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2002 DIGILAW 407 (GAU)

Ratan Das v. State of Assam

2002-09-17

AMITAVA ROY, P.C.PHUKAN

body2002
P.C. PHUKAN, J.— This is a Criminal Appeal directed against the judgment and order dated 29.4.2001 passed by the learned Sessions Judge, Sibsagar in sessions case No. 67 (S-S) of 1996 convicting the accused appellant under Section 302 IPC and sentencing him thereunder to imprisonment for life and also to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for 3 (three) months. 2. We have heard Mr. JM Choudhury, learned senior counsel for the accused-appellant and Mr. P. Bora, learned Public Prosecutor, Assam appearing on behalf the State Respondent. We have also perused the records of the case. 3. Mr. J M Choudhury, learned senior counsel for the accused appellant has led us minutely thorough the evidence on record, which we have also scrutinised. In this case, the prosecution examined 6 (six) witnesses in all. Let us start with the evidence of PW 2 Smti Mandudari Basfar, who is the mother of the deceased. She lodged the F.I.R. Ext. 1 in Sibsagar Police Station to the effect that on 1.6.989 at about 7 PM in the evening when her daughter, the deceased Nanki Basfar, came out from the quarter of Dr. Ananda Mohan Das (not examined) in Sibsagar Civil Hospital, the accused Ratan Das caught hold ofher, dragged her behind the quarter, poured Kerosene Oil on her body and set her on fire and after uttering the words “If you survive, I shall cut you to death” he left the place. It has been stated in the F.I.R. that the patients in the hospital could see the occurrence and they came to rescue her daughter by pouring water on her (none of the patients was examined) and that the doctor in the Civil Hospital advised shifting of her daughter to Dibrugarh Medical College. In her evidence before the Court, PW 2 stated that after 5 days she was removed to Assam Medical College, Dibrugarh and after 25 day of her admission there, she succumbed to her injuries. Her evidence in the Court reveals that she was not an eye witness to the occurrence. She deposed, "the occurrence took place at about 7 p.m. while I was on duty at the hospital and at that time my grand daughter Baby, aged about 10/11 years came to me and reported to me - 'Nani Nani, Nanki Jal-Gya' (Grand mother, Nanki is burned down). She deposed, "the occurrence took place at about 7 p.m. while I was on duty at the hospital and at that time my grand daughter Baby, aged about 10/11 years came to me and reported to me - 'Nani Nani, Nanki Jal-Gya' (Grand mother, Nanki is burned down). Hearing it, I rushed to my residence and my daughter told me that she was burned by the accused after pouring kerosen Oil. The accused was in deep-love with my deceased daughter and so also the deceased with the accused. The parents of the accused did not like that the accused should have any affair with my deceased daughter." In cross-examination she stated that her granddaughter reported to her that the deceased had been set on fire by the boy who loved her daughter. She denied the defence suggestion that she did not tell the Investigating Officer that her grand daughter reported to her that the deceased had been set on fire by the boy, who loved her. She also denied the defence suggestion that she did not tell the investigating officer that her daughter (the deceased) committed suicide by burning herself due to frustration; that her daughter did not disclose of her that she had been burnt down by the boy, who loved her and that the deceased and the accused were in love. PW 1 Mangal Singh, a sweeper in the Civil Hospital, Sibsagar just stated that he saw the deceased in the hospital bed with bum injuries and that he did not know how the girl and sustained those bum-injuries. PW 3 Smti. Takali Goala stated that she did not know how the deceased died. PW 4 Shri Kunjalal Saikia wrote the FIR. as told by P W 2 and he had no personal knowledge about the occurrence. PW 5, Shri Tilak Chandra Deka, Sub-Inspector of Police, Sibsagar Police Station investigated the case and submitted the charge sheet against the accused appellant. He deposed that he recorded the statement of the deceased before her death but did not disclose the contents of her statement. He also stated that he sent a requisition for recording her dying declaration by a doctor of the hospital. He deposed that he recorded the statement of the deceased before her death but did not disclose the contents of her statement. He also stated that he sent a requisition for recording her dying declaration by a doctor of the hospital. In cross examination, PW 5 stated that PW 2 did not tell him that she was reported by her granddaughter that the boy, who loved her, set her on fire that the deceased disclosed, her that the boy who loved her, set her on fire and that the deceased ad the accused were in deep love. PW 6, Dr. M N Gogoi, Assistant Professor of Forensic Medicine in the Assam Medical College Hospital, Dibrugarh performed the post mortem examination on the dead body of the deceased on 10.7.89 and he opined that the death was due to septimicia (septimicia Means septic condition of the injuries) that resulted from the infected burns caused from flame burn. Burns were ante mortem, epider-. mal in degree. 50% of the body surface was involved in bum. Time in death 24 hours to 36 hours approximately. 