Kamar Ali Memon @ China and Another Vs State of Chhattisgarh

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2025:CGHC:1454-DB

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment reserved on: 02.12.2024 Judgment delivered on: 09.01.2025

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CRA No. 99 of 2020

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1 - Kamar Ali Memon @ China, S/o Yunus, Aged About 32 Years, R/o Bangalipara, Gali No. 2, Bilaspur, Chhattisgarh.

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2 - Kajol Khan @ Ayasha, W/o Kamar Ali @ China, Aged About 27 Years, R/o Masanganj, Back of Subash Mill, Police Station Civil Lines, Bilaspur, Chhattisgarh.

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... Appellants

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versus

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1 - State of Chhattisgarh Through: Station House Officer, Sarkanda, District Bilaspur, Chhattisgarh.

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... Respondent

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For Appellants	: Mr. AjayAyachi, Advocate
For State/Respondent	: Mr. Akhilesh Kumar, G.A.

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Hon'ble Smt. Justice Rajani Dubey

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Hon’ble Shri Justice Bibhu Datta Guru

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CAV Judgment

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Per Rajani Dubey, Judge

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This appeal under Section 374(2) of Cr.P.C. has been filed by the appellants against the judgment of conviction and order of sentence dated 23.12.2019 passed by learned 2nd Additional Sessions Judge, Bilaspur (C.G.) in Sessions Trial No.12/2018 whereby, the trial Court convicted the appellants and sentenced them as under:-

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Conviction		Sentence
U/s 302 read with 34 of	Imprisonment for	life and fine of
the IPC	Rs.500/- each, in	default of payment
	of fine amount, to	undergo additional
	RI for 6 months.

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Case of the prosecution is that the deceased Anjum Naaz was married to the accused/appellant Kamar Ali alias Cheena in accordance with social customs. On 28.09.2017, deceased Anjum Naaz was at her home in Bengalipara lane No. 02, Bilaspur, at about 2.00 a.m. deceased Anjum Naaz's husband, accused Kamar Ali alias Cheena came home with accused Ayasha Khan alias Kajol. Upon which, the deceased Anjum Naaz objected to bringing accused Ayesha Khan alias Kajol home at night and asked her husband accused- Kamar Ali alias Cheena as to why he had brought another woman home at such a late hour. Thereafter, dispute took place between them over this matter. As

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the deceased Anjum Naaz objected to the illegal relationship between accused Ayesha Khan alias Kajol and her husband accused Kamar Ali Menon alias Cheena, therefoe, both the accused Ayesha Khan alias Kajol and Kamar Ali Menon alias Cheena poured thinner (flammable substance) on Anjum Naaz and set her on fire. The deceased Anjum Naaz was brought to the Burn and Trauma Centre, Bilaspur for treatment, where she was admitted with 79% burn injuries by Dr. Shashikant Sahu (P.W.-1). Head Constable No. 170 Naresh Kumar Sahu (P.W.-2) received Memo No. 354/2017 from Burn and Trauma Research Center, Vaishali Nagar Bilaspur on 28.09.2017 and Rojnamcha Sanha No. 2244/2017 was registered. During the investigation, Head Constable No. 170, Naresh Kumar Sahu (P.W.-2) wrote a letter vide Ex.P/3 on the same date to Surgeon, Burn and Trauma Research Centre, Vaishali Nagar Bilaspur regarding as to whether Smt. Anjum Naaz is fit to give statement or not and a letter was written to Tehsildar, Bilaspur for recording the dying statement of patient Anjum Naaz vide Ex. P/4, upon which, vide Ex. P/3, it was written by Dr. Shashikant Sahu (P.W.-1), Surgeon, Burn and Trauma Research Centre that the patient is fit to give statement. Naib Tehsildar Rajkumar Sahu (P.W.-08) recorded the dying statement of Smt. Anjum Naaz. Thereafter, Sub-Inspector R.P. Tiwari (PW-18) of Police Station Sarkanda registered the FIR under Crime No. 666/2017 against the accused persons for the offence punishable under Section 307, 34 of IPC.

