Kapildeo Dashaudhi vs State of Jharkhand

This appeal has been preferred against the judgment of conviction and order of sentence dated 30.01.2004 passed by Sri Awadhesh Mall, learned Additional Sessions Judge, Fast Track Court No. 7, Dhanbad in Sessions Trial No. 304 of 1999 whereby learned Trial Court has convicted the sole appellant for the offence under Section 498A IPC and sentenced him to undergo imprisonment for three years and to pay fine of Rs. 1,000/. He has been further convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 4,000/. Both the sentences were ordered to run concurrently.

The case of the prosecution, in brief, is that the sister of the informant Jay Prakash Dashaudhi (PW.8), namely, Binita Devi (deceased) was married with the appellant in the year 1987. After some time, Binita Devi was subjected to cruelty and harassment by the appellant, his parents and sister in connection with demand of Hero Honda Motor Cycle, a big Jar (Gagra), freeze etc. as dowry. At one point of time the appellant gave a shoe blow on the waist of Binita Devi resulting into her abortion. It has been alleged that in the night of 02.03.1998, Binita Devi was set on fire after sprinkling kerosene oil on her body by the appellant and her inlaws. On 03.03.1998 the maternal brother of the informant, namely, Brajesh Hazari gave information to the informant that his sister Bintia Devi was brought to Tila Tanr Kataras Hospital in burned condition by the members of her matrimonial home and thereafter she was referred to Central Hospital, Dhanbad. On getting this information, the informant along with Brajesh Hazari, Gopal Dashaudhi and Arjun Dashaudhi went to Central Hospital, Dhanbad and saw the burned dead body of Binita Devi.

Thereafter, the informant gave information to the police regarding the occurrence and then he went to the house of the appellant (place of occurrence) and saw the burned cot, quilt, poured kerosene oil, match and semi burned calendar of Durgaji. Some burn injuries were also found on the body of his nephew Pappu and Guddu. The informant also saw swelling with black carbon on the hands of the mother and sister of the appellant.

On the basis of the written report of the informant, Kataras P.S. Case No. 78/1998 was initially registered under Section 304B IPC. The police, after investigation, submitted final form against the appellant under Sections 498A/302 IPC and accordingly cognizance for the said offences was also taken by learned C.J.M, Dhanbad and thereafter the case was committed to the Court of Sessions. Initially the charges were framed under Sections 498A/304B IPC against the appellant. Thereafter, the charge under Section 304B was amended under Section 302 IPC vide order dated 07.06.2002 and charge under Section 302 IPC was framed against the appellant. The charges were read over and explained to the appellant in Hindi. The accused pleaded not guilty and thereafter the trial proceeded.

In order to prove the charges against the appellant, the prosecution has examined altogether 12 witnesses including the Doctor and the I.O. PW.1 Ram Charan Gope is the neighbor of the appellant. PW.2 Sudarshan Kumar Gupta is the neighbour of the appellant. PW.3 Basudeo Dey is also the neighbor of the appellant. PW.4 Jagarnath Hazari is the maternal brother of the deceased. PW.5 Brajesh Hazari is also the maternal brother of the deceased. PW.6 Arjun Prasad Dashaudi is the brother of the deceased. PW.7 Dinanath Prasad is the father of the deceased. PW.8 Jay Prakash Dashaudi is the brother of the deceased and the informant of the case. PW.9 Dr. Shailendra Kumar conducted post mortem examination on the dead body of the deceased. PW.10 Ajay Kumar is the I.O of the case. PW.11 Dr. Upendra Ram examined the sons of the deceased, namely, Pappu and Guddu who had also received burn injuries. PW.12 Durga Charan Pathak is the neighbour of the appellant.

So far as the exhibits are concerned, Ext.1 is the written report, Ext.2 is the post mortem report, Ext.1/1 is the formal F.I.R, Ext.2/1 is the carbon copy of the inquest report, Ext.3 is the seizure list, Exts. 4 & 4/1 are the injury reports of Pappu and Guddu.

Learned counsel for the appellant, in course of argument, referred to the evidence of PW.1 and PW.2, who are the neighbours of the appellant, and submitted that these witnesses have stated in their examination-in-chief that Binita Devi was married with the appellant in the year 1987 and they had three children Pappu (1012 years), daughter (7 years) and another son (34 years). On day of occurrence they heard noise and went to the house of Binita Devi and noticed that Binita Devi had received burn injuries. The appellant was keeping the children outside the room. Thereafter, the father and mother of the appellant came running from another house. The appellant brought ambulance and the deceased was taken to the hospital where she succumbed to the injuries. In their cross-examination, both the witnesses have stated that Binita Devi was conscious and she disclosed that due to fall of lantern, the quilt set at fire and consequently she received burn injuries. In paragraph 5 of his cross-examination, PW.2 has also stated that apart from Binita Devi, the appellant and his children had also received burn injuries.

