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THE COURT OF ADDITIONAL SESSIONS JUDGE (FTC) :::::::::::::
BARPETA
(Committed on 6/03/ 2010 by Ld. S.D.J.M(S) Barpeta, in P.R.C.
Case No. 312/2009 )
Present : Shri C.Das,
Addl. Sessions Judge (FTC),
Barpeta
Sessions Case No. 21/10 u/s 302/304-B/34 I.P.C.
State
-Versus -
1. Md. Bipul Ali
2. Md.Anamul Hoque
3. Ms.Waheda Begum
4. Md.Nurul Islam
5. Ms.Minarun Nessa
6. Ms.Anowara Begum
7. Md.Saffuder Rahman
...................Accused
Advocate appeared : For the State : Mr. M. Ahmed, Addl. PP.
: For the Accused : Mr. D. D. Talukdar, Mr. K.B. Das
Dates of recording evidence : 2/06/11,16/07/11,7/09/11,
27/02/12,
18/05/12,13/06/12, 9/07/12, 1/04/13,
28/05/13, 20/06/13, 9/09/13, 9/02/15,
30/04/15
Date of argument : 8/10/15
Date of Judgement : 15/10/15
J U D G E M E N T
1. The case of the prosecution in brief, is that on 19/12/2007,
the informant Rana
Ojah, lodged an ejahar before the police, alleging inter-alia
that his sister, namely;Ms.
Mamoni Begum @ Rumi Ojah was married by the accused Bipul Ali
about 4 years back.
His sister Rumi was working as A.N.H. nurse. On 3/12/2007,
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when Rumi came to her home with her monthly salary, the accused
Bipul Ali entered into
quarrel with her in connection with hand over salary money.
Thereafter, the accused Bipul
Ali had set fire on the body of Mamoni Begum @ Rumi by pouring
kerosene oil.
Immediately, Mamoni was shifted to hospital and thereafter, she
was referred to Guwahati
Medical College Hospital, Guwahati for medical treatment.
2. The police accordingly, registered the Barpeta P.S. Case
No.912/07 and started
the investigation. During investigation, the I/O recorded the
statement of the witnesses,
prepared the inquest report on the dead body of the victim woman
as well as, her dying
declaration was recorded as per the law. The I/O also , sent the
dead body of the victim
woman for Post-mortem examination. After completion of the
investigation, the I/O
having found a prima-facie case well established, laid down the
charge-sheet against the
accused persons to face trial in the court.
3. In response to the issue of porcess, the accused persons
entered appearance in the
court. They were furnished with relevant copies of the case as
required u/s 207 Crpc.
Learned S.D.J.M(S), Barpeta, having found the offence of the
case is exclusively triable
by the court of sessions, committed the case to the court of
sessions, Barpeta for trial.
Subsequently, a sessions case was registered and transferred to
this court for favour of its
disposal.
4. After hearing both the sides, a charge u/s 302/304-B/34
I.P.C., framed against the
accused persons. The charge so framed, was read over and
explained to the accused
persons who pleaded not guilty and claimed to be tried.
5. The prosecution during the course of trial, examined as many
as, 15(fifteen)
witnesses including I/O and M/O to support the case. In the
statement recorded u/s 313
Crpc., the accused persons pleaded innocence and denied all the
increminating
circumstances appeared against them in the evidence. The defence
however, examined
2(two) witnesses. The argument of
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both sides was heard at length.
6. Points for Determination :
1. Whether on 3/12/07, in furtherance of common intention, the
accused persons
committed murder by causing death of Mamuni Begum, the sister of
the informant ;
2. whether on some day, Mamuni Bugum died due to burn injury
within 7 years of
her marraige and the accused persons were in furtherance of
common intention, subjected
her to crulity or harrasement in connection with demand of dowry
;
Discussion, Decision and Reasons therefore:
7. Ld. Counsel for the accused persons submitted at the outset
of the argument that the
occurrence allegedly took place on 3/12/2007 in the house of the
accused persons. But
there was delay of 10 days in filing the FIR by the informant
Rana Ojah. He alleged that
in criminal cases if there is delay in lodging the FIR, it must
be explained with proper
reason so as to maintain the credibility and failure to do so,
it creates doubt over
genuineness of the prosecution case.
8. It was pointed out to the lacunas in the dying declaration of
the victim/woman,
Ld. Counsel for the accused persons submitted that the FIR does
not disclose any
recording of the dying declaration of the victim womanin the
case. He further maintained
that the evidence on record clearly, indicates that the
husband/accused Bipul Ali
attempted to douse the fire to save the victim wife. In this
process, even the hands of
accused Bipul Ali received burn injury. Therefore, it can not be
said that the accused
Bipul Ali had set fire on the body of his wife and as such, the
dying declaration is very
suspicious and contradictory to the evidence onrecord. He
further submitted that there is
no evidence that the accused persons demanded dowry to the
victim and in this
connection, the accused persons caused harrasement to the
victim/woman.
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9. He stated that the victim/woman and Bipul Ali fell in love
and both of them
married at Dhubri while the victim was working as nurse of local
hospital in Dhubri
district. Later on, both of them came and lived together at
'Chenga' near Nagaon in
Barpeta district. But they had no issue.
