Gauhati High Court
Sharifa Khatun @ Sarifa Bibi vs The State Of Assam on 8 January, 2020
Equivalent citations: AIRONLINE 2020 GAU 17
Bench: Suman Shyam, Hitesh Kumar Sarma
Page No.# 1/13
GAHC010001282017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 25/2018
1:SHARIFA KHATUN @ SARIFA BIBI
R/O VILL. GERAMARI PART-IV, P.O. GERAMARI, P.S. GAURIPUR, DIST.
DHUBRI, ASSAM, PIN 783339
2: JALIL SHEIKH
R/O VILL. GERAMARI PART-IV
P.O. GERAMARID
P.S. GAURIPUR
DIST. DHUBRI
ASSAM
PIN 783339
3: ZAMAL S.K.@ ZAMAL SHEIKH
R/O VILL. GERAMARI PART-IV
P.O. GERAMARID
P.S. GAURIPUR
DIST. DHUBRI
ASSAM
PIN 783339
4: JAHIDUR RAHMAN
R/O VILL. GERAMARI PART-IV
P.O. GERAMARID
P.S. GAURIPUR
DIST. DHUBRI
ASSAM
PIN 78333
VERSUS
1:THE STATE OF ASSAM,
GHC
Page No.# 2/13
2:AHAD ALI
S/O LATE GERAMARI PART-IV
P.O. GERAMARI
P.S. GAURIPUR
DIST. DHUBRI
ASSAM
PIN 78333
Advocate for the Petitioner : MR H R A CHOUDHURY
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
JUDGEMENT AND ORDER (ORAL)
Date : 08-01-2020 (SumanShyam, J.)
1. Heard Mr. A. Ahmed, learned counsel appearing for the appellants. We have also heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam, appearing for the respondent no.1. Mr. P. K. Deka, learned counsel has appeared for the respondent no.2.
2. By the impugned judgement and order dated 21/11/2017 passed by the learned Additional District and Sessions Judge, Sivasagar, in connection with Sessions case No. 276(S-C)/2013, the four appellants herein, have been convicted under Section 302 of the Indian Penal Code (IPC) for committing the murder of deceased Kohinoor Bibi and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/- each.
3. The prosecution case, in brief, is that on 20/10/2013, at about 7-30 a.m., the accused persons had poured Kerosene oil on the victim Kohinoor Bibi and set her on fire, thereby causing serious burn injuries resulting to her death.
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4. On 20/10/2013, an ejahar was lodged with the Gauripur Police Station by the uncle of the deceased, viz. Md. Ahad Ali, reporting the incident to the Police. Based on the ejahar dated 20/10/2013, Gauripur P.S. case No. 520/2013 was registered under Section 147/148/149/447/323/342/436 of the Indian Penal Code (IPC) against Md. Zahidur Islam, Jalil Sheikh, Golap Uddin, Jamal Sheikh, Sarifa Bibi and Sapia Bibi. During the course of investigation, the police had recorded the statements of several witnesses. According to the I.O. he had also recorded the statement of the injured Kohinoor Bibi under Section 161 of the Cr.P.C., before she had succumbed to her burn injuries. On completion of investigation, the Police had drawn up charge sheet against four accused persons viz., Zahidur Islam, Jalil Sheikh, Jamal Sheikh and Sarifa Bibi under Section 120(B)/304(B)/34 IPC. The other two accused viz., Golap Uddin and Sapia Bibi were not charge sheeted due to want of evidence against them. The accused persons had pleaded innocence, as a result of which, trial had commenced in Sessions Case No. 166/2015 before the court of learned Sessions Judge, Dhubri.
5. In order to bring home the charge, the prosecution side had examined as many as 10 (ten) witnesses. The accused persons did not lead any evidence. However, during the course of examination of the accused persons under Section 313 Cr.P.C., they have denied the prosecution case and have taken a stand that the allegation brought against them is completely false and baseless.
6. Based on the evidence brought on record, the learned trial Court had found all the appellants/accused persons guilty of having committed an offence punishable under Section 302 of the IPC and accordingly, sentenced them to life imprisonment and also directed to pay fine of Rs. 10,000/- each with default clause.
