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2003 DIGILAW 150 (CHH)

KAUPAD VISHWAS v. STATE OF M. P. (NOW C. G. )

2003-08-04

K.H.N.KURANGA, L.C.BHADOO

body2003
JUDGMENT As per Hon 'ble Shri L. C. Bhadoo, J. :- 1. Since both these Criminal Appeals namely Criminal Appeal No. 2575 of 2000 filed by Kali Pad Vishwas and Criminal Appeal No. 2645 of 2000 filed by Arun Sarkar arise out of the same judgment an out of the same incident, they are being disposed of by this common judgment. 2. Accused/appellants Kali Pad Vishwas and Arun Sarkar have preferred these criminal appeals under Section 374 (2) of the Code of Criminal Procedure being aggrieved by the judgment of convictions and sentences dated 30th September, 2000 passed by the learned First Additional Sessions Judge, Bastar at Jagdalpur, in Sessions Trial No. 170 of 1998 by which the learned Additional Sessions Judge after holding accused/appellant Arun Sarkar guilty of the offence punishable under Section 302 of the Indian Penal Code convicted him under this Section and sentenced him to under go imprisonment for life and to pay a fine of Rs. 5,000/- in default of payment of fine to further undergo rigorous imprisonment for six months. Accused/appellant Kalipad Vishwas has been convicted for the offence punishable under Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- in default of payment of fine to further undergo imprisonment for one month. 3. Briefly stated the facts of this case are as follows: Archana Sarkar (since deceased) was married to accused Arun Sarkar in the year 1990 and since then they were residing together in their house situated in Dharampura No.3, Jagdalpur. Accused Kalipad Vishwas is the brother-in-law (sister's husband) of accused Arun Sarkar. On 29-1-1998 in the night between 8 and 8.30 Archana Sarkar was admitted to Maharani Hospital, Jagdalpur in a burnt condition. In the Hospital, the Police Head Constable Anukul Chand got the accused Arun Sarkar and Archana Sarkar medically examined. The medical reports are Exs. P/1 & P/8 respectively. As Archana Sarkar was admitted to the hospital in a burnt condition, Head Constable Anukul Chand got her dying declaration recorded by Tahsildar S.K. Goutam in the presence of Dr. Somesh Pandey and Smt. Gouri Paul, sister of Archana Sarkar. The dying declaration of Archana Sarkar is Ex. P/2. As in the dying declaration (Ex. P/1 & P/8 respectively. As Archana Sarkar was admitted to the hospital in a burnt condition, Head Constable Anukul Chand got her dying declaration recorded by Tahsildar S.K. Goutam in the presence of Dr. Somesh Pandey and Smt. Gouri Paul, sister of Archana Sarkar. The dying declaration of Archana Sarkar is Ex. P/2. As in the dying declaration (Ex. PI2) Archana Sarkar had stated that she had sustained bum injuries accidentally, no case was registered and the matter was entered only in the Rojnamcha Sanha (Ex. D/4A). One Pradeep Chauhan informed Smt. Gouripal- sister of Archana Sarkar and Dhulubai who were residing at Jagdalpur only. They informed their brother D.N. Roy at Bhilai. On receiving this information D.N. Roy reached Jagdalpur and after seeing the serious condition of Archana Sarkar he took her to Bhilai on 30-1-1998 for better treatment. At Bhilai deceased Archana narrated the incident to her sisters Smt. Gouripal, Dhulubai, Smt. Ranju Roy, sister-in-law (Bhabhi) of the deceased, brother D.N. Roy and father Upendranath Roy. On enquiry by them the deceased told them that her husband accused Arun Sarkar had burnt her for money and on account of his illicit relations with some other girl. Thereafter D.N. Roy informed the Police. Looking to the serious condition of the deceased the Police sent a letter to the Tahsildar N.R. Sahu (PW -3) for recording the dying declaration of the deceased. Tahsildar N.R. Sahu recorded the dying declaration of the deceased at Bhilai Sector-9 Hospital on 2-2-1998 in which Archana Sarkar stated that on a dispute regarding preparation of the food her husband Arun Sarkar after putting a jute bag on her body set her on fire by matchbox. On hearing her cries one Manmath, a Rickshaw Puller came and thereafter Manmath and accused Arun Sarkar started extinguishing the fire. Accused Arun Sarkar, Manmath and the mother of Ribbo took Archana Sarkar to the hospital. She also disclosed that accused Kalipad Vishwas threatened her at Jagdalpur Hospital that whatever happened has happened, she should not disclose it to anyone, otherwise her daughter and brother would be murdered. She further stated that due to this reason she did not disclose the true facts earlier. Tahsildar N.R. Sahu recorded the dying declaration (Ex. P/3). On 3-3-1998 at about 8.35 a.m. Archana succumbed to the burn injuries sustained by her. She further stated that due to this reason she did not disclose the true facts earlier. Tahsildar N.R. Sahu recorded the dying declaration (Ex. P/3). On 3-3-1998 at about 8.35 a.m. Archana succumbed to the burn injuries sustained by her. Ward Boy Kamta informed Sector-6 Police Station about the death of the deceased. The Police recorded Merg intimation. A.S.I. R.B. Tiwari after giving notice (Ex. P/5) to the relatives of the deceased prepared Naksha Panchayatnama (Ex. P/4). Thereafter A.S.I. R.B. Tiwari sent a requisition to the Government Hospital for post mortem of the dead body of the deceased. Dr. P.K Agrawal conducted the post mortem examination on the dead body of deceased, Archana Sarkar. All the papers were sent to the Police Station Jagdalpur. A.S.I. of Police Station Jagdalpur K.K. Sahu in turn prepared the map (Ex.PIl8) of the place of the incident. Vide Seizure memo Ex.P/10 Investigating Officer Purshottam Sharma seized the letter (Ex. P/9) from the possession of D.N. Roy which was written by Gouripal to Rajesh Pandey. On 19-2-1998 the first information report (Ex. P/15-A) recorded and a case was registered for the offences punishable under Sections 302 and 201 of the Indian Penal Code. Accused Arun Sarkar was arrested vide arrest memo EX.P/15. During investigation the Investigating Officer vide EX.P/11 seized a copy of the complaint (Ex.P/12) made by the father of the deceased to Superintendent of Police, Jagdalpur, the letter (Ex. P /13) written by accused Arun Sarkar and Ex.P/14 the affidavit given by accused Arun Sarkar. The letter (Ex. P/7) dated 21-7-1997 written by the deceased to her sister in law namely Ranju Roy was also and seized. 4. After completing the investigation the Police filed the charge-sheet against the accused/appellants Arun Sarkar and Kalipad Vishwas before the Chief Judicial Magistrate, Jagdalpur. The C.J.M. committed the case to the Court of Sessions Judge, Jagdalpur who in turn transferred the case to the Court of Additional Sessions Judge, Bastar at Jagdalpur for trial. 5. The learned Additional Sessions Judge framed the charges against the accused/appellant Arun Sarkar for the offence punishable under Section 302 of the Indian Penal Code and against accused/appellant Kalipad Vishwas for the offence punishable under Section 201 of the Indian Penal Code. Both the accused persons denied the charges and claimed to be tried. 6. 5. The learned Additional Sessions Judge framed the charges against the accused/appellant Arun Sarkar for the offence punishable under Section 302 of the Indian Penal Code and against accused/appellant Kalipad Vishwas for the offence punishable under Section 201 of the Indian Penal Code. Both the accused persons denied the charges and claimed to be tried. 