High Court · 2012

8. On receiving the case after commitment, learned Sessions Judge framed ch arge under Section 304 (B) IPC and charges so framed, on being read over and exp lained to the accused persons, they pleaded not guilty and claimed to be tried. During trial, the prosecution has examined 12(twelve) witnesses in total. The le arned Trial Court on the conclusion of evidence, tendered from the side of the p rosecution, recorded the statement under Section 313 Cr.P.C. 9. However, on being required, she declined to adduce any evidence and as s uch after hearing both the sides, the learned Trial Court convicted accused/appe llant Smti. Sakti Paul of offence under Section 498 (A) IPC and sentenced her to punishment as aforesaid. It is that judgment which has been assailed herein thi s appeal. 10. Opening up the argument on behalf of the appellant, Mr. KH Choudhury ass isted by Mr KA Roy argued that the judgment is not sustainable in law for reason s more than one. They are (1) the learned Trial Court without there being any ch arge under Section 498 IPC chose to convict the accused of offence which is high ly illegal and (2) dying declaration relied on by the learned Trial Court is not legally acceptable documents inasmuch as the deceased was not in a position to make a declaration since she has sustained 100% burnt injuries. 11. It has also been contended that there is absolutely no evidence on recor d to show that the present appellant has committed the offence prescribed under Section 498 (A) IPC. The learned Trial Court also ignored the serious contradict ions that had cropped out in the testimonies of prosecution witnesses. For all t hese reasons, the learned counsel for the accused/appellant urges this Court to set aside the judgment of the Trial Court. 12. On the other hand, the learned PP appearing for the State of Assam has c ontended that the judgment of the Trial Court is founded on well establish evide nce on record and the learned Trial Court properly analyses the evidence on reco rd keeping the provisions of law in view and the judgment rendered by the Trial Court, therefore, invites no interference from this Court of appeal and he there fore urges this Court to dismiss the appeal and affirm the judgment of the Trial Court.

13. Before proceeding further, I find it necessary to have a brief review of the evidence on record. PW 1 is Shri.Apu Paul and he is the brother of the dece ased. According to him, his sister was married by accused Pradip Paul, but she d ied after seven months of the marriage. Accused Sakti Paul is a widow and both o f them lived in the same compound but different premises. On receipt of the info rmation about his sister being burnt, he went to the Medical College Hospital an d found her sister lying on the bed. She told him that her husband had an illici t relationship with one Sakti Paul and used to sleep with her at night. 14. This was objected to by his sister but to no avail. Having found that sh e could not take her husband, she decided to kill herself. Same day in the eveni ng, the victim died at the Medical College Hospital, Silchar. Thereafter he lodg ed an FIR which was proved as Ext.1. Her sister further told him that her husban d demanded Rs.25,000/- from her. In his cross examination, he has stated that h e reached the hospital at about 6 am and that his sister died within one and a h alf hours of his arrival at the hospital. 15. PW 2 Shri. Indra Deo Singh is a contractor. According to him, PW 1 was h is neighbour. He knew Rumi Paul from her childhood. One day, in the morning, he heard hue and cry coming from the residence of PW 1. He went there and came to k now that Rumi Paul sustained burn injuries. Thereafter, he went to Silcar Medi cal College Hospital where he found Rumi Paul with burn injuries all over her pe rson. He also noticed Executive Magistrate, Shri.B.C. Nath recording the stateme nt of Rumi Paul. 16. In her statement, she has stated that her husband was innocent but Smti. Sakti Paul called her husband to her house and spent most of the night in wit h him. In the morning having found her husband not with her, she took the extrem e step of ending her life by committing suicide. In his cross examination, he ha s stated (a) that entire body of Rumi Paul was burnt ; (b) that the Magistrate w as recorded the dying declaration at about 1/1:30 pm and (c) that the victim co uld not put her signature or thumb impression on the dying declaration. 