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2010 DIGILAW 67 (GAU)

Mohendra Ram v. State of Assam

2010-02-01

BIPLAB KUMAR SHARMA, I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. By judgment and order, dated 29.9.2008, passed, in Sessions case. No. 111/2007, the learned Addl. Sessions Judge (FTC), Dibrugarh, has convicted the accused-appellant under Sections 498Aand 304B of the IPC and sentenced him to undergo, for his conviction under Section 498A, IPC, rigorous imprisonment for 2(two) years and pay fine of Rs. 10.00 (Rupees one thousand) only and, in default, undergo rigorous imprisonment for a further period of 2(two) months and to suffer, for his conviction, under Section 304B of the IPC, imprisonment for life. 2. We have heard Mr. J.M. Choudhary, learned senior counsel, on behalf of the accused-appellant, and Mr. D. Das, learned Addll. Public Prosecutor, Assam. 3. The case of the prosecution may, in brief, be described, thus: The father of the deceased, Durgi Rabidas, lodged, on 11.1.2005, a written information, at Duliajan Police Station, alleging to the effect, inter alia, thus: Informant's daughter, Durgi Rabidas, wife of the accused-appellant, used to live with her husband, Mohendra Ram (i.e., the accused-appellant) and their two children at Dumduma. On 9.1.2005, the informant received telephonic information from the neighbours of the accused-appellant that his daughter, Durgi Rabidas, had tried to commit suicide by pouring kerosene oil on her body and setting herself on fire. The informant also alleged that his daughter used to tell the informant and others that her husband was not satisfied with dowry and, often, tortured her after getting drunk and, thus, unable to bear the torture, which she was subjected to by her husband, she was, according to the informant, compelled to attempt to commit suicide and that she was lying, in critical condition, at Oil India Hospital, Duliajan. Treating the said information as the First Information Report ('FIR'), a case was registered, under Section 498A, IPC, against the accused-appellant. The informant, accompanied by his wife and son, visited his daughter at the said hospital. Later on, Durgi Rabidas was shifted to Assam Medical College and Hospital, Dibrugarh. While undergoing treatment, at the said hospital, for the burn injuries suffered by her, Durgi succumbed to the burn injuries. However, before she died, two dying declarations were recorded, both on 12.1.2005. The one, which was recorded by an Executive Magistrate, is Ext.2 and the one, which was recorded by a doctor, is Ext.5. While undergoing treatment, at the said hospital, for the burn injuries suffered by her, Durgi succumbed to the burn injuries. However, before she died, two dying declarations were recorded, both on 12.1.2005. The one, which was recorded by an Executive Magistrate, is Ext.2 and the one, which was recorded by a doctor, is Ext.5. During investigation, inquest was held on the dead body of Durgi and, on completion of the investigation, police laid charge sheet, under Sections 498A and 304B, IPC, against the accused appellant. 4. On the charges being framed under Sections 498A and 304B, IPC, at the trial, the accused-appellant pleaded not guilty thereto. 5. In support of their case, prosecution examined 8(eight) witnesses. The accused-appellant was, then, examined under Section 313, Cr.P.C. In his examination aforementioned, the accused-appellant denied that he had committed the offences alleged to have been committed by him, the case of the defence being that of total denial. No evidence was adduced by the defence. Having held the accused-appellant guilty of the offences charged with, the learned trial court has convicted him accordingly and passed sentences against him as mentioned above. 6. While considering the present appeal, it needs to be noted that the informant (PW1) is father of the deceased, PW 2 and PW3 are her brother and mother respectively. 7. In his evidence, PW 1 has deposed that his daughter got married to the accused and about two years back, he was informed, over telephone, that his daughter had suffered burn injuries, whereupon he, accompanied by his wife (PW3) and son (PW2), rushed to the hospital and, thereafter, he lodged an FIR, at Duliajan Police Station, on suspicion. In his cross-examination, PW 1 has further clarified that he made the complaint against the accused on suspicion and that his daughter had got burnt accidentally, while she was cooking food in the kitchen. 