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2012 DIGILAW 961 (PAT)

Bilas Sah v. State of Bihar

2012-07-13

SHIVA KIRTI SINGH, VIKASH JAIN

body2012
JUDGMENT (Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH) Shiva Kirti Singh, Vikash Jain, JJ -The sole appellant has preferred this appeal against the Judgment and order dated 28th July, 1989 passed by Sessions Judge, Sitamarhi in Sessions Trial No. 216 of 1988 whereby the appellant has been convicted under section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life. 2. According to the prosecution case deceased Ram Pukar Mahto suffered burn injuries caused by his co-villager, the appellant, in the night between 22nd and 23rd. March, 1988 at their village Harnahiya situated under Shivhar police station in the then district of Sitamarhi. In injured condition Ram Pukar Mahto was taken by his relations and co-villagers to the Divisional Hospital at Shivhar and on getting information from the hospital the Officer-in-Charge of Shivhar police station,V.N. Thakur (P.W.14) went to the hospital and recorded the Fardbeyan (Exhibit-3) of injured Ram Pukar Mahto allegedly at 4.15 hours in the morning. The time has been seriously challenged by the defence which has alleged tampering by overwriting and that on closure scrutiny the document would show that the time of recording of fardbeyan was mentioned as 7.15 hours. The contents of the fardbeyan disclose that injured Ram Pukar Mahto, the deceased who subsequently died on the same day prior to 11 A.M. alleged that he was sleeping alone on a mat (Chatai) at his Darwaja and at about 11 P.M. he woke up when his whole body had started burning. As soon as he woke up he saw the appellant Bilas Sah standing there and the appellant ran away. By that time fire had spread to his whole body but still he ran behind the appellant. By the time he reached near the appellant’s house, he was badly burnt and fell down in a drain situated near the house of the appellant which contained water. Co-villager Kamal Raut (not examined), Janki Thakur (P.W.4), Bhikhar Sah (P.W.5) and his brother Ramautar Mahto (P.W.12) reached there and took him out from the drain. He disclosed to those persons that the appellant had put fire to his body. His brother Ramautar Mahto, Baidhnath Mahto (P.W.7) and Kapil Mahto (not examined) brought him to Shivhar Hospital. There he was put under treatment. He disclosed to those persons that the appellant had put fire to his body. His brother Ramautar Mahto, Baidhnath Mahto (P.W.7) and Kapil Mahto (not examined) brought him to Shivhar Hospital. There he was put under treatment. As per recital in the fardbeyan, the content of the fardbeyan was read over to him and finding the same to be true he put his thumb impression . The fardbeyan also bears the L.T.I. of Ramautar Mahto (P.W.12) and signature of the Sub- Inspector of Police, V.N. Thakur. 3. The formal F.I.R. (Exhibit-5) was drawn-up on 23-3-1988 allegedly at 5.00 hours under section 307 of the I.P.C. but later on the same was converted into section 302 of the I.P.C. because the injured informant as noted earlier died on the same day prior to 11.00 hours when the inquest report (Exhibit-7) was prepared in the Subdivisional Hospital, Shivhar. 4. After recording statement of witnesses and inspection of the place of occurrence and on completion of investigation charge-sheet was submitted against the appellant. After cognizance the case was committed to the court of Sessions where charge under section 302 of the I.P.C. was framed and read over to the appellant. On his plea of not guilty the court below held the trial and ultimately convicted the appellant as noted above. 5. The defence of the accused appears to be complete denial of charge leveled against him. 6. The prosecution has examined altogether 14 witnesses. However, the material witnesses are those whose presence are indicated in the F.I.R. They are P.W.4 Janki Thakur, P.W.5 Bhikhar Sah, P.W.7 Baidyanath Mahto, P.W.9 Bhadai Mahto who is father of the deceased and P.W.12 Ramautar Mahto who is brother of the deceased. P.W.3, Dr. Awadh Kishore has conducted autopsy and has proved the postmortem report (ext.2) P.W.14, A.S.I. Vivekanand Thakur is the main Investigating Officer. Later on S.I. Nagendra Prasad Singh (P.W.13) took over charge of investigation, merely received the postmortem report and later on handed over charge of investigation to another Sub-Inspector of Police who submitted charge sheet. 7. P.W.4, Janki Thakur is not related to the deceased. He has deposed in his chief that on the date of occurrence he woke up on hearing hulla and when he reached near a well close to shop of the appellant he found Ram Pukar Mahto in burning condition lying in a drain. 