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2005 DIGILAW 260 (GAU)

Manoj Saha v. State of Assam

2005-03-24

P.G.AGARWAL

body2005
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. P. Kataki, learned Counsel for the Appellants and the learned Public Prosecutor. 2. This appeal is directed against the judgment and order dated 9.3.2002 passed by the Ad-hoc Additional Sessions Judge, Bongaigaon in Session Case No. 10(B)/2000. 3. This is a case of death of a young housewife who has fallen prey at the altar of dowry demands. The victim Pratima was married to the accused Appellant Niranjan Saha sometime in the year 1992 and thereafter she lived with her husband, sister-in-law and brother- in-laws in a joint family. It is alleged that the young wife was subjected to harassment as regards the articles given in dowry and as regards some further articles to be given. On the fateful day of 7.7.94 at about 9 P.M., while Pratima was in her room the accused Appellant Bina Saha poured kerosene over her and the accused Manoj Saha, the brother-in-law set her on fire by lighting matchstick. Pratima sustained severe burn injuries and she was removed to the hospital by the neighbours. Police was also informed and the dying declaration was recorded by Executive Magistrate. Pratima succumbed to the injuries at the hospital. On FIR being lodged, police registered the case and after usual investigation submitted charge sheet against the four accused Appellants. During trial, prosecution examined as many as 10 witnesses and on conclusion, the trial court convicted the accused Appellants under Section 304(B) IPC and sentenced each of them to rigorous imprisonment for seven years and hence the present appeal. 4. PW 1 is the informant Kameswar Saha the elder brother of the deceased Pratima. He has deposed about the marriage that took place between the accused Niranj an and the deceased about two years prior to the occurrence. He is not a witness to the occurrence but on receipt of the information, he went to the hospital and found burn injuries on her person. He lodged the FIR Ext. 2. The deceased died after 12 days of the incident. PW 3 Nripendra Achatjee is a neighbour and on hearing shouts for help of the victim, he came to the house and saw her burning and thereafter with the help of Ors. removed her to the hospital. PW 4 is Anr. neighbour Ajit Sarkar and he has reported about the incident. The deceased died after 12 days of the incident. PW 3 Nripendra Achatjee is a neighbour and on hearing shouts for help of the victim, he came to the house and saw her burning and thereafter with the help of Ors. removed her to the hospital. PW 4 is Anr. neighbour Ajit Sarkar and he has reported about the incident. Likewise Pran Gopal Saha has also deposed about the incident of burning that took place at the house of the deceased and the accused persons. PW 5 is Dr. Biren Chakraborty who held autopsy over the dead body of the deceased and found the following injuries: A female body emaciated burn all over the body except face, head and portion of the back. Rigor mortis-present. Description of the injuries: Skin all over the body is burnt except few places. In places partially and in some places full thickness of the burn of the skin is present Exposing the underlining muscle, skull, face and portion of inner part of the thigh. Sole and back is intact. There is approximately 90% of burn present in her body. Necrotic (dead tissues) and infected debris covering some part of the bum area. No other evidence of injury seen any part of her body. Thorax, Cranium and spinal Canal, bones, liver, spleen, kidney and other organs are normal. In my opinion death occurred as a result of shock (Hypovolumic or Toxic i.e. loss of fluid of body and infection). Death occurred within 24 hours of examination. Such bum injuries may cause death of human being in ordinary course of nature. 5. In this case the fact that the deceased Pratima was married to Niranj an about two years prior to the occurrence and that she died of burn injuries sustained on the night of occurrence has not been disputed or challenged. However, relying on the testimony of PW 3, it has been submitted that this may be a case of commission of suicide. PW 3 has deposed on hearing the shouts when he went to the house of the accused persons, the house was bolted from inside whereupon he forced his entry into the house. It is, therefore, submitted that as there was no one inside, the victim might have committed suicide. PW 3 has deposed on hearing the shouts when he went to the house of the accused persons, the house was bolted from inside whereupon he forced his entry into the house. It is, therefore, submitted that as there was no one inside, the victim might have committed suicide. We find no force in the above submission as we find that beside the victim, three accused persons Sanjay Saha, Manoj Saha and Bina Saha were present and the main door was bolted from inside. Moreover, the occurrence took place at 9 P.M. and the door of the house will not be kept opened by anyone. We also find that there is no evidence that the bedroom was locked from inside. 6. In this case, there is no eyewitness to the occurrence and the entire prosecution case rests on the dying declaration of the deceased. The Investigating Officer deposed that after coming to the hospital and seeing the condition of the deceased he made a request and the Executive Magistrate PW 9 was deputed and the learned Executive Magistrate recorded the dying declaration Ext. 5 at the Civil Hospital, Kokrajhar in the presence of the Dr. Abdul Moid. Ext. 5 reads as follows: On oath On 7.6.94 I was sleeping alone in the bedroom of the house of my father-in-law's and at that time there was no electric light but the lamp was burning. Thereafter my sister-in-law Bina and brother-in-law Manoj and Sanjay entered into the room and Bina brought a plastic jar and poured kerosene oil over my body and accused Manoj lighted a match stick and set me on fire. I thereafter raised alarm and the neighbours came and put out the fire. At that time my husband had gone out to the market. My father-in-law and mother-in-law were also not in the house. I used to have altercations with my sister-in-law as regards performing of daily puja at the Kali Mandir situated in their house. About two days back my husband had assaulted me for not bringing gold chain from my house. My husband also used to rebuke me for not transferring the TV brought by me in marriage in the name of my husband. 7. The dying declaration was recorded in presence of Dr. Abdul Moid and investigating police officer. About two days back my husband had assaulted me for not bringing gold chain from my house. My husband also used to rebuke me for not transferring the TV brought by me in marriage in the name of my husband. 7. The dying declaration was recorded in presence of Dr. Abdul Moid and investigating police officer. In this case, we find that the police had also seized the plastic jar containing about 100 ml. of kerosene oil. The sari and the pair of sandal worn by the deceased, which were burnt and match sticks were seized from the place of occurrence. 