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2009 DIGILAW 138 (GAU)

Ashok Bandhu Bhowmik v. State of Tripura

2009-02-25

B.D.AGARWAL, BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.D. Agarwal. J. 1. The accused/appellant herein, Sri Ashok Bandhu Bhowmik is the husband of the deceased, Laxmi Rani Das. The accused/appellant along with parents and brother was tried for inflicting Laxmi Rani Das both physical and mental torture and subsequently for murdering her. The parents and brother of the accused/appellant have been acquitted from the aforesaid charges. However, the accused /appellant i.e husband has been convicted under Sections 498A and 302 of the Indian Penal Code ('IPC' in short) vide judgment dated 26.04.2005 passed by the learned Additional District & Sessions Judge, West Tripura, Agartala in Sessions Trial Case No. 140 (WT/A) of 2003. By the said judgment the learned Additional Sessions Judge has sentenced the accused/appellant to undergo R.I. for 2 years for the offence punishable under Section 498A IPC and Imprisonment for life and to pay a fine of Rs. Rs. 1000/-, in default to undergo R.I. for 6 months for the offence punishable under Section 302 IPC. Being aggrieved with the conviction and sentences, the accused / appellant has preferred this appeal. 2. We have heard Mr. H. Debnath, learned Counsel appearing for the accused/appellant and Mr. R.C. Debnath, learned Special Public Prosecutor, Tripura. We have also gone through the impugned judgment and conviction proffered by the prosecution as well as the evidence of the accused/appellant. 3. The prosecution story in brief is that the accused/appellant had married the deceased after maintaining love affairs. However, the marriage was not accepted by the parents and family members of the accused/appellant. Hence the deceased started living with her parents. The accused/appellant also stayed in his in-law's house for a short period. Subsequently, being frustrated with the situation the accused/appellant absconded from the village nearly for and about one and half years. After returning home the accused/appellant brought his wife to his parents house and stayed together for about 2 months. Thereafter on 11.12.2002 an incident took place in the kitchen, wherein the deceased caught fire and sustained extensive burn injuries and within hours she was taken to G.B. Hospital, Agartala wherein she succumbed injuries. 4. Since the parents of the deceased were staying nearby they got the information of burning incident of their daughter, they visited the place of occurrence immediately and accompanied their daughter to the hospital. They suspected that their daughter was killed by the accused/appellant. 4. Since the parents of the deceased were staying nearby they got the information of burning incident of their daughter, they visited the place of occurrence immediately and accompanied their daughter to the hospital. They suspected that their daughter was killed by the accused/appellant. Hence, Mother of the deceased lodged an FIR on the same day. Accordingly, a case under Section 498A/307/326/34 of IPC was registered being Women P.S. Case No. 3 of 2002. During investigation Section 302 IPC was also added and 4(four) persons were challaned for the aforesaid offence. As noted earlier, the accused/appellant, his parents and brother were tried for the offence of cruelty and murder and after thorough trial only the appellant has been convicted. 5. The learned Counsel for the appellant submitted that the prosecution not only failed to establish conclusively that the deceased was in fact subjected to cruelty and that she was set afire by the accused/appellant. In other words, it is the contention of the learned Counsel that the first ingredient of the offence under Section 302 IPC, that is, that it was a homicidal death was not established. The learned Counsel also contended that the conviction has been recorded despite there being conflicting version given by one set of witnesses and also without following corroboration of dying declaration. 6. From the record we have noticed that altogether 17 witnesses were examined by the prosecution The witnesses included the parents of the deceased's autopsy Doctor and independent witnesses. On the other hand, the defence side also examined three witnesses. DWs 1 and 3 were basically examined to prove that at the relevant time at least the father-in-law was in his office since he was a Government servant. DW 2 has been examined to say that he along with some others including the accused/appellant extinguish the fire of the deceased and that the appellant himself took the deceased to the hospital. 7. After going through the impugned judgment, it transpires to us that the learned Addl. Sessions Judge, West Tripura was highly influenced impressed by the alleged dying declaration of the deceased. Hence, we propose to look at the genuineness and acceptability of the dying declaration at the first instance 8. The dying declaration has been proved by the prosecution under Ext.2. This statement was recorded by the investigating officer within a few hours of hospitalization of the deceased on 11.12.2002. Hence, we propose to look at the genuineness and acceptability of the dying declaration at the first instance 8. The dying declaration has been proved by the prosecution under Ext.2. This statement was recorded by the investigating officer within a few hours of hospitalization of the deceased on 11.12.2002. In the said statement the deceased, except naming her husband, implicated her mother-in-law and brother-in-law for setting fire on her body after pouring Kerosene oil. Hence, she did not narrate the incident in detail. The deceased also did not give any account as to what had transpired immediately before stating her ablaze by the accused persons. 9. Admittedly and apparently the statement was given and recorded in presence of two staff of the hospital who have been examined as PWs 2 and 8. While giving depositions in the Court, PW 2 has given a general statement that the deceased had given a statement before the Police officer in her presence. At the same time, the witnesses have also deposed in the chief examination that the deceased's version was not much clear. Except proving the statement as Ext.2, the witness i.e PW 2 did not disclose exactly what was stated by the deceased to the investigating officer in her presence. Similarly, the testimony of PW 8 also do not inspire our confidence regarding the veracity of the dying declaration. This witness has categorically admitted in the cross-examination that she did not hear what the deceased had explained before the Police officer. PW 8 has stated that her signature was obtained from the office room. In our opinion, if the version of PW 8 is believed, it will certainly put a question mark about the truthness of the dying declaration itself. 