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2014 DIGILAW 735 (PAT)

Zainutul Kubra v. State of Bihar

2014-07-03

AMARESH KUMAR LAL, DHARNIDHAR JHA

body2014
DHARNIDHAR JHA, J.:–These two criminal appeals arise out of judgment dated 13.2.19991 passed by the learned 5th Additional Sessions Judge, Munger in Sessions Case No. 751 of 1988 by which the five appellants of Cr. Appeal (D.B.) No. 128 of 1991 and their mother, the solitary appellant of the other criminal appeal bearing No. 92 of 1991, were held guilty of committing offences under Section 302/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. After having been found guilty the appellants were heard on sentence and by the order of sentence passed on the same day, i.e., the 13th February 1991, the learned trial Judge directed each of the appellants to suffer rigorous imprisonment for life under Section 302/34 of the Indian Penal Code while no separate sentence was passed on any of them for their conviction under Section 4 of Dowry Prohibition Act. 2. Some of the undisputed fats were that the deceased Simi Begum was married to P. W. 15 (Halim Muzaffar) who was a constable working in the Bihar Police. The deceased Simi Begum was aged about 20 years on the day of occurrence and she had given birth to two children-a daughter and a son- who were residing on the day of occurrence with her. It is also not disputed that the death of deceased Simi Begum had occurred under circumstances not natural. It also does not appear disputed that she died in hospital where she was rushed to be treated and she was bearing burn injuries almost all over her body to the extent of 88 degrees and none of the limbs of the lady, right from shoulder upto toes, were spared from being burnt. 3. In the background of the above undisputed facts what appears alleged by the prosecution as appears from the fardbeyan of deceased Simi Begum allegedly recorded on 14.8.1988, the date of occurrence, in Sadar Hospital, Munger was that while she was lying in her bed inside her room on 14.8.1988 at 6.30 a.m. along with her little children, appellant Zainutul Kubra with other appellants, namely, Kaishar @ Kashru, Raju, Anwar Mungeri and Razi Ahmad with Ali Gajnafar @ Polo Mungeri entered inside her room and appellant Zainutul Kubra and the elder brother of her husband, namely, Md Kaishar @ Kashru caught her and dragged her out of the room. They were all speaking that the lady was to be killed by being burnt. In the meantime, appellant Md. Ali Gajnafar @ Polo also came inside the room with a cane of 10 liters capacity which was containing 5 liters of kerosene and poured the inflammable material over her lady. The other accused persons kept holding the deceased. Appellant Zainutul Kubra is said to have lit a match stick and set the lady at fire by putting the lightened match stick to her sari as a result of which the lady was engulfed by flames of fire. The accused released the lady. It was alleged by the lady that she was completely burnt. 4. As regards the motive for commission of offence the deceased lady stated that appellants Zainutul Kubra and Md. Kaishar @ Kashru were demanding Rs.10,000/- at regular intervals from the lady and were giving out that if the lady was not bringing that amount she should be killed. The accused persons also used to ask her husband to bring Rs.10,000/- from the parents of the lady and it was on the day of occurrence that the accused persons really executed their plan. 5. The lady stated that her husband was posted at Patna as Havildar in the Bihar Police and when she was amidst the flames of fire, she rushed out of her house too and was seen in that condition by the witnesses, like, Md. Alam ( not examined), Ibrahim Mian ( P.W. 12), Md. Ali Ahmad (P.W. 7), Md. Aslam ( P.W. 6), Md. Allauddin (P.W. 3) Lallu (not examined) and others. The lady also stated that the flames of fire were doused by P.W.5 and that her sari was completely burnt down, as such, Most. Bibi Bano (P.W. 5) draped a sari on her and that the above named witnesses brought her to Sadar Hospital, Munger where she was being treated. 6. It appears from the evidence of P. W. 16 the Investigating Officer of the case that he received the fardbeyan (Ext. 5) which was recorded by A. S. I. Lal Mohar Singh (P.W.10) and on that basis he drew up the FIR of Kotwali P. S. Case No. 321 dated 14.8.1988 under Section 307 of the Indian Penal Code and Sections ¾ of the Dowry Prohibition Act and proceeded to investigate the case. 5) which was recorded by A. S. I. Lal Mohar Singh (P.W.10) and on that basis he drew up the FIR of Kotwali P. S. Case No. 321 dated 14.8.1988 under Section 307 of the Indian Penal Code and Sections ¾ of the Dowry Prohibition Act and proceeded to investigate the case. The First Information Report of the case has been marked as Ext. 9. After instituting the case P.W. 16 took the investigation himself and came to the place of occurrence and inspected the same after being pointed out by the accused persons and the brother of the deceased, namely, Ali Ahmad (P. W. 7). The place of occurrence was situated in Mohalla Topkhana in the city of Munger and it was a house which was facing north and it had a courtyard also. It was a Pucca house with ceilings and the staircase was located on the southern part of the courtyard. A room was just by the side of the stair case and on the north and eastern side of the courtyard was an open Varanda, on the northern side of which was also located another room. Different rooms were occupied by different accused persons and it appears that a small room was located towards the north of the room in occupation of appellant Md. Kaishar which was facing west. There was a passage running from north to south just after the courtyard and the Varanda and one Raju Chaiwala was also residing just by the side of the entrance to the house. P.W. 16 stated that he had found signs of kerosene oil at a place south of the house in occupation of Raju Chaiwala and the smell of kerosene oil was also coming out of the room. There were two other rooms situated south of the passage which were in occupation of accused Anwar Mungeri. A lavatory was situated on the south of the courtyard and a tubewell was found sunk in the north east corner of it. The Investigating Officer found that the courtyard and the passage along with Varanda all appeared freshly washed and cleaned and smell of kerosene oil was also coming from the Varanda and courtyard. 