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2013 DIGILAW 9 (CHH)

AJAY v. STATE OF C. G.

2013-01-03

RADHE SHYAM SHARMA

body2013
JUDGMENT 1. This appeal is directed against judgment dated 9-8-2004 passed by 1st Additional Sessions Judge, Rajnandgaon in Sessions Trial No. 26/2002. By the impugned judgment, accused/appellant Ajay has been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 3,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 year and co-accused persons Vinay Kumar, Smt. Rama Bhattacharya, Vilas alias Debu and Kumari Gauri have been acquitted of the charges framed against them. 2. Case of the prosecution, in brief, is as under:- Marriage of Smt. Shikha Bhattacharya (PW-4) was solemnized with the appellant on 26-6-2000. After the marriage, Smt. Shikha Bhattacharya (PW-4) was residing with her husband (the appellant), father-in-law and mother-in-law in her matrimonial house. Acquitted co-accused Vinay Kumar is father-in-law, Smt. Rama Bhattacharya is mother-in-law, Vilas alias Debu is Dewar (brother-in-law) and Kumari Gauri is Nanad (sister-in-law) of Smt. Shikha Bhattacharya (PW-4). Sufficient dowry was given in the marriage by S.N. Goswami (PW-2, father of Smt. Shikha Bhattacharya). The appellant and acquitted co-accused persons ill-treated Smt. Shikha Bhattacharya (PW-4) and caused severe mentally torture to her. Smt. Shikha Bhattacharya (PW-4) narrated the incident to her brother and father. On 19-6-2001, Smt. Shikha Bhattacharya (PW-4) prepared tea in the room. The appellant came there and poured kerosene on her and set her on fire. The appellant took Smt. Shikha Bhattacharya (PW-4) to Community Health Centre, Dongargarh. Dr. A.K. Tamrakar (PW-7) examined her and gave his report (Ex.P-12), in which, he found that Smt. Shikha Bhattacharya (PW-4) had sustained bum injuries about 60%. He referred her to Jawaharlal Nehru Hospital, Sector 9, Bhilai for further treatment. Dr. Mamta Sikoria (PW-11) admitted Smt. Shikha Bhattacharya (PW-4) in Jawaharlal Nehru Hospital, gave treatment to her and gave her report (Ex.P-16). S.N. Goswami (PW -2) made written complaint (Ex.P-7) to the Superintendent of Police, Rajnandgaon. S.R. Diwan (PW-14) investigated the matter and sent his report (Ex.P-21) to the S.P., Rajnandgaon and thereafter regular First Information Report (Ex.P-22) was recorded in Police Station Dongargarh. In further investigation, Exs.P-2 to P-6, i.e., case memo were seized vide Ex.P-1. Pieces of burnt saree, blouse and stove were seized from the place of occurrence vide Ex.P-9. Bed-Head Ticket was also seized vide Ex.P-15. Godrej Almirah, dressing table, Gadda and Thali etc. were also seized vide Ex.P-19. In further investigation, Exs.P-2 to P-6, i.e., case memo were seized vide Ex.P-1. Pieces of burnt saree, blouse and stove were seized from the place of occurrence vide Ex.P-9. Bed-Head Ticket was also seized vide Ex.P-15. Godrej Almirah, dressing table, Gadda and Thali etc. were also seized vide Ex.P-19. Spot map (Ex.P-18) was also prepared. After completion of the investigation, charge sheet was filed against the appellant and acquitted co-accused persons in the Court of Additional Chief Judicial Magistrate, Dongargarh, who, in turn, committed the case to the Court of Session, Rajnandgaon, from where, it was received on transfer by 1st Additional Sessions Judge, Rajnandgaon, who, conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted the co-accused persons. Learned 1st Additional Sessions Judge framed charges of offence under Sections 498-A and 307 IPC against the appellant and under Section 498-A IPC against the acquitted co-accused persons. The appellant and the acquitted co-accused persons have been acquitted of charges under Section 498-A IPC. The appellant has been convicted under Section 307 IPC and sentenced as mentioned above. 