XI-HC-78 an^T^TfeN; craT3TI^Tsti11°h *TTH^II Sh*1ic*i 3^T -ill'illcf^, »Tfl'H'l6, (sldiyy **"*****•*»*»/»**»'** **< *AA.-. W[ 200 341^1 4d* (yit^q^T) ?^ITW:flf?cT3n^T OiVISION BENCH: Hon'bie Shri Justice L.C. B Hon'bie Shri Justice Dhireilidra Mishra. CRtMINAL APPEAL ildo. 170/ 20002 APPELLANT Verslus RESPONDENT Shri D.R. Sharma !e Bhushan Advocate, forthe a< Shri Ashish Shukla respondent' State. (ORAU (Dated L.C. Bhadoo.J lartt The accused/appell judgment of conviction and| passed by Additiona! Sessicj 99/2000 whereby he has be^n Indian Pena! Code for comitnitting Devkibai and sentenced to il oe^n +i''<fd41-i t<iKci1'?'T6'<Q <Ri+di< ^Slf^ITSn^T hadoo & Lakhanlal S/'o Madho Satnami, Aged about 35years, Rf'o Dhorari, Police Station Patan District Durg, r^r^ \^\3. Siate of Chhattisgarh. iarned Sr. counssl v/ith Shri Shashi ai|;cused/appeitant. Additionai Public Prosecutor for UUDGMENT 20-3-2007) has preferred this appeal against the order of sentence dated 29.12.2001 |ns Judge, Durg, in Sessions triai No. he!d guiity under section 302 of the the murder of his wife nameiy ^ndergo imprisonment for life and pay P.T.O. 1«» w XI-HC-78 3n^T^iTR-li<* craT3IR?rsbtllct> 35? -i|l<<lcl'M, »Tflu'IS, Rlcll'My *II*ICTI sh*ll<t» W[ 200 311^1 ild* ('i,':<(3a"^ISI') ^cIRK^fer-W^T fine of Rs. 1000/-, in default |3f payment offine to further undergo Rl for one month. proseclution •b^ck wddl Case of Jhe Devkigbai hsrseif appeared| statement Ex. P-21 to tWe| accused about 11 years -i accused and out of their husband was 'doubting her| with her and beat her. Otts suspicion of iilicit reiations, about 11 a.m. with an inife kerosene on her body from I the match box as a resuli and thighs were burnt. Bas| Ex. P-14 was registered fort Section 307 of the IPC. District Hospital, Durg, her. While Devkibai was P-8 was recorded bv E) Thereafter, she was taken she succumbed to the burrj Ex. P-18 was sent by the ^i sectlon 307 was convertedi Investigating Offlcer Heera on the dead body of Devkib^ of Devkibai vvere taken into +l'yFcl41-< ll'<dTfffeI^t'<["l'K;l< ^sri^iTsn^T in brief, is that, on 4.2.2000 in Poiice Chowki Ranitarai and aave effect that she was married to the ;,'she was the second wife of ths lock, tv/o sons were born to her. Her Ifidelity, therefore, he used to quarrsi the date of incident ateo, due to |he picked up quarrel with her and at itention to cause her death. poured Ithe container and set her on fire with •ff which hsr hands, chest, waist. back, ibd on thts statement of Devkibai, FIR the commisslon of the offence undsr ii was sent for medicai treatment to Dr. B. Baikishore PW-9 sxamined treatment, her dying declaration Ex. Magistrate PW-8 S.R. Mandavi. to Christian Hospital, Dhamtari. whers injuries on 8.2.2000. Merg intimation |ospita!. Based on that, offence under into section 302 of the IPC. The |ingh Baghe! PW-15 conducted inquest «and prepared inquest report. Clothes ttossession under Ex. P-2 and plain soil P.T.O. clt as^d De\|kiba wii^re unitier xecUtlve XI-HC-78 an^T^ii.f^TRi HSIT SIT^T giIIR? 3ST "i(|q|0<<, ®Tfltl'IS,RlCliyy t<i*^rrsh+tich ^200 3TI^?T T3W ('^arfg^tT) ?RffWHf?