Gauhati High Court
Rajib Devnath vs The State Of Assam on 8 April, 2015
Author: P. K. Saikia
Bench: P. K. Saikia, M. R. Pathak
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl. Appeal (J) No. 32 of 2011
Sri Rajib Debnath,
S/O Lt. Nipendra Debnath,
Resident of Chakitup,
P.S. Sadar, Dist.--Nagaon,
Assam.
..... Appellant
Versus
The State of Assam
....Respondent
BEFORE
HON'BLE MR. JUSTICE P. K. SAIKIA
AND
HON'BLE MR. JUSTICE M. R. PATHAK
For the Appellant : Mr. Z. Hussain, Amicus Curiae.
For the Respondent : Ms. S. Jahan, Addl. P.P., Assam.
Date of hearing : 08.04.2015
Date of judgment : 08.04.2015
Crl. A.(J). No. 32 of 2011
2
JUDGMENT AND ORDER (ORAL)
(P. K. Saikia, J) This appeal is directed against the judgment and order dated 25.02.2011, passed by the learned Addl. Sessions Judge, FTC, Nagaon in Sessions Case No. 239(N)/2007 convicting the appellant, namely, Sri Rajib Debnath of offences u/s 498A/302 IPC and sentencing him to suffer imprisonment for life and also to pay a fine of Rs. 1000/- (Rupees One Thousand) i.d. R.I. for another 1 (one) month for the offence aforesaid. He is also sentenced to imprisonment for a period of 1 (one) year for offence u/s 498A IPC.
2. Being aggrieved by and dissatisfied with the aforesaid judgment, the accused/appellant (hereinafter referred to as 'accused person') has preferred this appeal citing several infirmities in the judgment under challenge.
3. We have heard Mr. Z. Hussain, learned Amicus Curiae for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., for the State.
4. The facts which are projected by prosecution in the FIR dated 28.10.2005 and in subsequent trial and which are necessary for disposal of the present appeal, in short, are that on the night of 28.10.2005, at about 4 a.m., the accused person poured acid on his wife, namely, Jaya Debnath (since deceased) for which the aforesaid person sustained serious burn injuries requiring her to be hospitalized immediately. But while undergoing treatment at hospitals, the deceased succumbed to her injuries on 17.12.2005.
5. An FIR to that effect on being lodged by one Smt. Joymoni Mondal, mother of the victim, with O/C, Nagaon (Sadar) Police Station on 28.10.2005, police registered a case vide Nagaon P.S. No. 289/2005 u/s 498(A)/307/34 and entrusted one Sri Bipul Ch. Kotoki (PW 10) S.I. of Police to investigate the case. Being so entrusted, Shri Bipul Ch. Kotoki, S.I. of Police, started investigating the case.
6. During the course of investigation, the I/O visited the place of occurrence, examined the witnesses and took steps in matter of providing treatment to the victim. However, while undergoing treatment, the victim diedof burn injuries for which section 302 IPC was also added to the aforesaid case and on the conclusion of Crl. A.(J). No. 32 of 2011 3 investigation, the I/O submitted charge sheet u/s 498A/302 IPC against the accused person and forwarded him to the court to stand his trail.
7. The learned Magistrate before whom charge-sheet was so laid, committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. The learned Sessions Judge, on commitment of the case, was pleased to transfer the same to the file of Addl. Sessions Judge, FTC, Nagaon for disposal in accordance with law. On transfer of the case, the learned Addl. Sessions Judge, FTC was pleased to frame charge u/s 498A/302 IPC.
8. Charges, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried. During trial, the prosecution has examined as many as 10 (ten) witnesses including the informant, the I/O and the M/O who conducted inquest on the dead body. The statement of the accused person u/s 313 CrPC was also recorded. The accused plea was of total denial. However, on being required accused declined to adduce any evidence in his defence.
9. On conclusion of trial, learned trial court was pleased to convict the accused of offence u/s 498A/302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal.
