Dilip Bhagat vs The State of Bihar

M.L. Visa, J.—Dilip Bhagat, the sole appellant in this appeal before us, has assailed the judgment dated 26.8.1997 and order dated 27.8.1997 of the Court below convicting and sentencing him to undergo rigorous imprisonment for five years under Sections 376/511 and life imprisonment u/s 302, Indian Penal Code, Both the sentences have been ordered to run consecutively in the manner that sentence under Sections 376/511, Indian Penal Code will start first and, thereafter the sentence u/s 302 will start.

The case of prosecution, in short, is that on 2.10.1996 at about 3 p.m., when deceased Renu Kumari alongwith her younger sister, was at the Darwaza of her house, appellant, who is her neighbour, pushed her in her courtyard in order to commit rape on her. Deceased resisted the appellant with her full capacity and the appellant, therefore, could not succeed and he then brought kerosene oil in a bottle and a match box from his house and sprinkled the kerosene oil on deceased Renu Kumari and lighting a match stick set fire on her clothes and, thereafter, he fled away. On hulla raised by deceased, grandmother, brother, uncle of deceased, wife of Haridwar Bhagat and others came there and the deceased narrated them the incident. On account office, deceased received burn injuries on her face, arms, chest, neck, feet and her entire body. She was taken to hospital by her uncle and neighbours. On the day of occurrence at about 5 p.m., the fardbayan (Exhibit-1) of deceased was recorded by Assistant Sub-Inspector Braj Bhushan Choubey (P.W. 10) and on the basis fardbayan (Exhibit-1), formal First Information Report under Sections 376/511 307 and 326, Indian Penal Code was drawn against the appellant. At about 7 p.m. on the day of occurrence, the deceased succumbed to burn injuries and, thereafter, Section 302, Indian Penal Code was added to the First Information Report. The police, after investigation, submitted charge-sheet against the appellant and after taking cognizance, the case was committed to Court of Session were charges under Sections 376/511 and 302, Indian Penal Code were framed against the appellant who was put on trial as he denied the charges and aftertnal, he was found guilty and convicted and sentenced, as stated above. No witness on behalf of the appellant was examined before the Court below but from the trend of cross-examination of prosecution witnesses, the case of appellant appears to be of his complete innocence and his false implication in this case.

Altogether ten witnesses have been examined on behalf of the prosecution. Kunti Devi (P.W. 1) has not supported the case of prosecution and she has been declared hostile. Shiv Nandan Singh (P.W. 4) is a formal witness who has proved the fardbayan (Exhibit-1) of deceased recorded by P.W. 10. Dr. Wasim Ahmad (P.W. 8) is the doctor who had conducted post-mortem examination on the dead-body of deceased. Lai Bahadur Roy (P.W. 9) is the Investigating Officer of this case. Assistant Sub-Inspector Braj Bhushan Choubey (P.W. 10) is a Police Officer who had recorded the fardbayan (Exhibit-1) of deceased at Sadar Hospital. Ranjeet Kumar (P.W. 2), brother of deceased, Chameli Devi (PW 3), grandmother of deceased, Sanjeet (PW 5), another brother of deceased, Arjun Bhagat (PW 6), Uncle decased and Ainu Kumari (P.W 7), sister of deceased are other witnesses who had either seen the occurrence or burn injuries on deceased.

Dr. Wasim Ahmad (P.W. 8), in his evidence, has said that he had conducted post-mortem examination on the dead-body of deceased and found the following:

On inspection, smell of kerosene oil was coming from the body. Eyes were closed. Mouth was partially opened. Superficial to deeper with desquamation of skin at places and genetic violate painting of surface of whole body except both soles of feet perineum middle half of back to trunk. Osterior part of head anterior part of left thigh approximately 84% burn of body surface. Singing of hairs of anterior part of head, eye brows and eye laces and blackening of whole skin.

On dissection brain and its coverings intact and congested, lungs intact and conjested and on cutting darkened blood coming out and on trachea minute black particles on surface of mucus memberance with redness and heart was dilated and both chambers were empty.

According to him, cause and mode of death was hypovolaemic and neurogenic shock due to burn of 84% of body surface area leading to death. He has proved his post-mortem examination report which is marked Exhibit-3. From his evidence, it is established that the deceased died of burn injuries.

Here, we may observe that in his deposition, the date of conducting post-mortem examination is recorded as 3.11.1996 which appears to be an error of record which is apparent from his post-mortem examination report, in which date of conducting post-mortem examination has been given as 3.10.1996 and besides this at two places where this witness has signed the post-mortem examination report one after conducting post-mortem examination and another on receipt of pathological report of vaginal swab he has put dates as 3.10.1996 and 4.10.1996.

