- (1.) This appeal is directed against the judgment of conviction and order of sentence dated 06.08.2003 and 08.08.2003 respectively, passed by the Additional Judicial Commissioner, Fast Track Court no. VII, Ranchi, in Sessions Trial Case No. 66 of 2002, convicting the appellant under section 302 IPC and sentencing him to undergo R.I. for life. The prosecution case in short is that Urmila Devi lodged a fardbeyan in the hospital on 20.05.2001 at about 8.45 A.M. before P.W-6 to the effect that the appellant (her husband) used to sell grams and when she used to demand money for household expenses, he used to abuse and assault her. On 19.05.2001 at about 8 P.M. when he returned and she demanded money for household expenses, he started abusing and assaulting her. Thereafter when she was going to serve food to him, appellant poured kerosene oil from 'dhibri' on her back and put her cloth on fire. She cried for help. The neighbours assembled. She sustained burn injuries. Appellant extinguished the fire by water. She was taken to hospital by her 'devar' and neighbours. Where she was being treated. In course of her treatment, she died on 1.6.2001 i.e. after about 10 days.
(2.) Mr. G.K. Sinha, Learned Counsel for the appellant, assailed the impugned judgement of conviction on various grounds, whereas, Mr. Ravi Prakash, Learned Counsel for the State, supported it.
(3.) After hearing the parties at length and carefully going through the records, we are inclined to give benefit of doubt to the appellant. for the following reasons: There is no dispute that the wife of the appellant died due to burn injuries during treatment after about 10 days but the question is whether the appellant has caused burn injuries on her as alleged in the fardbeyan or not. The fardbeyan has been taken as dying declaration and mainly on that basis, the appellant has been convicted. It is not possible to treat the fardbeyan as dying declaration. It was made on 20.05.2001 but it reached the police station after about ten days. P.W-6 is the police officer, who is said to have recorded fardbeyan but he was not examined by I.O.-P.W-7. P.W-6 did not say whether the deceased was in a position to give fardbeyan. He did not say as to on whose instruction or under what authority and how he reached to the hospital to record the fardbeyan. He has not taken the signature of any doctor or any other person in "the hospital, on the fardbeyan. On the fardbeyan, the signature of the brother of "the deceased-P.W-3 was taken but P.W-3 inter alia said that when police reached, his sister was unconscious and he did not see the police recording her fardbeyan and that when the police was returning, his mother said that the police got the thumb impression of his sister after writing something on a paper. This witness also said that the appellant gave blood to the deceased during her treatment. He also said that when he asked the deceased, she said that she got burnt accidentally. This witness was not declared hostile. He also said that the deceased did not tell her that the appellant has caused her burn injuries, as he had gone to sell the grams. This witness further said that on raising hulla by her sister and children, her sister in law and other persons came and extinguished the fire by throwing water. P.W-1 is the daughter of the appellant and the deceased. She is a child witness. She did not say that the appellant burnt her mother. She said that her mother was crying for help, when she was burning. The appellant was trying to extinguish the fire. P.W-2 is the son of the appellant and the deceased. He said that the deceased told him that she burnt accidentally. This witness was declared hostile but again he said in his cross-examination that deceased told him that she herself poured kerosene oil and burnt her as she was perturbed. When the court asked him whether he was told by anybody that the appellant has burnt his mother, he denied that nobody told him like that. It is surprising how, if the fardbeyan was recorded on 20.5.2001 by P.W-6, where it remained for about 10 days before it reached to P.W-5 on 30.5.2001. This P.W-5-I.O. is one of the investigating officers. P.W. -6 is the police officer who recorded the purported fardbeyan of the deceased. He said that he did not disclose in the fardbeyan the name of the doctor, nurse or any other person before whom it was taken. He could not say as to on what authority, he reached to the hospital and recorded fardbeyan. P.W-7 is the subsequent investigating officer. He contradicted himself when he said that he took statement of the deceased and then he said that he did not take her statement. He also did not take statement of doctor or nurse in the hospital.;