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During investigation, on 29.09.2017, Sub- Inspector Ramashray Yadav (P.W.-16) of Police station prepared the spot map vide Ex. P/6. Thereafter, the seizure was made vide Ex. P/5. During the investigation, on 28.09.2017 at about 6.00 p.m., Anjum Naaz was admitted to Sector 09 Burn Hospital Bhilai for treatment where Dr. Uday Kumar (P.W.-10) examined the body and found 80% burn injury. During the treatment, on 02.10.2017 at 8:30 pm, the deceased Anjum Naaz died due to burn injuries. The death intimation was given to Sector-06 Bhilai Nagar Police Station City Kotwali. Thereafter, the merg intimation was prepared by SubInspector Dashrath Lal Sahu (P.W.-12) of Bhilai Nagar vide Ex. P/15 regarding the death of deceased Anjum Naaz due to 80% burn injury. On 03.10.2017, Head Constable David Suman of Police Station Bhilai Nagar wrote a letter to the Tehsildar for Panchayatnama and death investigation. The Panchnama proceedings were carried out in the Sector 9 Hospital Mortuary by the Tehsildar Ashwani Sharma as per Ex.P/10. Constable No. 929 Sangam Prasad Verma (P.W.-11) of Police Station Bhilai Nagar got the postmortem of the deceased done on 03.10.2017. The postmortem of the body of the deceased was done by Dr. Swamidev Bhupendra ((P.W.-17)) of District Hospital Durg and the postmortem report was given vide Ex. P/25. Thereafter, the body was handed over to her family vide Ex. P/14. When Sub-Inspector R.P. Tiwari (PW-18) of Police Station Sarkanda brought the Morgue Intimation No. 0/17 registered in Police Station Bhilai

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Nagar to Police Station Sarkanda, then Morgue Intimation No. 105/17 (Ex.P/29) was registered on the basis of Morgue Intimation Ex.P/15.

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During investigation, Sub-Inspector Ramashray Yadav (P.W.-16) of Police Station Sarnkada sent a letter to the Tehsildar, Bilaspur for preparing the spot map of the incident. The accused were arrested. Statements of witnesses were recorded. The materials recovered from them were sent to the Director State Forensic Science Laboratory, Raipur through Superintendent of Police Bilaspur for chemical examination. Thereafter, the FIR was registered against the appellant for the offence under Section 307, 34 of IPC.

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After completion of the investigation, a charge-sheet was filed before the court of Chief Judicial Magistrate Bilaspur for the offence under Section 307, 302 read with Section 34 IPC from where the case was committed to Sessions Court Bilaspur as it was exclusively under the trial jurisdiction of the Sessions Court. Thereafter, the case was received to this Court on transfer for trial. Learned trial court framed charge under Sections 302, 34 IPC, to which, appellants abjured their guilt and claimed to be tried.

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So as to hold the accused/appellants guilty, the prosecution examined as many as 18 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Cr.P.C. in which they denied the incriminating circumstances appearing against them and pleaded innocence and false

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implication in the case. In their defence, appellants examined themselves as D.W.-2 and D.W.-3 and another witness namely Dr. Smt. Aradhana Gupta as D.W.-1.

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Learned trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 23.12.2019 finding evidence adduced by the prosecution trustworthy, convicted them for the offence under Section 302, 34 of IPC and sentenced them as mentioned in para 1 of this judgment. Hence, this appeal.

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Learned counsel for the appellants submits that the impugned judgment and conviction of the learned trial Court is illegal, bad and contrary to the law applicable to the facts and circumstances of the case. There is not a single cogent reliable witness who can independently describe the incident. The learned trial Court has failed to see that there is no ingredient in the prosecution story to hold the appellants guilty for committing offence. The learned trial Court has failed to see that there are ingredients in the prosecution story to show that false story has been concocted by the prosecution against the appellants with an ulterior motive. He further submits that it is clear that the dying declaration was recorded in absence of any fitness certificate of the doctor and it is also clear that before recording the said dying declaration, deceased left the hospital against the medical advice of the treating doctor. Therefore, the dying declaration of the deceased appears to be doubtful. Hence, the findings recorded by the

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learned trial Court are bad in law and contrary to material available on record. The learned trial Court has totally ignored the defence version, hence the appreciation appears biased. Therefore, the impugned judgment is liable to be set aside.

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Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Phulel Singh Vs. State of Haryana; (2023) 10 SCC 268.

