Shambhu Dabgar vs State Of Bihar

The present criminal appeal has been preferred against the judgment of conviction dated 20.07.1996 and the order of sentence dated 22.07.1996, passed by learned 2nd Additional Sessions Judge, Aurangabad, in Sessions Trial No. 58 of 1994/15 of 1994, arising out of Obra P.S. Case No. 78 of 1993 whereby and whereunder the appellant has been convicted for the offence under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life.

Prosecution case in short is that Obra P.S. Case No. 78 of 1993 dated 12.06.1993 was registered under Section 307/34 of the Indian Penal Code, on the fardbeyan of one Madhuri Devi (deceased) who happens to be the wife of the present appellant/accused, namely, Shambhu Dabgar, which was recorded by A.S.I. Sri Matiur Rahman (P.W. 7) of Obra Police Station on 12.06.1993 at 8.00 P.M., in the State Dispensary, Obra. According to the fardbeyan, on 12.06.1993 at about 7.30 P.M., her husband Shambhu Dabgar (appellant) demanded some money from her but on her refusal the appellant and co-accused, namely, Urmila Devi, who is the wife of the elder brother of the appellant, began to assault her. She fell on the ground, then co-accused Urmila Devi poured kerosene oil on the body of the deceased and the appellant set her on fire. Thereafter, both the accused persons closed the door and bolted it from the outside. As a result, Madhuri Devi was severely burnt. It is also said in the fardbeyan that the appellant used to keep her hungry. This fardbeyan was recorded by the aforesaid A.S.I., namely, Matiur Rahman (P.W. 7), in presence of two witnesses, namely, Dasarath Ram (P.W. 8) and Ram Pravesh Ram (P.W. 1). It is also the case of the prosecution that Dasarath Ram (P.W. 8) and Ram Pravesh Ram (P.W. 1) are persons who had brought the injured to Obra State Dispensary for treatment from the house of the accused alongwith others. Some treatment was given to Madhuri Devi (deceased) by the Medical Officer, Obra State Dispensary, namely, Dr. Dilip Kumar Sinha (P.W. 9), on the same day at 8.10 P.M. and immediately the doctor referred her for better treatment to Sadar Hospital, Aurangabad. However, soon thereafter the patient died within the campus of the State Dispensary, Obra and Section 302/34 of the Indian Penal Code was added vide order dated 19.06.1993.

After investigation, the police submitted charge-sheet against both the accused. The co-accused Urmila Devi was declared as absconder and by order dated 13.06.1994 her trial proceeded under Section 299 of Cr.P.C. Thereafter, the Jurisdictional Magistrate took cognizance and committed the case to the Court of Sessions. Charge was framed against the appellant under Section 302 of the Indian Penal Code and he was put to trial.

In this case, the prosecution has examined altogether seven witnesses. P.W. 1 Ram Pravesh Ram and P.W. 8 Dasarath Ram are said to be the witnesses in whose presence the fardbeyan of Madhuri Devi (deceased) was recorded. P.W. 2, namely, Rajendra Ram, P.W. 3, namely, Ram Kumar Ravidas, P.W. 4, namely, Mahendra Prasad Gupta and P.W. 5, namely, Sheokumar Prasad. P.W. 6, namely, Dr. N.P. Sharma (who conducted postmortem on the body of the deceased), P.W. 7, namely, Matiur Rahman (the Investigating Officer), P.W. 9 Dr. Dilip Kumar Sinha (the Medical Officer, Obra State Dispensary, who had examined the injured Madhuri Devi on 12.06.1993 at 8.10 P.M).

