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2019 DIGILAW 1151 (JHR)

Chiranjeet Bara v. State of Jharkhand

2019-06-17

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. The sole appellant has challenged the judgment of his conviction under section 302 IPC dated 15.6.2010 and the order of sentence of R.I. for life and fine of Rs. 10,000/- dated 17.6.2010 in Sessions Trial No. 55 of 2006 passed by the learned Sessions Judge, Simdega. 2. The appellant was arrested on 8.1.2006 and presently he is serving the sentence awarded to him in Sessions Trial No. 55 of 2006. 3. The prosecution case is narrated by the informant Alexcious Kujur, brother of the victim girl, in his written report dated 4.1.2006 which was received in the police station at 17:00 hrs. on 4.1.2006 but before a written report was given in the police station by Alexcious Kujur, statement of the accused was recorded at Sadar Hospital, Simdega at 11:45 p.m. on 3.1.2006. It is stated that distance between the police station and the place of occurrence was 23 k.m. 4. On the basis of the written report of Alexcious Kujur, T. Tangar P.S. Case No. 01 of 2006 was lodged under sections 452, 341, 323 and 307 IPC. In course of her treatment the victim girl died and, therefore, after investigation charge sheet was submitted under sections 452 and 302 IPC, however, charge has been framed against the appellant only for the offence under section 302 IPC. During the trial the prosecution has examined 12 witnesses; the informant is PW-4 and the doctor who has conducted postmortem examination has been examined as PW-5. Statement of the victim girl was recorded by the Executive Magistrate who has been examined as PW-6. 5. The prosecution has led evidence through PW-1 Anita Kujur, PW-2 Shyam Lal Choudhary, PW-3 Deonish Kujur and PW-4 Alexcious Kujur on oral dying declaration by the victim-Binita Kujur. 6. On the basis of the evidences laid before him, the learned Sessions Judge, Simdega has held that the prosecution has established the case against the accused and, accordingly, he has held the appellant guilty under section 302 IPC. 7. Referring to several infirmities in the prosecution case; (i) First Information Report has wrongly been registered on the basis of written report of Alexcious Kujur, (ii) the victim who has suffered 90-95% burn injuries could not have spoken a word and while so, story of dying declaration by the victim girl is concocted, (iii) non- examination of Dr. 7. Referring to several infirmities in the prosecution case; (i) First Information Report has wrongly been registered on the basis of written report of Alexcious Kujur, (ii) the victim who has suffered 90-95% burn injuries could not have spoken a word and while so, story of dying declaration by the victim girl is concocted, (iii) non- examination of Dr. J. Sarangi and Sister Veenapani Jena renders the dying declaration of the victim inadmissible evidence, and (iv) conviction of the appellant for death of Binita Kujur who has died 9 days after the occurrence under section 302 IPC is improper, Mr. J.J. Sanga, the learned counsel for the appellant has assailed the impugned judgment. 8. As against the above, Mr. Arun Kumar Pandey, the learned APP referring to the judgment in the case of Rajwant Singh and Another vs. State of Kerala, AIR (1966) SC 1874 contends that omission on part of the investigating officer would not render the prosecution case doubtful. On the basis of the evidences led through the prosecution witnesses, the learned APP submits that the appellant who poured kerosene oil on the victim and set her ablaze had intention to kill her and, therefore, he has rightly been convicted under section 302 IPC. 9. Before we examine whether the prosecution has been able to produce consistent evidence for conviction of the appellant under section 302 IPC, we intend to record that the accused-appellant has taken a specific stand that he had intimate relationship with the victim and since last one year he had been visiting her house. The appellant has stated in his statement recorded on 3.1.2006 that on 2.1.2006 he stayed in the house of Binita Kujur with whom he had love affair and after certain differences cropped up between them he poured kerosene oil on himself and Binita Kujur also set herself ablaze. Both of them were taken to the hospital where they were treated but subsequently Binita Kujur was referred to another hospital for her treatment. In his examination under section 313 Cr.P.C, the appellant has taken a stand that the prosecution witnesses thrashed and set him on fire and when Binita Kujur tried to save him she caught fire. 10. The informant, namely, Alexcious Kujur has stated that on 3.1.2006 when he heard cries of his sister he went to her room and found his sister in blaze. 