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2018 DIGILAW 270 (JHR)

Subhash Bouri v. State of Jharkhand

2018-02-01

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : H.C. Mishra, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the Judgment of conviction dated 19th of May, 2008 and Order of sentence dated 22nd of May, 2008, passed by the learned Additional Sessions Judge, F.T.C.-I, Bokaro, in Sessions Trial No. 236 of 2005, whereby, the sole appellant has been found guilty and convicted for the offences under Sections 376/511, 326 and 307 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the offence under Section 307 of the Indian Penal Code. He has again been sentenced to undergo imprisonment for life also for the offence under Section 326 of the Indian Penal Code. He has been sentenced to undergo R.I. for 5 years for the offence under Section 376, read with Section 511 of the Indian Penal Code, and fine of Rs. 500/- for each of the offences. All the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of the fardbeyan of the victim lady Geeta Devi, recorded at Referral Hospital, Bokaro, on 16.4.2005 at 19.45 hours, wherein she has stated that in the previous night, she was sleeping at the roof of her house along with her son Subal Bouri, aged about 10 years and daughter Sati Kumari, aged about 3 years, and 4-5 ladies of the neighborhood were also sleeping on the said roof along with their children. While they were sleeping, about 1.30 A.M., accused Subhash Bouri came there and made an attempt to commit rape upon her by removing her saree, whereupon she woke up and raised alarm. The ladies, sleeping nearby also woke up, whereupon, the accused Subhash Bouri threw acid on her face, due to which, her face, hair and other parts of the body were burnt. Her son, sleeping by her side, was also burnt by the acid thrown by the accused. Her husband was not present in the house, as he had gone to town for some work and he had not returned back, and the other male members in the family had gone to see a programme in another village. Her son, sleeping by her side, was also burnt by the acid thrown by the accused. Her husband was not present in the house, as he had gone to town for some work and he had not returned back, and the other male members in the family had gone to see a programme in another village. She has stated that as upon the alarm raised by her, the other ladies sleeping nearby, woke up, the accused could not commit rape upon her, therefore, he threw acid on her, causing burn injuries. On the basis of the fardbeyan given by the victim lady, Pindrajora P.S. Case No. 38 of 2005, corresponding to G.R. No. 401 of 2005, was instituted for the offences under Sections 376/511, 354, 324 and 307 of the Indian Penal Code, against the accused Subhash Bouri and investigation was taken up. After investigation, the police submitted the charge-sheet in this case. 4. Upon commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 376/511, 326 and 307 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, prosecution has examined 8 witnesses in this case, including the I.O. and the Doctor, who had examined the injuries of the victim lady and her son. 5. P.W.-2 Geeta Devi is the victim lady herself. This witness has stated that the occurrence had taken place 9 months ago at about 1.30 A.M. in the night, while she was sleeping along with her children Subal Bouri and Sati Kumari. Kajal Devi and her daughter Subhadra were also sleeping on the same roof. Subhash Bouri came on the roof by scaling over the roof and he attempted to commit rape upon her and when she objected, he threw acid on her face. This witness showed her burnt face in the Court and the Court has recorded that her face had been completely defaced and one eye was lost. This witness has stated that since the accused threw acid on her, there was burning sensation and she tried to wipe out the acid by her hand, due to which her hand was also burnt. She had lost her one eye and the lid of other eye was removed during her treatment. This witness has stated that since the accused threw acid on her, there was burning sensation and she tried to wipe out the acid by her hand, due to which her hand was also burnt. She had lost her one eye and the lid of other eye was removed during her treatment. Her left nostril was completely destroyed and the right nostril was also affected. The Court has recorded that all these injuries were apparently visible on her face. This witness has also stated that by the acid, thrown by the accused, her son was also injured and on his head from the back side, neck and back were burnt. She has stated that she was admitted to I.T.I. Hospital for her treatment, where her statement was recorded by the police, upon which, she had put her thumb impression, due to the fact that at that time she was not able to see. She has identified the accused in the Court. In her cross-examination by the defence, she has stated that there are roofs of two other