APPELLANT V Munna alias Ramdhun son 0f Kcdimm Safnami, aged 30 years, residen'r of viHage ?huiwar%, ?S Tuk'hu‘ipur, Eisi’f3ilasgur, MP (Mm/I1 CG} ‘EESPQNDENT The 5mm of MP. (naw C.EI.) Prgsem’: _ ' MnANPaadeye ceunsai far i'he appellant. ' MnAshish Shukia. Eovernmenf Advocafe for fhe Stafe. p; Cha!§a¥1ge in This agpea! §s w 1’he judgmem’ 0f canvicfien & arder- of semance dated 9.3;1g91’ iaassad by The: 4% Addmcnai Sessians Judge, Bi¥aspur, m Sassicns C‘se .%¢.204,11?89, whereby 3x whereandar karnad 4 1h Audi?iom! ,4 Sessians Judge after haiding Tiaz appellanf'guiity far commissian 9f cuipabie hn.icidz amounfing ‘m murder 9f Qishauha (since dzceased) fa‘rher-in-iuw bf The spgaelignf canvic‘ied under Eecfion-3Q2 of fha Indian Penai Code and semencdd him ‘m undergg imprisonmznf far life. Cmvictian is impugned en the gmund fhm‘ wi'rhw'? fhere baing my iom 0f l\J evidence, 'thz 59w? baht/1! has c0nv§cfgd and <pn17enmd fhz appeilan‘r as aferemznf30néd and fhereby semmitmd illegality. L Q .asa Q'f ?§‘se grcsecutign, in brigi is thcr? deCmsed Bishauha, famer-in—iaw of It» theag‘gaiiam, was m? Sufisfied wifh fhe activities of fine a “cilant. The appelbh? was having grudgéd againsi' ééceased 8ish9uhzz. 0n fhe fafe’fu! nigh? of 21/22.L198& a? abau‘? 127a? nigh? Bé£heuha (Ema-2 deceased) came am" s HIQH COURT Q? (ii-{HAITISQARH AT BILASPUR ' BEVISEGN BENCH: £0RAAé: HQN’ELE MRWT,?.5HAR&A t3: HON'BLE H‘RRLJHANWAK J3. grinning? Aggaa! §ia,332 9f £991 \ Versus (APPEAL UNDEQ SECTIQN 37'4 (2) CF THE Cr.P.C.) .JuaeMEMT £932AL.) {Passed on 29* March, 20103 . _ V¢ .._- i,“ ‘ 1 from his warn aieng with his San Lali‘? 1'9 an$wer fhe mi! éf mime, the appellam was presen’r in fmm 0f his heuse, ha was having one bambag sfick tied viii-h detlm ha 531' f§re on the cimih and assaul‘red by burning cioii'i 1ied with bamboo sfick f0 deceased Bisheuiaa and set him ablaze, gishcuhe'cried far heip, then after throwing bum abject fhe agpeiian? fied from The spot. Bishouim received bum injuries His neighbeurs and ether persans came, ‘ihey foek him to pelice sm’rien‘ The appellan‘r eise ief‘i‘ oil cenminer near The piece of ineicien‘i. §ishoui1a ledged the FIR. vide EXP/é, he was admit‘ied in haspim! fer Tree‘imeni, he was examineki by DrRKBhmge (PW/‘11) vide EXP/11 end found bum injuries even" his face, heck, chest, hands, beck and thigh. $mei! ef petro! was ceming fram hum pert m‘ body. He was burnt up to 45%. Hi< rendition WM nnt satisfactery. 0h the same day, cine ba.boo stick tied with bum doth, haékbiting, ash, bum match stick, one creeker, cine funnel, one stem bomb end pert 9f pickari were seized from the spat vide ExP/B. Spat map was prepared by patwsri vide EXP/5. During the caurss at treatment, he died on 2‘7’ii$3, Bed head ticket was seized vide EXP/1. Iny‘estigatihg efficer after summening the witnesses vide ExvP/Y, inquest over the deed bsdy df Bishouhe was grepared yide Ex.?,/8. Dead body was sent for autepsy to Gavernment Dhdmm Hespitni, Biiaspur vide ExP/Z. Autaasy was conducted by DnSanjay Gupta (HM-2) vide ExR/3 and apined that cause of death was shack as a resuit at burn injuries. During the course af treatment, Bishauhe made dying deciaratian ta Kali Bai (PW-4) and emardas (PW-5). Statements at