Learned counsel for the appellant has argued that the trial court has fallen in error of law by considering the fardbeyan recorded by the A.S.I. (P.W. 7) as dying declaration as the same does not qualify the conditions required for a statement to be considered as dying declaration. He has submitted that P.W. 1 and P.W. 8 have turned hostile who are witnesses to the recording of the statement of the informant/deceased. Further, the statement of the Investigating Officer (P.W.7) is also not of unimpeachable character in order to rely upon the same. Learned counsel for the appellant submits that from the material available on record, it can be said that the deceased was not in a fit condition to make a statement; therefore, the entire case of the prosecution is false. The treating doctor (P.W.9) has deposed that the burn was 90 % and Madhuri Devi (deceased) was unconscious. It has also been argued that the postmortem report clearly shows that mucous membrane of neck of the deceased was congested. On this finding of the doctor, learned counsel submits that the same would in turn suggest that vocal chord would also be congested and the injured will not be in a condition to speak. The Investigating Officer (P.W.7) in his deposition has stated that the doctor had seen victim prior to recording of her statement whereas the F.I.R. shows that the statement of the deceased was recorded at 8:00 P.M. and the doctor (P.W.9) has attended the deceased at 8:10 P.M. Such a contradiction in the case of prosecution creates strong doubt over the truthfulness of his testimony. It is also submitted that in presence of such a material contradiction in the testimony of the Investigating Officer (P.W.7), the fardbeyan stands uncorroborated. It is contended that the doctor was available in the campus of the State Dispensary and there was no impediment in getting the doctor certify that the victim is in a fit state of mind for making such statement. However, it is evident from the records that no doctor has certified that the deceased was in a fit state of mind at the time when her statement was recorded. This also makes the case of the prosecution doubtful. Learned counsel argues that dying declaration is an exception to the hearsay rule but it does not stand on higher pedestal because such statement is not made on oath and the maker is not available for cross-examination. Lastly, it has been submitted that the burden of proof will shift on the appellant under Section 106 of the Indian Evidence Act only when the prosecution has prima facie established its case. In this case, the prosecution has to prima facie establish that the death was homicidal in nature, which the prosecution has failed to establish as the fardbeyan itself has not been proved. Further, in any case, failure to discharge the burden of proof as envisaged under Section 106 of the Indian Evidence Act would not lead to the guilt of the accused.

Learned A.P.P. appearing for the State has submitted that the prosecution has established its case beyond reasonable doubt and the order challenged before this Court requires no interference.

After hearing both the sides and perusing the material available on record, following are the issues which arise for consideration: -

I. Whether the prosecution has been able to prima facie establish its case by proving the fardbeyan?

II. Whether the burden of proof will shift upon the accused as per Section 106 of the Indian Evidence Act?

While dealing with the first issue, we find from the records that there are two witnesses i.e., P.W.1 and P.W.8 who are witnesses to the recording of the fardbeyan. Both these witnesses have turned hostile during trial. The P.W.1 in his deposition has stated that an incident had occurred in the house of the appellant. However, he does not know what incident had taken place. In his cross-examination done by the prosecution he has categorically stated that the statement of the deceased was not recorded before him and so far as his signature on the fardbeyan is concerned, he identifies his signature. When the defence cross-examined him on this issue, he stated that the police officer had asked him to sign on the paper and neither he read the contents nor the same was read over to him. Whereas, P.W.8 in his deposition has stated that the deceased had not given statement before him. He also identified his signature on the fardbeyan and said that he had signed on it due to fear of police. The content of the fardbeyan was not in his knowledge and the same was not read over to him. Now, the only evidence which the prosecution has adduced in order to prove that the deceased had given the statement to the Investigating Officer (P.W.7) is the ocular evidence of Investigating Officer (P.W.7). The Investigating Officer in his deposition has stated that the doctor had sent O.D. Slip on the basis of which he had gone to the Obra State Dispensary. However, the said O.D. Slip is not on record. In his deposition the P.W.7 has stated that he had recorded the statement of the deceased at 8:00 P.M. It has further come during his cross-examination that when he was recording the statement of the deceased, the doctor had already referred her to Aurangabad for treatment and Madhuri Devi (deceased) was on a Thela (cart) in the campus of the State Dispensary. He further says that at the time of recording of the statement of the deceased, neither the doctor nor any employee of the hospital was present there. The treating doctor (P.W.9) in his deposition has stated that he had examined Madhuri Devi at 8:10 P.M. He has further deposed that the moment he examined her she was unconscious and no police officer was present there. He had then referred her to Sadar Hospital, Aurangabad. From perusing the deposition of P.W.7 and P.W.9, it is apparent that there is material contradiction in both of them and therefore, the evidence of P.W.7 cannot be relied upon. The medical evidence available on record also shows that the deceased was severely burnt. The post mortem report also indicates that the head, face, neck, chest, abdomen, perineum and upper thigh of the front of body was found to be burnt. The mucous membrane of the neck and the brain matter was found to be congested. At this juncture, we would like to refer to the decision rendered by the Hon’ble Supreme Court in the case of P Mani vs State of Tamil Nadu reported in (2006) 3 SCC 161. The Hon’ble Apex Court in paragraph 14 of the judgment has held as follows: -