6. The prosecution in order to prove the charges against the accused/ appellants examined in all fourteen witnesses at the trial. The statements of the accused Kalipad Vishwas and Arun Sarkar were also recorded under Section 313 of the Code of Criminal Procedure. Accused Kalipad Vishwas in his statement denied the allegations levelled against him and stated that, as the witnesses are the relatives of the deceased, they are deposing against him. He denied that he threatened Archana Sarkar not to give the correct statement. He further stated that as the marriage of the deceased and accused Arun Sarkar was solemnized on account of their love affair against the wishes of her parents, they were not happy. He further stated that the deceased received the bum injuries accidentally and the parents of the deceased have falsely implicated him and Arun Sarkar in the case. On the fateful day at about 10.30 p.m. when the information was sent about the incident he was not present at his house; at that time he was at the residence of one K.L. Mourya, retired Dy. S.P. and giving treatment to his dog. At about 11.45 p.m. when he returned his house he came to know about the incident. Thereafter at about 12.50 in the night he along with his wife reached the Maharani Hospital, Jagda1pur. He further stated that he is innocent and has been falsely implicated in the case. 7. Accused Arun Sarkar also denied the evidence of the prosecution witnesses. He stated that he had married the deceased against the wishes of the family members of the deceased. The deceased died on account of accidental fire. He further stated that the parents of the deceased have falsely implicated him because the parents of the deceased wanted to take away the unole money of the deceased which would be given by the department on her death and for obtaining compassionate appointment to her younger sister. The deceased died on account of accidental fire. He further stated that the parents of the deceased have falsely implicated him because the parents of the deceased wanted to take away the unole money of the deceased which would be given by the department on her death and for obtaining compassionate appointment to her younger sister. In defence the accused examined Aabirti Haldhar as DW -1, Phoolmala Vishwas as DW -2, Pradeep Singh Chouhan as DW-3, Anuku Chand as DW-4 and Trilokinath Mouryaas DW-5. 8. The learned Additional Sessions Judge after hearing the arguments of the learned Additional Public Prosecutor and the counsel for the accused persons and after placing reliance on the prosecution evidence convicted and sentenced the accused persons as mentioned in para 2 of this judgment. 9. We have heard Mr. Prafull Bharat, counsel for the accused/appellants and Mr. P.S. Koshy, Govt. Advocate, for the State/respondent. 10. It is not in dispute that deceased Archana Sarkar died due to the burn injuries sustained by her. PW -6 Dr. V.K. Jha who prepared the injury report (Ex.P/8) of the deceased has stated that when the deceased was admitted to the hospital on 29-1-1998 he examined her. Her whole body was burnt and the smell of kerosene was coming out of her body. PW -4 Dr. P.K. Agrawal has stated in his evidence that on 4-2-1998 he was working as Assistant Surgeon in the District Hospital Durg and on that day he conducted the post mortem on the dead body of the deceased. He saw that the whole body of the deceased was covered with the bandage except the nose and the mouth. The whole body was burnt. There were marks of burn injuries on the entire body. The post mortem report is Ex- P/6. In the post mortem report it has been mentioned that the cause of the death of the deceased was due to delayed shock due to the extensive burn injuries. In view of the above evidence, it is proved that the deceased died on account of the burn injuries sustained by her. 11. Now coming to the question as to whether accused Arun Sarkar is the person who, after putting the jute bag on the body of the deceased, set her on fire, the relevant evidence adduced by the prosecution is Ex. 11. Now coming to the question as to whether accused Arun Sarkar is the person who, after putting the jute bag on the body of the deceased, set her on fire, the relevant evidence adduced by the prosecution is Ex. P/2 - the dying declaration of deceased Archana Sarkar recorded on 29-1-1998 by PW -10 Tahsildar S.K. Goutam in the presence of PW -2 Dr. Somesh Pandey and PW -7 Gouri Pal. In this dying declaration deceased Archana Sarkar stated that she received the bum injuries accidentally when she was preparing the food an a stove. The defence witnesses namely DW -1 Aabirti Ha1dhar and DW -2 Phoo1ma1a Vishwas have stated that when they reached the house of accused Arun Sarkar, on enquiry deceased Archana Sarkar had stated that she received the bum injuries from the stove flames. In his defence the accused Arun Sarkar has also produced the injury report (Ex. P/1). Accused Arun Sarkar said to have received the bum injures on his hands when he was trying to extinguish the fire on the body of the deceased. In defence accused Arun Sarkar has also produced the Rojnamcha (Ex. D/4-A) which was entered by DW-4 Head Constable, City Kotwali, Jagdalpur Anuku1 Chand and the copy of the plaint of Civil Suit No. 19-4 of 1998 field by Upendra Nath Roy, father of the deceased, against accused Arun Sarkar. 12. The other dying declaration is Ex,P/3 recorded on 2-2-1998 in the Bhilai Hospital by Naib Tahsildar PW-3 N.R. Sahu. In this dying declaration deceased Archana Sarkar has stated that her husband Arun Sarkar after covering her body with a jute bag set her on fire. This dying declaration (Ex. P/3) is corroborated by the oral dying declaration made by the deceased before PW-1 Dhulubai, PW -5 Ranju Roy - sister in law of the deceased PW -7 Gouripal, PW8 D.N. Roy brother of the deceased and PW-9 Upendranath Roy father of the deceased. The documentary evidence adduced by the prosecution is the letter (Ex. P/7) written by deceased Archana Sarkar to her sister-in-law (Bhabhi) PW5 Ranju Roy on 21-7-1997, the complaint (Ex. P1/2) written by PW-9 Upendranath Roy, father of the deceased, to the Superintendent of Police, Jagdalpur on 22-9-1990 regarding ill-treatment, harassment, cruelty and the beating given by accused Arun Sarkar to his daughter - deceased Archana Sarkar, the letter (Ex. P/7) written by deceased Archana Sarkar to her sister-in-law (Bhabhi) PW5 Ranju Roy on 21-7-1997, the complaint (Ex. P1/2) written by PW-9 Upendranath Roy, father of the deceased, to the Superintendent of Police, Jagdalpur on 22-9-1990 regarding ill-treatment, harassment, cruelty and the beating given by accused Arun Sarkar to his daughter - deceased Archana Sarkar, the letter (Ex. P1l3) written by accused Arun Sarkar to PW-8 D.N. Roy regarding his complaint against the deceased and demand of Colour TV, Scooter, Almirah and Furniture and; the affidavit (Ex. P/14) dated 5-11-1990 sworn to by accused Arun Sarkar and given to his in-laws mentioning therein that on that day he was talking his wife from Bhi1ai to his residence at Jagdalpur and in future they will live together peacefully and he will not torture or harass Archana Sarkar. 13. Shri Prafull Bharat, learned counsel appearing for the accused/appellants argued that the dying declaration (Ex.P/2) was made by the deceased immediately after receiving the bum injuries and that too in the Hospital before the Executive Magistrate in the presence of Dr. Somesh Pandey. The dying declaration (Ex. P/2) bears the signature of Gouripal, sister of the deceased. This dying declaration was recorded earlier in time in the presence of the witnesses and therefore this document inspires confidence. He argued that this dying declaration has been wrongly disbelieved and rejected by the trial Court. He further argued that it is evident from the injury report (Ex. P/1) that accused Arun Sarkar received the bum injuries on his hand at the time of extinguishing the fire on the body of his wife - the deceased. The conduct of the accused is such that first he tried to extinguish the fire and thereafter he immediately took her to the hospital and got her admitted. This conduct of the accused shows that he was not involved in the crime. The attack of the learned counsel for the accused/appellants on the dying declaration (Ex.P/3) is that this statement was given by the deceased at Bhilai when she was surrounded by her maternal side relatives namely sisters, sister-in-law, brother and the father. This conduct of the accused shows that he was not involved in the crime. The attack of the learned counsel for the accused/appellants on the dying declaration (Ex.P/3) is that this statement was given by the deceased at Bhilai when she was surrounded by her maternal side relatives namely sisters, sister-in-law, brother and the father. Since the father and the brother of the deceased wanted to get the monitory benefits and the compassionate appointment of Dhulubai - the younger sister of the deceased which were to be given after the death of the deceased, they got executed the Will of the deceased and based on that they filed a suit also. In order to grab the whole money which was to be paid after the death of the deceased and to deprive accused Arun Sarkar of those benefits, the father and brother of the deceased concocted this case against the accused. He further argued that the doctor in whose presence the dying declaration (Ex. P/3) is said to have been recorded has neither been examined by the prosecution nor at the beginning of the dying declaration the doctor has certified that the deceased was in a fit condition to give the statement. Moreover, looking to the 85% burns sustained by the deceased, it was not possible for her to give the statement after four days. Therefore, the dying declaration (Ex. P/3) is doubtful. 