the witnesses were regarded under Seatians 161 of the Cade and after carapletian at inyestigatian, charge sheet was fiied in the Court at udicial Magistrate First Class, Eiiaspur, wha in turn aammit‘led the case ta the Court cf Sessisns, Biiaspur, fram where iearneu x A 4 th Aguitionai ,JA Sessiohs J'I v Judae niiaspur reaeived the case on transfer far triai. n arder ta preve the guilty of the accused/appellant, the erasecutien examined as many as 13 witnesses. Statement of the (luau- accused/appellant was regarded u.der $eation 313 of the Cede where he‘ denied the circumstances apaearing against him’and pleaded innocence and , i Q it 9lI s . . I J lsa ipiimfion i fh crime in question. T peiim has aiso examined dence 'mes §esh uma DW—1\ wh i‘aas deposed The th appellen'!’ as wag at AHQhabad uing the pried incident and he was n9? e‘!‘ at 3iigspr nd i'hreb he h taken ine ied 0f alibi pi _.sn u a ey as f p . After- affcrding apermniiy s hearing 's '‘ahe pares, iaaed 4” Aifionai esns Jud ha cnvide and sentence the ppeildt -i. ave heard iamed cns fa the parties, ped th jdgment gned and recard o th ou bew; We h 'e auei r ruse e u impu f e Crt lo Learne eonsei for the appeiiant vhemeny argue that the present ase is ed n the idence ch ss ét (NM-3) nd exeegt Lalt, nabody ha sn the ncident de of aii and ether witnesse re not atural z s ee i. Evienc Lt s a n. Aaing to eience t pcutian itnees, incient too place at u at nigh wh iit (PW—) aiong it is fathe ake u answer the a af‘ tre d cme ram t na atu! ut w sp e f roine wark and ho ane can aect that the deceased will cam aut ram his house at a night. Bath th artie were i inimical terms th d e. we f e th neln ef, a a a r card vd a the rede wss d k abat 12 t en La 4 wh h r w p ta aii nau an a cut t heir hause. This was t nre 12 t e ps n and e eceased was not prmtti.g the if o th appellant to live wi the aplat, threore n account t enmity nd grudge, inlaw's and thei relatives have falsely implicated the appeliant in the crime in question Learned counsel further argues that even otherwise, the dea n\ only up ta 45% and in case of immediate treatment he wauld have been saved, theretare, his act does not {all under the categary of murder and daes nat travel beyond Section 304 Part i of the Indian Penal Code. Evidence of .aii Eai. (PW-5) and Amardas (WV-6) before whom the deceased has made dying declaration is not natural and do not insnire confidence. D‘ . Learned counsel placed reliance in the matter of $tate of.Rajasthan v. Ashfaq Ahmedi in vhi h the Apex Court held that in absence of any opinion doctor that ingured was in a position to make the statement considering his critical. condition, dying declaration recorded by the f the O oowuwam. 2i (so) .a m n a ha apa fe 'Lis Kem Kr ( g ? e w r-"m dr e of p f 1 ?i m dd Ssio ge s ad d dn as d u eti s c bas a ev of iid witne Lai a i e Learnzd cgunse! fher e h h? f §e Mdd ’ urt pieced relianc in te maz 9 ngzs§ Manda!’a!§as Eegai aac v 5mm cf aikarz hich 3 Apx Cour? hak.‘ fhaf é'hr ing of aci a? time dzm physka! reia‘tien an ausi Enjar resulting in?!) dam! 0 vi?