10. According to Ld. Counsel for the accused persons, no
witnesses of the
prosecution deposed that the accused Bipul Ali demanded dowry
and as such, caused
torture the victim/woman. Even PW4 stated that the accused Bipul
Ali borrowed some
money from him to meet the medical treatment expances of the
victim/woman and
therefore, the allegation against the accused Baipul Ali is very
doubtful without any basis
of the evidence on record while there is no evidence or
allegation against the other
accused persons. There is also, contrary evidences tendered by
the witnesses of the
prosecution in relation to their statements recorded u/s 161
Crpc. There is also, no seizure
of any increminating goods which can support the prosecution
story.
11. Learned Counsel for the accused persons submitted that the
dying declaration is
admissible in evidence u/s 32 of evidence Act. But there is
certain rules which are
required to be followed while recording dying declaration of a
deceased person. But in
Ext.4, there is no certificate recorded to the satisfaction and
fitness of the person who
tendered such dying declaration. Hence, the dying declaration
vide Ext.4 is not acceptable
in evidence. According to learned counsel for the accused
persons, it is a suicidal case as
it shows from its nature resulting unfortunately, due to quarrel
the husband and wife and
as such, the accused persons are entitled to be acquitted from
the charge of the offence in
the light of benefit of doubt. Ld. Counsel for the accused
persons relied the decisions
reported in (2015) 1 GLR 664, Jahidul Islam vs. State of Assam;
Puran Chand vs.
State of Haryana, Cril.Appeal No.1818/09, passed by Supreme
Court on 13/5/10 and
AIR 2008 SC 1426, Sher Singh vs. State of Punjab in the matter
of recording of dying
declaration.
12. Per contra, Learned Addl. Public Prosecutor submitted in
support of the
prosecution case and further submitted that the witnesses of the
prosecution
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is sufficiently corroborated with each other on material points
and also, narrated the story
by which, it can easily be held that the death of the victim was
caused by the accused
persons which is unnatural in nature. He vehemantly argued that
the evidence on record is
sufficient enough to bring home the charge against the accused
persons. He also,
submitted that it is not a case of sucidal in nature and as
such, he urged to convict the
accused persons as per law.
13. It appears that there is no dispute that the victim Mamoni
Begum was the wife
of the accused Bipul Ali. It is not disputed that the victim
Mamoni Begum died due to fire
set on her body and the accused Bipul Ali attempted to douse the
said fire. The dying
declaration was recorded vide Ext.4 in the hospital by PW13
Ms.Karabi Saikia Karan, an
Executive Magistrate. The occurrence took place at the residence
of the accused Bipul Ali
on 3/12/07. The prosecution examined the informant Rana Ojah as
PW1. The victim was
admittedly, the sister of PW1.
14. PW1 stated that on the fateful day, after his return to home
from Barpeta, he got
the informantion that his sister Rumi Ojah @ Mamoni Begum
sustained burn injury and
so, she was taken to Barpeta Civil Hospital for treatment.
Accordingly, he came to
Barpeta Civil Hospital and found his sister was seriously
injured condition due to
burning. The doctor of the hospital referred her for further
treatment to GMC & H,
Guwahati and the injured Rumi Ojah @ Mamoni informed him that it
was not an accident
but intentionally her husband, Bipul Ali caused the said
incident by putting her into fire.
At the time of incident, his sister was serving at PHC, Nagaon,
as staff Nurse, and she got
the salary of Rs.10,000/- per month. While she was return back
to her house with her
salary money, the accused Bipul Ali demanded the money with
another amount of
Rs.5,000/- from her. The accused Bipul Ali snatched away
Rs.15,000/- from his sister. It
is also, informed by the injured/victim to him that the accused
Bipul Ali assaulted her
physically by means of a belt and as a result, she sustained
injury on her head and the
accused Bipul Ali had set fire on her with the help of Kerosene
and match box. About 4/5
years prior to the said incident,
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the accused Bipul Ali married his victim/sister but both of them
had no issue and as such,
there was always some misunderstanding between them. His
victim/sister informed him
that the accused Bipul Ali had illicit relation with his
brothers' wife. In respect of above
the said incident, he lodged the FIR vide Ext.1 with his
signature. His victim/sister also,
give a dying declaration and same was recorded. The police
conducted the inquest on the
dead body of his sister vide Ext.2 with his signature.
15. Thus, the evidence of PW1 shows that he was not an eye
witness of the
occurrence but, he was reported about the incident by the
victim/woman herself before
her death at the hospital. Since PW1 heard the incident from the
victim/woman directly,
his evidence is admissible in evidence u/s 60 of Evidence Act.
The evidence of PW1
clearly, indicates that prior to the incident, the accused Bipul
Ali inflicted physical assault
to the victim/woman by means of a belt on her head and snatched
away of Rs.15,000/-
from her. Thereafter, the accused Bipul Ali set fire on the body
of victim/woman by
pouring kerosene oil.
16. The evidence of PW2 Sri Nishi Kanta Pathak who is the
Gaon-burah of the
locality of the PW1, is that when he went to the house of the
accused Bipul Ali, he found
that the victim/woman received injury due to fire burn. The hand
of the accused Bipul Ali
was also, burnt but he could not say how the fire was set on the
victim/person. Even
though, it appears that PW2 was not an eye witness of the actual
incident, his evidence
confirms that the victim/woman received burn injury to her
person and in this respect,
PW2 supports the version of PW1.