7. P.W.4, Janki Thakur is not related to the deceased. He has deposed in his chief that on the date of occurrence he woke up on hearing hulla and when he reached near a well close to shop of the appellant he found Ram Pukar Mahto in burning condition lying in a drain. He claims to have run away and come back to his Darwaja. He did not participate in taking out Ram Pukar Mahto from the drain or setting out the fire. According to him Ram Pukar Mahto did not disclose name of the person who had burnt him. He claims that he did not take Ram Pukar Mahto the deceased to Shivhar hospital. He has been treated as a hostile witness and subjected to cross-examination in respect of his statement made to the Investigating Officer. P.W.5 Bhikhar Sah also woke up on hearing hulla and saw Ram Pukar Mahto in burning condition in the drain near a well situated in front of the shop of the appellant. He with the help of others took out the injured from the drain. The injured disclosed that the appellant had burnt him. The injured was taken to Shivhar hospital and he died there. In cross-examination this witness has admitted that it was a dark night and he further deposed that Ram Pukar Mahto had also stated that due to darkness he could not identify two other persons. The house of this witness is situated east of the well. 8. P.W.7, Baijnath Mahto has claimed that injured Ram Pukar Mahto is his Mamera brother. He also woke up on hearing hulla and found Ram Pukar Mahto in burning condition in front of house of the appellant near a well. According to him Ram Pukar Mahto disclosed that appellant had set him to fire. According to this witness the injured was first taken to police station and from there he was taken to Sitamarhi. Later on the injured died. Although Sitamarhi in place of Sheohar hospital appears to be a slip of tongue but the statement that the injured was taken to police station is contrary to the prosecution case. In cross-examination he has denied his earlier statement made before the Investigation Officer that he had gone to Shivhar hospital along with others for getting the injured treated. Although Sitamarhi in place of Sheohar hospital appears to be a slip of tongue but the statement that the injured was taken to police station is contrary to the prosecution case. In cross-examination he has denied his earlier statement made before the Investigation Officer that he had gone to Shivhar hospital along with others for getting the injured treated. He denied his statement made before the I.O. that few days earlier daughter of the appellant had committed suicide by putting herself to fire and that the appellant had a suspicion that deceased Ram Pukar Mahto had illicit relationship with her. He has denied that such motive was alleged by him before the I.O. 9. P.W.9 Bhadai Mahto is father of the deceased. According to him the deceased was sleeping at Darwaja where this witness was also sleeping. He woke up on hearing hulla at about 11 A.M. in the night. The hulla was taking place at Darwaja of accused Bilas Sah. He went there running and saw his son Ram Pukar Mahto fallen in the drain and his body was on fire. The injured was taken out by Autar Mahto (Ramautar Mahto P.W.12). He claimed that Ram Pukar made a statement that accused Bilas had sprinkled kerosene oil and put fire to Ram Pukar. According to this witness the injured disclosed that there were three miscreants and out of them only accused Bilas Sah could be identified. Ram Pukar was taken to hospital on a cot where he died. He has further deposed that his son Ram Pukar Mahto did not have illicit relationlship with any one. The witness admitted that his eye site is poor and he was unable to identify the accused standing in the dock till he went quite close to him. In cross-examination he has also admitted that since 4 to 5 years that is much prior to the occurrence he has difficulty in hearing. He has also admitted that his son was sleeping on a mat made of straw and that the said mat was shown to the I.O. He claimed that the mat was in proper condition and still available in his house. His attention was drawn that he had not stated before the I.O. about sprinkling of kerosene oil on Ram Pukar Mahto and that out of three miscreants Ram Pukar identified the accused Bilas Sah. His attention was drawn that he had not stated before the I.O. about sprinkling of kerosene oil on Ram Pukar Mahto and that out of three miscreants Ram Pukar identified the accused Bilas Sah. The I.O. has admitted in cross-examination that such statement was not made to him by this witness during investigation. 10. The next material witness Ramautar Mahto, P.W.12 is own brother of deceased Ram Pukar Mahto. At the time of occurrence he claimed to be sleeping inside the house. He got up on hearing hulla and on reaching Darwaja of accused Bilas Sah he found his brother Ram Pukar Mahto fallen in the drain and flame was coming out from his body. According to him many persons came on hulla. 4-5 people took out Ram Pukar Mahto from the drain. According to him initially Ram Pukar was not in senses but later on he regained consciousness and disclosed that accused Bilas Sah had sprinkled kerosene oil and had set fire to him. He claimed to have no knowledge of the motive for the accused to do such an act. According to him the I.O. had recorded Beyan of Ram Pukar Mahto and at that time the latter was in his senses. He claimed to be present at the time of recording of Beyan which was read over by the I. O. and thereafter Ram Pukar Mahto put his left thumb impression on the fardbeyan. According to him also in the night of occurrence Ram Pukar was sleeping on a mat. He claimed to have shown the mat to the I.O. and it was in proper condition. 