\ swEi^sssss^ssSKe^^iff9SS^^ss ym ^SSSSSXSISBSSSSiSSSSSESSK^ ^CTE.3BaEaBaSt'8aeitaa8EMis"0sreaEi©^ ye yyefS wft •tsjasigueBSaa SVS139X. : ' *a*H'»f*>63'BS VWW7S '3B<s '¥»a,a*S*,2i *BTea®e»oBeTTTA o/a TVi ' .itx^B.y^ava. yQ.asya •eac»9X.^.t,,'e9Be.'vfs'st{3CffWK£-*£/'1 1 .-..^a«lM(i;F^tB3''ptlS®B!KUBR'je-:OC®: *»3»a&Q8 yaSe 'ISIBBS *2~ laayi3^'»w^:9SSi3sseiae-''fa'fQ.'veiSate's s®wQe (TfeC wi) ,B«i t>a3¥';1 ' '3x»9S.eS::,^ee'f3Ffff-wtXesce-Wfwee'i '*•[ tSststc^-pBddv r^\ IM t :;^ ^.I:.i:i<,.-'t-tt ^^&f •r'^~K ^^S-^s o*-^' "x ...' '^_^u2 \v^ •--.^s^' »® \^-g> •QH*¥'30 Bfld*r?E»j?,E<r SHflassiCTac ao .Lsaos HSIH am, NI *•• :.£ HIGH COURT OF CHHATTISQARH AT BILASPUR CriiiunalApoeal No. 2441 of 2000 AppeBaats Laxini Narsyan Oiri and others Versus Respoiident The State of Madhya Pradesh (now State ofChhattisgarh). DIVI8ION BEHCH : Hon'bte Mr. Justice L. C. Bhadoo, and Hon'ble Mr. Justicc Satiah K. AgnUlotri, JJ Shri Rajesh Paadey and Shri Arun Kocher, Advocates for fhe appeBaats. Shri U. N. S. Deo, Govenunent Advocate for fhe State. ORAL JUDGMENT (26& Jufy, 2006) The foUowing Judgment offhe Coiut is deUvered by li. C. Bhadoo, J. 1. By this appeal under Section 374(2) of fhe Oode of Criiniaal Procediire, fhe appeBaats namefy Laxmi Narayan Giri (husbaad ofthe deceased Sbanti Gir^, Rainlal (fafher-iu-la'w of the deceased) aad Jundri Bai (inofher-in-law of the dcceascd) have questioned the legaUly aad correctacss of fhc judgment ofconviction aad order of sentence dated 31.8.2000, whereby fhe Addittonal Sessions Judgc, SoorEgpur, Distrkst- Suiyija after holding the accused/appcBant No.l Laxmi Naragran Giri guilly for comniissiDn of the offence under Sections 302 and 498-A and appeBants No. 2 Ramlal & No.3 Jundri Bai for coiamission of fhe ofifence under Seettons 302 read wifh 34 and 498-A of fhe Indian Penal Codc, sentenced, each of thcm, to imdeigo anprisonineiit for life and pay a fiite of Rs. 5000/ -, ^/ in default of payment of finc aiaount to furtfaer undeigo 5 laonfhs rigorous im.prisoiunent, and onc year's rigoious imprisoiunent aad pay a fine of Rs. 500/-, in de&ult of payment of fine amount to fiirtfacr under go 2% months r^orous unprisoiunent, respectivcfy. During the pendency of fhis appcal it was iafbrmed that the accused/appcBant No.2 Ranilal has eqiired and tfa.us vjde order dated 21.11.2005 passed by fhis Court, fhe appcal agaiast him stood abated, as DO teyal heirs of Ramlal have fited any appUcatton to prosecute thc appcal. The case offhe prosecution in briefis fhat near about 8 ycars before fhe date of inculent Shanti Gid (since deceased) vrscs married to accuscd/appeUant Laxmi Nar^ran Giri and fhere was one male child out of the wedtock. On account of non- fulfEUmeat of denaaad of dowiy, in the xiight of 23.5.1999 at about 10 p.m. the accused Laxmi Narayan Giri poural two Uters of kerosine oil on fhe body of Shanti Giri, whereas the appeBaat No.3 Jundri Bai caught hold ofher and fhe appeBant No.2 Racalal (smce deceased) shouted that she be set on fire, oa which fhe accused/appeBaat Laxmi Narayan Oiri sct her on fire with a mateh stick. Shanti Giri, in ordcr to save herself, poured water on her body which w^ in a pot (dctechi) fymg there. The next day on 24.5.1999, in the monung. Smt. Subhas Devi (P.W.4) elder sister-in-law (Jefhan9 of the deceased and Deema Oiri (P.W.5) nephew ofthe deceased took Shaati Giri to the Hofy Cross hospitel, Ambikapur and admitted her in fhat hospital. ff? 4. On receiviag fhe Baformatfon fom the hospital ttie Assistant Sub Inspector of PoMce Station Ambitepur, Oauri Shankar Paadey (P.W. 12) reached fhe hospital aad rccorded fhe dehati fc- naUshi (Ex.P/ft) at 17.30 houra aad bascd on tfaat the first mfonnation report (EX.P/ 14-A) was recorded for commission of the ofiFence under sectmns 307 and 498-A ofthc I.P.C. On fhe same day Nai Tahsildar (P.W.7) iiamefy Jagaxmath Vcrma recorded fhe dymg declaratfon (Ex.P/2) of Shanti Giri. On 29.5.1999 the merg iatunatton. (Bx.P/18) was recenred from the hospital ia fhe poUce station on which fhe o&nce was couveried under section 302 of fhe I.P.C. After rcceinng fhe merg iatimation Gauri Shankar