Calcutta High Court (Appellete Side)
Asiruddin Dalal vs The State Of West Bengal on 18 September, 2013
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
CRA NO. of 92 of 2004
Asiruddin Dalal
Vs.
The State of West Bengal
Present :
THE HON'BLE JUSTICE ASHIM KUMAR ROY
And
THE HON'BLE JUSTICE MRINAL KANTI SINHA
Mr. Soubhik Mitter. ......
Mr. Shiladitya Banerjee......... for the appellant.
Mr. Manjit Singh, P.P. .....
Mrs. Kakoli Chatterjee......... for the respondent.
Heard on : 07.06.2013, 12.06.2013, 13.06.2013.
Judgement On : 18.9.2013
Mrinal Kanti Sinha, J :
This appeal has been directed against the Judgment and Order dated 17th day of December, 2003 passed by Sri Bipin Mukherjee, learned Additional District & Sessions Judge, Second Court, Bankura, in Sessions Case No.9(11)2001/Sessions Trial No.3 (2) 2002 convicting the appellant Asiruddin Dalal under Sections 498A and 307 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 10 (ten) years and to pay a fine of Rs.10,000/- (rupees ten thousand only) in default to suffer simple imprisonment for 1(one) year for the offence under Section 307 of the Indian Penal code, and further sentencing him to rigorous imprisonment for 3 (three) years and to pay a fine of Rs.5,000/ (rupees five thousand only) in default to suffer simple imprisonment for 6 (six) months more for the offence under Section 498A of the Indian Penal Code with a direction that both the sentences shall run concurrently.
The prosecution case in short, is this that on 14th February, 1999 a written information was lodged by the informant at Indpur Police Station under Khatra Sub-Division of District Bankura being FIR No.3/1999 under Sections 498A/326/307/34 of the Indian Penal Code with the allegation that in the month of Chaitra last year his daughter Rafia Bibi was married with the present appellant Asiruddin Dalal, son of Afjal Dalal of Gour Bazar village, according to the Muslim rites and cash of Rs. 12,000/- and other articles were given at the time of marriage as dowry. Since after marriage the present appellant and 12 others named in the FIR used to torture Rafia Bibi both physically and mentally and ask her to bring money from her father and threatened her that otherwise she will be divorced. The daughter of the informant used to tell the informant party about the said torture upon her when she used to come to her father's house. The informant also visited his daughter's father-in-law's house at Gour Bazar 2/3 times and gave them money but the torture upon his daughter was continued. Ultimately on 7th February, 1999 Sunday after taking meal at night informant's daughter and son-in-law went to bed in the same room and his daughter was sleeping but suddenly she woke up when fire was caught on her person and clothes. She cried out immediately and hearing her shout neighbouring people gathered there and thereafter his daughter was given first aid. Thereafter Akbar Dalal, Rafique Dalal, Belal Dalal went to the village of the informant at Ladda and gave the information, but at that time the informant was not in his house. In the next morning his brother Sk. Barik informed him and getting information he went to visit his daughter at Bankura Gramin Hospital and came to know from his daughter that his son-in-law Asiruddin Dalal tried to kill her by setting her on fire and she suffered severe burn injury thereby.
After receipt of the said written complaint police started Indpur Police Station Case No.3/1999 dated 14.02.1999 under Sections 498A/ 326/307/34 of the Indian Penal code and after completion of investigation police submitted charge-sheet against the accused persons under Sections 498A/ 326/ 307/34 of the Indian Penal code on Second March, 2000. Thereafter the said case was committed to the Court of learned Sessions Judge, Bankura, who received the case record on 26.11.2001 and transferred the case to the said trial court for disposal.
Thereafter charge under Section 498A of the Indian Penal Code was framed against all the accused persons on 11.02.2003 and charge under Section 307 of the Indian Penal code was framed against the present appellant only. The accused persons pleaded not guilty to the alleged offences and faced trial without disclosing any specific defence in their support. During trial the learned Trial Court examined as many as 10 prosecution witnesses, who were cross-examined by the defence. Prosecution also submitted some documents, which have been marked Exhibits.1 to 7.
