Hon'ble Naheed Ara Moonis,J.
(Delivered by N.A.Moonis.J) The instant appeal has been filed by the appellants Raghav Saran Rai, Shiv Badan Rai, Brijendra Nath Rai and Phullan Rai against the judgment and order dated 20.12.2007 passed by the Additional Sessions Judge Court no.2 Ghazipur whereby the appellants have been sentenced and convicted under sections 302/34 IPC for life imprisonment with a fine of Rs. 5000/- each , in default the appellants shall undergo further one month's imprisonment and the co-accused Sheoji Rai and Smt. Seema Devi were acquitted from the charge of section 302 IPC.
The genesis of the prosecution case narrated in a nut shell in the first information report is that Fateh Narain Rai lodged a first information report on 18.3.1993 at 10.30 a.m. alleging therein that in the intervening night of 17/18.3.1993 between 12 to 2 'O' clock Shiv Badan Rai, Phullan Rai, Arvind Rai ,Bijendra Rai Raghav Saran Rai had brutally beaten the wife of Ramji and when the wife of Ramji Rai became unconscious ,at about 2 'O' clock she was set ablaze after pouring kerosene oil on her . When he felt the smell of kerosene oil, he along with Ram Bachan Pandey, Narad Rai and Jag Narain Rai reached at the place of occurrence and saw the appellants and the co-accused were fleeing away . The dead body of the victim was lying inside the house. The motive behind the commission of the said offence was that the wife of Ramji Rai had a love affair with Shiv Badan (accused-appellant) on account of which there was some discord between them and ultimately the wife of Ramji Rai (Suryawanti Devi) was killed by beating and burning . On account of night, the incident was not reported at the police station concerned .
After registration of the first information report, the police came into action and took up the investigation of the incident. The investigating officer prepared the inquest memo and sent the corpse to the mortuary for autopsy. The autopsy of the deceased Suryawanti was conducted on 19.3.93 at about 3.15 p.m. by Dr. A.K.Srivastava .The ante-mortem injuries were mentioned as under :-
"Fracture (closed ) of the Rt. humeorous bone joint below, shoulder joint 1st and 2nd degree burning all over the body from top of head to the tip of the toe except back of both legs . Blister formation seen over the burnt area. No smell of kerosene oil was found."
The victim had died due to shock as a result of ante-mortem injuries sustained by her.
After investigation, charge sheet was submitted under section 304 IPC against Shivji Rai and Seema Devi and the accused appellant Shiv Badan Rai,Phullan Rai, Arvind Rai, Vijendra Nath Rai, Raghav Saran Rai were summoned under section 319 Cr.P.C. vide order dated 1.11.2002 by the learned Sessions Judge. Since Arvind Rai had died on 16.1.2003 therefore, proceedings against him stood abated. Charges under section 302 were framed against Shivji Rai & Smt.Seema Rai while against the other appellants a charge under section 302/34 IPC was framed .Prosecution in support of its case examined Bali Ram Rai, P.W.1,who has turned hostile. Fateh Narain Rai, P.W.2 who was the complainant of the incident, Narad Rai P.W.3, and Ram Bachan Rai P.W.4 who were the eye witness of the occurrence. The formal witnesses were P.W.7 Mahendra Prasad who had examined the injuries of the deceased at 5.20 a.m. on 18.3.93. P.W.5 Devi Prasad who has proved the check FIR, P.W.6 Dr. A.K.Srivastava who had conducted post mortem of the deceased on 19.3.93 at about 3.15 p.m. and P.W.8 Tas Bali Head Constable proved the papers of Mohd. Naeem Uddin Beg who had prepared the inquest report, sent the papers for post mortem examination, recorded the statement of the witnesses and submitted the charge sheet. The statement of the accused appellants under section 313 Cr.P.C. was recorded and the same reply was given for every question put to them . They had denied the charges and submitted that they were falsely implicated in the aforesaid offence on account of animosity. The complainant and the witnesses are of the same party with whom several cases are pending . Bechan Rai D.W.1 and Vikas Rai D.W.2 who had filed some documentary evidence in support of their innocence were also examined. The trial court after considering the entire evidence on record found the prosecution case convincing and worthy of credence. The learned Additional Sessions Judge convicted the accused appellants under section 302/34 IPC and acquitted the accused Shivji and Seema Devi of the charge under section 302 IPC.
