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2014 DIGILAW 755 (JHR)

Sohwa Devi v. State of Jharkhand

2014-07-17

D.N.PATEL, P.P.BHATT

body2014
JUDGMENT D.N. PATEL, J. 1. This appeal has been preferred against the judgment of conviction dated 27th February, 2004 and order of sentence dated 28th February, 2004 passed by Additional District and Sessions Judge, F.T.C. Koderma in Sessions Trial No. 240 of 2001, whereby, the appellants have been convicted life imprisonment causing murder of the deceased and a fine of Rs. 10,000/- upon each of these appellants has been imposed and in case of default, further simple imprisonment for two years have been awarded. Though these appellants have also been convicted under Section 498A IPC as well as to be read with Section 34 thereof and also under Sections 3/4 of the Dowry Prohibition Act, 1961. No separate sentence has been awarded because of life imprisonment has been awarded for the offence of murder. 2. Facts of the case:- The case of the prosecution is that on 21.7.2000 at 13:30 o'clock the informant Kalpana Devi (deceased) in burnt condition gave fardbeyan to police at Parvati Clinic that she is 24 years old and she is the daughter of late Paras Nath Bishwakarma. She was married with Vijay Bishwakarma (accused) about five years ago and from the said wedlock, she had a daughter aged about 2½ years. She further alleged that during her marriage her father had given gift and dowry and after her marriage, in her in-laws house, her father-in-law Gajadhar Mistri (accused), Mother-in-law Sohwa Devi (accused), brother-in-law, Rajkumar Bishwakarma (accused) and husband Vijay Bishwakarma (accused) started humiliating her and today also they are humiliating her. She further alleged that these people always came to house after taking drink and they started assaulting her and abuses her with filthy language and told her that her father had told them that he will pay Rs. 20,000/- to them and till date the same was not given to them. They further told her that your father died after marriage and now if she not bring Rs. 20,000/- from her mother or uncle then they will kill her. She further alleged that yesterday on 19.7.2000 at about 11 p.m. she was serving food for herself in the kitchen then her father-in-law, mother-in-law, husband and brother-in-law came there after drink and started assaulting her and abuses her with filthy language. 20,000/- from her mother or uncle then they will kill her. She further alleged that yesterday on 19.7.2000 at about 11 p.m. she was serving food for herself in the kitchen then her father-in-law, mother-in-law, husband and brother-in-law came there after drink and started assaulting her and abuses her with filthy language. Thereafter sprinkled Kerosene oil on her body and her mother-in-law torch her to flame then she tried to escape from there but her father-in-law pushed her and she fell down. Thereafter, her husband put blanket (Gendra) over her body but she become unconscious due to burn injuries. She further alleged that she is pregnant by five months and when she regained consciousness then she find herself in Parwati Clinic where her treatment was going on. During her treatment she came to know that her husband on next date of occurrence bring her in Parvati Clinic for treatment and fled away form there. She further claimed that her mother-in-law, father-in-law, brother-in-law and husband tried to killed her by burning, for dowry of Rs. 20,000/- because of which she get injured. PW-1 Vijay Kumar Sharma Declared hostile witne PW-2 Shanti Devi She deposed that accused persons were demanding dowry of Rs. 20,000/-. PW-3 Birendra Singh He has not supported the case of the prosecution. PW-4 Putiya Devi She is the mother of the deceased Kalpana Devi. She deposed that accused persons were demanding dowry from her. PW-5 Kuldip Bishwakarma He is the brother of the deceased Kalpana Devi. He deposed that accused persons were demanding dowry of Rs. 20,000/- from them. He further deposed that her sister Kalpatna Devi had given her fardbeyan before the police in Parwati Clinic in her presence and put her thumb mark and signature in it. He has proved the signature of Kalpana Devi (deceased) in fardbeyan i.e. marked as Ext.-1 and has also proved his signature in the fardbeyan i.e. marked as Ext.-1/1. PW-6 Dr. Hari Darshan Singh He deposed that Kalpana Devi (deceased) had not make statement to police in his presence. PW-7 Dr. Shiv Nandan Prasad Singh He is the doctor who has conducted the postmortem of the dead body of Kalpana Devi and he has proved the postmortem report i.e. marked as Ext.-2. PW-8 Rameshwar Prasad (S.I.) He is the investigating officer of this case. PW-7 Dr. Shiv Nandan Prasad Singh He is the doctor who has conducted the postmortem of the dead body of Kalpana Devi and he has proved the postmortem report i.e. marked as Ext.-2. PW-8 Rameshwar Prasad (S.I.) He is the investigating officer of this case. He has proved the FIR i.e. marked as Ext.-3 and has also proved signature of A.K. Srivastava in the fardbeyan i.e. marked as Est.-3/1. He has proved the inquest report in writing of A.K. Srivastava i.e. marked as Ext.-4 and has also proved the inquest report with objection i.e. marked as Ext.