§ b mfher ccued, they! Th acue ha t 1+! gwn cid ds n ave! beya fha sae 9f Sediens 32 & 394 Part II of The ndian P! oda. ingniiNg f T ie vesfi‘' oficar was no? found e be amepmb‘ other ha ed $‘ caunse supperted he judgment impugned cm ues ?hg cnvim‘i is basd an the evience 0 y wime dlif (W 4 W who f ee s m dn ciamfien. 'the presenf ae, th ppian'!‘ whg is havin gruded agénet “t dSd has 3e? The deceased laze and as a. res'r af ch dgemus injuries‘i he ie ithin 8 ays 9f Te icident. 0n fha nd, iegm mre ! t § arg t aon e d f ee ss L P-3), Kdii Bai (WM—) and Amdrdds {P—5} m he dcased ha ade yig de In cs e ael g g e he ecede ab ui su ee dd w d h n Leard us iece eiidn i ''e ater of Patei Hii Ji‘iam v. ‘ ‘i'e‘ cf :1?3 wuich L. i - Apex o? e usin bu. injur he th eTian c p T it f‘i ‘u 9 s df ! no . ne canei pd rce n ih m . mei am 5+a 63am in 4 he Cw hld the? cag rr y sws “e in‘i'n f 'i'he erson hai he has caused burn injury wh inen *iccdse death f fhe perdn and deh dffer 14 days wii ? dilute the in'renficn, 12.In 9rder To apprecid‘i‘e fhe drgumen‘!‘ advanced can behalf 9f The parties, we ' have examined ‘i’he evidence adduced on behalf ef the erosec-u'i'ien; In ihe pres,n‘i caee, hemicidai deefh as a resul‘i' of anie—marfem injuries has not -$" been substantially disputed by ‘ihe appellant, an the other hand, also established by the evidence of Dr.P..i(iBhange (PW-11), injury repart EXP/11, Dr.$anjay Guata (PW-2) and autopsy reparft EXRB which rel/ea! that the deceased died as a resuit of bum injuries EXP/11 also reyeais that the deceased was burnt up to 45% and his genditian was sat satisfaetary. 5mell af petmi was gaming tram the injuries Death was homicidal in nature. a i ' Q 1.1.45 regards the aompiicity at the accusedl'appeiiant in the crime in questioni conviction is substantiniiy’ based an the evidence af Laiit (PW-3) and aral d 1 zAIR 2010 SC 686 3(20023 1 scc 22 . i.. w *. e e c i d . ‘a 9f mdmg d cng y ? f cm y as ? cnw of csd d ne r a aa 9? W nd cp $ I am C wri??en dying dachmTion. Laii‘!’ (PW—3} 15 yams aged san of The decaasgd has deposed in his avideme Thain? fine Timg 0f inc§den? g1“ night §’az md his fa'rhar came nu? fmm their mam 1’9 answer The, cal! of ndfure, The agpalkm? was presenf new! his cgur‘tyard in hidden p05§?ion, he was having one sjick Tizd with clafh, he bum Tha cim‘h, ha was having pichkari and had ‘rhmwn pairs? by pichkar§ over his fm‘hgr and sex!" Em abhzz by burning defh. His fafher caughf-hrzld The ac I “d bu? ho wscwd and Had fmm th sgaf. He and his fafhar shamed far $12k), dam har mmher- and ofher perssns came, they Teak his father ‘m {mike sm'i‘ion whars he iedged FIR, ‘Haen paiice Tmk his fa‘rher' :ha this hgsgimi. Finéiiyihi’s father died. Defence has cress- examinedfhis witness at ieng'ih. In para 4 of his cress-examinatien, he has d sed ‘rhd‘i' nf+er sei' Ins ebieze Te his father, his father scuffied wi‘ih the appeiian? haif an hour. He has adrgiif‘i’ed in gar-a 5 9f his arsss-examim‘i‘ien iha? his fafher has no? iried ‘i’a catch hcid the appeiiant He has admitted emm+y 0n ncceun‘i' nF wrFe 91‘ The appeiian‘i M B Paindey (PW-8) QLh Tn c+or h Nehesod m his ewdence fha'? 0n 22.1.