Criminal Appeal (SJ) No. 102 of 1999 ~~~~~~ Against the judgment of conviction and order of sentence dated 07.04.1999 respectively passed by Sri Abdul Samad, learned 3rd Additional Sessions Judge, Munger in Sessions Trial No. 374 of 1997. ~~~~~~ Nageshwar Sah, Son of Late Ramotar Sah, resident of village – Lahchi, Police Station – Kharagpur, Distt. Munger. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellant : Shri Kanhaiya Prasad Singh, Sr. Advocate. Shri Kamal Kishore Jha, Advocate. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for the offence under Section 304B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and further convicted under Section 498A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. However, it has been held that both the sentences shall run concurrently. 3. The prosecution case, as alleged, in the fardbeyan of Sita Devi the victim on the basis of which the FIR was lodged that on 04.11.1996 at about 8:00 P.M. while she was working in her room her husband came and set fire on her person. When the fire setting then he went out and thereafter threw a bucket of water on her. But the fire did not set off. Thereafter her “Bhasur” Vinay Sao came from another room and set off the fire. She (victim) got unconscious. When she regains consciousness then she found herself in Sadar Hospital where she gave her statement. The further case as alleged in the fardbeyan is that her marriage was solemnized on 26.02.1996. At 2 the time of her marriage her parents given Rs.41,000/- cash and articles demanded by the Sasural people. Her husband used to be angry with her. Her father also fulfilled the demand of Rs.10,000/- recently. Whenever her Naihar people used to come for her Bidai, the in-laws refused to send her to Naihar. On 04.11.1996 while she was working, her husband came with a “Diya” and set fire on her and throws the oil of “Diya” on her person. 4. The fardbeyan of the victim was recorded by Md. Islam (P.W. 8) at Sadar Hospital, Munger on 05.11.1996 at 10:30 A.M. The said fardbeyan was forwarded to Officer-In-Charge. The FIR was lodged on 06.11.1996 for the offence under Sections 498, 324 and 307 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act. The victim died during her treatment at the stage of investigation itself and hence Section 302 of the Indian Penal Code was added in the FIR as per the order of the C.J.M. dated 29.01.1997. After investigation the charge-sheet was submitted for the offence under Section 302 and 498A of the Indian Penal Code and Section 3/ 4 of the Dowry Prohibition Act against the sole accused Nageshwar Sao. Subsequently, the cognizance was taken and case was committed to the court of Sessions. However, after framing of the charge notices were issued to Paro Devi, Mira Devi and Vinay Sah and charges were framed against them as well as the husband Nageshwar Sao for the offence under Sections 304B and 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. During the trial 10 witnesses were examined on behalf of the prosecution. 5. P. W. 1 Dr. Subash Chandra who conducted the post-mortem on the person of the deceased Sita Devi aged about 19 years wife of Nageshwar Prasad Sao on 21.01.1997. He found the anti mortem burn injuries which were in the process of healing involving chest, abdomen, lower extremities up to knees and upper 3 extremities and death was due to septicemia and in cross-examination he has stated that he did not found any burn injury in the back of the deceased. 6. P. W. 2 Ayodhya Sao a co-villager has proved the inquest report marked as Ext. 2. 7. P. W. 3 Surendra Das has proved the formal FIR which is marked as Ext. 3. 8. P.W. 4 Baleshwar Sao is the father of the victim. He has stated that the victim Sita Devi was married with the accused appellant Nageshwar Sao on 26.02.1996. He had given dowry according to his ability. He has further stated that his son-in-law used to assault his daughter for dowry and money. He has further stated that he used to visit her Sasural whenever he received the information about the assault on the person of the victim by her in-laws. He has further stated that his statement was recorded by the police on 21.01.1997 which has been marked as Ext. 4. He has further stated that his daughter disclosed about the occurrence that her husband, Bhaisur and mother-in-law attempted to kill her wife by sprinkling kerosene and setting on fire. 9. P. W. 5 Ahilya Devi is the mother of the victim. She has also stated that the victim Sita Devi was married with Nageshwar Sao. Her statement was recorded by the police before her and at the time of recording her statement her husband was also present there. She has further stated that she along with her husband and her son signed on the statement recorded by the police and has proved it as Ext. 5. 10. P. W. 6 Madan Sao is a co-villager of the accused Nageshwar Sao and has come to depose that on Hulla about the setting fire he went there and saw Murli Chaudhary taking statement of wife of Nageshwar Sao and Nageshwar Sao her mother, brother and Bhabhi were setting off fire on Sita Devi. 11. P. W. 7 Mrs. Manju Bala Poddar is the Sub-Inspector who has formally proved the fardbeyan of Baleshwar Prasad Sah recorded on 21.01.1997 which has been marked as Ext. 5/1. He has also proved the fardbeyan of Sita Devi in the writing 4 of Md. Islam, Kotwali police with an endorsement of Md. Islam the then Officer-In- Charge which has already been marked as Ext. 5. 