u' Appellant: (In Jail) HI6H COURT OF CHHATTIS6ARH AT BILASPUR Criminal Appeal No.850 of 2002 Manmohan, s/o Vehudhar Nayak, age about 22 years, R/o Khamardiha, P/s Belha, Distt. Bilaspur (C.6.) Vs Respondent: State of Chhattisgarh through P/s Belha, Distt. Bilaspur (C.6.) Present: Mr. ftatindra Mishra, Advocate Mr. Arun Sao, Government Advocate For the appellants For the respondent JUDGMENT (Delivered on •§^r.2.2008) Per Dhirendra Mishra. J ' 1. This criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for brevity 'Code') is directed against the judgment dated 8th May, 2002 passed by tearned 5+ Additional Sessions Judge, Bilaspur in Sessions Trial No.190/01 whereby learned Additional Sessions Judge has convicted the appellant under Sections 302 <& 498-A of the Indian Penal Code (for short TPC') and sentenced him with life imprisonment and to paya fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for 6 months <& R.I. for 3 years and to pay a fine of Rs.1,000/-, in default of payment of fine^-to further undergo R.I. for 6 months respectively. 2. Case of the prosecution, in brief, is that the appellant was married with deceased Meena Bai on 5.5.2000. After few ^days of marriage the appellant started harassing Meena Bai ^^^^^3^^^.'^^l^^^*.^^^.^^a| ^%i^^fe^^K's~:s'^s-^'-:RF^I"s:s:'?'^?'':'''"llr4!??f;l^Er''°''l: 'c"":" K Page2ofl0 for balance of Rs.5,000/-. Two months' before the incident, the appellant had turned out Meena Bai after beating her, however, father of the deceased approached Sarpanch of Village Khamrdih and after compromise the appellant took back Meena Bai to his home. On 19.2.2001 also on her refusal to bring money from her parents' home, the appellant poured ,; kerosene on her and set her ablaze. She was admitted in . Dharam Hospital, Bilaspur and her injury report is Ex.P-7. On the basis of report of Smt. Sharda Singh (PW-10), l-1ead Constable, on 20.2.2001 at about 23.10 hrs the offence under Sections 498-A <& 307 of the IPC was registered against the appellant vide Ex.P-13. Her dying declaration was recorded by Shri Prakash Chand Kori, Executive Magi'strate cum Naib Tehsildar (PW-7) vide Ex.P-8. However, Meena Bai succumbed to the burn injuries on 22.2.2001 at 2.00 p.m. in Dharam Hospital, Bilaspur. Inquest over the body of thedeceased was prepared vide Ex.P-2. bead body was sent for autopsy to Dharam Hospital, Bilaspur where Dr. N.S. Chandel (PW-9) and &r. (Smt.) V. Jain conducted postmortem and gave their report of Ex.P-10. A glass bottle from which smell of kerosene was emanating, a match-box containing burnt match- sticks, one burnt wooden plank and other burnt clothes were taken into possession from the place of incident vide Ex.P-5. Site plan was prepared vide Ex.P-6. Spot map was got prepared by HalkaPatwari vide Ex.P-9. 3. After completing investigation, charge sheet was filed against the appellant_,-Venudhar, father of appellant <& Bhojmati, mother of the appellant, in the Court of learned Judicial Magistrate 1s Class, Bilaspur, who in turn committed the case to the Court of Sessions Judge, Bilaspur and the same was ~; received on transfer for trial by fhe learned Additional * ;Sessions Judge, who framed charge under Sections 302 <& ll 'U W(r .-ST.P-.-ES-K^ - \.- 498-A of the IPC against the appellant herein and under Section 498-A of IPC against Venudhar <& Bhojmati Bai. 4. During trial the prosecution examined 16 witnesses in all and thereafter, statement of accused personswas recorded under Section 313 of the Code in which they denied the evidence appearing against them in the prosecution case. The appellar)f herein has specifically stated that no one came in his presence for recording dying declaration of the deceased, as after admission in the hospital the deceased was unconscious and she did not regain consciousness. He also stated that he is innocent and has been falsely implicated in the crime. The accused persons also examined Shri A.&. Mahant, Dresser of Burn Unit, District Hospital, Bilaspurin their defence. 