(t3fl^T as also the soil eontaining under Ex. P-3. Shirt of the injuries were examined by Di| the injury report Ex. P-10. Pos< Devkibai was conducted by Smt. M. Purohit who opined i| was seDticemia and shock on keilosene oi! was taken into possession accljsed was seized under Ex. P-4. Burn 1. B. Balkishore PW-9 who prepared mortem examination on the body of ,ll>r. A. Quadir PW-13 along with Dr. ih the report that the cause of death ^ccount ofthe burn injuries. After completion of the| filed in the Court of Judlciai turn committed the case to th^ where learned Additionai Ses^ions on transfer Tor trial. exarriined Prosecution in order accused/appeliant has Statement of the accused wafe Code of Criminal Procedur^ appearing against him in the the fateful dav he was wo.rkingl mother. onlv after he was infc persons that his wife had house along v/ith his mother a|r On inquiry by the mother of she had burnt herself. Thereslf about the incident and they Devkibai to Christian Hospit^ further stated that Devkibai <<iN(<vi'ifl-i >ii*itiTffteiA<Ri<^i< ^sri^iTsn^ST investigation the charge sheet was i^lagistrate First Ciass, Durg, who in Court of Sessions Judge, Durg from Judge, Durg, received the same tb establish the charge against the as many as 15 witnesses. recorded under section 313 of the in which he denied the materia! brosecution case and stated that on in the agriculturai field atong with his (ormed by one Sukalu and 2-3 other burn injuries, he rushed to his jnd saw Devkibai in bumt condition. accused, Devkibai disclosed that jfter, her parents were also informed the hospital at Durg and took fal, Dhamtari on 5.2.2000. Hs has become unconscious and at the sustbined hlad P.T.O. XI-HC-78 3TWT °RI R-li«b traTsn^Tsbiitt) 3^ •^MIcltl, ®Tf1y'IS,[c|(-ll^y qp^rr sh*ii<^ ^ 200 3TT^r4?tt) (lic''d°"i,iT) 5THTSK HfN'3n^T instance of his in-laws, h^ examined two witnesses n^me Ratiia! DW-2 in his defsnce. Learned Additionai for the respective parties eortvicted mentioned above. We have heard cour|se! for the parties and perused the material available on record. tHe Learned counsel for Devkibai sustained burn inj4 field along with his mothej incident, he came to his houj PW-2 Sukaiu. He further of mind to aive the statemeitt be relied uoon. arailed On the othsr hand, respondent/State supported Court. in this case, primariiyl declaration made by the accused after pouring kerose| to place reliance on the should of such a nature as t<l its correctness. The court hai ^i^fe^l'-l HTR'^Tt' ^ ^S^ <[^'W.)< ^ia.ri^iTSn^r has been faisety implicated. He iiy Yashwant Kumar DW-1 and ions Judge, after hearing counsel and sentenced the accused as accused/appellant argued that when iries, accused was in the agricultural ^. When he was informed about the ^e and this fact has been admitted by that Devki Bai was not in a fit state t, therefore, dying deciaration cannot !earned counsei appearing for the the impugned judgment of the tria! the conviction is based on the dying delceasea' in which she stated that the osehe on her body set her on fire. in order dyjng declaration, the dying deciaration inspire fuil confidence of the Court in to be on guard that the statement of P.T.O. XI-HC-78 sn^T i=CT f^-IRi cPIT3n^Tst»li»b 3sr^rraRT!T, ®Tf re,[siciitiy tTmcTT ^(TTch ^ 200 3Ti^?r (raw (ipfgg^sr) STaTWHfStTSfl^T the deceased was not as a a product of imaginatisn. Th| the deceased was in a fit stal observe and ideritify the r^su assailant PW stteted As far as the argumentl the accused/appeliant thafr Of statemenf, is cohcerned, Magistrate, who recorded th' deceased has categorically SDM he v/ent to the District dying declaration of Devkibai before recordina the statemeht Dr. B. Baikishore PW-9 in wh| was working in District Hospl duty from 1 p.m. to 8.30 p.m. requisition Ex. P-9 for exami| examinsd her, she was in| pressure was not recordable aaain, there v/ere burn injuriet of back, half Dortion of knees and both hands. This a|i Smell of kerosene was emart the burn injuries were up to 8Q report Ex. P-10. At about 5 pl. the Naib TehsiSdar, he examl Ex. P-8 to the effect that she| ^rafSTEfrT wticfr ff fs^l-d^rezn: ^srf^tisn^T It of