Suraj Sao @ Suraj Sah vs The State Of Jharkhand
2022 Latest Caselaw 2707 Jhar

                                              1

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                           Cr. Appeal (D.B.) No. 255 of 2013
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[Against the judgment of conviction and order of sentence dated 28.02.2013 (Sentence passed on 28.02.2013) passed by Sri A.K. Singh "Ashok" the then Additional Sessions Judge-I, Deoghar in connection with Sessions Case No. 88/2010, arising out of Madhupur P.S. Case No. 205/2009, Corresponding to G.R. No. 480/2009]

Suraj Sao @ Suraj Sah ... ... Appellant Versus -

The State of Jharkhand                            ...    ...       Respondent
                                      ---------
CORAM: - HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
             HON'BLE MR. JUSTICE AMBUJ NATH
                             ----
      For the Appellant    : M/s. Yogesh Modi, Amicus Curiae
      For the State       : M/s. B. N. Ojha, A.P.P
                              ----

C.A.V. On 08.06.2022                              Pronounced On 18.07.2022

Heard Sri Yogesh Modi, learned Amicus Curiae appearing for the

appellant and Mr. B.N. Ojha, learned A.P.P.

1. This appeal is directed against the judgment of conviction and order

of sentence dated 28.02.2013 passed by Sri A.K. Singh "Ashok", the then

Additional Sessions Judge-I, Deoghar in connection with Sessions Case

No. 88/2010, arising out of Madhupur P.S. Case No. 205/2009

corresponding to G.R. No. 480/2009 holding the appellant Suraj Sao @

Suraj Sah guilty of offence under Section 302 of the Indian Penal Code

and thereby sentencing him to undergo imprisonment for life alongwith

fine of Rs. 5,000/- and in default of payment of fine the appellant was

further directed to undergo S.I. for six months. Appellant was acquitted for

the offence under Section 304 B of the Indian Penal Code.

2. The prosecution case in brief is that on 26.10.2009 at about 03:30

P.M., the appellant and his wife Putul Devi (deceased) were in a room at

her maike. Her niece Rakhi Kumari was present in the courtyard just

outside their room. Rakhi Kumari saw smoke coming out from the room,

on which she went inside and saw Putul Devi ablaze. The appellant was

standing there with a kerosene container and a match box in his hand. She

raised alarm, following which neighbours reached there. Appellant was

apprehended and restrained by local persons. Putul Devi was taken to

hospital where her fardbeyan was recorded. She died during the course of

treatment.

3. Police after investigation found the occurrence to be true and

submitted charge-sheet against the appellant. After Cognizance, learned

S.D.J.M., Madhupur at Deoghar committed this case on 03.04.2010 as it

was exclusively triable by a Court of Sessions.

4. Charge was framed against the appellant on 28.02.2011 under

Section 304 B of the Indian Penal Code and also alternatively under

Section 302 of the Indian Penal Code. When the charge was read over and

explained to him in hindi he pleaded not guilty and claimed to be tried.

5. In order to prove its case the prosecution has adduced both oral and

documentary evidence.

Chote Lal (P.W.1) and Shambhu Prasad Sah (P.W.2) are the

neighbours who saw the deceased Putul Devi in burnt condition. Chote Lal

(P.W.1) has proved his signature on the seizure list which has been marked

as Exhibit-1, when he reached the place of occurrence, he saw that the

appellant was restrained by the local people

Saraswati Devi (P.W.3), Radhy Shyam Sao (P.W.4) and Shashi Sao

(P.W.5) are mother, father and brother of the deceased respectively. All

have stated that on the date and time of occurrence they were in the clinic

of a doctor. While there, they heard about the occurrence and rushed

home. They found the deceased in burnt condition. Saraswati Devi

(P.W.3) and Radhy Shyam Sao (P.W.4) have put their thumb impression

and signature respectively on the fardbeyan of their daughter as witnesses.

Signature of Radhy Shyam Sao (P.W.4) on fardbeyan has been marked as

Exhibit-2. Radhy Shyam Sao has also identified his signature on the

seizure list which has been marked as Exhibit 1/1. They have also stated

that the appellant used to taunt the deceased for her dark complexion and

wanted to leave her. Shashi Sao (P.W.5) has further stated that Rakhi

Kumari (P.W.7) told him that appellant was present in the room holding a

kerosene container and a match box while Putul Devi was ablaze. He has

further stated that local people had restrained the appellant at the place of

occurrence.