8. Broadly in tune with the evidence of PW 1, PW 3 has deposed that she received a telephonic message about the fact that her daughter, Durgi, had received burn injuries, whereupon they went to the hospital, at Duliajan, and they, then, took Durgi to Dibrugarh Medical College and Hospital, where she died after 2/3 days. PW3 has also clarified, in her evidence, that her daughter, Durgi, told her that she had suffered burn injuries from gas, while she was carrying her child on her lap. 9. PW3 has also clarified, in her evidence, that her daughter, Durgi, told her that she had suffered burn injuries from gas, while she was carrying her child on her lap. 9. PW 3, who had accompanied PW 1 and PW 2 to the hospital, has deposed that on receiving information about the fact that his sister, Durgi Rabidas, had suffered burn injuries, they rushed to the hospital and found Durgi lying in a critical condition and she was not in position to talk to them. PW 2 has also deposed that on the next day, his sister, Durgi Rabidas, told him that she had caught fire from backside, while she was cooking food, PW 2 has clarified that the case was lodged against the accused on suspicion. 10. From a careful reading of the evidence given by PW 1, PW 2 and PW 3, what clearly transpires is that none of them had seen as to how the deceased had got burnt and that the FIR was lodged on suspicion. More importantly, PW 2 has clarified that his sister told him at the hospital that she had caught fire from the back side, while she was cooking food in the kitchen. Almost to the same effect is the evidence of PW3. Thus, the evidence, given by PW 1, PW 2 and PW 3, does not show that Durgi attempted to commit suicide or that she suffered burn injuries on her person at her husband's hand. There is also no evidence given by PW 1, PW 2 and PW 3 to the effect that the accused had demanded dowry or subjected Durgi to cruelty. 11. In the backdrop of the evidence discussed above, we, now, turn to Ext. 2, which, according to the prosecution, is a dying declaration recorded by the Executive Magistrate. What is of utmost importance to note is that the Executive Magistrate, who is claimed to have recorded the said dying declaration, was not examined as a witness. The said dying declaration (Ext. 2) was sought to be proved by the prosecution with the help of the evidence of PW 4, who is a staff nurse at Oil India Hospital, Duliajan. We have considered the evidence of PW 4. The said dying declaration (Ext. 2) was sought to be proved by the prosecution with the help of the evidence of PW 4, who is a staff nurse at Oil India Hospital, Duliajan. We have considered the evidence of PW 4. She has deposed that about 2/3 years back, Durgi Rabidas was admitted as indoor patient to the said hospital and after 4/5 days of her admission, Durgi was taken to Assam Medical College and Hospital, Dibrugarh, by her parents and brother. Though PW4 has deposed that that Ext. 2 is the dying declaration of the said deceased, she has, on cross-examination, clarified that she does not know who had recorded the said dying declaration and that the same was not written in her presence. She further claims that she had put her signature on Ext. 2 as was told to her. 12. Thus, notwithstanding the fact that PW 4 claimed, in her examination-in chief, that Ext. 2 was Durgi's statement, her evidence in the cross-examination, made it abundantly clear that she did not even know about the recording of the said dying declaration. In such a situation, and, more particularly, when the person, who had recorded the dying declaration, namely, the Executive Magistrate, was not examined as a witness, at the trial, we have no hesitation to hold that Ext. 2 cannot be safely treated as the dying declaration of the said deceased. 13. PW 5, who, too, is shown to be another witness to the said dying declaration (Ext. 2), has deposed that though he had put his signature, as was asked by the police on Ext. 2, he did not know the contents of the Ext. 2 or the person, who had written the Ext. 2. Thus, from the evidence given by PW 5, it becomes clear that the evidence, given by PW 5 too, same as the evidence of PW4, does not help the prosecution in proving Ext. 2 as the dying declaration of the said deceased. 14. Coming to the second dying declaration, which is Ext. 5, we notice that Ext. 5 was recorded by PW8, who is a doctor. According to the evidence of PW 8, while he was on duty, on 12.1.2005, at the Oil India Hospital, Duliajan, he had attended the patient, Durgi Rabidas, whom he found to have suffered burn injuries to the extent of 80-90%. 