houses, adjoining to her roof, which are the houses of Chhudha Bouri and of her elder brother-in-law. She has stated that the accused is her co-villager and he is her brother-in-law (devar) in relation, due to which, she was knowing him after her marriage. She has stated that the night of occurrence was a moonlit night. She has also stated that after the occurrence, the ladies nearby were talking that it was 1.30 in the night and whether they would get a doctor at this late night, by which, she came to know about the time of occurrence. She has admitted to have stated in her fardbeyan that 4-5 ladies of the neighbourhood were also sleeping on the same roof along with their children. She has stated that Kajal Devi was sleeping with her children, and there was one another lady also. She has again stated that when the accused shook her leg, she woke up and she raised alarm, thereafter, accused threw acid on her. She has again stated that when the accused lifted her saree, she knew that his intention was to ravish her. She has also stated that the accused had brought the acid in a coconut oil cane, which was found there. She remained in hospital for 4 months, undergoing the treatment. She has again stated that when the accused lifted her saree, she knew that his intention was to ravish her. She has also stated that the accused had brought the acid in a coconut oil cane, which was found there. She remained in hospital for 4 months, undergoing the treatment. After recording her statement, the police had visited her house and taken away the burnt cloths, but she has no knowledge as to who had given the burnt cloths to the police. She has stated that her husband has two wives and she has denied the suggestion that she used to sell liquor, due to which, the persons of questionable character used to visit her and due to some quarrel for selling the liquor, someone had thrown the acid upon her. She has admitted in her cross-examination that she used to dance and she used to get contract for that also. She has denied the suggestion that the acid was thrown on her in that connection and she has also denied the suggestion to have falsely implicated the accused. 6. P.W.-6 Subal Bouri, is the son of the victim lady and a child witness, aged about 12 years. He is also a victim of this crime. He was examined after the Court satisfied itself, by putting some questions to him, that he was able to testify. This witness has also stated that the occurrence had taken place, one year ago. He was sleeping in the night on the roof along with his mother and other ladies. He felt the burning sensation on his neck, whereupon, he woke up and saw Subhash Bouri fleeing away from the roof. He has stated that there was a lantern burning there. His mother was also screaming as her face was burnt. He was also treated for his injuries. He has shown his burnt portion to the Court and the Court has noted that the burnt portion was visible from the half of the head, back to neck and there was no hair on that portion. He has identified the accused in the Court. In his cross-examination, this witness has stated that he could not say the date or month of the occurrence. He has stated that the houses of Babu Lal and Mathur are adjacent to his house and he had seen the accused fleeing away from the roof of Mathur. He has identified the accused in the Court. In his cross-examination, this witness has stated that he could not say the date or month of the occurrence. He has stated that the houses of Babu Lal and Mathur are adjacent to his house and he had seen the accused fleeing away from the roof of Mathur. He has also stated that he was knowing the accused from before as he was his co-villager. He has denied the suggestion to have given the false evidence. 7. P.W-3 Subhadra Kumari @ Subhadra Bouri, the step-daughter of the victim lady and P.W.-4 Kajal Devi, who were also sleeping on the same roof, have also fully supported the prosecution case stating that in the night, they were sleeping on the same roof and they suddenly woke up on the screams of victim Geeta Devi and they saw the accused Subhash Bouri, fleeing away from the roof. Both of them have stated that at that time, there was a lantern burning at the place of occurrence. The face of Geeta Devi was burnt and her clothes were also burnt. Both these witnesses, have also stated that Subal Bouri was also burnt by acid and Sati Kumari was also affected by the acid thrown by the accused. P.W.-3 Subhadra Kumari @ Subhadra Bouri has stated in her cross-examination that adjuscent to her roof, are the roofs of Babu Lal and Mathur Bouri. P.W.-4 Kajal Devi has also stated in her cross-examination that the victim is her Gotani and at the time of occurrence, Paro Devi and Parwati Devi were also sleeping on the same roof. She has also stated that the entire face of the victim was burnt and her hand was also burnt. The bed (gendra), on which, Geeta Devi was sleeping, was also burnt. She has denied the suggestion that Geeta used to sell the liquor, due to which, persons of questionable character used to visit. She has denied the suggestion to have given the false evidence. 