x^ <»®HXQJ coyKr oy .roESEeja'um. JSP B.xi»ASPsr&. C^^PS^ W»: 't\^l /2©QM " ' - fsssm^M^. IS~'J®^S F-®SECTJTO%~ IDasto .Ba& ail.A.as 51i|Rti Bafc,» ^sidow of I»8ife@ Mg3a%^ass»^€©@d®3« A35ye«?^:.c®sid®at @f vilX^9@,.X©tsaQ®£ .xmder £«^»bfc^ EA @fcfe»:BUa%m^Oafe afefci sgafla«. %i©Sifesfce of Ghliafc'bigga&^ m|DB&_S|!G3?XQg 374(2) Off 'IMS.Cr.Pft^ XI-HC-78 3TI^T^)T^i<=b cT8TT3TI^?T$b^icb /.. ^l+<cfll »»+ll<h 3^r ^II^Krt^l, ^rf^FR', fs|<ni<-l^< _ &.ft. (l"7l ^ 200 ( OT^T^RW (^cl^slt^ST) ^[<TT^K^f?cf3Ti^T Diyiston Bench: - Hon'ble Mr. L.C. Bhadoo ond Hon'ble Mr. &hirendro Mishra. chi^f<n41ri HT^rf ^* te^t' <r3i<-di< ^3:rf^T3TT^T 3'. 1-12-2006 Mr. ^outam Khetrcyal, cout|isel for the oppeliant. Mr. U.N.S. Deo, Additionol public Prosecutor for the State/respondent. Oral jud9ment dictated on Per L.C. Bhadoo. J: - Dais. Appellont Dosin Bd ©5h|antj Boi has preferred this appeal questionin9 legality and correctness of the j^idgment dated 29th September, 2001, passed by the Sessions Jud9e, Bilaspur, in| Sessions Trial No.l34/20CX), whereby iearned Sessions Judge after convicting l^he accused/appeilwt for commission of offence under Section 302 of the I.P.C., s^ntenced her to suffer* imprisonment for life. Case of the prosecution, in ofter finishin9 his work at the ho<| brief, is that in the intervenin9 ni9ht of 1st &2 >nd February, 2CXX), Rqju Rqjak (sinc^ deceosed) went to RQilway StQtioniKorgi Road el where he was workir^. The accused/appettant met him on the station and re^uested him to drop her to her residence at Kotscyor Pora/Kota, however, wh4n the deceased was returning from the house of Dcisin BQI after dropping her ot hjer house, Dosin Bd requested him to stay back, therefore, he slept jn the hous^ of Dosin Bai coverir^ his body with a quilt. Thereafter, Dasin Bd poured k^^osene from the Jericon on Rqju, sensir^ the smell of kerosene, R<yu woke up. mflrt-chbox on which Rqju ^tarted He saw thdt Dasin Boi set him on fire with Q burning. He raised cries. Santosh Yodw and P.T.O. a Itl XI-HC-78 +11*1^11 Sh+lich ^^T^Nicn^, ^Tfl^^Ko, facnw^ ^..^.A...(l.7.(|. ^ ^ 200 { 311^1 M^tch (yil^q^T) 3TT^T ^)T f^TW cTSTT3R1^Tsh^i<=t) ^cTT^K ^cf 3^?T others came running ond SQW that chl^?Ql141<rl WToTf if teT<ft <r3i<-<;l< ^'3:rf^T3TI^T Rqju was burnin9. Santo^h Yadciv covered the body of Roju with his shawl. At 1|hot time, Dasin Boi was stondjng there, in the meon time, number of persons wei\e collected on the site in front of whom, R<yu |im on fire after pourin9 kerosene on him, the from the body of Rqju. Rcyu wos taken to Rcyu was m the hospitaJ; dying declcr'otion |V-12 S.L. Soni in the presence of ftadheyshyam, ^CXX), Rqju while in the hospitot succumbed to disclosed that Dosin Bd hos set M smell of kerosene was emanQting| t. Whlen Primary Health centre, Kota (Ex.P-1) of Rcyu wos recorded by P^ Sontosh & Basant Singh. On 3-2-| the burn injuries sustained by hi Officer seized burnt bedding, bec| half burnt stick of matchbox und^ burnt ctothes of Rcyu and one wr| Ex.P-4 of the place of occurrence the mean time, on 3-2-20X) Rcyu s^ n. On 2nct February, 2000, the Investi9<»tin9 sheet, plastic Jericon, one matchbox and one |r Ex.P-2 from the place of occurrence. Holf- stwatch were seized under Ex.P-3. Site plan |^as prepared by the Investigating Officer. In ^ccumbed to the burn injuries. On receiving the merg infimation (Ex.P-14), the Investigating Officer redched to the hospitdl ond aft|sr 9ivin9 notice Ex.P-15 to the Panchc^, he prepored the inquest (Ex.P-7) on ^he body of Rcyu. Ex.P-8, the site plan of the ^py the Hatka Patwari. Burn injury report Ex.P-9 ^Q (PW-6). Burn injuries of Sonto^ yadav,the j^. 