Tripura High Court
The State Of Tripura vs Shri Utpal Das on 4 December, 2018
Author: Arindam Lodh
Bench: Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
CRL.A.26 OF 2015
The State of Tripura,
represented by the Public Prosecutor.
----Appellants(s)
Versus
1. Shri Utpal Das,
S/o Shri Biswajit Das,
P.S. Sabroom,
South Tripura.
2. Shri Biswajit Das,
S/o Late Barendra Kr. Das,
Belonia, P.S. P.R.Bari,
District-South Tripura.
3. Smt. Sandhya Rani Das,
W/o Shri Biswajit Das,
P.S. Sabroom,
District-South Tripura.
----Respondent(s)
For Appellant(s) : Mr. A. Nandi, Advocate.
For Respondent(s) : Mr. R. Datta, Advocate.
Date of hearing : 10.07.2018
Date of delivery of
Judgment & Order : 04.12.2018
Whether fit for reporting: Yes
HON'BLE MR.JUSTICE ARINDAM LODH
Judgment & Order
The State has preferred this present appeal against the judgment dated 06.04.2015, passed by the learned Sessions Judge, South Tripura, Belonia, in Case No. ST 45(ST/S) 2014 whereby and whereunder the accused-respondents were acquitted from the charge framed against them under Section 498-A/109 read with Section 498-A/304-B of IPC and Section 34 of IPC. Page 2 of 32 1.1 In this appeal, at the outset, I should take note of scopes of interference of this Court against the finding of acquittal. For me, it is profitable to refer a case in Chandrappa & Ors. Vrs. State of Karnataka, reported in (2007) 4 SCC 415, the Apex Court culled out the general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal. The said principles are enumerated below:-
"(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
Keeping in view the aforesaid principle let me decide the case on merits.
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2. Brief facts:
2.1 On 7th August, 2011 one Ananta Kumar Das, the father of the victim lodged a complaint to the Officer-in-Charge, Sabroom Police Station stating inter alia that his daughter Anjali Das (21 years) was given marriage with one Sri Utpal Das, who is also a resident of Sabroom, as per Hindu rites and customs. On demand from the groom's side and as per capability, the complainant-father gave Rs.30,000/- cash along with furniture, gold ornaments, etc. During their conjugal life she gave birth of a male child but after the birth of the child, the accused Utpal Das started torturing her both physically and mentally at the ill advice of his father Biswajit Das and mother Smt. Sandhya Rani Das, the respondent Nos. 2 and 3 respectively in this appeal for taking more cash amount from them. But the complainant being the father was unable to fulfill the illegal demand of his son-in-law due to financial crisis and the accused persons, the respondents herein, had increased the extent of torture upon his daughter Anjali. It is stated in the complaint that on 6th August, 2011 at about 12-00 hours the accused and his mother Smt. Sandhya Rani Das poured kerosene oil on her daughter's body and set her on fire with the intention to kill her by burning. She was shifted to Tripura Sundari District Hospital by Sabroom Hospital and he got the information from Sabroom Police Station. While his daughter was in a critical condition at Tripura Sundari District Hospital, the father of the victim lodged the complaint. Later on, his daughter, Anjali succumbed to her burn injuries.Page 4 of 32
2.2 An FIR was registered as Sabroom P.S.Case No.69/11, dated 07.08.2011, under Sections 498-A/109/307/326/34 of IPC and after investigation charge-sheet was submitted under Sections 498-A/109/304B/34 of IPC.
2.3 The matter being committed to the Court of learned Sessions Judge, charge was framed against Sri Utpal Das, Smt. Sandhya Rani Das and Sri Biswajit Das which runs as follows:
CHARGE I, Shri P. Kumar, Assistant Sessions Judge, South Tripura, Udaipur do hereby charge you
1. Shri Utpal Das,
2. Smti. Sandhya Rani Das and
3. Shri Biswajit Das as follows"
Firstly, that you all three after one year of the marriage of Smti. Anjali Das and on different dates and times and lastly on 06-08-2011 at about 24-00 hours in your residence at Vivekananda Palli, P.S.-Sabroom you, Shri Utpal Das, being the husband of Smti. Anjali Das and others, namely, Smti. Sandhya Rani Das and Shri Biswajit Das, being the relatives of the husband of Smti.Anjali Das subjected the said Smti. Anjali Das to cruelty by physically and mentally torturing her and by demanding cash money illegally from her and that you all three thereby committed an offence punishable U/S 498-A of the Indian Penal Code and within my cognizance.
Secondly, that both of you, namely, Smti. Sandhya Rani Das and Shri Biswajit Das on the above mentioned date, place and time abetted the commission of offence of cruelty U/S.498-A of I.P.C. and dowry death U/S.304B of I.P.C. by Shri Utpal Das which was committed in consequence of an abetment and that you all three have thereby committed an offence punishable U/S.109 read with Sections 498-A/304-B of the Indian Penal Code and within my cognizance.
Thirdly, that you all three on the above mentioned date, place and time committed dowry death by causing the death of Anjali Das by pouring kerosene over her body and setting her on fire and that you all three thereby committed an offence punishable U/S. 304-B of the Indian Penal Code and within my cognizance.
