Gauhati High Court
Shyamlendu Deb Anr vs The State Of Assam on 17 May, 2017
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan, Paran Kumar Phukan
Page No.1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM &
ARUNACHAL PRADESH)
CRIMINAL APPEAL 146/2012
1. Shyamlendu Deb,
S/o. Late Nalini Mohan Deb,
R/o. Village - Sati Joymati Nagar,
PS. Jalukbari, Kamrup, Assam.
2. Chandra Shekhar Deb,
S/o. Late Nalini Mohan Deb,
R/o. Village - Sati Joymati Nagar,
PS. Jalukbari, Kamrup, Assam. .. Appellants
Versus
State of Assam .. Respondent
For the appellants :: Mr. N. Dutta, Sr. Advocate,
Mr. A.M. Bora, Sr. Advocate.
For the respondent :: Mr. M. Phukan, Addl. P.P., Assam,
PRESENT
HON'BLE MR JUSTICE UJJAL BHUYAN
HON'BLE MR JUSTICE PARAN KUMAR PHUKAN
Dates of hearing : 14.03.17 & 28.03.2017
Date of judgment : 17.05.2017
JUDGEMENT AND ORDER (CAV)
(Ujjal Bhuyan, J.)
Heard Mr. N. Dutta, learned Senior counsel and Mr. A.M Bora, learned counsel for the appellants. Also heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam.
2. This appeal is directed against the judgment and order dated 22.06.2012 passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No.42(K) of 2008 convicting the appellants under Sections 302/34 IPC and sentencing them to undergo rigorous imprisonment (RI) for life and to pay a fine of Rs.2,000 each, in default, to undergo RI for two months.
3. Prosecution case may be briefly noted at the outset.
Page No.24. PW25, Shri Dhirendra Nath Kalita, Sub-Inspector of Police, Maligaon Police Outpost under Jalukbari Police Station received a telephonic information at about 10 pm of 20.03.2006 from one Mahendra Sharma (PW5) that an incident of burning of Shipra Dey, wife of Shyamalendu Deb, had taken place in their residence. PW25 made an entry in the General Diary being General Diary Entry No.402 dated 20.03.2006 and proceeded to the place of occurrence after making another General Diary Entry being No.403 of the same date. On reaching the place of occurrence, he found the victim and the husband Shyamalendu Deb with burn injuries on their persons. They were then shifted to Central Railway Hospital, Maligaon. While victim was admitted as an indoor patient, husband was released after preliminary treatment. Thereafter, PW25 left for Jalukbari Police Station at about 11.35 pm where officer-in-charge of the Police Station Rahul Amin informed him that he had received a First Information Report (FIR) relating to the said incident and entrusted him with the investigation of the case. The FIR was lodged by Tarun Dey, brother of the victim Sipra Dey, stating that on that day at about 9.30 pm, his sister was confined by her husband Shyamalendu Deb and his elder brother Chandra Shekhar Deb who thereafter poured kerosene oil on her and set her on fire causing severe burn injuries. Local people informed him whereafter he came to the place of occurrence. His sister also told him about the happenings. He therefore requested the police to investigate into the incident. In the FIR, both husband and elder brother, namely, Shyamalendu Deb and Chandra Shekhar Deb, were named as accused persons. On the basis of the said FIR, Jalukbari Police Station Case No.147/2006 under Sections 326/307/34 of the Indian Penal Code (IPC) was registered. Initially, victim was admitted in the Central Railway Hospital, NF Railway, Maligaon. Thereafter, she was shifted to the Gauhati Medical College and Hospital (GMCH) where she expired on 25.03.2006. Following death of the victim, Section 302 IPC was added in the FIR. Police investigated the case and on completion of investigation, submitted charge-sheet against the husband and his elder brother, namely, Shyamalendu Deb and Chandra Shekhar Deb, under Sections 302/34 IPC. The case being exclusively triable by the Court of Sessions, it was committed to the Court of Sessions, Kamrup whereafter charges under Sections 302/34 IPC were framed against the accused-appellants to which they pleaded not guilty and claimed to be tried. In the trial that followed, prosecution examined as many as 26 Page No.3 witnesses who were duly cross-examined. After closure of the prosecution evidence, accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.PC). The defence plea was that of denial. However, defence did not adduce any evidence. After hearing the matter, learned Sessions Judge passed the judgment and order dated 22.06.2012 convicting and sentencing the accused-appellants as above.
5. Hence, this appeal.
6. Following conviction and sentence of the accused-appellants as above, they were taken into custody. During the pendency of the appeal, they had filed an application for bail, which was registered as Criminal Misc. Case No.638/2012. By order dated 24.01.2013 passed in Criminal Misc. Case No.638/2012, the accused-appellants were granted bail.
7. Mr. N. Dutta, learned Senior counsel and Mr. A.M. Bora, learned counsel for the appellants, have made a scathing attack on the judgment of conviction. It was submitted that though there were as many as 4 dying declarations, learned Sessions Judge accepted the dying declaration made on 24.03.2006, i.e., on the previous day of death of the deceased. This dying declaration (Ext.2) was a lengthy declaration comprising of three pages giving minute details about the relationship between the husband and wife and various instances of torture inflicted by the husband on the wife resulting in filing of case by the latter. Such a dying declaration was not at all possible for a victim suffering from 90% burn injuries. The said declaration was recorded by a staff of the Magistrate who was not examined. Besides, there was no certification by the Doctor about the mental fitness of the declarant to make the statement. Therefore, learned Court below had erred in placing reliance on the said dying declaration which in any case was contradictory to the earlier dying declarations. The evidence of PW20 Saurav Deb, son of the deceased, clearly demolished the prosecution case. He also stated that his previous statement recorded under Section 164 Cr.PC was a tutored one, at the instance of his maternal uncle. Besides the above, learned counsel for the appellants have highlighted various material contradictions in the testimony of the prosecution witnesses and contended that learned Court below had completely overlooked all such inconsistencies and contradictions and erroneously convicted the appellants. Such conviction cannot be sustained in law Page No.4 and is liable to be set aside. Mr. Dutta also submitted that in the evidence-in- chief of PW7 Shri Madhu Nath Mukherjee, the word 'not' appearing in the statement "when I met her at GMCH, I found that she was injured badly but she was 'not' in a position to speak" was struck off without any initial which materially altered the meaning of the statement. In support of their submissions, reliance has been placed on the following decisions:-
(1980) 1 SCC 240 = Rabi Chandra Pradhan Vs. State of Orissa, (1993) Supp (3) SCC 343 = Gobind Narain Vs. State of Rajasthan, 1998 (3) GLT 234 = UP State Sugar Corporation Ltd Vs. Mahalchand Motilal Kothari, (1999) 7 SCC 695 = Paparambaka Rosamma Vs. State of AP, (2002) 7 SCC 56 = Ramilaben Hansmukhbhai Khristi Vs. State of Gujarat, (2003) 8 SCC 745 = Narmada Devi Gupta Vs. Birendra Kumar Jaiswal, (2005) 10 SCC 259 = Mannulal Sahu Vs. State of MP, (2007) 13 SCC 112 = Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka, (2008) 5 SCC 468 = Amol Singh Vs. State of MP, (2009) 12 SCC 600 = Gopal Vs. State of MP, 2010 (5) GLT 657 = Anup Malla Vs. State of Tripura, (2011) 13 SCC 125 = Waikham Yaima Singh Vs. State of Manipur
8. On the other hand, Mr. Phukan, learned Additional Public Prosecutor, vehemently argued in favour of the judgment under appeal contending that there is no error or infirmity in the conviction of the accused-appellants and therefore no interference is called for. The Ext.2 dying declaration of the victim was trustworthy and reliable and was rightly acted upon by the Court. It was corroborated by other evidence on record. The evidence on record clearly points to the involvement of the accused-appellants in the murder of the victim. No other view is possible. Since accused-appellant No.1 was present in the house when the incident had occurred, it was his duty to have explained the circumstances leading to the fatal burn injury of the deceased. Failure to explain the circumstances may invite adverse inference and this is what has happened in Page No.5 the instant case. He, therefore, seeks dismissal of the appeal. In support of his submissions, learned Additional Public Prosecutor has placed reliance on the following decisions:-
(1974) 3 SCC 368 = Kishan Narain Vs. State of Maharashtra, (1975) 3 SCC 241 = Godhu Vs. State of Rajasthan, (1992) 2 SCC 474 = Smt. Paniben Vs. State of Gujarat, (2002) 7 SCC 639 = State of Karnataka Vs. M.N. Ramdas, (2006) 10 SCC 681 = Trimukh Maroti Kirkan Vs. State of Maharashtra, (2016) 4 SCC 583 = Gulzari Lal Vs. State of Haryana.