14. Shri Prafull Bharat further submitted that as far as the oral dying declaration made by the deceased before her sister Dhulubai (PW -1), Ranju Roy (PW-5), Gouripal (PW-7), D.N. Roy (PW-8) and Upendanath (PW-8) is concerned, all these witnesses are close relatives of the deceased. Therefore, they have deposed against the accused. Their evidence is false and they cannot be believed particularly, for the reason that as compared to the oral dying declaration, the written dying declaration was made earlier in time that too before the independent witnesses in which the deceased excluded the accused/appellant from the allegation of setting the deceased on fire and stated that she caught fire accidentally while cooking the food on a stove. In support of his argument learned counsel for the appellants placed reliance on the case of Salak Ram and another Vs. In support of his argument learned counsel for the appellants placed reliance on the case of Salak Ram and another Vs. State of U.P. In this case the Apex Court has held that as the deceased was in the midst of friends and admirers right since the time of incident untill dying declaration was recorded by the S.D.M., the dying declaration can have hardly any evidentiary value. He also placed reliance on the case of K.R. Reddy Vs. Public Prosecutor in which the Supreme Court has held that the first occasion for the deceased to disclose the name of his assailants was at the time when he was carried in a lorry from the place of occurrence to Dr. Ramamurthi Nursing Home. In the said case PW -1 categorically stated that at the time when his father was put on the lorry he was groaning but he was in a position to talk. Therefore, the Court reached the conclusion that when the deceased was put in the lorry he did not disclose the name of the assailants either the deceased was not in a position to identify the accused persons or he was not in a position to give the statement. In State of Rajasthan Vs. Tela Ram3 the Apex Court held that victim sustained brain injury - His brain functions were impaired - Dying declarations made by him - Cannot be relied upon. Relying on this authority learned counsel for the accused/appellants argued that since the deceased had sustained 85% burn injuries it was not possible for her to give the statement after four days and particularly when she died on the next day i.e. 3-2-1998. EX.P/3 is said to have been recorded on 2-2-1998 which is doubtful. The other decision relied upon by the learned counsel is Kishan Lal Vs. State of Rajasthan. The Court held that the orel dying declaration alleged to be made by the deceased before her father, uncle and grand-mother - Names of accused mentioned therein and in second dying declaration made before the Magistrate she said that she could not recognize because of darkness coming in her eyes. The Court held that dying declaration not only giving two conflicting varsions but there was inter se discrepancies in depositions of witnesses given in support of oral dying declaration. In Gokul Singh Vs. The Court held that dying declaration not only giving two conflicting varsions but there was inter se discrepancies in depositions of witnesses given in support of oral dying declaration. In Gokul Singh Vs. State of M.P. the Madhya Pradesh High Court held that the conviction can be based on the dying declaration if found truthful- Deceased not in fit mental condition and no certificate obtained to that effect - conflicting versions of witnesses in that regard - Since tutoring could not be excluded, reliance could not be placed on dying declaration. In the case of Kamla Vs. State of Punjab the Court held that Four dying declarations made by the deceased revealing glaring inconsistency vis-a-vis naming the culprit - One of the dying declarations indicated the incident as an accident - Conviction under Section 302, IPC based on one of the dying declaration implicating accused - Liable to be set aside. In the case of Panchdeo Singh Vs. State of Bihar the Court held that the dying declaration must alluring to the satisfaction of the Court that reliance ought to be placed therefore rather than distrust. The confidence of the Court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind; question of any disbelief or distrust would not arise. In the event, however, of there being some infirmity, howsoever, negligible it be, the Court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however it is otherwise, question of requirement of a corroboration would not arise; dying declaration alluring confidence of the Court would be a sufficient piece of evidence to sustain conviction. In the case of Sagir Khan Vs. State of Rajasthan The Rajasthan High Court held that in the absence of cogent and reliable evidence showing that the accused had poured kerosene oil on person of deceased and thereafter caused ignition resulting in her death - Dying declaration not corroborated in material particulars by independent witnesses - Cannot be relied upon. Delay in recording dying declaration not explained by prosecution - Conduct of accused in taking deceased to hospital immediately, not blameworthy - Conviction of accused, set aside. 15. Delay in recording dying declaration not explained by prosecution - Conduct of accused in taking deceased to hospital immediately, not blameworthy - Conviction of accused, set aside. 15. The law laid down by the Apex Court in the matter of placing reliance on dying declaration made by the deceased is that the dying declaration must inspire judicial confidence that it must be trustworthy, true, voluntary, clear and unequivocal and the deceased must be conscious and fit to give statement at the time of giving dying declaration and where the dying declaration lacks in some particulars then it should be supported by some other circumstantial evidence or by the witnesses in material particulars, where the dying declaration is made at a time when the deceased was surrounded by the relatives then the Court has to scrutinize the dying declaration very carefully before placing reliance on that. The dying declaration even if made in the presence of the close relatives if it is trustworthy then it cannot be discarded only on the ground that when it was made the deceased was surrounded by her relatives and where there are inconsistency among more than one dying declaration then the Court has to be more careful while relying upon one dying declaration and if it is corroborated by some other circumstantial evidence or oral evidence in material particulars then the conviction can be based on that. 16. In the light of the above law now we shall examine the present case and consider the arguments advanced by the learned counsel appearing for the accused appellants. 