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2011 DIGILAW 467 (ORI)

DIPU @ DEEPAK KU. SAHU v. STATE OF ORISSA

2011-09-05

L.MOHAPATRA, S.K.MISHRA

body2011
JUDGMENT : L. Mohapatra, J. - The appellant has preferred this appeal against the order of conviction recorded by the learned Sessions Judge, Khurda at Bhubaneswar in S.T.Case No. 88 of 2000 convicting him for commission of offence under Sections 302, 436 & 449 of the Indian Penal Code (in short 'IPC') and sentencing him to undergo imprisonment for life for his conviction u/s 302 IPC, imprisonment for five years and fine of Rs. 200/- for conviction u/s 436 IPC, imprisonment for three years and fine of Rs. 200/- for conviction u/s 449 IPC. All the sentences have been directed to run concurrently. Case of the prosecution is that Binod Pradhan is father of the deceased and he was a rickshaw puller by profession. He was living in an one roomed hut in Gouri Nagar area along with his wife Sabitri-P.W. 2, the deceased-P.W. 18, minor son Dipu-P.W. 1 and minor daughter, namely, Gouri. The appellant was running a cycle repairing shop in the same area where the deceased and his family members were residing. Since the appellant and the deceased developed love affairs, the deceased was given marriage to one Muna Naik, a rickshaw puller by profession and after marriage, the said Muna Naik was living with the deceased in the house of the deceased. The appellant having failed to marry the deceased, drove away the husband of the deceased from Gouri Nagar area, for which there was quarrel between Binod, Sabitri-P.W. 2 and the appellant. Binod started pulling rickshaw in Puri Town for a living and left his wife-P.W. 2-Sabitri and other two children in the Gouri Nagar hut. In the evening of 15.2.1999, when P.W. 2 was absent at home, the appellant went to the house of Binod and asked the deceased to accompany him. When the deceased refused to go with the appellant, it is alleged that the appellant drenched the deceased with kerosene kept in the hut and set her ablaze by lightening a match stick. The deceased along with her younger brother-P.W. 1 and sister Gouri ran out of the hut but in the process, the hut caught fire. The deceased went to a nearby tap and rolled on the sand and water in an attempt to extinguish fire. The appellant after setting her ablaze left the place. The Asst. The deceased along with her younger brother-P.W. 1 and sister Gouri ran out of the hut but in the process, the hut caught fire. The deceased went to a nearby tap and rolled on the sand and water in an attempt to extinguish fire. The appellant after setting her ablaze left the place. The Asst. Fire Officer, Bhubaneswar after receiving a telephone call from a unknown person rushed to the spot and extinguished the fire. Thereafter, the deceased was shifted to the capital hospital. P.W. 2 came to the house only after the deceased was shifted to hospital and learnt about the occurrence from P.W. 1. Thereafter, she immediately went to the hospital and found the deceased lying on the bed in a semiconscious state. The S.I. of police of Lingraj Police Station also arrived at the hospital and P.W. 2 orally reported the incident to him. The said information was treated as an F.I.R. and a case was registered for commission of offence under Sections 436 and 307 IPC. The deceased succumbed to the burn injuries on 20.3.1999 while under treatment. Accordingly, the case registered for commission of offence under Sections 449, 302 and 436 IPC and after completion of investigation, charge sheet was also submitted for commission of the aforesaid offence. The plea of defence is complete denial of the prosecution case. 2. The prosecution in order to prove the charges examined eight witnesses. P.W. 1 is brother of the deceased and witness to the occurrence. P.W. 2 is the informant and mother of the deceased, P.W. 3 is a Surgical Specialist, who had admitted the deceased on 15.2.1999. P.W. 4 is the doctor, who conducted the postmortem examination and P.W. 5 is the Executive Magistrate, who had recorded the dying declaration of the deceased. P.W. 6 is the Assistant Fire Officer and P.W. 7 is the Constable, who accompanied the dead body of the deceased for postmortem examination. P.W. 8 is the I.O. Learned Sessions Judge relying on the evidence of P.W. 1 and the dying declaration recorded by P.W. 5 found the appellant guilty of the charges and convicted him thereunder. 3. Learned Counsel appearing for the appellant assailed the impugned judgment on the ground that P.W. 1 is only nine years of age. Much reliance on his evidence should not have been placed by the learned Sessions Judge without corroboration from independent sources. 3. Learned Counsel appearing for the appellant assailed the impugned judgment on the ground that P.W. 1 is only nine years of age. Much reliance on his evidence should not have been placed by the learned Sessions Judge without corroboration from independent sources. It was also contended by the Learned Counsel for the appellant that the dying declaration was recorded by the Executive Magistrate on 16.2.1999 but it was sent to the Police Station on 10.6.1999 and, therefore, the dying declaration alleged to have been recorded by P.W. 5 could not have been relied upon. Learned Counsel for the State supported the findings of the learned Sessions Judge with reference to the evidence of P.Ws 1 and 5. 