Heard Sri G.S.Chaturvedi, learned Senior Advocate assisted by Sri Mangala Prasad Rai, learned counsel appearing on behalf of the appellants and the learned AGA.
It is submitted by the learned counsel for the appellants that there is great delay in lodging the first information report while the incident had taken place in between 12 to 2 'O' clock in the intervening night of 17/18.3.93 and the same was witnessed by the eye witnesses as they had seen the accused appellants coming out of the house even then the first information report was lodged at 10.30 a.m. in the morning. It has also been contended that the eye witnesses had reached on the spot sensing the smell of kerosene oil which shows that they had not seen the earlier occurrence of beating . The deceased was first brought in an injured condition by the accused appellant Shivji Rai and was examined at 5.20 a.m. on 18.3.93 by P.W.6 Dr.Mahendra Prasad in the Government Hospital. According to him the victim who was brought in a burnt condition for treatment was alive. The conduct of the eye witness is highly improbable for reaching the place of occurrence and thereafter lodging of the first information report therefore, the testimony of the ocular witnesses are neither reliable nor trust worthy. Shivji Rai who was alleged to have taken the victim in a burnt condition to the government hospital has already been acquitted by the trial court. The litigation was already going on between the accused appellants and the witnesses which has also been admitted by the prosecution. The entire prosecution story is based on circumstantial evidence. There was no direct evidence for connecting the accused persons with the said offence. It is highly improbable that P.W.2 the complainant of the incident only after sensing the smell of kerosene oil reached at the house of the victim, therefore it cannot be said that the eye witnesses had seen the earlier part of the incident about beating and thrashing as his residence is said to be about 500 yards away from the place of occurrence. P.W.1 Bali Ram Rai had developed the story of assault for the first time before the court and stated in his cross examination that when they saw the accused appellants assaulting the victim the victim was lamenting bitterly . He only supported the prosecution version in part that the eye witnesses reached at her house on her shrieks and cries. P.W.3 Narad Rai supported the prosecution story stating that when he reached at the house of Suryawanti Devi (deceased) ,he saw the accused persons beating her with kicks, fists and dandas. P.W.3 Narad Rai and P.W. 4 Ram Bachan reached on the spot and saw the victim lying unconscious. The eye witnesses intercepted the accused persons from beating and on their interception, the accused persons stopped beating the victim . The P.W. 3 & P.W.4 were also residing at a distant corner of the village hence they could not possibly reach to the place of occurrence. All the eye witnesses went to the house of Jagat Narain where they were talking about the happening . At about 2'O' clock in the night the witnesses sensed the smell of kerosene oil . They reached on the spot and saw that the accused persons had set ablaze the victim by pouring kerosene oil on her. In his cross examination, Ram Bachan Pandey, P.W.3 stated that accused Arvind (now dead) was assaulting with a piece of wood which had caused injury on her head . Shiv Badan & Phoollan Rai were assaulting with lathi and danda. He had not seen any accused persons pouring kerosene oil . When the victim was crying, she was being beaten by the accused persons. None of the inmates of her house came to save her, when she was lamenting bitterly. P.W.4 Ram Bachan Pandey stated that he had seen all the accused persons with lathis and dandas and on account of the assault , the victim had fallen on the ground in the courtyard . At about 1.50 'O' clock in the night, P.W.4 sensed the smell of kerosene oil at the place of occurrence and found that Phullan Rai was having a can of kerosene oil.Shiv Badan Rai had lit the fire with a match stick . The P.W.4 Ram Bachan Pandey had stated that the victim had illicit relations with one Meraj which was disliked by Shiv Badan and this was the reason for burning the victim alive. All the accused persons had beaten the victim with lathi and dandas . On reaching at the spot, the eye witnesses tried to catch the assailants but they anyhow managed to run away. There is discrepancy in the statement recorded under section 164 Cr.P.C. with regard to manner of assault as narrated in the first information report. The motive part as mentioned in the first information report was also inconsistent with the statement of the eye witnesses. The deceased would have sustained injuries on account of bursting of the stove while cooking . On account of this none of the doctors while examining the victim had found smell of kerosene oil . There is no testimony of ocular witnesses . The entire prosecution story is based on circumstantial evidence .
