Calcutta High Court (Appellete Side)
Anowar Hossain vs The State Of West Bengal on 10 January, 2025
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Appellate Side
Present:
The Hon'ble Justice Rajasekhar Mantha
And
The Hon'ble Justice Ajay Kumar Gupta
C.R.A. 404 of 2016
Anowar Hossain
Versus
The State of West Bengal
For the Appellant : Mr. Sabir Ahmed, Adv.
Mr. Tasnim Ahmed, Adv.
Mr. Dhiman Banerjee, Adv.
Mr. Quazi Ezaz Ahmed, Adv.
For the State : Mr. Partha Pratim Das, Adv.
Ms. Manasi Roy, Adv.
Heard on : 17.12.2024
Judgment on : 10.01.2025
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Ajay Kumar Gupta, J:
1. The appellant has assailed the judgment and order dated
15.04.2016 and 18.04.2016 passed by the Learned Additional
Sessions Judge at Dinhata, District - Cooch Behar in Sessions Trial
No. 04(05)/2015 arising out of Sessions Case No. 6(D)/2015 thereby
convicted the appellant for commission of the offence punishable
under Section 302 of the Indian Penal Code, 1860 and sentencing
him to suffer rigorous imprisonment for life and to pay a fine of Rs.
5,000/-, in default, to suffer simple imprisonment for two months.
2. The prosecution case against the appellant is that Rehena
Parvin was married to Anowar Hossain, S/o Dablu Mia as per Shariat
law on 3rd Aswin, 1419 B.S. As per demand of the groom's family, a
sum of Rs. 50,000/- in cash, one Pulser motor cycle, gold ornaments,
a cot, an almirah, a dressing table and a rack were given as the
dowry. After marriage, she went to her in-law's house and led
conjugal life.
3. Her husband allegedly being ill-advised by his parents
started torturing her physically and mentally. He demanded that she
brings a further sum of Rupees one lakh from her father. Rehena
used to report the incident of torture to her father over telephone. In
3
the hope of leading peaceful conjugal life, she tolerated the torture.
The appellant's parents started to live in Siliguri, away from the son
and daughter-in-law.
4. It was alleged that on 04.09.2013 at about 7 o'clock in the
morning, her husband being instigated by his parents over telephone
assaulted Rehena physically and thereafter poured kerosene on her
and set her on fire. A neighbour informed her father over telephone.
Her father, with the help of the neighbours, admitted her in MJN
hospital, Cooch Behar with serious burn injuries. She was later
shifted to Jeeban Deep Nursing Home, Cooch Behar, where she died.
5. On 05.09.2013, Ruhul Amin lodged a written complaint
regarding the incident which resulted in registration of an FIR being
Dinhata P.S. Case No. 1102/2013 dated 05.09.2013 under Sections
498A/326/307 of the Indian Penal Code, 1860 initially against the
husband and the parents-in-law.
6. Following the death of the victim, a change under Section
302 of the IPC was added to the FIR. On completion of investigation,
the Charge Sheet has been filed against all the three accused named
in the FIR for the offence under Sections 498A of the IPC and
4
additionally, the offence u/s 302 of the IPC only against the accused
Anowar Hossain.
7. In course of trial, charge for the offence u/s 498A of the IPC
was framed against all the three accused person and additional
charge was framed for the offence under Section 302 of the IPC only
against the accused Anowar Hossain and contents of respective
charges were read over and explained to the respective accused to
which each of them pleaded not guilty and claimed to be tried and
accordingly, they were put to trial.
8. To establish the case, the prosecution examined as many as
23 witnesses and the documents produced were marked exhibits 1 to
15 for the prosecution and the materials produced were marked Mat
Exhibits I to II/8. During examination of the witnesses, the
prosecution declared P.W.5, 6, 7, 8 and 10 as hostile witnesses.
9. Defence led no evidence. Based on the trend of cross-
examination of the prosecution witnesses and examination of the
accused under Section 313 of the Cr.PC, the defence appears to be
that the victim, while cooking, accidentally caught fire from the gas
oven. At the time of accident, her husband had been in his motor
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vehicle repair shop at Petla Bazar away from the house and her
parents-in-law had been at Siliguri. The defence claims that the
accused has been falsely implicated into the case.
10. The Learned Trial Court, after considering the oral and
documentary evidence presented by the prosecution, concluded that
the appellant was the assailant and declared him as convict and
sentenced him as aforesaid under Section 302 of the Indian Penal
Code. However, no sufficient evidence found against any of the
accused person for an offence punishable under Section 498A of the
Indian Penal Code.
11. Heard the arguments and submissions of the rival parties
and on perusal of the materials available on record, it appears the
P.W. 1, the father of the victim is the complainant. He stated that his
daughter, Rehena Parvin was married to Anowar Hossain as per
Shariat law about three years ago. At the time of marriage, dowry
consisting of a sum of Rs. 50,000/- in cash, one Pulser motor-cycle,
furniture - cot, almirah, dressing table and golden ornaments were
given. After the marriage, victim went to her in-law's house and about
three months after marriage, her parents-in-law began to torture her.
Her husband also started physically assaulting her. They started
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torture upon her as they failed to give the balance dowry that is some
ornaments. About four months after the marriage, they drove her out
from the matrimonial home. His daughter waited outside the
matrimonial home and lastly her mother-in-law let her enter the
house. She informed such incident to her father over telephone and
she also mentioned that her husband demanded an additional sum of
Rs. 1 lakh instead of the remaining ornaments. He was unable to pay
the sum of Rs. 1 Lakh as demanded by his son-in-law. About one
year after her marriage, his daughter suffered burn injury at her in-
law's house. In the morning, a woman made a telephonic call and
informed him that his daughter had caught fire. They set out for the
hospital. At Ghughumari, they came across the ambulance carrying
his daughter. Two male and two female persons accompanied her.
She was admitted in MJN hospital, Cooch Behar.