After completion of the evidence of the prosecution witnesses the accused persons were examined under Section 313 of the Criminal Procedure Code who neither examined any defence witness nor submitted any document in their support.
After hearing both the parties learned Trial court delivered the judgment finding the present appellant guilty of the charges under Sections 498A and 307 of the Indian Penal code and convicted him on the aforesaid charges and sentenced him to suffer rigorous imprisonment for 10 (ten) years and to pay a fine of Rs.10,000/-, in default to suffer simple imprisonment for 1 (one) year more for the offence under Section 307 of the Indian penal code, and sentenced to suffer rigorous imprisonment for 3 (three) years and to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for a period of 6 (six) months more for the offence punishable under Section 498A of the Indian Penal Code with a direction that both the sentences shall run concurrently, while the learned Trial court acquitted the other accused persons on both the charges.
Being aggrieved by and dissatisfied with the aforesaid judgment and order of the learned Trial court the present appellant has preferred the present appeal before this court on the grounds that :
(1) The learned Sessions Judge concerned failed to appreciate evidence on record appropriately and passed the judgment of conviction and sentence and there was no evidence which unmistakably pointed out to the guilt of the present petitioners;
(2) there was no eye witness of the said incident ;
(3) there has been unexplained delay of about 7 days in filing the complaint which is fatal to the prosecution ;
(4) there is no circumstantial evidence to prove the guilt of the appellant and the learned Sessions Judge concerned did not apply his judicial mind to the evidence adduced and the facts and circumstances of the case ;
(5) the learned Sessions Judge failed to appreciate the fact that the wife made statement in the hospital to the effect that fire was accidental in nature while she deposed otherwise in course of trial;
(6) learned Sessions Judge concerned failed to appreciate the fact that some of the prosecution witnesses were declared hostile and thereby conclusive evidence to prove the guilt is lacking and the conviction of the appellant is based on conjecture and surmise and as such is liable to be set aside.
It is to be considered as to whether the learned Trial Court was legal, correct and justified in passing the impugned judgment and order convicting the present appellant under Sections 498A/307 of the Indian Penal Code and sentencing him thereby in the above order or not.
It has not been disputed that the daughter of the informant was married with the present appellant according to the Muslim Rites one year before the lodging of FIR in the month of Chaitra and after her marriage the informant's daughter Rafia Bibi, who has been examined as P.W.7, went to her husband's house and was living in her husband's house together with her husband, the present appellant and that fact has been proved by the evidence of the P.Ws. 1 to 4 and 7, as well as by the statement of the appellant while he was examined under Section 313 of the Code of Criminal Procedure.
Before entering into the detailed discussion of evidence and other circumstances of the case, it would be convenient for us to have a glimpse at the evidence of the prosecution witnesses.
P.W.1 being the informant/ defacto complainant is a resident of Ladda village under Taldangra Police Station and father of the said Rafia Bibi has deposed that he gave marriage of his daughter Rafia Bibi with the present appellant Asiruddin Dalal of Gour Bazar according to the Muslim Rites and at the time of marriage dowry amount of Rs.12,000/- and other articles were given, and after marriage his daughter went to her father-in-laws house and was living there with her husband, then the present appellant and other accused persons used to torture and assault her demanding money, and on the date of incident her husband set her on fire while she was sleeping.
P.W.2 Muskuda Bibi, mother of said Rafia Bibi has also deposed that Sk. Rashid is her husband and her daughter Rafia Bibi was married with the appellant Asiruddin Dalal and after marriage her daughter went to her father-in-laws house and was living there with her husband, then her husband and others used to demand money from her and threatened to kill her and in the night of Sunday while her daughter and her husband were sleeping in the room at her father-in-law's house in the month of Magh, then her son-in-law tried to kill her by setting fire on her body.
P.W.3 Sk. Daud, a resident of village Ladda has deposed that his sister Rafia was married with Asiruddin Dalal as per Muslim Rites and after marriage she was residing in her father-in-law's house with her husband and others, but they created pressure upon her to bring more money and threatened to give her 'Talak' in case money is not brought and about 2 years ago on 25th Mag at dawn Belal, Rafique and Akbar Dalal came to their house and reported that his sister sustained burn injury, but his father was at his maternal uncle's house at that time, and he went to hospital then to see his sister there, but as it was Bangla Bandh day, so he saw his sister on the next date with burn injury and on query his sister reported that her husband set fire on her body while she was sleeping at night.