Dr. Md. Arif (P.W.6) (wrongly mentioned as Dr. Md. Anif in the

impugned judgment), Medical officer at PHC Madhupur had examined the

deceased on 26.10.2009 at about 03:30 P.M, when she was admitted to the

hospital for treatment of burn injuries. He has proved the injury report

which has been marked as Exhibit-4. Dr. Satish Thakur (P.W.8) had

performed the post-mortem on the dead body of deceased Putul Devi.

According to this witness, Putul Devi died of deep burn injuries and its

complications. He has proved the post-mortem report which has been

marked as Exhibit-5.

6. Rakhi Kumari (P.W.7) niece of the deceased Putul Devi, has stated

that she was present in the house at the time of occurrence. She saw

smoke coming out from the room where the appellant and deceased were

present. She went inside and saw Putul Devi ablaze. The appellant was

standing there holding a match box and a kerosene container. She raised

alarm, following which neighbours came and apprehended the appellant.

She is the sole witness who was present at the place of occurrence, at the

time of occurrence. While cross examining her, defence has tried to

discredit her testimony by suggesting that she was not present in the

courtyard. She was also suggested that she was not present at Madhupur

on the date and time of occurrence, rather she was in Giridih at her father's

house. Both the suggestions have been denied by her.

Suryajit Prasad Singh (P.W. 9) is the Investigating Officer of this case

he has recorded the fardbeyan of Putul Devi. He has proved the fardbeyan

which has been marked as Exhibit 2/1. He has also proved the place of

occurrence which is house of Radhy Shyam Sao (P.W.4) situated in

Napitpara Meena Bazar at Madhupur. According to him the main entrance

opens in a courtyard and there is a room adjacent to the courtyard in which

occurrence had taken place. He has stated that when he reached at the

place of occurrence he found that the appellant was apprehended and

restrained by local people. He has seized a kerosene container and a

match box from the place of occurrence. He prepared the seizure list and

also proved the same which has been marked as Exhibit 1/1. He has been

cross-examined at length. In his cross-examination he has stated that on

26.10.2009 at about 05:00 P.M, he recorded the fardbeyan of Putul Devi

while she was fully conscious. However, her fardbeyan was not recorded

in presence of the treating doctor.

7. Statement of the appellant was recorded under Section 313 of the

Cr.P.C. on 05.07.2012. Defence is general denial of occurrence and false

implications.

8. Appellant has examined himself as D.W.1. According to him, he was

not present at the place of occurrence on the date and time of occurrence

and the deceased had committed suicide. He has also tried to rebut the

imputed motive that he has murdered his wife because she was dark

complexioned and he wanted to get rid of her.

9. On the basis of evidence, both oral and documentary, the learned

Additional Sessions Judge held the appellant Suraj Sao @ Suraj Sah guilty

of offence under Section 302 of the Indian Penal Code and sentenced him

accordingly. Learned court acquitted the appellant from the charge under

Section 304 B of the Indian Penal Code.

10. Mr. Yogesh Modi, learned Amicus Curiae has assailed the impugned

judgment on the ground that the learned court below has wrongly come to

a finding that the deceased Putul Devi was immolated to death by this

appellant. According to him, defence has been able to show that Putul

Devi had committed suicide. It was submitted that dying declaration of

Putul Devi was not reliable at all as it was neither recorded in presence of

the treating doctor, nor is there certificate of the doctor to the effect that at

the time of recording of her fardbeyan she was both physically and

mentally fit. It was also submitted that neither the appellant nor Rakhi

Kumari (P.W.7) were present at the spot on the date and time of

occurrence. On this ground it was submitted that judgment of conviction

and order of sentence passed by the learned court below be set aside.

11. Learned A.P.P., appearing on behalf of the State has submitted that

the dying declaration of Putul Devi has been corroborated by both the

medical evidence and ocular account of Rakhi Kumari (P.W.7). As such

the learned court below has rightly held the appellant guilty for offence

under Section 302 of the Indian Penal Code and the sentence passed by the

learned court below does not require any interference.

12. Now it has to be ascertained whether the prosecution has been able to

prove its case against the appellant beyond all reasonable doubt. In order

to come to a finding that the prosecution has discharged its burden of

proof, it has to be ascertained:-

(i) Whether the appellant was present at the place of occurrence on the

date and time of occurrence ?

(ii) Whether witness Rakhi Kumari (P.W.7) was present at the place of

occurrence on the date and time of occurrence ?

(iii) Whether testimony of Rakhi Kumari (P.W.7) can be relied upon ?

(iv) Whether dying declaration of deceased Putul Devi can be relied upon

?

(v) Whether the deceased died a homicidal death ?

(vi) If so, whether the appellant has committed her murder?