10. Mr. Z. Hussain, learned Amicus Curiae, vehemently submits that judgment under challenge cannot be sustained. In that connection, it has been contended that the prosecution case is basically based on dying declaration which the deceased reportedly made to some of the PWs during the period between the date of incident and the date on which the victim expired. However, in spite of deceased got the chance to live for a period close to 1 month 18 days, the I/O made no effort to get the statement of the victim, recorded by a Magistrate or by a Doctor.
11. Such a lapse on the part of the I/O in getting the statement of the victim recorded by a Doctor or by a Magistrate during her lifetime is a very serious lapse which causes enormous prejudice to the accused person since the recording of the victim's statement during her lifetime by a Magistrate or a Doctor would have projected the proper picture in which the victim got burnt. Since the I/O did not record the statement of victim woman either by Doctor or by Magistrate, no reliance can be placed on the dying declarations reportedly made to the PWs aforesaid.
Crl. A.(J). No. 32 of 2011 412. The Dying declarations, aforesaid had been attacked on other count also. It has been stated that except PW 4 and PW 9, other witnesses before whom the victim reportedly rendered statements in the nature of dying declaration are all relatives of the victim and as such, in the facts and circumstances of the case under consideration, no reliance can be placed on the testimonies rendered by those PWs, more particularly, PW 1, PW 2, PW 4 and PW 5.
13. The evidence of PW 4 and PW 9 was also attacked on the count that the contents of those two dying declarations are fundamentally different. More importantly, dying declarations made to PW 4 and PW 9 also differs from dying declarations made by victim to PW 1, PW 2 and PW 5. Being so, entire prosecution case, based on dying declarations become unreliable.
14. It has again been contended that there is evidence on record to show that incident in question occurred towards the wee hours and just after the incident, the victim started running towards her own house situated at a distance of about one and a half K.M., from the house where she stayed on the night in question. On way to her house, the victim reportedly met several persons. But prosecution made no attempt to rope those witnesses in order to support its case. Such failure is fatal, more so, when PW 1, PW 2, PW 4 and PW 5 are found to be witnesses closely related to the deceased.
15. Learned Amicus Curiae further submits that some other important witnesses, such as, family members of the accused person, who also witnessed the incident in question, were not cited as witnesses. They were to have examined as witnesses since the incident in question occurred in the rented house of the accused person and therefore, the family members of the accused person could have thrown sufficient light on the incident under consideration. Non examination of such witness, consequently, casts a serious doubt about the authenticity of the prosecution case.
16. On all those counts, learned Amicus Curiae urges this court to set aside the judgment under challenge on acquitting the accused person of the offences he was charged with.
Crl. A.(J). No. 32 of 2011 517. On the other hand, Ms. S. Jahan, learned Addl. P.P., submits that dying declaration, so made to the PW 1, PW 2, PW 4, PW 5 and PW 9 cannot be discarded for any reason since their evidence on dying declaration is found free from any infirmity whatsoever. According to her, dying declarations, so made to the PWs aforesaid are found to be consistent in all respects which, in turn, shows that those dying declarations are voluntary and truthful as well.
18. Learned Addl. P.P., submits that it is true that some of the witnesses are related to the victim. But then, dying declarations, made to them, show that they are very consistent on all material points and in fact, one complements the other. Equally importantly, the dying declarations made to PW 4 and PW 9 are also found to be totally in the line of dying declarations so made to PW 1, PW 2 and PW 5. Being so, only for those PWs being related to the victim, their evidence cannot be discarded as prayed for by learned Amicus Curiae.
19. It has also been contended by learned Addl. P.P. that in the facts and circumstanced of the case under consideration, PW 4 and PW 9 were the most natural and independent witnesses. In that context, it has been submitted that whereas PW 4 was the person to whom the deceased came soon after the incident in question and reported what was done to her by her husband little before, PW 9, being the landlady of the house where the accused resided with his family as her tenants, came to know about such incident moments thereafter.
20. Therefore, the evidence of those two witnesses as well as other witnesses viz PW 1, PW 2 and PW 9 cannot be discarded for any reason whatsoever, more so, when there is nothing on record to show that they had falsely implicated the accused person with the crime in question-----argues the learned Addl. P.P.
