High Court
Case Details
Crl.A. 175/2008 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA AND HON’BLE MR JUSTICE P.K. SAIKIA This appeal is directed against the judgment dated 16.08.2008, passed by Addl. S essions Judge, FTC, Kamrup, Guwahati, in Sessions Case No. 77/2003 convicting th e accused-appellant u/s 302 IPC and sentencing him to imprisonment for life and a fine of Rs. 1,000/-, i/d R.I. for one year for offence u/s 302 IPC. 2. Being aggrieved by and dis-satisfied with the aforesaid judgment, the ac cused-appellant, Sri Swadesh Sarkar, hereinafter referred to as accused person, has preferred this appeal citing several infirmities in the judgment, rendered b y the trial court. 3. The brief facts necessary for disposal of present appeal are that on 17. 04.2000, one Smti. Lakhi Dey lodged an FIR with Officer-in charge, (in short, O/ C), Jalukbari Police Station alleging that on the same day, at about 7.30 pm, he r daughter, Sibani Dey, since deceased, was admitted to Gauhati Medical College Hospital (in short GMCH) with burn injuries. As per Sibani’s statement, she was set ablaze by accused Swadesh Sarkar, an employee of police battalion, Assam. 4. At the time of occurrence, the informant was at the market. On receiving information, she rushed back home and lodged the FIR. In the FIR, it has also b een alleged that her daughter had love affairs with the accused person and he al so promised to marry her. However, subsequently, he backed out from his promise. On 16.04.2000, in the evening, one Ganga Bahadur Thapa went to the camp of accu sed person to finalize the marriage of the deceased with the accused person. 5.
Facts
However, the accused pretended that he did not know the victim. This had shocked the victim no end. On the next day, in the morning, the deceased came t o know that the accused was a married man for which the deceased got involved in a quarrel with the accused person. In the evening, the accused came to the hous e of the victim and having found her alone in the house, the accused set her abl aze. On the receipt of the FIR, O.C., Jalukbari PS registered a case against the accused person and ordered an investigation. At 11 pm, on 17.04.2000, the Executive Magistrate, Shri U. Bar 6. uah recorded the dying declaration of the victim. In that dying declaration, the victim reportedly implicated the accused person. In the dying declaration, the victim alleged that she was set on fire by the accused person. In the meantime, the victim succumbed to her injuries and subsequently, Section 302 IPC was added . 7. Meanwhile, the police arrested the accused person, examined the persons, well acquainted with the facts and circumstances of the case, did other needful and on completion of the investigation, I.O. submitted charge-sheet u/s 302 IPC against the accused person and forwarded him to the court to stand trial. The M agistrate before whom the charge-sheet was so laid, committed the case to the co urt of Sessions since the offence u/s 302 IPC is exclusively triable by a court of Sessions. On receipt of the case on commitment, the learned Sessions Judge transfe 8. rred the case to the file of Addl. Sessions Judge, FTC, Guwahati for disposal in accordance with law. The learned Sessions Judge, FTC on hearing the parties, fr amed charge u/s 302 IPC and charge, so framed, on being read over and explained to him, he pleaded not guilty and claimed to be tried. During trial, the prosecu tion has examined as many as 16 witnesses including the informant. 9. The statement of the accused person u/s 313 Cr.PC was recorded. His plea was of total denial. On the conclusion of trial and on hearing the arguments, a dvanced by the learned counsel for the parties, the learned Trial Court convicte d the accused u/s 302 IPC and sentenced him to punishment as aforesaid. It is th at judgment which has been assailed in the present appeal. 