Md Sah Alom @ Md Sah Alom Ali vs The State Of Assam And Anr
2021 Latest Caselaw 2473 Gua

                                                             Page No.# 1/30

GAHC010118252018




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.A./199/2018

            MD SAH ALOM @ MD SAH ALOM ALI
            S/O LATE DHANE ALI
            VILLAGE BARGHOLAJHAR PT. I
            PS JOGIGHOPA
            DIST BONGAIGAON



            VERSUS



            THE STATE OF ASSAM AND ANR
            REPRESENTED BY PP ASSAM

            2:MD. GOLBAHAR ALI
            W/O LATE JABBAR ALI
            VILLAGE BARGHOLJHAR
            PS JOGIGHOPA
            DISTRICT BONGAIGAON
            78338


Advocate for the Petitioner   : MR H R A CHOUDHURY

Advocate for the Respondent : MS. B BHUYAN(ADDL.PP, ASSAM)

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE ROBIN PHUKAN Page No.# 2/30

JUDGMENT AND ORDER (CAV) Date : 08-10-2021

(Suman Shyam, J)

Heard Mr. A. Ahmed, learned counsel appearing for the appellant. We have

also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for

the State/respondent No.1. None has appeared for the informant/respondent No.2.

2. Assailing the judgment dated 22.03.2018 passed by the learned Additional

Sessions Judge (FTC), North Salmara, Abhayapuri, in Sessions Case No.130(J)/2012

convicting the sole appellant Md. Sah Alom for committing the murder of his wife

Monuwara Begum and sentencing him to undergo rigorous imprisonment for life and

also to pay fine of Rs.10,000/- and in default, suffer rigorous imprisonment for 6 (six)

months, the instant appeal has been filed. The facts and circumstances giving rise to

the present appeal are as follows.

3. On 25.08.2012, Md. Golbahar Ali (PW-1) i.e. the father of the victim had lodged

an ejahar before the Officer-in-charge, Jogighopa Police Station reporting that his

daughter Monuwara Begum got married with the accused No.1 (present appellant)

about two years back as per the social norms and customs but after a few days of

their marriage the accused No.1, on instigation of other accused persons, had

started torturing his daughter physically and mentally by demanding dowry. In spite

of that his daughter had continued to lead her conjugal life with the accused No.1.

On 24.08.2012, at around 6.30 p.m., the accused No.1, on being ordered by the other

accused persons and with the intention to kill his daughter, had set Monuwara Page No.# 3/30

Begum on fire by pouring kerosene upon her when she was cooking food. As a result

of the same, his daughter had sustained grievous injuries. Immediately, the brother of

the accused No.1 took his daughter to the Bongaigaon Civil Hospital for treatment

and at the time of filing of the F.I.R. his daughter was undergoing treatment therein. In

the F.I.R. dated 25.08.2012, five accused persons had been named including the

present appellant as accused No.1.

4. Upon receipt of the F.I.R., Jogighopa P.S. Case No.168/2012 was registered

under sections 143/498(A)/307/326 of the IPC and the matter was taken up for

investigation. However, during the course of investigation the victim Monuwara died

in the hospital on 06.09.2012. Upon completion of investigation the Investigating

Officer (I.O.) had submitted charge-sheet against the accused No.1, Md. Sah Alom

Ali, under Section 302 of the Indian Penal Code (IPC). However, no evidence was

found against the remaining accused persons as a result of which, they were not sent

up for trial. The learned trial court had framed charge under section 302 of the IPC

against the accused No.1/appellant. The charge was read over and explained to

him. However, the accused had pleaded innocence and claimed to be tried. As

such, the matter went up for trial.

5. There is no eye-witness to the occurrence and the prosecution case is entirely

based on circumstantial evidence. There are three dying declarations which have

been relied upon by the prosecution in this case. In order to bring home the charge

brought against the accused, the prosecution had examined 11 witnesses. Three

other witnesses i.e. CWs-1, 2 and 3 were examined as Court witnesses.

Page No.# 4/30

6. After completion of recording of evidence of the prosecution witnesses, the

statement of the accused person was recorded under Section 313 Cr.P.C. whereby,

he had denied all the incriminating circumstances put to him. The accused had

taken a stand that he was innocent and did not know how his wife had caught fire.

The defence side, however, did not adduce any evidence.

7. Based on the evidence brought on record and by placing heavy reliance on

the dying declaration of the victim, the learned trial court had convicted the

appellant under section 302 of the IPC and sentenced him as aforesaid. The learned

trial court was also of the view that since the incident had taken place in the

matrimonial house of the victim, it was incumbent upon the accused to offer

plausible explanation as to how the victim had caught fire, which the accused had

failed to offer. On such count, it was also held that the accused person had failed to

discharge his burden cast under section 106 of the Evidence Act.