21. It has also been contended that it is a settled law that the lapses on the part of the I/O cannot be a ground to reject the prosecution case, unless, such lapses on the part of the I/O resulted in prejudice to the accused person. Since there is nothing on record to show that for non recording of dying declaration by the Doctor or by the Magistrate during the lifetime of victim, the accused had suffered adversely, there cannot be any ground to discard the prosecution case as sought for by learned Amicus Curiae------again argues the learned Addl. P.P. Crl. A.(J). No. 32 of 2011 6 .
22. It has been stated that PWs had brought on record some circumstances enormously incriminating towards the accused person and all those incriminating circumstances were brought to the notice of the accused person while he was being examined u/s 313 CrPC. Instead of explaining those circumstances, he tried to doze off those questions which stared direct at him. Such an evasive attitude on the part of the accused person, in facts and circumstances of the case aforesaid, provides the prosecution side the missing link, if any, the prosecution case----contends learned Addl. P.P.
23. According to learned Addl. P.P., the post crime conduct of the accused is reprehensible since he is found to have left his house instead of providing necessary medical help to his wife who sustained huge wound caused by pouring of acid on her body. Such post crime conduct, coupled with the fact that the victim sustained injury caused by acid, firmly demonstrate that it was the accused, and none else, who inflicted those injuries on his wife on the night in question. Learned Addl. P.P., therefore, urges this court to dismiss the appeal on affirming the judgment under challenge.
24. We have heard the arguments advanced by the learned counsel for the parties having regard to the judgment under challenge and evidence on record. Since the prosecution case is basically founded on the evidence of PW 1, PW 2, PW 4, PW 5 and PW 9, we find it necessary to have a look at the testimonies of those evidence. It may be stated here that learned trail court has properly reproduced the evidence of prime prosecution witnesses in the judgment under challenge. Therefore, we also find it necessary to re-reproduce the evidence of those witnesses from the judgment under consideration.
"At the very beginning let me discuss the testimony of PW 1 Monaranjan Mandal who is the father of the deceased. He during his evidence testified that on the fateful day at about 3 a.m. while he was sleeping in his own house his daughter Jaya Debnath appeared at his house be screaming "save me save me". He disclosed that on switching on the light he found that the whole body of his daughter Jaya Debnath was in burnt condition. Seeking the condition of his daughter he immediately sent the daughter to Civil Hospital, Nagaon along with wife Joymoni. As the doctor referred the victim to G.M.C.H so, he along with his wife and another boy brought their daughter Crl. A.(J). No. 32 of 2011 7 Jaya to G.M.C.H. where after 1 month 18 days Jaya Devnath expired. It is further testified by this witness that his daughter revealed before him that accused Rajib Devnath poured acid like substance in her body. It is also disclosed that earlier to this occurrence also the victim complained that she was often assaulted by the accused.
Inspite of thorough cross-examination the defence could not assail the testimony of this witness. It is admitted by this witness that he did not state before police regarding the fact that his daughter informed him about frequent torture caused upon her by the accused.
PW 2 the informant-cum-mother of the victim Joymoni Mandal supporting the testimony of her husband disclosed how on the night of occurrence at about 3 a.m. her daughter coming to their hose cried for saving her life and also complained that accused Rajib poured acid upon her. She testified that immediately her daughter was brought to civil hospital, Nagaon and then shifted to G.M.C.H. for better treatment where ultimately her daughter expired after about 1 month. It is also alleged by her that her daughter earlier also was subjected to physical torture by the accused about which she complained them. She disclosed that she lodged the ejahar. She also disclosed that while her daughter came to her house on the date of occurrence her face was disfigured and the flesh of her body was removed. It is also disclosed by her that the statement of her daughter was also recorded at G.M.C.H. by police.
Inspire of through cross-examination the testimony of this witness could not be shattered by the defence in any way. She claimed during cross examination that her daughter was able to speak while she was brought to the police station from their (PW2) house.