10. Opening up argument on behalf of the accused-appellant, Mr. HRA Choudhu ry, learned Senior Counsel, contended that the judgment of the trial court is un sustainable since it miserably failed to consider the fact that the deceased had made three sets of dying declarations which are fundamentally different content s and contour. In that connection, he has referred to the decision of Hon’ble Su preme Court in the case of Sharda v. State of Rajasthan, reported in (2010) 2 SC C 85. In the aforesaid case, the deceased made three (3) dying declarations, t 11. he last one in presence of Executive Magistrate (Ext. P-18). In first two dying declarations, the deceased stated that she caught fire accidentally whereas in t he dying declaration, before the Magistrate, the deceased stated that her mother -in-law had poured kerosene on her and set her on fire. Allowing the appeal, Hon ’ble Supreme Court held as follows: 22. Cumulative effect of the aforesaid leads to an irresistible conclusion that Ext. P-18 is not sufficient to hold the appellant guilty of commission of offenc e under Section 302 IPC. It neither inspires confidence nor is wholly trustworth y to sustain the conviction of the appellant. It was an afterthought and has bee n got prepared after the deceased appears to have been tutored to say so by her parents. In the light of this, it has to be completely ignored which we accordin gly do so & & & In the light of the aforesaid discussion, we are of the considered opini 27. on that Ext. P-18 cannot be treated as wholly trustworthy as it is shrouded by m any doubts. On the other hand, for the reasons recorded hereinabove, Exts. D-3 a nd P-3 are more reliable and credible. Going by the same would fully establish t hat the deceased had not implicated in the same anyone much less the appellant. 12. The learned trial court also failed to take notice of the circum stances in which the deceased met her death. The circumstances which are associa ted incident in question unmistakably demonstrate that it is impossible on the p art of the accused to set her on fire on the night in question. In that context, it has been stated that the victim had some relations with the accused person. Somehow she got perturbed with such relationship, and therefore, she had committ ed suicide on the evening of 16.04.2000, out of frustration and also to take rev enge on the accused petitioner. 13. It has also been pointed out that the dying declaration made to the Exec utive Magistrate on which the learned trial court had placed enormous reliance d id not indicate anything about her ability to make such dying declaration, more so when there is clear evidence to show that the victim sustained burn injuries covering 70 to 80% of her body. The dying declaration which does not give any in dication about the ability of the victim to make such statement cannot be relied on in recording a verdict of guilt against the accused person.
Legal Reasoning
58. On scrutiny of the dying declarations aforesaid, we have found that all the dying declarations are different and they, in fact, projected very different pro secution stories qua the cause of death of the deceased on the evening in questi on. It is therefore, totally unsafe to place reliance on any of the aforesaid dy ing declarations. 59. We find that the facts and circumstances in our present case, being simi lar to ones, stated in the case of Sharda (supra),we are of the opinion that the decision, rendered in the aforesaid case, fairly and squarely covers our case i n hand as well. On the application of the aforesaid decision to our case, we hav e found that the appellant herein needs to be acquitted on setting aside the jud gment impugned in this appeal. 60. We have already found that some of the witnesses who arrived at the P.O. even before the PW 1 and PW 2 and who even tried to save the deceased from bein g burnt, did not hear the deceased making any declaration regarding cause of her death. Such revelation not only makes the claim of PW 1 and PW 2 very doubtful but also seriously questioned the contents of the dying declarations, made befor e the Executive Magistrate. 61. Our forgoing discussion has also made it more than clear that the storie s, told and retold in the dying declarations have no approval of normal behavior s and conducts. These coupled with the fact that there is strong possibility of the deceased committing suicide on the evening in question require us to hold an d decide that prosecution cannot be said to have proved its case beyond all reas onable doubt. 62. Consequently, it is found that the learned trial court instead of convic ting the accused under section 302 IPC, ought to have acquitted him of the offen ce u/s 302 IPC on benefit of doubt. 63.
