JUDGMENT
Prasun Kumar Deb, J.
1. The judgment of acquittal passed by Shri Pius Xess. the Then 1st Additional Sessions Judge, Dhanbad, dated 27th February, 1991, in Sessions trial No. 222 of 1989 against the respondents who were charged and tried under Sections 302/34 of the Indian Penal Code has been challenged by the State of Bihar in this appeal.
2. The prosecution case in brief is that the deceased Dukhini Devi was originally hailing from Bhagalpur district but was staying at Galpharbari Nicheghora under Chirkunda Police Station within the district of Dhanbad. Her husband was not staying with her and she was staying with her minor son. The two accused-respondents were her neighbours. It was alleged that on 28.6.1988 in the night hours at about 7 p.m., while she was cooking food in her house, both the accused-respondents entered the house and tried to misbehave with her and when she protested, they assaulted her with fists and slaps and then put burning match-stick on her body, as a result of which, she sustained burnt injuries from head to stomach and also on her legs. By doing the mischief, the accused-respondents left the place. Thereafter, she ran to the shop of PW-1 (Deo Narayan Pandi) who happens to be her grand son by relation and told him about the incident including the names of the assailants. There on hearing her cries, PW-2 (Bigan Ram) PW-3 (Jagarnath Kumar), PW-4 (Arjun Pandit) etc., appeared and to them also, she narrated the incident as there were severe burnt injuries on her person. She was taken to Burn Standard Company from where she was referred to Burnpur Hospital at ISCO for her treatment. She made statement both before the Doctor who first saw her namely, PW-8 Dr. A.K. Dalai including the names of the assailants and then while she was under treatment, she gave her fardheyan to the police at Burn Ward of Burnpur Hospital and such fardbeyan had been made as Ext. 1. On the basis of that fardbeyan, a case was registered under Sections 307/324/354/448/34 of the Indian Penal Code against the accused-respondents, but on the next day in the morning hours, she succumbed to her burnt injuries and then Section 302 of the Indian Penal Code was also added.
During the course of investigation, inquest was held over the dead body of the deceased Dukhini Devi and then autopsy was also held and it was found that burnt injuries were the direct cause of her death. The accused-persons had been apprehended. From the house of the deceased, one half burnt Polyester Sari (Material Ext. 1), one half-burnt petticoat (Cotton) (Material Ext. II). one Cotton violet colour Blouse (Material Ext. III), some burnt hair (Material Ext. IV) and one burnt match-stick (Material Ext. V) were seized by the Investigating Officer and after closure of investigation, charge-sheet was submitted against the accused-respondents under Sections 302/34 of the Indian Penal Code. On being committed to Sessions, charge was framed vide order dated 29.7.1989 under Sections 302/34 of the Indian Penal Code against both the accused-respondents and when the same was read over and explained to the accused-respondents, they pleaded not guilty.
3. For and on behalf of the prosecution, as many as 13 witnesses have been examined, out of them PW-1 (Deo Narayan Pandit), PW-2 (Bigan Ram), PW-3 (Jagarnath Kumhar) and PW-7 (Mahabir Hari) are the witnesses to whom the deceased Dukhini Devi soon after the occurrence reported about the occurrence including the names of the assailants. PW-4 (Arjun Pandit) and PW-5 (Nar Singh Pandit) are the witnesses of seizure of the half-burnt wearing apparels as mentioned above of the deceased from the house of the deceased soon after the occurrence. PW-8 (Dr. A.K. Dalai) and PW-9 (Dr. J.K. Lahiri) and PW-10 (Dr. R.K. Banerjee) are the Medical Officers posted at Burnpur Hospital. PW-10 had held autopsy over the dead body of the deceased. He found severe burnt injuries on the person of the deceased which were mentioned as 75% burnt. Viscera was also examined in the case. It was conclusively proved by the doctors that burnt injuries on the person of the deceased were thus cause of death of Dukhi Devi PW-12 (Swaraj Bhowmik) is the Sub-Inspector of Police who held inquest over the dead body of Dukhini Devi at the Hospital. PW-11 (Md. Nisar Ahmad) is the Investigating Officer of the case. PW-13 (Deo LalYadav) is a formal witness who proved formally the First Information Report PW-6 (Bhada Pandit) is the son of the deceased Dukhini Devi, who was about four years at the time of occurrence and five years the time of deposition. He gave vivid description about the occurrence himself. According to him, he was sitting in the house while his mother was cooking food and then the accused-respondents came up and started quarrel with her mother. In the midst of that they had poured kerosene oil on her person and then set her on fire.