“14. Indisputably conviction can be recorded on the basis of dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regard the correctness of the dying declaration, the court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on records suggests that such dying declaration does not reveal the entire truth, it may be considered only as a piece of evidence in which event conviction may not be rested only on the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them…”

In view of the deposition of the treating doctor that the deceased was unconscious when he attended her, supported by the medical evidence, it is improbable that the deceased could have given the statement to the Investigating Officer (P.W.7). As also, the witnesses to the fardbeyan have also been declared to be hostile and the deposition of the P.W.7 has material contradictions, therefore, in our opinion, the prosecution has failed to prove the fardbeyan of the deceased and hence prima facie case against the appellant is not established.

In order to deal with the second issue, first we deem fit to understand that at which stage the burden of proof shifts upon the accused in a criminal trial. The general rule is that in a criminal case the burden of proof is on the prosecution to prove its case beyond reasonable doubt. However, when a fact is especially within the knowledge of the accused, then the burden shifts on the accused and he has to discharge the burden of proof. In order to shift the burden on the accused, the prosecution has to first establish its own case by initially discharging its burden. Section 106 of the Evidence Act cannot be attracted unless the initial burden of establishing the guilt of the accused is prima facie discharged by the prosecution. Therefore, unless the prosecution is able to stand on its own leg and give a conclusive proof of the fact that the statement recorded by the Investigating Officer (P.W.7) is that of the deceased, the onus would not shift upon the appellant. We would gainfully refer to the recent judgment of the Hon’ble Supreme Court in the case of Satye Singh and Ors. vs. State of Uttarakhand reported in (2022) 5 SCC 438 wherein the Hon’ble Supreme Court has held as follows:

“15. …Reliance placed by learned advocate Mr. Mishra for the State on Section 106 of the Evidence Act is also misplaced, inasmuch as Section 106 is not intended to relieve the prosecution from discharging its duty to prove the guilt of the Accused. In Shambu Nath Mehra v. State of Ajmer MANU/SC/0023/1956 : AIR (1956) SC 404, this Court had aptly explained the scope of Section 106 of the Evidence Act in criminal trial. It was held in para 9:

This lays down the general Rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the Accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are preeminently or exceptionally within his knowledge. If the Section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the Accused to prove that he did not commit the murder because who could know better than he whether he did or did not. It is evident that that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the burden lies on an Accused person to show that he did not commit the crime for which he is tried…”

Therefore, in the facts of the present case, where the prosecution has failed to prove that the statement recorded by the Investigating Officer (P.W.7) is that of deceased, as she was not in a condition to give a statement as per the medical evidence and the ocular evidence of P.W.9, we are of the opinion that the burden as per Section 106 of Evidence Act will not shift on the appellant.

As a result of the findings given by us on both the issues formulated above, we are of the considered opinion that the order of conviction, passed by the trial court, cannot be upheld.

Hence, the appeal is allowed. The impugned Judgment of conviction and Order of sentence dated 20.07.1996 and 22.07.1996 respectively, passed by learned 2nd Additional Sessions Judge, Aurangabad, in Sessions Trial No. 58 of 1994/15 of 1994, arising out of Obra P.S. Case No. 78 of 1993 are set aside. The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. He is also discharged from the liabilities of his bail bonds.