8. P.W.-1 Nathu Bouri is the husband of the victim. He has stated that on the date of occurrence, he was not in his village and he returned on the next day evening, when he was informed that his wife was admitted in Referral Hospital. He went there and saw his wife and child, burnt by acid. 8. P.W.-1 Nathu Bouri is the husband of the victim. He has stated that on the date of occurrence, he was not in his village and he returned on the next day evening, when he was informed that his wife was admitted in Referral Hospital. He went there and saw his wife and child, burnt by acid. His wife informed him that in the night at about 1.30-2.00 A.M., Subhash Bouri had pulled her cloth with ulterior motive and when she raised alarm, he threw acid on her face, due to which, she and her son, sleeping by her side were burnt. His daughter was also slightly burnt by the acid. This witness has stated the accused was trying to ravish her. He has also stated that the police was already informed and on the next day, the police also visited his house and the burnt cloths of the victims and the burnt bed (gendra) were also given to the police, which were seized. He and the witness Babu Lal had put their signatures on the seizure list, which on his identification were marked Exhibits-1 and 1/1. He has identified the accused in the Court. This witness has stated that when he went to the hospital, his wife was almost unconscious, but she was talking. To the court’s question, this witness has stated that she became fully conscious after about one month. He has admitted in his cross-examination that he has two wives and his victim wife used to dance. He has denied the suggestion that his brothers were doing business of liquor, due to which, people of questionable character were in visiting terms. He has stated that he has not seen the occurrence, rather he has deposed as informed by his wife. He has denied the suggestion to have falsely implicated the accused in this case. 9. P.W.-5 Kokil Bouri is another hearsay witness. This witness has stated that the accused Subhash Bouri had attempted to commit rape upon the victim lady and when he failed in his attempt, he threw acid on her face, due to which, her face was completely defaced and she lost her eye and her children were also burnt by the acid. P.W.-5 Kokil Bouri is another hearsay witness. This witness has stated that the accused Subhash Bouri had attempted to commit rape upon the victim lady and when he failed in his attempt, he threw acid on her face, due to which, her face was completely defaced and she lost her eye and her children were also burnt by the acid. He has stated that he had brought the victim to the hospital and the police had also visited the hospital and recorded the fardbeyan of the victim in his presence, upon which, he and Amardeo Bouri had put their signatures and the Geeta Devi had put her thumb impression. He has identified the signatures on the fardbeyan, which were marked Exhibits 2 and 2/1 respectively. In his cross-examination, he had stated that he had not seen the occurrence and he has denied the suggestion to have falsely implicated the accused in this case. 10. P.W.-7 is Dr. P. Kumar, who had examined Geeta Devi, the victim lady, on 16.4.2005 and had found the following injures on her person:- (i) Acid burn of face, neck, ear and both eyes, and chest. Eye became red and corn was swelled. The opinion about the nature of the injuries was kept preserved for want of expert opinion for eye. He has identified the injury report to be in his pen and signature, which was marked Exhibit-3. On the same day, he had examined Subal Bouri and found the following injuries on him:- (i) Acid burn on neck and back side on the clutial side. The nature of the injury was simple and he has identified the injury report, to be in his pen and signature, which was marked Exhibit-4. He has identified both the victims in the Court. To the Court’s question, this witness has stated that on seeing the face of the injured, he was of the view that one of her eye had become completely damaged and the injury was grievous. 11. P.W.-8 Sitaram Oraon is the I.O. of the case. This witness has stated that on 16.4.2005, he was posted at Pindrajora Police Station and he had recorded the fardbeyan of the victim lady at Referral Hospital, which he has identified to be in his pen and signature, and containing the signatures of witnesses and thumb impression of the informant, and on his identification, the fardbeyan was marked Exhibit-2/2. This witness has stated that on 16.4.2005, he was posted at Pindrajora Police Station and he had recorded the fardbeyan of the victim lady at Referral Hospital, which he has identified to be in his pen and signature, and containing the signatures of witnesses and thumb impression of the informant, and on his identification, the fardbeyan was marked Exhibit-2/2. He