7. From a careful scrutiny of the materials available on record, we find that the conviction of the appellants is entirely based on the statement of the deceased marked as Ext-7recorded by the I.O on 21/10/2013 in the burn unit of the Dhubri Civil Hospital, which was treated as her"dying Page No.# 4/13 declaration". The English translation of the relevant extract of Ext-7 is reproduced herein below for ready reference :-
"The name and address as mentioned above are correct. Around 7-30/8-00 a.m. on 20-10-13, my husband Jahidul (sic) Islam grabbed me inside my room and Sharifa Bibi, the wife of my husband's paternal uncle poured kerosene on my person and then my father-in-law Md. Jalil Sheikh lighted a match stick and set fire to me. My brother-in-law Jamal Sheikh kept the door closed by pressing it. After they had set fire to me and when fire engulfed me, the said persons fled the place. Finding no way out, I jumped into the water in the ditch in front of the house."
8. PW-1 Smt. Deepa Roy is the nurse who had attended to the injured victim in the Dhubri Civil Hospital.PW-1 had deposed before the Court that she had stated before the I.O. that Police had recorded the statement of the burn injury patient Kohinoor Bibi and she had stated that Zahidur Islam i.e. the husband of the victim, had caught hold of her in the kitchen and father-in-law Md. Jalil Sheikh had set her on fire. According to PW-1, the victim had stated before the I.O. that her aunt-in-law had poured Keorsene oil on her and that this had been done inside the closed room. The PW-1, however, did not mention about the fact that the injured victim had informed the IO about the involvement of the brother-in- law in the incident. During her cross examination, PW-1 had stated that she did not know as to who had interrogated her, whether it was police from the hospital out-post or from Gauripur Police Station. PW-1 has also stated that she had not submitted any document to the police with regard to her duty on that day. The witness had, however, denied the suggestion that she was not on duty on that date. Later on, during her re-examination, PW-1 had stated that Ext. 7 is the statement of injured Kohinoor Bibi recorded by the Police in the burn unit of Dhubri Civil Hospital in her presence and that Ext. 7 (2) was her signature. But during her further cross examination, PW-1 had stated that she did not remember what the injured Kohinoor Bibi had told the Police.
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9. PW-2 Alema Bibi is the Aunt of deceased Kohinoor Bibi and she had deposed before the Court that Kohinoor Bibi was her immediate neighbor and that the relationship between the deceased and her in-laws was peaceful.
10. PW-3 Fatima Bibi was one of the signatories to Ext.7. But since PW-3 did not support the prosecution case, she was declared hostile. During cross examination of PW-3 by the prosecution side, she had denied having stated before the I.O. that police had interrogated the burn injury patient Kohinoor Bibi and that the injured had stated that Zahidur Islam, Jalil Sheikh and her aunt-in-Law had set her on fire by pouring kerosene oil. During the cross examination of PW-3 by the defence side, the witness had stated that the victim Kohinoor Bibi was her granddaughter and the accused persons are the relative of her granddaughter. PW-3 has further deposed that relationship between the husband and wife and other relatives were peaceful.
11. PW-4 Zamir Ali is another prosecution witness who was declared hostile. During the cross examination of PW-4 by the prosecution side, he had also denied having stated before the IO that the deceased Kohinoor Bibi had stated that Zahidur Islam, Jalil Sheikh and the Aunt-in-law had poured Kerosene oil on the victim and the same was done inside the closed room. During his cross- examination by the defence side, PW-4 had stated that Kohinoor Bibi was his sister and that the relation between her sister and her husband was peaceful. PW-4 has also deposed that there was no difference in opinion between his sister and her in-laws. PW-4 had further stated that after the incident, he himself, the victim's husband, her father in law, Sarifa Bibi and Jamal had brought Kohinoor to the Hospital and in the hospital, he had heard his sister telling the IO that she had caught fire while preparing tea in the kitchen as she had used jute branches for preparing the fire. PW-4 had also deposed that he did not suspect hands of the accused persons in the death of his sister.
12. PW-5, Md. Ahad Ali is the informant in this case and is also the uncle of the husband of the deceased. In his examination-in-chief, PW-5 has confirmed that he had lodged the FIR (Ext. 1) and Page No.# 6/13 that Ext. 1(1) is his signature. PW-5 has stated that Kohinoor Bibi had died out of burn injuries and having come to know about the incident, he had gone to the house of the accused persons and there he had learnt that Kohinoor had already been shifted to the hospital. However, having arrived at the hospital, he found Kohinoor Bibi was dead. During his cross-examination, PW-5 had stated that the accused persons are his immediate neighbours and so far as he knew, the relationship between the victim and her husband was peaceful and so was the case with her in-laws. PW-5 had also deposed that having arrived at the hospital, he had learnt that Kohinoor had caught fire while preparing tea and he did not suspect accused persons of having any hand in the death of Kohinoor Bibi.
