l^ /' ; .•"j'' ! a! "Tl 1 ^^ .//'s^1 ? if*> i^ ?.?• ^<-6- ? S- iiSi-'s # * 1 ia ^i ^P) 'teot •»;cj Q •;-< £^ t -V -f '^j tiea: ~l. !;3> 9 ^ i • 1 fi -i .3 ^ 3. •4' )M» —), tj)j s ,^ .-" '9 ^ .§ t '^ -tS 'W, •^ TOOl en0 ^ •Alt, :.*^ Ji ^ Sf -^) <7i> ^ \ >a <s 1 SH \^ j^ t £4 tt £ S.I£• i '«•' 1$ i i3 ?lSi •I Sl §!II M ~<1 CD' ;ff1X. ^ y-1^^ HIGH COURT OF CHHATnSGARH AT BILASPUR C*J)Lppeal M0.78S/1999 Loharin Bai -Versus- State of CUhattisgarh Dilip Raosaheb Deshmukh Hon'bl®l rIJiBsyce F^UtrudjUn ^0.5 Judge Post fbr: l^^TO^QQS, Sd/- _—--(j u.UgC 11.09.2005 HIGH COURT OF CHHATTISGARH AT BILASPUR a-ADpeal N0.78S/1999 Lobaria Bai -Versus- State of Chhattisgarh CORAM: HON'BLB SHM PAKHRXJDDIB. HOITBLE SHRI DILIP RAOSAHEB DBSHMUKH. JJ Miss Sofia Khan for the appellant. Shri Akhil Mishra, P.L. and Shri Ravindra Agrawal, P.L. for the State. JUDGMBBT (DeUveredon .09.2005) PCT DiBp Raosaheb Deslunukh, J. This appieal is directed against fhe judgment dated 18.02.1999 deUvered by Shri Ajit Singh, lrt Additioiial Sessions Judge, Raigarh in sessions trial No.45/98 whereby thc appeUant- Loharia Bai was convicted under Section 302 for comnutting murder of her husband Budhiyar Sal by fhxowia.g boUmg starch on bis body and sentenced to imprBoninent for Ufe. 2. It is not dispufed tfaat thc appellaut is fhe widow of the deceased-Budhyar Sai. Budhyar Sai had sustaincd bum injuries on the head, shoulder and chcst Budhyar Sai had died about 25 days after sustaming the bura injurics. No report was lodged regaTdiag thc occurrence by Budhiyar Sai. The dead body of Budhyar Sai was cremated by Dhan Sai P.W.7 aad Son Sai P.W.8. The police had dug out the dead body of Budhyar Sai and prepared Panchnama vide Ex.P.4 oa 17.09. 1997. 3. Briefly stated fhe prosecution stoiy is that on 13.07. 1997 the appeUant-Lohann Bai fhrew boiling starch on the body of her husband-Budhiyar Sai. Budhyar Sai susteined bzua injuries aad bUsters on his head, shoulder and chest. No report of fhe occurrence was lodged by Budhyar Sai. On 7.8.1997 Budhiyar Sai expired. His body was creinated by Dhan Sai P.W.7 aad Son Sai P.W.8. On 11.08.1997 some viBagers ofviBagc Khadamacha lodged a report to the S.D.O. P.I.R. was registered on 5.9.1997 at Police Station Bagbahara, Dist. Ra^aA. The dead body of Budhjyar Sai was exhumed and Paachnaina was prepared vide Ex.P.4. The body had fiiUy decomposed. The exhumed steeleton of Budliiyar Sai was examined by Dr. L. Banoda P.W.4 who did not find any marks of injuiy over ftie boues or on the skull. No definite opinion cotdd be given regarding the cause of death vide Ex.P.6. After coiupletion of iuvcstigation, fhe appeBant was prosecuted under Sectmn 302 I.P.C. akm^ with two co-accused Nandlal and Bikul Sai who were atleged to have secrefly creiaated the dead body of Budhyar Sai in order to cause disappearance of evidence of niurder. 4. Chai^e under seclion 302 read with Section 34 aad 201 read with Section 34 of the I.P.C. was fi-amcd against fhe appeUant aad the two co-accused. The appeUant aad the two co-accused abjured their giult. The prosecution examined as inaay as 10 witnesses. The tnal Court relying upon fhe evidence led by fhe prosccutmn couvfcted fhe appellant iinder Section 302 I.P.C. for committing nuuder of her husband-Budhiyar Sai by throiwir^ boiling starch on her body. It, however, acquitted the appeUant fioin the charge (^, -3- under section 201/34 of fhe I.P.C. aad also acquitted co-accused Naadlal and Bikul Sai since there was not even an iota of evidence ^[ainst thein as weU as ayainst the appeBant to show that they had secretly cremated the dead body of Budluyar Sai to cause disappearance ofthe evidcnce ofinurder. 