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2011 DIGILAW 1134 (JHR)

Somri Kamin v. State of Jharkhand

2011-12-21

D.N.UPADHYAY, R.K.MERATHIA

body2011
JUDGMENT By Court.- This appeal arises out of the judgment and order of conviction and sentence dated 28.05.2001 and 30.05.2001 respectively passed by the learned 2nd Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No. 51 of 1998, S.T.R No. 09 of 2000 arising out of Chandrapura P.S. Case No. 61 of 1997 corresponding to G.R No. 511 of 1997 convicting the appellants under Section 302/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life. 2. The prosecution case in short is that fardbeyan of Srimati Devi was recorded on 01.07.1997 at 17.20 hours at female ward of Regional Hospital, Dhori in burnt condition to the effect that at about 4.00 p.m. she was sleeping in her house when appellant Gurua Munda aged about 30 years and appellant Somri Kamin came there. Somri Kamin stood at the door and Gurua entered into the house and tried to commit rape to which she resisted. On this Gurua poured kerosene oil from dhibri on her body and ignited it by match and then both the appellants fled away. It was also alleged that about four months back Somri committed marpit with Srimati Devi for which she was treated. On such fardbeyan the doctor PW 6 and PW 1 and PW 2 had signed. Srimati Devi succumbed to the injuries in the hospital. 3. Mr. Atanu Banerjee, learned counsel appearing for the appellants submitted that there are contradictions in the evidences and that it is doubtful that the deceased was in a position to give oral statement as she was 90% burnt and that no motive has come for causing the alleged incident and that it is also doubtful whether Gurua had intention to kill the deceased. He also submitted that DW-1 Raju Munda, who is son of the deceased, has stated that it was a case of accidental burn. 4. On the other hand, learned counsel for the State supported the impugned judgment. 5. After hearing the parties at length and carefully going through the records of the case, we find that there is no reason to disbelieve PW 1 and 2 who are the independent witnesses. PW 1, 2 and 6 have stated that the dying declaration was given in their presence. It has also come in evidence that the deceased was in a position to make such statement. PW 1, 2 and 6 have stated that the dying declaration was given in their presence. It has also come in evidence that the deceased was in a position to make such statement. On the basis of minor contradictions in the statement of the witnesses, the prosecution case cannot be brushed aside. PW 3 is also an independent witness and he has also supported the prosecution case. PW 4 is police officer who has recorded the dying declaration and has proved it. PW 5 is the I.O. PW 6 is the doctor in whose presence the dying declaration was recorded and he put his signature on the same and stated that it was made in his presence. PW 7 is the doctor who conducted post mortem. Thus there is no reason to disbelieve the dying declaration. As per the allegation the appellant tried to commit rape and on protest by the deceased he poured kerosene oil on her body by dhibri and lit by match. These materials are sufficient to prove his motive to kill. It is doubtful whether DW -1 is the son of the deceased. Moreover, he has given altogether different story. 6. So far as appellant Somri Kamin is concerned, the only allegation against her is that she came with appellant Gurua and stood at the door when Gurua committed the crime. Except this there is nothing against her. Moreover, it appears that though she was granted bail on 04.04.2002 but as she could not furnish bail bonds she remained in jail. However, by the last order dated 15.12.2011 we directed her to be released on furnishing personal bond but now we are satisfied that the prosecution has not been able to prove its case against her for committing the alleged crime beyond all reasonable doubts. Accordingly, appellant Somri Kamin is acquitted on giving benefit of doubt. She is discharged from the liabilities of her bail bonds. If she has been released on personal bond, she is discharged from such bond also. If she has not been released till now, she must be released forthwith. 7. So far as appellant Gurua Munda is concerned, we are satisfied that the prosecution has proved its case beyond all reasonable doubt against him. Accordingly, the appeal rued on his behalf is dismissed. Appeal dismissed.