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2013 Supreme(UK) 232
UTTARAKHAND HIGH COURT
Hon'ble Mr. Justice U.C. Dhyani
BABLU RASTOGI – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
Criminal Appeal No. 283 of 2008
Decided on : 13.06.2013
For the Appellant :Mr. Raveendra Singh Bisht, Advocate (Amicus Curiae)
For the State : Mr. Sohail Ahmad Siddiqui, AGA and Ms. Sangeeta Miyan, Brief Holder
Headnote:Indian Penal Code, 1860, Sec. 304 — Re-appreciation of evidences — According to prosecution, victim was married to the appellant 11 years ago — Three children were begotten by them out of said wedlock — Accused used to harass and maltreat the victim — Victim was also given mental harassment as a result of which the victim committed suicide by pouring kerosene oil and setting herself on fire — PW1 minor daughter of the victim and appellant stated that the accused (her father) poured kerosene oil on victim (her mother) — After pouring kerosene oil, the victim was set on fire — When the occurrence took place at night, PW1 alongwith her brother was present there — On her cross-examination no suggestions that PW1 was telling a lie and nothing on record suggested that PW1 was a mischievous child witness — PW3 said that the couple used to quarrel with each other — According to PW5, brother of the deceased the relations between the couple were strained, accused used to assault the victim — Testimony of prosecution witnesses believable — Prosecution story was proved beyond reasonable doubt — No interference — Finding that accused-appellant was the sole bread earner in his family and had tried to save his wife and sustained injuries in the process of saving the victim — Therefore, sentence awarded to the convict-appellant reduced. (Paras 6, 7, 9, 11 to 14)
Hkkjrh; n.M lafgrk] 1860] /kkjk 304 & lk{;ksa dh iqu% foospuk & vfHk;kstu ds vuqlkj ihfM+rk dk fookg vihykFkhZ ls 11 o”kZ iwoZ gqvk Fkk & vkSj muds rhu cPps Fks & vfHk;qDr ihfM+rk ds lkFk nqO;Zogkj djrk Fkk o ekufld ihM+k Hkh nsrk Fkk ftl dkj.k rax gksdj mlus vius Åij feV~Vh dk rsy Mkydj vkx yxkbZ vkSj vkRegR;k dj yh & PW1, ihfM+rk o nks”kh dh vo;Ld iq=h Fkh ftlus dgk fd vfHk;qDr ¼firk½ us ihfM+rk ¼mldh ek¡½ ij feV~Vh dk rsy Mkyk Fkk & jkf= esa tc ;g ?kVuk ?kVh rc og vius HkkbZ ds lkFk ogha Fkh & cPph dh izfrijh{kk ls Hkh ;g fl) ugha fd cPph ,d ‘kjkjrh cky lk{; Fkh & PW3 us dFku fn;k fd ifr&iRuh ds e/; >xM+k Fkk & PW5 e`rdk ds HkkbZ ds vuqlkj ifr&iRuh ds laca/k rax Fks] vfHk;qDr ihfM+rk dks ekjrk Fkk & vfHk;kstu lkf{k;ksa dh lk{;rk fo’oluh; & vfHk;kstu okn fuLlansg fl) & gLr{ksi ugha & ik;k x;k fd vfHk;qDr@vihykFkhZ ifjokj dk ,d ek= vé vtZudrkZ Fkk vkSj mlus viuh iRuh dks cpkus dk Hkh iz;Ru fd;k Fkk ftl dkj.k mls pksVsa vkb± Fkh & blfy, nks”kh@vihykFkhZ dk n.M de fd;k x;kA ¼izLrj 6] 7] 9] 11 ls 14½
Hon’ble U.C. Dhyani, J. (oral)
A complaint (Ext. Ka-2) was written by the informant PW5 Dinesh Kandari on 12.04.2007, at 06:20 P.M., addressed to the Station Officer, police station Muni-Ki-Reti, District Tehri Garhwal, which was registered as case crime no. 307 of 2007 against accused-appelant Bablu Rastogi in respect of offence punishable under Section 306 of IPC. After the investigation, chargesheet (Ext. Ka-5) was submitted against the accused in respect of selfsame offence. The case was committed to the Court of Sessions for trial.
2. When the trial began and prosecution opened it’s case, charge in respect of offence punishable under Section 306 of IPC was framed and, in the alternative, charge for the offence punishable under Section 302 of IPC was also framed against the accused to which he pleaded not guilty and claimed trial.
3. PW1 Km. Rashi Rastogi (victim), minor daughter of appellant; PW2 Pan Singh Kandari, father of victim; PW3 Sudhanshu Mishra, brother-in-law of victim; PW4 SO Surendra Singh Bhandari, Investigation Officer; PW5 Dinesh Kandari, informant and brother of victim and PW6 Dr. Naval Kishor Mishra, Medical Officer were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he said that he was falsely implicated in the case. Accused also said that the victim died of bursting of stove. No evidence in defence was adduced.
4. After considering the evidence on record, learned trial court found the accused guilty of the offence punishable under Section 304 of IPC and sentenced him to undergo rigorous imprisonment for a period of ten years alongwith fine of Rs. 10,000/-, in default of payment of which, convict was required to undergo six months’ further rigorous imprisonment, vide judgment and order dated 03.09.2008. Aggrieved against said judgment and order, present criminal appeal was preferred by the convict.
5. Learned counsel for the accused-appellant submitted that the appellant has served out a substantial part of sentence awarded to him and therefore he has nothing to say on the merits of the case. Learned counsel contended that the appellant is in jail for more than six years and he has come to the Court with the sole prayer that the sentence awarded to the convict-appellant be reduced.
6. The prosecution story is that the victim was married to the appellant 11 years ago. One daughter and two sons were begotten by them out of said wedlock. Accused used to harass and maltreat the victim. The accused assaulted the victim. Victim was also given mental harassment as a result of which the victim committed suicide on 10.04.2007 by pouring kerosene oil and setting herself on fire.
7. PW1 Km. Rashi Rastogi, was the minor daughter of the victim and appellant. After conducting her voir dire, the trial court came to the conclusion that PW1 was capable of understanding the things. In her examination-in-chief, PW1 said that the accused (her father) poured kerosene oil on victim (her mother). After pouring kerosene oil, the victim was set on fire by igniting match. The occurrence took place in the night. When the occurrence took place, PW1 alongwith her brother Akhil, apart from her parents, was present. Initially her parents were having normal relations with each other, but at subsequent point of time, they used to quarrel with each other. PW1 was cross-examined at length. Her cross-examination was recorded by the trial court in question-answer form. Nothing has come in her cross-examination so as to suggest that PW1 was telling a lie. Hon’ble Apex Court has cautioned time and again that the testimony of a child witness should be examined with caution. Even judging by this yardstick, there is nothing on record to suggest that PW1 was a mischievous child witness.
8. PW2 Pan Singh Kandari, the father of the victim, came to know of the death of his daughter through brother of appellant and subsequently by his grand da