12. P. W. 8 is Md. Islam and has proved Ext. 7 the fardbeyan of Nageshwar Prasad recorded by him on 04.11.1996 at 7:15 P.M. at Sadar Hospital, Munger / Siwan. He has also stated in his cross-examination that he recorded the statement of Sita Devi and at the time Sita Devi was fully conscious. He has further stated that at the time he recorded the statement of Sita Devi her father, mother and brother were present. There he read over the statement recorded by him before them and she put her thumb impression and her father, mother and brother were also signed on the said document on it. 13. P. W. 9 Md. Wahid Khan S.I. of Police Bariarpur has stated that on 05.11.1996 he was Officer-In-Charge of Kharagpur police station. On that date he received the fardbeyan of Sita Devi which has been marked as Ext. 5. He has further stated that he also received one fardbeyan of Nageshwar Sao and he lodged the FIR on the basis of the fardbeyan of Sita Devi and Sita Devi died on 29.01.1997 and thereafter Section 302 of the Indian Penal Code was added and has also proved the FIR which has been marked as Ext. 3 and also proved the seizure list which has been marked as Ext. 8. 14. P. W. 10 is Vinay Kumar Sinha and has produced the photo copy of the sanctioned order for sanction of prosecution under Section 3/4 of the Dowry Prohibition Act which has been marked X for identification. 15. The defence has examined two witnesses. D.W. 1 Murlidhar Jaiswal and D.W. 2 Dilip Sah. They have proved Ext. A the statement of the victim Sita Devi recorded by D. W. 1. 16. The defence of the accused person as appears from the fardbeyan of Nageshwar Sao as well as the statement under Section 313 Cr. P. C. that they have 5 falsely been implicated for extorting money. They have asserted that the occurrence took place due to accidental fire setting while the victim was boiling the water. The defence set up in the fardbeyan of Nageshwar Sao dated 4.11.1996 marked as Ext. 7 recorded at 7:15 P.M. that he went to his shop at about 1:00 P.M and about 3:30 P.M. he heard Hulla and then he rushed to his house. He saw that her wife Sita Devi was burning and he anyhow managed to set up fire by putting blanket. At that time there was no one in the house and she burnt brutally as a lot of time was taken in reaching at the place of occurrence from the shop and then he arranged vehicle and took her to Sadar hospital. However, D. W. 1 has stated in his evidence that on 4.11.1996 at about 9:00 A.M. he learnt that the wife of Nageshwar Sao has burnt. He went to the house of Nageshwar Sao there he found Nageshwar Sao was putting ointment on the burn of the victim Sita Devi the wife of Nageshwar Sao. He inquired from the wife of Nageshwar Sao. She disclosed that her father had taken her on 03.11.1996 but even after repeated request she was not allowed to go and so she sprinkled kerosene and set her on fire. He recorded the statement and she was in full sense and he read it over and he signed twice and he has proved the said record which has been marked as Ext. A with objection. Nageshwar Sao thereafter brought and took her for her treatment. However, in cross-examination stated that he did not show the Ext. A to the police and at that time he recorded the statement several people were there but he did not found it necessary to take the signature of anyone as he himself was the Magistrate. He has further stated that his statement was not recorded by the police. 17. D. W. 2 has stated that on Monday at 9:00 A.M. on Hulla he went to the house of Nageshwar Sao and saw the female inmates of the family are setting off fire on Sita Devi and Murlidhar Jaiswal also reach there and she has stated that fire as she was not allowed to go to her Naihar. 6 18. The trial court taking into consideration the evidence held that the evidence of P. Ws. 1, 4, 5, 9 and 10 are material witnesses and P. W. 1 has conducted the post- mortem on the person of the deceased and found burn injury. He has further taken into consideration the fardbeyan Ext. 5 where she has specifically stated about setting on fire by her husband and the other accused in another room at the time of occurrence. P. W. 4 in para 5 stated that her daughter Sita Devi made her statement before Kotwali Police and at that time he along with his wife and son were present. P. W. 5 the mother of the deceased in her deposition in para 2 has stated that the police recorded the statement of her daughter in her presence as well as in presence of her husband and son. P. W. 8 Md. Islam, P.S.I. in Kotwali P.S. recorded the fardbeyan of the deceased and he has stated that at the time when he recorded the statement, the victim was conscious and her parents and brother were present there and the said fardbeyan was read over and explained to them on which she put her thumb impression. P. W. 9 the I.O. has also stated that he submitted the case on the fardbeyan of Sita Devi. The trial court further considered some minor discrepancies