^:: 1^ '•o' /"\ 1dB-189/(Jail) C.J.P.R. 11/94/2,000 0-y] ^/f^S^ CF0000059741 t^^n^curtcf l:4adh^ h-adtisn^ I: '..' •-MQALPUR..' •'1;^^:'^,^ I-' '• ~~"~ ^ '•/•' ;<r>^Ct ;2.9:'OCT-W'' : f/'-;^ ^. ^.......^^^ i APPEAL OF PRBSONER^ .. ' .' •,- ' , . - ,.. ,, '. '.- •, '^ ^••:'€on-t. Ja1--?^-^" , No....§.^.4...........—.- •••••.••••••••..•• Name •.. ••<?;{^?p...-...——... -^...^•T.TTr^ •».•••••. Father's name ..lff?i.f?tg.^hT.?:.3Tfj3IFy ..CTTft»:?.~~ERT(?iiT.^g--^TF^~'-W^Ty-•7r^"?:;« Residence ..^%q.T-^..ST.sig'?'. .Wfl^oi....«.Age ..2..5..W?..... "............. -......—...... ... Sehtenced to OT'vfl^^. %7J?TgT.5Ty ..y!.&».50Q/.»..On..2.8/Q8/98- • - •-• •• ..•—.........." Under section 3 Q^.,- -4-98. .13T4..W^SOTg.0.. by -%^sft-zr..1^?^~lT.^q-?'..-^ •'f^.^s^;^•^7 --Trgtl_@og^i'• '' ' ^'_ "', It is explained to the prisoner that if he states or wishes to be represented by legal practitioner the Appellate C ouFt will n^ot^roceed wi th the base- for seven days unless ^legal practitioner appears . If the legal practitioner does not appear within seven ^ ?s'he may not heard at all Ifthe prisoner states that he does not wish to be repre- ^ented 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 vvho should appear . 31 1 Date ofApplication forcopy ofJudgement ... ..... ... ........•..........<.•....— 2 Date on which eopyreceived.<.5/40/9.8 3 Date on whichAppeal seQt.jf.^/l.0/98 •-••••••--•••—••••••• ••• ...................... 4 Whether the prisoner wishes to be represented or not " Yes / No N0..8N6.4......... ...................,....T ...... Name..^S^..9^..^r^^..1^^ CoDfinedia ...... ..^....^.T'^~?r.......^...... Jail .....7T^?:..!CT03'Al......... .........;. No......^^^.^rfy/<98....<Dated........ .^.^../IQ/199 8........... ................... brwarded to the GSE^=^^€fAfc=M3^BS:PRA¥E.Tn^:?r..a^hfr^..B^fe£W..I{St-?!T, ,,f6gatherwhichacopyofjudgementororderT?3^i%^y^Ffi^^%1tr3^^ mission to the properAppellateCourt. , Q . • / v-r^'—\^\ ^F'^." H^ST? i^T^-64/97 ^" ^Tf^rri §Tf??^ :ifc-Sv^t Mtt^iitet^rtt'- ' C£i^ir^?JsH_'R.iDur.(M.P) Jail « ...i'- 14- f Date ofreceipt^ia... ...... .-. ............^..office r / - • . -:• ' Y Date of receipt record to accompany the /- . . . ' • ;/. /- Memo of Appeal to' the Appellate court No ... .. / .......... ..,.,. .....Dated FoTwarded to the .-........ .., . ....... Date ofreceipt in AppellateCourt 199. '^-G^';-.;-. -(:T;gT.,0^}^.^ '•v^ XI-HC-78 ^=S[ ^l^ld^, ^Tn<rl4|(o, [®t<rtl^< qTOW CTfe • • •fc^'- •^"/•'^i; £»»- ^ll^l M^l* (li?<^<s<^) 3TI^T^Tf^TW cT^TT^TT^T^HT^ (.'••^ fe-u: ^<TT8tR:^f?cT3TT^T D.B. Hon'ble Mr. L.C. Bhi Hon'ble Mr. DhireRcfra Mishra, •JJ. 14-2-2007 Mr. Prashant Jaiswai, Sr| Advocate for the appeiiant. Mr. U.N.S. Deo, Addi. Pubii^ Arguments heard. - Orai judgment dictated on D| Per L.C.Bhadoo. J.: By this appeai, the appleiiant correctness of judgment of com 28.08.1998 passed by 3rd Addition^l Triai No. 64/1997, whereby the ie<| hoiding the accused/appeiiant guii Sections 302 and 498-A of i.P.C. st for iife, to pay a fine of Rs. 500/-, undergo one month R.i. andsixm< 2. Case of the prosecution, in| was married with accused/appeii^ residing together at Sukrawari 17.12.96 at about 6.30 a.m., pouring Kerosene oii on her bod' aiiegation against the accused/a? deceased and subject her to crueit Bai on the same day in the poiice chl^Id^l^ ^l^dT^te1c^<^l<^l< ^3^^T3TT^T doo and Advocate with Mr. vinay Pandey, Prosecutor for the respondenVState. IS. has questioned iegaiity and l^ictjon and order of sentence dated Sessions Judge, Raipur in Sessions irned Additionai Sessions Judge, after ty for commission of the offence under ^ntenced him to undergo imprisonment in defauit of payment of fine, to further ^nths R. i. respectiveiy. brief, is that Rekha (since deceased) i^nt. At the time of incident both were B^zar, Raipur. On the fatefui day i.e. accu^ed/appeiiant set Rekha on fire after and committed her murder. Further tpeiiant is that he used to beat the i^. The matter was reported by Chanda ^tation Ganj, Raipur vide Dehati Naiishi P.T.O. XI-HC-78 +11+K11 sb+licb 3T5ET ^ii^icnq, ^^^(0, ^Krtl^y ^^ ....G^^sip.'