5. Leamed couasel for thc appellant has contended fhat prosecution has failed to estabUsh the giult of the appeUant under Sectmn 302 I.P.C. There was absolutety no evidence on recoid to show that Budhtyar Sai had expired as a result of bura injuries sustaiacd by hiin. There was also no evidence to show that Budhiyar Sai had sufFered scvere bodity pam or was unable to foUow his ordiaaiy pursuits for 20 days after sustaming fhe bum iajuries. It was contended ia the altemative fhat at the inost the act of thc appellant feU within scction 324 of the I.P.C. On fhe othcr hand, learaed counsel for fhe State has ai^ucd in favour of the impu^ned judgment 6. We have heard the rival contentions and also perused fhe record. Three questions mainly arise for detenniaatiou in fhis case, which are as foUows: A) (i) Whefher the appcllant had thrown bofling starch on Budhyar Sai duc to wliich hc had sustained bum iajuries? (i^ Ifycs, whether deafh of Budhyar Sai was causcd as a resutt ofbum iujuries? (ii^ If not, whefher injiiiy sustaiaed by Budhiyar Sai was grieyous ia nature? B) What ofiFence, if any, was committed by the appeUant? 7. Scanning the prosecution evidencc wifhin the parameters of the above points for dctermmation we find that Amar Sal P.W. 1 has ^3^!;^?^^] Kf!-; S;iKt!ll .1^^:.:-^^ ~f- ^&^XiSS steted fhat after sustaining fhe bum iajuries due to tfarowing ofhot starch on his body, Budhfyar Sai had xnovcd in fhe entire tocaUly of fhe viUage and next day had toUl Tiim fhat his wife had thrown hot starch on him, due to which, he had sustamed bum. iajuiy ou the head, left shoulder and chest Thls testiiaony is corroborated by Gopala P.W.2 who had deposed fhat he hod seen the bum injuries ou the head and chest of Budhiyar Sai who raa towards and dipped inside fhe viSscge tank to cool down. Dhan sai P.W.7 has deposed that Budhiyar Sai was 01 and had fever. On being informed that the appellant had fhrown starch on Budhiyar Sai, he alongwith Son Sai P.W.8 had gone to see Budhiyar Sai who told him fhat hte wife had thrown hot starch on him. He had seen bum iajiiries on the face, neck and chest of Budliyar Sai Son Sai P.W.8, Duiyodhaa. P.W.9 and Kamal Sai P.W.IO ateo corroborate fhe above version. AU fhe above ineutioued witnesses have testified that Budhiyar Sai died after about fhree weeks fixiin the occiuTence. However, there is absolutety no evidcnce on record to show fhat Budhiyar Sai died as a result of bum injuries sustaiaed by him. No report of the occiurence was lodged by Budhyar SaL There is absolutety no evidence on record to show the cxtent ofbum iajunes sustained by Budhiyar SaL The evidence led by fhe prosecution does not show whefher the bum iajuries sustamed by Budhyar Sai were extensive or were super&cial. Kamal Sai P.W. 10 has deposed that Budhiyar Sai did not even go to the hospital, The appeBant has ia her examiaation under Section 313 Cr.P.C. stated that Budhiyar Sai was ill and djcd on account of iUness after one inonfh and not due to buras. -5- SBtsg- 8. Thus, it enaeiges fl'oin fhe evidence ted by the prosecution that Budhiyar Sai did uot todge any report of the occurrence. He did not iindei^o auy treatment and a\so did not go to fhe hospital The evidence led by the prosecution does not show the nature and extent of bum injuries. The testunony of Dhan Sai P.W.7 and Gopala P.W.2 do not show the extent ofbunajiyuries sustained by Budtuyar Sai ia fhe throat aad chest Amar Sai P.W.l does not spcak about aay biun injuiy sustained by Budtuyar Sai in. fhioat. On the other haad, Dhau Sai P.W.7 does not speak about any bura injuiy sustained by Budhjyar Sai on the left shoulder. The testimony of Duiyocthan P.W.9 does not show fhat Budhiyar Bai had sustaiaed any bum injuiy on his chest. KaDnial Sai P.W. 10 has testified fhat Budhiyar Sai had sustaiaed bum mjuiy in the leg whereas no ofher witness has deposed to fhat extent. Thus, the evidence relating to the bura iajury sustamcd by Budhiyar Sai is also contradictoiy. Dhaa Sai P.W.7 and Son Sai P.W.8 had gonc to the extent of saying fhat upon informatton ofdeafh of Budhiyar Sai beiag sent to fhe poUce statfon, the poUce had asked fhein to cremate the dead body whereupon they had cremated the dead body of BudhiyaT Sai. This reflects fhat the poUce had infonnation about fhe occurrence and fhe deafh of Budhyar Sai but no ofifence was registered. On the contraiy, fhe dead body of Budhyar Sai was cremated on beuig directed by fhe poMce. 