Madan Sah, Lallan Sah, Bharat Sah and Gopal Sao vs The State of Bihar

N. Pandey, J.—All the Appellants were called upon to explain charges for having committed the murder of Prem Shila Devi before the 1st Additional Sessions Judge, Bettiah. Satyadeo Sah, husband of deceased Prem Shila Devi, has been convicted and sentenced to undergo life imprisonment u/s 302 of the Indian Penal Code whereas other four Appellants, namely, Madan Sah, Lallan Sah, Bharat Sah and Gopal Sao, have been convicted u/s 302 read with Section 149 of the Indian Penal Code and awarded the sentence of life imprisonment by judgment dated 19.2.1985 in Sessions Trial No. 16/15 of 1984/84.

The prosecution case, as would appear from the dying declaration of deceased Prem Shila Devi and the evidence of prosecution witnesses, is that on 21.1.83 Appellant Satyadeo Sah at about 8 O''Clock in the night entered the room where his wife Prem. Shila was sitting and after sprinkling K. oil took out a match-box and put the lady on fire. All the male family members, namely, Appellants Madan Sah, Lallan Sah, Bharat Sah and Gopal Sah were present inside the Angan but none of them prevented Satyadeo Sah. Prem Shila Devi came out of the room and started crying due to pain of burning. She also threw her Sari, tore the blouse but by that time major portion of her body was already burnt. Allegation has also been made when the lady tried to come out from the room, she was obstructed by the other Appellants. Neither any information with regard to this incident was sent to the parents of the deceased nor to the police station. Similarly no attempt whatsoever was made to provide medical treatment to the lady.

The brother of Prem Shila Devi, namely, Prabhu Sah (P.W. 1) and her sister Geeta Kumari (P.W. 2) having learnt somehow about the incident, went to the village of the Appellants. The mother of the deceased Tetari Devi (P.W. 3) was also informed by these witnesses, therefore, she also arrived and saw her daughter lying in a critical condition, it is further alleged in spite of best persuation, the Appellants were not ready to take the injured to Bettiah Hospital for medical aid. Thereafter, Tetari Devi (P.W. 3) having seen the attitude of the Appellants went back to Bettiah and submitted written petition to the Superintendent of Police and District! Magistrate, West Champaran. Thereafter, on 1.2.1983 the Assistant Sub-Inspector of Police, J.N. Prasad, went to Village-Somgarh and recorded the statement of Prem Shila Devi (Ext. 2) and got her admitted in M.J.K. Hospital, Bettiah. On 14.2.1983 at the request of the police, the Sub Divisional Judicial Magistrate, Bettiah went to the Hospital and recorded the dying declaration (Ext. 1) of the deceased. It would further appear that Prem Shila hovered between the life and death in a precarious condition for some time and ultimately on 26.4.83 succumbed to the burn injuries. The defence, as would appear from the statement of the Appellants and the trend of cross examination of the prosecution witnesses, was total denial of the occurrence. It was further contended that this false case was hatched up by the mother of the deceased since no harm was caused to Prem Shila by these Appellants.

The prosecution, as would appear, besides those two dying declarations of Prem Shila Devi also examined five witnesses in support of its case. P.W. 1 Prabhu Sah is the brother and P.W. 2 Geeta Kumari is the sister of the deceased, who had gone to the house of the Appellants on receiving information about the incident. P.W. 3 Tetari Devi is the mother of the deceased, who had also arrived at the house of the Appellants and requested the accused persons to take the injured to the Hospital at Bettiah for treatment. She also filed petitions before the District Magistrate and Superintendent of Police regarding the conduct of the accused persons on the basis of which ultimately on 1.2.1983 the Assistant Sub Inspector of Police arrived at the house of the Appellants and got the statement of the injured recorded and also took her to the Hospital for treatment. P.W. 4 (Harendra Kishore Verma) is the Judicial Magistrate, who proved the second dying declaration of Prem Shila Devi, which was marked as Ext. 1. P.W. 5 Gopal Prasad is an Advocate''s Clerk, who has proved the Fardbeyari and other documents. Neither the Investigating Officer who conducted the investigation nor the doctor, who had held the post mortem examination, has been examined by the prosecution.

The Court below, however, has held that P.Ws. 2 and 3 were not able to correctly reproduce the narration of the incident, which was divulged to them by the deceased. But at the same time he has also noticed since these witnesses were not present at the time of occurrence, therefore, much importance should not be attached to their oral evidence.