11. P.W.14, S.I. Vivekanand Thakur is the main investigating officer of this case. According to him on 23-3-1988 he received O.D. slip from Sheohar hospital. He went there and recorded fardbeyan of injured Ram Pukar Mahto. He read out the fardbeyan in presence of witness Ramautar Mahto and on finding the same correct, Ram Pukar put his thumb impression on the same. Ramautar Mahto also put his thumb impression on the fardbeyan. He has proved the fardbeyan as exhibit-3. He also recorded further statement of Ram Pukar Mahto and on examining his injury he prepared injury report which is ext.4. On coming back to the police station he drew up formal F.I.R.(Ext.5). Ramautar Mahto also put his thumb impression on the fardbeyan. He has proved the fardbeyan as exhibit-3. He also recorded further statement of Ram Pukar Mahto and on examining his injury he prepared injury report which is ext.4. On coming back to the police station he drew up formal F.I.R.(Ext.5). He has been cross-examined mainly on two points: (1) in respect of condition of the injured and (2) in respect of time of recording of the fardbeyan. The defence fhas suggested that initially the time of recording fardbeyan was written as 7.15 hours both in the formal heading written in English and also in the body of Fardbeyan written in Devnagri but subsequently by interpolation he changed it to 4.15 hours. The I.O. has denied the same. The defence has further attempted to make out a case that the injured Ram Pukar Mahto was unconscious or not in a position to make any statement and hence the I.O. did not request any doctor to witness the recording of the fardbeyan. The I.O. has admitted that he came to know that the condition of the deceased has become serious and hence for recording of dying declaration he made a request to a magistrate, the Anchal Adhikari and brought him to the hospital but dying declaration could not be recorded because by that time the injured was not in a position to make any statement. 12. The I.O. has claimed to have prepared the inquest report of the deceased which he has proved as Ext.7. He has also claimed to have found a match box containing match stick from a place near the drain where the injured had allegedly fallen. He has proved the seizure list as ext.6. In cross-examination he had admitted that he was not shown the mat on which the injured was allegedly sleeping and at the Darwaja he did not find any sign of burning. 13. In order to substantiate and bring home the charges in a criminal case the prosecution is required to establish beyond reasonable doubt the time, place and the manner of occurrence.In the instant case the time of occurrence is alleged to be around mid night and several witnesses have given the time as 11 P.M. There is no contest on this issue nor any material to doubt the time of occurrence. However, the place of occurrence and the manner of occurrence as disclosed by the prosecution require closer scrutiny. The father of the deceased who claimed to be sleeping at the Darwaja where the deceased was also sleeping when he was subjected to fire, has not claimed to have seen his son burning at his Darwaja or to have heard any hulla at his Darwaja. In normal course of event the mat made of straw ought to have caught fire if the prosecution case is believed and if it is accepted that the deceased was sleeping on a straw mat at the time when he was put to fire. Admittedly the I.O. did not find any kind of burning at the Darwaja of the deceased. No mat was shown to him. The witnesses such as father and brother of the deceased have claimed that the mat did not suffer any damage and was in proper condition. This does not appear to be sound and probable. Hence the place where the deceased was allegedly put on fire as per his fardbeyan, has not been successfully established by the prosecution. 14. So far as manner of committing the crime is concerned, as per fardbeyan, the deceased alleged that when he woke up on experiencing heat of fire all over his body, he saw the appellant standing nearby and at that instant the appellant began to flee. Hence, he believed that appellant had set fire to him. In the fardbeyan it has been claimed that this was disclosed to the witnesses or co-villagers. However, as noticed earlier, the father and brother of the deceased have deposed that according to information from the deceased there were three miscreants out of whom he could identify only the appellant who sprinkled kerosene oil and set fire to the body of the deceased. There is no consistency in the two statements, one in the fardbeyan and other as given by father and brother of the deceased. There is no eye witness to corroborate the claim in the fardbeyan that the deceased was put on fire while he was sleeping at his Darwaja nor there is any witness to corroborate the identification of the appellant as one of the miscreants who sprinkled kerosene oil and set fire to the body of the deceased. There is no eye witness to corroborate the claim in the fardbeyan that the deceased was put on fire while he was sleeping at his Darwaja nor there is any witness to corroborate the identification of the appellant as one of the miscreants who sprinkled kerosene oil and set fire to the body of the deceased. Even if the version of the deceased is accepted, at best, he saw the appellant fleeing away. Admittedly, as per P.W.5, it was a dark night. There is no other witness to claim that he saw the appellant fleeing away from the Darwaja of the deceased towards his house. There is no evidence on record to suggest that kerosene oil was used for setting fire to the deceased. No can of kerosene oil was found near the place of occurrence and a match box seized by the I.O. was found near the drain where the deceased had fallen after sustaining burn injury and where the witnesses had seen the deceased for the first time when they came out on hulla. This suggests that the deceased suffered injuries by fire near the drain from where the match box was found. The prosecution has failed to give any cogent explanation as to why the deceased could not have raised hulla as soon as he was set on fire at his Darwaja where his father was also sleeping and why he did not try to put out the fire and save his life instead of running towards appellant’s house. 