Arguments
To bring home his contention on this count, learned counsel for the appe 14. llant has drawn our attention to the decision of Hon’ble Supreme Court in the ca se Surendra Kumar. V. State of Haryana reported in (2011) 10 SCC 173. The releva nt part is reproducing below. Now coming to her state of mind, all the doctors have mentioned that she was admitted with burn injuries to the extent of 100% and after some time she s uccumbed to the injuries. It is true that P.K.Sharma (PW2), Tahsildar-cum-Execut ive Magistrate recorded her statement. In his evidence, PW 2 has stated that on the orders of Shri Jagjit Puri, SDM, Union Territory of Chandigarh, by his order Ext. PB-1 deputed him to record the statement of Kamlesh Rani. Pursuant to the said direction, he went to PGI and moved an application to seek the opinion of t he doctor whether Kamlesh Rani was fit to make a statement or not. He further de posed that when he had contacted Kamlesh Rani she was present in the General War d and some persons were also standing there, they left the room on his direction . About the absence of the doctor certifying at the time and date when she made a statement, he clarified that the doctor issuing such certificate was busy with his professional work. Kamlesh Rani had made a statement in local dialect of mi xed Hindi -Punjabi and PW 2 had recorded her statement in Hindi script. Here aga in, it was pointed out that these were not factually correct. In view of the dou bt, we verified that original which is in Hindi script only and not local dialec t in mixed Hindi -Panjabi. Though, according to PW 2, she put her thumb impressi on, in view of the evidence of the doctors that she was brought to hospital with 100% burns and at the time of recording her statement, she suffered 95% -97% bu rn injuries, it is highly doubtful whether it would be possible for her to have her thumb impression below her statement. It is also not clear that when the who le body is burnt and bandaged how the thumb impression of the deceased was obtai ned. 15. Even in the case of Waikhom Yaima Singh v. State of Manipur, reported in (2011) 13 SCC 125, where the deceased was brought to hospital in a seriously in jured condition and who was said to have made a dying declaration as to the caus e of her death, the court refused to act upon such dying declaration due to want of medical certificate suggesting that deceased was in a fit condition to make such a dying declaration. 16. Since our instant case too, there is no certification in the dying decla ration that the deceased was in a mentally fit position to make a declaration a s to the cause of her death, it would be wholly unsafe to rely on any of the dyi ng declarations more particularly, the dying declaration which was made to the E xecutive Magistrate on which the prosecution has placed enormous reliance. Being so, the learned counsel for the appellant has prayed for setting the judgment o f the trial court. 17. Controverting such an argument advanced from the side of appellant, Ms. B. Bhuyan, learned Addl. Public prosecutor contends that the judgment, rendered by the trial court, invites no interference since it is founded on evidence whic h is free from any defect whatsoever and being so, such evidence unmistakably de monstrates that on the fateful night, the accused put the deceased on fire for w hich the deceased met her death on 18.04.2000. 18. Disputing the claim of the learned counsel for the appellant that a dyin g declaration, bereft of a certificate regarding ability of the victim to make a statement regarding cause of her death, is unreliable, she submits that law on this matter is well established and in the case of Laxman -Vs- State of Maharash tra reported in (2002) 2 SCC 7110, Hon’ble Supreme Court held that it is not the law that a dying declaration cannot be accepted unless it is accompanied by a c ertificate from the Doctor that the deceased was mentally fit to make a declara tion regarding the cause of his or her death. The relevant part of the judgment is reproduced below: 5. The Court also in the aforesaid case relied upon the decision of this Court i n Harjit Kaur V. State of Punjab wherein the Magistrate in his evidence had stat ed that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already i ndicated earlier, we have no hesitation in coming to the conclusion that the obs ervations of this Court in Paparambaka Rosamma v. State of A.P. (at SCC p.701, p ara 8) to the effect that (cid:28)in the absence of a medical certification that the injured was in a fit state o f mind at the time of making the declaration, it would be very much risky to acc ept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration (cid:29) has been too broadly stated and is not the correct enunciation of law. It is ind eed a hyper-technical view that the certification of the doctor was to the effec t that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated i n his evidence indicating the questions he had put to the patient and from the a nswers elicited was satisfied that the patient was in a fit state of mind where- after he recorded the dying declaration. Therefore, the judgment of this Court i n Paparambaka Rosamma v. State of A.P. must be held to be not correctly decided and we affirm the law, laid down by this Court in Koli Chunilal Savji v. State o f Gujarat. 