3. Shri Sunil Sahu, learned counsel for the appellant argued that S.N. Goswami (PW-2) is father, Smt. Lekha Bhattacharya (PW-3) is sister, Tanup Kumar (PW-10) and Tamal Kumar (PW-1) are brothers of Smt. Shikha Bhattacharya (PW-4). They are interested witnesses. The independent witnesses did not support the case of the prosecution. The prosecution failed to prove that Smt. Shikha Bhattacharya (PW-4) was subjected to cruelty or harassment by the appellant. Smt. Shikha Bhattacharya (PW-4) specifically stated in her case diary statement that she was burnt accidentally during preparing tea. Learned counsel further submitted that there is sufficient material which indicates that Smt. Shikha Bhattacharya (PW-4) burnt accidentally. The prosecution has utterly failed to establish the ingredients of offence under Section 307 IPC. The co-accused persons have been acquitted. Therefore, on the same set of evidence, the appellant cannot be convicted. The appellant also deserves to be acquitted of the charge framed against him. 4. On the contrary, Smt. Madhunisha Singh, learned Panel Lawyer for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. I have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 26/2002 with utmost circumspection. On the contrary, Smt. Madhunisha Singh, learned Panel Lawyer for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded to the appellant do not warrant any interference by this Court. 5. I have heard learned counsel for the parties at length and have also perused the record of Sessions Trial No. 26/2002 with utmost circumspection. Conviction of the appellant is based on the evidence of Tamal Kumar (PW-1), S.N. Goswami (PW-2), Smt. Lekha Bhattacharya (PW-3), Smt. Shikha Bhattacharya (PW-4) and Tanup Kumar (PW-10). 6. It is not disputed that the marriage of Smt. Shikha Bhattacharya (PW-4) was performed with the appellant on 26-6-2000. 7. Tamal Kumar (PW-1), S.N. Goswami (PW-2), Smt. Lekha Bhattacharya (PW-3), Smt. Shikha Bhattacharya (PW-4) and Tanup Kumar (PW-10) deposed that marriage of Smt. Shikha Bhattacharya (PW-4) was solemnized with the appellant on 26-6-2000. S.N. Goswami (PW-2) had given sufficient dowry in the marriage. They further deposed that the appellant had demanded money. Tamal Kumar (PW-1) deposed that he had given Rs. 3,000/- and Rs. 5,000/- to the appellant on demand made by Smt. Shikha Bhattacharya (PW-4). They further deposed that the appellant started ill-treating Smt. Shikha Bhattacharya (PW-4) and caused severe mental torture to her due to her infertility. 8. Smt. Shikha Bhattacharya (PW-4) deposed that on 19-6-2001, at about 6-6:30 AM, she prepared tea for her brother-in-law and sister-in-law on stove. At about 7:15 AM, the appellant came there, poured kerosene on her and set her on fire. At that time, her brother-in-law and sister-in-law went out of the house. She further deposed that she shouted for help and rolled over the earth, then the appellant tried to extinguish fire by pouring water on her. She further deposed that the appellant took her Dongargarh Hospital from where she was referred to Jawaharlal Nehru Hospital, Sector 9, Bhilai. 9. Tamal Kumar (PW-1), S.N. Goswami (PW-2) and Tanup Kumar (PW-10) deposed that Smt. Lekha Bhattacharya (PW-3) told them that Smt. Shikha Bhattacharya (PW-4) had burnt and had been admitted in Jawaharlal Nehru Hospital, Sector 9, Bhilai where Smt. Shikha Bhattacharya (PW-4) narrated the incident to them. 10. Dr. A.K. Tamrakar (PW-7) deposed that on 19-6-2001, at about 8:30 AM, Smt. Shikha Bhattacharya (PW-4) was brought in CHC, Dongargarh. 10. Dr. A.K. Tamrakar (PW-7) deposed that on 19-6-2001, at about 8:30 AM, Smt. Shikha Bhattacharya (PW-4) was brought in CHC, Dongargarh. He gave information to the police station vide Ex.P-11 and thereafter he treated Smt. Shikha Bhattacharya (PW-4) and gave his report (Ex.P-12), in which, he found superficial burn injuries 1-2 hours old and the burn was to the extent of about 60%. He further deposed that he referred Smt. Shikha Bhattacharya (PW-4) to Jawaharlal Nehru Hospital, Sector 9, Bhilai. 