P.W.4 Abdul Rauf has deposed that Sk. Rashid is his elder brother and Rafia is his niece and she was married with Asiruddin, and after marriage Rafia's husband and in-law's used to torture her both mentally and physically and used to create pressure upon her for bringing more money and threatened her that she will be burnt to death if money is not given, and Kuddus, Belal, uncles-in-law of Rafia, took burnt Rafia to the hospital and made arrangement for her admission in Bankura Hospital and on receipt of the said information they could not go to the hospital on that date due to Bangla Bandh but on the next date they went to see his niece Rafia at the hospital and talked with her when she was conscious and she narrated to him that her husband burnt her while she was sleeping.
P.W.5 has deposed that he knows Asharuddin Dalal and his wife Rabia of their village and one night in Magh, 1999, Rabia sustained burn injuries, but he has been declared hostile by the prosecution as he did not fully support the prosecution case.
P.W.6 Golam Mustafa is a resident of Gour Bazar under Indpur Police Station where Asiruddin Dalal and his family members reside, and his house and the house of the accused persons are intervened by 2/3 houses and he knows Rafia, wife of Asiruddin, and on 2nd Magh at about 11/12 hours at night about 2/3 years ago he went to the house of Asiruddin hearing cry and shout and found burn injury on the person of Asiruddin and his wife, and he has also been declared hostile as he did not fully support the prosecution case.
P.W.7 is the victim Rafia Bibi who has deposed that she was married with Asiruddin Dalal of Gour Bazar on 19th Chaitra about 4/5 years ago according to Muslim Rites and since marriage she was residing with her husband Asiruddin Dalal in her father-in-law's house at Gour Bazar along with her husband and parents-in-law, who used to torture upon her and did not provide her with daily food and need and used to torture and assault upon her asking her to bring more money from her father's house and on 24th Magh after a lapse of 11 months from the date of her marriage while herself and her husband were sleeping in a 'kotha' room of her father-in-law's house, then suddenly she woke up having burning sensation and found that her husband was standing there catching hold of her hand and when she called her 'deor' shouting his name, then her husband pressed her hands and mouth by towel and she sustained burn injuries from waist to her lower part of leg as her husband set fire on her body and after hearing her alarm her father-in- law and other family members came to their room and thereafter she was shifted to Bankura hospital being carried by Belal Dalal and Kuddus Dalal, her uncles-in-law, by a hired taxi and she was hospitalised at BSMC & H for about 24/25 days for treatment and since discharge from the hospital she is residing at her father's house.
P.W.8 is the Police Officer who was posted as Officer-in-Charge, Indpur Police Station on 14th February, 1999 and who as per his evidence, received a written complaint from Sk. Rashid and started Indpur Police Station Case No.3/1999 dated 14.02.1999 under Sections 498A/307/34 of the Indian Penal Code, took up investigation starting the case, visited the place of occurrence, prepared rough sketch map with index, examined the witnesses under Section 161 of the Criminal Procedure Code, recorded their statements, visited Bankura hospital, examined the victim girl under Section 161 of the Criminal Procedure Code, submitted a prayer to the Superintendent of the Medical College for recording the dying declaration of the victim, which was actually recorded on 15.02.1999, seized the plastic jerry-can along with burnt wearing apparels of the victim girl named Rafia Bibi and after completion of the investigation submitted charge-sheet against all the 13 accused persons under Sections 498A/326/307/34 of the Indian Penal code.
P.W.9 is the medical officer concerned, who has deposed that on 8th February, 1999, one lady named Rafia Bibi was admitted in BSMC & H (Hospital) under his treatment, with burn injury and she was treated by him and as per requisition of the investigating officer of the case the Superintendent of their hospital allowed the prayer of the investigating officer for recording confessional statement of victim girl and he was satisfied that she was able to give such statement and accordingly on 15.02.1999 at 12 O'clock her statement was recorded by one of his house surgeons as per statement of the victim girl and he put his endorsement and signature thereon and the victim girl made statement in his presence, which he has proved and has been marked as Exbt.5/(a).
