High Court · 2012

3. In terms of the FIR so lodged, a case was registered and the investigatio n was launched. On completion of the investigation, the I.O. submitted the charg e sheet against the accused appellant alleging commission of offence under Secti on 302 IPC. During trial, the learned Sessions Judge framed a formal charge under Se 4. ction 302 IPC against the accused appellant and on reading over and explaining t he charge aforesaid, the accused revealed that pleaded not guilty and claimed to be tried.

5. The prosecution side examined as many as 12 witnesses, including the Med ical Officer and the I.O. The defence plea of the accused is of total denial. In his statement under Section 313 CrPC, the accused revealed that his wife commit ted suicide by setting fire upon her after pouring Kerosene oil. The accused al so declined to adduce evidence in defence.

6. According to the accused a day before the occurrence, his father and his deceased wife were insulted regarding the issues relating to some custom and co nvention in the feast organized by his in-laws. According to the accused he also did not take meal in the feast and while he returned from the feast, his wife a sked him to take the meal and then went inside the kitchen, where he found the m eal. However, in the meantime, according to the accused appellant, his wife comm itted suicide by burning herself. According to the accused, he tried to save her after hearing the cry and took her to the doctor at GMC Hospital, where she suc cumbed to her injuries. The accused stated that the victim killed herself.

7. We have heard Ms. R. Boro Bora, learned Amicus Curiae appearing for the ap pellant as well as Mr. D. Das, learned Addl. P.P. appearing for the State of Ass am.

8. In order to appreciate the submissions advanced by the learned counsel f or the parties and to consider the various grounds set up in the appeal, it woul d be appropriate to project herein below the case of the prosecution vis-à-vis t he defence stand.

9. The informant, PW-1,who is the mother of the victim stated in her deposi tion that the accused-appellant eloped with his daughter and thereafter marriage was solemnized between them . According to PW-1, prior to the occurrence, aft er the marriage, accused used to assault the victim which he heard from others. In her cross-examination, however, she clarified her own statement by revealing that the victim never complained anything against the accused prior to the occur rence.

10. There is no denial of the fact that the victim died of burn injuries. Dr. Siba Prasad Bordoloi, Sr. M & H.O., Civil Hospital carried out the post mortem e xamination of the victim Usha Rani Devi and found the following injuries - (cid:28)Stout female dead body. Rigor mortis present. Areas of deep burn all over the body of approx 80%. The burn areas exempted only below knee joint of right lower limb. The uterus is empty and small. All other visceras are healthy. The burn injuries are ante mortem in nature. (cid:29) In the opinion of the doctor, the cause of death was due to shock, as a result of burn injuries sustained by the deceased.

11. PW-1, Smti. Rini Devi, the mother of the victim, in her deposition, stated that there was a feast in their house on the occasion of funeral of her mother- in-law. On that day, father of the accused Kamal Saikia arrived in the feast in a drunken condition and created nuisance, for which he was sent back to his hous e by the local people, who had gathered in the feast.

12. According to PW-1, her daughter (i.e. deceased) who was about to tak e meal in the feast returned to her house without taking meal. After sometime, t he accused arrived and caught hold of one local person Krishna Bora (PW.3), who was present in the feast and asked him, why his father was insulted in the feast . PW-1 came out and tried to make her son-in-law understand the situation. PW-1 stated that on the next day 2.30 P.M., Maheswar Bora, informed PW-1 that her dau ghter was set on fire by the accused by pouring Kerosene oil. She immediately ru shed to the residence of Usha Rani Devi, where she found her lying with burn inj uries on the upper portion of the body. Her eyes were blinded by burn injuries.

13. By seeing the incident, she felt giddiness. Together with PW-1, many ot her people including her daughter Rekha, their uncle Laknath came to the place o f occurrence and managed to arrange a vehicle of local M.L.A. and shifted the vi ctim to the Tezpur Civil Hospital from where she was referred to the G.M.C.H. Bu t on the way to the hospital, she succumbed to her injuries.

14. PW-1 filed the FIR in the Police Station. PW-1 further stated that the victim had a nine (9) months old baby at the time of occurrence. According to PW -1, the accused was present at the place of occurrence but did not explain to he r as to why her daughter died of burn injuries. PW-1 denied the suggestion that the victim had committed suicide by burning herself by pouring Kerosene oil, for being insulted in the house of her parents in the feast. PW-1 stated that the v ictim could not say anything regarding the cause of her death.