17. PW3 Rouf Uddin Ahmed stated that on the fateful day, on
hearing about fire
from his house, he went to the place of occurrence and saw that
the victim Mamoni
Begum was burnt by fire. The women present covered the body of
the victim/woman but
he could not say how the fire was caught on the body of the
victim/woman. He stated that
there was no quarrel between the victim/woman and the accused
Bipul. Thus, the
evidence of PW3 also, supports the fact that the victim received
burn injury. But as
regards to relationship
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between the victim/woman and the accused Bipul Ali, he does not
lend suppport to the
version of PW1.
18. PW4 Siraj Ali deposed that on hearing the incident, he went
to the house of the
Bipul Ali but, he did not find the accused Bipul Ali. He came to
know that the
victim/woman was taken to hospital where she died. In the
cross-examination, PW4
stated that the accused Bipul Ali and his wife had a good
relationship. So, PW4 also,
supports the fact that the accused Bipul Ali had cordial
relationship with his victim wife.
19. PW5 Sahibar Rahman deposed that on hearing hue and cry, he
rushed to the
house of the accused Bipul Ali and found that the victim/woman
was burnt by fire and
she shouted for help. He saw also, that the accused Bipul Ali
was trying to douse the fire
from the body of the victim/woman. He tried to help to douse the
fire from the body of
the victim/woman. Thereafter, he enquired about the incident and
the victim Mamoni
reported him that due to lost of control over her mind out of
rage, she set fire on her body
herself. The victim/woman was shifted to the civil hospital,
Barpeta and thereafter, she
was reffered to GMC & H, Guwahati for further treatment. On
20/12/07, the victim
Mamoni Begum died at GMC & H, Guwahati.
20. Accroding to PW5, the accused Bipul Ali suffered burning
injury in the
occurrence. Thus, the evidence of PW5 discloses that he was
reported witness of the
incident and saw the fire caught on the body of the
victim/woman. His evidence shows
that victim herself set fire on her body as reported to PW5.
Such the evidence of PW5
therefore, has contradicted the version narrated by PW1.
21. PW6 Md. Jaminur Ali deposed that on hearing the incident, he
rushed to the spot
and saw that the victim/woman was injured by fire burning. He
heard from local people
that the victim/woman herself set fire on her body. But he could
not say the reason same.
Thus, the evidence of PW6 supported the claim of PW4 and 5. But
he contradicts the
evidence of PW1.
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22. PW7 Rafit Ali deposed that he was present at the time of
conducting inquest on
the dead body of the victim/woman. He found burn injury on the
body of the victim. Ext.
2 is the inquest report with his signature. The evidence of PW7
relates only to the inquest
of the dead body of the victim.
23. PW8 Ms. Jahera Khatun stated that the victim/woman was her
daughter. She
stated that on the fateful day, the victim/woman came to the
bank with the
accused/husband Bipul Ali to withdraw her salary money. After
return to home at about 4
P.m., the accused Bipul Ali demanded Rs.10,000/- from the
victim/woman. Accordingly,
the victim/woman handed over Rs.16,000/- to the accused Bipul
Ali. On enquiry of the
victim/woman regarding demand of such money, the accused Bipul
Ali entered into
verbal quarrel with the victim/woman and the victim/woman was
physically assaulted by
the accused Bipul Ali. Prior to that also, the accused Bipul Ali
caused physical assault and
mental tortured to the victim/woman, on account of having no
issue. This fact was
reported to her by the victim/woman. The victim/woman also,
reported her that the
accused Bipul Ali had illicit relationship with other women and
on the fateful day, the
physical assault was caused to the victim/woman for demand of
Rs.16,000/- and the
accused Bipul Ali snatched away the money from the victim/woman.
Thereafter, the
accused Bipul Ali had set fire on the body of the victim/woman
by pouring kerosene oil.
Before setting fire on the body of the victim/woman, the accused
Bipul Ali grabbed the
victim/woman and as a result, he also, suffered injury by fire.
Thereafter the
victim/woman was taken to hospital.
24. Thus, the evidence of PW8 shows that she is the mother of
the victim. It appears
that PW8 corroborates the version of PW1. Both PW1 and 8 are
however, closed
relatives of the victim/woman.
25. PW9 Abul Kalam stated that on the fateful day, at about 4
p.m., the accused Bipul
Ali had set fire on the body of the victim Mamoni Begum by
pouring Kerosene oil.
Accordingly, the victim/woman was admitted into the hospital.
The victim/woman
reported him in the GMC & H, Guwahati that when she brought
the salary money to
home, the accused Bipul Ali took her money
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and accordingly, the accused Bipul Ali took Rs.16,000/- from
her. In connection with said
money, the victim/woman had verbal quarrel with the accused
Bipul Ali who assaulted
the victim Mamoni Begum physicaly and set fire on her body by
Kerosene oil. Due to
burning by fire, the victim Mamoni was shifted to hospital.
Thus, the evidence of PW9
corroborates the version of PW1 and 8 that it was the accused
Bipul Ali who set fire on
the body of the victim/woman after entering into a verbal and
physical assault with the
victim/woman in connection with money.
26. PW10 Dipul Ali stated that due to burn injury, the victim
Mamoni Begum died.
He signed on the inquest report vide Ext. 2. Apparently, PW10
was a witness of Ext.2.
27. Even though the burn injury suffered by the victim/woman as
well as, her death is
not at all, in dispute between the parties, the prosecution
examined PW11 Dr. Pradip
Talukdar. He deposed that on 25/12/07, at GMC & H, Guwahati,
he conducted the Post-
mortem examination on the dead body of Rumi Ojah @ Mamoni, wife
of Bipul Ali. The
body was brought to the hospital and identified by police and
PW1. He found the injuroes
as:
A burnt female dead body of dark brown complexion. Rigor motris
present
all over the body and developed. Eyes and mouth partly opened.
