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2011 DIGILAW 16 (CHH)

Ganesh Kumar v. State of C. G.

2011-01-19

PRITINKER DIWAKER

body2011
JUDGMENT Pritinker Diwaker, J. 1. This appeal is directed against the judgment and order dated 27.07.2007 passed by the Additional Sessions Judge, Baloda Bazar, Raipur in Sessions Trial No. 11/2007 convicting the Appellant under Sections 307 and 498-A IPC and sentencing him to undergo rigorous imprisonment for ten years and pay fine of Rs. 500 Under Section 307 and rigorous imprisonment for three years and pay fine of Rs. 500 Under Section 498-A IPC, plus default stipulations. 2. Case of the prosecution in brief is that on 18.10.2006 at about 7.40 p.m. FIR Ex. P-1 was lodged by Laxmibai Dewangan (PW-2) alleging that on that day at about 4.30 a.m. accused/Appellant burnt her sister Durga Bai (PW-1). It is alleged that marriage of her sister Durga Bai was solemnized with the accused/Appellant whereas her marriage was solemnized with his brother. It is also alleged that her sister was subjected to cruelty by the accused/Appellant. According to her on the date of incident i.e. 17.10.2006 the accused/Appellant had brutally beaten her sister and she was not even given food. According to her in the morning at about 4.30 a.m. when after hearing the cries of her sister she went to her room, she saw that her sister was burning and the accused/Appellant was standing there having match box in his hand and the lamp was also lying there. It is alleged that she and her husband had extinguished the fire by pouring water. After investigation, the challan was filed by the police on 10.12.2006 under Sections 498-A and 307/34 IPC against the present Appellant, his mother and father and they were tried accordingly. 3. So as to hold the accused persons guilty, prosecution has examined as many as 13 witnesses in support of its case. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. This apart, two witnesses namely Bhanuram Sahu (DW-1) and Tejram (DW-2) have been examined by the defence in support of its case. 4. After hearing the parties the trial Court acquitted accused Kaliram and Shanti Bai of all the charges levelled against them but convicted and sentenced the accused/Appellant herein as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 4. After hearing the parties the trial Court acquitted accused Kaliram and Shanti Bai of all the charges levelled against them but convicted and sentenced the accused/Appellant herein as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the accused/Appellant submits that present appears to be a case of accident because on the date of incident accused/Appellant and the victim were sleeping on the same cot beside which a kerosene lamp was also there and thus it appears that the victim came into contact with the same and sustained burn injuries. He submits that just to implicate the accused/Appellant in a false case, the victim has exaggerated her version giving entirely a new story that the accused/Appellant had burnt her. He submits that as on the same set of evidence the mother and father of the present Appellant have been acquitted, he is also entitled for acquittal. He submits that the important witness namely Mahesh Kumar (PW-4) who is said to have immediately rushed to the spot, has not supported the case of the prosecution. This witness has categorically stated that the victim herself had set on fire as a result of which she sustained injuries. He submits that for convicting the accused/Appellant under Section 307 IPC the prosecution has to prove his intention which it has utterly failed to do so and therefore looking to the simple injuries sustained by the victim at the most he can be convicted under Section 324 IPC. 7. On the other hand counsel for the Respondent/State supports the judgment impugned and submits that present appears to be a case of brutal act on the part of the accused/Appellant where he burnt his wife who was fortunate enough to survive the same. He submits that the victim had sustained 40-50 per cent burn injuries and this fact has also been proved by the prosecution. He submits that there was no reason for the victim to implicate the accused/Appellant in a false case. 8. Victim - Durga Dewangan (PW-1) has stated in her evidence that her sister Laxmi Bai (PW-2) is married to her brother-in-law. He submits that there was no reason for the victim to implicate the accused/Appellant in a false case. 8. Victim - Durga Dewangan (PW-1) has stated in her evidence that her sister Laxmi Bai (PW-2) is married to her brother-in-law. According to this witness, her marriage had taken place with the present Appellant about one and a half years back from the date of recording of her evidence and she was harassed by her husband and his relatives for demand of dowry and they used to say that her parents had not given two kilograms of silver and one tola of gold as promised. This witness has stated that the accused/Appellant herein used to beat and scold her whereas her mother-in-law and father-in-law did not subject her to beating. According to this witness, the accused persons used to say that her mother had two husbands and when she objected to that, her husband had beaten her brutally and whenever her father visited their house, they used to pick up quarrel with him and raising the demand