17. PW 3 Shri. Jyotirmoy Nath is an Advocate. According to him, PW 1 is her neighbour. On 06.09.01, she heard hue and cry coming from the residence of PW 1. She immediately went there and came to know that Rumi Paul sustained burn injur ies and was shifted to the Silchar Medical College Hospital. Being so informed, he went to the Silchar Medical College Hospital and met the mother of Rumi Paul there. She also found Executive Magistrate who was called there to record the st atement of the victim. In his cross examination, he admitted that he did not tal k with the victim as there was a huge gathering at the hospital. 18. PW 4 Smti.Mitali Paul is a housewife. She deposes that the accused Pradi p Paul is her brother-in-law. PW 4 along with accused Pradip Paul and his wife, since deceased, lived in the same compound. The deceased was an obstinate and inflexible lady and was desperate in nature. She was declared hostile. In her cr oss examination, she has stated that accused Pradip Paul never lived in any illi cit relationship with accused Sakti Paul. 19. PW 5 Shri. Pankaj Paul is the brother of accused Pradip Paul. According to him, he and along with his family lived in the same compound where Pradip Pau l resides. On the fateful day Rumi Paul committed suicide by setting herself on fire. Hearing hue and cry, he came to the place of occurrence and saw the victim being burnt by fire. She was immediately removed to the hospital but she died t here. PW 5 was declared hostile. In his cross examination by the defence, he has stated that Rumi Paul was shifted to the hospital in an unconscious state.

20. PW 6 Sushanta Paul is a business man and neighbour of the accused and de ceased. On 06.09.01, at about 5 am, he heard cries of deceased which brought him to the residence of the accused person. Having arrived there, he found her bl azing. He along with other put off the fire. However, the victim succumbed to th e injuries in the hospital same day. 21. Police came to the place of occurrence and seized some burnt clothes and an empty match box on the strength of Ext.2. In his cross examination, he has s tated that accused Shri. Pradip Paul was his nephew and that he did not have any illicit relationship with Smti. Sakti Paul. It is also his evidence that he fou nd Rumi Paul in an unconscious state. 22. PW 7 Shri.Shyamal Banik is a business man. According to him, after the i ncident in question, Police visited the place of occurrence and seized one Jerik an, half burnt clothes on the strength of seizure list Ext.2. PW 10 Shri. Mihir Nath is also a business man. He deposes that one day, Police visited the hous e of the accused and seized one plastic jerikan there from on the strength of se izure list Ext.2. 23. PW 9 Ratna Choudhury is a housewife. According to her, on 06.09.01 at ab out 5 am, she came out of her house to fetch water from a tap situated in front of the house of accused persons. Arriving there, she heard hue and cry coming from the residence of accused persons for which she rushed to such place and fou nd Rumi Paul burnt by fire. She found her in the veranda of the house of acc used persons. At that time, the accused and his mother were also there in the ho use of accused person. Thereafter, she was shifted to Silchar Medical College Hospital. A few d 24. ays before the alleged incident, one day Rumi Paul met her on the road and told her that she found it difficult to lead her life with her husband. It was becaus e of the fact that the night proceeding that day, her husband stayed with accuse d Sakti Paul. PW 9 also came to know from the deceased that all inmates of her h ouse knew that there was an illicit affair between accused Pradip Paul and Sakti Paul.