15. In her cross-examination, PW-1 specifically stated that the victim never complained or grumbled anything against her husband prior to the occurrence. PW -1 denied the defence suggestion that she did not state before the I.O. during i nvestigation that she was told by Maheswar Bora (PW-4) that the accused had set fire on her daughter by pouring kerosene oil. However, Maheswar Borah, PW.4, in his deposition did not say that he had seen the accused setting fire on the vic tim. Therefore, we are of the view that statement of PW.1 in respect of the cau se of death of the victim as reported in the FIR was based on suspicion and not on any substantial information.

16. PW-2 is the father of the victim, who stated in his deposition that the victim and the accused got married after elopement and their child was nine (9) months old at the time of the incident. Corroborating the facts stated by PW-1 r egarding Kamal Saikia coming to the feast in a drunken condition, PW-2 stated th at Kamal Saikia misbehaved and created nuisance as such, he was asked to leave t hat place. Due to the incident, her daughter feeling hurt went out without takin g lunch. Thereafter, the accused arrived in the feast and without asking anythin g got hold the chest of Krishna Bora (PW-3) and started altercation. However, th e local villagers, who were present in the feast had sent him back. On the next day, PW-2 had been to the market for shopping on the occasion of the Shivaratri . On his return from the market, PW-2 came to know about the incident of setting fire on his daughter by the accused. PW-2 witnessed the preparation of inquest report by the Investigating Officer. PW-2 denied the suggestion that for insulti ng her father-in-law in the feast and on getting hurt due to the incident the vi ctim had committed suicide by burning herself.

17. PW-3, Sri Krishna Bora corroborated the facts stated by PW-1 and 2, whic h took place at the residence of the PW-1. PW-3 also stated that Ganesh Saikia c reated nuisance in a drunken condition on the date of feast. At that time, the v ictim Usha Rani Devi, who was about to take lunch left the place due to the inci dent. The accused, who came 20 minutes later in a drunken condition caught hold of PW-3 on his chest and asked him as to why his father was ousted from the feas t. On the next day, the victim died of burning. However, PW-3 could not say anyt hing about the killing of victim.

18. PW-4, Maheswar Borah knew both accused Ganesh Saikia and Usha Saikia. O n 8.3.2005 at about 2.10 PM. he had gone to Shiva temple on the occasion of Shiv aratri. On way back home, while he reached near the house of the accused, PW-4 noticed that accused Ganesh was beating his wife in her waist with a piece of wo od. Seeing the incident, PW-4 went near the courtyard and asked the accused as t o why he was beating her and then the accused replied that he had no relation wi th her, from that day and would kill her. However, PW-4 requested the accused no t to quarrel and finish the matter. Immediately after that PW-4 reported the mat ter to Rini Devi, the mother of the victim. PW-4 also suggested Rini Devi to go there immediately. After sometime, PW-4 noticed that people were running towards the ro 19. ad. Upon asking them, he was reported that Ganesh had set fire to his wife. PW-4 returned back to the residence of the accused to find the burning body of the v ictim, who was being taken away to the hospital in the vehicle of the local MLA. PW.4 also proved his statement Exbt.4 made under Section 164(5) of CrPC. Howe ver, in his statement under section 164 Cr.P.C. , P.W.4 apparently failed to in dicate that the accused had told him that he would have no relation with his wife i.e. victim , from that day and would kill her. This omission is a vital o mission in the evidence of P.W.4, who was adduced by the prosecution to prove th e past conduct of the accused .

20. A statement under Section 164 of the Code of Criminal Procedure is not s ubstantive evidence. It can be used only to corroborate the statement of a witne ss. It can also be used to contradict a witness. (SeeRam Kishan Singh v. Harmit Kaur, (1972) 3 SCC 280, at page 281).

21. However, PW-4 fairly stated that he did not witness the accused setting fire on the victim. Apparently, PW-4 did not corroborate the statement of PW-1, regarding seeing the accused setting fire on the victim. In fact PW-1 did not st ate the facts reported by PW-4 . Basically, PW-4 , who is the sole witness to prove the conduct of the accused before the occurrence do not seem to be forth right and truthful .

22. PW-5, Sri Lakhi Nath, who was preparing to celebrate the Shivaratri, hear d that his brother’s daughter has been burnt and immediately rushed to the place of occurrence. At the place of occurrence, he could see that the victim was lyi ng on the courtyard with the burn injuries. PW-5 forthwith arranged a vehicle by requesting the local MLA and took the victim to Tezpur Civil Hospital, for trea tment, but considering the seriousness of the injury, the victim was referred to the Guwahati Medical College Hospital. Unfortunately, on the way to the G.M.C. Hospital, the victim succumbed to her injuries.

