a HI6H COURT OF CHHATT[S6ARH : BILASPUR (Division Bench) CORAM: Hon'bie Shri Vijay Kumar Shrivastava, J. <& Hon'ble Shri-Dhirendra Mishra, J. ApDellant: CRIMINALAPPEAL N0.221 OF 1999 Respondent: Sampatlal S/o Kodulal Mahobia Aged about 38 years R/o Pahruba Crol°)< AA®c PS: Dheemarkhecki Dist: Jo^alpur Labourer, Telephone bepartment Bilgahno, PS Kota, Bilaspur Vs The State of Madhya Pradesh No^v Chhattisgarh PRESENT: Shri Jb Bajpai, counsel for the appelloBit. Shri UNS Deo, Additional Public Prosecutor with Shri Akhil Mishra, Pomel lawyer for the State. JU&6MENT (dated 15th June 2006) Per Hon'ble Shri VK Shr'ivnstava, J. This oppeai under Section 374 (2) of the Cr.P.C. has been directed a9ainst the judgment of conviction and order of sentence dated 14.01.1999 passed by the Special Judge (Atrocities) Bilospur in Sessions trial No.61/1997 whereby the appellont was convicted for committing murder of his wife Smt.Sunita ©Kuntibai, punishdble under Section 302 IPC ond was sentenced to imprisonment for life. y-- !) Admittedly, deceased Sunita © Kuntibai was the second wife of the appelldnt. He along with his wife was living in a rented house of Phoolbai. On the date of incident, both husband and wife were slept in their room. 3) Prosecution case in brief is that in the intervening night of 7th ond 8th of August 1996, at about 11 pm, appellant pouring kerosene oil on his wife Sunita ©Kuntibai, set her ablazed and thereafter fled oiway from the spot. Sunita ©Kuntibai in burning condition, up-roared and rushed outside the room. Witness Phoolbai tried to extinguish the fire with the help of a blanket. Sunita @ Kuntibai was taken to the hospital. An intimation report of bum case ^ from Primary Health Center Beigahana was sent to Police. The police moide entry of the same in Roz-namcha sonha and thereafter Head Constable Doyaram Sharma went to the hospital to enquire the case. He 9ot the statement of injured recorded by Medical Officer &r (Ms) AN Khalkho. From her statement, it was revealed that she was set ablazed by her husband Sampat; therefore, a case under Section 307 of the IPC was registered and investigation was started. 4) During investi9ation, bangles, jaricone containing some kerosene oil, match stick used for lighting and other materuls found on the spot were recbvered and collected; map was prepared. The statement of Sunita @ Kuntibai was also got recorded by the Executiye Magistrate t)R unte. Sunita @ Kuntibai, who was admitted in thehospital for treatment died as^a^resyyLof_those burn :-iy injuries; therefore, the offence was converted from 307 to 302 of the IPC. Sub-Inspector of Police after conducting inquest prepared inquest report and sent the body for postmortem. Dr (Mrs) M Sen and Dr 5 Mukherjee conducted the outopsy and they opined that the death was caused due to shock as a result of extensive burn injuries that of 90%. Statements of witnesses were recorded, even under Section 164 of the Cr.P.C., Phoolbai and Baburam ©Babua were examined and their statements were recorded by the Chief Judicial Magistrate. After coinpletion of the investigation, ehallon was filed in the Court of Additional Chief Magistrate, Bikispur, who committed the case to the Court of Sessions for trial. 5) Charge under Section 302 of the IPC was framed against the appellant, and the same was read over <md explained to him, who abjured the guilt. His defence is that he is innocent; he was not visiting deceased Sunita ©Kuntibai regutarly, therefore, she immolated herself. 6) Learned trial Court relying on both the dying dectarations recorded by Medical Officer t>r (Ms) AN Khalkho (PW/5) ond Executive Magistrate t5R Khunte (PW/4) and also considering the circumsteinces that the oppellant instead of 9etting his wife treated properly, fled awoy from the spot, held the appellant guilty for committing offence of murder of his own wife Sunita ©Kuntibai under Section 302 of the IPC and was accordinajy sentenced. ^' UNWUW! ^ 7) Learned counsel for the appellant contended that dying declaration (Ex.P/13) recorded by Medical Officer t>r (Ms) AN Khalkho (PW/5) does not bear the signature or finger impression of the deceased and also the same was not introduced along with the chollan, but was subsequently filed in the Court, therefore, it con not be relied upon beyond doubt. Another dying declaration i.e. Ex.P/8 recorded by the Executive Magistrate that also does not inspire confidence because, at that time, deceased Sunita @ Kuntibai was in a condition of 90% burns. As also when earlier, already a dying declaration was recorded, there was no necessity of recording another dying declaration. Learned counsel for the State opposed ^ these contentions omd supported the judgment of conviction and order of sentence passed by the trial Court. 8) It is not disputed that Sunita © Kuntibai wos burnt and was died due to shock ns a result of bum injuries. Even otherwise, medical evidence of Dr (Ms) AN Khalkho (PW/5), who on the first hand examined Sunita ©Kuntibai in burn condition and evidence of &r 5 Mukherjee (PW/10), who conducted cutopsy have been adduced by the prosecution ouid by their evidence, medical examination report (Ex.P/9-A), and dutopsy report (Ex.P/17) have been proved. br (Ms) AN Khalkho (PW/5) in her evidence deposed that Sunita ©Kuntibai was brought in burn condition for examination on 08.08.1996 at 3.30am, she examined her and found that the extent of burns is 67%, depth of burn (a) Dorsun of handjjpjto wrist joint, (b) left side of left arm up to shoulder joint 10" x 2", (c) Middte of left forearm 4" x l", having white skin and on other sites red, black color blister skin caused by burn was found. E)r S (Aukherjee (PW/10) in his statement deposed ttiat on examination of dead