5. Tudu (PW-7) and he prepared the injury report (Ex-P-llA) of Dasin Bai, the accused/ |examinQtion of her body by br. S. Tudu. The |ct Hospital, Bilaspur under Ex.P-12 where post- 6upta 0>W-8) who pepared the post-morl-em P.T.O. place of occurrence, was prepared WQS prepcred by Dr. N.K. Samdari)| witness, were also exQmmed by Dj report EX.P-IOA. The burn injur^ appellQnt, wos also prepored after] body of Rqju was sent to the Distrl mortem wos wnducted by Dr. R.K. •w XI-HC-78 +11^^1 ffiHlch s^T^i^icn^, ^Tfl^^Ko, facni^y ^.&.^...1,1.7.1! ^ 200 ( 3TT^?T q^5F (yii^<s«^r) 3n^T^)T{<^ich cT^TT W^T ^TT^ ?^<TT^IT ^Tfecf 3TI^?T report (Ex.P-12A) ond opined thot| extreme ante-mortem bum. The examination to the Forensic Sciende Ex.P-22 was received. After completion of investi9^ti Chief Judicial AAa9istrate, Bilaspu^ Session Judge, Bilospur for trial. titie In order to estdblish charge 12 witnesses. Statement of the ac<t Cr.P.C. in which in reply to question person was raising cries 'save save' question hto.5, she has stated thcr^ condition <and she was standir^ in stoted that it is correct that Sonto^ to question No.IO, she has stated tl| In reply to question No.15 thot screams of a person 'save save' ond replied thot it \s correct. In reply the boy came out of her house Jn bij In repjy to question No.29, she has on right hahd. In reply to question as to how th& boy was burnt, she reply to the last question, she has s-| Radh^ <^i^iToix41ri Hm^if ^* te^ <Ri<-<;i< ^3Tf^T3T?^T the deceased died due to shock caused by recovered Qrticles were sent for chemicd LQborcrtory, Sctgar, from where Ihe report 'ion, ch<r9e sheet WQS filed in the Court of who in turn, committed the case to the <|t9ainst the accused, the prosecution examined tused WQS recorded under Section 313 of the |fsto.3, she has stated that it is true that one |n her house on account of burn. In reply to one boy come out of her house in burning house. In reply to question hto.8, she has ^h took that boy to the Kota hospital. In reply |iat she does not krrow 1+»e n<mie of thot boy. i^yshyam (PW-3) hos stated that he heard the ^moke was coming out from the house, she has |to question hto.16, she has stated that when ^rnt condition, she was standin9 near the cot. (admitted that she also received burn injuries F^lo.40, ^he hos stated that she does not know }as been folsely implicated in the crime. In ^ated thot 5he is jnrocent, one kerosene lamp P.T.O. XI-HC-78 ^n^T^Tf^TT^ cTSTTOT^T^OT^ *11+1<^1 Sh*1ich 3:^T^I^I^1^, ^Tn<r1jl(o, f®lcrll<-l^< ^.0?..A..J.1.7.lf... ^' ^ 200 3:n^5T ^ra^? (^f^^) ?^T^R:^1?cT3TI^T (chimney) WQS lying in the niche (^i lamp fell on him ond the clothe^ witness Basant Singh Thakur (&W|- ^rroTr; Learned Sessions Judge also ofter perusal of the recdfrd aforementioned. Gbi<4f<n41'i WToff ^f te^ <Ri<:a< ^3Tl^T3TT^T rrofr), when the boy was sleeping in the house that caught the fire. She examined one defence -1) in her defence. <jrfter hecring counsel for respective porties as I, convicted ond sentenced the accused as We hove heard Mr. &out4m Khetrapal, learned counsel for the appellant and Mr. U.N.S. &eo, (earned Addi|t-ional Public Prosecutor on behalf of th& State/ respondent. It is admitted position ^hot R<yu met with deoth on acGount of burn injuries sustoined by him in the h^use of the occused which has not been disputed by leorned counsel for the <2pp&{!