7. A lavatory was situated on the south of the courtyard and a tubewell was found sunk in the north east corner of it. The Investigating Officer found that the courtyard and the passage along with Varanda all appeared freshly washed and cleaned and smell of kerosene oil was also coming from the Varanda and courtyard. 7. To the south of this house was a Pucca road which ran from east to west and by the side of this road were located many establishments and svendors including the two tenants and Golden Tailor. Besides, there was an Urdu Library also located south of the road. The Investigating Officer found some burnt up cloths on the road and seized it by preparing seizure memo in presence of the witnesses. The seizure memo has been marked as Ext.10. 8. The Investigating Officer recorded the statements of witnesses and received the dying declaration recorded by a Judicial Magistrate on 18.8.1988 at about 10.30 a.m. and sent the same to the Court, as per his evidence, on the same day. Dying declaration of the deceased has been marked as Ext. 2. He recorded the statements of A.S.I. Lal Mohar Singh and he again received the inquest report of the deceased on 15.08.1988 at 10.30 a.m. and sent a petition to the Chief Judicial Magistrate, Munger for insertion of Section 302 of the Indian Penal Code in the First Information Report. The Investigating Officer received post-mortem examination report on 15.08.1988 at 10.30 a.m. and searched for the accused persons and arrested them also. He recorded the statements of witnesses, obtained the order of sanction from the District Magistrate for prosecuting the accused persons under the Dowry Prohibition Act which sanction order was marked Ext. 7 during trial. After completing the investigation, P. W. 16 submitted charge-sheet for the trial of the accused persons. 9. The defence of the accused was of their innocence and non-participation in commission of the offence. They took many pleas and raised many issues. Their plea included, inter alia, the denial that the deceased was residing in the house of the accused and further, that any amount was demanded from her parents or from the lady and on account of non-fulfilment of the demand, the lady was killed. The defence examined as many as 11 witnesses on different facts including the plea of alibi of some of the accused persons. 10. The defence examined as many as 11 witnesses on different facts including the plea of alibi of some of the accused persons. 10. The Court below considered the evidence and held that the challenge by the defence to the fardbeyan of being collusive and ante dated document was not acceptable and the deceased was in a fit state of mind and health to make her declaration to P.W. 2 in the form of Ext. 2 and that document was reliable. He also placed reliance on the evidence of P. Ws. 1, 4, 6, 9 and 14 and held that the charge under Sections 302/34 of the Indian Penal Code and that under Section 4 of the Dowry Prohibition Act was duly established and passed the sentence in terms indicated by us in the very first paragraph of the present judgment. 11. Names of many counsel appeared in the cause list but when the two appeals were taken up for hearing, their none appearance forced us to request Shri Om Prakash Pandey, Advocate to assist us in the appeals. Sri Pandey took us through the evidence of witnesses and submitted that the prosecution has not been able in proving and establishing as to in which of the two houses the deceased had caught fire and who indeed had set the deceased at fire. Sri Pandey further took us through the evidence of witnesses including P.W. 2 Sri Krishna Kant Chaubey, the then Sub-divisional Judicial Magistrate (SDJM), Munger who recorded the dying declaration and submitted that there were three natures of dying declaration, the first being the fardbeyan of the deceased recorded by P.W. 10. while the second was stated to by P.W. 9 Md. Sahim, the brother of the deceased. The third dying declaration was Ext. 2 which was recorded by Sri Krishna Kant Chaubey, SDJM, Munger. Sri Pandey criticized the evidence of the witnesses including that of Sri Chaubey, the Judicial Magistrate to submit that the evidence was simply unacceptable and appears smacking of fabrication probably with a view to concretizing the proof of charges. It was contended that the documents like the fardbeyan (Ext. 5) and dying declaration (Ext. 2) were all collusive and fabricated records which could not be relied upon for any purpose and above all for the purpose of holding that the deceased had made a statement as regards the cause of her death. It was contended that the documents like the fardbeyan (Ext. 5) and dying declaration (Ext. 2) were all collusive and fabricated records which could not be relied upon for any purpose and above all for the purpose of holding that the deceased had made a statement as regards the cause of her death. Shri Pandey was lastly submitting that the witnesses themselves appeared contradicting each other on most material parts of the prosecution story and if the Court had considered their evidence in its right perspective then it would not have reached the conclusion which were arrived at by it so as to convicting the accused persons. 