s^^wS!gSi^^s^ o ^ ^..' IN THB.HIOH COUSS OF JUDIGATURE A3 BIIASPUR (CHHATTISGAR.H Oriminal Appeal No /2 001 APPBLLANI (IN JAIL7 PARDBSHI S/0 NARBDA P-RASAD - KASHVAP AGED ABOUT 32 YBARS R/0 INDIJRA NAGA8 , JANJGIfe- BIST. uTANJGIR - GHAMPA (G.G.) VERSUS RESPOI-IDENT 8 THE STATE OF CHHSTTISGARH. THROUGH P.S. 0-AKJGIR- CHAMPA DIST. JANJGIR ( CHHATTISGARH) S.T. HO 123/99 Punishable U/S 302 of I.P.G. Court ef A.S.J. Janjgir Session part Bilaspur Hon'ble Shri R.P. Sharma « P.S. - Janjgir - Champa, (C.G.) •a ^y/^// .«• CRIMINAL APPBAL U/S 374 (2) OF Cr.P.G. ^^/ .^- y GOIWICTION c^ XI-HC-22 3TI^T?iT R-fi+sn^i sniiqiBfer SftfRi 'tSgi) ;4^ [s.i;<=^^-J;^^ ;t-^|^^;ii;^-^ti< 3^'^IFTRTq', aTflwis, Rlfll'My 3ii^i Maqt , _l . C^:,A. 1.^8 j'LBvl Kiini sn*<itn ••••••••"••••••••••• ^ 200 R<)<d, a'n^r gwiiw trfN' Division Bench; Hon'ble Shri L.C.Bhadoo. J & Hon'ble Shri_V. K^ .ShrjvMtava 5-10-2006 Shri Azad Siddiqui, coun^el Shr-i U.N.S. Deo, Add\. Piiblic &y. 6ovt. Advocate for the Sta-| Orol judgment dictated c^i Oais. ^l for the dppellant. ^blic Prosecutor with Shri &.K. fiwaire, Per L.C. Bhadoo. J. oppe By this cypeol, the propriet/ and correctness of ti^e sentence dated 20-2-2001 pas^ed Joinjgir, in Sessions Tric! No.S Sessions Judge after holdin^ commission of rnurder of his under Section 302 of the Inclian undergo imprisonment for life. The case of tiie prosecut|on of 4-1-1999, the accused/appel| wil! not keep her with him and| •=t>l<<fCT<fl-l 11H<lT^tec^<Rl«K ^i 311^'IT 3I1^?T ^ •e. [llant has questioned the legality, Judgment of conviction and order of by the Additionai Sessions Judge, [23/1999 whereby learned Additiona! the accused/appellant guiity for (vife namely Nanki Bai, convicted him Pena! Code and sentenced him to i, in brief, was that in the afternoon lant said to his wife Nanki Bai that he she can go to viilage Jarve, on which ('fl^ys^) XI-HC-22 an^r^i R-fi+sn^T shllt) dfltT ^fW ^^^••^^^ *: i!KS:sfSf 3^'=STPncT2r, ®Tf)u'l?,Iqciwy 311^1 4a<t» <-^A. Z H1»TC(T!»*<l<n 'ZS}[ ^ 200 R<)«d sn^rwaTW^rf?? kerdsene Sov^r'riment nelrr-ated Siction Nanki Bai asked him to send he< accused said to Nanki Bai thatl piastic Jerrycan containing and set her on fire with the immediotely taken to the gave her statement i.e. £>eha^ Singh (PW-14), in which she that FifSt Informoition Rep4rt commission of offence under •t+ie request of the Station Hous C.L. Markondey, Executiye dectaration (Ex-P/7) at 5.45 treatment Nanki Bai succumbeld thsrefore, merg intimation 1+ie Police Station by Bhawani The investigating Office.f' Panchas, pr-epared the inquest Nank! Bai. Site plan of plac^ Ex-P/10. The Investigating Off(< bottie. Sweater of accused (Ex-P/15) regarding smeli of °t>i<iF<n<fl-i *iiKyTftte(A<fa+<ii< ^isri^TSTi^r chiidren alon9 with her. On •1+iis, the todoy he will kill her cnd picked up a pil, poured the scme on her body 1'ielp of a matchbox. Nanki Bai was Hospital, Janj9ir', where she ^j Nalishi (Ex-P/24) to Smt. Sadhana the above incident. Based on (Ex-P/25) was registered for 307 of 1+se IPC. Thereafter on i^e Offieer, Police Station Janjgir, Shri MajfeistrQte 0SW-15) recorded the dying p.m. on the same day. During the to the