Criminal Appeal (SJ) No.511 of 2007 Against the judgment of conviction dated 27.04.2007 and order of sentence dated 30.4.2007 passed by Additional District & Sessions Judge, Fast Track Court No.IV, Araria in Sessions Trial No.168 of 2005, Trial No.06 of 2005 arising out of Araria P.S.Case No.67 of 2004, G.R.Case No.436 of 2004. AJAY SINHA.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant : Sri Ramesh Kumar Singh Amicus Curiae. For the Respondent : Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The solitary appellant who happened to be the husband of the informant P.W.4 Rita Devi appeals against the judgment dated 27.4.2007 passed by Fast Track Court No.4, Araria in Sessions Trial 168 of 2005 by which he was held guilty of committing offences under Sections 324 and 307 IPC and was directed by the order of sentence dated 30.04.2007 to suffer rigorous imprisonment for two years and ten years as also to pay a fine of Rs.5,000/-, else, to suffer simple 2 imprisonment for two months for his conviction on the above two counts. 2. The fardbeyan of P.W.4 Rita Devi(Ext-1) is the basis of the prosecution case which was recorded in the female ward of Sadar Hospital, Araria where P.W.4 was admitted for treatment of her burn injuries. She stated that on 16.03.2004, after having taken her meals at 7 A.M., she had gone to Mahila Kalayan Parishad for carrying out her sewing work. She came back at about 2 P.M. when the appellant also came there and asked for Rs.40 which he had given to her. P.W.4 stated to the appellant that the amount had been spent, but at the same time on account of being fearful that the appellant may assault her, she paid up Rs.15 to him. It is stated that the appellant went out and drank country-made-liquor to come back to his house. He started assaulting the lady and during that course poured kerosene oil from the lantern kept in the house and put the lady at fire by lighting a matchstick as a result of which the whole body of the lady caught fire. The appellant locked the door and 3 ran away from there. The lady stated that she was struggling to get out of the flames and she was brought to the hospital by a rickshaw puller. 3. Case was instituted on the basis of Ext-1 and same was investigated into by P.W.5 S.I. Krishna Baitha who issued the injury report Ext-2 for obtaining the certificate in respect of the injuries found on the person of P.W.4 and thereafter went to inspect the place of occurrence. He recorded the further statement of the informant of other witnesses and sent up the trial which ended in the impugned judgment. 4. The defence of the appellant was that the lady accidentally caught fire, probably while cooking, and the appellant attempted valiantly to save her and in that process was himself burnt by the flames of fire. 5. During the course of the trial, six witnesses were examined. P.W.1 Sanjay Mishra appears a neighbour of the appellant and the informant lady and she stated that the house of the appellant is 4 separated merely by a common wall standing in between the house of the appellant and that of P.W.1. He stated that the occurrence took place about two years back, but 2-3 days prior to the occurrence he had gone to Delhi and as such he did not see it. But, when he was leaving for Delhi Rita (P.W.4) was hale and hearty. When he came back from Delhi, he did not find Rita. P.W.1 was declared hostile on account of not supporting the prosecution story and his attentions was drawn to the earlier statements which were made by him to P.W.5, the investigating officer of the case. P.W.2 Abdul Wadud supported the occurrence as an eye witness. He also appears a neighbour and appears attracted to the scene of occurrence picking up cries of P.W.4 which was emanating from her Aagan. He stated that when he came, he found that Rita Devi (P.W.4) had caught the neck of the appellant and was pleading him to save her. P.W.4 stated to P.W.2 that she had been set at fire by the present appellant after pouring kerosene oil. The appellant ran away from there. P.W.4 became nervous and P.W.2 and others rushed her to the 5 hospital. 6. I have gone through the cross-examination part of P.Ws.2 too. I do not find that there was anything elicited from him so as to discredit his evidence. During his cross-examination he stated facts which indicated as if he might not be very much intimate to the couple but was well acquainted with the circumstances in their life as he was pointing out to the court that the appellant is a driver, was also the father of a son and a daughter, who were born to P.W.4 out of a wedlock and appears very candid in telling the court that he never visited the appellant or his wife, but, he picked up the story of quarrels between the two on account of being a very near neighbour to them. Besides, he knew on account of neighborly situation as also finding Rita Devi passing by his house. The defence attempted to introduce certain facts so as to probabilizing its defence that the lady might have caught fire while cooking as may appear from paragraph-8 of the evidence of P.W.2. when certain questions were put to him about the existence 6 of oven and other cooking instruments in kitchen of the victim at that particular time when Rita Devi was found amidst flames. The witness was negating all questions and pointed out that there was no such instrument or article present there and he and others had attempted to douse the flames and in that course they had attempted to throw sand articles on the body of P.W.4. His evidence in paragraphs-9 and 10 further lends credence to the above evidence of P.W.2 as he appears very clearly stating as to what was the state of the lady when he arrived at her residence and has further stated that in spite of having seen the lady clinging to the body of the appellant he had not noticed the injury at that particular time which he had, on the day he had deposed in the court. P.W.3 has not in fact supported the prosecution story and has stated, rather, that he had not seen any part of the occurrence and only had heard that Rita Devi had been burnt and further that she had been burnt on account of being set at fire by her husband. The evidence of P.W.3 to that extent gives some inkling that there was 7 some incident in which P.W.4 was set at fire probably by her husband. 