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2016 DIGILAW 1145 (GAU)

Hamidur Islam v. State of Assam

2016-12-19

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : Ajit Singh, J. Appellants, namely, Hamidur Rahman, Hasina Bibi and Jabeda Bibi have been convicted under Sections 302/34 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.2,000/- each, with default stipulation. 2. According to the prosecution case, Kohinur was married to Hamidur two years prior to the date of incident. Jabeda and Hasina are her grand-mother and mother-in-laws. Kohinur enjoyed her conjugal relation with Hamidur for two years, but thereafter, she was not treated fairly for demand of money. Hasina also quarrelled with Kohinur. On 9.8.2010, at about 7.30 p.m., while Kohinur was cooking rice in the house, both Jabeda and Hasina set fire on her. They then also poured water on her from the tube-well. At that time, Hamidur was present there and said – “she be left to die”. Thereafter, both Jabeda and Hasina brought Kohinur to Dhubri Civil Hospital for treatment. Kobbat Ali (PW-1) and Taziraon Bibi (PW-3) are parents of Kohinur. On receiving the information about the incident, they rushed to the hospital on the morning of 10.8.2010 and attended Kohinur. And on their asking, Kohinur disclosed that she was set on fire by the appellants. Likewise, around same time, Aunt - Sokiton Bibi (PW-2) also met Kohinur in the hospital and even to her, she made the same disclosure. Kobbat Ali then lodged ejahar exhibit 1 at B.N.College Town Police Out-Post, Dhubri alleging that Kohinur was burned alive by her four in-laws mentioned therein in the presence of Hamidur after pouring kerosene. Later, at about 11.40 a.m., on 10.8.2010, Executive Magistrate - Mrigesh Narayan Barua (PW-12) recorded dying declaration exhibit 5 of Kohinur in the Dhubri Civil Hospital. This he did on being directed by the District Magistrate, Dhubri. The dying declaration was recorded in the presence of Nurse In-charge - Bithika Das (PW-9). Sokitan and Taziraon have also signed the dying declaration as witnesses. 3. Despite medical treatment, Kohinur died due to burn injuries on 16.8.2010 in the Hospital. Dr.Tapas Mazumdar (PW-8) in his post mortem examination report exhibit 4 confirmed that she died due to burn injuries. According to him, burned surface on her body was about 65 percent. Sub-Inspector – Prodip Kumar Sarkar (PW-10) investigated the incident. 3. Despite medical treatment, Kohinur died due to burn injuries on 16.8.2010 in the Hospital. Dr.Tapas Mazumdar (PW-8) in his post mortem examination report exhibit 4 confirmed that she died due to burn injuries. According to him, burned surface on her body was about 65 percent. Sub-Inspector – Prodip Kumar Sarkar (PW-10) investigated the incident. He essentially on the basis of dying declaration exhibit 5 of Kohinur recorded by Mrigesh Narayan Barua charge sheeted the appellants for an offence under Section 302 of the Indian Penal Code. Since Kohinur did not allege anything against her remaining in-laws who were named in the ejahar, they were not charge sheeted by the police. The trial court found the dying declaration of Kohinur reliable and convicted the appellants as mentioned above. 4. It is argued on behalf of the appellants that the trial court committed an illegality in relying upon the dying declaration of Kohinur as the same suffers from serious infirmities. The learned counsel has also argued that if the dying declaration is disbelieved, then there was no evidence against the appellants to warrant their conviction under Section 302 of the Indian Penal Code. The learned Additional Public Prosecutor, on the other hand, has defended the conviction and sentence of the appellants as passed by the trial court. 5. The recorded dying declaration of Kohinur reads as under:- “I am Musstt. Kohinoor Bibi. My husband’s name is Md. Hamidur Rahman. I am 18 years old. My mother-in-law quarrels with me. While I was cooking rice, my grandmother-in-law and my mother-in-law set fire on my wearing apparel. Thereafter, they poured water on me from the tube well. My husband said that I should be left to die. Afterwards my grandmother-in-law and my mother-in-law brought me to hospital.” 