12. Shri Abhimanyu Sharma, the learned Additional Public Prosecutor also took us through the evidence of witnesses and had submitted that there does not appear consistency in the evidence of the prosecution and that only the brothers or father or sister of the deceased came forward to implicate the appellants by giving evidence on the part of the incident as also on the dying declaration made by the deceased and when the evidence is considered holistically it may appear that the witnesses were not reliable. Some of the independent persons who came forward to depose did not indeed support P.Ws. 1, 4, 9 or 14. 13. The very first argument which was addressed to us by Sri Pandey, the learned amicus curiae was that in fact, the prosecution had failed in establishing the place as to where indeed the lady was living on the date of occurrence and from where she has ejected amidst flames of fire after having either been set at fire or on account of having caught it. Sri Pandey took us through some of the witnesses specially P.Ws. 1, 3, 7 and 16 in the above behalf besides referring to the evidence of P.W. 4 in paragraph 4 also. As may appear from the fardbeyan which is the most sacred and vital prosecution document as regards the initial prosecution story that it was a bald statement made by the deceased that she was lying in her bed with her two little children when the accused persons came and committed the offence. The fardbeyan does not really signify the exact place where the lady was lying in her bed. The fardbeyan does not really signify the exact place where the lady was lying in her bed. What we mean to emphasize is that whether it was the house of her father or was it the house of her husband does not become clear from it. The prosecution led the evidence during the trial to project as if the lady was residing in the house of the accused persons, i.e., in the house of her husband where the offence was committed by the accused persons in furtherance of their common object after probably having entered into a conspiracy by sharing and meeting of their minds. Shri Pandey was seriously challenging by submitting that indeed there were two houses and the lady was not residing on the day of occurrence in the house which was either in occupation of her husband or in occupation of any of the accused persons. In the above connection, Sri Pandey draw our attention to two witnesses. As per the evidence of P.W. 1 Md. Samsher who happens to be the brother of the deceased, he had five brothers and all of them were residing with their parents in a house which was in fact belonging to appellants Zainutul Kubra and Ali Gajnafar @ Polo Mungeri both of whom were also residing in two rooms of the same house. P.W. 1 has admitted these facts in paragraphs 4 and 6 of his evidence. He has further admitted that his family, i.e., five brothers of P.W. 1 and his parents were residing as a tenant and they were paying an amount of Rs.100/- per month to appellant Zainutul Kubra. The same witness in paragraph 7 has stated that appellant Md. Kaisher was a Binder in the Registry office and his two brothers, namely, Javed @ Munna and Shamim Parvez @ Chand were in the Services and were posted on the day of occurrence in Tibet. Another brother of appellant Md. Kaisher was Ali Ashgar @ Rajju who was living with his wife and children in the same house in which Md. Kaisher and other brothers were residing with their wives and children. The deceased Simi Begum was also residing in the southern room of the same house. Thus what appears is that Zainutul Kubra and Ali Gajnafar @ Polo, the mother and brother respectively of appellant Md. Kaisher and other brothers were residing with their wives and children. The deceased Simi Begum was also residing in the southern room of the same house. Thus what appears is that Zainutul Kubra and Ali Gajnafar @ Polo, the mother and brother respectively of appellant Md. Kaisher and other appellants of one of the appeals bearing No. 128 of 1991 possessed two houses in the city of Munger and while one house was occupied by Zainutul Kubra and her son Polo, the other sons of appellant Zainutul Kubra, including her son Halim Muzaffar, the husband of the deceased also, were residing in a different house. This becomes more clear when one had considered the evidence of P.W. 1 in paragraph 2 in which it was stated that the house in which the in-laws of the deceased were residing was at a distance of 15 steps from the house in occupation of the family of P.W. 1, i.e., in occupation of his parents and his brothers. The evidence of the prosecution was, as may appear from the evidence of P.W. 4 Ruhi who had first seen the deceased as per the prosecution, emanating from her house amidst the flames to run on the road so as to reaching the police station, indicated as if the lady had ran out of the room which was in her occupation, that is to say, the house in which the five appellants of Cr. Appeal No. 128 of 1991 were residing as per the description of the house given by P.W. 16, the Investigating Officer while describing the place of occurrence in his evidence in paragraphs 3, 4 and onwards. However, what appears from the description of this house in paragraph 16 which is the cross examination evidence of P.W. 16 and which is available at page 108 of the paper book and which evidence we have also perused from the original deposition sheet, is that Simi Begum might not have lived on the day of occurrence in that particular room which was situated in the south of the house