^ the same in her statement under on the body of Rqju, smell of kerc^ his face, heirs, chest, stomach, Ijant and even the oppeilcyit herself has admitted ISection 313 of the CrP.C. DI-. R.K. fiupta (PW-8) has stated in his evidence that 0^1 3rd February, 2000, he conducted post-mort-em sene was emonoting from hairs and body of Raju, ^ight hond, left hand, JIJQC crest, gluteal region, bock side <& private ports were b^urnt and the burn injuries were up to 65%. He has stated thot Roju met with d€|dthon occount of burn injuries ond he died as a result of shock ond bum injuries[ Therefore, it is estoblished that Rcyu died on account of burn iryuries sustdned byhim. As for as involvement of ^he Qccused/appellont in the crime in question \s concerned, in this case there is ^o ocular evidence. Conviction rests on the oral P.T.O. XI-HC-78 W^T^T^Jcb cT8TT3TTCTshHI<=b +11+1^1Tffl*1|ch 3:STr*<NIC1-4, ^T(1yi(i, fc)dl<rl^< • • • •-•'•• • »^• •\»1»•(• <? ^I^ ^ » (S) ^ 200 ( 3:n^?T'ra^ (licli^sl<^T) 5;Rn'^K^cfW^T dying declarotion made by de Radheyshyam (PW-3). teased Rcyu before Santosh Yadav <^W-1} &. Mr. KhetropQJ, learned evidence it has come that the locked and as per the evidence house after breaking the lock. remdn inside the house when submitted that the evidence of not wroth reliance. Looking to was not possible for him to give to speak. On the other hand, ^ supported the judgment of the In order to appreciate hwe perused the evidence. his evidence that he resides Qccused/appellant wos residing.| when he was sleeping inside hi^ save', he woke up ond rushed Rodheyshyam, the nei9hbourer| vyere coming from the house) Rodheyshyam reached the hou^ roof wcss hwing tiles, smoke c^<4f<n41Ti ^TR^ft* ^* te^t <(^^i< ^3Tf^T3TT^T ^ounsel for the appellant, argued that in the feate of the house of the accused wos closed & |of the prosecution witnesses, they entered the iTherefore, it was not possible for the accused to llhe house was locked from outside. He further ISontosh Yadav (PW-1) <& RacJheyshyam (PW-3) is t^he 657o burn injuries received by the deceased it joral dying declaration, as he was not in a position |^r. Deo, learned Additional Public Pr-osecutor 1-rial court. Ihe orguments advanced by respective counsel, we Sarftosh Yadov (PW-1) is the person who has stated in in the nei9hbourhood of the house where the He has stated that in the night at about 2-3 a.m. house, all of a sudden, he heord the cries 'save t'owords the back side of his house, he saw that was a\so rushing towards that side and the cries of Dasin Bai i.e. the accused. He along with iou4e of Dosin Boi, the house wos thatched house, the coming out through the tiles, the door of the VtQS P.T.O. XI-HC-78 *11+1<<11 »+<1Ct) 3:5£T-^ll<4lc'1^, ^Tn'M'Ko, fcjdl^y ..