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2011 DIGILAW 821 (GAU)

Dipak Das @ Baidya v. State of Assam

2011-09-29

MADAN B.LOKUR, P.K.MUSAHARY

body2011
ORDER P.K. Musahary, J. 1. Heard Mr. R.M. Choudhury, learned counsel appearing for the appellant as amicus curiae and Mr. D. Das, learned Additional Public Prosecutor, Assam, appearing for the respondent. 2. This appeal is directed against the judgment dated 3.3.2005 rendered by the learned Sessions Judge, Karimganj in Sessions Case No. 51/2002 convicting the appellant under section 302, IPC and sentencing him to imprisonment for life and a fine of Rs. 10,000 in default to further simple imprisonment for 2 years. 3. The story projected by the prosecution is that the appellant, Dipak Das @ Baidya Das married Anita Das six years before the date of occurrence. Since their marriage, the accused used to demand dowry and torture her physically. She had been tolerating the torture. The appellant on 3.5.2002 asked Anita Das to bring Rs. 5,000 from her parents and when she refused to do so, the appellant poured kerosene on her body and set fire. Hearing her cry, the informant with his wife and some neighbours came to appellant's house, broke open the door and rescued Anita. She was removed to district civil hospital. FIR was lodged by Anita's father with the Officer In-charge, Karimganj Police Station on 18.5.2002, which was registered as Karimganj P.S. Case No. 166/2002 under section 498A, IPC. During investigation, Anita succumbed to her injuries in hospital. On completion of investigation, charge sheet was laid on 8.7.2002 and the case was committed to the Court of Sessions, Karimganj. The learned trial court framed charge under section 498A/304B, IPC against the appellant which was read over and explained to the appellant, who pleaded not guilty and claimed to be tried. The prosecution examined as many as 13 witnesses including the Investigating Officer and Medical Officers. After the closure of prosecution evidence, the appellant was examined and his statements were recorded under section 313, Cr.PC. In the impugned judgment, the learned trial court observed/noted that: At this stage, on perusal of the evidence found that the accused after pouring kerosene on the victim girl not only restrained her from further movement but also gagged her so that she may not be able to cry in hour of distress. So, I found that it is case of murder in cold blood. Hence, charge is altered under section 216, Cr.PC of a fresh charge under section302, IPC is framed. So, I found that it is case of murder in cold blood. Hence, charge is altered under section 216, Cr.PC of a fresh charge under section302, IPC is framed. The same is read over and explained to the accused to which he pleaded not guilty of claimed to be tried. As per the provision, witnesses were recalled and they have been allowed to be cross-examined by the defence afresh. This explains how the charges originally framed have been converted to under section 302, IPC. The appellant adduced no evidence for his defence. On conclusion of trial, the learned trial court convicted and sentenced the appellant under section 302, IPC. 4. As per evidence on record, the occurrence took place in the night. The informant, Shri Pronoy Dev, father of the deceased lived in a rented house of one Sri Bijit Nath. There were other people living in the rented house of Bijit Nath. PW3, Sukumani Dev is one of the neighbours. Her house is contiguous to the house of convict appellant. As per her evidence, on hearing cry of Anita for help, she woke up from sleep and came out of her house. She saw Anita's parents and brother asking Dipak (appellant) to open the door. When the accused appellant did not open the door, they broke open it and Anita was brought out. The informant, father of the deceased was examined as PW1. As per his evidence the house of the appellant is intervened by a house of another person and the incident took place in the night when he was about to sleep. He could hear the cry of a female from the house of the appellant. He along with his wife, brother and another woman rushed to the place of occurrence. They could notice none out side the house. The dwelling house of the appellant was found closed from inside and when he peeped through the hole of the door he could see the appellant gagging the mouth of his daughter Anita. Then he kicked open the door and entered the house. He found his daughter completely burnt and unable to speak. At that time he found no other person near the victim as the accused-appellant, in the meantime, fled away from the scene. 5. PW2, China Bala Dev is the mother of the deceased. Then he kicked open the door and entered the house. He found his daughter completely burnt and unable to speak. At that time he found no other person near the victim as the accused-appellant, in the meantime, fled away from the scene. 