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On the other hand, learned State counsel supports the impugned judgment and submits that the learned trial Court rightly appreciated the oral and documentary evidence and convicted the appellants accordingly. Dying declaration of the deceased has been recorded by the Executive Magistrate in which specific allegations have been alleged by the deceased against the appellants. Hence, the impugned judgment is well merited and does not call for any interference by this Court.

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Heard learned counsel for the parties and perused the material placed on record including the impugned judgment.

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It is an admitted position in this case that the deceased Anjum Naaz was wife of the appellant No.1- Kamar Ali Memon @ China and it is also not disputed that the appellant No.2- Kajol Khan @ Ayasha is also wife of the appellant No.1- Kamar Ali Memon @ China.

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As per the prosecution story, deceased Anjum Naaz died due to burn injury. Dr. Shashikant Sahu (P.W.-1) stated that on

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28.09.2017 at about 3:30 a.m., deceased Anjum Naaz was admitted in his hospital with 79% burn injuries. A memo (Ex.P/1) was received from the police Station- Sarkanda in this regard wherein he admitted his signature from A to A part. He also stated that on 28.09.2017, at about 1:30 p.m., patient was discharged and in this regard, the document is Ex.P/2 wherein he admitted his signature from A to A part.

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He further stated that the police station in-charge, Sarkanda had sent a letter No. 2/17 dated 28.09.2017 to Surgeon, Burn and Trauma Research Center, Bilaspur asking as to whether the patient is fit for giving statement or not. The said letter is Ex.P/3 and he admitted his signature on the said letter from A to A part. In the lower part of the said letter, he replied that the injured is fit for giving statement.

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Dr. Uday Kumar (P.W.-10) stated that on 28.09.2017 at about 6:00 p.m., injured Anjum Naaz was admitted in burn ward in Sector 9 Burn Hospital Bhilai. On being asked, she told that she was burnt in her residence in Sarkanda on 28.09.2017 at about 2:30 a.m.

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Upon examination, he found the victim with 80% burn injuries. She died during the treatment on 02.10.2017 at about 8:30 p.m. He informed about her death to City Police Station, Sector-6, Bhilai Nagar. The death intimation report is Ex.P/11 and P/12 and he admitted his signature on the said documents from A to A part.

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Dr. Swamidev Bhupendra (P.W.-17) conducted the postmortem of the body of the deceased on 03.10.2017 and opined that the deceased sustained 80% burn injuries and cause of death is due to shock and septicemia as a result of antemortem burn. The deceased died within 24 hours of the postmortem. Postmortem report was prepared by him vide Ex.25 wherein he admitted his signature from A to A part.

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Appellant No.1- Kamar Ali stated in his statement recorded under Section 313 of Cr.P.C. that Anjum Naaz died due to antemortem burn. Hence, the prosecution has proved this fact beyond all reasonable doubt that Anjum Naaz died on 02.10.2017 and cause of death is antemortem burn as she sustained 80% burn injuries.

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As per the prosecution, both the appellants poured thinner on the body of the deceased Anujm Naaz and set ablaze her on fire. However, in his statement recorded under Section 313 of Cr.P.C., appellant No. 1- Kamar Ali stated that at the time of incident, he was with his second wife – Kajol Khan @ Ayasha. At about 1:00 a.m., Anjum Naaz was calling continuously him extending threat that if he does not come now then she will implicate him and Ayesha in a false case. Upon which, he went to her house to convince her. She was already standing after pouring thinner and was trying to lit the matchstick with her hand. Due to which, her clothes caught fire. He tried to extinguish the fire and then he took her to the hospital and got her admitted.

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Subhash Shrivas @ Sonu (P.W.-15) stated that he is a tenant in the house of the Anjum Naaz’s father. Anjum Naaz lived in the same house with her husband Kamar Ali.

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He further stated that the incident took place a year ago at about 1:00 in the night. On the date of the incident, after hearing the voice of Anjum Naaz, he and his brother came out and tried to open door of house of Anjum Naaz by pushing it. The door was locked from inside. Thereafter, when they peeped through the window, they saw that the accused Ayasha Khan was holding Anjum Naaz's hand and Kamar Ali was pouring thinner on her and thereafter, Kamar Ali lit a matchstick and threw it on Anjum Naaz. Since, they were only in their undergarments, therefore went to their house to wear the clothes. When they come back after wearing clothes, then Ayasha Khan and Kamar Ali had fled away from the spot. Thereafter, they took the injured to Shri Ram Care Hospital on their Activa.

