KII-189/(Jail) C.J.P.R, 11/94/2,000 \\T-^ l»iiiii;' "CFOOOOOS9918 /• : ' • ••- • - - -— APPEAL OF PRtSOfl !No....2^A6.....-.....................Name%^^3^^MB%S,IST., iFather's name ^iIS^H.^H^&^;^.^"^^ 7~\ . ifttfi^L. -^>s3,c^?y |Residente:ta?:^^M^^Age.^a.^^.^ - |seDtencedta:5-^l^MTO^i^^..On...^^^^.- jUpder sectTO^^^..^.?^18^S?^.^^%^^£@^. ; -^..---,,^ ..-..-,.,...,-.,..,..,„.,........, ......-.,...^^^^^^..^ 1 It is explained to the prisoner that if he states^r wishes to be represented by legal pTactitioner the Appellate Court will not proteed with the base for seven days unless Jftie legal practitioner appears . W th? legal practitioner does not appeiar withitr sieven lays he maynot heardat all ;Jfihe prisoner states that he does not wish to be repre-- .feented by legal practitioBer the court may pruceed at once withthe case and will net be tobliged to give a hearingLto ariy legal practitioner who should appear . Date of Application for copyofjudgement ........ ... Uate on whichcopyreceived .........^.(^S^..^./.^.^. ........... Date oa which AppealtSeat^.......^.^./..^/^.-^......... ... Whcther Ihe priSonerwTshes to lie represented or not - Yes / No ^3- E^No.... :^.S^:___.................. Name^f^.^??^%?H.^?.^^ [JGonfinedin .;.... ...^.^-.^Mfcjail-p3^^^........ ...^ ^o.....:.^.;. ^7.S^^.&D^..:.:^^:f ^W&:::. •V \ : ^' ' • - F'^ . ^-"'•'.. ' > '•. : ' r-- '.^" frv\ ' ••: ^ iForwarded to tbeT^^3^^^^S^^^S:^3T SS^O'w1.1.il9.-^l^ 1 .''... ''«..' ,. ' '' .^'S^^'s^'qys^H^Jc^effs.S1^^^ itogather which a copy pf judgement QI order'pa&sed in tfie- c^se forfavour' ofi&^i^- mission to thepipper Appellate Court. , ^^:2^siM&^..^^^^^ i^---0c^^ic)i-?n~^/';' "1"-'; ^"' .Supenntendfefatl rinteHaent, ^^ifc-Baitiiff-TH.?' Date ofreceiptin........... .........:....'. offrce.."'-.i,. ..i'x.... ..A...\.;-.'.s ••.>...i,..„..- Date of-receipt record<to/accompaDy the Memo of Appeal't0i;the Appellate court &? ^r^.'?\QI'4 ,^ &>ilji':7fly flt^ .,.——.-—., ^-^,;-",.' -•IY. s' 51Wk '31 No ^-p-rt 1 r_- ?• Dated ...............:.u.^'l99.». .F-'-""-^---••"'" Forwarded to the ..........,-~y... .........:....... ..............si &-•»?% ih' <''»-" ll'jJT^ Da(e of reeei.pt ia Appellate Courf fr. T. O.^) ::^^'a^^^sil.a^ '5 11 Bhukhau @ Malikram - Veirsus State of Madhya Pradesh (now Chhattisgarh) Sd7- L.C. Bhndoo Judge HON'BLB MR. JUSTICE D.R. DESHMUKH \ e-v^u^- Sd/- Dilip Raosaheb Deshmukh Judge Sro SEPTEMBBR, 2003 ^ / Sd/- L.C.BHADOO Judge *iKaJiSSBBBSSJ^^6 s Bhukhau @. Malikrain - Versus - State of Madhya prad'esh (now Chhattisgarh) Present: - Mr. Abhay Tiwari, Advocate: - For the appellant. Mr. J.D. Bajpayee, Govt. Advocate: For the State/respondent. iiiy ifll ll:t 'BLB MR. L. (Delivered on ^_'^___ September, ; L.C. 1. By this appeal, the accused/appellant has qiiestioned the legality of judgnient of conviction and sentence dated 28th February, 1998, passed by the 5th Additional Sessions Judge, Raipur in Sessions Trial No. 168/97, whereby lea'rned Additional Sessions Judge after holding the accused/ap/pellant guilty for coiiiinission of offence under Sections302 of the Indian P.enal Code for committing the m.urdcr Q'fhis wife naiuely Sllkhwantin Bai, sentenced hiia to undergo iinprisonnient for life and to pay fine of Rs.500/-, in default of payiuent of fiue to further iindergo R.I'. for three nionths. 2, The prosecutioii case necessary for the disposal of this criininal appeal is that on 17.2.1997 at abotit 6.10 p.iu, Dr. S.B. Magloorkar (PW-20).vide Ex,P-24 intimated the •\ [SltisJ3lisaai^F'isiE.Sjiya.