Criminal Appeal (SJ) No. 406 of 2007 ------- Against the judgment and order of conviction and sentence dated 1.3.2007 passed by Shri Kamal Kishore Sinha, Additional Sessions jJudge, Fast Track Court – III, Patna in S.T. No. 1104 of 1996 / 128 of 2006. -------- Ashok Prasad, son of Chandeshwar Mistry, resident of Muhalla – New Bye Pass, Ram Krishna Nagar, Police Station – Phulwari Sharif, District – Patna ……………. Appellant Versus The State of Bihar …………….. Respondent ---------- For the Appellant : Sarvshri Vikram Deo Singh, Dharmendra Kr. Singh & Sadanand Roy, Advocates For the State : Shri S.N. Prasad, APP -------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------------ Dharnidhar Jha, J. The solitary appellant Ashok Prasad appeals against the judgment dated 1st day of March, 2007 passed by the learned Presiding Officer, Fast Track Court – III, Patna in S.T. No. 1104 of 1996 / 128 of 2006. By the impugned judgment, the solitary appellant was held guilty of committing offences under sections 304B and 498A IPC and was directed to suffer RI for seven years and two years respectively on the two counts. The sentences were to run concurrently. 2. Admittedly, the appellant was married to Bimla Devi, the deceased and had a son aged about one year on 14.1.1996, which was the date of occurrence. It was also not disputed that about two years before, in 1994, the marriage had been solemnized. 3. The allegation, which is contained in the fardbeyan of P.W. 1 Smt. Ram Kali Devi (Ext. 2) was that one Shatrughna Ram (not examined), the labour of P.W. 1, had informed her on 14.1.1996 that her daughter had died of burning 2 and her dead body was lying in PMCH. P.W. 1 rushed to the hospital to find that the information was true and that the dead body was lying in the PMCH. P.W. 1 stated that the deceased had visited her a week ago and had informed her that the preset appellant used to ill treat her with cruelty and, as such, suspected that it could be the present appellant and his family members who could have burnt the deceased to death. 4. On the basis of Ext. 2, the FIR of the case (Ext.3) was drawn up and the case was investigated into. It may be pertinent to point out that the appellant, who was very much present in the PMCH at the time of recording of Ext. 2, was taken into custody by the police and was forwarded to the Chief Judicial Magistrate, Patna on 16.1.1996. The forwarding report is available at page 12 of the lower court records but, that does not indicate that the police had found any injury on the person of the appellant. However, the learned Chief judicial Magistrate, while passing the remand order on 16.1.1996, had noted that the appellant was bearing burn injuries on his hands and nose and, as such, directed the Superintendent of the Jail to provide appropriate medical treatment to the appellant. 5. It appears from the evidence of P.W. 6, the I.O. that after being ordered to investigate the case, he recorded further statement of the witnesses and inspected the place of occurrence also. He found that the house was partially built and there were two rooms on the western part of the building and out of those two rooms, one was the place of occurrence in which the deceased was residing. P.W. 6 found a bed spread in that room upon which there was a cotton mattress and he also found some partially burnt Sari, which was lying on the ground and was wet. He found a stove also there and seized the partially burnt wet sari and the stove. After examination of the witnesses and obtaining the copy of the postmortem examination report, the I.O. sent up the present appellant for his trial. 6. The dead body was sent by P.W. 6 for postmortem examination which was conducted by P.W. 5 Dr. Bishnudeo Prasad and his evidence does not 3 indicate that any external or internal injury indicative of any use of force or administration of any assault was found by him, rather, P.W. 5, in cross- examination in paragraph 2, stated that the percentage of the burn was 90% and the death was on account of ante mortem burn injuries. 7. The defence of the appellant was that in fact the lady caught fire while cooking on the stove and the appellant also attempted to douse the flames and in that process he himself was injured. He rushed his wife to PMCH and admitted her into the Emergency Ward where she died and that fact was admitted by the witnesses. Six witnesses were examined by the prosecution to prove the charges. P.W. 1 is the informant and she appears for the first time telling in court that the deceased had come and told her that the present appellant was demanding rupees ten thousand, which had to be paid at the time of marriage as dowry and could not be paid. It was further stated by P.W. 1 that on that account the deceased was being harassed and treated with cruelty and she was set at fire and killed. P.W. 1 has admitted in paragraphs 14 and 15 that the appellant was present at the time she was giving statement and he was arrested by the police then and there. Similar is the statement of P.W. 2 whereas P.W. 3 has admitted in paragraph 11 that the witnesses had not made any statement earlier before the police that the appellant was demanding rupees ten thousand from the deceased or was asking her to bring that amount. As regards the evidence of P.W. 4, that appears admissible due to the fact that she has admitted in paragraphs 10 and 11 that he never gave any statement before the police. 