13. Defence has tried to discredit the testimony of Rakhi Kumari (P.W.7)

recorded during the trial, on the ground that she was not present at the

place of occurrence on the date and time of occurrence.

14. On perusal of the oral testimony of prosecution witnesses, it is

evident that Rakhi Kumari (P.W.7) has stated that the occurrence took

place two years. She has further stated that on the occasion of Chath Puja

she had gone to the house of her maternal grandfather Radhy Shyam Sao

(P.W.4). She was present in the courtyard just outside the room where the

occurrence took place.

Shashi Sao (P.W.5) has stated that the occurrence took place two

years ago at about 03:30 P.M., he had gone to a doctor. While there, he

came to know that his sister was immolated by the appellant, he rushed

home and saw his sister lying in the room in burnt condition. The appellant

was apprehended by local people. His niece, Rakhi Kumari told him that

the appellant was fleeing after immolating the deceased. In his cross-

examination at paragraph 10 he has stated that the niece who told him

about the occurrence is 14-15 years old and her name is Rakhi Kumari.

He has further stated that the maternal grand daughter of his uncle Satya

Narayan Sao was sick and she was taken to the doctor by this witness and

other family members.

From the aforesaid oral testimonies of these two witnesses it

transpires that Shashi Sao (P.W.5) has corroborated the statement of Rakhi

Kumari (P.W.7) that she was present at the place of occurrence at the time

of occurrence. Their statement on this point is further fortified by

statement of Suryajit Prasad Singh (P.W.9), who in his cross-examination

at paragraph-25 has stated that he had recorded the statement of Rakhi

Kumari (P.W.7) on 26.10.2009 at about 07:00 P.M., i.e. on the same

evening when the occurrence had taken place.

Accordingly, it is evident that the prosecution has been able to

establish the presence of Rakhi Kumari (P.W.7) at the place of occurrence

on the date and time of occurrence.

15. Now the question is whether the uncorroborated statement of Rakhi

Kumari (P.W.7) that the appellant was present in the room at the time of

occurrence holding a kerosene container and a match box can be relied

upon. Rakhi Kumari (P.W.7) in her cross-examination has very fairly

admitted that she had not seen the appellant and deceased quarreling while

they were inside the room. She has also admitted that she had not seen the

appellant immolating the deceased. She is a girl of very tender age. She is

aged about 14-15 years. Had she been a tutored witness, she could very

well have stated that she had seen the deceased and the appellant

quarreling and the appellant had poured kerosene on the deceased and

immolated her. She has withstood the test of cross examination. Her

statement is also corroborated by other material particulars of this case.

Accordingly we come to a finding that the testimony of Rakhi Kumari

(P.W.7) recorded during the trial can be very safely relied upon and read in

evidence.

16. Defence had taken a plea of alibi that the appellant had gone to the

doctor along with his in-laws at the time of occurrence. In his statement

recorded during the trial as D.W.1, he has stated that he had gone to the

house of his in-laws on their invitation to attend Chath Puja. He wanted to

return home after the Chath Puja but stayed behind at the request of his in

laws. He has further stated that a girl child in the family was sick, he had

accompanied his in-laws to the doctor along with the sick child. While

there he came to know that his wife has committed suicide. He rushed to

the place of occurrence and found that his wife was unconscious. He and

his in-laws took her to the hospital from where he was arrested.

On the contrary, Chote Lal (P.W.1) has stated that on coming to know

about the occurrence he rushed to the place of occurrence, on seeing them

the appellant tried to flee on which he was apprehended.

Saraswati Devi (P.W.3) has stated that she had gone to doctor for

treatment of her grand daughter, while there, she came to know about the

occurrence, she rushed home and saw Putul Devi in burnt condition, the

appellant was apprehended and restrained there by local people. Radhy

Shyam Sao (P.W.4) has also stated that on the date and time of occurrence

he had taken the grand daughter of his brother to the doctor, while there,

he came to know about the occurrence, he rushed home and found his

daughter in burnt condition, local people had apprehended and restrained

his son-in-law.

