) Shamim Khan, S/o Rais Khan, aged about 30 years, R/o Simga v. State of Chhattisgarh, through: Police Station Pasaan
Case Details
1/ 18 (Cr.A. No. 119 of 2019) 2025:CGHC:6200-DB AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL APPELLATE JURISDICTION [Judgment reserved on: 22.01.2025] [Judgment delivered on: 04.02.2025] In CRIMINAL APPEAL NO. 119 OF 2019 (Arising out of Judgment dated 20.7.2017 passed by Additional Sessions Judge, Katghora, District Korba in Sessions Case No. 83 of 2016) Shamim Khan, S/o Rais Khan, aged about 30 years, R/o Simga Chowki Korbi, Police Station Pasaan, District Korba, Civil and Revenue District Korba (C.G.) ... Appellant(s) Versus State of Chhattisgarh, through: Police Station Pasaan, District Korba (C.G.) ... Respondent(s) ------------------------------------------------------------------------------------ :- For Appellant Mr. Ajay Mishra, Advocate. For Respondent-State :- Mr. Vivek Mishra, Panel Lawyer. :- Amicus Curiae Mr. Anurag Dayal Shrivastava, Advocate. ------------------------------------------------------------------------------------ Division Bench Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Kumar Jaiswal C A V Judgment 2/ 18 (Cr.A. No. 119 of 2019) Sanjay K. Agrawal, J. 1. Assail in the present Criminal Appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (for short ‘CrPC’) is to the Judgment dated 20.7.2017 passed by learned Additional Sessions Judge, Katghora, District Korba (Trial Court) in Sessions Case No.83/2016, by which the sole appellant herein has been convicted for offence under Section 302 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentenced thereunder to suffer Rigorous Imprisonment for Life and to pay fine of Rs.5000/- and in default of payment of fine, to suffer additional Rigorous Imprisonment for One year, for causing death of his wife Afsana Khatoon (deceased), after exonerating him of the charges under Sections 498-A and 304-B of IPC. Prosecution’s case, in brief:- 2. The marriage of the appellant and deceased Afsana Khatoon was solemnized on 2.5.2016 and immediately after about 16 days of their marriage, the appellant raised a demand of Rs.10,000/- and one motorcycle from deceased’s father, Mohd. Mehboob (PW-1), who expressed his inability to fulfill the said demand made 3/ 18 (Cr.A. No. 119 of 2019) by the appellant. Thereafter, the appellant is said to have started harassing and beating his wife Afsana Khatoon on account of non-fulfilling of his demand of Rs.10,000/- and motorcycle. Subsequently, on 30.6.2016, around 4:00 a.m., in the morning, the appellant is said to have started beating her on account of said demand of dowry and on that count set her on
Legal Reasoning
fire after pouring kerosene oil on her body. She was taken to the District Hospital, Baikunthpur. Dr. S.H. Shende, the contract Medical Officer informed Police Station vide Ex. P-16 regarding the admission of Afsana Khatoon in the said District Hospital in burned condition. MLC of Afsana Khatoon was conducted vide Ex. P-18. Vide Ex. P-4, her dying declaration was recorded by Sub Inspector, C.S. Sidar (PW-14). Thereafter, vide Ex. P-9, another dying declaration of Afsana Khatoon was recorded by the Executive Magistrate, Rupesh Kumar Singh (PW-9), at 12:33-12:42 pm. Thereafter, she succumbed to the burn injuries at 4:27 p.m., the information of which was sent by the said Medical Officer to the Police Station, Baikunthpur vide Ex. P-17, on the basis of which zero Merg Intimation was recorded vide Ex. P-23 and zero FIR was registered vide Ex. P-24. Inquest report was conducted vide Ex. 4/ 18 (Cr.A. No. 119 of 2019) P-5, pursuant to which post-mortem of deceased Afsana Khatoon was conducted by the Medical Officer, Dr. Yogendra Chouhan (PW-12) who gave his report opining that the cause of her death was shock due to burn injuries (approximately 94-96%). Thereafter, formal Merg Intimation (Ex. P-21) and FIR (Ex. P-22) was registered against the appellant for offence under Section 304-B of IPC. Vide Ex. P-6, burnt clothes of deceased Afsana Khatoon and other articles were seized. Crime Details Form was prepared vide Ex. P-7 and Spot Map was prepared vide Ex. P-14. Statements of the witnesses were recorded. Arrest of the appellant was made. 3. After completion of the investigation, the appellant was charge-sheeted before the Trial Court where charges were framed against him principally for offences under Sections 498-A and 304-B of IPC for treating his wife Afsana Khatoon with cruelty on account of demand of dowry after their marriage which took place on 2.5.2016 and her dowry-death and, in alternative, charge under Section 302 of IPC was also framed against him for committing murder of his wife Afsana Khatoon. Appellant denied all the said charges and entreated for trial. 