P.W.10 Smt. Minati Mirdha has deposed that on 15th February, 1999, she was posted as staff nurse at BSMC & H Bankura (Hospital) and she has proved her signature with endorsement in the statement, which was recorded in her presence as she was on duty in the ward concerned, and she has proved her endorsement with signature on the statement, which has been marked Exbt.5/(b).
Learned Counsel for the appellant has assailed the judgment of the learned Trial Court on the following grounds and has submitted that -
1) There was delay of about seven days in lodging First Information Report at the Police Station which has not sufficiently been explained and such delay in lodging the FIR at the police station is fatal to the prosecution case. Before doctor, who attended her immediately after she was brought there, P.W.7 stated that fire was caught to her accidentally and thereby exonerated the appellant completely, but seven days after while she was undergoing treatment in the hospital she stated for the first time that she was set on fire by her husband, the appellant, being tutored by her relatives, and though Exbt.5 was recorded as her dying declaration, yet that cannot be admitted into evidence with the aid of Section 32 of the Evidence Act as she survived. The said document was also never authenticated by P.W.7, the maker of the statement. Moreover, as per the evidence of the investigating officer, P.W.8, he met the victim at the hospital on 14.02.1999 and the FIR was registered on that very day, but why he recorded the statement of the victim on 15.02.1999 has not been explained, and this shows that the said statement was recorded as per the advice of the investigating officer and as such that should not be believed.
2) As per the bed-head ticket Exbt.7 according to the statement of the wife, the alleged injured, before the doctor concerned her burning by fire was accidental, and though she tried to depose otherwise during the trial yet she could not resile from her initial statement before the doctor and her statement dated 15.02.1999 which has been stated to be a dying declaration and marked Exbts.5 (a), 5 (b), has not duly been proved and is not admissible in evidence and is not sufficient to convict the appellant on the basis of the same as P.W.9, the doctor has deposed that he is not in a position to say who wrote out the history of burn as 'accidental as stated by the patient herself' and he cannot recollect the history of the cause of the burn injury. Further the requirements of Section 67 of the Evidence Act have not been complied with inasmuchas as per that provision when an oral statement of a person is reduced into writing, then the person who reduced the same into writing ought to be examined in the Court to prove the same and when that person is not available then in that case any other person who is acquainted with the hand writing of the person, who reduced such statement into writing, is to be examined. Unless the requirements of Section 67 of the Evidence Act are complied with the document is not admissible in evidence and it has no probative value.
3) Some of the prosecution witnesses have been declared hostile by the prosecution and thereby guilt of the appellant has not conclusively been proved by their evidence.
4) At the time of his examination under Section 313 of the Code of Criminal Procedure the appellant stated that he was arrested in his house and was examined at the hospital and they found burn mark on his hand, but that point has not been considered by the learned Trial court. Moreover, the appellant took the victim to the hospital and so the prosecution case that he set fire on his wife is not believable. It is also the case of the prosecution that while the victim was undergoing treatment in the hospital, then none of the members of her husband's family including the present appellant met her in the hospital. In that case it cannot be said that due to any threat held out by them the victim could not disclose the true incident earlier.
5) There was no eye witness to the alleged incident.
On the other hand learned Counsel for the state contended that the prosecution has proved its case beyond all reasonable doubt by sufficient reliable evidence and the learned Trial Court has rightly convicted and sentenced the present appellant. Learned Counsel for the State has also contended that the Exhibit 7 is the document where the nature of the injuries sustained by the victim has been recorded and the burn injuries were found both in frontal region as well as on the back portion of the victim, but that was not possible, if that was an accident. If that was a case of accident, then how the victim sustained burn injury on both the front portion as well as on the back protion of her body, and this shows that the same was not a case of sustaining burn injury by accident, rather that was a case of setting fire on her body. Moreover, no document has been produced and proved by the defence to show actually when and how the victim sustained burn injury and it might be a fact that considering the condition of the victim the appellant was under an impression that she would die and then just to save himself he inflicted some burn injuries on his hands himself.
