Calcutta High Court
Najjam Faroqui vs State on 20 August, 1991
Equivalent citations: 1992CRILJ2574
JUDGMENT A.M. Bhattacharjee, J.
1. The appeal is dismissed and the conviction of the accused Under Section 302, Indian Penal Code for committing the murder of his wife and the sentence of imprisonment for life therefor stand affirmed for the reasons stated succinctly by brother Ray in his judgment appearing hereinafter. Needless to say, I agree with his reasonings and concur in his judgment.
2. The learned counsel for the accused-appellant in his strenuous endeavour to assail the conviction for murder Under Section 302 virtually went to the length of conceding that the accused could be convicted only Under Section 306 of the Code for abetting the suicide of his deceased wife. Ray, J., has repelled the contention and for good and weightly reasons. But at any rate, in our Criminal jurisdiction, we may, in a given case, go by the confession of the accused; but never by concession of his counsel as a person must never be convicted, and thus deprived of his personal liberty on such concession alone which, who knows, may be the product of utter misapprehension, even if bona fide.
3. If the two dying declarations of the deceased, one recorded by a Police Officer a day after the date of occurrence (Ext. 6), and the other by a Magistrate about eleven days after the incident (Ext. 5), are found to be reliable and to suffer from no legal infirmity, an offence of murder is irresistibly made out against the accused. Both are recorded ipsis-sima verba in the language of the deceased. Not that such declarations, if recorded in the language of the recorder, is tainted with any infirmity on that score alone; but that, when recorded in the language of the declarant, the same acquires added strength and reliability.
4. But relying heavily, and also solely, on a three-Judge Bench decision of the Supreme Court in Ram Nath Madhoprasad , the learned counsel for the accused has urged that "it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration". I would have thought that if a statement is otherwise relevant and admissible, whether a dying declaration, evidence of accomplice, or of a prosecutrix in a rape case, or of a child witness and the like, there is no rule of law, nor there can be any invariable rule of practice or prudence to the effect that such statement is not to be acted upon without corroboration. The only provision, to my knowledge, in the Evidence Act, which refers to the requirement of corroboration, is in the Illustration (b) to Section 114 which provides that "the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars", "May" would obviously include "may not" also and that is also demonstrated in Section 114 itself in its further explanatory note "As to Illustration (b)", making it irresistibly clear that it is for the Court to decide as to whether in a given case, such a permissive presumption should or should not be allowed to operate. That is what it must, and cannot but, be and that is why Section 4 of the Evidence Act, purporting to explain the import of the expression "May Presume", has left the entire matter to the Court concerned and has provided that while a Court may presume a fact as provided in Section 114, it also "may call for proof of it". In other words, when invited to reject the evidence of an accomplice, the Court "may call for proof" that the accomplice is in fact unworthy of credit, and may not reject the evidence when no such proof is forthcoming. But about a dying declaration, or the evidence of prosecutrix in a rape case, or statement of a child-witness, there is nothing in the Evidence Act to suggest even remotely that it may have no efficacy without corroboration.
5. The observation of the Supreme Court in Ram Nath Madhoprasad (supra) as to the necessity of corroboration of a dying declaration has been held to be obiter in the later decision of a coequal Bench of three Judges in Khusal Rao . A Bench of the Supreme Court may by-pass a contrary observation emanating from another co-equal Bench by holding the same to be obiter. But not we, who are nevertheless bound even by the obiter, provided, however, a point of law has been declared or enunciated therein. But I am inclined to think that no such proposition of law was attempted to be declared by the Supreme Court in the observation in Ram Nath Madhoprasad (supra), referred to hereinabove.
6. The law declared by the Supreme Court is binding on us not only because of Article 141 of the Constitution, but even de hors that Article because of the precedent-oriented system of judicial administration introduced by the Britishers and followed by us with devotional rigidity. But what does and can bind us is the declaration of law only and not any and every statement made or step taken by it, unaccompanied by a declaration of law. The observation of the Supreme Court in Ram Nath Madhoprasad (supra) to the effect that "it is not safe" to convict an accused on dying declaration without corroboration is, at its highest, a note of caution relating to appreciation of evidence, but never a rule of law amounting to a precedent to be binding on us. If rules relating to even interpretation of statutes, evolved and applied by the Privy Council and also the Supreme Court, are to be held, as held by the Supreme Court in the nine-Judge Bench decision in Superintendent & Remembrancer of Legal Affairs v. Corporation of Calcutta not to be rule of law, rules evolved for the purpose of appreciation of evidence cannot have any higher status.