25. She came to know that Rumi Paul committed suicide as she could not toler ate the illicit relationship between her husband and Smti. Sakti Paul. In her cr oss examination, she has stated that the deceased told her about her husband hav ing an affair with the accused Sakti Paul some 20-22 days before the alleged inc ident. PW 11 Mr BC Nath is the Executive Magistrate. According to him, on 06.09 26. .01, he was deputed by the District Magistrate to record the dying declaration o f one Smti. Rumi Paul at Silchar Medical College Hospital. Accordingly, he went there and found Rumi Paul at the emergency ward. He recorded her dying declarati on which was proved as Ext.4. Rumi Paul was identified by Staff Nurse and the re lative of Rumi Paul. 27. He also obtained RTI on the dying declaration and certified the same as Ext.4 (3). Ext 4(4) is his endorsement with signature. In his cross examination, he had admitted that he did not obtain any certificate from the concerned Docto r as regards the mental and physical condition of the person. In his cross exami nation, he has further stated that in the carbon copies of the dying declaration , he obtained the signature of witnesses and thumb impression of the deceased. 28. PW 12 Shri. Prakash Singh is S.I. of Police as well as the investigating officer of the case under consideration. He is found saying that on 06.09.01 he was posted at Rangirkhari Outpost as attached officer. On that day, the I/C Ghu ngoor Outpost has informed him over phone that one Rumi Paul sustained burn in juries and was admitted in Silchar Medical College Hospital. Receiving such info rmation, the I/C Rangirkhari T.O.P. made a GD entry and directed him to proceed to Silchar Medical College Hospital for taking necessary action.

29. Accordingly, he contacted the Executive Magistrate, Shri B.C. Nath over phone and requested him to attend to Silchar Medical College Hospital for record ing the dying declaration of the aforesaid person, viz, Rumi Paul. He also atten ded Silchar Medical College Hospital and recorded the statement of the victim as well as other available witnesses. Shri B.C. Nath, Executive Magistrate, record ed the dying declaration in presence of the witnesses. 30. In the meantime, FIR Ext.1 was lodged and during the course of the inves tigation, he visited the place of occurrence, seized some half burnt clothes, co ntainer of kerosene oil etc. on the strength of seizure list Ext.2. In the meant ime, the victim, however, succumbed to the injuries for which he got the inquest done on the body of the victim on requisiting the services of the Executive Mag istrate. 31. In his cross examination, he has admitted that he did not obtain any fit ness certificate regarding the mental and physical condition of the patient at t he time when her statement was recorded. He has further admitted that during the course of the investigation, PW 1 (Shri. Apu Paul) did not tell him (a) that hi s sister Rumi Paul reported his mother that her husband demanded Rs.25,000/- and (b) that Rumi Paul told him that accused Pradip Paul used to sleep with accused Sakti Paul at night.

32. So situated, let us consider the evidence of PW 8 Dr. Homeswar Sarma who reportedly attended the cadaver of Rumi Nath at Silchar Medical Collegeon 07.09 .. According to him, on 07.09.01, he was working as Professor & Head of Forensic Medicine, Silchar Medical College. On that day, he conducted the post mortem ex amination on the body of one Rumi Paul and found the following injuries:- (cid:28)External appearance: The deceased was of average build. She was found naked wit h burnt wounds. Eye-brow, eyelashes, scalp hairs and pubic hairs were burnt. Injuries: Second and third degree burnt injuries of the body from forehead, all sides of the neck, face, ear, trunk, limbs up to the palms and soles of feet wit h blackening of the skin and missing of epidermis at places. Blood found deep ch erry red in colour. Uternus was enlarged and contained a female foetus of approximately five months gestation. Thoracic abdominal organs were congested. (cid:29)

