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2013 DIGILAW 44 (CHH)

RAJU ALIAS MAHESH RAM v. STATE OF M. P.

2013-02-01

PRITINKER DIWAKER

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 01.07.1997 passed by Additional Sessions Judge, Bilaspur in Sessions Trial No. 26/1997 convicting the accused/appellant under Sections 354 and 451 IPC and sentencing him to undergo RI for two years and pay fine of Rs.2000/- in default of payment of fine to further undergo RI for six months, on each count. 2. In the present case, name of the deceased/prosecutrix is Kanta a minor girl aged about 15 years at the relevant time. On 27.12.1996, deceased set herself on fie by pouring kerosene on her body. FIR Ex. P-4 was registered on that day itself for the offences under Sections 452 and 354 IPC. Kanta was shifted to the hospital and died there-at on 28.12.1996. From the hospital an intimation memo Ex. P-I was sent by Dr. R. Jitpure (PW-1) to city Kotwali. On 29.12.1996, merg intimation Ex. P-6 was recorded by police of Police Station Torba, inquest Ex. P-8 was prepared on 29.12.1996 and then post mortem examination on the body of the deceased/prosecutrix was conducted by Dr. S. Rao (PW-6) and Dr. S.S. Bhatia (PW-8) and cause of death opined was shock due to ante mortem bum involving around 60% of total body. After completion of investigation, charge sheet was filed on 31.12.1996 for the offences under Sections 456, 376/511, 323 and 306 IPC. Court below however framed the charge under Sections 450, 376/511 and 306 IPC. 3. In support of its case, prosecution has examined 09 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the Court below acquitted the accused appellant of the charge under Sections 450, 376/511 and 306 IPC but convicted and sentenced him as mentioned in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that statements of Bhukhin Bai (PW-2), It war a Bai (PW-3) and Babla (PW-5) are self contradictory and the story put forth by them is altogether different. 5. Counsel for the accused/appellant submits that statements of Bhukhin Bai (PW-2), It war a Bai (PW-3) and Babla (PW-5) are self contradictory and the story put forth by them is altogether different. He submits that as per the case diary statement of Bhukhin Bai (PW -2), the incident was informed to her by Itwara Bai (PW-3) whereas in the statement recorded in the Court she has stated that it was informed to her by Sumitra who has not been examined by the prosecution. Counsel for the accused/appellant further submits that Bhukhin Bai (PW-2) and Itwara Bai (PW-3) have not supported the statement of Babla (PW-5). Counsel for the appellant thus submits that relying on the self contradictory statements of these three witnesses the accused/appellant cannot be convicted. Lastly, he submits that if conviction of the accused/appellant is not interfered with, the sentence imposed on him may be reduced to the period already undergone by him which comes to about one month. In support of his submissions, counsel for the accused/appellant placed reliance on the decision of the Supreme Court in the matter of Raju alias Suresh Sahu Vs. State of M.P. and Krishna Kumar Vs. State of M.P. 2010 (3) CGLJ 9. 6. Supporting the judgment impugned counsel for the respondent/State submits that taking advantage of loneliness of the deceased/prosecutrix accused/ appellant had entered her house and made an attempt to outrage her modesty. He submits that Bhukhin Bai (PW-2) and Itwara Bai (PW-3) before whom oral dying declaration was made by the deceased/prosecutrix have categorically supported the case of the prosecution. According to the State counsel, even Babla (PW-5) has supported the case of the prosecution stating that when the door was opened by the deceased/prosecutrix, she appeared to be perplexed and that there was scuffle between Babla (PW-5) and the accused/appellant in which both of them had sustained injuries, which confirms the presence of the accused/appellant in her house at the relevant time. He further submits that case diary statement of the deceased/prosecutrix recorded on 27.12.1996 can now be treated as dying declaration and though this document has not been exhibited; same makes it clear as to the manner in which the accused/appellant had entered the house of deceased/prosecutrix and outraged her modesty. He further submits that case diary statement of the deceased/prosecutrix recorded on 27.12.1996 can now be treated as dying declaration and though this document has not been exhibited; same makes it clear as to the manner in which the accused/appellant had entered the house of deceased/prosecutrix and outraged her modesty. State counsel further submits that the statements of Bhukhin Bai (PW -2), Itwara Bai (PW-3) and Babla (PW-5) are not self contradictory because Babla (PW-5) has given only the initial part of the incident when he saw the accused/appellant in the house of the prosecutrix. Counsel for the respondent/State thus submits that the prosecution has successfully proved its case and the findings based on the evidence led by it are absolutely justified. 7. Bhukhin Bai (PW-2) - mother of the deceased/prosecutrix has stated that she knew the accused/appellant who was her neighbour. According to this witness, deceased/prosecutrix was unmarried and aged about 15 years at the relevant time. On the date of incident when she had gone to her workplace and her husband to Raipur leaving the prosecutrix and her two grand children in the house, Sumitra (not examined) came to her and informed that her daughter (deceased/prosecutrix) had suffered burn injuries. When she returned home, deceased/prosecutrix was in lying condition with upper portion of her body burnt. Deceased/prosecutrix is stated to have informed this witness that when after taking bath she was wearing her clothes, accused/appellant gained an entry to her house by jumping over the fencing and outraged her modesty and that out of shame she set herself ablaze by pouring kerosene. This witness then took the deceased/prosecutrix to police station but did not remember as to who lodged the report as she was not fully conscious. On being reminded by the Court, she has stated that report was lodged by