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2018 DIGILAW 1641 (GAU)

Prafu a Karmakar v. State of Assam

2018-11-26

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT : H.K. Sarma, J. This Criminal Appeal has been preferred from jail by appellant, Sri Prafulla Karmakar, against the judgment, dated 23.11.2016, passed by learned Sessions Judge, Sonitpur, Tezpur, in Sessions Case No. 208/2015 convicting the appellant for offence under Section 302 of Indian Penal Code and sentencing him to undergo rigorous imprisonment for life with payment of fine of Rs. 1,000/-, in default, to suffer further rigorous imprisonment for 1 (one) month. 2. The fact leading to the prosecution case is that, an FIR was lodged on 17.03.2015 by the informant/PW1 to the effect that in the morning of 16.03.2015, he got the information that the accused confined his wife in his house at Monijharani village and set her on fire by sprinkling kerosene. He immediately rushed to the place of occurrence and saw the deceased in an unconscious state. Thereafter, the police arrived at the place of occurrence and the victim was taken to the Tezpur Medical College & Hospital in 108 ambulance. 3. On receipt of the FIR, on the above facts, through Bebejia Police Out Post, the Tezpur Police Station registered a case, being No. 279/2015, under Sections 342/326/307 of the IPC, investigated into it, collected evidence and, on completion of investigation, finally, laid charge-sheet against the accused-appellant under Section 304-B of the IPC. 4. The learned trial court, after exhausting all the required legal formalities, framed a formal charge against the accused-appellant under the aforesaid sections of law, and read over the same to him to which he pleaded innocence. Therefore, the trial commenced. 5. In this case, the prosecution examined as many as 10 (ten) witnesses, who were examined in cross by the defence. The defence plea is of total denial. After closure of the prosecution evidence, the statement of the accused-appellant was recorded under Section 313 of the Cr.PC. In his such statement, he is heard denying the allegations made against him. 6. We have heard Mrs. R.D. Mozumdar, learned Amicus Curiae, appearing for the accused-appellant as well as Mr. M. Phukan, learned Additional Public Prosecutor, appearing for the State of Assam. 7. We have perused the record of the learned trial court, including the evidence and the impugned judgment. 8. 6. We have heard Mrs. R.D. Mozumdar, learned Amicus Curiae, appearing for the accused-appellant as well as Mr. M. Phukan, learned Additional Public Prosecutor, appearing for the State of Assam. 7. We have perused the record of the learned trial court, including the evidence and the impugned judgment. 8. The evidence of PW1 shows that on 16.03.2015, at about 8:00 am, he was called to Monijharani No. 2 village by one Mohan Karmakar, over telephone, to the house of the accused-appellant. He went there and saw the deceased lying on some banana leaves in the house of the accused-appellant. On enquiry made by him, the deceased told him that her husband had burnt her after pouring kerosene on her person. She also said to him that she was burnt as she did not give money demanded by the accused-appellant/her husband. Thereafter, this witness informed the police about the occurrence, over telephone. The police came to the place of occurrence and the injured was taken to the Tezpur Medical College & Hospital in an 108 ambulance. The police also seized one plastic bottle containing kerosene oil, one match box and one country lamp, vide Ext-1. The objects seized, vide Ext-1 were identified, in the court, by the PW1 as material Ext-1, 2 and 3 which are the plastic bottle containing a small quantity of kerosene oil, one country lamp and one match box respectively. 9. The evidence of PW2 is not of much relevance with the facts of the case since the PW2 is the landlord of the house where the accused-appellant was staying. He was only informed by some of the villagers about the incident. He came to the place of occurrence and found that the deceased was lying on some banana leaves in the house of the accused-appellant and he also heard that the accused-appellant had burnt the deceased. 10. The evidence of PW4 is that, on seeing fire near her house, she immediately rushed to her house and saw the deceased lying in the courtyard of her house in a burnt condition. She then raised alarm and on hearing the alarm raised by her, one witness, namely, Puneswar Nayak, appeared at the place of occurrence. 10. The evidence of PW4 is that, on seeing fire near her house, she immediately rushed to her house and saw the deceased lying in the courtyard of her house in a burnt condition. She then raised alarm and on hearing the alarm raised by her, one witness, namely, Puneswar Nayak, appeared at the place of occurrence. Then, she herself and this Purneswar, examined as PW9, took the deceased to the kitchen of the PW4 and laid her on banana leaves and applied coconut oil and egg of hen on her injuries. According to her, the entire body of the deceased was burnt. She told her that her husband/accused-appellant had set her on fire suspecting her of maintaining illicit relationship with one Deben Munda. 