Anus and vagina
helathy.
Injury :
Dermo -epidernal burn injury present all over the body except
sole scalp
and perineum. All burnt areas are covered with unhealthy
granulation tissue.
Foul smelling discharge and dressing materials areas of
hyperaemia. No ligature mark
present on neck and on dissection underlying tissues are
healthy.
Organs of generation, extema and internal all healthy. Stomach
congested and
contained liquid material with no suspicious smell.
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Both lungs are congested and on cut section pus like foul
smelling material
loming out.
28. According to PW11, death was due to exhaustion resulting
from ante-mortem
dermo – epidermal burn injury. Total body surface area brunt are
95-98%. Time since
death 1 to 4 hours (appprox). Ext.3 is the Post-mortem report
and Ext.3(1) is his
signature. The evidence of PW11 confirms further that due to
burn injury to the extent of
98% with foul smell on the body of the victim, Mamoni Begum @
Rumi Ojah died.
29. PW12 Mr.Chinmoy Prakesh Phukan is an Executive Magistrate,
who prepared the
inquest report vide Ext. 2. He noticed the burn injuries on the
body of the deceased. It is
needless to say that in the light of evidence of PW11, it
confirms that the victim/woman
suffered burn injury on her body and as a result of which, her
death was caused.
30. It is admitted fact that the dying declaration was given by
the victim/woman
which was recorded by PW13 Karabi Saikia Karan who is also, an
Executive Magistrate.
PW13 deposed that on 24/12/07, she recorded the dying
declaration of Mamoni Begum
@ Rumi Ojah. At the time of recording of her statement, she was
able to relay about the
whole incident what was occurred against her. It was burn case.
She recorded the
statement of the victim/woman as per her instruction. After
recording her statement, she
read over and explained to the victim/woman and she put thumb
impression on the
statement. She took the thumb impression of the victim/woman in
presence of the
witnesses. Ext.4 is the dying declaration with her
signature.
31. The evidence of the I/O; PW14 shows that he investigated the
case and he
proved the dying declaration vide Ext.4, after complying all
formalities and collection of
post-mortem examination report and drawing up sketch map vide
Ext.6,laid down the
charge-sheet vide Ext.5. The evidence of PW15, another I/O of
the case relates to prove
of Ext.4.
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32. This Ext.4 is the main challenge of the defence side. On
perusal of dying
declaration on vide Ext.4, it appears that it was solely
recorded by PW13. The
victim/woman stated to her that on the fateful day, the
victim/woman brought Rs.10,000/-
as her salary money. But the said money was taken away by her
husband/accused Bipul
Ali. In addition, her husband took away another amount of
Rs.5,000/- also, from her. On
the enquiry of the victim/woman for such money, her husband did
not reply but
demanded Rs.16,000/- from her. Thereafter, her husband brought
kerosene oil and pore
into her body before causing physical assault to her by means of
belt. Due to her scream,
her sister– -in–laws and local people saw the incident no
interferance was made.
Thereafter, her husband set fire on her body by means of match
box. Earlier also, her
husband used to torture her physically. The relatives of her
husband in the above
connection, always remains as spectators. As such, she blamed
all family members of her
husband for the incident. Her husnand had close relationship
with the accused Sahida
Begum. Earlier, she was working at Dhubri and later on, she came
to Barpeta. Since she
had no issue, the quarrel used to take place between her with
her husband. Her husband
also, entered quarrel with her in connection with the accused
Sahida Begum and as such,
she blamed her husband totally. Nobody has pore water to her
body on the fateful day.
Her belongings should be returned to her parental home.
33. Thus, from the contents of Ext.4, it appears that
victim/woman implicated the
accused Bipul Ali for setting fire on her body in connection
with quarrel for money and
causing hurt to her. Ext.4 was recorded by PW13 who is an
official witness as well as, an
independent witness, unconnected with the occurrence and the
victim/woman. Though,
the victim/woman blamed the relatives of the accused Bipul Ali,
who are the co-accused
persons in this case, including the accused Waheda Begum, there
is no such direct
evidence found for causing hurt and death of her against the
said accused persons.
34. The view of decision of Jehidul Islam case (supra), is that;
Dying declaration can
be used for recording a verdict of conviction against a person
provided such dying
declaration is found to be truthful, voluntary and free from all
infirmites-- Court has to be
on guard that statement of deceased was not as
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a result of either tutoring, prompting or a product of
imagination. The prosecution made
no attempt to find out if the victim made any statement in the
nature of dying declaration
before more persons-- Claim of PWs that deceased made
declaration implicating the
accused person with the crime in question found to be
erroneously suspicious-- Fact of
making dying declaration
not stated in the FIR though the FIR was lodged at a later point
of time– Prosecution
could not establish beyond reasonable doubt that the victim
before her death made a
statement in the nature of dying declaration- Prosecution failed
to prove the charge
levelled against the accused person beyond all reasonable doubt
-- Conviction and
sentenced set aside.
35. On perusal of above decision, it appears also, that deceased
allegedly set on fire
by the accused/appellant-- conviction passed on the basis of
dying declaration of
deceased made to close relatives of the deceased – medical
officer conducted the inquest
on the dead body of the deceased found 70% of the body suffers
burnt by fire-- doctor
also, opined that he could not say if a person with 70% burn
injuries can remained
mentally fit to make a statement in the nature of dying
declaration.
