Sanjay Tirkey vs State of Jharkhand, & Ors.

This criminal appeal is directed against the judgment of conviction

and order of sentence dated 06 th August 2008 and 07th August, 2008 respectively,

passed by Sri Kaushal Kishor Jha, No. 1, the learned Additional Session Judge,

FTC 2, Bokaro in Session Trial No. 283 of 2002, arising out of Pindrajora P.S.

Case No. 6/2002, corresponding to G.R. No. 55 of 2002, whereby and

whereunder, the appellant has been punished to undergo rigorous imprisonment

for life for committing the offence punishable under Section 302 IPC and further

pay a fine of Rs.5000/-. In default of payment of fine, the appellant is liable to

undergo rigorous imprisonment for further period of three months.

The prosecution case is based upon fardbeyan of Mina Pandey

(the deceased-victim) which was recorded at Bokaro General Hospital, Bokaro on

18.1.2002 . In the said fardbeyan, the deceased stated that she was married to

Prahlad Pandey in the year 1982 and they were residing happily. On 18.1.2002 at

about 08:00 hours in the morning, she was in her in-laws house when her mother-

in-law and sister-in-law (this appellant) came and sprinkled kerosene oil upon her.

Her mother-in-law with the help of match stick put her on fire. She started

screaming and hearing her screams, her son reached along with other

neighbours. Her son called her husband and her husband immediately took her to

Bokaro Hospital, where she is being treated by Dr. Sahay and Dr. Sharwan. She

stated that she was being tortured by her mother-in-law and this appellant- Meena

Devi on the pretext of dowry for which, information was given to her paternal

house and also to her husband.

On the basis of the aforesaid Fardbeyan, initially FIR was

registered for the offence under Sections 498A / 307 / 34 of the Indian Penal Code

as Pindrajora P.S. Case no. 6/2002, corresponding to G.R No. 55/2002. Be it

noted that the victim died on 19.1.2002, thus Section 302 IPC was added vide

order dated 24.1.2002. The case was instituted against two persons i.e. mother-

in-law of the deceased and this appellant- Meena Devi, being the sister-in-law of

the deceased.

The police, after conclusion of investigation, submitted

chargesheet against this appellant, showing mother-in-law of the deceased i.e.

Khiroda Devi as an absconder. Charge was framed under Sections 498A and 302

IPC, to which the appellant pleaded not guilty and claimed to be tried.

Altogether, 9 witnesses were examined on behalf of the prosecution to

prove its case and several documents and signatures were marked as Exhibits on

behalf of the prosecution. After closure of the prosecution witnesses, the

statement of this appellant was recorded under Section 313 Cr.P.C.. The defence

did not produce any witness.

It is pertinent to mention herein that Satyadeo Pandey and Laxmi

Devi were arraigned as accused under Section 319 Cr.P.C. vide order dated

20.2.2004. Thereafter, P.W. 2 and P.W.4 were recalled on their behest and they

were only cross-examined. This shortcut method was adopted by the trial court

without de novo trial. Thereafter, vide order dated 6.1.2007, the court ordered de

novo trial of Laxmi Devi and Satyadeo Pandey and the trial was separated and the

prosecution was directed to produce all the witnesses afresh. That being the

situation, we are not considering that part of the cross-examination of P.W.2 and

P.W.4, which was done at the behest of the accused Laxmi Devi and Satyadeo

Pandey.

The trial court, after hearing the argument of the parties and after

analyzing the evidences on record as well as taking into consideration the

materials on record, convicted the appellant for committing the offence under

Section 302 IPC and sentenced her to undergo rigorous imprisonment for life

along with fine.

Challenging the said judgment of conviction dated 6.8.2008 and

order of sentence dated 7.8.2008 respectively, the appellant has preferred this

appeal.

We have heard the learned counsel appearing for the appellant

and the learned Addl. P.P. We have also scanned the evidences and gone through

the lower court records.

Counsel appearing on behalf of the appellant submits that the

prosecution has miserably failed to prove the guilt of the appellant. He also

submits that in fact, there is no eye witness to the said occurrence. It is further

submitted that if the evidence of P.W. 2 (husband of the deceased) is analyzed, it

would be evident that he did not see the occurrence, rather he came after hearing

that his wife had been burnt. He further submits that the son of the deceased i.e.