The accused appellants in defence examined D.W.1 Bechan Rai the brother of the deceased who had stated that the victim while preparing break fast was burnt on account of bursting of stove and on the alarm of the inmates of the house , Bali Ram, Shivji Rai ,Vinod Rai ran towards the house and they made their best efforts to extinguish the fire . Vinod Rai had taken the victim to the nearest hospital at Buxer there from she was referred to Varanasi and on the way , the victim succumbed to her injuries .
On examination , the D.W.2 Vikas Rai ,son of the victim stated that her mother sustained fatal injuries while preparing break fast on the stove . The stove burst accidentally as a result of which clothes worn by her were burnt causing grievous injuries on her person. On the shriek of his mother , his father ,uncle Shivji Rai and other persons ran swiftly and made their best efforts to save her life . She was taken to District hospital Buxer immediately .On being referred to Varanasi , the victim was taken to Varanasi from District Hospital Buxer while on the way, the victim succumbed to injuries. On the other hand learned AGA supported the conviction of the appellants and has contended that there is no infirmity or vulnerability in the order passed by the trial court convicting the accused appellants. The eye witnesses had narrated the prosecution story in a natural manner. The strong motive disclosed in the first information report behind the commission of the crime stands fully corroborated from the statement of the eye witnesses. The correct story of incident had been unearthed in the first information report with respect to illicit relations of the accused Shiv Badan Rai with the wife of Ramji Rai . In addition to this when the accused appellants were assaulting the victim , the complainant and other persons reached on the spot and tried to pacify the accused persons . As soon as the complainant and other witnesses proceeded there from , they heard shrieks of the victim, again reaching on the spot, they saw the victim lying unconscious . The victim was set ablaze by pouring kerosene oil by the accused persons. The post mortem report also corroborated the prosecution version. Ante-mortem injuries were found on the person of the deceased. The deceased was burnt from head to toe. The accused appellants in their statement showed their ignorance in respect of the incident and have simply stated that they had maliciously been roped in the present case. The statement of the defence witnesses are absolutely false as no incriminating materials including cooking utensils were found by the investigating officer on the spot therefore, the defence as set up by the accused appellants was based on a hypothesis that the chain of circumstances was not so complete as to exclude the accused persons from their guilt. Motive for crime was proved and circumstances taken together form a complete chain for proving the offence of murder of the victim by the accused appellants.
The accused appellants had conspired together and had committed the offence in a pre-planned manner which showed that the act was done in furtherance of their common intention . The incident had taken place in the intervening night of 17/18.3.1993 at about 12 to 2 'O' clock . There was direct evidence of the prosecution witnesses who had seen the incident and their statement under section 164 Cr.P.C. was recorded. The prosecution witnesses had supported the prosecution story .The defence witnesses had not narrated the incident in a natural manner and had tried to shield the appellants by stating that the deceased sustained fatal injuries on account of bursting of the stove while preparing break fast at the fateful time of incident. Dr. A.K. Srivatava P.W.5 had stated that no smell of kerosene oil was sensed on the person of the victim therefore, it cannot be said that the victim was done to death on account of pouring of kerosene oil on her person . Though the P.W.1Bali Ram Rai had turned hostile and did not support the prosecution version but the statement of the other witnesses fully corroborates the prosecution case . There was full corroboration of the evidence that the accused acted in concert in furtherance of their common intention. The chain of circumstances was so connected which only points towards the accused appellants for committing the alleged crime. The conviction of the accused appellants by the court below was just and proper. The appellants were rightly convicted by the court below therefore, the conviction of the accused appellants under section 302/34 IPC deserves to be maintained.