Learned counsel for the appellant further referred to the evidence of PW.9 Dr. Shailendra Kumar who was examined on 13.03.2003. He has categorically stated in paragraph 10 of his cross-examination that it cannot be said as to which part of the deceased caught fire before, as he had not done microscopic test of the wounds. It has been stated that the deceased was wearing bangles in both the hands and there were 91% burn injuries.

Learned counsel for the appellant further referred to the evidence of PW.12 who is the neighbour of the appellant. In paragraph 4 of his cross-examination, he has stated that on hulla, when he reached the place of occurrence, he noticed that the deceased had received burn injuries and Sudarshan Gupta, Ramcharan Gope, Rakshakar Goswami, Kapildeo Dashaudhi are trying to extinguish the fire. He also noticed that the quilt and other articles kept on the cot were burnt and the children of Binita Devi had also received burn injuries. In the hospital Binita Devi had disclosed the Doctor that she had received accidental burn injuries.

Learned counsel for the appellant further referred to the evidence of PW.10 (I.O) who has stated in his examination-in-chief that on 03.03.1998 he was posted at Kataras Police Station and took over the investigation of Kataras P.S.Case No. 78/1998 and went to the place of occurrence which is a room in the house of the appellant. He has also described the place of occurrence in his evidence. He prepared the seizure list, which is marked as Ext.3, proved the formal FIR (Ext.1/1) and sent the dead body of Binita Devi for postmortem and received the postmortem report which is marked as Ext.2. He has also stated that during course of investigation, he received the injury reports of Pappu and Guddu, sons of the deceased, and remanded Kapildeo Dashaudhi in this case.

In his cross-examination, he has stated that he prepared the inquest repot. He had not taken the signature of the Doctor or any staff of the hospital on the inquest report. In paragraph 10 he has categorically stated that he had met Jai Prakash Dashaudhi (informant). Jai Prakash Dashaudhi and Brajesh Hazari were present at the place of occurrence before he reached the place of occurrence. He has also stated that at the time of preparing the seizure list, neither Kapildeo Dashaudhi nor any member of his family was present, only his children were there. He did not record the statement of seizure list witnesses Pradip Kumar and Kanhai Lal Rajak. He stated that after taking the written report of Jai Prakash Dashaudhi, he recorded his subsequent statements at the place of occurrence. He has stated that Jai Prakash Dashaudhi had not stated in his statement under Section 161 Cr.P.C that his sister had received 90% burn injuries and smell of kerosene oil was coming. Jai Prakash Dashaudhi had also not stated that the appellant used to demand T.V and washing machine from the deceased. In paragraph 15 of his cross-examination, PW.10 has stated that Arjun Dashaudhi had not stated before him that on 04.03.1998 he had gone with the dead body for postmortem and thereafter he had taken the dead body at Lilauri place for performing last rites where Kapildeo Dashaudhi (appellant) had performed the last rights. He had also not stated that he had received the dead body for performing the last rites. In paragraph 18 of his cross-examination, PW.10 has stated that Dinanath Dashaudhi had not told me that the inlaws of Binita Devi used to demand T.V and washing machine. In paragraph 21 PW.10 has stated that Brajesh Hazari had not stated before him that he and his father had received the dead body of Binita Devi for performing the last rites.

Learned counsel for the appellant further referred to the evidence of PW.11 Dr. Upendra Ram, who was working as Medical Officer at Regional Hospital, Kataras on 02.03.1998 and on 03.03.1998 he had examined Pappu and Guddu, both sons of Kapildeo Dashaudhi, and found burn injuries on their cheek, wrist, arm and hand. He has proved the injury reports of Pappu and Guddu, which are marked as Exts. 4 & 4/1. He had examined Binita Devi on 02.03.1998 who had come in burnt condition.

On the basis of these evidence emerging on record, learned counsel for the appellant submitted that it is not a case that the appellant set the deceased on fire. This case does not come within the mischief of Section 302 IPC, rather it is a case of accidental fire, as PWs. 1, 2 & 3, who are the neighbours and independent witnesses, have categorically stated that Binita Devi received burn injuries due to fall of lantern on the quilt. Thus, the prosecution has failed to prove its case under Section 302 IPC and admittedly from perusal of the record, it transpires that the deceased received burn injuries due to accidental fire. So, the appellant may be acquitted of the charge under Section 302 IPC.

