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2020 DIGILAW 545 (GAU)

Rupam Paul S/o Sri Gobinda Paul v. State of Assam

2020-06-03

MIR ALFAZ ALI, S.HUKATO SWU

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JUDGMENT : Mir Alfaz Ali, J. This appeal is directed against the judgment and order passed by learned Sessions Judge, Kamrup (M) in Sessions Case No. 213(K)/2010. By the said judgment, learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to rigorous imprisonment for life and fine of Rs. 10,000/- (Rupees ten thousand), in default, simple imprisonment for 6 (six) months. 2. As per prosecution case, on 24-03-2009 when the informant and his wife were not available at their residence, the present appellant came to their house and started altercation with the daughter of the informant on some matters. In course of the altercation the appellant set fire to the daughter of the informant and left the house. When the victim raised alarm, the appellant again entered the house of the victim and tried to extinguish the fire by pouring water. On sustaining burn injury, the victim was taken to hospital. While the victim was undergoing treatment in the Gauhati Medical College & Hospital, father of the victim lodged an FIR on 29-03-2009, on the basis of which, police registered Fatasil PS Case No. 77/2009 under Sections 448/307/436 IPC. During the course of investigation victim succumbed to the injuries and the penal provision of Section 302 IPC was also added. Upon death of the victim, her body was in quested and subjected to post mortem examination. 3. PW-8, Dr. Dipak Kr. Das, who conducted the post mortem examination on the body of the victim found the following injuries : “Dermo epidermal burn injury present over the body except portion of buttocks of both legs and foot. Portion of anterior abdominal wall head and perineum. All the burn areas are covered with unhealthy granulation tissues, foul smelling discharges and dressing materials. Areas of hyperemia present at places near wound margin.” In the opinion of the autopsy doctor, death was due to exhaustion resulting from ante mortem dermo epidermal burn injuries over total body surface. Burn injuries was approximately 80%. 4. We have heard and considered the submission made by learned counsel Mr. BK Mahajan for the appellant and learned Addl. P.P for the State respondent as well as learned counsel Mr. U. Das for the informant. We have also meticulously scrutinized the evidence and materials brought on record. 5. Burn injuries was approximately 80%. 4. We have heard and considered the submission made by learned counsel Mr. BK Mahajan for the appellant and learned Addl. P.P for the State respondent as well as learned counsel Mr. U. Das for the informant. We have also meticulously scrutinized the evidence and materials brought on record. 5. On our assessment of the evidence, we noticed that there was no direct evidence of anyone having seen the appellant setting fire to the victim and the conviction of the appellant was based basically on the oral dying declaration of the victim, as deposed by PW-5 as well as the written dying declaration recorded by PW-10 and the evidence of PW-3, brother of the victim. 6. Altogether four prosecution witness, namely, PW-1, PW-2, PW-4 & PW-5 deposed regarding oral dying declaration purportedly made by the victim before each of them. A dispassionate scrutiny of the oral testimony of PW-1, PW-2, PW-4 and PW-5, who deposed about the dying declaration would show, that when the father of the victim (PW-1) came to the hospital after having come to know about the occurrence, he found that the victim was not in a position to speak. According to PW-1, after three days of the occurrence, when he met the victim in the hospital, the victim made the dying declaration. The PW-2, mother of the victim, stated that initially the victim was not in a position to speak and after two days when she regained senses, she made the declaration. The PW-4 deposed in his examination-in-chief that he visited the victim in the hospital on the following day of the occurrence and the victim disclosed before her, that appellant set fire on her body after pouring kerosene. However, PW-4 in her cross-examination stated, that in fact, he visited the victim at the hospital after 4/5 days of the occurrence and he also denied any dying declaration being made before him. PW-5 stated that hearing about the occurrence, he immediately came to the place of occurrence and on being asked by her the victim stated that she was set ablaze by the accused. What therefore, emerges from the oral testimony of PW-1, PW-2, PW-4 & PW-5, who deposed about the dying declaration is that the victim was not in a conscious stated and according to PW-1 she regained her senses after three days and made the dying declaration. What therefore, emerges from the oral testimony of PW-1, PW-2, PW-4 & PW-5, who deposed about the dying declaration is that the victim was not in a conscious stated and according to PW-1 she regained her senses after three days and made the dying declaration. According to PW-2, the victim regained her consciousness after two days and made the dying declaration. The PW-4 though, stated during examination-in-chief, that on the next day the victim made the dying declaration, but in her cross, she deposed to have visited the hospital after 4/5 days of the occurrence. She further stated that no dying declaration was made before him. In view of above glaring inconsistencies in the evidence of PW-1, PW-2 and PW-4, the learned Sessions Judge discarded and disbelieved the testimony of the PW-1, PW-2 & PW-4 as to dying declaration. We are also in agreement with the learned Sessions Judge that no credibility could be attached to the oral testimony of the PW-1, PW-2 & PW-4 as to dying declaration. However, what we notice is that learned Sessions Judge relied heavily on the oral dying declaration as deposed by PW-5. The reason given by the learned Sessions Judge was that the said dying declaration was made first in point of time immediately after the occurrence and the PW-5 was also a natural witness being resident of the same locality and arrived at the place of occurrence immediately. 