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Dhaneshwar Manikpuri (P.W.-7) stated that at around 2:00-2:30 a.m., Anjum Naaz knocked his door saying to take her to hospital. Thereafter, his wife and he took her to hospital and got her admitted in Shri Ram Care Burn Hospital, Bilaspur. He further stated that the police had made his statement in the same manner as they had made statement of Sonu in the police station. Prosecution declared him hostile and cross-examined him but he denied all suggestions of the prosecution and stated that he did not give police statement (Ex.P/7).

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Punita Manikpuri (P.W.-6) stated that around 2:00-2:30 a.m., someone knocked the door of her house. Upon which, she went out in the verandah of her house and saw that Anjum Naaz was burnt. On being asked, the deceased Anjum Naaz told her that Kamar Ali Memon and Ayasha had burnt her. Deceased Anjum Naaz told her to look after her children. Thereafter, she was taken to the hospital.

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In para 7 of her cross-examination, she admitted that on the date of the incident, she had seen only the accused Kamar Ali, she had not seen the accused Ayasha Khan. She further admitted that she did not know that it was Kamar Ali who had taken Anjum Naaz to the hospital. She also admitted that the deceased Anjum Naaz herself did not tell her that Kamar Ali and Ayasha Khan had burnt her by pouring inflammable material. She voluntarily stated that she had heard the same from the people of the locality.

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Subhash Shrivas @ Sonu (P.W.-15) stated that his brother Vinay and he saw the incident.

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In cross-examination, he denied this suggestion that the accused Kamar Ali had taken the deceased Anjum Naaz to the hospital on his motorcycle. He also denied that Anjum Naaz herself poured thinner on her and set herself ablaze. In para 9, he stated that he did not know as to who changed the clothes of Anjum Naaz. He further stated that he cannot tell at this time as to

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whether Anjum Naaz was taken to the hospital in burnt clothes or in changed clothes. However, Dhaneshwar Mankipuri (P.W.-7) stated that the people living nearby took the deceased to hospital. He denied his all statements recorded vide Ex.P/7. He further stated that the police had made his statement in the same manner as they had made statement of Sonu in the police station.

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Riyaz Hussain (P.W.-3), father of the deceased, Mumtaz Begum (P.W.-4), mother of the deceased and Sarfarz Hussain (P.W.-14), brother of the deceased stated that when being apprised about the incident then they reached hospital. As per them, the appellants had burnt the deceased.

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As per the prosecution Story, Dhaneshwar Manikpuri (P.W.-7) and Subhash Shrivas @ Sonu (P.W.-15) are the eye witnesses but statements of both the witnesses are contrary to each other.

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Naib Tehsildar- Rajkumar Sahu (P.W.-8) stated that on 28.09.2017, between 1:00 p.m. and 1:45 p.m, he recorded the dying declaration of the deceased in his own handwriting vide Ex. P/8 and admitted his signature on the said document from A to A part.

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In his cross-examination, he admitted that in the statement recorded vide Ex.P/8, it is not mentioned that as to whether the doctor has certified that the injured was conscious or not. He denied this suggestion that at the time of recording the statement of the deceased vide Ex. P/8, she was unable to speak and was in

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coma. He also denied this suggestion that he did not take a written certificate from the doctor as Anjum Naaz was in coma. Again, he denied this suggestion that at the time of recording the dying declaration of the deceased, she was not in hospital and before that her family members had forcibly discharged her and taken her away.

