.£ c\ c\' vo M!ap-rr';:":''::"':;.':;;:''?"''" flWon6e^(,.ti"''"ai) IN THE HTGH COURI OF .rUDIO.An.TRIP AT JABALPUR. Orlalnal APPeftl MO. S^&& sf 2000. .^"A, APPEI.LANT 'u*'^-^ €-< y^ i.vssy .^ <^ -\, Ksanta prasad S/o Suftderlal Mourya' ag-ed about 26 years, R/o Tlkrapara, P.S.City Kotwali, Bllaspur, Tahsil and Blst.t. .ii&bd-sur, M.P. ^l/e^^r VT.'R'-ilTS RESPONBiSSI; Stats of M&'^liya pradssh, through st&tloa HOBB® Qf"to«r, Olty Kotwall, Bllaspur, M.P. aRIMINAL APFSM. UNSBR S'SCTIC"? •;74(2) 01'' "'HB cous ov CRrerasL PROCSD'JR^. =. XI-HC-22 W^T^tT R-ii* .an^r sbt)it>(rfiH SI'SrSg^- 3;^-*ii«iyi,aiTn<-i'i<s, R(Mi«y 3T1^?T HIICTI aiiicn_.53"^'^fr>>N" Z6°/w W"""""""""ftl 200 RM SflSST OTdTgT (TfttT Divisioa Bench: Hoa'ble Sbrl Jastice L.fi.Bhad Hoa'ble Shri Justice V.K. Shr 26/09/2006 °ni<<tci41-i iwn\ fr tecA <R|WK ^a.rf^iTsn^T oo. S vastacva^J, Sbri Viinlesh Bajpai, cbutisel for the appeUaat. •^ , . • Shri G.D. Vaswani, Adftitional PubUc Prosecutor wifh. Shri U.K.S Chandel, Panel Lawyerfii Oral judgment dictated o] Per L.C^BhadQO, J. Tbis appeal directed aiid order of seutence dated 24 wherebv learaed Additlotial accused/appellaut guU1y for Section 302 of the IPC, convi] ^rtheState. ti Dais. p.gainst the judgment of conviction \112/1999 passed by Ist Addltioiial Sessions Judge, Bitaspur, i|a Sessions Trial No. 267/1999 pessions Judge after holding fh.e commission of fh.e offence iinder ;ted aad senteaced him to undergo imprisottment for life and to p|ay a fine of Rs.100/-, ia default of paynient of fine to further und^o R.I. for one inonth. The case of the prosecu|ion, in brief, is that Asha Mourya (siace deceased) was inarried ^o accused/appeUant Kamta Prasad iu fhe year 1993. After the m^rris^e, accused used to haiass and subjeeted to cruelty hiswife] day i.e., 03/05/1999 accused| her parents ou which deceased| her parents wiU give inoney to| |forbruigmig dowry. On fhe fatefiil ^sked hls wife to bruig money fi-om Asha Mourya repUed tbat how long him, now, there is no money, On (^y^) XI-HC-22 SD^rqiT R-fi+sn^T shtf ulga ^:i, :^£;'i*^^«.i SlSi S?2:;?^ ;R^2;;?<-3?.' '-""•"^ 3^?S.IFTRW, t9Tn*f'l$, Iqclltfy 3ll^yiM5|c»» 11*1(11 shllth ••••••••••••••••••••• g^ 200 f^s;""""""" sn^r SRIIW Bi?cT - "2-- iEtforcliation M|3iuya hearing this, accused/appeUs|nt body of Asha Moutya set her| Mourya received - the daughter, brofher ofAsha wifh aaother brother Jogeddr( They saiw fhat Asha Mour^ condition. In fhe meaatiin^ namely Sumitra Bai aud her Accused started abusuig s): Sumitra Bai and pushed her| They iminediately took Asha ^ aad got her admitted in fhe infonaed fhat the inoming aad beating her. accused, he set her on fire matter was reported by (PW/3) ia the PoUce Station| dav at about 11.20 a.m. Oi| Officer, PS: City Kotarali, under Ex.P/ 16, reached ttie Magistrate for recording fhc the body of Asha Moiuya Executive M^istrate - Shyai|i the dyiag declaration un^ Moiuya were exaioined ia q accused/ aiJpeUant ailid broftter <ihi<<F«41-<ii'KiTfffecfl'iRi^K ^3ri^T311^?T after poiuiug keroseae oU on fhe on fire, When the parente of Asha regardiag bunung of their namely Kishore (PW/3) along b weat to the bouse of Asha Mourva. Ija. 