bum injuries on 10-1-1999, No|4/1999 dated 16-1-1999 was sent to S^iankar Kutiya, Sub Inspector (PV/-13). after giying notices (Ex-P/4) to the report under Ex-P/5 of 1+ie body of of occurrence was pr-epared under (cer took into possession tiie liquid in a seized under Ex-P/14. Panchnama JteroSene on the sweater and on the (^y^) XI-HC-22 SlI^T^iT R-ii+sn^r »li=nfl1^(T aiwti ys^sf!sa 3^ atFTRPT, ®T(1ti'i?,Riciiuy sn^rirg^ ^ „ ^'^'•'^S-j'i^ WtCtTHlHI^ •\ ^ 200 Rl()<d sn^r ^giw flfitF hands of accused was pE'epared. by the Patwari. Sei2ed articles| 1+ie porensic Science Laboratij report (Ex-P/23) was received. was conducted by &r. ft. Ji1^ postmortem report (Ex-P/27), i was septicaemia shock due to bi^ After completion of inve^ Court of Chief Judicial Magis^ 1+ie case to the Sessions Additional Sessions Judge recei The prosecution in orde.i accused examined 21 witnesses.1 accused was recor-ded under ; Procedure in which he denied th' prosecution evidence and faisely impticated in the crime. Lear-ned Additional Sessif Public Prosecutor and counsel and sentenced tiie accused/ap|: jud9ment. statid f «ti]<<f<-i<fl-iKiHciT^te^t<Ri<n;i< ^sri^Tsn^T Site plan (Ex-P/16) was also prepared ! Iwere sent for chemica! examination to ry, Sagar vide Ex-P/22 from wher-e Postmortem on the body of Nanki Bai Ji^pyre yW-16) and he prepared the \\ which he opined that cduse of death rriup tp 90% deep. Itigation, charge sheet was filed in the rdte, Janjgir, who in turn commift-ed J^id9e, Bilaspur, from where learned il/ed the case on tronsfer for trial. to establish the charge against the On the other hand, statement of the fection 313 of the Code of Criminal ^ materialappearing a9airsst him in the •that he is innocent and has been ins Judge after hearing •tiie Additional for the accused/appellont, convicted istlant as mentioned in para 1 of tiiis (^y^) XI-HC-22 sn^ifiT R-<i«t>STT^T st)lw{rfB(T ;]Ei'K'^gSS3Ssi 5S^ •^NICTI, ®Tf1tf'l<a,Rl<'ll«y 3ll^?l •Olth. nQ^fn._. "^Y,j\'.'"Z^'^/Uso| iTTOTTTgOTW"""""""""" W( 200 R|<)^ sn^r ??(ITW flf53' Shri Siddique, learned submitted that the pr'osecution| motiye of accused for commissidn as per postmortem report th^ therefore, in such a situation, it dyin9 deciaration. Learned coun^e Rajas-t+ion High Court rendered (^NOTHER VS. STATE Of R<4. udhiluara 104. He also argued that Budh!f« accused as a!so 6olu © Sondeep accused, who Were in the hous^ supported the prosecution ca^e declaration the conviction of sustained. On the other hand, Shri D( the State, supported the judgme|it Having heard learned the record and judgment of the ^ In this case, the conyi^tion deciaration made by deceosed Executive Magistrate yW-15) ai *i<i[<i<n'< *iii<iT^'tecA<Ri«i< ^ai^Tsn^T ^ounsel for the accused/cppellant has notbeen able to establish the of 1+ie crime. He also argued that burn injuries were up to 90%, |wos not possib!e for Nanki Bai to give jel placed relionce on the judgment of |n the matter of CH<ANDM DEVI & fASTHAN reported in I (2002) DMC Bai (PW-2), sister-in-iaw of the KPW-I), son of the deceased and the at the time of incident, have not i, therefore, based on the dying the accused/appeilant cannot be ^o &Shri Swalre, learned counsel for of the trial Court. for •rtie parties, we have perused Iria! Court. rests pr'im<iri!y on 1+ie dying ;i Bai before Shri C.L. Markendey, also the statement (Ex-P/24) given Ndnk (•fl^y^r) XI-HC-22 5 SII^T^iT i^iwan^T sb*il<ti Hf^tT sb*i ^KSSSSSSS 'Sss^WvPf, »Tflu'i6,Iqciwy *<|t|(il in^iw 311^1 ^* ^^ ^ '^.