Gauhati High Court
Sri Shyamlendu Deb & Anr vs The State Of Assam on 24 January, 2013
Author: Ia Ansari
Bench: Ia Ansari
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH )
Criminal mc No. 638 of 2012
In Criminal Appeal No. 146 of 2012
1. Sri Shyamlendu Deb,
S/O Late Nilini Mohan Deb,
Resident of Village-Satijoymatinagar,
P.S. Jalukbari, Dist. Kamrup, Assam
2. Sri Chandra Sekhar Deb,
S/O Late Nilini Mohan Deb,
Resident of Village-Satijoymatinagar,
P.S. Jalukbari, Dist. Kamrup, Assam
- Appellant-Applicants.
Versus
The State of Assam.
- Respondent.
BEFORE THE HON'BLE MR. JUSTICE IA ANSARI THE HON'BLE DR. (MRS.) JUSTICE INDIRA SHAH Advocates present:
For the Appellants-Applicants : Mr. D Kabir, Mr. S Deb, Mr. S Chetia, Mr. A Goyal, Mr. A Choudhury, Advocates.
For the Respondent : Mr. D Das, Additional Public Prosecutor, Assam.
Dates of Hearing & Order : 24th of January, 2013
JUDGMENT AND ORDER
(O R A L)
{ IA Ansari, J }
With the help of this application, made under Section 389 Cr.P.C., the applicants, who are appellants in Criminal Appeal No. 146 of 2012, have sought for suspension of their conviction and also the sentence, which has been passed against them by the impugned judgment and order, dated 22-06-2012, in Sessions Case No. 42(K) of 2008, by the learned Sessions Judge, Kamrup, Guwahati.
2. We have heard Mr. D Kabir, learned counsel for the appellants- applicants, and Mr. Z Kamar, learned Public Prosecutor, Assam.
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3. While considering the present application, it needs to be borne in mind that the death of Smti. Sipra Deb, wife of the appellant-applicant No. 1, namely, Sri Shyamlendu Deb, took place at the matrimonial house of the said deceased, where she used to live with the appellant-applicant No. 1 and their son, who has been examined as PW20. His evidence, given in the Court, is in favour of the appellant-applicant No. 1 inasmuch as according to his evidence, his father was lying on the bed, when his mother caught fire and it was only upon hearing her mother screaming that his father got up from his bed and tried to extinguish the fire by means of gunny bag. This witness (PW20) had, however, given earlier a statement under Section 164 Cr.P.C., wherein he had alleged that his father was involved in setting ablaze his mother. We do not find that the prosecution declared PW20 hostile or cross-examined him nor was this witness (PW20) contradicted by drawing his attention to the previous statement, which is claimed to have been made by him under Section 164 Cr.P.C.
4. Be that as it may, considering the fact that the evidence, which PW20 has given in the Court, is substantive in nature, we cannot, even while considering this application, ignore the same.
5. Imperative it is to note, now, that according to the evidence of PW1, who is one of the neighbours of the appellant-applicant No. 1, Sri Shyamlendu Deb, when, on hearing hue and cry, he reached the house of accused-appellant, Sri Shyamlendu Deb, he found Sipra (since deceased) engulfed in fire and she was sitting in her bathroom trying to douse the flame by water.
6. What is relevant, for the purpose of present application, is that the evidence of PW1 is to the effect that when the people, who had gathered at the house of the accused, made inquiry from Sipra and she replied that it was the elder brother of accused, Sri Shyamlendu Deb, i.e., the appellant-applicant No. 2, namely, Sri Chandra Sekhar Deb, who had set her on fire. This witness's evidence prima facie exonerates the appellant-applicant No. 1, Sri Shyamlendu Criminal MC 638/12 in Criminal Appeal No. 146 (J) of 2012 Page 2 of 6 Page 3 Deb. We do not find that the learned trial Judge has recorded any reason as to why the evidence of PW1 was not found credible, particularly, when we notice that the evidence of even PW2, who, too, is one of the neighbours of accused- appellant, Sri Shyamlendu Deb, is that when he went to the hospital and met Sipra, she told him that she had been set on fire by the elder brother of the accused, i.e., the appellant-applicant No. 2.
7. Though there are several dying declarations given by various witnesses implicating both the appellants-applicants, the learned trial Court had a duty to record a clear finding as to why it had chosen not to believe PW1 and/or PW2, particularly, when none of the two witnesses was declared hostile by the prosecution or cross-examined by them.
8. Though the learned Public Prosecutor has heavily relied on the decision, rendered in Puran Chand -v- State of Haryana, 2010 CRI. L. J. (SC), to show that a dying declaration can be made basis for conviction, it needs to be noted that it has been pointed out, in Puran Chand (supra), by the Supreme Court that it is not the law that the dying declaration, which supports the prosecution, can alone be accepted, while the other innocuous dying declarations had to be rejected and that such a trend will be extremely dangerous. Thus, when there are more than one dying declaration, brought in the evidence on record, it is the duty of the Court to marshal the evidence and assign reasons as to why a dying declaration, which goes in favour of the accused, cannot be accepted.