-5. PW-9 Dudheswar Singh (ASI) He has proved his signature in the inquest report i.e. marked as Ext.-7. PW-10 Arun Kumar Srivastava (R.S.I.) He is Reserve Sub-Inspector in Police Line Koderma. He had recorded the fardbeyan of Kalpana Devi (deceased) and has proved the entire fardbeyan i.e. marked as Ext.-8. 3. Arguments of Appellants:- It is submitted by the counsel for the appellants that there are major omissions, contradictions and improvements in the deposition of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned Trial Court and hence, the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. It is further submitted by the counsel for the appellants that there is a gross un-explained delay in lodging the FIR. The incident has taken place on 19th July 2000 at about 11 p.m. and the FIR has been lodged on 21.7.2000 at 13:30 hours being Koderma P.S. Case No. 263(7)/2000 and a so-called Fardbeyan of the victim Kalpana Devi was recorded on 21st July 2000 at 13:30 hours at Parwati Clinic, situated at District- Koderma. No explanation, worth the name, has been given by two police personnel, who are P.Ws. 8 and 10 for the delay in lodging the FIR and the delay in recording the Fardbeyan, which is fatal to the prosecution mainly for the reason that as per medical evidence given by P.W.-6-Dr. Hari Darshan Singh, the victim was unconscious. No explanation, worth the name, has been given by two police personnel, who are P.Ws. 8 and 10 for the delay in lodging the FIR and the delay in recording the Fardbeyan, which is fatal to the prosecution mainly for the reason that as per medical evidence given by P.W.-6-Dr. Hari Darshan Singh, the victim was unconscious. Similar is the evidence given by P.W.-2 who has stated in para 3 of her deposition that Kalpana Devi was unconscious and when these witnesses are saying categorically in their depositions before the trial court that Kalpana Devi-victim was unconscious, how the Fardbeyan was recorded by the police, that too after much belated stage after her admission at Parwati Clinic, is not explained by the prosecution and, therefore, unexplained delay in lodging the FIR and in recording the Fardbeyan of the victim is fatal to the prosecution. This aspect of the matter has not been properly appreciated by the learned trial court. It is further submitted by the counsel for the appellants that there is no endorsement of the Doctor upon the Fardbeyan of the victim- Kalpana Devi that she was conscious at the time of her admission at Parwati Clinic. On the contrary, the evidence is against the prosecution as given by P.W.6-Dr. Hari Darshan Singh. In paragraph No. 1 of his deposition, this doctor P.W.-6 has stated that the victim was admitted by him in Parwati Clinic. Kalpana Devi was unconscious when she was admitted in his clinic. Nowhere any witness has stated out of P.Ws. 1 to 10 including the witnesses who are doctor and police that when Kalpana Devi regained her consciousness. This makes the prosecution story unreliable and untrustworthy, especially when the fardbeyan was recorded after several hours and there is no explanation worth the name for such delay. It is further submitted by the counsel of the appellants that as stated by the prosecution witnesses, Kalpana Devi was illiterate, especially as stated by P.W.-2 in Paragraph 3 of her deposition and there is signature of Kalpatna Devi upon her Fardbeyan given by her, which is treated as a dying declaration by the learned trial court. This aspect of the matter also creates more than a reasonable doubt about the prosecution case. This aspect of the matter also creates more than a reasonable doubt about the prosecution case. Similarly, P.W.10-Arun Kumar Srivastava, who is a Sub-Inspector of Police, has deposed in his deposition that so far as the thumb mark impression of Kalpana Devi is concerned, he has never said that whether it is a right hand thumb impression or left hand thumb impression. Neither the thumb mark impression is properly proved nor the signature of Kalpana Devi-victim upon the so called dying declaration has been proved nor there is any endorsement of the doctor nor any witness is saying about the regaining of consciousness when she was admitted at Parwati Clinic. It is further submitted by the counsel for the appellants that P.W.-2 has clearly stated that Kalpana Devi was unconscious. He had never talked with Kalpana Devi and this P.W.-2 is the first person who had reached from the victim side person at Parwati Clinic. She has also stated that there were good terms between the accused side persons including the husband and the deceased. Even looking to the Fardbeyan, it appears that there is no role played by the husband in causing the murder of the deceased. On the contrary, even if the Fardbeyan is accepted as it is as proved document, then also the husband has tried to save the life of the deceased. It is the husband, who had taken the victim at the Hospital. Moreover, it is the husband, Appellant No. 4, who had given the whole treatment and was purchasing the medicine. He had also donated his blood to save the life of the deceased. All these circumstances are not giving any conclusion of sharing common intention with the appellants who are treated as accused. In fact, it has been stated by P.W.