of gold and silver they were harassing her and also her sister Laxmi. According to her, on the date of incident at about 4 a.m. While she was sleeping, she found herself being put afire and when she woke up she saw that her husband was standing there. She has stated that her husband sprinkled kerosene on her body but neither he spoke anything nor did he try to save her. Thereafter on hearing her cries, her sister and brother-in-law came there and extinguished the fire but her husband was simply standing there and did not do anything to save her. On her sister asking her husband as to why he had burnt her sister, he was keeping mum. When she was being taken by her sister and brother-in-law, her husband got a bicycle and made her sit thereon. She has stated that on the way her husband felled her down and asked her to make the statement as if she herself got burnt or else he would burry her in a pit and saying so he took her to her mother's house and after dumping her there he disappeared from the scene. Subsequently her mother took her to hospital and at that time she was unconscious. Subsequently her mother took her to hospital and at that time she was unconscious. She regained her consciousness in a hospital at Raipur after a month and her body was completely burnt. She remained in the hospital for two months. She has stated that the accused/Appellant had once said to her that her mother had two husbands and on an objection being raised by her thereto, he had burnt her. In the cross-examination she has stated that her marriage and that of her sister had taken place on the same day and her father had given the household items to both of them in equal proportion. She has denied the factum of demand of dowry being disclosed to anyone and categorically stated that she had once disclosed the same to her mother but she did not remember as to when she had done so. Though some minor contradictions and omissions are there in her evidence, considering the fact that this witness is a rustic villager they are to be ignored. This witness has stated that on the date of incident her in-laws were not at home. According to her on that day she and her husband were sleeping on the same cot and she did not see anyone setting her on fire. Laxmi (PW-2) has supported the statement of the victim who happens to be her sister. According to her all the accused persons used to harass her and also the victim for demand of dowry. She has stated that the accused/Appellant herein used to beat the victim for demand of two kilograms of silver, T.V. and almirah. They used to say that she and her sister (the victim) were not the off-spring of their father which led her sister being beaten by the accused/Appellant herein. On the next day after hearing the cries of her sister when she went to her room she saw her sister burning where the accused/Appellant herein was present. According to this witness the fire was extinguished by her and her husband. She has stated that the match box was lying on the quilt. She has stated that two lamps were lying there, one was empty and the other was filled with kerosene. This witness has stated that when her brother-in-law was to call the doctor, accused/Appellant said to let the victim die. She has stated that the match box was lying on the quilt. She has stated that two lamps were lying there, one was empty and the other was filled with kerosene. This witness has stated that when her brother-in-law was to call the doctor, accused/Appellant said to let the victim die. When the victim was being taken to Bilaigarh, near village Khajri, accused/Appellant came on a bicycle. She made her sister sit on it from where the accused/Appellant took her to her mother's house and dumped her there. In cross-examination this witness remained firm to her statement made in the examination-in-chief. Jaishree (PW-3) - the mother of the victim has stated that from the beginning of the marriage itself her daughter was subjected to cruelty by the accused/Appellant. According to her as the victim was suffering from chronic headache, the accused/Appellant used to drop her to her house and asked to provide treatment to her. This witness has stated that the accused persons used to harass her daughter for not giving the gold and silver as promised by her husband. According to this witness the victim was brought to her house by the accused/Appellant with burn injuries and after dumping her there he disappeared there-from. Thereafter she called her brother and brother-in-law and took the victim to the hospital. This witness has stated that the victim regained consciousness in the hospital after one and a half months and she remained hospitalized for two months. According to her on an enquiry being made by the police officer to the victim after regaining consciousness she came to know that the accused/Appellant had set her daughter on fire. Mahesh (P W-4) - the brother of the accused has not supported the case of the prosecution and has been declared hostile. He however has stated that the victim was being kept properly by his brother and on hearing her cries when he went to her room, he saw the victim sitting there and told him that she herself got burnt. Nanki Bai (PW-5) and Ramesh (PW-6) have not supported the case of the prosecution and have been declared hostile. Ravi Shankar Chouhan (PW-7) is