RAM KISHAN Vs. HARGOVIND AND OTHERS

JUDGEMENT

(1.) Being aggrieved by the judgment dated 18th October 2001 in Sessions Case No. 23/2001 pronounced by the Additional Sessions Judge, Karera, district Shivpuri, acquitting the accused/respondents No. 1 to 3 of the charges for commission of offence under Section 302 or in alternative 302/34 of I.P.C., the petitioner who is brother of the deceased presented this revision under Section 397/402 of Cr.P.C.

(2.) In short, the prosecution story is that in the intervening night of 1st-2nd December, 2000 Ramniwas (deceased) and his brother Ramkishan (PW-5) were sleeping in their rooms of the separate houses. At about 12 a.m., Ramkishan (PW-5) brother of deceased heard a piercing cry of his brother Ramniwas. So, he rushed to the room of his brother which was bolted from outside. When he opened the room, he found his brother on fire. His brother informed that all accused entered inside his room, after having an Axe and on instigation of accused Panna, they poured kerosene oil over him and set him ablaze and then fled away from the place. As Ramniwas was seriously burnt, his brother carried him to a Police Station and on advice of the present police personnel for saving his life, he shifted his brother to the District Hospital. On receiving instructions from the hospital, the details of the incident and statement of patient were recorded by the Police Officer. On request of the police, the dying declaration was recorded on 2nd December 2000 at about 1-20 p.m., in the District Hospital Shivpuri. The burnt person died on 3rd December 2000. On report from treating Medical Officer of the District Hospital Shivpuri, the Marg intimation was written and after inquiry, F.I.R. was recorded against the named accused at Crime No. 106/2000 for offence under Section 302 read with section 34 of I.P.C. Postmortem on the body of Ramniwas was conducted. Case-diary statements of the witnesses were recorded. The accused were arrested. After investigation charge-sheet was filed before the criminal court having jurisdiction. After committal, the sessions trial was commenced and after recording statements of witnesses, the trial Judge pronounced the judgment of acquittal, hence this revision.

(3.) The submission put forth by the learned counsel for the complainant is that the impugned judgment of acquittal is against the facts on record and provisions of law and therefore same deserves to be set aside. It is contended that the trial judge disbelieved the entire incident merely on the ground that in the dying declaration, the Executive Magistrate mentioned the date of incident as 13-14th November 2000. No explanation was sought from prosecution by the court for wrongly mentioning the date of incident in the dying declaration so recorded. Hence, the trial judge committed manifestly error in discarding the statement of the brother of deceased when specially there was no enmity proved of the deceased or other witnesses with the accused. Therefore, it is prayed that by allowing the revision petition, the judgment of acquittal may be set aside and the case may be remanded back for consideration afresh and passing an appropriate decision.