-2 that the deceased was suffering from epilepsy. Moreover, no role has been played by the appellant No. 2, father-in-law of the deceased, in causing the murder of the deceased. It is further submitted by the counsel for the appellants that P.W.6-Dr. Hari Darshan Singh has also stated in his cross-examination about the unconsciousness of Kalpana Devi. The Doctor has categorically stated in his cross-examination that the deceased was unable to understand the talk but her eyes were open. The deceased was not in a position to give Fardbeyan because she was unconscious when she was admitted. Hari Darshan Singh has also stated in his cross-examination about the unconsciousness of Kalpana Devi. The Doctor has categorically stated in his cross-examination that the deceased was unable to understand the talk but her eyes were open. The deceased was not in a position to give Fardbeyan because she was unconscious when she was admitted. Looking to the deposition of this witness, it appears that though there is no strict necessity of his signature upon the Fardbeyan, but P.W.6 has narrated the condition of the patient and the condition of the patient starts with unconsciousness and during this period of unconsciousness, the so called Fardbeyan had been recorded by P.W.10. Though P.W.-2 has signed upon the said document, there is no exhibit number given to the signature of P.W.-2-Shanti Devi on Fardbeyan. Thus, the prosecution has failed to prove the signature of one of the witnesses on the Fardbeyan. This also creates more than a reasonable doubt about the truthfulness of Fardbeyan, which is treated as dying declaration. It is also submitted by the counsel for the appellants that P.W.-4, mother of the deceased, has stated in paragraph No. 2 of her deposition that when she reached at Parwati Clinic, where Kalpana Devi was admitted, there were no relatives of the deceased, except P.W.-2 and before her coming to the clinic, Fardbeyan was already taken up. This witness has also not stated about the role played by the father-in-law- appellant No. 2 in causing murder of the deceased. Looking to the deposition of this witness, especially in paragraph 2, husband of the deceased, appellant No. 2, had tried to save the life of the deceased. Thus, appellant Nos. 2 and 4 have not caused any injury upon the body of the deceased, even as per this witness and in paragraph No. 5, it has been stated by this witness that father in-law and all the in-laws of the deceased were giving treatment. Cumulative effect of this evidence reflects that there were good terms between the in-laws of the deceased and the deceased. Right from the FIR, the behaviour of the husband is in favour of the deceased to save her life. This aspect of the matter has also not been properly appreciated by the learned trial court. Cumulative effect of this evidence reflects that there were good terms between the in-laws of the deceased and the deceased. Right from the FIR, the behaviour of the husband is in favour of the deceased to save her life. This aspect of the matter has also not been properly appreciated by the learned trial court. It is also submitted by the learned counsel for the appellants that similarly, other witnesses have also failed to prove the offence of murder committed by these appellants and the document, Fardbeyan–dying declaration is highly a doubtful document and was taken up during the unconsciousness of Kalpana Devi. Moreover, appellant No. 1 has remained in custody 10 years 10 months and sixteen days as on 10th July 2014, which appears from the letter written by the Superintendent, Central Jail, Hazaribagh, which is produced before this Court and a copy thereof, has also been given to the appellants. Appellant No. 2 has also remained in jail for 9 years 10 months and five days. Appellant No. 3 has remained in custody for 13 years 10 months and 21 days and appellant No. 4 has also remained in custody for 13 years 10 months 25 days. Appellant Nos. 1 and 2 have been granted bail by suspension of sentence and the appellant No. 3, who is the brother in-law of the deceased and appellant No. 4, who is the husband of the deceased, are languishing in jail custody till today. They may be released forthwith as the prosecution has failed to prove the offence of murder beyond all reasonable doubts by allowing this appeal. 4. Arguments of State:- We have heard counsel for the State-APP, who has submitted that no error has been committed by the Trial Court in appreciating the evidences on record. It is further submitted by the APP that Kalpana Devi was admitted to Parwati Clinic where the doctor had called the police. P.W.-10 (Police) has recorded the Fardbeyan of Kalpana Devi on 21st July 2000 at about 13:30 hours. She has clearly narrated the role played by these appellants in causing injuries to her. Upon this Fardbeyan, there are signatures of P.Ws-2 and 5 as well as P.W.-10 and that of the victim herself. There is also a thumb mark of the victim. She has clearly narrated the role played by these appellants in causing injuries to her. Upon this Fardbeyan, there are signatures of P.Ws-2 and 5 as well as P.W.