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2004 DIGILAW 285 (GAU)

Sadhan Chandra Ghosh v. State of Assam

2004-04-22

I.A.ANSARI, P.G.AGARWAL

body2004
ORDER P.G. Agarwal, J. 1. This criminal appeal is directed against the judgment dated 13.5.97 passed by the learned Sessions Judge at Dhemaji in Sessions Case No. 115(DH)/92. 2. This is a case of death of an unfortunate housewife, Smt. Suradhani Ghosh, who died within a year of her marriage. The FIR, Ext. 1 was filed by her on 9th December, 1986 stating, inter alia, that she was married to the accused appellant Sadhan Ch. Ghosh about 11 months back and lived with, him. However, she was physically tortured by her husband and in-laws and on 28.11.86, the accused set her on fire, as a result of which, the nine months pregnancy carried by her was aborted due to the burn injuries. After few days of occurrence the victim was taken away by her elder brother to their house at Gogamukh, where she was staying with her brother. 3. The victim, Suradhani Ghosh died on 9.12.86 and police after usual investigation submitted charge-sheet. The accused was tried for the commission of offence under Section 302 IPC and on conclusion of the trial, the learned Sessions Judge, Dhemaji by, impugned judgment convicted and sentenced the accused appellant to imprisonment for life and to pay a fine of Rs. 5000, in default to further imprisonment for 2 years. Hence, the present appeal. .., 4. P. W. 9, Dr. Brajen Bhattacharjee, who held the autopsy over the dead body has found as follows : "Dead body of the emaciated lady with presence, of rigor motris in the legs......in the abdominal wall second degree burn over the buttock, thigh and legs.........of the both sides. The burnt area (torn) with blisters present with red margins. No other sign of injury on violence seen." "Dead body of an emaciated lady of postnatal period with sign of recent delivery and with second degree burn on the buttock, thigh and legs which is anti-mortem in nature." 5. In the opinion of the Doctor, the death of the deceased was as a result of the burn injuries. In this case, the death of the deceased as a result of the burn injuries is admitted by the accused in his statement under Section 313 Cr.P.C. In this case, according to the prosecution, the incident, wherein the deceased sustained burn injuries, occurred at the house of the accused. In this case, the death of the deceased as a result of the burn injuries is admitted by the accused in his statement under Section 313 Cr.P.C. In this case, according to the prosecution, the incident, wherein the deceased sustained burn injuries, occurred at the house of the accused. Smt. Tepi Ghosh, P. W. 5 is the own sister of the accused appellant and she has deposed that on the date of occurrence while she was washing cloth, she went to the room of the deceased to fetch something and saw her in flames, whereupon she raised alarm and the neighbours came. She was treated, she gave birth to a child but the child died subsequently. Thereafter she was taken away by her mother to her house, where she succumbed to the injuries. P.W. 6 Smt. Jetuki Taku is another neighbour, who treated the deceased at the house " of the accused and she has also deposed that the deceased has sustained burn injuries. She, however, does not know as to how the deceased got the burn injuries. P. Ws. 4 and 7 have also deposed about the burn injuries but they do not know as to how the burn injury was caused. 6. P.W. 1 is the brother and P.W. 3 is the mother of the deceased. They have deposed that on being informed after 4/5 days of the incident, they went to the house of the accused and found the deceased with burn injuries on her person and they brought her to their house. The deceased informed them that the accused appellant set her on fire, as a result of which she had sustained the burn injuries and she had aborted. The fact that the deceased had an abortion or a recent delivery is not in dispute. We also find support from the medical certificate on record which states about the same. 7. In this case, there is no eye witness to the occurrence. The entire prosecution case rest on the written dying declaration as well as the oral dying declaration of the deceased. The deceased had filed an FIR at Dhakuakhana PS. on 9.12.86, wherein she has categorically stated that her husband set her on fire and she sustained burn injuries, as a result of which he had abortion of 9 months pregnancy by giving birth to a dead child. The deceased had filed an FIR at Dhakuakhana PS. on 9.12.86, wherein she has categorically stated that her husband set her on fire and she sustained burn injuries, as a result of which he had abortion of 9 months pregnancy by giving birth to a dead child. We, however, find that the deceased died on the same day, i.e., on 9.12.86. The defence, therefore, tried to raise a suspicion about the authenticity of FIR, Ext. 1, by stating that the FIR, Ext. 1, was a concocted one and brought on record subsequently to implicate the accused appellant. In order to ascertain the said fact, we have brought the case diary from the Police Station from Dhakuakhana F.S. and find that the FIR was lodged at the Police Station Dhakuakhana P.S. and it was handed over by the brother of the deceased and a case was registered under Section 324/313/307/34 IPC only. The deceased died subsequently, whereupon another information was given The statement of Khoka Ghosh, who had brought the FIR to the Police Station was recorded at 1.00 PM at Dhakukahana P.S., whereas the deceased died subsequent at 3.00 PM at Gogamukh. P.W. 2 is the writer of the FIR and he has also categorically deposed that the FIR was written by him on the morning of the 9.12.86 as per the dictation of the deceased and Ext. 1 bears the signature. This FIR discloses the cause of death of the deceased, the information in the FIR amounts to written dying declaration as the informant had died subsequently. The writer of the FIR was examined as P.W. 2, as stated above. But we find that there is no meaningful cross-examination as nothing has come out from his cross-examination that Ext. 1 is a fabricated document. In this case, we find that even P.W. 8, the Investigating Police Officer has categorically stated that the FIR was lodged at about 12 Noon on 9.12.86 and his evidence has remained unchallenged. Besides the written dying declaration, there is oral dying declaration made by the deceased before P.W, 1, P.W. 2 and P.W. 3. P.W. 1 and RW. 3 are the brother and mother of the deceased; whereas the P.W. 2 is an independent witness. They have categorically deposed that the deceased had stated that she was set on flame by her own husband. P.W. 1 and RW. 3 are the brother and mother of the deceased; whereas the P.W. 2 is an independent witness. They have categorically deposed that the deceased had stated that she was set on flame by her own husband. The deceased had married the accused about a year back only and there is no reason on her part to make a false statement or declaration. The witness had also no reason to falsely implicate the accused. Apparently, nothing has come out to show that they carried animus against the accused. 8. The accused person in his statement under Section 313 Cr.P.C. has tried to raise a plea that the deceased was suffering from epilepsy prior to her marriage and since she was suffering from epilepsy, she fell down on fire and suffered the burn injuries. The statement of the accused, however, does not find any support, from the evidence of his own sister, P.W.-5, where she has stated that she was the first person to detect the fire on the person of the deceased and this was in the bed room of the accused. Admittedly, the deceased, who was carrying a pregnancy of 9 months at the relevant time, who was in the bed room and there cannot be any scope of falling her on fire in the bed room itself. There is also no evidence to show that the deceased was suffering from epilepsy as claimed by the appellant and we find that the defence plea is an afterthought and there was no scope of falling on fire and getting burnt. The law regarding basing conviction on the dying declaration is well settled and in view of the written as well as oral dying declaration available, we hold that the accused appellant, who caused the death of his own wife within one year of the marriage, while she was carrying full pregnancy of 9 months. The conviction of the accused appellant under Section 302 IPC, therefore, needs no interference. So far the sentence is concerned, we provide that the accused be sentenced to imprisonment for life and pay a fine of Rs. 1000, in default to, further imprisonment for one month only. The appeal stands dismissed as aforesaid. Appeal dismissed