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2016 DIGILAW 1059 (GAU)

Md. Asraful Ali @ Asraf Ali v. State of Assam

2016-11-28

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER (Ajit Singh, C.J.) Appellant Md. Asraful Ali @ Asraf Ali has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.1000/- with default stipulation. The trial court has, however, acquitted the co-accused persons, namely, Mamata Bibi, Kadarvan Bibi and Mahammed Ali of the same charge. 2. The victim of incident was Rehena Bibi, aged about 24 years. 3. According to the prosecution case, Rehena was married to appellant more than 7 years prior to the date of incident. Mamata, Kadarvan and Mahammad Ali are in-laws of Rehena. Since Rehena did not conceive a child, she was being subjected to cruelty by the appellant and her in-laws. On 3.8.2009, at about 1.30 p.m., the appellant set fire on Rehena after pouring kerosene. This he did in his house and in doing so, Mamata, Kedarvan and Mahammad Ali assisted him. On hearing commotion, neighbours of appellant rushed to his house and enquired about the incident. They also poured water over her and extinguished the fire. Thereafter, Ambulance was called and Rehena was taken to Dhubri Civil Hospital for treatment by the appellant and other family members. And, on the next day, i.e. 4.8.2009, maternal uncle, Md. Manowar Hussain (PW-1) of Rehena, made the ejahar exhibit 1 at Agamoni Police Out-Post, which was forwarded to Golakganj Police Station for its registration as First Information Report. A dying declaration exhibit 5 of Rehena was also recorded in the hospital on 4.8.2009 by Sub-Divisional Officer (Sadar) – Palash Ranjan Gharphalia (PW-8). In her dying declaration, she named the appellant and her in-laws (acquitted co-accused) as the persons, who had set fire on her. Dr. A.C. Mandal (CW-1) certified that Rehena was fit to make dying declaration. She ultimately died on 15.8.2009, while undergoing treatment in the hospital. 4. Dr.Sashi Mohan Deka (PW-7) conducted the post mortem examination on the dead body of Rehena. He in his post mortem examination report exhibit 4 confirmed that her death was due to 40% burn injuries, which were ante mortem in nature. 5. The police, after investigation, chargesheeted the appellant and in-laws of Rehena, whom she named in her dying declaration. 6. During trial, all the co-accused persons, including the appellant, abjured their guilt and pleaded false implication. The appellant also stated that at the time of incident, he was taking bath in a nearby pond. 5. The police, after investigation, chargesheeted the appellant and in-laws of Rehena, whom she named in her dying declaration. 6. During trial, all the co-accused persons, including the appellant, abjured their guilt and pleaded false implication. The appellant also stated that at the time of incident, he was taking bath in a nearby pond. 7. The trial court, essentially, relying upon the oral dying declaration of Rehena made to Manowar Hussain and dying declaration recorded by Palash Ranjan Gharphalia, convicted and sentenced the appellant, as aforesaid. The trial court, however, disbelieved her dying declaration in respect to her in-laws Mamata, Kedarvan and Mahammad Ali and acquitted them of the charge. 8. It has been argued on behalf of the appellant that since the dying declaration of Rehena is fabricated and not truthful, the trial court committed an illegality in relying upon the same. It has also been argued that had the appellant set Rehena on fire, he would not have taken her to the hospital for treatment. The learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of the appellant as passed by the trial court. 9. The law is now well settled that a dying declaration if found to be voluntary and truthful and which is free from any doubt can be the sole basis for convicting the accused. We shall, therefore, examine whether the dying declaration of Rehena passes these tests. Md. Manowar Hussain (PW-1) is uncle of Rehena and an informant. He has testified that Rehena was being tortured by the appellant and her in-laws, as she could not conceive a child despite more than 7 long years of marriage. According to him, on receiving information over phone that Rehena had caught fire, he went to hospital and there, on his asking, she disclosed that appellant had set fire on her after pouring kerosene. She also declared that Mamata and Kedarvan had caught hold of her whereas, Mahammed Ali, who was standing nearby, did not intervene to save her. According to Md. Manowar Hussain, his brother-in-law Md. Moynal Hoque (PW-6) was also present when Rehena spoke about the incident. This witness then claims to have lodged ejahar exhibit 1 at the Police Station and in the ejahar, we find that he narrated a different story. In the ejahar, Md. According to Md. Manowar Hussain, his brother-in-law Md. Moynal Hoque (PW-6) was also present when Rehena spoke about the incident. This witness then claims to have lodged ejahar exhibit 1 at the Police Station and in the ejahar, we find that he narrated a different story. In the ejahar, Md. Manowar Hussain mentioned that appellant, over some domestic quarrel, poured kerosene on Rehana and set her ablaze in the absence of any other person at home. The trial court, therefore, held that Md. Manowar Hussain had exaggerated the incident and yet, believed his evidence against the appellant. But it is seen that Md. Manowar Hussain was not an eye witness to the incident. Therefore, had on his asking, Rehena narrated the incident to him; he would have surely mentioned the role attributed by her against Mamata, Kedarvan and Mahammed Ali in the ejahar. He would also not have mentioned in the ejahar that appellant had set fire on Rehena over some domestic