10. The above apart, although the victim was alive for 5 days, the investigation officer did not make any attempt to record the statement before the attending Doctor. It is the settled position of law that as far as possible the investigating officer should obtain a certificate from the Doctor that the victim was in a position to give any statement. In the present case, although the investigating officer (PW 17) has admitted in the cross-examination that she had consulted the attending Doctor both on 11th and 12th December, 2002. In the present case, although the investigating officer (PW 17) has admitted in the cross-examination that she had consulted the attending Doctor both on 11th and 12th December, 2002. Despite that investigating officer did not bother to obtain the statement of the deceased in the presence of Doctor nor any fitness certificate was obtained from the Doctor. 11. From the oral evidence of the witnesses also we find that the prosecution's version of giving dying declaration is not supported by majority of the witnesses. PW 6 has deposed before the Court that he was in the hospital for about half an hour after the admission of the deceased and at that time the deceased was unable to speak. PW 10 is another independent witness from the neighborhood. This witness has admitted in the cross- examination that he had also visited the hospital in the afternoon and at that time the deceased was not in a position to speak. Similarly, PW 13 has also admitted that on the first day of the incident he met with the deceased in the hospital and at that time she was not in a position to talk. All these witnesses are from the neighborhood of the deceased and we find no reason to disbelieve their admission. 12. It is true that in the chief examination PW 13 has deposed that after two days of the incident he found that the deceased was able to speak. However, as noted at the out set of the judgment the dying declaration was recorded on the very first day and as such we are concerned about the physical condition of the deceased on that day only. Be that as it may, in the cross-examination PW 13 has admitted that the deceased was not in a condition to speak on the first day. 13. The above apart, the dying declaration has been accepted and applied against one accused only and the same has been discarded for the remaining accused persons. In the impugned judgment the learned Addl. Sessions Judge has observed as follows: The dying declaration is not elaborate but incriminating indeed against the accused persons. The role played by Smti Khela Rani Bhowmik and Sukanta Bandhu Bhowmik are not disclosed elaborately in her statement but the other evidence also was not much corroborating about the role played by Khela Rani and Sukanta Bandhu Bhowmick 14. Sessions Judge has observed as follows: The dying declaration is not elaborate but incriminating indeed against the accused persons. The role played by Smti Khela Rani Bhowmik and Sukanta Bandhu Bhowmik are not disclosed elaborately in her statement but the other evidence also was not much corroborating about the role played by Khela Rani and Sukanta Bandhu Bhowmick 14. We have already reflected in the judgment that dying declaration is only in few words. Except disclosing the names of the three accused persons the deceased did not disclose either the motive for setting her afire or what had transpired between her and accused persons before she was set ablaze. The deceased also admittedly did not disclose the individual role played by her husband and inlaws. Hence in our considered opinion , either the dying declaration ought to have been accepted in toto against all the accused persons uniformly or the benefit of omission in the statement should have been given to the husband as well. In other words, we hold that dying declaration cannot be accepted in piecemeal . 15. We have also found from the deposition of the witnesses, more particularly, from the depositions of PWs 5 , 6, 10 and 12 that the husband had taken initiative to shift his injured wife to the nearest hospital without any delay. DW 2 has also corroborated the aforesaid prosecution witnesses. This fact also can be taken into consideration while giving benefit of doubt to the husband. 16. Coming to the motive for committing murder, the mother and father (PWs 1 and 9) of the deceased have alleged that their daughter was subjected to mental and physical torture for not satisfying the demand of Rs. 40,000/- and one Scooter. This allegation is also missing in 161 statements. We have already noted earlier that the accused/appellant had married the deceased after establishing love affairs for a long period and that too against the wishes and consent of his parents. Beside this, for not accepting the deceased as their daughter-in-law by his parents the appellant had left the village for a long period of one and half years. In this way, the appellant had lived with his wife hardly for about 5 months. During such a brief period it is difficult to believe that the appellant would have inflicted any torture or demanded dowry. In this way, the appellant had lived with his wife hardly for about 5 months. During such a brief period it is difficult to believe that the appellant would have inflicted any torture or demanded dowry. Besides this, according to PWs 4,6 and 12 as well as according to DW 2, the accused/appellant had cordial relation with his wife on the top of it,the prosecution has failed to give any evidence that the allegation of torture for not satisfying the demand of dowry was disclosed to any neighbor or leading persons of the society before the incident of fire took place. 17. In our considered opinion, had the husband or inlaws had subjected physical or mental torture, the matter ought to have been reported to some of the respected persons of locality at least with an intention to patchup the alleged uncordial relation between the deceased and her husband and inlaws. 18. Having given our anxious consideration to the entire evidence on record, we hold that it is a fit case wherein the benefit of doubt can be given to the accused/appellant, more so on the ground that when the remaining accused persons have been acquitted it is not desirable that the appellant alone should be convicted on the same set of evidence. 19. In the result, the appeal stands allowed. The conviction of the appellant both Under Sections 498Aand 302 IPC are hereby set aside. The accused/appellant is directed to be set at liberty immediately, if he is not wanted in any other case. 20. Registry is directed to issue the Release Order forthwith. Return the L.C.R along with a copy of this judgment to the learned court below.