Sri Moon Das vs The State Of Assam on 28 May, 2013

[Cites 8, Cited by 0]

Gauhati High Court

Sri Moon Das vs The State Of Assam on 28 May, 2013

The appellant herein has been convicted under Section 302 of the Indian Penal Code for committing murder of his wife within a period of less than three months of the marriage. The conviction has been recorded vide impugned judgment dated 12.5.2008 passed by the learned Addl.

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Sessions Judge (F.T.C. No.4), Kamrup, Guwahati in Sessions Case No. 301(K) of 2007. On being convicted under section 302 of the IPC, the appellant has been sentenced to undergo Imprisonment for Life and also to pay fine of Rs. 5,000/- with default stipulation of further six months R.I. Being aggrieved by the conviction and sentence, the accused has preferred this appeal.

2. Heard Mr. D. Mazumdar, learned counsel for the appellant and Ms. B. Bhuiyan, learned Addl. PP, Assam. We have also gone through the impugned judgment and the prosecution evidence, proffered in the trial court.

3. The defence case was of total denial. However, in his statement under 313 of the Criminal Procedure Code the accused took a plea that at the relevant time he had gone to a provision store nearby. However, neither the name of the owner of the said grocery shop was disclosed nor any evidence in defence was adduced to establish that at the time of the incident the victim was alone in the house and the accused was away from his house, i.e., the place of occurrence.

4. The gist of the prosecution case is that the victim woman had married the accused after eloping with him on 25.1.2007. They married each other in a temple. After their marriage the accused took a rented house owned by PW 6. The incident took place at about 1.30 p.m. on 4.4.2007 in the bedroom of the accused. Hearing the outcries of the victim woman, the land lady and other tenants rushed to the Crl. Appl. No. 105/08 Page 2 of 13 tenanted room of the accused and found the victim woman with burn injuries and thereafter on their advice the husband shifted his wife to the Gauhati Medical College Hospital, where she succumbed to the burn injuries on 10.4.2007.

5. The father was reported about the incident by the husband on the same day. After visiting the hospital he found his daughter with burn injuries. Suspecting some foul play he brought the accused to Fatasil Ambari Police Station at 6.10 p.m. and handed him over as a suspect. This information was recorded under GDE No. 185. It was followed by submitting a written FIR under the R.T.I. of the victim woman herself. The FIR was registered as Fatasil Ambari PS Case No.56 of 2007 under Sections 498-A/ and 326 of the IPC. After the death of the victim Section 304-B was added. However, the appellant was tried under Section 302 IPC and he has been accordingly convicted.

6. To establish the aforesaid offence the prosecution examined only 9(nine) witnesses. PW 1 is the autopsy Doctor; PW 2 is the Police Officer, who had recorded the GD entry regarding the death of the victim woman in the hospital; PW 3 is the father of the deceased; PWs 4 and 5 are the co- tenants, living in the same compound; PW 6 is the land lady; PW 7 is the Executive Magistrate, who held inquest on the dead body; PW 8 is the another Executive Magistrate, who recorded the dying declaration and PW 9 is the Investigating Officer.

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7. At the outset, we make it clear that there is no evidence of demand of dowry. Though a casual allegation was made by the father in his oral testimony in the court but he himself admitted in the cross-examination that there was no complaint in this regard from his daughter.

8. PWs 4, 5 and 6 have categorically stated that hearing "hulla" they rushed to the house of the appellant and found the deceased with burn injures in their bedroom. The sketch map shows that the kitchen was separated from the bedroom with a partition and, at the same time, there is no evidence to the effect that the victim was in the process of preparing any food. In this way, there is no material to hold that the victim had accidentally caught fire in the kitchen. In fact, the accused also did not put up any such plea either in the cross- examination of the witnesses or in his statement under Section 313 of the Cr.P.C.

9. Now the only question that remains to be examined is whether the deceased had committed suicide by setting herself on fire or she was burnt by the accused/appellant. At this stage it may also be pointed out that during the investigation the I.O. had seized, amongst other articles, one jarican containing only 100 ml of kerosene oil. The I.O. had also seized one matchbox and one towel with kerosene oil smell under Exbt.7.

10. Though PWs 4, 5 and 6 reached the scene within minutes they have not been able to give positive evidence of culpable homicide. At the same time, all these witnesses have Crl. Appl. No. 105/08 Page 4 of 13 deposed that the accused was present in the room. None of these witnesses have supported the accused's version that he was away to a grocery shop.