13. Witness PW-6, Md. Bahaz Uddin Sheikh had deposed to the effect that on the day of the incident, Kohinoor Bibi had fallen down into the pond with burn injuries on her body and thereafter, she had been recovered from the pond by the people. PW-6 had also stated that having been picked up from the pond and on being asked, the victim had told that she had caught fire while preparing meals. During cross examination, PW-6 had stated that the victim was having a peaceful married life and there was no dispute with other family members. That apart, PW-6 had also stated that Zahidur's father and Zahidur had brought the victim to the hospital.
14. Md. Awal Mazid Sarkar was another prosecution witness, who was examined as PW-7 and according to the said witness, he had gone to the house of the accused persons after the incident when the process of lifting the injured Kohinoor Bibi from the pond with burn injuries on her body was on and found general public present there. PW-7 has also deposed that on being asked, Kohinoor had said that she had caught fire while preparing meals. During his cross examination, PW-7 has stated that the victim had one issue out of her marriage and she was having a peaceful married life with no dispute with other family members. During his cross examination PW-7 has also corroborated the fact that Zahidur's father, Zahidur and he himself had brought the victim to the hospital.
15. Md.Yusuf Ali, PW-8 was one of the witness and a signatory of Ext.7 (dying declaration). PW-8, Page No.# 7/13 has deposed before the Court that his residence is around 3 KMs away from the house of the deceased Kohinoor Bibi and he had come to the place of occurrence after 10-15 minutes of the alleged occurrence. PW-8 has stated that he had come to know that at around 7-30 in the morning on that day, Kohinoor Bibi had caught fire and she had thrown herself into the pond. Later on, Kohinoor Bibi was taken out from the pond and was taken to the Civil Hospital, Dhubri. PW-8 has, however, stated that he did not know how Kohinoor caught fire. During his cross examination, PW-8 had stated that Kohinoor Bibi was his niece and the relationship between Kohinoor and her husband was cordial. During his re-examination, PW-8 had proved his signature in Ext. 7. During his further cross examination PW-8 has stated that he cannot remember whether he had signed in a blank paper or in Ext. 7 and that he could not remember whether he had put his signature in the hospital. PW-8 has also categorically stated that injured Kohinoor was in a serious condition and she was not properly "audible".
16. Dr. Nabajit Barman, i.e. the doctor who had conducted the post-mortem examination on the dead body was examined as PW-9. The doctor has opined that the death of the deceased was due to shock resulting from ante mortem flame burn injuries of epidermal and derma epidermal nature, covering approximately 90% of total of body surface area. PW-9 has also confirmed that Ext. 2 was the post-mortem report and Ext. 2(1) is his signature. During his cross examination, PW-9 has stated that apart from burn injuries he had not found any other injuries on the body of the victim.
17. PW-10 Shri Rudreswar Deka is the I.O. and he had deposed that during the course of investigation he had visited the place of occurrence and prepared the site plan. PW-10 has stated that he had recorded the statement of the witnesses and thereafter, went to the Dhubri Civil Hospital as the injured victim was admitted therein. PW-10 has further deposed that he had recorded the statement of the injured victim in presence of on-duty nurse Smt. Deepa Roy (PW-1) and witnesses Yusuf Ali Sheikh (PW-8) and Jamair Ali (PW-4) and that Ext. 7 is the statement of the victim wherein he had put his signature. According to PW-10, the victim had succumbed to her injuries after her statement was recorded by him and thereafter, he wrote to the District Magistrate, Dhubri for Page No.# 8/13 conducting Inquest on the dead body. Ext. 5 is the Inquest Report. After completion of the investigation, the PW-10 had submitted charge sheet against the accused persons alleging offence committed under Section 120(B)/304 (B)/34 IPC.
