[C—78 3TI^T ?7T ^[<=h WT 3TT^y $b^li<=h .^r- .^-^.. 'S^ ^|<4|^><q, ^Tfl^^lC, fs|<«->|<M^< HWdl <b*41<b C^f,^. N.- IM^-/^^ ^ ....................................................,...^ (^^ 3n^r XHF^ (4cit^<i^) '^HW Tlf^T 3TI^T Appeltant/Accused G[" Joii) Versu ftesoondent (Criminat Appeal unde DB : Hon'bi®Shri L.C. Bhadoc 13-3-2008 Heard Shri Ashok Soni <S appellant & Shri Sudhir Bajpai, Oral judgment dictated o L.C, Bhadoo. J Thi5 appeai is directed order of sentence dated 5-10-2 Judge, Raipur, in sessions trial Sessions Judge after hotdi commi5sion of offence under S short "theIPC") sentenced him CM<i{<n<i1i ^i*i<^f '^f^'fe^ Tf^R$R '^3^Rw3?n^r Kadir Ahmed, oged 28 yeors/ S/o toaffar Ahmed, R/o Rajbandha, TaSab Par, Modhapara, Raipur, Dist. Raipur (C6\. The Stats of ChhGttisgarh, Through Poiice Station Modhapara, Raipur (C6). s. Section 374 (2) of the Cr.P.C.) & Hon'ble Shri T,P, Sharma. JJ Shri Pawan Kesharwani, counse! for the ^y. 6ovt. Advocate for the State. h da/^ •l ^ai^st the judgment of conviction and \)01 passed byths 6th Additiona! Sessions 1^0.369/2000 whereby iearned Additional |ig the accused/appellant guiity for ^ction 302 of the Indian Penal Code {for ^•o undergo imprisonment for* life & to pay ^T^T^IS^ <W 3TRp?T 9b*ii<sti ^-' ^- :t_ ? 3^';^PTT^T, ^»Tf1-y<|^, i«|^|^^< ^row wn^? ^ 200 3n^?r x^ra? (^g^r) ^RiTW ^rf^T 3?n^T w4s fine of Rs.2,000/-, in defautt o1 for three months. 2) Case ofthe prosecution, 7.30 - 8.00 p.m. Jaibunisha (s| HospitGl in a burnt conditlon JaibunishG succumbed to the 2000. Intimation (Ex.P/8)< Station House Officer, Police) that merg intimation (Ex.P/9) for the hospital and after gi^ (Ex,P/6) on the body of jQibuni under Ex.P/7. Th©burn injui (PW-15). Injury report is Ex. Mekhara Hospital gave requisj Officer regarding the condi' whether she was in a position Doctor informed that the pati^ statement. Requisition (Ex.P/lj< of Jaibunisha was given, Base^l conducted postmortem on th^ cause of death was due to carjc R>i<il<n<i1^ *iw^ ^fe(zt ^rf^R^R ^3PtRlH3T^T payment of flne to further undergo KJ. in brief, is that on 10-9-2000 at about |ice deceased) was admitted in Mekhara |snd the burn injuries were up to 95%. )urn injuries at about 2.15 a,m, on 11-9- given by the Medical Officer to the Station MbudhapGra, ftaipur. Based on vas recorded. Investigating Officer left ing notice (Ex.P/5), he prepared inquest ibha. Clothes of the deceased were seized ies were excmined by Dr, K*K. ^cijbhiye V10-A, The in-charge of Police out post ^ion under ExP/11 to the Chief Medical ion of the patient to the effect that \o give the statement or not, on which the ^nt is not in a fit state of mind to give her ?) for conducting postnnortem on the body on that Dr. Sanjdy Kumar Oadu (PW-15) body of Jaibunisha. He opined that the lio respiratory failure, as a resutt of burn r-" XI-HC—78 ^TT^T^Tl^l^T '<TSTT ^TI^T ^RN ,A "Y, TOTT^PTT^T, yiTfl^^Ko, I«101«^< ^ITO^T sb^idb •^200 3H§ST TI5TO (4^[^fj[Sr) '^RTTW^n 3iTT^T injuries and its complications. that First Information Reporj (ExP/15) was prepared. From| printed bed sheet, container o\ stick of match box were seiz^ (ExP/2) was prepared, Cr1me| \J the Investigating Officer un.de| 3) After completion of inv Court of JudidGl Magistrote, ^ the case to the Court of Sessi Sessions Judge, ftaipur, receiye 4) In order to establish the prosecution examined 16 witne was recorded under Section 3 materia! appearing against him. wife was cordial; his wife was r order to implicate him in a fah have giv^n the statement that He is innocent and has been He examin^d Mohammad Asraf! cbi<<f<n<i1wi ^CT?if^fe^ <fa^i< ^3FifipT3TI^[ Postmortem report is Ex.P/13. Based on t (ExP/14) was registered. Site plan the place of occurrence one bianket, one kerosene oil, one match box & one burnt d under Ex.P/1. The house search memo record of the accused was procured by -Ex.P/18. sstigation, charge sheet was fiied in the •trst Ctes, Raipur, ^ho in turn committed pns Judge, Rdpur, from where Additional Id the some on transfer for triat* charge against the accused/appellant the ^ses. StQtement of the accused/appellant 113 of the Cr.P.C, in which he denied the He stated that his reiationship with his |ot in a position to talk in the hospital. In {e case the family members of his in-iaw's pTaibunisha gave dying decbration to them. f|3lsety impiicated in the crime in question, |as DW-1 in h Is defence. XI-HC—78 371^T^ f<^Jch 'cT^T 'STI^T 5b^i<=b T^S ^<N10<<, ^^4 Ko, (e|<'!»iy^< ^lHCrll W^icb "^ 200 3n^?r xpra? (4c(I^<^) '^RITW^i^T ^n^T 5) Learned Additional Se^sl respective parties, convicted aforementioned. 6) We haveheard Shrl for the appellant and Shri State. 7) In this case, there is <=bi<<f<n<Ili TnTi^f ^f.fe^ <F»i^i< ^ 3fRPT 3!TT^T ions Judge ofter heoring counsel-for'the and sentBnced the accus^d/appe!!fxnt. as Ash|ok Soni & Shri Pawan Kesharwani, counsei Si|^Mr Bajpai, Dy. ^ovt. Advocate for the no direct or ocuiar evidence regarding compiidty of the accused ii| the crime in question, Case of the prosecution rests on the circurr|stantial evidence that the deceosed made oral dying declaration befor^ PV^-t Jamila |egum; mother of the deceased, PVi/-2 Mosum 6i, grc^id mother1 of the deceased, PVi/-3 KGnya Begum, aunt of the deceased; ^ maternat aunt of the deceased] evidence of these 5 witnesses, 8) As per the settled law jn V~5 Saiim Khan <&. PW-9 Khurshid Beaum/ Learned tria! Court ofter recordina th^ iGs convicted th^Gccused. order to con^ict an accused based on the circumstantiat evidence, the |Honjbie Apex Court in the matter of &hGnGnJoy Chan@rj@® Vs. Sfat®of W.B-{(1994) 2 SCC 220} heH that: "In a case based circumstances frc cn circumstantia! evidence, the m which the conclusion of guiit is to be drawn hav^ not only to be fui!y established _L XI-HC—78 3TT^T ^?T ^ich 'WT 3TR?T 5b^l4» -i- (^^- T^':;STFTT^T, ®Tn«ll<o,(s|<y>l^^< *<INdl (h*<lcb ^ 200 3T(^?T XR^ (|jd[^<^) '^iW^feT^T^r but also that aII shouid be of a coAclusive with the hypoth^sis Those circurnstohces being expiained b| yuiit of the accu^ec must be so cbmpi| qround for the b^i of the accused* establi^hed ciN indignation of tr|e conviction and greater should b^ eyidence lest h'he circumstances so established nature and consistent only of the guilt of the accused. should not be capable of ^ any other hypothesis except the ted and the chdn of the evidence ste as not to leave any reasonable liief consistent with the innocence [t needs no reminder that legaily ^ymstances and not merely le court can form the basis of more serious the crinie, the ths; care taken to scrutinize the takes the pface of proof." tijie 9) Learned counsel for* conviction rests on the ttetimdnv thdt when the deceGsed v^as see Jaibunisha and they sent the doctor/thereafter, they that the accused gave beating body and set her on fire. d^ceased WGS not in a fit statej from the eyidence of PW-121 MoudhcpQra as also the eviden^e PW-14 A. Kujur, Sub Inspecto( '~vv?':'^''~' ~'y':*^':sr"^ <=bMfd^1'1 *iiH<nT^t^l<i <Rn^i< ^3iRPT3TT^T susrticion l|he accused/t2DDeliant araued that the i^ny ^f these 5 witnesse^, who have stcted o|lmitted in Mekhara, ftaipur, they went to ^he accused outside the room for calling ^nquired from her, on whlch she disclosed \o her, thereafter poured kerosene on her L^arned counsel further argued that the [of mind to give statement that is evident M.S- Thakur, As^istant Sub Inspector, of Dr. Kamoi Kumor eajbhiye (PW-15) <&. ^, He olso argued that aii the witnesses XI-HC—78 ^TT^T ?FT ^Jch WT -STT^T 5t)*ilcn l..