in the evidence and held that the discrepancies pointed out are minor and natural and they do not go to the route of the case and held that the defence set up are fluctuating and not believable and further that the witnesses are not worthy of confidence and the so called dying declaration Ext. A has not been signed by any witnesses and D. W. 1 though claimed to have recorded the statement but has signed on Ext. A as a witness and further the paper did not see the light of the day during the investigation and was produced for the first time in court during the trial. The fardbeyan of Nageshwar Sao also does not mention about the confessional statement recorded by D. W. 1 and hence it is not safe to put the reliance on the defence set up by the accused persons and the defence plea was rejected and the trial court convicted the accused persons treating taking into consideration the evidence of the witnesses and further treating 7 Ext. 7 as dying declaration admissible under Section 32(1) of the Evidence Act and hence convicted the appellant Nageshwar Sao. However, acquitted Paro Devi, Mira Devi and Vinay Sah on the ground that the prosecution has not been able to prove the charges against them beyond reasonable doubt. Involvement of Paro Devi, Mira Devi and Vinay Sah has not been established beyond reasonable doubt and the evidence of the parents of the victim regarding their involvement in the crime suffer from material irregularity and material contradictions and found the evidence of P. Ws. 4 and 5 to the extent of the allegation of setting on fire and demanding dowry by Paro Devi, Mira Devi and Vinay Sah was not found to reliable and trustworthy and hence acquitted and further having regard to the fact that sanction for prosecution for offence under Section 3 and 4 of the Dowry Prohibition Act having not been proved and hence on the technical ground the conviction under Section 3/4 of the Dowry Prohibition Act was not recorded. 19. Learned counsel for the appellant, however, contended that the order of conviction and sentence recorded by the lower court is not sustainable as the fardbeyan which has been proved as Ext. 5 cannot be treated as dying declaration as the same has not been proved by the person who recorded the fardbeyan. It has further been contended that in the said fardbeyan Ext. 5 there is no mention of subjecting cruelty for non-fulfillment of the demand and hence the ingredients of Section 304B of the Indian Penal Code is not established. It has further been contended that the fardbeyan of Baleshwar Prasad Sah is hit by Section 161 Cr. P. C. and further it is alleged that the appellant set fire from back but no injury on the back of the victim and further there are several dying declaration on the case and the dying declaration recorded by D. W. 1 and the evidence of P. Ws. 4 and 5 regarding the dying declaration is not acceptable and hence the prosecution case has not been able to proved the charges beyond reasonable doubt. 8 20. Learned counsel for the State, however, submits that the prosecution has proved the case beyond reasonable doubt. 21. However, the admitted case is that the victim got burnt injury and the case of the prosecution based on the fardbeyan of the victim on the basis of which the FIR was lodged. P. W. 8 has recorded the statement of the victim at Sadar Hospital and was forwarded to Kharagpur Police Station. P. W. 9 in his evidence has stated that he received the fardbeyan of Sita Devi recorded by Kotwali Police Station and has proved Ext. 5 on the basis of which the FIR was lodged. P. W. 9 has stated that after the death of Sita Devi Section 302 of the Indian Penal Code was added and has proved the formal FIR marked as Ext. 3 and has also proved the place of occurrence the house of Nageshwar Sao. P. W. 8 has proved Ext. 7 the fardbeyan of Nageshwar Sao on 04.11.1996 at 7:15 P.M. However, this P.W. 8 apparently has recorded the statement of Nageshwar Sao on 04.11.1996 and also recorded the statement of Sita Devi and in the cross-examination has stated that he recorded the statement of Sita Devi who was in full conscious state in presence of her father, mother and brother and he even read over the content and after hearing she put her L.T.I. and her father mother and brother also signed. P. W. 4 is the father who is in his evidence at para 5 stated that Sita Devi has given her statement before the Daroga of Kotwali Police Station and he along with his wife and son signed. P. W. 5 is the mother of the victim and she has stated that the statement of her daughter was recorded by the police before her and at that time her husband was also present there when the statement of her daughter was recorded by the police and she signed along with her husband and son and she has also proved her signature. The said fardbeyan has been marked as Ext. 5. Hence, it is apparent that the said Ext. 5 was recorded by P. W. 8 Md. Islam who has come to depose that he recorded the statement of the victim. He has further deposed that the victim was in full sense and this has supported by P. Ws. 4 and 5 9 who has signed the said document fardbeyan on 05.11.1996 which was sent for lodging the FIR and the FIR was duly lodged and the