body of the deceased, it was found that 1st ond 2nd degree burns over face, neck, chest, abdomen, both thi9hs, both upper cmd lower limbs were present and total burns wera found to be 90%. She died as a result of shock due to extensive burns of 90%. From the aforesaid evidence and reports (Ex.P/9-A ond Ex.P/17), it is established that Sunita © Kuntibai received burn injuries ond as a result of those injuries, she died. 9) Phoolbai (PW/l), Baburam ©^Babua(PW/2), who were present in their house and in whose house appeltant and deceased were living on rent have been produced for evidence. They, in their police statement have stated that they were informed by Sunita @ Kuntibai that the appellant after pouring kerosene set her on fire. Both these witnesses have been examined under Section 164 of the Cr.P.C. by the CJM. Before CJM also -they deposed against the oppellant; but during the trial both these witnesses tumed hostile and they resited from their earlier versions. The 1st dying declaration is Ex.P/13 recorded by Dr (Ms) AN Khatkho (PW/5) was not filed qlong with the challtin; but when witness Head Constable Oayaram Sharma was exoinined on 29.05.1998 by the trial Court, the fact of dying declaration recorded by C)r.(Ms)AN atkho (PW/5) was noticed by the Court, therefore, aty ^ ./. ^J the instance of court, the dying declaration was taken out from the potice case diary and was made a.part of -riie challan. A copy of the same was atso given to the appeUant. Dr (Ms) AN Khalkho pW/5) in her statement categorically stated that she recorded dying declaration of the deceased Sunita © Kuntibai in the early morning at 6.45 am in presence of dresser Kt) Oahariya and compounder SK Lal. At that time, she was fit to make a statement. In that statement, deceased Sunita ©Kuntibai stated that in the mid-ni9ht, at about 11 pm, -the appetlant poured kerosene oil on her and set her ablaze. Csr (Ms) AN Khaikho (PW/5) proved the dying declaration Ex.P/13. She did not take the signature or finger jmpression of the deceased Sunita © Kuntibai in Ex.P/13. 5he was cross examined at length but no question was asked re9ardin9 not taking signature or finger impression of the deceased on Ex.P/13. That apart, only in absence of signature of the deceased, the dying declaration recorded by the AAedical Officer who has no omimosity with the oppellant or any Interast in the deceased con not be discarded. Nothing in her cross examinationhas been elicited so as to dis-believe her version. /"' On the same day, &R Khunte, Executive Magistrate (PW/4), also recorded statement of Suni+a @ Kuntibai and proved the same to be Ex.P/8. t)R KhunTe (PW/4) cate9oricatly stated on his examination that Sunita ©ICuntibai stated that appellant poured kerosene on her and set her abtaze. In his cross exainination, he denied the suggestion that Sunita @t^jntttoiidfli? not in a condition to ^o } make statement. He also gave explanation regarding not availability of Medical Officer at the time of recording the said statement. In his cross examination, nothing has been elicited so as to dis-believe his version. That apart, the said dying deckiration second in number does not make it in odmissible. 12) Dying declaration Ex.P/13 and Ex.P/8 duly proved were ccceptable ond the trial Court, also assigning various reasons accepted both the dying declarations to rely to hold the appellant guilty. Both the declarations are not contradictory and they corroborate each other; they are corroboruted by medical evidence and also by the circumstontkil evidence that of the conduct of appellant. 13) From the evidence, it is also estqblished that although both husband and wife i.e. appellant and deceased were in a room and in that room deceased Sunita ©Kuntibai was set abloae. But the appellont, leaying her behind in burning condition, left the spot. Neither the appellomt took care to get her treated nor reported the matter to the Police. Although oppellant ctaims that he tried to extinguish the fire and also suffered burn injuries on his both hands, but neither there is any report nor any substantiat evidence to substantiate the same. Therefore, conduct of the appellant also suggests his involvement in the crime. We are of the considered view that learned trial Court relying upon both the dying declarations, medical evidence and conduct of the appellant, correctly hekltlie^ppellant guilty fbr Committing 8 the offence of murder of his wife 5mt Sunita ©Kuntibai and has correctly convicted and sentenced the appellant. 15) Before parting with the case, it is necessary to mention that a hostile tendency is developing in witnesses, to resile from their previous statements, whether made before the Police or Magistrate in order tosave the culprits. Leaving aside some exceptions learned lower Courts never thought it proper to curb such tendencies by exercising their powers as envisaged under Section 344 of the Cr.P.C. Here, in the instant case it was proved that Phoolbai (PW/1) and Baburam ©Babua (PW/2) were pr^sent and they 9we statement before the Police and even before the CJM; but in order to save the cuiprit, they, on flimsy grounds resiled from their earlier statement. From evidence on record ond circumstances also. it is clear that both these witnesses instead of revealing the truth before the trial Court, have stated lie. In future if such cases come to the notice of concerned Courts, they must take care of provision contained in the Section 344 of the Cr.P.C; and should take necessary steps against those who attempts to frustrate the sanctity of judicial system. The appeal fails; judgment of conviction omd order of Sentence passed by the triat Court is confirmed. Sd//- • V.K.Shrivastava Judge Sd/- Dhirendra Mishra Judge ,/' adina