&>;.ft... ^ 200 / 311^1 M5<th (^cit^sK^iET) 3TI^T ^)T f^rf^F) cfSTT 3:T1^T ^HT^ ^cfTW: €f?cTW^T dobr house wos closed ond there were door was wooden door, however, th( peep inside and he saw that one Thereafter, they broke open the Dasin Boi, the accused, was stondint motionless <xnd silent. He covered enquiry, the boy sdd thot Dasin Bafl him to drop her at her house/on wh was sleepjng, Dasin Bd poured the t%>y disclosed that his house ij Thereafter, he 0?W-1) alor^ wjth a rickshaw to the ^overnment Hosj^i has stated that clothes were room, ^ie was standing near a Similar is the evidence of thot he a\so reoched on the site corroborated the foct that Rqju s^reams kerofeene burni|n9 boxohd Radhey^hyam motie There is nothin9 in the cross\ on inimical relotions with the accusey QS to cliscredit their evidence. also. Even jn the process, Santo^i which is evident from his injury re{: witness has mentioned thflrt- therel Therefore, this burn injury ond <=hNld41vi ^j^<nT^:tel^'<r3i^i< ^3:rf^R'3TT^T from inside the house 'save save'. The '•ou9h the holes of the door it wos possjble to boy^ burning inside the room was crying 'save save'. on which the boy came out ond at that time, jn one corner of the room, she was standing the body of the boy wjth his shawl ond on met him on tiie rdlway station ond requested |ch he came to the house of Dosin Bai, when he ond set him on fire. On further enquiry, in BQrkaJ<yki Para. He is working in a hotel. Rc|dheyshy<m, &hQsirwi & Basont took the boy in |itd, Kota. In cross-examination pora 6, PW4 in the room, Dasin Bd wos standin9 in the he did not enquire anythirg from t>Qsm Bai. ^PW-3) who has corroborated the fact |ind sow Rqju in burnt condition, he hos also orol dying declaration before them. 1-examination to show that these witnesses are or their evidence suffers from any infjrmity TTi^y are independent witnesses and nejghbours Yadov (PW-1) dso sustained burn injuries, dort EX.P-IOA. The doctor who examined this were blisters on the palm of this witness. bli^ters further estobJish that this witness was P.T.O. XI-HC-78 +11*1^1 Sh+lich 3:5cT^iqidq^-Ji^^(o^ fct^tKiy '..A'.L(.7.(j Y?^ ^ 2001 W^\ Msi<h (yii^s«<6T) 3TI^T ^T R^14) cPTT^TI^Tsb^icb ^dTW^rfNw^T o^ly tHat present on the scene of occurrencl the fact that Rqju sustajned burn '^ her presence in the house. The last portion of her statement is the foll of a kerosene Jomp (chimn^ reply to question hto.14 has statec| sustoined burn injuries ond on th{ sustdned burn injuries on account eachother. But this appears to be no cross-examination on this ospect| oral dying decioration. Nto e>cplanat| the accused ot the time when reached to the spot, thoit was the sustained burn injuries on account Officer has been cross-examined oih categoricctJIy denied ond has said t^ was found oo the spot. Therefore, the Qccused. Had Rcyu sustained bu| bed, the accused ought to have imm< came immediatejy on hearir^ the Now, comir^ to the argumen] evidence, the witnesses entered th< WQS not possible for the accused to evidence and the stotement of the cbi^Id41-i Hi^<-iT^teT^i'<f^^i< ^3:rf^T3TT^T Moreover, even &Qsin Bai has not disputed juries m her house and she has even acJmitted explanation offered by the accused in the ^at Rqju sustained burn injuries on account of y) from the niche (^HcTi). Even the accused In that she does not know as to how the bay other hand, she has stated that the boy \f the fall of kerosene lamp which contradicts ^rfter thoiyht of the accused, because there is |from these witnesses before whom Rcyu