23. In his statement PW-5 categorically stated that he did not see the incid ent of setting fire by the accused, but stated that the victim was capable of sa ying something and she told him that (cid:28)I will leave all of you, your son-in-law h as done this (cid:29). Thereafter, she closed her eyes. PW-5 stated that his brother Bab ul Nath was present at the time when the victim told him about the occurrence. P W-5 further stated that the victim was in full sense and was capable of making s tatement. PW-5 denied the defence suggestion that the victim had committed suici de. Very surprisingly Babul Nath was not examined as a witness. On the top of it , the mother of the victim PW-1, who reached the place of incident immediately s pecifically, stated that the victim was not capable of speaking. More than that, not a single witness could say about the state of heath of the victim. No ques tion was put to any expert in the field to ascertain the health condition of the victim after such injury. Now, question arises whether the above statement of P.W.5 can be treated as oral dying declaration.

24. PW-6, Sri Babul Bora, who was working nearby the house of the accused on hearing hue and cry and seeing smoke billowing out from the house of accused, c ame out to see as to what had happened and found that one woman was burning in f ire in the Courtyard of the accused. Initially, he did not understand who she wa s. At that time, the accused Ganesh came to her then victim told him that (cid:28)what you have done to me (cid:29), now make me well, (cid:28)where is my daughter (cid:29)? According to PW- 6, the victim repeated the above sentences for 2/3 times. Thereafter, PW-6 could identify that the burning woman was the wife of the accused. PW-6 helped to ext inguish the fire with the help of the others.

25. PW-7, Smti. Dhan Devi and PW-8, both are neighbours of the accused, who on hearing hulla at the place of occurrence came out to see the matter and saw t hat the house of the accused and his wife was burning and the accused was busy e xtinguishing the fire. The victim told PW-8 that she had been burnt and requeste d to look after her daughter. In her cross examination, PW-7 stated that she did not go near the victim. PW-8 stated that Usha told her that she burnt herself a nd there was no fault on the part of her husband. 26. PW-10, Durgeswar Nath has deposed that on hearing of the matter he w ent to the house of accused and found that wife of the accused as well as his ho use was burning and local people were standing around injured Usha Devi. Accordi ng to P.W.10 the victim Usha told the people that she had burnt herself, and re quested the people not to beat her beloved.

27. Though both the witnesses i.e. P.W. 8 and 10 stated that the vi ctim had told that she burnt herself and there was no fault on the part of her husband, but these witnesses were not declared hostile . Which also implies that the prosecution accepted evidence of these witnesses .

28. Evidence of witnesses PW.5 and PW.6 reveal that the deceased made a oral dying declarations immediately after the occurrence implicating the accu sed. However, both the witnesses aforenoted did not corroborate each other in re vealing the words spoken by the victim while making the dying declaration. This is again in sharp contradiction to the evidence of Rini Devi (PW.1), the mother of the deceased, who stated in her evidence that victim was not capable of mak ing dying declaration. On the other hand P.W.8 and 10 clearly stated to have he ard the victim speaking that the victim had burnt herself and there was no fault on the part of her husband, but these witnesses were not declared hostile. These are circumstances which would make the factum of the said dying decl aration suspicious. 29. It is also to be seen that the deceased was very seriously injured and s he died on way to hospital immediately after allegedly making the said dying dec laration, however, the time of which is not fixed by the prosecution. The most i mportant circumstance about this dying declaration is that, firstly, it is oral and secondly, there is no medical evidence suggesting that the deceased was in a fit medical condition to make such an oral dying declaration, thirdly the witne sses made contradictory statements regarding the oral dying declaration. In Waikhom Yaima Singh v. State of Manipur (2011) 13 SCC 125, the Apex

30. Court held as follows: 19. It is also to be seen that the deceased was very seriously injured, so much so that according to the witnesses, he died immediately after allegedly making t he said dying declaration, the time of which is not fixed by the prosecution. Th e most important circumstance about this dying declaration is that, firstly, it is oral and secondly, there is no medical evidence suggesting that the deceased was in a fit medical condition to make such a dying declaration. 20. There can be no dispute that the dying declaration can be the sole basis for conviction, however, such a dying declaration has to be proved to be wholly rel iable, voluntary and truthful and further that the maker thereof must be in a fi t medical condition to make it. The oral dying declaration is a weak kind of evi dence, where the exact words uttered by the deceased are not available, particul arly because of the failure of memory of the witnesses who are said to have hear d it. In the present case also, the exact words are not available. They differ from wi tness to witness. Some witnesses say about the name of the village of the appell ant having been uttered by the deceased and some others do not. Further, Dr. Nin gombam Shyamjai Singh (PW 12) was also not cross-examined by the Public Prosecut or in this case about the medical condition of the deceased and further fact as to whether he was in a fit condition to make any statement.