^ \:^; Jd Page 2 of9 M ii Station House Officer, Police Station Dharsiva th.at Siikhwautin Bai wife of Bhukhau (2) Malikram has be.eu brought to the Priiaary Health Centre, Dharsiva with intensive biirn injiiries all over the upper part of body, liowever she is conscious and talking. On receiving this inforination Head Constable Shri Laxmi Prasad Diibev (PW-16) reached to the Priinary Health Centre, recorded the Dehati Nalishi (Ex.P-11) by-;;j'ecording the statement of Sukhwantiu Bai and ba$ed bu this recorded a merg intiination (Ex.P-17). He. also recorded tlie dyin; declaration of Siikhwantin Bai (Ex.P-12) in which she had stated that she was raarried to Malikrain about 9 tolO vears back and there is one feiaale child of five vears age out of the wedlock. She had further stated that on Saturdav night her hu^band went to watch the Kabaddi game and when he returned she asked her husband as to why had he gone without telling her, on this the accused/appellan.t replied that slie is doiibting his' character and started beating her, tliereafter poured kerosene pil on her bodv and set lier 011 fire with the inatch-box. Based on th.at F.I.R. (Ex.P-16) was registered for CQBim.ission of offence under Section 307 of the I.P.C. and Sukwantin Bai was sent to Medical Hospital, Raipiir for further treatiaent where she died on 25.2.1997, intiiiiatidn of which was sent bv Dr. S.K, Mandavi to the Police Statiou Dharsiva on the sam.e day. On receiving this intiniation, the offence was converted under Section 302 of the IPC. 3. Duriug ^iiyvestigation a'plastic contaiuer froni which the kerQsene^o.il wa's poured on the deceased Sukhwantin Bai, one half-bumt blouse of blue colour, one half-burnt Sari and one half-biirut Peticoat of Sukhwantin Bai were taken in't.o posses.sion by the Investigating Officer. Ms. Yam.ini Pandey (-PW-19) Naib Tehsildar cum Executive Magistrate, Raipur also recorded the second dying declaration of deceased Siikhwantin Bai cn 19.2.1997 in w}iich also she corroborated . her earlier dving; declaration. Dr. Arvind Page 3 of9 mw-^ Nerlawar conducted the post niortem on the body of deceased and the post-mortem i-eport is Ex. P-27. As per doctor's opinion deceased Sukhwantin Bai's burn injuries were up to 60%, she was serious, sinell of kerosene oil was eiaanating froin the bodv and she died because of Syncope due to burn injuries. TIie Investigating Officer also got prepared the site plan (Ex,P-6). After coiupletioii of iuvestigation, ~ charge sheet was filed in the Coiirt of .;;» Judicial Magistrate First Class, Raipur, who comiuitted the case for trial to the Sessions Judge, Raipur froia where learned 5th Additional Sessions Judge, Raipur received the case on transfer for trial. Learned Additional Sessions Judge after hearing counsel for the parties and perusing the records frained the charge against the accused/appellant for coininission of offence under Section 302 the I.P.C. However, the accused/appellant abjured his guilt, 4, The prosecution in order to prove the above offence agaiust the accused/appellaut examined in all 22 witnesses aad thereafter, learned 5th Additional Sessions Judge recorded the stateiuent of accused/appellaut under Section 313 of the Cr.P.C. in which the accused/appellant denied the prosecution evidence and stated that relations between him. and his wife were not strained, they never quarreled with each other and on the date of incident he was oiit of the house, as he went to do the work, on his retiirning he came to know that his wife has been sent for treatnient to Medical Hospital, Raipur, he iininediately went thei^ but he coiild not talk to his wife because he was artested. by the police. He also produced two 'witnesses in his defence namely Pulluraru (DW-1) and Gopal ('DW-2). Learned Additional Sessions Jiidge after hearing Additional Public Prosecutor and counsel for the accused cbnvicted and sentenced the accused in the aforesaid manner. . _. Page 4 of9 ^ f'/ 5. We have heard Mr, Abhay Tiwari, learned counsel for the accused/appellant and Mr. J.D. Bajpayee, leamed Govt. Advocate for th'e respoudent/State. 