the witness to seizure of articles made under Ex. P-4 has not supported the same completely but admits his signature on the arrest memo Exs. P-7, 8 & 9. Nanki Bai (PW-5) and Ramesh (PW-6) have not supported the case of the prosecution and have been declared hostile. Ravi Shankar Chouhan (PW-7) is the witness to seizure of articles made under Ex. P-4 has not supported the same completely but admits his signature on the arrest memo Exs. P-7, 8 & 9. Radheshyam (PW-8) has not supported the case of the prosecution and has been declared hostile. Rohit Kumar (PW-9) has stated that the victim had informed him that the accused/Appellant used to harass her for demand of silver. He has stated that on hearing the news about the incident when he went to hospital, victim had informed him that there was a quarrel between her and her husband and while she was sleeping in the night he sprinkled kerosene on her body and set her on fire. Dr. H. Verma (PW-10) who first attended the victim has stated that the victim was brought to hospital with 40-50% burns and looking to her condition she was referred to Mekahara hospital at Raipur. He has stated that statement of the victim was recorded by the Tahasildar in his presence. Dr. Nisha Yadu (PW-11) - Consultant Plastic Surgeon has stated that the victim was hospitalised on 18.10.2006 and she remained there till 7.12.2006 and had sustained 50 per cent burn injuries on her face, neck, chest, back and both arms. Station House Officer - Deenbandhu Uikey (PW-12) is the investigating officer who has supported the case of the prosecution. Dhan Sai Sahu (PW-13) is the Patwari who had prepared spot map Ex. P-18. Bhanuram Sahu (DW-1) has stated on coming to know about the incident through one Mahesh, when he went to the house of the accused/Appellant, victim was found sitting in the room and on being asked by him, she told that as burning lamp had fallen on her, she sustained the injuries. Tejram (DW-2) -father of the victim has stated that his daughter was kept properly by the accused persons and that his daughter had not made any complaint to him against them. 9. Minute examination of the evidence available on record particularly that of victim Durga Bai (PW-1), Laxmi Bai (PW-2) and Jaishree (PW-3) makes it clear that from the very beginning of marriage, the victim was subjected to cruelty by the accused/Appellant for demand of dowry. 9. Minute examination of the evidence available on record particularly that of victim Durga Bai (PW-1), Laxmi Bai (PW-2) and Jaishree (PW-3) makes it clear that from the very beginning of marriage, the victim was subjected to cruelty by the accused/Appellant for demand of dowry. Medical report of the victim also goes to show that she had suffered 40-50 per cent burn injuries. Record reveals that the accused/Appellant had made all efforts to kill the victim but she was fortunate enough to survive. Record also shows that the victim was being taunted by the accused/Appellant saying that she had two fathers and on objection being raised by the victim to such remakes, accused/Appellant used to beat her. This means that apart from physical torture, she was subjected to mental harassment also. Moreover, it creates a doubt that when the victim and the accused/Appellant were sleeping on the same cot, the Appellant should also have received the injuries on his body but surprisingly he did not receive any injury which suggests that it was the accused/Appellant himself who was the mastermind behind the incident. In addition to this, the evidence of Laxmi (PW-2) makes it clear that when her brother-in-law Dinesh was to call the doctor, accused/Appellant said that let the victim die. Evidence of the victim also shows that the accused/Appellant had forced her to make the statement as if she herself had got burnt and if she did not state like this, he would dump her in a pit. Record also shows that when the victim was burning, the accused/Appellant was simply standing there and did not make any effort to save her. This brutal act of the accused/Appellant does not lay claim for any sympathy by this Court. This Court does not find any force in the argument of the counsel for the Appellant that it was a case of merely an accident because paragraphs 1 to 3 of the statement of the victim clearly go to show the manner in which she was burnt. This Court also finds no substance in the argument that the act of the accused/Appellant would fall Under Section 324 IPC as the victim had suffered 40-50 per cent burn injuries which was confirmed by the doctor. 10. This Court also finds no substance in the argument that the act of the accused/Appellant would fall Under Section 324 IPC as the victim had suffered 40-50 per cent burn injuries which was confirmed by the doctor. 10. There is thus ample evidence against the accused/Appellant to arrive at the conclusion that the findings recorded by the trial Court are based on due appreciation of the evidence available on record. No illegality or infirmity is noticeable in the judgment impugned convicting and sentencing the accused/Appellant as mentioned above warranting interference there-with. 11. In the result, the appeal being devoid of substance is liable to be dismissed. It is dismissed as such. As the Appellant is already in jail, no order regarding his surrender etc. is required to be passed.