7. P.W.4 Rita Devi is the injured lady herself and she has narrated almost the same facts which were narrated by her in Ext-1, the fardbeyan. She has stated that when she was asked to pay back Rs.40 or 50/- which had been given by this appellant to her and after having initially said that the amount had been spent, she paid back Rs.15/- to the appellant. He went out and came back in the evening fully drunk and started assaulting her and during that course he picked up the lantern kept in the house, poured kerosene oil out of it on her and by lighting a matchstick put the lady at fire as a result of which she was burnt all over the body. She raised a cry which attracted P.W.2 and a few other ladies also. P.W.2 and others brought her to hospital. But before that they had changed wearing apparels of P.W.4. She was admitted into the hospital where her wounds were dressed up and thereafter she made her statement before the police in the form of Ext-1. She appears 8 subjected to a lengthy cross-examination running into as many as 22 paragraphs spread over seven pages and by going through the cross-examination part I find that the character of the lady was attempted to be castigated by putting certain questions in a suggestive manner as if she were carrying multiple illicit relationship with many partners which suggestions were not only stoutly denied, but she was justifying her regular visits to places out of her house on very acceptable and justifiable reasons. She was stating that she was running a sewing centre and she was the Incharge of that centre and she was required to go out of her house in connection with the vocation in the present circumstances and specially when P.W.4 was the wife of a driver who was a drunkard, it could be simply reasonable to accept that she must be finding it very hard to ensure the two ends meet as regards the domestic expenditures, specially, when she had two small children besides an ever demanding husband who was always asking her to cough up a few bucks for purchasing liquor. In the 9 background as has been stated by P.W.4 and specially when the husband was doubting her chastity as appears suggested by questions put to her, it could be normal behaviour of the appellant that he could be often beating her up and he might regularly be harassing her. Might be, that on that particular day the husband was drunken more than normal and might also be that he had reached such a degree and intensity of being drunk that he was picking up the lantern and pouring kerosene oil out of it on the body of the lady so as to setting her at fire. 8. The evidence of P.W.4 was criticized by submitting that the evidence of P.W.4 was consisting of some facts which were not stated in the FIR. It was stated in the FIR that the appellant by closing the doors ran away from there. It was contended that this part of the evidence of P.W.4 was contrary to the evidence of P.W.2. Besides, it was contended that there was nothing stated in the fardbeyan that any lock was put by the appellant whereas in paragraph-12 of the evidence or some other place of evidence P.W.4 10 stated that a lock was also put on the doors. The contention was that there was complete absence of any evidence as to who had removed the lock. The above contention appears overlooking the evidence of P.W.2, one of the onlookers and that of P.W.4 that it was a house which was bounded on its four sides by tutties of full height. It could not be very difficult for the onlookers or persons who had been attracted to the scene of occurrence to pierce through it to bring back the lady out the house. These are some of the reasons which could be pointed out for accepting the evidence of P.W.4 specially when the court finds that she was married to the appellant and had two children out of the wedlock. In spite of the appellant being a drunkard and in spite of the appellant being further a person of thoroughly bad behaviour, it would have been very difficult for the lady to repudiate her marriage. There were not convincing reasons due to which she could implicate the appellant falsely. 9. The circumstances noted above existing in the life of the lady were such which could hardly 11 motivate her or compel her to make false accusations against a person to whom she was wedded. This is one circumstance besides, the other, due to which I trust the evidence of P.W.4. 10. P.W.5 Krishan Baitha as noted above is the investigation officer and P.W.6 was a witness who was formally brining on recorded, the carbon copy of the injury certificate issued by Dr. A.Khalik who was a Medical Officer in Araria Sub Divisional Hospital and, who as per the prosecution, had attended on injured, P.W.4 to issue Ext-3 the certificate in that behalf. 