Lastly, that you Shri Utpal Das on the above mentioned date, place and time in furtherance of common intention of Smti. Sandhya Rani Das and Shri Biswajit Das Page 5 of 32 one or more of you committed a criminal act, namely, cruelty U/S 498-A of I.P.C. and dowry death U/S. 304-B of I.P.C. and that you all three thereby committed an offence punishable U/S.304-B/498-A read with Section 34 of the Indian Penal Code and within my cognizance.
And I hereby direct that you all be tried on the said charges by this Court."
2.4 To substantiate the charges, prosecution has examined as many as 16 witnesses and many documents have been exhibited including the post-mortem report (Exbt.11 & 11/1), Dying declarations (Exbt.P/4 series).
3. The defence side i.e. the accused persons have exhibited some documents as Exbt. A and Exbt.B. But none has been examined on their behalf. After completion of recording evidence, the accused persons were put to examination under Section 313, Cr.P.C. and they have pleaded their innocence.
4. After considering the materials on record and hearing the learned counsels of both the sides, learned Sessions Judge vide his judgment dated 06.04.2015 has come to the conclusion that the charges against the accused persons have not been proved and consequently, they were acquitted.
5. Being aggrieved by and dis-satisfied with the judgment, the State of Tripura has preferred the present appeal. Contentions of the Appellant:-
6. Heard Mr. A. Nandi, learned counsel appearing for the State of Tripura in favour of the appellant and Mr. R. Datta, learned counsel appearing for the accused persons-respondents.
7. Mr. Nandi, learned counsel appearing for the State- appellant has submitted that the learned Sessions Judge has committed a serious error in appreciating the evidence and the Page 6 of 32 materials on record, particularly, the dying declarations. According to the learned counsel, prosecution has been able to prove that the husband Sri Utpal Das and his mother i.e. the mother-in-law of the victim had poured kerosene oil by lighting a match stick. Besides, the demand of dowry has been proved and as the incident occurred within 7 years of marriage, Section 498-A is attracted. Mr. Nandi further submits that the learned Sessions Judge has committed an error as he disbelieved the evidence of the prosecution only on the ground that no date of demand was mentioned in the complaint as well as in the evidence.
Contentions of the Respondents:-
8. On the other hand, Mr. R. Datta, learned counsel appearing for the respondents-accused persons has submitted that the findings and reasoning of the learned Sessions Judge is quite reasonable and the appreciation of evidence on the basis of the materials on record does not suffer from any infirmities or illegalities. The learned counsel has submitted that the learned Court has correctly discarded the multiple dying declarations allegedly made by the victim. He has further submitted that the victim being suffered more than 80% of burn injuries was not in a state of making any statement or declaration in terms of medical jurisprudence because with this kind of injury it was very difficult to speak.
8.1 Mr. Datta, learned counsel has further submitted that there are as many as four dying declarations and it appears that there are inconsistencies with each other. He has drawn my attention that P.W.11 has recorded dying declaration in presence of two independent witnesses but both the said two witnesses have Page 7 of 32 been withheld by the prosecution. The learned counsel for the respondent-accused-persons would contend that the Magistrate who recorded the dying declaration had to obtain certificate from the attending doctors that the victim was capable of giving dying declaration. But in the present case, there was no certificate attached and in absence of such certificate no reliance can be placed on such declaration.
8.2 Mr. Datta, learned counsel has placed reliance on the decisions reported in 2015(2) TLR 401 [State of Tripura Vrs. Pradip Debnath, Para 18 and 2015 (1) TLR 212 [Babul Ghosh Vrs. State of Tripura].
8.3 The learned counsel has drawn my attention that the State has unnecessarily preferred appeal against the acquittal of father-in-law i.e. Sri Biswajit Das because of the fact that the Public Prosecutor during the course of argument before the learned Sessions Judge had admitted that no charge was proved against the father-in-law. So, according to Mr. Datta, learned counsel, the appeal against the father-in-law, i.e. Biswajit Das, respondent No.3 herein is impermissible in law.
8.4 On the legal issues, Mr. Datta has submitted that unless and until the fact of dowry is proved, the provisions under Section 304-B of IPC will not come into play. He has further submitted that to attract Section 304-B of IPC, demand must be in consideration of the marriage. In support of this, learned counsel has placed reliance on a decision in 2010 Cri.L.J. 3419 [Durga Prasad & Anr. Vrs. State of M.P.] & 2013 Cri.L.J. 2095 [Vipin Jaiswal Vrs. State of A.P.].
Page 8 of 32Discussion and decision:-
9. I have considered the rival submissions of both the parties and on the basis of the submissions, I have meticulously perused the evidence and the materials on record relating to the present appeal as well as the findings and conclusions arrived at by the learned Sessions Judge while acquitting the respondent- accused persons.
10. P.W.1 Sri Ananta Kumar Das, the father of deceased Anjali in his evidence has stated that when he reached to the G.B. Hospital, he found his daughter was lying with burn injuries and capable of speaking and on his query she told him that Utpal Das, the husband-accused-respondent No.1 poured kerosene oil on her body and her mother-in-law, Sandhya Rani Das, accused- respondent No.2 set fire on her.
