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2012 DIGILAW 200 (CHH)

SUBHAN ALI v. STATE OF C. G.

2012-08-06

RADHE SHYAM SHARMA, SUNIL KUMAR SINHA

body2012
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 10th May, 2012, passed in Sessions Trial No. 161/2011 by the 3rd Additional Sessions Judge, Bilaspur (CG). By the impugned judgment, the appellant has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1000/- with default sentence of additional imprisonment for 2 months. 2. The facts, briefly stated, are as under:- Deceased-Kamla Bai, her husband-Ramchandra (PW-1) and Rina Bai (PW-2), were residing together in a hut near Railway station - Jairamnagar. On 29.7.2011, at about 2.30 pm, the deceased received 87% burn injuries. She was taken to Masturi Hospital by her husband, but he was advised to take her to CIMS Hospital, Bilaspur. The deceased, therefore, was taken to CIMS, Bilaspur. She was admitted and treated there. However, she died during the course of treatment at 6.30 am on 31.7.2011. The case of the prosecution is that the deceased had illicit relations with the appellant. On the date of incident, the appellant was present in her house. Husband of the deceased namely- Ramchandra (PW1) had gone to market. Daughter of the deceased namely-Rina Bai (PW2) was playing near the house. She heard cries from inside the house. When she went there, she found that her mother was burning and the appellant was present there. She informed the incident to her father Ramchandra (PW-1). By that time, the deceased was taken by the appellant to Railway station. There, husband of the deceased met her and asked as to how it happened, on which, the deceased made oral dying declaration that the appellant wanted to take her with him, and when she denied, he put her on fire by pouring kerosene on her body. The said oral dying declaration was also heard by Rina Bai (PW-2). The further case of the prosecution is that while the deceased was being taken to the Railway station, she was accompanied by the appellant, and 2 neighbours of the deceased namely-Sevakram Sahu (PW-6) and Durga Bai (PW-7), heard that the deceased was shouting that the appellant had put her on fire. The further case of the prosecution is that while the deceased was being taken to the Railway station, she was accompanied by the appellant, and 2 neighbours of the deceased namely-Sevakram Sahu (PW-6) and Durga Bai (PW-7), heard that the deceased was shouting that the appellant had put her on fire. Though the deceased remained alive for more than 2 days, her written dying declaration was not recorded and the case of the prosecution was based on the oral dying declaration made before husband and daughter, and the circumstance of shouting of the deceased heard by 2 neighbours while she was being taken to Hospital, which was also taken as oral dying declaration of the deceased. The husband and daughter .of the deceased turned hostile and the learned Sessions Judge did not rely on their testimonies and the oral dying declaration made before them was not held to be proved. The 2 neighbours namely - Sevakram Sanu (PW6) and Durga Bai (PW-7), also turned hostile. In their examinations-in-chief, they completely denied the case of the prosecution, however, in cross-examination, they admitted to give some portions of their statements, by which, they had stated that the deceased was shouting in the above manner. The learned Sessions Judge relied on the testimonies of Sevakram Sahu (PW-6) and Durga Bai (PW-7) and held that since they have admitted to give statement before the Police under Section 161 Cr.P.C. that the deceased was shouting that she was burnt by the appellant, therefore, the appellant was liable for punishment under Section 302 IPC. 3. Mr. D.K. Vishwakarma, learned counsel appearing on behalf of appellant argued that except the Police witnesses and the Doctor, almost all other witnesses have turned hostile; the husband and daughter of the deceased have also turned hostile and they did not support the case of the prosecution; the 2 witnesses of hearing shouting of the deceased had also turned hostile and they have also not supported the case of the prosecution; these witnesses are wholly unreliable and the conviction based on their admissions regarding giving statements to the Police implicating the appellant was not justified. 4. On the other hand, Mr. N.K. Mehta, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. 4. On the other hand, Mr. N.K. Mehta, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard the learned counsel for the parties at length and have also perused the records of the Sessions case. 6. Admittedly, there is no direct evidence in this case and the case of the prosecution is based on circumstantial evidence. In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances so established should be consistent only with the hypothesis of guilt of the accused. The circumstances established against the accused should be of conclusive nature and tendency and they should not be capable of being explained and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and it must show that in all human probability the act must have been done by the accused. (See Dhananjoy Chhatterjee Vs. State of WB. (1994) 2 SCC 22, Bodhi Raj alias Bodha and others Vs. State of Jammu and Kashmir AIR 2002 SC 3164 and State of Goa Vs. Sanjay Thakaran & anr. 2007 (4) SBR 321). 