^'.'^6']2<3a\ 200 ^^•""•"•' sn^rg^nwBiN' Sfngh by her before Smt. Sadhona from tiiat, 1^ere was kerosene of the accused. As far as the question instance, it is true 1+iat if 1+ie of the strong circumstance for) accused, but in the absenceof and strong circumstantia! evidei|ce based pn that. In the presenl] deceased Nanki Bai has catey doubt her fidelity, tiierefore, h^ is whyon the fatefui day the a{ Jarye ond when she asked him the accused said that he wil! kil beh'nd the crime. Now coming to the dying^ Shri C.L. Markandey, Executive stated that on the fatefu! Magistrate in Janjgir. On th Jflnjgir, he went to the ©overi^ment admitted, he apprised Nanki B| t>i<<ti'i<fl-i *ii>itiT^te^<,Ri*&i< ^Tsif^rsn^r i, Sub Inspector (PW-14). Aparr tmell on the sweater and on the honds <>f motive is concemed, in the first n(otive is estabiished, then •that is one estabiishing the charge agamst the (jroof of the motive also, if the ocuiar' is available, the conviction can be case, in the dying declanition itseif l^rically stated that accu^d used to used to beat & harass her- and tiiat a{:cused asked her to go to her village she will 90 along witii her chitdren, her, 1+ierefore, tiiere was a motive 1tiat declaration made by the deceased, [Magistrot®(PW-15) has categorieally tidy he wos workin9 as Executive ^ request of 5.H.O., Police Stcxtion Hospita! wher« Nanki Bai was tii thnt he has come to record her ('fl^^f^) XI-HC-22 3S?s:^P(I?14, »TnwiC,Rlcliuy ra../' 6 STI^rq^q? „ „ /„ 'C:&:^^88J^^ iiiwiai*<i<*>""""""""""" wr 200 ^•4. an^rgiT R-fi+an^T Stlliqi (rfitT ai^Ri sn^r^aTW^a' »i<<t<'i<n-itiiiciTffteccfl'<Ri«i< ^SI^ITSTI^T statement, on which she disclos4d the dying declaration he enquire^ certificate that Nanki Bai was fit he recorded the statement, in wjl set her on fire after pouring ker^ br. H.R. Dharwani (PW-5) | working as Assistouit Surgeon in that day in the evening the Execjjtive dying declaration of Nanki Bai, h^, fit to give her statement and on A" beaps his signature. TTie Execi(itive Nanki Bai was in a fit stcge of Apart from that, the said dying 4 hours from the time of incident succumbed to the burn injury on above evldence it con safely be giving the dying dectaration. Th^re disbeiieve the evidence of Drl Ar'iar-kdndey. Executive Magistra^ officials and they had no dnimosi) was no occasion for them to her name and before taking down from &r. U.C. Sharma, who gave a )• to give the statement. Thereafter, Ihich she disclosed that the accused isene on her body. has stated that on 4-1-1999 he was Primary Health Center, Janjgir, on Magistrate came to record the gdve certificate that Nanki Bai was |the dying deciaraetion (Ex-P/7) "A to Magistrate has also stated that condition to give dying declaration. eclaratiQn was recorded within three t and as per the record, Nanki Bai y on 