10.1 P.W.2, Sri Tapan Das deposed during the course of trial that he went to the house of Utpal Das after hearing hue and cry and saw Anjali was lying in burning condition and one Sreemati Das had tried to know from Anjali as to how she was burnt. But Anjali could not say anything.
10.2 P.W.3, Smt. Sreemati Das during her deposition before the learned Sessions Judge has stated that she also reached in the house of Utpal Das and saw Anjali was lying on burnt condition and on her asking Anjali could not say anything.
10.3 P.W.4 is the seizure witness in respect of a pillow. P.W.5 Sri Manoranjan Das, the full blooded brother of deceased Anjali has stated that Anjali told him at G.B.Hospital that Utpal Das poured kerosene on her body and Sandhya set her on fire and the reason behind was failure to pay Rs.10/15,000.00 by the father of the deceased. P.W.6, the mother of deceased has deposed that Page 9 of 32 Utpal Das and Sandhya Rani Das set her daughter on fire. P.W.7, Sri Himangshu Kumar Malla is a witness of a seizure list relating to one C.D. Disk. He identified his signature but could not say anything about the contents of the C.D. 10.4 P.W.8, Dr. Sarmistha Choudhury was working as Medical Officer at Sabroom Hospital on the ill fated date and she medically examined Anjali. She has deposed that Anjali was brought to Emergency of Sabroom Hospital on 07.08.2011 at about 1:45 a.m. by her husband along with police of Sabroom Police Station with history of burn injury. On examination, she found that Anjali was conscious with poor general condition and there was superficial burn injury present over the front of chest and abdomen, back of trunk, both upper limb and lower limb and genital region. The burn injury was approximately 80%. After preliminary treatment Anjali was referred to Tripura Sundari District Hospital, Udaipur on the same day. She identified the injury report prepared by her as Exhibit-6.
On her cross-examination, she has stated that she did not record any dying declaration as the patient did not state for the same. She has further deposed that the police also did not give any requisition for recording dying declaration of the victim. 10.5 P.W.9 who is a doctor of Tripura Sundari District Hospital, Udaipur. He deposed that he examined Anjali on 07.08.2011 at 5:45 p.m. and he found 80% burn injury. He has further deposed that dying declaration was given by the patient but she was referred to Agartala Govt. Medical College after primary management. He has further deposed that the burn injury was fresh, major and life threatening. He identified the injury report as Page 10 of 32 Exbt.7 prepared by him and the time of recording dying declaration as deposed was 07.08.2011 at 9:30 a.m. The mental status of the patient was conscious who has stated that her mother-in-law put her fire around 12:00 in the mid night of 07.08.2011. The doctor, P.W.9 also took R.T.I. of Anjali. He has categorically deposed that two witnesses, namely Kalpana Acharjee and Tania Das were also present at the time of taking dying declaration. The doctor has stated that he has recorded the dying declaration on his own hand writing along with signature therein which on identification is marked as Exbt.8.
10.6 In course of his cross-examination, he has stated that there is excessive burn sensation when a patient suffers from 80% burn injury. The doctor could not say that what treatment he provided since he was not having the bed ticket. He also could not say about the persons who were present with the patient at the time of recording the dying declaration. He has further stated in his cross-examination that he has not issued any separate certificate relating to the mental and physical status of the patient while recording dying declaration. From his cross-examination, it reveals that he did not record the dying declaration in question and answer form and did not issue any separate certificate in support of the fact that the patient gave the dying declaration, and he recorded the same in English language and after being written down, the contents of it was read over and explained to the victim and she, thereafter, put her thumb impression i.e. R.T.I. on the said certificate. He also has stated that he did not issue any certificate that the dying declaration was given voluntarily by the patient. Page 11 of 32 10.7 P.W.10 is the Senor Scientific Officer-cum-Assistant Chemical Examiner of the State Forensic Science Laboratory, Narsingarh, Agartala.
10.8 One of the most vital witnesses is P.W.11 Sri Subrata Dutta who was working as the Executive Magistrate attached to the S.D.M's Office, Sadar, on 14.08.2011. He has deposed that on 14.08.2011 as per instruction of Additional S.D.M.,Sadar, he reached the Morgue of Agartala Govt. Medical College and G.B.P. Hospital, Agartala. On that very day, he prepared the inquest report over the dead body of deceased Anjali. He has stated that on close observation most parts of the body of the deceased was found burnt starting from knees upto the lower chest. Mouth and its adjacent area were also found burnt. Passage of blood found in the burnt places. Inquiry report has been exhibited as Exhibit-10 on identification. The most important part of his deposition is that he also stated that he has also recorded the dying declaration of the deceased on 08.08.2011 in the AGMC & GBP Hospital, Agartala and he has submitted the said dying declaration to the S.D.M., Sadar and he also kept a copy with him relating to the submission of dying declaration to the SDM, Sadar.
