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2003 DIGILAW 1082 (JHR)

Suresh Singh v. State of Bihar (now Jharkhand)

2003-09-04

VISHNUDEO NARAYAN

body2003
Judgment By Court.-This appeal has been directed by the appellants named above against the impugned judgment and order dated 10.12.1996 passed in Sessions Trial No. 443 of 1994 by Shri G.K. Verma, 2nd Additional Sessions Judge, Jamshedpur whereby and whereunder both the appellants were found guilty for the offence punishable under Sections 306/34 and 498A/34 of the Indian Penal Code and they were convicted and sentenced to undergo rigorous imprisonment for seven years and two years respectively and appellant Mahesh Singh was also found guilty for the offence punishable under Section 354 of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for two years. However, the aforesaid sentences were ordered to run concurrently. 2. The prosecution case has arisen on the basis of the Fardbeyan (Ext. 3) of Indu Devi, the lawfully wedded wife of appellant Suresh Singh recorded by A.S.I., L.N. Singh of Bistupur P.S. on 25.2.1994 at 10.00 hours in Room No. 2 of the Burn Centre Unit of Tata Main Hospital, Jamshedpur regarding the occurrence which is said to have taken place on 23.2.1994 at 15.00 hours inside the house of the appellants situate at village-Kashidih, P.S.-Sakchi, Jamshedpur, District-East Singhbhum and the case was instituted against both the appellants by drawing of the formal F.I.R. (Ext. 2) on that very day at 13.30 hours under Sections 498A and 354 of the Indian Penal Code. The informant died on 2.3.1995 as a result of burn injuries sustained by her and offence under Section 306 of the Indian Penal Code was added in the formal F.I.R. 3. The prosecution case, in brief, is that the informant poured kerosene oil on her person and has set herself on fire by match stick at 15.00 hours on 23.2.1994 in anger. It is alleged that appellant Mahesh Singh and her husband Suresh Singh are twin brothers and appellant Mahesh Singh is elder to him by one minute and he had evil eyes on her and always used to tease her which she never liked and used to protest and at this he used to make false complaint to her appellant-husband Suresh Singh, who used to beat her invariably. It is also alleged that appellant Suresh Singh used to treat her with cruelty and also used to assault her at the instance of appellant Mahesh Singh. It is also alleged that appellant Suresh Singh used to treat her with cruelty and also used to assault her at the instance of appellant Mahesh Singh. The prosecution case further is that appellant Mahesh Singh had got her beaten by appellant Suresh Singh on the day of the occurrence and she has set herself on fire and at this appellant Mahesh Singh became very happy. It is also alleged that appellant Mahesh Singh used to attempt to outrage her modesty but she used to skip to save herself. 4. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent to have committed no offence and that they have been falsely implicated in this case. 5. The prosecution has in all examined nine witnesses to substantiate its case. It is relevant to mention here at the very outset that Indu Devi, the informant has died during the course of her treatment in the Burn Centre Unit of the Tata Main Hospital, Jamshedpur and her Fardbeyan recorded by C.W. 1 L.N. Singh is Ext. 3 in this case. P.W. 6 Raj Kumar Singh and his wife P.W. 1 Girija Devi, P.W. 4 Rajendra Singh and his wife P.W. 3 Reeta Devi residing in the P.O. house in which P.W. 2 Prem Sheela Devi and P.W. 5 Hari Nandan Prasad are the tenants figure as ocular witnesses of the occurrence regarding Indu Devi setting herself on fire by pouring kerosene oil on her person in the house of the appellants but they all have turned hostile and do not support the prosecution case in respect of cause of the suicide of Indu Devi as stated in her Fardbeyan (Ext. 3). P.W. 9 Ratan Lal, is a formal witness who has proved the Fardbeyan (Ext. 3) of Indu Devi. P.W. 8 Birendra Rai is the I.O. of this case. P.W. 7, Dr. Y. Nath has conducted the post mortem examination on the dead body of the deceased on 3.2.1994 and post mortem report per his pen is Ext. 1 in this case. No oral and documentary evidence has been brought on the record on behalf of the appellants. 6. Assailing the impugned judgment it has been submitted by Mr. P.W. 7, Dr. Y. Nath has conducted the post mortem examination on the dead body of the deceased on 3.2.1994 and post mortem report per his pen is Ext. 1 in this case. No oral and documentary evidence has been brought on the record on behalf of the appellants. 