-"v 3:^^Ni0<^, ^Tn'y^ie, fst^wy HINdl <bNlcb ^200 3TI^?T T15W (<lc<^<^) ^^ITW^^T^?T are ciose relatives of the ded be placed on their evidence. hove stated thdt the deceased 1.30 a.m, whereos the scrutin^ 9.00 to 9.30 p.m. when they re'1 the room for caliing the doq -\ deceased mode orai dying dfe. therefore, their testimony can? 10) On the other hGnd, iec.n the Qccused in his statement ui question No.18 has admitted tlr to Jajbunisha and in rep Jy to broth^r of the deceased nam^ From the aforesaid fact, it is therefore, she made oral dyjng 11) As far as the question o Constitution Bench of the Ap State of Mahcirashtra {(20021 "The situction in yery soiemn and \ accept the vcraci' <=bl^id^1-1 TTFT^Tf ^fs^ <Rfl^l< ^3iRpT^n^?T ^ased; therefore, explicit reliance cannot argued that most of these witnesses made dying decbration at about 1.00 to of their evidence shows thct ot about ^ched AAekahora, sent the accused outside tor/thereafter they enquired, then the ;taration i.e. at cbout 10 or 10.30 p.m,/ |ot be beliBved. (ed counsei for the State submitted-that. |ider Section 313 of the Cr.P.C. in repiy to |at the mother ofythe deceased 9Gye mitk lue^tion No.43 he has admitted that tRe |ly, Sa!im was talking with the deceosed. estabiished that Jaibunisha was talking, tjecbratlon before the witnesses. f orai dying d6ciardtion is concerned, the ifex Court In the matter of Laxman vs. 6 SCC 710} hos hsSd as under : (hich Q man is on the deathbed is perene, is the reason. in lcw to I/ of his stuteiTient It is for this ',r •—78 3^r^TFn^T, ^Tfi^4i<o, I^oi^y ^llNdl tbNlch W1, 200 3n^?r xnra? (4€'^<i?T) 37T^T??T ^ich TT^n 3TT^T 5b*lich .^-/ 5<wi<^ ^f^a 3^n^[ reason that the examination are dl has no power of that the dying ^ nature as to inspij its truthfuiness however, has atwa^ statement of thel ^ither tutorir^ jmagination. ,).ha| that the deceasedl the opportunity assaiiant NormGJil satisfy whether condition to make the medicai opiniob state that the de<| state to maRe th^ wiil notpreyaii, nor no certification o1 fhe the mind of the d not acceptabie. ^ writing dnd any ac whether by worA suffice proyided definite, There dying declaration Maqistrate and wh- a AAagistrate ther for such recordin< vaiue or weiqht statement necessc cbl^lfd^l'l 'RTO^ff '?,'feT3t <pq^l< ^^iRpT^n^r <equirements of oath and cross- |spensed with, Since the accused ctjioss-examination, the courts insist lecbration should be of such a tle full confidence of the court in and correctness. The court, ^s to be on guard to see that the Ide.ceased wos nof as a resuit of prompting or a product of court aiso musr further decide |was in a fit state of mind and had |to observe and identify the p, therefore, the court in order to deceased was in a fit menta? |the dying declaration looks up to But where the eyewitnesses teased was in a fit and conscious declaratlon, the medical opinion eon it be said that since there is the doctor as to tha fitness of J^ciarant, the dying declaration is |jying decbrationt:Gn be oral or in ^aquate method of communication orrby s'ians orotherwise will |the indicatioh is positiye and i^ no requjrein'eht of iaw that a Imust .n^c^ssorHy be made to a i^n such starement is recorded by ^•;is no specified stututory form Consequently, what evidential Ihas to be attached to such triiy depends on the facts and XI-HC—78 ^T^r^r i^'-tw W[T <3??