17. As far as the question of evidence of D.W -1 Aabirti Haldhar and DW2 Phoolmala Vishwas regarding oral dying declaration made before them by the deceased is concerned, both the witnesses have stated that being neighbourers, on hearing the cries of deceased Arun Sarkar they reached his house and saw that he was extinguishing the fire. They enquired from Archena Sarkar that how she has sustained bum injuries. Archana Sarkar replied that while cooking the food her Sari caught fire from the stove. Out of these two witnesses, Aabirti Haldhar was not listed as witness of the prosecution and she was not produced by the prosecution as her statement was not recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure. Archana Sarkar replied that while cooking the food her Sari caught fire from the stove. Out of these two witnesses, Aabirti Haldhar was not listed as witness of the prosecution and she was not produced by the prosecution as her statement was not recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure. If she had reached the place of the incident then the Investigating Officer would have certainly recorded her statement. The Investigating Officer has not been cross-examined on this point that Aabirti Haldhar reached immediately after hearing the cries of accused Arun Sarkar. Therefore, her presence at the scene of occurrence is doubtful. DW-2 Phoolmala Vishwas is concerned, her name was in the list of the witnesses but she was not examined. Moreover, her presence at the scene of occurrence has been admitted by both the parties. 18. Now coming to the evidence of DW -2 Phoolmala Vishwas, in the cross examination by the prosecution she has stated that her statement (Ex. D-l A) was not taken by the Police Officer. Before the Court she has given her evidence with improvement from her previous statement (Ex. D/1A) given to the Police. In her Police statement there is nothing to show that on enquiry deceased Archana Sarkar said that she caught fire from the stove while cooking the food. On the contrary in that statement she had stated that she enquired from the deceased as to how she received the bum injuries but she said nothing. Therefore, it appears that being neighbourers these two witnesses have been won over by the accused and they are interested in the accused. Therefore, the evidence of these two witnesses does not inspire confidence as their evidence is not trustworthy and appears to be unnatural and against the circumstances existed at the scene of occurrence. As far as the evidence of PW -12 Manmath Majumdar is concerned, this witness has turned hostile. He has stated that in the evening he was in his house and his house was situated in front of the house of accused Arun Sarkar. At 8.00 p.m. on hearing the cries from the house of Arun Sarkar he reached the house of Arun Sarkar and saw that deceased Archana Sarkar was lying on the ground and the accused Arun Sarkar was sitting there. At 8.00 p.m. on hearing the cries from the house of Arun Sarkar he reached the house of Arun Sarkar and saw that deceased Archana Sarkar was lying on the ground and the accused Arun Sarkar was sitting there. Arun Sarkar asked him to bring the Rickshaw and he brought his Rickshaw. Arun Sarkar after lifting his wife Archana Sarkar made her to sit in the Rickshaw and they went to Vivekanand Hospital and from there they took the deceased to Maharani Hospital, Jagdalpur. Therefore, as per the evidence of this witness when he entered the house of the accused he was sitting there and as per the dying declaration (Ex. P /3) of the deceased after Manmath Majumdar came both Manmath and Arun Sarkar started extinguishing the fire. Therefore, the defence of the accused that when the deceased caught fire from the stove he immediately started extinguishing the fire and thereafter Manmath Majumdar also came and in that process he received the injuries on his hand, is totally incorrect. On the contrary he was sitting there when the deceased was lying on the ground and only when Manmath Majumdar came he along with Manmath started extinguishing the fire. Therefore, this conduct of the accused shows that the deceased had not caught fire accidentally. 19. Now coming to the dying declaration (Ex.P/2) of the deceased, learned counsel appearing for the accused/appellants argued that it is trustworthy and earlier in time and it was recorded by PW -10 Tahsildar S.K. Goutam in presence of Dr. Somesh Pandey. Counsel further argued that in the earlier dying declaration (Ex.P/2) the deceased had not disclosed that per husband Arun Sarkar had set her on fire. In the other dying declaration (Ex.P/3) recorded by PW-3 Naib Tahsildar N.R. Sahu, the deceased has clearly stated in para 8 that accused Kalipad Vishwas who is brother-in-law of the accused Arun Sarkar came to the hospital and said that whatever happened has happened and she should not disclose it to anybody otherwise her daughter and brother will be killed. PW -1 Dhulubai sister of the deceased has categorically stated that when she reached the hospital and enquired from the deceased how she has sustained the burn injuries she told her that she will tell her later on. PW -1 Dhulubai sister of the deceased has categorically stated that when she reached the hospital and enquired from the deceased how she has sustained the burn injuries she told her that she will tell her later on. When she was taken to Bhilai Hospital, she disclosed that her husband accused Arun Sarkar after putting jute bag on her body set her on fire and on account of the threatening given by accused Kalipad she made a wrong statement before the Magistrate. PW - 7 Gouripal has also stated that when she enquired from her sister in the Maharani Hospital as to how she had sustained bum injuries, at that time she said nothing. The threatening given by accused Kalipad Vishwas to the deceased has come in the evidence of PW-5 Ranju Roy. She has stated that Archana Sarkar wrote a letter (Ex. P 17) on 21-7-1997 to her in which she had written that her husband used to beat her and demand money because he had taken loan from other persons. Therefore, in view of this evidence, the dying declaration (Ex. P/2) is not trustworthy and becomes doubtful as the same was given on account of the threat given by accused Kalipad. Moreover, at that time the accused was also present there and looking to the past conduct of the accused Arun Sarkar, she was not in a position to come out with the truth that she was set on fire by the accused Arun Sarkar and in the hospital accused Kalipad had threatened her with dire consequences. Therefore, under those circumstances how it could be expected of the deceased to speak the truth before the Magistrate. Even PW -6 Dr. Y.K. Jha in his examination in chief has stated that when the deceased was brought to the hospital the smell of kerosene was coming out of her body. This fact itself shows that the deceased had not received the bum injuries accidentally. If it was not so then there was no question of the smell of kerosene coming from her body. On the contrary this fact corroborates the fact that she was set on fire after pouring kerosene on her body by the accused. This fact is also mentioned in the dying declaration (Ex.P/3). If it was not so then there was no question of the smell of kerosene coming from her body. On the contrary this fact corroborates the fact that she was set on fire after pouring kerosene on her body by the accused. This fact is also mentioned in the dying declaration (Ex.P/3). The deceased in her dying declaration (Ex.P/3) has clearly stated that on hearing her cries Manmath opened the door, came inside and said "what Tamasha you are doing" and thereafter Manmath and Arun Sarkar started extinguishing the fire. In view of the above discussion, the dying declaration (Ex.PI2) even though it is earlier in time, does not inspire confidence as the same is not true. Even the thumb impression of Archana Sarkar on Ex.P /2 was not taken by the witnesses namely PW-2 Dr. Somesh Pandey and PW-10 S.K. Goutam, whereas on EX.P/3 the deceased signed in the presence of N.R. Sahu. 20. As far as the recording of dying declaration (Ex.PI2) and the signature of Gouripal (PW -7) thereon is concerned, PW -7 Gouripal has categorically stated that she was sent out by the accused Arun Sarkar and thereafter one person brought a paper and said that they are treating Archana Sarkar and since she is the relative of the deceased he asked her to put her signature on the paper and that is why she signed on it and also gave the address and the name of her husband and she was weeping at that time. She has categorically stated that EX.P/2 was not written in her presence. She has further stated that it is wrong to say that the Tahsildar recorded the dying declaration (Ex.P/2) in her presence after asking the questions to the deceased. Therefore, this witness has not supported the case of the prosecution regarding recording of the dying declaration (Ex.P/2) of the deceased in her presence. 