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2004 DIGILAW 287 (JHR)

Tusu Sahis v. State Of Bihar

2004-03-18

HARI SHANKAR PRASAD

body2004
JUDGMENT Hari Shankar Prasad, J. 1. The appeal is directed against the judgment of conviction and order of sentence dated 8.6.2000 passed in Sessions Trial No. 229/128 of 1998-98, whereby and whereunder the learned First Additional Sessions Judge, Jamshedpur held the appellants guilty under Section 326, IPC and convicted and sentenced them to undergo RI for three years. 2. Prosecution case in brief is that Helibala Karmakar gave a fardbeyan before Sri D. Ram, ASI of Patamda P.S. on 12.1.1998 at about 12.45 hours at Patamda Rajkiya hospital alleging that on Sunday i.e. on 11.1.1998 appellant Tusu came to her house in the evening and called her to her house. She went to the house of Chhotu Lal with Tusu and at that time wife of Chhotu Lal namely Padma Sahis and wife of Chhotus elder brother namely Sakuntala were present in the house. After some time Padma Sahis, Sakuntala Sahis and Tusu Sahis lighted a Dibri and put fire with the help of flames of the Dhibri in the body of the deceased Helibala. The body of Heli Bala started burning, as a result of which she raised cries. She went in the Angan of the house of the appellants but none of them came to her rescue. Further case of the prosecution is that all the appellants pushed Helibala out of the house and closed the door from inside. When she was crying for help out side the house of the appellants, nearby people including Uday Karmakar, Gyanu Karmakar reached there and extinguished the fire. Local doctor was called, who treated her. She was not taken to any hospital because night had fallen and she remained in her house. She was brought to P.S. on a jeep next day, from where she was sent to hospital. The reason behind the occurrence is attributed to a land dispute. On the basis of statement of Helibala, Patamda P.S. Case No. 2/98 dated 12.1.1998 under Section 307/34, IPC was registered and IO after investigation submitted chargesheet. Cognizance in the case was taken and learned First Additional Sessions Judge recorded the evidence of witnesses both oral and documentary and came to a finding and held the appellants guilty under Section 326, IPC and convicted and sentenced them as aforesaid. Cognizance in the case was taken and learned First Additional Sessions Judge recorded the evidence of witnesses both oral and documentary and came to a finding and held the appellants guilty under Section 326, IPC and convicted and sentenced them as aforesaid. It will not be out of place to mention here that in course of treatment Helibala succumbed to injuries on 23.1.1998 and the case was converted into under Section 302, IPC and charges were framed under Section 302, IPC. 3. Prosecution has examined seven witnesses, PW 1 is Hare Krishna Karmakar. He has been declared hostile but he has deposed that he was in the house and Helibala was burning in the house of Chhotu Lal Sahis. He further deposes that parents of Helibala put off the fire but she did not disclose to him at that time who set fire on her body, 4. PW 2 is Gangadhar Karmakar. He has also been declared hostile as he has not supported the case of prosecution, so far allegation of burning is concerned, but he has deposed that he was told by Helibala that she was set on fire but he is unable to say whether she had disclosed the names of persons or not. 5. PW 3 is Sugar Karmakar. He is the father of deceased Helibala. He says that she was burnt in the house of Chhotu Lal. According to him, Helibala was called by appellant Tusu to her house and Padmawati, wife of Chhotu Lal and Sakuntala put on fire on the body of his daughter from behind and thereafter they drove her out and bolted the house from inside. Nearby people put off the fire. Next day in the morning he went with his daughter to P.S. where her statement was recorded and thereafter she was referred to hospital. This witness was not in the house when occurrence took place. He had gone for his work. He is mason and when he returned after work then he saw his daughter in burning condition in the house and at that time in his house besides his wife Gangadhar Karmakar, Gyanu Karmakar and others were also present. 6. PW 4 is Janki Karmakar. She is mother of deceased Helibala. She was in her house and was cooking. He is mason and when he returned after work then he saw his daughter in burning condition in the house and at that time in his house besides his wife Gangadhar Karmakar, Gyanu Karmakar and others were also present. 6. PW 4 is Janki Karmakar. She is mother of deceased Helibala. She was in her house and was cooking. Appellant Tusu came and called her daughter to her house and appellants set fire on the body of her daughter and nearby people put off the fire. She did not see anybody setting fire on the body of her daughter. She admits that she was not there when her body was set on fire. 7. PW 5 is Ravi Karmakar. He has been declared hostile as he has not supported the prosecution case. 8. PW 6 is Dr. A.K. Barnwal. He says that at that time he was posted in the hospital and he examined Helibala and found burn injury 60 to 70% on chest and limbs. He found nature of injury is simple and time of injury is within 12 hours. He found all the injuries are simple. 