7. Be that as it may, Khusal Rao (supra, at p. 28), though rendered by a Bench of equal strength, has clearly ruled that there is no rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated and that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made. As I have stated before, the question must be left to the Court in given case and if it finds a statement to be relevant and admissible and to suffer from no inherent improbability or infirmity, there can be no rule of prudence or practice of universal application, far less any rule of law, to the effect that it cannot be acted upon unless corroborated.
8. To the same effect is the later decisions of the Supreme Court in Kusa in Mafizuddin Ahmed and in Muhim Barkataki ; but they all are rendered by even smaller Benches. In Muhim Barkataki (supra), the two-Judge Bench has observed that Ram Nath Madhoprasad (supra) has stood overruled by Khushal Rao (supra). With respect, the latter decision, while ruling to the contrary, has held the observation in the former decision to be in the nature of obiter dicta; but could not obviously overrule the former as the same emanated from a coequal Bench.
9. But Ram Nath Madhoprasad (supra) has, however, been overruled by a larger five Judge Bench in Tarachand Damu Sutar where both the majority of three, speaking through Kapur, J. and the minority of two, speaking through Raghubar Dayal, J., (at 133), have held that a conviction can be based and sustained on dying declaration alone. Though surprisingly no express reference was made to Ram Nath Madhoprasad (supra), Khushal Rao (supra) was referred to, which nevertheless made extensive reference to Ram Nath Madhoprasad (supra). Therefore, both on authority and on principle, it must be taken to be the law that a conviction can be based solely on a dying declaration without corroboration, if the Court otherwise finds the same to be reliable and not to suffer from any inherent improbability or any other infirmity. But whether in a given case, it is or is not safe to do so would depend on the facts and circumstances of that case and other materials on record and the question must be left to the Court concerned without any attempt at generalisation.
10. Ray, J. however, has found the dying declarations to have received sufficient corroboration from the other materials on record including the medical evidence. I agree, but would only add this. The first declaration made a day after the occurrence was recorded by a Police Officer (Ex. 6). In view of the provisions of Section 162(2) of the Code of Criminal Procedure, no illegality or infirmity would arise affecting the admissibility of the statement on the ground of its being recorded by a Police Officer during investigation. The second declaration made about eleven days after the incident was recorded by the Magistrate (Ex. 5). Whether the dying declaration in a particular case is or is not reliable is a different matter. But it is never a tainted piece of evidence as that of an accomplice and, therefore, it cannot be urged that one dying declaration cannot go to corroborate another. The two declarations in this case, therefore, may safely be taken to have corroborated each other. Further, the fact that in Ex. 5, recorded about eleven days after, the deceased made statements similar to what was made by her in Ex. 6 a day after the occurrence, would also go to demolish the contention, so seriously pressed by the counsel of the accused, that Ex. 5 was the product of constant tutoring by the parents of the deceased.
11. In the result, the appeal stands dismissed and the order of conviction and of sentence stand affirmed, as indicated by Ray, J.
Ajoy Nath Ray, J.
12. The appellant accused is in jail under a term of life imprisonment imposed on him on 22-05-1987 by the Sixth Additional District and Sessions Judge, Alipore, for pouring kerosene over his wife, Sabia Banu, and burning her to death by putting the oil on fire with matches.
13. The incident occurred at about midnight on 29-06-1985, Sabia was then about 21 years old. She died about a month afterwards, of the burn injuries, in hospital. At that time she had two children living, aged 1 1/2 and 2 1/2.
14. The husband before us, appearing through counsel, said he would not try to resist a conviction under Section 306 of the I.P.C., the charge for which was framed after nine witnesses had been examined, but again, was abandoned by the special public prosecutor later on.