6. Assailing the impugned judgment it has been submitted by Mr. Jayanto Mukherjee, Advocate for the appellants, that there is no iota of legal evidence on the record to substantiate the prosecution case regarding the offence under Sections 498A and 354 of the Indian Penal Code against the appellants and none of the prosecution witnesses has whispered that appellant Suresh Singh has averred treated Indu Devi with cruelty in her matrimonial home and appellant Mahesh Singh had ever any evil eyes on her and had also attempted to outrage her modesty. It has also been submitted that P.W. 4 and P.W. 6 are full brothers of the appellants and P.W. 1 and P.W. 3 are their respective wives and P.W. 2 and P.W. 5 are the tenants in 1he house of the appellants and they also reside in that very house and they all have stated that there were cordial relationship between appellant Suresh Singh and his lawfully wedded wife Indu Devi and there has never been any quarrel between them and appellant Suresh Singh has never assaulted and beat her and appellant Mahesh Singh had never attempted to tease Indu Devi and in view of the evidence aforesaid the learned court below has committed a manifest error in coming to the finding of the guilt of the appellants guilty under Sections 498A and 354 of the Indian Penal Code. It has also been submitted that the learned court below has found the appellants guilty under Sections 306, 498A and 354 of the Indian Penal Code on the sale basis of the averments of Indu Devi made in the Fardbeyan (Ext. 3) treating it as dying declaration without any corroborative evidence of any independent, competent and natural witness of the alleged occurrence and in view of the facts, circumstances and evidences on the record, Ext. 3 can never be treated as dying declaration of deceased, Indu Devi for the reason that it suffers with inherent infirmities. 3) treating it as dying declaration without any corroborative evidence of any independent, competent and natural witness of the alleged occurrence and in view of the facts, circumstances and evidences on the record, Ext. 3 can never be treated as dying declaration of deceased, Indu Devi for the reason that it suffers with inherent infirmities. Elucidating further it has been submitted that as per the medical witness, Indu Devi has severe burn injuries on her entire body and the aforesaid burn injuries are of the fourth degree and she was unconscious and in that state she was admitted in the hospital and that was the reason that her Fardbeyan was not earlier recorded in this case and C.W. 1 has stated in his evidence that he had recorded the Fardbeyan of Indu Devi when she had regained consciousness on information to that effect received by him and the evidence of Court Witness No. 1 in respect thereof does not stand substantiated by any oral or documentary evidence on the record. It has also been submitted that the Fardbeyan (Ext. 3) does not contain any certificate of her treating physician regarding her fit state of mental capacity capable of making her statement as per Ext. 3. It has also been submitted that a person having sustained burn injuries as stated by P.W. 7 can never be in a conscious state to give her statement to the police and as such the Fardbeyan of Indu Devi, the deceased of this case, cannot be treated as her dying declaration and is not free from blemish. It has also been contended that there is no legal evidence at all on the record to show that both the appellants have aided or instigated her to commit suicide. It has been contended that both the appellants had remained in custody for a period of more than three years and it means that they have served out the sentence awarded to them for the offence under Sections 498A and 354 of the Indian Penal Code. Lastly, it has also been contended in the alternative that the sentence to undergo rigorous imprisonment for seven years for the offence under Section 306 of the Indian Penal Code is very severe in this case and the said sentence can be modified to the period already undergone by the appellants. 7. Lastly, it has also been contended in the alternative that the sentence to undergo rigorous imprisonment for seven years for the offence under Section 306 of the Indian Penal Code is very severe in this case and the said sentence can be modified to the period already undergone by the appellants. 7. It has been submitted by the learned A.P.P. that the Fardbeyan (Ext. 3) of Indu Devi, the deceased of this case, is the sole basis for conviction of the appellants and said Fardbeyan was recorded by C.W. 1 Laxmi Narain Singh in presence of Dr. S.S. Mitra, who has attested the L.T.I. of Indu Devi on the said Fardbeyan, but there is no certificate of any physician on the said Fardbeyan regarding the fit state of mental capacity of the informant while she was making her statement recorded by C.W. 1 and there was no apprehension in the mind of C.W. 1, L.N. Singh while recording her Fardbeyan that Indu Devi will die in course of her treatment and that was the reason for not taking any attempt by C.W. 1 for obtaining a required certificate of the doctor on the said Fardbeyan. It has also been submitted that the learned court below has rightly considered the Fardbeyan as dying declaration, which is free from blemish, and the L.T.1. of Indu. Devi has been attested by Dr. S.S. Mitra. Lastly, it has been contended that the informant has committed suicide due to the cruelty perpetrated on her by her husband-appellant Suresh Singh at the instance of his elder brother Mahesh Singh who had evil eyes on her and also attempted to outrage her modesty and the acts on the part of the appellants amounts to abetting the informant to commit suicide and viewed thus, the impugned judgment cannot be said unsustainable. 