BINOD KUMAR SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellant Binod Kumar Sharma has preferred this appeal, which is directed against the judgment of his conviction under Sections 306 and 498A I.P.C. and order of sentence dated 24.4.1999 passed by 1st Addl. Sessions Judge, Jamshedpur against him whereby and whereunder the appellant was sentenced to undergo rigorous imprisonment for three years and two years respectively in Sessions Trial No. 444/1990.

(2.) THE prosecution case before the trial court below was that the statement of Meera Sharma (since deceased) wife of the appellant was recorded at Tata Main Hospital on 25.5.88 at 12.15 hours by P.W. 8 Brij Bihari Ram A.S.I, of Police. Meera Sharma narrated that her husband appellant and mother -in -law Gulabi Devi had been very frequently chastisby her and that she was abetted by her husband -appellant to commit suicide by setting her body on fire. On 25.5.88 at about 10 A.M. some domestic quarrel picked up and in the same transaction she was abetted by the appellant -husband and her mother -in -law to commit suicide in the manner abetted earlier and consequent to that she went inside the room and set her body on fire after sprinkling K. Oil, as a result of which, she sustained severe burn injuries on her person. After breaking open the door she was removed to Tata Main Hospital, Jamshedpur. She was married to the appellant only two years ago. On the basis of her statement Telco P.S. Case No. 113/88 was registered on 25.5.88 for the offence under Section 498A/306 I.P.C.

(3.) MR . Anil Kumar, learned Counsel assailed the impugned judgment and order passed by the 1st Additional Sessions Judge, Jamshedpur mainly on the grounds that the trial court failed to appreciate the evidence adduced by the prosecution which could not satisfy the charges as framed against the appellant as the same was inconsistent. The appellant was not examined by the trial court in the right perspective and true spirit of the provisions of Section 313 Code of Criminal Procedure since, without placing the incriminating materials before the appellant, appeared on the record in course of trial and he has been held guilty. The trial court convicted the appellant solely relying upon the so -called dying declaration of Meera Sharma recorded by an Assistant Sub -Inspector of Police against the mandatory provisions of law and also relying upon the statement of the victim Meera Sharma recorded in course of investigation under Section 161 Cr.P.C. which is not admissible under law. In the instant case no independent witness was examined on behalf of the prosecution and the trial court failed to give finding as to whether at the relevant time of her statement under Section 32 of the Evidence Act Meera Sharma was mentally alert, physically fit and was capable to deliver her dying declaration in view of 90% of her burn injuries.