Judgment:
Judgment and Order (Oral)
1. This appeal is directed against the judgment and order dated 01.10.2007 passed by the learned Sessions Judge, Darrang at Mangaldai in Sessions Case No.188(DM)/2006, whereby and whereunder accused Mona Das who is the appellant herein was convicted under Section 304(B)(2) and sentenced to undergo rigorous imprisonment (RI for short) for seven years. However, another accused viz. Smti Durbala Das was acquitted on benefit of doubt.
2. I have heard Ms. RB Bora, learned Amicus Curiae appearing for the appellant. Also heard Ms. B Bhuyan, learned Additional Public Prosecutor, Assam for the State respondents.
3. The facts of the present case depict a tragic circumstance of the death of a young house wife at the hands of her husband Mona Das. An FIR was lodged to that effect by one Sri Niranjan Namodas with the Officer-in-Charge of the Tangla Police Station contending therein that his sister Kento Namo Das (the deceased) was given marriage to accused Mona Das as per Hindu rites and rituals. After the marriage, the accused along with his mother Smti Durbala Das tortured Kento Das physically and also demanded dowry. On 13.12.2005, his brother-in-aw, Mona Das i.e., the husband of his sister Kento Das and mother-in-law set Kento Das on fire. She was, thereafter, admitted in the Mangaldai Civil Hospital where she died out of her burn injuries while undergoing treatment.
4. On receipt of the FIR, the Police registered a case being Tangla P.S. Case No.83/2005 under Section 304(B)/34 IPC. After completion of the investigation, the Investigating Officer submitted charge-sheet under Section 304(B)(2) IPC.
5. The case being exclusively triable by the Court of Sessions, the same was committed to the Court of Sessions by the learned Judicial Magistrate, Darrang, Mangaldai.
6. The learned Sessions Judge, finding materials against the accused persons, framed charges against both the accused under Section 304(B)(2)/34 IPC.
The charge so framed being read over and explained to the accused persons they pleaded not guilty and claimed to be tried.
7. In support of their case, prosecution examined as many as 8 witnesses including the informant, the Investigating Officer as well as the Medical Officer. Defence also adduced two witnesses viz., DW-1 and DW-2. The learned trial Court after completion of the prosecution as well as defence witnesses, recorded the statement of the accused appellant under Section 313 Cr.P.C. wherein the accused denied to have committed the offence as alleged.
8. Admittedly there is no eye witness to the occurrence and the prosecution case rests only on the dying declaration made by the deceased before PWs 1, 2 and 3. Considering the dying declaration so made, the learned trial Court convicted and sentenced the accused as aforesaid. Hence the instant appeal from jail.
9. PW-1, Sri Niranjan Namodas has stated that the deceased was given marriage to the accused appellant as per Hindu rites and rituals about one and half years prior to deposition in the Court i.e. 08.01.2007. The alleged incident of burn occurred on 13.12.2005. Thus the occurrence took place within seven years from the date of marriage of the deceased and the accused appellant. PW-1 has further stated that immediately after the incident, Prakash Namo Das informed him that his sister Kento Das has been admitted in the hospital as she sustained burn injuries in her in-laws house. Immediately after receipt of the information he rushed to Tangla Hospital and found his sister being admitted in the hospital with burn injuries on her person. On being asked his sister i.e., the deceased informed him that her husband accused Mona Das set fire on her person after assaulting her. She also reported that her mother-in-law Durbala Das also used to torture her off and on. After the marriage his sister Kento Das once came to their residence and reported him that her husband Mona Das used to assault her in intoxication. PW-1 thereafter lodged the FIR. He has also signed in the seizure list. He put his thumb impression in the seizure list, whereby Police seized one half burnt hawai chappal and half burnt clothes from the place of occurrence in their presence.
