Calcutta High Court (Appellete Side)
Allauddin Momin @ Mia vs The State Of West Bengal on 9 October, 2013
Author: Patherya
Bench: Asim Kumar Ray, Patherya
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present : The Hon'ble Justice Nadira Patherya
And
The Hon'ble Justice Asim Kumar Ray
C.R.A. No. 485 of 2011
with
C.R.A.N. No. 613 of 2013
ALLAUDDIN MOMIN @ MIA
VERSUS
THE STATE OF WEST BENGAL
For the Appellant :Mr. Rupam Mukhopadhyay, Adv.
For the State :Mr. Manjit Singh, PP,
Mr. Niladri Sekhar Ghosh, Adv.
Heard on : 22.3.13, 16.5.13 & 17.5.13.
Judgment on : 9th October, 2013.
Patherya J. :
This appeal has been filed against the judgment and order of
conviction dated 28th July, 2011 and sentence dated 29th July, 2011
passed by the Additional Sessions Judge, 2nd Court, Suri, Birbhum in
Sessions Trial No. 1 of March, 2011 arising out of Sessions Case No. 163
of 2010. By the said judgment and order of conviction and sentence the
appellant was directed to suffer rigorous imprisonment for 3 years and
pay a fine of Rs. 5,000/- in default to suffer further imprisonment for 6
months for the offence punishable under Sections 498A/302 IPC.
The case of the prosecution is that Hadisa Bibi (victim) was
married to the appellant of village- Chhaptala for about five years. The
appellant inflicted torture both mental and physical on her. On 18th
December, 2008 at about 10.00/11.00 hours in the night a telephonic
information was received by Nasiruddin Momin father of the victim that
she had received burn injury and was admitted to Suri Sadar Hospital.
Nasiruddin Mondal (PW 1) rushed to the hospital and found the victim in
a precarious condition. He learnt from his daughter that kerosene oil had
been poured over her and she was set on fire. The complaint was lodged
by the father of the victim against the accused persons. On the basis of
the said complaint Suri P.S. Case No. 285/08 dated 19th December, 2008
was initiated under Sections 498A/326/307 IPC. The victim girl died on
21st December, 2008. Section 302 was added to the formal FIR. The said
was followed by investigation. On completion of investigation charge
sheet was filed under Sections 498A/326/302 IPC. The case was
committed for trial to the Court of Sessions Judge, Birbhum who
transferred the case to the Additional Sessions Judge, 2nd Court, Suri,
Birbhum. Charge under Sections 498A/326/34 and under Sections
302/34 IPC was framed against the appellants. The same was read over
and explained to the appellants who pleaded "not guilty" and claimed to
be tried. In course of trial 20 witnesses were examined and none was
examined on behalf of the defence. The appellant was examined under
Section 313 CrPC. Documents were taken on record as exhibits and on
consideration of the evidence the Court below passed the order of
conviction and sentence. Hence this appeal.
Counsel for the appellant submits that the date of incident was
18th December, 2008 and the FIR was filed on 19th December, 2008 by
the father PW 1. The victim died on 21st December, 2008. Three dying
declarations were given by the victim two before the doctor. One on
18.12.2008at 10.45 pm and the other on 19th December, 2008 after 24 hours at 8.15 pm and the third before the I.O. No statement was recorded by the Magistrate. The dying declarations are contradictory as in the first dying declaration it was recorded that the victim committed suicide while in the second it was recorded that the appellant and his mother poured kerosene oil on the victim and set her on fire, therefore the death is homicidal. The second dying declaration is not to be believed and cannot be relied on, as between the said two dying declarations the victim met her parents and the second dying declaration is the result of tutoring. At the time of conviction Section 306 IPC ought to have been considered. PW 2 is the mother and the victim was tutored by her. The torture inflicted on the victim girl by the appellant was not of such great magnitude to make her commit suicide.
Reliance is placed on (2007) 3 SCC (Cri) 94 para-10. Therefore ample ingredient existed for conviction under Section 306 IPC. AIR 1997 SC 3230 has been overruled and therefore cannot be made applicable to the instant case.
In opposing the said appeal counsel for the State submits that the case under Section 498A has been proved by the father PW 1, brother PW 4 and mother PW 2 so also the victim. The first dying declaration was made to the doctor PW 14 at 10.45 pm. PW 8 and PW 13 were the persons who brought the victim girl to the Hospital. Sk. Jairul brought the victim girl therefore the explanation given in the second dying declaration is to be sustained. The second dying declaration was made on 19th December, 2008 at 8.15 pm. In the cross-examination no suggestion has been put to PW 2 mother about the victim girl being tutored. At the time of admission PW 14 doctor has specifically stated that the patient i.e. the victim was given treatment at the initial stage in emergency. That it was a homicidal case has been corroborated by the I.O. PW 20, PW 1 father and PW 2 mother. The burn is no indication of suicidal or homicidal. Therefore the explanation in the second dying declaration is valid and subsisting and the conduct of the husband ought to be looked into. A burden was cast on the husband as offence was committed in the matrimonial home which burden has not been discharged by the appellant. The explanation sought to be given by the appellant is no explanation. The appellant did not take the victim to the hospital. The neighbours of the victim took her to the hospital. Even at the time of death she was concerned for her children therefore it is not a case of suicide but homicide and the order of conviction be upheld.