6. While assailing the judginent of trial Court learned counsel for the accused/appellant argued th.at whole case rests on the extra-judicial coafession of deceased Siikhwantin Bai, - who in her dying declaration has categorically stated that her 1&usband tried to save her, therefore, froia the above evidence of deceased Sukhwautin Bai it is clear that the accused/appellant tried to save her wife, as such, it cannot be believed that the acciised/appellant set his wife on fire. The second ;round raised bv learned counsel .for the accused/appellan.t is that froin the record the prosecution has uot been able to establish that accused/appellant has set his wife on fire with an 'intention to coiiiiait her raurder, therefore, offeace does not travel beyond Section 304 Part II of the IPC. In support of his argumeut, he relied upon the decision of Hon'ble Apex Court in the ma'tter of Hari Shankaa" V. State of Rajasthaa reported in 1999 Cri.L.J. 2902. 7. On the other haiid, learned Governm.ent Advocate supported the judgiaent of trial Court, . Having Iieard learned counsel for the parties, we have carefully scanned the prosecution evidence, dyin; declaration and other niaterial available on record. There is no ocular evidence in this case which rests solelv on tti, - circuiustaQ''tial evidence i,e. dying declaration of the ^ / • deceased -and laedical . evidence. In order to fasten the accused ih a criiniual case based on the circunistantial eviden.ee the settled principle of law is that °in a case based on cir.Fumsianlial evidence, before the Court can record conviciion, ii must safisfy itself fhat circumstances from which an inference of guili could be drawn have been 'establis'hed by unimpeachable evidence Ipd by the prosecuiion and that all the circujnstances put togeiher are ff (^ Page 5 of9 ,.-?KB" (., not only of a conclusive nature bui also complete the chain so fully as to unerringly point to the guili of accused and are not capable of any explanation which is not consistent ivith the hypothesis ofthe guiU of fhe accused. 9. Now we shall proceed to exainine the facts_aiid evidence availatole on record in the present case on the basis' of above settled principle. It is adinitted position that whole case rest on the dving declaration m.ade bv deceased Sukhwantin Bai and in order t.o base conviction on a dying declaration the Court, before placing reliance on the dyin; declaration, has to satisfy that the dying declaration uiade by the deceased was voluntary, true and un-ianiienced by auy person for inaking a'false dying declaration and that the deceased was fit to give stateiuent when recorded. The ic.ent.al condition of the niaker of the declaratiou, alertness of laind, ineiiiory and understandirig of what she is saying are inatters which can be observed by any person and for tliat purpose a certificate of a niedically trained person is insisted upon. Where dying declaration is'found to be coherent, consistent and free frora any effort to inniience tlie deceased, and raade iu fit inental state disclosing the naiae of the person who is responsible for the criine, couviction can be based on such dyiu; declaration and eveu no corroboration is required where the statenient inade bv the deceased is found to be voluntary, without tutoriug or concoction and there was QO inconsistencv in the various declarations of the deceased as to the cause of death, dyiug declaration can be the solybasis of conviction. •- / 10.. ' ;In tiie light of above principle, if we look into the evidence'- adduced in the present case, Laxiai Prasad Duljey (PW-16) has _ stated in his evidence that on 17.