12. P.W. 1 further deposed his daughter told him on the way to
MJN Hospital that in the morning, his daughter and his son-in-law
had altercation and his son-in-law assaulted his daughter. His son-
in-law asked his daughter to bring money. While his daughter was
having meal in the morning, his son-in-law abused her with filthy
languages. She could not finish her meal and went inside the room.
His son-in-law followed her and poured kerosene on her and set her
7
on fire. As per his instruction, one Mojaffar Hossain (P.W. 21), a law
clerk, scribed the written complaint. He proved the FIR marked as
Exhibit 1. However, the P.W.1 admitted during cross examination
that her parents-in-law were staying outside at Siliguri.
13. P.W. 2, Amina Bibi is the mother of the deceased. She
corroborated the evidence of P.W. 1 and stated in the same fashion.
She further stated in the morning while her daughter while having
her meal her son-in-law dragged her inside the room and assaulted
her with a 'Batam' (wooden log) and then poured kerosene on her and
set her on fire. She further corroborated that they met her on the way
to hospital and got her daughter admitted in Cooch Bihar hospital.
The Doctor in the hospital advised them to shift the patient to
Siliguri. Her dauther also asked them to get her admitted in the
nursing home. Her daughter said that she was assaulted physically
by son-in-law and set on fire.
14. P.W. 3, Sahera Bibi is a next-door neighbour of the P.W. 1
Rahul Amin. She deposed that her parents-in-law abetted her
husband to harass and torture Rehena. She further deposed when
Rehana came to her parents after her marriage, she visited her and
stated that on the demand of balance amount of dowry her parents-
8
in-law tortured her. She also revealed that her parents-in-law asked
her husband to pressurise her to bring a sum of Rs. One lakh from
her parents. On the date of incident, one neighbour of the appellant
informed the father of Rehena that his daughter had caught fire and
asked to go there. She accompanied Ruhul Amin to hospital. At
Ghughumari they came across the car carrying Rehena in the
hospital. She boarded the car and consoled Rehena that she would
recover. In the hospital She stated her that her husband poured
kerosene oil on her and set her on fire. She further stated that as
requested by Rehena, her father shifted her to Jeeban Deep Nursing
Home, Cooch Behar, where she died in the next morning.
15. P.W. 4, another neighbour, deposed as similar as P.W. 3 and
further stated that her husband assaulted her physically and poured
kerosene on her and set her on fire. When she visited to her at Cooch
Behar hospital, she stated that her husband assaulted her and
poured kerosene on her and set her on fire.
16. P.W.14 conducted the inquest over the dead body of Rehene
Parvin, aged about 18 years. He proved the inquest report as Exhibit
no. 3.
9
17. P.W. 15 proved his signature appearing in the seizure list by
which a saree was seized on 08.09.2013. He also identified the Saree
as Mat Exhibit No. I.
18. P.W. 16, friend of victim Rehena Bibi, stated after marriage
she had visited her parents' house. She met her. Victim had told her
that her parents-in-law and husband used to torture her. Her
husband was very greedy. He had asked her to bring a sum of Rs.
1,00,000/= from her parents. On getting the news, she went to
Jeeban Deep Nursing Home at Cooch Behar to see her. Where she
narrated her husband poured kerosene on her and set her on fire.
19. P.W. 18 conducted the ossification test of the dead body on
08.09.2013 and confirmed she died due to burn injury. The victim
was brought and identified by the Constable No. 185, N.S. Bhutia of
Kotwali P.S. On examination he found the following Injuries:
1) First and Second degree burn injury over the
whole face and neck all around with burning of eye
brows, eye lashes, and hair--anterior hair line of
scalp,
2) First and Second degree burn injury over both
shoulder region, whole of anterior chest wall and
10
abdominal wall up to the level of umbilicus and the
left half of back,
3) Similar burn injury involved in both arms and
forearms 2" above the wrist joint both sides, both
palms, and dorsum of both hands, the other half of
back and lower limbs are spared. No other external
injury was seen.
20. P.W. 20, Constable No. 185 had carried the dead body of
Rehena Parvin from Jeeban Deep Nursing Home to MJN Hospital,
Cooch Behar for Post Mortem on the strength of dead-body challan.
He proved his signature appearing on the dead body challan and
seizure list prepared after completion of Post Mortem.
21. P.W. 21 is the scribe, who proved his hand writing and
signature of the complainant appearing on the written complaint.
22. P.W. 17, Doctor who recorded dying declaration of the
patient, Rehena Parvin aged about 18 years in presence of two staff
Nurses of the hospital, Dipti Roy (P.W. 22) and Saroj Sukla (P.W. 12).
He proved dying declaration marked as Exhibit 8 and his signature.
He further clarified during the examination that due to burn injury
11
she could not sign or put her thumb impression on the statement
recorded by him on 06.09.2013.
23. Both P.Ws. 12 and 22 were attending nurses have
corroborated the statement of the Doctor, who recorded dying
declaration. Both of them also narrated that on 06.09.2013, Dr.
Saumyajit Sinha (P.W. 17) recorded dying declaration of the patient
Rehena Parvin in their presence. The Doctor recorded the statement
as per version of the patient. They put their signature as witnesses on
the said dying declaration. They proved their signature as Exhibit 2/1
and 2/2. P.W.22 specifically narrated the version of patient that her
husband poured kerosene on her and set her on fire.
24. Mr. Ahmed, learned counsel appearing on behalf of the
appellant vehemently argued and submitted that from the cross-
examination of PWs, it reveals at the time of incident or even prior to
the incident, her parents-in-law were at Siliguri. Prosecution has
miserably failed to establish the specific role of the parents-in-law as
to how, when and by which means, the parents -in- law have abetted
the Appellant to torture upon the victim from Siliguri. It is admitted
fact that they were staying at Siliguri so, question of instigation or
abetment to his son does not arise. They never demanded any dowry
12
or instigated or tortured the victim. Moreover, the convict, Anowar
Hossain was also not present at the house at the time of incident
occurred in the morning time at 7 o'clock. Actually, she caught fire
from the gas oven while she was cooking food.