4. The defence has not accused any evidence as their case is of false implication. They have denied of their involvement with the crime in the statement under Section 313 of the Code of Criminal Procedure (the Code). After scrutinizing the evidence on record, the learned Court below held that PW-6 cannot be relied on. Being a child witness his deposition was recorded on oath without deciding his veracity or whether he was in a position to describe the incident or not. It was further held that the story given by PW-6 is a new story of pouring kerosene oil on the person of the deceased which was never the case of the deceased, either in her dying declaration or in the fardbeyan or by the witnesses to whom she had reported soon after the occurrence. The dying declaration of the deceased made before the doctor (PW-8) at Burnpur Hospital to whom she was first produced by the witnesses had been disbelieved as it could be found that the doctor had not taken steps for informing the police then and there and on such version of a negligent doctor no reliance can be put on the dying declaration. It was also held that the so-called dying declaration was not recorded by any Magistrate or in the verbatim of the decease and, as such, such dying declaration could not be relied on. Regarding fardbeyan which is also in the form of dying declaration has also been disbelieved by the learned Sessions Judge and, as such arrived at the finding that the prosecution could not be able to prove the guilt of the accused-respondents beyond all reasonable doubt and as such, acquitted them of benefit of doubt. Hence, the present appeal preferred by the State Government.
5. Mr. K.K. Jhunjhunwala appearing for and on behalf of the State Government has submitted that the learned Court below had committed not only error of records but error of law also in arriving at a judgment of acquittal in the present case when the guilt of the accused-respondents could be proved not only beyond all reasonable doubt by crystal clear evidence led from the side of the prosecution.
6. On the other hand, Mr. M.K. Laik appearing for and on behalf of the respondents submitted that there is little scope of interference with the impugned judgment of acquittal when after elaborately discussing the evidence on record the learned Court below came to the finding that the prosecution could not be able to prove the guilt, of the accused-respondents beyond all reasonable doubt. He has further submitted the principles in this respect to the effect that if the evidence on record and materials available can infer two possibilities then if the possibility of acquittal has been accepted by the learned Court below then there is no scope of this Court to hold the other view and set aside the judgment of acquittal. His further submission is that until and unless it is held by this Court that the impugned judgment is perverse on the face of the record, there is no scope to interfere with the same. The principles as stated by the learned Advocate for the accused-respondents is definitely acceptable and in the light of such principle or the impugned judgment and the materials on record are to be scrutinized.
7. In the present case, the prosecution is based on three types of evidence, namely dying declaration made by the deceased both before the police officer which was recorded in the form of fardbeyan and her statement being recorded by the doctor (PW-8), (ii) the eye-witness to the occurrence, namely, Bhadai Pandit (P.W. 6), the minor son of the deceased Dukhini Devi, who was alleged to be present at the site of the occurrence, (iii) The overwhelming evidence of PWs 1. 2. 3 and 7 who have been reported of the occurrence immediately after the occurrence by the deceased Dukhini Devi, (iv) The corroborated evidence regarding seizure of burnt wearing apparels from the place of occurrence soon alter the occurrence.
8. Learned Court, below has disbelieved all types of evidence, as mentioned above. adduced by the prosecution by giving some grounds which, according to learned AFP. are filmily and untenable in the eye of law. Let me consider the evidence adduced by the prosecution point by point as mentioned above.