7. Evidently the occurrence took place at Fatasil Ambari at the residence of the victim, as would appear from the oral testimony of PW-1 & PW-2, the parents of the victim. The sketch map(Ext.-11) shows that the house of the PW-5 was not in the proximity of the place of occurrence, i.e. the residence of the deceased. Interestingly the residence of one Shankar Dey and one Naren Dey were in the close proximity to the place of occurrence, as per the sketch map(Ext.-11). However, neither Shankar Dey nor Naren Dey was examined as witness by the prosecution. The sketch map also does not show the PW-5 to be a close neighbor of the victim. From the testimony of PW-5, it appears that at the time of occurrence the PW-5 was a resident of Bhaskarnagar under Fatasil Ambari P.S. and she was a permanent resident of Barpeta road. The sketch map also does not show the PW-5 to be a close neighbor of the victim. From the testimony of PW-5, it appears that at the time of occurrence the PW-5 was a resident of Bhaskarnagar under Fatasil Ambari P.S. and she was a permanent resident of Barpeta road. There was no material on record to show that the PW-5 was residing in the close proximity to the house of the victim, rather, in her own evidence she stated that she was residing at Bhaskarnagar at the time of incident. It is also evident from the testimony of the PW-13, investigating officer, that Bhaskar Nagar is at a considerable distance from the place of occurrence. Though PW-5 deposed that hearing “hulla” (noise), she went to the house of the victim, there was no material on record, as to where she had heard the “hulla” from. The PW-3, younger brother of the victim who was admittedly present at the time of occurrence, did not state about PW-5 coming to the place of occurrence, nor did he support the version of PW-5, as to the dying declaration made by the victim before PW-5. Rather, PW3 deposed about the presence of two different persons. Therefore, evidently the presence of PW-5 at the place of occurrence immediately after the incident was itself doubtful, and as such, by no stretch of imagination she could be termed as a natural witness. At best, she could be considered as a chance witness, and as such, in our considered view, the finding of the learned Sessions Judge, that PW-5 was a natural witness does not appear to have borne out of any evidence or material on record. Though PW-5 stated that the victim stated before him regarding Rupam Paul setting fire by pouring kerosene oil by means of a match stick, police did not seize either any container of kerosene oil, or any match box etc from the place of occurrence. Though PW-5 stated that the victim stated before him regarding Rupam Paul setting fire by pouring kerosene oil by means of a match stick, police did not seize either any container of kerosene oil, or any match box etc from the place of occurrence. If the evidence of PW-5 is taken into account along with the evidence of PW-3 and all other attending facts and circumstances, as indicated above, the oral testimony of the PW-5 as to dying declaration, hardly inspires confidence, inasmuch as, the testimony of PW-5 as to the so-called oral dying declaration purportedly made by the victim in our considered opinion, did not stand on a better footing than that of the testimony of PW-1, PW-2 & PW-4 who also deposed about the dying declaration. Therefore, we are of the considered view that no credibility can be attached to the evidence of PW-5 too, as to oral dying declaration. 8. Coming to the written dying declaration, the PW-10 deposed to have recorded the dying declaration (Ext.-8) at 12.30 am at the intervening night of 29-3-2009 and 30-03-2009 in presence of Anwara Begum and Neburun Khatun. The PW-13, investigating officer stated that on being entrusted with the investigation of the case, he visited the hospital on 29-03-2009, however, he could not record the statement of the victim as her condition was critical and she was not in a position to speak. According to the investigating officer (PW-13), he visited the victim immediately after lodging of the FIR. The Ext. 10 shows that the FIR was lodged on 29-03-2009 at 2.45 pm. If that be so, evidently the PW-13 visited the victim in the hospital at about 3 pm or so on 29-03-2009, but could not record the statement of the victim as she was not in a position to speak. The alleged written dying declaration (Ext.8) was purportedly recorded after about 9 hrs. after PW-13 visiting the victim. Though the doctor (PW-10), who recorded the dying declaration stated that the victim was in a fit condition when her dying declaration was recorded, no certificate