Learned counsel for the State has further contended that there was no requirement of following the provisions of Section 67 of the Evidence Act in this case as because whose statement was reduced into writing has not disputed the factum of making such statement and recording of the same and reliability of P.W.9 cannot be doubted as he is the man in whose presence the statement of the victim was recorded by one of his house surgeons and who put his signature thereon.
It appears that there is sufficient force in the contentions of the learned counsel for the State and as such those should be given preference over the contention of the learned counsel for the appellant.
For the proper appreciation of the matter the relevant provisions of law are required to be looked into.
Section 498A and Section 307 of the Indian Penal Code run thus :-
Section 498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.-For the purpose of this Section, "cruelty" means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Section 307. Attempt to murder.-Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.- [When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.] It appears from the evidence of the P.Ws. 1,2,3,4 and 7 as well as the examination of the appellant under Section 313 of the code of Criminal Procedure that the P.W.7, daughter of the P.W.1, was married with the present appellant according to Muslim rites and after marriage she was residing with the appellant in his house and on the date of incident while she was sleeping with her husband in a room in her father-in-law's house in the night after taking meal then she sustained burn injury and was hospitalised and was treated there. But while as per the prosecution case the appellant set her on fire while she was sleeping, then it is the case of the appellant that her sustaining burn injury was accidental in nature and the appellant also sustained burn injury when he tried to save her.
In this regard it has been submitted by Mr. Shiladitya Banerjee, learned Counsel for the appellant that the allegation of torture upon the P.W.7 has not been proved by evidence and the P.W.7 sustained burn injury while she was going to take water for drinking and fire was caught in her wearing 'sari' and she sustained injury thereby, which was accidental in nature.
As regards torture upon the P.W.7 by her husband and his relatives it appears from the evidence of P.W.7 that her husband, parents-in-law and nanad used to torture upon her and the main cause of torture was nothing but their repeated pressure upon her to bring money from her father's house, but her father failed to meet their further demand though she reported that to her father, and her father stated to her that it would not be possible for them to give money as per their demand. As per the evidence of her father P.W.1 in the marriage of his daughter Rafia Bibi, P.W.7, he paid dowry amount of Rs.12,000/- and met all other demands of the father of the appellant Asiruddin, and after marriage he went to the house of accused persons only for 2/3 times. As per the evidence of P.W.7 in between the date of her marriage and the date of incident she along with her husband paid visit to her father's house for 2/3 times. In that case it was not improbable for her to narrate the incident of torture upon her by her husband and others to her father and other members of her father's family like P.Ws. 2,3,4, who have also corroborated her. Besides that the investigating officer concerned P.W.8 has also supported P.W.7 in this regard by deposing that Rafia Bibi stated to him that her husband and in-laws used to torture upon her and though she did not state in details about the torture of day-to-day affairs, but she stated about torture.
Apart from that it has been suggested to P.W.7 by the defence that she had love affair with Barkat Ali and she wanted to marry him, for which reason she did not want to reside at her father-in-law's house with her husband and she was married with the appellant Asiruddin though she did not want to marry him, and she used to pick up quarrel and trouble in that regard. Such imputation, which has not been proved by evidence, against a married wife, tantamounts to cruelty against her. It is also cruelty to wife by the appellant that even after seeing that his wife sustained burn injury, he took no step to douse fire or to take her to hospital for treatment.
It is the categorical evidence of the P.Ws. 1 to 4 and 7 that P.W.7's husband set fire on her body while she was sleeping at night at about 10:30 PM, but the defence has tried to develop two stories in this regard- one by saying that she sustained burn injury while cooking, and the other by saying that while sleeping she woke up and tried to take water for drinking and then fire was caught in her 'sari' from the burning kerosene kupi (lamp) and she sustained burn injury thereby. But both these stories have been belied by the evidence of P.W.7, who has denied the defence suggestion that it is completely a false statement that her mother-in-law and uncle-in-law stated her to suppress the truth and stated her to disclose that she sustained burn injury at the time of cooking. It is also her categorical evidence that at the time of admission and examination by doctor at the hospital she narrated the history of burning being tutored by her father-in-law and mother-in-law that she must not have to state that her husband lit fire on her body but at the time of cooking she sustained burn injuries.
