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2019 DIGILAW 1878 (RAJ)

Raju Banjara v. State

2019-07-03

ABHAY CHATURVEDI, SANDEEP MEHTA

body2019
JUDGMENT : Sandeep Mehta, J. 1. The instant appeal under Section 374 (2) has been preferred by the appellant Raju Banjara being aggrieved of the judgment dated 28.05.2014 passed by the learned Additional Sessions Judge, Nimbahera, Chittorgarh in Sessions Case No. 51/2012, whereby he has been convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment along with a fine of Rs. 5000/- and in default of payment of fine, further to undergo rigorous imprisonment of one year. 2. Brief facts relevant and essential for disposal of the appeal are noted here-in-below. 3. One Smt. Shabu Bai wife of Galla Banjara, resident of Vajeerpura A.K.A. Ranchhorpura, Police Station Nimbahera gave an oral information (Ex. P/17) to the SHO, Police Station Nimbahera outside the mortuary of the CHC, Nimbahera alleging inter alia that her daughter Smt. Aasiya, aged 22 years, who had been married to Raju Banjara, the appellant herein, resident of Uncha Magari, presently Vajeerpura, was at her paternal home. Galla, the husband of the informant was also present there. The informant had gone to Uncha Magari to participate in a condolence meeting. When she returned at about 06.00 p.m., she saw her daughter Aasiya lying in burnt condition. The informant's husband Galla Banjara told that in the evening at about 5 o'clock Raju Banjara came to their house. He poured kerosene on Aasiya and set her to fire and ran away thereafter. Soorajmal Banjara was present there, who summoned a vehicle, wherein Aasiya was taken to the CHC, Nimbahera. On the basis of the report aforesaid, FIR No. 362/2012 was registered at the Police Station Nimbahera for the offence under Section 302 IPC. While Smt. Aasiya was admitted in the hospital and was undergoing treatment, the investigating officer submitted an application for recording of the statement of the victim by a Magistrate. Upon this, the Judicial Magistrate, Nimbahera Mr. Ravi Prakash Suthar recorded the dying declaration (Ex. P/10) of Smt. Aasiya at the CHC, Nimbahera, wherein she alleged that she was preparing tea. At that time, the appellant came, poured kerosene on her body and set her to fire. She further stated that she had been married to the appellant about 5 to 6 years ago. The appellant turned her out of the matrimonial home after beating her about 5 years ago. Since then, she was living at her father's house. At that time, the appellant came, poured kerosene on her body and set her to fire. She further stated that she had been married to the appellant about 5 to 6 years ago. The appellant turned her out of the matrimonial home after beating her about 5 years ago. Since then, she was living at her father's house. Smt. Aasiya expired while undergoing treatment. 4. The inquest proceedings were conducted, the dead body was subjected to postmortem and was handed over to the matrimonial relatives for cremation. The incriminating pieces of evidence were collected from the scene of occurrence and were forwarded to the Forensic Science Laboratory for analysis. The accused appellant was arrested and a charge-sheet came to be filed against him in the Court of the ACJM, Nimbahera for the offence under Section 302 IPC. The offence being Sessions triable, the case was committed to the Court of Additional Sessions Judge, Nimbahera for trial. 5. The trial court framed charge against the appellant for the offence under Section 302 IPC. The appellant pleaded not guilty and claimed trial. The prosecution examined as many as 15 witnesses and exhibited 21 documents in support of its case. Upon being confronted with the incriminating circumstances appearing against him in the prosecution evidence, the accused, in his statement recorded under Section 313 Cr.P.C. denied the allegations and claimed to have been falsely implicated. 6 witnesses including the accused himself were examined in defence. After hearing the arguments advanced at bar and appreciating the evidence available on record, the learned trial court proceeded to convict and sentence the appellant as above by the impugned judgment dated 28.05.2014. Hence, this appeal. 6. Mr. Kaluram Bhati, learned counsel representing the appellant, vehemently and fervently urged that the entire prosecution case is false and fabricated. The incident took place in the house of the complainant and the allegation levelled by the prosecution witnesses that the appellant went there and set Assiya to fire is not proved by any plausible evidence whatsoever. He urged that the first informant Smt. Shabu Bai did not support the prosecution story and was declared hostile. Mr. Bhati further urged that the dying declaration (Ex. P/10) of Smt. Assiya recorded by the Magistrate is per se inadmissible in evidence because no proper satisfaction was recorded by the Magistrate that the victim was physically and mentally fit to give such statement. Mr. Bhati further urged that the dying declaration (Ex. P/10) of Smt. Assiya recorded by the Magistrate is per se inadmissible in evidence because no proper satisfaction was recorded by the Magistrate that the victim was physically and mentally fit to give such statement. He further urged that the evidence of Galla (P.W. 3), the eye-witness, is also unnatural and unbelievable and deserves to be discarded. No other witness of the prosecution alleged that the appellant was seen setting Smt. Aasiya to fire. As per him, the accused took a pertinent defence that he was not present at Nimbahera at the time of the incident and had gone out of the town on a truck as he was a truck driver. He urged that the defence witnesses including the appellant himself gave positive evidence to the effect that the appellant was not present at the spot at the time of the incident. He, thus, urged that the well-established plea of alibi taken by the accused completely demolishes the prosecution case. On these grounds, he implored the court to accept the appeal, set aside the impugned judgment and acquit the appellant of the charge. 7. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the appellant's counsel. He urged that even though the first informant did not support the prosecution story and was declared hostile, but when she was confronted with her previous statement and the FIR in the cross-examination conducted by the Public Prosecutor, she admitted to have given such statement and the FIR. He urged that the fact regarding Aasiya having been turned out of matrimonial home is well-established by the evidence of the prosecution witnesses including Smt. Shabu Bai (P.W. 1) and Galla (P.W. 3). He further urged Galla was admittedly present in the house and he made a categoric deposition to the effect that the appellant came to his house, picked up a kerosene can lying there, poured it on the person of Smt. Aasiya and set her to fire. As per the learned Public Prosecutor, the evidence of Galla is absolutely natural and trustworthy. He had no occasion to falsely implicate the appellant. The witness has also proved the fact regarding the matrimonial strife in vogue between the appellant and Smt. Aasiya and hence, the appellant can also be imputed the motive to murder his wife. As per the learned Public Prosecutor, the evidence of Galla is absolutely natural and trustworthy. He had no occasion to falsely implicate the appellant. The witness has also proved the fact regarding the matrimonial strife in vogue between the appellant and Smt. Aasiya and hence, the appellant can also be imputed the motive to murder his wife. He further contended that no infirmity or shortcoming was pointed out by the learned counsel for the appellant so as to doubt or discard the evidence of Mr. Ravi Prakash Suthar, the Magistrate (P.W. 11), who recorded the dying declaration (Ex. P/10). As per him, the dying declaration in itself provides sufficient material to establish beyond any manner of doubt, culpability of the accused appellant for the murder of his own wife. On these grounds, he implored the court to dismiss the appeal and affirm the impugned judgment. 8. We have given our thoughtful consideration to the submissions advanced at bar and perused the material available on record. There is a clear aspersion in the FIR as well as in the statements of Shabu Bai (P.W. 1) and Galla (P.W. 3), being the parents of the deceased, that the accused appellant used to harass and humiliate Smt. Aasiya after their marriage and not being satisfied with the deceased, he turned her out of the matrimonial home about five years ago, where after, she was living at the paternal home. It seems that some kind of criminal case was lodged by the deceased against the appellant, which has been admitted by the appellant in his sworn statement when he appeared as D.W. 2. Though Smt. Shabu Bai (P.W. 1) did not partially support the prosecution story in her examination-in-chief, but when cross-examined by the Public Prosecutor and upon being confronted with the oral report (Ex. P/1), she admitted to have given the same to the police. It is relevant to mention here that the appellant himself, upon being examined under Section 313 Cr.P.C. and in his sworn statement as D.W. 2 did not deny the fact of matrimonial strife existing with the deceased. Thus, we are of the firm opinion that from the evidence of Smt. Shabu Bai (P.W. 1) and Galla (P.W. 3) and the dying declaration (Ex. P/10) coupled with the fact that the appellant did not deny such allegation, the factum of matrimonial strife between the spouses is well-established. Thus, we are of the firm opinion that from the evidence of Smt. Shabu Bai (P.W. 1) and Galla (P.W. 3) and the dying declaration (Ex. P/10) coupled with the fact that the appellant did not deny such allegation, the factum of matrimonial strife between the spouses is well-established. It can be assumed that owing to this case, the appellant must have been bearing ill-will against his wife, the deceased. Thus, fuelled with the motive to take revenge, the appellant appears to have gone to his in-law's home, where some quarrel must have taken place between the spouses, where after, the accused set Smt. Aasiya to fire after pouring kerosene on her body. 9. As has been stated above, Smt. Shabu Bai (P.W. 1), the complainant, initially denied to have given the oral report (Ex. P/1), but when she was confronted with the same in cross-examination, she admitted the same. In this oral report, it was mentioned that Smt. Shabu was not present in the house when the incident took place. Thus, it is clear that the allegations regarding the incident as set out in the FIR and in the evidence of Shabu Bai would be based on the information provided to her by her husband Galla (P.W. 3), who was admittedly present in the house when Smt. Aasiya was set to fire. Galla is an eye-witness of the incident. We have examined his testimony minutely and find that he is a witness of sterling worth. He affirmatively stated that Raju used to harass and humiliate Aasiya after the marriage. She was turned out of the matrimonial home. She lodged a case against Raju and came back to her paternal home. Panchayats were also held, but the matrimonial strife could not be resolved. Aasiya was present at her father's house on the fateful day. Raju came there on a motorcycle. He parked the motorcycle and came inside the house. He