—7S sn^r ?H R-ii* ^IIT 3VW *4 7S3f rf<|<||<?i<<, ®Tf)y'IS,(sK.iiyy VWv\\ *NI* "m^ 200 an^?r iiira; '(lyf-jsttyii) wnw ^ife sii^i cftt^fo^U tffq^f ^^Ist ^lon-s^R ^aifgtiaii^r DrVISION BEN<aH: HOKFBLE KIRI JUSTICE bHIRBNDRA MISHRA & HOS'BLE SHRI JUSTICB t'.P. SHARMA CRIMINALdtPPEAL N0. 110 OF 2002 ApTieUant InJail Respondcnt Vershis {DeUvcrcd Dhirendra Mishra. J Rupendra Giri, aye 41 yrs, S/o Kaahaiya Giri, R/o Charoda, P.S. & Uistt. Mahasainund (CO) State of Chhattisgarh, Present; Shri R.K. Shanna nlitfa Siat. Savita Tiwari, counsel for the appcBaat. Smt Anju Ahuja, Go^t. Advocate for the Statc OItAL JUDGBIBNT on 24* Jaauaiy 2008) This crmunal appc4l is directed against the judgnient of conviction and order ofse4tence dated 27dl November 2001 passcd in S-T.No. 273/01 wherefiy the leamed II Additional Sessions Judgc, Mahasaniund has 302 of Indian Penal C<»de and seutenced hiiu to undereo imprisoumcnt for life for c^ convicted the appellaat undcr Section using death of his wife Kiran Giri. 2. Case of fhe prosec^tiou, iu brief, is fhat the appeBant is husband ofdeceased Kirailt Giri whereas PW-1 Achala Goswami is snw 'w fc;'ii«b 'iv sn^r skt|i«<i S^^TWRwr, giTD+i'KD, fartitiy *iWWI **1|sb W[. 200 sii^r TISR; (^pfyow) WlIW^lfel-SffI^I alcobol so<ae decealsed flre Ra^p abbut fheir daughter who waS appcDaat was addict to was at hoine, fhcre was his wife, as a result ofwhicS wife Kiran Giri aad set her gafhered there and appeUant has set her on brought to Civil Hospit^ declaration was recorded Medical CoUege Hospital iniuries on 6.5.2001 diirind lodged on 1.5.2001 at Katlam, the Station House of whfch ofifence undcr Howcver. after the death of into Section 302 ofIPC. Ex.P/4. Inquest over fhe Ex.P/6 ia the presence of was sent for postmortem es Raipur vjde Ex.P/7 where) postniortem and gave his tov Halka Patwari vide Ex.l memo ofEx.P/14 dated let whether injured Kiran was i^i unbnarried at fhe tune of incident The On 1.5.2001 at about 7-8 a.m. he Meijg ^)Ti)^ift'T*fl^^i' ^f,feT^ if^l^K ^afRiHan^r dispute between fhe appellant and the appellant poured keroseiie on his ^bldz^. Heanng her noise fhe persons Kiran mformed fheni that the after pouring kerosene. She was Mahasaniuad where her dyiag ^md thereafter, she was referred to ijpur where she succzunbed to fhe bum treataient. Report of thc iacidcnt was 16.30 hours by PW-4 Prashant Officer. P.S. Mahasantuad, on the basis ^ection 307 of IPC was rcgistered. Kiraa Gin fhe offencc was converted intanatiou was givenvide Ex.Pf 3 and <|tead body of Kiran was prepared vide Im.toesses. Thereafter. the dead bodv [anuiiation to Medical College Hospital Dr. Sanjay Dadu (PW-2) conducted of Ex.P/7. Spot map was prepared .P/8. The Stetion House Officer vide |May 2001 soi^ht opmion ofthe doctor a positiou to give dying declaration or^ rcbort 111 —--y 31I^T?ff'f?lN' ^T^ 3TT^?r sbHict) in 'S^Sf ^WWif, »TflyiS,(slrtl'My WHv\\ sb*4|eb WI. 200 an^T xra^ (ipf^^tr) ''S'SITWtrfTO 3II^T 3 dvjfa (Wv not and it was replied by-thc sustained 80% bura injuries stateiaent Thereafter, her presence of Dr. R.K. Pardal (f daughter offhe deccased and kerosene fiom. which keroscne taken iato possession ou Ex.P/19. The soil havin( clofhes of fhe deceased possession fiom. thc place of respectively. jdoctor vide EX.P/ 14A that she has ^nd she is in a position to give her 4ig declaration was recorded in. the i^V-3), Ku. Achala Goswami (PW-1)- friveiuvide Ex.P/1. The container of |was poiired over the deceased, was produced by fhe appeUaut vidc sineU, the pieces of bumt kerosene