5. PW2, China Bala Dev is the mother of the deceased. According to her at 12.00 midnight she suddenly heard shouting of a woman. She along with her husband came out and rushed to the house of appellant and as the door of the appellant's house was found closed from inside, she also peeped through a gap and saw Dipak gagging Anita who was being burnt by fire. Her husband or PW1 broke open the door and entered into the house. Anita fell down when appellant released her. Accused Dipak then went out. The possibility of arriving at the place of occurrence, i.e., the house of the appellant at the time when the appellant was in action cannot be disbelieved, inasmuch as the house of the appellant as per the evidence on record, is intervened by a house only. In other words, PW1 and PW2 are neighbours of the appellant son-in-law. It is also quite natural that when the door was closed from inside, the parents of the deceased was anxious to know what was happening inside the house. So they first peeped into the house and they could see that their daughter was being gagged by their son-in-law and then they had to break open the door to rescue their daughter who was found being burnt. The presence of PW1 and PW2 as parents of the deceased at the place of occurrence has been supported by PW3, a neighbour, who also came to the place of occurrence and found PW1 and PW2 along with other relatives. The evidence of PWs1, 2 and 3 are found corroborated. The prosecution has been able to prove that both PW1, PW2 came to the house of the appellant and rescued their daughter in presence of PW3. This evidence could not be demolished in cross-examination by the defence. 6. As per evidence on record the victim was shifted to Karimganj District Civil Hospital with burn injuries. PW4, Dr. T.K. Banik was working as Medical and Health Officer-I at the said hospital on 3.5.2002. He deposed that the deceased was given admission in female surgical ward. This evidence could not be demolished in cross-examination by the defence. 6. As per evidence on record the victim was shifted to Karimganj District Civil Hospital with burn injuries. PW4, Dr. T.K. Banik was working as Medical and Health Officer-I at the said hospital on 3.5.2002. He deposed that the deceased was given admission in female surgical ward. He found 'superficial burn which was fresh with peeling of burnt skins frontier areas'. She was found in conscious state with sign of agony and pain. One Dr. R. Baidya M.S. followed up the course of treatment. PW4 prepared the medical report (Ext.1) and Ext.1(1) is his signature. 7. While the deceased was under treatment in the hospital, she made dying declaration in presence of Dr. Swapan Kumar Sen (PW6). He testified that he recorded the dying declaration of Anita in presence of N.C. Sinha, S.I. of Karimganj P.S., Smt. Supta Das, ANM, Sri Mintu Deb Ward Boy of Karimganj Civil Hospital, Surgical Ward, Smt. Sukla Chanda, Secretary and Smt. Purnima Choudhury, President of Karimganj District Mahila Unnayan Samittee. This fact has been testified by Dr. Swapan Kumar Sen, who entered into the witness box as PW6. According to him, patient was in full conscious state at the time of recording the dying declaration, Ext.3, on which he obtained signature of Anita. The witnesses to the recording of dying declaration, except S.I. N.C Sinha, were examined and cross-examined. Smt. Supta Das, ANM, Sri Mintu Dev, Ward Boy, Smt. Sukla Chanda were examined as PW8 (CW1), PW9. (CW2), PW10 (CW3) and PW11 (CW4), respectively. PW12, Sri Sudarshan Das, I.O. of the case corroborated the evidence of the aforesaid witnesses on the factum of recording of dying declaration by deposing that the victim's statement was recorded in the hospital by Dr. Swapan Kumar Sen on 18.5.2002. 8. The fact of recording of dying declaration by the deceased before her death has been proved by the prosecution. The evidence adduced by the prosecution could not be demolished by the defence in cross-examination in any manner. Ext.3 is the dying declaration recorded by PW6, Dr. Swapan Kumar Sen. Ext. 3(1) is the signature of the deceased obtained on the said dying declaration. Ext. 3(2), Ext. 3(3), Ext.3(4), Ext.3(5), Ext 3(6), Ext. 3(7) are the signatures of the witnesses in whose presence the dying declaration was recorded. 9. PW5, Dr. Ext.3 is the dying declaration recorded by PW6, Dr. Swapan Kumar Sen. Ext. 3(1) is the signature of the deceased obtained on the said dying declaration. Ext. 3(2), Ext. 3(3), Ext.3(4), Ext.3(5), Ext 3(6), Ext. 3(7) are the signatures of the witnesses in whose presence the dying declaration was recorded. 9. PW5, Dr. Lipi Deb deposed that he held the post mortem examination on the dead body of Anita Das on 19.6.2002. According to her, rigor mortis was absent and about 80% of the body was having fixed burn and scab with secondary infection in different parts of the burnt area. The injuries were ante mortem. In his opinion death was due to the septicomic shock resulting from ante mortem burn sustained. The post mortem report was marked as Ext.2 with signature of PW5 marked as Ext. 2(1). The prosecution was, therefore, successful in proving that the deceased received 80% burnt injury and she died due to such injury. 