Jharkhand High Court
Prem @ Premjeet vs The State Of Jharkhand on 7 July, 2018
Equivalent citations: AIRONLINE 2018 JHA 616, 2018 (4) AJR 235
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti
Cr. Appeal (D.B) No. 334 of 2011
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B) No. 334 of 2011
(Against the Judgment of conviction dated 18.03.2011 and Order of
sentence dated 25.03.2011, passed by the learned Sessions Judge-cum-
Special Judge, Gumla, in G.R. No. 507 of 2007, arising out of Basia P.S.
Case No.58 of 2007)
Prem @ Premjeet
@ Prem Sahu
@ Premjeet Sahu ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE B.B. MANGALMURTI
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For the Appellant : Mr. Kripa Shankar Nanda, Advocate.
Mr. Niranjan Kumar Sinha, Advocate.
For the State : Mr. Sanjay Kumar Pandey No.2, A.P.P.
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By Court: - Heard learned counsel for the appellant and the learned counsel for the State.
2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 18.03.2011 and Order of sentence dated 25.03.2011, passed by the learned Sessions Judge-cum-Special Judge, Gumla, in G.R. No. 507 of 2007, arising out of Basia P.S Case No.58 of 2007, whereby, the appellant has been found guilty and convicted for the offences under Sections 376 and 302 of the Indian Penal Code, and Section 3(1)(xii) of the S.C & S.T (Prevention of Atrocities) Act. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I for life and fine of Rs.1,000/- for the offence under Section 302 of the Indian Penal Code, R.I for eight years and fine of Rs.1,000/- for the offence under Section 376 of the Indian Penal Code, and R.I for two years for the offence under Section 3(1)(xii) of the S.C & S.T (Prevention of Atrocities) Act, and all the sentences were directed to run concurrently.
3. The prosecution case was instituted on the basis of the fardbeyan of the deceased herself, while she was alive, which was recorded on 01.06.2007, at about 11:00 P.M., in the night, at Referal Hospital, Basia, District Gumla, wherein she has stated that her neighbor, Prem Sao, i.e., Cr. Appeal (D.B) No. 334 of 2011 -2- the accused, used to commit rape upon her on false assurance of marrying her for the last three years. On 01.06.2007 at about 7:00 P.M., while she was studying in her house in the light of a lamp, the accused came there and scolded her, saying that she used to roam in the village at night, and he put off the lamp and assaulted her by feet, due to which, she fell down and thereafter, he poured the kerosene oil on her and put her to fire by a lighter, due to which, she was badly burnt. Thereafter, her cousin Bishnu Kharia, her uncle Laxman Kharia and other villagers brought to her to Referal Hospital, where she was undergoing treatment. She has stated that her parents were already dead and she has two younger brothers, who were not present in the House. She has also stated that being a tribal girl, the offence had been committed upon her by the accused. On the basis of her fardbeyan, Basia P.S Case No.58 of 2007, corresponding to G.R No.507 of 2007, was instituted against the sole accused, for the offences under Sections 448, 376, 326 and 307 of the Indian Penal Code, and Section 3 of the S.C & S.T (Prevention of Atrocities) Act, and investigation was taken up. In course of treatment, the deceased died at RIMS, Ranchi. After investigation, the police submitted the charge-sheet against the accused, in the case.
4. After commitment of the case to the Court of Session, charge was framed against the accused appellant for the offences under Sections 448, 302 & 376 of the Indian Penal Code, and Section 3(1)(xii) of the S.C & S.T (Prevention of Atrocities) Act, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, twelve witnesses were examined by the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-2 Sukra Manjhi and P.W.-8 Jitu Manjhi have turned hostile and have not supported the prosecution case, though, P.W.-2 Sukra Manjhi has stated that he had seen the deceased in burnt condition and P.W.-8 Jitu Manjhi, has also stated that the deceased had died due to burn injury.
