Patna High Court
Faudi Yadav @ Fudi vs The State Of Bihar on 14 December, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1025 of 2017
Arising Out of PS. Case No.-59 Year-2014 Thana- KASIMBAZAR District- Munger
======================================================
Faudi Yadav @ Fudi Son of Jago Yadav, Resident of Vilage- Chhoti
Sandalpur, P.S.- Kasim Bazar, District- Munger.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1049 of 2017
Arising Out of PS. Case No.-59 Year-2014 Thana- KASIMBAZAR District- Munger
======================================================
Baby Devi wife of Ashok Yadav, Resident of Village- Chhoti Sandalpur, P.S.-
Kasim Bazar, District- Munger.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1025 of 2017)
For the Appellant/s : Mr. Indu Bhushan, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 1049 of 2017)
For the Appellant/s : Mr. Indu Bhushan, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 14-12-2023
1. Both the appeals have been heard
together and are being disposed of by this common
judgment.
2. We have heard Mr. Indu Bhushan,
learned Advocate in both the appeals and Mr. Dilip
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
2/13
Kumar Sinha, learned APP.
3. 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.
4. The appellants are the husband and the
sister-in-law of the deceased respectively.
5. 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
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
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.
6. 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.
7. The police after investigation submitted
chargesheet against all the three accused persons
including the two appellants whereafter they were put on
trial.
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
8. As noted above, accused/Ashok Yadav
was acquitted whereas the appellants have been
convicted and sentenced as aforenoted.
9. 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).
10. 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
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
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.
11. 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
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
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.
12. Before delving further, we deem it
appropriate to refer to the evidence of the Doctor who
had conducted the post-mortem on the deceased.
13. 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.
14. In the cross-examination, P.W. 5 has
categorically asserted that with such kind of injury (90%
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
burns and blisters all over), the deceased could not have
spoken during or after the burn injuries.
15. 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.
16. 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.
17. These two facts, when read with the
deposition of the Doctor and the post-mortem report,
renders the prosecution story absolutely doubtful.
18. If the fardbeyan of the injured were to
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
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.
19. 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
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
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.
20. 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
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
the prosecution version differs from the version as given
in the dying declaration, such declaration cannot be
acted upon.
21. Unfortunately, at the Trial, the parents
of the deceased have not supported the prosecution case
and have been declared hostile.
22. 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.
23. Thus, there is no evidence available
against the appellants if the dying declaration so
recorded by P.W. 4 is not to be believed.
24. 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
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
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.
25. 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.
26. We have also found that no
independent person has been examined by the
investigator or brought to the witness-stand to support
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
the prosecution case.
27. 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.
28. A piece of document could not be read
in two different ways for two different persons or else
the outcome would be absolutely skewed.
29. 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.
30. For the reasons aforenoted, the
judgment is set aside and the appellants are acquitted of
the charge levelled against them.
31. Both the appeals stand allowed.
32. The appellant, viz., Baby Devi in Cr.
Patna High Court CR. APP (DB) No.1025 of 2017 dt.14-12-2023
Appeal (DB) No. 1049 of 2017 is on bail. Her liabilities
under the bail bonds are cancelled.
33. 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.
34. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
35. The records of this case be returned to
the Trial Court forthwith.
36. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Nani Tagia, J)
krishna/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 19.12.2023
Transmission Date 19.12.2023
