JUDGMENT M.C. Jain, J.
1. Raj Deo is the father and Indal Ram is his son. They were tried before the Sessions Judge, Mau in Sessions Trial No. 96 of 1999 for the offence punishable under Section 302 read with Section 34 I.P.C. for the murder of Smt. Sharda Devi (wife of one of them -Indal Ram) by burning her. They were acquitted vide judgment and order dated 2.3.2001 which has been questioned by the State by means of this appeal.
2. The genesis of the prosecution case was the F.I.R. lodged by PW 1 Kailash Ram (brother of the deceased) at Police Station Sarai Lakhansi, District Mau on 4.5.199 at 6.45 P.M. The incident took place in between the night of 3/4 May 1999 at about 1 O' Clock in village Rakauli. The case as per the F.I.R. and the evidence adduced in the Court was that the deceased had been married with the accused Indal Ram about 12 years before the incident. Indal Ram was a drunkard and a person of loose character. He had even brought another lady to his house to which the deceased Sharda Devi had objected. That lady had left after living in the house of Indal Ram for a night. In between the fateful night, the two accused tied Sharda Devi on a cot, gagged her mouth with a piece of cloth, doused her in kerosene and burnt her. PW 1 Kailash Ram was informed of the incident in his village Marhi, Police Station Kasimabad, District Ghazipur by a lady. The victim was admitted in District Hospital, Mau, but died there on 10.5.1999. On the lodging of the F.I.R. by PW 1 Kailash Ram, the case was initially registered under Section 307 I.P.C. with the preparation of check report and entry in the G.D. by PW 7 Constable Pradyumn Kumar and was subsequently converted under Section 302 I.P.C. consequent upon the death of the victim.
3. Initially, medical examination of the deceased was conducted in District Hospital Mau on 4.5.1999 at 7 P.M. by PW 4 Dr. C.M. Rai. She had been admitted there by her husband Indal Ram accused and as per the medical examination report Ex.Ka 4 superficial to deep burn injuries were found over her face, neck, chest, abdomen, both upper limbs, back both thighs and part of legs with presence of singing of hairs and smell of kerosene. Her dying declaration was recorded by PW 8 Pramod Kumar, Naib Tehsildar on 4.5.1999 at 11 A.M. on her condition having been certified to be fit to make the dying declaration by PW 5 Dr. Mangal Singh. The investigation was conducted by PW 6 SI Abrar Ahmad. After the death of the deceased, post mortem over her dead body was conducted by PW 3 Dr. J.P. Gupta on 11.5.1999 at 3.15 P.M. The deceased was aged about 34 years. Suffice it to say that burns were found as ante mortem injuries and the death had occurred due to shock and septicemia.
4. PW 2 Sarvan (child witness aged about 10 years) son of the deceased Indal Ram accused was examined as eyewitness.
5. The defence was of denial and false implication. Disbelieving the testimony of PW 2 Sarvan (child witness) and the dying declaration, the trial Judge recorded acquittal.
6. We have heard Sri Z.K. Hasan, learned A.G.A. from the side of the Stateappellant and Sri Harendra Prasad for the accused respondents. The record is before us which we have carefully perused.
7. On going through the evidence on record and cross checking the findings of the trial court therewith, we find that the acquittal is perfectly justified. The reasons for our agreeing with the trial Judge are these:
8. PW 1 Kailash Ram was not an eyewitness of the incident. However, it was stated by him in his examination-in-chief that on being informed of the incident in his village at 6 A.M. on 4.5.1999, he came to Bahadur Ganj and found that the two accused had brought her there for treatment but the Doctor had advised to take her to the District Hospital. She was then taken to the District Hospital, Mau. As mentioned earlier, in the District Hospital Mau, she was admitted by her husband Indal Ram. Had any of them been involved in burning her, she would not have been brought for treatment to the hospital by any of them. Instead, it would have been ensured by the accused that she met her death at the spot itself when there was no obstruction in accomplishment of their mission.