8. There is no denying the fact that Indu Devi, the deceased of this case is the lawfully wedded wife of appellant Suresh Singh and appellant Mahesh Singh is the elder brother of her husband and the deceased was living with her appellant-husband in his house at Kashidih within Sakchi P.S. in the town of Jamshedpur. Appellant Mahesh Singh was also residing in that very house. Appellant Mahesh Singh was also residing in that very house. P.W. 6 Raj Kumar Singh along with his wife P.W. 1 Girija Devi and P.W. 4 Rajendra Singh along with his wife P.W. 3 Reeta Devi were also residing in the said house. P.W. 2 Premsheela Devi and P.W. 5 Hari Nandan Prasad are the tenants of the said house. It will admit of no doubt that Indu Devi had committed suicide pouring kerosene oil on her person and setting fire to herself in the courtyard of the said house at 15.00 hours on 23.2.1994 and she was taken to the hospital by P.W. 2, P.W. 1 and P.W. 3 by tempo where she was admitted in the Burn Centre Unit. All the witnesses i.e. P.Ws 1, 2, 3, 4, 5 and 6 have stated on oath that Indu Devi committed suicide by pouring kerosene oil and setting fire to herself. P.W. 7 has conducted the post mortem examination on the dead body of the deceased and he has found the following injuries on her person : "Dermo-epidermal burn of chin mandibular skin, neck, upper holy of chest, portion of abdomen, pubic area, right arm, left forearm and portion of medial side of upper arm, both lower extremities excepting foot which was oedimatius along with both palms pus and granulation tissue over burnt area were found." The medical witness has also found the following internal injuries on her 'person on dissection : "There was contusion of left tissue of forehead; 2 x 2 cm, occipital scalp, 1 x 1 cm, right upper arm middle 4 x 4 cm, supra-calvicular area of neck 3 x 3 cm. Chest cavity contained 200 ml. of watery fluid. Lungs were oedimatous and on dissection frothy fluid came up." The medical witness has further deposed that all the injuries aforesaid were ante mortem in nature and the internal injuries found on the person of the dead body of the deceased were caused by hard and blunt substance and the death of the deceased was due to septicemia, toxemia and hydrothorax. It, therefore, becomes an establish fact that the informant has died of burnt injury which she has received by setting herself on fire on pouring kerosene oil on her person and she has committed suicide. It, therefore, becomes an establish fact that the informant has died of burnt injury which she has received by setting herself on fire on pouring kerosene oil on her person and she has committed suicide. P.W. 1 in para-6 of her cross-examination has deposed that there was cordial conjugal relationship between the deceased and her appellant-husband Suresh Singh and there was never any quarrel or exchange of abuses between them and her appellant-husband has never assaulted her or treated her with cruelty. She has further deposed that she has never seen appellant Mahesh Singh teasing the deceased or outraging her modesty. Similar is the evidence of P.W. 2, P.W. 3, P.W. 4, P.W. 6 and P.W. 5. Therefore, the averments of the informant made in the Fardbeyan (Ext. 3) that she has committed suicide in anger due to the fact that Mahesh Singh used to tease her and try to outrage her modesty and on protest he used to instigate appellant Suresh Singh to assault her and as a result of which he used to assault her, do not stand corroborated. Therefore, there is no legal evidence on the record to substantiate the allegation under Sections 498A and 354 of the Indian Penal Code as stated in the Fardbeyan. 9. The Fardbeyan (Ext. 3) of this case has been treated as dying declaration by the learned court below and the said Fardbeyan is the sole basis of the conviction of the appellants. Admittedly, when the appellant was brought to the hospital she was unconscious and for this the evidence of C.W. 1 appearing in para-2 of his evidence is referred to. As per the medical witness the burn injuries on the person of the deceased were of the fourth degree. Indu Devi was admitted in the Burn Centre Unit on 23.2.1994 in an unconscious state. C.W. 1 has deposed that he received intimation on 25.2.1994 from the Burn Centre' Unit that Indu Devi has regained consciousness and he went there and recorded the Fardbeyan of Indu Devi in presence of Dr. S.S. Mitra on which Indu Devi has put her L.T.I., which was attested by the said Dr. S.S. Mitra. It appears from the Fardbeyan (Ext. 3) that it does not contain the certificate of Dr. S.S. Mitra on which Indu Devi has put her L.T.I., which was attested by