P.W. 4 claims to be an eye witness but he was not present at the place of

occurrence and has reached after the occurrence had taken place. He submits

that if the evidence of P.W. 2 and P.W. 4 is discarded then only remaining

evidence is the alleged dying declaration of the deceased, which is the fardbeyan.

He further submits that as per the medical report, the burn injury was 100 per cent

and if the burn injury of a person is to the extent of 100 per cent, he/she will not be

in a position to give any statement. He submits that thus the fardbeyan is doubtful

and cannot be relied upon on this ground. It is also submitted that in fact the real

culprit is the husband of the deceased who only to save his own skin has cooked

up the story and has falsely implicated this appellant. He lastly submits that on the

aforesaid ground, the appellant is entitled to be acquitted, giving the benefit of

doubt.

Learned Addl. P.P. submits that the oral evidence is consistent in

this case. She submits that P.W.2 and P.W. 4 are the eye witnesses who

categorically stated that the deceased was burnt by this appellant along with her

mother-in-law. It is submitted that the fardbeyan of the deceased is the dying

declaration and the same cannot be doubted because the Doctors have clearly

deposed that the deceased was in her sense and was able to speak. It is also

submitted that there is nothing on record which even remotely suggests that the

appellant has falsely been implicated in this case. It is lastly submitted that the

prosecution has been able to prove the guilt of this appellant beyond all

reasonable doubt, thus the conviction of the appellant is justified.

In this case, there are two eye witnesses i.e. P.W. 2- Prahlad

Pandey (husband of the deceased) and P.W.4- Mahamaya Pandey (son of the

deceased). From reading of evidence of P.W.2, it is quite clear that due to

domestic work and dowry, his mother and this appellant used to often quarrel with

the deceased. As per him on the fateful day, this appellant and her mother were

quarreling with the deceased and this witness calmed them down and went

outside his house. He was standing near the road, when his son Mahamaya

Pandey (P.W.4) came and informed him that his mother has been put on fire by

this appellant and Khiroda Devi (mother in-law of the deceased). P.W.2 (husband

of the deceased) immediately rushed to his house when the victim told this

witness that this appellant poured kerosene oil on her and her mother-in-law lit

match stick and put her on fire. This witness took the victim to the Bokaro

General Hospital, where the police took her statement in his presence and the

doctor had also taken her statement in which, she stated that her mother-in-law

and this appellant had put her on fire. This fact has been supported by P.W.4- the

son of the deceased.

P.W.4 states that there was quarrel going on between his mother and

this appellant as the son of this appellant had committed theft of tomato from their

field. This incident occurred a day prior to the occurrence. He stated that on the

date of occurrence, this appellant had thrown garbage in front of the house of the

deceased, to which the deceased objected. This appellant and her son started

quarreling with the deceased. His father came and mediated and got the quarrel

stopped and thereafter his father left at about 8:00 hours in the morning. When

this witness was getting ready for going to school, he heard the screams of his

mother and on hearing such screams, he went towards his mother where he saw

that his mother was pinned down on the ground by this appellant and this

appellant sprinkled kerosene oil on his mother and his grand-mother lit match

stick and put her on fire. He was caught by his uncle and his mouth was gagged

so that he could not shout. After few minutes, he was released then he started

shouting when several persons gathered on the place of occurrence. He stated

that his father came and had taken her mother to the Hospital. No contradiction

has been found in their cross-examination. Thus, from the evidence of these two

witnesses, it is clear that this appellant had quarreled with the deceased and

sprinkled kerosene oil on the person of the deceased and thereafter the mother in

law of the deceased (absconder) had burnt the deceased.

This fact has also been narrated by the deceased in her fardbeyan.

From the fact, which emerges from the evidence of these two witnesses i.e. P.W.

2 and P.W.4, it can be said that this appellant and the mother in-law of the

deceased burnt the deceased after sprinkling kerosene oil. Thus the fact which is

the statement of the deceased and is the fardbeyan, stands corroborated.

