment convicting and sentencing the accused in the manner mentioned above. 21. In the result, the appeal fails and is hereby dismissed. Sd/- Dhirendra MEishra Judge Sd/- R.N. Chandrakar Judge ^