Criminal Appeal (DB) No 307 of 1989 Against the judgment and order dated 19.05.1989 passed by Shri Chandra Shekhar Lal, Sessions Judge, Vaishali at Hajipur in Sessions Trial No 237 of 1988. 1 Jagdish Sahni 2 Prasidh Sahni, sons of Babu Lal Sahni 3 Madan Sahni, son of Mahabir Sahnik, residents of village Basanta Jahanabad, P S – Lalganj, District – Vaishali at Hajipur .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Miss Priya Gupta, Amicus Curiae For the Respondent/s : Miss Shashi Bala Verma, APP CORAM: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH) 1 The three appellants were charged with having committed the offence of burning to death one Phuljharia Devi, wife of Kali Sahni and were Patna High Court CR. APP (DB) No.307 of 1989 dt.18-08-2011 2 held guilty of offence punishable under Sections 302/34 of Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. 2 In brief, the prosecution case is that the three appellants treated the deceased Phuljharia Devi as a witch and, as such, when in the night of 3/4th March 1988, while she stepped out of her hut to urinate, the three appellants came and poured kerosene oil over her and ignited her and ran away. Upon her scream, various persons including her husband and her son came, tried to extinguish the fire and then carried her on a cot to the Referral Hospital, Lalganj. At Referral Hospital, Lalglanj, it was found that she had suffered 90% burn injury. In the Referral Hospital, a dying declaration is recorded by the doctor in presence of a Hospital employee and then Shri S N Singh, ASI of Lalganj Police Station records her statement which is treated as Fardbayan and on basis whereof, first information report is registered and investigation is given to Shri N P Singh, Sub Inspector of Police. In course of treatment at about 6 am on the 05th of March, 1988, Phuljharia Devi died. Inquest report was prepared and investigation taken up. Upon completion of investigation, chargesheet was submitted in which apart from others, son, daughter and husband of the deceased were shown as witnesses. Upon chargesheet having been submitted, cognizance having been taken, the case was committed to the Court of Session and the appellants having pleaded not guilty, were charged for offence under Sections 302/34 of Indian Penal Code and after trial, held guilty and sentenced accordingly to life imprisonment by the Sessions Judge, Vaishali at Hajipur in Sessions Trial No 237 of 1988 by judgment and order dated 19.05.1989. 3 Miss Priya Gupta, amicus curiae for the appellants submits that the conviction and the sentence are unsustainable. She submits that the only basis for conviction of the appellants is the so-called dying declaration. She Patna High Court CR. APP (DB) No.307 of 1989 dt.18-08-2011 3 submits that both the dying declaration and the Fardbayan cannot be relied upon and they are manipulated documents. Her submission would be that the true story comes out from the evidence of P W 1, namely, Prahlad Sahni who is the son of the deceased and was on the spot when she was on fire. He was with the deceased all along. He has not supported the prosecution case in his cross-examination and has not been declared hostile. The husband of the deceased, who was also there and was also in the Court on occasions and was a chargesheet witness, was also not examined. The daughter of the deceased was tendered as P W 6 and she admitted that she had come to the Court with her father. She does not say anything to support the prosecution. Thus, she submits that so far as the immediate relations of the lady are concerned, they do not support the prosecution story. The whole case is built upon the alleged dying declaration. 4 We have heard learned Amicus Curiae and learned APP and have perused the records. In our view, the appeal must succeed. The conviction and the sentence cannot be sustained. 5 Prosecution has, in all, examined eight witnesses. As noted earlier, P W 1 Prahlad Sahni is the son of the deceased Phuljharia Devi. P W 2 is a neighbour in whose presence from the burning site, burnt clothes and burnt hair were recovered and seizure list made. P W 3 is a villager who is also a seizure list witness but in his cross-examination, he states that after being burnt and the fire was extinguished, she was lying in unconscious state but as she was still breathing, she was taken to Hospital. P W 4 is Dr Anwar Alam who conducted the post mortem examination. He has clearly brought out that there was about 90% burn injury. He, in his cross-examination, admits that in view of 90% burn injury, the person would go into immediate shock. P W 5 is Dr Nawal Kishore Bareria. He is a very important prosecution witness inasmuch as he is alleged to have recorded the Patna High Court CR. APP (DB) No.307 of 1989 dt.18-08-2011 4 dying declaration (Exhibit-2) and a witness to the Fardbayan (Exhibit-4). In his examination-in-chief, in para-2, he clearly admits that the body of the deceased was totally burnt except the sole of the feet. This would be of some importance when his deposition is dealt in detail. He also specifically states that full face, both hands were burnt. There were virtually third degree burn injuries all over. P W 6 is the daughter of the deceased who has been tendered but in her cross-examination, she admits that she has come to the Court with her father who, as noted above, is a chargesheet witness and being the husband of the deceased and present when the occurrence took place, has not been examined by the prosecution and no explanation has been given. P W 7 is ASI Shyam Narayan Singh who is again an important prosecution witness. He was posted at Lalganj Police Station but appeared at the Referral Hospital for the purposes of recording the statement of the deceased which is Fardbayan (Exhibit-4) and requesting the doctor to issue the injury report (Exhibit-5) and record the dying declaration (Exhibit-5/1). P W 8 Sub Inspector of Police Naresh Prasad Singh is the Investigating Officer who has prepared the inquest report (Exhibit-8) and then submitted chargesheet. On behalf of prosecution, the post mortem report is exhibited as Exhibit-1 proved by the doctor (P W 4). The alleged dying declaration is Exhibit-2 and proved by P W 5, the doctor at the Referral Hospital. Exhibit-3 is the injury report again proved by P W 5. Exhibit-4 is the Fardbayan as recorded by ASI Shyam Narayan Singh (P W 7). Exhibit-5 is the carbon copy of requisition for injury report drawn up by P W 5 and proved by him. Exhibit-5/1 is a similar requisition for recording dying declaration made by P W 5. Exhibit-6 is the formal first information report. Exhibit-7 is the seizure list in respect of burnt clothes and hair and Exhibit-8 is the inquest report. 