Gauhati High Court
Md. Azim Ali & Ors vs The State Of Assam on 8 June, 2010
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur,
Tripura, Mizoram & Arunachal Pradesh)
Criminal Appeal No. 8 of 2009
1. Md. Azim Ali.
2. Md. Abdul Baten.
3. Md. Abdul Kalam.
All are sons of late Kadam Ali,
resident of Village-Rowarpur,
PS-Gouripur, Dist.-Dhubri (Assam).
......Appellants.
-Versus-
The State of Assam.
......Respondent.
Advocate(s) for the Appellants : Mr. M.H. Rajbarbhuiyan, Mr. A. Mannaf, Mr. R. Islam.
Advocate(s) for the Respondent : P.P., Assam.
BEFORE
THE HON'BLE MR. JUSTICE RANJAN GOGOI
THE HON'BLE MR. JUSTICE B.P. KATAKEY
Date of Hearing : 21.05.2010
Date of Judgment & Order : 08 .06.2010
JUDGMENT AND ORDER
[Katakey, J.]
This appeal is directed against the judgment of
conviction dated 06.12.2008 passed by the learned Sessions Judge 2 at Dhubri, in Sessions Case No.117/2005, convicting the appellants under Section 302/34 IPC and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs.10,000/- each, in default to undergo simple imprisonment for 6(six) months each.
2. A first information report (FIR), (Ext.-11) was lodged by Md. Abdul Khaleque (PW-3), the brother of the deceased, on 09.01.2005, in Gouripur Police Station, alleging that at around 7 A.M. on 08.01.2005, on receiving information that his sister Mustt. Sabeda Bibi, married to Md. Abdul Kalam (Appellant No.3), was hospitalized at Dhubri Civil Hospital for grievous burn injuries, he went to the hospital, where she informed him that her husband's elder brother Md. Azim Ali (Appellant No.1) and the younger brother Md. Baten Ali alias Md. Abdul Baten (Appellant No.2) on 08.01.2005 at about 3 A.M. entered her room and set her on fire by pouring kerosene over her body and when she raised a commotion, they ran away from the room and then immediately her husband Md. Abdul Kalam (Appellant No.3) came running from another room and tried to extinguish the fire and made arrangement for her hospitalization, and further alleging that as her condition was serious, she was referred for better medical treatment and accordingly was taken to Cooch Bihar Govt. Medical Hospital, where she died in the afternoon of 09.01.2005 due to the burn injuries. Initially G.D. Entry No.386, dated 09.01.2005 and thereafter Gouripur P.S. Case No.10/2005 under Section 448/307/326/302/34 3 IPC was registered, on the basis of the said FIR. The investigating agency during investigation recorded the statements of the persons claimed to be acquainted with the facts, under Section 161 Cr.P.C., prepared the inquest report, send the dead body for post mortem examination, prepared the sketch map (Ext.-13), seized certain articles vide seizure list (Ext.-9) and got the statements of Md. Baktar Ali Bepari (PW-1), Md. Abdul Kader (PW-2), Md. Abdul Khaleque (PW-3), Md. Kader Ali (PW-6) and Md. Abdul Kuddus (PW-
7), recorded under Section 164 Cr.P.C. by the learned Magistrate. On completion of the investigation the appellants were charge- sheeted (Ext.-12) under Section 302/34 IPC. Since the offence was exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Dhubri on 03.08.2005 committed all the three accused appellants for trial to the Sessions Court. The charge under Section 302/34 IPC was thereafter framed by the learned Sessions Judge vide order dated 15.12.2005 against all the appellants, which when read over and explained, the appellants pleaded not guilty and claimed to be tried. Hence the trial commenced in the Court of the learned Sessions Judge at Dhubri.
