Honourable Mr. Justice Ashwani Kumar Singh
1. Heard Mr. Pankaj Kumar Singh, learned Amicus Curiae, for the appellant and Mr. S.N. Prasad, learned A.P.P., for the State. The sole appellant has preferred this appeal against the judgment of conviction dated 01.05.2009 and order of sentence dated 02.05.2009 passed in Sessions Trial No. 159 of 2004 arising out of Chandan P.S. Case No. 36 of 2003 by the learned Additional Sessions Judge, Fast Track Court, IVth, Banka by which he has been convicted u/s 304 IPC and sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 10,000/-. The trial court has also ordered that in case of failure to deposit the amount of fine the appellant will have to undergo rigorous imprisonment for two years in addition to the sentence awarded for the offence.
2. The prosecution case is based on the fardbeyan of the informant Pariya Devi, wife of the appellant, which was recorded by S.I. S.K. Mandal, Officer-in-Charge of Katoria police station on 10.06.2003 at 9.30 a.m. in Referral Hospital, Katoria. The informant, in her fardbeyan, alleged that she was married to the appellant about a year back, after his first wife deserted him as he frequently used to subject her with cruelty. She has further stated that she was taken to her matrimonial home about eight days back. Her husband, a labourer, was a drunkard and he frequently used to assault her. Her mother-in-law always took her side and protested against the act of her son. She has further alleged that in the preceding night at about 3 a.m. while she was fast asleep, her husband poured kerosene oil from Dhivri all over her body, and set her ablaze. On hue and cry raised by her, the neighbours and her sister-in-law came in rescue and took her to hospital. In the fardbeyan, it has also been stated that her husband also came to the hospital and had gone to bring medicine for her at the time of recording of the fardbeyan.
3. The thumb impression of the informant was taken on her fardbeyan. Her statement was recorded in presence of her brother Upendra Das and one Md. Anwar Hussain, the Block Development Officer, Katoria. The informant''s brother, Upendra Das, put his L.T.I. and Mr. Anwar Hussain, put his signature on the fardbeyan.
4. Mr. S.K.Mandal, the Officer-in-Charge of Katoria police station, after recording the fardbeyan of the informant, forwarded the same to the Incharge Anandpur outpost as the occurrence had not taken place within the jurisdiction of Katoria police station. Thereafter, one Panchi Lal, Assistant Sub-Inspector of Police posted at Anandpur outpost received the fardbeyan on 10.06.2003 itself. He took up the investigation himself and forwarded the fardbeyan to the Officer-in-Charge, Chandan police station for instituting the FIR. On 11.06.2003 at 4.30 p.m. one Sanjay Kumar, Officer-in-Charge, Chandan police station registered a formal FIR under Sections 324, 307 and 498A of the Indian Penal Code and directed that since A.S.I. Panchi Lal had already taken up the investigation he would continue with the investigation of the case.
5. During pendency of the investigation, the victim died, and her postmortem was conducted on 22.06.2003 at 1.30 p.m. in Jawaharlal Nehru Medical College, Bhagalpur. From the postmortem report, which has been brought on record, it appears that her dead body was received at 11 a.m. in the hospital on 22.06.2003. The victim had sustained 100% dermo-epidermal burn injury with line of redness involving the whole body. The injury sustained by her was antemortem and was caused by flame of fire. The doctor who conducted the postmortem examination has written in the postmortem report that the time elapsed since her death was between 12 to 36 hours.
6. On conclusion of investigation, the police submitted chargesheet in the case. The learned Magistrate took cognizance of the offence and after supplying the police papers in terms of Section 207 of the Code of Criminal Procedure, the case was committed to the court of Sessions for trial. The trial court framed the charges under Sections 302 and 498A of the Indian Penal Code against the sole appellant. The appellant did not plead guilty to the charges and claimed to be tried.
7. In course of trial, four witnesses were examined on behalf of the prosecution. Out of the four witnesses, P.W.1 Geniya Devi and P.W.3 Urmila Devi were declared hostile by the prosecution. P.W.4 Satish Chandra Singh, a formal witness is an Advocate''s Clerk and has proved the postmortem report which has been marked as Ext-4. In cross-examination he admits that neither the postmortem report was prepared in his presence nor he had any personal knowledge regarding the postmortem examination conducted on the dead body of the deceased.