made on whatsoe\/er has been coming forward from Yadav (PW-1) <& ftadheyshyam ^W-3) (ccasion for her to tetl them thot the boy has ^f fa{lin9 of kerosene lamp. The Investigating this aspect obout the kerosene lamp, he has ^at duriry the investi9€itionro kerosene lonip it is after thought and belies the defence of ^n injuries on account of falijng of |amp on the ^diotely disclosed this fact to the persons who of the boy. Scfntosh scnsams i^ CKlvQnced by Mr. KhetrapaJ thot as per the house after breoking the lock therefore, it ^emctin inside the house, close scrutiny of the (|iccused demolishes the argument advonced by P.T.O. XI-HC-78 +11HCTI Sh*((<!t» 3:ST<^INId<4, ^TnH4l<o, f^<ni^y ^...&...A....a74 ^ 200 sn^r Tara? (<i«t^^) sn^T^^Icn <T8TTW1^T$h^lct) ?^TTW^f?cf^n^T <=hl^Id^r1 <-ll^^T^'tel:A'<Rl^« ^^ri^TW^T Mr. KhetropoJ for the reason that tt| of the outer 9ate ond not the room It is not the case thot the room }n vsl locked from outside. Moreover, the] the room, m her statement under argument advanced by Mr. Khetrapal M far as the second argumei le lock which was broken by the witnesses was n which the deceased sustdned birn iryuries. hich the deceased sustained burn injuries was accused herself has odmitted her presence in |5ection 313 of the Cr.P.C. Therefope, the lisdevoi'd ofmerit. pt that Rqju was not mQ position to speak crs he sustained 657o burn injuries is co|ncemed, the accused m her statement under Section 313 of the CrP.C. in reply 1| came outof the room in burnt conditl 3rd February, 2000, whereas he o question Nos.5 & 16 hos sald that the boy |on. Moreover, the boy died in the hospital on ^iade oral dying dectaration before these witnesses (PW-1 <& PW-3) immediQte|ly ofter sustaining these injuries. There is nothir^ on record whjch establishes fhot the boy immediately become unconscious in the house itself and he was not in deceased sustained 657o burn jnjuri posjtion to speak. a position to speak. Moreover, because the es it cannot be held thot he wos not in a In view of the fact that tl^e boy made oral dyin9 declarQtion before Santosh Yadov (PW-l) & Radheyshyai^ (PW-3) which hos been established by th& evidence of these witnesses, the QcdfJsed wos standing in the house and she wos the best person to exphin as to how jbecouse, as per Section 106 of the E^ |the room, that is why it was within th< _l the boy sustained the injuries that was not |explajned by the accused at the tit(fte when the witnesses came in the house dence Act, the boy and the accused were in special knowledge of the accused re9ording RT.O. XI-HC-78 +11+1C11 Sh+lich 3^T •^l^l<n^, ^Tfl^Ko, ?®ldiy^< ^.&...<l:II.'?..l/.. '^0 ^ 200 t 37T^?T ^ra^? (lic'^ds<<iyr) 3TT^T^)T^icb cTSTTW^Tsh^icb Soma .^ ^RTT^R: ^rfN 3TT^T declaration that the accused set disbelieve the oral dying declaral chl^f<rt^T1 Wraf ^* te^ <Rl^l< ^3rf^T3TT^T breaking up of The Tire in rhe i[toom Qnd rhe boy hd^ ^TdT^d In The oral dying |the boy on fire, therefore, there is no reason to QS such, we do not find ony illegal^ty or infirmity in the finding of the trial Court. In the result, the appeal b^ing devoid of merit is {idble to be dismissed ond it is hereby djsmissed. Consequently. M.C4/.)P. No. Sd/- L.C.Bhadoo Judge |ion made by the deceased before 1+ie witnesses, 2516/2006 stands disposed of. Sd/- DhirendraMishra Judge P.T.O.