17. Shashi Sao (P.W.5) has given a statement on the similar line that he

had also gone to the doctor with a sick child. On coming to know about the

occurrence, he rushed home, where Rakhi Kumari (P.W.7) told him that

the appellant had immolated his sister. Local people had apprehended and

restrained the appellant at the place of occurrence itself. Rakhi Kumari

(P.W.7) has stated that the appellant was present with the deceased inside

the room where she saw the deceased ablaze. The appellant was standing

there with a kerosene container and a match box in his hand. All the

aforesaid witnesses have been consistent on this point in their cross-

examination. They have corroborated each other that the appellant was

present at the place of occurrence on the date and time of occurrence, from

where he was apprehended and restrained. Though the appellant has stated

in his testimony before the court as defence witness that he had gone to the

doctor with his in laws from where he was arrested. However the

statement of Suryajit Prasad Singh (P.W.9) at paragraph 3 of his deposition

that the appellant was apprehended and restrained at the place of

occurrence by local people from where he was formally arrested, also

contradicts the statement of the appellant on this point. Accordingly, we

come to the finding that the appellant was present at the place of

occurrence at the date and time of occurrence from where he was arrested.

18. Defence has assailed the dying declaration of Putul Devi. The case

of the prosecution is that the deceased was taken to hospital for her

treatment. Suryajit Prasad Singh (P.W.9) had recorded her fardbeyan.

Saraswati Devi (P.W.3) and Radhy Shyam Sao (P.W.4) have stated that

Putul Devi died during the course of her treatment and her fardbeyan has

been treated as her dying declaration. On perusal of fardbeyan of Putul

Devi (deceased) which has been marked as Exhibit 2/1, it transpires that

the fardbeyan has been recorded in the handwriting of the I.O. Suryajit

Prasad Singh (P.W.9). This fardbeyan bears the signature of Radhy Shyam

Sao (P.W.4) (Exhibit-2). Thumb impression of Saraswati Devi (P.W.3) is

also on the fardbeyan, quite surprisingly, the thumb impression of Putul

Devi is missing. Prosecution case is that she had put her thumb impression

on her ferdbeyan.

Dr. Md. Arif (P.W.6) who had examined Putul Devi soon after she

was admitted to the hospital has stated that both her arms up to fingers

were burnt. This witness has not stated that at the time of her examination,

she was mentally alert and was able to speak. The fardbeyan of Putul Devi

has also not been recorded in presence of the treating doctor.

Hon'ble Supreme Court of India in Sampat Babso Kale and

Another v. State of Maharashtra 2019(4) SCC 739 held that "It

would also be pertinent to mention that the endorsement made by the

doctor that the victim was in a fit state of mind to make the statement

has been made not before the statement but after the statement was

recorded. Normally it should be the other way around."

In the present case, there is no endorsement of the treating doctor

that the victim was not in a fit state of mind to make her statement.

The occurrence is said to have taken place at 03:30 PM, the fardbeyan

was recorded by the Investigating Officer in the Madhupur hospital at

05:00 P.M. There is a gap of one and half hour between the occurrence

and recording of her fardbeyan. Dr. Md. Arif (P.W.6), Medical officer at

PHC Madhupur had examined the deceased Putul Devi, on 26.10.2009 at

about 03:30 P.M. She had sustained 95% burn injury. Possibility that she

was given medication to reduce her pain cannot be ruled out. Possibility of

her being in a state of delusion also cannot be ruled out. There is serious

doubt whether the deceased was in a fit state of mind to make a statement.

Absence of her thumb impression on the fardbeyan further brings it under

the cloud of suspicion.

19. It has been submitted on behalf of the defence that deceased had

committed suicide. The case of the prosecution is that the deceased was

immolated by the appellant. Dr. Md. Arif (P.W.6) has stated that he had

examined Putul Devi soon after she was admitted to the hospital and both

her arms up to fingers were burnt. He has proved the injury report which is

Exhibit 4. From the perusal of injury report it transpires her entire body

involving face, neck, front of chest, front of abdomen, back hips, inner

thighs with external genital and both arms up to fingers were burnt. Smell

of kerosene oil was also noticed.

Dr. Satish Thakur (P.W.8) had performed the postmortem on the dead

body of the deceased Putul Devi. He had found the following injuries:-

External Findings

There was a cannula long line in the right femoral vein. There were

bandage all over the body. When the bandage was opened, there was a

deep burn up to the dermis layer of skin from the face to below the

umbilicus. Pubic regions were not burnt. Perineum region was also not

burnt. Pubic hair was present. Bilateral upper limbs and lower limbs were

burnt and dermis visible. Feet of both legs were spared. So burnt area was

about 95%. The hair of the head was intact.

Internal Findings

Trachea, Oesophagus and great vessels of neck are intact. Bilateral

lungs are intact. Right chamber of heart contained blood and great vessels

of heart are intact. Spleen, liver, both kidneys, intact and normal. Both her

ureter are intact and normal. Urinary bladder was normal containing no

urine. There is a Foley's catheter in urinary bladder. Uterus was normal in

size. Stomach internally ulcerated. Dimension of ulcer is 3''X 2'' up to

mucosa deep Small and large intestine are intact.