5. P.W.-4 Laxman Kharia is the uncle of the deceased and P.W.-1 Bishnu Kharia is the cousin of the deceased and both these witnesses are also the signatories to the fardbeyan of the deceased. Both these witnesses have stated that the occurrence had taken place on 01.06.2007 and upon Cr. Appeal (D.B) No. 334 of 2011 -3- the alarm raised by the deceased, when they rushed to her house, they found her in a burnt condition outside the house. When they asked her as to how she was burnt, she informed that Premjeet had burnt her. P.W.-4 Laxman Kharia has also stated that she had informed that Premjeet had poured kerosene oil upon her and burnt her. This witness had entered the house and found the smell of kerosene oil. Both these witnesses have stated that thereafter, she was taken to hospital and her statement was recorded at the hospital. P.W.-4 Laxman Kharia has identified his signature on the fardbeyan, which was marked Exhibit-1. He has also stated that there was some affair between the deceased and accused. Both these witnesses were put to cross-examination but there is nothing of much importance in the cross-examination of P.W.-4 Laxman Kharia. Though the attention of the P.W.-4 Laxman Kharia had been drawn towards some of his statements made before the police, but no contradictions with regard to those statements have been taken from the I.O. of the case, and as such, the same is not at all important. P.W.-1 Bishnu Kharia has, however, stated in his cross-examination that the police had not arrived in his presence, but he has again stated that the police had arrived in the morning and the statement of the victim was recorded in his presence and she had put her signature on the fardbeyan. Police had recorded the statement of this witness also.
6. P.W.-6 Paul Kharia, P.W.-7 Fagu Kharia and P.W.-9 Bimla Devi have also stated that upon getting the information, they had reached the place of occurrence, where they had seen the deceased girl in the burnt condition and she had informed that she was put to fire by Premjeet after pouring kerosene oil on her. These witnesses have also identified the accused in the Court. There is nothing of much importance in the cross-examinations of these witnesses.
7. P.W.-5 Abhimanyu Kharia is the brother of the deceased, and this witness has stated that on the date of occurrence, he was at Gumla, and he learnt that his sister had been burnt to death by the accused Premjeet. This witness has stated that there was an affair between his sister (deceased) and the accused for the last three years, but the accused did not want to marry her, and for that, he had seen some quarrels earlier between his sister and accused. He had identified the signature of his deceased sister Cr. Appeal (D.B) No. 334 of 2011 -4- on her fardbeyan, which was marked Exhibit-1/1. He has also identified the accused in the Court. There is nothing of much importance in his cross-examination as well.
8. P.W.-3 Puna Yadav is the witness to the seizure list and he had also seen the deceased in the burnt condition. He has stated that one lamp, one match and slippers were seized by the police from the place of occurrence, and he had put his thumb impression on the seizure list.
9. P.W.-10 is Dr. Aman Kumar, who had conducted the post-mortem examination on the dead body of the deceased on 11.06.2007 and had found the following on the dead body:-
Dermo epidermal burn involving face, neck, front of chest, front of abdomen upper part, portion of nose, both upper limbs including both palm, both thighs front upper part, back of right thigh and back of trunk. Burn areas were infected at places. Uterus was enlarged weighing 125 grams. Uterine cavity contained product of conception (placenta) attached with endo material wall. There was evidence of incomplete abortion (post burned).
He has stated that the above noted burn injuries were ante-mortem in nature, caused by flame burn and the death was caused due to burn and its complications. He has also proved the post-mortem report to be in his pen and signature, which was marked Exhibit-2. He has stated that the dead body was brought from the burn ward unit of Dr. V.K. Jain, RIMS, Ranchi. He has stated that there were 70-75% ante-mortem burn injuries on the dead body and in such type of burn injuries, the patient may be able to talk.
10. P.W.-11 Alvan Tigga is the Deputy Superintendent of Police and the I.O of the case. This witness has stated that on 01.06.2007, he was posted as S.D.P.O., Gumla, on which date, he was handed over the charge of investigation of Basia P.S Case No.58 of 2007. He went to the place of occurrence and he has given the details of the house of the deceased where the occurrence had taken place, and had found the bed in the room of the deceased in a scattered position, though he did not find any burn marks in the room, but he has stated that there was a lamp, matchbox and one pair of slippers in the room, which was said to be of the accused. He prepared the seizure list, which he has proved and the same was marked Exhibit-3. He has stated that he had recorded the statement of S.I. Cr. Appeal (D.B) No. 334 of 2011 -5- Surendra Prasad Singh, who had recorded the fardbeyan of the deceased at Referal Hospital, Basia, while she was injured, and thereafter, she was referred to Ranchi. The said Police Officer had informed him that at the time of recording the statement of the deceased, her uncle Laxman Kharia and her cousin Bishnu Kharia were also present. He received the post-mortem examination of the deceased and submitted the charge-sheet. He has contradicted the statements of the hostile witnesses. In his cross-examination, this witness has stated that in course of investigation, he had not visited either Refral Hospital, Basia, or RIMS, Ranchi, and it is not mentioned in his case diary as to when the victim was referred to RIMS, Ranchi. He has also stated that he had not recorded the re-statement of the victim. Though he had taken attempts for that, but it is not mentioned in the case diary. Even the date of death of the deceased is not mentioned in the case diary and he had not received any inquest report of the dead body. He had gone to arrest the accused on 02.06.2007. He had not taken any steps to determine whether the slippers belonged to the accused. He has denied the suggestion of making faulty investigation.