10.9 In his cross-examination, he has stated that he did not give any statement to the police in connection with the case. Most interestingly, in his cross, he has stated that he came to know from statements of father and aunt of the deceased about the involvement of the husband and mother-in-law for setting the victim on fire at the time of preparation of the inquest report for the first time. He has admitted that in his inquest report he did not mention that he recorded the dying declaration of the deceased. Page 12 of 32 The said witness P.W.11 was further re-examined when he deposed that on 08.08.2011 he was posted as DCM at Agartala Revenue Circle and on that day as per direction of SDM, Sadar he recorded the dying declaration of Anjali at AGMC & GBP Hospital. At that time, Anjali told him that her mother-in-law Sandhya Rani Das poured kerosene oil on her and set her on fire and her husband was standing on the door to prevent her from fleeing away. P.W.11 has further stated that he has taken L.T.I. of Anjali and the dying declaration recorded by him has been marked as Exbt. P/4 series. 10.10 In his cross examination, he has stated that doctor did not try to specify the words that the victim was in a fit state of mind at the time of recording of dying declaration. He has specifically stated that he has not given any statement to the investigating officer.
10.11 P.W.12 is the doctor who caused the post-mortem and the report has been marked as Exbt.11.
10.12 P.W.14 is the Officer-in-charge of Sabroom Police Station who endorsed the complaint and registered the same as FIR. He on the same day i.e. 07.08.2011 has examined some available witnesses and recorded their statements under Section 161, Cr.P.C. He has stated that he collected the dying declaration of Anjali Das, the deceased, recorded by doctor of T.S.D. Hospital, Udaipur.
10.13 In his cross examination, the said P.W.14 has stated that a police patrolling party in the night of 06.08.2011 at about 24:00 hours had shifted the victim and her husband to the hospital by the police vehicle as per information received by them and the officer concerned who took the victim to the hospital had seen the Page 13 of 32 condition of the victim in the hospital and he informed the police station concerned, but he did not mention the said fact in his C.D. The witness has volunteered that the condition of the victim was very serious and for that she was referred to the TSD Hospital, Udaipur in the same night itself. He has further volunteered that he made requisition to the G.B. T.O.P. for recording the statement of the victim but he did not give any information to the Court about the requisition given to the G.B. T.O.P. One of the most important parts of his evidence is that he has categorically stated that the witness Manoranjan Das, P.W.5 who is the full blooded brother of the victim has not stated that on 02.08.2011 when he reached his sister's house, his sister told him that she was not given proper food by her husband. P.W.5 also did not state specifically that he stated to the police that his sister was burnt as they could not fulfill the demand of Rs.10,000/- to Rs.15,000/- though the witness stated in his examination-in-chief that there was demand of Rs.10,000/- to Rs. 15,000/-.
10.14 P.W.15, the Sub-Divisional Police Officer has stated that he carefully went through the case docket and the SFSL report. He also recorded the statement of the complainant Ananta Kumar Das, P.W.1 and one Himangshu Kr. Malla. P.W.15 specifically stated that on 16.06.2012 he recorded the statement of witnesses namely Smt. Kalpana Acharjee and Smt. Tania Das who were the witnesses of the dying declaration as recorded in Udaipur and being satisfied charge-sheet was submitted against the accused persons, respondents herein.
10.15 During his cross examination, P.W.15 being the SDPO could not give any satisfactory explanation as to why there was Page 14 of 32 delay of about 8 months in recording the statement of witnesses namely Smt. Kalpana Acharjee and Smt. Tania Das, though, the dying declaration as alleged was recorded by the doctor of Udaipur Hospital on 07.08.2011 in their presence. He has further stated that he himself and the earlier investigating officer of the case did not record 161 Cr.P.C. statement of the doctor at Udaipur who recorded the dying declaration of the victim and also did not show any reason in the charge-sheet for non recording of the statement of the doctor. The fact of re-examination of the witnesses who were examined by the earlier investigating officer was also not been entered in the case diary.
10.16 P.W.16 is another Sub Divisional Police Officer who was posted on 21st September, 2011 at Sabroom has stated that after the death of victim, Section 304-B was added after the investigation was taken over by Dy.S.P. He has also issued notice to procure attendance of some of the witnesses who were not examined earlier. He re-examined the witnesses, re-visited the place of occurrence, cross checked the documents.
11. I have scrupulously dealt with the findings and discussions of the evidence and the materials on record by the learned Sessions Judge. At Para 9 of the judgment, I find an observation of the learned Sessions Judge that-- "Learned P.P. fairly submits that there is no sufficient materials against father-in- law and the father-in-law is entitled to get order of acquittal."
12. In view of this submission, according to me, the appeal against the father-in-law of the victim i.e. the respondent No.3, Sri Biswajit Das should not sustain which will be dealt with at a later stage.
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13. In the case at hand, there is no eye witness of the occurrence. According to me, the dying declarations made by the victim play a vital role to arrive at a just decision of the case. After close scrutiny of the evidence, I find there are two types of dying declarations, one is oral and another is written. The oral declarations were made by the victim before P.W.1 and P.W.5. P.W.1 Sri Ananta Kumar Das is the father of the victim and P.W.5 Sri Manoranjan Das is the full blooded brother of the victim. Both of them have stated that while they visited the victim Anjali at the G.B.P. Hospital, Agartala she told that her husband Utpal Das poured kerosene oil over her body and Smt. Sandhya Rani Das, the respondent No.2 set the victim Anjali on fire.
