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2004 DIGILAW 157 (PAT)

Bromeshwar Prasad v. Nilam Devi. . . . . App.

2004-02-06

B.N.P.SINGH, INDU PRABHA SINGH

body2004
Judgment I.P.Singh and B.N.P.Singh JJ. 1. All the three appellants have been convicted under section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. Prosecution case, in short, is that on 19.10.1997 at about 11 A.M. while the informant Usha Devi was in her house, appellant Kawal Devi, mother-in-law appellant Bromeshwar Prasad, brother-in-law and his wife Nilam Devi started abusing her. It has been alleged that appellant Kawal Devi thereafter stated that the informant was incompetent in household work and she should be killed. On this appellant, Bromeshwar Prasad and his wife Nilam entered in her room and they all caught hold of her. Appellant Kawal Devi poured Kerosene oil on her body and appellant Bromeshwar Prasad set fire to her Sari from match stick. Thereafter they all caught her for some time and after that they came out of the house and bolted the door. The informant was burning inside the house and she was crying for help but the door could not be opened and her Sari completely burnt and she fell down on the ground. She started crying and also tried to open the door. After some time door was opened and neighbours assembled inside the house. The husband of Usha Devi, P.W. 4 was not present and he came after some time and having seen the informant Usha in burnt condition he went to call the police. Police came and recorded her statement at about 12.30 on the same day. The further case of the prosecution is that the appellants used to assault her for quite some time and were also threatening her to kill. They were also trying to drive her out from the house but as she did not leave the house they finally set her on fire with intention to kill her. Thereafter she was taken to hospital where P.W. 5 treated her and gave her first aid and referred her to the Patna Medical College and Hospital. She died after 45 days of the occurrence on 3.12.1997. On the basis of her Fardbeyan the police registered a case under section 307/34 against the appellants. After the informant died section 302/34 of the Indian Penal Code was also added. Police after investigation submitted charge sheet and on the basis of report submitted cognizance was taken. She died after 45 days of the occurrence on 3.12.1997. On the basis of her Fardbeyan the police registered a case under section 307/34 against the appellants. After the informant died section 302/34 of the Indian Penal Code was also added. Police after investigation submitted charge sheet and on the basis of report submitted cognizance was taken. The case was committed to the court of sessions and ultimately the trial concluded with the result as stated above. The appellants pleaded not guilty. 3. Prosecution in support of its case examined altogether 9 witnesses including Dr. P.W. 5. P.W. 1 is Riyajul Haque. P.W. 2 is Ahmadi Khatoon. She is the wife of P.W. 1. P.W. 3 is Prabha Devi, mother of the victim Usha Devi. She has not supported the case of the prosecution and has been declared hostile. P.W.4 is Kameshwar Prasad. He is husband of the victim Usha Devi. He has also not supported the case. P.W. 5 is Dr. Sada Sheo Pandey. He examined the injured. P.W. 6 is Bebi Devi. She is the sister of the victim. She has also not supported the case of the prosecution and has been declared hostile. P.W. 7 is Hanuman Ram, Investigating Officer. P.W. 8 is Keshar Choudhary a formal witness who has proved Police Station Diary entry. P.W. 9 is Mukund Prasad Singh. He is also a formal witness who has proved post mortem report. 4. P.W. 1 has stated that the occurrence took place at 10 A.M. He was inside his house. Hearing some noise he came out and saw the victim burning and she was crying. According to him, her Sari was burning. He and his wife extinguished the fire on the body of Usha Devi. They found burnt injury on her person. They saw victim naked as her clothes had been burnt and ladies took her inside the house. He has also stated that she herself walked to her room. He has also stated that there was some quarrel with her in-laws and husband P.W. 4 in the morning. P.W. 2 wife of P.W. 1 has also fully corroborated the evidence of P.W. 1. He has also stated that she herself walked to her room. He has also stated that there was some quarrel with her in-laws and husband P.W. 4 in the morning. P.W. 2 wife of P.W. 1 has also fully corroborated the evidence of P.W. 1. She has also mentioned about the quarrel the informant had with her inlaws: P.W. 3 mother of the victim and P.W. 6 sister of the victim both are hearsay witnesses and have simply stated that Usha Devi was married three years prior to the date of occurrence. They have not supported the case of prosecution and they have been declared hostile. P.W. 4 husband of the informant Usha Devi, though a material witness of the case who is a witness to the Fardbeyan which was treated as dying declaration, has not supported the case of the prosecution that the appellants poured kerosene oil on the body of his wife Usha Devi and she was set on fire by them with an intention to kill her. However, he has supported the prosecution case only to the extent that his wife gave her statement before the police in his presence and he signed over it as a witness. 5. P.W. 5, Dr. Sada Sheo Pandey examined Usha Devi on 19.10.1997 and found following injuries on her person: 1. Burn in both shoulders skin deep 4.5%. 2. Burn in face and neck skin deep 9%. 