10. The informant, namely, Alexcious Kujur has stated that on 3.1.2006 when he heard cries of his sister he went to her room and found his sister in blaze. One boy was also standing there. The informant says that he locked the boy in a room and informed PW-1 Anita Kujur and PW-2 Shyamlal Chaudhary. When they went there they also found that Binita Kujur was caught fire and the accused Chiranjeet Bara also had suffered burn injuries. PW-1 gave some water to Binita Kujur after which she regained her consciousness and stated that the appellant had poured kerosene on her and put her on fire. The informant has further stated that when he asked the reason from his sister she informed him that the appellant wanted to marry her to which she had refused. Prosecution witnesses Anita Kujur PW-1, Shyamlal Chaudhary PW-2, Deonish Kujur PW-3 and Alexcious Kujur PW-4 have stated that on way to hospital Binita Kujur regained her consciousness and stated that the appellant has poured kerosene on her and set her ablaze. 11. The oral dying declaration of the victim led by the prosecution through PW-1, PW-2, PW-3 and PW-4 has been sought to be challenged by the defence by leading evidence through DW-1, namely, Felix Kindo, the Ambulance driver. 12. Mr. J.J. Sanga, the learned counsel for the appellant submits that DW-1 has stated that the girl was unconscious and by the time she was brought to Simdega she had not regained her consciousness. DW-1 has stated that only the victim and the appellant were in the ambulance. However, we find that in his cross-examination DW-1 admits that he has deposed in the court at the instance of father of the appellant but at the same time he has stated that father of the appellant has asked him to depose truthfully in the court (para-3). We further find that in his cross-examination DW-1 has given sufficient indication that there were other persons also sitting in the ambulance and he has admitted that he could not hear their conversation. When the consistent evidence led by the prosecution on oral dying declaration of Binita Kujur is examined in the context of the evidence led by the defence, we are unable to accept the submission of Mr. J.J. Sanga, the learned counsel for the appellant that the story of oral dying declaration of the victim is unbelievable. 13. When the consistent evidence led by the prosecution on oral dying declaration of Binita Kujur is examined in the context of the evidence led by the defence, we are unable to accept the submission of Mr. J.J. Sanga, the learned counsel for the appellant that the story of oral dying declaration of the victim is unbelievable. 13. On dying declaration of victim recorded by Executive Magistrate- PW-6 and marked as Ext.4, we find that this finds corroboration from the oral dying declaration of the victim proved by the prosecution through PW-1, PW-2, PW-3 and PW-4. Though there are overwriting in the dying declaration but on closer scrutiny we find that it is written in one flow and this is not a case of tampering with the document. Dr. J. Sarangi and Nurse Veenapani Jena in whose presence dying declaration of the victim was recorded by PW-6 have not been produced by the prosecution and a plea has been raised by the defence that in absence of examination of Dr. J.Sarangi who has informed the Executive Magistrate that victim was in a fit state to make statement the prosecution cannot establish that the victim who has suffered 90-95% injuries has given her statement to PW-6. In this context it needs to be recorded that the occurrence has taken place in the night of 3.1.2006 and the victim died on 12.1.2006 in course of her treatment at I.G.H. Hospital, Rourkela. The prosecution witnesses have spoken of the victim regaining her consciousness while she was taken to the hospital. In these facts as established by the prosecution, we are of the opinion that dying declaration of Binita Kujur recorded by Executive Magistrate PW-6 is a reliable piece of evidence. 14. Now the question is whether the appellant has rightly been convicted under section 302 IPC. 15. Section 300 of the Indian Penal Code provides that culpable homicide is murder, if the death is caused with the intention of causing death, or if the offender knows that a bodily injury is likely to cause death of a person and causes such bodily injury intentionally or bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or bodily injury caused is so imminently dangerous that it must, in all probability, cause death or such bodily injuries as is likely to cause death. Section 300 of the Indian Penal Code provides exceptions also to the aforesaid circumstances in which culpable homicide would not amount to murder. 