-10 and that of the victim herself. There is also a thumb mark of the victim. The victim expired later on, on 29th July, 2000 i.e. after approximately 09 days and therefore, this Fardbeyan has been treated as dying declaration. It is also submitted by APP that the appellant No. 2 who is the mother in law of the deceased has poured kerosene upon Kalpana Devi and she was ablazed by appellant No. 3 and brother-in-law. When she was running away from the house in burning condition, then appellant No. 2, father in-law of the deceased, gave push to her whereupon she had fallen down and ultimately, she was admitted to Parwati Clinic. It is also submitted by the APP that the dying declaration has been proved with the help of P.Ws. 4 and 5 to be read with the deposition given by P.W.-10. This aspect of the matter has properly been appreciated by the learned trial court. P.W.-4 is the mother of the deceased. She had also rushed at Parwati Clinic and upon asking, Kalpana Devi pointed out that these appellants were harassing her or torturing her and were demanding dowry for a sum of Rs. 20,000/- and when the money has not been paid, she was set at fire. P.W.-5, who is brother of the deceased has stated that there was consistent torture on the part of these appellants upon the victim and they were demanding dowry. As the amount of Rs. 20,000/- could not be paid by the victim 's side persons, she has been murdered by these appellants. P.W.-5 has also supported the dying declaration. He has proved his signature upon the dying declaration. It is also submitted by the learned APP that P.W.-10, (Sub-Inspector of Police), who has recorded the Fardbeyan, has clearly stated that she was unconscious when her statement was recorded by him in Parwati Clinic. Moreover, her further statement has also been recorded by the Investigating Officer who is P.W.-8. Thus the prosecution has proved the dying declaration beyond reasonable doubt and these appellants have committed offence of murder of the deceased as well as offence under Section 498A IPC and the offence under Section 3/4 of the Dowry Prohibition Act, 1961. Moreover, her further statement has also been recorded by the Investigating Officer who is P.W.-8. Thus the prosecution has proved the dying declaration beyond reasonable doubt and these appellants have committed offence of murder of the deceased as well as offence under Section 498A IPC and the offence under Section 3/4 of the Dowry Prohibition Act, 1961. These aspects of the matter have been properly appreciated by the learned trial court and therefore, this appeal may not be entertained by this Court. 5. Reasons:- Having heard learned counsels for both the sides and looking to the evidences on record, it appears that Kalpana Devi was admitted to Parwati Clinic, situated in District- Koderma on 19th July 2000 and she was admitted by Dr. Hari Darshan Singh, who is P.W.-6. This doctor informed the police and the police, P.W.-10, rushed to Parwati Clinic and recorded the Fardbeyan of Kalpana Devi, in which she has narrated that appellant No. 1 poured kerosene upon her because they were demanding and torturing constantly for dowry of Rs. 20,000/- which was not paid by her or her parents. After pouring kerosene by, appellant No. 1- mother in-law of the deceased, brother in-law-appellant No. 3 set her at fire. While she was running away from the house to save her life at that time, father-in-law-appellant No. 2, gave her a push whereupon, she had fallen down and thereafter, she was brought at Parwati Clinic for treatment. Upon this Fardbeyan given by Kalpana Devi, signatures of P.Ws. 2 and 5 have been taken as well as signature and thumb mark of Kalpana Devi were also taken and it was also signed by P.W.-10. After recording this Fardbeyan, FIR was lodged on 21st July 2000 at 23:30 hours. Fardbeyan was recorded on 21st July 2000 at 13:30 hours whereas Kalpana Devi was admitted to Parwati Clinic on 19th July, 2000 during night hours. On the basis of this FIR, investigation was taken up, statements of several witnesses were recorded under Section 161 of Cr. P.C. and thereafter, charge-sheet was filed along with exhibits, which are Fardbeyan-Ext.- 1, Postmortem report- Ext.- 2, FIR at Ext.-3, Inquest Punchnama -Ext.-4, Case diary- Ext.-6 and such other documents. Thereafter, the case was committed to the Sessions Court being Sessions Trial No. 240/2001 and on the basis of the evidences of P.Ws. P.C. and thereafter, charge-sheet was filed along with exhibits, which are Fardbeyan-Ext.- 1, Postmortem report- Ext.- 2, FIR at Ext.-3, Inquest Punchnama -Ext.-4, Case diary- Ext.-6 and such other documents. Thereafter, the case was committed to the Sessions Court being Sessions Trial No. 240/2001 and on the basis of the evidences of P.Ws. 1 to 10, the Additional Sessions Judge, FTC, Koderma has convicted these appellants for the offence of murder of the deceased under Section 302 IPC read with Section 34 IPC for life imprisonment and these appellants have further been convicted for offence punishable under Section 498A IPC read with Section 34 IPC and also under Sections 3/4 of the Dowry Prohibition Act, 1961, but no separate sentence has been awarded for the offence under Section 498A IPC and under Section 3/4 of the Dowry Prohibition Act, because they have already been punished to undergo life imprisonment for the offence of murder of the deceased. Against this judgment and order of conviction and sentence passed by the learned trial court, the present appeal has been preferred by the appellants. 