During cross examination, PW-1 has stated that prior to the marriage the accused Mona Das eloped his sister Kento as both of them were in love. He has further stated that Sushila, the sister of accused Namo Das also died out of burn injuries when she attempted to save Kento as she was also caught with fire and died thereafter. Accused Mona Das also sustained burn injuries in his hand. The suggestions put to him that the deceased did not give any oral dying declaration implicating the accused and his mother has been denied by the PW-1. He has further stated that his mother Jamuna, sister Labanya and Prakash and others were present at the time of giving oral dying declaration by his sister Kento Das prior to her death.
10. PW-2, Prakash Das is also another brother of the deceased. He has also stated in the same tune as that of PW-1.
11. PW-3, Jamuna Das is the wife of the informant. Deceased Kento was her sister-in-law. The deceased also made oral dying declaration before PW-3 wherein she has stated that her husband Mona Das set fire on her after pouring kerosene on her body. PW-3 has stated that Police has recorded her statement. After the marriage Kento used to complain against her husband that he used to assault her in intoxication.
In cross-examination, PW-3 has stated that Kento was in fit state of mind as she could spell out properly as to the cause of her death. While giving her oral dying declaration, Niranjan Namodas and Labanya were also present. They found Kento suffering from burn injuries. Kento was found shouting in pain. Kento repeatedly told them prior to her death that it was her husband accused Mona Das who set fire on her person after being intoxicated. Ashu, Sudhangshu, Prakash, Anil Das, Anima Das were also present at the time of giving oral dying declaration. Suggestions put to her to the effect that Kento did not give any oral dying declaration implicating Mona Das has been denied by PW-3.
12. PW-4, Sri Sunil Das and PW-5, Smti Anjana Das have been declared hostile by the prosecution. While they were cross-examined by the prosecution, they denied to have stated before the police that the accused and his mother used to torture the deceased.
13. PW-6, Sri Prakash Das was the brother-in-law of the deceased Kento Das. He has stated that prior to the incident he came to know from Kento that both the accused subjected her physical and mental torture. The accused Mona Das is addicted to drinking and used to torture Kento prior to her death. However, he did not know anything about accused Durbala Das as to how she used to behave with the deceased.
In the cross examination, the suggestions put to him that the deceased did not state before him that she was subjected to torture by the accused Mona Das has been denied.
14. PW-7 Sri Padum Chandra Nath, is the IO, who has stated that after receipt of the FIR, he started investigation, visited the place of occurrence, prepared sketch map of the place of occurrence, sent the body of the deceased for post mortem examination, recorded the statement of the witnesses under Sections 161 Cr.P.C., seized a pair of hawai chappal and some pieces of half burnt clothes in presence of the witnesses vide seizure list, wherein Ext.1 is the seizure list and Ext.1(1) is his signature. In the midst of the investigation he was transferred and accordingly he handed over the case diary to his successor. While confronting the statement of PW-4 and PW-7, he has stated that PW-4 has deposed before him that the accused Mona Das used to torture his wife off and on prior to her death.
15. PW-8 is the Doctor, who held autopsy on the dead body of the deceased and found the following injuries:
(i) Whole body burn injury present (100%).
In the opinion of the Doctor, the death of the deceased Kento was due to shock as a result of burn injury. Ext. 4 is the post mortem report and Ext. 4(1) is his signature.
In the cross examination, PW-8 has stated that a person suffering from 100% burn injury cannot be said unconscious for all the time prior to his death or her death. A patient having 100% injury in his or her person may be able to speak at the initial stage. There is remote chance of survival of person having 100% burn injury.
16. In the case in hand, the defence adduced two witnesses, DW-1 and DW-2. DW-1, Smti Needani Das has stated that she did not hear any strain relation between the accused Mona Das and his wife Kento Namodas till her death. She has further stated that Kento committed suicide by setting herself in fire. While she was struggling with life, on being asked Kento told her that she herself set fire on her person.
However, in cross examination she has stated that she did not state before the Police that the deceased Kento told her prior to her death that she herself set fire on her person. She has also not stated before the Police that she did not notice any strain relation between accused Mona and his wife Kento.