21. As far as the evidence of Anukulchand (DW-4) is concerned, he has stated that he made the entry in the Rojnamcha Sanha (Ex.D/4-A) as per the information given by accused Arun Sarkar. In the cross examination this witness in para 5 has stated that this entry was not made after enquiring from the deceased. Therefore, the entry EX.P/4-A in the Rojnamcha Sanha is of no assistance to the prosecution. 22. In the cross examination this witness in para 5 has stated that this entry was not made after enquiring from the deceased. Therefore, the entry EX.P/4-A in the Rojnamcha Sanha is of no assistance to the prosecution. 22. One more fact has come on record that when the deceased was examined by PW -6 Dr. VK. Jha he found that the whole body of the deceased was burnt. A perusal of the injury report EX.P/8 shows that the whole body of the deceased was burnt and the face, Back, chest, abdomen, both the hands, back side and the legs were burnt up to 80 to 85%. This fact itself shows that she was set on fire after pouring kerosene and the smell of kerosene was also coming out of her body. Had she caught fire accidentally from the stove while cooking the food then she would have received the bum injuries in the front portion of the body only because by that time the accused who was already there extinguished the fire. This fact also shows that the deceased was set on fire. 23. In view of the above circumstances, the arguments advanced by the learned counsel for the accused that the deceased Archana Sarkar caught fire accidentally from the stove while cooking the food is not true and cannot be accepted. 24. Even the oral dying declaration which is said to have been made before DW -1 Aabirti Haldhar and DW -2 Phoolmala Vishwas as discussed above is also not true. 25. Now coming to the subsequent dying declaration of the deceased recorded by Naib Tahsildar N.R. Sahu (PW-3) on 2-2-1999 and the oral dying declaration of the deceased made before PW-1 Dhulubai, PW-5 Ranju Roy, PW -7 Gouri Pal, PW -8 D.N. Roy and PW -9 Upendranath Roy, learned counsel for the accused/appellants argued that the doctor in whose presence dying declaration (Ex. P/3) was made by the deceased has not been produced by the prosecution. Moreover, the said doctor had not given the certificate at the beginning before recording of the dying declaration that the deceased was in a fit condition to give the statement. The deceased sustained 85% bum injuries on 29-1-1998 and her statement was recorded on 2-2-1998 at about 7.00 p.m. The deceased made tins dying declaration after four days of sustaining the burn injuries. The deceased sustained 85% bum injuries on 29-1-1998 and her statement was recorded on 2-2-1998 at about 7.00 p.m. The deceased made tins dying declaration after four days of sustaining the burn injuries. Therefore, he submitted that it cannot be believed that the deceased was in a position to give the statement. 26. PW -3 Naib Tahsildar has stated that on 2-2-1998 on receiving the information from the hospital he reached the hospital and saw that the deceased was admitted in the hospital in bums unit. In the first instance, he obtained the fitness certificate regarding condition of the deceased from the doctor and thereafter he recorded the statement (Ex.P/3) of the deceased. He further stated that after recording the statement of the deceased the same was read over to her and the deceased had signed it. In cross-examination he has stated that on enquiry the doctor had said that the deceased was in a position to give the statement. In the beginning of the statement the doctor did not give the certificate but at the end at about 7.30 p.m. the doctor gave the certificate. He further stated that it is wrong to say that the doctor was not present at the time of recording of the statement of the deceased. He did not know the name of the doctor but she was a lady doctor. The Hon'ble Apex Court in the case of Koli Chunilal Savji Vs. State of Gujarat held: Dying declaration recorded by the Magistrate - No endorsement by the doctor indicating that deceased declaring was in a fit condition - Doctor not examined - Merely on that score the dying declaration cannot be held untruthful. In view of this decision of the Apex Court that on account of non-examination of the doctor the dying declaration does not become doubtful. In this case at the end of the statement of the deceased the doctor has certified that the deceased was in a fit condition to give the statement and the signature of the doctor has been marked as C to C below the certificate. PW-3 N.R. Sahu has stated that the deceased was in a position to give the statement. 27. Learned counsel for the appellants argued that the deceased was not in a position to sign the statement as her hands were burnt and she had sustained 85% bums. PW-3 N.R. Sahu has stated that the deceased was in a position to give the statement. 27. Learned counsel for the appellants argued that the deceased was not in a position to sign the statement as her hands were burnt and she had sustained 85% bums. A bare perusal of the signature of the deceased on EX.P/3 itself shows that the signature was made in such a condition that the patient was not able to sign properly. On comparing this signature of the deceased on EX.P/3 and the signature on the letter (Ex. P/7) written by her to her sister-in-law on 21-7-1997 it is clear that the signature on EX.P/3 was made by the deceased with great difficulty and there is no reason for this Court to disbelieve the evidence of this independent witness namely PW - 3 N.R. Sahu. 28. Now coming to the argument of the learned counsel for the appellants that the dying declaration (Ex.P/3) was made by the deceased at the time when she was totally surrounded by her family members, it is true that in the hospital she was being looked after by her sister, sister-in-law, brother and the father. But merely on this ground her statement cannot be disbelieved. As has been discussed above, the circumstances in which the deceased caught fire are totally against the defence of the accused. The past conduct and behaviour of the accused with the deceased itself shows that the accused used to beat and harass her and used to take away all her money. Even the accused took money from certain persons from the place where the deceased was working on the pretext that he would get their students passed in their examinations. When he was not successful in fulfilling the promise the people started demanding their money back and then he used to harass the deceased for giving him money so that he can repay that amount to the persons from whom he had taken the money on a false assurance. In this context, a bare perusal of the letter (Ex.P/7) which was written by the deceased to her sister-in-law PW -5 Ranju Roy on 21-9-1997 just four months and few days before the incident shows that she had written that the bad habits of the accused were increasing and he was not doing any work. In this context, a bare perusal of the letter (Ex.P/7) which was written by the deceased to her sister-in-law PW -5 Ranju Roy on 21-9-1997 just four months and few days before the incident shows that she had written that the bad habits of the accused were increasing and he was not doing any work. The whole day he used to remain in the village and he had taken the loan of thousands of rupees and the people were demanding money from her. She further wrote that on the very day on which she gets salary, the whole salary was being taken by the accused and she has to manage her house expenses from the other earnings and that is why she was not able to return her sister-in-law the money she had taken and for that she had apologized. She further mentioned that the accused beats her and he was also talking about another marriage. In this connection EX.P/12 is the copy of the complaint which was sent to