15. After such an abandonment, we do not see what prompted the appellant's counsel to allow it to be revived, unless it be an attempt to keep the term within the maximum period often years allowed under Section 306. The husband did resist the charge Under Section 302 which was the initial charge on which the trial commenced. The evidence about Sabia being tortured by her husband to extreme lengths is so convincingly on record that any resistance to the Section 306 charge would not have been possible, provided the case had been pressed at trial, and more importantly, provided a case of Sabia killing herself could be made out. The husband tried before us to prove just that, i.e., suicide. The accused's case run in cross-examination and argument in the Court below was also the case of Sabia committing suicide. But I am overwhelmingly convinced that the accused Najjam caused the death of Sabia, and not she herself.
16. There are no eye witnesses. It is on record that Najjam was present at the time of the incident, and there is no case of alibi. Exhibits 5 and 6 are dying declarations of the victim in hospital. Ex. 6 is earlier in point of time, made after a gap of one day after the incident, i.e. on 01-07-1985, to a sub-inspector, Sanjib Kumar Ghosh, P.W. 18, who, though, was not the investigating officer. The declaration is to the clear effect that Najjam poured kerosene on Sabia's head and put her on fire. To the same effect is Ext. 5, which was made before a Magistrate, Sajal Kumar Ghosh, P.W. 12, sent under Order of the High Court to the hospital, eleven clear days after the incident.
17. The undisputed evidence is that Sabia was seen running out ablaze from the room where her two children were sleeping, and that she went towards the flat of the dead lawyer Md. Israil, whose wife (P.W. 7), an aunt by relation of the accused, saw her in that state. P.W. 6, a cousin of the accused, and others, tried to put out the fire -- the husband accused was not named by anyone to be one of those who tried. The victim's parents (P.W. 1 and P.W. 3) took Sabia to hospital. The husband did not accompany them.
18. The following extract from Ex. 6 tells of the incident (Ex. 5 is to the same effect):--
I am Sabia Banu, w/o Najjam Faroqui, age 21 years. I have been married since the last four years. I have two children, one boy aged two and a half years and a girl aged one and a half years. My husband was engaged in the leather trade, but presently he does not do anything. He comes home daily at about 12 a.m. and beats me. I had never let my parents know that such tortures were inflicted on me.
On Saturday (29-6-85) at about 12 a.m. my husband came home in a drunk condition and severely assaulted me and thereafter he drove me out of the room. At that time both my son and daughter were sleeping inside the room. For that reason I went inside the room again. Thereafter my husband poured kerosene oil over my head from behind and lit a match-stick and set me on fire, I went out in a burning condition and went inside the house of Israil, the lawyer. Thereafter my father-in-law's sister Abeda Begum and the son-in-law of the lawyer, Iqbal, poured water over me extinguished the fire. At about 12-30 a.m. my parents arrived on getting the news. Thereafter my father has brought me to the hospital.
19. That is the prosecution case. The defence case was that the following points raised a doubt reasonable enough for acquittal from the charge of murder. Why I think otherwise is stated along with the numbered points.
1. The above P.W. 7 said that the victim had told her the following words:--
Doctor was sent for when Sabia Banu herself said "no use of bringing doctor, I myself set fire.
These words were said, if at all, thirty days before the victim's death and immediately after the burn. In my opinion, it will not be permissible in law to exclude from the category of legal evidence anything that the victim said from after catching fire till she succumbed to her injuries. I do not doubt the P.W. 7's veracity either. But reading the above Exts. 5 and 6 along with the above statement of P.W. 7 I cannot think that the latter casts any reasonable doubt on the former. To hold otherwise would mean that the victim spun out a false story accusing her husband on the day after the one immediately following the incident, and, in spite of her deterioration over the next ten days, repeated the same story ten days later, continuing the false accusation against her husband. It is not any and every pinhead of doubt that can demolish a prosecution case, but that the doubt must be one of a reasonable proportion.