PW 4 Monomita Das who is the neighbour of informant corroborating the testimony of informant disclosed how she on the night of occurrence hearing the scream of the victim case out of her house and coming near to her gate found that victim was standing near her gate and that her whole body become black due to acid burn. She testified that victim Jaya revealed before her that her husband Rajib poured acid on her body. She disclosed that the victim was brought to the civil hospital by her family members and thereafter she was brought to G.M.C.H. where she died after about 2 months. This witness also revealed about the fact that the material relationship of the victim with the accused was not cordial and often the accused assaulted the victim and on one occasion injury was also caused at the head of the victim and in that regard one case was lodged earlier by the victim.
It is admitted during her cross examination that she did not witness how the victim sustained burn injury. It is denied by her specifically that she did not state before police that due to pouring acid by accused her body was burnt. It is admitted by her that it was dark on that night. It is admitted by her that she had no knowledge in Crl. A.(J). No. 32 of 2011 8 whose house or with whom the deceased was prior to the occurrence. It is denied by her that she did not reveal before police regarding assault caused upon the victim by the accused on earlier occasion prior to this incident and about lodging a case in that regard by the victim.
PW 5 the sister of the victim Maya Rani Manda, testified about frequent physical torture caused upon the victim by accused who is the husband of the deceased and also regarding lodging one case against the accused by her sister prior to the incident. She testified about witnessing her sister in burnt condition in the morning of the occurrence at about 3.3.0 a.m. It is divulged that at 3.3.0 a.m. hearing the wailing of her sister from the outer verandah all the family members came out and found Jaya in a burnt condition. She also testified that her sister, the victim revealed before them that the accused poured acid on her body.
During the cross examination she revealed that her sister stayed with the accused in a rented house at Fauzadaripatty which is situated at a distance of 2 km from their house. It is denied by her that she did not state before police regarding her sister disclosing before her about pouring acid by the accused on her person. It is also denied straight way by her regarding non stating about the earlier torture caused upon her sister before police.
PW 9 Nina Begum @ Mina Begum is the lady in whose rented house the victim resided along with the accused prior to the occurrence. As per her testimony on the night of occurrence at about 3.30. a.m. while she was reading holy book Quran after taking Sehri in the month of 'Ramzan' she hearing victim Jaya's scream came out of the house and found that Jaya coming to their door step shouted that her husband poured acid on her body. It is disclosed by her that at that moment except the petticoat and blouse of the victim there was no other cloths on her body and the skin of the victim's body was almost removed. It is further testified by her that she advised the victim to go to her parent's house at Chakitoop and the victim in that condition went to the house of her parents.
During cross-examination it is revealed by her that since ¾ months prior to the occurrence accused and the victim started to reside in their rented house the that she did not hear that sound of any quarrel between them. It is admitted by her that while she heard scream of victim Jaya suddenly the electric supply of their house discontinued and there was darkness in their house and also at the outside of the house. But it is revealed that she could recognize the victim in the light of candle."
25. In this context, we find it necessary to have a look at the evidence of Doctor who conducted autopsy on the body of the deceased. He is Dr. Kanak Ch Das. His evidence is as follows: ---
Crl. A.(J). No. 32 of 2011 9" PW 7, Dr. Kanak Ch. Das stated that on 17.12.2005 while he was at GMCH as visiting surgeon in Department of Forensic Medicine, GMCH Guwahati onthat day he performed the post mortem examination of the dead body of the deceased Jaya Debnath female ages about 30 years under Nagaon P.S. which was reoffered by GMCH O.P. vide GD No. 277 dated 17.12.2005 and on examination he found the following:-
Brown complexion. Average built dehydrated and enriched female dead body found covered by one saree. Eyes and mouth were party open. Rigor mortis is not fully developed. Body is warm on touch.
Injury partially healed. Burn ulcer present over the body surface area as follows:
Portion of head and face, both upper limbs, front of the chest and abdomen, front and side of the left thigh and portion of the right thigh. Surface is covered by pas and unhealthy granular tissue having foul smell. Injuries are epidermal as well as dermo epidermal in nature. Depth is Ist to 4th degree and covering about 50% of total body surface area.