10-1-1999, therefore, from the held that Ncmki Bai was capable of is no reason before the Court to 1 H.R, Dharwani (PW-5), Shri C.L. te ffW-15). They are Sover-nment ^y against the accused as such -there create fa!se evidence against the (•fl^y^r) XI-HC-22 3^'-<IN1CI<1, OTfl+l'ie, iqcliuy IIIMI sn*ii<»> 3n^?riraw_ ^ l^ ~ci^'^"'7L2-8-/'^^0^ •Wl; 200 Ri•(>«&""""""" sn^rqiT R-fi+an^r sh*(it)CTfitT 3'n^r SWIW tifer sh*(iq> <DNlcl<fl-1 WRff ff fecfl' <R]WK ^aif^irsn^r CH/tN&RA i*nt. the patie^t sustained accused. Mereiy because the bu| be said that in all cases wher^ patient coinnot give stal'ement. High Court in the matter of counsel for the occused/ appell facts of present case. Even in been mentioned that ": yerma (PW-13) also stated •ihat\ •fhe statemen-f, whereas, in categorically stated -rfiat the such, "ttie judgmerft cited by accused/appellant. Further the the fact 1+iat N<mki Bai reGeivejd accused and eyen on the sweoted smell of kerosene oi! and in thls P/15) were prepared by the been categorica!ly mentioned present on sweater and han explanation of the accused present on his sweater dnd accused was present in the hou^e ^•n injuries were up to 90%, it cannot p 90% burn injuries are there, the fThe facts of judgment of Rajasthan DEVI (supra) cited by learned ', are entirely different from the ^>ara 17 of the said judgment it has 90% burns, but Dr. YM \she was not in a fit condition to give •j+ie present case the Doctor has p4tient was fit to give statement. As ie^irned counsej is of no he!p to the dying declaration is corroborated by the burn injuries in house of the and hands of the accused there was 4onnectipn, •rfie memos (Ex-P/14 & Ex- In^estigating Officer, in which it has the smell of kerosene oil was Us of the accused. There is no how the smell of kerosens was It is also established thct the at the time of burning of his wife (Ift^y^) th^it hankJs —Tt XI-HC-22 8 S^^iraRTO, WTfi<f'IS,-f«t<'lltfy NIIMI sn*<l<t> OT^q^&sl^> 200 fa^%""""""" an^r^iT f^iraian^T a>wfi?if?tr "fgNJgSJSsl Sowri ^ sn^r SCTW flfiff and there is nothing on record Irfiat he tried to save the deceased from burning. As per the F5I^ present on the clothes of dece^sed and accused, which were taken into possession by 1+ie police c^ circumstance sug9ests the invo Nanki Bai on fire. It is true thatl accused and deceased namely 6ol(J © Sarideep (PW-1), a child of about 5 years, hwe turned hostiie, but kerosene oi! on her body. For the foregoing reason^ that there is nothing on rec trul+ifuiness of the dying declarc^ or" infirmity in the judgment of tl^e trial Gourt. In 1+ie result, 1+ie appeai fe^ Sd/- - 1 L.C.BHADOO Judge °ni<<T<-l<fl-l WRft ff fS^S <R]«l< ^3lf^T3n^?T report, smell of kerosene oil was uring investigation, therefore, -fh'is vement of the accused in setting Budhwara Bai (PW-2) and son of the on the basis of this the prosecution case cannot be doubted becaus^ as per the dying deciaration it is established 1+iat the accused s^t Nankj Bai on fire after pouring ; we are of the considered opinion 3rd, which creates doubt in the tion dnd we do not find any illegality iis ond the same is dismissed. Sd/- V.K.Shrivastava Judge (•fl^y^)