10. The appellant declined to adduce evidence for his defence. He was examined by the learned trial court under section 313, Cr.PC. Question No. 7 is very much important and relevant for the purpose of deciding this case. The same is reproduced hereunder - Q.No. 7. PW 2 has further adduced that he entered the room by kicking open the door; That he took his daughter whose entire body had got burnt out of the room; that Anita was not in a position to speak and that you then ran away. What do you say ? Ans: "it is not true that I ran away". By putting the aforesaid question the appellant was given a chance to explain the incriminating circumstances, namely : (1) When his father-in-law and mother-in-law arrived at his house and asked him to open the door he did not open it for which his parents in-laws had to kicked open the door, and entered the house. (2) His father-in-law had to take Anita out of the room. (3) The victim's entire body was burnt. (4) The victim was not in a position to speak. (5) The appellant ran away. 11. He has not explained the above incriminating circumstances except the last one. (2) His father-in-law had to take Anita out of the room. (3) The victim's entire body was burnt. (4) The victim was not in a position to speak. (5) The appellant ran away. 11. He has not explained the above incriminating circumstances except the last one. He has not answered why he did not open the door and it had to be kicked open by his father-in-law or why his wife received burn injuries on her entire body, or why his wife had to be taken out of the room or why she was found not in a position to speak. He has simply answered to the effect that he did not run away from the room offering no explanation to the above incriminating circumstances, which would go against him, particularly, when the evidence on the aforesaid aspects could not be impeached in cross-examination by the defence counsel. 12. The learned amicus curiae appearing for the appellant sought to persuade us that the impugned conviction and sentence is not sustainable, inasmuch as, the learned trial court gave over emphasis and reliance on the so-called dying declaration recorded by PW6. He argued that there is no evidence on record that PW6, before recording the dying declaration examined the deceased to find out and satisfy himself that she was fit for giving dying declaration or making any statement. No certificate of fitness has been given or issued by PW6 or any Medical Officer regarding the physical and mental state of the deceased. If such fitness certificate is wanting, the dying declaration/statement of the deceased cannot be accepted in evidence and no conviction can be recorded by the learned trial court on the basis of such dying declaration/statement. 13. The consciousness and fitness of mind are the legally accepted two distinct conditions required to be fulfilled before recording dying declaration. The deceased must be found in a conscious state and in a fit mental condition to make a voluntary disclosure of the incident. This principles were pronounced in Paparambaka Rosamma and Others v. State of A.P., (1999) 7 SCC 695 . The deceased must be found in a conscious state and in a fit mental condition to make a voluntary disclosure of the incident. This principles were pronounced in Paparambaka Rosamma and Others v. State of A.P., (1999) 7 SCC 695 . That was a case where a Magistrate who recorded the dying declaration made a note to the effect that the deceased was fit to make the statement but a doctor at the end of dying declaration merely stated that the patient was conscious while recording the statement without any note that she was in a fit state of mind. The lack of such certificate or note from the doctor was treated as a serious infirmity and it was held that it was unsafe to base the conviction solely on such dying declaration. The law regarding admissibility of dying declaration is well settled by now per Constitution Bench judgment in Laxman v. State of Maharashtra, (2002) 6 SCC 710 , wherein it is held that a dying declaration which does not contain a certificate of the doctor cannot be rejected on that ground alone so long as the person recording the dying declaration was aware of the fact as of the condition of declarant to make such dying declaration. Following the above decision the Apex Court in Rambai v. State of Chhattisgarh, (2002) 8 SCC 83 held that if the person 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. It was also held that mental fitness can be ascertained from the opinion of doctor or from testimony of witnesses and surrounding circumstances. In the present case admittedly, the dying declaration was recorded by the doctor who treated the victim in the District Civil Hospital and he was the best person to know about the physical and mental state of the maker of the dying declaration. In the present case admittedly, the dying declaration was recorded by the doctor who treated the victim in the District Civil Hospital and he was the best person to know about the physical and mental state of the maker of the dying declaration. There may be lapse or omission on the part of the doctor in certifying the mental and physical state of the victim at the time of making the dying declaration but on that ground alone it cannot be said that the dying declaration suffers from serious infirmity rendering it liable to be rejected. The rejection of such dying declaration could be made if it was recorded by a person other than a doctor. There is no scope for ignoring the dying declaration Ext.3, which was recorded by a Medical Officer, who was involved in the treatment of the victim in hospital, in presence of medical staff and other persons who have supported the fact of recording of dying declaration in their evidence. 14. There is, of course, a note of caution from the Apex Court in the judgment rendered in Varikuppal Srinivas v. State of Andhra Pradesh, (2009) 3 SCC 415 that the court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The courts have been asked to insist that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. It is also insisted upon that the court must satisfy itself that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. We have thoroughly browsed the evidence of PW6, Medical Officer who recorded the dying declaration and also the evidence of PW8 (CW1), PW9 (CW2), PW 10 (CW3) and PW11 (CW4), persons who were present at the time of recording the dying declaration. 