\ '.\ / ^;^ ,) •••isi, 7T CFb'000061198 .C^A \^3 ;X!l-189/(Jail) C.J.P.R. 11/94/2,000 "^w/^r< APPEAL OF PRISONER No....U.^-.fr.........^......................Name ...... Fatfeef?^name f<y^^...»...^^<^^y^m. Residence^-^^^.^^gAge .........^^.^L,-....—....— Sentencedto ..^^^y..^^^^..... On.....^^.^-.9.7-.. ......... ......... Under section ......^^^.^^...y^...... by ..^..^^.^^^^^.-^^yy^. •^-t It isexplained to the prisoner that if he states or wishes to be represented by legal practitioner the Appellate Court will not proceed with the base for seven days unless legal practitioner appears . If the legal practitioner does not appear within seven days he may not heard at all . Ifihe prisoner states that he does not wish to be repre- sented by legal practitioner the court may proceed at once with the case and will not be obliged to give a hearing to any legal practitioner who should appear . 1 2 3 4 Date of Application for copy of Judgement <^^./../.'.. /.^. ....••./..?.^ Date on which copyreeeived .;. »<'^~?r."7'..^.^. "•••••. ................ Date on which Appeal seot ....^.^..^. T.^..^?.-................. ... ....... Whether tfaeprisoner wishes to be represented or notx Yes / No No.... .</.*-.&......^ „.,... Na».....^^^.^. Confined in ...... - -^•/s^^TT..... -o .••.••Jail ••••. No......^P.? .6..................~Dated...^..^.....y. -.199^. Forwarded to the CHIEF JUDICIAL MAGISTRATE togather which a copy of judgement or order passed in the case for favour of trans- pission to the proper Appellate Court. Sypehiltte8ent, ^gr[nten<^8t 6tstrfvt3J^Ka'^afiv'"-— /,.: Date of receipt in... ......4.1^^................office Date of receipt record to accompaay the ..•l:?r.^7. Memo of Appeal to ihe Appellate court No @?) .e.o.-r^ ........... ....;... ..Dated ,199. Forwarded to the .fe^?3w^:.. &lr..A<^.<^P .'^^t^...i?^ \^^^^Css^^_^ji&^^^^^SLSSIq^'d}r. - ^, ^ _^/?^-" Ay-?^9. ^'^«- ^/ & c^\^ e^'.ct. f^^o^<^~.jo-^-^^^^^,€><^( P^"?'W^"i"^f^'!^' ^^ V^^t<LAA>©^»^ft=»^J;. ^ w „ . , Date of reccipt in Appellate Court ( P. T.0. ) ^, ^ HIGH COURT OF CHHATTiSGARH. BiLASPUR Crimina! Aopeal No.1889 of 1997 Smt. Subatiya Bai - Versus" State of IVJadhya Pradesh (now Chhattisgarh) JUDGMENT FORCONSJDERATSON MR. JUSTSCE Sd/- ^ jUD-G E 21-4-2006 Sd/- Dhirendra Mishra Judge POST FOR JUDGIVIENTON 22ND APRSL. 2TO6 Sd/- L.C. Bhadoo Judge ^: ^^:^^^^^^^^;.^--^1^^- '-"' 'Y. ,x.,.. HieH COURT OF CHHATT1SGAW. BILASPUR Crimind Ap@@®lNo. 1889 of 1997 • Smt. Subatiya Bai - Versus - State of Madhya Pradesh (now Chhattisgarh) •Pr_esen_t: " Mr. Abhay Tivi/ari/ Advocate Mr, U. N.5. Deo, Addl. Public Prosecutor ^vith Mr. Ravindra Agarwal, Panel Lawyer For the oppeliant. For the State/respondent. DIVISION BENCH: - HON'BL^ffi. i.C. BRADOO AHb .WN'B^LE MR.DHIRENbRA MISHRA.JJ. JU D6 ME NT (Deiivered on ^^ Aprii, 2006) The foiiowinQ Judqment of the Court was delivered by LC B/radc^ J:- 1., By this appeal under Section 374(2) of the Code of Criminal Procedure/ appeliant Sm't.Subatiya Bai ha^ questioned .the legQlity & correctness of judgment of conviction and order of sentence dated 25th Juiy, 1997 passed by iearned 2nd Additional Sessions Judge, Raigarh in Sessjons Triai No»25S/95 ^/hereby leornecl Additionai Se^sions Judge after hoiding the accused/appeiiant guiity for commission of offence under Section 302 of the Indian Penai Code for comniitting rrsurder 'of Mongai Sai by setting him on fire, sentenced her to undergoirpprisonment for iife. 2. The prosecution story, in brief, is that on 29.5.1995 accused/appellant and deceased Mangat Sai were residing in ^ r"~ Village Kondha in the same house, ho^ever,their rooms ^ere •separate. Mangal Sai kept Saniya Bai as his ;w?ife and accused/Qppeilant ^as the daughter of Saniya Bai from her previous husband. Thereafter, accused/appeliant ivas aiso married and after marriage accused/appeliant along wi-th her husband and children ^ere residing jn the backyard of the house of deceo.sed Mangai Sai. Prior to incident, chiidre.n of deceo^ed and accused had quarreled in connection w'ith rriot, therefore, the deceased scolded the chiidren of accused and on account of ^hich accused took away the rnat and burn the same. Thc deceo.sed sat for taking' his mea!/ as the mat wa^ .burnt by the accused, there'fore, he abused th;e accu-sed and said that no^, ivhere he shouid ^it, When deceased WQS taking his8 meal, accused brought a container of kerosene, poured the kerosene cn the deceased and set him cn fire ^ith the hetp' of stick of matchbox^ Mangal Sai was'taken to the hospital, ho^ever he succumbed to the extensive burn injuries. The matter ^as report.ed in the Poiice Station Dhararnjalgarh. The Station House Officer/' Police Station . Dharamjaigarh registered the case at Sr. No.33/95 under Section 302 of the IPC under EX..P-I, !eft 'for the place of occurrence and prepared the inquest (Ex.P"2) of the b^ody of MangaE Sai after giv.ing notjce to,the Panchas .Ex.P-S. He took into possession the clothes of deceased under Ex.PW4 and prepared the site plan (Ex.P-5)» While in poiice custody accused Subatiya Bai gave niemorandum Ex.P-7 regarding piastic containcr in which 'kerosene oit i¥asthere and from which the accused poured the keros'ene on the body of deceased Mangai Sai and in pursuance of that^she got recovered the piastlc container containing kerosene oii and matchbox under Ex.PW8. The biood stained soii and plain soil were taken into possession froro the p!ace/of occurrence under Ex.PW9. /Aerg intimation (Ex.P-ll). 0o ^ ^ WGS sent to the poiice station. Dead body of Mangal Sai i^as sent for postrnortem examination under Ex.DaB12 to G?overnment Hospital, Dharamjaigarh, where' Dr. S.N» Nandan conducted the ^postmortem examination on.the bodyof deceased ' and prepared the -postmortem' report Ex.P-12. Recovered articles were sent for chernical examination to. Forensic Science Laboratory, Sagar from where report Ex.P- 15 ^ as received. 3. After. complet.ion of investigation charge sheet was fiied against the accused/appeilQnt ]in the Court of Judicial AAagistrate First Ciass, bharamjaigarh, wha in turn'comniitted the case to iearned Sessions Judge/ Raigarh from where learned 2" Additional Sessions Judge, Raigarh received the c-ase cn transfer for triai. 4, The prosecution in order to establish the charge Ggairist the accused/QppeJJant exarnined 15 ^itnesses. Onthe other hand, learned Additionoi Session^ Judge recorded the statement of accused/appeilant undcr Section 313 of the Cr»P.C. in irvhich she deni€Qithe prosecution evidence appearing against her. 5. L.eorned ^dditionai Sessions Judge after hearing t.he arguments of lear.ned counsel for respcctive parties/ convjct€d'&sentenced the accused/appeliant in the manner as rnentioned in Para-1 of this judgment, 6. We have 'heard Mr. Abhay Tiwari, learned counsel for the appeiiant ond AAr. U.N.5. Deo, Addi. Public Prosecutor '^ith Mr, Rovindro Agarwai, Panei Lowyer on behalf of the Stote/respondent. 