19. We have considered the rival submissions having regard to the evidence o n record. Before we proceed further, we find it necessary to have a brief review of the evidence on record and the evidence of the doctor is first taken up for consideration. The Doctor who conducted autopsy on the dead body was Dr. B.C. Roy and he was examined as PW 13. 20. According to him, on 18.04.2000, he was posted as Associated Professor a t Forensic Medicines Department, Gauhati Medical Hospital, Guwahati. On that day , he examined the body of a female Hindu, aged about 19 years in connection with Jalukbari P.S. Case No. 115/2000 and found the following :- (cid:28)Swarty complexion/average build, female dead body. Body slightl y ward on touch and found naked, pale and dehydrated. Injuries: Dermo-epidermal burn injuries present on chest, abdomen, neck, face, bot h upper limbs including palms of hands, antero-medial lateral aspect of both thi ghs, parts of legs, forehead and frontal region of scalps. The pacts escaped fro m burn injuries are- parietal, temporal and occipital region of scalps, buttocks and posterior aspect of thigh, perininary and vulva, parts of legs and feet. Th e burnt area pale, depressed and raised congested margins. The burn injuries are varying from 1st to 4th degree and occupying 75 to 80% of the total body surfac e area. Scalp: Scal hairs burnt on frontal region and frontal region and forehe ad burnt, rest escaped. Skull-vertebra-healthy. Brain-health and place. Uterus-h ealthy/empty and nulliparans, vaginal swab was taken and on examination did not show spermatozoa and gonococci. Stomach and its contents- healthy, place contain s about 100 ml brown coloured fuoid mixed with carbon particles. Heart-healthy, chambers-empty. All other organs were healthy. OPINION: Cause of death was shock as a result of ante-mortem burn injuries sustai ned on the body, as described. 21. The doctor has proved the post mortem examination as Ext. 9. The ev idence of the doctor reveals that the deceased died due to ante mortem burn inju ries sustained by her on or around 16th /17th , April, 2000. 22. Since the present case is based mainly on dying declarations, let us fir st consider the witnesses before whom the deceased reportedly made the dying dec larations. Since the learned trial court has placed enormous reliance on the dyi ng declaration made to Executive Magistrate who was examined as PW 14, we find i t necessary to consider his evidence before putting the other evidence on scruti ny. According to PW 14, on 17.04.2000, he was posted as an Executive Magistrate in the office of the Deputy Commissioner, Kamrup. On that day, on the instructions of ADM, he went to GMCH and recorded th 23. e dying declaration made by Smit. Sibani Dey @ Putu. He found her in a position to make a statement and accordingly, he recorded her statement which he proved a s Ext. 5. In his cross-examination, he has stated that when he recorded the stat ement of the victim, the doctor as well the guardian of the victim were present. 24. He, however, admitted that he did not attach any certificate from the do ctor in Ext. 5. The suggestion that the victim was not in a position to make a s tatement was denied by him. In order to appreciate the contents of the dying dec laration, the English translation thereof is reproduced below. I, Smt. Shivani Dey, having been in sense, states that Sri Swadesh Sarkar, a coo k in APBN, poured kerosin oil on me and set me on fire. I was in love with Swade sh since last two months. But I came to know that Swadesh is a married man for w hich I had a quarrel with Swadesh. Said quarrel took place at about 9 a.m. In th e evening at about 7.30 p.m, Swadesh came to house. At that time, I was alone in my house. On opening the door, I found him in front of me. He immediately dragg ed me to nearby cow-shed where he tied my mouth and thereafter put me on fire by pouring kerosene oil on me. 25. Other witnesses before whom the prosecutrix made the dying decla ration are PW 1, Sri Robin Narzary. According to him, his house is situated at a place not far from the residence of the victim. On the fateful day, in the even ing, at about 7.30 pm, he heard hullah coming from the side of the house of the victim. He immediately rushed to such place. As he entered into the house of the deceased, she saw a shadowy figure crossing him. When he asked him what is goin g on in the house of the deceased, the shadowy figure told him that (cid:28)aag lagi (cid:29) ( meaning fire catches something). 