Now the question is whether reliance can be placed on dying

declaration of the deceased. The fardbeyan is the dying declaration, which has

been recorded by P.W. 6-Balmiki Singh, the Sub-Inspector of Police. From his

evidence, it is clear that he recorded what the deceased had narrated before him,

the entire facts which have been scribed by him and now is the fardbeyan. He

stated that the Doctor- Sarawan Kumar and Doctor Sahay were also present

there, when he was recording the statement of the deceased.

In paragraph 9, he stated that the victim was in her sense and she was

in a position to speak. He stated that the victim told him that her sister-in-law,

Meena Devi had sprinkled kerosene oil upon her and her mother-in-law with the

help of match stick burnt her. Doctor Sharwan Kumar (P.W.5) in paragraph 3 of his

evidence stated that Mina Pandey (the victim) was burnt by pouring kerosene oil

by her mother in-law and sister in-law. This doctor categorically stated that the

deceased was in a conscious state at that time and was speaking.

The I.O. was examined in this case but the defence could not bring out

any contradiction from his evidence.

From the conjoint reading of the evidences of P.Ws. 4 and 6, it is

quite clear that though the victim was burnt, she was in her sense and was able to

speak. Thus the argument of the learned counsel for the appellant that a person

who is 100 per cent burnt could not give any statement, is not acceptable. In the

case of Ramesh and Others Vs. State of Haryana reported in (2017) 1 SCC

529, the Hon''ble Supreme Court while dealing with dying declaration of a victim

who sustained 100 per cent burn injury held that the dying declaration of the

victim, who has sustained 100 per cent burn cannot be brushed aside and the

conviction can be passed merely on such dying declaration, which inspires

confidence.

In this case, we find that there is nothing to discredit the

fardbeyan of the victim. Though, she was 100 per cent burnt yet she was

conscious and she was able to speak, which has been vouched by the Sub-

Inspector of Police, who had recorded the statement of the victim. The attending

doctor also supports the said position of the victim. Where the doctor and the

scribe who recorded the statement says that the victim was in her sense and was

talking, there is no ground to disbelieve their statement. In view of such statement

by the doctor and the scribe the percentage of burn looses its reliance, so far the

state of the victim to give her statement is concerned. In this case, we find that not

only there is a reliable dying declaration implicating this appellant but also the

evidence of P.Ws. 2 and 4 corroborates the entire fact that this appellant was

instrumental in burning the deceased.

So far as argument of the learned counsel for the appellant that it

is the husband, who is the main culprit, and has falsely implicating this appellant,

is concerned, the same has also no leg to stand. There is nothing in the evidence,

which can even remotely support the above proposition floated by the counsel for

the appellant. Moreover, the father of the deceased namely, Shankar Pandey

(P.W.3) had deposed in paragraph 7 that he used to make complain to his son-in-

law that the deceased is regularly being tortured by this appellant, her mother-in-

law and his brother on the pretext of demand of dowry. He also stated that his son

in-law (P.W.2) was also being assaulted by them. Thus from the aforesaid fact, it

can be said that the plea raised about false implication of this appellant has got no

merit.

Thus, it can be safely held that the prosecution has been able to

prove the guilt of the appellant beyond all reasonable doubt, which does not call

for acquittal of the accused-appellant.

It is also pertinent to mention herein that the prosecution has

exhibited several documents i.e. the fardbeyan, the FIR, the postmortem report,

the inquest report, the medical slips, the case history and several signatures on

different documents, which were marked without any objection from the side of

the defence. We also find that all documents supported the case of the

prosecution. We further find that there is no procedural illegalities or irregularities

in conducting the trial.

Thus on overall consideration, we find that there is no merit in this

appeal and the same is thus liable to be dismissed and the judgment of conviction

and order of sentence dated 06.08.2008 and 07.08.2017 respectively, passed in

S.T. No. 283/2002 is confirmed.

The appellant is already in custody. She is to serve out rest of the

sentence.

In the result, this appeal is dismissed. Let the Lower Court

Records be sent back to the Court concerned forthwith, along with a copy of this

judgment.