5/ 18 (Cr.A. No. 119 of 2019) 4. During the course of trial, in order to prove its case, the prosecution examined as many as 15 witnesses as PW-1 to PW-15 and exhibited documents vide Exhibits P-1 to P-35. After closure of the prosecution evidence, statement of the accused/appellant was recorded under Section 313 CrPC in which he denied the circumstances appearing against him in the evidence produced by the prosecution, pleaded innocence and false implication. In defence, two witnesses have been examined as DW-1 and DW-2. 5. On conclusion of the trial, learned Trial Court, by the impugned judgment dated 20.7.2017, after appreciating the oral and documentary evidence available on record, held that the prosecution has not been able to prove charges under Sections 498-A and 304-B of IPC against the appellant beyond doubt for treating his wife Afsana Khatoon with cruelty on account of dowry demand of Rs.10,000/- and one motorcycle and her dowry-death and accordingly, after exonerating the appellant of the said charges, held him guilty of the alternative charge under Section 302 of IPC for committing murder of his wife Afsana Khatoon and sentenced him thereunder to suffer Life Imprisonment and to pay fine of Rs.5000/- with default stipulation, which led to filing of the 6/ 18 (Cr.A. No. 119 of 2019) present appeal by the appellant calling in question the legality, validity and correctness of the impugned judgment passed by learned Trial Court. Submission on behalf of the appellant:-
Legal Reasoning
6. Mr. Ajay Mishra, learned Counsel appearing for the appellant, would submit that the learned Trial Court is absolutely unjustified in convicting the appellant for offence under Section 302 of IPC, after having exonerated him of the charges under Sections 498-A and 304-B of IPC, on the sole basis of dying declaration (Ex. P-9) recorded by the Executive Magistrate, PW-9 Rupesh Kumar Singh, which does not inspire confidence at all and therefore the appellant could not have been convicted for offence under Section 302 of IPC which deserves to be set-aside and the appellant is entitled to be acquitted of the said offence. Submissions on behalf of the State:- 7. Mr. Vivek Mishra, learned State Counsel, would however submit that learned Trial Court is absolutely justified in convicting the appellant for offence under Section 302 of IPC. Though the appellant has been acquitted of the charges under sections 498-A and 304-B of IPC, but the part of dying declaration (Ex. P-9) of deceased Afsana 7/ 18 (Cr.A. No. 119 of 2019) Khatoon is reliable to the extent that the appellant has set her on fire after pouring kerosene oil on her body in the morning on the date of offence and as such the learned Trial Court has rightly found proved the offence under Section 302 of IPC against the appellant. The impugned judgment therefore is unimpeachable and the appeal is liable to be dismissed. Submission of learned Amicus Curiae: 8. Mr. Anurag Dayal Shrivastava, learned Amicus Curiae, would submit that the learned Trial Court has partly disbelieved and partly believed the dying declaration (Ex. P-9) of deceased Afsana Khatoon. The part of the said dying declaration which has not been believed is that the appellant has treated the deceased Afsana Khatoon with cruelty on account of demand of dowry and caused her dowry death. Once a part of the dying declaration is found to be untrue bifurcating the other part of the dying declaration which is allegedly found to be true, the rule of caution requires that corroboration must be sought to rely upon the other part of the evidence of the witness, failing which it would be risky and unsafe to rely upon the uncorroborated dying declaration. In this regard, he would rely upon the decision of the Supreme Court rendered in the matter of 8/ 18 (Cr.A. No. 119 of 2019) Godhu and Another v. State of Rajasthan 1 which has been followed in the matter of Jumni and Others v. State of Haryana2. 9. Learned Amicus Curiae would further submit that though physical and mental state of mind of the victim is rule of caution, but in the instant case as per the statement of PW-11 Dr. S.H. Shende, the Medical Officer of the District Hospital, Baikunthpur, when the victim Afsana Khatoon was admitted to the hospital in the morning around 9:00-9:25 a.m. with 90-95%, she was not in a position to speak and she was writhing in extreme pain and the fingers of both of her hands were already burnt. The dying declaration (Ex. P-9) of the victim Afsana Khatoon was recorded by PW-9 Rupesh Kumar Singh, Executive Magistrate, after certification by PW-12 Dr. Yogendra Chouhan, in which Dr. Chouhan has only written that the victim was able to speak. There is no evidence that the victim was in a fit physical and mental state of mind to record her dying declaration. As such, there is no admission that after her admission in the hospital, she gained her mental consciousness and she was in physical and mental alert to record her dying declaration or her health condition 1 2