9. Submissions made by learned counsel for the parties have received the due consideration of the Court. Also perused the record and the decisions cited at the Bar.
10. At the outset, it would be apposite to briefly refer to the evidence of the relevant prosecution witnesses.
11. PW1 is Smt. Pratima Das, a neighbour. She stated that on 20.03.2006 at about 9.30 pm, she heard a hue and cry in the residence of the accused Shyamalendu. She rushed there and saw the victim being engulfed by fire and she was running towards the house. She came to the house of the accused and found the victim sitting in the bathroom and the people who had gathered there were pouring water on her. According to PW1, victim told the people who had gathered there that elder brother of the accused Shyamalendu Deb, i.e., accused No.2, had put fire on her. PW1 stated that she had been staying in the locality for the last 5 years and during this period, she saw the victim being subjected to torture for demand of dowry. Victim was a school teacher. According to her, she saw many injuries on the person of the victim. After sometime, police came and the victim was taken to hospital for treatment. Later on, she died due to the injuries sustained by her. In her cross-examination, she stated that she came to the house of the victim immediately after hearing the hue and cry and when she reached the residence, she did not find elder brother of the accused Shyamalendu Deb.
Page No.612. PW2 Shri Pradyut Kumar Kundu was also one of the neighbours. On the fateful evening, as he was returning home from his shop, he saw many people had gathered in the residence of the accused Shyamalendu. He visited the victim in the hospital where she told him that she was set on fire by the elder brother of the accused Shyamalendu Deb. The elder brother, namely, Chandra Shekhar Deb, lived in a separate house. Relationship between the accused Shyamalendu and his wife was not cordial. He stated that about a month before the incident, he found the victim crying outside the house and at the same time saying that her husband would kill her one day. The quarrel was over money. During his cross-examination, nothing contradictory could be elicited from him.
13. PW3 Smt. Sukla Choudhury was the immediate neighbour of the deceased. On the day of occurrence, she had gone to meet her husband in the hospital as he had suffered an accident. When she returned home at around 8 pm, she found the victim in their house. When she asked her about her well- being, she replied back by saying that for the last six months, she had been threatened by the accused-persons and that she feared that she would be killed by them. She left the house of PW3 at around 9.15 pm. Shortly thereafter, PW3 heard cries made by the victim. When she came out, she saw fire in the house of the accused Shyamalendu. She rushed to the house of the victim where she saw her in the bathroom sitting under the shower wherefrom water was coming slowly and found her backside burning. There was no cloth on her body. PW3 found the husband in the first room of the house. When PW3 enquired as to what happened, victim told her that Shyamalendu (husband) had poured kerosene oil on her body and that Chandra Shekhar Deb had set her on fire. In the meanwhile, a large number of people had gathered near the house. Police also arrived and took the victim to Maligaon Railway Hospital. PW3 followed the victim to the hospital where victim told her that the accused persons had set her on fire. The next day victim was shifted to GMCH where also PW3 visited her. At GMCH, she was in speaking condition. On 25.03.2006, victim gave her a telephone call seeking name of the medicine she used to take to get relief from asthma. She also enquired from PW3 as to whether she would survive or not. The victim succumbed to her injuries on the same day. In her cross-examination, she stated that on the fateful night at about 1.30 am, police had examined her. She stated that she did not state before the police that the victim had told her Page No.7 that the accused Shyamalendu had poured kerosene oil on her and the other accused Chandra Shekhar had set her on fire.
14. PW4 Shri Tarun Dey is the informant. Deceased was his elder sister. According to him, after his sister married Shyamalendu, they stayed together along with other family members in a joint family. After about one year of their marriage, the two of them started to live in a railway quarter separately. He stated that his sister while living in the joint family and even thereafter was subjected to torture by the family members of the husband, both physically and mentally. Before her marriage, sister used to work as a teacher in the Railway School, Maligaon. Sister was tortured for bringing all her money which she had accumulated before her marriage. Accused Shyamalendu had a plot of land at Sati Jaymati Nagar on which they had jointly constructed a house. In this project, his sister had contributed rupees four lakhs. His sister used to complain to him that her husband used to torture her. Once she was severely beaten by the husband for which his sister had filed a case against the husband and his brother, i.e., both the appellants under Section 498A IPC. His sister was threatened that she would be physically harmed if she did not withdraw the case. On the night of 20.03.2006 at about 10 pm, he got a telephonic message to the effect that his sister was set on fire by the husband Shyamalendu and his brother Chandra Shekhar. On receiving such information, he rushed to the place of occurrence where he was told that his sister was shifted to Railway Hospital. PW4 then rushed to the Central Railway Hospital where he met his sister. He found that she was burnt all over her body except her face. However, she was in a position to talk. She told him that Shyamalendu had put kerosene oil on her and the brother Chandra Shekhar had set fire on her. She was shifted to GMCH for better treatment and was conscious till her death. He stated that he had lodged the FIR and that his sister gave a statement on 24.03.2006 before the Magistrate which was exhibited as Ext.2.
14.1. In his cross-examination, testimony of PW4 could not be shaken. However, he stated that when his sister was undergoing treatment in the GMCH, he spent much time with her and denied the suggestion that he had tutored his sister while making the dying declaration.
Page No.815. PW5 Shri Mahendra Sharma was a neighbour of accused-appellant Shyamalendu Deb. He stated that on 20.03.2006 at about 10 pm, there was a hue and cry in the residence of accused Shyamalendu Deb with someone uttering the words "jolale", "jolale" (set on fire, set on fire). Having heard the cry, he came out of his residence and found a huge gathering of about 100 persons in the residence of the accused Shyamalendu. From the people who had gathered there, he could come to know that the victim was set on fire by her husband. When he went inside the house, he found the victim in her bathroom sitting under the water tap and pouring water on her body. She was crying due to pain. On being queried, she pointed her finger towards the husband and told that "they" had put her on fire. Accused Shyamalendu Deb did not say anything. Someone told PW5 that Shyamalendu wanted to flee but he was apprehended. Thereafter, he informed the matter to the police. Police took the victim to the Maligaon Railway Hospital and he had accompanied the victim. Prior to the incident, when he met the victim, she had told him that she used to be tortured by her husband and requested him to settle the matter as she feared that she would be killed otherwise. When he confronted Shyamalendu, he blamed his wife.
