- (1.) This appeal has been preferred against the judgment of conviction dated 27th February, 2004 and order of sentence dated 28th February, 2004 passed by Additional District and Sessions Judge, F.T.C., Koderma in Sessions Trial No. 240 of 2001, whereby, the appellants have been convicted life imprisonment causing murder of the deceased and a fine of Rs. 10,000/- upon each of these appellants has been imposed and in case of default, further simple imprisonment for two years have been awarded. Though these appellants have also been convicted under Section 498A IPC as well as to be read with Section 34 thereof and also under Sections 3/4 of the Dowry Prohibition Act, 1961. No separate sentence has been awarded because of life imprisonment has been awarded for the offence of murder.
(2.) Facts of the case :- The case of the prosecution is that on 21.7.2000 at 13:30 o'clock the informant Kalpana Devi(deceased) in burnt condition gave fardbeyan to police at Parvati Clinic that she is 24 years old and she is the daughter of late Paras Nath Bishwakarma. She was married with Vijay Bishwakarma (accused) about five years ago and from the said wedlock, she had a daughter aged about 2 1/2 years. She further alleged that during her marriage her father had given gift and dowry and after her marriage, in her in-laws house, her father-in-law Gajadhar Mistri (accused), Mother-in-law Sohwa Devi (accused), brother-in-law, Rajkumar Bishwakarma (accused) and husband Vijay Bishwakarma (accused) started humiliating her and today also they are humiliating her. She further alleged that these people always came to house after taking drink and they started assaulting her and abuses her with filthy language and told her that her father had told them that he will pay Rs. 20,000/- to them and till date the same was not given to them. They further told her that your father died after marriage and now if she not bring Rs. 20,000/- from her mother or uncle then they will kill her. She further alleged that yesterday on 19.7.2000 at about 11 p.m. she was serving food for herself in the kitchen then her father-in-law, mother-in-law, husband and brother-in-law came there after drink and started assaulting her and abuses her with filthy language. Thereafter sprinkled Kerosene oil on her body and her mother-inlaw torch her to flame then she tried to escape from there but her father-in-law pushed her and she fell down. Thereafter, her husband put blanket (Gendra) over her body but she become unconscious due to burn injuries. She further alleged that she is pregnant by five months and when she regained consciousness then she find herself in Parwati Clinic where her treatment was going on. During her treatment she came to know that her husband on next date of occurrence bring her in Parvati Clinic for treatment and fled away form there. She further claimed that her mother-in-law, father-inlaw, brother-in-law and husband tried to killed her by burning, for dowry of Rs.20,000/- because of which she get injured. Summary of witnesses examined by the prosecution:- PW-1 Vijay Kumar Sharma Declared hostile witness. PW-2 Shanti Devi She deposed that accused persons were demanding dowry of Rs. 20,000/-. PW-3 Birendra Singh He has not supported the case of the prosecution. PW-4 Putiya Devi She is the mother of the deceased Kalpana Devi. She deposed that accused persons were demanding dowry from her. PW-5 Kuldip Bishwakarma He is the brother of the deceased Kalpana Devi. He deposed that accused persons were demanding dowry of Rs. 20,000/- from them. He further deposed that her sister Kalpatna Devi had given her fardbeyan before the police in Parwati Clinic in her presence and put her thumb mark and signature in it. He has proved the signature of Kalpana Devi (deceased) in fardbeyan i.e. marked as Ext.-1 and has also proved his signature in the fardbeyan i.e. marked as Ext.- 1/1. PW.-6 Dr. Hari Darshan Singh He deposed that Kalpana Devi (deceased) had not make statement to police in his presence. P.W.-7 Dr. Shiv Nandan Prasad Singh He is the doctor who has conducted the postmortem of the dead body of Kalpana Devi and he has proved the postmortem report i.e. marked as Ext.-2. P.W.-8 Rameshwar Prasad (S.I.) He is the investigating officer of this case. He has proved the FIR i.e. marked as Ext.- 3 and has also proved signature of A.K. Srivastava in the fardbeyan i.e. marked as Est.-3/1. He has proved the inquest report in writing of A.K. Srivastava i.e. marked as Ext.- 4 and has also proved the inquest report with objection i.e. marked as Ext.- 5. P.W.-9 Dudheswar Singh (ASI) He has proved his signature in the inquest report i.e. marked as Ext.-7. P.W.-10 Arun Kumar Srivastava (R.S.I.) He is Reserve Sub-Inspector in Police Line Koderma. He had recorded the fardbeyan of Kalpana Devi (deceased) and has proved the entire fardbeyan i.e. marked as Ext.-8.
