IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 938 of 2001 (Old No. 1439 / 1999) Smt. Bhagwati Devi D/o Late Sri Devi Dutt W/o Bhuwan Chandra Pandey R/o Village Dhura Sangauli, P.S. Kanara Chaukhutia, District Almora. ...…………. Appellant Versus 1. State of U.P. (Now State of Uttarakhand) through Patwari Kshetra Karana Chaukhutia, Almora. 2. Sessions Judge, Almora. ...…………. Respondents Mr. Rajendra Kotiyal, Advocate, present for the appellant. Mr. M.A. Khan, Brief Holder with Mr. B.S. Parihar, Brief Holder, present for respondent State. Mr. Prem Kaushal, Advocate, present for the complainant. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 10.06.1999, passed by Sessions Judge, Almora, in Sessions trial No. 11 of 1993, whereby said court has 2 convicted accused / appellant Bhagwati Devi under Section 307 of the Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and sentenced her to rigorous imprisonment for a period of seven years. 2) Heard learned counsel for the parties and perused the lower court record. 3) Prosecution story, in brief, is that accused / appellant Bhagwati Devi is wife of P.W. 1 Bhuwan Chandra (complainant). She got married to Bhuwan Chandra on 23.02.1981. The prosecution case is that since she used to leave her husband’s company frequently, P.W. 1 Bhuwan Chandra (complainant) got married to another woman P.W. 3 Meera Devi, on 06.12.1982. On this, Bhagwati Devi returned to the house of her husband in Village Dhura Sangauli, Post Office Kanara Chaukhutia, District Almora, and both of them started living together. Thereafter, accused / appellant Bhagwati Devi (the first wife of the complainant) delivered a female child on 05.01.1983. Subsequently, P.W. 3 Meera Devi (second wife of the complainant) delivered a male child in March 1986. Due to this reason, according to the prosecution, the first wife (accused / appellant Bhagwati Devi) developed envy against the second wife, and attempted to kill the male child by pouring boiling water on him within 3-4 days of his birth, and succeeded in said attempt. It is pleaded by the prosecution that since 3 there was no witness of that occurrence, no report could be lodged, and P.W. 3 Meera Devi thought that the child had died of some disease. P.W. 3 Meera Devi conceived again and delivered another male child on 10.04.1991. The jealous and envious first wife (accused / appellant Bhagwati Devi) on fifth day of birth of this child (on 15.04.1991, at about 08:30 A.M.) got water boiled and poured the same over the infant, who was wrapped in a pink colour Dhoti (cloth). Thereafter, she covered the child with a blanket. The infant started crying. Hearing cries of her baby, P.W. 3 Meera Devi, who was washing her clothes, rushed to the room where she had left the infant sleeping. She saw accused / appellant Bhagwati Devi pouring water, who ran away after leaving the kettle at the spot. Meanwhile, Heera Devi (mother of the complainant), one Kaushalya Devi (neighbour of the complainant) and another neighbours also rushed there. P.W. 1 Bhuwan Chandra (complainant) who had gone to ease out himself in the fields when came back and saw that his infant had suffered burn injuries on his back, went to Patwari Chaukhutia, and lodged the first information report (Ext. A –1) on the very day, at 10:30 A.M., in respect of offence punishable under Section 307 of I.P.C. against accused / appellant Bhagwati Devi. Said case was registered as FIR / Crime No. 09 of 1991. (In Uttarakhand hills, certain Revenue Officials have the police powers conferred vide U.P. Government Notification No. 494 / VIII –418 –16 dated 7th March 4 1916). Thereafter, the parents of the baby took the injured to District Hospital, Almora, where his injuries were examined on 15.04.1991, at 4:30 – 4:35 P.M., by P.W. 4 Dr. V.P. Singh, who recorded the burn injuries on the back, thighs, groin and shoulders, and prepared injury report (Ext. A –3). Patwari Chaukhutia, P.W. 5 Jagannath Joshi, after interrogating the witnesses and on completion of investigation, submitted charge sheet (Ext. A –7) against accused / appellant Bhagwati Devi, for her trial in respect of offence punishable under Section 307 of I.P.C. 4) The Magistrate, on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of sessions, for trial. Learned Sessions Judge, Almora, on 14.07.1993, after hearing the parties, framed charge of offence punishable under Section 307 of I.P.C., against the accused / appellant Bhagwati Devi, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Bhuwan Chandra (complainant and father of the injured infant); P.W. 2 Mohini Devi (neighbour of the complainant); P.W. 3 Meera Devi (mother of the injured infant); P.W. 4 Dr. V.P. Singh (who examined injuries on the person of injured infant) and P.W. 5 Jagannath Joshi (Patwari / Investigating Officer). The oral and documentary evidence was put to the accused under Section 313 of Cr.P.C., in reply to 5 which she admitted that she is first wife of the complainant, and Meera Devi is the second wife of the complainant. She also admitted that Meera Devi had a six day old infant, who was wrapped in a Dhoti and covered with a blanket. However, rest of the allegations are denied by her, as false. At the end of her replies under Section 313 of