N.A. Moonis. J. - (1.) 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.
(2.) 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 Raj, 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 alongwith 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 kilted 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 1 st 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 wortny 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.
(3.) HEARD Sri GS.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 '0' 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 RW.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 RW.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. RW.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 iilicit 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.;