Pandey (P.W. 12) aSong with Dharamvir Singh Yadav, Cily SuperinteDdent of Police reached the hospital and after giving notice to the panchas Ex.P/13 and BX.P/ 16, prepared the panchnama of fhe body under fhe signature of Dharamvir Singh Yadav. The dead body was sent thereafter for the postniortem to the govenunent hospital Ambikapur uader Ex.P/9-A, where Dr. Mukesh Kumar Jain (P.W.10) canducted the postmortem. on the body of the dcceased Shaati Gin and prepared the postniorteni report (Ex.P/9) and opined fhat tfae cause of death -waa due to bura septfcenua which was up to 80 to 88%. Afler comptetion offhe investigation fhe cbai^e sheet was fited ia. fhe court of fhe Jiulicial Magistrate Firat Class, Soorajpiir, who ta tum committed the case to fhe Sessioiis Judge, Ambikapur fi»m where leamed AdditioD.al Sessions Judge received fhe casc on transfer for trial. 4 5. 8. The prosecutioa in order to establish the charges against the aecused/appeBants examiaed as many as 14 witaesses. On fhe ofher faaad, tfae statemente offhe accused/appeBante were recorded iinder Seetion 313 offhe Code ofCEuninal Piocedure in whfch fhey denied the material appearing against them in thc prosecution evidcnce aad statcd fhat fhey are innocent and thcy have been falsety iinpUcated. Leamed trial Court ater hearing, leamed Additional Ptiblic Prosecutor and learaed counsel for the accused, convkrted and sentenced the accuscd/appeUant, as mcntkined in paca—1 of fhis judgment. We have heard Shri Rajesh Pandey and Shri Arun Kocher, learaed counsels appearing on behalf of fhe appellants aad Shri U. N. S. Deo, leamed Addittoiial PubMc Prosecutor fer thc respondent/ State. As far as fhe qucstion of homicBlal death of Shanti Giri is conccraed, it is admitted that she died on accouat of fhe exteusive bum i&juries. The case ofthe prosecution is that the death was homicidal as the accused appeBant No.l after pourii^ kerosine on the body of Sttanti Giri, set her on &s and the appeBaut No.3 had caught hoM. of Shanti Gin at that tune. Wliereas, the defence of the accused peraons is that Shanti Giri coinautted suidde by settmg herself on fire, as she was not happy on accouut of fhe &ct that fhe accused/appellant No. 1 Laxaai Narayan Giri kept anofher lady. The conviction is pnmarity based on the ciBcrumstantial evidence Le. the dying declaration made by Shanti Giri, in the y' fiist instaace, in fh.e fonn of dehati aaMshi (Bx.P/14) before Gauri Shankar Pandey (P.W.12), A.S.i. aud fhereafter fhe dyu^ declaration rnade before the Jaggannath Venna (P.W.7) Nafl) Tahsildar. 10. In oider to establish. fhe inotive, fhe prosecutton has exaiiuned Rainkali (P.W.l), mother of the deceased, Sanjy Giri (P.W.2), brofher offhe dcceased and Ram Naresh Giri (P.W.3), fatfaier of the deceased. Thcy have stated that (he accused used to subject (he deceased to cruelty and harassiaent for demaad of dowry and also fhe accused/appeBaat No.l has kept sonie ofher lady. The ofher aet of fhe witaess examined by fhe piosecution are Subhash Devi (P.W.4), elder sister-in-law (Jethan^ of the deceascd aad Dcema Gin (P.W.5), nephcw of fhe deceased, who were residing adjacent to fhe house of the deceased. 11. As per fhe setfled law in order to base the Gonviction on the dying declarattoa, fhe dying declaration must mspire ftdl con&lence of the Coiut iu its correctness fhat the dcceased was in a fit state of mmd to observe and identify the assailants. Thc Court, however, has alwsys to be oa caution to see fhat fhe statement of the deceased was itot as a resDlt of eifher tutoring, prompting and projected imagmation. 12. Seekiag the corroboration iu fhe dymg declaiatfoa is a rute of prudence and not a rute oflaw. 