11. PW 5 appears to be the first witness to reach the scene. Though she enquired from the accused as to how the incident took place a reply was given by the accused but we are unable to discern any meaning from the said reply. However, PW 5 has clarified that she did not ask anything to the victim girl. PW 6 has also deposed in the cross- examination that the victim did not reply to her question and she preferred to remain silent. However, we notice that PW 5 heard the outcry of the victim woman as ('Oh, I am dying'). PW 6 also rushed to the scene hearing the murder of the victim woman and not that of the accused. In our considered opinion, had the deceased committed suicide there was less possibility of crying for help. At the same time, no witness has deposed that the husband had shouted for help. Instead, he had poured water on the victim's body keeping the door closed. From the testimony of PW 5 it appears that the door was closed, albeit, not bolted from inside. She had noticed smoke coming out from the room and water was also flowing outside from the floor. In our considered opinion, the natural conduct on the part of the appellant would have been to raise 'hulla' by opening the door. However, he engaged himself in extinguishing the fire on his own. This conduct of the accused is considered as incriminating circumstance. PW-1, Dr. Dhritiman Nath held autopsy on the dead body of the deceased Jitumani Nath on 10.04.2007 and found burn injuries involving 90 % of total body surface.

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12. Be that as it may, the accused appears to have been convicted under Section 302 of the IPC primarily on the basis of a dying declaration of the deceased. We have already noted earlier that the incident took place at about 1.30 p.m. on 4.4.2007 and the FIR was lodged in the evening of the same day. On the next day, the I.O. issued a requisition to the District Magistrate to depute an Executive Magistrate for recording dying declaration of the victim woman. Accordingly, P.W.8 Smti. Madhuchanda Talukdar, E.A.C. was deputed for the said purpose. She visited the hospital on 5.4.2006 at about 2.30 p.m. and recorded the dying declaration of the victim woman. The English rendering of which is reproduced below in extenso:

"DYING DECLARATION                                      Time : 02:25 PM
      JITUMONI NATH                                     Date: 05.04.2007

My body has got burnt. Moon came in drunken state, poured kerosene oil over me and set me on fire. He had demanded money for consuming liquor and said that my father reportedly had a lot of money. He entered into an argument with me and beaten me. He poured kerosene oil over me and then set me on fire. That was between 2:00 pm and 3:00 pm in my Ganeshpara residence."

13. Mr. Mazumdar, the learned counsel for the appellant submitted that the learned Additional Sessions Judge committed illegality in accepting the dying declaration on the sole testimony of the Executive Magistrate(PW 8). Referring to the judgment of the Hon'ble Supreme Court rendered in the case of Laxman -Vs- State of Maharashtra; reported in (2002) 6 SCC 610 and the judgment of Varikuppal Srinivas -

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vs- State of Andhra Pradesh; reported in (2009) 3 SCC 415, the learned counsel submitted that a duty is cast upon the court to ascertain that the deceased was in a fit mental condition to give the dying declaration.

14. The judgment of Laxman (Supra) has been rendered by a Constitution Bench to resolve the conflicting decisions regarding requirement of medical certificate about the physical and mental condition of the victim at the time of making dying declaration. Their Lordships have overruled previous judgments making such certificate sine qua non. It would be profitable to reproduce the relevant observations of the Hon'ble Supreme Court, which are as below:

" ...........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 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. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if Crl. Appl. No. 105/08 Page 7 of 13 available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

15. Per contra, the learned Addl. PP, Assam also cited the judgment of the Apex Court in the case of Rambai -Vs- State of Chhatisgarh; reported in (2002) 8 SCC 83. In this judgment Their Lordships have observed that if a person recording such dying declaration is satisfied that the declarant is in a fit mental condition to make a dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by a doctor.

16. The learned Addl. PP also referred another judgment from the Apex Court rendered in the case of Salim Gulab Pathan -Vs- State of Maharashtra; reported in (2012) 6 SCC

606. Though the Constitution Bench judgment has not been referred in this decision Their Lordships have re-iterated the principles regarding the admissibility of dying declaration as laid down in the case of Atbir V. Govt.(NCT of Delhi), which are extracted below:

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"(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(viii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration."