5. Learned Additional Sessions Judge after hearing learned counsel for the respective parties, convicted and sentenced the appellantherein, as mentioned in Para 1 of this jud^ment. However, he acquitted Venudhar & Bhojmati Bai from the charge under Section 498-A of the IPC. 6. Learned counsel for the appellant submits that conviction of the appellant is basedon the dying declaration recorded by Shri Prakash Chand Kori (PW-7), Executive Magistrate cum Naib Tehsildar and oral dying declaration given before Smt. Sharda Singh (PW-10), l-1ead Constable. Conviction js alSo based on the statement of Radha Bai (PW-11), mother 6f deceased, Lalit Kumar (PW-12), father of deceaseid, Goverdhan (PW-1), uncle of deceased <& Bharchari Prasdd (PW- 3). All the above four witnesses are relatives and friends ipf the deceased and as such they are highly interested witnesses. In the statement [Ex.P-11] of the deceased recorded by Head Constable Smt. Sharda Singh (PW-10) the deceased allegedly made allegation that the appellant used jto beat her for balance of Rs.5,000/- of the marriage time apd '•^' y^v^. '•% I 1 ~a..-^g g Page4ofl0 he also used to ask her to go for abortion, as she was carrying pregnancy of six months and on the above allegations he had turned her out after beating two months before the incident and on the date of incident he poured kerosene and set her on fire. Whereas, in her dying declaration recorded by Shri P.S. Kori (PW-7) there is no mention of demand of Rs.5,000/- and allegation that the appellant suspected her fidelity has been made. Goverdhan (PW-1), who is uncle of the deceased, has stated inPara-12 of his deposition that in the hospital Meena Bai personally told her that accused had set her on fire, however, on being asked for the second time she told that she set herself ablaze with the help of match-stick. Whereas, Lalit Kumar <& Bhojmati Bai have stated that deceased Meena Bai had told them that the appellant had poured kerosene, thereafter set her ablaze and fled from there and he did so because she could nat give Rs.5,000/-. Thus, there are material discrepancies in the dying declaration recorded by Naib Tehsildar Shri P.C. Kori and Head Constable Smt. Sharda Singh about the reason for which the appellant set the deceased ablaze. Her own uncle has categorically stated that on being asked for the second time the deceased replied that she had herself set ablaze and in these circumstances the trial court was not justified in basing the conviction on the basis of dying declaration of the deceased. From perusal of the dying declarationit is evident that answer to Question No.5 is not against the question whichestablishes that the questions were written in advance and replies against the questions have beensubsequently interpolated by the Naib Tehsildar. Reliance is also placed on the judgment in the matter of Narayan Rao Vs. State of ,M.P. reported ih 2006 (3) C.6.L.J. -1781. '2 Page5ofl0 7. On the other hand learned counsel for the State supporting the impugned judgment contended that the deceased died within one year of her marriage and there is cogent evidence that the deceased was harassed for Rs.5,000/-. First Information Report was given by Head Constable Smt. Sharda Singh, who recorded the diary statement of the deceased immediately after the incident in which the deceased has categorically stated that the appellant poured kerosene over her body and thereafter set her ablaze. Apart from demand of Rs.5,000/-, the deceased has also made statement that she was carrying six months' pregnancy, however, the appellant insisted for abortion and she was beaten for the above purpose also. He had ousted her from his home after beating just before two months' of the incident and thereafter on the dateof incident he poured kerosene and burnt her. Shri P.C. Kori, Naib Tehsildar (PW-7) recorded the statement of deceased after certification of the doctor that she was in a fit condition to make the statement. So far as the statement of Goverdhan (PW-1), uncle of deceased, is concerned, his version in Para-4 of his cross-examination by the defence that his brother i.e. father of the deceased, had asked him to go to the hospital is contradicted from the statement of father & mother of the deceased who have categorically stated that after hearing the message of incident they had gone to Bilaspur with their neighbourer Hansram and friend Barthari. Evidence of Naib Tehsildar Shri P..C. Kori & Head Constable Smt. Sharda Singh cannot be disbelieved only on the basis of statement of Goverdhan. 8. We have heard learned counsel for the parties. We have perused the record as also the impugned judgment. ,9. C.onviction of the appellant is based on the statement of Shri ' • P.C. Kori, Naib Tehsildar (PW-7), who recorded dying •^-e^Al&JiIJii;, PagefioflO Rclarationof the deceased and proved the document of Ex.P- 7. Conviction is also based on the statement of Smt. Sharda Singh, Head Constable (PW-10) as also parents of deceased namely Lalit Kumar (PW-11) & Ractha Bai (PW-12) and independent witness Barthari (PW-3). 