.^^'y^^y- 3ii^i ^ach (lci^s«^T) ^n^T^rf^rra' c[§TT3TT^Tst)^|cb V-. ?^TTW:^f?cT^n^T --2-- 3Ct2 Ex.P-1. Whiie making the report station aiso. Based on the above registered offence under Section succumbed to the burn injuries on| that effect Ex.P-4A was sent to the| registered as Ex.P-6 and Ex.P-7. Coiiege Hospitai, Raipur aiong prepared inquest Ex.P-2 on the| conducted by Dr. Arvind Neralwar, in which he opined that cause of d| burns. Rekha was sent by poisc^ where Dr. Sanjay Pandey examin^ was 100% burn and injury report| place of occurrence Ex.P-16 was chemicai examination to Forensic report Ex.P-19 was received. sheet was fiied in the Court of who in turn committed the case to learned 3 Additiona! Sessions triai. Tlhe ^ 3. Prosecution in order t( accused/appeiiant examined twenfy accused/appeilant was recorded u?1der denied the materiai appearing agai| he has been faiseiy impiicated in D.W.-1 and Shyamu D;w.-2 in his cjefence. <=bi^?<-i^lvi ^i^<viT^tel^<Ri<-4i< ^)'3Tf^R'3TT^T ;handa Bai took Rekha to the poilce Dlehati Naiishi, the Station House Officer of IPC under Ex.P-S.However Rekha |the same evening. Merg intimation to Ipoiice station Moudha Para which was investigating Officer ieft for iviedicai with Executive Magistrate, Raipur, body of Rekha. Post mortem was |ie prepared post mortem report Ex.P-3 l^ath was syncope due to ante mortem to Medicai Coilege Hospitai, Raipur ^d burn injuries and opined that there |Ex.P-15 was given. Site pian of the ^repared. Seized articies were sent for $cience Laboratory, Raipur from where compietion of investigation charge Cnief Judiciai Magistrate, Raipur Sessions Judge, Raipur from where received the case on transfer for Aft^r Addjtional the Ju|dge estabiish charges against the three witnesses. Statement of the Section 313 ofCr.P.C. in which he ihst him and stated that he is innocent, |the crime. He also examined Keertan P.T.O. II ,fl XI-HC-78 ^l^dl sh^lcb 3^T ^^PTT^RT, ^teFT^, fadl^^ .^.-^.•..?.Sl' 5%.^eo^ 3lict^i^|5|ch (licl^<s<<^T) ^T^T^rf^n^ ^l $b^W ^FcTT^K^cr^n^r _^ 4. We have heard Mr. Prash Pandey and Mr. U.N.S. Deo on b< 5. As per the evidence it is t^ account of burn injuries. Learnf argued that P.W.-3 Smt. Amna that in the morning of the fatefu| house, she saw that the accusec saying that he witl set her on fir inside the house and five minul account of Kerosene oii where< Shanti Bai who was residing at tn stated so. She stated that sh< accused/appeitant was standing which, she offered a chaddar to of Rekha whereupon he took Learned counsei submitted that t| 3) cannot be beiieved. MoreoveJF Court evidence and in the poiic^ that she saw the by hairs. She has aiso not stat^d accused/appeiiant was saying therefore the evidence of Amna 91 accused/appeii^nt taking 6. On the other hand Mr. U triai Court. GM^f<n41-< ^i^ciT^tet^^T^K ^^I^T^TT^T frit JaiswaT, Sr. Advocate with Mr. vinay haifoftheState. \Q admitted position that Rekha died on i^d counsei for the accused/appeiiant |i, neighbourer of deceased has stated da^ she was standing in front of her g/appeiiant was beating Rekha, he was '^, after catching her by hairs, took her |es thereafter she saw fire erupted on |s another prosecution witness P.VV.-7 je adjoining house of the injured has not saw Rekha crying "save, save", the there, he was not speaking anything on the accused/appeliant to cover the body and covered the body of Rekha. lerefore the evidence of Amna Bi (P.w." r, she has improved her version in the statement Ex.DM2. She has not stated Rekha inside after catching her in her poiice dian/ statement that the D Rekha that he witt set her on fire, does not inspire CQnfidence. ciladdar si.S.Deo supported the judgment of the P.T.O. XI-HC-78 tTrH^TT Sh+licb 3^T ^l^l^l^, ^Tn<-ljl<o, f®t<rtl<rt^< ^j^ .....