3. During the course of the trial, the prosecution in order to bring home the charges leveled against the appellants examined 11(eleven) witnesses, namely, Md. Baktar Ali Bepari (PW-1); Md. Abdul Kader (PW-2); Md. Abdul Khaleque (PW-3), who lodged the first information report, Md. Kader Ali (PW-6); Md. Abdul Kuddus 4 (PW-7); who are brothers and testified about the dying declaration made by the deceased; Dr. Ajit Kr. Phukan (PW-4), who was posted at Dhubri Civil Hospital and initially treated the deceased for the burn injuries; Sri Amalesh Sarkar (PW-5), the Asstt. Sub-Inspector of Police of Katowali Police Station in Cooch Bihar district, West Bengal, on 10.01.2005, who conducted the inquest over the dead body of Sabeda Bibi in M.G.N. Hospital, Coochbihar and collected the post mortem examination report; Md. Amzad Ali (PW-8), a neighbourer of the deceased, who along with others arranged for hospitalization of the deceased in Dhubri Civil Hospital; Mustt. Manowara Begam (PW-9), daughter of the deceased; Sri Santosh Kr. Mitra (PW-10), who was the Medical Officer posted at M.G.N. Hospital, Cooch Bihar on 10.01.2005 and conducted the post mortem examination on the body of the deceased and submitted the report and Sri Biswajit Bose (PW-11), the investigating officer. The witnesses were duly cross-examined by the appellants, whose statements were also recorded under Section 313 Cr.P.C. The defence, however, did not examine any witness.
4. The learned Sessions Judge upon appreciation of the evidences on record convicted the appellants under Section 302/34 IPC, on the basis of the oral dying declaration allegedly made by the deceased before PWs-1, 2, 3, 6 and 7, the brothers of the deceased and rejecting the opinion of the doctor, namely, Dr. Ajit Kr. Phukan (PW-4) about the inability of a person to speak because 5 of 80% burn injuries received by her and sentenced them as aforesaid. Hence the present appeal.
5. We have heard Mr. M.H. Rajbarbhuiyan, the learned counsel for the appellants and Mr. Dhanesh Das, the learned Public Prosecutor, Assam.
6. Referring to the deposition of the prosecution witnesses, more particularly of PWs-1, 2, 3, 6 and 7, it has been submitted by Mr. Rajbarbhuiyan, the learned counsel for the appellants, that the witnesses are not consistent on what was said by the deceased before them, as, while PW-3, who lodged the first information report and PW-2 had stated that the appellant Nos.1 and 2, namely, Md. Azim Ali and Md. Abdul Baten set the deceased on fire without implicating the appellant No.3, the husband of the deceased, the PW-1, another brother of the deceased had deposed that the deceased made the dying declaration implicating all the three appellants including her husband. On the other hand, according to PW-7, the deceased had told them that while the appellant Nos.1 and 2 caught hold of her, one person from behind, who was the appellant No.3, husband of the deceased, told them to set her on fire, whom she could recognize by his voice. It has further been submitted that the version of these witnesses recorded under Section 164 Cr.P.C. are also not consistent and as such it would not be safe to convict the appellants on the basis of such 6 inconsistent version of the prosecution witnesses, without there being any corroboration about the dying declaration made by the deceased. The learned counsel further submits that it is evident from the deposition of PW-4, Dr. Ajit Kr. Phukan, who initially treated the deceased, as well as of Dr. Santosh Kr. Mitra (PW-10), who conducted the post mortem examination, that the deceased having received more than 80% burn injuries was not in a position to speak and, therefore, the version of the prosecution witnesses that the deceased made a dying declaration is not at all believable and hence the learned Trial Court ought not to have accepted such version of the prosecution witnesses relating to making of a dying declaration. Mr. Rajbarbhuiyan further submits that PW-9, the daughter of the deceased also stated in her evidence that the deceased was not in the state to speak. Referring to the contents of the FIR (Ext.-11) as well as the deposition of PWs-2 and 3, the brothers of the deceased, and also of PW-9, the daughter of the deceased, it has further been submitted by the learned counsel that those witnesses have not implicated the appellant No.3, Md. Abdul Kalam, the husband of the deceased, in any manner and as such he ought not to have been convicted on the basis of the testimony of PW-1, when his version is not consistent and has not been corroborated by the other witnesses. The learned counsel, therefore, submits that the conviction recorded against the appellants needs to be set aside.