9. Regarding the dying declaration it is true that PW-8, Dr. Dalai, has not recorded the dying declaration of the deceased Dukhini in the form of dying declaration rather he has recorded the same in the inquiry report itself on the basis of statement made by the deceased Dukhini Devi. He was the doctor who first attended the deceased, Dudhini Devi, when she was taken to Burnpur Hospital and by seeing the burn injuries on her person he asked as to how the same was caused then the deceased Dukhini Devi, who was injured at that time by burn injuries, reported that these accused-respondents had come to her house/quarter while she was cooking and they tried to misbehave with her and then through a burning match-stick on her person as a result of which her polyester saree and other wearing apparels were caught on fire and. as such, she sustained burn injuries almost all over her body including hair. In that injury report also, the doctor has very well opined about the mental and physical condition of the injured. The doctor found about 75% burn injury on her person but he stated that the injured was very much conscious and was suffering from pains from the injuries and on being asked by him. she has reported as to how the occurrence took place and then she named the two accused/respondents. This dying declaration has been disbelieved by the learned court below on the ground that the same has not been recorded as a dying declaration nor the doctor has fulfilled his duty by reporting the occurrence to the police for a Magistrate was called for recording the dying declaration and that the same may not be construed as the dying declaration as it was not recorded in the verbatim of the deceased. I have already mentioned that as duty bound the doctor had asked the injured who was fully conscious as to how the injuries were caused on her person and then she reported the same which was recorded by the doctor in the injury report itself. Although the same may not be considered as a dying declaration in its proper perspective but the same should be given reliance to as such statement was made by the deceased since before her death before an independent witness. Dr. Dalai (PW-8). Definitely, Dr. Dalai has got no animus With the accused/respondents nor he knew either the injured or the respondents. The negligence on the part of the doctor, as has been considered by the learned Sessions Judge, has got no basis to stand. It is on the record itself that before the injured was brought to Burnpur Hospital, she was taken to Golfarbari out-post where the injured herself gave her statement implicating the accused/respondents and that the witnesses also accompanied her while going to Burnpur Hospital.
It is in the evidence of PW-8 that the injured (Dukni Devi) had been brought to the hospital on Jeep No. BH 26 on 28.10.1988 at 10 p.m. accompanied by Deb Narain Pandit (PW-1). The evidence of the Police Officer (PW-. 11). the then officer-in-charge, Golphari Police Station out post shows that he visited Burnpur Hospital (IISCC) on 28.10.1988 at 10.15 p.m. and recorded the fardbeyan of injured Dukhi devi. The Police Officer recorded her fqrdheyan within 15 minutes of her admission in the hospital. So. when the police was already present there, the question does not arise of negligence of the doctor in not informing the police after knowing the incident from the injured. Learned Court below has committed error of record on the face of it in this respect. Now, the fardbeyan in the present case on the basis of which the case has been registered under Section 307. I.P.C., definitely should be construed as a dying declaration’ for all practical purpose. In the fardbeyan, the injured Dukhi Devi at that time has given the vivid description as to how the occurrence took place and she had specifically named the two accused/respondents, who were responsible in setting her to fire. Such dying declaration cannot be constructed lightly as this was the first statement made by the injured ‘Dukhni Devi about the cause of her death and the circumstances in which she had suffered the burn wounds, which proved fatal. She was fully conscious and was able to speak when she gave her statement before the doctor concerned (PW-8) and also before the Police Officer (PW-11). The fardbeyan is in verbatim of the deceased Dukhni Devi, and the same for all practical purpose could be legally relied on as the dying declaration of the deceased Dukhni Devi. Moreover, in a fit case, a dying declaration alone can be based for the purpose of conviction in a case if the same it found to be a truthful one and not being tutored. Here, in the present case, no question of tutoring comes in. Soon after the occurrence, Dukhni Devi rushed out from her house and reported the occurrence including the name of assailants not only before PW-1 but also before PWs 2, 3 and 7 who also helped her in talcing to police station and also to the hospital and were witnesses in making such statement by her. Nowhere it could be found that Dukhi Devi had altered or made any establishment in the story rather from the very beginning, she was stating while she was cooking in her quarter then two accorded/respondents came to her quarter and tried to misbehave With her and when she resisted and objected, they had thrown burning match-sticks on her person as a result of which she got burnt injures. So, in the present case, although fardbeyan and statement made before PW-8 are lodged not in the form of dying declaration bur those should be. construed as dying declaration of the deceased in the circumstances of the case when the deceased died of burn injuries only on The next day because of respiratory failure. There is no suggestion even to the doctors or to the Investigating Officer (PW-11) that the injured at the relevant time was not conscious and was not m a position to speak. Generally, a burn injured patient does not lose consciousness and the death comes in when the injuries start contraction causing respiratory failure. Thus, the dying declaration made by the deceased Dukhini Devi are not only truthful but very much reliable and the same in no circumstances could be disbelieved. The reasons given by the learned Sessions Judge in disbelieving those two statements are no grounds at all. Those cannot, be considered as even flimsy grounds rather the learned Court below did not apply his judicial mind in scrutinizing the dying declaration.
