Vijay Mondal vs State of Jharkhand

Vishnudeo Narayan, J.—The sole appellant, Vijay Mondal, who was convicted for an offence u/s 302,1.P.C. and sentenced to undergo R.I. for life on trial, has preferred this appeal.

The prosecution case as per the Fardbeyan, Ext. 2 of the deceased Urmila Devi @ Pramila Devi (now deceased) recorded by the A.S.I., Krishna Singh, at Ramawatar Nursing Home on 9.8.1994 at 14 hours is as follows :

Urmila Devi @ Pramila Devi (now deceased) was married with the appellant Vijay Mondal about 15 years ago and they were residing in ECL Quarter No. N.H.S. 10/125. They had two sons and one daughter. On the night of 2.8.1994 at about 12.30 a.m. accused Vijay Mondal returned to his quarter, at which Urmila Devi asked the reason for such late return which enraged the accused and he began to abuse her and attempted to drive her out of the house. Urmila Devi persistently requested that she would live in the house. Thereafter, the accused closed the door from inside and thereafter poured kerosene oil on her person from a bottle then she immediately put off the Saree and promised him that she won Id d o ask anything and when she was changing other Saree he poured kerosene oil again saying that he would not leave her alive and would not allow her to live in his house, he lightened match stick and threw it on her Saree, as a result of which the whole body of her caught fire. She raised hulla and also requested him to save her and after this request and after some time, the accused poured a bucket-full of water on her person, consequently the fire was extinguished. Thereafter, the accused brought her to Vinita Nursing Home at Station Road, Kumardhubi, and hospitalized her there for treatment. On 9.8.1994, she was shifted to Ramawatar Nursing Home where she was being treated and in that connection, brother and other family members from home and Calcutta came there and in their presence the ASI, K. Singh of Nirsa P.S., recorded her statement, Ext. 2. Even before this occurrence, the accused used to abuse and assault her on several occasions and always threatened her to kill. She was the third wife of the accused. First wife was similarly burnt to death and the second wife was deserted by the accused. The motive has been alleged that the accused was trying to contract another marriage and hence to get rid of her, the occurrence was committed.

It transpires that on the basis, of the said Fardbeyan, a formal F.I.R., Ext. 3, was drawn up, police started investigation and, ultimately, the informant died on 19.8.1994 in the said hospital. The inquest report, Ext. 4, on which there are signatures of Basudev Mandal and Bhugal Mandal, Exts. .1 and 1/1 respectively, was prepared and the autopsy on the dead body was conducted by the doctor P.W. 6, who also proved the post-mortem report, Ext. 7. It transpired that on a requisition by the Nursing Home, vide Ext. 5 the injury of Pramila Devi wife of Vijay Mondal was examined, vide Ext. 6, which also shows the injuries on her body as follows :

"(i) Burn 2nd and 3rd degree over the abdomen area, chest, back, Rt. arm and forearm and left arm and forearm.

(ii) Burn 2nd degree lower part of neck.

(iii) Charring the feet.

Total burn area more than 89%."

It may be stated here that this Ext. 5 and Ext. 6 have been proved on the basis of the evidence P.W. 5, but the doctor, who issued the report, has not been examined.

The defence version of the case as appearing from the statements of the appellant made u/s 313, Cr.P.C. is as follows :

He was on duty and when he came back from duty, his wife Urmila @ Pramila Devi went to kitchen for warming food where she caught fire. He tried to extinguish the fire throwing water from a bucket on her. Then with the help of the neighbours he took the injured to the Vinita Nursing Home. Thereafter he sent information to his father-in-law, mother-in-law but it was his elder Saru (sister-in-law''s husband), who got this case instituted against him.