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7. Mr. Das, the learned Public Prosecutor, on the other hand has submitted that it is evident from the deposition of PWs-1, 2, 3, 6 and 7, the brothers of the deceased, that an oral dying declaration was made by the deceased in their presence implicating all the appellants and their testimony cannot be discarded only on the ground that the PWs-2 and 3 did not implicate the husband of the deceased, namely, the appellant No.3, when PWs-1, 6 and 7 have categorically stated about making such dying declaration by the deceased implicating the appellant No.3 also. According to Mr. Das, making of a dying declaration and its contents, in fact, have been corroborated by the FIR, which has been proved as Ext.-11. The learned Public Prosecutor, therefore, submits that the prosecution could bring home the charge against the appellants by adducing cogent and reliable evidence relating to making of an oral dying declaration by the deceased. It has further been submitted that the general opinion of the doctor, namely, Dr. Ajit Kr. Phukan (PW-4) and Dr. Santosh Kr. Mitra (PW-10) about a person's inability to speak, is not at all acceptable, in view of the clear evidence on record that the deceased was in a position to speak and made the oral dying declaration, even though she received 80% burn injuries. Such opinion of the doctor, in view of such positive evidence on record, cannot be accepted, submits the learned counsel. The learned Public Prosecutor further submits that making of the oral dying declaration by the deceased coupled with the conduct of the accused appellants in not informing the family members of the 8 victim, amply proves the culpability of the accused appellants and hence the learned Trial Court has rightly convicted them under Section 302/34 IPC, they having a common intention to kill the deceased.
8. We have considered the submissions of the learned counsel for the parties and also perused the evidences on record, both oral and documentary, as well as the judgment of conviction passed by the learned Trial Court.
9. The learned Sessions Judge, as noticed above, has convicted the accused appellants on the basis of the dying declaration allegedly made by the deceased before the PWs-1, 2, 3, 6 and 7, who are the brothers of the deceased. The learned Sessions Judge has also rejected the opinion of the PW-4 and PW- 10, the doctors, who treated the deceased initially at Dhubri Civil Hospital and conducted the autopsy, respectively, in view of the positive evidence available on record about the capability of the deceased to speak even after receipt of the burn injuries. To appreciate as to whether the learned Sessions Judge has rightly convicted the appellants under Section 302/34 IPC, we shall now discuss the evidences of the witnesses in details.
10. Md. Baktar Ali Bepari (PW-1) in his evidence has stated that on receiving the information relating to the hospitalization of 9 his sister (deceased) in Dhubri Civil Hospital, he went there and found her capable of speaking. He has further deposed that his sister had told Md. Abdul Khaleque (PW-3), who arrived the hospital one hour before him, that her husband Md. Abdul Kalam (appellant No.3), Md. Azim Ali (appellant No.1) and Md. Abdul Baten (appellant No.2) inflicted burn injuries on her body and accordingly Md. Abdul Khaleque (PW-3) lodged the FIR with Gouripur Police Station. According to this witness when he asked the deceased how she received the burn injuries, she told him that Md. Abdul Kalam (appellant No.3) and Md. Baten Ali alias Md. Abdul Baten alias Balin (appellant No.2) inflicted the burn injuries on her person. This witness during cross-examination has stated that his sister (deceased) was taken to hospital by her husband and his relatives including the appellant Nos.1 and 2. According to this witness both the appellant No.3 i.e. the husband and the deceased maintained a good relationship, though they did not have the normal relationship with other family members. In his statement recorded under Section 164 Cr.P.C., which has been proved as Ext.-1, he had, however, stated that on being asked, his sister (deceased Sabeda alias Jabeda Bibi) informed him that accused Azim Ali alias Md. Abdul Azim and Md. Baten Ali alias Md. Abdul Baten, the appellant Nos.1 and 2 respectively, hold her while one person from behind asked them to set her on fire and accordingly the said two persons, namely, appellant Nos.1 and 2 set her on fire. In his statement recorded under Section 164 Cr.P.C. this witness, had not implicated 10 the appellant No.3, namely, Abdul Kalam, the husband of the deceased.
11. PW-2 Md. Abdul Kader, another brother of the deceased has deposed that on getting the information about the hospitalization of the deceased, he went to Dhubri Civil Hospital and saw his sister (deceased) with burn injuries all over her body. This witness has further deposed that on being asked, his sister told him that Md. Abdul Azim alias Azim Ali (appellant No.1) and Balin alias Md. Abdul Baten (appellant No.2) had caused burn injuries on her person by pouring kerosene and setting her on fire. She was also found to be capable of speaking. This witness has further stated that the deceased also told him that her husband was present at home. During cross-examination this witness has further deposed that the deceased had a peaceful life with her husband and lived together and on the day of occurrence her husband was sleeping in a separate room. In his statement recorded under Section 164 Cr.P.C. this witness, however, had stated that, he was told by the deceased that while the appellant Nos.1 and 2 had pressed her down, someone ordered from behind to set her on fire, where upon she was set on fire by the appellant Nos.1 and 2. The person who allegedly ordered to set the deceased on fire was, however, not named.