2.1. P.W. 9, a Senior House Surgeon, noted a case history in Ex. A on the night of the incident, i.e. 29-06-85 or the small hours of 30-06-1985, to the following effect :--
Short history of the case as stated by the patient: The pt. was going through a life full of torture in her in laws place. Today she (on a suicidal attempt) tried to burn herself after pouring kerosene on her person. (Her husband beat her today also.
It was urged that this also introduced a sufficient doubt to the case of murder as opposed to suicide. The left thumb impression affixed on Ex. A as being that of the victim was never attempted to be proved as such. When cross-examined, P.W. 9 said that if the case history is stated by the party accompanying the patient, then, the printed word 'patient' is scored out from the printed heading 'short history of the case as stated by the patient' and the word 'party' is inserted. He did not remember if any relation of the victim was present at the time of his actual writing of the report (in chief), but was sure (in cross) that the statement was the patient's It is an admitted position that Sabia was accompanied to the hospital by several of her relations including her parents. Her father's evidence (P.W. 1) is that while he accompanied her to the hospital he could not exactly ascertain the cause of the burn. This is what the father said in chief:--
While taking my daughter to the hospital my daughter was all along agonising in pain and I asked her what happened when she could not tell anything except making agony.
2.2. The father's letter which was treated as FIR said this :--
This night (30-6-85) at about 00.15 Hrs. one Shamin s/o Late Md. Saud on 8, Mistrypara Lane came and informed that my daughter Sabia was burnt and asked me to go to her place immediately. Myself and wife rushed to 8, Mistrypara Lane and found my daughter with her back portion burnt. She was crying and was telling that she would not stay with my son-in-law any more.
I removed her to Chittaranjan hospital where she was admitted.
I am convinced that my son-in-law Sk. Najjam Faruqi abetted my daughter Sabia in committing suicide.
This may kindly be enquired into and necessary action may kindly be taken against Sk. Najjam Faruqi.
It is clear from the above that even the victim's father only went so far on the night of the incident as to feel 'convinced' that Najjam had only abetted suicide. Murder was for the first time spelt out clearly by Sabia one day later, in Ex. 6, as said before. The reason may well be what was said by P.W. 14, an F.R.C.S. and a Professor of Surgery, that after a major burn a patient cannot speak properly for a few hours till the patient is properly resuscitated.
2.3. With this, we must remember that this stage of inability to communicate properly was not reached immediately after the burn. That is why P.W. 7 said that immediately after the burn, Sabia was speaking normally. But in the taxi she was in agony and unable to communicate much. There is no direct evidence that on reaching hospital and before the recording of Ex. A Sabia was already out of agony, or had been resuscitated.
2.4. For these reasons, I am quite convinced that Ex. A cannot at all be reasonably taken as an authentic recording of the victim's own statement on the night of the incident. It cannot cast any reasonable doubt upon the victim's undoubted statements, made later on.
3. To reconcile the above two indications of suicide, as summarized by me under points 1 and 2 and as argued by the defence, with Exs. 5 and 6, the defence suggested a possible tutoring of the victim by her relatives. I am unable to believe that a severely burnt victim could be tutored over a single day following the night of her burn, especially in the face of the evidence of P.W. 15, a nurse, and of P.W. 14, the Professor, that burn patients are isolated for preventing infection. As said earlier, Ex. 5, which came some eleven days later than the incident, only restates more solemnly before the magistrate what was already on record.
4. The point of there being no eye-witness was emphasized. An eye witness is not a legal must. All the circumstances (other than Exs. 5 and 6 even) rule out suicide. Why should a mother of 21 decide suddenly at the dead of night, after being beaten by her drunk husband, to set herself to flames, in the same room where her two little children were sleeping? It was said that when Sabia rushed out of the room in flames, she was shouting 'I am burnt' and not 'I have been burnt', indicating suicide and not murder. This defence argument is indicative of the catch-at-every-straw case that the defence has. A person put on fire by another may as well shout 'Jal giya' as 'Jala diya' -- it doesn't indicate anything either way. Perhaps it will depend on whether the mind of the victim is working primarily on the fact of injury or primarily on the fact of being injured, in the automatic choice of the immediately succeeding words.