4. We have carefully examined the evidence of all the eight witnesses examined on behalf of prosecution. Though P.W. 1 is a child witness, he has vividly described the entire incident in his deposition. He has specifically stated that in the evening of occurrence, he along with his deceased sister-Kuni and younger sister-Gouri were in the house. The appellant came to their house and asked the deceased to accompany him. The deceased refused and the appellant again forced her to accompany him. When the deceased again refused, the appellant scolded her and brought kerosene kept in their house and thereafter the appellant doused the deceased with kerosene and set her ablaze by lighting a match stick. The deceased ran out of the house to a nearby water tap and he along with his younger sister also came out of the house. Their house caught fire from the deceased and got completely gutted. The local people shifted the deceased to the hospital and also informed the fire brigade which later on arrived at the spot and extinguished the fire. P.W. 2 arrived after the deceased was shifted to hospital and on her arrival, this witness explained the entire incident to her. Though this witness has been cross-examined at length, nothing has been brought out in the cross-examination to disbelieve his testimony. P.W. 2 is mother of the deceased. She, in her deposition, has stated that at the time of occurrence, she had been to weekly market to purchase ration and after coming to hut, she heard about the incident from P.W. 1 and also found the house completely burnt. P.W. 2 is mother of the deceased. She, in her deposition, has stated that at the time of occurrence, she had been to weekly market to purchase ration and after coming to hut, she heard about the incident from P.W. 1 and also found the house completely burnt. Thereafter, she went to the hospital and found the deceased lying in a semi conscious state. P.W. 3 is the doctor, who admitted the deceased in the hospital and P.W. 4 is the Doctor, who conducted the postmortem examination. P.W. 4, in his deposition, has stated that he found extensive burn covering 80% of the body surface all over the body excepting part of the iliac region. He was also of the opinion that the burn injuries were ante mortem in nature and the death was caused due to 80% burn injury of the surface with anemia. Therefore, the evidence of P.W. 4 also gets support from the evidence of P.W. 1 to the extent that the deceased died of burn injuries. P.W. 5 is the Executive Magistrate, who recorded the dying declaration. He, in his deposition, has stated that on 16.2.1999 he arrived at the bed of the deceased at about 12.30 p.m. and found the deceased in a conscious state. She was fit in state of mind to give declaration in presence of the attending staff-nurse and doctors. He recorded her statement. On being questioned, the deceased stated that "he has burnt me". When the learned Magistrate enquired as to who he was, the deceased stated that "Dipu set her on fire". On being questioned further, she stated that "Dipu has a cycle repairing shop". She also stated that "Dipu asked her to accompany him and on her refusal, set on her fire". Though the Learned Counsel for the appellant pointed that the dying declaration was recorded by P.W. 5 on 16.2.1999, but it was sent to the police station on 10.6.1999, we find from the evidence of P.W. 5 that he had kept the dying declaration in his office after recording it and after getting telephone message from the I.I.C. and under oral direction of the Sub-Collector, he sent the dying declaration to the I.I.C. concerned on 10.6.1999. He has also explained in his evidence that he could not send the dying declaration to the concerned I.I.C. earlier as he was busy in electoral revision work. He has also explained in his evidence that he could not send the dying declaration to the concerned I.I.C. earlier as he was busy in electoral revision work. Therefore, delay in sending the dying declaration recorded by P.W. 5 to the I.I.C. Lingaraj Police Station has been explained. The evidence of P.Ws.6 and 7 may not be relevant for the purpose of this case and the evidence of I.O., P.W. 8 clearly corroborate the evidence of P.Ws.1,2,4 and 5. On analysis of the entire evidence, we find that the learned Sessions has rightly relied on the evidence of P.W. 1 as well as the dying declaration (Ext.6) for recording the findings for conviction in respect of all the three offences against the appellant. There is no reason for us, in view of the above evidence, to differ with the finding of the learned Sessions Judge. We accordingly do not find any merit in the appeal and dismiss the same. Final Result : Dismissed