Faudi Yadav @ Fudi vs State Of Bihar

Both the appeals have been heard together and are being disposed of by this common judgment.

We have heard Mr. Indu Bhushan, learned Advocate in both the appeals and Mr. Dilip Kumar Sinha, learned APP.

Both the appellants have been convicted under Section 302 of the Indian Penal Code vide judgment dated 26.07.2017, passed by the learned Additional Sessions Judge-II, Munger in connection with Sessions Trial No. 950 of 2014, arising out of Kasim Bazar P.S. Case No. 59 of 2014. By order dated 31.07.2017, they have been sentenced to undergo imprisonment for life, to pay a fine of Rs. 1000/- and in default of payment of fine, to further suffer S.I. for three months under Sections 302/34 of the IPC.

The appellants are the husband and the sister-in-law of the deceased respectively.

According to the fardbeyan of the deceased, which has been treated as dying declaration, she always doubted that her husband had illicit relationship with his sister-in-law. On 06.04.2014, when she saw her husband talking to her sister-in-law, she forbade him from doing so. This led to a fight between the husband and the wife. Later, the elder brother of the husband arrived home. Seeing this, her husband/Faudi Yadav @ Fudi (appellant), her brother-in-law/Ashok Yadav (since acquitted) and her sister-in-law/Baby Devi set her on fire. She was doused with petrol by her husband and the fire was lighted by her sister-in-law/Baby Devi. The accused persons left her alone to fend for herself. On her cries for help, many people of the neighbourhood arrived and took her to the hospital for treatment.

On the basis of the aforenoted fardbeyan statement, initially a case vide Kasim Bazar P.S. Case No. 59 of 2014, dated 06.04.2014 was instituted for investigation under Sections 341, 323 and 307/34 of the IPC. Later, Section 302 IPC was added.

The police after investigation submitted chargesheet against all the three accused persons including the two appellants whereafter they were put on trial.

As noted above, accused/Ashok Yadav was acquitted whereas the appellants have been convicted and sentenced as aforenoted.

The deceased died after about five days in the night of 10.04.2014. Whereafter, the mother of the deceased also lodged a fardbeyan at Jawahar Lal Nehru Medical College Hospital, Bhagalpur at about 10:00 A.M. on 11.04.2014, which was recorded by one Kameshwar Singh/A.S.I. (P.W. 6) on the asking of the investigator of this case (P.W. 4).

In the aforenoted statement, there is an allegation of demand of dowry and consequent ill-treatment. The mother of the deceased has also revealed that Ashok Yadav had come to her house to inform about the deceased having received burn injuries. On such information, she and her husband, who has later turned hostile, went to the matrimonial home of the deceased and they found that the deceased was crying for help. She was taken on an auto-rickshaw to the hospital where during the treatment, she died. She has also stated in the aforenoted fardbeyan statement (Exhibit-6) that in the earlier fardbeyan, said to be of the deceased, there is an allegation against the appellants and Ashok Yadav of putting the deceased on fire.

This fardbeyan (Ext. 6), referred to above, was never forwarded or acted upon but fortunately has been exhibited before the Trial Court. We have also noticed that though over the fardbeyan of the deceased, her mother (P.W. 2) has put her RTI (Right Thumb Impression) but there is no signature or certification by any Doctor of the hospital. The investigator (P.W. 4) of this case who had recorded the fardbeyan of the injured while she was still alive has categorically stated before the Trial Court that seeing the serious burn injuries on the person of the injured, he had sent requisition to the Medical Officer to attend to her. If this were the case, it was expected that the fardbeyan of the victim would be countersigned by the Medical Officer or at least there would be some certification that the victim was in a position to speak.

Before delving further, we deem it appropriate to refer to the evidence of the Doctor who had conducted the post-mortem on the deceased.

Dr. Yogesh Prasad Sah (P.W. 5) had conducted the post-mortem on 11.04.2014. He had found Dermo-epidermal burn injuries, extending over chest, back, upper part of abdomen, both lower limbs, right upper limb etc. The face was totally burnt and it was suppurating. There were presence of granules. The extent of burn was estimated to be around 90%. The burn injuries were found to be anti-mortem and caused by flames. The death, however, was because of septicimia, toxemia and shock because of the burn injuries.

In the cross-examination, P.W. 5 has categorically asserted that with such kind of injury (90% burns and blisters all over), the deceased could not have spoken during or after the burn injuries.

These facts taken together, therefore, raises serious doubts about the correctness of the so-called fardbeyan of the victim/deceased, which has been treated as dying declaration and has been relied upon by the Trial Court to convict and sentence the appellants.