either tutoring, or prompting or i court must be further satisfied that :e of mind after a clear opportunity to |of learned Sr. advocate appearing for i^vkibai was not in a fit state to give 'W-8 Shri S.R. Mandavi, Executive \e dying deciaration Ex. P-8 of the that on 4.2.2000 on the orders of ItiosRital, Durg where he recorded the |.n between 5.10 p.m. to 5.40 p.m. and t, he obtained medical certificats of |ch he has stated that on 4.4.2000 he |ta!, Durg and on that day he was on ^nd during this period he received the hation of Devkibai and thereafter he a precarious condition, her blood And she was askina for water time and ^ on her face, neck, chest, haif portion i, both hips, thlghs extending to i]part, hair of the head were aiso burnt. (ating from the body of Devkibai and per cent. After examination, he gave i|.m. in the evening on being asked by Ined Devksbai and gave certificate of Iwas in a fit state of mind to give the P.T.O. stonhach XI-HC-78 311^1 qil R?TRi awsnwaw^ T5?'^TF(1?ra', (SiTfly'ie, Ricii<i^< Hl*1^tl a^HTch ^ 200 3T1^T q^cp (yit^q^q') WITWHfStTSn^t statement. !n the cross exarriination the Executive IVIagistrate, S.tp. been able to bring on rec|ord Devkibai was not in a fit stat^ in view of the evidence ofotNe B. Batkishore PW-9, it is estel! of mmd to give statement. of Dr. B. Balkishore PW-9 and t. Mandavi PW-8 the defence has not any circumstance to show ihat ? of mind to give statement, therefore, Executive Magistrate PW-8 and Dr. i^lished that Devkibai was in a fit state secdind was Now as far as the his residence and in fact, he her mother, is concerneri, in Executive Magistrate PW-8,' the incident took place at quarreling with her -for last 2' was quarrel, her husband residence, when anybody CE doubt her fidelitv and husband poured kerosene or mateh box^ she sustained bi back. As far as t'ne factum concerned, Dr. B. Baikishori also stated that sme!) of Heera Singh Baghel PW-15 4.2.2000 he was posted at Sub Inspector, on that day report Ex. P-14, at thattime informed him thaf her tii<<(.ci''fl-i wicff if fs^fs iKiv.K. ^stf^Tsn^r • argument that accused was not at |was in the agricuiturai fieid along with |the dying declaration recorded by the psvkibai has categorica!!y stated that ^bout 10-11 a.m., her husband was 1-3 days, and on that day again there in the habit of distilling liquor at his |ime to consume iiquor, he used to i|et with her. On the fateful day, her her bodv and set her on fire with the )rn injuries on hands, chest, neck and |of pouring kerosene on her body is fe PW-9 wh.o examined Devkibai has was emanating from her body. i|, has stated in his evidence that on Police Chov/ki Ranitarai as Assistant Pevkibai came there and iodged the Ipevkibai was in a burnt condition, she was doubting her fideiity and kert>sene husband P.T.O. XI-HC-78 3n^T<»iT'f^TR; ciaiTSn^TsbHicti % SST^tFTRW, yTfl+1'IS, tsiwiyy tTTR^rai^Htct) ^ 200 an^Tiragr (^cit^q^ff) BTBTiSKHfNsfl^T therefore, he usedto quarrel a.m. he poured kerosene on| her on fire. Therefore, in tht gave the statement Ex. P-21 was taken to Government Ht Ex. P-8 was recorded by S.R|. in which she has categorica]| fire after pouring kerosene or|i fidelity. with her and on that day ,at about 11 her body from the container and set i first instance Devkibai immediately in the police out post, thereafter, she 3spital, Durg where dying deciaration l\dandavi Executive Magistrate PW-8 ^ stated that the accused set her on her body as he used to suspect her So far as the de.fenc4 incident he was not at hii agricultural field along with he]r about the incident he rushedl Sukalu who has turned'hostille the