15.1 In his cross-examination, he stated that he had reported the matter to the police within 3/4 minutes of his seeing the victim in the burnt condition. Police came to the place of occurrence within 10 minutes.
16. PW7 Shri Madhu Nath Mukherjee was a colleague of the deceased in the Assam Railway Higher Secondary School, Panbazar. He stated that when he came to know about the incident the next day, he along with some of his colleagues visited her in the GMCH. Though she was badly injured, she was in a position to speak. On being enquired, she stated that at about 9 pm while she was collecting clothes outside the house, she was embraced by her husband from behind by a wet cloth. Thereafter, she could smell kerosene oil on her body and a moment later somebody put her on fire. In the light of the fire, she saw her brother-in-law Chandra Shekhar present. Her husband continued to embrace her tightly till fire completely engulfed her. Then she rushed to the bathroom and tried to pour water on her body but there was no water. When she raised hue and cry, neighbourers came and put off the fire. Victim succumbed to her injuries on the 6th day. Victim had a history of unhappy conjugal life and was often Page No.9 subjected to torture by her husband and her brother-in-law demanding money. While victim was in GMCH, a Magistrate had come and recorded statement of the victim. It was clarified that Magistrate was taken to the hospital by PW7 and his associates. In the course of cross-examination, nothing contradictory could be elicited by the defence and his testimony could not be shaken.
17. PW8 Khadiza Begum is also a teacher in the Assam Railway Higher Secondary School, Panbazar and a colleague of the victim. Right from the beginning of her marriage, victim was subjected to ill treatment and physical torture for money, signs of which were clearly visible. On one occasion about 20 teachers of the school took the victim to the office of the Deputy Commissioner and had submitted an application which in turn was forwarded to the Superintendent of Police for doing the needful. One day in the school, the victim had told her that she apprehended that if she did not withdraw the criminal case against the husband under Section 498A IPC, she might be killed. Victim had two children, aged about 3 and 6 years respectively at the time of her death. She came to know about the incident on the next day when she had come to school. On receiving such information, she had rushed to the hospital along with some of her colleagues. Though the victim was burnt, her head and face remained untouched by fire and she was in a position to talk. She survived for 5 days. PW8 narrated the same thing as was narrated by PW7 as to how victim was embraced by her husband whereafter she was put on fire and in the light of the fire, she also saw her brother-in-law. While she was under treatment in the GMCH, she fervently requested all her colleagues to save her life and all the colleagues ran from pillar to post to help her. She died on 25.03.2006 but before her death, one Magistrate had come and recorded her statement.
17.1. In her cross-examination, PW8 stated that when she reached the hospital, victim was taken out from the operation theatre on her bed. However, there is a contradiction here inasmuch as PW8 stated that victim did not report to them that she was put on fire by the accused persons.
18. PW9 is Dr. Sambhu Nath Mukherjee, who was the Senior Medical Officer in the Central Railway Hospital, Maligaon. He stated that on 20.03.2006 he had casualty duty from 10 pm to 8 am. At about 10.30 pm, police had brought two persons for treatment having burn injury. One was a lady who had sustained Page No.10 90% burn injury. She was immediately sent to the Female Surgical Ward. Later on, he came to know that name of the victim was Shipra Deb. The male person was discharged after giving some first aid. His name was Shyamalendu Deb. While she was being given treatment, police requested recording of her dying declaration. At that time she was in a position to speak. Accordingly, she made a declaration at 11.15 pm which has been exhibited as Ext.2 (sic). When PW9 asked her as to how she sustained the burn injury, she told him that brother-in- law Chandra Shekhar Deb threw kerosene on her and had put her on fire. That dying declaration was recorded on the bed head ticket itself in the presence of PW10 Dr. Kajal Dey and PW11 Smt. Pratima Bhuyan, matron of the hospital. Victim was not in a position to put her signature and as such her signature was not obtained.
19. Dr. Kajal Dey, PW10, was a doctor in the Central Railway Hospital. On that night at about 10.45 pm, while he was at home, he was called to the hospital as one burn case was admitted. Accordingly, he rushed to the hospital and in the Female Surgical Ward, he found a woman having burn injury. The patient was mentally conscious though she had sustained 90% burn injury on her body except her face. At that time, police had requested PW9 to record her dying declaration. Accordingly, PW9 recorded her declaration in his presence. Thereafter, patient was shifted to GMCH.
20. PW11, Smt. Pratima Bhuyan, an employee of Central Railway Hospital, Maligaon in her brief deposition stated that while she was discharging night duty on 20.03.2006, victim was brought to the hospital with 90% burn injury on her body except her face. She was given treatment in the Female Surgical Ward. While Dr. Kajal Dey (PW10) attended on her, Dr. Mukherjee (PW9) recorded her dying declaration (Ext.5) as the victim was in a position to speak. She, i.e., PW11 had put her signature on the dying declaration which she proved as Ext.5(3).
21. PW12 Shri Kumud Sharma was the Deputy Director of Forensic Science Laboratory (FSL), Assam, Kahilipara, Guwahati. He stated that on 15.05.2006, Director of FSL had received a tin container in connection with Jalukbari Police Station Case No.147/2006 containing a half burnt gamocha. Following chemical examination, he gave a negative test report (Ext.7) for common inflammable Page No.11 substance like kerosene. In his cross-examination, he stated that during examination, he did not find any proof of kerosene oil.
22. PW13 Dr. Dulal Mahanta was the doctor who had performed post-mortem examination on the dead body of Shipra Deb. He stated that dermo-epidermal burn injuries were found all over the body except face, head and pelvis, including both sides. The burn areas would cover 90% of the total body surface. He opined that death was due to shock resulting from burn injuries covering 90% of the total body surface area which were of dermo-epidermal in nature. He was not cross-examined.
23. PW15 Shri Dilip Kumar Das was a neighbour. On the fateful evening, he was in his residence. When he heard hue and cry from the house of the victim, he came out of his house and saw flames inside the house of the victim through the windowpane. He rushed to the place of occurrence and found the victim sitting under the water tap in the bathroom. He saw burn injuries on her body. According to him, victim had reported to the people gathered there that she felt someone was pouring watery substance on her body and she found her brother- in-law putting fire on her with the help of matchstick. Initially, she was taken to the Railway Hospital, Maligaon wherefrom she was shifted to GMCH. She succumbed to her injuries after 4/5 days in the GMCH. During his cross- examination, he stated that when he had come to the place of occurrence, he found accused Shyamalendu Deb along with his two sons there.
24. Smt. Anjana Bhowmik, a neighbour, deposed as PW16. She has supported the narrative of the other prosecution witnesses by stating that when she went to the residence of the victim following hue and cry, she found her in the bathroom in burnt condition. The water tap was on and she was sitting under the water tap. When she asked her as to how she caught fire, she stated that her husband Shyamalendu Deb and her brother-in-law Chandra Shekhar Deb had set her on fire. She stated that being neighbour of the victim and accused Shyamalendu, she knew that their conjugal life was not happy. There was constant fight between the couple which was basically regarding money.