As per the evidence of P.W.7 once she stated to the doctor at the time of admission that she sustained injury at the time of cooking, but then she has denied the defence suggestion that she stated to the doctor that she sustained burn injury accidentally. In view of the evidence of P.W.7 it was not improbable for her to state before the doctor initially as per the instruction of her mother-in-law and uncle-in-law, who accompanied her to the hospital, that she sustained burn injury accidentally while cooking considering her future at her father-in-law's house, but she did not state voluntarily without compulsion to two doctors that she sustained burn injury accidentally, and at the same time she has also deposed that when her father and family members of her father met her then she told them the truth and the actual cause of her sustaining burn injury and she stated to them that her husband torched fire at night hours while she was with her husband in the same room and was sleeping.
In this regard learned Trial Court was not wrong in his finding that Rafia, P.W.7, was accompanied by Kuddus and Belal, her uncles-in-law, to the hospital, who admitted her there and invariably she was under
their custody and so it was not possible for a housewife to state against them for which as per request of the family members of her father-in- law's house she was compelled to state that it was her accidental burn though as per her evidence she stated the truth and actual cause of her sustaining burn injury to the members of her father's family when she met them, and though Belal, Kuddus went to the hospital, yet they did not state under what circumstances Rafia, P.W.7 sustained burn injuries at the time of her sleeping on the bed along with her husband. Learned Trial Court has also rightly pointed out that the statement of the P.W.7 can not be regarded as dying declaration as she has not died and is still alive.
Further, no such 'kupi' was found in the room where the P.W.7 and her husband were sleeping nor any such 'kupi' was produced before the investigating officer by the appellant or his family members nor seized by the investigating officer, P.W.8, rather it is evident from the evidence of the P.W.7 that there was electric connection in her father-in- law's house and till the date of her deposition on 30.04.2003 that was existing and on the date of incident no burning material or lamp or anything was in that room. Moreover, as per the evidence of P.W.7, in her father-in-law's house there is well and 'tulu' pump to draw water which also shows that there was electricity in her husband's house. In that case when there was electricity in her father-in-law's house then there was no necessity of burning any lamp or 'kupi' and consequently the story of catching fire in her 'sari' from burning 'kupi' or lamp has no leg to stand, and in fact learned Trial Court has also rightly held that the story of catching fire from 'kupi' or accidental burning thereby is not believable, rather from the facts and circumstances it can safely be presumed that the appellant Asiruddin burnt his wife by fire for which she sustained injuries. As per the evidence of the Investigating Officer P.W.8 he seized a plastic jerry can along with burnt wearing apparels of the victim Rafia Khatun from the place of occurrence on 14.02.1999 during his investigation and this fact also strengthen the evidence of P.W.7 as well as the prosecution case that husband of P.W.7 set her on fire in the night while she was sleeping in the room with her husband whereby she sustained about 35% burn injury from her waist to the lower part of the leg on both the front and back sides of her body.
It is the consistent evidence of P.Ws. 1 to 4, 7, 8, 9 that the P.W.7 sustained burn injury from her waist to leg amounting to 35% and no such case has been proved by evidence that P.W.7 sustained said burn injury otherwise than by the setting of fire on her body by the present appellant, who has duly been identified by the P.W.7 and other P.Ws. like P.Ws. 1,2,3,4.
Mr. Shiladitya Banerjee, learned Counsel for the appellant has laid much stress upon the Exhibits 5(a), 5(b) and has contended that the said statement has not duly been proved inasmuchas the writer of the same has not been ascertained and has not deposed.