11. P.W.-12 Harideo Prasad is also the Sub-Inspector of Police, who has stated that on 01.06.2007, he received the fardbeyan at the Police Station at about 11:00 P.M, from the A.S.I. Surendra Prasad Singh, on the basis of which, the formal FIR was lodged and the charge of investigation was given to the D.S.P. He has identified the formal FIR to be in his pen and signature, which was marked Exhibit-4 and has also proved the fardbeyan, to be written by A.S.I. Surendra Prasad Singh, which was marked as Exhibit-5. The A.S.I. had also informed him that the deceased had been referred to RIMS, Ranchi, for her further treatment.
12. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein the accused has denied the evidence against him. No evidence was adduced by the defence in the case. On the basis of the evidence on record, the accused appellant was convicted and sentenced by the Trial Court below, as aforesaid.
13. Learned counsel for the appellant has submitted that the appellant has been falsely implicated in the case, and though it is stated that the fardbeyan of the deceased was recorded in the hospital, while she was undergoing treatment, but no Doctor or any para medical staff who was Cr. Appeal (D.B) No. 334 of 2011 -6- attending the deceased, had put his signature on the fardbeyan, nor is there any endorsement by them in the fardbeyan, that the deceased was in a position to give her statement. Learned counsel also submitted that the Police Officer recording the fardbeyan of the deceased has not been examined in this case, and for these lacunae, the fardbeyan of the deceased becomes doubtful, and it cannot be treated as dying declaration of the deceased. Learned counsel further submitted that there are several lacunae even in the investigation of the case, inasmuch as, even though the case was investigated by the Police Officer of the rank of Deputy Superintendent of Police, but this I.O has admitted that he had never visited either RIMS, Ranchi, or Basia Referal Hospital, in course of investigation. He has also admitted that he had not recorded the re-statement of the deceased, which also makes the fardbeyan doubtful, as had the deceased been in a position to give her fardbeyan, her re-statement must also have been recorded.
14. Learned counsel for the appellant further submitted that all the witnesses supporting the prosecution case, are only the hearsay witnesses, who were informed by the deceased that it was the accused, who had put her to fire, but even though, they are neighboring persons, none of them had either seen the accused entering into the house of the deceased, or fleeing away from the house. Learned counsel submitted that for these reasons, the prosecution has not been able to bring home the charges against the accused beyond all reasonable doubts, and it is a fit case, in which, the accused ought to have been given the benefits of doubt.
15. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the prosecution has been able to bring home the charges against the accused beyond all reasonable doubts, inasmuch as, the fardbeyan was given by the deceased herself when she was alive and she has given the vivid details of the occurrence as to how, while she was studying in her house, the accused who used to sexually assault her for the last three years, had put her to fire. Learned counsel further submitted that P.W.-1 Bishnu Kharia, P.W.-4 Laxman Kharia, P.W.-6 Paul Kharia, P.W.-7 Fagu Kharia and P.W.-9 Bimla Devi, are the persons, who had reached the place of occurrence soon after the occurrence, and they had seen the deceased in the burnt condition. They have categorically stated Cr. Appeal (D.B) No. 334 of 2011 -7- that upon asking the deceased, she informed them that it was this accused, who had put her to fire. Learned counsel also submits that since the deceased had died, her statement given before these witnesses is to be treated as her oral dying declaration, which is admissible in law, and in this connection, learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court in Parbin Ali & Anr. Vs. State of Assam, reported in (2013) 2 SCC 81. Learned counsel has also submitted that the post-mortem report would show that not only the deceased had suffered 70-75% burn injuries and in such condition the patient may be able to talk, but the post-mortem report also shows that the deceased was pregnant at the time of occurrence, and the product of conception, i.e., the placenta was found to be attached with uterus and there was evidence of incomplete post burn abortion. Learned counsel, accordingly, submitted that the medical evidence clearly discloses the motive of the occurrence also, as due to repeated sexual assaults made by the accused, the deceased had become pregnant, and the accused wanted to get rid of her, as she was pressurizing the accused to marry her. Learned counsel for the State accordingly submitted that in the facts of this case, the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below.