9. Further-more, we cannot, at this stage, ignore the fact that though it is in the evidence that the relationship between the accused-appellant, Sri Shyamlendu Deb, with deceased Sipra was far from cordial and that a case, under Section 498A IPC, had been registered against the appellant-applicant, Sri Shyamlendu Deb, when Sipra was alive, the said case, admittedly, culminated into acquittal and none, including the State, preferred any appeal against the acquittal.
Criminal MC 638/12 in Criminal Appeal No. 146 (J) of 2012 Page 3 of 6
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10. Coupled with the above, it is also noteworthy that PW21 is daughter of the appellant-applicant No. 2, namely, Sri Chandra Sekhar Deb, and according to her evidence, her father was at home at the time, when the occurrence had taken place. The evidence, so given by PW21, has remained unchallenged by the prosecution. Though the veracity of the evidence, so given, by PW21 as well as the evidence given by PW20, son of appellant, Sri Shyamlendu Deb, would be subjected to scrutiny at the time of hearing of the appeal, their evidence cannot, at this stage, be ignored or brushed aside, particularly, when the learned trial Court has not assigned cogent reason for not believing these two witnesses and when their evidence remained unchallenged even by the prosecution. This inference, which we have drawn, is, however, tentative in nature inasmuch as the veracity of the evidence, as regard the dying declarations, which the prosecution relies upon, would be determined more vigorously, while hearing the appeal.
11. Though it has been noted by the learned trial Court that the appellant- applicant, Sri Shyamlendu Deb, had suffered burn injuries, this appellant's case had been that he had sustained burn injuries, while he tried to douse the flame. This version may or may not be true; but at this stage, the possibility of the appellant, Sri Shyamlendu Deb, having sustained burn injuries, while trying to save his wife, cannot be ruled out, particularly, when the prosecution has not submitted anything to show as to why the defence, so taken by the appellant, Sri Shyamlendu Deb, be not believed. Prosecution merely relies on the evidence of only those persons, whose evidence is to the effect that Sipra told them that both the accused-appellants had set fire to her (Sipra's) person ignoring completely the evidence of PW20 and PW 21 particularly, when no discernable reason has been assigned, as indicated above, by the learned trial Court.
12. Though Mr. Kabir, learned counsel for the appellants-applicants, has also drawn our attention to the report of the Forensic Science Laboratory (in short, Criminal MC 638/12 in Criminal Appeal No. 146 (J) of 2012 Page 4 of 6 Page 5 'FSL') with regard to the examination of Gamocha (i.e. country made towel) allegedly used in the incident, the report showing that there was no trace of kerosene found on the said Gamocha, we keep, at this stage, our comments reserved on this aspect of the appellants' case inasmuch as this is an aspect, which needs to be examined in depth at the time of hearing of the appeal on merit.
13. Suffice it to mention, at this stage, that we find that the appellants- applicants have made out a sufficiently strong case calling for suspension of sentence of both the appellants-applicants warranting their release on bail pending hearing of this appeal. We are also of clear view that the conviction of none of the appellants-applicants call for suspension inasmuch as the present one is not a case, where there is no evidence. Whether the evidence was sufficient to warrant conviction of the two appellants or any one of them are the questions, which would be determined at the time of hearing of the appeal. For the present, we are of the view, as indicated above, that the sentence of the appellants-applicants needs to be suspended and they deserve to be released on bail pending hearing of the appeal.
14. Because of what have been discussed and pointed out above, we hereby, in the interest of justice, suspend the sentence, which has been passed against the appellants-applicants, and direct that they be released on bail of Rs. 15,000/- each with two sureties, each of the like amount, subject to the satisfaction of the learned Sessions Judge, Kamrup. We further direct that the appellants-applicants shall not leave the territorial jurisdiction of this Court without obtaining its leave and shall appear, in this Court or in any other Court subordinate to this Court as and when so directed.
15. Considering the fact that the appellants are agreeable to prepare the paper book, the appellants-applicants are hereby directed to prepare the paper book expeditiously and submit the same, for scrutiny, to the Registry, Criminal MC 638/12 in Criminal Appeal No. 146 (J) of 2012 Page 5 of 6 Page 6 within a period of four weeks from today and if the paper book, so prepared, is found to be in order, the appeal shall be listed for hearing.
16. Before parting with this appeal, we make it clear that whatever we have observed above are our tentative views on the basis of the materials placed before us and the arguments advanced and the views, which we have expressed, would obviously be subject to what we find or any other Bench finds at the time of hearing of the appeal.
17. Send a copy of this order to the learned Sessions Judge, Kamrup.
18. With the above observations and directions, this miscellaneous case shall stand disposed of.
JUDGE JUDGE
Paul
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