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2020 DIGILAW 10 (GAU)

Kulsu Bibi v. State of Assam

2020-01-03

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : Hitesh Kumar Sarma, J. 1. The Criminal Appeal (J) No. 4/2018, has been preferred by accused-appellant Smti. Kulsu Bibi, against the judgment and order, dated 22.09.2017, in Session Case No. 88/2015, passed by the learned Sessions Judge, Karimganj, convicting and sentencing her for offence punishable under Section 302 of the IPC to rigorous imprisonment for life and to pay a fine of Rs. 500/-, and in default of payment of fine, to undergo simple imprisonment for 1 (one) month. 2. The prosecution case, as appears from the FIR, marked as Ext-2, is that, the deceased Sufiana Begum was married to Sri Sabel Ahmed about 8-9 years back. Thereafter, the deceased resided with the accused persons in her matrimonial house. The accused persons subjected her to torture. At about 4:00 am, on the date of occurrence, the victim sustained burn injuries after she was called by her mother-in-law. She was set on fire, after pouring kerosene over her body, by the accused-persons. This fact was told to the informant by the deceased. On such facts, the PW2 Tajamul Ali lodged the FIR, vide Ext.-2, against the accused persons named therein. 3. On receipt of the FIR through Longai Police Outpost, the Karimganj Police Station registered a case, being Kmj. PS C/N-491/14 under Sections 498-A/307 of the IPC. However, during the course of investigation, the victim died and therefore Section 302 of the IPC was added. The Police investigated into the case, collected evidence, and finally, on completion of investigation, laid the charge-sheet against the accused-appellant under Section 302 of the IPC. No evidence could be found, during investigation, against the other accused-persons named in the FIR. 4. After exhausting all required formalities, the learned trial court framed a formal charge against the accused-appellant under Sections 498(A)/304-B/302 of the IPC to which she pleaded innocence, and therefore, the trial commenced. 5. To bring home the charge against the accused-appellant, the prosecution examined as many as 8 (eight) witnesses who were subjected to cross-examination by the defence. The defence plea is of denial. 6. After closure of the prosecution evidence, the statement of the accused-appellant was recorded under Section 313 of the Cr.P.C. In her such statement also, the accused denied the allegations made against her. The defence declined to adduce any evidence. 7. The PW1 IS the Superintendent of the Karimjanj Civil Hospital on 18.07.2014. On that day, Dr. 6. After closure of the prosecution evidence, the statement of the accused-appellant was recorded under Section 313 of the Cr.P.C. In her such statement also, the accused denied the allegations made against her. The defence declined to adduce any evidence. 7. The PW1 IS the Superintendent of the Karimjanj Civil Hospital on 18.07.2014. On that day, Dr. F Karim, PW5, recorded the dying declaration of the deceased in the Karimjanj Civil Hospital at about 11:00 am in his presence vide Ext.-1 wherein he had put his signature, as witness, vide Ext. 1(1). Except the suggestion that the dying declaration, vide Ext. 1, was not recorded in his presence and his signature was obtained therein later on, there is no cross-examination of this witness by the defence. 8. The PW2 is the informant. On receipt of the telephonic information about the occurrence i.e., sustaining of burn injuries by the deceased, the deceased was taken to the Hospital by him. He also lodged the FIR, vide Ext. 2. In his cross-examination, he has stated that the in-laws had admitted the deceased in the Hospital. 9. The evidence of PW3 is that the deceased was the wife of her nephew. At the time of occurrence, she heard the deceased's father-in-law screaming. She went out and found that the deceased's father-in-law was uttering the words "agun lagiche (caught by fire). She went to the place of occurrence after about half an hour and saw the deceased with burn injuries. This witness was declared hostile by the prosecution and subjected her to cross-examination. In her cross-examination by the prosecution, she denied that she had stated before the Police that, on 18.07.2014 at about 4:00 am, while she went to the house of Sabel Ahmed, she saw the deceased engulfed in fire in the kitchen and the deceased told her that her mother-in-law had set her on fire by pouring kerosene over her body. 10. The evidence of PW4 is to the effect that she went to the place of occurrence after hearing the alarm raised by the father-in-law of the deceased and there she noticed that fire broke out in the house of the deceased. The deceased also caught by fire. This witness tried to douse the fire which caught the deceased. According to her, the deceased caught fire while she was in the kitchen. The deceased also caught by fire. This witness tried to douse the fire which caught the deceased. According