6. Thus, looking to the evidences on record, it appears that the Fardbeyan of Kalpana Devi has been treated as dying declaration because the victim after her admission in Parwati Clinic on 19th July 2000, has expired on 29th July 2000. Fardbeyan was recorded on 21st July 2000 at about 13:30 hours and FIR was lodged on 21st July 2000 at 23:30 hours. Looking to the evidences on record, it further appears that there is a delay in recording the Fardbeyan and consequently, in lodging the FIR. No explanation of the delay has been given by the prosecution witnesses. It further appears from the evidences on record that even if the Fardbeyan is taken to be true, correct and genuine document, there is no allegation against the father-in-law, who is appellant No. 2 that he has caused injury upon the body of the deceased for causing her murder nor the husband has caused any injury which has resulted into the death of the deceased. Even if this Fardbeyan is accepted as it is, at least these two accused persons have not played any role in causing murder of the deceased and on the contrary, looking to the narration of the Fardbeyan, it appears that in fact, the husband has tried to save the life of the deceased. Even if this Fardbeyan is accepted as it is, at least these two accused persons have not played any role in causing murder of the deceased and on the contrary, looking to the narration of the Fardbeyan, it appears that in fact, the husband has tried to save the life of the deceased. Looking to the deposition given by P.W.-6-Dr. Hari Darshan Singh, the husband-appellant No. 4 brought the victim at his clinic namely, Parwati Clinic. Further this appellant No. 4 has given his blood to the victim to save her life and it is the husband who was purchasing the medicines to save the life of the deceased. Thus, looking to the overall evidences, Fardbeyan as well as deposition given by the doctor-P.W.-6, who is an independent witness, it appears that the husband-appellant No. 4, has not caused any offence much less the murder of the deceased. We fail to appreciate that how the chargesheet has been filed against this husband-appellant No. 4. Looking to overall evidence on record, it further appears that there is no explanation worth the name coming on record either from P.Ws. 2 and 4 or from the police officers, who are P.Ws. 8 and 10, for the delay in recording the Fardbeyan as well as FIR. There is direct nexus with the delay and false implication of the accused persons, mainly for the reasons that looking to para-1 of the deposition given by P.W.-6- Dr. Hari Darshan Singh who is the main Doctor of Parwati Clinic, and who has admitted the victim in his Parwati Clinic, he has stated that when the victim was admitted to his clinic, she was unconscious. Similarly, P.W.-2,Shanti Devi, the first witness, who rushed at Parwati Clinic, has also stated in paragraph No. 2 that Kalpana Devi was unconscious. No witness from P.Ws. 1 to 10 has stated that when Kalpana Devi regained her consciousness. In this set of evidences on record, there was a dire need on the side of the prosecution to explain the delay in lodging the FIR or in recording the Fardbeyan as the prosecution has failed to explain the delay, which is fatal to the prosecution and this aspect of the matter has not properly been appreciated by the learned trial court. 7. We shall look at the deposition of P.W.-2-Shanti Devi, who is close relative i.e. 'Mousi' (aunt) of the deceased, in detail. 7. We shall look at the deposition of P.W.-2-Shanti Devi, who is close relative i.e. 'Mousi' (aunt) of the deceased, in detail. Looking to the examination-in-chief and the cross-examination of P.W.-2, it appears that she has stated in paragraph No. 2 of her deposition before the trial court that when she was asking Kalpana Devi, her voice was not coming clearly. This witness has also stated in paragraph No. 2 that Kalpana Devi was suffering from burn injuries so severely that there was no chance to speak anything. This is the deposition given in her examination-in-chief. Moreover, looking to her cross-examination, she has stated in paragraph No. 3 that Kalpana Devi was unconscious and she was illiterate and she has no talk with her in the hospital. Looking to the evidences on record of P.W.-2, it emerges out from the deposition of this witness that:- (a) There was good terms between the deceased and the in-laws of the deceased. (b) The deceased- Kalpana Devi was unconscious. (c) She had suffered burn-injury so severely that there was no chance for her to speak anything. (d) When she was asking Kalpana Devi, her voice was not coming clearly. (e) In paragraph No. 4 of the deposition of P.W.-2, it has been stated that when the police reached at Parwati Clinic, Kalpana Devi (the deceased) was unconscious. Thus, at the time of admission in Parwati Clinic, i.e. on 19th July 2000 as also on the date of recording of her Fardbeyan i.e. on 21st July 2000 by P.W.-10, she was unconscious. It is also stated in paragraph 4 of deposition of P.W.-2 that still Kalpana Devi's unconsciousness has continued. (f) In paragraph-4 of the deposition of this witness, she has stated that the police has taken the signature of the victim- Kalpana Devi as well as of P.W.