which was collectively occupied by her and the five appellants of Cr. Appeal No. 128 of 1991. Appeal No. 128 of 1991. The evidence of P. W. 4 Ruhi Devi one of the sisters of Simi Begum points out that Simi Begum used to cook her meals separate from her other family members and she used to cook her meals only for her small family of two children and the spouses. It may appear from the evidence of P.W. 4 in paragraph 4 that she did not only live inside that particular room, but also used to cook the meals and she had all the apparatuses and utensils for cooking the meals inside the very room. The room was also having a cot, chauki, oven, bedsheets and other necessary utensils. But what we find from the evidence of P.W. 16 the Investigating Officer of the case in paragraph 16 at page 108 of the paper book as also from the original deposition that while inspecting that room he did not find any oven, cot, bed, or any utensil or even the two children who could be there after the deceased had caught fire and had ran away. In fact the description of that particular room given by P. W. 16, the Investigating Officer, is so devoid of these details that it appears that the deceased in fact was not living inside that room as was claimed by the prosecution in that apartment which was in occupation of five appellants of Cr. Appeal No. 128 of 1991 and the deceased Simi Begum and her husband. P. W. 16 was very categorically stated that he did not enter into his case diary as to what articles he had found inside that room and as such he had not shown seizure of any article therefrom. He further stated that he did not find any smell of kerosene oil inside that room and he did neither find any can or tin containers for storing kerosene. He did not find the room washed out and cleaned and he also did not get any articles identified as belonging to the deceased. He did not even had mentioned in the case-diary whether the room had the plastered surface or the surface was of soil. He did not find the room washed out and cleaned and he also did not get any articles identified as belonging to the deceased. He did not even had mentioned in the case-diary whether the room had the plastered surface or the surface was of soil. If this is the evidence so indefinite as in terms of the Investigating Officer, it could not be said that there was probably any sign of the prosecution evidence indicating as if that particular room had ever been in occupation of the deceased. Therefore, she could not be said to be living inside it on the day of occurrence. Then the question is as to where did she live on that particular day? The evidence adduced by the prosecution itself indicates that there was a strong probability, may be the reality, that the deceased was residing in the very house of the prosecution witnesses along with her parents and brothers on the day of occurrence. P. W. 4 who happed to be the star prosecution witness stated in the same paragraph 4 that the deceased used to come to her parents’ house out of her own and she further stated that she had never lived inside that particular house occupied by her family and had always gone back to her own house. She was very categorical in stating that her stay could have been only for 2-3 hours whereafter she retreated back to her matrimonial house. The witness P.W. 4 was going to such an extent in making the statements as regards the chances of the deceased living in the house of her parents in last line of paragraph 4 that she stated that her parents had never asked the deceased to stay over in their house. This evidence was picked up to ask us to record a finding that the deceased could never live in her parents’ house, but when we consider the evidence of P.W. 1 in paragraph 2 what appears is that P.W. 4 is a witness who was probably not telling the truth and it was always dangerous to place reliance upon her. This evidence was picked up to ask us to record a finding that the deceased could never live in her parents’ house, but when we consider the evidence of P.W. 1 in paragraph 2 what appears is that P.W. 4 is a witness who was probably not telling the truth and it was always dangerous to place reliance upon her. Her brother who was examined as P.W. 1 and who probably appears elder to the deceased was giving evidence which was influencing our judgment to raise an inference as if the lady could have resided on the day of occurrence in the very house in which her parents and brothers like P. Ws. 1 and 9 were residing. P. W. 1 stated in paragraph 2 that Simi Begum had left her house only 4-5 days earlier to go into her matrimonial house but when he was confronted in cross-examination in paragraph 5 that this statement was never made by him, he admitted that indeed he had not stated to the police that Simi Begum had gone to her matrimonial house only 4-5 days prior to the occurrence. P. W. 7 was, though declared hostile by the prosecution, stated in cross-examination that Ali Muzaffar, the husband of the deceased, who was examined as P.W.15, had gone to join his duties some 12-14 days prior to the occurrence and while leaving his house he brought his wife Simi Begum to her parents’ house and left her there along with the children. P. W. 7 stated that on the day of occurrence the deceased and her children were very much residing with the witnesses in their house. The other evidence in this connection may also be usefully noticed to find as to whether indeed Simi Begum was residing on the day of occurrence with her parents because P.W. 7 was one of the brothers of the accused and he was declared hostile and it was submitted by Shri Abhimanyu Sharma, the learned Additional Public Prosecutor that his evidence should not be used to raise an