26. The shadowy figure immediately dis-appeared from such place. He immediat ely went inside the house of the deceased and met Mukul Malakar there. Mukul tol d him that Sibani set herself on fire. She also saw Sibani on fire. His wife als o came by this time and she immediately poured water on the burning victim. In t he meantime, Gagan Bahadur Thapa appeared at such place and he advised PW 1 to t ake care of the victim. Her parents too arrived there by that time. Sibani was s itting in the courtyard of their house crying (cid:28)He should not be left out! (cid:29) 27. When he enquired as to who (cid:28)he (cid:29) was, Sibani told him that accused Swades h Sarkar set her on fire pouring kerosene oil on her after tying her hands and g agging her mouth. By that time, Smti. Lekhi Dey, Gagan Bahadur Thapa, sister of the victim, his wife, Smti. Sampati Narzary and others came there. The victim wa s thereafter taken to GMCH where she died next day. Almost all her body parts go t burnt. Lekhi Dey, the mother of the victim, lodged an FIR. 28. The FIR was written by PW 1. It is also in his evidence that her daughte r was in love with the accused person. Though the accused Swadesh Sarkar promise d to marry her, subsequently she refused to do so. Police seized three numbers o f gunny bags, ten numbers of unused match sticks and a broken match box from the place of occurrence in her presence on the strength of seizure list, Ext. 2. In his cross-examination, he has stated that the doors of the house of the victim were closed and that three persons tried to extinguish fire, one of them was Mil an (Mukul) Malakar. He also admitted that he did not notice if the hands of the deceased were tied or not. 29. made the dying declaration was PW2, Gagan Bahadur Thapa. According to him, the d eceased was his sister-in-law and he met the accused for the first time on the d ay of the incident. On the day of the incident, in the morning, he met the accus ed. Same day at about 7.30 pm, two persons came running towards him and told him that Sibahi put herself on fire. She immediately rushed to the house of Sibani and saw her burning at a place in between kitchen and cowshed. At that point of time, she was in a position to speak and she told him that two boys went to her house, tied her hands and gagged her mouth and then set her on fire. 30. The victim urged them to catch the boys. When she made such statement, s ome other people were also present there. He reported the matter to police over phone. Sibani was taken to hospital where she died on the next day. During the c ourse of investigation, police seized three numbers of gunny bags in half burnt condition, ten numbers of unused match sticks and one broken match box on the st rength of seizure list, Ext. 2. 31. In his cross-examination, he has stated that on the fateful day at about 9 am, he went to the camp of accused Swadesh Sarkar since he was said to have a n affair with the deceased. However, the accused refused to marry her and even p retended not to know the victim. It is also in his evidence that on the fateful day, his wife was with the deceased since she became very aggressive after being let down by the accused person. The victim even told them that she would commit suicide. It is also in his evidence that in the evening in question, Sibani was not in normal condition. PW 2 further admitted that he did not know if the dece The other witness before whom the victim reportedly ased committed suicide. 32. The other person who was the one first set of persons to arrive at the place of occurrence and who took part in dousing the fire was PW 7, Milan Malakar. In his evidence, PW 7 stated that on the fateful day, in the evening, he arrived a t the house of the deceased while she was still burning. He helped the people in dousing the fire by placing bags on her body but she did not hear Sibani making any statement as to how she caught fire. 33. PW 4, Kanak Borah, a retired Govt. servant deposes that on 17.04.2000, a pe rson came to his camp and made an enquiry about the accused person. He, therefor e, called the accused person. A man came there and had some discussions with the accused person. He also forced the accused to go with him. PW 4, however, restr ained such person not to take the accused with him rather advised him to have di scussions with him in the camp itself. In his cross-examination, he has stated t hat on the fateful day, as his knowledge goes, the accused was in the camp throu ghout the day. 34. PW 5, Sampriti Narzary, is the wife of PW 1. According to her, on the fatef ul day, in the evening, she came to the house of the deceased hearing hue and cr y there-from. As she arrived at the house of the deceased, she saw the later bur ning. She was immediately taken to the hospital. 35. PW 8, Khokan Ch. Dey, also deposes that on the fateful day, she came to th e house of the deceased and found Sibani still burning but he did not know how s he caught fire. She died in the hospital next day. Police conducted an inquest o n the dead body and in that connection, prepared a report which he proved as Ext . 