^ !»'- .-g's-i, i ^ss^- S 'tsaeef" HISH COURT OP CHHATTISSARH AT BILASPUR HON'BLE SHRI DHIREN A MISHRA, & HON'SLE SHRI T.P. SHARmA, JJ. Criminal Appeat No.1.28 of 2002 (Ifi Jsili SuSt&ay) &uddi Alias Manisha Bhave, d/o Shivch6r''tyi Shffv&, uged 18 ysi&^s r/o Pr'emna9a-, PS 6udiyari, ' ^aipur, Distt. Roiput--, C6 Versus State of Chhattisqar-h Itir'ouqh PS Sudiya'i, Distt. Raipur, Chhattisgai'h. Criminal Apbeal Under Section 374(2) CrP.C. Present; Shri Ajay Mishra, counsel for the appellant. Shri 0V. Suualre, beputy Sovernment Advocate for the Stafe. (31rt Jttnuary, 2008) The foliowina oral Judament of the Court was oassed bv This aDDeal is preferred aoainst the judoment of conviction and order- of sentence passed on 31.12.2001 by the 4 Additional Sessions Judae, Raipur in Sessions Trial No.243/X)01 whereby the appellant has been convicted under Section X)2 of The IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.SOQ/-, indefault of payment of fine to further under90 additional RI forone mon-rti. Case of t1ie prosecution.in brief, is that one DiliD AAeshram aave telephonic information to Assistant Sub Inscector K.L. Siriia that Sarata -)-- 'sife-: 2 gi"MS»r :K- Shsve BUife of Afvmd Bhav^ has sustained burn injuries. The information was rscorded in the daiiy dlary at serial number 772 and ther'eaf+er the Station House Officer oroceeded to tha scene of occur'rence wrfiere he learnt that the injured has been taten to the Mekahara hospital (Medical Collsge Hpspital, Raipurt by her- relative Anil AAeshrarn in burnt condition whereupon he went ot the hosp,(t'al where Anil Meshram informed him that his mother Jayawcnta MesHram cbmmunicated him that Sarata has sustained burn iniuries. On reachinq her house he found Snrala in a eompleteiy burnt condition, he enquired from Saraia about ttie cause whereuoon she informed him that her sister-in-taw, the present appetlant, set her on fire after pourino kerosene, on account of not makina bic/ismvl not doina domestic work at home. The information was recorded in the Dehati Nalish - Ex P/l. The deceased succumbed to the burn injuries at 14.44 hours on 15.05.20)l itseif. Durina the investitiation, inerq - Ex P/12 wos t'eaister'ed. inauest report - Ex.P/3 was prepared in presence of the witnesses and the MLC r-ecort of the deceased at the time of admission - Ex.P/4 was prepared by t)r (Smt) N Mukherjee, PW/2. FIR Ex.P/10 was re9'istered on the basis of Dehati Nalishi. Body of the deeeased was sent for Bostmortem and Dr Scnjay fajmar badu qave his report Ex.P/8. After comoletina investiqation chorqe-sheet was fiied in the Court of Judicial Mcmistrate First Class, Raipur who in turn comrnitted the case to the Court' of Sassions Judae and the same was raceived on trdnsfer by the Additional Sessions Jud9e, Raipur for trial. '^"'^S^S'^'::^- '--Sf- Lsarned counsel fpr the appellant submits that the conviction of the appellant is based on the alleged dying declaration made by the deceased before Anil Meshram PW/1 and Smt Sona Devi Ig Durqamata PW/7. Ditip Meshrarn. whogave information of the inddent to the Police immediately after the incident has not been examined. Anil AAeshram oave Dehati Naiishi Ex.P/t I'nentionina therein that he received information from his mother Jdyawanta Meshram about the inddent and his mother Jowawanta Meshrom alona tvith the deceased went to the hosbital together in a rickshow. However. JflMawanta Meshram has also not been examined durinq the trial nor her diar-y statement is availdale in the record. TTiere is no expianation from the prosecution for non-examining the two important witnesses who were in the company ef the deceased after- the incident. TTiere is material discrepancy in the statement of Anit Meshram and his diary statement Ex.D/1, similorly there are nnoterisl omissions in the diary statement of Ex.&/3 of witness Smt. Sona Devi @ Dur^amata PW/7. In thesa circumstances the triol Court was not iustified in basina the conviction of the aBOellant on the strenath of oral dvinq declaration by the deceased mcde before -1 Anit Meshram &PW-7 Smt Sona Devi @ buroamata. On the other hand Shri DK fiwalre, learned ©overnmentAdvocate for the St&te has supported the impuaned Judament and arqued that there is no reason to disbelieve the version of Anil Meshram PW/1 and Smt Sona Devi @ Duraamata *: PW/7. Both the witnesses have eateQorieallv stated that the deceased made statement before them •y" thst tha appeliant poijred kerosene and set her on fire. The omission rsferred to bv the counsei for the appellant is trivial in nature ond The same does not affect the credibility of these witnesses. Non-examination of Jayawanta AAeshram and DiliD Meshram is of no conseauence when there is credible and cooent evidence in the form of oral dyinq declaration of f^e deceased before the witnesses Anil Meshram Pw/1 and Smt Sona'Devi @ Du^amata PW/7. We have .heard learned counset for the porties, perused the record and the imDuqned