16. Mr. J.J. Sanga, the learned counsel for the appellant has contended that accepting the prosecution evidence as it is, the appellant can at best be convicted under Section 304 Part-II of the Indian Penal Code as his case falls under Exception- 4 to Section 300 IPC. 17. We are unable to accept his submissions. One of the essential ingredients under Exception-4 to Section 300 IPC is that the offending act was committed without premeditation, in a sudden fight and in the heat of passion. 18. The appellant has not led any evidence nor it is his stand that the occurrence has taken place upon a sudden quarrel and in the heat of passion he put Binita Kujur on fire which has caused her death. 19. Mr. Arun Kumar Pandey, the learned A.P.P. has contended that the appellant has poured kerosene on the head of the victim and the victim has died due to the burn injuries are the important facts which would lead to an inescapable conclusion that the appellant intended to cause death of Binita Kujur. 20. In the context of above submission, we intend to record that the victim has died about 9 days after the occurrence. PW-5 Dr. Meera Sasmal who has conducted postmortem examination over the dead body has found that the death has been caused due to late complication Acpticaemia. In her cross examination, the Doctor has explained Acpticaemia a kind of infection and she has not found any foreign body in Trachea or in the Esophagus. The medical evidence as brought on record does not establish that the appellant had intended to cause death. There are other mitigating circumstances which would also indicate that the appellant had no intention to cause death. It has been found that the appellant tried to save the victim and in the process he has also suffered burn injury for which he was treated at Simdega Hospital. The appellant has led evidence in his defence by producing OD slip and his statement recorded by Jateshwar Mishra PW-12 in the Station Diary which are the prosecution’s documents. The victim girl herself has stated in her statement recorded by the Executive Magistrate that the appellant tried to put-off fire. 21. The appellant has led evidence in his defence by producing OD slip and his statement recorded by Jateshwar Mishra PW-12 in the Station Diary which are the prosecution’s documents. The victim girl herself has stated in her statement recorded by the Executive Magistrate that the appellant tried to put-off fire. 21. In view of the above evidences, we find conviction of the appellant under Section 302 of the Indian Penal Code unsustainable and, accordingly, it is set-aside. 22. Section 326 of the Indian Penal Code provides punishment for voluntarily causing grievous hurt by dangerous weapons or means. It says that if grievous hurt is voluntarily caused by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which is deleterious to the human body to inhale, to swallow, or to receive into the blood etc., the offender shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Ultimate cause of death of Binita Kujur as found by Dr. Meera Sasmal-PW-5 stands admitted that it was caused due to late complication Acpticaemia which developed due to the burn injuries caused to the victim by the appellant. This shows that the victim girl was not treated properly due to which she caught skin infection and ultimately died. 23. In the above facts, we hold that the appellant is liable to be punished for voluntarily causing grievous hurt to Binita Kujur and, accordingly, he is convicted under Section 326 of the Indian Penal Code. On the question of sentence, in view of the mitigating circumstances and the medical evidence, we are of the opinion that the appellant is liable to be sentenced to R.I. for 10 years. 24. In the result, the judgment of conviction under section 302 IPC dated 15.06.2010 and the order of sentence of R.I. for life dated 17.06.2010 for the said offence passed against the appellant in Sessions Trial No. 55 of 2006 are set-aside. The appellant is convicted under Section 326 IPC and sentenced to R.I. for 10 years. 25. Accordingly, Cr. 24. In the result, the judgment of conviction under section 302 IPC dated 15.06.2010 and the order of sentence of R.I. for life dated 17.06.2010 for the said offence passed against the appellant in Sessions Trial No. 55 of 2006 are set-aside. The appellant is convicted under Section 326 IPC and sentenced to R.I. for 10 years. 25. Accordingly, Cr. Appeal (D.B.) No. 813 of 2010 is partly allowed. 26. The appellant-Chiranjeet Bara, who is in judicial custody since 8.1.2006, shall be released forthwith, if not wanted in connection with any other case. 27. Let the lower court records be transmitted to the court concerned forthwith. Appeal partly allowed.