Cr.P.C., she submitted that long ago (in January 1983) when she delivered a female child, an attempt was made to kill her child by Bhuwan Chandra (complainant) and he was sent to jail, but no criminal case was registered against him. No evidence was adduced on behalf of the defence. The trial court, after hearing the parties, found accused / appellant Bhagwati Devi guilty of the charge of offence punishable under Section 307 of I.P.C. After hearing on sentence, she was sentenced to rigorous imprisonment for a period of seven years. Aggrieved by said judgment and order dated 10.06.1996, passed by Sessions Judge, Almora, in Sessions Trial No. 11 of 1993, this appeal was filed before the Allahabad High Court by the convict on 14.06.1999, where it was admitted on 17.06.1999. The appeal is received by this Court under Section 35 of the U.P. Re-organization Act (Central Act No. 29 of 2000), for its disposal. 5) Before further discussion, this Court thinks it just and proper to mention the injuries recorded by P.W. 4 Dr. V.P. Singh, in injury report (Ext. A –3), after 6 examining the six day old newly born baby of Bhuwan Chandra. The injuries are being reproduced below: i) Whole of the back is burned. Pink in colour. ii) Front of the both thighs superficial burn. iii) Boil one at the middle of both thigh and groin region. iv) Superficial burn on both of the shoulders back side. Pink in colour. The Medical Officer has further observed that burn injuries were on whole of the back of the baby. The duration was fresh. The patient was kept under observation, and hospitalized. The above injuries recorded in Ext. A –3 read with statement of P.W. 4 Dr. V.P. Singh corroborate the fact that the infant male child of P.W. 2 complainant Bhuwan Chandra and his second wife Meera Devi (P.W. 3) had suffered injuries on the day and the time suggested by the prosecution. P.W. 4 Dr. V.P. Singh has stated that the burn injuries could have been caused by pouring boiling water on the child. He has further stated that these injuries could have been caused at 08:30 A.M., on 15.04.1991. He has further stated that the child could have died of the injuries. 6) Now, this Court has to see as to who caused injuries on the person of the infant by pouring the boiling water. P.W. 3 Meera Devi, mother of the 7 infant, has stated on oath that accused Bhagwati Devi is the first wife of her husband. She has further stated that on the day of incident she was washing her clothes outside her house, and she had left her six day old infant inside the house. She has also stated that Bhagwati Devi (accused / appellant) was also inside the house. P.W. 3 Meera Devi has also stated that her husband (complainant) had gone to ease out himself towards the fields. According to this witness when she heard cries of her child she rushed inside and saw Bhagwati Devi pouring hot water on her son. When she (P.W. 3) reached inside, accused / appellant Bhagwati Devi ran away from the room, and left the kettle there. P.W. 3 Meera Devi further told that when she removed the blanket of the child she saw that there were some tea leaves over the cloth and steam was coming out from the cloth by which the child was wrapped. The rashes were also apparent. She further states that after sometime her husband came back to the house and she told him the entire story. 7) The statement of P.W. 3 Meera Devi gets corroboration from the statement of P.W. 2 Mohini Devi, a neighbour of the complainant. This witness has stated that she also heard cries of newly born baby of Meera (P.W. 3), who was six day old. She also went inside the house after Meera (P.W. 3), her mother-in- law Heera Devi and a neighbour Kaushalya Devi had already entered in the house. This witness states that 8 when she went inside, she saw that the child was lying on the floor and when the cloth by which he was covered was removed it looked as if there was hot tea water in the cloth, and the body of the child was showing injuries of the burn. 8) P.W. 1 Bhuwan Chandra (complainant) has stated on oath that on 15.04.1991, at 08:30 A.M., his first wife Bhagwati Devi poured boiling tea liquor over the six day old infant of second wife Meera Devi due to which the infant suffered the burn injuries on his back. This witness has further stated that he got lodged the first information report (Ext. A –1). 9) Having re-assessed the evidence on record, adduced by the prosecution, this Court concurs with the view taken by the trial court that the prosecution has successfully proved charge of offence punishable under Section 307 of I.P.C. against the accused / appellant Bhagwati Devi. It is not a question before this Court whether, the second marriage of the complainant was valid, or not. What is relevant in this case is that whether accused / appellant Bhagwati Devi poured boiling water to kill the child. Learned counsel for the appellant drew attention of this Court to the copy of the report dated 06.01.1983, made by one Prem Vallabh before the Sub Divisional Magistrate, Almora, for initiation of proceedings under Section 107 / 116 of 9 Cr.P.C. against complainant Bhuwan Chandra. In said report it is alleged that on 05.01.1983, when a female child was delivered by the first wife of Bhuwan Chandra (present