33. According to him, the cause of death was shocked resulted from anti mort em burnt wounds of dermo-epidermal severity involving approximately 100% body su rface. Ext.3 was the post mortem report. Above being the evidence on record, let us see how far such evidence mak 34. es out the allegation brought against the accused person under Section 498 (A) I PC. But before I proceed further, one need to answer a query raised by the accus ed/ appellant here during the course of argument. 35. I have already found that prosecution has challenged the judgment of the Trial Court on several grounds and one of such grounds was that though the accu sed was charged with having committed the offence under Section 304(B) IPC ---- yet ---- the learned Trial Court convicted the accused/appellant under Section 4 98 (A) IPC without ever framing a charge under the aforesaid provisions of law. Such conviction is Illegal ---- argues learned counsel for the appellant. Does s uch a challenge is sustainable in law. 36. The answer to the above query has been provided by the Supreme Court in the case of Shanti Vs. State of Haryana reported in AIR SC 1991 Crl. LJ Criminal Law Journal 1713. It has been held that when a person is charged under Section 304 (B) IPC and acquitted of offence there under, can be convicted under Section 498 (A) IPC without a charge there under being framed provided the materials on record made out such a case. The above decision set at rest the dispute over th e allegation that the conviction of the accused persons under Section 498 (A) IP C without a charge there under being framed is illegal. 37. Answer to the query, so raised by the appellant having been found, it be comes necessary to know if the materials on record make out the charge brought a gainst the accused/ appellant. In that connection, I also find it necessary to h ave a look at the provision of law incorporated in section498 (A) IPC. A bare pe rusal of Section 498 (A) IPC reveals as follows:- (cid:28)498-A Husband or relative of husband of a woman subjecting her to cruelty - who ever, 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 exten d to three years and shall also be liable to fine. Explanation- For the purpose of this section, (cid:28)cruelty (cid:29) means- (a) any willful conduct which is of such a nature as is likely to drive the woma n 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 va luable security or is on account of failure by her or any person related to her to meet such demand. (cid:29)

38. A bare perusal of Section 498 (A) IPC reveals that a husband or relative of the husband of a woman who subjected such a woman to cruelty is/are be liabl e to be punished under the aforesaid provisions of law. Again cruelty has been c ategorized under two heads: First, any willful conduct which is of such a nature as is likely to drive the w oman to commit suicide or to cause grave injury or danger to life, limb or healt h (whether mental or physical) of the woman; harassment of a woman with a view t o cause her or any persons related to her to meet any unlawful demand for any pr operty or valuable security or on account on failure by her or her relative to m eet such demand. Secondly, harassment of the woman where such harassment is with a view to coerci ng 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 t o her to meet such demand. (cid:29) Coming back to our case, we have found that there is absolutely no evide 39. nce on record to show that accused Sakti Paul had ever subjected the deceased to harassment to coercing her or any person related to her to meet any unlawful de mand for any property or valuable security. Being so, I have no hesitation in co ming to the conclusion that second limb of explanation of Section 498(A) IPC has no application to the present case.

40. This brings us to most important chapter of the prosecution case where w e need to know if the accused by any willful conduct compelled the deceased to c ommit suicide. To get the answer to this query, I have very carefully perused th e evidence on record and on such perusal, I have found that in order to bring ho me such an allegation, prosecution places enormous reliance on the testimony ren dered PW 1 and PW 9 as well as PW 11. 41. On perusal of their testimonies, particularly the testimonies of PW1and PW9, it is found that both these witnesses have deposed that they had no persona l knowledge about the alleged illicit relationship between the appellant and the husband of the deceased. It is there evidence that they heard the deceased comp laining that accused Sakti Paul used to call the husband of the deceased to live with her at night which made her life horrible. Such evidence, in my opinion, i s in the nature of dying declaration. 42. On the other hand, PW 11 is found saying that on 06.09.01, he was depute d by the District Magistrate to record the dying declaration of one Smti. Rumi P aul at Silchar Medical College Hospital. Accordingly, he went there and having f ound Rumi Paul at the emergency ward, he recorded her dying declaration which wa s proved as Ext.4. Ext. 4 is, therefore, found to be in the nature of dying decl aration only. Now, the question is whether a dying declaration can be relied on in con 43. sidering and convicting a person accused of offence under Section 498 (A) IPC. I n this connection, it would be immense help if we have a look of the provisions of Section 32 (1) of the Evidence Act. Section 32 (1) of the Evidence Act runs a s follows:- (cid:28)Section 32 - Cases in which statement of relevant fact by person who is dead or cannot be found etc., is relevant.