siiieU, were taken iiito |incident vide Exs.P/20 aad P/21, bei^ig ketosene cnianatuie 3. After coinpleting iuvestig the accused/appeUaat in the Mahasaniund, who in tum co Sessions Judge and the same the leamed Addltional Session prosccutton 4. Diuine trial the Thereafter, statenient of the 313 ofCr.P.C. iuwhich he hirn ia fhe prosecution case mipUcation. He furfher dispute wifh his brothers and oflfeuce so that he inav not cla chi^[(n<i1Ti tTO^ ^fe'sl' <P»i^$i< ^SiRiHOT^T itig^tion charge shect was filed agaiust (Court of Chicf Judicial M^istrate, tunitted to the case to the Court of tyas received on transfer for trial bv Judgc, Mahasamund. examiacd four witncsses in all. atcused was recorded under Section de^iied the evidence appearing ^aiast and pleaded innocence and false plea^cd that he tsas some tand related ^.c has been unpUcated in the above cla4n partition aad while he was in jail, sn^i ?ii (<(-<i<4i '?TSTT 3TT^?T aiHfcft 75SI ^wvftif^ ff-vltv'16, ^IWWy, t<INdl sbNI* V^ 200 an^yr VRK ('i^f^as??) 'TOIIWrfSTT cffl^I -^- false evidence has beeiT add1 witnesses. He had also lodg^d the police. The deceased usdd reasons and therefore, she h^ 5. However. leamed trial respective parties, convicted as mentioned ia paragraph ode the aUeged dying declacation ttH<iT(nBi1i +11*1<rif ^f^sil <p>i^R ^3iRiti3?i^r jced scgscaast hiTn by pressuring the a report against his brothers with to be disturbed for soiae doniestic s conunitted suicide. |Court after hcaring counsel for the 4nd sentenccd the accused/appcUant of tttfe judgment. 6. Leamed counsel for th^ appellaat submits that thcre is no evewitness to the uicident. Cfcuviction ofthe auoeUant is based on the statement of Achala Gostyanai, daughter of the deceased and icorded ia the presencc of Dr. R.K. Patdal. Referriag to the sta^ciaent of FW-1 Achala, it is argued ttiat this witness has not see|a the appeDant setting the deccased on fire or pouring kerosene o|n her as she was not present ia thc room where the iacident took|place. So far as dying declaiation is conccraed, it is contended t^iat fi»m perusal of die postinortein report of fhe decc^ied it is were bumt coinpletely aa st^: had sustaiaed 80% biim mjurics, however, the dying declarati<|»n of Ex.P/1 bears s^nature of the deceased, which makes the sbid document doubtful It is furthcr aiyied fhat the unfortunate ivident fhat fingers of the deceased incident occurred because of some domestic quarrel ensued betjween the husband and wife on the date of mcideat, as a result offwhich the deceased under the fit of ari^T ?iT R-i TiW 311^1 st)*<i«b g^cT ^i.sii^, yifl+i'Ko, Riwi+fy WVv\\ **1t* "^ an^?r 'VRE (ipfg^sr) 'RTOR ^lft? OT^T .?- aaeer ooured keioseue' an4 suicide. It has also bcen sustamcd bura injuries whil^ as is evident fioiu his Medi^ on record. set herself ablaze and cominitted sul^mitted that fhe appeUant has hitnself rhil^ he was tiyio^ to extinguish fhe fire fo Legal Exainination report available 7. On the other haad, supported uapugned judgme^it 8. We have heanl leamedl perused the uiaterial availa|i judginent appe^lant 9. Conviction ofthe 1 Achala Goswami - daualliter dcclaration gwen before Acl|iala declaration recorded bv PW-4 fl1T<1, 10. PW-l Acliala Goswaic residing with thc appeUaat ; fhe iacident occurred on thf 1.5.2001 she was not hoine, there was a quarrel father Rupendra Giri, the kitchen eardeu and fiToin thi quarrel was goina on that k manfied appeJ l:;bi'l<I<n^1'T;Hi+i<Tii* '^\feTst' <P»I^$I< iTsifipTan^r lcaincd counsel for the State has of the trial Court. counsel for bofh the oarties and faave >le on record as also the impiigned is based on the stateinent of PW- of the deceased, the oral dyiag ;I|iala Goswami and the written dyiag Prashaat Katlana - fhe Inspector. who is dauahter of the deceased tad the deccased in the house where date of incident, has stated that on At about 8-9 a.in. she was at Ibetweeu her niofher Kiian Giri aad [j)peBant, at that time she was in the bre she saw towards thc rooin whcre ^rosene was poured ovcr her inottei\ .!