In reply counsel for the appellant submits that the prosecution has not been able to prove that on the date of incident, the appellant was at home. The witness who took the victim to the hospital have been declared hostile. The father was accompanied by members of the panchayet samity but none of the members has been examined. The second dying declaration was a clarification and the probability of tutoring exists. In fact the second dying declaration has not been proved. The FIR was filed on 19th December, 2008, the third dying declaration was given on 20th December, 2008 to the I.O. No step was taken by the I.O. to record the dying declaration through the Magistrate. The I.O. PW 20 is nothing but an interested witness and it was because of his over zealousness that the Magistrate was not called. Reliance is placed on 2005 SCC (Cri) 231 and (1996) 3 SCC 104.
Having considered the submissions of the parties out of the 20 witnesses examined by the prosecution PW 3, PW 5, PW 6, PW 8, PW 13, PW 16, PW 17, PW 18 and PW 19 are formal witnesses. PW 7, PW 9, PW 10, PW 11 and PW 12 are hostile witnesses. PW 4 is the brother of the victim who for the first time deposed in Court and was not examined by the I.O. Therefore his evidence is nothing but an improvement. From a reading of the inquest report it will appear that the victim girl's shouts attracted the attention of her neighbours who rushed out to put off the fire. It was the neighbours who admitted the victim to the hospital. As regards torture inflicted, PW 1 (father) has stated that the mother-in-law inflicted torture on the victim. This has not been corroborated either by the victim or PW 2. Therefore cannot be relied on.
It is PW 2 who has stated of torture on the victim by the appellant. There has been no cross-examination by the defence counsel on this aspect. The statement of PW 2 has been corroborated by the victim in all her DDs. Therefore the case under Section 498A IPC stands proved against the appellant.
The next issue that needs to be considered is whether the death of the victim was suicidal or homicidal. The PM report does not mention whether the death was suicidal or homicidal. It only states that the death was caused due to burn injury.
The victim gave 3 Dying Declarations. The 1st was given on the date of incident 18.12.2008 to the Dr (PW 14) at 10.45 pm i.e. at the time of admission. The 2nd Dying Declaration was made on 19.12.2008 at 8.15 pm again to the Dr (PW 14) and the 3rd Dying Declaration to PW 20 (I.O).
In the 1st DD the victim has given the cause of her death as suicidal, while in the 2nd and 3rd it is homicidal. There is a contradiction between the 1st and 2nd DD. The only reason given for making the 2nd DD is fear of relatives present. Admittedly the person who admitted the victim to the hospital was one Sk. Jiarul (PW 7) and PW 10. None of the said witness is a relative of the appellant and therefore the victim had nothing to fear while making the 1st DD. In fact on a reading of the 2nd DD the same seems to be a more detailed declaration. While in the 1st DD the victim has stated that the appellant assaulted her in the 2nd DD she has included her mother-in-law, brother-in-law, sister-in-law besides her husband who inflicted torture on her. In the 2nd DD the element of homicidal has been introduced. No kerosene oil container was found or seized by the I.O (PW 20). The victim could have made a statement to the Dr. PW 14 as soon as the relatives had left or immediately on 19.12.2008 but there was no reason for her to wait till 8.15 pm on 19.12.2008 to make her 2nd DD. Between the 2 dying declarations much time had lapsed and between the said time she had an opportunity to speak to her parents (PW 1 and PW 2) and therefore the 2nd DD being the outcome of such discussion cannot be ruled out and the benefit of doubt ought to go in favour of the appellant.
It is true that no case of tutoring was suggested to PW 1 or PW 2 by the prosecution but PW 2 in her evidence has stated that she went to the hospital the next morning and in cross-examination has further stated that when she went to the hospital initially the victim was fit to speak but at a later stage she was unable to speak. This clouds the 2nd DD with doubt.
The 3rd DD was recorded by the I.O (PW 20) on 20.12.2008 and therefore cannot be accepted for the same reasons given for not accepting the 2nd DD.
The case of physical torture has been proved against the appellant and it is covered by "cruelty" in Explanation (a) of Section 498A IPC, but there is no evidence to show that suicide was the result of physical assault or torture. The victim in her first Dying Declaration has spoken of quarrel with the husband but there was no torture or physical assault inflicted on her to instigate her to commit suicide, therefore no punishment under Section 306 IPC could be given to the appellant far less under Section 302 IPC.
Accordingly, the conviction and sentence under Section 302 IPC is set-aside and the conviction and sentence under Section 498A upheld.
In view of the aforesaid the appeal is disposed off.
(Patherya, J.) I agree (Asim Kumar Ray, J.)