11. The evidence of PW9, while corroborating the evidence of PW4 intoto, has also subscribed to the evidence of PW4 so far the dying declaration made by the deceased is concerned. His evidence is also categorical that the deceased told them that it was the accused-appellant who had set fire on her. Therefore, the evidence of PW1, PW4 and PW9 are found to be in conformity with each other so far the oral dying declaration of the deceased implicating the accused-appellant with setting her in fire resulting, ultimately, in her death due to the burn injuries sustained by her. 12. The PW5 is the Doctor. He performed the post-mortem examination of the dead body of the deceased and recorded his findings as follows:- “External Appearance Approximate 35 years female dead body was examined. Rigor mortis present. Approximately 90/95% burn injury seen over the body involving face upper and lower limbs, thorax both anteriorly and posteriorly and abdomen (anteriorly and posteriorly). Sparing perineal region. Peeling of the skin seen over upper limbs, abdomen and thorax. Charred, blisters seen over the buttock. Burn injury seen anteriorly and posteriorly. Peritoneum congested. Mouth, pharynx and esophagus-congested oral and pharyngeal wall with blackish froath. Other organs are healthy.” He also opined that the death was due to 90/90% antermortem flam burnt injuries and due to shock. 13. The death of the deceased is due to the burnt injuries sustained by her is not in dispute at the bar. The only question that needs to be decided here is as to whether it was the accused-appellant who had burnt the deceased to death. 14. 13. The death of the deceased is due to the burnt injuries sustained by her is not in dispute at the bar. The only question that needs to be decided here is as to whether it was the accused-appellant who had burnt the deceased to death. 14. We have already found that oral dying declaration of the deceased implicating the accused-appellant with setting fire on her person while discussing the evidence of PW1, PW4 and PW9. That apart, there is a dying declaration made by the deceased before the PW3, the Doctor, who was the Registrar of Tezpur Medical College & Hospital at the relevant point of time. As per his evidence, on 16.03.2015, the police brought the deceased to the hospital with burn injuries. He recorded the statement of the deceased, vide Ext-3, at about 11:00 am in presence of staff nurse. 15. The evidence of PW3/Doctor receives corroboration from the evidence of PW6 and PW7. The PW6 is a staff nurse of Tezpur Medical College & Hospital and the PW3 recorded the dying declaration of the deceased in her presence. She is heard saying in her evidence that the deceased stated before the PW3 that her husband Prafulla Karmakar burnt her suspecting her of having illicit affair with another person, i.e. one Munda, by pouring kerosene on her person and lighting her with a match stick. In her cross-examination, she (PW4) is found admitting that the condition of the deceased was very bad and she (deceased) was having burnt injuries all over her body including her face and she could speak with difficulties. PW6 is a witness to the recording of the dying declaration by the PW3. 16. The evidence of PW7 also lends support to the evidence of PW3 as well as PW6 in respect of the dying declaration and its contents. PW7 is also heard saying, in his evidence, that the deceased was speaking with difficulties as her condition was very bad at the relevant time of recording her statement. He is a witness to the recording of the dying declaration by the PW3. 17. PW7 is also heard saying, in his evidence, that the deceased was speaking with difficulties as her condition was very bad at the relevant time of recording her statement. He is a witness to the recording of the dying declaration by the PW3. 17. It is admitted, as appears from the cross-examination of the Doctor, examined as PW3, and has been pointed out by the learned Amicus Curiae, that since the deceased suffered 90%-95% burnt injuries, a certificate of fitness to the effect that she was in a fit condition to make the statement was necessary which is absent in the instant case thus, raising doubt about the ability of the deceased to make such a statement at the time when it is claimed to have been recorded. This is true that no such certificate has been annexed with the dying declaration of the deceased, i.e., Ext-3. The English translation of the dying declaration, Ext-3, reads as follows:- “DYING DECLARATION Dying declaration of victim Smt. Akashi Karmakar, W/o Sri Prafulla Karmakar, Village- Malijan Gaon Sonbil, P.S.- Tezpur, District- Sonitpur (Assam). My name is Smti. Akashi Karmakar. My husband Prafulla Karmakar doused me in kerosene and set me on fire by lighting a match. He set me on fire suspecting that I have an illicit relation with one of my related brother named Deben Munda.” 18. Now, whether, in view of the oral dying declaration as well as the recorded dying declaration of the deceased, and in view of the fact of absence of a fitness certificate issued by the Doctor recording the dying declaration, vide Ext-3, would invalidate the dying declaration. The law relating to acceptability and reliability of a statement made by a person, who is about to die, which is commonly known as dying declaration, has, by now, crystallised. A Constitution Bench of the Supreme Court in Laxman Vs. 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. 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 o f 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.” 19. It is well settled that conviction can be recorded on the basis of dying declaration alone, if the genuineness of the declaration is believable. In this regard the Apex Court in Laxman (supra) observed as follows:- “….. normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.” 20. In Ramesh Vs. State of Haryana, reported in (2017) 1 SCC 529 , Hon’ble Supreme Court held that a dying declaration is an independent piece of evidence like any other 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 what percentage of burns suffered is a determinative factor to affect the credibility of the 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 the dying declaration. 