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2013 Supreme(Chh) 246
HIGH COURT OF CHHATTISGARH, BILASPUR
Shri Yatindra Singh, C.J. & Shri Sunil Kumar Sinha, J.
AJAY KUMAR AGRAWAL & OTHERS - Appellants
Vs.
STATE OF M.P. (NOW C.G.) - Respondent
Criminal Appeal No. 1478 of 1996,
Decided on : 26-8-2013
Mr. Manish Datt, Sr. Advocate with Mr. Manoj Paranjpe, Mr. Pushpendra Dubey and Mrs. Renu Kochar, Advocates, for the Appellants.
Mr. Ravindra Agrawal, Panel Lawyer, for the State.
Headnote:
Indian Penal Code, 1860 – Section 302, 34 and 498 – Evidence Act – Section 106 – Deceased – Criminal Jurisprudence – Demand of Dowry – Case of the prosecution is that deceased was present in her bed-room firstly committed to death by throttling and thereafter her dead body was put to fire on her bed after pouring kerosene – Case of prosecution is that deceased was being treated with cruelty on account of demand of dowry by accused persons and ultimately her murder was committed by them in fateful night returned in night door of his house was closed from inside which was opened by his father talked with his father who was present in ground floor and thereafter he went to second floor in his bed-room called his wife at door of his bed-room – When no reply was given he knocked door felt that door was heated made cries and called his parents his younger brother-Sanjay Kumar rushed to his room – Held, Husband tried to explanation that when wife was sleeping on bed fire caught quilt and she died on account of the bum injuries sustained by her explanation was also false because in postmortem examination carbon particles were not found in nostrils trachea or respiratory system of deceased dead body of deceased was found in room of appellant situated in second floor of house where only two persons were residing separately husband had lodged merg intimation to mentioned in merg intimation that all the doors and windows of room were closed which rules out possibility of intervention of any other person – We confirm conviction and sentences awarded to Ajay Kumar with short modification that he shall stand convicted conviction and sentences awarded to other appellants no evidence on record to show that either they had physically participated in commission of murder of deceased or they had shared common intention for commission of her murder cannot be held liable for punishment principles enumerated above – However evidence led against them would show that they also gave false explanation to neighbours that incident took place on account of shot-circuit and in that manner they tried to mislead them – Kerosene was used for burning deceased and container of kerosene was hidden and it was seized on discovery statements and Ajay Kumar – Appeal Partly Allowed.
As per Hon'ble Shri Sunil Kumar Sinha, J. :-
1. This appeal is directed against the judgment dated 29th of August, 1996 passed in Sessions Trial No. 114/95 by the Third Additional Sessions Judge, Raipur. By the impugned judgment, the appellants have been convicted u/Ss 302/34 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/- with default sentence of R.I. for 3 months.
2. The facts, briefly stated, are as under :-
2.1 Ajay Kumar Agrawal (A-1) was married to Santosh Agrawal (deceased) on 8.2.1992. After the marriage, the deceased was residing with her husband- Ajay Kumar Agrawal (A-1), brother-in-law/Dewar- Sanjay Kumar Agrawal (A-2), mother-in-law Imrati Devi (A-3) and father-in-law - Satyanarayan Agrawal (A-4). Smt. Saroj (A-5) was married sister-in-law (Nand) of the deceased who was residing separately.
2.2 The case of the prosecution is that on 19.12.1994 at about 11.30 p.m., the deceased was present in her bed-room. She was firstly committed to death by throttling and thereafter her dead body was put to fire on her bed after pouring kerosene. The further case of the prosecution is that the deceased was being treated with cruelty on account of demand of dowry by accused persons and ultimately her murder was committed by them in the fateful night.
2.3 The accused persons (A-l to A-5) were charged with the offences punishable u/Ss 302/34 IPC. Alternatively, they were also charged with the offences punishable u/Ss 304-B and 498-A IPC. The sister-in- law (A-5) was acquitted of all the charges framed against her. The other accused persons (A-1 to A-4) were also acquitted of the charges framed u/Ss 304-B and 498-A IPC. However, they were convicted u/Ss 302/34 IPC.
2.4 On 20.12.1994 at about 1.00 hours, Ajay Kumar (A-1) lodged merg intimation (Ex.-P/36) in police station Nevra that on 19.12.1994 at about 7.00 a.m., he had gone to Gondiya (Maharashtra). He returned in the night at about 11.30 p.m. The door of his house was closed from inside which was opened by his father (A-4). Firstly, he talked with his father, who was present in the ground floor and thereafter he went to the second floor in his bed-room. He called his wife at the door of his bed-room. When no reply was given, he knocked the door. He felt that the door was heated. He made cries and called his parents (A-3 and A-4). He also called his neighbour- Brijlal Sahu (PW-5). His parents (A-3 and A-4) and his younger brother-Sanjay Kumar (A-2) all rushed to his room. They got opened the door by kick and saw that the matrix put on the cot was burning. Windows of the room were closed. By torchlight they saw that his wife- Santosh Agrawal (deceased) was lying burnt on the cot. She has already died.
2.5 The Investigating Officer reached to the place of occurrence, gave notice to the Panchas and prepared inquest (Ex.-P/4) on the dead body of the deceased. Smell of kerosene was coming out from the remaining cloths and matrix of the deceased which were in semi-burnt condition. The cloths and the pieces of quilt and cushion near the dead body were seized vide seizure memo Ex.-P/5. The dead body was sent for postmortem. The postmortem examination was conducted by Dr. S.C. Talariya (FW-10). He found that it was a case of extensive bum. Almost all the hairs were burnt accept the Juda and of some portion of back of the skull. The mouth was open and the tongue was protruded between the teeth. Ornaments had become blackish. All the internal organs were congested. They were dislocations of the bones of forearms and there was a fracture on the right femur bone. The Autopsy Surgeon opined that the cause of death was asphyxia as a result of throttling and the deceased had sustained postmortem burns. To find out the possibility of sexual assault, two slides of vaginal swab was also prepared. The postmortem report is Ex.-P/9.
2.6 In further investigation, accused- Ajay Kumar Agrawal (A-1) and Sanjay Kumar Agrawal (A-2) were taken into custody and their memorandu