-2.1997 B;e was working as Head Constatole at Police Sfation Dharsiva, on receiving inforraation froni the -Priiuary Health Ceutre, Dharsiva, he reached there and retibrded the Dehati Nalishi (Ex.P-11) which. bears his signature at 'place 'A to A''• and thunib iinpression of Iflilflm Page 6 of9 W'hi Szikhwantin Bai at place 'B to B'. As Sukhwantia Bai's coudition was serious and considering that there is every likelihood that she m.ay die he recorded the dyin; declaration (Ex.P-12) in presence of doctor. In the cross- exauiination he has stated that five persons were standing nearby Sukhwantin .Bai i.e. Dr. Sanjeev Magloorkar, Bhuvanlal Sahu, Ashwani Kuiaar, husband of deceased and Kaitiini Bai-moth.er of. deceased. In the cross- :'p exainination of this witness, tlle defence has not been able to elicit .any thing that inakes the dying declaration of deceased unreliable. Perusal of Dehati Nalishi, which was recorded by the Head Constable Laxnii Prasad Dubey, shows that Sukhwantin Bai was fit to give evidence and she has stated that. she was inarried to preseut accused/appellant ten .years before the date of incident, she lias got a five years old feinale child, her husband is working on a truck and was keeping relations with other ladies also. In the Saturdav night her husband did uot return home and when he returued she tried to enquire from her husband that where he was, then her husband replied that he had gone to watch Kabaddi game, but as per her inforniation he weiit to the house of some other ladv with whoni he was having illicit relations and on this the accused/appellant started beating her by sayiug that she is doubting his character, thereafter closed the door of house, poured the kerosene oil on her body, whicli was lying in the hoiise, and set her 011 fire by saying that he will kill her, on which she started crying, Th'ereafter, saine Head Cons^able recorded the dying declaratiou (Ex. P-12) of Siikli^antin Bai in which she corroborated her statein.ea.t'. of Dehati' Nalishi, the witnesses nainely Ashwaui Kuniar Ss Bhuwan Lal have signed that dying declaration apart from. Dr. Magloorkar and deceased Sukhwantui-'Bai also put her thuinb inipression. Dr. S.B. Magloorkar (PW-20) has stated in his evidence that on 17.2.1997 Siikhwant.in Bai was brought to the Priniary Health Centre, Dharsiva in a burut condition/ on which he gave intimatiQn to the Station Hoiise Officer, Police \ H .. :.:!.. ; Page 7 of9 Station Dharsiva vide Ex.P-24, He exainiued Sukhwautin Bai and saw that there were burn wouuds on the body, face, stoiiiach and .both the hands. Upper part of thigh was also burnt aud there was swelling on both the haads, even the , hairs of head were also burnt and sinell of kerosene oil was emanating froin her body. She was in conscioiis condition'but her body was burut up to 60%, therefore, he gave advice to take her to Medical Hospital, Raipur and accordingly,'he gave the report Ex.P-25. In the cross-examination he has stated that dviag declaration was recorded in his presence. Thereafter, on 19.2.1997 Naib Tehsildar cuia - Executive Magistrate Ms. Yainini Pandey (PW-19) also recorded dying declaration of Sukhwantin Bai second tiiae. Ms. Yamiini Pandey (PW-19) has stated in his evideace that on 19.2,1997 at about 2.10. p.iu. she went to Maikahara, Raipur and recorded the dying deelaration of Sukhwantin Bai (Ex. P-22) ia which Sukhwantiu Bai had stated that in the Saturdav evening at about 5.00 p.ia. her husband poured the kerosene on her body and set her on fire by saying that she is doubtiug his character. This witness has further stated that she inquired froin Sukhwantin Bai that who else are residing in the house, she replied that she along with her husband aud five years old daughter are residin; in the house. As there was swelling on the thunib and hands of the deceased, therefore, she was not able to put her thumb im.pressiou. This witness has further stated that sh/obtained the certificate, (Ex. P-23) from the doctor regard/ing fitness of mind.of deceased to give evidence and perusal of Ex.P-23 shows that on that ttie doctor gave the certiflcate that patient can give the stateiaent. In the cross-examinatioa. of this witness counsel for the defence could not elicit anythiug. froia this witness which niakes t.he dying declaration doubtful. 