In this regard it can be stated that it has already been found by the learned Trial court that the same cannot be treated as a dying declaration as the maker of the same has not died and is still alive. Moreover that is not the only evidence to prove the prosecution case and at best it may be considered as a supporting evidence along with other reliable evidence like the evidence of P.W.7, who is the best witness of the occurrence, besides the corroborative evidence of other witnesses. Further as per the evidence of the doctor concerned P.W.9, at whose instance the statement of the victim girl was recorded by one of his house surgeons as per statement of the victim girl in his presence and who put an endorsement with his signature in that statement, has proved that in the court and has been marked Exhibit. 5(a), and P.W.10, the staff nurse of the hospital concerned, who was on duty in the concerned ward, has corroborated P.W.9 by deposing that the said statement was recorded in her presence and she has proved her endorsement and signature thereon, which has been marked Exbt.5 (b). As such there is no reason to disbelieve the authenticity of the said document or statement merely because the writer of the same has not been ascertained or examined or the said house surgeon Papiya Majumder has not been examined, when that was written as per the instruction of P.W.9 in presence of P.Ws.9 and 10, who made endorsement thereon with their signature. It also appears that the prosecution case as stated by P.W.7 and other P.Ws. that on the 7th February, 1999 in the night around 12 O'clock while the patient Rabia Khatoon was sleeping with her husband then her husband poured kerosene on her and lit a match, whereby she sustained burn injury and her husband was holding her hands with the intention to murder her so that she cannot escape, has fully been supported thereby.
The conduct of the appellant and the circumstances under which the said incident took place should also be considered in this regard. It appears from the evidence of P.W.7 and other P.Ws. that after the P.W.7 sustained burn injury while she was sleeping in the bed room with her husband in the night, her husband neither raised any alarm nor took any step to douse the fire or taking the P.W.7 to the hospital, rather he remained silent and fled away and P.W.7 was taken to the hospital by her uncles-in-law Belal and Kuddus. Moreover, P.W.7 sustained burn injury while herself and her husband were sleeping in their bed room in the late hours of night after taking their meal. In that case it was incumbent upon the husband only to explain how his wife P.W.7 sustained burn injury and what step he took thereafter for the treatment of his wife, but her husband has failed to explain that sufficiently and has failed to prove his explanation by evidence and has failed to take appropriate step in that regard, which failure unerringlyly points to the guilt of the appellant as well as his intention to get rid of her by burning her and attempting to murder her.
Though it appears that the said incident took place on 07.02.1999 and the matter was informed at the police station on 14.02.1999 and consequently there was seven days delay in informing the matter at the police station and it has been alleged by the defence that such delay in informing the matter at the police station is fatal to the prosecution case, yet it appears that the learned Trial Court has elaborately discussed this point in his judgment and has rightly come to the conclusion that such sort of delay is very reasonable in the present context of the society. In this regard learned Trial court has also observed that it is well proved from the evidence of the P.Ws. and from the statement of the accused under Section 313 of the Criminal Procedure Code that the accused persons did not bring back Rafia to their house and as per the evidence of P.W.1 since her release from the hospital his daughter Rafia has been residing in his house and practically he lodged complaint after lapse of seven days because he thought that if she survives then what would be her fate if FIR is lodged. Learned Trial Court has also rightly observed in this regard that it is the normal expression of the father of a married daughter and practically in our society, specially when the Muslim community is very much rigid in their religious concept, in such sort of cases the members of father's family of such daughter do not try to express or expose sometimes themselves to save their daughters so that the early married life of such daughter is not terminated for any such incident and their future married life becomes peaceful. As such it appears that the delay in lodging FIR at the police station in this case has adequately and sufficiently been explained. Mere delay in lodging FIR at the police station is not fatal and it becomes fatal if it is not properly and sufficiently explained, but in this case it appears that the delay in lodging FIR at the police station has properly and sufficiently been explained and as such it is not fatal to the prosecution case.
Mr. Shiladitya Banerjee, learned Counsel for the appellant has argued that some of the neighboring witnesses of this case like P.Ws. 5,6 have been declared hostile in this case and they have not supported the prosecution case. In this regard it may be said that the evidence of hostile witnesses cannot be brushed aside altogether when the prosecution case has been proved by other reliable evidence beyond all reasonable doubt. It has also been held by the Hon'ble Supreme Court in the decision of Haradhan Das vs State of West Bengal reported in (2013) 1 C.Cr.LR (SC) 569 at 577 in Para 14 that-"It is settled principle of law that the statement of a witness who has been declared hostile by the prosecution is neither inadmissible nor is it of no value in its entirety. The statement, particularly the examination-in-chief, in so far as it supports the case of the prosecution is admissible and can be relied upon by the court".