£8 a+ nhmH‘ 9 *0 a m Bishouhn came- fa +he noiiee sTa+ian and has iadaed FT Q wide F)! P/é Bishcuhn has mid him i'ha‘i’ his san-in-iaw set him ablaze which he has recorded. In his cross- examina'tiah, he has specifically sisted this? at The Time ef lodging the reperf, Bishauhe wasih canscious and hes ether persons also came with Bishonha Bishouhs was m bur-n condi‘han Tn his detail tress-erammn‘finn deFerire has mt asked anv+hina f0 this wimess that Bishouha h.s nn‘i‘ indned .FILR. er he himself has recorded the FIR. at his awn ins‘i'ance. In The presen'i case, Bishauha died after 8 days af the incident. n arder ta prove the aftence against theapnellnnt the nrasesutian has examined Kali Rm (PW-£3 wi‘e af dereased Sisho a a. d Amardas (PW—5" neiahhaur at Bishauha wha have depued in their ewdence' that they heard sauna sf W—wmwn ther they came wt where Bisheuha was burns and Rishnuhri tnld them that his sari-In-law has burnt him Defence has crass-eitrmmed the“ witnesses in detail, but they are stuck to the versien Lip ta extent that Bishauha made dying declaratian befare them. § i 1.5,As bald by thz Apex Court in thz matter- of 5mm cf Regasthan (supra), dying dalmatian regarded by the. invasiigm‘ing officzr was disapproved an the. grgund that condition of the deceased was critical and the. doctor has mt opinad that the degased was in a canditian ta make the statemant. In 4-‘ pmir, stathm and ledged thz FIR. He was burnt up to 45%, he was admitted. in the hesgita! and déed after 8 days. It sh9ws that he was in a cQnditiQn to mdke the statement end he has Edged the FER, but after his deethl the FIR“ !odged by the derpnsed’become statement of the deceased relating t0 hisceuse 9f deafth re!eyant under Seetien 3? n'F the Evidence Act. The feet of the case 0f State ef Rejesthen (supra) is distinguishable to that at the < ant cas-, the. deceased whan he was injured himself had gone te the. he {grN m -..-, s v present case. 16.In the present easei evidence at ey- witness Lalit (PW-.3), evidence 9f Kali Bai (PW-4) and Amardas (PW-5)’r'elating ta dying declaration made lee-fare them by the deceayed and evidence af MBPandey (PW-8) aha has recorded the F.1Rs‘subseguentiy miscarriage value of dying declaration carroborates to each ather and are safe ta rely. This eyidenee is sufficient ta establish the fact that the appellant was the person who has aaured petrol upo. the deceased and has set hlrn ablaze and as a result of such injury, he died after 8 days of the incident. 1K \ 1?’ As regards the questian at motive, as held by the Apex court in the matter ofEBengai Manda! aiias Begai Manda! (supra), the appeilcmt was present with main accused at the time at throwing acid and eaused death of the deceased, considering the aforesaid fact, the conviction was altered into Sections 32a r3,1 304 Part II of the Indian Penal Codei but the person who has actually thrown acid and caused death of the deceased was convicted under Section .302 of the Indian Penal €ode. Paras 14, 16 and 17 of the matter of Bengei arAonda! alias Begai dondai (supra) reads as underz- , i Q l i l l “ 14. Thus, the position with regard to 5ection .34, EC is crystal clear. The existence of common intention is a question of fact. Since intention isle state of mind, it is, therefore, very difficuit, -if not impossible to get or procure direct proof of common intention; Therefore, courts',’ in most cases, have to infer the intention from the act(s) or conduct of the accused or other re!e.