9. It is indicated by the evidence adduced by the prosecution that Indal Ram accused was a most irresponsible husband. He was a drunkard, dissolute and profligate, having brought another lady also to his house. To his that act, his wife Sharda Devi had seriously objected and the lady had left after staying for a night. It is also there in the testimony of PW 1 Kailash Ram that proceedings under Section 125 Code of Criminal Procedure had been initiated by the deceased Sharda Devi against her husband. Shortly stated, the relations between the couple were extremely strained. It is also noted from the statement of PW 1 Kailash Ram that his sister Sharda Devi deceased had suicidal tendency. Earlier also, she had tried to commit suicide but was saved. According to him, when he had met her sister in the hospital, she had disclosed the incident to him that her husband and father-in-law took her to the quarter, tied her with a cot, gagged her month and burnt her by sprinkling kerosene. We also note from his cross-examination that he had then told his sister that her husband and father-in-law would not be spared and the same statement would be given as was mentioned in the F.I.R. He also stated that his sister gave the same statement in her dying declaration. Obviously, there had been a confabulation between PW 1 Kailash Ram and the deceased Sharda Devi before she made her dying declaration.
10. The evidence contained in the dying declaration is not always gospel truth. It has to be kept in mind that dying declaration is not made on oath and is not subject to cross-examination. Greatest care is to be exercised in assessing the value to be assigned to this kind of evidence. In the present case, keeping in view the strained relations of the deceased with her husband, the possibility of the dying declaration being the outcome of her anger and displeasure against her husband cannot be ruled out. It could also be the result of tutoring because of confabulation with her brother PW1 Kailash Ram. The dying declaration is to the following effect:
"Mujhe Mere Pati Va Ghar Wale Charpoy Mein Bandh Kar Machis Se Jala Diye. Iske Pahle Bhi Mere Ghar Wale Kai Bar Jalane Ka Prayas Kiye The. Jalne Ka Samay Lagbhag 12 Baje Ratri Tha. Jab Main Jal Rahi Thi Tab Mere Bachche Chillane Lage To As Pas Ke Log Aspatal Mein Bharti Karaye."
11. It would be noted that the dying declaration does not specifically mention the name of her father-in-law as the person burning her.'Gharwale' is a vague term. Moreover, the dying declaration cannot be reconciled with other facts emerging from the evidence on record. She had not been admitted in the hospital by any villager. Rather it was her own husband (accused) who admitted her there. She did not say therein that when her children were shouting on her being burning, any of the accused tried to burn any child. The statement of her son PW 2 Sarvan is that when he raised shouts, his father and grandfather tried to burn him also. If it were a fact, the lady would have so stated in her dying declaration, especially when she mentioned that her children shouted and that she was admitted in the hospital by the neighbours. As we mentioned earlier, she was actually got admitted in the hospital by her husband himself, and not by any neighbour.
12. No reliance could be placed on the testimony of PW 2 Sarvan either. The testimony of this child witness was at poles apart from the dying declaration. There is no fixed rule as to the value which can be attached to the testimony of a child witness. Each case has to be examined on its own facts. What is required is that the testimony of a child witness should be scrutinized with great care. Evidence of children is notoriously dangerous unless immediately available and unless received before any possibility of coaching is eliminated. Children have good memories and no conscience. They are easily taught stories and live in the world of make-believe, so that they are often convinced that they have really seen the imaginary incident which they have been taught to relate. They often repeat glibly as of their own knowledge what they have heard from others. In the present case, the incident occurred in between the night of 3/4th May 1999 and the statement of PW 2 Sarvan was recorded in the court as late as on 1.2.2000. He stated that his mother had been burnt by his father and grandfather, but as observed earlier, her mother did not specifically name her father-in-law in dying declaration. He stated that his father and grandfather were about to burn him also when he raised shouts, which fact has not been stated by his mother in the dying declaration as pointed out a little above.
13. PW 1 Kailash Ram stated that the deceased had four sons out of whom Raja and Santosh were at his (this witness's) house at the time of the incident. However, the statement of PW 2 Sarvan is that his brother Raja was also with him at the time of the incident. Another important factor is that the statement of this witness had earlier been recorded by the Magistrate under Section 164 of Code of Criminal Procedure on 13.5.1999 wherein he inter alia stated that while burning, her mother ran out of the room shouting and her father threw a bucket full of water on her. In his testimony before the trial court, he denied to have made such statement. We gather the impression that PW 2 Sarvan gave a tutored statement at the trial under the influence of his maternal uncle.
14. For the foregoing discussion, we endorse the acquittal recorded by the trial Judge for cogent reasons. The appeal has no merit and we hereby dismiss it.
15. The accused respondent Indal Ram is reported to be in jail. He shall be set at liberty if not wanted in any other connection. The Chief Judicial Magistrate, Mau shall report compliance within two months from the date of the receipt of this judgment.
16. Certify the judgment to the lower court immediately.