Himachal Pradesh High Court
Raksha Devi vs State Of Himachal Pradesh on 29 October, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HEMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 223 of 2015
Reserved on: October 28, 2015.
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Decided on: October 29, 2015.
Raksha Devi ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
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Whether approved for reporting? Yes.
For the appellant: Mr. N.K.Thakur, Sr. Advocate, with Mr. Rohit Bharol,
Advocate.
For the respondent: Mr. M.A.Khan, Addl. AG.
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Justice Rajiv Sharma, J.
This appeal is instituted against the judgment and order dated 2.5.2015 and 7.5.2015, respectively, rendered by the learned Addl.
Sessions Judge, Hamirpur, H.P. in Sessions Trial No. 02 of 2014, whereby the appellant-accused (hereinafter referred to as the accused), who was charged with and tried for offences punishable under Sections 302 and 307 IPC, was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/- and in default of payment of fine to further undergo simple imprisonment for one year under Section 302 IPC. She was further sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 10,000/- and in case of default to further undergo simple imprisonment for 6 months for offence punishable under Section 307 IPC. Both the sentences were ordered to run concurrently.
2. The case of the prosecution, in a nut shell, is that on 3.10.2013 at about 12:50 PM, a telephonic message was received from ::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 2 MO CHC Bhoranj at PS Bhoranj that three ladies, namely, Sharda, Anju and Nisha, residents of village Patta have been brought for treatment as a .
burn case. PW-20 ASI Rajinder Singh alongwith other police officials visited the hospital. On reaching there the ladies were found admitted in burnt condition upon which an application Ext. PW-20/A was presented to M.O. CHC Bhoranj for their medical examination. Statement of Anju of Devi wife of Shyam Dev was recorded vide Ext. PW-1/A. It was reported by her that her husband is Shyam Kumar and works in Ukhli Transport.
Sh. Shyam Kumar has two brothers who are her Jeth and Debar. They rt all live separately in village Patta. Her mother-in-law was living separately in their old house in Patta Bazar. They are having a family dispute with respect to landed property with Jugal Kishore. On 3.10.2013 at about 12:00 noon, she alongwith her Jethani Sharda Devi and Devrani Nisha had gone to bazaar to see their mother-in-law. On reaching there, accused Raksha wife of Jugal Kishore was found digging the disputed land. She was requested not to dig the same. The accused went inside her kitchen and brought kerosene oil in a frying pan and threw the same upon them. She also threw burning paper upon them. Their clothes caught fire. On their making hue and cry, their mother-in-law reached there and poured water on them. In the meantime, other persons from neighbourhood gathered there. Jasraj also appeared at the spot and removed them to CHC Bhoranj for treatment. She alongwith her Jethani Sharda and Devrani Nisha had received burn injuries. On her statement, ::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 3 FIR Ext. PW-16/A under Sections 307 and 506 IPC was registered against the accused. The injured Anju, Sharda and Nisha were referred to RH .
Hamirpur from where Nisha and Sharda were further referred to IGMC, Shimla. During treatment at IGMC, Shimla, Sharda Devi succumbed to injuries on 3.1.2014. The post mortem report is Ext. PW-15/B. The spot map was prepared. Frying Pan Ext. P-1 and plastic can Ext. P-4 were of taken into possession vide memo Ext. PW-5/B. The clothes were also taken into possession. On completion of the investigation, challan was put up after completing all the codal formalities.
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3. The prosecution, in order to prove its case, has examined as many as 21 witnesses. The accused was also examined under Section 313 Cr.P.C. She pleaded innocence and examined 4 witnesses in defence.
The learned trial Court convicted and sentenced the accused, as noticed hereinabove, for commission of offence under Sections 302 and 307 IPC for causing death of Sharda Devi and attempting to kill Anju Devi and Nisha. Hence, this appeal.
