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2017 DIGILAW 1402 (GAU)

BIPULDUTTA v. STATE OF ASSAM

2017-11-02

HITESH KUMAR SARMA

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JUDGMENT : Hitesh Kumar Sarma, J. This appeal, under section 374(2) of the Code of Criminal Procedure, 1973 is directed against the judgment and order, dated 08-07-2013, passed by the learned Sessions Judge, Jorhat, in Sessions Case No. 4(J-J) of 2009, convicting the accused-appellants, under Sections 306/114/34 of the IPC and sentencing them to undergo rigorous imprisonment for 10 (ten) years each and to pay a fine of Rs. 5,000/-, each in default, to simple imprisonment for 3 months. 2. I have heard Mr. S.N. Tamuli, learned counsel for the accused-appellants and Mr. P.S. Lahkar, learned Additional Public Prosecutor, Assam. 3. The prosecution case, in brief, is that Poppy Tanti, the daughter of the informant, Smt. Sarumai Tanti, was taken away by the accused, Bipul Dutta, 11 days prior to the lodging of the FIR, on 22-09-2007, telling the member of her family, Rupa Gowala, that he had taken Poppy Tanti and he would keep her happy with him. At about 6.30 p.m., on 21-09-2007, Poppy was taken by the accused, Bipul Dutta, with promise to perform social marriage with her. The accused-appellant Nitul Dutta brought her back to her parental home and dropped there and threatened her that if she comes to their house again, she would be burnt. Then, at about 12.30 in the intervening night, Poppy appeared in the house of her husband, i.e. the accused-appellant, Bipul Dutta. There she was killed by the accused, Bipul Dutta, his brother, accused-appellant, Nitul Dutta and their father Jiten Dutta in their house after pouring kerosene oil on her person and lighting her. This fact was told to the informant by the victim over mobile phone. She was hospitalised at Jorhat Civil Hospital where she died on 21-09-2007 at about 4.00 a.m. 4. On receipt of the FIR, with regard to the above incident, Jorhat Police Station, entered the information in General Diary, vide GD Entry 850, dated 22-09-2007 and forwarded the FIR to the Officer-in-Charge of Pulibor Police Station for registering a case as the place of occurrence falls under the jurisdiction of Pulibor Police Station. The Pulibor Police Station registered a case, being No. 172/2007, under Sections 302/34 of the IPC, investigated into it, collected evidence, got the statement of the victim recorded in the hospital and also got the post mortem examination on the dead body of the deceased performed. The Pulibor Police Station registered a case, being No. 172/2007, under Sections 302/34 of the IPC, investigated into it, collected evidence, got the statement of the victim recorded in the hospital and also got the post mortem examination on the dead body of the deceased performed. Thereafter, on completion of investigation, submitted the charge-sheet against the accused-appellants, namely, Bipul Dutta and Nitul Dutta, for commission of an offence, under Sections 302/34 of the IPC. 5. After exhausting the required legal formalities, the learned trial Court framed a formal charge against the accused-appellants, under Section 302/114/109/306/34 of the IPC. The accused-appellants pleaded not guilty to the charges levelled against them, and therefore, the trial commenced. 6. I have perused the judgment of the learned trial Court as well as the trial Court record consisting of the evidence. 7. The prosecution examined as many as 12 witnesses, including the Medical Officer and the Investigating Police Officer. The statements of the accused-appellants were also recorded under section 313 of the Cr.P.C., 1973 In their such statements, they denied the allegations levelled against them. The defence also declined to adduce evidence. 8. The informant/PW1, who is the mother of the deceased, Poppy Tanti, exhibited the FIR, vide Ext.1. She knew both the accused-appellants. Deceased Poppy w as married to accused-appellant, Bipul Dutta and after 11 days of their marriage, accused-appellant, Bipul Dutta and his elder brother, accused-appellant, Nitul Dutta informed her daughter that they would not keep her with them, and accordingly, handed her over to PW1/informant. The informant was also told by the victim/deceased that the accused-appellants poured kerosene oil on her person and burnt her. In her cross-examination, she stated that the deceased/victim was not married to the accused-appellant, Bipul Dutta; rather, she eloped with him and then left the house of the informant. She went to the house of the appellants in the night without telling her. She got the information about the burn injury, caused to her daughter from the police over telephone. She saw the dead body of her daughter in the hospital. She is categorical in stating that she was told by her deceased daughter that she was burnt by both the accused-appellants. 9. She got the information about the burn injury, caused to her daughter from the police over telephone. She saw the dead body of her daughter in the hospital. She is categorical in stating that she was told by her deceased daughter that she was burnt by both the accused-appellants. 9. PW2, Smt. Bhogita Dutta, the neighbour of the accused-appellants is heard saying in her evidence that hearing hue and cry she went out of her house and saw a crowd with a person in burning condition. 