'was tymg in a room ia bumt ), materaal grand-mother of Asha Ifather SIuiraiu also reached therc. jad beating grand-iaother namcty as a result ofwluch sbe fell down. ]4oiuya to the hospital iu a rickshaw fiospital. On enquiry, Asha Mourya was deniandmg laoney siuce ])n reftisat to accede the deinaad of said that he will murder her. The of the deceased naraely Kishore Cily KotwaU, BUaspur on the same receiviug fhis report, Station House the first iaforiaation report (lospital aud requested the Executive (jlying decJaration of Asha Mouiya as burnt up to 90% aad ia tum Sunder Dubey (PW/11) recorded |er Ex.P/15. The uijuries of Asha tharam hosuital bv Dr. Viuiala Jain ('f^y^-) re^istered Was XI-HC-22 sn^iqiT f^iwan^T shlit) tlfltT iSSK-WSSBSSf 1^^^.,.^ ^sg'^raRpr, »iflu'i6,Riciwy 3ll^l Mach IIKMI sniitn ••••••••••••••••••••• ^]- 200 lcl<>«&""" 31I^?T TOtTW Sfef -^ tatioki dilso mjluy tbfe (PW/8) aad after examinatio|a (Ex.P/11). SumiteaBal was Jaiu aad she prepared her iajli Asha Mourya succuxnbed; t<^ 05/05/1999. Therefore, notice (Ex.P/1 & P2) to the (Ex.P/3) offhe body of Aslia| of place of occurrence (Ex,' Ex.P/5 seized one plastic mateh box, one half biunt sineU of kerosene oil was deceased. TIie postmorteffl conducted tiy Dr. Saatosh Rao and they prepared the wbich fhey found fhat almo^t Mouiya were biimt aad opin^c result of severe aad extensive shock aad septicexnia, inode ticket ofAsha Mourya was under Ex.P/17. The seized Laboratory, Sagar under Ex.1 was received. After comptetion of the | in fhe Court of Chief Judicistt opineld PV •ihl<<tc|if1-1 KIHC]Tfffetfl<Rl<^l< ^TSTl^tT.STI^r sbe prepared fhe tujuiy report inedicaUy exaiaiued by Dr. Vtmla report (ExP/9). In the ineaatixae, bum injuries in the hospital on Investigating Offlcer after giviag ppaachas, prepared inquest report |Mourya. He also prepared site plan The Investigating OfGcer under E^tppt' of kerosene oU, biirat stick of ;, pctticoat aad match box, The sjnatmg fi'om. the bumt clothes of fhe t>f the body of Asha Mourya was Misbra(PW/7) aad Dr. Sustula Ipostmorteni report vide Ex.P/7 ia i^t aB the parts of the body of Asha fhat fhe cause of deatfa was as a ^mte-niorteiti bum iajuries leadiag to cjf deafh was asphyxia. TIie bed head iato possession from the hospital were sent to Forensic Scieace 15 fi-omwhere fhe report (Ex.P/20) ;,P/|4), fctept' blchise, emEbiattas Kilunar tatten al-ticles iavesti^ation, charge-shcet was ffied Magistrate, Bilaspur, who ia tum (^y^) XI-HC-22 an^TW f^fwan^r stili'h «(sfl ^ss^1" s^'srpn^ra', t9Tntt'i<o, RMiMy 3Ti^?r <<;<<»l tiwwi s*>Hre> W^ 200 fcTG^; sn^r ?R[TW nfer -^,- order coinnutted the case to the received fhe case for trial. The urosecution in accused exainined thirteen wf was recoided under Sectioa 3| fhe inaterial appearmg agaiuj and stated fhat he is ituiocentl Learaed Sessions Judj Additional PubUc Prosecut<tr accused/appellaat, convicte^ mentioned ia para one ofthis We have heard leamedl judgment offtie trial Coiirt The whole case rests there is no direct evidence accused based on the law by HonTile the Apex Cliatteriee vs. State ofW.B.J Ses^ions Judge, Bflaspur, fmm. where he to estabUsh the chai^e agaiast •ttnesses. Statement of fhe accused l|13 ofthe Cr.P.C. ia which he denied ^t Aim in fhe prosecution evidence laid down the law relatiag evidence as under ; - 'In a case based drcurrvstances fro\ !'s to be drawn\ estdblished but «tii<<f<-i41-< '<iiiiTiftec^<lai+<ii< ^a.rf^iTan^r ;e, after hearing