has been affixed to that effect. The alleged written dying declaration (Ext.8) was purportedly recorded after about 9 hrs. after PW-13 visiting the victim. Though the doctor (PW-10), who recorded the dying declaration stated that the victim was in a fit condition when her dying declaration was recorded, no certificate has been affixed to that effect. True it is, absence of fitness certificate of the doctor may not render the written dying declaration unreliable in all circumstances, but, when the written dying declaration is otherwise shrouded by suspicious circumstances, fitness certificate assumes the importance, more particularly when the condition of the victim was so critical, due to 80% burn injury, that she was admittedly not in a position to speak before few hours of recording the dying declaration. Admittedly the PW-10, the doctor who recorded the dying declaration was a post graduate intern and he stated to have recorded the dying declaration upon verbal instruction of the Superintendent of the hospital. The Superintendent of the hospital was also not examined. When the victim was in a critical condition and the dying declaration was recorded at 12.30 am, obviously some relative of the victim or other attender or staff of the hospital were present there. But none of them has been cited as witness to the dying declaration, rather the alleged dying declaration was purportedly recorded in presence of two strangers, who were neither cited as witness in the charge-sheet nor they were examined by the prosecution. 9. Another interesting thing which caught our eyes is that the alleged written dying declaration was recorded in English by PW-10. According to PW-10, the victim herself made the dying declaration before him in English. Evidently at the time of recording dying declaration the victim was in a critical condition with 80% burn injuries. Having regard to the social background of the victim as revealed from the materials on record and critical health condition of the victim, who was in death bed, making the so-called dying declaration by the victim in a foreign language appears to be very absurd and unnatural, which also makes the so-called written dying declaration highly suspect. Having regard to the social background of the victim as revealed from the materials on record and critical health condition of the victim, who was in death bed, making the so-called dying declaration by the victim in a foreign language appears to be very absurd and unnatural, which also makes the so-called written dying declaration highly suspect. Thus, the absence of any natural witness at the time of recording dying declaration, non-examination of the persons, who were cited as a witness to the dying declaration, not producing any document, authorizing the PW-10 to record the dying declaration by the Superintendent and the evidence of PW-10 that the victim made the dying declaration in a foreign language and the evidence of PW-13, that 9 hours before recording the alleged dying declaration, the victim was not in a position to speak, for which the PW-13 could not record the statement of the victim raises grave suspicion about the bona fide and veracity of the so-called written dying declaration (Ext-8). Therefore, we are unable to persuade ourselves to rely on the so-called written dying declaration (Ext.-8) allegedly recorded by PW-10 as well as the oral dying declaration as deposed by PW-5, which were surrounded by so many suspicious circumstances, rendering them unworthy of placing reliance. Dying declaration being a piece of untested evidence, unless it is proved to be true and voluntary beyond reasonable doubt, no reliance can be placed on it. 10. The Apex Court in Walli Patti Sivaiah Vs. SDO (2007) 15 SCC 465 observed that it is unsafe to record conviction on the basis of the dying declaration alone in a case, where there is suspicion as regards dying declaration. In such case, court may have to look for some other corroborative evidence by treating the dying declaration only as a piece of evidence. 11. After discarding the dying declaration, the only evidence left out is the oral testimony of the PW-3. The PW-3, brother of the victim, who was admittedly present at the place of occurrence, deposed that there was altercation between the victim and the appellant and he asked the victim to fetch a glass of water. When the victim proceeded to the kitchen, the accused also followed the victim. The PW-3 never stated to have seen the accused setting fire to the victim. Rather he stated that having seen her sister engulfed in fire, he got scared. When the victim proceeded to the kitchen, the accused also followed the victim. The PW-3 never stated to have seen the accused setting fire to the victim. Rather he stated that having seen her sister engulfed in fire, he got scared. 