Eff; @ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. R.L. JHANWAR J Criminal Appeal No. 927 of 93 Deepak Kumar VERSUS State of Madhya PradeSh APPELLANT RESPONDENT JUDGEMENT FOR CONSIDERATION Sd/— T. P. Sharma Judge Hon’ble Mr. R.L. JHANWAR J. © a 10‘ sw- .L.Jha““"“ rf Judge , Post for Judgment on: 29/04] 20 10 Tia. Sharma Sd/- Judge J. I R / \ J APK @ HIGH COURT OF CHHATTISGARH AT BILASPUR V DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. R.L. JHANWAR, JJ. Criminal Anneal No. 927 of 93 Deepak Kumar son of Santosh Kumar Isai aged about 25 years Resident of S.E.C.L. Subhash Block, Korba Distt. Bilaspur, M.P‘ State of Madhya Pradesh CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF CRIMINAL PROCEDURE. Shri Sudhjr Bajpai, Dy. G.A. for the State/respondent. JUDGEMENT (Passed on 29 [04/ 2010) The following judgment of the Coult was passed bV *T.P. Shanna, J:— 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 12/8/93 passed by IVth Additional Sessions Judge,'Bi1aspur in Sessions Trial No. 106/92 whereby and Where under after holding the appellant guilty for the commission of culpable homicide amounting to murder of his sister- in—law (Bhabht) Lalita Bai convicted the appellant under Section 302 of the Indian Penal Code and sentenced "\\ impm'sonment for life. APPELLANT RESPONDENT Presentt- Shli Abhay Tiwan', Advocate for the appellant. 2 Conviction is impugned on the ground that Without any credible and clinching evidence sufncient for conviction of the appellant Court below lhas convicted and sentenced the appellant aforementioned and thereby committed an illegality. Case of the prosecution in brief, the appellant and deCeased Lalita Bai sister-in—law (Bhabhi) of the appellant were residing under same roof, on account of some illicit relation of deceased with some doctor who was worldng as a Nurse, appellant was not happy with the deceased. On fateful day of 23/11/91 at about 10.30 AM. Appellant told the deceased to resign from her service on the pretext that she was having illicit relation with the doctor then he poured kerosene oil over her and set her ablaze thereby caused 90% burn injury She cried for help, her husband PW4 Semsan Kanti Kumar who was in bathroom rushed after hearing the cry and saw his wife was burning and accused was pushing her. He tried to extinguish the fire finally he succeeded immediately he toolr the inured to P.H.C. hospital where she was examinedby PWI Dr. B, Mandal vide Ex. P— 1A and found 90% burn injury. First Information Report was lodged vide Ex. P—13. Doctor requested Investigating Officer for recording of . dying declaration vide, Ex. P—7. Her dying declaration iii @ was receded by PW8 Investigating omcer S.L. Chauhan vide Ex. P-7 flrstly she was produced at the Gevra Hospital and she was referred to Bankimogra Hospital V vide EX. P- 14‘ Her bed head ticket is Ex. P- 15. During course of treatment she died on 24/ 11/91. Marg was recorded vide EX. P- 12’ After summoning the Witnesses vide Ex. P-8. Inquest over the dead body of deceased Lalita Bai was prepared vide EX. P—9. Dead body was sent for autopsy Vide Ex. P—2 to Assistant Surgeon Bankimogra. Autopsy was conducted by a team of doctor vide Ex. P-3 and found 90% burn injury and death was homicidal in nature. PWQ Dr. RS. Kanwar has also examined the burnt piece— of article and kerosene container vide EX. P—4A. During course of investigation husband of the deceased i.e. PW4 Semsan Kanti Kurnar was also examined by doctor vide .Ex. P‘5 and found superficial burn injury while he was saving his wife. Articles were seized on the spot vide EX. P-6. Statements of the witnesses were recorded under st Section 161 of the Code of Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed before theJudicial Magistrate First Class, Katghora who in turn committed the case to the Court of Sessions, Bilaspur where learned IVth Additional Sessions Judge, Bilaspur received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as many as 8 Witnesses. Accused was examined under Section 313 of the Code Where he denied the circumstances appearing against him, innocency and false implication is claimed. Appellant has taken the defence that deceased herself was ready to end her life on account of dispute with her husband and she has ablazed herself but while saving her ’ husband she had falsely implicated the accused. 6. After an‘ording’an opportunity of hearing to the parties learned Nth Additional Sessions Judge, Bilaspur has convicted and sentenced the appellant as aforementioned. 7. Shri Abhay ’l‘iwari, learned counsel for the appellant and Shri Sudhir Bajpai, Dy. G.A. for the State/respondent are heard. Judgment impugned and record of Court below perused. 8. Learned counsel for the appellant vehemently argued that in the present case evidence adduced on behalf of the prosecution is not sumcient to prove the fact that appellant has poured kerosene oil over the deceased and set her ablaze. Appellant has ‘been falsely h implicated in crime in question even otherwise if the case of th prosecution is considered to be proved then the fact reveal that at the time of incint some altercation took place between deceased and aellant. Appelant is a brother—in—law (Dewarj of the deceased and he was not happy with t deceased on account of her illicit relation with doctor therefore, on account of affection with is close relative appellant was regularly resistmg illegal activity of the decease even on the date of incint he advised to deceased for resign dom service and thereafter incident took place he has tried to save her and has received burn injury during course of her saving which shows that incident took place on sudden provocation and the act of appellant does not traveled beyond the scope of under Section 304 Part~ll of the Indian Penal Code. ‘ Learned counsel for the appellant placed reliance in the matter of Shanti B‘ai v. State of M.P.1 in which High Court of MP. has held that incident took place without any premeditation in a heat of movement accused ablazed the saree of deceased without. any intention to kill then offence is under Section 304 Part -—II of the indian Penal Code. f0. Learned counsel for the appellant further placed reliance in the matter of Batu @ Kamaal Khan v. State .1 2003 (I) MPJR SN 61 Q J9 e de pp l he h d de of Madh&1 Pradesh9 in which High Court of M.P. has held that prosecution can not take advantage of its failure to prove its document but defence can however make uSe of the unproved document. 