the arguinents of and leamed counsel for the and sentenced the accused as |udginent. counsel for fhe parties, perused fhe evidence available on record. OBI the circunistantial evidence and fhis case. In order to convict aa evidence, as per the setfled in the niatter of DIiaaaafoy reported in (19941 2 SCC 220, has anH nb. circuulstanfial Qourt to appreciation of circiunstantial |on circumstan'tial evidenoe, the t^nwhich the condusion of guilt have not only to be fully aJlso that att the circumstcinces so (<ft^^fe^) XI-HC-22 S^^IPTRW, ®Tfl<rl'16,IqWWy 311^1 Ms<<h HWifl 5t)tiit») ••••••••••••••••"••• gq' 200 ^z a:n^T?>T f?:iw3n^r sh1 Bl?(f shHlf SI^TBRTTWBfBtT -*i- <*ll'i|Fri41-< t<|tlci1'ffte<^t'<|a|<<il< ^srf^ITSTI^T SieRiB* •-.<-s -^ established shouW consistent only wi} the aocused capable of •<!. hypothesis except cha.in ofthe to leave any consistent with (N needs no circumstances court oan form tl^ more serious the care tdken to siispidon takes th^ be ofa condtisive nature cmd ]h the hypothesis ofihe guilt of arcwnstances should not be explcdned by any other ffhe guiJf of the accused cmd Ihe ntust be so complete as not ground. for the belief ^ inrwcerwe of the wxused. It thdt Jegally established not merely indigncition of the ^B basis of conviclion and the (jrinze, tfw greater shauld be the ^orutinize the evidence lest i^place ofproof.' Thoife beirig evideWse realsona&te remnW.er amS prosecupon In t1iis case the aeaiast the accused/appeUaat has tried to estabUsh chai^e on fhe followine cirouinstances, (i) Accused after thej marriage started demaadiag dowry fix>in his wife and| for bringing the dovray, he used to harass and subje4ted to cruelty Asha Mourya. (ii) Deceased gave dyjtag declaration (Ex.P/ 15) before the Executive Magistt^te - S.S. Dubey (PW/ 11). (iii) Deceased gave or^l dying declaration before PW/9 aad PW/12. Cft^y^) XI-HC-22 'S^ffWK^!, »^l<rl'li?,(qdltty 3ll^?f4aw timni sn*<I<*> ••••••••••••••••••••• ^^ 200 ^^. sn^rw f^TRiSn^T ^hW^ ^f?cT sn^TSCTWflfer -&- 'bl^fcf'ifl-f WRff if tscS t(»l+dl( . ^.srf^iTa.n^T (iv) Deceased received the accused aud d the bum uyiu-ies at the residence of mell ofkerosene oil was found ia the bumt clothes oftijie deceased forwhlch no explanation bas been offered l(y the accused that how the deceased received the byra mjunes. As far as the first cit?cumstance is conceraed, Shriram (PW/2) father of the deceasejd has stated fhat just after 5 - 6 fflonfhs of niarriage of accu^ed aad deceased, accused started deiuauding dowiy aad for t^iat purpose he used to beat his daughter. Wheaever his dau^ his house, she used to tell accused. Once she reported] ;hter Asha Mourya used to ceiue to fhem about fhe befaaviour of the fhe matter to PoUce Station; City KotwaB regarding beatmg give|a by fhe accused, fherefore, fhe case was filed against the accuj Paachayat of their coauuuhi] decided to give Rs.SOOO/- to behaviour attd ultimately on accused denianded money ani sed regandiag dowiy. Thereafiter y was convened ia which it was the accused and 1ae assured fhat liere-iu-afiter he will not har^ss or subject to cruelly to Asha Mouiya, but the accused did n|ot stop and again started the same ^he fateful day i.e., 03/05/1999, |1 on refiisal by Asba Mouiya she was set on fire. Kishorc (PW/|3), brother of the deceased, who is son of Shriram (PW/2), has al; KaUu (PW/9) who belongs to stated that once Paachayatw ^o corroborated the above evidence. the coimnuruly of Mourya, has ^s convened in his presence and m (ifli^w) XI-HC-22 sn^r^r f^iwsn^r Stllit) <rf?