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12. PW-3, Md. Abdul Khaleque, the first informant, another brother of the deceased, in his evidence has also stated that he went to Dhubri Civil Hospital on receiving the information relating to the hospitalization of his sister (deceased) and when asked, she told him that Md. Azim Ali and Balin alias Md. Abdul Baten, (appellant Nos.1 and 2), caused the burn injuries by setting her on fire while her husband (appellant No.3) was in another room and accordingly he lodged the FIR. This witness also during cross- examination has stated that the deceased and her husband (appellant No.3) lived together peacefully and separately from other brothers. This witness in his statement under Section 164 Cr.P.C. had, also stated that the deceased told him that while the appellant Nos.1 and 2 pressed her down, she heard someone asking them to set her on fire, without, however, naming the said person.
13. PW-6 Md. Kader Ali, the step brother of the deceased, also in his evidence has stated that he went to Dhubri Civil Hospital on receiving the information about his sister's hospitalization, where on being asked the deceased told that while she was sleeping, cold liquid was sprinkled over her body and found Md. Abdul Azim and Balin alias Md. Abdul Baten (appellant Nos.1 and 2 respectively) in her room and while one of them caught hold of her hand, the other person set her on fire and when she raised alarm, they disappeared therefrom. This witness has further stated that in the hospital Dr. 12 Tapan Mazumder was present when the deceased made her statement before him. This witness however, in his statement recorded under Section 164 Cr.P.C. had stated that the deceased told him that while the appellant Nos.1 and 2 were holding her, another person from behind asked them to set her on fire, which they accordingly did. In his said statement the third person had not been named.
14. PW-7 Md. Abdul Kuddus, another brother of the deceased, who was also in the hospital, has stated that the deceased told that while Md. Azim Ali (appellant No.1) and Balin alias Md. Abdul Baten (appellant No.2) was holding her, one person from behind, whom she could recognize by the voice as her husband Md. Abdul Kalam, appellant No.3, asked them to set her on fire and accordingly they set her on fire. This witness during cross-examination, however, has stated that he did not inform either the doctor or the police personnel present about making such oral dying declaration and both his sister and her husband lived together peacefully. There is, however, not much contradiction with the version of this witness recorded under Section 164 Cr.P.C. except, in such statement while he did not name the third person who told the appellant Nos.1 and 2 to set the deceased on fire, in his evidence before the Court he named the third person as the appellant No.3, the husband of the deceased.
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15. PW-9 Mustt. Manowara Begam is the daughter of the deceased, who deposed that on the day of incident, she was present in the house and her father was sleeping in another room. This witness has further stated that her uncles, namely, the appellant Nos.1 and 2 were also in the house, when the occurrence took place. During cross-examination this witness has stated that all her brothers and sisters were sleeping with their mother in the room and while her mother tried to extinguish the fire, her father also tried to extinguish the fire on the person of her mother. She has further deposed that her father and the uncles took her mother to the hospital and she was unable to talk at that time. She has further stated that her mother had good relation with her father and they were living separately from other accused persons.
16. PW-8 Md. Amzad Ali was a neighbourer, whose evidence is not of much importance, as he did not speak anything about any dying declaration made by the deceased. This witness has only stated that he along with others removed the deceased to the hospital and subsequently he came to know that she died in Cooch Bihar. PW-8 is a witness to the seizure memo being Ext.-9, by which some ashes and remnants of paddy straw and small pieces of the burnt saree were seized by the police on 10.01.2005.
17. PW-11 Sri Biswajit Bose was the Investigating Officer, who investigated Gouripur P.S. Case No.10/2005 and also proved 14 the seizure memo (Ext.-9), the first information report (Ext.-11), the charge-sheet (Ext.-12) and the sketch map (Ext.-13).
18. PW-5 Sri Amalesh Sarkar was the ASI of Police attached to Katowali Police Station in Cooch Bihar District, West Bengal, who conducted the inquest over the dead body of Jabeda @ Sabeda Bibi and send the body for post mortem examination. This witness has proved the supplementary case diary maintained by him as Exts.-4 and 5 as well as the carbon copy of the inquest report (Ext.-6).