24.1. In her cross-examination, she stated that she was the first person to arrive at the residence of the victim and had entered the bathroom as the Page No.12 shouting was coming from the bathroom. She stated that residence of Chandra Shekhar Deb was at a short distance which could be covered within five minutes from the house of the victim.
25. Smt. Sarmistha Bora, an Executive Magistrate, deposed as PW17. At the relevant point of time, she was posted in the office of the Deputy Commissioner, Guwahati. On 24.03.2006 at around 2.30 pm, as per verbal order of the Sub- Divisional Magistrate C.K. Bhuyan, she went to the GMCH to record the dying declaration of Shipra Deb. She had recorded her statement in the presence of Smt. Gopa Dey and Shri Tarun Dey. One doctor Dr. Debendra Kumar Jain and one police personnel Shri Angad Rajbongshi were present during recording of dying declaration. The victim was in a fit condition to give her statement. Though she could not sign because of the burn injuries, however, her thumb impression was taken. She proved the dying declaration as Ext.2. However, in her cross- examination, she stated that statement of the victim was recorded by her staff Smt. Rita Sarkar who had accompanied her to the hospital. However, she was present at the time of recording of statement of the victim and she believed that exact statement of the victim was recorded by Smt. Rita Sarkar. She also stated that she did not dictate anything to Smt. Rita Sarkar.
26. PW20 was Shri Saurav Deb, son of the victim and accused Shyamalendu Deb. At the time of deposition, he was aged about 10 years. He was administered oath and thereafter his deposition was recorded as per which his father, i.e., Shyamalendu Deb and his brother had gone to sleep. His mother had called him to study whereafter he took meal with his mother. Thereafter, she went outside. Suddenly he heard a commotion from outside and when he rushed outside, he saw his mother on fire. When he started screaming, his father got up from his bed and tried to extinguish fire by means of a gunny bag. He was also subjected to cross-examination wherein he stated that his father also went to the bathroom to pour water on his mother's body to extinguish the fire. Till that time, none of the neighbours had arrived. This deposition was recorded on 19.03.2009. Two years thereafter, i.e., on 23.02.2011, PW20 was re-examined and further cross-examined. This time, considering the tender age of the witness, oath was not administered. In his re-examination, he stated that he had made a statement before the Magistrate about setting fire on the person of his mother.
Page No.13He could not say how his mother caught fire. On further cross-examination, he stated that his earlier statement implicating his father was made on being tutored by his maternal uncle.
27. PW21, Miss Aparajita Dev, was the daughter of Chandra Shekhar Deb, accused No.2. At the time of her deposition, she was 15 years old. Yet she was administered oath. She stated that though her father and Shyamalendu were brothers, they lived in separate houses. Victim Sipra Deb was her aunt. She had set herself on fire and as a result, she died. On the fateful evening, her father was at home as he was not feeling well.
28. PW22 Smt. Mina Paul was a colleague of the victim. She repeated more or less the same narrative as her other colleagues PW7 and PW8 like embracing her by her husband, pouring of kerosene oil on her body and setting her on fire by using matchstick by her brother-in-law. In her cross-examination, she stated that there were 10/12 teachers in her group when they visited the victim in the hospital and on being asked, the victim narrated the incident before the group.
29. PW23, Smt. Mamoni Parme, was the Magistrate who had conducted inquest on the dead-body of the victim on 26.04.2006 in the GMCH in the presence of witnesses and she proved the inquest report (Ext.3).
30. Investigating Officer Shri Dhirendra Kalita deposed as PW25. He stated that at the relevant point of time, he was the in-charge of Maligaon Police Outpost under Jalukbari Police Station. On 20.03.2006 at around 10 pm, he received a telephonic message from Mahendra Sharma, resident of Sati Jaymati Nagar to the effect that Shipra Deb was set on fire by her husband and by her husband's brother by pouring kerosene oil on her. On receipt of the said information, he made an entry in the General Diary Register being General Diary Entry No.402 dated 20.03.2006 exhibited as Ext. 12. Thereafter, he proceeded to the place of occurrence after making another General Diary Entry being General Diary Entry No.403 dated 20.03.2006 (Ext.13). He reached the place of occurrence at around 10.10 pm where he found the victim lying injured with burn injuries. Accused Shyamalendu was also present at the place of occurrence and PW25 noticed burn injuries on his hand and nose. Both of them were thereafter taken to the Railway Hospital, Maligaon with the help of local people. While Page No.14 Shipra was admitted for treatment, accused Shyamalendu was released after preliminary treatment. Statement of the victim was recorded by him in the Railway Hospital. At that time, she was in a position to speak. Her statement was also recorded by Dr. Sambhu Nath Mukherjee (PW9). Ext.14 was the statement of the victim recorded by PW25. Thereafter, PW25 proceeded to the Jalukbari Police Station at about 11.30 pm where officer-in-charge of the said Police Station entrusted investigation of Jalukbari PS Case No.146/2006 to him which was registered on the basis of first information received from Shri Tarun Dey (PW4). He stated that during the intervening night of 20.03.2006 and 21.03.2006, he once again visited the crime scene at around 1 am and seized the following:-
1. One pair of blue coloured hawai chappal (one piece was half burnt),
2. One broken match box having one unused matchstick,
3. One half burnt gamocha,
4. Some ashes of burnt clothes.
He prepared sketch-map and recorded statements of the witnesses. He arrested both the accused persons. On 25.03.2006, he received a message at 8.35 pm to the effect that victim had died in the GMCH at around 7 pm. He submitted requisition before the Deputy Commissioner for deputing a Magistrate to hold inquest on the dead-body of Shipra Deb. Accordingly, on 26.03.2006, PW23 was deputed and she conducted inquest on the dead-body of the victim, Ext.3 being the inquest report. Dead-body was sent for post-mortem examination. He stated that he had sent the half burnt gamocha to the Forensic Science Laboratory (FSL), Assam for chemical examination. During the course of investigation, he had also sent witness Saurav Deb (PW20) to the Court for recording of his statement under Section 164 Cr.PC. After collecting the report of the FSL, dying declarations of the victim recorded by doctor and Executive Magistrate and the post-mortem report, he completed the investigation whereafter he submitted charge-sheet under Sections 302/34 IPC.
30.1. During his cross-examination, he stated that when he reached the place of occurrence, he found about 60/70 persons there. Accused Shyamalendu was Page No.15 at the place of occurrence. He took both the accused persons to the Police Station for interrogation whereafter they were arrested on 21.03.2006 at about 8.10 am. Dying declaration of the victim was recorded by Medical Officer on 20.03.2006 at about 10.45 pm. He also recorded statement of the victim in presence of the doctor and nurse while she was being provided treatment though he was not present at the time of recording of the dying declaration by the doctor. Informant Shri Tarun Dey (PW4) informed him over telephone on 25.03.2006 about the death of his sister Shipra at about 7 pm. PW25 also stated that Executive Magistrate and the doctor had recorded the dying declarations of Shipra whereafter he issued requisition and collected the dying declarations. PW25 was further re-examined.
31. PW26 was Md. M.H. Barbhuiyan, a Judicial Magistrate, who had recorded the statement of PW20 Saurav Deb under Section 164 Cr.PC. He stated that on 30.03.2006, he was working as Judicial Magistrate at Guwahati. He was entrusted by the Chief Judicial Magistrate to record statement of one witness Saurav Deb in connection with Jalukbari PS Case No.147/2006. He stated that witness was produced before him for recording statement under Section 164 Cr.PC whereafter he recorded the statement which he proved as Ext.20.