8. The earliest case in which the law on dying declaration was considered in details by the Hon'ble Supreme Court is Khushal Rao v. State of Bombay AIR 1958 SC 22 , and since then the law on this point has been reiterated and re-enunciated in a catena of decisions. In the case of Kundula Bala Subrahmanyam v. State of Andhra Pradesh (1993) 2 SCC 684 the Apex Court held: 18. Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in His death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. One the statement of the dying persons and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the court has also to scrutinize all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same. 9. In the case of Laxmi v. Omprakash AIR 2001 SC 2383 the Apex Court reiterated its earlier decisions in the following words: The law is well settled; dying declaration is admissible in evidence. The adminissibility is founded on principle of necessity. A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. A dying declaration as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. It is, as if the maker of the dying declaration was present in the Court, making a statement, stating the facts contained in the declaration is not a statement on oath and the maker thereof cannot be subjected to cross-examination. If in a given case a particular dying declaration suffers from any infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the court may as a rule of prudence look for corroboration and if the infirmities be such as render the dying declaration so infirm as to pick the conscience of the Court, the same may be refused to be accepted as forming safe basis for conviction. In the case at hand, the dying declarations are five. However, it is not the number of dying declarations which will weigh with the Court. A singular dying declaration not suffering from any infirmity and found worthy of being relied on may form the basis of conviction. On the other hand if every individual dying declaration consisting in a plurality is found to be infirm, the Court would not be persuaded to act thereon merely because the dying declaration are more then one and apparently consistent. One of the important tests of the reliability of the dying declaration is a finding arrived at by the Court as to satisfaction that the deceased was in a fit state of mind and capable of making a statement at the point of time when the dying declaration purports to have been made and/or recorded. The statement may be brief or longish. It is not the length of the statement but the fit state of mind of the victim to narrate the facts of occurrence which has relevance. If the Court finds that the capacity of the maker of the statement to narrate the facts was impaired or the Court entertains grave doubts whether the deceased was in a fit physical and mental state to make the statement the Court may in the absence of corroborative evidence lending assurance to the contents of the declaration refuse to act on it. 10. 10. It may, however, be mentioned here that the law in regard to the admissibility of the dying declaration which is not certified by the doctor, the same is now settled by a Constitution Bench judgment in the case of Laxman v. State of Maharastra (2002) 6 SCC 710 wherein the Apex Court overruled its earlier decision in the case of Laxmi v. Omprakash (supra). It is held that dying declaration which does not contain a certificate of the doctor cannot be rejected on that sole ground so long as the persons recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the persons recording such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration will not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. 11. The law on the subject was further explained by the Apex Court in the case of Uka Ram v. State of Rajasthan (2001) 5 SCC 254 wherein it has been held: The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim nemo moriturus praesumitur mentire i.e. a man will not meet his Maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross- examination, it is essential for the court to insist that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence. 12. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence. 12. On perusal of the evidence of PW 9 and the evidence on record that the deceased died after 12 days of the incident and she was in a fit physical and mental condition to make the statements, we find that the dying declaration Ext. 5 was properly recorded and there is no infirmity and illegality in it. 13. Section 113B of the Evidence Act reads as follows: 113B. Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. 14. The presumption under Section 113B is available both in cases of homicide as well as suicide and in the present case there is evidence that before her death the young house wife was subjected to harassment as regards dowry as defined under Section 2 of the Dowry Prohibition Act and thereafter she was burnt to death. 15. It has been submitted by the learned Counsel for the Appellants Mr. Kataki that the demand for dowry was made by the husband only and not by the other accused persons. 16. We find that the harassment, assault etc. was made by the husband only but at the same time we find that the death was caused by the accused Appellant Bina as well as the accused Appellant Manoj, So far the accused Appellant Sanjay Saha is concerned, we find that no overt or covert act has been alleged against him. Moreover, he being an inmate of the house his mere presence is not sufficient to hold him guilty of the offence under Section 304B IPC. Moreover, he being an inmate of the house his mere presence is not sufficient to hold him guilty of the offence under Section 304B IPC. Admittedly the accused Appellant Niranj an husband of the deceased was not present in the house at the time of occurrence but in view of the provisions of Section 304B IPC the husband or any of his relative who had subjected the wife to cruelty or harassment in connection with the demand for dowry shall be deemed to have caused her death. Section 304B IPC reads as follows: 304B. Dowry death-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. 17. In view of the above, notwithstanding the absence of the Appellant Niranj an Saha at the time of the incident of burning we hold that in view of the dying declaration we find Niranj an deemed to have caused her death. 18. In the result, the appeal is partly allowed. The conviction and sentence entered into by the trial court against the accused Appellant Sanjay Saha is set aside. The accused Appellant Sanjay Saha is acquitted and he be set at liberty if not wanted in any other case. The conviction of the accused Appellants Manoj Saha, Bina Saha and Niranjan Saha are upheld. The trial court has imposed the minimum punishment provided under the law. 19. Send down the records.