\/£Lnt circumsTances Gf the case. However, a. i.ference as; fr) The common infen‘fion shaii no? be rendiiy drown: The criminai Ha‘niih‘y can arise on§y when sJc'n ir‘lference can be drawn wii'h a QQ-r'i'ain degraz 0f QSSUrQnCB». ié. T9 find answer 1'0 this question, we. need. To raver? back 1m 1he, dying d'eciam‘rion of The &eceased. in her dying deciamfion, fhe deceased nos impufed The ac%s of enfry énfo ner house and physical presence a? the Time 9f 1’he inciden‘r To the appelhn'r wi'rhouf anyfhing more. No ofher over? acf save as men‘rioned aoove l nus I . IDean impm‘ed i‘o fine appe§§anf by fhe a‘eceased. If has also no? came in evidence before us their fhe appellan’!’ fried To Gag her mou‘rh or over-power The deceased in any ofher manner 30 as ‘ro facmTa're ’me pouring oT acm on her by The accused No 1. Had The appellen'r <hered nn Infenfmn common WI'I'h +i'w eecused No 1 fo kIH The deceased by Throwmg amd on her! iT wouid have been manifesT in his conducT which wouia‘ cerTainiy have been sameThing mere Than him being just a mute specTaTer To The whole incidenT. 17. Thus, in absence of any active reie piayed'by The appeilenT er overT acTbeing done by The appeiianT, iT cannoT be said wiTh cerTainiy ThaT The appeiianT had accompanied The accused \io 3 To The hause 91‘ The deceased WiTh cemmen InTenTior Te murder The deceased. .Ln View ThereoTl The conVIcTlon oT The appeIianT unner I aecTion r- 3G2 read wiT-u SecTion 34 EP€ cannoT be susTained." Tn The presenT se, The appellanT has seT The deceased ablave The feeT of The case OT Bengei Manda! alias Begei henna! (supra) is disTinguishahie Ta ThaT of The presenT ease Ty 18. While dealing wiTh The quesTion of reiiabiiiTy of dying declareTion, This Ceur u The ma? r “f Marga & aThers v. STaTe sf 5.5.4 has heid ThaT befare accepTing dying declaration, The CgurT is required Tc saTisfy iTself ThaT wheTher The maker cf dying LdeclaraTion was in a. pesiTion To sToTe. No formal opinion of The doCTor is necessary and if The case is supporTed by The oTher y ‘ iiTnesses Then iniured was in n posiTion To <TnTe or we. fiT To <+aT 's siifflaenT for draw-rig Inference ThaT The InJured hos volunTorIiv mode dVmo e claroTmn and he was in o fr? <TaTe of mind n iThe oresenT case, The anpellanT has seT The deceased ablaze y pouring and Throwing peTrol shows his clear inTenTion ThaT he has poured peTrol and T .I b 59+ him nhlaza WI+l~ m+vn+ fn cnmmvl‘ cuipahh’ hnmwd nmgunfing 1'9 murder of daceased. > 20.Af'.*er app. ' Erg *Hw ¢viu5rnCc uvutLAbk" 0n f'wCurd g n ad 4 1h AduiflO§Gi A x Eas<inn< dge BlMpur ha. convm‘l’vd and svnfkncpd +he agnoiiant as nFnrPmpnhonad remnchon I< hg<ed on crerhHo and rhnrhmo ev'dence sustamabie under the but .Qn clase scrutiny of fha. evidence, wa do n9? find 93/ 3Hegdi‘ly or infirmiiy in * fhe judgment impugned warmming any inferference. The appeal being’devaid of meri‘r is habie to be dismissed and if is hereby dismissed. The appeiient is an baii, heshaii surrender himseif iriimediaieiy befcre *L! ma ~r Afh Addi'i‘ionai Sessigns Judg Biiaspur in Sessmns Ca..e No 204/1989 fer r'vmn remalmng part 9f sentence. ‘ I l ‘Sd/- ‘ \ ‘v R.L. Jhanwa eiydge Sd/- 'T.P. Sharma ss’éa ii Judge iv i i r