-2 on a blank piece of paper. (g) The police had never recorded her statement and thus, there is no previous statement of P.W.-2 under Section 161 Cr. P.C. (h) The thumb impression of Shanti Devi, P.W.-2, on the Fardbeyan has also not been proved by the prosecution. (i) She has stated in paragraph No. 5 that the in-laws of the deceased have never demanded anything from the victim's side persons. 8. P.C. (h) The thumb impression of Shanti Devi, P.W.-2, on the Fardbeyan has also not been proved by the prosecution. (i) She has stated in paragraph No. 5 that the in-laws of the deceased have never demanded anything from the victim's side persons. 8. Thus, from the deposition of P.W.-2, several aspects have come, which prove innocence of these appellants and are not leading towards the guilt of the appellants. Under what circumstances, the dying declaration recorded in the form of the Fardbeyan is narrated by this witness. This witness has not been declared hostile by the prosecution. Moreover, right from the very beginning, Kalpana Devi was unconscious. Even while recording the statement of the deceased, she was unconscious and the signature and the thumb impression were taken on blank paper. This creates a doubt about the veracity, correctness and truthfulness of the Fardbeywan, which is treated as dying declaration. 9. Looking to the deposition given by P.W.-4 (mother of the deceased), as she is close relative of deceased, her deposition has been verified with all circumspection. This witness has stated before the trial court that when she reached at Parwati Clinic, there was only one relative of the victim side person, who is P.W.-2. These facts have been stated in paragraph No. 2 of her deposition. This witness ousts the presence of the brother of the victim, who is P.W.-5 at Parwati Clinic. This witness has also stated in Paragraph No. 2 that when she asked Kalpana Devi about the incident, she has stated that the appellants have set her at fire because of non-payment of dowry. This P.W.-4 had also not got information from Kalpana Devi about the role played by her husband in causing burn-injury upon her. On the contrary, the husband has tried to save the life of the victim and looking to the deposition of this witness, it appears that no role played by the father-in-law in causing the murder of the deceased has been narrated. 10. Looking to the deposition of this witness from paragraph- 5, it further appears that the in-laws of the deceased were giving treatment. Thus, these circumstances are running counter to the case of the prosecution. Police had also not recorded the statement of the victim in her presence, but, her Fardbeyan was recorded prior to reaching of P.W.-4 at Parwati Clinic. Looking to the deposition of this witness from paragraph- 5, it further appears that the in-laws of the deceased were giving treatment. Thus, these circumstances are running counter to the case of the prosecution. Police had also not recorded the statement of the victim in her presence, but, her Fardbeyan was recorded prior to reaching of P.W.-4 at Parwati Clinic. So this witness has no knowledge, under what circumstances, Fardbeyan of Kalpana Devi was recorded by P.W.-10. She is not the eye witness of recording of the dying declaration by P.W.-10. She has reached later on, at Parwati Clinic. This witness-P.W.-4 was recalled on 17.11.2003 to give further evidence. It also appears that the learned trial court after taking deposition of P.Ws.-1 to 10 and after three months' period thereafter, had allowed this P.W.-4 to be recalled again. The deposition of P.W.-4 was completed in the year 2001 and unnecessarily, this witness was again offered for cross-examination. In paragraph nos. 11, 12 and 13 she has diluted the case of the prosecution and has created doubt in the mind of the Court. The learned trial court should have kept in mind that there was no need of recalling this witness for further cross-examination. This type of recall of witness cannot be allowed in any circumstance. In fact, her deposition was over in the year 2001 and in November 2003, she was recalled without any reason and now this witness says that there was no demand of dowry by the in-laws of the deceased. It appears that this witness was recalled and was also permitted to be recalled without any objection by the APP just to dilute the case of the prosecution and to help these appellants. This practice of recalling of the witness without any cogent and convincing reason, is hereby deprecated. We hereby, direct the Registrar General of this Court to send a copy of this paper book along with a copy of the judgment of the trial court:- (a) To the Director, Judicial Academy, Jharkhand, Ranchi. (b) To the Director, Sri Krishna Institute of Public Administration (SKIPA). (c) To the Principal, Police Training Centre at Hazaribagh. So that similar type of error may not be repeated by the APP and by the Trial Courts' Judges in future. (b) To the Director, Sri Krishna Institute of Public Administration (SKIPA). (c) To the Principal, Police Training Centre at Hazaribagh. So that similar type of error may not be repeated by the APP and by the Trial Courts' Judges in future. As the evidence on record at Paragraphs No. 11 to 13 has not been properly appreciated by them and this P.W.