11. On the other hand, learned counsel for the respondent/ State opposed the appeal and submits that conviction is based on the eye Witness PW4 Semsan Kanti Kumar, husband of the deceased. In the present case, appellant has not suddenly set the deceased ablaze but has poured the kerosene oil and set her ’ ablaze shows his grave intention of causing murder of deceased. 12. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. In the present case homicidal death as a result of ante—mortem 90% burn injury of the deceased Lalita Bai has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PWI Dr. B. Mandal, medical report Ex. P‘ 1A., PWZ Dr. RS. Kanwar and autopsy report EX. P-3. Death was homicidal in nature. Asp regard the complicity of the appellant in crime in question, conviction is substantially based on the \ z 1994 M.P.LJJ. 8'74 @ evidence of PW4 Semsan Kanti Kumar who has deposed 1n hls ev1dence that on 24/ 11/91 he was in his bathroom, deceased Lallta Bal was working m her house appellant came from Korba and blamed on her character He told the deceased that. she should get transferred herself othermse he W111 k1l1 thereafter he heard cr1es of Lahta Bal She was crymg that W a? trim 1? é’rq’oii é HR stat, 1? saw-WSW thereafter he came out from bathroom, he saw that deceased was lying in burnt condition and accused was pushing her then he extinguished the fire. He also received burn injury; he cried for help, neighbors also came to hep and they took her to the hospital by Ambulance and on second day,_ his wife died. Defence has cross—examined this witness in detail; in his detail cross—examination this witness is struck into his version that appellant was a person who has set the deceased ablaze. PW6 Nand Kishore Vishwakarma has substantially corroborated the evidence ‘of PW4 Semsan Kanti Kumar. Dying declaration of deceased Lalita Bai was recorded by PW8 S.L. Chauhan vide Ex. P—7. PWI Dr. B. Mandal has substantially corroborated the factum of dying declaration. At the time of recording of dying declaration she was in conscious and Investigating 14. Officer PWS S.L. Chauhan PWS has recorded her dying declaration Vide Ex. P—7 which reveals that after altercation appellant poured something upon her and set her ablaze. In the present case, PWI Dr. B. Mandal and PW8 S.L. Chauhan have duly proved the factum of dying declaration made by the deceased. 'The principle of dying declaration is based on legal maxim “nemo moriturus proesumitur mentin"- a man Will not meet his maker with a lie in his mouth. Lord Chief Justice Baron Eyre {See R. v. Woodcock,’ (1789) 1 Lea 502} expressed his view relating to dying declaration as follows:- K...That such declarations are made in extremity, when the party is at the point of death and when every hope of this world is gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so awhxl is considered by the law as creating an obligation, equai to that which is imposed by a positive oath in a court ofjustice... ” Dying declaration and factum of causing injury by burn by appellant to deceased is substantially corroborated by the evidence of PW4 Semsan Kanti Kumar, husband G3 of the deceased and PW6 Nand Kishore Wshwakarma, As regards the conviction of the appellant under Section 302 of the Indian Penal Code is concerned, as held 1n case of Shanh Bai v State of M.P. {Sum-a) 1n a case of heat of moment accused ablazed the saree of the deceased by burning piece of wood from the kitchen was considered the case of Without premeditation and culpable homicide not amounting to murder but in the present case, after discussion/ altercation appellant has poured kerosene oil over the deceased and set her ablaze by pouring kerosene oil and setting her ablaze appellant was having definite knowledge that thereby he would cause the death of the deceased, pouring of kerosene oil itself is a intentional act of the appellant. 18. In case of Betu ([1), Kamaal Khan v. State of Madhya Pradesh (Supra) defence can make use of the unproved document. The counsel for the appellant has also argued that at the time of incident appellant himself has received injury which has not been proved by the prosecution although PW7 Abhay Kindo, Sub~lnspector has admitted in Para—8 of his evidence that at the time of incident the appellant has also received burn injury. PW4 Semsan Kanti Kumar, husband of the deceased has deposed in Para-2 of his evidence that his wife was lying in burnt condition and appellant was pushing her. This evidence is suiiicient to explain that how appellant received burn injuly. The evidence of PW4 Semsan Kanti Kumar is sufficient for drawing an inference that at the time of incident appellant came from Korba to Gevra and blamed on the character of his Wife and thereafter he COmmitted aforesaid oEence which shows the grave intention of commission of culpable homicide amounting to murder of deceased. After appreciating the evidence available on record learned IVth Additional Sessions Judge, Bilaspur has convicted the appellant under Section 302 of the Indian Penal Code and sentenced as --aforementioned. Conviction of the appellant is based on credible, clinching and legal evidence sustainable under the law. On close scrutiny of the evidence, We do not find any illegality in the judgment impugned. Consequently, this criminal appeal liable to be dismissed and is hereby dismissed. Appellant is in bail, he shall immediately surrender himself before the IVth Additional Sessions Judge, Bilaspur for serving the remaining sentence passed in Sessions Trial No. H \ ,V; @ w 106/92. a; l ,4 ‘Sd/— Sd/- l ‘ T.P. Sharma R.L. Jhanwar ' Judge ' 7" W 7, -raal a Judge ‘u