4. Mr. N.K.Thakur, Sr. Advocate, for the accused has vehemently argued that the prosecution has failed to prove the case against the accused. On the other hand, Mr. M.A.Khan, Addl. Advocate General, appearing on behalf of the State, has supported the judgment/order of the learned trial Court dated 2/7.5.2015.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 46. PW-1 Anju Devi deposed that Sh. Shyam Kumar is her husband and they were residing at Village Patta. Her other brothers-in-
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law are also residing in village Patta. They are living separately and her mother-in-law is residing at Patta bazaar in ancestral house. Accused is daughter-in-law of Dina Nath. They are having a family dispute with the family of accused. On 3.10.2013, she alongwith Sharda Devi and Nisha of Kumari had gone to Patta bazaar to see her mother-in-law. When they reached there, they saw accused digging the disputed land. They asked her not to dig the same. On this, accused went inside her kitchen and rt came out with a frying pan filled with kerosene and threw it on them.
Thereafter, she also threw a burning paper on them. Their clothes caught fire, resulting in burn injuries to Sharda Devi, herself and Nisha Kumari.
They raised hue and cry on which, her mother-in-law came there and poured water on them. In the meantime, people from the vicinity also gathered there. They were taken to CHC Bhoranj. The police visited CHC Bhoranj. Her statement Ext. PW-1/A was recorded by the police. She was also subjected to medical examination. She sustained injuries on her left shoulder, arm, chest, back as well as left leg. Thereafter, she and Sharda Devi for further treatment were referred to RH Hamirpur and then to IGMC, Shimla. Sharda Devi succumbed to injuries on 3.1.2014. In her cross-examination, she admitted that the dispute was with regard to land and kitchen. On 3.10.2013, the accused had engaged a mason but she did not know his name. The accused was doing work on the land ::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 5 adjoining to kitchen which is their land. The accused was digging for construction of a latrine pit. The disputed kitchen abuts their old house .
on backside. The accused had dug the pit only to some extent. They were standing outside the kitchen near to door of the kitchen. They enquired from accused as to why she was doing the same in their land.
The accused while threatening them went inside the kitchen and came of out with the frying pan within half a minute. The accused threw kerosene on them from the door of the kitchen. She threw kerosene only once. The gas stove was burning near to the door of the kitchen. She on lighting rt paper with the help of the same threw on them. They all together caught the fire as they were standing together. When accused threw kerosene oil on them, they did not run away.
7. PW-2 Nisha Kumari has corroborated the statement of PW-1 Anju Devi on all material aspects, the manner in which they received burn injuries. In her cross-examination, she admitted that the mason was not doing plastering work of the floor of the house of the accused. The accused was doing work near the door of the kitchen and they were standing there. She was standing in front of them and therefrom she went inside the kitchen. The accused threw kerosene oil from inside the kitchen. The paper was burning when kerosene was thrown on them.
Kerosene was thrown only once. The burning paper was also thrown from inside the kitchen. She could not state as to upon whom the burning paper firstly fell but all of them together caught the fire. She denied the ::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 6 suggestion that Jasraj visited the spot about half an hour prior to their visiting the spot and had a quarrel with the accused, during which he .
threatened the accused to leave the possession of the kitchen.
8. PW-3 Jasraj Singh deposed that their mother lives in old ancestral house at Patta bazaar. Accused is daughter-in-law of his paternal Uncle Amar Nath. They are having a family dispute with the of accused. On 3.10.2013, he was at his home and his wife Sharda Devi alongwith Anju and Nisha had gone to see his mother at Patta bazaar from where his wife conveyed to him that accused had started digging rt their land. She asked him to report the matter to Panchayat and to bring the representatives of the Panchayat to the spot. After some time, his mother called him up and told him that accused has burnt his wife, Anju and Nisha by pouring kerosene oil and asked him to reach on the spot immediately. He rushed to the spot and found them burnt. Thereafter, he took them to CHC Bhoranj. His wife was further referred for treatment to RH Hamirpur and she succumbed to burn injuries at IGMC, Shimla on 3.1.2014. In his cross-examination, he deposed that he received telephonic message from his wife regarding digging about 10-15 minutes prior to the message received from his mother regarding burning. On receiving the message, he visited the house of village President. He received telephonic message about burning when he was present at the house of village President. He did not inform the village President about the incident at the relevant time. They are having dispute about kitchen ::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 7 and the land adjoining the same. The accused had also occupied their land beneath her house. He admitted categorically that they want to take .
possession of kitchen and land from the accused. Though, volunteered that they have applied for partition. The accused was digging pit.