3. Burn in abdomen and chest 18%. 4. Burn in both thigh 18%. 5. Burn in perinial 1% and 6. Injury nos. 1,2,3,4 and 5 are 50.5% total burn. According to the doctor, nature of injury was grievous caused by burn and smell of K. oil was found. After treatment the patient was referred to Patna Medical College and Hospital for better treatment. 6. P.W. 7, Investigating Officer of the case has stated that on 19.10.1997 he recorded the Fardbeyan of the victim which was read over to her and thereafter the victim put her L.T.I. and her husband put his signature. According to him Fardbeyan Ext. 3 was recorded in the house of the informant and accordingly F.I.R. (Ext. 4) was drawn up. He has given the description of the place of occurrence. According to him the injured informant was found in a room sitting there. He immediately sent the injured to Dumraon hospital for treatment on the same day. According to him Fardbeyan Ext. 3 was recorded in the house of the informant and accordingly F.I.R. (Ext. 4) was drawn up. He has given the description of the place of occurrence. According to him the injured informant was found in a room sitting there. He immediately sent the injured to Dumraon hospital for treatment on the same day. Subsequently statement of the informant was also recorded. He has also stated that at that time he did not think that the informant would die of burn injury. He has also stated that P.W. 4 stated to him that when he returned home, he saw a gathering at his house. According to him P.W. 4 also stated that he had seen gathering at his house and his wife was lying naked with burn injury. He had also stated that the accused appellants had set fire to her body and the accused were not permitting him to take the injured to the hospital but any how he went to police station. P.W. 4, Kameshwar also stated that his wife informed him that the accused persons after assaulting her set fire to her body by sprinkling kerosene oil. Kameshwar had also stated to the investigating officer that accused persons used to instigate him to leave the informant and all the accused used to torture the informant. He obtained post mortem examination report from P.M.C.H. and when came to know that the informant died at P.M.C.H. Patna on 3.12.97 a charge under section 302 of the Indian Penal Code was added and lastly, he submitted charge sheet under the aforesaid section. When he reached at the place of occurrence he found the appellants absent. 7. Learned counsel for the appellants submitted that nobody was present in the house at the time of occurrence. This fact has been corroborated by P.Ws. 1 and 2. It has been also submitted that the investigating officer came and he did not see a single piece of burnt clothe and even a burnt Sari was not found at the place of occurrence. It has been further submitted that there is interpolation with regard to kerosene oil in the injury report submitted by P.W. 5 and the container of the K. oil was also not found in the room. It has been further submitted that there is interpolation with regard to kerosene oil in the injury report submitted by P.W. 5 and the container of the K. oil was also not found in the room. Further submission of the learned counsel is that the Fardbeyan recorded by the police shall not be considered as dying declaration because there is no certificate of the doctor about her mental condition and the fact stated in the Fardbeyan has not been corroborated by the witnesses as they have been declared hostile and did not support the case of the prosecution. On this point he has relied on a decision in the case of Panchdeo Singh vs. State of Bihar [2002(1) PLJR (SC) 110] in which it was held that a dying declaration itself can be treated as a substantive piece of evidence and can be the basis of an order of conviction and sentence without there being any corroboration, provided the same brings forth a sense of confidence and trustworthiness in the mind of the court. The confidence of court is the summumbonum and corroboration is the declaration. It has also been held that there is no format as such of dying declaration and a neatly structured and perfectly worded declaration may bring an adverse impression about its credibility and doctors certification about the mental fitness of the declarant is an essential requirement. It was also held that incidently, mere certification by a doctor at the end of the declaration that the patient is conscious while recording the statement, is not sufficient. Further it was held that instantly, in absence of doctors certification, the declaration is not a very safe piece of evidence to base conviction solely thereupon. Learned counsel has also relied on a decision in the case of State of Bihar vs. Dilip Kumar Srivastava [ 2002 (4) PLJR 199 ] in which it was held that the Magistrate not taking care to satisfy even himself that at the time of making dying declaration the deceased was in proper sense, thus possibility of a tutored statement to the Magistrate cannot be absolutely ruled out, specially when all the material witnesses were interested witnesses and hostile to the appellants. The prosecution case becomes dependent on circumstantial evidence, and unless the evidence is wholly consistent with the guilt of the accused and inconsistent with their innocence, they cannot be convicted. The prosecution case becomes dependent on circumstantial evidence, and unless the evidence is wholly consistent with the guilt of the accused and inconsistent with their innocence, they cannot be convicted. Learned counsel for the State Mr. Ashwani Kr. Sinha has submitted that the court below has rightly and confidently considered the Fardbeyan of the deceased as dying declaration under section 32(1) of the Evidence Act. He has further submitted that the court can safely convict the accused on such consistent and coherent statement of the injured. He has drawn our attention to a decision in the case of P.V. Radhakrishna vs. State of Karnataka [2003 SCC (Cri) 1679] in which it was held that dying declaration is only a piece of untested evidence as such it must, like any other evidence, satisfy the court that what is stated therein is the unalloyed truth and that it is absolutely safe to act upon it. If the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, then there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. 