18. During his cross examination, PW-10 had stated that he had reached Dhubri Civil Hospital on 20/10/2013 at 11-45 a.m. (erroneously typed as P.M.) and found the deceased victim in the burn Unit with burn injuries. The witness has admitted that he has not mentioned the time when he had recorded the statement of the injured victim and that he did not take theopinion of the doctor about the mental condition of the deceased victim since the nurse was present. The witness has further stated that he had mentioned the fact that the nurse had told him that mental condition of the deceased victim was normal but he did not make any request to the doctor or the Magistrate for recording dying declaration of the deceased victim. PW-10 has also admitted that he did not produce the statement of the injured victim before the Executive Magistrate, who had conducted the inquest on her dead body. PW-10 had also admitted that he did not put the date below his signature in Ext. 7.
19. From the materials available on record we find that the witnesses viz PWs -3, 4, 6 and 7 did not support the prosecution case that the accused persons had poured kerosene oil and set the victim on fire. While the witnesses PWs 3 and 4 had been declared hostile no such declaration was made in respect of PWs 6 and 7.As a matter of fact, except PWs 1 and 10, none of the other witnesses had supported the prosecution case.
20. In the case of Raja Ram v State of Rajasthan reported in (2005)5 SCC 272, the supreme court has observed that prosecution witness who did not support the prosecution case and not declared hostile with the permission of the court, his evidence would be binding on the prosecution. Therefore, the evidence of PWs 5, 6 and 7, who did not support the prosecution story, would be binding on the prosecution.
21. From a careful reading of the impugned judgment and order dated 21.11.2017, we find that Page No.# 9/13 the learned trial court has convicted the appellant entirely on the basis of Ext-7 treating the same as the dying declaration of the injured victim by ignoring the testimony of the other prosecution witnesses. The learned counsel for the appellants has, however, argued that Ext. 7 is not a reliable piece of evidence so as to sustain the conviction of the appellants.
22. Law is firmly settled that dying declaration, if found to have been given voluntarily and appears to be truthful to the Court, can be the basis of conviction and in that case no corroboration would be necessary. Summing up the principles governing "dying declaration", the Hon'ble Supreme Court, in the case of Paniben vs. State of Gujarat reported in (1992) 2 SCC 474 has observed that there is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration and if the court is satisfied that the dying declaration is true and voluntary, it can be the basis of conviction. However, when dying declaration is suspicious, it should not be acted upon without corroborative evidence. In the said decision, it has further been observed that when the prosecution version differs from the version as given in the dying declaration, the said dying declaration cannot be acted upon.
23. In the present case, it would be significant to note that the prosecution witness PW-6 has categorically deposed that when the victim was picked up from the pond, she had told that she had caught fire while preparing the meal. PW-7 has also stated that on being asked, Kohinoor Bibi had said that she had caught fire while preparing meal. During their cross examination both the witnesses have ruled out the possibilities of any foul play by the appellants.
24. PWs 2,3,4,5 and 7 have also deposed that the relationship between the victim and her-in- laws was peaceful. The evidence of PW 6 goes to show that it is the husband and the father-in-law of the victim who had taken her to the hospital. The testimony of these witnesses leaves no scope for this court to speculate on the motive for the crime.
25. It would be significant to note here-in that PW-3, who is the grandmother of the victim and Page No.# 10/13 PW-4, who is the brother of the victim and a signatory to Ext-7, did not support the prosecution case and therefore, had to be declared hostile. There is nothing on record to even remotely suggest that there was any dowry demand ever made by the appellants or that the deceased was ever tortured in her matrimonial home.
26. It is further to be noted herein that the prosecution story is to the effect that the appellants had caught hold of the victim in the kitchen and poured kerosene oil and thereafter, set her on fire. However, none of the witnesses including those present at the place of occurrence while the victim was being lifted from the pond, have mentioned about the smell of kerosene oil in the body of the victim or inside the kitchen where the incident had allegedly taken place. If a person is burnt alive by pouring kerosene oil, it is difficult to imagine that nobody present at the site immediately after the incident would smell kerosene on the body of the victim.
27. It is also to be noted herein that the doctor PW-9 has also clearly opined that there was no sign of any other injury in the body of the victim. If the version noted in Ext. 7 is to be believed then also, it is quite incomprehensible as to how the victim could have escaped injury in her body even when four persons had forcefully tried to confine herself inside the closed room and set her ablaze.
