ARUN JAISWAL Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction and order of sentence dated 9.1.2002 and 10.1.2002 passed by the learned 1st Additional Sessions Judge, Hazaribagh in Sessions Trial No. 115/2000, whereby and whereunder the learned Court below held the appellant guilty under Sec. 302, IPC and sentenced him to undergo RI for life.

(2.) THE brief facts leading to this appeal are that in the morning of 14.11.1999 at about 8 a.m., PW 2 Surji Devi found smoke coming out from the room occupied by the appellant and the deceased situated in Mauja Barjawan, P.S. Mandu, district Hazaribagh. Surji Devi along with PW 3 Baleshwar Razak went to the room to find that deceased Mina was lying dead with burn injuries inside the room. PW 3 extinguished the fire and informed the brother of the deceased Nandlal Jaiswal regarding the incident. Nandlal Jaiswal went to Mandu police and returned with the police at the P.O. where his statement was recorded by PW 8, Narayan Prasad. According to the informant, the accused married with the deceased about 10 years ago and used to torture and ill -treat her, for which a panchayati was held. It is further asserted that for last five years the appellant was living in Barjawan and continued to ill -treat her, for which even a proceeding under Sec. 107, CrPC was instituted. He further asserted that the appellant along with other family members has committed the murder of the deceased and tried to burn the dead body. The police registered Mandu P.S. Case No. 288/99 under Sec. 302/34, IPC against the appellant and three others, prepared the inquest report, seized the articles from the P.O. and finally submitted charge -sheet only against this appellant under Sec. 302/34, IPC, not sending other accused persons for trial in absence of sufficient evidence.

(3.) THE present appeal has been preferred mainly on the ground that the learned trial Court has failed to consider the contradictory statements on record. It has also been, asserted by learned Counsel for the appellant that there is no direct evidence to connect the appellant with the alleged offence rather the chain of circumstances goes to show that there was no nexus between the offence and the appellant. Learned Counsel firstly drew our attention towards the medical evidence, in which the cause of death has been indicated asphyxia due to burning. It was also pointed out that the I.O. of this case has not produced the gallon containing kerosene oil and the doctor, PW 1 did not find any smell of kerosene oil or petrol on the dead body. Therefore, the presumption that Mina was burnt with the help of kerosene oil or petrol by the accused is not supported. Learned Counsel further pointed out that in absence of any other external injuries on the dead body, the learned Court below should have considered the possibility of accidental fire resulting in her death. Learned Counsel further asserted before us that all the witnesses examined by the prosecution were hearsay witnesses, out of which PWs 4 and 7 have been declared hostile. Therefore, in absence of any direct and positive evidence, the conviction of the appellant is liable to set aside.