inference as was submitted to be raised by Shri Pandey that Simi Begum was residing in her parents’ house on the day of occurrence. We find that there was no hazard in acting upon the evidence of P.W. 7 because in spite of having been declared hostile the witness was cross-examined by the defence during which course he was making the disclosure regarding the deceased having been left at her parents’ house by her husband and the prosecution did not make any effort or attempt to recall the witness for further cross-examination so as to challenging him that he had not made those statements which he made in paragraph 4 of his deposition. But still we find another relevant evidence coming from a completely independent source like P.W. 3 who did not have any partisan attitude either towards the prosecution or the defence. In fact, P.W. 3 was supporting the prosecution story to the extent that while he was at a betel shop early in the morning at about 6.30 a.m. to satisfy his pastime, he saw Simi Begum ejecting from her house amidst flames and running on the road to reach the police station premises. It was a single line evidence in paragraph 1 which was given by P.W. 3 but he was elaborating upon the description and location of that house in paragraph 4. P.W. 3 stated that he saw Simi Begum coming out from the very house which was in occupation of her parents and no sooner he saw Simi Begum coming out of her house than she was seen by him running on the road to reach the police station. This evidence of P.W. 3 in paragraph 4 leads to infer that Simi Begum was indeed residing in the house of the witnesses and was not residing in her matrimonial house which was made out by the prosecution during the course of trial. 14. One of the most important circumstances which was brought into our notice by Sri Pandey so as to inferring that Simi Begum was not residing in her matrimonial house was of non-finding by P.W. 16, I.O. of the two children either inside the house in occupation of the accused and her husband or in the room which was described by P.W. 16 as the room in occupation of Simi Begum. It is true that P.W. 4 Ruhi had stated in her evidence that after the occurrence she went to the house and she picked up one child and the other child was handed over to her by the appellant Ali Gajnafar @ Polo Mungeri as appears from her evidence in paragraph 5, but we note that there was no evidence coming from any other source except P.W. 4 that the children were brought to the house of the parents of Simi Begum, rather what we find is that P.W. 1, the brother of the deceased has stated in his evidence in paragraph 4 that the children were residing with their father after the occurrence. Moreover, the evidence of P.W. 4 in paragraph 2 that she had seen Simi Begum running out of her matrimonial house in flames appears not stated to the police as may appear from her evidence in paragraph 5 in which her attention was drawn by suggesting to her that she had not stated to the police and P.W. 16, I. O. had stated in paragraph 26 that Ruhi had never stated that she had seen the deceased rushing out of her matrimonial house. Thus, on consideration of the relevant evidence on the point, we find a contrary evidence coming from the very prosecution witness P.W. 1 in paragraph 4 at page 7 of the paper book that the two children of Simi Begum were living with her and after her death the two were residing with their father. Thus, the very evidence of non-finding of the children in the house which was inspected by P.W. 16 as per the description given by him in paragraph 3 and 4 and also in paragraph 16 is also indicative of the fact that Simi Begum was not residing on that particular day in her matrimonial house. 15. After having held that the prosecution had projected a false story which could not be acceptable as regards the deceased having resided in her matrimonial house, there was not much to be stated or considered in the present judgment, but because the learned Judge has given many specific findings to reject the defence challenge to the prosecution story and it is a case based on multiple nature of evidence, we have considered other aspects of the case with all seriousness they deserved. In that connection we want to point out that the prosecution evidence is constituted by the evidence of dying declaration which came on record in three modes. The first and initial mode, as per the prosecution story, is the fardbeyan which was recorded by ASI Lal Mohar Singh allegedly in Sadar Hospital, Muger at 7.15 a.m.. The second evidence of dying declaration came through P.W. 9 Md. Sahim as also through P.W. 1 Shamsher who stated that Simi Begum had stated that the accused persons had set her at fire after dragging her out of the room where she was lying inside the bed and kerosene was poured and she was set at fire. The learned trial Judge has recorded that Simi Begum was not in a position before being admitted in the hospital and prior to being treated there to speak and to tell persons as to how she happened to be amidst flames and that finding by learned trial Judge had partially rejected the evidence of oral declaration of witnesses like P.Ws. 1 and P.W. 9. But, still he has placed reliance on their evidence to record that Simi Begum was treated and her condition was revived making her capable of making the statement to witnesses as also to the learned Judicial Magistrate who went into the hospital to record her statement. We have quite some reservations in upholding the findings of the learned trial Judge. The lady was bearing 88% burn injuries. She was not in a position to speak that is the finding recorded by the learned trial Judge and that appears the probability also because P.W. 1 who