10. Soverdhan (PW-1), uncle of deceased, has stated that Meena Bai returned to her parents' home just after three months' " of her marriage and complained that appellant had beaten her. A meeting was convened of the Heads' of The community in the presence of the appellant and his father and thereafter, Meena Bai was sent with the appetlant. Two months' thereafter Meena Bai got burn injuries and when he asked her in the hospital, she told him that Manmohan has set her ablaze. On being asked for the second time, she stated that she has set herself ablaze. Manmohan poured kerosene and set her on fire. 2-3 days thereafter Meena Bai died. However, Meena Bai did not give him the reasons as to why Manmohan beat her. In the cross-examination he has stated that after hearing about the incident he alone went to the hospital as he was asked by his brother to go to the hospital. His sister-in-law i.e. mother of deceased, did not go to hospital with him and on being asked for second time, Meena Bai had replied that she set herself on fire by match stick. This was disclosed by her in privacy, as no one was present at that time, on the second day of incident becauste on the first day she was unconscious. He has atso stated that after he met Meena Bai, his brother and sister-in-law also went inside the burn unit and they also talked to Meei?a Bai. Thereafter he returned to his home, whereas, the parents of the deceased stayed in the hospital. 11. Radha Bai (PW-11) & Lalit Kumar (PW-I2), who are parents pf thedeceased, have also stated that just after the marria^e ll3)«'"r ssfzavifi-safisvs?"W:inwf"——' i •:•'. ":^i '-*TS^ ^^Tj^ Page7ofl0 Meena Bai returned to her parental home and complained that the appellant beat her for Rs.5,000/-. After hearing about the incident they went to the hospital where Meena Bai informed that Manmohan poured kerosene and set her ablaze by match-stick for Rs.5,000/- and thereafter fled from there. Barthari (PW-3), who is friend of Lalit, has also deposed that Meena Bai used to complain that her husband and in-laws used to harass her for Rs.5,000/-. On the date of incident also when he went to the hospital with the parents of deceased Meena Bai, Meena Bai informed that her husband has set her abtaze and thereafter on the 4f day of incident Meena Bai died. 12. Apart from evidence of above three witnesses, Smt. Sharada Singh (PW-10) has deposed that on the date of incident she was posted in the Police Out-post of City Kotwali established at hospital. She recorded the statement of Meena Bai vide Ex.P-11 and sent her for treatment on 19.2.2001. Shri P.C. Kori (PW-7) has deposed that he received a memo of request from the police outpost, Dharam Hospital, Bilaspur for recording dying declaration, whereupon, he recorded dying declaration [Ex.P-7] of Meena Bai on 20.2.2001. Meena Bai had replied that she was admitted in the hospital because she sustained burn injures yesterday at about 3-3.30 p.m., her husband . poured kerosene and thereafterset her ablaze by match-stick, as he suspected her fidelity. He used to beat her also. Her in- laws also used to beat her. No one was present at the place of incident. SheTierself extinguished fire by rolling on the ground and thereafter, her mother-in-law, father-in-law and husband also tried to extinguish fire. However, since the Sari which was puton by her was very thin, whole body caught fire. Her signature could not be obtained as both her |I)!F- 'tirl,--.,. 11- ^ti hands were bandaged. Naib Tehsitdar has stated that before and after recording the statement the doctor had certified that the patient is fit to makestatement. 13. From the statement of Dr. N.S. Chandel (PW-9), who along with [)r. (Smt.) V. Jain, conducted the postmortem over the dead body of deceased Meena Bai and found 2nd & 3rd degree burn injuries on alt the parts of the body of deceased except both the armpits and legs, has stated that the deceased had sustained 957o burn injures and they have opined the cause of death as shock due to extensive burn injuries, the death of deceased due to burn injuries is established. 14. The only question to be considered in this appeal is whether the deceased set herself ablaze after pouring kerosene or the appellant poured kerosene and thereafter set her on fire with the help of match-stick. 