^r:^:Q(^:.^^>j '^ L^2^0^ 311^1 45|ch (<{c|l^<sfc^T) 3:n^T^)T^i<+) ^T3TT^l9h^l<=h ^TTW^fN^TI^T ^-1- 7. in order to appreciate the accused/appeilant, we have peru triai Court. Conviction of the circumstances: larguments advanced by counsei for the ^ed the evidence and the judgment of the accused/appeiiant rests on foiiowing i) that deceasec before her Amna Bi andl of the deceast ii) that Amna threatening tr| house after 4 she heard th( kitchen. The Even P.vv'.-TI person in accused/app^ her parents' iii) no expianal accused/app^ burn injuries.l 8. As far as the first circum; has stated that ten months b^ committed theft therefore he wa^ him reieased and on the same t to her daughter (Rekha) and art^ <=hl^T^41-1 iTTR^ff^ teI^t<Rl^l< ^3T^T3TT^T ^4 Rekha made orai dying deciaration Mother P;W.-1 Chanda Bai, P.vv.-S P.W.-5 Chetan Das Jethani-brother sbd. Bi saw accused/appeiiant while tr|e deceased and taking her inside the ^atching her by hairs and thereafter sound of kerosene fire fiame in the ti'eceased came out from the kitehen. Shanti Bai aiso saw the accused the house. Thereaner the iliant took Rekha in burnt condition to ttouse and ieft herthere. tion has been ofrered by the ?iiant as to how Rekha sustained ttance is concerned, P.W.-1 Chanda Bai b4fore the date of incident the accused sentto jaii. On Monday her daughter got light the accused/appeiiant gave beating t^r setting her on fire he ieft Rekha at her P.TO. XI-HC-78 +11+1^1 Sh*1ich 3^T ^ 1^1^^, ^Tf1<-IJI<o, f^dl^y< ,;...Q:i4.G^..?^>^^^oo 3^ 1^1 ^5<cb (l:IF^3^^) 3TT^?T^T^i<=h cT^T3TT^?T^TT^ ^cTTW^cT^TT^T ~ ^- tb Amrjia insifle froh'i Iresidence. Thereafter she took her |taken to D.K. Hospitai where her| Idemanding Rs. 500/-. vv'hen she di<P |fjre. in Ex.P-1 Dehati Nalishi aiso thi^ |orai dying deciaration. P.vv-3 laccused/appejlant taking Rekha insi<p lof kerosene fiames were heard |stated that whoie body of Rekha wa| |she stated that accused/appeiiant h4< IJethanl, brother of the deceased on| |the accused/appeiiant has stated Igained consciousness she disclosedl Ifire. Aii these three witnesses have |on the aspect of dying declaration There is nothing in their cross |not made any orai dying decic Ibefore resting conviction or beforel |Court is required to ensure that the Igive dying deciaration and dying de^ linspire fuii confidence of Coyrt in its Idying deciaration is not an outcome limagination. The defence has no{ lexamination of these witnesses oi| Ideceased was not in fit state of mindl |the dying deciaration is outcome o| ITherefore vve are of the considered |that the orai dying deciaration wat <^i^?^i41ri ^i^<nT^:f^t<Ri<-<.j< ^3Tf^R'3TI^T poiice chowki, from where she was daughter stated that accused was not give money to him he set her on witness mentioned that Rekha made Bi has stated that she saw the the house ana' thereafter the sound the kitchen. ln para two she has burnt, ciothes were burnt and thrice |id set her on fire. P.W.-5 Chetan Das lcross examination by the counsei for at about 2.00 p.m. when his sister |that the accused/appeiiant set her on been meticuiousiy cross examined (nade by the deceased before them. to show that the deceased had before them. As per settied iaw, beiieving the dying deciaration, the ieceased was in a fit state of mind to ;iaration must be of such a nature to truthfuiness and correctness. Thatthe |of tutoring, prompting or a product of been abie to eiicit in the cross in the doctor's evidence that the to give oral dying deciaration or that f tutoring, prompting or imaginatlon. |ipinion that there is nothing on record i^ an outcome of tutoring. The fact P.T.O. thbt rtot examihation iarati^n 1- XI-HC-78 +11+1^1 «>*lich 3^T ^l^Krl^, ^Tf1^Jl<o, fc<cni^^< ^...&4:G^.-.."