36. Thus, it appears that in the above case, what is found that
dying declaration of the
deceased was oral and not reduced to writting. Such dying
declaration was made orally by
the deceased person to her close relatives. The PWs only
narrated it without
however,mentioning it in the FIR which was lodged at a later
stage. But in the instant
case, the fact is quite different. The dying declaration in this
case was recorded by an
indenpendent official witness vide Ext.4. It is correct to say
that the FIR of this case does
not mention any fact of dying declaration made by the victim
woman. But the evidence of
PW13 along with existence of Ext.4 cannot wipe out the
credibility of the prosecution
story. No doubt, there is delay inlodging the FIR vide Ext.1 in
this case. The delay has
been explained in Ext.1 that due to medical treatment of the
deceased, the delay was
caused. Such explanation of delay is found to be satisfactory
considering the nature of
injuries of the victim/woman. Therefore, the dying declaration
made by the vicim woman
does not get a place in the FIR cannot be a ground to look Ext.4
under the shadow of
doubt.
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37. Hence, the view recorded in Jahidul Islam case (supra) is
not applicable in this
case. However, it appears from the evidence of PW1 that he was
reported about the
occurrence by the deceased orally. He is supported by PW8. Both
of them are close
relatives of the victim/woman and implicated the accused Bipul
Ali for causing death of
victim/woman by fire. On the other hand, it appears that PW5 was
also, reported by the
victim/woman regarding the incident. However, the evidence of
PW5 discloses that the
victim/woman never implicated the accused persons particularly,
the accused Bipul Ali in
the occurrence rather, she blamed herself for the occurrence.
PW6 stated that he heard
from the public that the victim/woman set fire by herself. Thus,
it shows diverse versions
come from the witnesses of the prosecution which are
contraductory to each other and as
such, the dying declaration so made by the victim/woman to PW1,
5, 6 and 8 is of nature
of oral dying declaration. Since, their versions are
controductory to each other on material
point, their evidence is not at all relaible and trustworthy.
Therefore, oral dying
declaration of the victim/woman as claimed by PW1, 5 and 8 is
not safe and not reliable
to accept to act upon.
38. In Puran Chand vs. State of Haryana, Hon'ble Supreme Court
in criminal
appeal No.1818 of 2009, held on 13/05/2010, that the courts
below have to be extreamly
careful when they deal with a dying declaration as the maker
thereof is not available for
the cross-examination which poses a great difficulty to the
accused person. A mechanical
approach in relying upon a dying declaration just because it is
there is extremely
dangerous. The court has to examine a dying declaration
scrupulously with a microscopic
eye to find out whether the dying declaration is voluntary,
truthful, made in a conscious
state of mind and without being influenced by the relatives
present or by the investigating
agency who may be interested in the success of investigation or
which may by negligent
while recording the dying declaration.
39. Thus, the above decision has directed to be alert to the
courts to be very
conscious and careful while relying a dying declaration. It is
to see that such dying
declaration is made voluntarily and it contains truthful version
of
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facts and also. made in a conscious state of mind with out being
influenced by any body
interested with the case.
40. Again, in Sher Sing vs. State of Punjab, AIR 2008 SC 1426,
it was observed
that What is essential is that the person recording the dying
declaration must be satisfied
that the deceased was in a fit state of mind. This decision
prostulates fitness of mind of
the deceased person while making dying declaration.
41. Further in Manju Raja vs. State of UP, 1976 Crl. LJ. 1718,
it was held that
there is neither rule of law nor prudence that dying declaration
cannot be acted upon
without corroboration.
42. In State of UP. vs. Ram Sagar Yadav, 1986 Crl. LJ. 836, it
observed that if the
court is satisfied that the dying declaration is true and
voluntary, it can base conviction on
it, without corroboration.
43. Another decision reported in Rama Chandra Reddy vs. Public
Prosecutor,
1976 Crl. LJ. 548, it was held that this court has to scrutinize
the dying declaration
carefully and must ensure that the declaration is not the result
of tutoring, prompting or
imagination. The deceased had opportunity to observe and
identify the assailants and was
in a fit state to make the declaration.
44. It was observed in Rasheed Beb vs. State of MP., 1974 Crl.
LJ. 361 that where
dying declaration is suspicious it should not be acted upon
without corroborative
evidence.
45. In Kake Singh vs. State of MP. 1982 Crl. LJ. 1986, it was
held that where the
deceased was unconscious and could never make any dying
declaration the evidence with
regard to it is to be rejected.
46. Again, in Ram Manorath vs. State of UP., 1981 Crl. LJ. 581,
it was held
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15
that a dying declaration which suffers from infirmity cannot
form the basis of conviction.
47. In State of Maharashtra vs. Krishnamurthi Laxmipati
Naidu,
MANU/SC/0238/1980, it was held that merely because a dying
declaration does not
contain the details as to the occurrence, it is not to be
rejected.
48. Further, in Laxman vs. State of Maharashtra (2002) 6 SCC
710, it was held
that if the person who records a dying declaration is satisfied
that the deceased was fit to
make a dying declaration, then such dying declaration can be
accepted even if there is no
certifcation of the doctor that the deceased was mentally fit to
make such declaration and
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. 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.