^isat^. .y^^, '^. g^cT -i<i<ii^<), s$Tf1<1'l<o, RK'Mti^i MIN^I *NI°h "^ 200 OT^yr TISR? (^pf^a^w) sn^t w f((-<i'=h 'H'STT STT^T^RW 'B^iIW ^rfCT Si^t ^>i*)[(n4li *ii*T<sl' '£f,f^I3t'<^>1^.)< '^aiRn aii^i dnd However, shc did not see Thereafter, she went to aaother rooin. Aftcr few minlLite! out of her rooui, at that tit&c buming condition fix>ni anotfier her father, accused Rupendr^. her ablaze. Thcreafiter, auntv| inany other persons also rea|c Mahasarai.uid Hospital and where her nioftierwas referr4< after preluninaiy treatment has furfher stated that tht recorded the statemeittof.he^ ater taking signature of her| was also made to put hc^ examination onussion about statement of Ex.D/1 has be^n dexiied fhe suggestiton that h^i wifh her hand as she was luofhcr was able to sign. statement was recorded in tiine Uiaabai, Triveni Goswadu a(iybody setting fire with matchstick. w^ anotyer lfe6'rooia as her father sent her to itites she heard soine voice aad canie \f6c her m.0fher caine ninning in a <rooin and fold her (Achala) that Giri, present in the Court, has set |of fhe accused ak>ug wifh uncle aad ;hed there, thev took her inother to ^he also went to thc hospilal, fi»ni ^d to Medical CoUcge Hospital Raipur there 'she died on 6th May. She doctor at Mahasamund Hosmtal inother as stated bv her mother and liaofher on the above statciaent, she s^nature fhereon. In her cross- PIC oral dying declaration in her diaiy pointed out. She has categoricalty |r mother was not ablc to do anv work |onapletely burut aud stated that her has reiterated that her raother's hospital ia her presence and at fhat |u and her fafhcr were also prescnt. clo Sftic thfc 11. PW-2 Dr. Sanjay Mcdical CoUegc, Forensic Kilinar Dadu, Assistaat Professor of M^dical Department, Raipur, who baa wy '•^SS-^' S^cT^TRITW, ®xfl<i'ie,(sf^itiy an^r^ K-u'h '^SH 'STT^T sh+<w UWv\{ **11<* "^ 200 aniOT Traq; (i^ilf-l«l<i8T) '?^IRR ^lto SII^T 7. conducted postmortem-over | fhat the dcceased had su< adnutted in the hospital on| had sustained bum iujuries] hands and legs, AU fhe bu^n and the same were sufficieAt cause her death. The cause a result ofbum injuries. 12. PW-3 Dr. R.K. Panie|l, Health Centre, Mahasamun< and gave his Medico Legal Ej certified vidc Ex.P/14A tha^ state of mind to give her| stetenient of Kiran Giri was| fbe presence of Achala Go( Ex.P/1, which bears hte recorded the dying iacident after obtaining recorded the statement of witnesses. sig4atuie declaraldon certt&cate 13. Witnesses Achala R.K. Pardal and Prashant KAtia thc defencc coim.sd. Howe|»er. ch('i<^<ftl "RTO^Tf '^\'fe^ <?