was amongst the first few persons who had come near the deceased did not state that she was making any statement and was accusing any one of setting her at fire. The prosecution has admitted that it was P.W. 5 Bibi Bano a petty vegetable seller who was present around the place of occurrence and she had attempted to douse the flames and after the deceased had been rendered naked on account of burning down of her wearing apparels, the said Bibi Bano (P.W. 5) put off her own sari and draped the deceased by it whereafter she was taken to the hospital. P.W. 5 has stated that the deceased was not speaking anything. P.W. 5 has stated that the deceased was not speaking anything. That situation remained till the deceased had reached the hospital which appears also the probability as P.W. 1, one of her brothers, did not say that he heard Simi Begum telling him or anyone anything. In fact, the evidence of P.W. 1 indicates as if she was not speaking anything. Dr. Nageshwar Prasad Jha, P.W. 8 has stated that in a case of burn injuries of such an extent as of 88 percent, the patients are generally administered Pathedine in a particular quantity so as to relieve them of pain. Pathedine is a drug which induces unconsciousness. It was the initial stage just after the burning of the deceased and we find from the bed head ticket (Ext. G) that Pathedine was one of the prescribed medicines though it appears scored off without any signature. Thus, the bed head ticket (Ext. G) raises a probability that the deceased must have been administered Pathedine and the administration of the drug should have induced complete loss of consciousness to the lady. This makes it impossible that the lady could be speaking in the hospital. The dying declaration oral in nature is also an admissible and good evidence if it is found reliable as is the case with a written dying declaration. But the hallmark for accepting such a declaration is that the deceased should be in a good mental state of health so as to capable of making the statement. In case of oral dying declaration besides the above criterion, what is further required is that there should be a consistency in the statements of witnesses who had produced the words of the deceased which were spoken by him as the cause of injuries or the cause of her death. We are not here at the consistency of the oral dying declaration. We are mainly concerned about the capability of the deceased in making the oral dying declaration and we have serious doubt that she would be in such a position, in the light of injury and degree thereof to make any statement to any one. 16. So far as the recorded declaration (Ext. 2) is concerned, we find it not in a better position to approve of the document as a sanctified one. P.W. 2 who was working on 14.8.1988 as the SDJM, Munger had recorded Ext.2. 16. So far as the recorded declaration (Ext. 2) is concerned, we find it not in a better position to approve of the document as a sanctified one. P.W. 2 who was working on 14.8.1988 as the SDJM, Munger had recorded Ext.2. We have considered the document and his evidence with care we want to note that the learned Magistrate was giving evidence which could make it very difficult for any Court to accept that he was acting as per the recognized practice as regards the deputation of a Magistrate for the purpose as also as regards the manner of recording such a statement. P.W.2 has stated that he had received an order from the Chief Judicial Magistrate, Munger deputing him to record the dying declaration of Simi Begum. That order was brought to him by one Dy.S.P. and a Sub-Inspector of Police. When we scanned his evidence further as to whether there was indeed any order passed by the Chief Judicial Magistrate, which was produced before him, we simply found that there was none. We as such scanned the Lower Court Records also and again we found that there was no order passed by the Chief Judicial Magistrate, Munger deputing P.W.2 for the purpose of recording the dying declaration of Simi Begum. In fact the evidence of P.W. 2 in paragraph 6 indicates that there was no requisition on the day also when he was deposing nor there was any order of the Chief Judicial Magistrate while he was giving his evidence in Court. What appears further is that he admitted that he was taking a bath at a particular place in the river Ganges (Kashtaharani Ghat) and the Dy.S.P. and the Sub-Inspector of Police came to him and conveyed to him that he was required to record the dying declaration and accordingly, he accompanied them and went to the hospital. This evidence comes in paragraph 5 of P.W. 2. The very evidence in paragraph 5 indicates that indeed there was neither a requisition made by the police for deputation of a Magistrate nor there was any order of the Chief Judicial Magistrate deputing P.W. 2 for the purpose. The other inference which arises from this evidence is that a dying declaration was to be recorded of a lady but what was the name of that lady was not disclosed to the learned Magistrate. The other inference which arises from this evidence is that a dying declaration was to be recorded of a lady but what was the name of that lady was not disclosed to the learned Magistrate. The worse was that when he rushed to the hospital accompanied by the Dy.S.P. and the Sub-Inspector of Police, he did not care to inquire from any competent person regarding the physical and mental health of the deceased nor he wrote in the dying declaration that he had taken care to inquire about the mental health of the deceased before he had proceeded to record her statement. P.W. 2 stated during cross-examination that in the room in which he was left by the police officer, there was a bed and it was a solitary