8. It was contended that there is no mention of any amount in the fardbeyan which was allegedly demanded by the present appellant as arrears of dowry. It was for the first time that P.W. 1 was making an improvement upon her earlier version and was accusing the appellant of demanding dowry and was further alleging ill treatment of the deceased by the appellant. It was also contended that the case was based merely on suspicion and in order to fortify the allegations, the improvement by inserting new facts, was made. The appellant’s 4 bona fide was admitted as he had taken his wife to the hospital and prior to that he made attempts to douse the fire and in that process had got injured. What the police had dishonestly done is that it was not mentioning these facts in any of its report nor was complying with the provision of section 53 Cr.P.C. It was contended that the judicial record made by learned Chief Judicial Magistrate on 16.1.1996 testifies to the fact that the appellant was himself bearing burn injuries on the day he was produced before the C.J.M. for his remand. 9. It is true that the attention of P.W. 1 had not been drawn to the fact that she had not made any statement in the fardbeyan that the appellant had directly or indirectly made any demand of dowry even in its arrears but the fact remains that in spite of not being a substantive evidence, the fardbeyan remains the strongest of weapons in the hands of the defence by virtue of being the document on which the whole prosecution story is based and its value of being the balance upon which the evidence of other witnesses has to be tested could not be minimized. On perusal of the fardbeyan (Ext.2) of the informant, P.W. 1, I do not find that any particular amount was mentioned in it or even stated that there was any demand prior to a week of the occurrence when, allegedly, the deceased had come to P.W. 1 to inform her that she was being ill treated. Even that statement is not qualified by any other statement as regards the reason for the ill treatment of the deceased by the present appellant. Thus, there appears an inherent element of doubt in the above statement as regards the same being correct. P.W. 3, who appears to be one of the sisters of P.W. 1 and who also appears closely related with the family, rather, categorically stated in paragraph 11 that she had not made any statement before the police that this appellant had demanded any money or any other article as dowry. The initial case started on suspicion but that suspicion also appears not recognizable when one views the fact that the appellant was very much present by the death bed of the deceased by which side the informant was giving her fardbeyan (Ext.2). P.W. 1 and other witnesses have stated that the appellant was arrested by the police right from the bed side in which the dead 5 body was lying. It is also apparently clear that the appellant was the person who had taken the deceased to the hospital and had got her admitted where she died. It is true that the police appears not properly conducting itself as regards the compliance with the provision of section 53 Cr. P.C., which requires examination of an accused so as to collecting the evidence of offence by producing him before a medical officer. The police was not mentioning anything in its record that the appellant was bearing any injury, much less, a burn injury. However, the learned Chief Judicial Magistrate, Patna was noticing the presence of some burn injuries on the hands and nose of the present appellant. The burning of hands and nose definitely indicates towards the attempt made by the appellant in dousing the flames which could have flown out from the body of the deceased when she caught fire. Half burnt sari was also recovered by P.W. 6 by preparing the seizure memo (Ext.5). At the same place, the stove was also found lying and the sari was found wet. All the circumstances indicate as if there could be a probability of the version of the defence that the lady could be cooking something and during that course she could have caught fire. 10. Above are the circumstances which appear missed by the learned Presiding Officer of Fast Track Court – III, Patna and on that account the learned judge was falling in error to record the conviction of the appellant for the two charges. It appears a case in which the appellant ought to have been acquitted by being given the benefit of doubt and, accordingly, I acquit him of the charges by allowing the appeal and setting aside the order of sentence passed against the appellant. The appellant is in jail. He shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 23rd August, 2011, NAFR/Anil/