Ranjeet Kumar (P.W. 2) has said that at the time of occurrence, he was in a lane near his house when deceased raised alarm that appellant was killing her and when he came running, he saw the appellant coming out from his house carrying a bottle and entering his own house and when he entered his house, he found his sister burning in fire and when he enquired from her, she told him that appellant made an attempt to commit rape on her and on her protest, appellant sprinkled kerosene oil and set fire on her body and fled away. He has further said that he tried to extinguish fire by sprinkling water and, thereafter, deceased was taken to hospital by Doma Bhagat (not examined), Arjun Bhagat (P.W. 6), Umesh Singh (not examined) and Yamuna Sao (not examined). In Para 8 of his cross-examination, he has said that when he reached the place of occurrence, he found his younger brother Sanjeet (P.W. 5) and his younger sister Ainu (P.W. 7) weeping. Chameli Devi (P.W. 3) has said that deceased was her grand daughter and at the time of occurrence when she can e back after earning, the deceased started weeping and she saw appellant running away from her house carrying a bottle and fire had been set on the entire body of deceased and when she enquired from deceased, she told him that appellant had come to commit rape on her and on her protest, appellant sprinkled kerosene oil on her body and set fire to it. She has further said that fire was extinguished and deceased was taken to hospital where she was conscious and her statement was recorded by police and she remained there for an hour and, thereafter, came back to her house to attend children and on the same day at about 7 p.m., she came to know that deceased died and she then went running to hospital where she found deceased dead. She has said that deceased was unmarried. Sanjeet (P.W. 5), in his evidence, has said that appellant had tried to take the deceased to his house and when deceased protested, appellant sprinkled kerosene oil on her body and set fire. He is a child witness whose age has been estimated by the Court below as seven years but from going through his deposition, it appears that he is a competent witness having capacity to understand questions and give their replies. Arjun Bhagat (P.W. 6) has said that at the time of occurrence, he was returning to his house for taking meal from a shop and the moment he reached near his house, he heard hulla that appellant had set fire and when he came running to his house, he found that the whole body of deceased was fired and she was struggling for life and he then assisted in extinguishing fire and, thereafter, the deceased told him that when she was at Darwaza, appellant came there and dragged her in the courtyard where he wanted to commit rape on her and on her protest, he brought kerosene oil from his house and after sprinkling the same on her body, set fire. He has further said that deceased was taken to hospital where her fardbayan (Exhibit-1) was recorded by police on which he put his signature (Exhibit-2) as witness. He has further said that deceased had given her statement before police and police, after recording her statement, read over and explained the same to her and she put her left thumb impression on it in his presence. He has further said that on account of burn injuries, the deceased died on the same day. He has said that deceased was his niece. In cross-examination, he has said that deceased was aged about sixteen years and was unmarried and he was guardian of deceased. Ainu Kumari (P.W. 7) has said that at the time of occurrence she, Sanjeet (P.W. 5) and deceased were sitting at the Darwaza of their house when appellant came there and catching hold the hands of deceased, forcibly took her inside the house and, thereafter, he went to his own house and brought kerosene oil and sprinkled it On the body of deceased and, thereafter, lit fire by a match stick to the body of deceased. He has said that on huila, her brother Ranjeet Kumar (P.W. 2) came there and, thereafter, she, her grandmother, heronries etc. extinguished the fire and deceased was taken to hospital and in the night, she came to know that deceased died. She is the own sister of deceased.

Lal Bahadur Roy (P.W. 9), in his evidence, has said that on 2.10.1996, he was posted as Sub-Inspector at Aurangabad Town Police Station and on that day, Assistant Sub-Inspector Braj Bhushan Choubey (P.W. 10) brought fardhayan of deceased from Sadar Hospital on the basis of which he registered as case and took up the investigation. He has said that at about 6.30 p.m. on the day of occurrence, he visited the place of occurrence, which is the house of deceased consisting of two rooms, one with buck walls and Pucca roof and another having mud walls and tiled roof. In this tiled roof room, he found burnt pieces of clothes, half burnt hairs of head and roof bush and he was told that in this loom, the appellant had set fire to the body of deceased. He has said that he recorded the statements of some witnesses at the place of occurrence and he seized burnt pieces of clothes, burnt hairs of head, burnt soil and ashes of burnt clothes and prepared seizure list. He has proved the carbon copy of seizure list which, according to him, was prepared alongwith original in the same process with carbon. This seizure list is marked Exhibit-4. He has also proved in Court the pieces of burnt clothes (Material Exhibit-I), half burnt hairs (Material Exhibit-II) and burnt soil (Material Exhibit-III). He has further said that he recorded the statement of Braj Bhushan Choubey (P.W. 10) and after completing investigation, submitted charge-sheet.