25. Prosecution witnesses i.e. P.W. 5, Sabjan Bibi and P.W. 6,
Nasiran Bibi, both neighbours of the appellant narrated the actual
incident. During their examination, both of them stated Rehena was
cooking food and caught fire from the gas oven. When she caught fire
from the Gas oven, she came out from the house and jumped into the
adjacent watery paddy field to save herself. Mampi Bibi (PW.8) and
Marjina Bibi (P.W.7) other witnesses rescued her from the watery
paddy field.
26. It was further submitted that the P.W. 5 further stated
during examination in chief that appellant, Anowar Hossain went to
garage in the morning. Other witnesses, i.e. Marjina Bibi (P.W. 7) and
Mampi Bibi (P.W. 8) also supported the evidence of P.W. 5 and P.W. 6
by saying that while cooking, victim caught fire at her in-laws house
from the gas oven. P.W. 8 also stated during cross-examination by
the defence that the appellant used to leave for his garage at 6'o clock
in the morning and he returned home at 1 pm and again he leaves
13
home for the garage at about 2/2.30 hrs in the afternoon. While
rescuing her, she did not get any smell of kerosene emanating from
her body. Therefore, the entire case made out by the prosecution is
false and fabricated only to implicate the appellant as well as his
parents.
27. Learned counsel further submitted that the dying declaration
recorded by the Doctor is incoherent. Such dying declaration is not
reliable because it was simply recorded that:-
"As per the patient she was set on fire with
kerosene by her husband Anowar Hossain at
their residence. She was admitted in MJN
Hospital on 4/9/13 at 9-45 AM."
28. No specific role attributed by the patient against the
husband while other witnesses deposed some other factual aspects
prior to alleged burning. There was no certificate of the Doctor with
regard to the condition of patient or whether she was in fit mental
condition at the time of recording dying declaration. Furthermore,
second dying declaration recorded by the Police officer after one day
is full of contradictions and exaggeration. It was carefully drafted in
details to cover up the lacunae of previous alleged dying declaration.
In the second dying declaration it was stated that the victim was
14
unconscious after jumping into the paddy field and when she gained
her consciousness, she found herself in hospital. Therefore, narration
about the incident by her to the parents and neighbour on the way to
hospital is false and fabricated. Inconsistency and contradictory or
exaggeration are full of suspicious and it should not be acted upon
without corroborative evidence. Learned counsel has placed reliance
of three Judgments passed in the case of Rasheed Beg Vs. State Of
M.P.1, Lakhan Vs. State of M.P.2 and Ram Manorath Vs. State of
U.P.3 to support his contention that a dying declaration which suffers
from infirmity cannot be formed the basis of conviction and it should
not be acted upon without corroboration.
29. It was further submitted that declarant was not conscious
and state of fit mental condition. It can be ascertained from the
treatment sheet being exhibit no.6 that various seductive injections
were administered to her in the hospital. Prosecution has failed to
establish any evidence that she was full of conscious and not under
control of seductive medicines. Not bringing any Magistrate while
alleged recording dying declaration is another doubtful circumstance
1
(1974) 4 SCC 264;
2
(2010) 8 SCC 514;
3
(1981) 2 SCC 654;
15
when there was sufficient opportunity as such only on such doubtful
dying declaration is not safe for conviction.
30. Finally, the Learned counsel submitted that the Learned
Session judge did not put any question regarding alleged vital
incriminating alleged multiple dying declarations during examination
of the accused under Section 313 of the CrPC thus accused is highly
prejudice of getting no opportunity to explain his view. Therefore, only
on such score conviction is liable to be set aside. The evidence of
prosecution witnesses is full of inconsistency and not corroborative,
so their evidences cannot be relied upon. Sufficient discrepancies are
available on the face of record as such conviction is liable to be set
aside.
He has placed reliance of a judgment passed in the case of
Indrakunwar Vs. The State of Chhattisgarh4 to bolster his
aforesaid contention.
31. On the contrary, the learned counsel appearing on behalf of
the State countered the argument of learned counsel appearing on
behalf of the appellant and submitted that all the four witnesses i.e.
4
2023 INSC 934: 2023 SCC Online SC 1364.
16
P.Ws. 5, 6, 7 and 8 were declared hostile by the prosecution. All the
four witnesses turned hostile accordingly their evidence is unreliable.
From the evidence of P.W. 10, Dipankar Roy, who was the ambulance
driver, though he was declared hostile, during cross-examination by
the prosecution admits he got smell of kerosene in the Ambulance.
32. Learned counsel appearing on behalf of the State further
drew our attention to the dying declaration recorded by the Dr.
Saumyajit Sinha (P.W. 17). He recorded the dying declaration on
06.09.2013. It reveals she was set on fire by pouring kerosene oil by
her husband Anowar Hossain at their residence. Victim was admitted
in MJN hospital on 04.09.2013. The victim herself stated that her
husband set her on fire at her residence. She was conscious while
recording her dying declaration. Victim had also stated the similar
facts to her parents and P.W.3, who accompanied the victim on the
way to hospital in the ambulance. The person who is about to die
always speaks the truth. Not only that the independent witness i.e.
Doctor but also two nursing staffs of the hospital corroborated about
the contents of dying declaration of the deceased. There is no
suspicious circumstance with regards to the dying declaration. In
course of examination and cross-examination, Doctor has clarified
about the health of patient. Prosecution has able to prove the case in
17
positive without any reasonable doubt. Therefore, the Learned Trial
Judge rightly convicted the appellant under Section 302. He also
needs to be punished under Section 498A of the Indian Penal Code,
1860. Since, the reason for her set on fire was in the event when she
failed to fulfil demand as demanded by the appellant and in-laws of
the victim.
