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2013 DIGILAW 320 (UTT)

BABLU RASTOGI v. STATE OF UTTARAKHAND

2013-06-13

U.C.Dhyani

body2013
JUDGMENT Hon’ble U.C. Dhyani, J. (oral) A complaint (Ext. Ka-2) was written by the informant PW5 Dinesh Kandari on 12.04.2007, at 06:20 P.M., addressed to the Station Officer, police station Muni-Ki-Reti, District Tehri Garhwal, which was registered as case crime no. 307 of 2007 against accused-appelant Bablu Rastogi in respect of offence punishable under Section 306 of IPC. After the investigation, chargesheet (Ext. Ka-5) was submitted against the accused in respect of selfsame offence. The case was committed to the Court of Sessions for trial. 2. When the trial began and prosecution opened it’s case, charge in respect of offence punishable under Section 306 of IPC was framed and, in the alternative, charge for the offence punishable under Section 302 of IPC was also framed against the accused to which he pleaded not guilty and claimed trial. 3. PW1 Km. Rashi Rastogi (victim), minor daughter of appellant; PW2 Pan Singh Kandari, father of victim; PW3 Sudhanshu Mishra, brother-in-law of victim; PW4 SO Surendra Singh Bhandari, Investigation Officer; PW5 Dinesh Kandari, informant and brother of victim and PW6 Dr. Naval Kishor Mishra, Medical Officer were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he said that he was falsely implicated in the case. Accused also said that the victim died of bursting of stove. No evidence in defence was adduced. 4. After considering the evidence on record, learned trial court found the accused guilty of the offence punishable under Section 304 of IPC and sentenced him to undergo rigorous imprisonment for a period of ten years alongwith fine of Rs. 10,000/-, in default of payment of which, convict was required to undergo six months’ further rigorous imprisonment, vide judgment and order dated 03.09.2008. Aggrieved against said judgment and order, present criminal appeal was preferred by the convict. 5. Learned counsel for the accused-appellant submitted that the appellant has served out a substantial part of sentence awarded to him and therefore he has nothing to say on the merits of the case. Learned counsel contended that the appellant is in jail for more than six years and he has come to the Court with the sole prayer that the sentence awarded to the convict-appellant be reduced. 6. The prosecution story is that the victim was married to the appellant 11 years ago. Learned counsel contended that the appellant is in jail for more than six years and he has come to the Court with the sole prayer that the sentence awarded to the convict-appellant be reduced. 6. The prosecution story is that the victim was married to the appellant 11 years ago. One daughter and two sons were begotten by them out of said wedlock. Accused used to harass and maltreat the victim. The accused assaulted the victim. Victim was also given mental harassment as a result of which the victim committed suicide on 10.04.2007 by pouring kerosene oil and setting herself on fire. 7. PW1 Km. Rashi Rastogi, was the minor daughter of the victim and appellant. After conducting her voir dire, the trial court came to the conclusion that PW1 was capable of understanding the things. In her examination-in-chief, PW1 said that the accused (her father) poured kerosene oil on victim (her mother). After pouring kerosene oil, the victim was set on fire by igniting match. The occurrence took place in the night. When the occurrence took place, PW1 alongwith her brother Akhil, apart from her parents, was present. Initially her parents were having normal relations with each other, but at subsequent point of time, they used to quarrel with each other. PW1 was cross-examined at length. Her cross-examination was recorded by the trial court in question-answer form. Nothing has come in her cross-examination so as to suggest that PW1 was telling a lie. Hon’ble Apex Court has cautioned time and again that the testimony of a child witness should be examined with caution. Even judging by this yardstick, there is nothing on record to suggest that PW1 was a mischievous child witness. 8. PW2 Pan Singh Kandari, the father of the victim, came to know of the death of his daughter through brother of appellant and subsequently by his grand daughter (PW1). 9. PW3 Sudhanshu Mishra said that the couple used to quarrel with each other. He also said that the victim was done away with by her husband (accused). PW3 was also a signatory to the inquest report (Ext. Ka-1). PW3 also proved the complaint (Ext. Ka-2). 10. PW4 S.O. Surendra Singh Bhandari was the Investigating Officer of the case, who submitted chargesheet (Ext. Ka-3) against the accused. 11. PW5 Dinesh Kandari, brother of the deceased, said that the relations between the couple were strained. PW3 was also a signatory to the inquest report (Ext. Ka-1). PW3 also proved the complaint (Ext. Ka-2). 10. PW4 S.O. Surendra Singh Bhandari was the Investigating Officer of the case, who submitted chargesheet (Ext. Ka-3) against the accused. 11. PW5 Dinesh Kandari, brother of the deceased, said that the relations between the couple were strained. Accused used to assault the victim. His sister was done away with by the accused on 11.04.2007. He also proved complaint (Ext. Ka-2). PW1 Rashi told PW5 that her father killed her mother. 12. PW6 Dr. Naval Kishor Mishra, Medical Officer conducted postmortem on the dead body of the deceased on 11.04.2007, at 02:45 P.M. The Medical Officer found superficial to deep burn injuries all over the body of the deceased. Blisters were also present. The Medical Officer also found smell of kerosene oil, seinging of hair and line of redness over the body. PW6 said that the death of victim was shock due to ante mortem burn injuries. Postmortem report (Ext. Ka-3) was proved by PW6. The postmortem was conducted jointly by PW6 and one Dr. D.S. Rawat. 13. There was nothing on record to disbelieve the testimony of the aforesaid prosecution witnesses. Learned trial court has dealt with the evidence tendered by the prosecution in great detail. This Court is in agreement with the reasons assigned by the court below. The prosecution story was proved beyond reasonable doubt. There appears to be no reason to interfere with the findings arrived at by the trial court. Conviction of the accused-appellant for the offence punishable under Section 304 of IPC is therefore affirmed. 14. Learned counsel for the accused-appellant prayed that the sentence awarded to the appellant be reduced. Learned counsel submitted that the appellant has small children and there is no one else in the family to look after them. He was the sole bread earner in his family. When the occurrence took place, the appellant also tried to save his wife and sustained injuries in the process of saving the victim. This fact was also told by the accused-appellant in his statement under Section 313 of Cr.P.C., which was recorded on 04.06.2008. It was also indicated that the accused-appellant remained admitted in Rishikesh Hospital for treatment of his injuries, which were sustained while trying to save the victim. This Court therefore, is persuaded to reduce the sentence awarded to the convict-appellant. 15. It was also indicated that the accused-appellant remained admitted in Rishikesh Hospital for treatment of his injuries, which were sustained while trying to save the victim. This Court therefore, is persuaded to reduce the sentence awarded to the convict-appellant. 15. While the conviction of the accused-appellant in respect of offence punishable under Section 304 of IPC is affirmed, the sentence awarded to him is modified to the extent that the convict-appellant shall undergo rigorous imprisonment for a period of seven years and shall also be liable to pay fine (i.e. Rs.10,000/-), which fine was awarded to him by the court below. It is made clear that the accused-appellant shall undergo six months’ rigorous imprisonment, in case he fails to pay such fine. Period of detention undergone by the accused-appellant shall be set off against the sentence of imprisonment thus awarded to him. 16. The criminal appeal is thus finally disposed of with the modification in the sentence as above. 17. The accused-appellant is in jail. Let a copy of this judgment be sent to the Superintendent of jail concerned, where the accused-appellant Bablu Rastogi is currently serving out his sentence. 18. The lower court records alongwith a copy of this judgment be also sent back to the court below for compliance.