<1^1< ^sifOTsn^T fhe person of fhe deceased, has stated iteincd 85/yo binn injuries, she was 1.5.2001 and died on 6.5.2001. She on her teflt chcek, neck, breast, back, .jnjuries were anteiaortein in nature ia the ordiaarv course of nature to ^fdeafh was asphyxia due to shock as Sr. Medical OiGBcer of Comniuruty 1 examincd the deceased on 1.5.2001 kaauuatfon report of EX.P/ 12. He also thc patient is conscious and in a fit stateincnt He also stated fhat fhe recordcd by Inspector P.S. Katlam in awaml and Trivcni vide document of FW-4 P.S. Kaflam, who has of the dcceased on the date of of EX.P/ 14A, has stated fhat he Kiran Giri ia fhe prcsence of above Gosfyaml, yami, Dr. Saajay Kiunar Dadu and Dr. itlana have bcen examined at length by yer, thc defence has not been able to an^r^iil^iw ?SIT sn^r sfr^w lasis T5? '^w\v^<Ji, •a'^w^, Ki^wy. WVtM ^hW* •WI, 200 an^r 'nra; (ij^g^i) 'RaTW^ito'CT^r S'. elicit auyfhiag, whlch recording ofthe dyii^ creatfcs dcc]ara<K)n wtio 14. So far ^ the argumenl deceascd Kirau on the dying were coiapletefy bumt, is COBJE Dr. Saajay Kuaiar Dadu, provcd the report ofEx.P/7, it| put to this witness that the aUeged dying declaBation as Pardal has not bcen given aa{ Achala Ckiswami, who is also| and daughter of the appeU|a suggestion that her inothcr to bum uyurics. Howcver, ofhcr witness is uot fatal prosecution has bcen able Achala Goswami (PW-1), who| appeUaat and it has uot beci|i dai^hter Achala nourtehed and therefore. she was 15. So far as the iaiuriei concerued, we have nunutely report of fhe appeUant and fo^iud 4il<l(i"l<i1-< 'W^i iffSVt <I«I«(K i;3JfOT 311^1 any doubt or suspicion about ofdeceased Kiian Giri. fhat presence of thc signature of 4eclaration is doubtful as her fingcis ;erued, ficoni the slateiaent of PW-2 conducted the postaiorteni and |is evMent fhat no question faas been leceased could not have s^ued the s|ie was not ablc to write. Even Dr. si^gestion in fhis regard whereas a witness of thc dying dccJaration U|ant, has categoricaUy denied the not write with her r^ht haad due iiti-examinadon ofAlok, Triveni or aav to the prosccution case as the estabUsh its case by examinii^ is nonc e]ae than daughter of the defence of the appeUant fhat her animositv or iU-will towards him hiTn. Uanl coiliM noib tt) attv deposirjg agaiast sustained by ffae appeUant are ^een thc Medico Legal Bxauunation that except threc bum iajuries <)-") ":<i<<|<yi'ii, »Tfl'y'i<s, Rj<?»iy^<. SfI^T ?SI R-li°h 'T?STT Sn^T'^lN^ A NIN^I (b^leb "Q^ 200 sn^r 'qa^ (4'*tA«i<{?T) 's^nw :Hftg sn^r 7 on fhe toe of the right lcg haad. no serious imurv is cn*i[i'i<ilt .iwnf 4.fyst ^fSngR ^aiRnan^r and one on the ring finger of fhfi right resent on his iwrson. On the contearv. fiTom. the statcincnfofAchalla Goswami. it is clear that on fhe date of iacident fhe appeUa&t a44 the deceased were quarTeUing ui fhc rooin where the incident t' and she extiuguished th^ >ok place, which was seen by her aad tliereafter, the deceased ca|me out ruiuung ia a bumiug conditiou fire. It is true that the oial dying declaration luadebefore Atchala docs not find place in her diary stateinent of Ex.D/1, ho^ever, considerm.g the fact that the deceascd nuade dying decl4ration iu the prescncc of Achala in the [ns agauist thc appeBant fhat he sct her the above oiiLtesioa. the stateuient of hospital and niade allegatk] on fire, uotwithstanding Achala cannot be disbe declaration does uot find pjace in her diary stateinent of EX.D/ 1. ;ved simpty because fhe oral dying 16. For the foregoiag refasons, were of the considered opinion that the prosecution tias |been able to prove its case beyond aU reasonable doubt from. the also 6000. the dyic^ declar^tion recorded by Prashant Katlain (PW- 4) in the presence of PW-3 Sd/- DHIBENDRA MISHRA Judge statenients of PW-1 Achala Goswaini as Dr. Paidal and Achala. 17. In tfae result, the apjpeal being devoid of substaace descrves to be dismissed and is accjiriingly, dfeinissed. ——-— Sd/- T.P. Sharma Judge