has proved the endorsement on the fardbeyan, which was marked Exhibit-2/3. He has also proved the formal F.I.R., which was marked Exhibit-5. He had inspected the place of occurrence and has given the details of the place of occurrence. He has stated that he had seized acid burnt cloths and one old bed (gendra) from the place of occurrence and had prepared the seizure list, which also, he has proved and the same was marked Exhibit-6. This witness has produced the acid burnt cloths, the bed (gendra) etc., in the Court, which were marked material Exhibits-I to VI. He had recorded the statements of the witnesses. He has also stated that in the injury report, the opinion about the nature of injury of the victim was kept reserved and he got the opinion of the eye specialist, who had reported the said injury to be grievous. He has produced the opinion of Dr. Arun Prasad and has stated that the said opinion was written by the doctor in his presence, and the same was marked Exhibit-7. After completing the investigation, he submitted the chargesheet against the accused, for the offences under Sections 376 / 511, 324, 326 and 307 of the Indian Penal Code. In his cross-examination, this witness has stated that the material exhibits produced in the Court were seized by him from the house of the victim and he used to visit the hospital, while the victim was admitted. He had not seized any container of the acid from the place of occurrence and he had not measured the length and width of the roof. He has denied that the doctor’s report, Exhibit-7 was false and he has also denied the suggestion to have made faulty investigation. 12. The statement of accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No evidence was adduced by the defence. 13. He has denied that the doctor’s report, Exhibit-7 was false and he has also denied the suggestion to have made faulty investigation. 12. The statement of accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No evidence was adduced by the defence. 13. On the basis of the evidence on record, the accused appellant was found guilty, convicted and sentenced by the Trial Court below, for the offences as aforesaid. 14. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, are absolutely illegal and cannot be sustained in the eyes of law. It is submitted that this is a case of false implication of the accused and it is an admitted fact that the victim lady used to dance and take contract for that, and it cannot be ruled out that she was in contact with the people of questionable character and in that connection she was burnt by acid. Learned counsel also submitted that even though, it is specifically stated that the accused had brought acid in a container of coconut oil, which was found at the place of occurrence, but no such container had been seized by the police. Learned counsel, accordingly, submitted that it is a fit case, in which, the appellant ought to have given the benefits of doubt. 15. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the occurrence is fully proved by the eyewitnesses to the occurrence and P.W.-2 Geeta Devi and P.W.-6 Subal Bouri, are the victim themselves and both of them have named the accused Subhash Bouri. The victim P.W.-2 Geeta Devi has stated that when the accused failed in his attempt of committing rape upon her, he threw acid on her face, due to which, she and her son were burnt. P.W.-6 Subal Bouri has stated that he woke up upon burning sensation on his neck. He saw the accused Subhash Bouri fleeing away from the roof. P.W.-6 Subal Bouri has stated that he woke up upon burning sensation on his neck. He saw the accused Subhash Bouri fleeing away from the roof. The other two eye witnesses, namely, P.W.-3 Subhadra Kumari @ Subhadra Bouri and P.W.-4 Kajal Devi have also stated that they woke up on the screams of Geeta Devi and saw her face burnt and they also saw burn injuries on the children of Geeta Devi and they saw the accused fleeing away from the place of occurrence. The other material witnesses are the hearsay witnesses, P.W.-1 Nathu Bouri, the husband of the victim and P.W.-5 Kokil Bouri, and they were informed about the occurrence by the victim herself. P.W.-5 Kokil Bouri is also the person, who had brought the victim to the hospital and he is also the witness to the fardbeyan of the victim. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-7 Dr. P. Kumar. Learned counsel, accordingly, submitted that in view of the evidence of these witnesses, the prosecution has been able to bring home the charges against the accused beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, and the appeal is fit to be dismissed. 16. Having heard counsels for both the sides and upon going through the record, we find that the case is fully supported by P.W.