(T 3:sg'airaRra, »T(1wii§,(siyifl^ sn^?r 45(<fe HI*1CTI SKtrai V^ 200 1°1<>< sn^Ts^gRRgfef .-)- that Pauchayat Shriraai (PW( Baadhu Mourya (PW/12) w^ cotumuiu^ has also stated tijiat accused aad deceased, ,PancItayat settle the matter. Therefoi|e, estabUshed that fhe accuse<l cruelly to Asha .Mourya for iacident and fhis fact has I witnesses offhe conuaunitv o< ctfCTilmS Execultive As far as second (PW/11), who was the Bilaspiir, has stated that on C House Officer, PS: City Kotws of Asha Mourya who was hospital, Bilaspur and stated Dharam Hospital, Bilaspur. Mourya ia questions aud aas A and fhe statement is Ex.P/ B, and Doctor appeaded fhe c at C to C. In the dying husbaad set her on fire aftje; Perusal ofdyiag declaration (E accused dexnanded dowiy on long her parents wffl give dcn^ry ^iT4^'l41*l HTTRTf ^T te^ ^^dK ^isri^tran^T '/2) gave Rs.5000/- to fhe accused. pio was a Chairxnan of the Mouiya th.ere was a dispute belween the was convened aad he tried to fi'bm fhe above evidence, it is used to harass and subjected t6 |l>nnging dowiy before tbe date of been proved by the iudependent 'the accused and deceas6d. Ille mstance is conceraed, S.S. Dubey Magistrate ia fhe year 1999 ia 3/05/1999 on the request of Station |i, he.recbrded the dying declaration adnutted ia btim unit of Dharain Ehat she was admitted in bum unit of recorded tfae stateiaent of Asha yersfonn. Doctorcertt&cateisAto 15, which bears his signature at B to ^rti&cate below fhe dyiag declaration |-ation,Asha Mouiya stated that her pouru^ kcroseae oil on her body. IX.P. 15) shows that on fhe fateful day |iyhich Asha Mouiya repUed 'fhat how to hiai, now there is uo money, declslration (if^^r) M XI-HC-22 3T[^T^>T f^iwsn^r OTWtri^ \yW^3gsS^ 3:s?-:?rp(Rpr, »iflt<'i<o,Rtfliyy 3TI^?T TSW tnHWT sH*ntft V^ 200 f^% sn^Te'KiiWHf^r -•%- on this accused set her oa kerosene oil on her bcxlv. °ni<<ffi<fl-f iiHf]T^'fe<^t'<(Si«i< ^iSff^TSfI^T fire wifh mateh box after pouring On this dving declaration Doctor's certificate is also thcre regardi|ag ttie coudition ofAsha Mouiya for giving the statement. In t(ie ci'oss examiuation. of Executive "• 1 : Magistrate S.S. Dubey (PW;! 11), defence has not been able to •^ eUcit aay circumstaace where^y • it cao. be mferred fhat fhe dying declaration of fhe deceased ^as not voluntarily, true or the same was out come of tutoriag. corroborated by the evidence <j Kihore (PW/3). As far as dyiag oral This dying declaratioii has been ffa1;her-Shriram(PW/2) and brother declaration is concemed, Shrirain (PW/2) has stated that on 03^05/1999, when he was workiag in the kitehen garden at about p -10 a.in., his servant Gayapasad cam.e aad iaformed theia altout the incident, on which his son Kishore aad nephew Jogend^a immediately left to the place of occurrence aud he also went corroborated by Kishore (PW/^ declaration was uiade befori to the hoyse of Kamta Prasad, saw that Asba Mouiya was lyiag a^.d ftiey were not atlowed to go inside. In fhe meantime, his son Kis9ore and brother-in-law Kallu entered tfae room. aud Asha Mourya -^as taken out of tlie rooin she was taken to fhe bospital in a ricpsshaw. On enquiry, Asha Mourya disclosed fhaf the accused a^ked her to brmg inoney aad on her refusal, he has set her on trc. The above evidence has been B wb.6 has also stated tliat oral dying him. PW/2 Shriram and PW/3 (^y^) XI-HC-22 SI^TT^ f^IWW^T Sbli* flf?