said FIR has been proved and marked as Ext. 3 by P. W. 9 the I.O. of the case and hence taking into consideration the evidence of P. Ws. 4, 5, 8 and 9. It has well been established that P. W. 8 is the person who recorded the statement. P. W. 8 has deposed that he recorded the statement and at that time the victim was in full sense and the said paper was signed by the witnesses P. Ws. 4 and 5 and the victim has also put her L.T.I. Hence, it is apparent that the person who recorded the statement of the victim has come forward and deposed that he recorded the statement of the victim and the victim was in full sense and the statement was recorded before her father, mother. There is nothing in the evidence that the said statement was tainted and the father and mother has also come forward to support that the statement recorded before them by the police officer on the basis of which the FIR was lodged and hence from the evidence of the witnesses it is apparent that Ext. 5 is the dying declaration of the victim who died during the treatment. 22. Hence, taking into consideration the evidence it has been established that the marriage solemnized within nine months of the occurrence soon before the death of the victim and the victim was subjected to cruelty for non-fulfillment of demand of dowry. Hence, the Court shall presume the dowry death then offence under Section 304B of the Indian Penal Code is established in view of presumption under Section 113 B Cr.P.C. However, in this case there are several fardbeyans. The fardbeyan of Baleshwar Sao recorded on 21.07.1997 after the death of the victim is hit by Section 161 Cr.P.C as statement was recorded during investigation and it does not affect the case of the prosecution. However, P. Ws. 4 and 5 regarding the claim about what was disclosed by the victim to them and taking them as dying declaration which are with regard to the implication of the in-laws the Bhainsur, mother-in-law and Gotani and is 10 not much relevant when the appellant is only Nageshwar Sao. However, the fardbeyan of Baleshwar Sao is of no relevance. The competition of the prosecution case is with regard to the defence set up in the fardbeyan of Nageshwar Sao which has been marked as Ext. 7 and the defence set up that the occurrence took place at 2:30 P.M. and the defence set up at Ext. 7 that the occurrence took place at 2:30 A.M. and Nageshwar Sao went to his shop at about 1:00 P.M. and in Ext. 7 there are two witnesses have been named, namely, Murlidhar Jaiswal, Sarpanch and Ashok Kumar who are D.W. 1 and D.W. 2 has signed as witnesses on the said fardbeyan. The defence set up at 2:30 P.M. This Nageshwar Sao heard the Hulla and rushed to his house and saw fire having been setting and then he set out the fire and claimed that he was living with the wife happily and he took the victim to Sadar Hospital. However, D. W. 1 has stated in his evidence that at 9:00 A.M. he learnt that the wife of Nageshwar Sao has been burnt and then he went and found her in burn stage and on inquiry he recorded her statement since she was not allowed to go with her father who had come on 03.11.1996. She has sprinkled kerosene and setting fire. D.W. 2 has also supported the version of D.W. 1. However, D. Ws. 1 and 2 neither gave any statement before the police nor there is any mention about the dying declaration or the statement of the victim in the fardbeyan of Nageshwar Sao recorded on 4.11.1995 itself at Sadar Hospital nor the said Ext. A was ever produced before the I.O. during the investigation nor D.Ws. 1 and 2 ever gave any statement before the police during the investigation of the case. Hence, the defence on the basis of Ext. A the alleged dying declaration does not inspire confidence. Further the statement of Nageshwar Sao in the fardbeyan that the occurrence took place at 2:30 P.M. is also contrary to the statement of D.W. 1 that the occurrence took place at 9:00 A.M. and hence having regard to the fact there is contradictory evidence that the defence set up by the 11 defence by Ext. 7 and Ext. 8 is fluctuating with regard to the time and the defence set up does not inspire confidence. 23. Hence, taking into consideration the facts and circumstances, having regard to the fact that the prosecution has been able to establish that the marriage solemnized within seven years of the occurrence and the victim was subjected to cruelty for non-fulfillment of the demand as per the evidence of the father P. W. 4 and the statement of the victim in the fardbeyan treated as dying declaration and further the death of the victim is in suspicious circumstance and hence the fact that the ingredients having been established that the prosecution has been able to prove the charges beyond reasonable doubt. The prosecution has proved that soon before the occurrence the victim was subjected to cruelty for non-fulfillment of the demand of dowry and hence the presumption under Section 113B Cr.P.C for dowry death. Hence, I find and hold that the prosecution has been ale to prove the charges beyond reasonable doubt and hence I do not find any merit in this appeal and hence this appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 18th October, 2011. N.A.F.R./Kundan.