to her, the deceased caught fire while she was in the kitchen. She did not enquire from her as to how she was caught by fire. This witness was also declared hostile by the prosecution and subjected her to cross-examination. She has denied making any statement to the effect that when she asked the victim, she told her that her mother-in-law had set fire on her after pouring kerosene over her body. 11. PW5 is the Doctor who had recorded the dying declaration of the deceased vide Ext-1. He has admitted that he had recorded the dying declaration of the deceased at about 11:00 am on 18.07.2014 in the female surgical ward of Karimganj Civil Hospital. The contents of the dying declaration made in Bengali language and translated into English reads as follows:- "My name is Sufina Begum. I am 22 years old. My Husbands name is Sabel Hussen @ Sabel Ahmed, the name of my village is Karnamadhu. I went to my fathers home. When I came back, my mother-in-law did not talk to me. In the morning when I went to prepare tea, mother-in-law poured kerosene over me and put me on fire. I do not have to say anything more. I cannot speak more." I have recorded the declaration. Ext. 1 is the declaration and Ext. 1(3) is my signature. Dr. N Ahmed and Md. Tajamul AH, uncle of Sofina Begum were witnessed the declaration. The signature and thumb impression of Sofina Begum could not be taken as there were burn injuries on her hand." In his cross-examination, he has admitted that he did not mention the case number and the GD Entry number in Ext. 1. He also did not mention the Patient registration number of the victim in the Hospital. In his cross-examination, he has further stated that he did not give any certificate to the effect that the victim was able to speak at the time of recording her dying declaration admitting further that the dying declaration was not recorded in questions and answer form. He answered in the negative to the defence suggestions that Tajamul Ali and Dr. N. Ahmed, i.e., P.Ws. 2 and 1 were not present at the time of recording the dying declaration. He answered in the negative to the defence suggestions that Tajamul Ali and Dr. N. Ahmed, i.e., P.Ws. 2 and 1 were not present at the time of recording the dying declaration. The certificate about the fitness of the maker to make the dying declaration is a Rule of caution and prudence only. However, since we believe the evidence of PW5, PW1 and PW2 as regard the making of dying declaration by the deceased in the instant case and as the dying declaration was recorded by one doctor in presence of another doctor, there is no reason to disbelieve their evidence and non-furnishing of the certificate, therefore, does not adversely affect the dying declaration in any way in the absence of any evidence that the doctor recording the dying declaration has any axe to grind against the accused-appellant. 12. The PW6 is the In-Charge of the Longai Outpost. He has deposed about receipt of the FIR from the PW2 as well as recording of the same in the Longai Outpost vide GD Entry No. 255 dated 18.07.2014, and thereafter, the FIR was forwarded to the Karimganj Police Station for registration of the case. The victim was, in the meantime, in the Hospital under treatment. On his prayer, the statement/dying declaration of the victim/deceased was recorded by the Doctor. The victim died in the Hospital. This witness caused the post-mortem examination of the dead body of the deceased done. He also recorded the statement of the witnesses during witnesses. 13. The prosecution confirmed from him that the P.Ws. 3 and 4 had stated before him that, on being asked they were told by the deceased that the accused-appellant/mother-in-law had set fire on her after pouring kerosene over her body. 14. The PW7 is the Police Officer who laid the charge-sheet, vide Ext-4, after collecting the dying declaration as well as the post-mortem examination report. His evidence is of routine nature. 15. The evidence of PW8 is to the effect that he performed the post-mortem examination on the dead body of the deceased and found as follows: "EXTERNAL APPEARANCE: an average built Muslim female aged about 22 years, whose rigor mortis present, mouth and eyes closed. Whole body is burnt. Only perineum, 1% was left. All the organs were congested. STOMACH AND ITS CONTENTS: contains half undigested food particles. SMALL INTESTINE AND ITS CONTENTS: contains half undigested food particles. Whole body is burnt. Only perineum, 1% was left. All the organs were congested. STOMACH AND ITS CONTENTS: contains half undigested food particles. SMALL INTESTINE AND ITS CONTENTS: contains half undigested food particles. LARGE INTESTINE AND ITS CONTENTS: contains faecal matter. HEART AND VESSELS contain blood. THE MORE DETAILED DESCRIPTION OF THE INJURY OR DESEASE: The burn injury is ante mortem". He also opined that the death of the deceased was due to 99% burden followed by hypovolemic shock. Exhibit 5 is the post-mortem report given by us after conducting the aforesaid post mortem examination whereon Exhibit 5(1) is my signature. 