Having considered the rival submissions advanced by the learned counsel for the parties, we are of the opinion that the learned Additional Sessions Judge had drawn a wrong inference by convicting the appellants .Conviction of the appellants basing on the circumstantial evidence without any clinching evidence will lead to unlawful confinement of the accused appellants. The learned court below had committed manifest error by basing the conviction of the appellants merely on circumstantial evidence which could not be taken in its entirety. Co-accused Shivji Rai and Smt. Seema Devi have been acquitted on the same set of the evidence but the appellants who were not charge sheeted and summoned under section 319 Cr.P.C. were convicted on the basis of the evidence of prosecution witnesses who are highly inimical with the appellants which creates doubt about the fairness of the prosecution version.
The victim was taken to hospital by Shivji Rai soon after the incident and the victim was treated at 5.20 a.m. on 18.3.1993 where the doctor had found burn injuries on the entire body of the victim except lower legs which showed that the accused appellants rushed to the place of occurrence on the shrieks and cries of the inmates of the house as well as on alarm of the victim. They found that the victim was gasping with life on account of excessive burn. The eye witnesses also appear to have reached on the place of occurrence subsequent to the appellants and made sincere effort to save the life of the victim. The P.W.2 Narad Rai could not have reached at the place of occurrence merely sensing smell of kerosene oil while the house of the P.W.2 Narad Rai was situated at a distance of 500 yards. According to the prosecution case, the victim was firstly beaten up brutally by the accused appellants. The P.W.2 Narad Rai had seen the accused appellants beating her. Then it is not possible for the P.W.2 Narad Rai to have reached at the place of occurrence covering more than 500 yards from his house again when the victim was set to fire by sensing the smell of kerosene oil. Presence of the P.W.3 Ram Bachan Pandey and P.W.4 Devi Prasad Dubey who are residents of the corner of the village, could not have reached at the place of occurrence when the two incidents as set up by the prosecution had taken place. In these circumstances when the defence of the accused appellants that the victim died on account of the accidental burn appear to be more probable. When two persons namely Shivji Rai and Smt. Seema Devi have made their best efforts to extinguish the fire with the help of Bechan Rai, Vikas Rai and had taken the victim for medical treatment, yet their involvement in the commission of the said offence also appeared to be highly improbable. The story set up by the prosecution that the victim who was the wife of Ramji Rai was beaten by the accused appellants badly and subsequent thereto the victim was set ablaze by pouring kerosene oil was not proved by any cogent and convincing evidence. If the witnesses were present ,they did not make any attempt to save the life of the victim rather they were only interested to register the first information report against them. Admittedly the litigations were going on between the parties as such there is every possibility that the appellants were implicated in the present case out of sheer grudge to wreak vengeance . The doctor had not found any smell of kerosene oil on the person of the deceased at the time of conducting the autopsy. The prosecution witnesses are highly partisan and inimical which is evident from their own statement. Under the circumstances of the case, there is no testimony of ocular and natural witnesses to support the prosecution version. Two accused persons were already acquitted by the learned Additional Sessions Judge Court no.2 Ghazipur while on the same evidence appellants were convicted. The prosecution had failed to prove its case beyond all reasonable doubt against the accused appellants therefore, the judgment and order dated 20.12.2007 passed by learned Additional Sessions Judge Court no.2 Ghazipur is hereby set aside. Resultantly the appeal is allowed. The appellants are already on bail. They need not surrender unless or otherwise wanted in any other case. The bail bonds of the appellants and sureties are hereby discharged.
Office is directed to send back to the lower court record without delay.
Order Date :- 14.3.2011 Naim