15. Lalit Kumar (PW-11), father of deceased & Radha Bai (PW- 12), mother of deceased, and Barthari (PW-3) ore the witnesses of oral dying declaration. They went to the hospital after hearing the news that their daughter had sustained burn injuries and on the next day of incident they met the deceased who informed them that the appellant poured kerosene and set her on fire. In their lengthy cross- examination these witnesses have stuck to their claim that the deceased made above oral dying declaration before them. Apart from the evidence of above witnesses, Smt. Sharda^Singh (PW-10), Head Constable, whotodged the FIR after recording the statement of Meena Bai of Ex.P-11, has proved the document of Ex.P-ll. Even in the report of Ex.P- 13, which is based on the statement of Meena Bai of Ex.P-11, offence under Sections 307 '<& 498-A of IPC has bjeen registered against the present appellant and ther^ is ^-S^iaSS: B'*"-T"T'' i i: Page9ofl0 allegation that the appellant treated the deceased with cruelty for Rs.5,000/- as also compelled her to go for abortion as she was carrying pregnancy of six months. 16. So far as the argument of learned counsel for the appellant based on the above cited judgment that different reasons have been given by the witnesses of oral dying declaration as also Smt. Sharda Singh & Shri P.C. Kori, Naib Tehsildar who recorded the dying declaration of the deceased and therefore, conviction only on the basis of dying declaration cannot be sustained, particularly in view of the fact that there is apparent manipulation in the dying declaration recorded by the Naib Tehsildar as the question has not been written against the purported answer given by the deceased though space was available and the same makes the dying declaration recorded by the Naib Teshildar doubtful, is concerned, in the matter of Narayan Rao dying declaration recorded by the Executive Magistrate was disbelieved by this Court on the ground that the Executive Magistrate had recorded the dying declaration on 12.12.1994, however, no offence was registered on the basis of the dying declaration and the crime was registered only after the deceased died on 15.12.1994. In that case there was evidence of doctor that the injured was not fully conscious and thereafter there was no evidence of another doctor toshow that the deceased regained consciousness and in these circumstances, the dying declgrqtion recorded by the Executive Magistrate was held to be doubtful. However, in the instant case there is consistent evidence that the deceased regained consciousness on the next day of incident, Dr. B.P. Singh (PW-15) has certified that the injured is in a fit condition to make statement. He remained present till the dying declar-qition of deceased was recorded by the Naib Tehsildar tnl ij^g^^ 'b:^ Roshan/- PagelOoflO and after that also he examined the deceased and found that she was in a fit state of mind to make the statement. Thus, in the light of the cogent and trustworthy evidence in the form of evidence of dying declaration recorded by the Naib Tehsildar, which is also corroborated from the statement of other witnesses, the version of the Naib Tehsildar cannot be doubted only on the ground that rhe answers have not been written in the dying declaratioo, against the framed questions. Goverdhan (PW-1) uncle of the deceased, has also stated that the deceased told her that Manmohan poured kerosene and set her ablaze. Therefore, only on the statement of this witness that when he again asked the deceased she answered that she burnt herself, the consistent evidence of other independent witnesses cannot be doubted. Statement of Naib Tehsildar can also not be doubted simply because the question to the last answer is not written against the answer. Evidence of defence witness Shri A.D. Mahant, Dresser of Burn Unit, is that Meena Bai was admitted in burn unit with 93/o burn injuries and no one can enter including relatives of the patient without permission of the doctor. However, he has stated that he has no knowledge whether any relative of Meena Bai met her after permission or not. 17. On the basis of aforesaid analysis, we are of thecohside^ed opinion that the appeal preferred by the appellant has| no substance, the same deserves to be dismissed and it! is, accordingly, hereby dismissed. \ Sd/- Dhirendra Mishra Judge Sd/- T.P. Sharma Juuge •Si' ri!ifl|:^;7I