-4 has also not been declared hostile. We have no option, but, to appreciate the evidence given by P.W.-4 as a whole. Looking to these evidences in paragraphs No. 11 to 13, there was no demand of dowry by the in-laws of the deceased. This witness has also stated in paragraph no. 12 of her deposition that when she reached Parwati Clinic, her daughter was not alive. Thus, it appears that after recalling, she has given her deposition absolutely in favour of these appellants. The trial court as well as APP as well as I.O. are negligent enough in allowing this type of recalling of the witness. In paragraph no. 13, she has also stated that her daughter expired because of epilepsy. A judge is not a silent spectator in the Court. He must have used his knowledge that what will happen, if recalling of the witness is allowed unnecessarily after long lapse of time of several months. There is totally indifferent approach on the part of the learned trial court, APP and the Investigating Officer. Nonetheless, looking to the evidences on record, a doubt is created about the consciousness of Kalpana Devi, when her Fardbeyan was recorded, because the whole case of the prosecution is based upon the Fardbeyan, which is treated as a dying declaration by the trial court. The whole case is based upon this document alone. 11. Looking to the deposition of P.W.-5, who is the brother of the deceased, it appears that his presence is not pointed out by P.W.-4-mother of the deceased, at Parwati Clinic. She has stated in paragraph No. 4 that when she reached Parwati Clinic, only Shanti Devi was present and no other family members were present at Parwati Clinic. This witness has proved the signature upon the Fardbeyan and has also stated that she had talked with her sister. She has narrated about the role played by these appellants in causing injuries to her. This witness has proved the signature upon the Fardbeyan and has also stated that she had talked with her sister. She has narrated about the role played by these appellants in causing injuries to her. Even as per deposition of this witness-P.W.-5, there is no role of the husband as well as the father-in-law of the deceased in causing injuries to the deceased. This witness has also stated in paragraph no. 3 of his deposition that there was no demand of any dowry from her sister by the in-laws of the deceased. Thus, the in-laws of the deceased had also never assaulted the deceased. This witness has also stated that her sister has expired because of sickness of epilepsy. This witness was also unnecessarily recalled on 17.11.2003. This witness has also not been declared as a hostile witness. Thus, there was no demand of dowry nor there is any harassment and the deceased expired because of epilepsy. 12. Looking to the deposition given by P.W.-6, Dr. Hari Darshan Singh, who is the chief Doctor of Parwati Clinic, it appears that he has stated in paragraph 5 of his deposition that when Kalpana Devi was admitted, she was accompanied by her husband, who is appellant no. 4. Moreover, he has stated that she was unconscious. This witness has also stated about the fact that the husband of the deceased had given his blood to save the life of the deceased and the husband was also purchasing the medicine and was fully cooperating in the treatment. Thus, it appears that the appellant no.4 has not committed any offence, as alleged by the prosecution. Neither from the Fardbeyan, anything is coming out against the husband nor from the depositions of any of the prosecution witnesses, it appears that appellant no. 4-husband is accused of any of the charges levelled against him. This aspect of the matter has also not been properly appreciated by the learned trial court. Moreover, looking to the cross-examination of this witness, it appears that the deceased was not conscious and nowhere this Doctor has stated that when she regained her consciousness. Similarly, looking to the deposition given by P.W.-7-Dr. This aspect of the matter has also not been properly appreciated by the learned trial court. Moreover, looking to the cross-examination of this witness, it appears that the deceased was not conscious and nowhere this Doctor has stated that when she regained her consciousness. Similarly, looking to the deposition given by P.W.-7-Dr. Shiv Nandan Prasad Singh, it appears that this Doctor (P.W.-6) has also stated that the patient was not in a position to talk but simply her eyes were open and neither she was following the talk nor she was able to talk. This was the position of the patient as per the medical evidence given by P.W.-6. Looking to the deposition given by P.W.-7-Dr. Shiv Nandan Prasad Singh, who has carried out postmortem on the body of the deceased, it appears that he has stated that superficial two deep burn injuries were there on face, both arms and fore arms. Looking to these evidences on record of P.W.-2, P.W.-4 and P.W.-6, it appears that there were burn injuries on arms and forearms and then how the thumb mark impression was taken by the police, is doubtful. However, how her signature was taken upon the dying declaration, is also doubtful, because P.W.-2 has clearly stated that she (the deceased) was illiterate. Moreover, P.W.