9. PW-4 Saraswati Devi deposed that she alongwith her husband were residing in Patta bazaar. There was a dispute qua of construction of kitchen by the accused. On 3rd October, all her daughters-in-law had visited her. The accused by engaging a labourer was doing digging work and at that time she was sleeping on a bench in rt her house. When her daughters-in-law objected to the work of digging being done by the accused, she threatened them and further set them on fire by throwing kerosene oil. They raised hue and cry. She rushed to the spot. She found her daughters-in-law in fire and then she poured water on them. Thereafter, she telephonically informed Jasraj about the incident and then he visited the house of village President. Jasraj then came to the spot and took her daughters-in-law to the hospital.
10. PW-5 Savita Minhas is the President of Gram Panchayat Patta. She deposed that on 3.10.2013, Jasraj came to her and told that quarrel has taken place between accused, his wife and wives of his brothers with regard to digging of land by accused. He requested her to visit the spot. She told him that she would visit later on. Jasraj thereafter left her house. After some time, she visited the spot but there was no one present on the spot. From the persons present there, she ::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 8 came to know that accused persons had set Sharda, Anju and Nisha on fire and they have been removed to CHC Bhoranj for treatment. In her .
cross-examination, she deposed that when she visited the spot, she came to know from the persons of vicinity that quarrel has taken place between accused and complainant party. Some burnt clothes were also lying there. No one told her that the accused has set the complainant party on of fire.
11. PW-6 LC Rekha Devi deposed that accused produced a plastic Can and a frying pan to the I.O, which were taken into possession vide rt seizure memo Ext. PW-5/B.
12. PW-7 Const. Kuljesh Kumar has brought rukka to the Police Station vide Ext. PW-1/A. Thereafter, FIR was registered.
13. PW-9 Dr. Abhilaksh Kango deposed that Smt. Anju Devi was brought to the hospital with alleged history of burn injuries. Her clothes were partially burnt. Smell of kerosene was present in the clothes. Burn injuries were present on face, parietal region of skull, left side of chest and left arm. It also included left upper thigh and left side of the upper back. 30-40% of superficial to deep burns were present. After examination, first aid treatment was given and patient was referred to RH Hamirpur for further examination. The injuries were found grievous in nature. The injuries were dangerous to life. He issued MLC Ext. PW-9/A. He also examined Sharda Devi. As per the Surgeon's opinion, the injuries were grievous in nature and dangerous to life. He issued MLC Ext. PW-
::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 99/B. He opined that the death was caused due to septicemia shock due to approximately 68% of dermal and epidermal burns. He also examined .
Nisha Devi. He noticed burn injuries on right arm to the extent of 4% superficial burns. The patient was referred for surgical opinion and final opinion was reserved. As per the Surgeon's opinion, the injuries were simple in nature. He issued MLC Ext. PW-9/C. of
14. PW-12 Dr. Yash Pal deposed that Anju Devi remained under his treatment at IGMC Shimla from 4.10.2013 to 25.10.2013 and was treated for 20% superficial and deep burns.
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15. PW-13 Dr. Parikshit Malhotra, deposed that wife of Jasraj was referred from RH Hamirpur. She was admitted in Female Surgery Unit IV of IGMC, Shimla on 3.10.2013 at 10.24 PM, with approximately 55-60% total body surface area of superficial to deep burn.
The patient succumbed to injuries on 3.1.2014 at 5:45 AM.
