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2014 DIGILAW 181 (JHR)

Rajendra Sharma @ Pintu v. State of Jharkhand

2014-01-29

AMITAV K.GUPTA, PRASHANT KUMAR

body2014
JUDGMENT BY COURT.-This appeal has been filed against the judgment of conviction dated 09.12.2003 and order of sentence dated 15.12.2003 passed by Additional Sessions Judge, Fast Track Court-VIII, Jamshedpur in Sessions Trial No. 327 of 2001, whereby and where under the appellant convicted under section 302 of the Indian Penal Code for committing murder of his wife, namely, Nirmala Devi and sentenced to undergo imprisonment for life. 2. The case of prosecution, in short, as per the Farbdeyan of deceased Nirmala Devi is that on 24.01.2001 at about 6.00 P.M. her husband, namely, Rajendra Sharma @ Pintu (appellant) started quarreling with her and asked her to bring bicycle from the house of her brother. It is then alleged that because of aforesaid quarrel, she poured kerosene oil on her body with a view to scared the appellant, however, the appellant put fire on her body, due to that she received burn injury. It appears that she was brought to M.G.M. Hospital for treatment, where her Fardbeyan recorded. 3. On the basis of aforesaid Fardbeyan Sidgora P.S.case no.16 of 2001 dated 24.01.2001 instituted under sections 498A /324/307 of the Indian Penal Code. It appears that on the next day of occurrence, deceased died in the hospital. Accordingly, offence under section 302 of the Indian Penal Code added. During investigation, police prepared inquest on the dead body of the deceased and sent it for postmortem examination. It also appears that investigating officer recorded statement of the witnesses and after completing the investigation, submitted charge-sheet against the appellant under section 498A/324/307/302 of the Indian Penal Code. It appears that learned Judicial Magistrate took cognizance of the offences. Thereafter, case was committed to the court of Sessions, as the offences under sections 302 and 307 of the Indian Penal Code are exclusively triable by the court of Sessions. 4.Learned Additional Sessions Judge, Fast Track Court,VIII, Jamshedpur framed charges against the appellant under sections 498 (A),307,302 of the Indian Penal Code and explained the same to the appellant to which he pleaded not guilty and claimed to be tried. Thereafter, prosecution examined altogether 07 (seven) witnesses in support of its case. Prosecution also filed documents such as, Ext.1 (postmortem report), Ext.2 (Fardbeyan), Ext.3 (formal F.I.R.), Ext.4 ( inquest report), Ext. 5 ( certified copy of F.I.R. of Sidgora P.S.case no.155/2000 and Ext.6 ( certified copy of order dated 08.01.2001 in G.R. case no.1965/2001). Thereafter, prosecution examined altogether 07 (seven) witnesses in support of its case. Prosecution also filed documents such as, Ext.1 (postmortem report), Ext.2 (Fardbeyan), Ext.3 (formal F.I.R.), Ext.4 ( inquest report), Ext. 5 ( certified copy of F.I.R. of Sidgora P.S.case no.155/2000 and Ext.6 ( certified copy of order dated 08.01.2001 in G.R. case no.1965/2001). It appears that after considering the evidence available on record, learned Sessions Judge acquitted the appellant under sections 498(A)/307 of the Indian Penal Code. However, convicted him under section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life. Against the aforesaid judgment of conviction and order of sentence, present appeal filed. 5. Sri Yogesh Modi, learned Amicus Curiae (appointed from the panel of defence lawyer of JHALSA) submits that in the instant case, appellant has been convicted on the basis of alleged dying declaration of the deceased. It is submitted that there is nothing on record to show that at the time of recording of alleged dying declaration deceased was conscious and was in a position to speak. He submits that in the Fardbeyan, the certificate of the doctor has not been taken to show that at the time of recording of aforesaid Fardbeyan, she was conscious. Sri Modi, further submits that the doctor who conducted post-mortem examination on the dead body of deceased has found 98% burn injury on her body. Under such circumstance, she was not in a position to speak. Thus, alleged dying declaration cannot be relied upon for convicting the appellant. Sri Modi, further submits that even assuming that the deceased had given aforesaid statement regarding the occurrence, then also no offence under section 302 of the Indian Penal Code is made out. He submits that from perusal of Fardbeyan and statements of P.W. 3 and P.W. 5 it is clear that deceased herself poured Kerosene Oil on her body and provoked appellant for putting fire on her body. Thus, it is clear that aforesaid occurrence occurred in grave and sudden provocation, as a result, of altercation between the appellant and deceased. Therefore, exception (1) to section 300 of the Indian Penal Code will apply in this case. It is submitted that under the aforesaid circumstance, appellant can be punished under section 304 Part-II of the Indian Penal code. Thus, it is clear that aforesaid occurrence occurred in grave and sudden provocation, as a result, of altercation between the appellant and deceased. Therefore, exception (1) to section 300 of the Indian Penal Code will apply in this case. It is submitted that under the aforesaid circumstance, appellant can be punished under section 304 Part-II of the Indian Penal code. It is submitted that the appellant has already remained in custody for more than 12 years, thus, he has been sufficiently punished for his misdeeds. 