^?T ^RW ^i c Tv^ ^Wl^, ^-^W\<o, ^<ftW^ 'W??ff 9hN6<* ^200 31T^9T'CR^ (4^^<^) '^nw^rf^r ^ETI^T circumstGnces of essentiaily require' dying deciaration deceGsed was in c proved by the tes" deciarant was fj' without examinati^ can be acted upc holds the same +c^i 12) It is admitted position ti ofthe deceased Jaibunisha. Ti evidence, the Court is required with great care and circums deceosed JaibunishG was burn injuries in the evening of 10-9-^ 13) PW-12 M.5. Thakur.. Ass the retevant dcte in Po!ice Sta' the apptication (Ex.P/11) to; HospitG! for oscertaining the ^ whether she was fitto giye th< doctor gave information that tl' give the statement/ therefore ct»i<i(<n<iliW^f ^feczlk <Rit$i< ^^TRm^Fn^r ©ach particuiar case, What is J is that the person who records a must be satisfied that the .:+it.stote of mind. Where it is 'jmony of the ^agistraTe that the to make the staternent even >n by the doctor the deciaration n proyided the court ultimateiy 30 voiuntary and truthfu!." \ lat all the 5 witnesses are close reiatives icrefore, before plGcing reliance on their ito evaluate and scrutinize their evidence |)ection. It is admitted positioh that I- up to 95% and she sustained the burn POO j.e. at about 7.30 p.m. istant Sub Inspector, who was posted on ^ion Moudhapora, has stated that he gave |the Chief Medical Officer, AAekahara losition of Jaibunisha to the effect that s statement or not. He has said that the ie injured was not in a fitstate of mind to /he returned, In paro-3 he has stated XI-HC—78 •^^^ 3iT^i9?r1%F?w WT^P^T^TO^ ,:e ^' ^ 3^-r^lHI^, ^Tn^<|<o, fcj^l'M^ 'WRW 5bNi<*s WI, 200 3n^?T X[3W (yifys^ST) ^t<lTO< tll^^l that Jajbunisha was in burnll whole body was burnt. 14) PW-14 A. Kujur, Sub stated that it is correct to doctor in order to ascertain mind to give the stQterrtenl Jalbunisha was not in a fit stal v 15) PW-15 br. Kamat Kumarl first instanceand who examinbd was burnt up to 95%* He h< application (Ex.P/11) to the RS| Jaibunisha was brought to the WQS not In a position to give that before 2.15 a.m* when sh^ sh^ was in a fit stGte of min< accused in his statement undi that the mother of the decea^ has aiso stated that brother dscecs^ed. Miik can be giyen tc of Jaibunisha hos stated that <*l^(d^1'1 'RPRTf ^fec^ Tf^R$R ^^iRiH^n^r condition and she was murmuring. Her ;nspector, in para-8 of his evidence hos say that an Gpplication was made to the fl/hether Jaibunisha was in a fit state of or not ond doctor gave report that ^e of mind to give the statement. Sajbhiye, who attended JaibunishG in the i^d her injuries hos stoted that the body |s further stated that he forwarded the ip Surgery* It is correct to say that when piospital she was semi unconscious ond she i^e statement. There is no other report died she re-gained the consciousness and to give her statement. Even though the tr Section 313 of the Cr.P.C. hos stoted s^d was giving milk to the deceased and he jf the deceased Salim was talking to the a semi unconscious patient* The mother ^ie gave milk with the heip of spoon. Semi XI-: 3^T^T ^T f^llioh" ^TSTI^T^RW ,;<: '.L- 7^[ ^ww^, ^rfl'y^KS, (ct^i^y 10 WI^T ^^!t4» "^ 200 3H^jT -q^F? (<i4^<Sl) '^nw^Rfsn ^n^r unconsdous patient can talk irr| was in a fit state of mind to giy| 16) As has been referred ab] have categoricatly stated that to give statement. There is no \ estGblishes that at any point of| in a fit state of mind to give stc| btevant talks that does not mean that she b the statement. ^ve, both the poiice officers and doctors IToibunisha was