complainant) he assaulted her (first wife / appellant) and concealed the female child in ‘GOTH’ (a cowshed). Learned counsel for the appellant also referred to report dated 08.01.1983 submitted by the Patwari, Kanara Chaukhutia to the Sub Divisional Magistrate in said case, in which it is mentioned that boiling water was poured on the female child of Bhagwati Devi by Bhuwan Chandra, and he also assaulted his wife (appellant). The Patwari further recommended that Bhuwan Chandra be arrested to maintain the peace by exercising powers under Section 107 / 116 of Cr.P.C. P.W. 1 Bhuwan Chandra has pleaded ignorance in his cross-examination relating to said incident. Said incident was of the year 1983 i.e. seven years before present incident of 1991. Assuming for a moment, that Bhuwan Chandra had poured boiling water over his daughter born out of the first wedlock seven years before the incident, merely for that reason the present act of appellant Bhagwati Devi does not become legal. 10) Mr. Rajendra Kotiyal, learned counsel for the appellant further submitted that P.W. 1 Bhuwan Chandra has admitted in his cross-examination that he had gone to ease out himself when the incident in question had taken place, as such, he is not an 10 eyewitness. In this connection, it is further pointed out that Heera Devi (mother of Bhuwan Chandra, complainant, who is said to have gone inside the house after Meera Devi, has not been got examined by the prosecution, as such, merely on the testimony of P.W. 3 Meera Devi, the prosecution story should not be believed. No doubt, P.W. 1 Bhuwan Chandra is not the eyewitness of pouring of water, and it is also true that Heera Devi (mother of the complainant) was not examined, but merely for that reason statement of P.W. 3 Meera Devi, mother of the child, who rushed, and first of all reached inside the room after hearing cries of her son, cannot be disbelieved, particularly when her statement gets corroborated from the medical evidence adduced by P.W. 4 Dr. V.P. Singh read with the injury report (Ext. A –3), quoted above. Apart from this, the statement of P.W. 3 Meera Devi gets corroboration from her neighbour P.W. 2 Mohini Devi, who has also gone inside the house after Meera Devi, Heera Devi and Kaushalya Devi. In the facts and circumstances of the present case, mere non-examination of Heera Devi and Kaushalya Devi is not fatal to the prosecution case, nor it creates any reasonable doubt in the prosecution story narrated by P.W. 3 Meera Devi. 11) Lastly, it is argued on behalf of the appellant that the injury report produced by the prosecution is duplicate copy of the injury report prepared by the Medical Officer, as such, the same should not be 11 believed. Had P.W. 4 Dr. V.P. Singh not examined by the prosecution, merely on the basis of the duplicate injury report it could have been said that the same cannot be read, but the same is duly proved by the Medical Officer. Not only this, there are other papers on record showing that the injured infant got admitted in Har Govind Pant Hospital, Almora, and remained there from 15.04.1991 till 08.05.1991, as is apparent from the discharge slip filed in the lower court record. The said discharge slip also shows that the infant patient was treated for burn (superficial) injures. As such, this Court is not inclined to disbelieve the testimony of P.W. 4 Dr. V.P. Singh on the point that he examined the injured infant on the day of incident. It is pertinent to mention here that P.W. 4 Dr. V.P. Singh in his examination has stated that duplicate injury report was prepared simultaneously on 15.04.1991 itself. P.W. 5 Jagannath Joshi, Patwari / Investigating Officer has stated that after receiving the first information report (Ext. A –1), he prepared check report (Ext. A – 4), and proceeded towards place of incident, and took the kettle and the wet cloth in his possession from the spot, and prepared recovery memo (Ext. A –2) on 15.04.1991. Said recovery memo also corroborates the prosecution story narrated by P.W. 3 Meera Devi. 12) For the reasons as discussed above, this Court finds no illegality in the conviction of the accused / appellant Bhagwati Devi, recorded by the trial court, in 12 respect of offence punishable under Section 307 of I.P.C. However, considering that Bhagwati Devi is a woman, and the child born to her was earlier also made to suffer burn injuries by pouring boiling water on her child, this Court thinks it just and proper to reduce the sentence to rigorous imprisonment for three years. Accordingly, the appeal is partly allowed. The conviction recorded by the trial court against the accused / appellant Bhagwati Devi under Section 307 of I.P.C. is affirmed. However, sentence awarded to her by the trial court is reduced to rigorous imprisonment for a period of three years. The period spent in jail by the accused / appellant during investigation / trial shall be adjusted against the period of sentence, as modified by this Court. The accused / appellant is on bail. Her bail is cancelled. The registry is directed to send back the lower court record so that accused / appellant Bhagwati Devi is made to undergo remaining part of her sentence, as modified by this Court. (Prafulla C. Pant, J.) [[ Dt. July 19, 2010. H. Negi