16. PW-15 Dr. Dharuv Gupta deposed that he conducted the post mortem examination on Sharda Devi and issued report Ext. PW-15/B. The probable time that elapsed between injury and death delayed and between death and postmortem was within 6-12 hours. In his opinion, the deceased died as a result of septicemia shock secondary to Epidermal/Dermo-Epidermal burns equivalent to 68% (approx.) ante mortem in nature.
17. PW-17 Dr. Nikhil Ahluwalia, deposed that he gave surgical opinion over MLC Ext. PW-9/C in respect of burn injuries to Nisha Devi.
::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 10As per his opinion, she had 4% first degree burns over the forearm.
Nature of injury was simple.
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18. PW-20 ASI Rajinder Singh was the I.O. in the case. He received information from M.O. CHC Bhoranj. The statement of Anju Devi was recorded under Section 154 Cr.P.C. The statements of the witnesses were also recorded under Section 161 Cr.P.C. The recoveries were made of from the spot including burnt clothes. The spot map was also prepared.
19. PW-21 SI Sandeep Kumar has prepared the inquest papers.
20. The accused has also examined DW-1 MHC Subhash Chand rt to prove FIR Ext. DW-1/A registered by her against the complainant party dated 3.10.2013.
21. DW-2 Sanjeev Kumar deposed that he was standing outside the godown and saw that three ladies were abusing accused Raksha Devi and went to her kitchen. Accused had engaged a mason for the purpose of flooring of her house. In the meantime, he heard loud noise from the kitchen of accused raising a voice for saving. On hearing noise, many persons gathered there. He saw that all persons present in the kitchen had caught fire.
22. DW-3 Shamneesh Kumar has proved MLC Ext. DW-3/A.
23. DW-4 Dr. Abhilaksh Kango has also examined the three ladies alongwith the accused. He has noticed one mild superficial burn on upper part of left side of back and left elbow and left hand middle ::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 11 finger which constituted 2% burn injuries collectively. The injuries were simple in nature. He issued MLC Ext. DW-3/A in respect of accused.
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24. What emerges from the evidence discussed hereinabove, is that the complainant party had dispute with the accused over a portion of the land. According to the prosecution case, the accused was digging pit.
PW-1 Anju Devi, PW-2 Nisha Kumari and Sharda Devi (deceased) had of gone to Patta bazaar to see their mother-in-law. When they reached there, they saw accused digging the disputed land. They asked her not to dig the land. The accused went inside the kitchen and brought frying pan rt filled with kerosene. She threw the same on them and then she had thrown burning paper on them resulting in burn injuries to Sharda Devi, herself, Nisha Kumari and Anju Devi. Sharda Devi succumbed to injuries on 3.1.2014 at IGMC, Shimla. The injuries received by Anju Devi were also opined to be grievous by PW-9 Dr. Abhilaksh Kango.
25. PW-1 Anju Devi has admitted in her cross-examination that they had a family dispute with the family of accused. The dispute between them was with regard to land and kitchen. She categorically deposed in her cross-examination that when accused person threw kerosene oil on them, they did not run away. The first reaction of these women would have been to save themselves by running away from the spot before they were put on fire instead of standing on the spot.
26. PW-3 Jasraj deposed that he went to the President of Gram Panchayat but surprisingly, he has not narrated the incident to her. He ::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 12 has admitted in his cross-examination that they were having dispute about kitchen and land adjoining the same. He has also admitted that .
they went to take possession of kitchen and land from the accused. The immediate reaction of Jasraj would have been to reach the spot to save injured persons instead of going to PW-5 President of the Gram Panchayat, Patta.
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27. According to PW-9 Dr. Abhilaksh Kango, PW-1 Anju Devi had received superficial to deep burns to the extent of 30-40%. The injuries were found grievous in nature. The injuries were also dangerous to life.
rt He issued MLC Ext. PW-9/A. He also examined Sharda Devi. She had suffered 60-70% superficial deep burn injuries. As per the Surgeon's opinion, the injuries were grievous in nature and dangerous to life. He issued MLC Ext. PW-9/B. He opined that the death was caused by septicemia shock due to approximately 68% of dermal and epidermal burns. He noticed burn injuries on right arm to the extent of 4% superficial burns on PW-2 Nisha Kumari. He issued MLC Ext. PW-9/C. Sharda Devi succumbed to injuries on 3.1.2014 at 5:45 AM. The post mortem was conducted by PW-15 Dr. Dhruv Gupta. According to him, the deceased died as a result of septicemia shock secondary to epidermal/dermo-epidermal burns equivalent to 68% and ante mortem in nature.
