High Court
Case Details
CRL.A(J) 3/2008 BEFORE HON’BLE MRS JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER (ORAL) This appeal is directed against the judgment and order dated 01.10.2007 passed by the learned Sessions Judge, Darrang at Mangaldai in Sessions Case No.1 88(DM)/2006, whereby and whereunder accused Mona Das who is the appellant herein was convicted under Section 304(B)(2) and sentenced to undergo rigorous impriso nment (RI for short) for seven years. However, another accused viz. Smti Durbala Das was acquitted on benefit of doubt. 2. I have heard Ms. RB Bora, learned Amicus Curiae appearing for the appell ant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, Assam for th e State respondents.
Legal Reasoning
3. The facts of the present case depict a tragic circumstance of the death of a young house wife at the hands of her husband Mona Das. An FIR was lodged to that effect by one Sri Niranjan Namodas with the Officer-in-Charge of the Tangl a Police Station contending therein that his sister Kento Namo Das (the deceased ) was given marriage to accused Mona Das as per Hindu rites and rituals. After t he marriage, the accused along with his mother Smti Durbala Das tortured Kento D as physically and also demanded dowry. On 13.12.2005, his brother-in-aw, Mona Da s i.e., the husband of his sister Kento Das and mother-in-law set Kento Das on f ire. She was, thereafter, admitted in the Mangaldai Civil Hospital where she die d out of her burn injuries while undergoing treatment. 4. On receipt of the FIR, the Police registered a case being Tangla P.S. Ca se No.83/2005 under Section 304(B)/34 IPC. After completion of the investigation , the Investigating Officer submitted charge-sheet under Section 304(B)(2) IPC. 5. The case being exclusively triable by the Court of Sessions, the same wa s committed to the Court of Sessions by the learned Judicial Magistrate, Darrang , Mangaldai. 6. s, framed charges against both the accused under Section 304(B)(2)/34 IPC. The learned Sessions Judge, finding materials against the accused person The charge so framed being read over and explained to the accused person s they pleaded not guilty and claimed to be tried. 7. In support of their case, prosecution examined as many as 8 witnesses in cluding the informant, the Investigating Officer as well as the Medical Officer. Defence also adduced two witnesses viz., DW-1 and DW-2. The learned trial Court after completion of the prosecution as well as defence witnesses, recorded the statement of the accused appellant under Section 313 Cr.P.C. wherein the accused denied to have committed the offence as alleged. 8. Admittedly there is no eye witness to the occurrence and the prosecution case rests only on the dying declaration made by the deceased before PWs 1, 2 a nd 3. Considering the dying declaration so made, the learned trial Court convict ed and sentenced the accused as aforesaid. Hence the instant appeal from jail.
Legal Reasoning
9. PW-1, Sri Niranjan Namodas has stated that the deceased was given marria ge to the accused appellant as per Hindu rites and rituals about one and half ye ars prior to deposition in the Court i.e. 08.01.2007. The alleged incident of bu rn occurred on 13.12.2005. Thus the occurrence took place within seven years fro m the date of marriage of the deceased and the accused appellant. PW-1 has furth er stated that immediately after the incident, Prakash Namo Das informed him tha t his sister Kento Das has been admitted in the hospital as she sustained burn i njuries in her in-laws house. Immediately after receipt of the information he ru shed to Tangla Hospital and found his sister being admitted in the hospital with burn injuries on her person. On being asked his sister i.e., the deceased infor med him that her husband accused Mona Das set fire on her person after assaultin g her. She also reported that her mother-in-law Durbala Das also used to torture her off and on. After the marriage his sister Kento Das once came to their resi dence and reported him that her husband Mona Das used to assault her in intoxica tion. PW-1 thereafter lodged the FIR. He has also signed in the seizure list. He put his thumb impression in the seizure list, whereby Police seized one half bu rnt hawai chappal and half burnt clothes from the place of occurrence in their p resence. During cross examination, PW-1 has stated that prior to the marriage the accused Mona Das eloped his sister Kento as both of them were in love. He has f urther stated that Sushila, the sister of accused Namo Das also died out of burn injuries when she attempted to save Kento as she was also caught with fire and died thereafter. Accused Mona Das also sustained burn injuries in his hand. The suggestions put to him that the deceased did not give any oral dying declaration implicating the accused and his mother has been denied by the PW-1. He has furt her stated that his mother Jamuna, sister Labanya and Prakash and others were pr esent at the time of giving oral dying declaration by his sister Kento Das prior to her death. 