11. It was contended by Sri Ramesh Kumar, learned counsel appearing on behalf of the appellant that the non-examination of the doctor and lastly tendering the injury report Ext-3 in evidence to support the charges for which the appellant had been tried appears causing a prejudice to the appellant and in absence of the examination of the doctor, the court was completely in error to record the findings of guilt on both the counts specially as regards offence 12 under Section 307 IPC. It is true that the doctor has not been examined. However on perusal of the lower court records, I find that the charges were framed on 27.04.2005 by the Fast Track Court, Araria and the last witness was examined on 24.04.2007, the judgment was delivered on 27.04.2007, i.e., exactly after three years of the framing of the charges. It further appears that the statements of the solitary appellant under Section 313 Cr.P.C. was recorded on 25.04.2007. Thus, no effort appears made by the learned trial Judge as seriously as to get the doctor produced before him for his evidence. This is one lacuna in the prosecution case, which was quite highlighted by the learned counsel appearing for the appellant. But one has always to be reminded that the doctor, namely, A.Khalique who was attending on the injured P.W.4 for treating for her injuries was a public servant who was employed admitted as the Medical Officer in the Sadar Hospital. He was on the pay roll of the State Government and he was discharging his official duties which were cast upon him in the capacity of such a 13 public servant that he was to examine P.W.4 and to issue the record of discharging the public duties in the form of the injury report. If one could consult the provision of Section 35 of the Evidence Act one could find that any entry made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by law of the country in which such book, register is kept, is itself a relevant fact. The injury certificates are required to be issued under the rules of the Bihar Police Manual as may be indicated by Rules 212 to 215 of the Bihar Police Manual 1978. It hardly requires to be pointed out that the Bihar Police Manual has been framed by the Government of Bihar in exercise of its rule making power under Indian Police Act. As such the report Ext-3 itself is a statement, i.e., the Indian Police Act itself as statement as regards the treatment of an injured and issuance of the injury certificates by Dr. A.Khalique while discharging his public functions as per the requirement of the rules and was issuing the report as 14 equally as under the direction of the said Rules. Even if he was not examined, the report Ext-3 was duly relevant and admissible under Section 35 of the Evidence Act. On perusal of the report what appears is that burn injuries over the face, chest, back, abdomen and both upper limbs and right thighs were recorded by the doctor who had attended on P.W.4, Rita Devi and the total percentage of burn which was found present on the person of Rita Devi was 70 per cent. The doctor had recorded his opinion regarding the nature of the injury as grievous. I am not concerned about the nature of the injury but the attempt appears intendingly or knowingly made by the appellant so as to setting the lady at fire which itself indicates the degree of attempt to cause the death of the lady. 12. The defence of the appellant was that the lady was in fact cooking meal and she caught fire accidentally and he had attempted to douse the flames. In support of the defence, the appellant was bringing on record by the very first line in cross-examination of P.W.2 that the appellant was bearing some injuries 15 around his neck. It might be a truth that the appellant attempted to douse the fire or it might be, as is claimed by the lady and the witnesses, specially P.W.2 that the lady was clinging to his neck pleading with the appellant to save her after he had done the acts of pouring kerosene oil and lighting a matchstick so as to setting the lady at fire. 13. The evidence of witnesses does not contain any line anywhere that the appellant was doing anything to either douse the flames or even to shout to attract people around his house, so that the lady could have been saved. As such, the defence appears a mere semblance of explanation to evade the law. 14. Relevant facts upon which the court has to consider the constitution of the offence and considering those particulars, I came to the conclusion that it was a complete offence for which the appellant has been punished. 15. Sri Ramesh Kumar Singh, learned counsel appearing for the appellant at this stage submits that the appellant is in custody since 27.05.2004 and might 16 be that he had very strained relationship with his wife and may be on that account he had lost his control in a state of being inebriated that he committed the act. One has also to accept that he is also the father of two children who might be craving for his company and on account of loss of company of the appellant their individual development as a human being might be affected. These are some of the realities which this court hardly ignore and considering that I sentence him to the period which he had already under gone from 27.05.2004. I do not propose to impose any fine as well considering the traumatic circumstance which was existing in the life of the appellant. 16. With the above modification in sentence as regards the conviction of the appellant under Section 307 IPC without disturbing the sentence inflicted upon him under Section 324 IPC, I dismiss the appeal in its entirety. Sentences, as directed by the trial court shall run concurrently. 17. Sri Ramesh Kumar Singh who was earlier 17 holding power on behalf of the appellant appears and submits that the agent of the appellant had obtained no objection from him. Besides, the file of the appellant was also taken away by his relative or agent. As such, he is unable to argue the appeal but finding that Sri Singh is acquainted with the facts of the case, the court requests him to assist it which he agrees to. As such, he is appointed Amicus Curiae on behalf of the appellant. 18. This court records its appreciation of Sri Singh in assisting it in hearing and disposing of the present appeal so elaborately. ` Patna High Court, Dated, the 12th day of August, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)