33. Giving the anxious thought over the arguments made by the
rival parties and upon perusal of the record, we find the appellant
admitted during his examination under Section 313 of the CrPC that
Rehena Parvin was married with him as per law of Shariat and after
her marriage, Rehena went to matrimonial home and led conjugal
life. However, he denied regarding payment of sum of Rs. 50,000/- in
cash, one Pulser motorcycle, golden ornaments, furniture - cot,
almirah and dressing table. He further pleaded he had been in the
market on the date of the incident in his shop at Petla Bazar. He
admitted the victim died due to burn injuries.
34. Now, question arises here how she caught fire on the date of
incident? It is admitted fact that the victim caught fire in her
matrimonial home. She was in sari. On the date of incident, it
reveals from the evidence of the P.W. 1 that the victim's parents-in-
18
law were staying in Siliguri. So, in the matrimonial home, only two
persons were residing. The defence case is that the appellant was not
present at the time of incident at his residence. He went to his garage
at Petla Bazar. As per narration of P.Ws. 5, 6, 7 and 8, it reveals the
entire incident is different. As per their version, Rehena was cooking.
Suddenly, her silk sari, as she was wearing at the time of incident,
caught fire from the gas oven and she shouted for help fire and fire
and jumped into the adjacent watery paddy field. Mampi Bibi and
Marjina Bibi took her out from the said watery paddy field. Jakir
Hossain, the next-door neighbour, informed her father. P.Ws. 7 and 8
also supported the version of P.Ws. 5 and 6. During cross-
examination by the defence, P.W. 8 admitted while rescuing her from
watery paddy field, she did not get any smell of kerosene emanating
from her body.
35. P.W. 11, Rohini Kanta Barman was a fireman. He deposed
that in the morning after 8 AM, they got a fire call from a place to the
west of Petla. They went there and found the patient had been carried
away by an ambulance. They went inside the house and reported that
fire broke out from cooking gas cylinder but they could not detect it
and found the regulator of the gas cylinder was off. They did not find
any trace of the fire elsewhere. During cross-examination, he admits
19
the persons gathered there stated that while cooking she caught fire
from the gas oven. They did not find any kerosene container near the
gas oven. He further admits he did not get any smell of kerosene near
the gas oven.
36. P.W. 13, a fire operator deposed in his evidence that on
04.09.2013 at about 8.05 o'clock in the morning they received a fire
call from Petla. When they reached the place of occurrence, the victim
had been removed by an ambulance. They checked the LPG Cylinder
and found it all right. They further found the regulator was turned
off. They did not find smell of LPG. They found a plate with some
boiled potatoes and a 'handi' (cooking rice pot) with boiled rice on the
floor. Finally, they returned after inspection.
37. Even the P.W.23 investigation officer admits during cross
examination that he inspected the entire house of Anowar Hossain.
He further admits in the case diary there is no entry noting smell of
kerosene in the house of accused during his visit. He also did not
seize any container with smell of kerosene or with kerosene from the
house of the accused. He did not contact any executive Magistrate or
doctor for recording dying declaration of the victim.
20
38. From careful perusal of the evidence of witnesses, it appears
there were no eye witnesses of the incident. Most of the witnesses are
post occurrence witnesses i.e. family members, neighbours and
friend. From their versions, two different histories found regarding
the fire incident. Firstly, she caught fire while cooking from the gas
oven and Secondly, her husband assaulted and poured kerosene oil
on her and set her on fire. Upon meticulously perusal of entire
evidence and documents produced by the prosecution, we find
prosecution has failed to prove with reliable evidence that her
husband assaulted and poured kerosene oil on her and set her on fire
and creates doubt on the following reasons: -
1. No. container/drum of kerosene oil recovered from the
place of occurrence.
2. No smell of kerosene oil found in the room or any place
of matrimonial house by the vital independent
witnesses i.e. fire service men, Investigating officer or
neighbours, who rescued her from the adjacent paddy
field.
3. No remanent of the Kerosene oil found in the place of
occurrence.
4. No specific history of incident reported initially either
at the time of admission in the emergency department
21
of the MJN Hospital, Cooch Behar though the claim of
the family members are that she had stated about the
incident to them while they were accompanied her to
hospital in the Ambulance.
5. Admission sheet marked as exhibit 6 indicates flame
burn 70%. No other history recorded at the time of
admission or thereafter.
6. Bed head ticket marked as Exhibit 7 is also blank in
the column 'How injury occurred'
7. It is further appearing from the clinical notes dated 4th
September as 40% burn. Pt. does not give any specific
history. She was disoriented and in pain.
8. Referral Card (Exbt.8) indicates the percentage of burn
as 45%.
9. P.M report shows death was due to shock due to burn
injury. However, there was no external injuries found
on the body though mother of victim deposed she was
assaulted with 'Batam' (wooden log) and dragged into
the room and poured kerosene oil and set on her fire.
10. No Batam recovered or seized by the Investigation
officer.
22
39. Now, this Court considers how far the evidence of P.Ws. 5, 6,
7, 8 and 10 can be relied upon. P.Ws. 5, 6 7, 8 and 10 were declared
hostile. Whereas P.W. 11 was not declared hostile even he partly
demolished the case of the prosecution.
40. From the evidence of P.W. 23, the Investigating Officer, it
appears the statements recorded under Section 161 of the CrPC of
the witnesses nos. 5, 6, 7 and 8 were confronted and found the P.W.
5 did not state that in the morning, Anowar Hossain left the house for
his garage. She did not state that when Rehena was cooking, she
caught fire in her silken saree suddenly from the gas oven. However,
she stated that in the morning, there was altercation between Anowar
Hossain and Rehena and she heard it from her house.
