CAV JUDGMENT 1. Both the above stated criminal appeals have been preferred against common judgment of conviction and order of sentence dated 06.04.2000 passed by learned 3rd Additional Sessions Judge, Begusarai in Sessions Trial No. 410 of 1986/67 of 1999 by which and whereunder he convicted the appellants and one Sita Devi for the offence punishable under Section 307/34 of the Indian Penal Code and sentenced the appellant in Criminal Appeal No. 124 of 2000 to undergo rigorous imprisonment for seven years and to pay a fine of rupees twenty five thousand for the offence punishable under Section 307/34 of the Indian Penal Code and in default of payment of fine, he was ordered to further undergo imprisonment for a period of one year. The learned Additional Sessions Judge sentenced the appellant in Criminal Appeal No. 146 of 2000 to undergo imprisonment for three years only under the above stated section. The learned Additional Sessions Judge directed that out of the fine, the informant should be paid rupees twenty thousand for her subsistence and rehabilitation. Since both the aforesaid criminal appeals have arisen out of common judgment of conviction and order of sentence and were heard together, a common judgment is being passed in both the above stated criminal appeals. 2. I may notice the case of prosecution and facts of the case on the basis of materials available on the record. 3. On 29.04.1986 at about 11:00 P.M, P.W. 2 Kranti Devi gave her Ferdbeyan to S.I., Barauni police station in injured condition at Nazarat Hospital, Mokama to this effect that her marriage had taken place 10 to 12 years ago and after five to six years of her marriage, her husband solemnized his another marriage and started torturing her on account of which she started residing at her parental home. She further stated that on the preceding Saturday she came to know that her husband had come to his house and having got the aforesaid information, she went to her matrimonial home but her husband did not talk with her. She further stated that on the preceding Saturday she came to know that her husband had come to his house and having got the aforesaid information, she went to her matrimonial home but her husband did not talk with her. She, anyhow, spent the night in her matrimonial home and in the next morning, her husband ordered her to go away and to do whatever she liked but she refused to leave the house whereupon her mother in law, the second wife of her husband and her father in law started abusing her but even then she did not leave her matrimonial home and slept on a thatched bed and all her in laws also slept. As there had been storm in the night, the informant felt some cold and woke up. She asked her mother in law to provide some clothes to cover her body but her mother in law started abusing her and in the meantime, her husband also woke up and came out with his second wife and her father in law also came there. Her husband started assaulting her upon which she told that it would be better to shoot her dead. She further stated that her mother in law and second wife of her husband brought a dibia from the house and sprinkled kerosene oil and lit the match on her body as a result of which she started burning and cried for help. In the meantime, her Nandosi came there and tried to extinguish the fire. She became unconscious and on the next day, when she regained her consciousness, she found herself in Nazarat hospital where her Nandosi and mother in law were also present and they were telling to a police official that she was caught in fire while cooking meal. She also stated that a police official took her thumb impression but she could not disclose anything out of fear. She claimed that her husband and other in laws tried to commit her murder by setting her on fire. 4. On the basis of aforesaid ferdbeyan, Barauni P.S. Case No. 135 of 1986 for the offences under Sections 324, 307/34 of the Indian Penal Code was registered on 30.04.1986 and on the same day formal first information report for the above stated offences was drawn up against the appellants and others. 4. On the basis of aforesaid ferdbeyan, Barauni P.S. Case No. 135 of 1986 for the offences under Sections 324, 307/34 of the Indian Penal Code was registered on 30.04.1986 and on the same day formal first information report for the above stated offences was drawn up against the appellants and others. The matter was investigated by the police and after completion of investigation, police submitted charge sheet for the offences punishable under Sections 324, 307/34 of the Indian Penal Code against the appellants and one Sita Devi whereas one accused, namely, Ram Khelawan Singh was not sent up for trial. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. 5. All the appellants and co-accused, Sita Devi were put on trial and accordingly, charges under Sections 307/34 and 324 of the Indian Penal Code were framed against them. The appellants and co-accused, Sita Devi denied the charges and accordingly, the prosecution led its evidence. 6. In course of trial, prosecution examined, altogether, ten witnesses. Besides it, prosecution also got exhibited injury report as Exhibit-1, formal first information report as Exhibit-2, Ferdbeyan as Exhibit-3, signature of one Gajendra Rai on Ferdbeyan as Exhibit-4 and case diary as Exhibit-5. The statements of appellants and co-accused, Sita Devi were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence and appellant in Criminal Appeal No. 146 of 2000 specifically stated that she is wife of one Ramashish Singh. 7. After recording the statements of appellants and co-accused Sita Devi, Sita Devi died as a result of which proceeding against her was dropped by the impugned judgment itself. 8. The defence also examined two witnesses and also got exhibited sanha no. 807 dated 28.07.1986 as Exhibit-A, carbon copy of Ferdbeyan dated 28.04.1986 recorded by A.S.I, D. D. Pandey, Mokama police station as Exhibit-B and letter typed by one Md. Ikbal, typist of Mokama hospital as Exhibit-C. 9. The learned trial court, having analyzed the materials available on the record passed the impugned judgment of conviction and order of sentence in the manner as stated above. 10. Ikbal, typist of Mokama hospital as Exhibit-C. 9. The learned trial court, having analyzed the materials available on the record passed the impugned judgment of conviction and order of sentence in the manner as stated above. 10. Learned counsel appearing for the appellants assailed the impugned judgment of conviction and order of sentence arguing that learned trial court based his findings on surmises and conjectures and as a matter of fact, prosecution could not succeed to prove its case beyond all shadow of reasonable doubts. He further submitted that first Ferdbeyan of informant (P.W. 2) was recorded by A.S.I., Mokama police station on 28.04.1986 at about 06:00 P.M. and in the aforesaid Ferdbeyan, the P.W. 2 specifically stated that she was caught in fire while cooking meal. He further submitted that aforesaid fact is clearly established by Exhibit-A and Exhibit-B but learned trial court doubted the genuineness of Exhibit-A and Exhibit-B on the ground that aforesaid documents could have been manufactured and P.W. 2 has, nowhere, stated to have made statement before A.S.I., Mokama police station. He further submitted that P.W. 2 has admitted in her second Ferdbeyan that when she regained her consciousness, one police official took her thumb impression and, therefore, it is an admitted position that first Ferdbeyan of P.W. 2 was recorded by A.S.I. of Mokama police station. He further submitted that when informant was examined by the learned trial court in course of trial as P.W. 2, she stated a new story saying that while she was sleeping, a storm came as a result of which Dia fell on her and she was caught in fire. Learned counsel for the appellants further submitted that aforesaid statement of P.W. 2 was recorded on 06.04.1993 and she was declared hostile at the prayer of prosecution and she also denied to have made statement before the police that her husband and in laws set her on fire. He further submitted that after more than two years, P.W. 2 was recalled and after that on 07.07.1995 she stated that her husband and in laws set her on fire. He further submitted that learned Additional Sessions Judge failed to appreciate the scope of Section 138 of the Evidence Act and erroneously relied upon the statement of P.W. 2 and, accordingly, learned trial court committed error in convicting the appellants. He further submitted that learned Additional Sessions Judge failed to appreciate the scope of Section 138 of the Evidence Act and erroneously relied upon the statement of P.W. 2 and, accordingly, learned trial court committed error in convicting the appellants. Learned counsel for the appellants further submitted that Investigating Officer was not examined by the prosecution and the learned trial court illegally discarded the evidence adduced on behalf of the defence and, therefore, the impugned judgment of conviction and order of sentence cannot be sustained in the eye of law. 11. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that the learned trial court passed a very reasoned judgment and there is no ground to set aside the impugned judgment of conviction and order of sentence. He further submitted that no doubt, P.W. 2 was re-examined under Section 138 of Evidence Act but admittedly, P.W. 2 was re-examined with prior permission of the court and defence got an opportunity to cross-examine P.W. 2 and, therefore, no illegality was committed by the learned trial court. He further submitted that P.W. 2 has fully supported her case and stated that her husband and Nandosi allured her to provide cash and sewing machine and also assured her to get constructed a house. He further submitted that P.W. 2, specifically, stated that due to above stated assurance, she changed her statement before the court but when her husband and Nandosi did not fulfil their promise, she again approached the court and unfolded real story before the court and, therefore, there was nothing before the trial court to disbelieve the aforesaid event of circumstances. 12. As I have already stated that altogether, ten prosecution witnesses were examined by the prosecution in course of trial and out of the aforesaid ten prosecution witnesses, P.W. 1 Bindeshwari Devi is mother of P.W. 2, Kranti Devi and admittedly, P.W. 1 is not an eye witness of the alleged occurrence rather she came to know about the alleged occurrence from her son Pramod Kumar (P.W. 5) and having got the aforesaid information, she came to hospital where she found P.W. 2 and noticed her injuries. She derived knowledge about the manner of occurrence from P.W. 2. She admitted in her examination in chief that the alleged occurrence took place on Sunday whereas she met her daughter on Tuesday. She derived knowledge about the manner of occurrence from P.W. 2. She admitted in her examination in chief that the alleged occurrence took place on Sunday whereas she met her daughter on Tuesday. 13. P.W. 5 Pramod Kumar is brother of P.W. 2 and he claimed himself to be an eye witness of the alleged occurrence. This witness stated that on 27.04.1986, he had gone to the house of his Fua and from there he was going to meet her sister Kranti Devi but while he was on his way, he heard the noise coming out from his sister’s house and he went there and saw that appellant, Chandra Shekhar Singh and Ram Khelawan Singh were assaulting his sister, Kranti Devi and in the meantime, the mother in law and Sautan of Kranti Devi brought burning Dia and sprinkled kerosene oil on her body and also set her on fire. He also stated that he tried to extinguish the fire and beside him, Ramnandan, Rajendra, Shekhar Singh, Shankar Singh, Nage Singh, Baleshwar Singh and Ram Ashish Singh also tried to extinguish the fire. He also stated that injured Kranti devi was brought to Mokama hospital by them. 14. P.W. 6 Nago Singh, P.W. 7, Ramnandan Singh, P.W. 8, Ramshekhar Singh and P.W. 9, Baleshwar Singh also claimed themselves to be eye witness of the alleged occurrence. Out of the aforesaid prosecution witnesses, P.W. 5 Pramod Singh and P.W. 7 Ramnandan Singh are resident of village Paspura whereas P.W. 6 and P.W. 9 are co-villagers of appellants and P.W. 8 is resident of village Ramdiri Nahti Tola and, therefore, it is apparent that P.W. 5 to P.W. 7 and P.W. 9 are chance witnesses. Similarly, P.W. 6 and P.W. 8 also claimed themselves to be chance witness. 15. P.W. 4 and P.W. 10 are formal witnesses and they have stated nothing in respect of the alleged occurrence. 16. P.W. 3 is doctor who examined P.W. 2 on 28.04.1986 at about 10:00 A.M. This witness stated that he examined and admitted P.W. 2 in hospital and at the time of admission, she was conscious and talking. He found burn injury in front of chest and abdomen, right arm, left arm, forearm and small part of back and neck of P.W. 2. He opined that the burn injuries were grievous in nature caused by flame burns. He found burn injury in front of chest and abdomen, right arm, left arm, forearm and small part of back and neck of P.W. 2. He opined that the burn injuries were grievous in nature caused by flame burns. This witness proved the injury report of P.W. 2 as Exhibit-1. This witness stated that if kerosene oil is poured over a human body and fire is caught by matches such an injury may be caused. 