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Rajkumar Sahu (P.W.-8) recorded the dying declaration of the deceased vide Ex.P/8 and for ready reference, operative para of the same is reproduced herein below:-

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श्न- तो�कै�से�जली�हो� ? उ्ቈर - मे�र� पतितो आज र�तो 02 :00 a.m. मे� आयशा� खा�न कै� से�थ सेसे�र�ली घर बं�गा�ली�प�र� मे� आए। तो� मे" अपन� पतितो पर ति$ቤኋ�ई कै' इतोन� र�तो मे� तिकैसे� दू*सेर� मेतिहोली� कै� घर मे� क्य, ली�कैर आए इसे� बं�तो पर आपसे� झगाड़ा� हो� गाय�। आयशा� खा�न न�मे कै' मेतिहोली� एवं� मे�र� पतितो कै� अवं�ध से�बं�ध, कै� ली�कैर कै� मे�झ� आपቈኌ्ቈ थ� ቈኌजसेकै� कै�रण आयशा�खा�न और मे�र� पतितो न� तिमेलीकैर मे�र� ऊपर ቈኌथनर (ज्वंलीनशा�ली पदू�थ6 ) ति7ड़ाकै कैर मे�ति$से मे�रकैर मे�झ� जली� तिदूय� ।

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श्न - आगा कै� तिकैसेन� बं�झ�य�?

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उ्ቈर - मे" जली रहो� थ� तो� स्वंय� कैपड़ा� उतो�रकैर बं�थरूमे कै� से�वंर खा�ली कैरकै� आगा बं�झ�ई।्ቚ

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श्न - अस्पतो�ली कै:न ली�य� ?

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उ्ቈर - तिकैर�यदू�र, न� एवं� मे�र� भा�ई न� मे�झ� अस्पतो�ली ली�य�।

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As per the Executive Magistrate, he recorded the said statements

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between 1:00 p.m. and 1:45 p.m and as per Dr. Sashikant Sahu (P.W.-1), he gave fitness certificate vide Ex.P/3 at about 11:20 a.m. As per him, patient left the hospital against the medical

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advice at about 1:30 p.m. For ready reference, relevant portion of Ex.P/2 is reproduced herein under:-

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L.A.M.A.

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NameSmt. Anjum Naaz

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Age-sex28y fe W/oMr. Kamar Ali Memon R/oGali No.2 Sarkanda District- Bilaspur (C.G.)

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Date of Admission- 28/09/2017 at 3:30 a.m.

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Date of Discharge (LAMA)- 28/09/2017 at 1:30 p.m.

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Diagnosis- 79% Deep Thermal Burn

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Treatment given conservative.

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In para 8 of his cross-examination, Dr. Sashikant Sahu (P.W.-1) stated that, "तिदून��कै 28/7/2017 कै�मे�र�ቛኋ�र�मेर�जकै�$�कैअपतिकैय�गाय�थ� ቈኌजसेकै�रिरप�्቏6्ቚ दूशा6 डी�-5 हो�।यहोदूस्तो�वं�जमे�र�ቛኋ�र�ቈኌलीखा�हो@आहो�।यहोसेहो�हो�तिकै मे�र�मेन�कैरन�कै�बं�वंज*दूमेर�जकै�रिरश्तो�दू�रबं�र-बं�रउसेकै�प�सेआज�रहो�थ�ज�तिकै मेर�जकै�ज�नकै�ቈኌलीएखातोर�हो�सेकैतो�थ�इसेቈኌलीएमे�न�इसेपर्ቚ दूशा6 डी�-5 कै�असे� अभा�गापरअपन�रिरप�्቏6 दू�हो�।"

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For ready reference the relevant potion of the Ex.D/5 is reproduced herein under:-

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“Relatives are not cooperating. They are regularly visiting patient in spite of telling not to do so. Progress explained.”

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Thus, it is clear from statement of Sashikant Sahu (P.W.-1) that the deceased Anjum Naaz left the hospital at about 1:30 p.m. and

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as per Naib Tehsildar- Rajkumar Sahu (P.W.-8), he recorded the statement of deceased between 1:00 p.m. to 1:45 p.m. and it is also clear that in Ex.P/8, no fitness certificate was given by the treating doctor.

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In similar matter, Hon’ble Apex Court in the matter of Phulel Singh (supra), held in paras 20 and 23 as under:-

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“20. The present case mainly rests on the dying declaration of the deceased. No doubt, that a conviction can be solely recorded on the basis of dying declaration. However, for doing so, the court must come to a conclusion that the dying declaration is trustworthy, reliable and one which inspires confidence. In the present case, the dying declaration is recorded by Shri Sadhu Singh (PW 5), Executive Magistrate. He stated that he obtained the certificate from the doctor regarding the fitness of the deceased to make the statement. He further stated that he recorded the statement of the deceased and thereafter it was read over and explained to her. He further states that she had thumb-marked the same after admitting its contents to be correct.