9. Having gisen our thoughtfiil consideration to fhe evidence lcd by fhe prosecution, we are of considered opwxm that the piosecutkin has bcen abte to estabUsh outy that on 13.07.1997 fhe appeBant had thrown hot starch on Budhyar Sai due to which he •J:^ • ^-^^^1^^^^^^^^ w:ws\' had sustained soxne bum^mjuries. Thcre fe absolutefy no evidencc ou record to indksite that BudUytir Sai died as a result ofthc bum injuries. There te absolutely no inedical evidence in the present case to show fhat deafh of Budfcyar Sai was homicidal or fhat it was caused due to the bura iajuries sustained by Ihim. In the absence of any proof fhat dcafh of Budhiyar Sai was caused due to bum injuri.es, the prosecution. has failed to establah fhat the appeUant had committed culpabte hoinicide. In fhc absence of any evidence, it cannot be mferred that Budluyar Sai was labouring under a disorder, disease or bodUy infinnily and the bum.iajuries accelerated his death. Thus, tfae casc docs aot fafl eittier under Explanation No. 1 or Explaaation No.2 of Sectfou 299 of the I.P.C. The prosecution has thus faBed to estabUsh the chaige under Section 302 I.P.C. against fhe appcllaat. 10. The onty question that now rem.ains to be considered is what offence was comnaittcd by fhe appeUaat. It is estabUshed by the piosecution, as discussed above, that the appeUant had thrown hot starch on fhc body of Budhiyar Sai due to which he had sustained soine biu-n injuries. Section 320 offtie I.P.C. defines grievous hurt as foUows: "320. televons hurt:—The foUowiag kiads of hurt only are designated as ''grievous":— Pirst.—Einasculation. Secondly.— Permaaent privation of fhc sight of eifher eye. ThinSy.— Permancnt privation offhe hearing of either ear. Fourthty.— Priwatkin of aay ineinber orjoiat. PiftHy.— Destructton or permaaent impainng of fhe powers ofatty Baember ofjoiat. --?- Sixthly.—Pennanent disfiguration of flie head or face. Sevenlhly.—Fracture or dislocation ofa bone or Eighthly.—Aay hurt which endangers fife or which causes ftie sufferer to be during (he space of twenty days iu severe bodily pain, or iiiiable to foQow his ordiuary pursuits. In fhe absence of any evidence that fhe buni iajuries endangered fhe life of Budhiyar Sai or fliat he Iiad suffered severe bodiiy pain or was luiable to foUow his ordinaiy pursuits for a period of 20 days, it canaot be said fhat fhe iujuries sustauied by Budhiyar Sai were grievous ui nature. Since the appeltaiit had caused hurt voli-intarily by ineans of hot starch which is a heated substaace to Budhiyar Sai, fhe offence coninutted by fhe appellant thus squarely feU under Section 324 ofthe I.P.C. 11. In fhe result, tlie appeal is partly ailowed. The couviction of fhe appella.nt uader Sectioa 302 I.P.C. is set aside. The appeUant is convicted for ail offence under Section 324 of tlie I.P.C. ·an.cl sentenced to undergo rigorous iniprisonment for three years. The appellaiit is iii jail siiice 22.2.1997 i.e. eight years aad six monfb.s. On 14.6.2004 she was ordered to be released on baii. However, tlie appeBaiit did not fuiTiish bail bond. Siace the appeUant has pJready undergone tiie sentence she shaU be set at Uberty forfhwifli, if not requircd in aiiy ofher case. 12. Before pai-tuig, we appreciate the valuable legal assistance rendered by Miss Sofia Khaa, leamed coiuisel for fhe appeUaiit and Shri Akh.iS. Mishra & Shri Raviadra Agrawal, Panel LasTyers for the Sd/. Dilip RaosahebDeshmukh Judge ^akhruddin n-'ia