.^' KSQH OF CHHATTiSGAryi AT BILASPUR DiViSiON BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N.CHANDRAKAR, JJ. Criminal Apifeai No.553 of2eeS ADpeilant (In Jail) Respondsnt Hemant S/o Baraiu Ram Tamaskar, aged about 23 years, R/o Vi!!age- Thakurtoia, Police Station-Somni, District-Rajnandgaon, (C.G.) Versus State of Chhattisgarh, through District Magistrate, Rajnandgaon, District- Rajnandgaon (C.G.) (CRft/iiNAL APPEAL UNDER SECTiON 374 (2) OF THE Cr.P.C.) MrAjit Singh, counsei for the appeilant. Mrs.Madhunisha Sir.gh, Panel Lawyer for the State/respondsnt. JUDGMENT (Passed on 24!" November, 2011) T.P.Sharma. J.:- T. Chaiienge in this appeai is io the judgmeni of conviction & order of sentencs datsd 23.4.2008 passed by the Sessions Judge, Rainandgaon, In Sessions Triai No.123/2006, whereby & whereunder iearned Ssssions Judge whiis acquitting accused Shashiiaia, Anii Kumar and RevAi convicted appeiiant Hemani i.e. husband of fhe deceased Anju under Section 304B of the I.P.C. and sentenced to undergo imprisonment for iife and fine of Rs.2)00/'-, in default of payment of fine to furthsr undergo S.i. for six moriths. 2. Convictlon is impugned on the ground that without there being any iota of evidence, th8 triai Court has convicted & sentenced ths appeiiant ss afersmsntioned and thereby committed iilegaiity. 3. As per cass of the prosecution, unfortunaie deceased Anju, wife of present appeiiant Hemant, was reslding witn the appellant. She died in abnorrflaisircuGistances as a result of burn injuries caused on 25.7.2006 ^. •^ I m'..;;;:. ^ between 5.30 to 6 p.m. within ssvsn years of hsr marriage. On 25.7.2006 Anju (since deceased) v»'as present in her house, she poured kerosene oil over her and sei her abiaze, the appeliant tried to extinguish the fire, she was shifted te hospitai for treatment, she was sent for medicai examination vide Ex.P/5, she was examined vide Ex.P/6, she was burnt and kerosens smeli was coming out. During the course of treatment shs was referred to Higher Centre, Raipur vidfi Ex.P/7, she was admitted in Dr.B.RAmbedkar Hospitai, Raipur. During the course of treatment, she died. Merg was intimated vide Ex.P/8. Merg was recorded vide Exs.P/9 and P/10. F.',.R...wa& iodged vide Ex.P/1. Spot map was prepared by investigating officer vide Ex.P/2. Burn hairs, clothes, petticoat and container containing kerosene oii were seized from the spot vide Ex.P/3. After summoning the wtnesses vide Ex.P/11 prepared inquest over ihe dead body of the deceased vide Ex.P/10. Fatwari aiso prepared spot map vide Ex.P/13. Dead body of ths deceased was sent for autopsy to Dr.B.RAmbedkar Hospitai, Raipur vide Ex.P/18, where Dr.Shiv Narayan ^anjhi (Pytf-9) conducted autopsy vide Ex.P/18A and found superficiai inflteted bum injuries over hsr body. Cause of death was burn and its complications. Her statement was recorded under Section 161 of the Cr.P.C. as Ex.P/20. Her dying deciaration was aiso recorded vide Ex.P/22 by Tahsildar (Revenue) Ashok Kumar Shrivastava (FW-8). 4. Statements of the witnesses wsre reeorded under Section 161 of t'ne Cr.P.C. and after compietion of investigation, charge sheet was fiied in the Court of Chief Judiciai Magistrate, Rajnandgaon, who in turn committed the case to the Court of Sessions, Rajnandgaon. 5. in order to prove the guiit ofthe accused/appeiiant, fhs prosecution has examined as many as nine witnesses. Statements of the accused/'appeiiant were recorded under Section 313 of the Code, in which they densed the circumstances appearing against them and pieaded innocence and faise implication in the crime in question. They • have aiso examinsd Smt.Kekti Ba! (DVv-1) and Smt.Rajesh'A'ari (DW-2), sister-in-iaw ofthe deceased and sister-in-iaw ofthe appsiiant who have "deposed that the deceased 'A'as not havlng issue and on the aforesaid tension she burnt herseif. ' / -./ 6. After providing opportunity of hearing to the parties, the Sessions Judge, Rajnandgaon whils acquitting other reiativss of the appeiiant convicted & sentenced ths appeiisnt as aforemsntioned. 7. VVe hsve 'neard iearned counsei for the parties, perused the judgment impugnsd and record of the triai Court. 