17. P.W. 2, Kranti Devi is informant as well as victim of this case. She was examined by the trial court on 06.04.1993 i.e. after seven years of the alleged occurrence and in her examination in chief, she gave completely go-bye to prosecution case saying that while she was sleeping in the courtyard of her matrimonial home, Dia fell on her due to storm as a result of which she was caught in fire. This witness was declared hostile by the prosecution and when she was cross examined by the prosecution, she denied to have made statement before the police to this effect that she was set on fire by her husband and other in laws. This witness was discharged on 07.04.1993 but again a petition was filed on behalf of the prosecution praying therein to recall this witness for re-examination. Accordingly, the learned trial court recalled this witness and after that she was re-examined on behalf of the prosecution on 07.07.1995 i.e. after two years and three months from the date of her first examination. In her re-examination, she supported her Ferdbeyan (Exhibit-3) and stated that her mother in law and Sautan brought Dia and sprinkled kerosene oil and also lit fire on her body and at the time of alleged occurrence, her husband and father in law had caught hold of her. She also stated that her Nandosi tried to extinguish the fire and in the meantime, Nago Singh (P.W. 6), Shankar, Ramashish Singh, Baleshwar Singh (P.W. 9), Gajendra, Singh, Ram Shekhar Singh (P.W. 8), Ramnandan Singh (P.W. 7) and Pramod Singh (P.W. 5) also came there. She also stated that having got the burn injury she became unconscious and on the next day when she regained her consciousness, she found herself in Padri hospital, Mokama. She also stated that having got the burn injury she became unconscious and on the next day when she regained her consciousness, she found herself in Padri hospital, Mokama. She also stated that when she regained her consciousness, she found her mother in law, Nandosi and doctor and her mother in law was telling to doctor that she was caught in fire while she was cooking meal but she told the doctor that her mother in law, father in law and husband had set her on fire. She also stated that police came there and she disclosed before the police that her mother in law, father in law, husband and her Sautan set fire on her body and her statement was recorded by the police and after that she put her thumb impression on her statement. She also admitted that when for the first time her statement was recorded in the court, she changed her statement because her husband and Nadosi had assured her to give rupees 15000/- and one sewing machine and also assured her to get constructed a house and furthermore, they had threatened her to change her statement. 18. On perusal of the evidence of prosecution witnesses, I find that P.W. 6, P.W. 7, P.W. 8, P.W. 9 and P.W. 10 claimed to have seen the alleged occurrence but P.W. 2 nowhere stated the name of aforesaid prosecution witnesses in her Ferdbeyan (Exhibit-3) and the aforesaid prosecution witnesses admitted that they had not made any statement before the police. Therefore, it is clear that the aforesaid prosecution witnesses made their statement first time in the court. The defence asked a specific question from P.W. 2 as to whether she had named the above stated witnesses at the time of recording her Ferdbeyan or not and in the reply of aforesaid question, P.W. 2 stated that she had named the aforesaid prosecution witnesses in her Ferdbeyan. Admittedly, the Investigating Officer has not been examined and moreover, Exhibit-3 reveals that P.W. 2 had not named the aforesaid P.W. 6 to P.W. 9 in her Ferdbeyan and, therefore, in my view, no reliance can safely be placed upon the deposition of aforesaid prosecution witnesses no. 6 to 9. 19. Admittedly, the Investigating Officer has not been examined and moreover, Exhibit-3 reveals that P.W. 2 had not named the aforesaid P.W. 6 to P.W. 9 in her Ferdbeyan and, therefore, in my view, no reliance can safely be placed upon the deposition of aforesaid prosecution witnesses no. 6 to 9. 19. Now only material witness is P.W. 2 who admittedly, not supported the prosecution case when she was first time examined by the trial court on 06.04.1993 and before the trial court she stated that she was caught in fire accidentally. However, after two years and three months of the aforesaid first statement, she was recalled and re-examined by the court and then she supported her Ferdbeyan (Exhibit-3). She stated before the trial court in her re-examination that her husband and Nandosi had given assurance to provide cash and sewing machine to her and also pressurized her to change her statement and that was the reason when she was first time examined by the court, she changed her statement. The learned trial court relied upon the above stated statement of P.W. 2 and passed the judgment of conviction and order of sentence. 