41. In addition, P.W. 6 also stated in her statement under
Section 161 of the CrPC that in the morning, she heard appellant was
quarrelling with his wife Rehena from his house. She did not state
that while cooking, Rehena caught fire from gas oven.
42. The P.W. 7 stated that while rescuing Rehena from watery
paddy field, they got the smell of kerosene from the body of Rehena.
23
She did not state that while cooking, Rehena caught fire from the gas
oven.
43. P.W. 8 also did not state while recording statement under
Section 161 of CrPC by the Investigation officer that while cooking,
Rehena caught fire from the gas oven. Therefore, the version of all the
witnesses was different in the court dock from their statements before
the police. P.Ws. 11, 13 and 23, the three, fire service men and
Investigating Officer found the LPG cylinder was off and in order at
the place where it was installed. Therefore, evidence of hostile
witnesses cannot be wholly reliable from the trend of their versions
though it is settled law that even evidence of hostile witness has
evidentiary value on following situations: -
i) It is difficult to overlook the evidence of a witness who
has been declared hostile and when his testimony is not
shaken on material points in the cross examination, there
is no ground to reject his testimony in toto;
ii) Hostile witness is not necessarily a false witness.
Granting of permission to cross examination his own
witness does not amount to adjudication by the court as
to the veracity of a witness. It only means a declaration
24
that the witness is adverse or unfriendly to the party
calling him and not that the witness is untruthful;
iii) If some portion of the statement of the hostile witness
inspires confidence it can be relied upon and the witness
cannot be termed as wholly unreliable;
iv) If some portion of the statement of the hostile witness
inspires confidence, it can be relied upon. He cannot be
thrown out as wholly unreliable.
v) In case of hostile witnesses, portion of the evidence of
hostile witnesses, which is consistent with the
prosecution or defence case can be accepted
44. In the present case in hand, the P.W. 17, Doctor Saumyajit
Sinha recorded the dying declaration in presence of the witnesses,
namely, Dipti Roy (P.W. 22) staff nurse and Saroj Sukla (P.W. 12),
staff of the Hospital. They were posted at Female Surgical Ward (Burn
Unit) at MJN Hospital on 06.09.2013. Both P.W. 12 and P.W. 22
corroborated that on that day, Dr. Saumyajit Sinha recorded dying
declaration of patient Rehena Parvin in their presence (Exbt. 2). The
Doctor recorded the statement as per version of patient and they put
signatures on the said dying declaration as witnesses. They also
25
proved their signatures appearing in the dying declaration marked as
Exhibits 2/1 and 2/2.
The statement of the patient recorded by P.W.17 is set out herein
below:
"Dying Declaration
Pt : Rehena Parvin
18 yrs F/M.
W/O Anowar Hossain
Address Petla, P.S. Dinhata, Coochbehar
As per the pt she was set on fire with
kerosene by her husband Anowar Hossain at
their residence. She was admitted in MJN
Hospital on 4/9/13 at 9-45 AM.
Dated 6/9/13.
Coochbehar
at 7-00 PM. Signature
DR SAUMYAJIT SINHA
S/N Dipti Roy Reg 36398
S/N Sanjay Sukla Medical Officer (Surgeon)
M.J.N. Hospital, Cooch Behar"
26
45. The P.W. 22 also stated in her evidence that the patient
stated that her husband poured kerosene and set on her fire and she
further stated that Saroj Sukla, another staff, was also present at the
time of recording of dying declaration of the victim. P.W. 22 stated in
her cross-examination that in the Burn Unit, patient party do not
allow to enter even at the time of visiting hour.
46. On the next date i.e. on 07.09.2013 the police officer also
recorded statement/dying declaration of the patient as under: -
"On being interrogated by you I state
that it is about one year since I have got
married. In the marriage my father gave many
things to me and my husband and thus my
father gave in the marriage socially as per
Muslim Sariot. The gold ornaments of my hand,
ear, and neck were not given. Those things were
due. Even today my father has not been able to
provide those things. At present my husband
needs money for business. So, very often my
parents-in-law would tell my husband, "ask your
wife to go to her father and bring Rs one lakh
approximately from his father. and thus enlarge
your business and run it well. They should not
give gold. A sum of Rs one lakh is enough". My
27
husband too as per the version of his parents
would ask me to bring money. Since after few
days of my marriage we continued strained
relation. Day by day it turned into a quarrel and
and ultimately it turned into an assault. Very
often my husband assaulted me. He did not take
care of me. He did not ask me whether I took my
meal or whether my health was good. By this
time about one month has been elapsed since my
parents -in-law left us for Siliguri. They told us
that from now on they would live in Siliguri.
There they would lead their life by running
business. Myself and my husband were present
at home. In that morning I was cooking by fuel.
He finished his meal. I sat to take my meal. He
started talking about money while I was eating.
Out of grudge being half fed I left my meal and
came to living room from the kitchen. We were
quarrelling. From quarrel it turned into assault.
At last catching hold of me he fastened my
hands and then poured kerosene on my body out
of a drum. None came at my cry. When I was set
ablaze, he freed me. I came outside running. I do
not know what happened later on. When I came
to my sense, I found myself here. On the day of
occurrence my parents -in -law were not present
at home. But they talked to my husband over
telephone to kill me. The wife is rude. My father-
28
in-law was Dalbu Mia and my mother-in- law
was Anowara Bibi."
47. Now, another question arises before this court whether
multiple dying declarations of the victim would be sufficient for
conviction. Before proceeding to the merits of this matter, it would be
appropriate to appreciate the various principles as laid down by the
Hon'ble Supreme Court with regard to cases involving multiple dying
declarations.