8. From the facts so stated there remains no doubt that the deceased Usha Devi received burn injuries on her person on the date of occurrence and on her cry villagers assembled and saw the deceased while she was burning. Thereafter she was taken to hospital. She had 50% burn injury and eventually she succumbed to her burn injury. The doctor (P.W. 5) found that smell of kerosene oil was coming out. It is true that nobody had seen the appellant pouring kerosene oil and setting fire to the deceased. The defence of the appellant is that Usha Devi burnt herself by pouring kerosene oil on her bedy since she was annoyed with the behaviour of her husband and in-laws. But, there is no such material to support this contention of the learned counsel, it can at best be taken as imagination of the accused appellants. It has also been asserted that the dying declaration is not reliable. But, there is no such material to support this contention of the learned counsel, it can at best be taken as imagination of the accused appellants. It has also been asserted that the dying declaration is not reliable. The submission of the learned counsel that the appellants were not present at the time of occurrence and as such it cannot be said that they had poured kerosene oil and set fire on the body of deceased, but it is obvious that after committing offence the accused will immediately leave the place of occurrence and this is also the case of the prosecution that after setting Usha Devi on fire the accused persons went away bolting the door from out side. The whole case is based on the statement of Usha Devi. Her statement was recorded by the police only 1 1/2 hours after the occurrence and it is apparent that the husband was not at the house when occurrence took place. However, when he came he saw his burnt wife and went to bring the police. The police came and recorded the statement of the victim and read over it - to her. The victim put her L.T.I. and her husband also put his signature. She was in full sense when she gave her statement before the investigating officer. P.W. 7 found her in sitting posture having Sari on her body. That apart, P.W. 1 has stated that after burning she herself walked to her room and that also shows that she had senses. Though P.W. 4, husband of the deceased Usha has not supported the case of prosecution fully and has been declared hostile but in paragraph 8 of his deposition he has clearly stated that her statement was recorded in his presence and he put signature over it. 9. It is well settled that the evidence of even a hostile witness is not discarded completely. The law provides that the evidence of such witness has to be taken on its face value and the prosecution is entitled to rely on those statement which supports the prosecution case. The statement of Usha is her dying declaration and admissible in evidence since this evidence is volunteered and is not tutored one. There is no suggestion put forth by the defence that she was tutored to make such statement to implicate the appellants. The statement of Usha is her dying declaration and admissible in evidence since this evidence is volunteered and is not tutored one. There is no suggestion put forth by the defence that she was tutored to make such statement to implicate the appellants. None of these appellants has whispered in their statement under section 313 of the Code of Criminal Procedure that the statement of the victim is not volunteered. From perusal of her statement it appears that her statement is true and if the same would not have been true her husband would not have put his signature over it. The fact that the appellants were not in their house and were out side and appellant Kawal Devi had gone to make cow dunk nearby as claimed but did not return even after hearing the cry of Usha although neighbours assembled in the house shows that the appellants committed some wrongful act. That apart police arrived 1 1/2 hours after the occurrence and the appellants were not available. This also shows their guilty behaviour. The dying declaration that is Fardbeyan is coherent and consistent. As such from the facts so disclosed in her statement and also from the evidence of the investigating officer and doctor it becomes clear that these appellants poured kerosene oil on the body of the victim and set her on fire with intention to cause her death. As such the appellants are guilty of commission of the murder of the victim Usha Devi. The court below is justified in placing reliance on the dying declaration of the victim to convict the appellants. We find no infirmity in the judgment under challenge.Accordingly, conviction and sentence passed by the court below are upheld and this appeal is dismissed.