20. According to Exhibit-3, the alleged occurrence took place in the night of 27.04.1986 and the P.W. 2 was brought to hospital in the morning of 28.04.1986 and Ferdbeyan (Exhibit-3) of P.W. 2 was recorded around 06:00 P.M. of 28.04.1986. P.W. 3 examined P.W. 2 on 28.04.1986 at about 10:00 A.M. The prosecution witnesses admitted in their depositions that P.W. 2 was brought to hospital in the morning of 28.04.1986 and, therefore, it is established that P.W. 2 had already been admitted in hospital in the morning of 28.04.1986. Exhibit-A, Sanha no. 807 dated 28.07.1986 reveals that one D.D. Pandey, A.S.I., Mokama police station recorded Ferdbeyan of P.W. 2 and Exhibit-B, the carbon copy of Ferdbeyan of P.W. 2 reveals that her Ferdbeyan was recorded on 28.04.1986 at about 06:00 PM in Nazarat Hospital, Mokama. Exhibit-B reveals that in the aforesaid Ferdbeyan, P.W. 2 disclosed that while she was cooking meal she was caught in fire accidentally. Exhibit-B reveals that in the aforesaid Ferdbeyan, P.W. 2 disclosed that while she was cooking meal she was caught in fire accidentally. The learned trial court discarded Exhibit-B on the ground that P.W. 2 has nowhere admitted this fact that prior to recording of Exhibit-3, her statement was recorded by police but I am not at all in agreement with the aforesaid finding of learned trial court because P.W. 2 has admitted in Exhibit-3 that while she was in nazarat hospital one police official came and took her thumb impression and her mother in law as well as Nandosi disclosed that she was caught in fire accidentally. Therefore, it is established that prior to recording of Exhibit-3 an information regarding the alleged occurrence had already been given to police and on the basis of aforesaid information, Sanha no. 807 dated 28.07.1986 was registered. Therefore, it cannot be said that Exhibit-A and B were engineered and manufactured later on. 21. Admittedly, when P.W. 2 was re-examined, she admitted that on earlier occasion she had disclosed before the court that she was caught in fire accidentally but she made the aforesaid statement on account of allurement and threatening given by her husband as well as Nandosi. The aforesaid explanation came first time on 07.07.1995 i.e. after two years and three months of recording first statement of P.W. 2. The learned trial court relied upon the aforesaid evidence of P.W. 2 but did not take pain to put the aforesaid evidence before the appellants at the time of recording their statements under Section 313 of the Cr.P.C. and, therefore, I am of the opinion that the appellants could not get an opportunity to counter the aforesaid explanation of P.W. 2 and non putting of the aforesaid circumstance before the appellants in course of recording their statements under Section 313 of the Cr.P.C. was fatal to the prosecution case. No doubt, mere on the ground of technicalities a culprit cannot be escaped but recording of statement under Section 313 of the Cr.P.C. is not only a formality and any failure to put any circumstance appearing in the evidence against the accused is fatal to the prosecution case and in the instant case, the learned court below failed to put the aforesaid evidence before the appellants while recording their statements under Section 313 of the Cr.P.C. and the appellants could not get an opportunity to explain the above stated circumstance appearing in evidence against them and, therefore, the aforesaid failure on the part of learned trial court has seriously caused prejudice to the appellants. Admittedly, the learned trial court accepted the statement of P.W. 2 recorded in her re-examination after considering her above stated explanation and, therefore, in my view, the appellants could not have been convicted by the learned trial court only on the basis of statement of P.W. 2 recorded in course of re-examination. 22. On the basis of aforesaid discussions and after considering the evidence available on the record, I find that prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and the appellants are entitled to get the benefit of doubt and accordingly, both the above stated criminal appeals are allowed and impugned judgment of conviction and order of sentence are hereby set aside. 23. In result, the appellants are acquitted of the charges giving benefit of doubt to them. The appellants are on bail. They are discharged from the liabilities of their respective bail bonds.