not in a fit state pf mind ^vidence or anymaterial on record, which Itime the deceased was consciousness and [tement. , witnesses who have stated th^] before them. PW-1 Jamila 8er| that on receiving information AAekahara hospitai at about 9. standing by the side of her dai on fire. She cbo di^close.d that about 2.10 a.m. she succut^bed <=M^(<n<ill HW^S ^fe^ <FaitSr'< <^3ifiP:T3TI^¥T 17) In thisbackground/we h<|ive to scrutinize the evidence of all the 5 xt the deceased made dying declarGtion lum, moth€.r of the deceased.. has stated |she along with other rebtives reached 00 p,m- At that time the accused wos Ighter. She asked the accused to go and catl the doctor. Thereofter, sh^ enquired from her daughter (deceased) that how she has sustained t^e fcurn injurles, on which the deceosed disclosed that the accused aft^-r pouring kerosene on her body sef her in the mid day there was quarrel between them and since morning she ^jad not taken anything. Thereafter, at o the burn injuries. This witness further stated thaf when she enquired |from her daughter the time must be 1.00 XI-HC—78 ^n^T^Tft^rfy •?CT'.OT^%^ -F 'S^ '^t^i<r><i, «>Tn'y<i<o, Ist^i^y 11 'W^ff gb^icb 'W^ 200 sn^yr'qsTcR (^l^<s?) 'S^TW^f^T 3?n^T ct)l<lf<yl<Ill^W^ ^fe^ <Fai^fl< <^3fRFT3TI^[ to 1.30 a.m* The statement of t( for the reason in the first il reached at about 9.00 a,m. thel daughter. She asked him to g<^ ^is witness in para-4 is self contradictory hstance she has stated that when she [accused was standing by the side of her and call the doctor and thereafter, she enquired that means she must h|ave enquired from her daughter at about 10.00 p.m. In para-lS also sbe |ios stated that at about 1.30 Q.m. in the night she enquired from her dGi|ghter. As per the report of the doctors, Jaibunisha was not in a fit staN of mind to give statement. 18) PW-2 Masum Bi, grand m<|)ther of the deceased, has stated that at about 6.00 p,m, Kadir Ahmed informed at the shop of Vijay Agrawol that Jaibunisha has sustained burn ii|tjuries and thereafter Gt about 8.00 p.m. the Police received informQtic informed the same to them. Tl SGW that Jaibunisha was lying | they enquired from her, she sai 1 |n from ftaipur about the incident and |iereafter they went to the hospital and ^i the hospital in burnt condition. When ^ that accused has gave severe beating to her and set her on fire. The 4-vidence of this witness establishes thGt immediately after they reache^ to the hospital they went to Jaibunisha and on their enquiry she discto^ed about the incident, but in para-5 she ha^ ^te; d that thev enauired (fet about 1.30 G.m. The above evidence of this witness is contrddictory t^ categprically stated that when \ h€;revidence in DarQ-2 in which she has they reached in the hospital Jaibunisha XIs 3?n^r ??r ^ti^ WTW^TiFRTS^ ^ 3T5ST ^|<4l0<1, «>Tfl<1^1<S, («10W^< 12 'WTW ^FffSR V^ 200 3H^?T '^RW ( 4^t^^y) ^«ti^R<if^a 3H^T was tying in burnt condition ancj ^he informed that the accused her body, 19) Similalry PW-3 Kanija| exomination-iri-chief, has state^ and saw that JaibunishG ^j Jaibunisho, on which she repli^d her and her husband, therefo^ kerosene on her body. The ev| they made enquiries from the tha hospital. In para-4 this w at about 1.30 a.m^ but this evidence of this witness. 