Other organs healthy. Stomach healthy and empty. Both lungs healthy.
In his opinion the cause of death is due to shock as a result of burn ulcer covering about 50% to total body surface area. Approximate time of death is disclosed as 4 to 6 hours. Ext. 2 is exhibited as the P.M. report and Ext 2(1) as his signature."
26. Since Indira R. Kalita (PW 8) as well as the evidence of Sri Bipul Ch. Kotoki (PW 10) had played important roles in ascertaining the guilt or otherwise of the accused person, in our opinion, their evidence needs to be looked into . Their testimonies, as reproduced in the judgment in question, are also re- reproduced herein below:-
"PW 8 Indira R. Kalita the officer who performed the inquest on the dead body disclosed that she at G.M.CH. female ward performed the inquest of the deceased Jaya Debnath in-connection with GMCH OP G.D Entry NO. 277 dated 12.07.2005. According to her testimony the body, face and the part of head and hair of the deceased was in burn condition and as per doctors report there was 54% injury. She exhibited Ext. 1 as the inquest report."
PW 10 S.I. Bipul Ch. Kotoki disclosed that on 28.10.05 while he was at Nagaon P.S. as S.I. on that day on receipt of an ejahar lodged by Joy Moni Mandal O/C Nagaon P.S. registered a case being Nagaon P.S. Case No. 785/05 U/S 498(A)/307/34 of I.P.C. and entrusted him the charge of investigation. He stated that during his Crl. A.(J). No. 32 of 2011 10 investigation period as the informant was found in the P.S. so her statement was recorded at the P.S. U/S 161 of Cr.P.C. He has stated that thereafter he visited the P/O Fauzadarpatty which is the rented house belonged to one Jahid Hussain. He divulged that he prepared the sketch map of the P/O Ext.3 is the sketch map and Ext. 3(1) is his signature. He disclosed that he recorded the statement of Mina Begum. He divulged that on the same day he could know that the accused was apprehended by local public at Chakitoop and he accordingly proceeded to that place. He stated that he recorded the statement of Sunil Ranjan Devnath, Monomita Das, Monoranjan Mandal, Maya Mandal, Pradip Sutradhar U/S 161 of Cr.P.C. He stated that the accused was arrested and then produced before learned C.J.M. He disclosed that on the same day of lodging ejahar he could know from the witnesses that victim was already brought to Civil Hospital, Nagaon so he sent the requisition on the said day. He divulged that on 17.11.05 he could know that victim was already sent to G.M.C.H. for better treatment so he sent message to i/c of G.M.C.H. O.P. for recording the dying declaration of the victim. He divulged that on 05.12.05 he visited G.M.C.H. and he met the injured Jaya Devnath and her 161 Cr.P.C. statement was recorded. He divulged that on 17.12.05 the victim expired at G.M.C.H. He further disclosed that as the victim expired so on 22.12.05 he made prayer before learned C.J.M. for adding section 304(B) of I.P.C. and accordingly Section 304(B) is allowed to be added. He disclosed that as per prayer of G.M.C.H. O.P. P.M. was done at G.M.C.H. He divulged that as in the mean time he was transferred so the P.M. was collected by his successor and on the basis of the investigation done by him his successor Mijanur Rahman submitted the charge sheet against the accused Rajib Devnath. He proved that Ext4 is the ejahar lodged by Joymoni Mandal and Ext.4(1) is the signature of O/C Nagaon P.S. Pradip Borgohain.
The I.O. admitted that he did not seize any article from the place of occurrence and he did not sent wearing apparel of the victim to FSL for examination. It is also revealed by him that he did not record the dying declaration of the victim. The I.O. admitted that witness Manumita Das did not disclose before him that earlier to this occurrence accused also caused injury at the head of the victim and in that regard another case was lodged against the accused.