9. PW 7 is IO of the case. On 12.1.1998 he was posted as ASI in Patamda P.S. and on that day he got information that Helibala is lying in injured condition in the Patamda hospital and ASI, D. Ram had gone to hospital and recorded the fardbeyan of Helibala. He says that Jardbeyan was recorded by D. Ram and he identified his handwritings and signature (Ext. 2). He further says that formal FIR was drawn by Officer Incharge Jai Prakash Singh, whose handwriting and signature have been identified by him (Ext. 3). He took up investigation and recorded the statement of informant Helibala and before him she stated that on 11.1.1998 at about 6 p.m. Tusu called her to her house and when she went to her house all the three appellants set on fire on her body with Dhibri, She had also made statement that when her body was burning, she was driven out by the appellants and they closed the door from inside and she started making cries, whereupon nearby people assembled there and put off the fire. He went to the place of occurrence and inspected the P.O. In course of examination he admits that he did not prepare inquest report nor the post mortem of dead body was done and he cannot say the reason of death whether she died of burn injury or due to some other reason. On this piece of evidence, learned First Additional Sessions Judge held the appellants guilty and convicted and sentenced him as aforesaid. 10. From perusal of evidence on record, it appears that Helibala gave a fardbeyan to the effect that she was called at the residence of Tusu Sahis, where all the three appellants set her clothes on fire by means of Dhibri and she was driven out from the house of the appellants and fire was extinguished by her neighbourers. It also appears that she was admitted in the hospital on 12.1.1998, from where she was discharged on 16.1.1998 and she was taken to the house of her husband. It is also appears that she died on 23.1.1998. The IO, in spite of having information regarding death of Helibala, did not prepare inquest report nor sent the dead body for post mortem examination but filed a petition on 29.1.1998 in the Court of learned CJM for adding Section 302/34, IPC against the appellants. The doctor examined the injured and came to a finding that burn injuries are simple in nature but the learned Court below, on a careful scrutiny of the evidence and also of the nature of injuries and in view of Section 320, IPC came to a finding that injuries are not simple but grevious ones and, therefore, held the appellants guilty under Section 326, IPC and sentenced the appellants to undergo RI for three years. On the piece of evidence available on record, the Court also found that a case is made out against appellants under Section 328, IPC because PW 1, though has been declared hostile, but he saw Helibala burning in the house of appellants besides Helibala has stated so in her fardbeyan (Ext. 2) and other witnesses have also supported the fact that she was seen burning in the house of appellants and her neighbours put off the fire. PW 4, who is mother, has also corroborated the statement made in the fardbeyan of deceased Helibala. 2) and other witnesses have also supported the fact that she was seen burning in the house of appellants and her neighbours put off the fire. PW 4, who is mother, has also corroborated the statement made in the fardbeyan of deceased Helibala. PW 3, who is the father of deceased Helibala, was out and when he came back, he knew about the fact and found his daughter lying in burnt condition in his house. He also knew from his daughter that occurrence in the manner took place with her as stated in her fardbeyan (Ext. 2). 11. From the materials available on record, it appears that a case under Section 326, IPC is made out and there is ample evidence on record to hold appellants guilty under Section 326, IPC but question is that when the learned Court below came to a finding that a case under Section 326. IPC is made out against the appellants and punishment under this section is upto life imprisonment, then sentence to undergo RI for three years only appears to be a very lenient view taken by the learned Court below. It is well established from the evidence on record that Helibala was taken to the residence of the appellants, where all the appellants set her on fire and the learned Court below has also found the fardbeyan of Helibala admissible under Section 32 of the Indian Evidence Act and such an act on the part of the appellants was either an attempt to commit murder of Helibala or wanted to cause grievous injury to her, and in such a situation, severe punishment should have been awarded to the appellants. I agree with the findings of the learned Court below that no cause for the death of Helibala was brought on record by the prosecution as neither inquest report was prepared nor her dead body was sent for post mortem and, therefore, cause of death of Helibala could not come on record but the learned Court below did not agree with the findings of the doctor that injuries are simple and on the basis of provisions under Section 320, IPC came to a finding that a case under Section 326, IPC is made out and, therefore, severe punishment should have been awarded. 12. 12. Appellants have been noticed to show cause why sentence should not be enhanced and if sentence is enhanced then enhancement will not be improper but considering, at the present moment, the fact that all the three appellants are ladies and they already served out the terms of sentence and have been released from the jail on 4.4.2001 three years before from now and, therefore, in the fact and circumstances of the case, it will not be desirable to disturb and the sentence on the ground stated above. 13. In the result, I do not find any merit in this appeal and it is accordingly dismissed and Cr. Rev. No. 276/200l is also dismissed.