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2014 DIGILAW 367 (CHH)

Puran Chand v. State of C. G.

2014-10-17

NAVIN SINHA

body2014
JUDGMENT Navin Sinha, Actg. C.J. 1. The appellant stands convicted under Section 307 IPC by the First Additional Sessions Judge, Raigarh in Sessions Trial No. 169 of 99 dated 15th January, 2001 and ordered to undergo 3 years rigorous imprisonment. PW 1, Krishna Kumar Behra lodged a First Information Report on 28.6.1999, Exhibit P/1, under Section 307 IPC naming the appellant alleging that his sister, PW 2, Bilasa Bai, had conceived from the appellant who was her neighbor, a year earlier. She was forced to abort by the appellant. A Panchayat was held, the appellant had agreed to keep her but started relenting soon after. His sister PW 2, then stopped coming home. On 26.6.1999 the appellant gave her milk laced with poison "Phoskill" saying the medicine would help her regain strength. The stink in the milk made it difficult to drink and she spat it out. The appellant wanted to kill her as he did not wish to keep her. His sister was not willing to report to the police saying that if she complained against the appellant where would she live. She was unable to eat for past two days and her voice had been choked since previous night. Her mother was taking her to the hospital for treatment. The witness met them on the way and took her to the police station to lodge a report. 2. Learned counsel for the appellant submitted that there was two days delay in lodging the report giving sufficient time for embellishments. There is no satisfactory explanation for the same. PW 2 herself stated that she was not interested in lodging a report. PW 1 in deposition stated PW 2 had been administered "Democrone" pesticide. The FSL report states the insecticide was "Phoskill". PW 2 had denied that she had any love or affection for the appellant. The alleged signatories to the Panchayat settlement had denied the same. It was lastly submitted that conviction for three years under 307 IPC was not justified. If any offence had been made out conviction ought to have been under 324 IPC for which the maximum punishment was three years. The appellant has already undergone approximately seven months of custody which is sufficient punishment in the facts and circumstances of the case. 3. Counsel for the State opposing the appeal submitted that PW 2 was not a stranger to the appellant but his own wife. The appellant has already undergone approximately seven months of custody which is sufficient punishment in the facts and circumstances of the case. 3. Counsel for the State opposing the appeal submitted that PW 2 was not a stranger to the appellant but his own wife. Her evidence cannot be brushed away lightly. As the victim she is completely reliable for the purpose of conviction. 4. The Court has considered the submissions on behalf of the parties as also the material on record and evidence available. The appellant was married to one Shanti Bai about 12 years ago. He had an extra marital affair with PW 2 much to the dislike of her parents. She had to leave the parental home and moved in with the appellant. She conceived from him and the appellant had made her abort. The signatories to the Panchayat going hostile is irrelevant. The appellant under Section 313 Cr.P.C. acknowledged that PW 2 was his wife. 5. The delay in lodging of an F.I.R. cannot always be fatal by itself to the prosecution. Delay would be relative term. Much would depend on the facts of each case and the explanation for the same. PW 2 had an extra marital affair with the appellant. He does not deny the relationship. PW 2 had to leave her parental home because of the same. She had conceived from the appellant who made her abort. She was no more visiting her parental home. The witness had stated that she was reluctant to report to the police as in that event where would she live if the appellant also threw her out. She preferred to suffer the misery and had stayed without food for two days and her voice had started to choke. She obviously wanted to avoid further social stigma for herself considering her extra marital relations with a married man for which she had to pay a price by her own family distancing from her. That to the Court is sufficient a reasonable explanation for delay in the facts of the case. 6. PW 1 deposed that PW 2 had conceived from the appellant earlier and was made to abort. No question was asked to him in this regard during cross examination. PW 2 deposed that the appellant asked her to drink the medicine. Finding the drink uncomfortable, she spat it out. 6. PW 1 deposed that PW 2 had conceived from the appellant earlier and was made to abort. No question was asked to him in this regard during cross examination. PW 2 deposed that the appellant asked her to drink the medicine. Finding the drink uncomfortable, she spat it out. The bottle from which the appellant poured the liquid was given to the police and sent to the FSL and the report confirmed it was "Phoskill" pesticide. She also stated that earlier the appellant had forced her to drink medicine leading to abortion. Again no question was asked in cross examination on behalf of the appellant in this regard. In cross examination, she specifically denied the suggestion that the appellant had not given anything to drink on the fateful night. She reiterated that she did not lodge any report with the police because the appellant would have thrown her out and she would have had no place to live. The occurrence had taken place inside the house at night. Quite naturally no independent witness will be available. Therefore the deposition of other prosecution witnesses with the exception of Doctor and I.O. are not relevant. PW 9, Dr. M.M. Wase, ENT Specialist who first saw PW 2 had opined that she was unable to open her mouth and talk and referred her to a specialist. PW 10, Dr. B.P. Kurre who then saw PW 2 deposed that PW 2 was unable to speak and open her mouth. He also stated that death could be caused by a toxic dose of "Phoskill" pesticide. PW 16, Investigating Officer confirmed of PW 2 going to the Doctors for medical checkup. 7. In a criminal trial there can be no standardized yardstick or formula for adequacy or inadequacy of evidence and justifiability of conviction. Each case presents its own peculiarities. The matter will have to be considered in light of the facts of each case. The appellant does not deny that he was married 10 to 11 years earlier to another. He acknowledges extra marital relations with PW 2 and does not deny that she conceived from him and that he had made her abort. No explanation or defence whatsoever is forthcoming from the appellant why PW 2 was falsely implicating him. The appellant does not deny that he was married 10 to 11 years earlier to another. He acknowledges extra marital relations with PW 2 and does not deny that she conceived from him and that he had made her abort. No explanation or defence whatsoever is forthcoming from the appellant why PW 2 was falsely implicating him. There has to be some reason or iota of material why PW 2 in the facts of the case would falsely implicate the appellant and risk the only roof she had left over her head. In Mangilal v. State of Rajasthan, (2001) 8 SCC 519 the wife survived and had deposed against the husband. Setting aside the order for acquittal of the husband on the ground of lack of evidence it was observed:-- "11. The wife Munki survived. She has given evidence as PW 6. We have perused her deposition. She deposed about being beaten by her husband regularly. She has deposed that on one occasion, when she was conceiving with a seven-month-old child, she had been beaten so badly that the child died in the womb and she had remained ill for 15 days. She deposed in clear terms that her husband i.e. the 2nd respondent had held her nose and poured the poison into her mouth, forcing her to take two or three sips of the poison. She deposed that she remained conscious and ten minutes thereafter started vomiting........." 8. The submission with regard to invocation of Section 324 IPC does not appeal to the Court merely because PW 2 survived by providence as the dose administered may have turned out inadequate. There is no evidence that the appellant did not intend to cause her death but only cause hurt to her. Obviously he wanted to do away with her because he had been forced to take her back in the house even while his first wife was there. The gravity of the offence cannot get reduced to one of hurt when his intention was otherwise. In conclusion the Court finds no reason to interfere with the conviction under appeal. The appellant is directed to surrender forthwith and be taken into custody and for serving out the remaining period of his sentence. The bail bonds of the appellant are cancelled. The appeal is dismissed. Appeal dismissed.