12. Admittedly it was the appellant, who took the victim to Saraighat Hospital immediately after the occurrence with the help of his friend, wherefrom he again shifted her to GMCH as per advice of the doctor. It is also in the evidence of PW-2, that having come to know about the occurrence, she went to Saraighat hospital, where she met the appellant and his friend, who scolded her (PW-2). The PW-2, mother of the victim further deposed that upon advice of the doctor the appellant and his friends shifted the victim to Gauhati Medical College & Hospital. It is also in the evidence of PW-1 & 2, that the appellant not only took the victim to hospital with the help of his friend, he also attended the victim at the hospital for two days. The appellant in his statement recorded u/s 313 CrPC stated that the victim wanted him to marry her and she gave a proposal to that effect, which was turned down by the appellant. He also stated that on the day of occurrence, on being called by the victim over phone, he went and there was conversation between them and on his refusal to accept the proposal of the victim to marry her, she even threatened to commit suicide. He further stated that when he came back he heard her scream and again returned back to the victim’s house and found her engulfed in flame and immediately he brought an auto-rickshaw and shifted the victim to hospital. It is also admitted position as mentioned in the FIR that appellant extinguished the fire and shifted the victim to hospital. 13. PW-3, the brother of the victim also stated in his evidence that there was some altercation between the victim and the accused and when the victim went to kitchen to bring water for him, accused also followed her and thereafter he heard the scream of the victim and having seen her engulfed in fire, he got scared. He (PW-3) further stated that the accused had left the house and immediately came back with an auto rickshaw and shifted the victim to hospital. He (PW-3) further stated that the accused had left the house and immediately came back with an auto rickshaw and shifted the victim to hospital. It is important to note that PW-3, though, a child witness, had never stated that he had seen the accused setting fire to the victim. It is also in the evidence, that the bed room, where the PW-3 was reading was adjacent to the kitchen and kitchen was visible from the bed room. Had he seen the accused setting fire to the victim, there was no reason for him to suppress the fact of seeing the accused setting fire to the victim. Therefore, the evidence of PW-3, that there was altercation between the appellant and the victim, the appellant left the place and came back again with auto-rickshaw for taking the victim to hospital coupled with the admission of the PW-1 & PW-2 that the appellant attended the victim in hospital for two days, in our considered view supported the defence taken by the appellant in his statement u/s 313 CrPC or at least indicated that the defence plea was fairly probable. 14. Another important fact, which surfaced from the evidence of none other than the PW-1 & PW-2, parents of the victim was that before the occurrence the victim eloped with another boy called Raju and she was recovered by police along with said Raju. The PW-1 & PW-2 tried to project in their evidence that the accused had an affair with the victim. Even if the evidence of PW-1 & PW-2 that accused had an affair with the victim is believed, the evidence brought on record that the victim in the meantime, eloped with another boy and she was recovered by police also goes to support the defence version, that on refusal of the appellant to marry the victim, she was perturbed or even threatened to commit suicide and immediately after departure of the appellant, she might have set fire to her body out of frustration. The occurrence took place on 24-03-2009, however, no FIR was lodged till 29-03-2009 afternoon, though the appellant was in the hospital for two days attending the victim. The occurrence took place on 24-03-2009, however, no FIR was lodged till 29-03-2009 afternoon, though the appellant was in the hospital for two days attending the victim. So the delay of four days in lodging the FIR in the attending facts and circumstances of the case also supports and strengthens the defence case set up by the appellant, that the victim committed suicide out of frustration and accused tried his best to save her life, inasmuch as no explanation was found forthcoming regarding the delay of five days. 15. Having regard to the entire facts and circumstances under which the victim sustained injuries and the conduct of the appellant pre and post occurrence and the un-explained delay of four days in lodging the FIR coupled with the oral testimony of the PW-3, we are of the considered opinion that the defence plea of the appellant as set up during his examination u/s 313 CrPC was quite probable and cannot be brushed aside. One has to bear in mind that the burden of the accused to prove the defence is not that strict as is required in case of prosecution. If the accused can probabilise his defence either by adducing evidence or from the evidence adduced by the prosecution, his burden stands discharged. Thus, the probability of the defence case, that the victim committed suicide also negates the prosecution case of accused setting fire to the victim with the intention to cause death, or at least render the prosecution version highly doubtful. 16. In view of the evidence and materials brought on record, the prosecution could by no stretch of imagination be held to have discharged its burden to prove the charge of murder u/s 302 IPC against the appellant beyond doubt, and as such, the appellant at least ought to have given the benefit of doubt. Accordingly, we set aside the conviction and sentence of the appellant u/s 302 IPC and allow the appeal, giving benefit of doubt to the appellant. 17. The appellant be set at liberty forthwith, if not required in any other case. 18. Send back the LCR.