the Superintendent of Police, Jagdalpur on 22-9-1990 by the father of the deceased against the accused/appellant Arun Sarkar mentioning therein about the cruelty, harassment and ill-treatment meted out to his daughter - deceased Archana Sarkar by accused Arun Sarkar. It seems that the deceased on account of this harassment and cruelty left for her parental house. Thereafter the accused went there and gave an affidavit (Ex.P/14) to the parents of the deceased. The sent back the deceased with the accused on 5-11-1990. In this affidavit the accused himself in his own handwriting and under his signature promised the parents of the deceased that he would not beat and harass the deceased. One more letter (Ex.P/13) was written by the accused Arun Sarkar to PW-8 D.N. Roy about the deceased and in that letter he demanded colour TV, Scooter, Almirah and Furniture. In the evidence nothing has come out about the source of income of the accused. He is said to be a free-lancer journalist and there was no source of income. Although he had no income, he was in the habit of drinking. This circumstantial evidence lends supports to the fact that the accused was a man of bad habits and he used to quarrel, harass and beat the deceased. He is said to be a free-lancer journalist and there was no source of income. Although he had no income, he was in the habit of drinking. This circumstantial evidence lends supports to the fact that the accused was a man of bad habits and he used to quarrel, harass and beat the deceased. Therefore, the dying declaration (Ex.P/3) gets support from this circumstantial evidence and there is no reason for this Court to disbelieve the document EA.P/12. In these circumstances when the dying declaration gets support from the other circumstantial evidence merely for the reason that when the dying declaration was recorded the deceased was with her brother, father and other family members, it cannot be disbelieved or discarded. 29. Moreover, all these five witnesses namely PW -1 Dhulubai, PW -5 Ranju Roy, PW -7 Gouripal, PW -8 D.N. Roy and PW -9 Upendranath Roy have stated that on enquiry in the Bhilai hospital the deceased told them that the accused appellant Arun Sarkar after quarrelling with her and after putting a jute bag on her body, poared kerosene on her and set her on fire. Moreover, PW-6, PW-7, PW -8 and PW -9 have not been effectively cross examined by the counsel appearing for the defence on the point of their evidence regarding the oral dying declaration made before them by the deceased. As such, there is no reason for this Court to disbelieve their evidence regarding the oral dying declaration made by the deceased before them because they were the near relatives and in whom the deceased had the confidence and they were the right persons before whom she could have narrated the true facts at the last stage of her life. The evidence of these witnesses regarding the conduct of the accused prior to the date of the incident gets corroboration from the circumstantial evidence and the documents Exs. P/7, P/12, P/13 and P/14 which are earlier in time before the incident and there was no reason for these witnesses to create the false evidence prior to the happening of the incident. Therefore, the evidence of these witnesses cannot be discarded. 30. Now coming to the condition of the deceased to make the dying declaration before PW - 3 N.R. Sahu, he has categorically stated that the deceased was in a fit condition to give the statement. Therefore, the evidence of these witnesses cannot be discarded. 30. Now coming to the condition of the deceased to make the dying declaration before PW - 3 N.R. Sahu, he has categorically stated that the deceased was in a fit condition to give the statement. Moreover, the doctor has also given the certificate at the end of the statement The other witnesses namely Gouripal, Dhulubai and Ranju Roy have stated that when the deceased was brought to the Bhilai Hospital her condition was not good but later on her condition improved and then on enquiry she disclosed the fact of setting her on fire by the accused. In view of this evidence, it is clear that the deceased was in a position to give the statement. Therefore, the decisions cited by the learned counsel for the accused appellants on the point that at the time of recording the dying declaration the deceased must not be in a position to give the statement, are of no help to the accused. In the facts and circumstances of the case and the evidence PW-3 N.R. Sahu it is clear that the deceased was in a position to give the statement on 2-2-1998. It is true that there are minor contradictions in the evidence of Dhulubai (PW -1), Ranju Roy (PW -5) and Gouripal (PW -7). One has stated that the deceased was set on fire after pouring kerosene and another has stated that the deceased was set on fire after covering her body with the jute bag and the third one has only stated that the deceased was set on fire. In view of the other ample evidence on record supporting the prosecution version that too by the documentary evidence, we are of the opinion that these minor contradictions are natural in their evidence and these contradictions cannot be made much off in the facts and circumstances of the case. 31. Counsel for the accused/appellants argued that the Police have not recovered anything from the place of occurrence and that there was inordinate delay in recording the statements of the witnesses. There is no force in this argument. The incident took place on 29-1-1998 and on that day the dying declaration (Ex.P/2) of the deceased was recorded under threat. 31. Counsel for the accused/appellants argued that the Police have not recovered anything from the place of occurrence and that there was inordinate delay in recording the statements of the witnesses. There is no force in this argument. The incident took place on 29-1-1998 and on that day the dying declaration (Ex.P/2) of the deceased was recorded under threat. Therefore no case was registered and thereafter when the deceased was taken to Bhilai on 2-2-1998 for the first time the deceased disclosed in her dying declaration (Ex. P/3) that the accused Arun Sarkar set her on fire. After recording this dying declaration all the papers were sent by the Kotwali, Durg to the Police Station, Jagdalpur and the case was neg stened for the first time on 19-2-1998. Therefore, it was but natural that because of this delay anything was found on the spot and the statements of the witnesses were recorded only after the registration of the case. 32. Now coming to the argument of the learned counsel for the accused/ appellants that the relatives and the parents of the deceased have falsely implicated the accused/appellants in the case in order go get the money of the deceased which was to be paid after her death by the department where she was working, is concerned, this argument has no force. As has been discussed in the earlier part of the judgment the prosecution has been able to prove that the accused is the person who set the deceased on fire. Looking to the conduct of the accused Arun Sarkar that he used to beat, harass and to treat the deceased with cruelty it was but natural for the deceased to deprive the accused of the money which was to be paid by her department after her death and that is why the deceased executed a will on 31-1-1998 in favour of her brother D.N. Roy and for giving compassionate appointment in her place to Dhulubai. This was done looking to the conduct of the accused/appellant and because he set the deceased on fire. Learned counsel argued that execution of the will becomes doubtful as the deceased had not given anything to her daughter. This was done looking to the conduct of the accused/appellant and because he set the deceased on fire. Learned counsel argued that execution of the will becomes doubtful as the deceased had not given anything to her daughter. But on account of this only the will cannot be considered as doubtful because the deceased must have thought that if the money is given to her brother he would look after her daughter well after her death and that may be the reason why she has executed the will in favour of her brother. 