::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 1328. The accused has also lodged FIR Ext. DW-3/A and she was also medically examined by PW-9 Dr. Abhilaksh Kango. According to .
him, she received only 2% burn injuries.
29. It has come on record that there was dispute with regard to kitchen and adjoining land. PW-3 Jasraj, as noticed hereinabove, has categorically admitted that the complainant party had gone to the house of of accused to take possession of kitchen and land from the accused. PW-1 Anju Devi has also admitted about the dispute with the family of the accused. PW-1 Anju Devi, PW-2 Nisha Kumari and PW-3 Jasraj and rt Sharda Devi had gone to the house of the accused. It is apparent that quarrel has taken place on the spot when the digging of the land was objected to by the witnesses. PW-4 Saraswati Devi has also deposed that there was dispute qua construction of kitchen by accused.
30. PW-1 Anju Devi, PW-2 Nisha Kumari and Sharda Devi have objected to the digging of land by the accused. The accused was all alone.
According to these witnesses, the accused went inside the house and threw kerosene oil on them from frying pan. Thereafter, she threw burning paper on them. They caught fire. The defence taken by the accused before the trial Court was that she was all alone. PW-1 Anju Devi, PW-2 Nisha Kumari and Sharda Devi came on the spot. They had brought oil can with them. All of them tried to put her on fire. She pushed them and in the process all of them caught fire including her.
She also received injuries. She filed FIR Ext. DW-1/A, under Section 452, ::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 14 323, 504 and 34 IPC. Even if it is assumed as argued by Mr. Naresh Thakur, Sr. Advocate for the accused that the complainant party was .
aggressor and his client has exercised the right of private defence, the fact of the matter is that as per the evidence, the accused has thrown kerosene oil on PW-1 Anju Devi, PW-2 Nisha Kumari and Sharda Devi (deceased) and thereafter put them on fire by throwing burning paper.
of She may not have the intention at the time she threw kerosene oil on them but, definitely she had the knowledge that her act of throwing kerosene followed by throwing burning paper may cause death. Though rt the incident is dated 2.10.2013 but Sharda Devi has died in IGMC, Shimla on 3.1.2014 at 5:45 Am. The accused though has received burn injuries but these are only 2%.
31. The report of the chemical examiner is Ext. PA, which also shows that kerosene was detected in the contents of burnt clothes of Anju Devi and Sharda Devi. The injuries received by PW-2 Nisha Kumari were simple in nature. The grievous and life threatening injuries were received by PW-1 Anju Devi and Sharda Devi. PW-1 Anju Devi has received grievous injuries as per the opinion of PW-9 Dr. Abhilaksh Kango. PW-2 Nisha Kumari has received only 4% superficial burns and the injuries were simple in nature. In order to prove the case under Section 307 IPC, what has to be seen is the intention and not the nature of injuries, though in the present case, PW-1 Anju Devi has received serious and grievous ::: Downloaded on - 15/04/2017 19:15:51 :::HCHP 15 injuries and injuries received by PW-2 Nisha Kumari were simple in nature.
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32. In view of the observations and analysis made hereinabove, the appeal is partly allowed. The accused is convicted under Section 304 (part II) IPC instead of Section 302 IPC. The conviction and sentence under Section 307 IPC is upheld. The accused be heard on the quantum of of sentence on 6.11.2015. The Registry is directed to prepare the production warrant and send the same to the concerned Superintendent of Jail for production of the accused on 6.11.2015.
rt ( Rajiv Sharma ),
Judge.
October 29, 2015, ( Sureshwar Thakur ),
Judge.
(karan)
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