10. Regarding the evidence of PW-6, it appears that the learned Court below has not committed much error. PW-6 admittedly happened to be the minor son of the deceased Dukhini Devi. He was about four years old at the time of occurrence and when his evidence was recorded he was about six years old. So. he should be presumed not only as a minor but also as a child witness. It is the settled principle much counter should be taken in relying on the evidence of child witness. There was also procedure for recording of the evidence of the child witness. But in the present case, such procedure has not been followed. The Sessions Judge concerned did not consider the reliability of the truthfulness of the child witness by putting queries and questions before recording of his evidence but us evidence was recorded by administering oath which is definitely nor according to law on the face of it. It is also true that the children of such age are prone to tutoring and it might be that after the occurrence he was tutored and then produced as a witness to support the prosecution case. The presence of this witness at the site of the occurrence has not been stated by Dukhini Devi either in her fardheyan or in her statement made before the doctor. So the presence of this witness at the site of occurrence at the time of the occurrence ‘creates doubt although it appears that PW-1 stated that when Dukhini Devi rushed to him with burn injuries on her person then she was accompanied by her minor son also. Again this witness has given a third story which was not the presentation case at the very beginning. He stated that kerosene oil was sprinkled on her mother’s body before she. was set on. lire by the accused-respondents. This was not the story given by the deceased herself either in her fardbeyan or in her statement before doctor (PW-8). This is also not the story stated by PWs 1, 2, 3 and 7 whom she narrated the incident soon after the occurrence. So on the face of it. PW-6 has given an embellished story. None of the doctors who attended Dukhini Devi or who held post-mortem examination had stated that burn injuries were caused after sprinkling of kerosene oil on her body. No smell of kerosene oil was found either from her injures or from her body nor PW-11 could find smell of kerosene oil or any clue to that effect at the place of occurrence or any smell from the house and burnt warning apparels of the deceased which were seized and produced as materials exhibits as already mentioned above. Thus, PW-6 had been rightly disbelieved by the learned Court below and I do not find that such disbelieving by the learned Court below can be construed as illegal and improper.
11. The third point i.e. the evidence of the repeated witnesses PWs 1, 2, 3 and 7 have not at all been considered by the learned Court below. Only their evidence have been discarded as they are hearsay witnesses. The evidence of hearsay witness are very relevant if the person who has reported admits of such reporting. It is the overwhelming evidence in this case that the deceased Dukhini Devi soon after the occurrence rushed to the shop of PW-1 who is just near her quarter and there she reported the occurrence including the names of assailants not only before PW-1, who happens to be her grand son but also PWs 2, 3 and 7 who are the neighbouring witnesses and present there and are independent witnesses. Some of them have accompanied her to the Golfarbari out. post and they had signed in the fardheyan given by Dukhini Devi before the police. All of them have deposed in unequivocal terms that soon after the occurrence the deceased Dukhini Devi rushed to the shop house of PW-1 by covering her body with a saree and was suffering from pain flue to bum injuries from head to foot. They also noticed injures on some parts on her body. So their evidence very much corroborates not only the fardbeyan but also the reporting made by the deceased before the doctor. So such corroboration of the dying declaration of the deceased establishes truth in the prosecution case beyond all reasonable doubt. It appeals that all these witnesses have been cross-examined at length but they could not be dislodged in any way whatsoever.