-2 Geeta Devi, who is victim herself. She has clearly stated that the accused Subhash Bouri, who was her co-villager and brother-in-law (devar) in relation, had attempted to commit rape upon her and when he failed in his attempt, he threw acid on her, badly injuring her face. The Court has noted down the injuries on this victim and has stated that her face was completely defaced. The victim has lost one eye and one nostril and the other nostril was also affected. The eyelid of the other eye was also removed during treatment. This victim has also stated that due to said injuries, she had undergone treatment for four months in the hospital, which fact, looking into the injuries of the victim, does not appear to be completely exaggerated. The eyelid of the other eye was also removed during treatment. This victim has also stated that due to said injuries, she had undergone treatment for four months in the hospital, which fact, looking into the injuries of the victim, does not appear to be completely exaggerated. This witness has also stated that by the acid thrown by the accused Subhash Bouri, her children were also injured and P.W.-6 Subal Bouri, who is son of the victim, has also fully supported this fact, stating that he woke up on the burning sensation on his neck and he also saw the accused fleeing away from the roof. He has also shown his injuries to the Court and the Court has found that from the half of the head back to his neck, there was no hair as it was burnt by acid. However, the fact remains that for causing this injury on P.W.-6 Subal Bouri, this accused has neither been charged nor has been convicted and sentenced. The evidence of these witnesses are fully supported by P.W.-3 Subhadra Kumari @ Subhadra Bouri and P.W.-4 Kajal Devi, who were also sleeping nearby, and they woke up on the screams of the victim lady and saw the accused fleeing away from that place. The wearing apparels and the bed (gendra) were also burnt by acid, which were seized by the police and they were also produced in the Court and marked material exhibits. All these evidences are fully corroborated by the medical evidence of P.W.-7 Dr. P. Kumar and the injury reports proved by him as Exhibits-3 and 4. He has also replied to the Court's question on seeing the face of the injured, that the injury was grievous. The submission that the victim lady used to dance and take contract for that, and it cannot be ruled out that she was in contact with the people of questionable character, has only to be brushed aside and cannot be taken into consideration, in view of the unimpeachable evidence brought on record by the prosecution. We are of the considered view that on the basis of the evidence on record, the prosecution has been able to bring home the charge against the accused for the offences under Sections 376 / 511, 326 and 307 of the Indian Penal Code. We are of the considered view that on the basis of the evidence on record, the prosecution has been able to bring home the charge against the accused for the offences under Sections 376 / 511, 326 and 307 of the Indian Penal Code. As regards the quantum of sentence, as the accused has been sentenced to undergo life imprisonment, for both the offences under Sections 326 and 307 of the Indian Penal Code, we find that taking into consideration the fact that this is a case of acid throwing by the accused, in which, the entire face of the victim lady had been completely defaced and she has also lost her one eye and nostril, and even the eyelid of the other eye had to be removed during treatment, it is a case, in which, the Trial Court below has rightly sentenced the accused appellant to the imprisonment for life for both these offences and the sentences, passed by the Trial Court below need no interference by this Court. There must be a clear cut message to the society that such kind of offences have to be dealt with by iron hand and the accused committing such offences deserves no leniency by the Court, and there can be no mitigating circumstance for awarding lesser sentence to such accused. 17. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 19th of May, 2008, and Order of sentence dated 22nd of May, 2008, passed by the learned Additional Sessions Judge, F.T.C.-I, Bokaro, in Sessions Trial No. 236 of 2005, convicting and sentencing the appellant Subhash Bouri, for the offences under Sections 376 / 511, 326 and 307 of the Indian Penal Code, which we hereby affirm. The appellant is already in custody undergoing the sentence. 18. Since this is a case of acid burning, we recommend that adequate compensation be paid to both the victims, namely Geeta Devi and her son Subal Bouri, under Section 357-A of the Cr.P.C. Accordingly, we direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take up the matter for payment of compensation to both these victims as per law. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 19. There is no merit in this appeal, and the same is, accordingly, dismissed. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 19. There is no merit in this appeal, and the same is, accordingly, dismissed. Let the Lower Court Record be sent back to the Court concerned forthwith, along with the copy of the Judgment.