7. As far as the involvernent of the accused/appeilant in crime in question is concerned,there is no direct or ocuiar evidence in this casc, the ^vhoie case rests on the circumstantial evidence 1. TT ^HHH^ \^ i.e. oral dying deciaration made by the decea^ed before the prosecution ^itncsses and In order to rest the .conviction based on the d.ying deciar-Qtion, the la^ laid down by the Constitution Bench of the Hon'bic Apex Caurt.in the matter of Laxinaii Versvs State of Maharashtra reported in (2002) 6,Suprem©Coyrt Cases 710 is that: "The situation in which o. man Is on the dcGthbed is so solefiin and serene, is the reason in \aw to accept the veracity of his statement. It is for this reason that the requirements of oath and cross-examination are dispensed with and that is wh:y the courts insist . that the dysng declaration shou!d be of such a nature as to inspire full confidence of the court in its truthfuine^s and correctness. The court, •shou!d .alw.ays rnust be cn guard to see that the statement of the deceased ^as not a-s a resuit of either tutorjng or prompting or a product of imagination. The court should a!so dccide that the deceased %?as in a fit state of mind and had the. opportunity to observe and identify the ossaiiant. Normally, therefore, the court in order'to satisfy whether the deceosed was in a fit mental condition to rnake the dying declaration looks up to the medical opinion. But where the eye^itnesses state that the deceased was in a- fit and conscious state to mak^ the declaro.tion, the m.ectical opinion wi\i not prevaii, nor can it be said that since there is no certification of the doctor as to the fitness of the mind. of the deciarant, the dying declaration is not acceptabie, A dying deciaration can be ora! ori'n ^riting and any adequate method of communication whether by words or by signs or ot'heriA/ise yi/II! suffice provided the indication is positive and definite. What e'videntia! vaiue or weight has to be attached to such statement necessarily dcpends on the facts and circumstances of each parti-cuSar cose. What is essentialiy required is that the person who records a dying deciaration must be satisfied that th@. deceased was in a fit state of mind and declo.ration Is voluntar8y and truthful" 8..Applying the above principles, if we examine the'evid.cnce adduced by the •prosecutlon in this case, Asha 'Kumari (PW-1), who iodge'd the FIR (Ex.P-l) has ^tated th'at on the previous 1 •'l^jj:|?^gg|,@|||ggjg^^ 5 n ^^:, day some quarrei took place between the children of accused and deceased in connection with mat. Next day mprning she went to fetch water .an.d when she returned to the house she saw that his father-in-iaw ivas burning, h@ asked her to put ^atcr on him./on i^hich he' put woter on him. Her father-in- Jaw disclosed that Subatiy4a Bai has set hini on fire aftcr pouring kerosene on his body, After extinguishing fire shc went in search of her mothcr-in-Iaw, w'hen her mother-in-Iaw met they came back to the house and SQ.W that her father-in" law was weeplng. He informed ai! of us that Subatiya Bai h<is •set-him oni fire and now he'will not'survive, on which they summoned the Sarpanch and other viilagers and they'took her father-in-iavi/ to DharQmjaig.arh Hospital in a rnotor. Later on, she carne to know that her father-in-law died in the hospital. She lodg.ed the report Ex.P-l. She has furt.her stated in the crosg-examinQtion that her father-in-la^ ^os speaking in Uraon language. , PW-6 &hasidas has ' not supported thc. .prosecution case but he has stated that Sampati-and her rnother came to him and ^tated that Subatiya Bai has set Mangai Sal on fire Gfter pouring kerosene on his body, o'n y/hich he along 14/ith village Sarpanch Shobhrarn, Jageshwar & Bhugat went to the house of Man9ol Scii< Manga! Sal wa.s taiking in Uraon language/. i^hich he was. no-t ablc to un-derstand. PW-7 Ku» Sampati Ekka, daughter of deceased, has stated that his father died on 29.5,1995, on that day she wen't to forest Qnd Subatlya Bai WQS at the residence/When she returned from the forest at 10.30 a.m. she saw her father in a burnt condition and on enquiry her father disciosed that Subatiya Bai has set him on 'fire on account of quarrei between the children. Thereafter, vi'Iiagers came. In the cross-examination of this witness & PVV-1 Asha Kumari, the defence has not been Gble to eiicst any circumstance { 6 ^hich rnakes the evidence of the^e witnesses unreliabie or untrustworthy. 