To reiterate, the so-called dying declaration is not believable for the reason that (a) even though the Medical Officer was informed for treating the victim but there is no signature of any Doctor on the so-called fardbeyan given by the victim; (b) after four days of treatment, when the deceased died, the fardbeyan of the mother of the victim (P.W. 2) was recorded by P.W. 6 who had also conducted the inquest on the dead body.

These two facts, when read with the deposition of the Doctor and the post-mortem report, renders the prosecution story absolutely doubtful.

If the fardbeyan of the injured were to be believed, it would have been the most important evidence against the appellants as there is always a presumption that a person does not speak untruth if death is imminent. Otherwise also, such statements are admissible under Section 32 of the Indian Evidence Act. It has always been cautioned that such statements ought not to be distrusted or suspected without very good and strong reasons.

In Muthu Kutty and Anr. v. State by Inspector Of Police, Tamil Nadu (2004) Suppl. 6 SCR 222, the Supreme Court has listed the law with respect to the dying declarations. It says that (a) there is neither any rule of law nor of prudence that dying declaration cannot be acted upon without corroboration; (b) if the Court is satisfied that dying declaration is true and voluntary, conviction could be based on it without any corroboration; (c) the dying declaration has to be very carefully scrutinized so as to ensure that the declaration is not as a result of tutoring, prompting or most importantly, imagination; (d) it has to be found out whether the deceased had an opportunity to observe and identify the assailant and that she was in a fit state to make a declaration; (e) if the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

The Supreme Court has also made it clear that a dying declaration which suffers from infirmity, cannot form the basis of conviction. A dying declaration could be brief or laconic but if it is found to have been made by the victim before his/her death, it cannot be rejected merely for not containing many details. Normally, Courts of Law, in order to satisfy whether the deceased was in a fit mental condition to make a dying declaration, look up to the medical opinion. However, in the event of eyewitness account being present on record displays the deceased to be in a fit and conscious state to make a dying declaration, the medical opinion would not be the final test. However, if the prosecution version differs from the version as given in the dying declaration, such declaration cannot be acted upon.

Unfortunately, at the Trial, the parents of the deceased have not supported the prosecution case and have been declared hostile.

Shiv Yadav/P.W. 1 and Savita Devi/P.W. 2 though have made detailed statements but have denied that the death was because of the appellants burning the deceased. An independent person, viz., Futun Yadav/P.W. 3, again declared hostile, claims to have heard that the deceased caught fire while cooking.

Thus, there is no evidence available against the appellants if the dying declaration so recorded by P.W. 4 is not to be believed.

As we have already noted, the burn injuries were to the extent of 90%. The entire face was singed. It would be difficult to accept the assertion of P.W. 4 that the victim had made such statement. That the mother of the victim lodged a different fardbeyan before P.W. 6 (Exhibit-6) and the dying declaration of the victim was not counter-signed by any Doctor, who though was summoned to treat her further, brings the entire prosecution story in doubt.

We have also noticed that the fardbeyan of the mother of the deceased (P.W. 2) was recorded by Kameshwar Singh (P.W. 6) on the asking of the investigator, viz., Shankar Prasad Tudu (P.W. 4). Despite this, P.W. 4 claims to have learnt about the death of the deceased much later and that also because of the fardbeyan statement of P.W. 2 recorded by P.W. 6 being on record. It was only after that that a requisition was made for adding Section 302 of the IPC in the case.

We have also found that no independent person has been examined by the investigator or brought to the witness-stand to support the prosecution case.

That apart, while going through the judgment of the Trial Court, we have found that for no good reason, the Trial Court has accepted the dying declaration to be true with respect to the appellants but untrue with respect to Ashok Yadav, who too was charged of attempting to kill the deceased along with the appellants.

A piece of document could not be read in two different ways for two different persons or else the outcome would be absolutely skewed.

For all these reasons, we find that the Trial Court judgment requires to be interfered with and benefit of doubt has to be given to the appellants.

For the reasons aforenoted, the judgment is set aside and the appellants are acquitted of the charge levelled against them.

Both the appeals stand allowed.

The appellant, viz., Baby Devi in Cr. Appeal (DB) No. 1049 of 2017 is on bail. Her liabilities under the bail bonds are cancelled.

The appellant, viz., Faudi Yadav @ Fudi in Cr. Appeal (DB) No. 1025 of 2017 is in jail. He is directed to be released forthwith from jail, if not detained or wanted in any other case.

Let a copy of this judgment be dispatched to the Superintendent of the concerned Jail forthwith for compliance and record.

The records of this case be returned to the Trial Court forthwith.

Interlocutory application/s, if any, also stand disposed off accordingly.