- Statement, written or verbal, of relevant f acts made by a person who is dead, or who cannot be found, or who has become inc apable of giving evidence, or whose attendance cannot be procured without any am ount of delay or expense which under the circumstances of the case, appears to t he Court unreasonable, are themselves relevant facts in the following cases :- (1) When it relates to cause of death: - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transacti on which resulted in his death, in cases in which the cause of that person’s dea th comes into question. Such, statements are relevant whether the person who made them was or was not, a t the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question . (cid:29)

44. On a careful reading of the aforesaid provisions of law, It is found evi dent and apparent too that a dying declaration can also be considered in convict ing a person accused of offence of under Section 498 (A) IPC provided the cause of death or any of the circumstances of the transaction which resulted in his / her death comes into question in that proceeding. 45. In our instant case, I have found that the cause of death of the victim was occupies the centre stage in the proceeding in question. Being so, in my con sidered opinion, the dying declaration so made by the deceased may very well be considered in ascertaining the charge leveled against the appellant if it satisf ies all other conditions laid down in respect of reliability of the dying declar ation. 46. Now, let us first see whether the Ext.4 is a reliable dying declaration. On the perusal of the Ext.4, it is found that said dying declaration reveals th at victim told the Doctor that she was fed up with the conduct of her husband as he maintained illicit relationship with the accused Sakti Paul inspite of her p rotest and displeasure. It has also been recorded in Ext 4 that Sakti Paul insis ted her husband to live with her at night. 47. The appellant contends that said dying declaration cannot be relied on f or a reason more than one. They are: - (1) At the time of recording the dying de claration made by the victim, she was not mentally and physically fit to make su ch a statement. This is because of the fact ---- argues learned counsel for the accused/appellant ---- approximately 100% of the body surface was affected by bu rn injuries. It was so extensive and so widespread that despite she being treate d at the best hospital, she died within hours after her sustaining those injurie s. 48. On a perusal of the evidence on record particularly, the evidence of Doc tor, I have found that approximately 100% of the body surface was affected by bu rn injuries. There is also evidence on record in the from the testimony of PW 3 to show that her body got greatly disfigured due to such burnt wounds. These cou pled with the fact that she died within hours of her sustaining injuries only se rves to show that her physical as well as mental condition of the deceased was f ar from normal. Secondly there is nothing on record to show that either the I/O or the E 49. xecutive Magistrate who recorded the dying declaration made any efforts to ascer tain the mental and physical fitness of the deceased to make a reliable declarat ion regarding the cause of her death. Quite contrary to it, the I/O very candidl y admitted that he made no attempt to ascertain the mental and physical fitness of the deceased to make a reliable dying declaration. Such a failure further ra ises doubt about the ability of the deceased to make a trustworthy and reliable dying declaration. Coming to the claim of the PWb1and PW 9 that the deceased told her that 50. Smti. Sakti Paul insisted her husband to live with her at night and that she con tinued to do so inspite of her strong disapproval to such conduct of the persons aforesaid is also found to be highly doubtful and such doubt has arisen for the reason that neither the PW 1 nor the PW 9 divulged such vital information befor e the I/O during the course of investigation. 51. The failure of those two PWs to disclose such a vital information to the I/O during the course of investigation clearly bring their evidence that the de ceased told them that illicit relationship between the husband of the deceased a nd Sakti Paul made her life horrible comes within the term (cid:28)contradiction (cid:29) as co ntemplated in Section 162 of CrPC and it only makes those evidence enormously do ubtful. 