31. We may refer the decision of the Apex Court in Darshana Devi v. State of Punjab, 1995 Supp (4) SCC 126, at page 130, wherein it was observed as follows : (cid:28) &Even though an oral dying declaration can form basis of conviction in a given case, but such a dying declaration has to be trustworthy and free from every bl emish and inspire confidence. The reproduction of the exact words of the oral de claration in such cases is very important. The difference in the exact words of the declaration in this case detract materially from the value of the oral dying declaration (cid:29)

32. In Arun Bhanudas Pawar v. State of Maharashtra, (2008) 11 SCC 232, the Apex Court observed that the oral dying declaration made by the deceased ought t o be treated with care and caution since the maker of the statement cannot be su bjected to any cross-examination. In the present case, admittedly, the alleged dying declaration had no 33. t been made to any doctor or to any independent witness, but only to those who, as stated above, arrived at the place of occurrence and when she was in a seriou s condition. More so, there are two sets of oral dying declarations - one is in favour of the accused and the other against the accused. On top of it, the pros ecution has not put forward on record any evidence to prove that the deceased was in a fit mental condition to make the declaration, before the witnesses. The evidence of alleged oral dying declaration by the deceased to witnesses P.W.5 and 6 ,relied upon by the prosecution and accepted by the trial court ,on the f ace of the evidence of P.W.8 and 10 in our view, was not cogent, satisfactory and convincing to hold that deceased before her death was in a fit condition to make oral declaration and the deceased had made oral declaration implicating the accused in the incident.

34. PW-12 Shri Promod Bora is the Investigating Officer of the case. P.W.12 deposed that on 9.3.2005, he received an ejahar from the informant Rini Devi (PW.1), as regards the occurrence of 8.3.2005 at 2.30 P.M. He made a G.D. entry No.130 dated 9.3.2005 on the matter. He sent the ejahar to the O.C. Sootea P.S. for registration. He was endorsed with the investigation of the case.

35. PW.12 also confirmed that prior to receipt of the ejahar, he got a verbal message as regards the incident at about 8.30 AM. and to the effect he ma de the GD entry No.127 dt.9.3.2005. In cross-examination, PW.12 has stated that on 9.3.2005, a verbal information was given by one Bhadreswar and he received t he written ejehar only at 12 O (cid:29) clock. As per GD entry No.127, which was first i n point of time, it was reported that the wife of accused burnt herself by pouri ng kerosene oil upon her. Further, it is stated that the place of occurrence is about 80 Kms away from the police station. He went to the place of occurrence at 12.15 A.M. and as per GD entry No.127 he examined some of the witnesses. As per G.D. entry No.130, PW.12 examined another set of witnesses. PW.12 stated that h e did not examine Bhadreswar Nath, who had given the verbal information vide G.D . entry No.127.

36. Thus, in the instant case as we find from the evidence on record that pr osecution has examined two sets of witnesses about the occurrence- (I) On th e basis of GD entry No 127 dated 9.3.2005 i.e. prior to the filing of the F.I.R and (II) the other set after filing of the written FIR. PW-1 ,P.W.2 PW-3 are th e witnesses, who have mainly narrated the incident which took place prior to th e day of the actual occurrence. From their evidence it emerges that on the day o f rituals in the house of PW-2, the father of accused created a chaotic situatio n in the house of PW-1 and 2 in a drunken condition, for which ultimately, he ev en could not take the lunch properly and he was sent away from the function. The accused on being aggrieved on the matter went to the function, soon thereafter allegedly tried to assault PW-3 Krishna Bora . But, the accused was also alleged ly insulted and sent back from the feast. Admittedly, the deceased, who was the daughter of P.W.2, also being disgraced by the insult at her parent’s residence, in presence of the local people, had to leave the function without taking mea l.

37. The defence side by way of suggestion has stated that as the fathe r-in-law and husband of Usha was insulted on the day of feast so getting ashamed of the matter victim came home without taking anything in the feast and then co mmitted suicide due to the disgrace. The above suggestion supported the evid ence of the witnesses that the victim admittedly left the feast being ashamed of the happenings.