15. The I.O. has failed to give any explanation as to why the doctor was not asked to be present at the time of recording of the fardbeyan so that the court could have been satisfied about the mental condition and ability of the deceased to make a sensible statement. Admittedly, soon after the recording of alleged fardbeyan, the Magistrate who went to the hospital found the informant (the deceased) not in a position to make any statement. Although treating doctor has not been examined the time of inquest report being 11 hours, it is clear that the deceased suffered serious injury and was in critical condition. In such a situation the I.O. ought to have taken the precautions which are required to be taken for recording a dying declaration. Clearly that was not done in this case. Although treating doctor has not been examined the time of inquest report being 11 hours, it is clear that the deceased suffered serious injury and was in critical condition. In such a situation the I.O. ought to have taken the precautions which are required to be taken for recording a dying declaration. Clearly that was not done in this case. The time of recording the fardbeyan has been seriously challenged by the defence as noted earlier. On careful perusal of the fardbeyan (ext.3), we find obvious interpolation by way of over-writing at two places. In the heading of the fardbeyan the time 04/15 hours suffers from over-writing and it appears that 4 has been written subsequently over the number 7. In the body of the fardbeyan in the 4th line the word “ char “ has been written in Hindi alphabets by way of over-writing over the word “ Saat”. The I.O. has insisted that there was no over-writing or interpolation but such claim appears to be false. Whatever may be the reasons for such interpolation, it makes the fardbeyan unreliable as a dying declaration. If, in fact, the fardbeyan was recorded at 7.15 A.M., then the Executive Magistrate had visited the hospital earlier and admittedly he found the injured incapable of making any statement. In our view, the learned counsel for the appellant has rightly relied upon judgment of the Supreme Court in the case of Shaikh Rafiq & another Vrs. State of Maharashtra, reported in 2008 Crl.L.J. 1592 in support of his submission that the fardbeyan is not reliable as a dying declaration. 16. Although it is not necessary to allege motive if the prosecution is able to bring home criminal charge by reliable evidence but in a case of present nature it is highly surprising as to why the appellant will commit such a crime without any motive. Before the I.O. some motive was alleged by some of the witnesses but consciously such allegations were withheld during deposition in Court. The defence cross-examined P.W.7 in respect of the alleged motive. As per the suggestion the daughter of the appellant had committed suicide by putting herself on fire on account of suspicion of illicit relationship between her and the deceased. The defence cross-examined P.W.7 in respect of the alleged motive. As per the suggestion the daughter of the appellant had committed suicide by putting herself on fire on account of suspicion of illicit relationship between her and the deceased. Finding of the match box near the drain and the extent of burn injury extending from head to toe except the dorsum of the feet, indicates and suggests that fire was set with some preparation and deliberation. Throwing of a burning match stick in a hurried manner may cause injury to a large part of body wherever it comes into contact with the apparel on the body of the victim but it is unlikely to cause more than 95% burn as was found in this case by the doctor. There is no material to support the argument on behalf of appellant that the deceased might have committed suicide near the house of the appellant for reasons best known to him but in view of facts noticed and discussed above, we find that the prosecution has not been able to prove the charge against the appellant beyond reasonable doubts. The fardbeyan is not reliable as a dying declaration. There is no other evidence to support identification of the appellant as the miscreant. Even, according to fardbeyan the deceased made out the identification when he was burning and the miscreant was fleeing away. The night was admittedly dark. On the basis of such single identification it does not appear proper to sustain the conviction of the appellant specially when fardbeyan has been found to be unreliable as a dying declaration. 17. Hence, the judgment and order under appeal is set aside. The appellant is held entitled to acquittal from the charge under section 302 of the I.P.C. The appeal is, thus, allowed. Since the appellant is on bail, he shall stand discharged from the liability of the bail bonds.