8. Learned counsei for the appe'iiant vehementif argued that as psr case of the prosecution, the deceassd herseff has poureci kerosene oii over her and set her abiaze. Her dying deciarations have been recorded as Exs.P/20 and P/22, she. has aiso made dying declaration to her father Suaram Jangde (PW-2) and her sister Ku.Anjaii Jangde (PW-3), in which she has stated that she has seen the appeiiant i.e. her husband with his slster-in-iaw (bhabhi) in objectionabis position and on account of such shock she has poured kerosene oil ovsr her and set her abiaze. Learned counsei further submits that theappeiiant has not demanded dowry and S'ne (ieceassd has not died as a resuit of demand of dowry, but as per dying declaration of the dsceassd, she has committed suicide when she saw the appeliant wifh his sisfer-i'n-iaw in objectionabie position. Thsrefore, conviction ofths appeliant under Section 304B ofthe S.P.C. is not susfalnabie in the sys of iaw. 8. On the othsr hand, iearned Panei Lawyer for the State/respondent opposes the appeai and submits that ihe prosecution has proved its case beyond ai! shadow of doubt and the triai Court has rightly convicted and sentsnced the appeitant as aforementioned. 10.in order te apprsciate the arguments advanced on behaif of the parties, we have examined the evldence adduced on behaif ofthe prosecution. ·S1.in the preserst cass, abnormal deafh wifhin seven years of marriage of the deceased has not been substsrtialiy disputed on behaif of the appeliant, sven otherA'ise, it is estabiished by the evidence of prosecution witness Dr.Shiv Narayan Manjhi (PVV-9), autopsy rsport Ex.P/ISA and injury report Ex.P/6 that death of the decsased was f abnormai and as a rssuft of burn and its compiications. 12.As regards ihe compiicity of the appeitants in the crime in question, the appeiiant is husband of decsased Anju. The prosecution has examined Buaram Jangde (PW-2), father of the decsased, who has deposed in para 7 of hi3 evidsnce that during treatmenTof Anju she mgde dymg deciarstion to him that she has seen her husband »¥ithsister-in-isw (bhabhi) of the appeiiant in objectionabie position, therefore, she has poursd kerosene oii over her and set her abiaze. As psr para 3 of evidence of Ku.Anjaii Jangde (PW-3), sister of the deceased, tieceased saw her husband with his sisier-in-iaw (bhabhi) it was not toierabie to her, then she pqured. kerossne oii over her and set her abiazs. Ker statement has been recorded under Seciion 161 of the Cr.P.C. by investigsfing officer Smt.Usha Aai!v.?ar (PW-6) vide Ex.P/20, in whichshe has deposed that she herseif has poured kerosene oii over hsr and set her ablaze on account of quarrei wifh her husband. As per Ex.P/22 snothsr dying deciaration made by Tahsiidar (Revenue) Ashok Kumar ShrivasSava (PW-8), the deceased has committed suicide and the appeilant aiong with oiher co-accused psrsons have committed torture and cruelty, they used to commit torture and crue'ity on the ground that shs was issueiess and in connection with demand of dowry. She has admitted that the appeiiant has extinguished the fire. Ex.P/20 her dying dectaration recorded under Ssction 161 ofthe Cr.P.C. i.e. virtuaiiy it is dying deciaration reveais that she was not in a position to e^slain the cause of such incident. 13.1f the aforesaid evidence reiating to dying deciaration, especsaliy dying deciaration given by her father and sister is considered, ihen it would be clear that the dsceased was residing with the appsiiant and when she saw the appeiiant with his sister-in-iaw (bhabhi) Rewti Bai in objectionabie position, then it was not toierable to her and shscommitted suicide. This fact negates ihe demand of dowr/ and commission of torture and crueity and in absence of aforesaid ingredients of Section the i.P.C., conviction and sentence of the appeiiant under 304B of the Section 3043 ofthe i.P.C. are no{ sustainabie underthe iaw. 14-WhiSe convicting and seniencingthe appellant under Section 304B ofthe i.P.C., the triai Court has not considered the materiai evidence, that too I, d/- evidence of father and sister of ths deceased snd thereby committed illegaiity. l5.For the foregoing reasons, the appeai deserves to beaHowed and it is hereby aiiowed. Conviction and sentence of appeiiant Hemant S/'o Baratu Ram Tamaskar under Section 304B of ihe !.P.C. are hereby set aside. Ke be set at iiberty and be reieased forthwith, if not required in any ofher case. i Sd/- i R.N.Chandrakar Sd/- '.,: ', ," ' f I ' 1 Judge T-P-Sbarm^ i ' . ' ' ' -•" Judge * _—-""""""