^ W-^oo' 311^1 ••isich (*{c|i^s(<^ST) 3:n^T^)T^i<+) cT^T3TI^T^)HN) Iremains that Rekha died on accounl |The presence of the accused/appel IRekha sustained burn injuries is e IRather Chanda Bai P.VV.-1 stated ff IRekha at her residence in burnt con^ Ihas come forth fromi the side of t'ne |burn injuries.rather he has stated lcase. From the evidence avaiiabie < |Bi, the dying declaratson stands corrc ^TT^K^fN'^n^T '"" £— |9; So far as second point is| ladmittediy residing in a house in froi| |has categoricaiiy stated that in the [house, at that time she saw that tht |the deceased, he took her inside th4 Isound of fire flames of kerosene. Sh< |out in a burnt condition, she tried tc| Idoor, thereafter she orfered her a Ithat the accused/'appeiiant was itf lcommitted theft therefore he was |him reieased and on the same nighll |her cn fire. The accused/appeiiant hi( [rickshaw. Even P.W.-7 Shanti Bai |in the morning she saw Rekha in a [house, Rekha was crying "save,save|! [was not speaking anything, on w| [accused/appetlant to cover the bo<4 <=bl^?<n41^ W^ff ^ te1^ rf^FCTT ^^rf^q'^TT^T t of 100% burn injurieson her body. iant in the house at the time when ^tablished by prosecution evidence. iat the accused/appeiiant himseif ieft aition and no expianation whatsoever accused as to how Rekha sustained that he has been impiicated in faise m record of neighbour P.W.-3 Amna borated. concerned, P.VV.-3 Amna Bi was iht of the house of the deceased. She rr|iorning she v^as standing outside her i^ accused/'appeiiant was threatening house and thereafter she heard the ^ was crying. Thereafter Rekha came enter her house but she ciosed the ch^ddar. P:vv,-1 Chanda Bai has stated ^ the habit of beating Rekha. He to jait and on Monday Rekha got he had beaten Rekha, thereafter set Inseif took her to her parents house in also stated that at about 6.30 a.m. ^urnt condition in the courtyard of the s|;!. Accused was standing there but he 'hich she offered a chaddar to the ^y of Rekha. P.VV.-9 Babia has aiso P.T.O. s^nt h^s XI-HC-78 ^i*idi a»*iich 3:^T ^TPTT^R, ^Tfl^l?, [^cni^y ....&^,(X..z^' ^' ^oe 3<I^IM5|ch (^i^^) 3^T^TRRN) cP-TTW^T^TW ?^T8?K^?TW^T ^ ^- stated that he saw the wife of act accused was aiso standing in vr^ counsei for theaccused/appeiiant evidence of P.W.-7 Shanti Bai and| of the evidence of these two wt\ materiai contradiction in the evider|< be every chance that Shanti Bai came out of the house in burnt the accused/appeiiant and the threatening before setting her on wo witnesses, the defence has circumstance in order to indicate tj interested in Rekha or had any as to give faise evidence. Even it P.VV.-7 Shanti Bai that since wher whether before setting Rekha on fir in front of her house, at that time Sr or not. Therefore, we are of the] contradiction in the evidence improvement in the Court evidence| true that in her poiice diar/ stateme| accused/appeiiant was saying to R( he took Rekha inside the house these omissions do not effect verac of the evidence that Amna Bi was morning and the accused was quar his wife inside the house, thereafter corldition rlot anintiosity cbl^Id41^ W^ff ^f tec^t <r7|^l< ^3:rf^R'3TT^T ^used/appeiiant whiie burning and the house.As far as argument of the ^hat there is contradiction betA/een the IP.W.-3 Amna Bi is concerned, perusai icsses does not reflect that there is |ce of these two witnesses. There may had occasion to see Rekha when she and she had no occasion to see [deceased when the accused was ire. From cross examination of these been abie to bring on record any lat in fact P.'W'.-3 Amna Bi was either against the accused/appeiiant so has not come in cross examination of she was standing out of her house, ^, the accused was threatening Rekha tanti Bai was standing out of the house considered opinion that there is no these fr^o witnesses. As far as of P.W.