15. The defence counsel put no suggestion to the above witnesses that they tutored or prompted the victim/deceased to make such dying declaration. The said witnesses were put no suggestion that the victim/deceased was not found by them in a fit physical and mental state to make such dying declaration. 15. The defence counsel put no suggestion to the above witnesses that they tutored or prompted the victim/deceased to make such dying declaration. The said witnesses were put no suggestion that the victim/deceased was not found by them in a fit physical and mental state to make such dying declaration. There was no suggestion put on them that the deceased made no dying statement in presence of them and that they have adduced false evidence at the instance of the prosecution. Regarding physical state of the deceased, PW7 stated that some 8/9 days after her admission he offered meal on a couple of occasions and she could swallow 2/3 spoons rice paste and stopped eating 3/4 days afterwards. PWS (CW1) ANM denied the suggestion that the dying declaration had not been recorded in her presence and that she did not put her signature on it. PW9 (CW2), Ward Boy of the hospital, in cross-examination, stated that Anita spoke a little and denied the suggestion that they prepared a false paper in collusion with each other. PW10 (CW3) in cross-examination stated that Anita spoke albeit painfully at the time of making dying declaration. She also stated that Anita died a couple of days later. A suggestion was put to her that Anita did not make any statement and that it has been concocted under their pressure, which she denied. On being suggested, PW11 (CW4) denied that Anita did not make any statement in hospital. On appreciation of the evidence of aforesaid witnesses, we are satisfied that Anita was found by the doctor PW6, who recorded the dying declaration in presence of other witnesses in a physical and mental state fit for making the statement. We are taking this view because as per evidence on record Anita was admitted in hospital on 3.5.2002, made her dying declaration on 18.5.2002 at 4.55 P.M. and died thereafter on 18.6.2002, i.e., after a month. We are also satisfied that Anita made the dying declaration voluntarily without being tutored, prompted and pressurized by any body and the same is found to be trustworthy inspiring our total confidence. In the aforesaid premises, we find the conviction as recorded by the learned trial court is sustainable and the same warrants no interference in appeal. 16. We are also satisfied that Anita made the dying declaration voluntarily without being tutored, prompted and pressurized by any body and the same is found to be trustworthy inspiring our total confidence. In the aforesaid premises, we find the conviction as recorded by the learned trial court is sustainable and the same warrants no interference in appeal. 16. The learned amicus curiae argued persuasively that there was a delay of 15 days in lodging the FIR and the explanation given in the FIR justifying the delay is not acceptable. During this period of 15 days, as argued by him, the informant improved the case to implicate the appellant and as such the prosecution story must be disbelieved and he be acquitted. We have given our anxious consideration on this submission. Delay in lodging FIR in certain cases, no doubt, may destroy the prosecution case if the explanation is found unacceptable. In the instant case in the FIR itself the informant has stated that the lodging of FIR has been delayed as he had to remain busy in the hospital. There is no denial of the fact that the informant, being the father of the victim had to remove the victim to hospital in a serious condition with burn injuries and he had to be busy with her treatment in hospital. The informant is an illiterate poor person and he was in a helpless situation at the relevant point of time. It was made possible for him to file the FIR only at 6 P.M. on 18.5.2002 after Anita made the dying declaration in hospital on 18.5.2002, at 4.55 P.M. Thus, it is found that the FIR was lodged immediately after Anita made her dying declaration. In such circumstances, we are of the view that the informant had no opportunity to improve the case or make false case against the appellant. Moreover, once it is proved that the victim made dying declaration and the same is accepted in the evidence, the delay in lodging the FIR could not in any way affect the prosecution case. 17. We find no infirmity or illegality in the impugned judgment convicting and sentencing the appellant under section 302, IPC and accordingly we uphold the same without any hesitation. The appeal stands dismissed. 18. 17. We find no infirmity or illegality in the impugned judgment convicting and sentencing the appellant under section 302, IPC and accordingly we uphold the same without any hesitation. The appeal stands dismissed. 18. While appreciating the legal assistance rendered by the learned amicus curiae, we would direct the State Legal Services Authority to pay him Rs. 5,000 as legal fee. Return the LCR forthwith.