11>. Therefore, from. the above evidence ofiYaniini Pandey, Naib Tehsi-ldar cum Execu-tive Magistrate (PW--19) & Head Constable Laxiai Prasad Dubey (PW-16), who recorded the Page 8 of9 Dehati Nalishi & dying declaration of Sukhwantin Bai, it is clear that Siikhwantin Bai m.ade dying declaration wlien she was in a fit state of mind & conscious to giye stateiaent, She gave the stateraent voluntarilv and there is nothing on record or in the cross-examination of these witnesses which goes to show that Sukhwantin Bai gave the stateinent in order to falsely iinplicate her husband or that she gave the stateraent.gn account of tutoring. Even in the cross-exaiuination the' defence to.as not been able to elicit anything which shows that Sukhwantin Bai gave the dying declaration oa account of any aniiuosity or concoction, rather Sukhw'antin Bai has stated that after some tiiae when she was burning the accused/appellant tried to save her. In the stateinent under Section 313 of the Cr.P.C. the accus'ed/appellant has stated that he was not at the residence, but in view of the above dyin; declaration made by Sukhwantin Bai this defence of accused/appellant cannot be believed. Therefore, we are of the considered opinion that dying declaratiou niade by Sukhwantin Bai was voluntary, true and same was laade in a fit state of mind, as such the convic.tioa can be based on such a dying.declaration, inoreover, three statem.ents m.ade by Sukhwantiu Bai first in Dehati Nalishi, second before Head Constable Laxnii Prasad Dubey (PW-16) & third before Executive Magistrate Ms Yamini Pandey (Pw- 19) on 19.2.1997 are similar with each other, there is no inconsistency in the above statenients, as such conviction can be based on these stateiuents without anv corrobora/tion. Therefore, we are qf the considered opiniou that tfae/trial Courf has rightly held the accused/appellant . giiiltv :.for coiainission of heinous act as also the involvejaent of accused/appellant that he^ is the persou •who poured. the kerosene oil 011 the body of deceased Sukhwanti-ii Bai and set lier on fire. 12. Now coming to the second lim.b of argiiments of " learned coiinsel for the accused/agpellant that accused/appellan.t had not set the deceased Sykhwantin ^ Page 9 of.9 •^•t.J Bai on fire with an intention to coiiiiait her inurder. After perusal of dying declaration, we do not find any substance in this arguinent, for the reasoa that when Sukhwantin Bai inquired froni the accused/appellaut that during whole night where he was, he started beating her and after closing the door.ofhouse poured the kerosene oil on her body and set her on fire by saying that she is doubtin; his character thei'efore, he will finish her. The above fact :''y shows that accused/appellarit set the deceased on fire with an intention to cause her death and that is why he first closed the door, thereafter poured kerosene oil and set her on fire by saying th-at he will finish her. As siich, on facts the judgmeut cited by learned counsel for accused/appellant is of no help to the accused/appellant. The facts of that. case were that when the accused/appellant could not recover Rs.50,000/- advanced to the deceased soine quarrel took place betsveen the two and all of a sudden in a heat of moment the accused/appellant pick-up the wick stove, which was lyiug on the place of occurrence, and threw it towards the deceased, whereas, in the present case the accused/appellant firstly closed the door of house, thereafter poured the kerosene and set the deceased on fire. 13. In the result, there is no substance in this appeal. We concur with the finding of the trial Court. The appeal fails and saiue is disruissed. ~S3T L.C. Bhnjdoo judgfe Sd/- Dilip Raosaheb Deshmukh Judge '"-- •Jiy.iidii/