5.1. Then the defence suggested that there is some evidence that the husband tried to save Sabia and was himself injured in the process. The evidence suggests quite another story not only that the husband did not try to save Sabia, but that he caused some minor superficial self inflicted injuries of burn on himself, which in cross-examination were attempted to be shown up as the result of throwing a mug full of water on Sabia. P.W. 16, another professor, of medicine and forensic science, said as follows (in Chief):--
I examined the injuries of that accused. On examination I found the injuries on the body.
Considering the distribution and the severity of the injuries I am of opinion that the burn injuries mentioned by me appeared to be self-inflicted.
5.2. P.W. 16 in cross-examination said this :--
Injuries 2, 3 and 4 are on the right wrist joint dorsome of right and dorsal aspect of right index finger of right hand respectively. All three injuries were superfical.
The injury No. 1 on the face was abrasion and not burn injury.
I opine as an expert that it is not possible that injury Nos. 2 to 4 could occur at the alleged throwing of water from a mug upon the burning person.
5.3. The evidence of P.W. 11, a doctor, was relied upon for showing that the husband had tried to save Sabia; P.W. 11 said this :--
I am an M.B.B.S. now attached to N.R.S. Medical College and hospital as Medical Officer. On 3-7-85 I was posted at the same hospital as Medical Officer.
The patient stated to me that while he was attempting to save his wife from fire his body was injured.
5.4. Unfortunately for the accused, the statement of the doctor, P.W. 11, that Najjam had stated to him that Najjam had tried to save his wife, is thoroughly inadmissible for proving the fact of Najjam's factual attempts, if any.
5.5. It is not surprising that the above part of the evidence of the doctor, P.W. 11, is inadmissible because P.W. 11, came, not to depose as to any part of the incident of the night of 29-6-85/30-6-85, but to depose as to the result of his examination of the injuries on the accused, which, according to P.W. 16, as we have seen, were self-inclicted. P.W. 11 said:--
the nature of injuries was simple.
6.1. Only one other important thing remains to be said about the defence case of Sabia having committee suicide. No injuries were found at all on the front of the trunk of Sabia. If a person pours kerosene over herself and ignites it, it would need a very odd stroke of nature indeed to leave the front of the trunk totally unscathed. Not so if another pours the oil on the head from the back.
6.2. P.W. 10, the post-mortem examiner, aged 68 (and a Ph. D.) said (in Chief) :--
I joined State Government service and since 1953 I conducted post-mortem examination quite often. Total number of cases I conducted would be about 5,000. During my holding classes examinations I conducted autopsy examination in burn death cases and such cases would number about 50.
Death in my opinion was due to effect of ante-mortem burns. Taking into consideration the sites and extent of areas involved in my opinion the burn was homicidal in nature.
Burn injury causing death may be accidental, suicidal or homicidal. I found the injuries causing the death to be homicidal. The sites as described on examination of death body were mostly on inaccessible parts of the victim, the areas were very very extensive. So I hold the opinion that the death was homicidal in nature.
Injury Nos. 1, 3, 4, 5, 6, 7 as mentioned by me were on the back side part in accessible part on the body of the subject. These injuries were very extensive too. From these injuries I hold the opinion the death was homicidal in nature caused by those injuries which were burn injuries. On the front side of the trunk of the body I did not find any injuries. In regard to her face I did not find injuries exactly on the front side.
There is no injury observed by me that could lead me to hold that it was a suicidal death.
6.3. In cross-examination, P. W. 10 did not agree that his opinion about the homicidal nature of injuries is rendered shaky because the death occurred a month after the injury. This is what he said :--
I do not agree with you that in this particular case it is very risky if not impossible to hold or come to an opinion that death was caused owing to injuries which are homicidal as because these injuries were observed by me one month after the incident and that in burn cases it is not possible to say so.
20. In view of the above, the sentence of life imprisonment seems to be quite well deserved by the accused convict. I cannot find anything wrong with the imposed fine of Rs. 5,000/ - (in default one year of r.i.,) either.
21. The appeal shall stand dismissed and the appellant shall serve out the rest of the sentence.