On the other hand, learned A.P.P referred to the evidence of PW.8 (informant). He has stated that the occurrence took place on 02.03.1998. My maternal brother Brajesh Hazari came weeping and disclosed that my sister Binita Devi was set on fire by the appellant and her in-laws and she was taken to Tila Tanr Hospital from where she was referred to Central Hospital. On getting this information, he along with his brother Arjun Prasad Dashaudhi, Gopal Dashaudhi and Brajesh Hazari went to the Central Hospital and noticed the dead body of Binita Devi. Nobody from the matrimonial home of Binita Devi was present there. It was further stated that the deceased was married with the appellant. He used to lose money in gambling and on being protested by Binita Devi, he used to torture her. He has further stated in his examination-in-chief that he went to the place of occurrence and noticed that cot, quilt and other articles were burnt. He also noticed kerosene oil poured. He also noticed that his nephew Pappu and Guddu had also received burn injuries. Thereafter, he gave written report to Kataras Police Station, which is marked as Ext.1.

In his cross-examination, he has stated that in the year 1987 he was a student of B.Sc and at present he is practising as an Advocate in Dhanbad. He has disclosed the fact that his brother-in-law was a gambler. In paragraph 22 of his cross-examination he has admitted the fact that the last rites of the deceased were performed by the appellant, but he has also stated that the father-in-law and mother-in-law of the deceased were residing separately. He has denied the fact that no dowry was demanded.

Learned A.P.P further referred to the evidence of PW.6 who is the brother of the deceased. He has supported the fact of demand of Hero Honda Motorcycle, Freeze and big jar, but in his cross-examination, he has stated that Kapildeo Dashaudhi has not performed second marriage till date.

PW.7 is the father of the deceased and he has also supported the case of the prosecution and in paragraph 10 of his cross-examination he has stated that he was working as peon at Central Mining Research Institute and retired on 31.12.1996. He had three sons and four daughters and Binita Devi was his second daughter. He has stated that he had got information about the incident by Brajesh Hazari, but in paragraph 27 he has admitted the fact that his grandsons have also received injuries. In paragraph 32 he has stated that Kapildeo Dashaudhi has not performed second marriage till date.

Learned A.P.P further referred to the evidence of PW.9 Dr. Shailendra Kumar, who in paragraph 8 of his examination-in-chief has stated that scalp-hairs of the deceased were examined and smell of kerosene oil was found. On the basis of this evidence, learned A.P.P submitted that admittedly no explanation is coming from the statements of the appellant under Section 313 Cr.P.C as to how kerosene oil was found on the scalp of the deceased, if it is a case of accidental fire due to fall of lantern. In view of the said evidence, the prosecution as well as learned Trial Court has held the appellant guilty for the offences under Sections 302/498A IPC and there is no illegality or infirmity in the impugned judgment of learned Trial Court and this appeal is liable to be dismissed.

In view of the evidence emerging in this case, as discussed herein above, the following facts are admitted:

(i) The deceased was married with the appellant in the year 1987.

(ii) The appellant had three children with the deceased.

(iii) They were residing separately in the house.

(iv) In the night of 02.03.1998 Binita Devi received burn injuries, as has come in the evidence of PW.10 (I.O), who had found cot, quilt and other articles burnt and prepared seizure list, Ext.3.

(v) The sons of the deceased had also received injuries, Exts. 4 & 4/1.

(vi) There is evidence of PW.8 (informant) that the deceased was initially taken to Tila Tanr Hospital thereafter she was sent to Central Hospital, Seraidhela.

(vii) PW.9 (Doctor) conducted postmortem examination on the dead body of the deceased and found that there was some kerosene oil poured on the scalp.

(viii) The appellant has not performed second marriage till date.

After churning the entire prosecution evidence in its right perspective, we are of the considered view that the prosecution has not been able to prove the charge of Section 302 I.P.C. against the appellant beyond any reasonable doubt. Thus, he deserves acquittal for the said charge at least. However, keeping in view the totality of evidence available on record, it can be safely held that the prosecution has been able to prove its case falling within the mischief of Section 306 I.P.C. against the appellant as we have already held that his wife had committed suicide within the house of the appellant in which occurrence children of the couple also received certain burn injuries. Thus, the appellant stands acquitted of the charge of Section 302 I.P.C. and instead convicted under Section 306 I.P.C.

So far as, charge of Section 498A I.P.C is concerned, in our view, the same is proved to the hilt against the appellant, as such we uphold the conviction and sentence slapped upon him for the said charge.

The net result is that the appeal on hand stands partly allowed in the aforesaid terms.

The maximum sentence for the offence under Section 306 I.P.C is ten years and we sentence the appellant to the maximum under Section 306 I.P.C. Since he has already undergone the sentence for about thirteen years, the sentence now slapped under Section 306 I.P.C. shall be set off in terms of Section 428 Cr.P.C. The sentence of three years slapped upon the appellant under Section 498A I.P.C. and maintained by us shall also run concurrently with the main sentence of 10 years imposed upon the appellant for the charge of Section 306 I.P.C. He being in custody shall now be released forthwith in this case, if not required in any other case. Let intimation be sent to the Jail Superintendent in this regard by the Registry forthwith.

The Trial Court shall also be intimated about the outcome of the appeal by the Registry.