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 the 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. Further, it has been emphasised by the Supreme Court that 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 about the fitness of the dying man to make the statement and to record the same where he finds that life is fast ebbing out of the dying man and there is no time to call the police or the Magistrate. Regarding recording of dying declaration by a Magistrate, Supreme Court has observed that Magistrate has no animus with the accused person; he has no axe to grind against the persons named in the dying declaration and ordinarily should not be disbelieved by the Court. In that case, victim was brought to the hospital with 100% burn injuries. Notwithstanding the same, doctor found her in a conscious state of mind and competent to give her statement whereafter Magistrate recorded the dying declaration when medical officer remained present. This dying declaration was accepted by the trial Court, by the High Court and finally by the Supreme Court. 21. In the light of the law laid down by the Hon’ble Supreme Court in Laxman (supra) and Ramesh (supra), let us look into the dying declaration (Ext.3) and the other evidence on record. 22. So, in the instant case, seeing the condition of the deceased in the hospital, the PW3 recorded the dying declaration of the deceased in presence of PW6 and PW7. The evidence of PW6 and PW7 makes it appear that although the deceased was having 90%-95% of burn injuries, yet she was in a position to speak with difficulties and as evident she made the statement also. 23. The evidence of PW6 and PW7 makes it appear that although the deceased was having 90%-95% of burn injuries, yet she was in a position to speak with difficulties and as evident she made the statement also. 23. There is no evidence to show that the dying declaration made by the deceased was the result of either tutoring or prompting or a product of imagination. On the other hand, there is evidence to show that the deceased inspite of having 90%-95% of burn injuries was in a position to speak, of course, with difficulties. The dying declaration was recorded by the Doctor/PW3 who has no animus with the accused-appellant and has no axe to grind the person named in the dying declaration. 24. Dying declaration recorded by Doctor is more effective and reliable since he had chance of observing the victim, who made the dying declaration, vide Ext-3 in presence of witnesses. The evidence of the Doctor, as indicated, shows that the deceased made a statement, vide Ext-3, of course, with difficulties. There is no doubt, however, about the voluntariness or truthfulness of the said dying declaration. 25. The oral dying declaration made by the deceased before the PW1, PW2 and PW4 read in combination with the evidence of PW3, PW6 and PW7 leaves this court with no doubt at all that the dying declaration was not only made voluntarily but also a piece of evidence which inspires confidence of this court. Even during the cross-examination of the prosecution witnesses, except about the absence of the fitness certificate by the Doctor, no other issue was to the effect that on any other count, the dying declaration ought not to have been acted upon. Rather, in view of the discussions, made above, this court is of the view that the consistent evidence of PW1, PW2 and PW4 in respect of oral dying declaration taken together with the recorded dying declaration of the deceased, recorded by the Doctor/PW3, vide Ext-3, and supported by PW6 and PW7, is found most reliable. 26. The Hon’ble Supreme Court in the case of Ranjit Singh vs. State of Punjab, reported in (2006) 13 SCC 130, the Apex Court held that as follows: “13. 26. The Hon’ble Supreme Court in the case of Ranjit Singh vs. State of Punjab, reported in (2006) 13 SCC 130, the Apex Court held that as follows: “13. It is now well settled that conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards correctness or otherwise of the said dying declaration, the Courts in arriving at the judgment of conviction shall look for some corroborating evidence. It is also well known that in a case where inconsistencies in the dying declarations, in relation to the active role played by one or the other accused persons, exist, the Court shall lean more towards the first dying declaration than the second one.” 27. Since the dying declaration has inspired confidence of this court, taking the ratio of Ranjit Singh (supra), this court is of the view that the conviction of the appellant can be based on the aforesaid dying declaration alone. This legal position is sufficient to convict the accused-appellant. But, what has been noticed by this court, to its astonishment, is that while the deceased was lying, counting her moments, the accused-appellant was sitting by her side completely unmoved by the burn injuries sustained by her, which is quite unusual in the situation, the deceased being his wife. So, along with the dying declaration, if this piece of conduct of the accused-appellant is considered, there is absolutely no room for doubt that it was none but the accused-appellant, who has committed the crime. That apart, the dying declaration, vide Ext-3, received corroboration from the evidence of PW1, PW2 and PW4, as mentioned above, as required by Ranjit Singh (supra). 28. Therefore, the impugned judgment, passed by the learned trial court, appears to have been based on the evidence on record requiring no interference by this court in exercise of its appellate jurisdiction. 29. Accordingly, the appeal stands dismissed. 30. Send down the LCR with a copy of this judgment. 31. This Court appreciates the assistance rendered by the learned Amicus Curiae and directs that an amount of Rs. 7,500/- be paid to the learned Amicus Curiae as honorarium for the assistance rendered by her.