bed in which a lady was lying and there was no patient further in the room nor there was any doctor neither there was any nurse. The patient had not been put either on oxygen or on transfusion of saline water and he did not even try to ascertain as to who the lady was. Before he had recorded or after he had completed the record, he did not care to contact any hospital staff to obtain a certificate of recording the statement in the hospital. He did not mention in the record itself as to whether it was recorded in the hospital or at any outside place. The worse was that the officer was pointing out in his evidence that he was taking his bath for offering his Puja to Lord Shiva at Kashtaharni Ghat and as soon as he was conveyed by the Dy.S.P. and the Sub-Inspector of Police that he was required to record the dying declaration, he left the Ghat in the position he had been and went to the hospital and recorded the statement. The practice prevailing for recording the dying declaration is that a requisition has to be made to the Chief Judicial Magistrate for deputation of a Magistrate or any such authority for the purpose and the Chief Judicial Magistrate either passes an order in the record of the case or he could very well pass it on the requisition itself indicating the name of the officer and the name of the person whose declaration was to be recorded. This order has to be communicated and the officer deputed has to draw an order regarding the order of the Chief Judicial Magistrate and then has to go and record the statement and then has to send the recorded statement along with the requisition and order sheet, if any, to the Chief Judicial Magistrate. But what we find in the present case is that the learned Magistrate handed over the recorded dying declaration to the accompanying Daroga. This also appears true from the evidence of P.W. 16 that he had received the dying declaration on 14.8.1988 and had transmitted the same on the same day to the Court of the Chief Judicial Magistrate. We find from the evidence of the learned Magistrate also that the dying declaration recorded by him could finally reach the Chief Judicial Magistrate on the 16th of August, 1988 and the Chief Judicial Magistrate had made an endorsement to that effect over it. What we further find is that the officer was neither accompanied by a peon or a clerk of the Court and he stated that he had not obtained the thumb impression of the deceased rather it was obtained by P.W. 9 Md. Sahim. But, P.W. 9 Md. Sahim stated that it was obtained by the learned Magistrate himself. When we considered all these evidences in juxtaposition to each other, what we find is that the state of evidence on recording the dying declaration is as pathetic as to render the very evidence of P.W. 2 doubtful and unacceptable. The record which was created by him, i.e., Ext. 2 the dying declaration, in our opinion loses its sanctity and authenticity both and we find that it is extremely dangerous for the cause of justice that such document be used in recording a conviction or seeking support in convicting a man. 17. As regards the third statement of the deceased in the form of the fardbeyan, less said is better. The officer P.W. 10 A.S.I. Lal Mohar Singh appears too enthusiastic to run out of the police station even before he had received any communication or the police had received any information from any source about the arrival of the injured Simi Begum in the hospital for treatment. P.W. 10 stated that he rushed out of the police station and went there and recorded the statement of the deceased. P.W. 10 stated that he rushed out of the police station and went there and recorded the statement of the deceased. The ward was flooded with persons and he recorded the statement. As per the record the statement was recorded at 7.15 A.M. but as per the evidence of P.W. 16 the Investigating Officer of the case who was the Officer-in-Charge of the Police Station the record could arrive at the police station at about 10.30 A.M. A duration of 2½ hours was there and in order to filling in the gap of time of more than 2½ hours in recording the document and bringing the document back to the police station P.W.10 A.S.I. Lal Mohar Singh stated that he took about one hour and fifteen minutes in recording the statement, but curiously enough he read out the document to the deceased in five minutes. The witness has himself stated that while Simi Begum was making the statement he condition was very precarious so much so that she was found it difficult to utter words. This evidence has come in paragraph 9 of P.W. 10 and it, as such, reinforces the contention of the defence that the lady could not have been in a fit state of health to make the dying declaration. The learned trial Judge has justified and accepted the record, i.e., fardbeyan (Ext.5) as a validly recorded document on the ground that Station Diary Entry No. 351, dated 14.8.1988 indicated that O.D. slip had been received at 7.20 A.M. on that day and A.S.I., Lal Mohar Singh had already left for the purpose of recording the fardbeyan. We find that if A.S.I. Lal Mohar Singh had indeed left the police station on information that Simi Begum was there in the hospital that information, in the first place, ought to have been recorded in the station diary. As soon as Lal Mohar Singh had left, he ought to have made an entry in the station diary that he was leaving the police station for the purpose of recording the fardbeyan of Simi Begum. If the O.D. slip was received in the police station at 7.20 A.M. on 14.8.1988 then it defies reasoning as to how someone could hold that the fardbeyan was not an ante dated document. The fardbeyan was recorded at 7.15 A.M., i.e., five minutes ahead of arrival