the said Dr. S.S. Mitra. It appears from the Fardbeyan (Ext. 3) that it does not contain the certificate of Dr. S.S. Mitra or any other doctor of the Burn Centre Unit treating her at the time of making her statement to C.W. 1 that she was in a fit state of mind having proper understanding faculty. Even Dr. S.S. Mitra has not taken oath in this case to support the fact that Indu Devi, the deceased of this case was in a fit state of mind and capable of making statement to C.W. 1 who is said to have recorded her Fardbeyan. No explanation is forthcoming on the record by the prosecution in respect thereof. The deceased has died after eight days of her hospitalization as per the prosecution case. A pertinent question arises at this stage as to what prevented the prosecution not to get the statement of Indu Devi recorded by a Magistrate during that period. Therefore, the said Fardbeyan suffers with legal infirmity and it cannot be treated as dying declaration to form the basis of conviction of the appellants without corroboration by legal and reliable evidence of natural competent and independent witness of the occurrence. Furthermore, there is no iota of evidence on the record to show that the Fardbeyan recorded in the facts and circumstances of the case is her true statement voluntarily made by her and the said dying declaration is not the result of tutoring, prompting or imagination. Therefore, it can safely be said in the facts and circumstances of the case that Indu Devi was definitely not in a fit state of mind to make the said Fardbeyan, which has been treated as dying declaration. There are also other aspects of the matter. To constitute the offence under Section 306 of the Indian Penal Code the prosecution has to substantiate that Indu Devi in this case has committed suicide and the appellants have abetted the commission thereof. There are also other aspects of the matter. To constitute the offence under Section 306 of the Indian Penal Code the prosecution has to substantiate that Indu Devi in this case has committed suicide and the appellants have abetted the commission thereof. Abetment as defined under Section 306 I.P.C. reads as follows : "Abetment of suicide.-If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." Here in this case there is no whisper in the Fardbeyan of the informant regarding any overt act by either of the appellants in instigating or aiding the informant to commit suicide. As per the evidence on the record the appellants were not present at the place of occurrence when the deceased has committed suicide. The particular behaviour of appellant Mahesh Singh as well as of appellant Suresh Singh at his instance in the past though not substantiated by legal evidence on the record cannot be termed and taken into account amounting to instigating, aiding or abetting the informant to commit suicide. Surprising enough the informant had not reported regarding her teasing by appellant Mahesh Singh or any attempt to raise outrage of her modesty to other elder brothers of her appellant-husband as well as to her parental relatives. The existence of contusion as found by the medical witness does not necessarily lead to an inference that the said injuries are the result of the assault by her appellant-husband Suresh Singh at the instance of appellant Mahesh Singh in absence of any cogent evidence in respect thereof on the record. It appears from the averments made in the Fardbeyan that it was the usual feature of appellant Mahesh Singh to tease her and on her protest to report against her husband as a result of which she was beaten and this was going on since long. Here a pertinent question arises as to what prevented her not to report about it to her relatives as well as other relatives of her husband or local authorities or not to commit suicide earlier. There is no legal evidence on the record that on the day of the occurrence appellant Mahesh Singh had attempted to tease her to outrage her modesty and appellant Suresh Singh had assaulted her at his instance. There is no legal evidence on the record that on the day of the occurrence appellant Mahesh Singh had attempted to tease her to outrage her modesty and appellant Suresh Singh had assaulted her at his instance. Therefore, in the facts and circumstances of the case it cannot be said that both the appellants had abetted Indu Devi to commit suicide by pouring kerosene oil on her person and setting herself on fire. Therefore, there is no legal evidence on the record in this case to support the prosecution case and the learned court below has committed a manifest error in treating the Fardbeyan as dying declaration of the deceased making it, the sale basis for the conviction of the appellants and viewed thus, the impugned judgment cannot be sustained. 10. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is set aside. The appellants are found not guilty of the charges levelled against them and they are, accordingly acquitted and discharged from the liabilities of their bail bonds.