10. PW3, Sri Kumud Chandra Dutta, the Superintending Engineer of ONGCL, is heard saying in his evidence that while he was sleeping in his house, he heard hue and cry and went out of his house and found a lady was lying on the ground in front of the house of the accused-appellants, in burning condition, and then, in formed the police about the occurrence. On the basis of such information, General Diary entry was made by the Pulibor Police Station, vide GD Entry No. 455, dated 22-09-2007. 11. PW5, Sri Jiten Gowala, is found to have stated in his evidence that the deceased was married to accused-appellant Bipul Dutta about 15 days prior to the occurrence. He also stated that the deceased suffered burnt injury in the house of accused-appellant, Bipul Dutta. 12. PW8, is the SI of Police, who entered the information in the General Diary of Pulibor Police Station, vide Ext. 5. He went to the place of occurrence along with staff and noticed that one woman with burn injury was lying in front of the house of the accused-appellants. The victim/deceased was conscious at that time, and on enquiry, she disclosed her name to be Poppy Tanti. He shifted her to the Jorhat Civil Hospital and on his requisition the doctor recorded her dying declaration, vide Ext.3. Thereafter, he seized, from the place of occurrence, one Gallon of kerosene oil and one match box, on being shown by accused-appellant Nitul Dutta, vide Ext. 6, Seizure list. 13. PW9, Sri Samiran Bora, the Circle Officer, held the inquest over the dead body of the deceased Poppy Tanti and PW4 was the witness to the inquest. 14. Thereafter, he seized, from the place of occurrence, one Gallon of kerosene oil and one match box, on being shown by accused-appellant Nitul Dutta, vide Ext. 6, Seizure list. 13. PW9, Sri Samiran Bora, the Circle Officer, held the inquest over the dead body of the deceased Poppy Tanti and PW4 was the witness to the inquest. 14. PW11, Sri Dilip Goswami, stated that the deceased Poppy had affair with accused-appellant Bipul Dutta and he used to stay in her house and that he knew about the marriage between the accused-appellant Bipul Dutta and Poppy. PW12, Smt. Rupali Goswami, who is his wife, is found to have supported the evidence of P W11 stating in her evidence that the deceased and accused-appellant Bipul Dutta had affair. 15. The evidence of PW10, who is a police officer attached to Jorhat Police Station at that time have not much bearing in this case. 16. The evidence of PW6 is very important as he recorded the dying declarati on of the deceased victim on police requisition, vide Ext.3. In her dying declaration, she stated as below :- "I was married one month back. Sri Bipul Dutta had love affairs with me for the past three years. Today, on 22/09/2007 the elder brother of Bipul Dutta named Sri Nitul Dutta removed the vermilion from my forehead. Both of them tried to put me on fire by pouring kerosene oil. I got provoked and stated that it would burn myself. I was driven away from the house of the accused persons. Both the accused persons brought kerosene oil and also poured the same over my body. They also brought a matchbox. Thereafter, I put myself on fire with the matchbox. I was not loved by the inmates of my husband and that I alongwith my husband lived in a rented house. My husband does not sleep with me in our rented house at night." 17. PW7 is another doctor, who performed post mortem examination on the dead body of the deceased Poppy Tanti. He found anti mortem burn injury. 90% flame burn of various degree vesicle surrounded in erythen present in places. According to him, the death was due to syncope as a result of burn injury. It is further found from his evidence that after sustaining 90% burn injury also, vocal cord will remain intact. 18. He found anti mortem burn injury. 90% flame burn of various degree vesicle surrounded in erythen present in places. According to him, the death was due to syncope as a result of burn injury. It is further found from his evidence that after sustaining 90% burn injury also, vocal cord will remain intact. 18. There is evidence that the deceased was in a fit condition to make dying declaration. PW6, who recorded the dying declaration of the victim, on police requisition, was on duty in the hospital at night. 19. Before taking up discussion on the merit of the dying declaration of the victim/deceased, it would be appropriate to refer to the law relating to dying declaration. 20. A Constitution Bench of the Supreme Court in Laxman v. State of Maharashtra, reported in (2002) 6 SCC 710 , has summed up the principles governing dying declaration as under - "3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant...." 21. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant...." 21. In Satish Chandra v. State of Madhya Pradesh, reported in, (2014) 6 SCC 723 , Supreme Court while observing that : "Simply because statement is not recorded in the form of question and answers, is no reason to discard it once. It is otherwise found to be trustworthy and can be treated as dying declaration admissible under Section 32 of the Evidence Act. No doubt, it is emphasised by this Court that recording of such a statement in the form of question and answer is more appropriate method which should generally be resorted to. However, that would not mean that if such a statement otherwise meets all the requirements of Section 32 and is found to be worthy of credence, it is to be rejected only on the ground that it was not recorded in the form of question and answers. 22. The Hon'ble Supreme Court in Ramesh v. State of Haryana, reported in, (2017) 1 SCC 529 , held that : "A dying declaration is an independent piece of evidence like any other piece of evidence, neither extra strong nor weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard-and-fast rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement... It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a police officer, to a public servant or to a private person. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement... It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a police officer, to a public servant or to a private person. It may be made before the doctor; Indeed, he would be the best person to opine a bout the fitness of the dying man to make the statement, and to record the statement, where he found that life was fast ebbing out of the dying man and there was no time to call the police or the Magistrate. In such a situation, the doctor would be justified, rather duty bound, to record the dying declaration of the dying man. 23. In the present case, the victim committed suicide after her vermilion was rubbed out by the accused-appellants and when they also attempted to put her on fire after pouring kerosene oil on her. Then she got provoked and stated that she would burn herself. The accused-appellants brought her outside of the house and poured kerosene oil on her and with the match box provided by them, she burnt herself. 24. The dying declaration of the victim, marked as Ext. 3, made before the Medical Officer, PW6, makes clear that the accused-appellants wanted to put fire on her after pouring kerosene oil on her and on being provoked, she herself would burn. Then, the accused-appellants took her out of the house and poured kerosene on her. Thereafter, she burnt herself by putting fire on her using match stick from the match box, provided by the accused-appellants. 25. Such evidence of the victim is reliable. There is no reason not to rely upon this dying declaration. There is also no evidence at all to make it appear that the dying declaration made by the deceased was result of tutoring or product of imagination. The doctor, who recorded the dying declaration also made it clear, in his evidence, that the victim was in proper sense and was conscious and was also able to speak even after sustaining 90% of the burn injury. The another doctor, examined as PW7, who performed the post mortem examination on the dead body of the deceased, is also heard saying that even after 90% burn injury the vocal cord remains intact. The another doctor, examined as PW7, who performed the post mortem examination on the dead body of the deceased, is also heard saying that even after 90% burn injury the vocal cord remains intact. Therefore, the decision in Laxman (supra) is applicable in the instant case. 26. On the other hand, in Ramesh (supra) it is observed that the doctor is the best person to opine about the fitness of a dying person to make a statement. In the instant case, the PW6, the doctor, not only recorded the dying declaration vide Ext.3, but also opined that she was able to speak at the time of recording of her dying declaration. PW7, another doctor, also deposed that even after 90% burn injury, vocal cord will remain intact, meaning thereby that in the instant case, the victim could speak. Such evidence lends support the evidence of PW6. 27. The dying declaration, made by the victim/deceased, is substantially corroborated by the evidence of the PW1, PW8, PW11, PW12. There is no such contradiction in the evidence of the prosecution witnesses which belies the prosecution version of the story. 28. In the above backdrop, there is nothing to disbelieve rather it appears to be reliable in view of, not only of the dying declaration, but also in view of the evidence of PW1, PW6, PW7, PW8, PW11 and PW12. 29. Therefore the order of conviction, recorded by the learned trial Court, holding the accused-appellants guilty of the offences, punishable under Section 306/114/34 of the IPC, is found to have based on evidence on record requiring no interference by this Court. 30. In respect of substantive punishment, the accused-appellants were sentenced by the learned trial to rigorous imprisonment for 10 years each and to pay a fine of Rs. 5,000/- each, in default, to suffer simple imprisonment for 3 months. 31. It deserves a mention here that the learned counsel for the appellants, during the course of his argument, canvassed before this Court, leniency in respect of the punishment imposed upon the accused-appellants only. 32. On consideration of the facts and circumstances of the case, in the considered view of this Court, sentencing the accused-appellants to the maximum punishment of 10 years, as prescribed, appears to be in the higher side. 32. On consideration of the facts and circumstances of the case, in the considered view of this Court, sentencing the accused-appellants to the maximum punishment of 10 years, as prescribed, appears to be in the higher side. Therefore, this Court is of the view that the substantive punishment of the accused-appellants, if reduced to rigorous imprisonment for 6 years each, retaining the punishment in the form of fine as awarded and the default clause un-interfered, will meet the ends of justice. Accordingly, the substantive sentence of the accused-appellants is reduced to rigorous imprisonment for 6 years each and the fine imposed upon each of the accused-appellants with the default clause remained un-interferred. 33. The period of detention of the accused-appellants, during investigation, trial and after delivery of the judgment by the learned trial Court, if any, shall be set off against the substantive sentence. 34. Accordingly, the appeal is partly allowed. 35. Send down the LCR along with a copy of this judgment and order.