6. On the other hand, Sri Ravi Prakash, learned Additional Public Prosecutor submits that the appellant knowingly put fire on the body of deceased. He further submits that in the instant case, the doctor, who conducted post-mortem examination, has stated that after receiving injury, the deceased may remain conscious for sometime. He further submits that while cross-examining the witnesses, no suggestion given to them that when they met deceased in the hospital, she was unconscious. Accordingly, he submits that defence had admitted that at the time of recording of the First Information Report and/or while talking to P.W.3 and P.W.5 deceased was conscious. Thus, even though no certificate given by the doctor, dying declaration of the deceased is reliable and can be taken into consideration for convicting the appellant. Sri Ravi Prakash , further submits that in the instant case, appellant put fire on the deceased intentionally. He further submits that just after putting the fire, the appellant fled away. This shows that he had intention to kill deceased. Accordingly, he submits that offence under section 302 of the Indian Penal Code is made out. Therefore, the court below has rightly convicted and sentenced the appellant for the said offence. 7. Having heard the submission, we have gone through the records of the case. 8. P.W. 4 is the doctor, who conducted autopsy on the dead body of deceased (Nirmala Devi). He deposed that he found 98% anti-mortem burn injury on the dead body of deceased. He further gave opinion that deceased died due to shock of burn injuries. He further gave opinion that the nature of burn is not accidental. Aforesaid, deposition of P.W. 4 has not been challenged in the cross-examination. The inquest report Exhibit- 4 also supports the version of P.W. 4. Considering the aforesaid fact and circumstance, we conclude that the deceased died a homicidal death. 9. He further gave opinion that the nature of burn is not accidental. Aforesaid, deposition of P.W. 4 has not been challenged in the cross-examination. The inquest report Exhibit- 4 also supports the version of P.W. 4. Considering the aforesaid fact and circumstance, we conclude that the deceased died a homicidal death. 9. P.W. 3 and P.W. 5 who are brother and mother of deceased has stated that after knowing about the occurrence they went to M.G.M hospital. At that time deceased was conscious. When they made query deceased disclosed that some altercation took place in between deceased and the appellant for brining bicycle. During the said altercation appellant assaulted the deceased. She further disclosed that she poured Kerosene Oil on her body with a view to frighten appellant. But the appellant put fire on her body, due to that she received burn injuries. We find that deceased made similar statement before the Sub-Inspector of Police, namely, Shayam Kishore Singh, who recorded her Fardbeyan in the hospital. 10. The contention of Sri Modi that at the time of recording of Fardbeyan and/or by the time P.W. 3 and P.W. 5 reached to M.G.M hospital, and met deceased, she was not conscious, can not be accepted. The doctor who conducted autopsy in course of cross-examination at paragraph No.-5 had categorically stated that the deceased might be conscious for sometime after receiving burn injury. We further find that no suggestion given to P.W.3 and P.W. 5 that when they reached to M.G.M Hospital, deceased was unconscious and not in a position to speak. In view of the aforesaid fact and circumstance, the contention of Sri Modi is liable to be rejected. 11. In view of the statement of deceased, we find that the appellant had put fire on the body of deceased, due to that she received burn injuries and died. Now, the only question arose for determination as to whether the appellant had put fire on the body of the deceased with intention to commit her murder? 12. In the instant case, it is admitted by the prosecution that at the time of occurrence, some altercation was going on in between the deceased and the appellant in connection with bringing of bicycle from the house of P.W. 3. The prosecution also admitted that in course of said altercation, deceased was beaten by the appellant. 12. In the instant case, it is admitted by the prosecution that at the time of occurrence, some altercation was going on in between the deceased and the appellant in connection with bringing of bicycle from the house of P.W. 3. The prosecution also admitted that in course of said altercation, deceased was beaten by the appellant. Due to the said altercation and assault, deceased with a view to frighten the appellant, poured kerosene oil on her body. During that period itself, the appellant put fire on her body. This shows that prior to the occurrence, appellant had no intention to commit murder of deceased. It appears that in course of the occurrence appellant suddenly provoked by seeing that the deceased poured kerosene oil on her body and because of said provocation, he put fire on the body of the deceased. Under the said circumstance, in our considered view, the present case comes within the Exception (1) to section 300 of the Indian Penal Code. Therefore, we conclude that the offence under section 302 of the Indian Penal code is not made out against the appellant, whereas appellant is guilty for the offence under section 304 Part-I of the Indian Penal code. 13. It reveals from the record that the appellant actually remains in custody for 12 years 11 months and 23 days. Under the said circumstance, the period he remains in custody is sufficient and no separate sentence is required to be passed against him. 14. In view of the discussions made above, this appeal is partly allowed and the impugned judgment of conviction and order of sentence passed by Additional Sessions Judge, Fast Track Court-VIII, Jamshedpur in Sessions Trial No. 327 of 2001 under section 302 of the I.P.C. is hereby modified and the appellant is convicted under section 304 Part-I of the Indian Penal Code and he is sentenced to the period already undergone by him in custody. Appellant, namely, Rajendra Sharma @ Pintu, who is in custody, is directed to be released forthwith, if not wanted in any other case.