Time of death within 24 hrs & holding P.M. examination.

Cause of death- Deep burn and its complications. External injury

were caused by burn.

According to this witness cause of death of the deceased was due to

deep burn and its complications. External injury were caused by burn.

Chote lal (P.W.1), Shambhu Prasad Sah (P.W.2), Saraswati Devi

(P.W.3), Radhy Shyam Sao (P.W.4) and Shashi Sao (P.W.5) all have stated

that they had seen the deceased Putul Devi in burnt condition. Rakhi

Kumari (P.W.7) saw the deceased ablaze. Deceased was hospitalized for

treatment of her burn injuries and she died during the course of her

treatment. From the aforesaid oral and documentary evidence we come to

a finding that the prosecution has been able to prove that the deceased had

died due to burn injuries.

20. Defence has taken a plea that deceased had committed suicide. Dr.

Md. Arif (P.W.6) had noticed smell of kerosene oil. Rakhi Kumari (P.W.7)

has categorically stated that when she entered into the room, she found

Putul Devi ablaze and the appellant was standing there with kerosene

container and a match box. On seeing her he tried to flee, neighbours came

and apprehended him. The Investigating Officer during the investigation

seized the kerosene container and a match box at the place of occurrence.

21. We have already come to a finding that the appellant has failed to

establish his plea of alibi. The presence of appellant at the place of

occurrence stands proved. Accordingly, we come to a finding that the

prosecution has been able to show that:-

(i) The appellant was present in the room while his wife was ablaze

holding match box and kerosene container.

(ii) Witnesses have stated that the appellant used to taunt the deceased for

her dark complexion. He also used to threaten her that he will leave her.

From the aforesaid facts and circumstances, it is very much clear that

the circumstances point towards the guilt of the appellant that it was the

appellant who had immolated the deceased.

22. The chain of events has been successfully established so as to attract

the application of Section 106 of the Evidence act.

23. Hon'ble Supreme court in Sabitri Samantaray v State of Odisha in

Criminal Appeal No. 988 of 2017 held that

18. "Section 106 of the Evidence Act postulates that the burden of

proving things which are within the special knowledge of an individual is

on that individual. Although the section in no way exonerates the

prosecution from discharging its burden of proof beyond reasonable

doubt, it merely prescribes that when an individual has done an act, with

an intention other than that which the circumstances indicate, the onus

of proving that specific intention falls onto the individual and not on the

prosecution. If the accused had a different intention then the facts are

specially within his knowledge which he must prove"

19. Thus, although section 106 is in no way aimed at relieving the

prosecution from its burden to establish the guilt of an accused, it

applies to cases where chain of events has been successfully established

by the prosecution, from which reasonable inference is made out against

the accused. Moreover, in a case based on circumstantial evidence,

whenever an incriminating question is posed to the accused and he or

she either evades response, or offers a response which is not true, then

such a response in itself becomes an additional link in the chain of

events."

24. There is no eyewitness to the actual of occurrence. We have already

come to a finding that the appellant was alone with the deceased when she

was found ablaze by Rakhi Kumari (P.W.7) in a closed room. He was

holding a kerosene container and a match box in his hand. Witness have

also stated that the appellant tried to flee from the place of occurrence.

Witnesses have also stated that the appellant was not happy as deceased

was having a dark complexion and he wanted to leave her.

25. The appellant as D.W.1 had tried to rebut the aforesaid facts by

stating that the deceased was not dark complexioned but she had a fair

complexion. He has also stated that at the time of occurrence he was not

present at the place of occurrence. As already discussed, this averment has

been falsified by the statement of prosecution witnesses. Had the deceased

committed suicide in presence of the appellant, his natural conduct should

have been to raise alarm and to try to douse the fire. Instead he was found

standing there with a kerosene container and a match box. He has also

attempted to flee from the place of occurrence which in itself becomes an

additional link in the chain of events.

26. Therefore, having regard to the above facts and circumstances and

reasons stated therewith, it can be deduced that the entire sequence of

events strongly point towards the guilt of the appellant, who has failed to

offer any credible defence in this regard. Thus, we do not find any error in

the impugned judgment passed by the learned court below.

27. Learned court below has rightly held the appellant guilty for the

offence under section 302 of the Indian Penal Code. The judgment of

conviction and order of sentence does not require any interference.

28. This appeal is accordingly dismissed.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

Jharkhand High Court Ranchi

Dated:18.07.2022

Saurabh/-NAFR