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It could thus be seen that there is a grave doubt as to whether the dying declaration recorded by Shri Sadhu Singh (PW 5), Executive Magistrate was a voluntary one or tutored at the instance of Respondent 5. It is further

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relevant to note that Dr. Jatinder Pal Singh (PW 8), in his deposition itself, states that Shri Sadhu Singh (PW 5), Executive Magistrate had recorded the dying declaration of the deceased on 8-11-1991 at 4.40 p.m. whereas the opinion with regard to her fitness was given by him at 6.00 p.m. on 8-11-1991. He has further admitted that he had not mentioned in the bed-head ticket that he had attested the statement of the deceased at 4.40 p.m. on 8-11-1991. It is thus doubtful as to whether Dr. Jatinder Pal Singh (PW 8) had really examined the deceased with regard to her fitness prior to her statement being recorded by Shri Sadhu Singh (PW 5), Executive Magistrate.”

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Thus, in light of above judgment, in this case also, it is clear that as per Dr. Shashikant Sahu (P.W.-1) the deceased Anjum Naaz left the hospital at about 1:30 p.m. and as per Naib TehsildarRajkumar Sahu (P.W.-8), he recorded the statement of deceased between 1:00 p.m. to 1:45 p.m. It is also evident that in dying declaration (Ex.P/8), there is no fitness certificate produced by treating doctor. So, it is clear that dying declaration is not free from doubt and the same is not trustworthy and reliable.

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Both the eye-witnesses namely Dhaneshwar Manikpuri (P.W.-7) and Subhash Shrivas @ Sonu (P.W.-15) are not corroborated to each other and Dhaneshwar Manikpuri (P.W.-7) denied his police statement and also stated that the police had made his statement

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in the same manner as they had made statement of Sonu in the police station.

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Subhash Shrivas @ Sonu (P.W.-15) also stated that when he and his brother saw both the appellants pouring thinner on the deceased and set her on fire, since they were only in their undergarments, therefore they went to their house to wear the clothes. When they came back after wearing clothes, then Ayasha Khan and Kamar Ali had fled away from the spot.

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The aforesaid statement is also not reliable as if someone sees a burning person then he/she will try to rescue the injured rather than going home to wear clothes.

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Accused- Kamar Ali stated that he tried to extinguish the fire and also got admitted the deceased in the hospital. Dr. Shashikant Sahu (P.W.-1) admitted the signature of the accused- Kamar Ali in Ex.D/6 and D/7. Therefore, it is clear that at the time of treatment of the deceased, the appellant- Kamar Ali was present in the hospital.

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Dr. Aradhana Gupta (D.W.-1) stated that the accused- Kajol Khan was admitted by her on 13.11.2017 and a caesarean operation was done and she delivered a child who had jaundice. The said child was admitted in her hospital and was discharged on 14.11.2017, the discharge ticket is Ex. D/10.

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Accused- Kajol Khan also examined herself as a defence witness and she stated that she is second wife of the appellant- Kamar Ali

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and in their society, three marriages are considered valid. The deceased Anjum Naaz was stubborn and short tempered by nature. She further stated that, “ घ्቏न�तिदून��कैकै�र�तोलीगाभागा 11.00 बंज� कै�बं�दूलीगा�तो�रमेAतितोकै�अ�ज�मेन�जकै�फो�नआन�शा�रूहो�गाय�।कैमेरअली�न�मे�झ� बंतो�य�तिकैअ�ज�मेन�जफो�नकैरबं�लीरहो�हो�तिकैतो�मेमे�र�घरबं�गा�ली�प�र�तो�रन्तो आओ।कैमेरअली�न�मे�झ�बंतो�य�तिकैमेAतितोकै�अ�ज�मेन�जमे�झ�फो�नपरधमेकै' दू�रहो�हो� तिकैतो�मेतो�रन्तोआज�ओवंरन�अ�ज�मेबंहो@तोबं�र�हो�गा�।मे" स्वंय�कै�7 कैरली*�गा�और अ�ज�मेतो�मेली�गा, कै�भा�गातोन�हो�गा�।मेAतितोकै�अ�ज�मेन�जन�यहोभा�कैहो�तिकैमे�झ�मे�ली*मे हो�तिकैतो�मेकै�ज�लीकै�प�सेहो�हो�उसेकै�7�ड़ा‌कैरतो�र�तोआओ।तोबंकैमेरअली� क्य,तिकैमे�उसेसेमेयलीगाभागा 8 मे�होकै' गाभा6वंतो�थ�इसेቈኌलीएकैमेरअली�मे�झसे�बं�ली� तिकैतो�मेअपन�ध्य�नरखान�मे�अ�ज�मेकै�सेमेझ�बं�झ�कैरआतो�होG�।यतोलीगाभागा 1.00 बंज�कै�आसेप�सेकैमेरअली�घरसे�$ली�गाय�।