19. Dr. Ajit Kr. Phukan (PW-4), who initially treated the deceased in Dhubri Civil Hospital, in his evidence has stated that on 08.01.2005 he treated the deceased and found 80% burn injuries on her person. According to this witness, considering her condition, though she was referred to Guwahati Medical College and Hospital, her relatives took her to Cooch Bihar. During cross-examination this witness has stated that the person receiving more than 40% burn injuries cannot speak and the person with 80% burn injuries suffers septisemia forthwith and in such cases there is no question of recording any statement of such person by any Magistrate, police or doctor. According to this witness, the deceased did not tell anything before him.
20. PW-10, Dr. P.K. Choudhury, who conducted the autopsy over the dead body of Jabeda alias Sabeda Bibi on 10.01.2005, 15 while proving such report as Ext.-10, has deposed that the deceased received 100% burn injuries and in his opinion death was due to complications arising out of burn injuries, which are ante mortem in nature. This witness has further stated that with 100% burn injuries a patient becomes unable to speak. PW-10 found the following burn injuries on the body of the deceased:-
"Partial & full thickness burn all over the body from head to upper part of foot (mostly anterior surface) with typical smell of similar burn & chars & also redness of the floor of the burn. Few blisters also noted. Skin of some portion of burnt area peeled off."
21. 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 in 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. Section 32 is an 16 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 what is generally called as dying declaration. A dying declaration, if found reliable, can form the basis of conviction. It is a piece of evidence, stands on the same footing as any other piece of evidence adduced in a proceeding. The acceptability of the dying declaration has to be judged and appreciated in the light of the circumstances of each case and it has to be weighed by reference to the principles governing the weighing of other evidence. Since a dying declaration is not made on oath and the maker of the dying declaration cannot be subjected to cross-examination, the courts are to be on guard while testing its reliability. The court has also the obligation to closely scrutinize all the relevant attendant circumstances while testing its reliability, truthfulness as well as the voluntariness. It is not always necessary that the Court for the purpose of recording conviction on the basis of the dying declaration has to look for corroboration. Looking for corroboration is a rule of prudence only and if there is some doubt in the mind of the Court, it may look for corroboration before recording the conviction. However, if the Court finds certain infirmities in such dying declaration, which renders the dying declaration so infirm as to prick the conscience of the Court, it may refuse to accept the same as the basis for conviction. 17
22. Since the maker of the dying declaration cannot be subjected to cross-examination by the accused, the Court insist that the dying declaration should be of such a nature as to inspire full confidence of the Court relating to its truthfulness as well as correctness. The Court has always to be on guard to see that the statement of the deceased was not as a result of either tutoring, prompting or a product of imagination. Before accepting the dying declaration and based conviction on that the Court must come to a finding that the deceased was in a fit physical and mental condition to make such declaration. It is always not necessary that the physical and mental state of mind of the deceased to make the declaration has to be certified by the doctor. Where there are evidences relating to the making of dying declaration by the deceased and about his/her fit and conscious state of mind to make such declaration, the medical opinion would not prevail, as looking for the medical opinion is a matter of prudence only.
23. 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 18 further satisfied that the deceased was in a fit state of mind 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 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.
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24. In the case in hand, as discussed above, the conviction has been based on the dying declaration made by the deceased in presence of PWs-1, 2, 3, 6 and 7, who are the brothers of the deceased. According to PWs-1, 2, 3, 6 and 7, their sister was fit and in conscious state of mind to make the declaration, even after receipt of the burn injuries, which according to PW-4, the doctor, who treated her initially, was 80%. According to PW-4, the deceased received 80% burn injuries on her person and a person receiving more than 40% burn injuries, according to him, cannot speak and the person with 80% burn injuries suffers septisemia forthwith and in such cases there is no question of recording any statement of such person. According to PW-10, the doctor, who conducted the autopsy, the deceased received 100% burn injuries. Neither PW-4 nor PW-10, however, did make any statement relating to the inability of the deceased to make the declaration, because of the burn injuries received by her. In any case, the opinion of the PWs-4 and 10 being of general nature, the Court may not accept such opinion, when there are positive evidences on record, i.e. the evidence of PWs-1, 2, 3, 6 and 7, that the deceased was in a fit and conscious state of mind to make the declaration, even after receipt of severe burn injuries. Moreover, whether the deceased was in a physical and mental state of mind to make the declaration, because of the burn injuries, does not depend on the percentage of the burn injuries he/she has suffered, but it depends on the organs affected by such burn injuries.