of O.D. slip at the police station. If the O.D. slip was received in the police station at 7.20 A.M. on 14.8.1988 then it defies reasoning as to how someone could hold that the fardbeyan was not an ante dated document. The fardbeyan was recorded at 7.15 A.M., i.e., five minutes ahead of arrival of O.D. slip at the police station. This is so irreconcilable that it can be illogical to hold that fardbeyan was not an ante dated document. These are some of the reasons which forced the Superintendent of Police, Munger to put A.S.I. Lal Mohar Singh under suspension as appears admitted by him in his evidence. Not only that, before he had recorded the fardbeyan, he claimed to have created a requisition for hiring a Judicial Magistrate for recording the dying declaration and had handed over a copy of the same to certain A.S.I. who met him near the entry gate of Munger Quila while he was himself rushing to sadar hospital, Munger. The prosecution witness P.W. 16 who was the Investigating Officer of this case has not given any evidence as to who had prepared the requisition and have sent it to the Chief Judicial Magistrate for deputing a Magistrate for recording the dying declaration. The evidence of the prosecution on recording the dying declaration and recording of the fardbeyan is beset with such serious doubt that we do not have any hesitation in holding that the prosecution had probably fabricated documents to support its case. 18. The witnesses like P.Ws. 1 or 9 or even 14 could have supported the prosecution case, but when it came to testing their veracity what we find is that they had not stated the most vital statement regarding demanding of Rs. 10,000/- from the lady or her parents to the police during investigation. Besides, there is a clear probability that the deceased had never resided in her matrimonial house on the day of occurrence and that there was a probability that she could have caught fire in the house of the witnesses, who had stopped paying rent to the appellant Zainutul Kubra and had also taken out a litigation by placing an application before the Wakf Board alleging that the property which was tenanted by them was a Wakf property. Thus they were attempting to divest the appellants of their rightful ownership of the property. Thus they were attempting to divest the appellants of their rightful ownership of the property. So far as the torture, ill-treatment or demand of dowry of any amount are concerned, we have another circumstance in the forms of letters written by the deceased which were marked as Ext. 6 series. These are letters written by the deceased to her husband Halim Muzaffar (P.W.14) and if one could go through the lines of the author one could find that the lady was so much devoted to her husband and was longing for his company that she was pleading with him to join her even for a day as appears from one of the letters. She in most of the letters was imploring her husband not to live away from her and was also begging of him to come even for a day. She was also conveying to her husband that the separation of the couple had rendered her nights sleepless, her thought vagrant and her happiness reduced into frustrations. She was blessed with two children, who were living with her, but still she was finding her separation from her husband so cruciating and painfull as to send out words to her husband to leave his job even for a day to join her. The letters exhibit a very sensitive mind and a loving heart of the lady who was finding it unbearable to be separated from her husband and possibly her deep desire of associating with her husband whom she loved immensely as per P.W.1 paragraph-4, and her frustrating failure might have led her to end her life. This is one inference we jump to after having considered the letters (Ext. 6 series) which were admittedly written by the deceased to her husband. 19. Having said and found what we have just now, we are of the opinion that the case was such which could have not ended in conviction of the appellants. The evidence was discordant and infirm, and in most of its part not reliable. The prosecution evidence of dying declaration appears fabricated. There was serious infirmity and defect in the prosecution story as regards the deceased residing at a particular place and we find that the prosecution failed in establishing the place of occurrence. The evidence was discordant and infirm, and in most of its part not reliable. The prosecution evidence of dying declaration appears fabricated. There was serious infirmity and defect in the prosecution story as regards the deceased residing at a particular place and we find that the prosecution failed in establishing the place of occurrence. On these findings and on account of these frailties which appear in the prosecution case, in our opinion it was not a case in which the charges could be held proved. 20. In the result, the two appeals succeed and they are allowed. The six appellants are acquitted of the charges they had been found guilty of. The six appellants are on bail. They shall stand discharged from the liabilities of their respective bail bonds. 21. As we have noted above, we had requested Shri O. P. Pandey, Advocate to assist us and we record our sincere appreciation the way Shri Pandey went through the paper book and assisted us so brilliantly as to make it possible and very easy to us to deliver the present judgment. In appreciation of the assistance rendered by Shri Pandey to the Court, we direct that Shri Pandey be paid a sum of Rs. 10,000/- as consolidated fee in the two appeals by the High Court Legal Services Committee. Let the copies of the first and last pages of the present judgment be made over to Shri Pandey for the above purposes. ?