Mr. Jha, Sr. Counsel appearing for the Appellants contended that in view of such a finding of the trial Court one can safely infer that the prosecution has not come forward with true version and attempt was made to implicate the Appellants. In my view, from a bare reference to the impugned judgment it would appear that the trial Court has based his findings against the Appellants on the basis of the dying declarations. (Exts. 1 and 2) of Prem Shila Devi, because admittedly the occurrence in this case took place on 21.1.1983 inside the house and none of the witnesses namely, P.Ws. 1, 2 and 3 were present. No attempt has been made by these witnesses to state that actually they had seen the occurrence. But certainly on the basis of the evidence of these witnesses one can safely arrive at a conclusion that Prem Shila Devi had received burn injuries in her house and subsequently succumbed to such injuries From the evidence of these witnesses it has also been established that until arrival of the Assistant Sub Inspector of Police on 1.2.1983, these Appellants had kept Prem Shila under confinement without any medical aid. Therefore, it would not be proper to reject the testimony of such witnesses simply because they were not able to correctly reproduce the narration of the incident, which they had learnt from the deceased.

Admittedly the prosecution in this case has brought on the record both the dying declarations of the deceased. True it is that the first statement of deceased Prem Shila as recorded on 1.2.1983 by the Assistant Sub Inspector of Police was initially treated as Fardbeyan because Prem Shila Devi continued hovering between life and death till 25.4.1983, the day she succumbed to the injuries. Therefore, having regard to the provisions of Section 32 of the Evidence Act, the Fardbeyan of the deceased (Ext. 2) was treated as dying declaration. The second dying declaration (Ext. 1) was of course recorded on 14.2.1983 by the Sub Divisional Judicial Magistrate in the hospital itself. A bare reference to both the dying declarations, it would appear that the statement of Prem Shila with regard to the manner of incident and allegation against her husband, Appellant Satyadeo Sah, is consistent. But so far as other Appellants are concerned, certainly vital contradictions are apparent. Because in the first dying declaration no allegation whatsoever against other Appellants save and except that they were present inside the house, and no attempt was made by them to save the deceased, has been made. Undisputedly at the time of occurrence Prem Shila was sitting inside the room where her husband Satyadeo Sah entered and after sprinkling K. oil, put her on fire. There is no allegation against these Appellants that they had also either connived with Appellant Satyadeo Sah or participated with him in the alleged offence. Therefore, simply because these Appellants, namely, Madan Sah, Lallan Sah, Bharat Sah and Gopal Sao, were present in the house at the time of occurrence, it can not be said that they had shared the common object or the intention of Appellant Satyadeo Sah to commit murder of Prem Shila Devi. Therefore, for the reasons, stated above, it may not be safe to convict Appellants, Madan Sah, Lallan Sah, Bharat Sah and Gopal Sao for the offence u/s 302/149 of the Indian Penal Code.

Mr. Jha contended though on the basis of declaration of deceased, conviction u/s 302 of the Indian Penal Code can be safely recorded provided such a dying declaration was recorded after observing all the settled norms. In this case the Assistant Sub Inspector of Police who had recorded the Fardbeyan, which is now being described as first dying declaration, has not come forward to prove that such a dying declaration was recorded on the basis of the statement of the deceased. Therefore, having regard to such a lacuna in the case of the prosecution and contradictory statement of the deceased in the second dying declaration, it would not be safe to hold Appellant Satyadeo Sah guilty for the offence u/s 302 of the Indian Penal Code. In support of his contention, Mr. Jha placed reliance on a devision of the Apex Court in the case of Maniram Vs. State of M.P., .

In my view, though the case before the Supreme Court was also with regard to burning of a wife by the deceased''s husband and case was started on the basis of the dying declaration recorded by Sub Inspector of Police, but in that case there was no signature or thumb impression of the deceased on such a dying declaration. Similarly the doctor was also not informed by the Sub Inspector of Police to certify whether the declarant was conscious and in senses. But in the case before me the first dying declaration has been proved by Gopal Prasad (P.W. 5), who had also recognised the writings of the Assistant Sub Inspector of Police. A bare reference to both the dying declarations (Exts. 1 and 2) would indicate that Prem Shila Devi had put her thumb impression. Therefore, it would not be proper to contend at this stage that Exts. 1 and 2 are not the dying declarations of Prem Shila Devi.

Mr. Jha next contended that in view of the developments and imbelishments with regard to the case the prosecution and allegations against the Appellant in the second dying declaration, the Court was required to look to the corroborations of such statements, brought on record by the prosecution. He contended that from a bare reference to the findings of the Court below, it would appear that P.Ws. 1, 2 and 3 were substantially disbelieved. Therefore, in absence of any corroboration, the dying declarations of Prem Shila Devi suffer from infirmity and no conviction can be passed on such statements.

In my view, the law on this question is well settled. Because it may not be necessary for the maker of the dying declaration to cover the whole incident or to narrate the entire case history. I have already noticed that in both the dying declarations the statement of Prem Shila Devi is consistent that her husband entered the room and after sprinkling K. oil set her on fire. True it is that a dying declaration should be carefully scrutinised but if after perusal of the same, a Court is satisfied that the dying declaration is true and free from any effort to prompt the deceased to make such statement, there can not be any legal impediment in holding the conviction on such a dying declaration, even if there was no: corroboration. Reference in this regard can be usefully made to a decision of the Apex Court in the case of Kusa and Others Vs. State of Orissa, .