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25. PW-9, the daughter of the deceased though has stated in her evidence that the deceased was unable to talk, such statement relates to the point of time when the deceased was in her house and before taking to the hospital. PW-9 has not stated anything about the condition of the deceased after she was taken to the hospital as admittedly she did not accompany the deceased to the hospital. The positive evidence of PWs-1, 2, 3, 6 and 7 about the fit and conscious state of mind of the deceased to make the declaration, which version could not be disclosed by the defence during cross-examination, would therefore prevail upon the general medical opinion of PWs-4 and 10. Such version of the prosecution witnesses relating to physical and mental state of mind of the deceased to make the declaration being reliable and trustworthy, has to be accepted.
26. We shall now proceed to scrutinize the evidences of prosecution witnesses relating to the culpability of the accused appellants to the alleged commission of crime. According to PW-1, the deceased in her dying declaration implicated her husband (appellant No.3) as well as Md. Baten Ali alias Md. Abdul Baten (appellant No.2). PW-2, however, in his deposition has stated that his sister (deceased) only implicated Md. Azim Ali (appellant No.1) and Md. Baten Ali alias Md. Abdul Baten (appellant No.2). PW-3, the first informant has supported the version of PW-2 to the effect that 21 the deceased in her declaration had implicated the appellant Nos.1 and 2 only. PW-6 has also supported the version of PW-3 by stating that it was the appellant Nos.1 and 2, who set the deceased on fire after sprinkling some liquid over her body. PW-7, however, in his deposition has stated that the deceased made the declaration to the effect that while the appellant Nos.1 and 2 was holding her, one person from behind, whom she could recognize by his voice as appellant No.3, asked them to set her on fire and accordingly they set her on fire.
27. The statement of all these 5(five) witnesses, namely, PWs-1, 2, 3, 6 and 7 were recorded under Section 164 Cr.P.C., wherein they had stated about making of a dying declaration by the deceased to the effect that it was the appellant Nos.1 and 2, who caught hold of her and as per instruction of someone from behind set her on fire, without however naming such person. It appears that the PW-7 tried to improve his statement in the Court by implicating the appellant No.3, the husband of the deceased though in his first statement recorded under Section 164 Cr.P.C., the appellant No.3 was not implicated. All the witnesses, however, spoke about the involvement of the appellant Nos.1 and 2. They are consistent in respect of the culpability of the appellant Nos.1 and 2 about the commission of the offence alleged. Implicating the appellant No.3 to the commission of crime by the PW-7 in his evidence before the Court, though he was not implicated in the 22 statement under Section 164 Cr.P.C. would not make the version of the witnesses relating to the making of dying declaration and its contents relating to the culpability of appellant Nos.1 and 2, doubtful. As noticed above, each of these witnesses have corroborated each other relating to the involvement of the appellant Nos.1 and 2, which has also been corroborated by the FIR. Hence the learned Trial Court, in our considered opinion has rightly convicted and sentenced the appellant Nos.1 and 2 under Section 302/34 IPC.
28. Relating to the culpability of appellant No.3, the husband of the deceased, there are, however, some doubts. As discussed above, PWs-1, 2, 3, 6 and 7 in their earlier statement recorded on oath i.e. the statement recorded under Section 164 Cr.P.C., had not named the appellant No.3. These witnesses except PW-7, in their deposition before the Court have also not implicated the appellant No.3. According to PWs-1, 2 and 3, only the appellant Nos.1 and 2 were the perpetrators of the crime. PW-6 though has corroborated such version, he has, however, stated that another person from behind asked the appellant Nos.1 and 2 to set the deceased on fire, without however naming the third person. PW-7, however, has tried to improve his version by naming the third person to be the appellant No.3. Such version of PW-7 has not been corroborated by any other evidence and even by his own initial statement on oath recorded under Section 164 Cr.P.C. That apart 23 all the prosecution witnesses including the PW-9, the daughter of the deceased, deposed that both the husband (appellant No.3) and the wife (deceased) had maintained a very good relation. PW-9, who was with the deceased, has also stated in her evidence that the appellant No.3 was in another room when the occurrence took place.
29. That being the position, the involvement of the appellant No.3 in the commission of crime could not be proved by the prosecution beyond all reasonable doubt and hence the appellant No.3 is entitled to the benefit of doubt. The conviction of the appellant No.3 under Section 302/34 IPC, therefore, is set aside. He is set at liberty, if not wanted in any other case.
30. The appeal is accordingly allowed in part, as indicated above.
JUDGE JUDGE Roy