4. The evidence discussed above, euploid with the evidence of the doctor (P W 6), clearly shows that the deceased sustained burn-injuries at the time and place as alleged by the prosecution and that she succumbed to those injuries after 30 days. Now the question is whether this is a case of homicide, suicide or accident. It is no where stated that the deceased caught fire accidentally; the defence suggests that the deceased committed suicide by burning herself out of frustration as she was in love with the accused appellant and his parents objected to such affairs. The prosecution attributes it to be a case of homicide. Even assuming it to be a case of homicide, there is not an iota of evidence save and except uncorroborated solitary statement of the deceased's mother. Admittedly, she is not an eye witness to the occurrence. On her own admission, she rushed to the place of occurrence, found her daughter burning but she did not see the accused-appellant at or near the place of occurrence. She, however, claimed to have been reported by her grand daughter aged about 10/11 years, that the deceased was set on fire by the accused. On her own admission, she rushed to the place of occurrence, found her daughter burning but she did not see the accused-appellant at or near the place of occurrence. She, however, claimed to have been reported by her grand daughter aged about 10/11 years, that the deceased was set on fire by the accused. Even in her examination in chief, PW 2 stated that her grand daughter simply said to her that the deceased was burnt down without disclosing who set fire on her. In cross examination of this witness, it is stated that the deceased was set on fire by the boy, who loved her. Be that as it may, the grand daughter of this witness aged about 10/11 years Baby was not examined without any explanation and hence the evidence of PW 2 that she was reported by her grand daughter that the accused appellant set fire on the deceased is a heresy evidence, which cannot be acted upon. The next statement of P W 2 is that the deceased before her death disclosed to her that the accused appellant poured kerosine oil on her and set fire on her. Mr. JM Choudhury, learned Senior Counsel has strenuously argued that this evidence about the dying declaration was introduced after long 9 (nine) years of the occurrence, whereas P W 2 in the F.I.R. lodged by her did not utter a single word about such a dying declaration. The Investigating Officer (P W 5) also stated that PW 2 did not tell him that the deceased made a dying declaration to the effect that the accused set her on fire. That apart, the dying declaration is a weak type of evidence and it should be in evidence as far as practicable in the words used by the dying person. In the instant case, PW 2 simply stated that the deceased made a dying declaration that the accused appellant set her on fire. Having regard to the fact that PW 2 did not mention about such dying declaration in the F.I.R. lodged by her that she did not tell the investigating officer about such dying declaration and that she introduced the same after 9 years of the occurrence, we are not inclined to act upon on such a dying declaration. At this stage, Mr. At this stage, Mr. J. M. Choudhury, learned Senior Counsel submits that the learned Sessions Judge acted upon the statement made by the deceased before the Investigating officer that the accused heron fire. Curiously enough, the Investigating officer in his evidence before the Court simply said that he recorded the statement of the deceased without disclosing the content of such statement. In the absence of such a formal statement, we do not know what the deceased told the Investigating Officer about the cause of her death or about the involvement of the accused appellant. The learned Sessions Judge could not have used the statements in the case diary to convict the accused appellant or to land assurance to the other evidence on record, as there is none. That apart, the courts are always reluctant to accept the dying declaration recorded by police officer unless it is explained by the officer recording the same that it could not be recorded by a Magistrate or a doctor under special circumstances. In the instant case, the investigating officer, P. W. 5 stated that he sent for a doctor of the hospital but it was not recorded. The learned Sessions Judge was wrong in relying on statements in the case Diary, which by Section 162 of the Code of Criminal Procedure. 5. In view of what has been stated above, we do not find any legally admissible evidence to connect the accused appellant with the alleged offence. 6. The evidence which could have been collected has not been produced since in the F.I.R. it is there that the patients of the hospital saw the occurrence and they came to the place of occurrence to rescue the deceased by during water on the body of the deceased to extinguish the fire. But none of the patients was examined the Investigating Officer. Failure on the part of the Investigating Officer to get the dying declaration recorded by a magistrate or a Doctor in the hospital in another loophole in the case and the evidence actually produced leads us now here as to implicate the accused-appellant with the alleged offence. The learned Sessions Judge was not justified in convicting the accused-appellant under Section 302 IPC on such evidence or rather lack of evidence. The learned Sessions Judge was not justified in convicting the accused-appellant under Section 302 IPC on such evidence or rather lack of evidence. We are constrained to observe that in a murder trial where the accused is charged with an offence punishable with death or imprisonment for life, the Court must be careful, circumspect and cautious. The Court should carefully scrutinise all the material evidence and the circumstances before recording conviction. In this case, we have hesitation in acquitting the accused-appellant. 7. The accused-appellant Shri Ratan Das is acquitted of the charge under Section 302 of the Indian Penal Code framed against him. He is now in jail. He shall be set at liberty forthwith, if not required in any other case. 8. The Criminal Appeal is accordingly allowed. Send down the L.C.R. immediately.