49. Hence, the above law in respect of recording of a dying
declaration of a deceased
person emphasised on its mental fitness of such persn to the
satisfaction of its recording
person and it must contain voluntariness with truthfulness of
fact. A certification by
medical officer is however, is a rule of caution but not binding
by law. Therefore, it can
be said that there is some relaxation under the law here and
there whithout having water
tight hard and fast rule while recording a dying
declaration.
50. On perusal of Ext.4, it appears that PW13 recorded the dying
declaration of the
victim/woman on GMC & H, Guwahati on proper requisition of
the police out post
situated thereof with referrence to this case. There was no such
note of satisfaction made
by by PW13 while recording it. However, it indicates from the
top note in Ext.4 that
PW13 implied satisfection with mental fitness of the
victim/woman before recording the
dying declaration. It must be remembered that such dying
declaration vide Ext.4 was
recorded by PW13 in
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the hospital and as such, it can not be ruled out that it was
not done under supervision of
medical officer since without permission of attending medical
officer, PW13 as well as,
the police, could not have able to record the dying declaration
of the victim/woman who
was admitted in the hospital at the relevant time. Therefore, it
implies from the above fact
that PW13 was allowed by medical officer to record the dying
declaration of the
victim/woman on the basis of her fitness.
51. The contents in Ext.4 clearly indicates that the
victim/woman was in a consicious
state of mind and fit to narrate the incident. The incident so
narrated, by the
victim/woman corroborates the claim of PW1 and other witnesses
in support of the
prosecution. Hence, it can not be said that the PW13 recorded
the Ext.4 without any
satisfaction and without under supervision of medical officer.
It appears also, that PW13
being an official and independent witness, cannot be influenced
by any relatives of the
victim/woman neither by the investigating agency. Hence, I find
that there is no infirmity
to reject Ext.4, made by the victim/woman and recorded it by
PW13.
52. The contents of Ext.4 clearly indicates upon mind that the
victim/woman narrated
the actual incident which was so happened, immediately before
her death. What was
happened prior to setting her to fire by the accused Bipul Ali
that he demanded money so
drawn up by the victim/woman on that day without expressing any
reason and on her
inquiry, the accused Bipul Ali entered into verbal quarrel with
her and even he assaulted
the victim/woman by means of a wearing belt. It is admitted fact
that both the
victim/woman and the accused Bipul Ali fell in love before their
marriage. They had no
issue and according to the victim/woman, the accused Bipul Ali
used to quarrel with her
perhaps, for the reason that she could not give birth to a
child. Furthermore, no woman of
ordinary prudence would like to implicate her husband unless,
there was bittering and
uncordial relationship existed prior to the occurrence.
53. It appears from the Ext.4 that there was cordial
relationship existed with the
accused Bipul Ali and his relatives with the victim/woman. She
was not
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happy for growing up relationship between the accused Bipul Ali
and Waheda Begum
secretly. Under such circumstance, it cannot be ruled out that
the accused Bipul Ali lost
control over his mind for making enquiry by the victim/woman for
his money demand.
There is no dispute that the accused Bipul Ali had verbal
quarrel with the victim/woman
immediately before the occurrence. Hence,out of rage, the
accused Bipul Ali set fire on
the body of the victim/woman with using kerosene oil which is
highly inflammable
product. In the light of above facts and circumstances, it
cannot have any hesitation to
hold that the dying declaration of the victim/woman contains
truthful facts which was
made voluntarily. Accordingly, I find that Ext.4 is a reliable
piece of evidence to act upon.
54. There is no denial that the incident occurred within 7 years
of married of the
victim Mamoni Begum with the accused Bipul Ali. The Ext.1
supported the above fact.
The offence under section 304-B IPC., read as “where death of
woman is caused by any
burn injuries for bodily injuries occurs otherwise, then under
normal circumstances
within 7 years of her marraige and it is shown that soon before
her death, she was
subjected to cruelty or harrassment by her husband or any
relatives of her husband for, or
in connection with, any demand for dowry, such death shall be
called ''dowry death'', and
such husband or relative shll be deemed to have caused her
death. In the explanation to
above provision, it reads as that for the purpose of this
section, ''dowry'' shall have the
same meaning as in section 2 of the Dowry Prohibition Act
1961.
55. Further u/s 113-B of Evidence Act, it reads as that when the
question is whether
a person has committed the dowry death of a woman and it is
shown that soon before her
death such woman had been subjected by such person to cruelty or
harrassement for, or in
conection with, any demand for dowry, the court shall presume
that such person had
caused the dowry death.
56. The section 2 of Dowry Prohibition Act reads that “dowry”
means any property
or valuable security given or agreed to be given either directly
or indirectly--
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(a) by one party to a marriage to the other party to the
marriage; or
(b) by the parents of either party to a marriage or by any other
person,
to either party to the marriage or to any other person;
at or before or [any time after the marriage] [in connection
with the marriage of the said
parties, but does not include dower or mahr in the case of
persons to whom the Muslim
Personal Law (Shariat) applies. It also, provided in the
explanation that the expression
“valuable security” has the same meaning as in section 30 of
IPC.
57. In AIR 1997 SC 1873, it was held with referrence to above
provisions of law
that presumption of dowry death –which can be raised-- no
evidence of cruelty or
harassement by husband or relative for dowry - presumption not
available.