17. DW-2, Smti Namita Das, has stated that both the accused persons are known to her as they were her neighbours. She has stated that she saw Sushila, the sister of accused Mona Das and the accused trying to extinguish the fire that caught the person of Kento Das. Sushila, later on, died out of burn injuries as she attempted to save Kento Namodas. On being asked, Kento told her that she herself set fire on her person and absolved accused Mona Das.
However, in cross examination, she has stated that she did not state before the Police that Kento died out of burn injury and on being asked she told her that accused Mona Das did not set fire on her person. She has further stated that the neighbours know that accused is an alcoholic. Suggestions put to her that the accused used to ask money from his wife Kento for taking alcohol and as Kento refused to give money, he used to torture her and as a result he set fire on her person has been denied by her.
18. From the evidence discussed hereinabove, it would reveal that the deceased had made dying declaration before PW-1, 2 and 3 specifically and unequivocally stating that her husband the accused, Mona Das set her on fire.
19. Before considering the acceptability of the dying declaration it would be useful to refer the legal positions.
20. In Sham Shankar Kankaria Vs. State of Maharastra, reported in (2006) 13 SCC 165, the Apex Court held at paragraphs 10 and 11 as thus:
â10. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on deathbed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence.
11. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben Vs. State of Gujaratâ¦â¦â¦â¦â¦â¦â¦â¦â¦.â
21. In Puran Chand Vs. State of Haryana reported in (2010) 6 SCC 566, the Apex Court reiterated the principles laid down in Sham Shankar (supra).
22. In Panneerselvam Vs. State of Tamil Nadu reported in (2008) 17 SCC 190, a Bench of 3 Judges of the Apex Court reiterating various principles on the issue of dying declaration held at Paragraph 8 as thus:
â8â¦â¦â¦â¦â¦â¦â¦..it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.â
23. In the light of the above principles, the acceptability of the dying declaration in the instant case has to be considered. If after careful scrutiny, the Court is satisfied that it is free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make a basis of conviction, even if there is no corroboration. With these principles, let us consider the statement of PWs-1, 2 and 3.
24. In the present case in hand, the deceased has made the dying declaration before PWs 1, 2 and 3. The dying declaration so made, is specific and in unequivocal terms, which inspire full confidence of the Court in its correctness.
25. A perusal of the evidence of PWs 1, 2 and 3 regarding the dying declaration, the Court is of the view that the statement made by the deceased is free from any effort to induce the deceased to make a false statement. The same is coherent and consistent. In the opinion of the Doctor also, despite a person suffering from 100% burn injury cannot be said unconscious for all the time prior to his or her death. The patient having 100% injury in his or her person may be able to speak at the initial stage. Therefore, as held by the Apex Court, there may not be any legal impediment to make a basis of conviction, the dying declaration made by the deceased as aforesaid.
26. Having considered the entire evidence on record, the medical evidence of PW-8, the inquest report submitted by the Investigating Officer as well as the dying declaration made by the deceased before PWs 1, 2 and 3 negatives the innocence of the accused appellant and serves as definite pointer towards his guilt and thus this Court is in complete agreement with the view taken by the learned trial court that it was the appellant who killed his wife by setting her on fire. The learned trial court has rightly passed the order of conviction and sentence, which is not liable to be interfered with in the facts and circumstances of the case.
27. In the result, the appeal preferred by the appellant fails. The conviction and sentence passed by the learned Sessions Judge, Darrang, Mangaldai, in Sessions Case No.188(DM)/2006 is affirmed.
28. Send down the lower court records.
29. Before parting with the case, I would like to put on record the valuable assistance rendered by Ms. RB Bora, learned Amicus Curiae in arriving at a decision as aforesaid. Accordingly, she is entitled to a professional fee which is quantified at Rs.5000/- (Rupees Five Thousand) only.