14. The subsequent dying declarations were recorded in writing by P.W.9 and 11. P.W.9 is Dr. Chandan Mallik who was working as a Medical Officer at Tripura Sundari District Hospital, Udaipur. He has stated that the victim was suffering from flame burn injuries of second degree scattered all over the body measuring approximately 80% and he had recorded the dying declaration in presence of two witnesses, namely Kalpana Acharjee and Tania Das which has been exhibited as Exbt.8. 14.1 In his cross examination, he has categorically stated that he could not say who was present with the patient at the time of recording of dying declaration. He has further stated that normally at the time of recording dying declaration, the relatives of the patient used to remain present with the patient in such cases. He also did not issue any certificate separately indicating about the mental and physical status of the patient before recording dying declaration.
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15. After careful analysis of the evidence of P.W.11, the Executive Magistrate who prepared the inquest report over the dead body of Anjali is not found to be very specific or definite about the involvement of the accused persons in setting the victim on fire when he has stated -"setting of fire by the husband and the mother-in-law is not beyond suspicion" and his suspicion has arisen from the statements of the father and aunt of the deceased victim Anjali, though, he recorded the dying declaration of the deceased on 08.08.2011 in the G.B.P. Hospital, Agartala. Most interesting part of his evidence is that in cross-examination he has stated that he came to know about the involvement of the husband and the mother-in-law in the incident from the statements of the father and aunt of the deceased. It is also surprising to this Court that how a person would record the dying declaration during the preparation of inquest report. It is also noticed that during his re-examination he has shifted from the earlier statement that the mother-in-law i.e. Sandhya Rani Das poured kerosene oil on her person and set fire on her and her husband was standing on the door so that she could not escape and he has obtained her L.T.I. also. There, I find serious contradiction. Not only that, P.W.11 during his re-examination he has tried to improvise the prosecution story. In his cross, he has admitted that he did not obtain any certificate from a doctor specifying her physical and mental state of health.
16. At this juncture, I have gone through the findings and discussions of the learned Sessions Judge relating to the evidence of P.W.9 and P.W.11. The learned Sessions Judge after scrutinizing Exbt.8 has found that dying declaration in a prescribed form was recorded by Dr. Chandan Mallik in English language and it is written that the patient stated that her mother-in-law set her on fire at Page 17 of 32 around 12.00 midnight, on 07.08.2011. The learned Sessions Judge has not lost his sight that though two witnesses were present there, namely, Kalpana Acharjee and Tania Das, the prosecution did not make any endeavour to ensure their presence in the witness box and the prosecution failed to assign any reason as to why these two witnesses have been withdrawn from making their valuable statements in the Court. I find no infirmity to the opinion of the learned Sessions Judge that in their absence, it cannot be said what statements were exactly given before Dr. Chandan Mallik who recorded the statement in the English version.
17. I am in full agreement with the learned Sessions Judge that it is settled law that the dying declaration should be recorded in verbatim of the deceased. Further, this Court has not lost its sight that no certificate of fitness about the status of health was obtained before recording the dying declaration. So, I am in full agreement with the opinion of the learned Sessions Judge that the evidentiary value of such dying declaration cannot carry much weight as because there is no corroboration with the oral declaration given to the P.W.1 and P.W.5 and the oral declarations being found conflicting and contradictory to each other, the Court must be very cautious to rely upon this type of dying declaration.
18. Here, I may gainfully refer a decision in Lakhan Vrs. State of Madhya Pradesh reported in (2010) 8 SCC 514 wherein the Apex Court has observed that -
"The law on the issue of dying declaration can be summarized to the effect that in case, the Court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was physically and mentally fit to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for Page 18 of 32 recording conviction. In such an eventuality no corroboration is required. In case, there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness. In case, there are circumstances wherein the declaration had been made, not voluntarily and even otherwise, it is not supported by the other evidence, the Court has to scrutinize the facts of an individual case very carefully and take a decision as to which of the declarations is worth reliance."
19. Again, the Apex Court in Vallabhaneni Venkateshwara Rao Vrs. State of A.P. reported in (2009) 6 SCC 484 has observed that-- "Where three dying declarations with different versions were made by the deceased, it was held unsafe to rely upon evidence of such dying declarations."
20. The learned Sessions Judge has also referred a decision in Pravin Mahadeo Gadekar Vrs. State of Maharashtra reported in (2008) Cri.L.J. (NOC) 842 (Bom-DB) it is held that -
"Where the deceased had made two oral and two written dying declarations, as there were inconsistencies and basic infirmities between them, all were ignored, the accused was held entitled to acquittal."
20.1 The Apex Court in Paniben Vs. State of Gujarat, reported in (1992)2 SCC 474, has summarized the law relating to the dying declaration, in paragraph 18, after taking note of its earlier pronouncements, as under:-
"18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind Page 19 of 32 after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P.)
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P. v. Ram Sagar Yadav, Ramawati Devi v. State of Bihar)
(iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor)
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence.
(Rasheed Beg v. State of M.P.)
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P.)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P.)
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu)
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. (Surajdeo Oza v. State of Bihar)
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying Page 20 of 32 declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P.)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P. v. Madan Mohan)"
In Sukanti Moharana Vs. State of Orissa [(2009)9 SCC 163], the Apex Court has restated the aforesaid law relating to dying declaration.