3. PW 3 is also witness to the inquest. According to him, police conducted 36. an inquest on the dead body, prepared a report in that connection which he prove d as Ext. 3 wherein Ext. 3(1) is his signature. PW 6, Sibani Malakar, PW 9, Ran u Thapa, PW 10, Bola Dey, PW 11, Swapan Malakar, depose that the deceased died o f burn injuries but they did not know how she caught fire. PW 12, Md Rahul Amin is the I.O of the case under consideration. Accordi 37. ng to him, on 17.04.2000, he was posted as O.C., Jalukbari Outpost. On that day, he received an FIR from Smti Lskhi Dey. On receiving the same, he made a GD Ent ry thereon and forwarded the FIR to O.C., Jalukbari Police Station for registeri ng a case. In due course, O.C. registered the case u/s 326/307/440/417 IPC and h e was entrusted to investigate the case. 38. In the meantime, on 17.04.2000, around 8 pm, he also got telephonic info rmation to the effect that one lady was set on fire. On receiving the informatio n, he rushed to the spot, visited the place of occurrence and prepared a sketch map of the same. Ext. 4 is the sketch map. During the course of investigation, h e seized three numbers of gunny bags, ten numbers of match sticks and one broken match box on the strength of seizure list, Ext. 2. He also requisitioned the se rvice of Executive Magistrate in order to record the dying declaration of the vi ctim which he proved as Ext.5. 39. On the next day, the deceased died of burn injuries and he, therefore, c onducted an inquest and prepared a report in that connection which he proved as Ext. 3. Thereafter, he did the other needful and on conclusion of investigation submitted the charge-sheet u/s 302/447/420 IPC against the accused person. In hi s cross-examination, he states that PW1 did not tell him that the deceased told him that Swadesh Sarkar set her ablaze. 40. As stated above, the most important evidence which is pitted against the accused person are three dying declarations. In his evidence, PW 1 has stated t hat on the fateful day, on arriving at the place of occurrence, he found the dec eased burning who was crying (cid:28)he should not be left out. (cid:29) On his asking, the dec eased clarified that the accused came there, tied her hands and gagged her mouth , poured kerosene on her and then set her on fire. 41. Other witness who also claimed to have heard the deceased making the sta tement regarding the person who set her on fire is Ganga Bahadur Thapa. Accordin g to him, the deceased told him that two boys came to her house on that night an d tied her hands, gagged her mouth and then set her ablaze. If one reads the afo resaid dying declarations in between the lines, it would appear clear that the d ying declarations aforesaid are found to be fundamentally different. 42. If we believe the dying declaration which the deceased made to PW 1, tha n, one would find that only one boy had come and he set the victim on fire. He e ven claimed to have met that boy although he could not identify him. But giving a new twist to the incident under consideration, PW 2 says that ---not one--- bu t two boys---- came there and they set the deceased on fire after tying her hand s and feet, mouth and then pouring kerosene oil on her. These two fundamentally different dying declarations in our considered opinion only serve to show that n one of the aforesaid dying declarations can be trusted upon. 43. Those two dying declarations cannot be relied on for other reasons as we ll. There is indisputable evidence to show that one Milan Malakar had arrived at the place of occurrence even before the arrival of the PW1 and PW2 at such plac e and helped the people to douse the fire. More importantly, one Sampriti Narzar y (PW 5) and Kanak Ch. Dey ( PW 8) too arrived at the scene when the victim was still burning. But none of them heard the deceased making any statement as to ho w she caught fire, far less their hearing any statement from the deceased implic ating the accused as the person responsible for putting her on fire. There is no thing on record to show that those PWs, particularly, PW 6 is lying for reasons whatsoever. This only added more and more suspicion to the contention of PW 1 a nd PW 2 that they heard the victim making a statement implicating the accused as a person responsible for her burning. 44. One may note here that the I.O. in his evidence specifically states that PW 1 did not tell him during the course of examination u/s 161 CrPC that the de ceased told him that the accused set her on fire. Omission to make such a vital statement before the I.O. during the course of investigation tantamount to contr adictions and it only serve to show that the claim of PW 1 that the deceased tol d him accused being the perpetrator of the crime in question should not be left out, can hardly be believed. 45. It is also worth noting here that in his cross-examination, PW 2 has st ated that on his refusal to marry the victim, the deceased became extremely aggr essive, restless and violent. She even threatened to commit suicide. On the day in question, she was so restless, so impatient that PW 2 had to keep his wife, w ho happens to be the sister of the deceased with the later so that she could not do any wrong. 