(T 'SW •^IWId'4, ®Tf1ti'is,Iqdwy 3TT^?T q?«h *ITHC(Tai*l|ctl V^ 200 ^^. an^TTOTRKflf^ -£F- Kishorc who are fafher and rushed to the place of occurr^nce the hospital, therefore, bein^ thein that she was set on fird ff. fu1fi11ing his deniaad of dowrji' defence has not been able tbl make fheir evidence untrustwil PW/9-KaUu and PW/l^ that fhe deceased made oral d1 accused was demauding mon^ set her on fire. Therefore, fixlni Kishore (PW/3), Kallu (PW/< estabUshed that deceased gav^ regaiding setting her on fire bj ofl on her body. circudis anld As far as fourth evidence of FW/ 2 Shriram Asha Mouiya was lyiug in the been disputed by fhe accu hospital by her father (PW/2) bumt clothes of the deceased investi^atmg OfiBcer under E; plastic kuppi aud mateh box Sagar, ftom. where report (Es +i'iiF<-i41-i t<it<cfi'fftei^l'<Ri'K.i< ^i Slf^IT 3I1^?T rother of the deceased inunediatelv and they themselves took her to fafher and brother, sbe disclosed by fhe accused on account of non- Ifl fheir cross examination also •eUcit aay ciTcumstance ia order to rthy dr imreUable. BEtudhu Mouiya bave also stated Ing declaration before'-thein that fhe y fium her aud on her refusal, he the evidence of Shriram (PW/2), i), Bandliu Momya (PW/12), it is oral dyulg declaration before thein the accused after pourmg kerosene ^iistance is concemed, as per the PW/3 Kishore, fhe bumt body of Riouse 6f fhe accused which has not ^ed, firoja there she was taken fo ^nd brother (PW/3)Kishore. Hatf were taken iuto possession by the ^.P/5 along with other articles i.e. These articles were sent to FSL, I.P/20) was received. As per PSL (ift^^f^) XI-HC-22 sn^r^r R-fi+sn^r St>H Hf?<T •EshHisgseiapg raju /, .^^^ ''<>-'%'% /K .^ ^^ 3:s?^irai?ra', atfl+i'is, l^cii«y Sll^i isxh II*IMI snNioi ••••••••••••••••••••• ^ 200 an^rgRrraT^riN -10- report, kerosene was present whlch is evident from Ex.P/q fhe report that smeU of kero^ clothes of the deceased au4 explaaation that how ;the fherefore, ttus circumstance tin ffae burat clothes of the deceased and it has also been inentioned ia sene was einanating froia the bumt the accused has not given any deceased xeceived bum iujuries, a}so goes aysaB.st the accused. For fhe foregouig reaso^ have been estabUshed by tUe in order to connect the accul setting Asha Mouaya on fire Therefore, ia view of the al| effect of aU the circumstance^ drawn to tlie efiect fhat the ac question, who set her on fir^ body, Therefore, we do fin^ judgment of the trial Courtj under Section 302 oftfae IPC. la fhe result, the appeal Sd/- L.C.BHADOO Judge <!bl^Icf41.f WRff ff t3F& rfsRSR ^i ari^tT 3fn^r LS, all the above foiir circumstances Iprosecutioa by impeccable evidence i^ed wifbl the crime id" question i.e., aJijter pourmg kerosene oil oa hcr body. |ove circumstaaces, fhe cumulati.ve only irresistible conclusion can be 'used was fhe author offhe criine in after pouring kerosene offl on her ^l any iUegaUty or infirmity ia the convictmg the accused/appeUaat Ifails and same is dianussed. Sd//- V.K.Shrivastava Judge (<N^ir) '^