16. Having heard the learned counsels for both the sides and upon going through the record, we find that the prosecution case is fully supported by P.W.-1 Bishnu Kharia, P.W.-4 Laxman Kharia, P.W.-6 Paul Kharia, P.W.-7 Fagu Kharia and P.W.-9 Bimla Devi. All these witnesses have stated that soon after the occurrence, they went to the place of occurrence and saw the deceased in burnt condition, who was still alive. They have stated that upon asking, the victim herself informed them that it was this accused, who had put her to fire. This clearly shows that at that point of time the deceased was in a position to speak, and this fact is also supported by the medical evidence of P.W.-10 Dr. Aman Kumar, who has stated though the deceased had suffered 70-75% burn injuries, but she might be able to talk. Since thereafter the deceased died, the statement made by the deceased before these witnesses, while she was alive, detailing the cause of her death, has to be treated as her dying Cr. Appeal (D.B) No. 334 of 2011 -8- declaration. In view of the evidence on record, it can be safely concluded that the deceased was in a fit mental state and was capable to narrate the cause of her subsequent death, and the conviction of the accused could be secured on the basis of her oral dying declaration. We also find that the facts of this case are fully covered by the law laid down by the Hon'ble Apex Court in Parbin Ali's case (supra).
17. We, however, find force in the submission of the learned counsel for the appellant that the fardbeyan of the deceased may not be taken as her dying declaration, in view of the fact that though it is stated in the fardbeyan that at the time of giving the fardbeyan, she was undergoing treatment at Referal Hospital, Basia, but neither any Doctor, nor any para medical staff has made any endorsement on the same, about the condition of the deceased to give such statement. Even the Police Officer recording the fardbeyan has not been examined in the case, and as such, it is not safe to treat the fardbeyan as the dying declaration of the deceased. The fact however, remains that the case is fully supported by the oral dying declaration of the deceased, made before the witnesses as aforesaid. P.W.-5 Abhimanyu Kharia, who is the brother of the deceased, has also proved the fact that there was an affair between the deceased and the appellant and they used to quarrel, for the fact that the accused was denying to marry the deceased. This evidence appears to be very cogent and trustworthy, if we look into the medical evidence of P.W.-10 Dr. Aman Kumar, and the post-mortem report of the deceased, proved by him as Exhibit-2, which clearly show that apart from the burn injuries, the uterus of the deceased was enlarged and it contained the product of conception, i.e., the placenta and there was evidence of incomplete post burn abortion. This clearly shows that due to the repeated sexual assaults for the last three years, the deceased had become pregnant, and she must be pressurizing the accused to marry her. Thus, the motive of the crime was to get rid of the deceased. The fact remains that even in the FIR, as well as in the post-mortem report, the age of the deceased has been shown as 15 years, which clearly shows that even if the affair between the deceased and the accused, was with consent of the victim, that consent had no relevance at all, and the sexual exploitation of the victim clearly made out the offence under Section 376 of the Indian Penal Code.
Cr. Appeal (D.B) No. 334 of 2011 -9-
18. We are of the considered view that on the basis of the evidence on record, the offences are clearly made out against the accused appellant under Sections 376 and 302 of the Indian Penal Code, and the deceased being a tribal girl, the offence is also made out under Section 3(1)(xii) of the S.C / S.T (Prevention of Atrocities) Act. We do not find any illegality and / or irregularity in the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, worth interference by this Court.
19. For the aforesaid reasons, we do not find any illegality in the impugned Judgment of conviction dated 18.03.2011 and Order of sentence dated 25.03.2011, passed by the learned Sessions Judge-cum- Special Judge, Gumla, in G.R. No. 507 of 2007, arising out of Basia P.S. Case No.58 of 2007, convicting and sentencing the appellant, Prem @ Premjeet @ Prem Sahu @ Premjeet Sahu, for the offences under Sections 376 & 302 of the Indian Penal Code, and Section 3(1)(xii) of the S.C & S.T (Prevention of Atrocities) Act, which, we hereby, affirm. The appellant is already in custody, undergoing the sentence.
20. There is no merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
(H.C. Mishra, J.) (B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi Dated, the 07th of July, 2018.
B.S./ Anit- NAFR