JUDGMENT : The instant criminal appeal has been preferred against the impugned judgment of conviction dated 27.04.2004 and order of sentence dated 28.04.2004, passed by learned 1st Additional Sessions Judge, Jamshedpur, in Sessions Trial No. 220 of 2001, whereby the appellant, who has been charged under Sections 307/34 and 324/34 of the Indian Penal Code has been held guilty for the charge under Section 326 of the Indian Penal Code and awarded rigorous imprisonment for three years for the offence committed and punishable under Section 326 of the Indian Penal Code. But by the same impugned judgment, learned trial court has acquitted co-accused Tarsem Singh of all the charges. 2. The prosecution case is based upon the fardbeyan of Binder Kaur (P.W. 5), wife of Baldeo Singh, recorded by Sub-Inspector of Police Kusum Pathak of Bistupur Police Station, on 08.02.2000 at T.M.H., Burn Casualty Unit at 13.30 Hrs., where informant has alleged that on 21.01.2000 at around 5.30 A.M. while she was preparing tea for herself, her husband demanded money for wine, but the informant refused to give money to him. Thereafter, her husband came from the back of the informant and poured kerosene oil on her body and ignited the matchstick. The informant has further stated that her mother-in-law and father-in-law were seeing the occurrence and her three daughters were sleeping. When the informant raised brawl for rescue, eldest daughter woke up and started crying but her mother-in-law and father-in-law, who were standing there said that “let her die”. It is further stated that the eldest daughter Kuldeep Kaur, aged about 11 years, opened the door and called an auto ricksaw (tempo). Informant has further stated that as soon as the door was opened, her husband put a quilt on the body of the informant to extinguish the fire and thereafter the eldest daughter has poured some water and took her on auto rickshaw to the police station. From there informant's mother, sister and brother brought her to T.M.H., where she is undergoing treatment. The informant has further stated that her husband has threatened her that if she will give statement against him, he will kill all the three daughters by putting them on fire and as such, she could not disclose the fact on the alleged date of occurrence but subsequently after gaining confidence, she has given her fardbeyan. 3. The informant has further stated that her husband has threatened her that if she will give statement against him, he will kill all the three daughters by putting them on fire and as such, she could not disclose the fact on the alleged date of occurrence but subsequently after gaining confidence, she has given her fardbeyan. 3. On the basis of the fardbeyan of the informant, police has registered Sidhgora P.S. Case No. 15 of 2000 dated 08.02.2000 under Sections 498 (A)/ 307/ 324/34 of the Indian Penal Code against three named accused persons. 4. After investigation, police has submitted chargesheet vide chargesheet no. 16 of 2000 dated 18.03.2000, under Sections 498 (A)/ 307/ 324/34 of the Indian Penal Code, against all three named accused persons namely Baldeo Singh, Tarsem Singh and Mahindra Kaur. 5. The cognizance of the offence has been taken vide order dated 01.04.2000 and the case has been committed to the court of Sessions vide order dated 20.06.2001. 6. The charge has been framed under Sections 307/34, 324/34 of the Indian Penal Code vide order dated 15.03.2002 against the accused persons namely Baldeo Singh, Tarsem Singh and Mahindra Kaur, to which the accused persons have pleaded their innocence and thus, they were put under trial. Subsequently Mahendra Kaur died and case against her has been dropped vide order dated 22.01.2004. 7. The prosecution, to prove its case has examined altogether five witnesses. Balwinder Kaur, sister of the informant, has been examined as P.W. 1, Jeet Kaur, mother of the informant, has been examined as P.W. 2, Kuldeep Kaur, eldest daughter of the informant has been examined as P.W. 3, who has been declared hostile by the prosecution, Guneshwar Singh, investigating officer of the case, has been examined as P.W. 4 and Bindar Kaur, informant and victim of the case, has been examined as P.W. 5. The prosecution has also adduced one documentary evidence in support of its case i.e. the injury report of Bindar Kaur (victim), which has been proved and marked as Exhibit- 1. 8. The prosecution has also adduced one documentary evidence in support of its case i.e. the injury report of Bindar Kaur (victim), which has been proved and marked as Exhibit- 1. 8. After closure of the prosecution evidence, the appellant along with accused person Tarsem Singh have been examined under Section 313 Cr.PC on 17.03.2004, where the appellant has categorically stated that he has been falsely implicated in this case as he has tried to save his wife by putting quilt on her body and also took her for treatment on a tempo by asking her daughter but the defence has not examined any witness nor adduced any documentary evidence. 9. After hearing the parties and on the basis of the materials available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant and held the appellant guilty under Section 326 of the Indian Penal Code. But by the same impugned judgment, learned trial court has acquitted co-accused Tarsem Singh of all the charges. Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal before this Hon'ble Court on 17.05.2004 which has been admitted for hearing vide order dated 08.07.2004. 