11. Dr. Mamta Sikoria (PW-11) deposed that on 19-6-2001, Smt. Shikha Bhattacharya (PW-4) was brought to Jawaharlal Nehru Hospital, Sector 9, Bhilai in burnt condition. Smt. Shikha Bhattacharya (PW-4) was admitted in the hospital from 19-6-2001 to 30-7-2001. Smt. Shikha Bhattacharya (PW-4) had sustained 60% burn injures. She further deposed that she had given her report (Ex.P-16). 12. In Dharnidhar Vs. State of Uttar Pradesh and others (2010)7 SCC 759 , the Hon'ble Supreme Court held as follows: "12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the Court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry, (2010) 1 SCC 199 , this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim. The Court held as under: (SCC p. 213, paras 23-24) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim." 13. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim." 13. Similar view was taken by this Court in Ram Bharosey v. State of U.P., (2010) 1 SCC 722 , where the Court stated the dictum of law that a close relative of the deceased does not, per se, become an interested witness. An interested witness is one who is interested in securing the conviction of a person out of vengeance or enmity or due to disputes and deposes before the court only with that intention and not to further the cause of justice. The law relating to appreciation of evidence of an interested witness is well settled, according to which, the version of an interested witness cannot be thrown overboard, but has to be examined carefully before accepting the same." 13. In Brahm Swaroop and another Vs. State of U.P. AIR 2011 SC 280 , AIR 2011 SC 280 , the Hon'ble Supreme Court held as follows: "21. Merely because the witnesses were closely related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that effects the credibility of a witness, moreso, a relation would not conceal the actual culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence. (Vide: Dalip Singh & Ors. v. State of Punjab, AIR 1953 SC 364 ; Masalti v. State of U.P., AIR 1965 SC 202 ; Lehna v. State of Haryana, (2002) 3 SCC 76 ; and Rizan & Anr. v. State of Chhattisgarh through The Chief Secretary, Government of Chhattisgarh, Raipur; Chhattisgarh, (2003) 2 SCC 661 ): ( AIR 2003 SC 976 ).” {See also Shaukat Vs. State of Uttaranchal (2010) 5 SCC 68 , (Paragraphs 35 and 36)} 14. v. State of Chhattisgarh through The Chief Secretary, Government of Chhattisgarh, Raipur; Chhattisgarh, (2003) 2 SCC 661 ): ( AIR 2003 SC 976 ).” {See also Shaukat Vs. State of Uttaranchal (2010) 5 SCC 68 , (Paragraphs 35 and 36)} 14. In paragraph 22 of the decision in Brahm Swaroop AIR 2011 SC 280 (supra), the Hon'ble Supreme Court held that where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes within a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. 15. In Waman and others Vs. State of Maharashtra (2011)7 SCC 295 , the Hon'ble Supreme Court held as follows: "17. In Balraje v. State of Maharashtra, (2010) 6 SCC 673 , this Court held that the mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. After saying so, this Court held that: (SCC p. 679, para 30) "30. ....... if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." 19. The above principles have been once again reiterated in State of U.P. v. Naresh, (2011) 4 SCC 324 . Here again, this Court has emphasized that relationship cannot be a factor to affect the credibility of a witness. The following statement of law on this point is relevant: (SCC p. 334, para 29) "29. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. Here again, this Court has emphasized that relationship cannot be a factor to affect the credibility of a witness. The following statement of law on this point is relevant: (SCC p. 334, para 29) "29. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh v. State of Punjab, (2009) 9 SCC 719 , Vishnu v. State of Rajasthan, (2009) 10 SCC 477 and Balraje, (2010) 6 SCC 673 .)" 