6 On behalf of prosecution, two witnesses have been examined Patna High Court CR. APP (DB) No.307 of 1989 dt.18-08-2011 5 to show that these witnesses were present having reached there when the deceased was screaming. They have deposed that the deceased was unconscious and had not named or spoken anything. Now, in order to appreciate the different submission that the prosecution case is a concoction and false, it would first be necessary to note sequence of events. The first document that comes is the requisition to prepare injury report that is Exhibit-5. This is made by ASI S N Singh (P W 7). The incident is of about mid night. The injury report is prepared by doctor who is P W 5 and it is Exhibit-3. The injury report mentions that the patient, in critical condition, was examined at 4.45 am with extensive burn injuries on 04.03.1988. The burn injuries clearly show that her entire body, except both feet below ankle, was burnt. More than half of scalp and hairs were burnt but what we find curious is that in this injury report, the doctor also notes that LTI has been taken on dying declaration. What we further find curious is that he has noted that inspite of these injuries, patient was restless and crying in agony. She was pulseless although conscious. From this injury report, it is evident that prior to preparing this document, a dying declaration had already been recorded by the said doctor (P W 5). That dying declaration appears to be Exhibit-2. We have seen its original. It is said to have been recorded at 5 am on 04.03.1988 and police was duly informed of this. It states that while the deceased had gone to urinate, three of the appellants had poured kerosene oil on her and put her on fire after removing her gold nose pin and upon cry of the deceased, persons came. This dying declaration is duly signed by the doctor (P W 5) and a Hospital employee who has not been examined. The left thumb impression of the deceased is taken. We wonder when, as per doctor’s own report that she was virtually totally burnt except her feet, how left thumb impression could be taken. On the said dying declaration, we find an endorsement probably of the same date of the Investigating Officer forwarding the dying Patna High Court CR. APP (DB) No.307 of 1989 dt.18-08-2011 6 declaration to the Chief Judicial Magistrate, Hajipur but what we find curious is that though the forwarding is of about 05th of March 1988, it is received by the Chief Judicial Magistrate on 31st of May, 1988 that is after almost two months. What is more curious is that if this is the first statement of a cognizable offence recorded and information of this is given to the police why this was not treated as the first information report and it appears to have vanished or it is possible that it was created subsequently which events will now disclose. As noted in this dying declaration that police was informed, ASI Shyam Narayan Singh (P W 7) turns up from the Lalganj Police Station to the Referral Hospital. He allegedly records the statement of this lady which is virtually the same as the dying declaration with an improvement. This is marked as Exuibit-4. This is recorded at 6.40 am on 04.03.1988. The improvement is that she is alleged to have named her husband, her son and others who had come to her rescue. These witnesses were now being planted. A close look at this Fardbayan would show that it is witnessed by the doctor (P W 5) who had earlier recorded the alleged dying declaration witnessed by a Hospital employee who is the same who had also witnessed dying declaration but has not been examined by the prosecution and this has been treated as the Fardbayan recorded at 6.40 am on basis whereof, the case is registered at 8.15 am and entrusted to the Investigating Officer, SI Lalganj P S Shri N P Singh (P W 8), to investigate. As then the lady was alive, case was registered under Sections 307, 379/34 of Indian Penal Code. A closer look at the first information report, which is exhibited as Exhibit-6, would show that it was sent to the Court on 05.03.1988. One thing must be noted here is that at about 4.30 in the morning of 05.03.1988, the lady had died which information police had received still when in the morning, the first information report was sent to the learned Chief Judicial Magistrate, Vaishali at Hajipur, it was sent for an offence under Sections 307, 379/34 of Indian Penal Patna High Court CR. APP (DB) No.307 of 1989 dt.18-08-2011 7 Code. What is more interesting is that the first information report reaches the Court only on the 08th of March, 1988 that is after three days though Lalganj and Hajipur is about 20 kilometers along the Highway itself. 