48. In Kamla v. State of Punjab [(1993) 1 SCC 1 (2-Judge
Bench)] has held:
"5. It is well settled that dying declaration can form
the sole basis of conviction provided that it is free
from infirmities and satisfies various tests
(vide KhushalRao v. State of Bombay [AIR 1958 SC
22: 1958 SCR 552: 1958 Cri LJ 106]). The ratio laid
down in this case has been referred to in a number of
subsequent cases with approval. It is also settled in
all those cases that the statement should be
consistent throughout if the deceased had several
opportunities of making such dying declarations, that
is to say, if there are more than one dying
declaration, they should be consistent. If a dying
29
declaration is found to be voluntary, reliable and
made in fit mental condition, it can be relied upon
without even any corroboration. In a case where there
are more than one dying declaration if some
inconsistencies are noticed between one and the
other, the court has to examine the nature of the
inconsistencies namely whether they are material or
not. In scrutinising the contents of various dying
declarations, in such a situation, the court has to
examine the same in the light of the various
surrounding facts and circumstances."
49. In State of Punjab v. Parveen Kumar {(2005) 9 SCC 769
(2 JUDGE BENCH)} the Hon'ble court further observed:
"10. .... The court must be satisfied that the dying
declaration is truthful. If there are two dying
declarations giving two different versions, a serious
doubt is created about the truthfulness of the dying
declarations. It may be that if there was any other
reliable evidence on record, this court could have
considered such corroborative evidence to test the
truthfulness of the dying declarations..."
50. In Amol Singh v. State of M.P. {(2008) 5 SCC 468 (2-
JUDGE BENCH)} the Hon'ble court has held:
30
"13. ... However, if some inconsistencies are noticed
between one dying declaration and the other, the
court has to examine the nature of the
inconsistencies, namely, whether they are material or
not. While scrutinising the contents of various dying
declarations, in such a situation, the court has to
examine the same in the light of the various
surrounding facts and circumstances."
51. Faced with multiple dying declarations, the Hon'ble Court
in Lakhan v. State of M.P. {(2010) 8 SCC 514 (2-JUDGE BENCH)}
observed-
"21. ... In case there are multiple dying declarations
and there are inconsistencies between them,
generally, the dying declaration recorded by the
higher officer like a Magistrate can be relied upon,
provided that there is no circumstance giving rise to
any suspicion about its truthfulness. In case there are
circumstances wherein the declaration had been
made, not voluntarily and even otherwise, it is not
supported by the other evidence, the court has to
scrutinise the facts of an individual case very
carefully and take a decision as to which of the
declarations is worth reliance."
31
This judgment was also referred to by the Hon'ble Court in Makhan
Singh v. State of Haryana {(2022) SCC ONLINE SC 1019 (2-
JUDGE BENCH)}
52. In Ashabai v. State of Maharashtra, {(2013) 2 SCC 224
2- JUDGE BENCH)} the Hon'ble court observed: --
"15. When there are multiple dying declarations, each
dying declaration has to be separately assessed and
evaluated and assessed independently on its own
merit as to its evidentiary value and one cannot be
rejected because of certain variations in the other."
53. In Jagbir Singh v. State (NCT of Delhi), {(2019) 8 SCC
779 (2- JUDGE BENCH)} the following principles were observed by
the Hon'ble court:
31. A survey of the decisions would show that the
principles of declarations can be culled out as follows:
....
31.6. However, there may be cases where there are more than one dying declaration. If there are more than one dying declaration, the dying declarations may entirely agree with one another. There may be dying declarations where inconsistencies between the 32 declarations emerge. The extent of the inconsistencies would then have to be considered by the court. The inconsistencies may turn out to be reconcilable. 31.7. In such cases, where the inconsistencies go to some matter of detail or description but is incriminatory in nature as far as the Accused is concerned, the court would look to the material on record to conclude as to which dying declaration is to be relied on unless it be shown that they are unreliable;
31.8. The third category of cases is that where there are more than one dying declaration and inconsistencies between the declarations are absolute and the dying declarations are irreconcilable being repugnant to one another. In a dying declaration, the Accused may not be blamed at all and the cause of death may be placed at the doorstep of an unfortunate accident. This may be followed up by another dying declaration which is diametrically opposed to the first dying declaration. In fact, in that scenario, it may not be a question of an inconsistent dying declaration but a dying declaration which is completely opposed to the dying declaration which is given earlier. There may be more than two."
54. In Uttam v. State of Maharashtra, {(2022) 8 SCC 576 (2- JUDGE BENCH)} the Hon'ble court has observed: 33
"15. In cases involving multiple dying declarations made by the deceased, the question that arises for consideration is as to which of the said dying declarations ought to be believed by the court and what would be the guiding factors for arriving at a just and lawful conclusion. The problem becomes all the more knotty when the dying declarations made by the deceased are found to be contradictory. Faced with such a situation, the court would be expected to carefully scrutinise the evidence to find out as to which of the dying declarations can be corroborated by other material evidence produced by the prosecution. Of equal significance is the condition of the deceased at the relevant point in time, the medical evidence brought on record that would indicate the physical and mental fitness of the deceased, the scope of the close relatives/family members having influenced/tutored the deceased and all the other attendant circumstances that would help the court in exercise of its discretion."
55. Having considered various pronouncements of the aforesaid judgments, the following principles have been laid down by the Hon'ble Supreme Court in the case of Abhishek Sharma vs. State 34 (Govt. of NCT of Delhi)5 for a court to consider when dealing with a case involving multiple dying declarations:
i. The primary requirement for all dying declarations is that they should be voluntary and reliable and that such statements should be in a fit state of mind;
ii. All dying declarations should be consistent. In other words, inconsistencies between such statements should be 'material' for its credibility to be shaken;
iii. When inconsistencies are found between various dying declarations, other evidence available on record may be considered for the purposes of corroboration of the contents of dying declarations.
iv. The statement treated as a dying declaration must be interpreted in light of surrounding facts and circumstances.
v. Each declaration must be scrutinized on its own merits. The court has to examine upon which of the statement's reliance can be placed in order for the case to proceed further.
vi. When there are inconsistencies, the statement that has been recorded by a Magistrate or like higher officer can be relied on, 5 2023 INSC 924 35 subject to the indispensable qualities of truthfulness and being free of suspicion.
vii. In the presence of inconsistencies, the medical fitness of the person making such declaration, at the relevant time, assumes importance along with other factors such as the possibility of tutoring by relatives, etc.