¶107

कैमेरअली�से�बंहोलीगाभागा 4-5 बंज�वं�पसेआय�औरमे�झ�बंतो�य�तिकैमेAतितोकै� अ�ज�मेन�जन�स्वंय�कै�जली�ቈኌलीय�हो�, मे" उसे�अस्पतो�लीमे�बंन6 एवं�्቏H�मे�से�्቏रमे�भातोI कैरकै�आय�होG�।"

¶108

The document regarding the marriage between the Kajol Khan and Kamar Ali is Ex.D/11.

¶109

Kamar Ali (D.W.-3) also examined himself as defence witness and he also stated that on the date of the incident, he was with Ayasha Khan in their house. At around 11:00 p.m., Anjum Naaz continuously called him over the phone thereafter when he reached the house of Anjum Naaz then he saw that Anjum was standing after pouring thinner and set herself on fire. Subsequently, he took her to the hospital and got her admitted.

¶110

19

¶111

His signatures were on A to A part of Ex.D/6 and D/7 wherein China Khan was written. His name is Kamar Ali and China Khan. The recording of the conversation between Anjum Naaz and him was Ex. D/12.

¶112

Relatives of the deceased are also not the eye-witnesses to the incident. It is also clear from statement of Dr. Shashikant Sahu (P.W.-1) that the deceased left the hospital at about 1:30 p.m. and dying declaration was recorded between 1:00 p.m. and 1:45 p.m. Hence, dying declaration (Ex. P/8) is not reliable and trustworthy.

¶113

It is also evident from the statements of the defence witnesses that at the time of the incident, accused- Ayasha Khan was 8 months’ pregnant and she delivered a child on 13.11.2017 i.e. after 3 months of the incident. Therefore, the statements of the prosecution witnesses are not reliable.

¶114

It is well settled principles of law that in criminal case, prosecution has to prove its case beyond all reasonable doubt but defence has to prove the probability of his defence and in this case, prosecution has utterly failed to prove his case beyond all reasonable doubt. Learned trial Court only relying upon the statement of eye witness Subhash Shrivas @ Sonu (P.W.-15) and dying declaration (Ex.P/8) convicted both the appellants but it is evident from the record that the statement of eye-witness Subhas Shrivas @ Sonu (P.W.-15) and dying declaration (Ex.P/8) are not reliable. Learned trial Court did not properly appreciate the oral

¶115

20

¶116

and documentary evidence of both the parties and convicted the appellants for the offence under Section 302/34 of IPC. Thus, the findings recorded by the learned trial Court are not based on proper appreciation of facts and circumstances of the case.

¶117

In the result, the appeal is allowed and the judgment of conviction and order of sentence dated 23.12.2019 is hereby set aside. Consequently, the appellants are acquitted of the charge punishable under Sections 302/34 of IPC. They are reported to be on bail, therefore their bail bonds shall continue for a period of six months from today in view of provision of Section 437-A of Cr.P.C.

¶118

The trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.

¶119

Sd/-

¶120

(Rajani Dubey) (Bibhu Datta Guru) Judge Judge

¶121

Ruchi

¶122

RUCHI YADAV Digitally signed byRUCHI YADAV

Kamar Ali Memon @ China and Another v. State of Chhattisgarh

Case brief

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Kamar Ali Memon @ China and Another v. State of Chhattisgarh

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