-6 has stated that she was unconscious and she was not able to understand the talk nor she was able to speak. This makes the document, which is Fardbeyan, a doubtful document, which is treated as a dying declaration because the victim expired on 29.07.2000 i.e. approximately after about 9 days of the incident. 13. Looking to the deposition given by P.W.-10, who is Arun Kumar Srivastava, Reserve Sub Inspector, who has recorded the Fardbeyan of the deceased at Parwati Clinic, it appears that he was called by the Doctor-P.W.-6, when the patient was admitted on 19th July, 2000 and when he reached immediately upon the Doctor's call at Parwati Clinic on 19th July, 2000 or may be in early hours of 20th July, 2000, how the Fardbeyan was recorded on 21st July, 2000 at 13:30 hours. This creates a lot of doubt in the mind of the Court. The delay in recording the Fardbeyan is not explained at all by this witness. P.W.-6-Dr. This creates a lot of doubt in the mind of the Court. The delay in recording the Fardbeyan is not explained at all by this witness. P.W.-6-Dr. Hari Darshan Singh has stated in paragraph no.1 of his deposition that he called police for the said case and his statement was also recorded by the Police, meaning thereby, the police had reached on 19th July, 2000 or at the most by early hours of 20th July, 2000, whereas, so-called Fardbeyan-dying declaration was recorded on 21st July, 2000 at 13:30 hours but it is not the case of the prosecution that the police had come again, as she (the deceased) was unconscious and after regaining consciousness, again the police has reached, nor it is a case of the prosecution that the Police had waited for more than 24 hours in the Parwati Clinic. There were burn injuries at her hand and forearms, then how the thumb mark impression has been given is also doubtful. Though other prosecution witnesses have stated that Kalpana Devi was unconscious and illiterate, as stated by P.W.-2 and P.W.-6, then how her signature has been taken on the dying declaration. This makes the Fardbeyn-dying declaration as a doubtful document. It cannot be said that the prosecution has proved this document beyond reasonable doubt. 14. Looking to the deposition of P.W.-8-Sub Inspector of Police, it appears that he has stated in paragraph No. 41 of his deposition that when he visited the place of occurrence, he has not observed or he has not seen the kerosene or the smell of kerosene. If the kerosene was poured upon the deceased, there could have been mark of kerosene or the smell of kerosene at the place of occurrence, because it has been stated in paragraph no. 42 of the deposition of the police-witness-P.W.-8 that the place of occurrence is a 'Kachcha' construction, made of mud etc. If this is the nature of the place of occurrence, it will absorb the kerosene and the smell could have been there at the place of occurrence. 15. As a cumulative effect of the evidences on record, it appears that the prosecution has not been able to prove the dying declaration-Fardbeyan, beyond reasonable doubt. Consciousness of Kalpana Devi is also doubtful. Signature of Kalpana Devi upon Fardbeyan is also doubtful, because she is an illiterate lady, as per the prosecution witness. 15. As a cumulative effect of the evidences on record, it appears that the prosecution has not been able to prove the dying declaration-Fardbeyan, beyond reasonable doubt. Consciousness of Kalpana Devi is also doubtful. Signature of Kalpana Devi upon Fardbeyan is also doubtful, because she is an illiterate lady, as per the prosecution witness. There were burn injury upon hand and forearm and therefore, also, the thumb impression of Kalpana Devi upon the Fardbeyan is also doubtful. There was no demand of dowry, as per the mother of the deceased and no harassment to her from the in-laws of the deceased, even as per the mother and the brother of the deceased. 16. Looking to the evidences and also looking to the fact that there is no role played by the appellant no. 4-husband and the appellant no. 2-father-in-law as per the narration in the depositions, we are of the opinion that it is highly doubtful that these appellants have committed the murder of the deceased and it is also doubtful that they have harassed Kalpana Devi and the victim was subjected to cruelty by these appellants and there was also a doubt about the demand of dowry by these appellants. 17. Looking to the evidences on record, the prosecution have failed to prove the charges levelled against these appellants beyond reasonable doubt. We hereby quash and set aside the judgment of conviction dated 27th February, 2004 and order of sentence dated 28th February, 2004 passed by Additional District and Sessions Judge, F.T.C., Koderma in Sessions Trial No. 240 of 2001 after giving benefit of doubt. Appellant nos. 1 and 2 have already been enlarged on bail by suspension of order of sentence. They have already undergone 10 years 10 months and 9 years and 10 months' imprisonment respectively. They are hereby discharged from the liability of their bail bonds. So far as appellant nos. 3 and 4 are concerned, they are in judicial custody for 13 years 10 months and few days. They shall be released forthwith, if their presence is not required in jail for any other offences. 18. This appeal is accordingly, allowed and disposed of.