32. Before concluding the evidence part, it would be useful to refer to the statement of the two accused-persons under Section 313 Cr.PC. While statement of Chandra Shekhar Deb was recorded on 14.03.2011, that of Shyamalendu was recorded on 30.05.2011. When both of them were confronted with the evidence on record relating to the incident, their answer was that it was false and described the allegation against them as not true.
33. As per post-mortem report (Ext.9), the dead-body of the victim suffered from dermo-epidermal burn injuries all over the body except head, face and pelvis, including both sides. Burn areas were covered by white slough and unhealthy granulation tissues covering 90% of the total body surface area. As per opinion of the doctor, death was due to shock resulting from the burn injuries.
34. At this stage, it would be apposite to briefly advert to the dying declarations of the victim. The dying declaration made on 24.03.2006 at 2.30 pm Page No.16 at GMCH has been exhibited as Ext.2. Ext.5 is the dying declaration of the victim made on 20.03.2006 at about 11.15 pm recorded by Dr. Sambhu Nath Mukherjee, PW9, in the Central Railway Hospital, Maligaon. Ext.14 is the statement of the victim made before the Investigating Officer (PW25) in the Central Railway Hospital, Maligaon under Section 161 Cr.PC, which has been treated as dying declaration. In addition, the narration of the incident by the victim before her colleagues, notably PW7, PW8 and PW22 has also been treated as oral dying declaration.
35. Ext.20 is the statement of Saurav Deb (PW20) before the Magistrate (PW26) under Section 164 Cr.PC. This statement was recorded on 30.03.2006 though the occurrence took place on 20.03.2006. Since PW20 was 8 years of age at that point of time, he was not administered oath. However, a few general questions were put to the witness to ascertain his mental status whereafter his statement was recorded. As per this statement, occurrence took place on a Monday and on that night, his father and father's elder brother Chandra Shekhar Deb had together burnt his mother to death. His mother had cried out "save me". On hearing that, he went near her and saw his father holding his mother. At that time, father's elder brother went out of the house.
36. Before we proceed to analyse and appreciate the evidence on record, it would be apposite to briefly highlight two aspects of the matter which have relevance in the present proceeding; one is recording of evidence of a child witness and the other is evidentiary value of a dying declaration or dying declarations when there are more than one.
CHILD WITNESS ::
37. There is no specific provision in the Evidence Act, 1872 which prescribes a particular age limit for a witness to be eligible or competent to testify before the Court. However, Section 118 of the Evidence Act, 1872 is relevant and deals with who may testify before the Court. It says that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to the questions on account of tender years, extreme old age, disease, whether of body or of mind or any other cause of the same kind. As per explanation to this Section, a lunatic is Page No.17 not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
38. As per Section 4 of the Oaths Act, 1969, all witnesses, i.e., persons who may lawfully be examined or give or be required to give evidence before any Court or persons having authority to examine such witness or to receive evidence is required to subscribe to an oath or affirmation. This position is clarified in Section 5 which says that a witness, interpreter or juror may instead of making an oath, make an affirmation. However, as per proviso to Sub-Section (1) of Section 4, in a case where the witness is a child below 12 years of age and the Court or person having authority to examine such witness is of the opinion that though the witness understands the duty of speaking the truth, he does not understand the nature of oath or affirmation, then provisions of Section 4 and Section 5 shall not apply to such witness but in any such case, absence of an oath or affirmation shall neither render inadmissible any evidence given by such witness nor affect obligation of the witness to state the truth.
39. Thus, administering oath and ability to understand the duty to speak truthfully are two different aspects in so far a child witness is concerned. While Courts have been given the discretion whether to administer oath or not to a child witness below 12 years of age, to exercise such discretion Court must on an examination of the witness form an opinion that the witness not only understands the duty of speaking the truth but also understands the nature of an oath or affirmation. To form such opinion, it is therefore essential for the Court to put certain preliminary questions before the child witness which may not have any connection with the case in hand in order to assess the competency of the child witness. Competency assessing questions should not only be simple and easy to answer for the child witness but should also help the child witness to relax and feel at home.
40. In Rameswar Vs. State of Rajasthan, AIR 1952 SC 54, Supreme Court held that an omission to administer oath even to an adult witness only goes to the credibility of the witness and not to his competency. Question of competency is dealt with in Section 118 of the Evidence Act, 1872. Every witness is competent unless the Court considers otherwise on the grounds mentioned in Page No.18 Section 118. Supreme Court observed that Oaths Act does not deal with competency. Its basic object is to render the persons who give false evidence liable to prosecution. Of course, the subsidiary object is to impress upon the witness the solemnity of the occasion and the duty to speak the truth. An observation was made that it is desirable that Judges and Magistrates before recording evidence of a child witness should record their opinion that the child witness understands the duty of speaking the truth, otherwise credibility of such witness may be seriously affected. Whether the Judge or the Magistrate had really formed such opinion can be gathered from the circumstances when there is no formal certificate.
41. In Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat, (2004) 1 SCC 64, Supreme Court upheld the conviction of the appellant under Section 302 IPC relying upon the evidence of a child witness (10 years of age). Supreme Court observed that a child of tender age can be allowed to testify if he has intellectual capacity to understand the questions and give rational answers thereto. Evidence of a child witness is not required to be rejected per se but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality and reliability thereof can record conviction based thereon. After making references to two earlier decisions of Dattu Ramrao Sakhare Vs. State of Maharashtra, (1997) 5 SCC 341 and Suryanarayana Vs. State of Karnataka, (2001) 9 SCC 129, Supreme Court observed that decision on the question as to whether the child witness has sufficient intelligence to testify primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence etc.
42. In Virender Vs. State of UP, (2008) 16 SCC 582, Supreme Court observed that a child of tender age can be allowed to testify if he or she has intellectual capacity to understand the questions and give rational answers thereto. Evidence of a child witness is not required to be rejected per se but the Court as a rule of prudence, considers such evidence with close scrutiny and only on being convinced about the quality and reliability thereof can record conviction, based thereon.
Page No.1943. Finally, in Radheshyam Vs. State of Rajasthan, (2014) 5 SCC 389, Supreme Court observed that evidence of a child witness must find adequate corroboration before it is relied upon. But it is more a rule of practical wisdom than of law. Evidence of a child witness must be subjected to close scrutiny to rule out possibility of tutoring. If found reliable and truthful and corroborated by the other evidence on record, it can certainly be accepted without hesitation.
44. Having noticed the judicial pronouncements as above, it is essential that the trial Judge or Magistrate should be careful while interacting with a child witness to assess his competence to testify. For this purpose, trial Judges and Magistrates are required to be sensitised and proper training must be given to them by the State Judicial Academy. Even for an adult, visit to a Court complex or to a Court room itself could be intimidating. The Court room being controlled by the Judge can be a foreboding place and an unnerving experience. All in all, testifying in Court is not a pleasant experience. Therefore, when a child witness appears, the first and the foremost duty of the trial Judge should be to make him feel comfortable. The child must be put at ease. If necessary, evidence of a child witness may be recorded in chamber. Questions must be phrased in a language the child understands. The trial Judge should not speak in a tone of authority. An accusatory or judgmental tone should be avoided. Aggressive questioning should not be permitted. In this connection, we may consider adopting the procedure provided under the Protection of Children from Sexual Offences Act, 2012 where the child is not only a victim but is also a witness.