9. PW~9 Sania Bai, ^ife of'deceased Mangal Sai/ has stated In her evidence that her husband was teacher and accused Subatiya Bai is her daughter from her previous husband. On 29.5.1995 she went to the forest to fetch the wood, when she returned she saw her husbond in a bu'rnt condition and on ' cnqu.iry her husband disciosed that Subatsy-a Bai has set him on fire after pouring kerosene on his body. Thereafter, her husband died'in the hospitai. PW-10 Jcigcshi^ar ha^ been deciared hostile, PW-11 Vijay Kumar has' stated in his .evidence that on the fatefui day he ^ent to the hou.se of Mongal Sai, he saw hirri in Q burnt. condition and he ^as talking in -Uraon ianguage, ^hich hc could not understand. PW-12 Bhugat.ram has stated.that on th$ fat'eful day he went to the \^house of Mangai Sai, he saw him in a burnt condition', he wa^ saying that he has been set on fire by his daughter Subatiya Bai and-no^'he wii! not survive. PW-13 Shobhram has also corroborated theabove evidence. 10. Evidence of above i^itnesses is natural, their presence in the house of deceased Mangal Sal cannot be disputed and in the cross-examination' of these ^itnesses the d^fence has rsot been abie to eticit any clrcumstance ^hsch sho^s that Mangal S'ai was not in a fit state of mind to give statement or there WQ3 any reason-beforc him to irnplicate Subc.tiya Bai in a faise case. As' such, evidence of above witnesses inspires confidence thot the deceased gave dying deciaration before the above witnesses. Apart frEom that, the kerosene container w.as seized at the instonce of accu^ed/appeitant. Therefore, from the above circumstantial evidence the involvement of accused En committing the crime in question is estabtished, ^\ <"' ll.Leorned counsei for the accused/appellant argued that pcstmortem report has not been provcd by the doctor, who conducted the postmortem on the body of deceased,'GS the doctor was retirecl, theref-ore, he could not be examisied bsfors ths trial court. When the svidence of witnesses and other circumstontiai evidence is so cogent, consistent and rejiab!e regQrding the cause 'of death and about • the jnvoivenient of the accuscd/appeiiant and if the postmortem report is not proved, the conviction can •be based on other circumstantial evidence, A^ has been discussed above, t.he deceased made dying declaration before his daughter-in-iayi/ Asha Kumari (PW-1), his daughter Ku. Sampati Ekka (PW-7), his wif® Sania Bai (PW-9), PW-11 Ajay Kumar, PW-12 Bhugatrom & PWml3 Shobram to the effect thot accused set him on fire aftcr pouring kerosene on his body,therefore, in thc above circumstances even if the'postmortem report has not becn proved but from the clrcumstantia! evidence it is estabiished that the deceased Mangai Sai died on account of burn injuries caysed by the accused by setting hirn on fire after pouring kerosene crriE his body. 12. For the foregoing reasons, ^e do not find any iiiegality or infirmity in'the Judgment of the triai cou,nt. • The appeal is •^ithout merit/ same is liQbie to be dismissed and it is accordingly dismis^ed. Sd/.. L.C. Bhadoo Judge Sd/- Dhirendra Mishra Judge Roshan/1