6. As seen above, the dying declaration was recorded by the Executive Magistrate - Mrigesh Narayan Barua, who is an independent witness. According to him, he recorded the dying declaration in the Dhubri Civil Hospital in compliance of the order of District Magistrate. There is nothing on record to even suggest why he would either falsely record or fabricate the dying declaration against the appellants. Bithika Das, who was Nurse In-charge in the Hospital has also confirmed in her evidence that dying declaration was recorded by the Executive Magistrate in her presence. There is nothing on record to even suggest why he would either falsely record or fabricate the dying declaration against the appellants. Bithika Das, who was Nurse In-charge in the Hospital has also confirmed in her evidence that dying declaration was recorded by the Executive Magistrate in her presence. Merely because no certificate was obtained from the doctor attending Kohinur regarding her condition to speak, truthfulness of dying declaration, in the fact situation of case, cannot be doubted. It is to be noted that Kohinur did not die immediately after recording of her dying declaration. Instead, she died after six days from the date of incident. From the perusal of dying declaration also, we are of the view that the statement made therein by Kohinur is natural and truthful. Even no suggestion was made in the cross examination of Sokitan and Taziraon that they tutored Kohinur to speak against the appellants. If Kohinur really wanted to falsely implicate the appellants, she would not have stated that Hasina and Jabeda had poured water on her and also brought her to the Hospital. We accordingly hold the dying declaration of Kohinur recorded by the Executive Magistrate - Mrigesh Narayan Barua as reliable and truthful. We are however unable to accept that Kohinur made any oral dying declaration to her parents - Md. Kobbat Ali (PW-1) and Taziraon Bibi (PW-3) and also to Sokitan Bibi (PW-2) in the Hospital. This we say so, because there is no mention of such oral dying declaration in the ejahar made by Md. Kobbat Ali (PW-1). If Kohinur had actually made oral dying declaration in the Hospital, Md. Kobbat Ali would have surely mentioned about it in the ejahar. Also he would have not named two more in-laws of Kohinur who were not even charge-sheeted. 7. Be that as it may, the question now calls for consideration is what offence is made out against the appellants. In Kaluram v. State of Rajasthan, AIR 2000 SC 3630 , the accused in a highly inebriated stage approached his wife and demanded her ornaments for raising money to buy liquor. On refusal by her to oblige, the accused got infuriated and doused her with kerosene, because he wanted her to die. For this reason he even supplied a box of matchstick to her. On refusal by her to oblige, the accused got infuriated and doused her with kerosene, because he wanted her to die. For this reason he even supplied a box of matchstick to her. When she failed to ignite the matchstick, accused collected the matchbox, lit one matchstick, and set her ablaze. However, when the flames were flared up the accused poured water to save her from death. The Supreme Court held that the accused only had the intention to inflict burns to his wife and to frighten her but the situation slipped out of his control and it went to the fatal extent. Conviction was, therefore, altered from Section 302 of the Indian Penal Code to 304 Part II of the Indian Penal Code. 8. In the present case also it is not stated by Kohinur in her dying declaration that appellants had desired to kill her. According to dying declaration, mother-in-law Hasina had quarrelled with Kohinur. It, therefore, appears that after quarrel, both Jabeda and Hasina set fire on the clothes of Kohinur, which she was wearing but when flames were up, they immediately put off the fire by pouring water on her from the tube-well. Thereafter, both Jabeda and Hasina also brought her to Hospital for treatment. As regard Hamidur, except for alleging that he said “Kohinur be left to die”, no overt act of setting fire on her has been attributed. If the appellants had any intention to kill Kohinur, they would not have put off the fire and taken her to hospital for treatment. We are, therefore, inclined to think that all that the appellants thought of was to inflict burns to Kohinur and to frighten her, but unfortunately the situation slipped out of their control and it went to the fatal extent. Having regard to the facts of the case and following the above decision of the Supreme Court, we hold that the act committed by the appellants would fall under Section 304 Part II and not under Section 302 of the Indian Penal Code. 9. Consequently, we set aside the conviction of the appellants under Section 302 of the Indian Penal Code and sentence of life imprisonment imposed to them and instead convict them under Section 304 Part II of the Indian Penal Code and impose of sentence of five years rigorous imprisonment. The sentence of fine is however affirmed. 9. Consequently, we set aside the conviction of the appellants under Section 302 of the Indian Penal Code and sentence of life imprisonment imposed to them and instead convict them under Section 304 Part II of the Indian Penal Code and impose of sentence of five years rigorous imprisonment. The sentence of fine is however affirmed. With the above modification, the appeal is partly allowed.