45. Having said that, let us examine the evidence of PW20, Shri Saurav Deb, son of the deceased and accused-appellant No.1. As noticed above, PW20 had made a statement before the Magistrate (PW26) on 30.03.2006 under Section 164 Cr.PC. At that time he was 8 years of age. Before recording this statement, a couple of questions were put to PW20 by the Magistrate whereafter statement was recorded. As per this statement, his father and father's elder brother had together burnt his mother to death on Monday. His mother had cried out to save her and on hearing that he went near her and saw his father holding his mother. At that time, father's elder brother went out of the house. The Magistrate (PW26) proved Ext.20.
Page No.2046. Even though a couple of questions were put to the child witness by the Magistrate before recording his statement under Section 164 Cr.PC, no opinion was recorded or no observation was made by the Magistrate that PW20, though of tender age, was fully capable of making a statement to that effect. Be it stated that incident had occurred on 20.03.2006 but the above statement was recorded on 30.03.2006, i.e., after 10 days. Even in his deposition, PW26 did not say that he was satisfied that PW20 had the mental competence and intellectual understanding to make a statement which could be recorded under Section 164 Cr.PC.
47. Now, let us come to the evidence of PW20 at the stage of trial. Here we find that the then trial Judge administered oath to the child witness who was then 10 years of age though as per the proviso to Section 4 of the Oaths Act, 1969, it was the discretion of the trial Judge whether to administer oath or not but only after forming an opinion that the child witness not only understands the duty of speaking the truth, but also understands the nature of an oath or affirmation. This aspect appears to have been overlooked by the trial Judge when he recorded the deposition on 19.03.2009. Deposition of PW20 has already been noted in paragraph 25 of this judgment. As noticed therein, PW20 was re- examined after two years on 23.02.2011! This time, considering his tender age, oath was not administered!! Following his re-examination, he was again subjected to cross-examination wherein he stated that after the occurrence, he took shelter in the house of Bhowmik uncle for the night. Next day his maternal uncle came to the house of Bhowmik uncle and took him before a Judge who recorded his statement on being tutored by his maternal uncle. This was repeated five days later.
48. We have already noticed the perfunctory manner in which evidence of PW20, a child witness, was recorded. Firstly, he was administered oath without putting any preliminary question to assess the competence of the child witness to testify before the Court and on re-examination after two years, neither any oath was administered nor any preliminary question was put to the child witness. He was then cross-examined.
Page No.2149. Section 137 of the Evidence Act, 1872 deals with examination-in-chief, cross-examination and re-examination. Examination of a witness subsequent to the cross-examination by a party who called him, shall be called his re- examination. As per Section 138, a witness can be re-examined after cross- examination if the party calling him so desires. Re-examination shall be directed to the explanation of matters referred to in cross-examination and if new matter by permission of the Court is introduced in re-examination, the adverse party may further cross-examine the witness upon that matter. Therefore, neither re- examination of a witness or cross-examination after re-examination is routine; re-examination is required to be directed to the explanation of matters referred to in cross-examination, that too if the party calling him so desires i.e., the prosecution in this case. Nothing of that sort happened here to justify re- examination and further cross-examination of PW20, that too after two years. Having regard to the nature of cross-examination, there was no necessity for the prosecution to have sought for re-examination of PW20, that too so belatedly. The sudden statement of PW20 in the further cross-examination that he had made the earlier statement under Section 164 Cr.PC on being tutored by his maternal uncle is quite jarring to the narrative and itself appears to be an outcome of some tutoring. This whole episode of re-examination and further cross-examination of PW20 after almost two years, that too at the instance of the prosecution seems quite unnatural.
50. Therefore, considering the manner in which evidence of PW20 was recorded, we are of the view that such evidence cannot be relied upon and it would be best to discard the same. On the other hand, Ext.20, i.e., statement of PW20 before the Magistrate recorded under Section 164 Cr.PC can be relied upon though the Magistrate could have taken a little more pain to record his opinion about the competence of PW20 in recording the said statement and could have recorded the statement in a better manner. Ext.20 though is not a substantive piece of evidence, it certainly has a corroborative value; it can be examined and taken into consideration along with the other evidence on record.
Page No.22DYING DECLARATION ::
51. Section 32(1) of the Evidence Act, 1872 deals with dying declaration. While heading of Section 32 relates to cases in which statement of relevant fact by the person who is dead or cannot be found etc is relevant, Sub-Section (1) refers to its relevancy when it relates to cause of death. It says that when a statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, such statement would be relevant notwithstanding the fact that the person who made the statement was under
expectation of death and whatever may be the nature of the proceeding in which the cause of his death comes into question.
52. In Malela Shyamsunder Vs. State of Andhra Pradesh, (2015) 2 SCC 486, Supreme Court referred to the maxim Nemo moriturus praesumitur mentire, which literally means that no one at the point of his death is presumed to lie.
53. Law relating to acceptability and reliability of a statement made by a person who is about to die, which is commonly known as dying declaration, has by now crystallised. A Constitution Bench of the Supreme Court in Laxman Vs. State of Maharashtra, (2002) 6 SCC 710, has summed up the principles governing dying declaration as under:-
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or Page No.23 prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant."
54. In Satish Chandra Vs. State of Madhya Pradesh, (2014) 6 SCC 723, Supreme Court while observing that recording of dying declaration in the form of question and answer is the more appropriate method which should generally be resorted to, however held that it does not mean that if such a statement otherwise meets all the requirements of Section 32 of the Evidence Act and is found to be worthy of credence, it is to be rejected only on the ground that it was not recorded in the form of question and answer. Simply because statement is not recorded in the form of question and answer is no reason to discard it at once, if it is otherwise found to be trustworthy and can be treated as dying declaration admissible under Section 32 of the Evidence Act.
55. In a recent decision of the Supreme Court in Ramesh Vs. State of Haryana, (2017) 1 SCC 529, Supreme Court has held that a dying declaration is an independent piece of evidence like any other evidence, neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard-and-fast rule of universal application as to what percentage of burns suffered is a determinative factor to affect the credibility of the dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making the dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement. Further, it has been emphasised by the Supreme Court that it is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a police officer, to a public servant or to a private person. It may be made before the doctor. Indeed, he would be the best person to opine about the fitness of the dying man to make the statement and to record the same where he finds that life is fast ebbing out of the dying man and there is no time to call the police or the Magistrate. Regarding recording of dying declaration by a Magistrate, Supreme Court has observed that Magistrate has no animus with the accused person; he has no axe Page No.24 to grind against the persons named in the dying declaration and ordinarily should not be disbelieved by the Court. In that case, victim was brought to the hospital with 100% burn injuries. Notwithstanding the same, doctor found her in a conscious state of mind and competent to give her statement whereafter Magistrate recorded the dying declaration when medical officer remained present. This dying declaration was accepted by the trial Court, by the High Court and finally by the Supreme Court.