46. However, there is evidence to show that the victim was left unattended t owards late evening. Since on the day in question, the victim became restless an d impatient and since she wanted to end her life out of frustration, there was e very possibility that she might have committed suicide taking advantage of absen ce of someone around her during the time in question. This possibility to a grea t extent weakens the prosecution case that the accused set the victim on fire on the evening aforesaid. Yet another factor makes the prosecution case unreliable. If one believ 47. es the allegation hurled at the accused person, he would find that on the evenin g above, the accused came to the house of the deceased, equipped with a can of k erosene oil, match box and on arriving in the house of the deceased, he tied her hands and legs, gagged her mouth and then having poured kerosene oil on her, he set her on fire. Such a story, however, hardly finds any endorsement from norma l human behavior and conduct. 48. This is because of the reason that a grown up girl would do everything p ossible which may go to the extent of killing of the attacker to save her own li fe. This is more so, when the assailant came to her house which is being flanked by house of numerous neighbors. Very surprisingly, nothing of that sort had eve r happened in the case under consideration which speaks loud and clear that the story in the dying declarations is based, not on facts, but on fiction instead. 49. We may note here that as per the evidence of PW 4, on the fateful day, in the morning, two persons, one male and one female came to the camp of accuse d person and tried to take the accused to their house against his will. However, they could not do so since the accused was absolutely opposed to going to such place and since PW 4 prevented those two persons from taking the accused to thei r house. 50. Such an episode makes the prosecution case more and more doubtful. It is because of the fact that a boy, who was so hell bent in not going to the house of deceased despite being pressurized to go to the house of the deceased, would ever go to such place in the midst of residences of so many people in the evenin g, and that too, armed with a can of kerosene, and match box etc. in order to se t the victim on fire at her own house. However, the greatest blow to the prosecution case comes from the testim 51. ony of her own mother, (PW 16). In her evidence (PW 16), she had stated that at the time of the incident, she was in the bazaar. However, on being told that her daughter caught fire, she rushed to her house and found her daughter sustaining burn injuries. She was immediately taken to hospital. 52. Despite she being the mother of the victim, in spite of her arriving at the place of occurrence moments after the alleged incident, she did not utter a single word about the victim making any allegation implicating the accused as th e person responsible for her sustaining burn injuries on the evening aforesaid. She even disowned the story, written in her FIR. Thus, the informant instead of furthering the cause of prosecution makes it enormously doubtful. 53. This brings us to yet another chapter of the prosecution case where we a re to see if the dying declaration, which the deceased made to the Executive Mag istrate, is reliable. In the dying declaration, recorded by the Magistrate, the victim is found saying that she had an affair with the accused person but she ca me to know about that the accused being a married quite later for which she got involved in a quarrel with him on the fateful day, in the morning at about 9 pm. 54. In the evening, at about 7.30 pm, the accused came to her house. At that time, she was alone in her house. As soon as she opened the doors, she found th e accused at such a place. He immediately caught her, dragged her to the cowshed and gagged her mouth with a cloth and then put her on fire pouring kerosene oil on her. On a close scrutiny of the statements, made in the dying declaration ( E 55. xt. 5), we have found that Ext. 5 is not in tune with the dying declaration, mad e to either the PW 1 or the PW 2. We have already found that PW 1 and PW 2 have stated that the accused tied her hands and feet and also gagged her mouth and th en set her on fire on the night in question. However, all those episodes are mis sing in the dying declaration, made to the Executive Magistrate. 56. As per Ext. 5, on the fateful evening, while the deceased was alone in h er house, the accused came to her house, laid in wait in front of their house. The moment, the deceased opened the doors of her house, she found the accused a t the door step who immediately caught hold of her, dragged her to the cowshed, then gagged her mouth and having poured kerosene oil on her, he set her on fir e. 57. In her statement before the Magistrate, the deceased did not utter any word about the accused tying her hands/feet before putting her on fire. More importan t, she for the first time introduced a story that the accused was laid in wait i n front of her house on the evening in question and that he dragged the deceased to the cowshed, the moment, she opened the doors of her house.
Decision
In the result, the judgment which is under challenge in this appeal is q uashed and set aside. The appeal is allowed. 64. t required in connection with any other case. 65. Send down the lower court records. The appellant be set at liberty forthwith if his further detention is no