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HIGH COURT OF CHHATTISGARH, BILASPUR
Radhe Shyam Sharma, J.
AJAY - Appellant
Vs.
STATE OF C.G. - Respondent
Criminal Appeal No. 682 of 2004
Decided On : 3-1-2013
Indian Penal Code – Section 307 – Default of payment of fine – Case of the prosecution – Further undergo rigorous imprisonment – After completion of the investigation, charge sheet was filed against the appellant and acquitted co-accused persons in the Court of Additional Chief Judicial Magistrate, Dongargarh, who, in turn, committed the case to the Court of Session, Rajnandgaon, from where, it was received on transfer by 1st Additional Sessions Judge, Rajnandgaon, who, conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted the co-accused persons –Held, What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section – An attempt in order to be criminal need not be the penultimate act – It is sufficient in law, if there is present an intent coupled with some over act in execution thereof – It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof – It is not essential that bodily injury capable of causing death should have been inflicted – Section makes a distinction between the act of the accused and its result, if any – Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section – Therefore, an accused charged cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt – Appeal Dismissed.
1. This appeal is directed against judgment dated 9-8-2004 passed by 1st Additional Sessions Judge, Rajnandgaon in Sessions Trial No. 26/2002. By the impugned judgment, accused/appellant Ajay has been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 3,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 1 year and co-accused persons Vinay Kumar, Smt. Rama Bhattacharya, Vilas alias Debu and Kumari Gauri have been acquitted of the charges framed against them.
2. Case of the prosecution, in brief, is as under:-
Marriage of Smt. Shikha Bhattacharya (PW-4) was solemnized with the appellant on 26-6-2000. After the marriage, Smt. Shikha Bhattacharya (PW-4) was residing with her husband (the appellant), father-in-law and mother-in-law in her matrimonial house. Acquitted co-accused Vinay Kumar is father-in-law, Smt. Rama Bhattacharya is mother-in-law, Vilas alias Debu is Dewar (brother-in-law) and Kumari Gauri is Nanad (sister-in-law) of Smt. Shikha Bhattacharya (PW-4). Sufficient dowry was given in the marriage by S.N. Goswami (PW-2, father of Smt. Shikha Bhattacharya). The appellant and acquitted co-accused persons ill-treated Smt. Shikha Bhattacharya (PW-4) and caused severe mentally torture to her. Smt. Shikha Bhattacharya (PW-4) narrated the incident to her brother and father. On 19-6-2001, Smt. Shikha Bhattacharya (PW-4) prepared tea in the room. The appellant came there and poured kerosene on her and set her on fire. The appellant took Smt. Shikha Bhattacharya (PW-4) to Community Health Centre, Dongargarh. Dr. A.K. Tamrakar (PW-7) examined her and gave his report (Ex.P-12), in which, he found that Smt. Shikha Bhattacharya (PW-4) had sustained bum injuries about 60%. He referred her to Jawaharlal Nehru Hospital, Sector 9, Bhilai for further treatment. Dr. Mamta Sikoria (PW-11) admitted Smt. Shikha Bhattacharya (PW-4) in Jawaharlal Nehru Hospital, gave treatment to her and gave her report (Ex.P-16). S.N. Goswami (PW -2) made written complaint (Ex.P-7) to the Superintendent of Police, Rajnandgaon. S.R. Diwan (PW-14) investigated the matter and sent his report (Ex.P-21) to the S.P., Rajnandgaon and thereafter regular First Information Report (Ex.P-22) was recorded in Police Station Dongargarh.
In further investigation, Exs.P-2 to P-6, i.e., case memo were seized vide Ex.P-1. Pieces of burnt saree, blouse and stove were seized from the place of occurrence vide Ex.P-9. Bed-Head Ticket was also seized vide Ex.P-15. Godrej Almirah, dressing table, Gadda and Thali etc. were also seized vide Ex.P-19. Spot map (Ex.P-18) was also prepared.
After completion of the investigation, charge sheet was filed against the appellant and acquitted co-accused persons in the Court of Additional Chief Judicial Magistrate, Dongargarh, who, in turn, committed the case to the Court of Session, Rajnandgaon, from where, it was received on transfer by 1st Additional Sessions Judge, Rajnandgaon, who, conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted the co-accused persons.
Learned 1st Additional Sessions Judge framed charges of offence under Sections 498-A and 307 IPC against the appellant and under Section 498-A IPC against the acquitted co-accused persons. The appellant and the acquitted co-accused persons have been acquitted of charges under Section 498-A IPC. The appellant has been convicted under Section 307 IPC and sentenced as mentioned above.
3. Shri Sunil Sahu, learned counsel for the appellant argued that S.N. Goswami (PW-2) is father, Smt. Lekha Bhattacharya (PW-3) is sister, Tanup Kumar (PW-10) and Tamal Kumar (PW-1) are brothers of Smt. Shikha Bhattacharya (PW-4). They are interested witnesses. The independent witnesses did not support the case of the prosecution. The prosecution failed to prove that Smt. Shikha Bhattacharya (PW-4) was subjected to cruelty or harassment by the appellant. S
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