(3.) Arguments of Appellants:- It is submitted by the counsel for the appellants that there are major omissions, contradictions and improvements in the deposition of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned Trial Court and hence, the judgment and order of conviction and sentence passed by the learned trial court deserves to be quashed and set aside. It is further submitted by the counsel for the appellants that there is a gross unexplained delay in lodging the FIR. The incident has taken place on 19th July 2000 at about 11 p.m. and the FIR has been lodged on 21.7.2000 at 13:30 hours being Koderma P.S. Case No. 263(7)/2000 and a so-called Fardbeyan of the victim Kalpana Devi was recorded on 21st July 2000 at 13:30 hours at Parwati Clinic, situated at District- Koderma. No explanation, worth the name, has been given by two police personnel, who are P.Ws. 8 and 10 for the delay in lodging the FIR and the delay in recording the Fardbeyan, which is fatal to the prosecution mainly for the reason that as per medical evidence given by P.W.-6- Dr. Hari Darshan Singh, the victim was unconscious. Similar is the evidence given by P.W.-2 who has stated in para 3 of her deposition that Kalpana devi was unconscious and when these witnesses are saying categorically in their depositions before the trial court that Kalpana Devi-victim was unconscious, how the Fardbeyan was recorded by the police, that too after much belated stage after her admission at Parwati Clinic, is not explained by the prosecution and, therefore, unexplained delay in lodging the FIR and in recording the Fardbeyan of the victim is fatal to the prosecution. This aspect of the matter has not been properly appreciated by the learned trial court. It is further submitted by the counsel for the appellants that there is no endorsement of the Doctor upon the Fardbeyan of the victim- Kalpana Devi that she was conscious at the time of her admission at Parwati Clinic. On the contrary, the evidence is against the prosecution as given by P.W.6 Dr. Hari Darshan Singh. In paragraph No. 1 of his deposition, this doctor P.W.-6 has stated that the victim was admitted by him in Parwati Clinic. Kalpana Devi was unconscious when she was admitted in his clinic. Nowhere any witness has stated out of P.Ws. 1 to 10 including the witnesses who are doctor and police that when Kalpana Devi regained her consciousness. This makes the prosecution story unreliable and untrustworthy, especially when the fardbeyan was recorded after several hours and there is no explanation worth the name for such delay. It is further submitted by the counsel of the appellants that as stated by the prosecution witnesses, Kalpana Devi was illiterate, especially as stated by P.W.-2 in Paragraph 3 of her deposition and there is signature of Kalpatna Devi upon her Fardbeyan given by her, which is treated as a dying declaration by the learned trial court. This aspect of the matter also creates more than a reasonable doubt about the prosecution case. Similarly, P.W. 10 -Arun Kumar Srivastava, who is a Sub-Inspector of Police, has deposed in his deposition that so far as the thumb mark impression of Kalpana Devi is concerned, he has never said that whether it is a right hand thumb impression or left hand thumb impression. Neither the thumb mark impression is properly proved nor the signature of Kalpana Devi -victim upon the so called dying declaration has been proved nor there is any endorsement of the doctor nor any witness is saying about the regaining of consciousness when she was admitted at Parwati Clinic. It is further submitted by the counsel for the appellants that P.W.-2 has clearly stated that Kalpana Devi was unconscious. He had never talked with Kalpana Devi and this P.W.