7. In the instant case, the prosecution came with the circumstances of 2 oral dying declarations. The first was made at Railway station before Ramchandra (PW-1) and Rina Bai (PW-2). Ramchandra (PW-1) is husband and Rina Bai (PW-2) is daughter of the deceased. She was aged about 12 years. Both the witnesses have turned hostile and they did not depose that the deceased made oral dying declaration before them that she was put to fire by the appellant. Ramchandra (PW-1) was not present at the time of the incident. Rina Bai (PW-2) was playing outside the house at the time of the incident. She deposed that when she heard cries from her house, she went there and found her mother in burning condition. She did not depose that her mother told that she was put to fire by the appellant. Even she did not depose about the presence of the appellant in their house at the time of the incident. She deposed that when she heard cries from her house, she went there and found her mother in burning condition. She did not depose that her mother told that she was put to fire by the appellant. Even she did not depose about the presence of the appellant in their house at the time of the incident. Ramchandra (PW-1) and Rina Bai (PW-2) were put to lengthy cross-examinations by the Public Prosecutor, but nothing material could be elicited in their cross-examinations, which may be said to be incriminating against the appellant. Therefore, the circumstance of oral dying declaration before the husband and daughter was not proved. 8. Now, we shall consider the evidence of Sevakram Sahu (PW-6) and Durga Bai (PW-7). 9. Sevakram (PW-6) deposed that the appellant was known to him. He was also knowing the deceased, but he does not know about the incident. He heard in the Mahalia that the deceased had sustained bum injuries. On the fateful day, he saw that the appellant was taking the deceased towards Hospital by covering her body by a Chadar. The deceased was saying something, but he could not hear as to what she was saying. He was declared hostile and was cross-examined by the Public Prosecutor. He completely denied to state those portions of his 161 Cr.P.C. statement (Ex.P/18), which were incrimination against the appellant. 10. Durga Bai (PW-7) deposed that she knows the appellant. The appellant used to visit her fruit shop, therefore, she knows him. She does not know the deceased and she does not know about the incident. This is her entire examination-in-chief. She was also declared hostile by the Public Prosecutor and was permitted to be cross-examined. In cross-examination she admitted to give statement (Ex.P/19) before the Police and she also admitted the portions of Ex.P/19, in which, she had stated that the deceased was shouting that she was burnt by the appellant. In further cross-examination by the defence, in para 5, she admitted in clear words that it is incorrect to say that deceased - Kamla Bai had spoken something. The learned Sessions Judge has relied on the testimonies of Sevakram Sahu (PW-6) and Durga Bai (PW-7). These witnesses are hostile witnesses. In further cross-examination by the defence, in para 5, she admitted in clear words that it is incorrect to say that deceased - Kamla Bai had spoken something. The learned Sessions Judge has relied on the testimonies of Sevakram Sahu (PW-6) and Durga Bai (PW-7). These witnesses are hostile witnesses. From the evidence of these witnesses, though it was established that they had seen the appellant taking the deceased to Hospital, but it was not established that at that time, the deceased was shouting that the appellant had caused bum injuries to her. As nothing in this regard was deposed by Sevakram Sahu (PW-6) and Durga Bai (PW-7) Durga Bai (PW7) admitted in cross-examination in para 5 that it is incorrect to say that the deceased spoke something at that time. 11. Though the evidence of hostile witnesses is not to be totally wiped out as part of their evidence can be taken into consideration, which supports the case of prosecution, but in the instant case, even if we consider the portions of their evidence supporting the prosecution, that too do not establish beyond all reasonable doubts that the deceased was shouting taking the name of the appellant that she was put to fire by the appellant. We are of the view that the evidence of above 2 hostile witnesses was not sufficient to hold that the deceased made oral dying declaration in the above manner while she was being taken to the Hospital. For the above reasons, the judgment and finding in this regard, cannot be sustained. 12. For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 302 IPC are set aside. The appellant is acquitted of the charges framed against him. It is stated that the appellant is in jail. He be released forthwith, if not required in any other case. Appeal Allowed.