Jharkhand High Court
Binod Jaiswal vs The State Of Jharkhand on 15 September, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 211 of 2020
Binod Jaiswal .... Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through Video Conferencing
For the Appellant : Mr. A. K. Kashyap, Sr. Advocate
Mr. Anurag Kashyap, Advocate
For the State : Ms. Nehala Sharmin, A.P.P
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03/ 15.09.2021 Heard learned senior counsel for the appellant, Mr. A. K.
Kashyap, assisted by learned counsel, Mr. Anurag Kashyap, and Ms. Nehala
Sharmin, learned Additional Public Prosecutor for the State on the prayer for
suspension of sentence made by this appellant through I.A. No. 4397 of 2021.
Sole appellant stands convicted for the offences punishable under
Sections 376/511, 452, 506 and 302 of the Indian Penal Code by the impugned
judgment dated 16.01.2020 passed in S.T. No. 313/2018 by the Court of learned
District & Additional Sessions Judge-X-cum-FTC, East Singhbhum at
Jamshedpur and has been sentenced to undergo Imprisonment for life with a fine
of Rs. 02 Lakhs and default sentence under Section 302 of I.P.C; R.I. for 2 years
with a fine of Rs. 10,000/- and default sentence under Section 506 of I.P.C:
Rigorous Imprisonment for 7 years with a fine of Rs. 50,000/- and default
sentence under Section 452 of I.P.C and also sentenced to undergo Rigorous
Imprisonment for 5 years with fine of Rs. 01 Lakh and default sentence under
Section 376/511 of I.P.C by the impugned order of sentence dated 21.01.2020.
All the sentences have been directed to run concurrently.
Learned senior counsel for the appellant submits that apart from
the statement of the deceased, there is no other eye witness to the occurrence. As
per the post-mortem report, the victim had sustained 97% burn injuries and it
was unlikely that she was in a position to give her statement. It is submitted that
the Investigating Officer (P.W.7) claims to have recorded the Fardbeyan of the
victim and that the Doctor (P.W. 6) had certified that the victim was in a fit state
of mind to make that statement. However, the doctor (P.W. 6) has, in his
deposition, stated that the fitness certificate was given by him after the fardbeyan
was recorded. The doctor (P.W 6) has also stated that the victim's upper part of
right hand had only 9% burn and she was in a position to write and sign. The
prosecution evidence is contradictory and the finding of guilt recorded by leaned
trial court is perverse since it has not taken into account the statement of defence
witnesses that the accused was not present at the place of occurrence and was
somewhere else driving the auto rickshaw. Therefore appellant may be enlarged
on bail as he is in custody since 7th April, 2018.
Learned Additional Public Prosecutor has strongly opposed the
prayer. She submits that the victim survived the assault of rape, but out of
vengeance, the appellant poured kerosene upon her and put her on fire, as a
result of which, she sustained such injuries, which led to her death on the next
date. The victim was carried by her relatives and son namely, P.W 1, Nanad,
P.Ws. 2 and 4, brothers and P.W.3, son on a tempo before whom not only she
had clearly named the appellant of heinous offence, but the appellant was also
caught by the relatives and kept locked in a room while victim was taken to the
hospital. It is submitted that the victim was in a conscious state of mind when
admitted in T.M.H Hospital, Jamshedpur, where her statement was recorded by
the Investigating Officer P.W. 7 upon certification of the doctor (P.W. 6) that she
was in a fit state of mind to give statement. The doctor has identified his
signature as Ext. -2/1 on the Fardbeyan. The post-mortem report adduced by
another doctor (P.W. 8) shows that death was due to neurogenic shock, as a
result of complication of 90% burn due to fatal injuries. The doctor (P.W.6), who
had examined her on 6th April, 2018 upon her admission has also stated that the
victim not only was suffering from surface area burn equal to 97% but he also
found perianal tears/vaginal wall tears, which shows there was an attempt to
commit rape upon her and upon her resistance she was burnt by pouring
kerosene oil. In the wake of such prosecution evidence on record and the gravity
and brutality of the offence perpetrated, appellant does not deserve to be
enlarged on bail.
We have considered the submissions of learned counsel for the
parties and taken note of the materials relied upon by them from the Lower Court
Records as also the period of custody undergone by the appellant. Upon
consideration of the materials on record and the statement of the doctors (P.Ws.
6 and 8), Investigating Officer (P.W. 7) and also other relatives P.Ws. 1, 2 3 and
4, it appears that the victim was in a conscious state of mind despite having
sustained severe burn injuries and recorded her statement that the appellant first
tried to commit rape upon her and on her resistance, she was burnt by pouring
kerosene oil, as a result of which, she finally succumbed on the next date of
incidence.
Having regard to the materials produced by the prosecution during
trial noted above, and the gravity of the offence, we are not inclined to enlarge
the appellant on bail. Accordingly, his prayer for bail is rejected.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Jk/