Apart from what has been noticed above, in such cases, the main thing to be seen is whether the inconsistencies go to the root of the matter. In the instant case I have already noticed that entire occurrence took place inside the house. Therefore, none of the witnesses were expected to be present at the time of occurrence. The condition of Prem Shila was not such that she could not make statement before the police or the Magistrate. This is not the case of the defence nor any material has been brought on the record to show that at the time of making such statements, she was senseless. Therefore, simply because there are certain inconsistencies in the statements of the witnesses, genuineness of the dying declarations can not be doubted. Reference in this regard can be made to a decision of the Apex Court in the case of Krishna Pillai Sree Kumar and Another Vs. State of Kerala, .

Mr. Jha next contended that the doctor in this case was not examined to prove the contents of the post mortem report. Therefore, such a post mortem report cannot be used as substantive evidence nor any finding can be arrived whether the injuries sustained by Prem Shila were sufficient in ordinary course to cause her death. Therefore, until and unless contents of such documents are proved by its author, the prosecution can not use such a document as substantive evidence. In support of such contention Mr. Jha placed reliance on decisions of this Court in the case of Jai Kant Tewary Vs. State of Bihar and Ramdeo Yadav v. State of Bihar 1987 B.B.C.J. 775.

In this regard it would be useful to notice that at the time when the Public Prosecutor filed the post-mortem report with a petition to mark the same as Exhibit, Sri Ravindra Prasad Srivastawa, the defence counsel, admitted the genuineness of the document. Therefore, having regard to the provisions of Section 294 of the Code of Criminal Procedure, the post mortem report was marked at Ext. 6 by the Court below. As per Sub-section (3) of Section 294 of the Code of Criminal Procedure where the genuineness of such document is not disputed, it may be read in evidence in any inquiry, trial or other proceedings under the Code. That apart having regard to the law laid down by this Court in the case of Dasrath Mandal and three Ors. v. The State of Bihar 1993 (1) P.L.J.R. 737, if the prosecution or the accused does not dispute the genuineness of such document, filed under Sub-section (1) of Section 294 of the Code, it amounts to an admission that the entire document is true and correct. Reference in this regard can also be made to a Full Bench decision of Allahabad High Court in the case of Saddiq and Others Vs. State, .

It has to bear in mind that Section 294 of the Code has been introduced by the Legislatures with a view to avoid unnecessary delay in disposal of the criminal cases. An accused has every right to doubt the genuineness of such document at the time when it is filed. Because undisputedly unless such a document is admitted by the parties no value can be attached with regard to its genuineness. Reference in this regard can also be made to a Full Bench decision of Bombay High Court in the case of Shaikh Farid Hussain Sab v. The State of Maharashtra (1983 Cri. L.J. 487). Therefore, the facts of this case being quite different, Appellants can not get any benefit of the ratio laid down in the case as reported in Jai Kant Tewary Vs. State of Bihar . Because in the present case genuineness of the document was already admitted by the defence at the time when it was brought on the record.

Apart from what has been noticed above, undisputedly Prem Shila Devi was burnt to death inside the room where none else except Appellant Satyadeo Sah was present. No explanation whatsoever has been furnished by this Appellant under what circumstances his wife got burn injuries and ultimately died. It is quite natural that being the husband of the unfortunate lady, Appellant Satyadeo Sah had every obligation to disclose under what circumstances her wife received such injuries and ultimately died. Besides the aforesaid, the cruel and inhuman conduct of the Appellant Satyadeo Sah and his family members in not making any attempt to provide medical aid to the injured for about seventeen days, until the arrival of the Investigating Officer, is also a strong circumstance to hold that it was the Appellant Satyadeo Sah, who commited the murder of his wife. Therefore, in my view, the Court below was quite justified in holding this Appellant guilty u/s 302 of the Indian Penal Code and to record conviction of life imprisonment against him.

In the result, therefore, having regard to the finding recorded above, Appeal No. 212 of 1985, filed on behalf of Appellants 1. Madan Sah, 2. Lallan Sah, 3. Bharat Sah and 4. Gopal Sao, is allowed and their conviction and sentences are hereby set aside. Since they are on bail, therefore, they are discharged from liabilities of bail bonds.

However, Appeal No. 260 of 1985, filed on behalf of Appellant Satyadeo Sah is dismissed and his conviction and sentence, as recorded by the trial Court, stands confirmed. Bail bonds of Appellant Satyadeo Sah is hereby cancelled and he is directed to be taken into custody forthwith.

N.N. Singh, J.

I agree.