38. Now question arises , can there be malafide intention on the part of t he accused, to take revenge upon his in-laws by killing his wife, who had 9 mo nths old baby in her lap. Past untarnished conduct of the accused has been certi fied by witness, no less than his own mother-in-law (P.W.1). PW.1, the mother of the victim gave a clean chit to the accused in respect of his past conduct towa rds the victim. Furthermore, there is no inkling in the prosecution evidence t hat the accused used to torture the victim in the past.

39. There are no eye witnesses to the occurrence in the instant case and the prosecution case rests mainly on circumstantial evidence. In the case of Sarad Birdhi Chand Sarda vs. State of Maharastra reported in AIR 1984 SC 1622, the Ho n’ble Supreme Court laid down the five golden principles i.e. the (cid:28)Panchseel (cid:29) o f proof of a case based on circumstantial evidence, which are: (cid:28)1)The circumstances from which the conclusion of guilt is to be drawn should be fully established; 2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say they should not be explainable on any othe r hypothesis except that the accused is guilty; 3) The circumstances should be of a conclusive nature and tendency; 4) They should exclude every possible hypothesis except the one to be proved, an d 5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. (cid:29)

40. It is now well-settled that with a view to base a conviction on ci rcumstantial evidence, the prosecution must establish all the pieces of incrimin ating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesi s. It is also well-settled that suspicion, however, grave may be, cannot be a s ubstitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. [See Anil Kumar Singh v. State of Bihar : (2003)9SCC67 and Reddy Sampath Kumarv. State of A.P.M ANU/SC/0559/2005 <javascript:fnOpenGlobalPopUp(’/citation/crosscitations.asp’,’M ANU/SC/0559/2005’,’1’);> : 2005 CriLJ 4131 ] 41. One of the cardinal principles which is important in our system of admin istration of justice in criminal cases is that a person arraigned as an accused is presumed to be innocent unless and until proved otherwise. Another golden cor d which is very important in the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case- one pointing to the guilt of the accused and the other to his innocence, the view which is f avourable to the accused is to be accepted.(See Kaliram v. The State of H.P.-AIR 1973 SC 2773, Sheo Nandan Paswan v. State of Bihar- AIR 1983 SC 194- Nishar Ali v. State of U.P.- AIR 1957 SC 366).

42. Keeping in mind the above golden principles, we are required to examine whether it can be deduced that the following circumstances clearly show that the accused committed the crime: 1) Evidence of witnesses PW.5 and PW.6 reveal that the deceased made or al dying declarations immediately after the occurrence implicating the accused. However, both the witnesses’ aforenoted did not corroborate each other in revea ling the words spoken by the victim while making the dying declaration. This is again in sharp contradiction to the evidence of Rini Devi (PW.1), the mother of the deceased, who stated in her evidence that victim was not capable of making d ying declaration. On the other hand P.W.8 and 10 clearly stated to have heard t he victim speaking that the victim had burnt herself and there was no fault on the part of her husband, but these witnesses were not declared hostile. Thes e are circumstances which would make the prosecution story suspicious, one pointing to the guilt of the accused and the other to his innocence. According to P.W.1 the past conduct of the accused did not reflect evil 2) design against the deceased. Prosecution failed to prove past conduct of the acc 3) immediately, for treatment. After the incident the accused took his wife to the hospital 4) of the deceased was homicidal or suicidal in nature. The Expert evidence of the witness does not spell out whether the death

43. The above circumstances clearly spell out that two views are possible on the evidence adduced in the case- one pointing to the guilt of the accused a nd the other to his innocence. Therefore, we are of the opinion that the view wh ich is favourable to the accused is to be accepted.

44. In view of the above, considering the entire evidence on record, we are constrained to observe that it is doubtful as to whether, in fact, the offence w as committed by the accused appellant as alleged by the prosecution and the afo rementioned evidence against the accused-appellant do not prove the charge unde r Section 302 IPC against him beyond all reasonable doubt.

45. In the result, the appeal is allowed. The appellant is acquitted from th e charge under Section 302 IPC in connection with the aforenoted Sessions case. The appellant be set at liberty forthwith, if he is not required to be detaine d in any other case.

46. ly be paid to the learned Amicus Curiae as remuneration. We also direct that an amount of Rs.4,000/- (Rupees four thousand) on

47. Send back the lower Court record.