5, we notice that Ext. 5 was recorded by PW8, who is a doctor. According to the evidence of PW 8, while he was on duty, on 12.1.2005, at the Oil India Hospital, Duliajan, he had attended the patient, Durgi Rabidas, whom he found to have suffered burn injuries to the extent of 80-90%. PW 8 claims that Durgi Rabidas made a dying declaration before him and he reduced the same into writing, wherein she had stated that she was set on fire by her husband, on that particular night, after he had become suspicious over her character. PW 8 claims to have recorded the dying declaration in presence of (1) Mrs. Renu Baruah, Sister In-Charge of Female Surgical Ward; (2) Mrs. Manju Rajkhowa, Sister on duty, and (3) Mrs. Parbat Rabidas, elder sister of the patient. 15. Though Smt. Manju Rajkhowa (PW 4) has been examined by the prosecution to prove the Ext. 5 too, no evidence has been elicited from PW4 by the prosecution to prove Ext. 5. Thus, though PW4 is claimed to be a witness to Ext.5 too, neither PW4 has claimed nor prosecution has elicited from PW4 that she was a witness to the making of, or recording of, the alleged dying declaration, as reflected by Ext. 5. No witness, other than the doctor (PW 8) and PW4, has been examined to prove Ext. 5, though two more persons, namely, Smt. Renu Baruah and Prabhat Rabidas, are claimed to be witnesses to the recording of the said dying declaration. Moreover, PW8 has deposed, in his cross-examination, that Durgi Rabidas was a Hindi speaking person, but he does not recollect in what language she had spoken to him, though he remembers that she had not made her said statement (i.e., Ext.5) in English. What is, however, curious to note, in this regard, is that though the doctor (PW8) remembers that Durgi was a Hindi speaking person and she had not made her said statement (i.e., Ext.5) in English, he does not remember the language in which she had spoken, while Ext.5 is statement recorded in English. Thus, the evidence, given by PW8, is too vague and indefinite. 16. In view of the above, and in the absence of any credible corroboration from any other witness, we do not find it fully safe to rely on Ext. Thus, the evidence, given by PW8, is too vague and indefinite. 16. In view of the above, and in the absence of any credible corroboration from any other witness, we do not find it fully safe to rely on Ext. 5, particularly, when PW4, who is claimed to be, as already indicated above, a witness to the recording of the dying declaration, does not support such an assertion of PW8. 17. Coupled with the above, the prosecution places reliance on two dying declarations, namely, Ext. 2 and Ext. 5. In Ext. 2, Durgi Rabidas is shown to have stated that her husband used to quarrel with her as he suspected her character and she was, thus, compelled to commit suicide by pouring kerosene on her person and setting herself on fire. As against this version of the deceased, as recorded in Ext. 2, the victim is shown to have stated, in Ext.5, that she was set on fire by her husband. Thus, on a bare reading of the contents of Ext. 2 and Ext. 5, it is clear that while in Ext. 2, Durgi Rabidas is claimed to have burnt herself, Ext. 5 reflects that her husband had set fire to her body. In the face of these two irreconcilable dying declarations, both being mutually destructive of each other, it is wholly unsafe to place reliance on any of the two declarations. The prosecution derives, therefore, no strength from what is recorded in Ext. 2 and Ext. 5. 18. If the contents of Ext. 2 and Ext. 5 cannot be relied upon, as we do, the prosecution is, admittedly, left with no other evidence to fasten the accused-appellant with the offence of having subjected his wife to cruelty and/or he having caused the death of his wife. 19. From the evidence of PW 6, i.e., the doctor, who had performed the post mortem examination over the dead body of the deceased, it clearly emerges that the deceased suffered burn injuries to the extent of 80% and died as a result of shock and burn injuries; but the fact remains that there is no other evidence, which can help the prosecution fasten the accused with the offences charged with. In such a situation, we are of the considered view that the evidence on record do not justify the learned trial court's finding that the accused-appellant has been proved guilty, beyond reasonable doubt, under Sections 498A and 304B of the IPC. 20. What emerges from the above discussion is that the evidence on record was grossly inadequate to convict the accused-appellant under Sections 498A and 304B, IPC. We, therefore, allow this appeal. The conviction of the accused-appellant and the sentences, passed against him, are hereby set aside and he is acquitted of the charges framed against him. The accused-appellant is directed to be set at liberty forthwith unless he is required to be detained in connection with any other case. 21. Send down the LCR.