JUDGMENT
Amareshwar Sahay, J.
1. On repeated call, nobody turned up to press this appeal and hence this Court appointed Mrs, Lily Sahay, Advocated to appear in this case aa Amicus Curiae on behalf of the appellants.
2. Four accused persons Including the three appellants were put on trial for committing the offence under Sections 307/34, 498A of the Indian Penal Code and 3/4 of the Dowry Prohibition Act. The learned 1st Additional Sessions Judge, vide his judgment dated 12th day of July, 1995 in Sessions Case No. 142 of 1992 acquitted the 4th accused namely Manju Devi from all the charges and convicted the appellant, Dhananjay Khirhar, Ram Rekh Khirhar and Tetia Devi, who are the husband, father-in-law and mother-in-law respectively of the informant under Sections 307/34 and 498A of the Indian Penal Code. The appellant No. 1 Dhananjay Khirhar was sentenced to undergo rigorous imprisonment for five years under Sections 307/34 of the Indian Penal Code and he was awarded sentence to undergo rigorous imprisonment for two years. So far as the appellants No. 2 and 3 namely Ram Rekh Khirhar and Tetie Devi are concerned, they have awarded sentence to undergo rigorous imprisonment for two years each under Sections 307/34 and 498A of the Indian Penal Code. Both the sentences of all the three appellants were ordered to run concurrently.
3. So far as the charge under Sections 3/4 of the Dowry Prohibition Act is concerned, the trial Court held that it was not proved beyond all reasonable doubts.
4. The prosecution case in short is that on 24.4.1991 the for dbayan of Asthama Devi, who was lying in Government hospital, was recorded by the police wherein it was staled that she had been married with appellant No. 1 Dhananjay Khirhar in the year 1990 and in the last Falgun she came to her sa.su.ral on Dwiragaman. Her father could not give Rs. 25.000/- in cash, a watch and a cow in dowry at the time of her Dwiragaman, as promised by him, and because of that, in the previous night on 23.4.1991, while she was sleeping in her room, the appellants and Manju Devi (since acquitted) came to her room and overpowered her and nanad Manju Devi started pushing cloth in her month. Thereafter her husband and father- in-law caught hold of her and poured Kerosene Oil on her body and mother-in-law Tetia Devi set fire to her body with a match stick. When the fire on the body rose in flames, the hands of the accused, who had caught hold of her body, started burning then they left her. Thereafter the informant rushed out side crying for help towards the house of her Mama Achamvhit Layak (PW 1) where Achamvhit Layak and Murari Layak, extinguished the fire and then she was taken to hospital in the morning.
5. In order to establish the charge altogether 11 witnesses were examined by the prosecution.
6. PW 10 is the victim Asthama Devi, who is the informant in this case. PW 9 is the Doctor, who examined the injuries on the person of the victim. PW 1 Achamvhit Layak and PW 2 Ambika Layak who are full brothers and Mamas of the victim, found her nieoe i.e. victim, Asthama Devi in the Gohal with burn injury, PW 3, Aniya Devi is a hearsay witness. PW 1 Kampani Marik, PW 5 Sugriv Prasad Yadav and PW 6 Anirudha Marik are brothers of the informant who came to see the victim in the hospital after occurrence. They also learnt about the occurrence from the informant. PW 7 Murari Layak is Sarhu of Anirudh Marik (PW 6), brother of the informant, who brought the informant to the hospital on his bullock cart in the morning after occurrence. PW 8 Nirmal Baghor is a witness on seizure.
7. The defence case is that they have falsely been implicated in -this case because accused Ramrekh Khirhar, father-in-law of the informant had executed a will Ext.-B on 25.9.1989 in respect of his properties in favour of his daughter, Manju Devi (since acquitted). The appellant No. 1 has taken a plea of alibi. All the three defence witnesses were examined on behalf of the defence. DW 1, Nakyul Rout has been examined to prove the alibi of the appellant Dhananjay Khirhar. DW 2, Ramesh Prasad Sinha is the deed writer, who had scribed the Will (Ext.-B) on the direction of the appellant Ramrekh Khirhar on 25.9.1989. DW 3 Pramod Kumar Yadav is a witness on that will. The defence has not denied the occurrence of burning of some parts of the body of the informant, but they have tried to make out a case that the informant caught fire accidentally for a dibiya while he was milking his cow in the evening and the informant had caught hold of the calf which became uncontrolled and the informant fell on that dibiya and due to that she caught fire and got burn injury. They also tried to extinguish fire, because of that they also got burn injuries on their hands.
8. From the statements made in the FIR it appears that the victim was sleeping in her room when the appellants said to have entered in the said room. Manju Devi, her nanad started pushing cloths in her mouth. The appellant No. 1 and 2 caught hold her and poured Kerosene Oil and then mother-in-law said to have set fire on her body. If the story narrated in the FIR is taken to be true then in all probabilities burn injuries, if any would have been found present on the front portion of the body but curiously enough, from the injury report and from the evidence of PW 8 it would appear that whatever burn injuries were found, were located on the back side of the body of the informant i.e. on the back, buttocks and back side of thigh which could not have been possible in the normal circumstances in the facts and circumstances of the case and as per the story narrated in the FIR. The victim, PW 10 changed the entire story in the Court where she stated that she was sleeping on the eot lacing down wards and her husband and father-in-law were pushing her body on the cot from back side if that be so then it was not possible for her nanad push the cloth in her mouth and in that position, it was not possible for the victim to see that her husband and father-in-law were pouring Kerosene Oil and mother-in-law had set fire by means of match stick. The entire story as narrated by the victim appears to be impropable and unbelievable.
9. No doubt PW 10 did receive burn injuries on the back portion of her body. The Doctor has found two superficial burn injuries on her back and one deep burn injury on her buttocks. But the manner of occurrence as narrated by the prosecution witnesses does not appear to be convincing. It is also significant to note that neither the victim nor any of the prosecution witnesses have alleged that after the marriage of the victim which was in the year 1990 there was any instance of torture by the appellants for the demand of dowry. It is also curious to note that though the time of occurrence as alleged by the prosecution is about mid night but the victim was first seen in the injured conditions in Gohal of PW 1 in the early morning at about 4-4.30 A.M. In the FIR the victim lady says that after she was set on fire by the mother-in-law she fled away to her Mama’s place where her two Mamas extinguished the fire but this part of the story is conspicuously absent in her statements made in the court. Even her Mamas i.e. PW 1 and 2 did not say that they extinguished the fire from the body of the victim rather they specially stated that they saw the victim lying having burn injury in their Gohal where she asked for a glass of water. All the above circumstances goes to show that the prosecution has not come forward with the entire truth. The manner of occurrence put forward by the prosecution does not appear to be believable.
10. In view of my discussions and findings above, I hold that these appellants are entitled to benefit of doubt as the prosecution has failed to prove its case beyond all reasonable doubts.
11. In the result this appeal is al
lowed and conviction and sentence passed
by the trial Court against the appellants are
hereby set aside. Appellants, who are on
bail, are discharged from the liability of
their bail bonds.