58. The evidence on record as well as, Ext.4 makes it clear that
the accused Bipul
Ali tortured the victim physically in connection with demands of
money. In any case,
such demand cannot be included as cruelty or harassment for
dowry demand since it does
not relates to their marriage. Hence the presumption u/s 113-B
Evidence Act. It appears
that the fact that the accused Bipul Ali took away salary money
from the hands of the
victim/woman on the fateful day as well as, on earlier
occasions, does not attract the
section 2 of Dowry Prohibition Act. The quarrel for salary money
by the accused Bipul
Ali with the victim/woman cannot be termed as dowry under above
law.
59. But it is admitted fact that only the accused Bipul Ali was
present with the
victim/woman at the relevant time and he was the main eye
witness of the occurrence. It
appears that he tried to douse the fire that caught the body of
the victim/woman and in the
process, his hands were burnt by fire. Be that as it may, it is
not sufficient to hold that the
accused Bipul Ali was innocent and the fire set by the woman
herself on her body when
there is Ext.4. The accused Bipul Ali under the above
circumstances, appears to have
special knowledge of the incident of death of victim/woman and
as such, he is liable to
expalain the fact to prove his innocence u/s 106 of Evidence
Act. The burden lies on the
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accused Bipul Ali.
60. In the above connection, it shows on record that the accused
persons tendered
evidence of 2(two) witnesses in the defence. The evidence of DW1
Salimuddin Ahmed is
that he is the brother-in-law of the victiim/woman. He stated
that the victim/woman and
the accused Bipul Ali had love affair and as such, both of them
married accordingly, at
Dhubri. Later on, both of them came to live at Nagaon in Barpeta
District. Both of them
had lived in a house separately from the relatives of the
accused Bipul Ali and they had
no issue. Thus, the evidence of DW1 shows that he tries to
indicate that the relationship
between the victim/woman and the accused Bipul Ali was cordial
in nature. But DW1
fails to explain any circumstances under which the occurrence
took place so seriously as
to cause death of victim/woman by burnt injury inside the
house.
61. The evidence of DW2 Ms. Munu Ahmed is that she is the elder
sister of the
victim/woman. She supported the version narrated by DW1. Her
evidence discloses that
the victim/woman never said that the accused Bipul Ali demanded
dowry to her and for
that, he caused any physical or mental torture to her(victim).
The evidence of DW2 also,
narrated that she was reported by the victim/woman that the fire
caught her wearing
apparels when she(victim) was cooking and the accused Bipul Ali
tried to douse the fire.
Such reported part of the evidence as narrated by DW2 cannot be
held reliable when there
is dying declaration made by the victim/woman vide Ext.4. If the
evidence of DW1 and 2
is closely observed, it appears that such version is
controductory to the dying declaration
made by the victim/woman vide Ext.4. Inasmuch as, such evidence
does not reveal any
fact which indicates innocence of the accused Bipul Ali. Nowhere
in Ext.4, it shows that
the victim/woman was cooking at the relevant time. Hence, the
evidence of DW1 and 2
cannot be helpful to the defence side. In other words,it can be
said that the accused Bipul
Ali fails to establish his innocence even by tendering
evidence.
62. As per as Ext.4 is concerned, it is admissible u/s 32 of
Evidence Act. Normally,
no person who is going to die immediately, would not narrate a
false
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statement against anybody including the husbend who is not
involved in causing of death
of such person. Therefore, a dying declaration cannot be look
under suspicious eyes
unless there is glaring mistake and doubtful circumstances
apparent on the face of the
record. It appears from the cross-examination of the I/O that
there are several omissions
in the form of contradictions in the light of provisions u/s 162
CrPC., in the evidence of
the witnesses of the prosecution. But in presence of Ext.4 which
is relied in the case, such
omissions cannot carry much weight upon the prosecution to
dislodge its evidence on
record.
63. From the Ext.4, it appears that the accused Bipul Ali was
the only person who set
fire on the body of the victim/woman due to quarrel took place
between them
immediately before the incident for salary money of the
victim/woman. It shows also, that
the accused Bipul Ali dealt blows on the victim/woman by his
belt before setting fire on
her. Thereafter, he set fire on the body of the victim/woman by
using kerosene oil and
match box. The evidence of PW11 does not suggest that there was
any residue partical of
kerosene oil on the dead body of the victim/woman but there was
fishy smell. The I/O did
not seized the match box in this case also. But it appears from
the evidence of PW11 that
98% of the body of the victim/woman was burnt. Hence, it is
probable that with the sever
burning, oil residue was also burnt away from the dead body.
There is also, no FSL
examination initiated by the I/O. Even after noticing the above
infarmities, it would
suggest that the victim/woman made the dying declaration
voluntarily with out being
influenced by her close relative and as such, the contents in
Ext.4 is accepted as truthful
under the facts and circumstances of the case. In the light of
contents of Ext.4, failure of
the I/O to seize the match box and other articles and FSL
examination if any, does not
affect adversely the prosecution case.
64. Upon relying the Ext.4, it appears that it was the accused
Bipul Ali who caused
death of the victim/woman who was his wife. There was nobody in
the room when the
occurrence took place even though Ext.4 discloses the other
accused persons were
remained as more spectators at the time of the incident.
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It can not be disputed that before the occurrence, the accused
Bipul Ali entered into
quarrel with the victim/woman for her query for demanding money
from her. Perhapes,
the agitation of victim/woman made the the accued Bipul Ali to
loss control over his mind
and in the heat of passion, he resorted to set fire on body of
victim/woman. Since, there
was no dowry demand made by the accused Bipul Ali to the
victim/woman as well as, to
her close relatives, this case does not cover u/s 304-B IPC.