56. The Hon'ble Supreme Court also noticed certain judgments in the aforesaid case, where the extent of burn injuries sustained by the deceased was considered.
57. In the case of Chacko v. State of Kerala {(2003) 1 SCC 112 (2- JUDGE BENCH)} the Hon'ble Supreme court declined to accept a dying declaration made by a person, 70 years of age, having sustained 80% burns. Therein, the declaration was recorded 8-9 hours after burns, giving minute details as to motive and manner. It was opined that the condition of the patient described as "conscious, talking" in the wound certificate would in and of itself not testify to the condition of the patient making such declaration, nor would the oral evidence of the doctor or Investigating Officer. 36
58. In P.V. Radhakrishna v. State of Karnataka {(2003) 6 SCC 443 (2- JUDGE BENCH)} it was observed that there cannot be any hard and fast rule, lending itself to uniform application on the question whether the percentage of burns suffered is a determinative factor to affect the credibility of the dying declaration. The same would depend on the nature of the burns, the body parts affected, and the effect thereof on mental faculties, as well as other factors.
59. In Surinder Kumar v. State of Haryana {(2011) 10 SCC 173 (2- JUDGE BENCH)} the dying declaration made by a person having 95-97% burn injuries was not accepted given that at the time of making the declaration, the deceased was under the influence of Fortwin and Pethidine injections, because of which she could not have had normal alertness.
60. The Hon'ble Supreme Court in Uttam (supra) followed the principle as held in KhushalRao v. State of Bombay {AIR 1958 SC 22 (3- JUDGE BENCH) } that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the 37 opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the fact stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
61. Applying the aforesaid principles as laid down and observations as made by the Hon'ble Supreme Court, we now proceed to examine them in the instant facts and circumstances of the case.
62. First statement made by the victim before the family members and neighbour while she was accompanied to the hospital on 04.09.2013 as under:
"On that day in the morning, the victim and the appellant had altercation and the appellant assaulted the victim. The appellant asked the victim to bring money. While the victim was having meal in the morning, appellant abused her with filthy languages.38
She could not finish her meal and went inside the room. The appellant followed her and poured kerosene on her and set her on fire"
63. The Dying declaration recorded by the Doctor (P.W.17) on 06.09.2012 is set out as follows:
"As per the patient she was set on fire with kerosene by her husband Anowar Hossain at their residence. She was admitted in MJN Hospital on 4/9/13 at 9-45 AM."
64. On perusal of the dying declaration as above, it shows the same had been recorded by the Doctor in presence of two staffs of the Hospital. Patient had told him that "as per the patient she was set on fire with kerosene by her husband Anowar Hossain at their residence. She was admitted in MJN Hospital on 4/9/13 at 9-45 AM." Undoubtedly, Section 32 Indian evidence Act corresponding to Section 26 of the BSA, 2023 is an exception to the rule of hearsay, however, the same would not be applicable in the present case. 39
65. Dying declaration is, in fact, recorded by the Doctor. However, no Doctor's certificate was found with regard to the condition of patient as to whether she was in fit mental condition at the time of recording dying declaration. Whether she was fully conscious or not at the time of recording is also missing. The vital certificate/endorsement of doctor is also missing in the body of dying declaration that whether the contents of the dying declaration was read over and explained to her prior to putting signature of the Doctor or witnesses to satisfy her whether the statements recorded by the doctor was correctly recorded or not?
66. The last statement/dying declaration recorded by the PW-23 On the next date i.e., on 07.09.2013, is extracted herein below:
"On being interrogated by you I state that it is about one year since I have got married. In the marriage my father gave many things to me and my husband and thus my father gave in the marriage socially as per Muslim Sariot. The gold ornaments of my hand, ear, and neck were not given. Those things were due. Even today my father has not been able to provide those things. At present my husband needs money for business. So, very often my 40 parents-in-law would tell my husband, "ask your wife to go to her father and bring Rs one lakh approximately from his father. and thus enlarge your business and run it well. They should not give gold. A sum of Rs one lakh is enough". My husband too as per the version of his parents would ask me to bring money. Since after few days of my marriage we continued strained relation. Day by day it turned into a quarrel and and ultimately it turned into an assault. Very often my husband assaulted me. He did not take care of me. He did not ask me whether I took my meal or whether my health was good. By this time about one month has been elapsed since my parents -in-law left us for Siliguri. They told us that from now on they would live in Siliguri. There they would lead their life by running business. Myself and my husband were present at home. In that morning I was cooking by fuel. He finished his meal. I sat to take my meal. He started talking about money while I was eating. Out of grudge being half fed I left my meal and came to living room from the kitchen. We were quarrelling. From quarrel it turned into assault. At last catching hold of me he fastened my hands and then poured kerosene on my body out of a drum. None came at my cry. When I was set ablaze, he freed me. I came outside running. I do not know what happened later on. When I came 41 to my sense, I found myself here. On the day of occurrence my parents -in -law were not present at home. But they talked to my husband over telephone to kill me. The wife is rude. My father- in-law was Dalbu Mia and my mother-in- law was Anowara Bibi"
67. Despite recording dying declarations one after another, no attempt was made to have the same made before magistrate, which, as a rule of prudence, would have supported to the prosecution. It is reflected from the record that at the time when the statement was recorded, the condition of the deceased was not good and had been administered treatment for her injuries. She was removed to another nursing home for her better treatment. It has not come forth as to the nature of treatment and what kind of medicines was given to her. In the absence of a positive statement by the medical team or Doctor responsible for her treatment, it cannot be stated, with certainty, that the medicines administered had no effect of impairing the mental fitness of the deceased. There is no medical opinion placed on record in this behalf. Therefore, with the cloud of doubt surrounding dying declaration, it is but natural that the court looks to other circumstances and evidence to satisfy the requirement of the statement made as being true and voluntary. The other 42 circumstances present in the case in hand are already discussed above.