dispute after pouring kerosene in the absence of any other person at home. This vital omission in the ejahar and substantial different version regarding the incident creates a serious doubt in the truthfulness of the evidence of Manowar Hussain. Although he tried to explain that his report was not correctly written by the police, Investigating Officer-Pranjit Das (PW-10) emphatically denied this allegation in his evidence. Moreover, Manowar Hussain had submitted a written ejahar and it was not recorded by the police. Also Md. Moynal Hoque does not say that he was with him when Rehena narrated the incident. On scanning the evidence of Md. Manowar Hussain, we find him to be wholly untruthful witness and cannot be relied upon. 10. Dying declaration exhibit 5 of Rehana was recorded on 4.8.2009 by Palash Ranjan Gharphalia (PW-8) in the Dhubri Civil Hospital. At that time, he was posted as Sub-Divisional Officer (Sadar). According to him, around 8.16 p.m., on being directed by the District Magistrate, he went to the Burn Unit and recorded the dying declaration. He also says that Rehena was identified by her family members as well as the attending doctor and nurse. He further says that doctor had certified about the fitness of Rehena to speak. In the dying declaration, Rehena stated that appellant had poured kerosene over her and after snatching the match box from her hand, set her on fire. He also says that Rehena was identified by her family members as well as the attending doctor and nurse. He further says that doctor had certified about the fitness of Rehena to speak. In the dying declaration, Rehena stated that appellant had poured kerosene over her and after snatching the match box from her hand, set her on fire. And he did so, on the instigation of her mother-in-law-Kedarvan, whereas appellant’s elder brother Mahammad Ali and his wife Mamata had tortured her for many days. Rehena also stated that appellant kept on saying that “he would divorce her and what she was doing in the house”. It is to be noted that in her dying declaration exhibit 5, Rehena did not allege as deposed by Manowar Hussain that Kedarvan and Mamata had caught hold of her, while appellant set fire on her and that Mahammed Ali did not do anything to save her, despite being present there. It is also to be seen that in the dying declaration, there is thumb impression of victim, but Palash Ranjan Gharphalia, who recorded the same, admits that he does not know who had obtained the thumb impression. This clearly means that Palash Ranjan Gharphalia did not obtain the thumb impression of Rehena on the dying declaration. The prosecution has not examined any witness to establish that thumb impression in the dying declaration is of Rehena and no one else. Further, Palash Ranjan Gharphalia says that he recorded the dying declaration in the presence of father Md. Gemar Ali (PW-9) of Rehana and attending doctor–Dr. AC Mondal (CW-1). Md. Gemar Ali is also shown as witness to dying declaration. But, interestingly, he has denied in his evidence that dying declaration was recorded in his presence. According to him, Palash Ranjan Gharphalia had obtained his signature in some office and he also did not see Rehena putting thumb impression on the dying declaration. Likewise, Dr. AC Mondal (CW-1) has also denied his presence at the time of recording of dying declaration. Palash Ranjan Gharphalia then admitted that attending doctor had certified regarding fitness of Rehena in a separate paper, which is not attached to dying declaration exhibit 5. But, Dr. AC Mondal says that he did not issue such certificate in a separate paper. AC Mondal (CW-1) has also denied his presence at the time of recording of dying declaration. Palash Ranjan Gharphalia then admitted that attending doctor had certified regarding fitness of Rehena in a separate paper, which is not attached to dying declaration exhibit 5. But, Dr. AC Mondal says that he did not issue such certificate in a separate paper. Also, according to the evidence of Palash Ranjan Gharphalia, he had recorded the dying declaration under the direction of District Magistrate whereas in the dying declaration, it is mentioned that he recorded the same under the orders of Additional Sessions Judge. These discrepancies apparently create a doubt in the genuineness and correctness of the dying declaration exhibit 5 recorded by Palash Ranjan Gharphalia. 11. There is yet another reason to disbelieve the dying declaration. As seen above, Md. Manowar Hussain (PW-1) and Md. Gemar Ali (PW-9) are uncle and father of Rehena. They both have deposed that appellant, his friends and acquitted co-accused persons had brought Rehena to the hospital soon after she sustained burn injury. Therefore, if appellant had really set fire on Rehena after pouring kerosene, he would not have taken her to the hospital. Instead, he would have fled from the place of occurrence. Md. Abubakkar Siddique (PW-2), Md. Anowar Hussain (PW-3) and Musstt. Pinky Mondal (PW-5) are neighbours of appellant. Though they are not eye witnesses to the incident, they have testified that Rehena had caught fire while she was cooking meal and at that time, the appellant was taking bath in a nearby pond. Md. Saidur Rahman (PW-4) is also a co-villager and he says that on reaching the house of appellant, he asked Rehena how she sustained burn injuries to which she replied she caught fire while cooking meal. 12. For these reasons, we are of the considered view that the prosecution has failed to prove its case against the appellant beyond reasonable doubts. We, therefore, set aside the impugned conviction and sentence and acquit him of the charge. The appellant is reportedly in Jail. He be released forthwith, if not wanted in any other case. The appeal is allowed.