56. Having discussed the above, let us now examine the dying declarations of the deceased in seriatum.
57. The first dying declaration in point of time is Ext.5. It was made by the deceased on 20.03.2006 at 11.15 pm before PW9, Dr. Sambhu Nath Mukherjee. After disclosing her name and after a query was put to her as to how she got burnt, she stated that her elder brother-in-law Chandra Shekhar Deb threw kerosene and put fire on her. It was recorded in the indoor patient case sheet and had the signatures of PW9 and 10. PW11 also signed as a witness. In his deposition, PW9 stated that deceased was treated by Dr. Kajal Dey (PW10) and at that time, police requested them to record her dying declaration. According to PW9, at that point of time, victim was in a position to speak. Accordingly, he recorded her dying declaration on the bed head ticket, which he proved as Ext.2. It was recorded at 11.15 pm. He further stated that when he asked her as to how she got burnt, she told him that her elder brother-in-law Chandra Shekhar Deb threw kerosene on her and set her on fire. Since victim was not in a position to put her signature, her signature was not obtained. On his re-examination, he stated that PW10 and PW11 Smt. Pratima Bhuyan (Matron) were present at the time of recording the dying declaration. This statement of PW9 is corroborated by PW10, Dr. Kajal Dey. According to him, patient was mentally conscious though she had sustained 90% burn injury on her body except her face. Since police requested Dr. Mukherjee (PW9) to record her dying declaration, he recorded the dying declaration of the victim. This statement was reiterated by PW9 in his re-examination and he asserted that victim was in a fit condition to speak when she made the dying declaration.
Page No.2557.1. Likewise, PW11 Smt. Pratima Bhuyan, the Matron of the hospital, stated that PW10 had attended on her. Though victim had sustained 90% burn injury on her body, she was in a position to speak. Dr. Mukherjee (PW9) had recorded her dying declaration wherein PW11 put her signature as a witness.
58. The second dying declaration of the victim was her statement recorded by the police under Section 161 Cr.PC. on 20.03.2006, Ext.14. In this statement, victim stated that at around 9.30 pm on the fateful evening, she had come out of her room to the veranda to collect clothes. At that time, her husband Shyamalendu was inside the house. As she reached the veranda, someone poured kerosene oil over her from behind. Immediately thereafter, she saw her husband's elder brother Chandra Shekhar, who was hiding in the veranda from before. Chandra Shekhar struck a matchstick and threw it upon her. Consequently, she caught fire. She went to the bathroom and tried to extinguish the fire. She suspected that Shyamalendu had poured kerosene oil over her from behind.
59. The third dying declaration, treated to be so by the learned Sessions Judge, was the oral statement made by the victim before PW7, PW8 and PW22 and her other colleagues of Assam Railway Higher Secondary School, Panbazar. As per version of PW7 Madhu Nath Mukherjee, he along with some of his colleagues visited the victim in the GMCH on the following day, which would be 21.03.2006 when they came to know that she was burnt the previous night. Though he found her badly injured, yet she was in a position to speak. When he asked her as to how she got burnt, she told him and the other colleagues that on the fateful evening at about 9 pm, she had come out of her house to the veranda to collect some clothes. Suddenly, she found her husband embracing her from behind by a wet cloth. Thereafter, she could inhale the smell of kerosene oil on her body. A moment later, somebody put her on fire and in the ensuing light, she found her brother-in-law Chandra Shekhar present there. Her husband continued to embrace her tightly and only after fire had completely engulfed her, he let her go. Then she rushed to the bathroom to pour water on her body. When she raised hue and cry, neighbours came whereafter fire was put off. The victim made such statement in the presence of all the colleagues who were there in the GMCH besides her on that day. He further stated that he knew that the victim did Page No.26 not have a happy family life and because of such problem, there was a miscarriage. She was tortured by her husband and brother-in-law for money. Because of such torture, her colleagues took her to various fora for redressal of her grievance. He also stated that a Magistrate was taken to the GMCH by the colleagues where statement of the victim was recorded. PW7 stated that at the time of recording of the statement, he was present. At this stage, we may address the submission of Mr. Dutta regarding striking off of the word 'not' from a sentence in the examination-in-chief of PW7. In our considered view, the aforesaid striking off made the sentence compatible not only with the overall evidence of the said witness but also of the other witnesses because all of them said that the victim was in a position to speak when they visited her in the GMCH. However, having said that we are also of the view that the trial Judge ought to have taken due care by putting his initial while striking off the word 'not' in which case this unseemly controversy would not have arisen.
59.1. In his cross-examination, he stated that victim made her statement in the presence of all the teachers who had gone to see her in the GMCH. Earlier they had lodged complaint before the Deputy Commissioner, Kamrup alleging torture on the victim by her husband and brother-in-law.
60. The same thing was reiterated by PW8. She stated that she along with Madhumita, Mitali, Mina and other colleagues had gone to the GMCH to see the victim and it was in their presence that she narrated the entire incident implicating the two accused persons.
61. Likewise, PW22 Smti Mina Paul, another colleague of the victim, stated the same thing. In her cross-examination, she stated that about 10/12 teachers of the School had gone to the GMCH to see the victim and before this group of 10/12 teachers, deceased made the oral statement.
62. The last of the dying declaration is Ext.2 recorded on 24.03.2006 at about 2.30 pm. It is relatively a long dying declaration running into about three pages. In this declaration, victim narrated the story of her torture at the hands of her husband and other in-laws including the brother-in-law since her marriage. She also stated about lodging of FIR against the husband before Goshala Police Outpost under Jalukbari Police Station relating to an incident of physical assault Page No.27 on her by her husband on 22.01.2005 leading to registration of a criminal case against him under Section 498A IPC. She stated that at around 10 pm of 20.03.2006, she had gone out of the house to the veranda to collect clothes spread outside for drying. At that time, her husband threw kerosene oil on her and his elder brother set her on fire. Police had recovered a matchbox with one stick from the place of occurrence. Though she had cried out after she caught fire, her husband held her back. Neighbours came and informed the police whereafter they took her to the hospital. This dying declaration was made by the victim before PW17 Smt. Sarmistha Bora, a Magistrate who signed on all the pages and she proved her signatures. This declaration was made in the presence of Dr. Devendra Kumar Jain and police personnel Angad Rajbangshi. Smt. Gopa Dey and Shri Tarun Dey, sister and brother of the victim signed as witnesses. In her deposition, PW17 stated that on 24.03.2006 at around 2.30 pm, her superior officer Shri C.K. Bhuyan instructed her to go to the GMCH for recording dying declaration of the victim. Dying declaration was recorded in the presence of two witnesses, Smt. Gopa Dey and Shri Tarun Dey, sister and brother of the deceased. One doctor, namely, Dr. Debendra Kumar Jain and one police personnel, namely, Assistant Sub-Inspector of Police Shri Angad Rajbangshi were also present when the statement was recorded. The statement was recorded by one of her staff member Smt. Rita Sarkar, who had accompanied the Magistrate to the hospital. However, PW17 was present when the statement was recorded. When the statement was recorded, victim was in a fit condition to give her statement. Though she could not put her signature, her left thumb impression was taken.
63. From a careful analysis of the dying declarations, a clear picture as to what had happened on the fateful evening emerges. Though there are discrepancies in the four dying declarations but if we look at the larger picture, it is but natural that there would be certain degree of variations. When the first two dying declarations were recorded, victim was being treated upon immediately after the incident. It goes without saying that a victim suffering from such extensive burn injury i.e., 90% would be in a traumatic state of mind, suffering excruciating pain and, therefore, it is quite but natural if some deviations are Page No.28 noticed in her statements here and there without impacting the core of her narrative.