68. It is true that a dying declaration is not to be discarded on account of brevity, but it is equally true that it must contain the proximate cause of the deceased's condition and the reason therefor. Here, the dying declarations recorded by the Doctor and police officer are insufficient to hold the dying declaration is the only basis of conviction without corroboration. At the cost of repetition, some vital inconsistencies, discrepancies and doubtful circumstances are given below as follows:
a) There were no external injuries found while conducting post mortem examination of the dead body though it was claim of the prosecution witnesses that she was assaulted by 'Batam' and her hands were also tied.
b) The victim herself stated that in the morning she was cooking by fuel. Her husband finished his meal. She sat to have her meal. Her husband started talking about money while she was eating. Out of grudge being half fed, she left her meal and came to living room from the kitchen. They were quarrelling. From quarrel it turned into assault. At last 43 catching hold of her, he fastened her hands and then poured kerosene on her body out of a drum. None came at her cry. When she was set ablaze, he freed her. She came outside running. She does not know what happened later on. When she came to her sense, she found herself at the hospital.
Even for the sake of arguments, if the statement is taken to be true then how the parents (PW 1 and 2) and next door neighbour (P.W. 3) deposed that victim stated about the incident in the ambulance to them while they were accompanying her to hospital. Such contradiction is very damaging to the prosecution case.
c) Neither the stove, in which she was cooking nor any drum of kerosene oil recovered or seized in the instant case rather only a Gas oven was available in the kitchen.
d) No smell of kerosene oil found in the room or any place of matrimonial house by the vital independent witnesses i.e. fire service men (PWs 11 and 13), Investigating Officer (PW
23) or neighbours (P.Ws. 7 and 8), who rescued her from the adjacent paddy field.
44
e) No remanent of the Kerosene oil found in the place of occurrence.
f) No specific history of incident reported either at the time of admission in the emergency department of the MJN Hospital, Cooch Behar though the claim of the family members was that she had stated about the incident to them while they were accompanied her to hospital. In addition, parents of the deceased claimed they have admitted her in the hospital but no history of burn injuries narrated by them to the attending doctor in the emergency while attending her.
g) Admission sheet marked as exhibit 6 indicates flame burn 70%. No other history recorded at the time of admission or thereafter.
h) Bed head ticket marked as Exhibit 7 is also blank in the column 'How injury occurred'
i) It is further appearing from the clinical notes dated 4th September, 2013 that she was having 40% burn. Pt. did not give any specific history. She was disoriented and in pain. 45
j) Referral Card (Exbt.8) indicates the percentage of burn as 45%. So, no correct percentage of burn injuries of the victim reflected in the medical documents.
k) P.M. report shows death was due to shock due to burn injury. However, no external injuries found on the body though mother of victim deposed she was assaulted with 'Batam' (wooden log) and dragged into the room, poured kerosene oil and set on her fire.
l) No 'Batam' recovered or seized by the Investigation officer.
m) No roping material by which victim's hands were fastened was recovered or seized.
n) No medical opinion placed on record in respect of her mental fitness or alertness at the time of recording dying declaration.
o) It is trite law conviction may be recorded on the sole basis of a dying declaration. In such cases, the court must satisfy itself that the maker of the dying declaration was conscious and in a fit state of mind to make the statement and that the statement is voluntary and truthful. But in the present case prosecution failed to bring medical opinion on record 46 in connection with her fit mental condition or alertness at the time of recording dying declaration.
p) In absence of a positive statement by the medical team or Doctor responsible for her treatment and what kind of medicines was given to her, it cannot be stated, with certainty, that the medicines administered had no effect of impairing the mental fitness of the deceased.
q) Though the person who is about to die or in the verge of death or is in the deathbed speaks truth but now in the present day or in the current situation, this saying is not wholly reliable to form a conviction until and unless corroboration by any other reliable evidence.
r) There was no Doctor's certificate in the body of dying declaration with regards to the condition of patient as to whether she was in fit mental condition or conscious at the time of recording dying declaration.
Certificate/endorsement of doctor is also missing whether the contents of the dying declaration was read over and explained to her prior to putting signature of the Doctor or witnesses to satisfy her whether declaration recorded correctly or not.
47
s) There are several contradictions, variations and inconsistency amongst the prosecution witnesses.
t) No sufficient incriminating materials or evidence transpires from the record that the prosecution has been able to prove the case of offence punishable under Section 498A of the Indian Penal Code.
69. It is duty of the prosecution to produce best evidence to prove the case without reasonable doubt. Failure, on the part of prosecution, ultimately favour the accused/convict.
70. In view of aforesaid discussion and findings, this court is the view that the prosecution failed to bring home the charges against the appellant in positive beyond the reasonable doubts either by direct or circumstantial evidence. Accordingly, the impugned judgment and order of conviction and sentence is, thus, set aside.
71. The Appellant is acquitted from the offence as alleged.
72. Appeal being CRA 404 of 2016 is, thus, allowed. Connected applications, if any, are also disposed of.
48
73. Appellant shall be set at liberty forthwith if he is not wanted in any other case, upon execution of a bond to the satisfaction of the Trial Court which shall remain in force for a period of six months in terms of Section 437A of the Code of Criminal Procedure, 1973 corresponding to Section 481 of the BNSS, 2023.
74. Trial Court Records along with copies of this judgment are to be sent down at once to the learned Trial Court for information and necessary compliance.
75. Photostat certified copy of this judgment, if applied for, is to be given to the parties on priority basis on compliance of all formalities.
I Agree.
(Rajasekhar Mantha, J) (Ajay Kumar Gupta, J) P. Adak (P.A.)