33. As far as accused/appellant No.2 Kalipad Vishwas is concerned, learned counsel for the accused/appellants argued that accused Kalipad was not present in the hospital at the time of recording of the statement of the deceased. He has been falsely implicated in the case. Moreover, he was present at the form house of DW -4 Trilokinath and even if the allegation against him are taken to be true the act of the accused does not come within the mischief of Section 201 of the Indian Penal Code. 34. As far as the presence of the accused Kalipad Vishwas in Maharani Hospital at Jagdalpur is concerned, the deceased has categorically stated in her dying declaration (Ex.P/3) that accused Kalipad came to the hospital and sat by her side and told her that whatever happened has happened, but now she should not disclose anything to anyone otherwise her daughter and brother would be murdered and on account of that while giving the statement (Ex.P/2) she had not disclosed the true facts to the Executive Magistrate. Only the evidence of DW-5 Trilokinath has been adduced in favour of the accused to show that the accused was present in his farmhouse till 11.30 in the night. The accused has stated in his statement recorded under Section 313 of the Code of Criminal Procedure that he had gone to the farmhouse of retired D.S.P. K.L. Mourya and he was present till 12.00 in the night. The statement of the father of DW -5 namely K.L. Mourya has not been recorded by the Investigating Officer. If Trilokinath Mourya (DW -5) or his father had told the Investigating Officer there was no reason for the Investigating Officer not to record their statements. The statement of the father of DW -5 namely K.L. Mourya has not been recorded by the Investigating Officer. If Trilokinath Mourya (DW -5) or his father had told the Investigating Officer there was no reason for the Investigating Officer not to record their statements. But it has not come in the evidence that Trilokinath or his father has informed the Investigating Officer that the accused was present in their Fanl1house. In absence of that it is difficult to accept the evidence of D W - 5 Trilokinath in this regard. The Investigating Officer has not been cross examined on the point that Kalipad Vishwas was present in the Farmhouse of DW -5 Trilokinath Mourya. The Investigating Officer has also not been cross-examined on the point that Kalipad was not present in the hospital and he was present in the Farmhouse of Trilokinath. Moreover, in the cross examination this witness - the Investigating Officer has stated that it is incorrect to say that Kalipad has not threatened the deceased and a false case has been foisted upon him. The fact of threatening given by the accused Kalipad to the deceased was narrated by the elder sister of the deceased. Therefore, in view of the dying declaration (Ex.P/3) of the deceased that the accused threatened her and in view of the evidence of PW -1 Dhulubai in which she has stated that on enquiry Archana Sarkar disclosed to her in the Bhilai Hospital that Kalipad had threatened her that whatever happened has happened and if she would disclose this fact to anyone then her daughter and brother would be killed that is why she did not disclose the true fact before the Magistrate at Jagdalpur. Therefore, the presence of accused Kalipad in the hospital and the threat given by him to the deceased has been proved. 35. PW -7 Gouripal has stated in her evidence that accused Kalipad continued to give threat even after the incident therefore she wrote a letter (Ex.P/9) to Rajesh Kumar Pandey. PW -13 Rajesh Kumar Pandey also admitted that the letter (Ex.P/9) was written by PW -7 Gouripal and the same was handed over to D.N. Roy, brother of the deceased and he ultimately submitted it to the Police. PW -13 Rajesh Kumar Pandey also admitted that the letter (Ex.P/9) was written by PW -7 Gouripal and the same was handed over to D.N. Roy, brother of the deceased and he ultimately submitted it to the Police. The perusal of Ex.P/9 and the evidence of PW-7 Gouripal show that accused Kalipad even after the death of deceased Archana Sarkar used to give threat that if the case is registered against them (accused persons) then they will murder the sisters of the deceased. The conduct of the accused Kalipad shows that he threatened the deceased not to disclose the facts of the case to anyone. 36. Now coming to the question as to whether the part of the dying declaration (Ex.P/3) of the deceased in which she has stated that Kalipad Vishwas threatened her saying that whatever happened has happened and not to disclose this fact to anyone is admissible in evidence under Section 32 of the Indian Evidence Act? Learned counsel for the accused/appellants argued that such part of the dying declaration of the deceased is admissible in evidence which relates to the cause of death of the deceased. Since this part of the dying declaration of deceased Archana Sarkar does not relate to the cause of her death, it is not admissible in evidence. Section 32 and Section 32(1) of the Indian Evidence Act reads thus: "32. Statements, written or verbal, of relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases: (1) When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question." The reading of the provisions of Section 32 along with these words or as to any of the circumstances of the transaction which resulted in his death used in this Section 32(1) makes it clear that the part of the dying declaration of the deceased mentioned above is admissible under this clause of Section 32 of the Evidence Act because the deceased wanted to give dying declaration regarding the cause of death by setting her on fire by her husband and in that connection accused Kalipad threatened her to not to disclose this fact to anyone in order to cause disappearance of the evidence of the commission of the offence and in order go give the false evidence just to cause disappearance of the evidence of the murder of the deceased so that the crime committed by accused Arun Sarkar brother-in-law of accused Kalipad, does not come to light and he is saved from the legal punishment. This question came up before the Hon'ble Apex Court for interpretation in the matter of Patel Hiralal Joitram Vs. State of Gujrat10 and the Apex Court in para 28 of the judgment observed thus: "The above provision relates to the statement made by a person before his death. Two categories of statements are made admissible in evidence and further made them as substantive evidence. They are: (1) His statement as to the cause of his death; (2) His statement as to any of the circumstances of the transaction which resulted in his death. The second category can envelope a far wider amplitude than the first category. The words "statement as to any of the circumstances" are by themselves capable of expanding the width and contours of the scope of admissibility. When the word "circumstances" is linked to "transaction which resulted in his death" the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub-section. When the word "circumstances" is linked to "transaction which resulted in his death" the sub-section casts the net in a very wide dimension. Anything which has a nexus with his death, proximate or distant, direct or indirect, can also fall within the purview of the sub-section. As the possibility of getting the maker of the statements in flesh and blood has been closed once and for all the endeavour should be how to include the statement of a death person within the sweep of the sub-section and not how to exclude it therefrom. Admissibility is the first step and once it is admitted the Court has to consider how far it is reliable. Once that test of reliability is found positive the Court has to consider the utility of that statement in the particular case." After following the decisions of the Apex Court passed in Sharad Birdhichand Sarda Vs. State of Maharashtra and in Rattan Singh Vs. State of H.P. the Apex Court in the case of Patel Hiralal Joitram10 (supra) observed that clarificatory statement elicited from deceased by PW -13 Bhagwat the Investigating Officer was marked as EX.67. If reads thus: "In my statement I have given the name of the accused father as Lalchand which has been stated inadvertently. Lalchand is the name of the father-in-law of my sister and hence I remembered it inadvertently. The name of the father of Hiralal is really Joitabhai. He is the son-in-law of Nanavati Soap Factory" and this part of the dying declaration was considered by the Hon 'ble Apex Court as relating to one of the circumstances of the transaction which resulted in his death. Applying the same principle in the present case the above portion of the dying declaration of the deceased that accused Kalipad threatened her stating that whatever happened has happened and now she should not disclose this fact to anyone otherwise her daughter and brother would be murdered, is admissible under Section 32(1) of the Evidence Act being the circumstance of the transaction which resulted in her death as has been observed by Hon 'ble the Apex Court that the scope of this provisions is wider than relating to the cause of death. 