started talking to Aasiya and threatened her that she should withdraw the case or face dire consequences. He heard and saw this conversation taking place. Soon thereafter, the appellant picked up a kerosene can lying nearby, poured the liquid on Aasiya's body and set her to fire and thereafter ran away. He shouted, on which Soorajmal came rushing. The fire was doused and the girl was taken to the hospital. He heard and saw this conversation taking place. Soon thereafter, the appellant picked up a kerosene can lying nearby, poured the liquid on Aasiya's body and set her to fire and thereafter ran away. He shouted, on which Soorajmal came rushing. The fire was doused and the girl was taken to the hospital. We have also gone through the detailed cross-examination conducted by the defence from this witness and find that nothing was elicited by the defence, which could discredit or create doubt on his evidentiary worth. Thus, we have no hesitation in holding that Galla (P.W. 3) is a reliable witness and it is well-proved and established by his evidence that the appellant was bearing a grudge against Smt. Aasiya owing to the matrimonial strife going on between them. Aasiya had left the matrimonial home and was living at the paternal home. Aasiya had filed a criminal case against the appellant of which he wanted withdrawal. When he could not succeed in convincing Aasiya to withdraw the case, the appellant threatened her of dire consequences and finally poured kerosene on her person and set her to fire. The testimony of Galla (P.W. 3) is fully reliable and trustworthy. 10. The dying declaration of deceased was recorded by the Judicial Magistrate and was exhibited as Ex. P/10. In the said dying declaration, Smt. Aasiya clearly alleged that she was preparing tea when her husband came there. She was living at her father's house because she had been turned out of matrimonial home. Her husband came around, poured kerosene on her body and set her to fire. Mr. K.R. Bhati vehemently and fervently tried to discredit this dying declaration alleging that the Magistrate did not record the requisite satisfaction that Smt. Aasiya was mentally and physically fit to give the statement. However, after having gone through the statement of Mr. Ravi Prakash Suthar (P.W. 11), the Judicial Magistrate who recorded the dying declaration and Dr. Kamlesh (P.W. 12), who gave the certificate regarding the deceased being fit to give such statement, we are of the firm opinion that the dying declaration was recorded after due satisfaction that the victim was in a fit condition to give the statement. Ravi Prakash Suthar (P.W. 11), the Judicial Magistrate who recorded the dying declaration and Dr. Kamlesh (P.W. 12), who gave the certificate regarding the deceased being fit to give such statement, we are of the firm opinion that the dying declaration was recorded after due satisfaction that the victim was in a fit condition to give the statement. The statement itself bears the satisfaction recorded by the Judicial Magistrate, who ensured that all the relatives of the deceased were sent out of the room before the statement was taken down in writing and thus, there is no reason to doubt the same. The statement, even if read in isolation, affirmatively establishes that the appellant set the deceased to fire after pouring kerosene on her body. 11. As per the statement of Dr. K. Asif (P.W. 10), who conducted postmortem upon the body of the deceased and issued the postmortem report (Ex. P/8), the deceased was suffering from antemortem burns, which led to shock and proved fatal. In the process, examining the doctor noticed that smell of kerosene was emanating from the dead body. Manifestly, on having minutely examined the nature of the burn injuries caused to the deceased, we are of the firm opinion that the same were such that the deceased could not have survived by any means. 12. The defence led evidence of 6 witnesses including the appellant himself in order to prove the theory of alibi claiming that the appellant was not present in the town and at the place of incident and had gone out with his truck. However, we have examined the statement of the first informant Smt. Shabu Bai (P.W. 1) and Galla (P.W. 3). No suggestion was given to either of the witnesses that the appellant was out of town when the incident took place. Otherwise also, law is well-settled that alibi is a very weak plea and has to be proved by leading plausible, convincing and cogent evidence. Other than the oral assertion of defence witnesses including the accused himself, no such convincing evidence was led at the trial, which can satisfy the court that the accused was not present at the place of incident and had gone out of the town. Thus, on this flimsy plea of alibi, we are not inclined to discard the evidence of Galla (P.W. 3) and the dying declaration (Ex. Thus, on this flimsy plea of alibi, we are not inclined to discard the evidence of Galla (P.W. 3) and the dying declaration (Ex. P/10), from which it is established beyond all manner of doubt that the appellant poured kerosene on the person of his wife Smt. Aasiya and set her to fire and the burn injuries proved fatal. 13. In this background, we express our satisfaction with the findings recorded by the learned trial Judge in the impugned judgment that the prosecution has proved the guilt of the accused by leading clinching, convincing and cogent evidence. The impugned judgment dated 28.05.2014 passed by the learned Additional Sessions Judge, Nimbahera, Chittorgarh in Sessions Case No. 51/2012 does not suffer from any infirmity or irregularity warranting interference therein. Hence, we find no merit in the appeal, which is dismissed as such.