7 We would pause here to notice two important aspects. Firstly, if the dying declaration (Exhibit-2) was recorded, as alleged, at 5 am, informing the police, then why was this not treated as the first information report. Secondly, when the police records the alleged statement of the lady which is the Fardbayan, the witness is the same doctor who had earlier recorded the dying declaration. The other Hospital employee is also the same but there is no mention in the Fardbayan or by the police there that a dying declaration had already been recorded by the same person. The effect would be that if the dying declaration, as recorded by the doctor, is treated as the first information report then this report, which is being treated as the Fardbayan would be a subsequent statement in course of investigation and would be a statement with reference to Section 161 of Criminal Procedure Code. This also creates serious doubts about the authenticity of the so- called dying declaration because if once the declaration was with the doctor, there was no requirement of recording a further statement of the victim. That was sufficient to institute the case but the same set of persons duplicate the process. 8 What is more curious comes now after the Fardbayan is recorded. The police is the same very ASI who has recorded the Fardbayan which is witnessed by the same very doctor yet the ASI is requisitioning the doctor to record a declaration. Therefore, the sequence is that though the dying declaration was recorded at 5 am, the Fardbayan is recorded at 6.40 am. The ASI requisitions for recording the dying declaration thereafter though the doctor who has recorded the dying declaration is a witness to the Fardbayan and was before the same ASI all along without mentioning the already recorded dying declaration. This points only Patna High Court CR. APP (DB) No.307 of 1989 dt.18-08-2011 8 to one inference. The inference is that both the dying declaration and the Fardbayan are concocted, false documents. 9 In our view, this aspect stands fully admitted and established by the deposition of P W 1, the son of the deceased, who was, admittedly, present at the place of occurrence and who had carried the deceased to the Hospital and was with the deceased all along, clearly states, in his cross-examination, that his mother was unconscious right through. She had given no statement. ASI P W 7 had obtained thumb impressions on two blank papers for implicating persons allegedly in order to save this deponent. If any further corroboration of this is to be found, it is to be found in the deposition of the Investigating Officer (P W 8) who clearly deposes that he had found the deceased unconscious and told the doctor that as soon as she gains consciousness, he should be informed. He was never so informed. He does not disclose that when he first went to the Hospital after the first information report was registered that the doctor disclosed that he had recorded a dying declaration. The dying declaration bears Investigating Officer’s endorsement of the next day that is 05.03.1988 when he had prepared the inquest report though the dying declaration had already been allegedly in existence for over 24 hours without anyone noticing it. These facts, in our view, are sufficient to demolish the authenticity of the prosecution case based on the dying declaration and/or the Fardbayan. If that falls, there is no case of the prosecution left. 10 We may also notice that in the Fardbayan itself, the improvement over the dying declaration was naming the husband, the daughter and the son of the deceased as witnesses to the burning. As noted earlier, though one son, daughter and husband of the deceased have been shown as chargesheet witnesses, the son has been brought in as P W 1 who has totally challenged the prosecution story. The daughter has been brought in as P W 6 but she has only Patna High Court CR. APP (DB) No.307 of 1989 dt.18-08-2011 9 been tendered. The husband of the deceased, though present in the Court as evident from the cross-examination of the daughter (P W 6), was never even put up for examination. All these facts, taken together, prove the innocence of the appellants rather than their guilt. 11 We may also notice here that when the ASI that is P W 7, who was instrumental in getting the dying declaration recorded and recorded the Fardbayan was examined, he was unable to prove much less bring on record as to how he reached from the Lalganj Police Station to the Referral Hospital. Who order him to go? He was unable to say. In what authority, he was at the Referral Hospital? He was unable to say. Why he did not look for an Executive Magistrate to record the dying declaration, he does not say though he admits that within close vicinity, Circle Officer, Block Development Officer were there and available but what steps he had taken to call them is not disclosed. 12 When the doctor who recorded the dying declaration is examined as P W 5, we find that though he admits that she was totally burnt, except some part of her foot, still he admits that she was mentally stable and alert. In the injury report, he records that she was restless but conscious with 90% burn injuries, half of her scalp had burnt away. We wonder how in such a state, could any person speak so clearly. He also admits that Block Development Officer, Circle Officer are there at Lalganj itself, there is Municipality office also there, the Executive Officer of the Municipality also stays close to the Police Station. He has given no explanation as to why no Executive Magistrate was informed or called. He has further given no explanation why when he had already recorded the declaration, he did not mention it when Fardbayan was being recorded and where was the necessity of requisition being made subsequently for recording the dying declaration. 13 Thus, in our view, the facts aforesaid clearly point to the Patna High Court CR. APP (DB) No.307 of 1989 dt.18-08-2011 10 innocence and false implication of the appellants and the prosecution has failed to establish the charge, the result being that the appeal is allowed and the appellants are acquitted of the charges. As they are on bail, they are discharged from the liabilities of their bail bonds. 14 In view of the valuable assistance rendered by Miss Priya Gupta, she is entitled to one hearing fee from the Patna High Court Legal Services Committee. (Navaniti Prasad Singh) Ashwani Kumar Singh, J I agree. (Ashwani Kumar Singh) Patna High Court, The 18th of August, 2011, N A F R, M E Haque/