28. Coming to the dying declaration recorded by PW-10, he had stated in his testimony that the statement of the victim, i.e. Ext. 7 was recorded in presence of the nurse Deepa Roy (PW-1). During his cross-examination, PW-10 has stated that he did not seek the opinion of the doctor about the metal condition of the injured nor has he mentioned that the nurse had told him that the metal condition of the victim was normal. We find from the testimony of PW-1 that she had also not stated of having heard what the victim had told the I.O. in the hospital nor has she mentioned that the victim's mental condition was normal while her statement was being recorded. In the above context, it would further be significant to note herein that the PW-1 did not also state that the name of the brother-in-law Jamal Sheikh was also mentioned by the injured victim to the police while recording her Page No.# 11/13 statement.
29. PW-8 had stated before the police that the I.O. had recorded the statement of Kohinoor Bibi in the Dhubri Civil Hospital in his presence and that the injured victim had stated before the IO that this morning at around 7.30 a.m. her husband Jahidul Islam had grabber her in the kitchen and her aunt-in-law Sarifa Bibi had poured kerosene oil on her and father-in-law Jalil Sheikh had set her on fire. However, during his deposition before the Court, the witness had not made any such statement. During his re-examination, although the witness had recognized his signature in Ext-7 but he had also stated during further cross-examination that he did not remember whether he had signed in a blank paper or in the Ext-7. PW-8 had also categorically stated that the injured Kohinoor Bibi was in a serious condition and she was not properly audible.
30. In the case of Laxman Vs. State of Maharashtra reported in (2002)6 SCC 710, the Supreme Court, while discussing the juristic theory regarding applicability of dying declaration, has observed that such declaration is made in extremity where the party is at the point of death and every hope of his world is gone. It was, however, emphasized that the Court should always be on guard to see that statement of deceased was not a result of either tutoring or prompting or a product of imagination. The Court must also decide as to whether the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Whether the deceased was in a fit mental condition to make the dying declaration should be based on the medical opinion.
31. From a careful reading of Ext-7 we also find that the version recorded therein is a little too accurate for a patient of 90% burn injury to have narrated to the I.O. by giving the logical consequence of the incident. The omissions and commissions, on the part of the IO while recording the statement of the injured victim, as noticed above, viewed in the light of the testimony of the other prosecution witnesses, raises doubt as to the circumstances under which, the IO had recorded the statement of the injured victim and therefore, raises a serious question on the authenticity of Ext-7. As Page No.# 12/13 such, we are of the view that Ext-7 is not a reliable piece of evidence and therefore, in the absence of corroboration, the learned trial court was not justified in convicting the appellants solely on the basis of Ext-7.
32. Law is firmly settled that in a case based on circumstantial evidence it would be incumbent upon the prosecution to lead evidence so as to establish the chain of all the circumstances beyond reasonable doubt. In the case of Sharadh Birdhichand Sarda Vs. State of Maharashtra , AIR 1984 SC 1622, Hon'ble Supreme Court has laid down the following conditions, which must be fulfilled before a case against an accused can be said to be fully established based on circumstances evidence :--
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(iii) The circumstances should be of a conclusive nature and tendency.
(iv) They should exclude every possible hypothesis except one to be proved, and
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
33. Again, in the case of Nallapati Sivaiah Vs. Sub-Divisional Officer, Guntur, Andhra Pradesh reported in (2007) 15 SCC 465 relied upon by the appellants' counsel, it has been held that it is the duty of the prosecution to establish the charge against the accused beyond reasonable doubt and benefit of doubt, if any, must always go in favour of the accused. In the said decision, the Supreme Court has held that dying declaration is a substantive piece of evidence to be relied upon, Page No.# 13/13 provided it is proved that same was voluntary and truthful and the victim was in a fit state of mind.
38. On a threadbare analysis of the materials available on record and by applying the test laid down in the case of Sharadh Birdhichand Sarda (supra), we are of the considered opinion that the prosecution side has failed to establish the charge brought against the appellants beyond reasonable doubt. Such being the position, we hold that the conviction of the appellants under Section 302/34 IPC is unsustainable in the eye of law and the same is accordingly, set aside.
Consequently, the jail sentence and the fine imposed upon each of the appellants also stand set aside.
The appeal stands allowed.
The learned counsel for the appellants has submitted that the appellants are in jail. We, therefore, direct that the appellants be released from jail forthwith unless their detention is not required in connection with any other case.
Send back the LCR.
JUDGE JUDGE Comparing Assistant