8. The only other witness examined on behalf of the prosecution in course of trial is P.W.2 Sanjay Kumar. He is a police officer who was entrusted with the investigation at a later stage. In his examination-in-chief he has stated that he took up the investigation of the case on 15.09.2003 from one Dilip Kumar Singh. He futher states that he received the postmortem report and pursuant to direction of the Sub Divisional Police Officer and the Superintendent of Police submitted chargesheet in the case. He has proved the fardbeyan which has been marked as Ext-1, signature of Sanjay Kumar and Panchi Lal on the fardbeyan which were marked as Ext-2 and 2/1 respectively, formal FIR drawn in the writing of Sanjay Kumar, Officer-in-Charge of Chandan police station which has been marked as Ext-3. In cross-examination P.W.2 admits that at the time of occurrence he was posted at Samastipur. He had neither recorded statement of any witness in course of investigation nor inspected the place of occurrence. He further admits that there was nothing on record to show that the victim was under treatment in any hospital.
9. Mr. Pankaj Kumar Singh, learned Amicus Curiae, submits that the trial court erred in recording conviction of the appellant as there was no legal evidence to convict him. He submits that apart from the statement of the victim there is no other material to connect the appellant with the alleged offence. He submits that the trial court has erroneously treated the oral statement of the informant as dying declaration. Advancing his argument he further submits that in the present case no independent person has come forward to support the prosecution case. The fardbeyan has also not been properly proved in course of trial. He further submits that Mr. S.K.Mandal who recorded the fardbeyan has not been examined. The brother of the deceased Upendra Das, who is a witness to the fardbeyan, has also not been examined. Md. Anwar Hussasin, the Block Development Officer, Katoria who has also testified as a witness to the fardbeyan has also not been examined in course of trial. He further submits that the first two investigating officer Panchi Lal and Dilip Kumar Singh have not been examined by the prosecution in course of trial. There is no explanation, whatsoever, on behalf of the prosecution for the non-examination of all the aforesaid witnesses.
10. Learned Amicus Curiae, further submits that the fardbeyan is said to have been recorded in the hospital but neither any doctor who examined the victim nor any staff of the hospital has testified the fardbeyan. There is no certificate by the doctor to the effect that the victim was in a fit state if mind while making her fardbeyan. He also submits that the death of the victim seems to have taken place after ten days of the occurrence but no chit of paper regarding any treatment given to the victim during the intervening period has been brought on record by the prosecution. The doctor who conducted the postmortem examination has also not been examined by the prosecution in course of trial. The postmortem report has also not been duly proved in course of trial. The formal witness who has proved the postmortem report admitted that he had no personal knowledge regarding the incident.
11. On the other hand, Mr. S.N. Prasad, learned A.P.P. appearing on behalf of the State submits that a dying declaration can form the sole basis of conviction. In the present case, the trial court has rightly relied upon the oral statement of the informant and has treated the same as oral dying declaration.
12. Having heard the parties, in my view, learned A.P.P. is right in his submission that a dying declaration can form the sole basis of conviction, but if the same is of such nature, which inspire confidence in recording its correctness and further that it is not a result of concoction, tutoring or prompting. It is well settled that in case where the dying declaration is recorded by police, it has to be scrutinized very cautiously as the investigating agency is always interested in the success of the investigation. In the present case the oral statement of the informant has not been corroborated by any other witness. The scribe of the oral statement has not been examined in course of trial. The witnesses before whom the oral statement was recorded have also not turned up to support the authenticity of the statement recorded by police. The brother of the informant, Upendra Das, a witness to the fardbeyan, has not been examined by the prosecution during trial. The other identifying witness of the fardbeyan, Mr. Anwar Hussain, the Block Development Officer, Katoria has also not been examined during trial. Neither any doctor of the Referral Hospital has been examined by the prosecution nor any staff of the hospital has come forward to depose in Court. Under such circumstance, it has difficult to rely on the oral statement of the informant to record the conviction of the appellant. The dying declaration suffers from several infirmities and there is absolutely no corroboration.
13. Under the circumstances mentioned above, the impugned judgment and order of the trial court cannot be sustained. In the result, the impugned judgment dated 01.05.2009 and order of sentence dated 02.05.2009 passed in Sessions Trial No. 159 of 2004 by the Additional Sessions Judge, Fast Track Court, IV, Banka are set aside. The appellant Rajendra Das who is in jail, is directed to be released forthwith, if not wanted in any other case.
14. The appeal stands allowed. Let Mr. Pankaj Kumar Singh, learned Amicus Curiae, be paid a fee of hearing by Patna High Court Legal Services Committee since he has argued this appeal on behalf of the appellant.