64. The picture that emerges from a conjoint reading of the four dying declarations is that on the fateful evening between 9.30 to 10 pm, victim had gone out to the veranda of her house to collect clothes which she had spread out for drying. When she was in the veranda, husband caught hold of her and she could inhale the smell of kerosene oil. Thereafter, she was set on fire. In the ensuing light, she saw her brother-in-law. In her first dying declaration, victim mentioned about the brother-in-law having set her on fire. This was a statement made just within an hour or so after the assault on the victim. In the second dying declaration, victim again mentioned her brother-in-law as being present in the veranda and responsible for setting her on fire. She also mentioned about her husband suspecting him of having poured kerosene oil on her from behind. The third and the fourth dying declarations re-enforces the statement made in the first two dying declarations. Therefore, there is a fair degree of consistency in what the victim stated in the four dying declarations. The fourth dying declaration i.e., Ext.2 may be somewhat long and a detailed one but that by itself would not be sufficient to discard the same. It was made in the presence of the Magistrate (PW17) and a doctor and as discussed above, was consistent with the other dying declarations. Thus, the dying declarations taken cumulatively squarely points towards the culpability of the husband and the brother-in-law.
65. Moving ahead, from the evidence on record, the following undisputed facts can be safely culled out:-
(1) Victim was a teacher in the Assam Railway Higher Secondary School, Panbazar;
(2) Her married life was not at all happy. Initially, after marriage, she stayed in the joint family house along with other family members of the husband. Thereafter, husband and the victim started living separately initially in a rented house and thereafter in the house constructed by them where the incident occurred;Page No.29
(3) It has come on record that victim was subjected to frequent physical and mental torture by the husband and his family members. It was on account of demand for money. Victim had lodged FIR against the husband on the basis of which a criminal case was registered against the husband under Section 498A IPC;
(4) Victim had expressed the apprehension that if she did not withdraw the criminal case, she might be killed by her husband;
(5) The incident occurred on 20.03.2006 at around 10 pm in the house of the victim and accused-appellant No.1;
(6) Victim suffered 90% burn injuries all over her body except her face. Though she had suffered such extensive burn injuries, she was in a position to speak;
(7) Admittedly, the victim caught fire in her own residence, i.e., residence of accused-husband Shyamalendu.
(8) It is admitted by one and all that immediately after the occurrence, there were only four persons present in the house, namely, husband Shyamalendu, victim-wife Shipra and two minor sons. However, as per dying declarations of the victim, in the light of the fire, she could see her brother-in-law Chandra Shekhar present in the veranda.
66. In this case, conviction of the accused-appellants is not based solely on the dying declarations of the victim. As already noticed above, a dying declaration can be the sole basis of conviction if it is found to be truthful and reliable, which inspires the confidence of the Court. But in the instant case, dying declarations of the victim are only one of the crucial evidences to nail down the accused-appellants. The narration of facts by the victim in her dying declarations is clearly supported by the other prosecution witnesses. As already discussed, it was PW5 Shri Mahendra Sharma, a neighbour, who first informed the police about the occurrence. According to PW5, when he went inside the house immediately after the incident, he found the victim in her bathroom sitting under a water tap and pouring water on her body. She was crying due to pain. When she was asked as to how this had happened, she pointed her finger towards her Page No.30 husband and told that 'they' put her on fire. It was on his information that police swung into action. This statement of PW5 has been corroborated by the other neighbours, such as, PW1, PW2, PW3, PW15 and PW16. PW1 stated that she saw the victim engulfed by fire and running towards the house. When she went inside the house, she found the victim sitting in the bathroom under the water tap. Victim told the people who had gathered there that husband had put her on fire. Elaborating further, PW1 stated that as a neighbour for the last five years, she saw the victim being subjected to torture for money by the husband. PW2 visited the victim in the Railway Hospital on the night of 20.03.2006 when she (victim) told him that she was put on fire by the elder brother of her husband. PW2 also stated that relationship between the accused husband and the victim was not cordial and the quarrel was over money. About a month before the incident, PW2 found the victim crying outside her house saying that she would be killed by her husband. PW3 also narrated the same thing. However, she additionally stated that prior to the incident, victim had visited her house and told her that for the last six months she was threatened by the accused persons and she feared that she would be killed. This is corroborated by the evidence of PW15 and PW16. All these witnesses are independent witnesses and they had reached the crime scene within minutes of the occurrence. Therefore, there is no reason to disbelieve their testimony. Coupled with the evidence of the prosecution witnesses as above is Ext.20, statement of Shri Saurav Deb, son of the accused-appellant Shyamalendu and deceased Shipra recorded under Section 164 Cr.PC. This statement clearly corroborates the prosecution narrative which has come on record and which is further bolstered by the dying declarations of the victim as above. PW20 stated in Ext.20 that when his father was holding back his mother, father's elder brother went out of the house. As per evidence of PW16, residence of elder brother was at a short distance which could be covered in five minutes.
67. It is true that there are certain contradictions and inconsistencies in the prosecution narrative but such contradictions and inconsistencies only points towards inadequacy of the investigation and does not cast any cloud over the truthfulness of the prosecution narrative. As a matter of fact, there is bound to be some omission and inconsistencies in the evidence of the prosecution Page No.31 witnesses; as the Supreme Court has said in Kishan Narain (supra), a witness is not like a tape-recorder. Certain amount of allowance or elbow space has to be given to the witnesses. That apart, the offence had taken place inside the house of the accused-appellant Shyamalendu, who was present inside the house when the incident occurred. In such circumstances, refusal of the accused-appellant to speak out and say as to how victim caught fire may lead to adverse inference regarding culpability of the said accused-appellant. In their examination under Section 313 Cr.PC, they did not explain as to how the victim caught fire leading to her death.
68. In the case of Trimukh Maroti Kirkan (supra), Supreme Court held that where an offence like murder is committed in secrecy inside a house, though initial burden to establish the charge would undoubtedly be upon the prosecution, the nature and amount of evidence to be laid by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act, there is a corresponding burden on the inmates of the house to furnish a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation. Elaborating further, Supreme Court held that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. In the instant case, there were four inmates of the house - the victim, the accused husband and the two minor sons. The entire evidence on record unmistakably points to the culpability of the husband and he cannot get away by keeping quiet.
69. Thus, on a totality of the evidence on record, we are firmly of the view that despite certain inadequacies of investigation, the picture that emerges is that culpability of the accused appellants in the commission of the offence is firmly established. Thus, prosecution has been able to prove its case against the two accused-appellants beyond all reasonable doubt. Consequently, conviction and sentence of the accused appellants is affirmed. Resultantly, we find no merit in this appeal, which is accordingly dismissed. Bail granted to the appellants on Page No.32 24.01.2013 stands cancelled. Appellants to surrender before the learned Sessions Judge, Kamrup (M), Guwahati immediately to serve out the sentence.
70. Before parting with the record, we feel that the two sons of the deceased, who were minors at the time of occurrence, may be considered for victim compensation as per the scheme prepared by the State Government under Section 357A Cr.PC. The amount notified as per the said scheme in case of death may be released to the two sons on proper identification by the Member- Secretary, Assam State Legal Services Authority expeditiously, preferably within three months. This order may be brought to the notice of the Member-Secretary, Assam State Legal Services Authority.
71. Registry to send down the LCR forthwith.
JUDGE JUDGE
ndutta
15517
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