10. Heard, learned counsel for the appellant Mr. Amit Kumar assisted by Mr. Binod Kumar Jha, Advocates. Learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted that though the charge has been framed against the appellant under Sections 307/34 and 324/34 of the Indian Penal Code but the appellant has been convicted for the offence committed and punishable under Section 326 of the Indian Penal Code. Learned counsel for the appellant has drawn attention of the Court towards the evidence of P.W. 5 Binder Kaur (victim of the case) and P.W. 3 Kuldeep Kaur (eldest daughter of informant) and has tried to impress upon the Court that mens rea is lacking in the present case, as such the appellant cannot be held guilty under Section 326/34 of the Indian Penal Code. Learned counsel for the appellant has further submitted that Balwinder Kaur (P.W. 1), sister of the informant and Jeet Kaur (P.W. 2), mother of the informant are hearsay witnesses and they are not eye-witnesses to the occurrence. Only P.W. 5 and P.W. 3 are the eye-witnesses to the occurrence. Learned counsel for the appellant has further submitted that there are contradictions in the evidence of the informant P.W. 5 from her fardbeyan, which has also not been exhibited in this case. Learned counsel for the appellant has further submitted that there is an inordinate delay in lodging the F.I.R. as the alleged date of occurrence is 21.01.2000 and the F.I.R. has been lodged on 08.02.2000 at Bistupur Police Station. Learned counsel for the appellant has further submitted that if a victim is brought before any hospital having burn injury, concerned police station is being informed but no such allegation was made by the victim, while she was brought to the T.M.H. It is only on 08.02.2000, a fardbeyan was recorded, justifying such delay that because of fear and threat given by her husband, she could not inform the police earlier, which is not acceptable, a person will speak truth while she was facing the trauma of such injury instead of disclosing the occurrence after approximately 20 days. Learned counsel for the appellant has further submitted that the doctor, who has treated the injured has also mentioned in the injury report, as accidental flame burn at 02.00 AM, as told by the patient, which has been proved and marked as Exhibit-1, and as such, the appellant cannot be convicted under Section 326 of the Indian Penal Code. Learned counsel for the appellant has further submitted that from perusal of the fardbeyan as well as the evidence of Kuldeep Kaur (P.W. 3) and the evidence of the victim Bindar Kaur (P.W. 5), it is apparent that this appellant was trying to extinguish the fire by putting quilt on the flame and the daughter has poured water, which shows that the appellant has no intention to kill the lady rather admitted fact in this case is that from the very beginning the informant has stated that the appellant being the husband has tried to extinguish the fire by putting quilt on the body of his wife. The evidence is sufficient to discard the case of the prosecution regarding putting his wife on fire. The evidence is sufficient to discard the case of the prosecution regarding putting his wife on fire. The fire was accidental, as such, it cannot constitute an offence under Section 326 of the Indian Penal Code. 11. Heard, learned counsel for the State, Mr. Gouri Shankar Prasad, Additional Public Prosecutor. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence has been rightly passed by the learned trial court on the basis of materials available on record. Learned counsel for the State has submitted that the wife of the appellant is the informant of the case and she has categorically stated in her fardbeyan that the appellant was demanding money for liquor, which was not provided by the victim/informant and thus, under anger, the appellant has poured kerosene oil on the body of the informant and ignited the match stick, due to which, body of the informant caught fire and as such, the learned trial court has rightly convicted the appellant and the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon'ble Court at this stage. 12. Heard, learned counsel for the appellant Mr. Amit Kumar assisted by Mr. Binod Kumar Jha, Advocates and learned counsel for the State, Mr. Gouri Shankar Prasad, Additional Public Prosecutor and perused the materials available on record i.e. F.I.R., framing of charges, five prosecution witnesses, one exhibit, statement of the appellant recorded under Section 313 CrPC and the impugned judgment of conviction and order of sentence. From perusal of the record, it appears that appellant has lodged this case after a delay of 19 days and in the initial information disclosed to the doctor as it appears from Exhibit-1 i.e. the injury report, the injury was because of accidental flame burn at 02.00 AM as told by the patient herself. From the evidence brought on record, it appears that in the fardbeyan, the informant has categorically stated regarding the attempt taken by the appellant in extinguishing the fire by putting a quilt, which has been supported by the informant herself, while deposing as P.W. 5 and the eldest daughter of the victim namely Kuldeep Kaur (P.W. 3), who has been declared hostile by the prosecution. P.W. 3 has categorically stated in her examination-in-chief as well as during her cross-examination that her father was trying to extinguish the fire. 13. P.W. 3 has categorically stated in her examination-in-chief as well as during her cross-examination that her father was trying to extinguish the fire. 13. Under the aforesaid circumstances, this Court is of the opinion that the appellant cannot be convicted for the offence committed and punishable under Section 326 of the Indian Penal Code, in view of lack of mens rea, which is evident from the evidence of the informant-cum-victim as well as her daughter Kuldeep Kaur (P.W. 3) and as such, the appellant deserves to be acquitted by giving benefit of doubt. 14. In the result, the impugned judgment of conviction dated 27.04.2004 and order of sentence dated 28.04.2004, passed by 1st Additional Sessions Judge, Jamshedpur in Sessions Trial No. 220 of 2001 arising out of Sidhgora P.S. Case No. 15 of 2000, corresponding to G.R. No. 260 of 2000, is hereby set aside and the appellant is acquitted of the charge and conviction under Section 326 of the Indian Penal Code by giving benefit of doubt. 15. The appellant, who is on bail is discharged from the liability of his bail bond. 16. Accordingly, the present criminal appeal is allowed. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.