Mr. Shiladitya Banerjee, learned Counsel for the appellant has further contended that as per he evidence of the I.O, P.W.8, as well as the statement of the appellant during his examination under Section 313 of the Criminal Procedure Code the appellant Asiruddin was arrested on 14.02.1999 and as P.W.8 found burn injury on his hands so he was treated at Indpur Hospital. Though the incident of his wife's sustaining burn injury took place on 7.02.1999, yet why he did not get himself treated on that date, has not been explained. If he sustained burn injury on that very date and tried to save his wife, then surely he would have got himself treated for any burn injury on 7.02.1999. In such circumstances there is force in the submission of the learned Counsel for the state that the said burn injury of the appellant for which he was treated lateron was self-inflicted to save himself from the prosecution case. Moreover, it appears therefrom that he was treated at Indpur hospital while his wife was treated at Bankura hospital. If he sustained burn injury on 7.02.1999, then why he was not also treated then, has not been explained. As such it would not be unjust to presume that he did not at all try to save his wife on 7.02.1999 and received no burn injury then, and his burn injury found on 14.02.1999 was self-inflicted and the learned Trial Court also found like that.
Mr. Shiladitya Banerjee, learned Counsel for the appellant has further contended that there was no eye-witness to the alleged incident and that has not been proved by the evidence of any eye witness. But in this regard the circumstances under which the said incident took place are to be considered. As per the prosecution case the incident took place in the night when after taking meal the husband and wife were sleeping in their bedroom in her father-in-law's house and suddenly she felt a burning sensation and found that her husband was standing there catching hold of her hand and when she shouted then her husband pressed her hands and mouth very tightly and she tried to remove her wearing saree but sustained burn injury from her waist to the lower part of leg as her husband flashed fire on her body. So it appears that at the relevant time P.W.7 and her husband only were present in their bed room and were sleeping there in the night after taking meal and under such circumstances there was no possibility of any other's presence there and so there was no question of presence of any eye witness there at that time.
The conduct of the husband also does not appear to be normal under such circumstances as being husband he took no step for taking his wife to the hospital or making any arrangement for her treatment even knowing that she has sustained burn injury and even after her release from the hospital P.W.7 is residing in her father's house and as per the statement of the appellant under Section 313 of the Criminal Procedure Code after release of P.W.7 from the hospital she is residing in her father's house and they did not take her back. Such indifference towards a married wife is not expected from a responsible husband. Even for argument's sake the sustaining of burn injury by P.W.7 was accidental then also it was incumbent upon the appellant to take proper care of her by making proper arrangement for her treatment. This fact also shows that the allegation of setting fire upon P.W.7 by the appellant was not false, rather that was true and intentional.
Having regard to the submissions of the learned counsel for the parties, the facts and circumstances of the case, evidence, the judgment and other materials on record it appears that the case of the prosecution that the appellant tortured his wife for money and set fire on the body of his wife, P.W.7, with the intention to kill her and actually attempted to kill her thereby, while they were sleeping together in their bed room in the night after taking meal whereby the P.W.7 sustained 35% burn injury from her waist to leg on both front and back sides of her body, has been proved by sufficient reliable evidence beyond all reasonable doubt, and the reliable evidence of the P.Ws. and the circumstances unerringly point to the guilt of the appellant, and as such the learned Trial Court was fully legal, correct and justified in convicting and sentencing the accused/appellant for the offence under Sections 498A/307 of the Indian Penal Code and in the circumstances of the case the sentence imposed upon him does not appear to be excessive or unreasonable. As such there is no reason to interfere with the same as the appeal has no merit.
As a result the appeal fails and is dismissed.
The judgment and order dated 17th December, 2003 passed by the leaned Additional District and Sessions Judge, Second Court, Bankura, in Sessions Case No.9 (11) 2001/ Sessions Trial No.3(2) 2002 is hereby affirmed.
The appellant be taken into custody to serve out the remaining part of his sentence.
Let a copy of this judgment along with the lower Court Record be sent down to the learned Court below at once.
Urgent Photostat certified copy of this judgment be given to the parties, if applied for, on compliance of usual formalities.
I agree.
(ASHIM KUMAR ROY, J.) (MRINAL KANTI SINHA, J.)