The main question is, whether Ext. 2 is the Fardbeyan in this case or not ? The learned Counsel appearing for the appellant has submitted that this is neither a Fardbeyan, nor a dying declaration. For not treating this as Fardbeyan, his argument is that the police had already got information of occurrence prior to recording of this Fardbeyan, which is evident from the evidence of P.W. 2, when he said that he had gone to P.S. and got recorded a report (para 1) whereas the I.O., P.W. 5, vide para 6 of his cross-examination, says that he reached the Ramawatar Nursing Home on confidential information and he had not received any information from the brother of Urmila namely, Basudev. In view of the evidence of P.W. 2 as there was earlier information to the P.W. 5 through P.W. 2, so that information must be treated as F.I.R. and on this point, the I.O. is definitely telling a lie. Thus, it is clear that the First Information regarding the occurrence that was received by the I.O. has been suppressed by him and the legal consequences of such suppression is obvious and do not require to be discussed in detail.

So far treating the Ext. 2 as a dying declaration is concerned, learned Counsel appearing for the appellant says that this was recorded after seven days of the alleged burning and there is no evidence that any certificate was given by any doctor on this piece of evidence regarding the medical fitness of its maker. The statement (Ext. 2) gives such detailed information of the occurrence that it creates a doubt about its being a dying declaration because if the maker of this statement was really in such a state of burnt condition which had endangered her life, then in that circumstance, such a detailed dictation of the occurrence, the motive and other facts are not probable jn the circumstances of the case. No doctor has come to say that this was recorded in his presence and at the time of recording, the maker of this piece of evidence was in sense and was understanding things. The I.O. has also admitted in para 6 of this cross-examination that at the time of recording this statement, there was no doctor present there. The learned Counsel appearing for the appellant also argued that there was enough time, but at no relevant time, requisition for a Magistrate was made for recording the dying declaration and this creates further doubt with regard to its bona fide. P.W. 2 says that this F.B. was recorded in his presence by the police vide para 3, but on this F.B., there is no signature of this witness. So, considering all the circumstances, we are of the view that this Ext. 2 is neither a Fardbeyan, nor is a dying declaration.

The second argument raised by the defence is that in house, there were young children of the victim as well as of the accused and they were aged 13,11 and 9 years respectively and they were sleeping in the adjoining bedroom of the P.O., but it is surprising that none of the children, who could be the most natural and competent witness has been examined, nor any neighbour has been examined to support of the allegations though admittedly, there are a large number of houses, (vide evidence of I.O., P.W. 5/para 2).

The learned Counsel appearing for the appellant also argued that the conduct of the complainant is fair and bona fide and against the hypothesis of his involvement in burning, it is common experience that the wives do generally go to the kitchen for warming the food even in the late night, when the husbands do come back from duty. In this case, the husband came late, so the deceased went to kitchen to warm the food and there she caught fire accidentally. Her presence in the kitchen at that late hour of night is not unnatural because the distance between P.O. and kitchen is only 1 ft.

It is more than proved that it was the husband who had brought the deceased to the Vinita Nursing Home and it was the husband who again brought her to another Nursing Home for treatment. The order sheet dated 10.8.1994 of the Court of CJM shows that when the accused was produced after he was arrested, the CJM also recorded that the accused had got burn injuries in his hands, leg and, therefore, appellant was directed to be examined by the Jail doctors. Section 313, Cr.P.C. provides that the statements made by accused can be considered. The word, ''consider'' means that it may be used against or in favour of the accused. This appellant says that he sent information to in-laws. All the in-laws came sooner or later but none is telling clearly from whom they got the information of this incident. This non-disclosure lends some support to the version of the appellant. If he really would have desired to kill her, he would not have tried to extinguish the fire and himself sustained injury, he also would not have taken her to two Nursing Homes for treatment. All such conducts of this appellant show his bono fide and lean in support of the accidental fire that caught the deceased at the time of warming food. This statement u/s 313, Cr.P.C. is thus considered in favour of the appellant.

In the aforesaid circumstances, considering the facts that the dying declaration is a suspicious piece of document, the F.I.R. has been suppressed and the bona fide of the appellant is more than proved, we find that the prosecution has failed badly to prove the charge u/s 302,1.P.C. against the appellant. Consequently, we find merit in this1 appeal, which is accordingly allowed and we reverse the order of conviction of the appellant and set aside the impugned judgment and sentence. The appellant is directed to be set at liberty forthwith, if not wanted in any other case(s).