-2 is the first person who had reached from the victim side person at Parwati Clinic. She has also stated that there were good terms between the accused side persons including the husband and the deceased. Even looking to the Fardbeyan, it appears that there is no role played by the husband in causing the murder of the deceased. On the contrary, even if the Fardbeyan is accepted as it is as proved document, then also the husband has tried to save the life of the deceased. It is the husband, who had taken the victim at the Hospital. Moreover, it is the husband, Appellant No. 4, who had given the whole treatment and was purchasing the medicine. He had also donated his blood to save the life of the deceased. All these circumstances are not giving any conclusion of sharing common intention with the appellants who are treated as accused. In fact, it has been stated by P.W.-2 that the deceased was suffering from epilepsy. Moreover, no role has been played by the appellant No. 2, father-in-law of the deceased, in causing the murder of the deceased. It is further submitted by the counsel for the appellants that P.W.6- Dr. Hari Darshan Singh has also stated in his crossexamination about the unconsciousness of Kalpana Devi. The Doctor has categorically stated in his cross-examination that the deceased was unable to understand the talk but her eyes were open. The deceased was not in a position to give Fardbeyan because she was unconscious when she was admitted. Looking to the deposition of this witness, it appears that though there is no strict necessity of his signature upon the Fardbeyan, but P.W.6 has narrated the condition of the patient and the condition of the patient starts with unconsciousness and during this period of unconsciousness, the so called Fardbeyan had been recorded by P.W.10. Though P.W.-2 has signed upon the said document, there is no exhibit number given to the signature of P.W.-2- Shanti Devi on Fardbeyan. Thus, the prosecution has failed to prove the signature of one of the witnesses on the Fardbeyan. This also creates more than a reasonable doubt about the truthfulness of Fardbeyan, which is treated as dying declaration. It is also submitted by the counsel for the appellants that P.W.-4, mother of the deceased, has stated in paragraph No. 2 of her deposition that when she reached at Parwati Clinic, where Kalpana Devi was admitted, there were no relatives of the deceased, except P.W.-2 and before her coming to the clinic, Fardbeyan was already taken up. This witness has also not stated about the role played by the father-in-law- appellant No. 2 in causing murder of the deceased. Looking to the deposition of this witness, especially in paragraph 2, husband of the deceased, appellant No. 2, had tried to save the life of the deceased. Thus, appellant Nos. 2 and 4 have not caused any injury upon the body of the deceased, even as per this witness and in paragraph No. 5, it has been stated by this witness that father in-law and all the in-laws of the deceased were giving treatment. Cumulative effect of this evidence reflects that there were good terms between the in-laws of the deceased and the deceased. Right from the FIR, the behaviour of the husband is in favour of the deceased to save her life. This aspect of the matter has also not been properly appreciated by the learned trial court. It is also submitted by the learned counsel for the appellants that similarly, other witnesses have also failed to prove the offence of murder committed by these appellants and the document, Fardbeyan dying declaration is highly a doubtful document and was taken up during the unconsciousness of Kalpana Devi. Moreover, appellant No. 1 has remained in custody 10 years 10 months and sixteen days as on 10th July 2014, which appears from the letter written by the Superintendent, Central Jail, Hazaribagh, which is produced before this Court and a copy thereof, has also been given to the appellants. Appellant No. 2 has also remained in jail for 9 years 10 months and five days. Appellant No. 3 has remained in custody for 13 years 10 months and 21 days and appellant No. 4 has also remained in custody for 13 years 10 months 25 days. Appellant Nos. 1 and 2 have been granted bail by suspension of sentence and the appellant No. 3, who is the brother in-law of the deceased and appellant No. 4, who is the husband of the deceased, are languishing in jail custody till today. They may be released forthwith as the prosecution has failed to prove the offence of murder beyond all reasonable doubts by allowing this appeal.;