37. 37. In view of the above, the portion of the dying declaration of the deceased that accused Kalipad had given the threat to the deceased not to disclose the commission of the crime is admissible under Section 32 of the Indian Evidence Act. Moreover, the deceased disclosed this fact to her sister PW -1 Dhulubai in her oral dying declaration and PW -1 Dhulubai has proved that Archana Sarkar on enquiry by her, disclosed that the accused Kalipad threatened her not to disclose the true facts and that is why she could not disclose this fact before the Magistrate at Jagdalpur. 38. Now coming to the threat given by accused Kalipad to deceased Archana Sarkar not to disclose the true facts to anyone otherwise her daughter and brother would be murdered, is concerned, whether it comes under the mischief of Section 201 of the Indian Penal Code. Section 201 of the Indian Penal Code reads thus: 201. Causing disappearance of evidence of offence, or giving false information to screen offender - whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false. In order to attract the provisions of Section 201 of the Indian Penal Code the essential ingredients are that (1) the specific offence must have been committed, of which the accused must has the knowledge or he has reason to believe that the offence has been committed; (2) then he causes any evidence of the commission of that offence to disappear; (3) with the intention of screening the offender from the legal punishment; and (4) or with the intention to give an information respecting the offence which he knows or believes to be false. In the present case, accused Kalipad was knowing that the deceased was set on fire by accused Aiun Sarkar, that is why he threatened Archana Sarkar not to disclose the true facts to anyone and the intention of the accused Kalipad Vishwas was also clear that he wanted to screen his brother-in-law from legal punishment. The question remains as to whether the act of the accused amounted to causing disappearance of evidence of the commission of that offence. 39. The question remains as to whether the act of the accused amounted to causing disappearance of evidence of the commission of that offence. 39. Now it is to be seen as to whether the term "causing disappearance of evidence" has been used by the legislature with regard to causing disappearance of only physical object or the definition of this section includes also the act of the accused threatening any person not to give the correct information or to give false information so that the real offender who committed the crime is screened or his act is screened from coming into the notice of others. The word evidence is used in the section in the sense that anything that is likely to make the crime evident or manifest. Again the words causing disappearance imply some active exertion in that direction. The accused must be instrumental in the disappearance of evidence of a crime. 40. In the present case, at the time of the commission of the heinous crime only accused Arun Sarkar and deceased Archana Sarkar were present in the house and in order to bring home the guilt against accused Arun Sarkar the only witnesses available was Archana Sarkar and on the basis of her statement only, the crime committed by accused Arun Sarkar could have been brought to light, but on account of the threat given by accused Kalipad the deceased gave false dying declaration (Ex. P 12) that she caught the fire accidentally from stove while cooking the food. The evidence regarding commission of crime by accused Arun Sarkar disappeared and the Police did not register the case thinking that this was accidental case. This act of the accused is also covered under clause (4) mentioned above because he made Archana Sarkar to give false information regarding the crime committed against her. Only when the deceased came out of the clutches of the accused and was taken to Durg Hospital that she disclosed the true facts. On the basis of the statement of the deceased the case was registered and the accused was brought on book. Only when the deceased came out of the clutches of the accused and was taken to Durg Hospital that she disclosed the true facts. On the basis of the statement of the deceased the case was registered and the accused was brought on book. The intention of the legislature behind enactment of Section 201 of the Indian Penal Code appears to be very clear and a plausible interpretation of Section 201 is that the act of the accused must be such that the act of principal offender constituting the offence must disappear or any false information respecting the commission of the offence is given so that the evidence of the offence disappears or does not come to light. The oral statement made by the witness is also' evidence' as per the Evidence Act. The evidence can be oral or documentary. Section 59 of the Evidence Act lays down that all facts, except the contents of documents may be proved by oral evidence. Section 60 of the Evidence Act lays down that oral evidence must, in all cases, whatever, be direct. Therefore, in the context of this section 201 of the Indian Penal Code the oral evidence includes not only the physical or documentary evidence but also causing of disappearance of oral evidence with the intention to screen the offender or to give false information to cause disappearance of the evidence of the crime and that act also comes under the mischief of this Section. Therefore, the act of the accused in asking the deceased not to disclose the true facts threatening that otherwise her daughter and brother will be killed amounts to disappearance of evidence with the intention to screen the accused Arun Sarkar from the legal punishment for the offence of murder of the deceased. 41. In view of the above discussion, the appeal of accused/appellant Arun Sarkar has no substance as the findings of the learned trial Court holding the accused/appellant guilty of the offence under Section 302 of the IPC are based on the legal and convincing evidence available on record and the learned trial Court has properly appreciated the evidence. We do not find any illegality or infirmity in the judgment of the trial Court. Therefore, the appeal namely Criminal Appeal No. 2645 of 2000 filed by accused/appellant Arun Sarkar is liable to be dismissed and it is dismissed. 42. We do not find any illegality or infirmity in the judgment of the trial Court. Therefore, the appeal namely Criminal Appeal No. 2645 of 2000 filed by accused/appellant Arun Sarkar is liable to be dismissed and it is dismissed. 42. The appeal namely Criminal Appeal No. 2575 of 2000 filed by accused appellant Kalipad Vishwas has also no substance. The learned trial Court after believing the legal and convincing evidence of the prosecution reached the conclusion that accused Kalipad Vishwas has committed the offence punishable under Section 201 of the Indian Penal Code. We do not find any reason to interfere with the findings recorded by the learned trial Court. Therefore, the appeal of the accused appellant Kalipad Vishwas is also liable to be dismissed and it is dismissed. 43. In the result, both the appeals stand dismissed. Appeals Dismissed.