13. In fhe case of Dandu Latuhml Reddy Va. State of Andhra Pradesh { (1999) 7 SCC 69} the Apex Court observed fhat on the fact situatfon of a case a judjcial muad would tend to ./ wobbte betroeen two equatly plausibte hypotheses - was it suioide, or was it homicide ? If fhe dying declaxation projected by the piosecution ^ts credcnce, fhc altematiye bypothesis of suicide can be eluninafed justifiabty. For that purposc, a scrutmy of fhe dying declaiatfon with ineticiiloua circuiaspectfon is caBed for. It must be sieved fhrougb fhe judicial cuBendar and ifit passes fhrough (he gauzes it caa be made fhe basis of a convictton, otherwise not It was further tteld fhat in view of the impossibilily of conducttag fhe test on fhe version in fhe dym^ declaration wifh the touchstone of cross-examination, the court has to adopt other tests in order to satisfy its judicial conscience that fhe dying dcdaration contamcd nothing but fhe trufh. 14. The ge&eral principle of criminal law is that the prosecutiou is ia an. legal obl4ptk>n to prove its case beyond aU reasoiiable doubt and the accused is to oitly probabBse bis defence. 15. If we scrutmize fhe dyii^ dcclaratfon aod ofher material available on recoid, dehati naUshi (Ex.P/14) was iccoidcd by Gauri ShanJsar Paiuley (P.W.12) on 24.5.1999 at 17.30 Iiours i.e. about after 19 hours of fhe incidcnt, in which Shanti Giri stated that her husbaad Laxnni Naiayan Giri, Jiindri Bai (mofher-in-law) and Ram Lal (father-in-Iaw) used to beat her for fuffiUmg the demand ofdowiy i.e. tceeze, cooter, T.V. and they used to through her out of the house. At fhe occasfon of festivat of Hofy when she was throwii outeide fhe house, then she went to her parental house. On 7.5.1999 here brother Saujay cam.e wifh her to leavc hcr at matrimoiiial housc. ® 16. Ycsteiday, ni the night at about 10.00 p.m.. her husband poured 2 Uters terosine ofl on her body, her inofher ia law caught hold of her and the fafher ia law was saying fhat set her on fire, on which her husband set her on fiie wifh fhe help of inatch box. Whereas, in fhc dying declaratmn (Ex.P/2), which was recorded after fhe dehati naBshi by Jagganafh Verma (P.W.7), Naib Tahsildar, she simpty stated fhat her husband set her on fire after pouring kBrosme, family membeis werc not providing food to her, apart fioia that hcr husbaud had kcpt second wife and fhere used to be a VasaQy quarrel regularly. At fhe tune ofthe incident taer naothcr-in-Iaw and husband were at residence, fhere was no ofher member aad fhey ran away afiter setting her on fiie. Thcreafter she tried to extinguish the fire by pourmg water on her body. In fhis dying declaration she has not stated that there was aay demand of dowry by her in-laws or husbaad and on that account they used to subject her to cruelty or harassment The parts/roles shown to have becn played by fhe mofher-ia-law and fa.fher-in-law ia thc dehati naltehi have also not beeu DHTrated in this dying declaration. In fhe light of the above discrepancies between two dying declaratfons , if we look mto the evidence of fhe Jaggaimath Verma (P.W.7), Naib Tahsfldar, who recorded the dying declaratk>u, he has categoricatly stated fhat fhe deceased categoricaUy stated fhat her husbaud set her at ftre, she was replyiug fhe questtous with fhe Httte pause. In fhe cross- Kainiuation he has admitted that at fhe tiine of fhe dyiag ^: }•-(- declaration relatives of Shanti Giri were present aad no doctor was present He has further stated, when he was recorduig the statement, Shanti Giri was not able to explam the questk>ns fulfy, hcr rdative used to explain. It is correct that whatevcr Sbanti Giri was sayiag he was not aible to understaad and fhe saiae was bemg explained by the relatwes, he was recordmg fhe statements after satisfying bimsclf. Sister Reema (P.W.9) and doctor Neelima Tiild (P.W.8) have steted that Shanti Giri was adnutted at 11.00 a.m. at that time fhe pulsation of fhe nerves was slow and at fhat time she was not in a condition to repfy the questions. In fhe cross exanunation para-4 slie 'bas stated that she was not in a position to speak. Smularfy Gauri Shaakar Pandcy (P.W.12), who recorded fhe dehati nalishi, has stated in cross exanunatton that at the time of recordiag the dehati nalislii fhe mofher of Shaati Griri was present, therefore when tfae dehati naUshi, as also dymg declaration (Ex.P/2) were lecorded, fhe rclatives of Shanti Giri were present by her side, aad particularty, tookiag to fhe discrepancies bctween detaati nalishi and dying declaration, it cannot be ruled out that she was siibjected to tutoring