27. On perusal of the evidence of Doctors, it is found that the death of the victim was homicidal in nature and it was occasioned by injuries which were caused for pouring of acid on the body of the victim. The post mortem examination report and inquest report further fortify the aforesaid conclusion of the Doctor who conducted autopsy on the body of the person stated above. Being so, we have no hesitation in holding that the victim died on sustaining injuries inflicted by acid.
Crl. A.(J). No. 32 of 2011 1128. We have considered the evidence of PW 1, PW 2, PW 4, PW 5 and PW 9 and found that all those witnesses categorically state that they came to know from the victim that on the night in question, her own husband poured acid on her body while she was sleeping in their rented house. The evidence of those witnesses also shows that while rendering such dying declarations to them, the victim was in full sense.
29. We have also found that all the dying declarations are very symmetrical in substance and stuff. Being so, there is no reason to suspect the dying declarations which the deceased made to the PWs aforesaid while the former was alive. The above revelations also show that dying declarations are voluntary and truthful.
30. One may notice here that the Doctor who conducted autopsy on the dead body opined that the deceased died on sustaining injury caused by acid. As stated above, evidence of Doctor also finds support from inquest report Ext. 1. The Ext. 1 as well as the evidence of Doctor lend more and more support to the prosecution case based on dying declarations.
31. We have found that PWs were brought under thread bare cross examination. But nothing could be brought on record to show that the witnesses aforesaid falsely implicated the accused person with the crime in question leaving the real culprit behind the scene. The evidence rendered by PW 10 too supports such a conclusion. Being so, we found no reason to reject the evidence rendered by PWs aforementioned.
32. We have also found that the prosecution case has been challenged on counts more than one. Our forgoing discussions, now, reveal that none of those grounds has any substance requiring this court to view the prosecution case with suspicion. Consequently, we have no hesitation in rejecting all the allegations leveled against the prosecution case.
33. On considering the evidence on record in their totality, we have found that prosecution has successfully proved the charge u/s 302 IPC against the accused person and as such, conviction of the accused person u/s 302 IPC invites no interference. So also the punishment he was subjected to for committing aforesaid offence.
Crl. A.(J). No. 32 of 2011 1234. However, on the materials on record it cannot be held that prosecution has proved the charge u/s 498A IPC against the accused person beyond all reasonable doubt and as such, conviction u/s 498A IPC as well as sentenced imposed on him for such offence are quashed and set aside.
35. Resultantly, the appeal is partly allowed as indicted above.
36. Return the LCR.
37. A copy of this judgment be furnished to Mr. Z. Hussain, learned Amicus Curiae for taking necessary action.
38. We deeply appreciate the assistance rendered by Mr. Z. Hussain, learned Amicus Curiae. We, therefore, direct the State to pay him an amount of Rs. 7,000/- as being his professional fee. Same needs to be paid within a period of 3 months from the date of receipt of a certified copy of this judgment.
39. Since the deceased died a tragic death on 17.12.2005 leaving behind a minor son, we are of the opinion that in terms of Section 357A, some amounts needs to be paid to the legal heir of the deceased as compensation. Accordingly, we direct the State of Assam to pay an amount to the tune of Rs. 75,000/- to the legal heir of the deceased as being compensation.
40. The State of Assam is directed to pay such amount to the State Legal Services Authority (in short, the SLSA) within a period of 3 months from the date of receipt of the certified copy of this judgment. On receipt of such amount, the SLSA shall place such amount at the disposal of the District Legal Services Authority, Nagaon.
41. On receipt of amount by DLSA, Nagaon, same would be disbursed to the legal representative of the deceased on proper identification, if there is only legal representative of the deceased or in equal share, if number of legal representatives of the deceased is more than one.
42. Further, if sole legal representative or all or any of the legal representatives of the deceased is/ are found to be minor(s), then the amount, payable to such minor(s) shall be deposited in the account in the name of such minor (s) and such Crl. A.(J). No. 32 of 2011 13 amount shall remain deposited in the account of the minor(s), till, he/she/they attain the age of majority.
JUDGE JUDGE
Rupam
Crl. A.(J). No. 32 of 2011