10. tated in the same tune as that of PW-1. PW-2, Prakash Das is also another brother of the deceased. He has also s PW-3, Jamuna Das is the wife of the informant. Deceased Kento was her si 11. ster-in-law. The deceased also made oral dying declaration before PW-3 wherein s he has stated that her husband Mona Das set fire on her after pouring kerosene o n her body. PW-3 has stated that Police has recorded her statement. After the ma rriage Kento used to complain against her husband that he used to assault her in intoxication. In cross-examination, PW-3 has stated that Kento was in fit state of min d as she could spell out properly as to the cause of her death. While giving her oral dying declaration, Niranjan Namodas and Labanya were also present. They fo und Kento suffering from burn injuries. Kento was found shouting in pain. Kento repeatedly told them prior to her death that it was her husband accused Mona Das who set fire on her person after being intoxicated. Ashu, Sudhangshu, Prakash, Anil Das, Anima Das were also present at the time of giving oral dying declarati on. Suggestions put to her to the effect that Kento did not give any oral dying declaration implicating Mona Das has been denied by PW-3. 12. PW-4, Sri Sunil Das and PW-5, Smti Anjana Das have been declared hostile by the prosecution. While they were cross-examined by the prosecution, they den ied to have stated before the police that the accused and his mother used to tor ture the deceased. PW-6, Sri Prakash Das was the brother-in-law of the deceased Kento Das. 13. He has stated that prior to the incident he came to know from Kento that both th e accused subjected her physical and mental torture. The accused Mona Das is add icted to drinking and used to torture Kento prior to her death. However, he did not know anything about accused Durbala Das as to how she used to behave with th e deceased. In the cross examination, the suggestions put to him that the deceased d id not state before him that she was subjected to torture by the accused Mona Da s has been denied. 14. PW-7 Sri Padum Chandra Nath, is the IO, who has stated that after receip t of the FIR, he started investigation, visited the place of occurrence, prepare d sketch map of the place of occurrence, sent the body of the deceased for post mortem examination, recorded the statement of the witnesses under Sections 161 C r.P.C., seized a pair of hawai chappal and some pieces of half burnt clothes in presence of the witnesses vide seizure list, wherein Ext.1 is the seizure list a nd Ext.1(1) is his signature. In the midst of the investigation he was transferr ed and accordingly he handed over the case diary to his successor. While confron ting the statement of PW-4 and PW-7, he has stated that PW-4 has deposed before him that the accused Mona Das used to torture his wife off and on prior to her d eath. 15. d found the following injuries: PW-8 is the Doctor, who held autopsy on the dead body of the deceased an (i) Whole body burn injury present (100%). In the opinion of the Doctor, the death of the deceased Kento was due to shock as a result of burn injury. Ext. 4 is the post mortem report and Ext. 4(1 ) is his signature. In the cross examination, PW-8 has stated that a person suffering from 1 00% burn injury cannot be said unconscious for all the time prior to his death o r her death. A patient having 100% injury in his or her person may be able to sp eak at the initial stage. There is remote chance of survival of person having 10 0% burn injury. 16. In the case in hand, the defence adduced two witnesses, DW-1 and DW-2. D W-1, Smti Needani Das has stated that she did not hear any strain relation betwe en the accused Mona Das and his wife Kento Namodas till her death. She has furth er stated that Kento committed suicide by setting herself in fire. While she was struggling with life, on being asked Kento told her that she herself set fire o n her person. However, in cross examination she has stated that she did not state befo re the Police that the deceased Kento told her prior to her death that she herse lf set fire on her person. She has also not stated before the Police that she di d not notice any strain relation between accused Mona and his wife Kento. 17. DW-2, Smti Namita Das, has stated that both the accused persons are know n to her as they were her neighbours. She has stated that she saw Sushila, the s ister of accused Mona Das and the accused trying to extinguish the fire that cau ght the person of Kento Das. Sushila, later on, died out of burn injuries as she attempted to save Kento Namodas. On being asked, Kento told her that she hersel f set fire on her person and absolved accused Mona Das. However, in cross examination, she has stated that she did not state bef ore the Police that Kento died out of burn injury and on being asked she told he r that accused Mona Das did not set fire on her person. She has further stated t hat the neighbours know that accused is an alcoholic. Suggestions put to her tha t the accused