17. Sri Mazumdar, learned counsel for the appellant submitted that from the testimony of the father of the deceased (PW-3), it is clear that the condition of the deceased was serious and she was capable to speak with great difficulty. Besides this, the learned counsel repeatedly referred to the oral evidence of the Executive Magistrate to bring home his point that there was no evidence before the Crl. Appl. No. 105/08 Page 9 of 13 trial Court to take a view that the victim was mentally sound to give the dying declaration. According to the learned counsel, the Magistrate should have satisfied herself about the mental condition before recording the dying declaration, which is lacking in this case. The learned counsel for the appellant also argued that though a doctor and a nurse were also present at the time of recording of the dying declaration they were not examined by the prosecution in support of the testimony of PW-8. It is clarified here that the charge-sheet did not include the name of Dr. Bikash Kumar and the nurse, Smt Subhadra Devi, as witnesses. During the course of argument, an opinion was sought for from the learned counsel for the appellant whether he was interested to get the case remanded back for obtaining the depositions of the doctor and the nurse. However, the proposal was declined.

18. In our considered opinion, the casual statement of the father of the victim (PW-3) that his daughter was finding it difficult to speak is not enough to take a view that she was totally incapable to make a short dying declaration. On the other hand, PW-3 has deposed that his daughter had complained that she was set afire by her husband after pouring kerosene oil. From this deposition, it can be ascertained that the deceased was both physically and mentally fit to speak.

19. The above apart, the Investigating Officer has also stated that he had recorded the statement of the victim woman and the victim's statement under Section 161 CrPC is available in the Case Diary. In the said statement also, the Crl. Appl. No. 105/08 Page 10 of 13 victim had alleged that she was subjected to torture by her husband and in the forenoon of 04.04.2007 she was set afire by her husband after pouring kerosene oil. This statement is also corroborated by the FIR, which was also drawn at the instance of the victim and her RTI was also obtained by the scribe in the FIR.

20. It is true that in the chief examination, the Executive Magistrate has not spoken about physical or mental condition of the victim woman. However, in the cross-examination PW-8 has clarified that the victim was physically unwell. No question in the cross-examination was put to the Magistrate to ascertain the mental condition of the deceased. It would have been better for the prosecution as well as for the Executive Magistrate to note about the mental condition of the deceased in the dying declaration itself. However, as has been held by the Hon'ble Supreme Court in catena of decisions that dying declaration cannot be looked with suspicion just because there is no such opinion either from the Magistrate or by a doctor about victim's mental state.

21. In the case of Laxman (supra), it has been clarified that dying declaration can be oral or in writing and in any other form. Their Lordships have further observed that there is no specified statutory form for recording such statements. Hence, the testimony of PW-8 cannot be discarded totally since the witness was silent about the mental condition of the deceased, more so, since other materials on record clearly suggests that the victim was mentally sound, at least for 24 Crl. Appl. No. 105/08 Page 11 of 13 hours. We have already noted earlier that the Investigating Officer had also recorded the statement of the victim woman and the dying declaration was recorded by the Executive Magistrate on a written requisition from the Investigating Officer. Besides this, one doctor and one nurse were also present near the victim at the time of recording the dying declaration by PW-8. Had the victim not capable to give a short dying declaration they would not have become witnesses to the dying declaration.

22. The statement of the victim woman given under Section 161 CrPC is though not a substantive evidence we have looked into the same only for limited purpose to ascertain whether the victim was mentally fit to speak to the people. Besides this there is no evidence that the victim had falsely implicated the accused on being tutored by her father or at the instigation of any other person. The Hon'ble Supreme Court has also observed that shortness of the statement itself guarantees its truthfulness. In the case before us, the Executive Magistrate has clarified that after stating few lines the victim could not speak further. Hence, it appears to us that there was no attempt to exaggerate the allegations by the Magistrate.

23. In view of the foregoing reasons, we do not find any merit in the appeal. Resultantly, the appeal stands dismissed.

24. Since the victim's father was a retired police personnel and since he was not dependant upon the Crl. Appl. No. 105/08 Page 12 of 13 deceased we do not propose to grant compensation as provided under Section 357 -A CrPC. Case of such nature is also not covered for the compensation as per the scheme prepared by the Government of Assam.

                            JUDGE          JUDGE



Upadhaya/dtg




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