Braj Bhushan Choubey (P.W. 10), in his evidence, has said that on 2.10.1996, he was posted as Assistant Sub-Inspector, Aurangabad Sadar Police Station and on that day, he had received an O.D. slip from Sadar Hospital and he then went to Sadar Hosoital where he reached at about 5 p.m. where he recorded the fardbayan (Exhibit-1) of deceased who was admitted Female Ward. He has proved the fardbayan (Exhibit-1) of deceased and has said that deceased put her left thumb impression on fardbayan (Exhibit-1) and Arjun Bhagat (P.W. 6) also put his signature (Exhibit-2) as a witness on the fardbayan (Exhibit-1). He has further said that on the same day, he received another O.D. at the Police Station from which he came to know that deceased had died and, thereafter, he went to hospital alongwith two constables and because of absence of electricity on that night, post-mortem examination could not be held and he then deputed both the constables for keeping watch of the dead body and on the next day that is 3.10.1996, steps for conducting post-mortem examination after preparing inquest report, were taken. He has proved the carbon copy of inquest report (Exhibit-5) and he has said that dead-body of deceased was sent for postmortem examination. In Para 6 of his cross-examination, he has said that he had recorded the statement of deceased at about 5 p.m. and at that time, uncle of deceased and a number of other persons were present and at the time of giving statement, deceased was wholly conscious and she was identifying persons and was speaking loudly.

The fardbayan (Exhibit-1), on the basis of which this case was registered, is of deceased hereself which was recorded by P.W. 10 on 2-10-1996 at 5 p.m. in Sadar Hospital, Aurangabad. The occurrence is said to have taken place on the same day at about 3 p.m. The fardbayan (Exhibit-1) of deceased was recorded within two hours from the time of occurrence suggesting that there was no delay in recording the fardbayan (Exhibit-1) of deceased. Since deceased, after getting her fardbayan (Exhibit-1) recorded, died on the same day, this fardbayan (Exhibit-1) can very well be treated as dying declaration u/s 32 of Indian Evidence Act. In her fardbayan (Exhibit-1), the deceased has specifically alleged that at the time of occurrence, appellant wanted to commit rape on her and for that he had pushed her in her courtyard and when she resisted and appellant could not succeed in his motto, he brought kerosene oil in a bottle and match box from his house and after sprinkling kerosene oil on her, set fire to her clothes and, thereafter, fled away. She has further stated that she told about the incident to her grandmother, brother and uncle and others and she further stated that she was brought to hospital by her uncle and neighbours.

The learned Counsel appearing on behalf of the appellant has argued that the doctor (P.W. 8) who conducted post-mortem examination report on the dead-body of deceased, in para 9 of his evidence, has said that the injuries, which were found on the dead-body of deceased, were of second degree burn injuries and such injury can cause cloudiness of mind and there may be failure of memory in such cases and state of mind may not be fit and because of cloudiness of mind, arising out of such injuries, the injured may not be in a state of giving statement. On the basis of this evidence, it has been argued that it cannot be said that at the time of getting her fardbayan (Exhibit-1) recorded, the deceased was in fit mental condition and she was in a state of giving statement. Admittedly, P.W. 8 is not the person who had recorded the fardbayan (Exhibit-1) of deceased, He, in para 9 of his evidence, has simply given the possibilities of the condition of injured which may be or may not be. He has never said that the injuries which he found the dead-body of deceased, were bound to cause cloudiness of mind and injuries were of such nature that deceased could not have been in a state to give any statement. He has simply said that such injuries may cause cloudiness of mind and there may be failure of memory and state of mind may not be fit. On the other hand, we find that Braj Bhushan Choubey (P.W. 10), who has recorded the fardbayan (Exhibit-1) of deceased, has clearly stated that at the time of giving statement, deceased was fully conscious and she was identifying the persons and was speaking in loud voice. He has further said that when he recorded the fardbayan (Exhibit-1) of deceased, her uncle and a number of other persons were present there. The evidence of Arjun Bhagat (PW. 6), the uncle of deceased also supports the evidence of P.W. 10 that fardbayan (Exhibit-1) of deceased was recorded in his presence and he has proved his signature (Exhibit-2) on the fardbayan (Exhibit-1).