52. In this connection, it is worth noting that PW 2 and PW 3 had stated in their evidence that they heard from the deceased telling the Magistrate that accused Pradip Paul maintained an illicit relationship with the accused Sakti Pa ul. But PW 2 and PW 3 too did not divulge such fundamental information to the I/ O during the course of the investigation. This coupled with the fact that PW 3 d id not have any opportunity to talk with the victim at hospital only serves to s how that the claim of these two witnesses that they heard the deceased telling t he Magistrate as aforesaid cannot be accepted without a grain of salt. 53. Even if we assume for the sake of argument for a moment that the evidenc e , so rendered by PW1, PW2, PW3 and PW 9 does not come within the mischief of the term (cid:28)contradiction (cid:28) yet then for other valid reasons as well their evidenc e could not be acted upon. On perusal of record, I have found that there is str ong positive evidence to show that accused Pradip Paul, since acquitted, did not maintain any illicit relationship with the accused Sakti Paul and it comes in t he form of testimony of the PW 6 . Though PW 4 and PW 5 were declared hostile, y et they too, in their cross examination, have stated that there was no illicit r elationship between the accused Pradip Paul and the accused Sakti Paul. 54. The veracity of dying declaration is found not acceptable for other reas ons as well. There is enormous evidence on record to show that when the victim w as treated at the hospital she was surrounded by the crowd which makes it imposs ible for many people like PW 2 and PW 3 to reach the victim in her bed in the ho spital. This clearly shows that the claim of these PWs that the victim was capab le of making a statement reliable and acceptable cannot be accepted as a truthfu l one. 55. The dying declaration needs to be rejected for other reasons as well. Th e learned Trial Court, record reveals accept a part of the dying declaration rej ecting the other for which he convicted accused Sakti Paul of offence under Sect ion 498 (A) IPC on acquitting the husband of the deceased of the same. It is a s ettled law that when an integral part of the dying declaration is rejected, the other part needs to be rejected as well. 56. In other words, when dying declaration needs to be accepted as a whole o r rejected as a whole, the part reliance is not permissible. The learned Trial C ourt has rightly disbelieved the dying declaration as far as Pradip Paul is conc erned. Unfortunately, it has acted upon such dying declaration in so far it rela tes to other accused, namely Sakti Paul which is as stated above is not permissi ble in law. 57. In view of what have discussed herein before and what have emerged there from, I am of the opinion that prosecution could not make out the charge of off ence under Section 498 (A) IPC even against the accused Sakti Paul beyond all re asonable doubts and as such she is acquitted of offence aforesaid and set at lib erty forthwith. 58. 59. 60. In the result, the judgment of the Trial Court is set aside. Let the LCR be returned. In view of the provision prescribed by Section 357(A) Cr.P.C. the victim or his/her dependents are entitled to get compensation for rehabilitation in ap propriate cases. Therefore, for the sake of brevity and in the light of our disc ussions, made in Criminal Appeal No.93(J)/2005 (disposed on 22.12.2011), with re gard to the victim compensation as provided by Section 357(A) Cr.P.C., we make t he following directions:- 1. As an interim measure an amount of Rs.50,000/- shall be deposited by the Stat e Government with the District Legal Services Authority of Cachar, Silchar withi n a period of two months from this date. The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether, there is dependent(s) [who is not the husband of the deceased], who suffered los s and injury as a result of death of the deceased and if such dependant(s) or le gal representative(s) need any rehabilitation. 2. Upon such enquiry, if it is found that the dependent(s), if any, need rehabil itation, then the District Legal Service Authority shall initially release the s aid interim amount and thereafter direct payment of adequate compensation, as ma y be prescribed by the scheme to be prepared by the State Government. 3. It is made clear that if the District Legal Services Authority, after due enq uiry, arrives at the findings that there is no dependent(s) or that the dependan t(s) of the deceased/victim does not required any rehabilitation, then the Distr ict Legal Services Authority, shall refund the said amount of Rs.50,000/- withou t delay, in favour of the State Government. 4. A copy of this judgment be made available immediately to (1) the Chief Secret ary, Govt. of Assam, (2) the Secretary, District Legal Services Authority Assam, and (3) the District Legal Services Authority Cachar, Silchar, for information and doing needful as indicated above.