21. According to this Court, it is also necessary to determine as to whether the deceased was in a condition to make any statement or declaration expressing her cause of death. In this regard, it is very important to note the evidence of P.W.2 and P.W.3 and most importantly, both the witnesses are independent witnesses though they have been declared hostile. It is settled law that mere declaring a witness hostile, his evidence and testimony, having regard to the facts of a particular case, should not always be ignored or discarded as a whole. P.W.2 in his statement of evidence has categorically stated that just after the occurrence he and Sreemati Das, the Panachayat member of his Panchayat rushed to the spot who found Anjali Das was capable of speaking regarding the incident when police also came. But Anjali did not divulge anything about the involvement of the accused persons, the respondents herein. These independent witnesses have stated that a meeting was held as per complaint lodged by the accused- husband Utpal Das regarding the behavoural attitude of the victim Anjali. They have stated that Anjali Das on a number of occasions had made attempt to commit suicide and from their evidence, it has also revealed that she was uncaring to her child when she became angry. From their evidence, one aspect is very clear that the deceased was a stubborn lady and she had a tendency to Page 21 of 32 commit suicide. It is also revealed from the statement of P.W.3 that soon after the occurrence, the husband Utpal Das gave information to the police to bring vehicle and they took Anjali Das to the hospital by the police vehicle and the police also were present in the said vehicle. The statement of which is corroborated by P.W.14 who also stated that both Anjali and her husband Utpal were being carried to the hospital through the police vehicle which was on night patrolling duty. At that time also Anjali could divulge the actual incident what caused her suffering from 80% burn injury and who was responsible and liable for that incident. But she did not. 21.1 Here, I have given my thoughtful consideration to the submission of Mr. R. Datta, learned counsel for the respondents that the victim was not in a state of health to make any statements to anyone. This submission has received support from the statements of P.W.11 that even the mouth of the victim was found to be burnt. At this juncture, I have gone through the Inquest Report. At Col. No.6 & 10 it is noted that--
"6. Marks of identification, if any, such as moles, scars etc.--
Most parts of the body of the deceased found burnt starting from knees upto lower chest. Mouth and its adjacent area was also found burnt. Patches of blood found in the burnt places of the body.
10. Description of the corpse (after close observation of all parts of body in good light, generally under sunlight day time). Cavities such as those pertaining to Nose, Ear, Mouth, Vagina etc. should be closely examined:-
Most parts of the body of the deceased found burnt starting from knees upto lower chest. Mouth and its adjacent area was also found burnt. Patches of blood found in the burnt places of the body."
22. P.W.4 also while corroborating the statement of P.W.2 and P.W.3 has stated that he has seen the relation of Utpal Das Page 22 of 32 and Anjali Das was good and a meeting was held at the Panchayat level relating to the problem of Anjali on a number of occasions as she tried to commit suicide on small trivial matters.
23. In the light of above discussions, according to me, it would be unsafe to give enough credence to the oral dying declarations as well as written dying declarations given by the deceased. Another important aspect, I find, on appreciation of the entire pieces of evidence that two sets of story has been cropped up. Besides the allegations leveled against the accused persons, the second story which has cropped up in course of trial that the deceased Anjali had a tendency of committing suicide and on the basis of complaints lodged by the husband Utpal, Panchayat meetings were also held.
24. So, a serious suspicion arises in the minds of this Court about the involvement of the accused persons to set fire on the persons of the deceased leading to her death. In my considered view, suspicion, however, grave cannot takes the place of proof and to convict and punish an accused the Court must be satisfied that the evidence points out concrete and genuine proof towards the conviction of the accused. In absence of any direct evidence, the Court when appreciating the circumstantial evidence must consider that each and every chains are complete and if any one of the chains is missed out, then, it would be improper to convict an accused person because right to life is a long cherished and precious as enshrined under Article 21 of the Constitution of India and it must not be violated unless and until the guilt of accused is proved beyond any shadow of doubt. Furthermore, before recording conviction, the Court must be satisfied that apart from guilt, no Page 23 of 32 other inference can be made out or no other alternative proposition can be drawn.
25. Now, I should deal whether the fact of dowry has been proved by the prosecution.
26. None of the witnesses like P.W.2, P.W.3 and P.W.4 have supported the version of P.W.1, P.W.5 and P.W.6 that the accused persons have ever demanded any dowry since the marriage of the deceased Anjali and Utpal Das. Rather, they have stated that the deceased was a very stubborn lady and compromise meetings were also held at the instance of the husband Utpal das, the respondent No.1 herein because on a number of occasions, the deceased had tried to commit suicide on small trivial matters. It is worthy to mention here that P.W.1, P.W.5 and P.W.6 are the father-complainant, the brother of the deceased and the mother of the deceased respectively. In my opinion, the evidence of the close relatives of the deceased in a case of dowry death or that of exercise of cruelty has to be closely scrutinized since such witnesses in natural course always have a tendency of exaggerating or adding facts.