her under her thumb impression. According to this witness, deceased/prosecutrix was hospitalised where she succumbed to the injuries sustained by her. In cross examination, this witness remained firm to what she has stated in the examination in chief. In paragraph No. 7 this witness has stated that incident was informed to her by Sumitra and not by Itwara Bai as is mentioned in the FIR and statement recorded under Section 161 of the Code of Criminal Procedure. In cross examination, this witness remained firm to what she has stated in the examination in chief. In paragraph No. 7 this witness has stated that incident was informed to her by Sumitra and not by Itwara Bai as is mentioned in the FIR and statement recorded under Section 161 of the Code of Criminal Procedure. In paragraph No. 8 she has further clarified that she was not conscious and the Station House Officer had asked her to put thumb impression and she did accordingly. Though there are certain minor contradictions in the statement of this witness if compared to the FIR and the case diary statement, they being insignificant in nature have to be ignored. Itwara Bai (PW-3) - sister of the deceased/prosecutrix has stated that on the date of incident when she returned from her workplace, she came to know about the incident in which deceased/prosecutrix suffered burn injuries. According to this witness deceased/prosecutrix informed her in the hospital that after taking bath when she was in her house, accused/appellant gained an entry thereto by jumping over the fencing and outraged her modesty and that out of shame she set herself on fire. In cross-examination, this witness remained firm to what she has stated in the examination-in-chief. Babla (PW-5) who happens to be the maternal uncle of the deceased/prosecutrix has stated that on the date of incident some Puja was there in his house in which he was required to feed seven unmarried girls. When he went to call Kanta (deceased/ prosecutrix), the door of her house was bolted from inside and on being knocked it was opened by the deceased. He took the deceased with him and after sometime he returned home and immediately thereafter he came to know that the deceased set herself ablaze. He saw the deceased lying in the courtyard and then she was shifted to hospital. Though the report was lodged by him, he had not signed the same. In paragraphs 6 and 7 of the evidence of this witness there are certain contradictions and omissions if compared to his case diary statement but being insignificant they are required to be ignored. Dr. S. Rao (PW-6) and Dr. S.S. Bhatia (PW-8) are the witnesses who conducted post mortem examination on the body of the deceased and gave their report Ex. Dr. S. Rao (PW-6) and Dr. S.S. Bhatia (PW-8) are the witnesses who conducted post mortem examination on the body of the deceased and gave their report Ex. P-3 opining that cause of death was shock due to ante mortem burn involving around 60% of the total body. Dr. R. Jitpure (PW-l) is the witness who had sent the memo Ex. P-l after the death of the deceased. Shatrughan Singh (PW4) is the witness to seizure of certain articles made under Ex. P-2. S.C. Mishra (PW -7) is the witness who recorded FIR Ex. P-4, sent the deceased for medical examination, received merg intimation Ex. P-1 from the hospital and recorded merg Ex. P-6 and sent the accused/appellant for medical examination N.N. Kadiyam (PW-9) is the witness who assisted in the investigation and recorded case diary statement (un-exhibited) of the deceased/prosecutrix and sent Babla (PW -5) for medical examination vide Ex. P-7. 8. Minute examination of the material available on record including the evidence of the witnesses goes to show that on 27.12.1996 taking the advantage of loneliness of the prosecutrix, the accused/appellant entered her house and outraged her modesty. Immediately after the incident Bahla (PW-5) had seen the prosecutrix and the accused/appellant at the place of incident and that on account of shame she set herself ablaze. Prosecutrix made oral dying declaration before her mother Bhukhin Bai (PW -2) when she attended to her immediately after the incident describing the manner in which accused/appellant entered the house and outraged her modesty and that on account of shame she set herself ablaze. Deceased made oral dying declaration before Itwara Bai (PW-3) and informed her about the act of the accused/appellant and that she set herself on fire out of shame. Moreover, Babla (PW-5) had seen the accused/appellant and the deceased/prosecutrix together at the place of incident. There is no reason to disbelieve the statements of Bhukhin Bai (PW-2), Itwara Bai (PW-3) and Babla (PW -5) because from the statements of these witnesses it is apparent that Babla (PW-5) is the witness to first part of the incident where he had seen the appellant and the deceased/prosecutrix in her house and the door of the house was bolted from inside and she appeared to be perplexed and the accused/appellant was hiding himself. Evidence also goes to show that there was scuffle between accused/appellant and Babla (PW-5) in which both of them suffered injuries. Thus presence of the accused/appellant in the house of the deceased/prosecutrix is not disputed. Thus taking a cumulative effect of the entire evidence it becomes apparent that accused/appellant gained an entry to the house of the prosecutrix and outraged her modesty and on account of shame she set herself on fire after pouring kerosene on her body. In view of all this, the Court below appears to be taken note of the entire evidence in its proper perspective and the findings so recorded leading to conviction of the accused/appellant do not call for any interference in this appeal. Even sentence part of the judgment impugned appears to be fully justified if it is seen in the light of the act of the accused/appellant and as such he is not entitled for any leniency from this Court. 9. Accordingly, the appeal being without substance is liable to be dismissed. It is dismissed as such. Appellant is reported to be on bail. His bail bonds stand cancelled. He be sent to jail forthwith to serve out the remaining part of the sentence. Appeal Dismissed.