prosecution, has stated field at the time of incidedt examination by AGP he has full force and disclosed that disciose the name of the p4 witnesses No.1, Yashwant examination in chief has stal and her mother from the examination he has stated burning nor did he see the pe| know about the incident after 2 Ratital, who is the brothsl' thfe et)l''4tlfl<fl-< WRTf if^6 <R|<^1< ^-nf^irsn^r of the accused that at the time of residence rather he was in the mother. Oniy when he was informed to the house, is concerned, PW-2 |e and has not supported the case of |that accused was in the agricultural t. In paragraph No.3 of his cross Istated that Devkibai was crvlng with bhe was set on fire, but she did not irson who set her on fire. Defence examined by the accused in the |ed that Sukalu brought the accused lagricultura! field, but in the cross fat he did not see the deceased while •1-son who set her on fire. He came to Pevkibai sustained burn injuries. DW- •I- 6f the accused has stated in his P.T.O. Ktlmar XI-HC-78 an^r^r^iR; craTsn^Tgiiriq; 3^ '<<l<llrt<<, ®Tflti'l(»,Rld]tiy< ^iHrtl ai*i|ct> ^; 200 sn^rq^ (^gfg^r) wifa^-r wicit'if I's^t rfSiRTC ^arf^'tTsn^r examination in chieft mother were working io the examination this witness has ^ agricultural fiied, but in the cross tated that it is correct to say that the accused used to doubt the fid^lity of his wife and on account of this husband and wife used to ,|quarrel, therefore, the evidence of Ratliai, the brother ofthe accUfeed supports the version of deceased ^^:1 that the accused used to doutit her fidelity and quarrel on account of that. Now the question remlains that the defence has not been able to bring any circumstan|;e on record that the deceased had any motive to implicate her h|usb.and in a faise case. The accused has also stated in his staterr^ent that on inquiry by.his mother the deceased informed her that fehe sat herself on fire and thereafter she became unconsciousj However, PW-8 the Executive Magistrate S.R. Mandavi 4nd Dr. B. Balkishore PW-9 have categorically stated that sh^ was conscious and she gave the f.m. and 5.40 p.m. Even DW-2 Ratila! 12 of his evidence that Devkibai was Iries. Thus the defence of the accused statement in between 5.10. c has stated in paragraph No| crying on account of burn injij police and her parents she 11 not appear to be correct. Tt that Devkibai became uncor|scious and on!y on the advice of the as involved him in a false case, does ere is no reason before this Court to disbeiieve the dying declar^ition of Devkibai. Deceased was the mother of two sons born outlof the wedlock of accused and herselr and therefore, there was rfo occasion for her to implicate her husband in a false case. Th^refore, in view of the dying declaration P.T.O. XI-HC-78 ?5T^pn?ra', ©Tfteii^,(sic'iitiy r tTTRCtl Sbflct) WT 200 311^T qff f?^T?i tWW^TstiXI'h '^M^S^?< 3T1^?T'ra^T (yi(^q^iT) gTcrratdfN'STT^r «bi'iifci41-fw^i ^ fscS <l'ii«i< ^srf^R'sn^T of Devkibai which inspires fu|! confidence of the Court, the defence evidence is not worth.reliance to the effect that accused was at the agricultural field at the time of incident. For the foregoing rea^ons, we are of the considered opinion that the dying declaratiqn i|;f Devkibai is true andthe same is corrotsorated by the cireu|Tistantiai evidence on the ground situation. Therefore, we do ijiot find any iiiegality or infirmity in the impugned judgment convici|ng and sentencing the accused as mentioned above. Accordil substance is liable to ba disrr] Sdi. ' L.C. Bhadoo Judge ngiy, the appeal being devoid of |issed and it is hereby dismissed. Sd/- DHDtENDRA MISHRA Judge P.T.O. 11.1