20) PW-5 Satim Khan has c hospital they saw Jaibunisha standing there. He has stated they enquired from Jasbunisha as the accused was standing to the.m, therefore, he asked accused l^ft the place and c^i<i(^i<il»tWT?if^fe^ <(^i^i< '^3fRP:T3n^T when enquired from her grand daughter set her on fire after pouring kerosene on Begum, aunt of the deceased, in that they went directiy to the hospitai xs steeping and Salim enquired from thot there was some quarrel between e, accused set her on fire after pouring idence of this witness also suggests that leceased immediately on their reaching to tness has aiso stated that they enquired evidence is contradictory in para 1 of |lso stated that when they reached the jwcfcs burnt up to 95% and accused was that as soon as they reached the hospitat |ds to how she has sustdned burn injuries, th^re Jaibunisha was not disc!ossn9 anything the accused to go outside, on which the |ie enquired from jGibunisha, then she XI-HC—78 3TI^?T ?RiT'f^N WT^IT^T^lN? ^TTCf •^N10^, ?$Tfiy41<o, fs)0W^< 13 NtN^tl %^?N? W^ 200 31T^?T TRRF ( 4^^^) ^<nw<if^a 3?n^r disclosed that the accused ga\{ fire after pouring kerosene o^ this witness is cteGriy establis| Jaibunisha after they reacl^ prosecution that Jaibunisha di^ at about 1.30 a,m. stands demol they enquired at about 10.00 p.( the enquiries were made from 2.15a.m. 21) Simitarly. PW-9 Khurshi< has also stated that when tt' Jaibunisha was severely burnl Jaibunisha namely, Salim, Masu there. The accused was ai< jGibunisha as to how she sus' speak anything because the asked the accused to go and that the accused set her on • Jaibunisha dld at about 11.00 - CM^(<n<flTi *iw<A ^f^^l <Rn<$i< ^ ^FifiiH ^n^r e her beating and thereafter set her on her body. Therefore, the evidence of ics thot they immediately enquired from ed the hospital. The theory of the closed these witnesses about the incident ished, The fact that as per the evidence ift. further establishes from the fact that Jaibunisha 4 hours prior to her deoth i*e. (p Begum, material aunt of the deceased, ey reached the hospital they saw that At that time the family members of |^ Bi, Kanija &. Jamlia Begum were present |o standing there. She enquired from tained the burn Injuries but she did not d^cused was standing there. When they c|g!l the doctor, then Jaibunisha disdosed :ire after pouring Rerosene on her body. |12.00 p.m. ' ^XI-HC—78 <-<: ^:^/' 3?n^T^T ^Jch 'TOT3?H^T^Rh? ^ c^. TwT':3TPTT?^r, «iTf1^<l<o, is)<?'»W^< 14 'Wt??fT '^ST^; WI, 200 3:nr^?r'q^RF (y^l^<^) ^wi^R ^a 31T^T Oyw^O Y^ instctnce 22) Therefore, the eviden^e declaration made by Jaibuni^a reason that, in the first inst^nc have categorically stated tho1| statement. Moreover, ther^ regarding the time when \i declaration before these witnesses does not inspire deceased made oral dying no other material on record, i|vh accused in setting Jaibunisha wttnelsses 0(1 reasofis 23) For the foregoing tha finding of the trial Court committing the murder of Jaibipnisha .24) In the result, the Qppec| conviction <& sentence irn&osed in any othercase. Sd/- L.C. Bhadoo Judge cbl^fd^l'l *<w<?ff'?,fe1^ <Rn<Srl< ^? ^FiRpT3Fn^r of these witnesses regarding dying does not inspire confidence for the ^ the Police officers and the doctors Jaibunisha wos not in a position to give is a controdiction in their evidence Jclibunisha said to have made oral dying i. Therefore, the eyidence of these 5 con|fidence of the Court in respect that the deebrQtion before these witnesses. There is ilvhich establishes the involvement of the fire after pouring kerosene on her body< s, we are of the considered opinion that regarding complicity of the accused in cannot be sustained. Aicceeds and the same is allowed, The under Section 302 of the IPC are set aside, He is acqyitted of the s^id charge. It is stated that the appellant is in Jail since 15-9-2000, He fc|e set at liberty forthwith, if not required Sd/- T.P. Sharma Judge