used to ask money from his wife Kento for taking alcohol and as Ke nto refused to give money, he used to torture her and as a result he set fire on her person has been denied by her. 18. From the evidence discussed hereinabove, it would reveal that the deceas ed had made dying declaration before PW-1, 2 and 3 specifically and unequivocall y stating that her husband the accused, Mona Das set her on fire. 19. e useful to refer the legal positions. Before considering the acceptability of the dying declaration it would b 20. SCC 165, the Apex Court held at paragraphs 10 and 11 as thus: In Sham Shankar Kankaria Vs. State of Maharastra, reported in (2006) 13 (cid:28)10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn a nd serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the re quirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. 11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is ess ential for eliciting the truth as an obligation of oath could be. This is the re ason the Court also insists that the dying declaration should be of such a natur e as to inspire full confidence of the court in its correctness. The Court has t o be on guard that the statement of deceased was not as a result of either tutor ing or prompting or a product of imagination. The Court must be further satisfie d that the deceased was in a fit state of mind after a clear opportunity to obse rve and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any fur ther corroboration. It cannot be laid down as an absolute rule of law that the d ying declaration cannot form the sole basis of conviction unless it is corrobora ted. The rule requiring corroboration is merely a rule of prudence. This Court h as laid down in several judgments the principles governing dying declaration, wh ich could be summed up as under as indicated in Paniben Vs. State of Gujarat & & & & & & & & &. (cid:29) 21. , the Apex Court reiterated the principles laid down in Sham Shankar (supra). In Puran Chand Vs. State of Haryana reported in (2010) 6 SCC 566 22. In Panneerselvam Vs. State of Tamil Nadu reported in (2008) 17 SCC 190, a Bench of 3 Judges of the Apex Court reiterating various principles on the issu e of dying declaration held at Paragraph 8 as thus: (cid:28)8 & & & & & & &..it cannot be laid down as an absolute rule of law that the dy ing declaration cannot form the sole basis of conviction unless it is corroborat ed. The rule requiring corroboration is merely a rule of prudence. (cid:29) In the light of the above principles, the acceptability of the dying dec 23. laration in the instant case has to be considered. If after careful scrutiny, th e Court is satisfied that it is free from any effort to induce the deceased to m ake a false statement and if it is coherent and consistent, there shall be no le gal impediment to make a basis of conviction, even if there is no corroboration. With these principles, let us consider the statement of PWs-1, 2 and 3. 24. In the present case in hand, the deceased has made the dying declaration before PWs 1, 2 and 3. The dying declaration so made, is specific and in unequi vocal terms, which inspire full confidence of the Court in its correctness. 25. A perusal of the evidence of PWs 1, 2 and 3 regarding the dying declaration, the Court is of the view that the statement made by the deceased is free from any effort to induce the deceased to make a false statement. The same is coherent and consistent. In the opinion of the Doctor also, despite a person suffering from 100% burn injury cannot be said unconscious for all the time pri or to his or her death. The patient having 100% injury in his or her person may be able to speak at the initial stage. Therefore, as held by the Apex Court, the re may not be any legal impediment to make a basis of conviction, the dying decl aration made by the deceased as aforesaid. Having considered the entire evidence on record, the medical evi 26. dence of PW-8, the inquest report submitted by the Investigating Officer as well as the dying declaration made by the deceased before PWs 1, 2 and 3 negatives t he innocence of the accused appellant and serves as definite pointer towards his guilt and thus this Court is in complete agreement with the view taken by the l earned trial court that it was the appellant who killed his wife by setting her on fire. The learned trial court has rightly passed the order of conviction and sentence, which is not liable to be interfered with in the facts and circumstanc es of the case. 27.
Decision
In the result, the appeal preferred by the appellant fails. The conviction and sentence passed by the learned Sessions Judge, Darrang, Mangaldai , in Sessions Case No.188(DM)/2006 is affirmed. 28. Send down the lower court records. 29. Before parting with the case, I would like to put on record the valuabl e assistance rendered by Ms. RB Bora, learned Amicus Curiae in arriving at a dec ision as aforesaid. Accordingly, she is entitled to a professional fee which is quantified at Rs.5000/- (Rupees Five Thousand) only.