-3 Amna Bi is concerned, it is ?ht Ex. D-2 there is no mention that the jkha that he wiii set her on fire and that 3|fter catching her by hairs but mereiy |ty of evidence of Amna Bi. Substance [standing in front of her house in the r|reiting with his wife and accused took |he set her on fire by pouring kerosene P.T.O. XI-HC-78 3TT^T^T^J<=h cT§TT3TT§ST9h^i<=b ^ +11*1^1 Sti+lich ^=^[ ^TraT^Tq', ^TH^ <• i <o, tcf crt l-M y< ..^..A...a^& t^ (,200— 3TI^T ^5ich (^qIyi^T) ^<TTW^rf^TWiRT -^- is aiready there in the poiice diar^ in poiice diary statement th| accused/appeilant threatened thereafter he took her inside the| evidence ofthis witness. She is ^ front of the house of the accu^ morning, presence of a person Court has rightiy beiieved the statement, therefore mereiy the fact that is witness has not stated that the fte deceased to set her on fire and Ihouse, does not affect the veracity of the ^n independent witness, her house was in ^ed/appeiiant. At the time of 6.30 in the |s naturai at her house therefore the triai evifjence of P.W.-3 Amna Bi. evidehce 10. From perusal of the above it is established that accusedfappeiiant was very sustained 100% burn injuries parents house in rickshaw and P.W.-1 Chanda Bai, mother of has nowhere expiained in his as to how Rekha sustained burn stated that the accused was 4 speaking anything. Had Rekha but naturai he ought to have disc|i mother-in-law where he left Evidence Act is reievant. Sectior when any fact is especially wi' burden of proving that fact is prosecution evidence the house and it was within his spec} burn injuries but instead of <=hl^I^l41T1 WToff ^f te1^'<Rl^l< ^3T^T3TT^T of prosecution witness as mentioned when Rekha sustained burn injuries the mi|ich present in the house when Rekha |the accused/appeliant took her to her that has been estabiished by evidence of ijhe deceased and the accused/appeiiant sNtement under Section 313 of the Cr.P.C, linjuries. Moreover ail the witnesses have ^tanding in his house and he was not »ustained accidental burn injuries, it was |iosed the thing to the neighbourers or his ReKha. In this regard, Section 106 of the 106 of the Evidence Act envisages that thin the knowledge of any person, the |upon him. in the present case as per was very much present in the }iai knowledge that how Rekha sustained exrtiaining that how Rekha sustained burn P.T.O. accuse|d/appeilant XI-HC-78 W^T^Tf^TW cT§TT3:[T^Tsih^lcb ^ '^ V, ^ *11+1<<1( $t>+1icb 3^ ^TPTfQ^T^ ^Tfl^^ I (o, Rld 1<-I^< ^i^ ...(A.II.':^"'^^ Y4 ^ja^- 3^l^l ^^cb ^c<TTW^f?cT3TI^T •9- injuries his defence is that he Therefore this circumstance is i< faiied to discharge the burden vj?i Section 106 ofthe Evidence Act| judgment of the Supreme Cou|t reported in J.T. 2006C10) SC 28\ i^'rhan vs. State of Maharas [and another judgment in Tnmukh Maroti frs reported in 2006 AfR SCW 5300 in which it has been heid that ncfn expianation is additional circumstance againstthe accused/appeiiant srjowing his involvement in the crime. 11. So far as offence under $ Bi has stated that accused/app^ her neighbourhood since iast or(e after consuming liquor, she h^d decgased. 12. For the foregoing reasorjs there is no iilegaiity or infirmity) accused/appeliant has been ri$ 498-A ofthe iPC. There is no m^ dismissed and it is accordingiy d( sd/- L.C. Bhadoo Judge <=bl^l?d41-f WT^Tf^ 1Wt <^t^l< ^3:rf^T3TT^ las been faisely impiicated in the crime. gainst the accused/'appeijant and he has 'hich was on him as per the provisi'ons of and for this view we are supported by the in State of RaiQSthan Vs; Kashiram ection 498-A is concerned P.VV.-3 Amna tiant and the deceased were residing in year and accused used to beat Rekha seen accused/appeliant beating the s we are of the considered opinion that in the judgment of the trial Court. The }htly convicted under Sections 302 and )rit in this appeai. The same is iiabie to be ismissed. Sd/- Dhirendra Mishra Judge P.T.O.