16. Smt. Shikha Bhattacharya (PW-4) is wife of the appellant. In normal circumstances, no woman makes false allegations against her husband or tries to falsely implicate her husband. In the instant case, Smt. Shikha Bhattacharya (PW-4) specifically deposed that the appellant started ill-treating her and caused severe mental torture to her and on the date of incident, the appellant poured kerosene on her and set her on fire. The evidence of Smt. Shikha Bhattacharya (PW-4) is corroborated by Tamal Kumar (PW-1), S.N. Goswami (PW-2), Smt. Lekha Bhattacharya (PW-3) and Tanup Kumar (PW-10) and also by medical evidence. There is no motive to falsely implicate the appellant. 17. Smt. Shikha Bhattacharya (PW-4) deposed that her husband had threatened her not to disclose the incident to anyone, therefore, she did not disclose the incident immediately. On 4-7-2001, she narrated the incident to her elder sister Smt. Lekha Bhattacharya (PW-3). Smt. Lekha Bhattacharya (PW-3) deposed that on 4-7-2001, at about 11:00 AM, Smt. Shikha Bhattacharya (PW-4) narrated the incident to her that her husband (the appellant) came to her and poured kerosene on her and set her on fire. She further deposed that Smt. Shikha Bhattacharya (PW-4) also told her that the appellant had threatened her of life in case she will disclose the incident to anyone, therefore, she did not disclose the incident. 18. I have carefully perused the evidence of Smt. Shikha Bhattacharya (PW-4). She specifically deposed that on the date of incident, she was preparing tea on stove. 18. I have carefully perused the evidence of Smt. Shikha Bhattacharya (PW-4). She specifically deposed that on the date of incident, she was preparing tea on stove. At that time, the appellant came behind her and poured kerosene on her and set her on fire. Dr. A.K. Tamrakar (PW-7) specifically deposed that hairs of head of Smt. Shikha Bhattacharya (PW-4) were burnt and smell of kerosene was present there. Both the cheeks, lower aspect of jaw, left side of forehead and left ear were also burnt. Looking to the medical evidence, the defence taken by the appellant that Smt. Shikha Bhattacharya (PW-4) burnt accidentally, is not acceptable. 19. I have carefully perused the evidence of Smt. Shikha Bhattacharya (PW-4). Her evidence is corroborated by the evidence of Smt. Lekha Bhattacharya (PW-3) as also by medical evidence. From the above, it is apparent that the testimony of Smt. Shikha Bhattacharya (PW-4) is reliable and cogent. 20. Now, it is to be seen whether the offence of the appellant is punishable under Section 307 IPC? 21. In State of Madhya Pradesh Vs. Kedar Yadav (2011) 1 SCC (Cri) 1008, the Hon'ble Supreme Court observed as follows: "12. To justify a conviction under this section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some over act in execution thereof. 13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt." 22. Smt. Shikha Bhattacharya (PW-4) deposed that on the date of incident, the appellant poured kerosene on her and set her on fire. Dr. A.K. Tamrakar (PW-7) and Dr. Mamta Sikoria (PW-11) deposed that Smt. Shikha Bhattacharya (PW-4) had sustained 60% burn injures and hairs of her head, both the cheeks and left ear etc. were burnt. 23. In the instant case, the manner of pouring kerosene on Smt. Shikha Bhattacharya (PW-4) and setting her on fire by the appellant and the nature of the injuries sustained by Smt. Shikha Bhattacharya (PW-4) clearly communicate the intention of the appellant which was none else than attempt to end the life of the victim. Therefore, the learned Additional Sessions Judge has rightly held the appellant guilty for the offence punishable under Section 307 IPC. 24. For the foregoing reasons, I do not find any infirmity in the finding recorded by learned Additional Sessions Judge and the same does not call for any interference. 25. In the result, the appeal, being devoid of any merit, is liable to be and is hereby dismissed. The appellant shall surrender before the trial Court forthwith to serve remaining part of jail sentence, if any. Appeal Dismissed.