12. The third corroborating evidence has been disbelieved by the learned Sessions Judge on the ground that seizure of wearing apparels was made on the next date from the quarter of the deceased but it was not there in the evidence that Dukhini Devi after she sustained burn injures had changed her dresses and then rushed to report to PW 1, 2, 3 and 7 and, as such seizure namely, her wearing apparels had no connection as a corroborating evidence in the present case. The grounds of disbelieving in this respect by the learned Sessions Judge is devoid of any plausible reasons. The deceased Dukhini Devi had 75% burn injuries on her person starting from head to foot and more injures were there from head to abdomen. She was wearing a polyester saree as is revealed from the exhibits and it could be understood by application of judicial mind and notice how polyester saree catches fire immediately touching the parts of the body. Burnt hair was also seized. Math-stick sticking to the saree was also recovered from the place of occurrence. Regarding the place of occurrence there is not an iota of denial from the side of defence. Only missing link as per-observation of the learned Sessions Judge. That there was no evidence to the effect that Dukhini Devi had changed her dresses while rushing to the shop house of PW-1 after the incident. It is the natural human instinct of a female to get her dress changed when coming out of her house in public than those wearing apparels had already been half-burnt and naturally had stacked to the body itself. A person who will try to save her or him by tearing off the being apparels which were burnt and causing burn injuries to his or her person. It is in evidence that Dukhini Devi while coming out reported the incident to the witnesses she had wrapped her body with a saree. Nobody had stated that the saree through which she wrapped her body was of any signs of burning which means that Dukhini Devi must have changed her burning apparels to save herself from polyester saree etc. to get more burn of her skin and body. That those wearing apparels belong to Dukhini Devi had not been denied and those have been seized on the next day after Dukhini Devi died of burn injuries from her quarter herself. The story as stated by Dukhini Devi gets full support from the seizure of burn wearing apparels and burnt hair from the place of occurrence itself. To disbelieve all these used burnt wearing apparels being connected with the crime has got no footing to stand rather from the discussion above I come to the finding that those seizure is directly connected with the crime committed and corroborates the prosecution story beyond all reasonable doubts.
13. That Dukhini Devi died of burn injuries has not been denied. The manner of occurrence although attempted to be denied could not be dislodged although all the witnesses have been cross-examined at length. The seized wealing apparels from the quarter of the deceased cannot be disbelieved on the discrepancy that one of the witnesses stated that those were seized from the Varandah of the quarter and not from inside the quarter while the Investigating Officer has stated that those were seized from inside the quarter. Such sort of discrepancy cannot be given much weight to as the place of occurrence is the quarter of the deceased and the deceased had run out from the quarter soon after the occurrence. The discrepancy as noticed by the learned Sessions Judge cannot be construed as a discrepancy in disbelieving the seizure itself or connecting the seized articles with the crime.
14. Thus, I am of the opinion that the evidence led from the side of the prosecution has fully established the prosecution case and also the charge framed against the accused respondents beyond all reasonable doubt. The order of acquittal recorded by the Sessions Judge is illegal and practically perverse on the face of it not being borne out of records. Hence, this appeal is entitled to be allowed by setting aside the impugned judgment of acquittal which I do accordingly. There is direct allegation against both the accused-respondents that they conjointly misbehaved with the deceased and then they threw burning match-sticks on her person. Hence, the charge under Sections 302/34 of the Indian Penal Code is established against both the respondents.
15. In the result, the appeal is allowed. The impugned judgment of acquittal is hereby set aside and both the accused-respondents are held to be guilty for the charge under Sections 302/34 of the Indian Penal Code arid convicted accordingly. On the matter of punishment, Mr, Laik has submitted that as the case is an old one and the accused-appellant have been acquitted long back, such circumstances should be considered for the purpose of imposing sentence on the accused-respondents. Considering that aspect, minimum punishment as prescribed is hereby inflicted by imposing RI for life to both the accused-respondents. The period of detention as the under trial prisoners shall be set off. Accused-respondents are hereby directed to surrender immediately before the trial Court within six weeks next from this date to serve out the sentence. If the same is not complied with within the time frame, the Sessions Judge is hereby directed to take all coercive steps to bring the accused-respondents into the Ibid for serving out the sentence as inflicted.
A.K. Trasad, J.
I, agree.