judqment. Kojnamcha Sanha Ex.P/9, proved by Assistant Sub-Inspector PW/9. Investiaatina Officer has been recorded on the basis of teleohonic information recelved from t)itiD Meshram which mentlons that Saraia, wife of Arvind Bhave has sustained burn iniuries. On receiving this information the Investiqatinq Officer proceeded for the Dtace of the incident, however, by the time he reached the spot, the iryured has alreadv been shifted to the Hosoital bv Anil Meshram PW/1 and his niother" Jovawantc Meshram. Dehati Nalishi Ex.P/1 was taken down on the information cf Anil Me^iram PW/1. From Derusal of Rojnamcha Sanha Ex.P/9 we observed that there is no mention about the cause of iniurv sustained bv deceosed Sarala. PW/1 Anil AAeshram hcs oroved the document Ex.P/1 - Dehati Nalish and stated that on the informat'ion of his mother Javawanta Meshram that Sdrata has been set on fire. he reached her house and on enquiry Sarala informed him that the appellant has s^t her on fire. He 'eas.ssBsf's^sss. •^ss^^ ff'ii^- I! "^. ^vrfy "iitt..jL.^' SSSSf .---s:—.^.;:-.^ tcok Sarsia to the M?kahar'a hospital with his mother on a rickshsw. SeveraS psrsons of the vicinity namelv. Sonabai. Surendra Shrivcistava snd other-s had alreadv reached the house of the deceased and at the time when Sarala informed that her sister-in-law had set her on fire thev were also Dre^ent. In oara - 4 of his evidence. he has stated that Sarala informed his mothier tliat the aopeliant used to harass her for not takina part in domestic raork and therefore, she set her on fire. In Para-10 of his cross examination, he has admitted that the deceassd did not inform anythinq else exeept that the apoellont had set her on fire and he has contradicted his diary statement on this count (Ex.P/l & D/l). He has also admitted that the deceased was accofflDanied bv his mother in a rickshow, whereas he followed them on his bicycle. PW/7 Smt Sona Devi @ Duraamata has aiso stated that on the date of incident at about 1 o' clock in the ofternoon while she wcs offerin9 proyer in her house, she heard screamin9; she came out of her house and saw Sarala burnina: she extinguished the fire with her honds in the Drocesa. she oot her hands and sari burnt. On enauirv. Scn'ala informed that Suddi - present appellant set her on fire. Sister of Sarala and Anil Meshram took the deceased to the Mekahea'a Hospitat for treatment. In Dor'a-4 she has claimed that she was sittina before the house with deceased Saraia for about 3 hours and till that time she wos slive and nobody came there during that period. Omission r-egar'din9 hearina screams in her diary stdtement Ex.D/3 has been pointed out in psra -10. She further stated that ap&ellant Suddi, her mo'ther and two -<—•-——. _' •i^^^.s'a^. ;:^is. "^ 6 xssW!sSgt9 sisters were s+andina in the house of Seirala; thev were only standina and did not make any attempt to take the deceased to tiie hospitQl and Arvind Bhave took her to the hospita! in a rickshow who came ofter 1 ^ hour of the incident. Prom the ctose scrutinv of the evidence of above witnesses we observe that there is a materi^l varionce between their statements re9tn'dina the ceraons who reache'd first to the plesce of incident and also about the time and .the person by uihom deceased was taken to the hosoital for treatment. There is material omission in the diary statement of Anil Meshram re9ardin9 reasons for committing offenee by the appellant. Similarly, the version of PW/7 is hi9hly improbable and unrealistic. She has aiso made imDrovement in her statement before the Court that she reached after hearina the screams and in the diory statement she has stated that after hearing the ^creams she came out of the house and som the deceased in a burnina condition. In view of the above discrepancies, we ore of the considersd opinion that it would not be safe to bcee the conviction of the appellant on the strength of uncorroborated testimonv of these witnesses. We ore a!so amazed to observe that Dilip Meshram who is ttie first person to inform the poiice about the incident has not been examined. Mother of Anii Meshram PW/1 and sister of the deceased nameh^ Jayawanta Meshrom. who informed Anit Meshram PW/1 about the incident and before uriiom the deceased allegeifly made dyina declaration and yave (•eason for commission of offence has not been examined. LtS»~";;...„., ^s^ Non-exomination of ajmve two witnesses creates doubt about the orosecution case and in these circumstances. learned trial Court was not iustified in basina the conviction of the oooellant on the basis of alieqed dvino dectar'ation made before PW/l & PW/7. In the resutt. the imDugned iudament can not be sustained and the appellant is entitted for gfenefit of doubt. Consequently, the appeal is allowed and the impu9ned'judament is set aside. The appellant is acauitted of the above charae and she be set at libertv forthwith if not reouired in anv other case. pQdma Sd/- DHIRENDRA MISHRA Judge Judse