16. On examination of the evidence on record and after hearing both the parties, the learned Sessions Judge, Karimganj convicted and sentenced the accused-appellant under Section 302 of the IPC, as indicated above. In respect of the charges under Sections 498(A) and 304-B of the IPC, the accused-appellant has been acquitted. 17. We have examined the entire evidence on record. It appears therefrom that there is no eye-witness to the occurrence and the entire prosecution case is based on the dying declaration of the deceased. 18. We have found from the dying declaration of the deceased, as quoted here in above, that in the morning, when she went to prepare tea, her mother-in-law poured kerosene over her and set fire on her. This mother-in-law is the accused-appellant in this case. While referring to the evidence of PW5, we have quoted the translated version of the dying declaration. The learned Amicus Curiae has submitted that as per the post-mortem examination report, vide Ext-5, the death of the deceased was due to 99% burn followed by hypovolemic shock, and therefore, she was definitely not in a position to speak and as such she was unable to make the dying declaration. The further argument of the learned Amicus Curiae is that the Doctor, i.e., PW5, who recorded the dying declaration vide Ext-1 did not certify that the deceased was fit to make the dying declaration. 19. On examination of the evidence of the PW5, it is found that admittedly he did not certify about the fitness of the deceased to make the dying declaration. But, at the same time, it is also a fact that he recorded the dying declaration in presence of the PW1, Dr. Nazim Uddin Ahmed and PW2/informant Tajamul Ali. 19. On examination of the evidence of the PW5, it is found that admittedly he did not certify about the fitness of the deceased to make the dying declaration. But, at the same time, it is also a fact that he recorded the dying declaration in presence of the PW1, Dr. Nazim Uddin Ahmed and PW2/informant Tajamul Ali. It has also come out from the evidence that the deceased died immediately after making the dying declaration. The PW1, who himself is a Doctor, deposed that the dying declaration of the deceased was recorded by the PW5 in his presence as witness and thereafter he had put his signature thereon vide Ext-l(1). 20. 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 vs. State of Maharashtra reported in (2002) 6 SCC 710 , opined that, "..... 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. 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. 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." 21. In Ranjit Singh vs. State of Punjab reported in (2006) 13 SCC 130, the Apex Court held that ".................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." 22. In the instant case, the Doctor recorded the statement of the deceased vide Ext. 1 in presence of 2 (two) witnesses. The PW1 who is another Doctor of the same Hospital is found to have corroborated the evidence of the PW5 that the dying declaration was recorded in his presence. The PW2 although stated in his evidence that he was not present at the time of recording the dying declaration, yet he has admitted his signature vide Ext. 1(2) in the dying declaration. The PW2 although stated in his evidence that he was not present at the time of recording the dying declaration, yet he has admitted his signature vide Ext. 1(2) in the dying declaration. Such evidence means that he was aware of the dying declaration, and in the absence of any evidence to show that his signature was obtained by manipulation and otherwise, there is no reason to disbelieve the evidence of PW1 and PW5 as regard the making of the dying declaration by the deceased. The recording of the dying declaration by the PW5, a Doctor, in presence of another Doctor, itself is indicative of the fitness of the deceased to make the dying declaration at the relevant point of time and the last sentence in the dying declaration that "I cannot speak more" speaks volume of the fact that she made the statement and was counting her moments. She died on the same day after making the dying declaration. The evidence on the record has established the charge under Section 302 of the IPC against the accused-appellant beyond all reasonable doubt. 23. Accordingly, having regard to the ratio in Laxman vs. State of Maharashtra (Supra) and Ranjit Singh (Supra), we are satisfied that the decision of the learned trial Court is consistent with the evidence in the case and thus the Appeal is found to be devoid of merit. We dismiss the appeal and affirm the judgment of conviction and sentence passed by the learned Sessions Judge, Karimganj, in the Sessions Case No. 88/2015. 24. Send down the LCR with a copy of this judgment. 25. This Court appreciates the assistance rendered by the learned Amicus Curiae, Mr. U Choudhury and directs that an amount of Rs. 7,500/- be paid to him as honorarium for his assistance.