The learned Counsel for the appellant has further argued that P.W. 10, in Para 9 of his evidence, has said that the lips and face of deceased were net burnt whereas evidence of P.W. 8, the doctor, who conducted autopsy on the dead-body of deceased, shows that except the soles of feet, entire body was burnt and deceased, in her fardbayan (Exhibit-1) has also stated that because of fire, her entire face/both arms, chest, neck, feet and entire body was burnt. According to him, P.W. 10 has deliberately stated false that lips and face of deceased were not burnt in order to substantiate his earlier evidence that a the time of giving statement, deceased was fully conscious and was speaking loudly. It is true that P.W. 10, in para 9 of his evidence, has said that the lips and case of deceased were not burnt whereas in fardbayan (Exhibit-1) of deceased, which is now being rated as a dying declaration, it is stated that her entire face, both arms, neck, chest, feet and entire body was burnt but then we find that in the same para 9 of his evidence, P.W. 10 has first stated that entire body of deceased was found burnt and her hairs etc. were also found burnt and, thereafter, he has simply said that her lips and face were not burnt. We, therefore, find that there is nothing in the evidence of P.W. 10 from which it can be inferred that deceased was not in a condition to give her statement before P.W. 10. A suggestion to P.W. 10 has been given that he, in connivance with Arjun Bhagat (P.W. 6), has manufactured the fardbayan (Exhibit-1) of deceased in order to falsely implicate the appellant. This witness has denied this suggestion but then defence has not made it clear that why Arjun Bhagat (P.W. 6) wanted to get the appellant falsely implicated in this case. Arjun Bhagat (P.W. 6), in para 22 of his evidence, has clearly stated that he is not related to appellant with whom he had no enmity although he has said that appellant is not a fair person and commits crime. A suggestion to him was given by defence that because deceased was characterless and he used to assault the deceased, therefore, deceased committed suicide by immolating hereself and he, in order to escape the punishment, has set up this false case. He has denied this suggestion.

The learned Counsel for the appellant has further argued that the evidence of prosecution witnesses, who are mostly related to deceased, is not consistent. According to him, Sanjeet (P.W. 5) has first said that at the time of occurrence, he was playing in his house but, thereafter, he has said that at the time of occurrence, he was playing near a papaya tree. It has been further argued that the Investigating Officer (P.W. 9), in his evidence, has admitted that Ranjeet Kumar (P.W. 2), in his earlier statement, had not stated that he heard the alarm of deceased that appellant was killing her and had not stated that the appellant, after coming out from the house of deceased, entered in his own house. No contradiction on the evidence of Ranjeet Kumar that deceased told him that appellant wanted to commit rape on her and on her protest, appellant sprinkled kerosene oil on her and set fire, has been brought on record. There is even no suggestion of any type to this witness by defence on this part of his evidence. The learned Counsel for the appellant has also drawn our attention towards the evidence of Investigating Officer recorded in paras 26,27 and 28 where he has stated that Chameli Devi (P.W. 3) had not stated before him that deceased, on seeing her, started weeping and she had not stated that appellant was fleeing from her house with a bottle; Arjun Bhagat (P.W. 6) had not stated before him that he received information about the occurrence from his nephew Ranjeet and had not stated that he had heard hulla of deceased and Ainu Kumari (P.W. 7) had not stated before him that her grandmother, uncle, etc. extinguished the fire. These contradictions are quite minor contradictions. Among the aforesaid witnesses, Ainu Kumari (P.W. 7) is an eye-witness to the occurrence whereas Chameli Devi (P.W. 1) and Arjun Bhagat(P.W. 6) have said that deceased told them that the appellant wanted to commit rape on her and on her protest, sprinkled kerosene oil underbody and set fire to her. There is nothing on record to disbelieve this evidence because no suggestion about any contradiction in the earlier .statements of these witnesses and their evidence on this point has even been put.

I this case, the fardbayan (Exhibit-1) of deceased, which is not dying declaration itself full supports the case of prosecution; We find no reason to disbelieve this fardbayan (Exhibit-1) because it has been well proved by the evidence of P.W. 10, the Police Officer, who had recorded it. The argument of defence that it was not recorded in presence of any doctor or nurse does not carry any weight because which fardbayan (Exhibit-1) of deceased was recorded, it was not recorded as a dying declaration but as an information of occurrence oh the basis of which the case was registered. Besides dying declaration of deceased, the evidence of P.Ws. 2, 3, 5, 6 and 7 fully support the case of prosecution: There appears no reason for falsely implicating the appellant in this case with whom the deceased or her family members had ho dispute or enmity. We, therefore, find that the case against the appellant stands proved beyond all reasonable doubts and the judgment and order of Court below does not require any interference by this Court.

In the result, this appeal is dismissed, The judgment and order of Court below convicting and sentencing the appellant is hereby confirmed.

B.K. Jha, J.

I agree.