27. I may gainfully refer a decision of the Apex Court in Sarad Birdhichand Sarda Vrs. State of Maharashtra, reported in (1984) 4 SCC 116 wherein their Lordships have observed that in case of such a nature the testimony of relative witnesses should be scanned with great care and caution. The Apex Court in Para 48 of the judgment has observed thus:
"48.Before discussing the evidence of the witnesses we might mention a few preliminary remarks against the background of which the oral statements are to be considered. All persons to whom the oral Page 24 of 32 statements are said to have been made by Manju when she visited Beed for the last time, are close relatives and friends of the deceased. In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may not or could not have been stated may be imagined to have been stated unconsciously by the witnesses in order to see that the offender is punished. This is human psychology and no one can help it."
27.1 It is no more res integra that in the adjudication of a criminal case, dying declaration plays a crucial role and when it is made by a person as to the cause of his/her death, if found reliable, can form the basis of conviction. Section 32 of the Indian Evidence Act provides that the statements, written or verbal of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts, when it relates to cause of death, or is made in course of business, or against interest of maker, or gives opinion as to public right or custom, or matters of general interest, or relates to existence of relationship, or is made ill will or deed relating to family affairs, or in document relating to transaction mentioned in Section 13(a), or is made by several persons, and expresses feelings relevant to matter in question.
Page 25 of 3227.2 Section 32 is an exception to the general rule against admissibility of hearsay, as it is the general rule that all oral evidence must be direct. Clause (1) of Section 32, therefore, makes relevant which is generally called as dying declaration. 27.3 At the same time, it is a piece of evidence, circumstances on the same footing as any other piece of evidence adduced in a proceeding which has to be appreciated and decided in the light of the circumstances of each case and to be weighed by reference to the principles governing the weighing of other evidence.
27.4 Moreover, various Courts including the Apex Court have consistently laid down that dying declaration can form the basis of conviction if in the opinion of the Court, it inspires confidence that the deceased at the time of taking such declaration, was in a fit state of mind and there was no tutoring or prompting. This is also equally true that if the dying declaration creates any suspicion in the mind of Court as to its correctness and genuineness, it should not be acted upon without corroborating evidence [Atbir Vrs. Govt. of NCT, Delhi] (2010) 9 SCC 1, Panneerselvam Vrs. State of Tamilnadu (2008) 17 SCC 190].
28. In the backdrop of the aforesaid principle, I have meticulously scanned the evidence of P.W.1, P.W.5 and P.W.6. All of them have stated that there was demand of cash of Rs.10,000/- to Rs.15,000/-, and on failure to meet the demands the accused persons used to assault and torture the deceased.
29. P.W.1, the father in his cross-examination has stated that he never informed anyone in the village Panchayat meetings that the accused Utpal Das demanded Rs.15,000/- from him. He Page 26 of 32 has admitted that meetings were convened at the instance of accused side and he was called by Panchayat members. Even he has admitted that before preparing the Case diary he did not inform the police station and the doctor or any staff of the hospital about the demand of dowry.
30. P.W.6, the mother in her evidence has stated that Utpal Das was demanding some cash money from her but she could not say the amount demanded.
31. Further, from the statements of the aforesaid relative witnesses it appears to me that nothing has been stated by the witnesses about the act or omission and/or acts or deeds by which Anjali was subjected to torture. In my opinion, mere omnibus statements that she was subjected to torture since the demand was not fulfilled should not be accepted for the purpose of punishing the accused under Sections 498-A and 304-B of IPC.
32. Section 304-B prescribes punishment of dowry death. The provision reads as follows:-
"304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961)."
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
Page 27 of 32
33. According to me, to prove the offence of dowry death, the prosecution has to prove that the victim was subjected to cruelty or harassment by her husband or relative of the husband in connection with the demand of dowry. Mere using the words 'torture' or 'assault' without describing the exact conduct of the accused persons would be unsafe to the Court to believe the allegations of torture on demand of dowry in terms of Sections 498-A and 304-B of IPC. It would be apposite to refer Amar Singh Vrs. State of Rajasthan, (2010) 9 SCC 64 wherein the Apex Court has considered this aspect very meticulously and in Paragraphs 31 and 32, the Court held:
"31.The evidence of PW-5 (brother of the deceased) is that whenever the deceased used to come home she used to complain that her in-laws have been teasing her and they were demanding a Scooter or Rs.25,000/- for a shop and that when the deceased came home one month prior to her death, she complained that her mother-in-law and all other in-laws used to torture her and taunt her that she did not bring anything, but PW-5 has not described the exact conduct of the mother-in-law and other in- laws on account of which the deceased felt tortured and taunted. On the other hand, the evidence of PW-4 is clear that Amar Singh used to taunt her that she has come from a hungry house. Thus, there was evidence in the case of Amar Singh about his exact conduct which caused harassment to the deceased but there was no such evidence in the case of Jagdish and Gordhani.
32. A prosecution witness who merely uses the word "harassed" or "tortured" and does not describe the exact conduct of the accused which, according to him, amounted to harassment or torture may not be believed by the Court in cases under Section 498A and 304B, IPC. For this reason, the High Court has taken a view that the charges against Jagdish and Gordhani have not been established beyond reasonable doubt and that their case is distinguishable from that of Amar Singh and that Jagdish and Gordhani appear to have been implicated because they were members of Amar Singh's family."
