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IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
Deepak Gupta, Sanjay Agrawal, JJ.
Ramesh Pateria, son of Rajkumar Pateria – Appellant
Versus
The State of Madhya Pradesh (now Chhattisgarh) – Respondent
Criminal Appeal No.1387 of 1998
Decided On : 24-10-2016
Indian Penal Code1860 - Section 302 - Criminal Procedure Code1973 - Section 391 – FIR – Investigating - Appellant was married to As per evidence on record marriage had taken place more prior to of incident It is also not disputed that received serious burn injuries was taken to Medical College Hospital Raipur- She was suffering from burns and as a result of injuries sustained she unfortunately expired on Another undisputed fact is that Appellant also received burn injuries during this very incident- When was lying admitted in hospital her dying declaration was recorded by Executive Magistrate in this dying declaration she had stated that her husband poured kerosene on her and n set her fire- First Information Report was recorded and after intimation was lodged- Investigation was carried out and on basis investigation accused/Appellant was charged with offence of murder of his wife –Held, Case of prosecution what prevented her from saying so when her first statement was recorded is no allegation much-less proof that husband had got statement wife recorded- In fact husband himself was admitted in hospital with burn injuries- Though re is no direct evidence that he sustained burn injuries while trying to save his wife prosecution has miserably failed to show how husband sustained burn injuries- prosecution led no evidence with regard to alleged ill-treatment of wife though she states that her daughter told her that she (daughter) had been set on fire accused has made no allegation against husband- In cross examination she states that her daughter and son-in-law used to fight very after- She has also admitted that her daughter used to say that some day she may set herself on fire- not even whisper that accused was ill treating his wife was harassing her or treating her with cruelty case concerned accused in our opinion has to be acquitted in view of two totally contradictory dying declarations which do not support each or- Not only that no corroboration second dying declaration- In second dying declaration statement of wife is that since her husband had some bad habits she had committed suicide- What were se bad habits? This question has not been answered by prosecution- As pointed out above none of three witnesses who family members deceased have made any statement about alleged bad habits accused deceased committed suicide- She was a married lady having old son- It is indeed unfortunate that this lady committed suicide- It obvious that she must have committed suicide because she was unhappy- However what were reasons for her to commit suicide had to proved by prosecution and this Court cannot convict accused/Appellant on basis of surmises and conjectures- prosecution unfortunately has not proved its case - In prosecution has not been fair and has withheld first dying declaration from Court case like present prosecution has to prove that husband had instigated his wife commit suicide - Strained relations cannot be said to be a ground for abetment of suicide- As pointed out above family members have not said word in this regard Court wholly misdirected itself in not relying upon or not taking into consideration first dying declaration has gravely erred in convicting and sentencing accused/Appellant - Appeal allowed
Deepak Gupta, J.
1. By means of this appeal, the accused/Appellant has challenged the judgment of Learned Sessions Judge, Raipur dated 27.4.1998 passed in Sessions Trial No.277 of 1996, whereby the Appellant was convicted for having committed an offence of murder of his wife punishable under Section 302 of the Indian Penal Code (IPC) and sentenced to imprisonment for life.
2. The undisputed facts are that the Appellant was married to Usha Pateria. As per the evidence on record, the marriage had taken place more than 7 years prior to the date of the incident 8.4.1996. It is also not disputed that Usha Pateria received serious burn injuries on 8.4.1996 at about 3:30 p.m. She was taken to the Medical College Hospital, Raipur. She was suffering from 80%–85% burns and as a result of the injuries sustained she unfortunately expired on 26.4.1996. Another undisputed fact is that the Appellant also received burn injuries during this very incident. When Usha Pateria was lying admitted in the hospital, her dying declaration (Ex.P-9) was recorded by PW-8, Ashok Tiwari, Executive Magistrate on 11.4.1996 and in this dying declaration, she had stated that her husband poured kerosene on her and then set her on fire. First Information Report (Ex.P-11) was recorded on 11.4.1996 and after Usha Pateria died on 26.4.1996, merg intimation (Ex.P-13) was lodged. Investigation was carried out and on the basis of the investigation, the accused/Appellant was charged with the offence of murder of his wife.
3. The Trial Court convicted the accused/Appellant for having committed the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life only on the basis of the alleged dying declaration made by deceased Usha Pateria. It would be pertinent to mention that a Bench of this Court had heard this matter in detail on 11.2.2014, on which date the following order was passed:
“11.02.2014
Ms. Nirupama Bajpai, counsel for the Appellant.
Shri DK Gwalre, Government Advocate and Shri Ravindra Agrawal, Panel Lawyer for the State.
Heard on the application (IA1) under section 391 of the CrPC for examination of Dr. DS Tiwari and Investigating Officer Shoeb Ahmed Khan in the appellate stage.
This is a criminal appeal against the order of conviction and sentence dated 27.04.1998 passed by the Sessions Judge, Raipur, in Sessions Trial No.277 of 1996 convicting Ramesh Pateria (the Appellant) under section 302 Indian Penal Code and awarding life imprisonment. Usha Pateria (the Deceased) was the wife of the Appellant. They were married more than seven years back from the date of the incident. The Deceased received 80 – 85% burn injuries in an incident which took place on 08.04.1996. Thereafter, she died on 26.06.1996. The statement of the Deceased was recorded by the Investigating Officer under section 161 CrPC on 08.04.1996. Thereafter, her dying declaration was recorded by the Executive Magistrate on 11.04.1996 (Ex.P9). The dying declaration (Ex.P9) recorded by the Executive Magistrate has been proved in the court of law. However, the statement of the Deceased under section 161 CrPC, recorded on 08.04.1996 which is also a dying declaration was filed along with the police challan, but was not proved in the court of law. Considering the contents of the statement of the Deceased dated 08.04.1996, it would be appropriate that this document may also be exhibited. In view of above, the application (IA1) is allowed.
The matter is sent back to the Sessions Judge, Raipur to record the statements of the Investigating Officer concerned as well as the doctor who certified about the fitness of the Deceased in the first dying declaration. The court below after recording the evidence of the aforesaid witnesses and getting the aforesaid document exhibited, will send the matter back along with the records to this court forthwith.
Also heard on application (IA2) for suspension of sentence and grant of bail to the Appellant. Considering the fact that there is
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