65. The evidence on record clearly indicates that there was no
demand in the nature
of dowry to the victim/woman as stated earlier. But the accued
Bipul Ali committed the
culpable homicide not amounting to murder of the victim/woman by
setting her into fire
out of rage and in doing so, it appears that the accused Bipul
Ali lost control over his
mind in the heat of passion upon sudden quarrel with the
victim/woman, committed
culpable homicide of the victim/woman without premeditation of
his mind with other
accused persons. Therefore, in the light of above discussion and
facts, the offence
committed by the accused Bipul Ali comes u/s 304 I.P.C. The
crime as such, cannot come
u/s 302 IPC.
66. Even though, the victim/woman tried to implicates other
accused persons who are
the relatives of the accused Bipul Ali, in the occurrence since
they remained as mere
spectators perhaps, for failure to lend their helping hands to
her, their absence at the
relevant time near the victim/woman and also, with the accused
Bipul Ali, indicates that
they are not involved in the crime as committed by the accused
Bipul Ali. There is lack of
sufficient evidence in the light of facts and circumstances of
the case against them.
Therefore, the accused Nurul Islam, Anamul Hoque, Waheda Begum,
Minurum Nessa,
Anowara Begum and Safedur Rahman cannot be implicated in the
occurrence with the
accused Bipul Ali. But the evidence on record makes it clear
that it was the accused Bipul
Ali who caused death of the victim Mamoni Begum by setting fire
on her body. No other
view is plausible.
67. Under the above facts and cirsumstances of the case, it
appears that the
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prosecution has able to prove its case against the accused Bipul
Ali beyond all reasonable
doubt. Accordingly, the accused Bipul Ali is found guilty u/s
304 IPC.
Hence, the accused Bipul Ali is convicted u/s 304 IPC. It is
true that the charge u/s 304
IPC., was not framed against the accused earlier. But nature of
offence and its similarity
with trend of cross-examination by the defence, it does not
appear that change of
provisions would prejudice the accused in any way.
68. However, the prosecution has failed to prove its case
against the accused Nurul
Islam, Anamul Hoque, Waheda Begum, Minurum Nessa, Anowara Begum
and Safedur
Rahman beyond all reasonable doubt and so, they are found not
guilty u/s 302/304B/304
IPC. Hence, the above accused persons are acquitted and set at
liberty. Their bail bonds
shall remain in force u/s 437A CrPC.
69. Heard the accused Bipul Ali on the point of sentence which
may likely to be
imposed upon him. He stated that he is the only bread winner of
his family and in his
absence, his family would suffer immensely and as such, he prays
for leniency. It is
correct to say that there is no prove of previous conviction
against the accused Bipul Ali.
So, it appears that he is the first offender. He is stated to be
42 years of age and so, he is a
matured person. But the facts and circumstances of the case
discloses that he committed
the offence against his wife. The offence is heinous in nature
since he took the life of his
wife by setting fire on her body in most crual manner inside his
house. There is however,
shows that the accused entered into verbal quarrel with the
victim/woman immediately
before the occurrence. But he had also, beaten up the victim for
the said quarrel. He
appears to have attempted to douse the fire from the body of the
victim/woman. In the
light above, one must admit that the accused perhaps, lost
control over his mind and out
of heat of passion due to said quarrel, committed the crime
against the victim/woman.
70. Due to maturity in age and nature of offence, I find that
the accused does not
entitle to be dealt under any provisions of Probation of
Offenders Act or u/s 360 CrPC.
After condering the entire facts and circumstances of the
case
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as well as, the age, charecter or antecident and nature of
crime, the accused Bipul Ali is
sentenced to rigorous imprisonment for 10(ten) years u/s 304
IPC., with fine of
Rs.7,000/- i/d for another rigorous imprisonment for 6 (six)
months. The period
undergone already by the accused in jail is set off u/s 428
CrPC. Furnish free copy of
judgment to the accused immediately. Aslo, furnish a copy
of judgment to the District Magistrate, Barpeta.
71. Given under the hand and seal of this court on this 15th day
of October, 2015.
Dictated & corrected by me:
Sd/-
Sd/- C. Das,
Addl. Sessions Judge (FTC), Addl. Sessions Judge(FTC),
Barpeta Barpeta
conti.....annexure
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ANNEXURE
List of Prosecution Witness:
PW1 ... Md. Rana Ojah ... informant
PW2 ... Sri Nishkanta Pathak
PW3 ... Roufuddin Ahmed
PW4 ... Md. Siraj Ali
PW5 ... Md. Sahibar Rahman
PW6 ... Md. Taminur Ali
PW7 ... Rafit Ali
PW8 ... Ms. Jahera Khatun
PW9 ... Abul Kalam
PW10 ... Dwipul Ali
PW11 ... Dr. Pradip Talukdar ... m/o
PW12 ... Mr. Chinmoy Prakesh Phukan
PW13 ... Ms. Karabi Saikia Karan
PW14 ... Nagendra Nath Roy ... i/o
PW15 ... Angad Rajbanshi ... i/o
List of Defence Witness:
DW1 ... Salimuddin Ahmed
DW2 ... Ms.Munu Ahmed
List of Documents Exhibited :
Ext.1 ... ejahar
Ext.2 ... inquest report
Ext.3 ... post-mortem report
Ext.4 ... dying declaration
Ext.5 ... charge-sheet
Ext.6 ... sketch map
Sd/-
Addl. Sessions Judge (FTC),
Barpeta