and piompting. Shanti Giri in her dying declaration (Bx.P/2), as has been meutioned earUer, has stated that her husband had kept a lady in his house and regularty fhere werc quarrels and her husband kept thc lady in hcr house. This fact finds support from fhe evidcnce of fhe parents of the dcceased, as also fiom fhe evidence of Subhash Devi (P.W.4) and Deema Giri (P/W.5), who have categoricaUy stated tbat whcn they f'^-l MB were taking Shanti Giri to her parental house, on the wsy, they enquitwl and on which she stated that her husband had kept a lady in his house fhat is why she set hersdf on fire. 17. Now coming to the poiut raised by leamed Gcwenuueat Advocate, fhat fhese two witnesses are related to fhe accused therefore no reliance caa be placed on their evidence. Thia aiyuaent ofleamed Govt. Advocate cannot be accepted for the reason fhat at fhe first instance, they are pTOsecution witnesses, inore over they have not been declared hostile by the public prosecutor on the giound that they were sayiag somefhiag contreuy to the prosecution case or to their earUcr statement. Therefore, for the foregoing reasons we are of the considered opiaion that the dying declaiations do not iaspire fiiU coEifidence ofthe Court. 18. As far as fhe niotive is conceraed, Ram Kali (P.W. 1), niother and Raan Naresh (P.W.3) fafher of fhe deceaaed, in fheir exainination iu chief have stated fhat the parents ia-laws of the deceased, including the husbaud, used to subject Shanti Gid to cruelty and harass her for deiaand of dowiy. The marriage was sokmnized about 8 years prior to the date of the incident. In fheir cross-exanunation it is said fhat thcy never reported fhe matter to any police station regarding cruelty a&d harassinent and they have explained that they did mot report fhe matter out of fhe fear fhat jf fhc matter is reported to fhe police theu their daiighter may be deserted aad then fhey would not be in a position to many her a^un. But, even they had not tried to convene a meeting of relatives or other \ 10 51^1 ^ 19. 20. meiubers of fhe society iu order to setUe the matter o--." persuade the ia-laws not to subject Shaati Giri to cruelty aad harassment. For these counts fheir evidence to tfae effect, that Shanti Giri was being subjected to cruelty and deniand of dowiy is not wholfy reliabte. Therefore, fhe prosecution has failed to estabUsh the motive of the appeBants Le. non- fulfiBinent of demand of dowiy to commit the crune. The prosecution has not been able to estabUsh fhe crune under Sections 302 and 302/34 of the I.P.C. a^inst accused/appellants beyond reasonable doubt As far as fhe offcnce under section 498-A of the I.P.C. is concemed, for fhat also the evidences of P.W.l, P.W.2 P.W.3 are concemed, for the reasons lueatkined earUer, they are not whofly reUable and as has been held by the Apex Court ia fhe mattcr of Ctaaaaatli Pattnaik Vs. State of Orissa f (2002) 2 SCC 619} the evMence of P.W.l, P.W.2 and P.W.3 caitaot be pressed into the semce for establishing fhe crime under section 498-A of the I.P.C. as whatever stated by Shanti Giri in respect offtie accuscd/appeUant to thein, come under the defiiution of 'hearsay evidence'. As has been held by the Apex Court, because these witaesses have stated on fhe basia ofwhatever has beeu statcd to fhem by the deceased Shaad Gid, whjch M adinissible ia respect ofher deafh, as per section 32 (1) ofthe tadian Evidence Act. In the result, the conviction and sentence imposed upon fhe accused-appeUants for conuaission of the ofifence iinder l^iSSj —B;B!<FSi^?!-!?'ii';ei''i / i p 11 1 "^.' Thakur T 21. sections 302, 302/34 and 498-A of the I.P.C. caasmot be sustained and the same is liabte to be set aside. In fhe result, fhe ^>peal succeeds aad fhe conviction and sentences nnposed upon fhe acciised/appenaitts uitder Sections 302, 302 read wifh34 aiid 498-Aofffe I.P.C. are set aside and ffaey are afsquitted of fhe above Gharges and if fhe fine ainounthas alreadybecH deposited by fhe appeUants, fhe saiae be refunded to fhem. The appelteitts are Qn bafl. Their bafl bcmds are dfach^^d. Sd/- L.C.BHADOO Judge Sd/- Satish K. Agnihotri Judge