34. Further, the Supreme Court in Appasaheb & Ors. Vrs. State of Maharashtra reported in AIR 2007 SC 763 at Para 9 Page 28 of 32 while considering the essential ingredients of dowry has held that demand of any property or valuable security must have some connection with the marriage of the parties. In Para 9 of the said decision, the Supreme court has observed thus:
9. Two essential ingredient of Section 304-B IPC, apart from others, are (i) death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) women is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for "dowry". The explanation appended to sub-section (1) of Section 304B IPC says that "dowry" shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.
Section 2 of Dowry Prohibition Act reads as under :-
"2. Definition of "dowry" - In this Act "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies.
In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody coversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd., AIR (1996) SC 3509 and Chemicals and Fibres of India v. Union of India, AIR (1997) SC 558). A demand for money on account of Page 29 of 32 some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained."
35. In the case at hand, I find no such statement made by P.W.1, P.W.5 and P.W.6 that the demand of dowry was made in connection with the marriage of the deceased Anjali and her husband Utpal Das.
36. In Durga Prasad & Ors. Vrs. State of M.P., reported in 2010 Cri.L.J. 3419 the Supreme Court has held at Para 15 & 16 that--
"15. As has been mentioned hereinbefore, in order to hold an accused guilty of an offence under Section 304-B IPC, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. Only then would such death be called "dowry death" and such husband or relative shall be deemed to have caused the death of the woman concerned.
16. In this case, one other aspect has to be kept in mind, namely, that no charges were framed against the Appellants under the provisions of the Dowry Prohibition Act, 1961 and the evidence led in order to prove the same for the purposes of Section 304-B IPC was related to a demand for a fan only."
37. On keen scrutiny of the evidence, it reveals that the prosecution has failed to bring out a case that Anjali was subjected to torture or assault by the accused persons in connection with the Page 30 of 32 demand for dowry and that too in relation to her marriage soon before causing burn injury which led her to death. On aggregate consideration of the evidence and materials on record as discussed above, in my considered view, the prosecution has neither been able to prove the fact of torture or assault in connection with the demand for dowry nor has been able to co-relate the death of Anjali in connection with the demand for dowry involving the accused persons beyond any reasonable doubt and being an appellate Court, it must borne in mind that in a case of acquittal, there is double presumption in favour of the accused. Furthermore, the essential ingredients of the offence under Sections 498-A and Section 304-B of IPC are found to be absent.
38. A Division bench of this High Court in State of Tripura Vrs. Pradip Debnath, (2015) 2 TLR 401 in Para 18 held that--
"......Firstly, the presumption of innocence is available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
39. In the present case, being informed by the husband Utpal Das, victim was taken to hospital through the police patrol van and at that time, she was conscious but did not divulge or accuse her husband during her journey to the hospital to any of the police officials. There is no definite evidence about the manner in which she was subjected to assault. Further, the prosecution has failed to adduce any evidence that due to assault she was ever Page 31 of 32 treated by any doctor or admitted to hospital and the assault was such an extent that she was compelled to commit suicide. Mere assertions of cruelty for demand of dowry without any co-relation with the marriage will not attract the essential ingredients of Section 498-A of IPC and the consequent death thereof will not attract the provision of 304-B of IPC. Hence, in absence of any cogent evidence about the involvement of the accused persons in the death of the deceased Anjali, this Court finds no scope to convert the order of acquittal of the accused persons to an order of punishment.
40. It is necessary to point out another aspect that the learned Sessions Judge while acquitting the father-in-law i.e. the respond No. 2 has considered the evidence against him in compliance with the provision of Section 232 Cr.P.C. and not merely on the basis of the statements of the learned Public Prosecutor in course of his argument before the trial Court. Furthermore, it has been observed that the prosecution side during the course of argument before the learned trial Court has categorically stated that there is no evidence against the father- respondent No.2 to convict him under Section 498-A or Section 304-B of IPC though the charge was framed against the father-in- law of the deceased on the basis of same set of evidence. So, in another aspect, it is difficult to take divergent opinion against other two similarly situated accused persons. I have meticulously perused the evidence and materials on record against the respondent No.2 herein and I find no infirmity in the findings of the learned Sessions Judge acquitting the respondent No.2.
Page 32 of 32
41. Before concluding, it would be apposite to refer a decision of this Court in Arjun Debnath Vrs. State of Tripura, reported in 2013 1 TLR 56 wherein this Court at Para 7 has observed thus:
"7. The golden thread which runs through the web of administration of justice and criminal case is that if two views are possible on the evidence in the case, (1) pointing to the guilt of the accused and (2) another to his innocence, the view which is favourable to the accused should be adopted. The paramount duty of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may raise from acquittal of the guilt is not less than from the conviction of the innocence. The Apex Court in C. Chenga Reddy Vs. State of A. P. (1996)10 SCC 193 held that in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be a conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
42. As I have already held that the guilt of the accused- respondents behind the death of victim has not been proved beyond reasonable doubt, it is very difficult to convert the order of acquittal into an order of punishment in view of the evidence and materials on record in the present case before this court.
43. In the result, the order of acquittal of the respondents by the learned trial Court is upheld and affirmed by this Court.
44. Consequently, the appeal preferred by the State of Tripura is dismissed.
JUDGE