Md. Nasir vs The State of Bihar

Mandhata Singh, J.—Prosecution case initiated on fardbeyan of one Praveen Khatoon, in brief, is that on 07.01.2009, she (informant) received a call from her father about her and her husband''s invitation at the occasion of Mohharram. She replied about her coming at the occasion along with her husband on the next day. On coming of her husband namely, Md. Nasir, she informed that a call on phone was received by her to the effect that both were invited by her father at the occasion of Moharram and a request was also made to get them selves prepared. Her husband replied that he was not ready to go there. There cropped up quarrel in between the wife and husband. Informant (deceased) was assaulted on his be half, again he sprinkled kerosene oil and set her on fire by litting a matchstick. Her two gotni came, threw water on her and Mohalla people along with husband taken her to D.M.C.H. where she was being treated at the time of making her statement to the Police. Trial ended in conviction and sentence to accused-appellant for the offence u/s 304(1) of the I.P.C.

In all, 10 witnesses are examined in the case. They are P.W.1 Md. Pappu, P.W.2 Halima Khatoon, P.W.3 Sahjadi Khatoon, P.W.4 Mumtaz Ali, father of the deceased, P.W. 5 Kaushar Khatoon, mother of the deceased, P.W.6 Nand Kishore Paswan, P.W.7 Raj Grih Rai, I.O. of the case, P.W.8 Raj Banshi Ram, another I.O. of the case, P.W.9 Md. Rustam Ali and P.W.10 Dr. Arvind Kumar, who conducted the postmortem in the case.

Of witnesses, P.Ws. 1, 2, 3 and 6 turned hostile without making any statement in favour of the prosecution. P.Ws. 7 and 8 are the Investigating Officers of the case who investigated the case in part. P.W.7 is relevant on the point that he got exhibited fardbeyan recorded by Hiralal Sharma, S.I., as was in his hand writing and signature, P.W.10 is a Doctor who conducted the postmortem of the dead body of deceased.

Death is due to burn injury is not disputed in the case. What is relevant in the case is whether death was homicidal or suicidal? For accepting the same, statement of the deceased (Ext.2) is there only.

Of witnesses, P.W.4 is father of the deceased is stating about receiving of burn injury by his daughter and signing of fardbeyan by him but adding that same was obtained while it was blank paper and his daughter remained unconscious for all time after her admission in the D.M.C.H. Similar statement is there on behalf of P.W.5 also. P.W.9 is uncle of the deceased. On the point of burning, he is stating about setting his niece on fire by this accused-appellant and further making statement by his niece in hospital about setting her on fire by the husband, though in cross-examination, he states that she (deceased) became unconscious and died.

The statement (fardbeyan) of the deceased has been accepted as dying declaration by the Trial Court which has been based for conviction also, there is no reason to disbelieve or doubt the reasoning given by the Trial Court.

Now, submission of learned counsel for the appellant is that relation of the husband with deceased always remained sweet before the incident, at the time of conviction his age was 32 years, after receiving the injuries she (deceased) was taken to D.M.C.H. by him with the assistance of villagers and adequate medical aid was provided. None of the material witnesses appeared to corroborate the prosecution case. So, this accused-appellant is entitled for liberal view on the point of sentence. In this case, conviction is for the offence u/s 304(1) of the I.P.C. Accused-appellant remained in custody since 18.08.2009 and specific submission on behalf of the learned counsel for the appellant is that the period undergone may be observed sufficient on the point of sentence. I agree with the submission made on behalf of learned counsel for the accused-appellant.

In the result, this appeal is dismissed with modification on the point of sentence only. It is made clear that conviction recorded by the Additional Sessions Judge, F.T.C.-III, Darbhanga in Sessions Case No. 350 of 2009 is hereby affirmed and the period of sentence is modified/minimized to the period already undergone by the accused-appellant. Appellant is in custody, he is directed to be released forthwith, if not wanted in any other case. Appellant is further exonerated from the liability of fine also imposed by the Trial Court and shall stand discharged from liability of his bail bond. Office is directed to send the records along with a copy of this Judgment to the Trial Court.