8. Assailing the impugned judgment dated 22.03.2018, Mr. Ahmed, learned

counsel for the appellant, has argued that none of the three dying declarations

relied upon by the prosecution were brought on record in accordance with law and

hence, the learned court below had committed a manifest error in convicting the

appellant solely based on the dying declarations. Mr. Ahmed has argued that the

Executive Magistrate (PW-10) could not say as to who had called her to the hospital

to record the dying declaration of the victim nor could she produce any document

authorising her to do so. There is no fitness certificate of the doctor certifying that the

victim was in a position to make the oral dying declaration (Ext-5) and even the Page No.# 5/30

witnesses to Ext-5 did not support the contents of Ext-5. Moreover, there is evidence

to show that the date mentioned below the signature of the PW-8 in Ext-4 (report

submitted by PW-8) also tampered with, thereby giving an impression that the report

was prepared subsequently. Mr. Ahmed has also argued that the oral dying

declarations brought on record by the PWs-1, 5 and 6 are also not reliable in view of

the material contradictions in their testimony. According to Mr. Ahmed, CW-3, cousin

of the victim who was serving as a Homeguard under the Assam Police, had stage-

managed the oral dying declarations by exerting influence over the police and the

administration due to some previous enmity with the accused person. Mr. Ahmed has

further argued that from the evidence of PW-2 and CW-2 it is established that the

accused was not present at home when the fire incident took place. In view of the

above, there was no scope for the learned trial court to convict the accused for

committing the murder of his wife by setting her ablaze by pouring kerosene on her

body. In support of his aforesaid arguments Mr. Ahmed has placed reliance on the

following decisions :-

1) State of Gujarat vs. Jayrajbhai Punjabhai Varu reported in (2016) 14 SCC 151 [para 15, 16, 17 & 20].

2) Kashi Vishwanath vs. State of Karnataka reported in (2013) 7 SCC 162 [para 10, 29 & 30].

3) Sharda vs. State of Rajasthan reported in (2010) 2 SCC 85 [para 24, 25 & 26].

4) Shorifa Khatun & Ors. Vs. State of Assam & Anr. reported in 2020 (10) GLT 725.

9. Mr. R. R. Kaushik, learned Additional Public Prosecutor, Assam, on the other Page No.# 6/30

hand, has argued that there is total consistency in the different versions of dying

declarations made by the victim. Since law is well-settled that dying declaration can

be the sole basis of conviction, hence, having regard to the nature of evidence

available on record, the learned trial court has rightly convicted the appellant. In

view of the above, submits Mr. Kaushik, no interference with the impugned judgment

of the trial court leading to the conviction of the appellant is called for in this case.

10. We have considered the submissions made by learned counsel for both the

sides and have also taken note of the fact that the conviction in this case is based on

the dying declarations brought on record by the prosecution side. From a scrutiny of

the evidence available on record, we find that in all the three dying declarations the

victim Monuwara Begum had alleged that her husband i.e. the accused had poured

kerosene on her body and set her ablaze while she was cooking. The learned trial

court has also held that the accused has failed to discharge his burden under section

106 of the Evidence Act by offering plausible explanation in respect of the

occurrence.

11. Law is firmly settled that dying declaration of a victim can be the sole basis of

conviction of the accused if on a careful scrutiny of the same, the court finds the

same to be voluntary, trustworthy and truthful. In order to ascertain as to whether the

learned trial court was justified in convicting the appellant based on the dying

declarations, it would be necessary for us to evaluate the evidence available on

record.

12. As mentioned above, PW-1, Md. Gulbahar Ali, who is the father of the victim, is Page No.# 7/30

the informant in this case. During his deposition before the Court PW-1 has stated that

about two years prior to the incident, he had given his daughter Monuwara away in

marriage to the accused and after their marriage his daughter had started leading

her conjugal life in the house of the accused. PW-1 has also stated that his daughter

was the second wife of the accused and the first wife also used to live in the house of

the accused. His daughter lived peacefully for the first few days of her marriage but

after about six months, one day his daughter came home and said that her husband

had asked her to bring 5/10 thousand rupees from her father. He failed to give his

daughter the money as a result of which, the accused had assaulted her. The

accused and his first wife had asked his daughter to get out of their house or else

they would set her on fire. At around 6/6.30 p.m. on 24.08.2012, having seen fire in the

house of the accused, he, accompanied by co-villagers Musa Sheikh (PW-9) and Ejaj

Uddin (PW-6) had rushed to the house of the accused and saw that his daughter was

lying on the ground. Her whole body got burnt. A girl named Halima (PW-2) had

poured water on his daughter's body. According to PW-1, at that time, his daughter

was able to speak and told him that the accused had set her ablaze. Thereafter, his

nephew gave the information to the Jogighopa Police Station whereafter, police

came and took Monuwara to the Chalantapur PHC. His daughter was then

immediately shifted to Bongaigaon Civil Hospital and she remained there for 13 days

before her death. PW-1 has also stated that he had lodged an ejahar with the Police

Station on the following day and Ext-1 was the said ejahar. PW-1 had proved his

signature in the ejahar as Ext-1(1).

13. During his cross-examination, the PW-1 has stated that his house is two houses Page No.# 8/30

away from the house of the accused and in between their houses the house of Musa

(PW-9) and Sajrul was situated. The Konaru Beel was nearby and they, including the

accused person, used to catch fish in the Beel. At the time of the occurrence he was

present at home. PW-1 has also stated that he did not have his consent to the

marriage of his daughter with the accused and after their marriage, he did not visit

their house. After the occurrence his nephew Habibur had informed the Jogighopa

Police Station before 7.00 p.m. and around 7/7.15 p.m. the police had reached the

place of occurrence, made investigation, seized some articles and put Monuwara in

a push cart and took her along. PW-1 has also clarified that he had not seen the

occurrence but had seen Halima (PW-2) pouring water on his daughter. According to

PW-1, police took his daughter to Jogighopa PHC and his nephew, one of his sons

and his other son-in-law had accompanied them. PW-1 has also confirmed that in the

ejahar it has been mentioned that his daughter was immediately taken to the

Bongaigaon Civil Hospital by the brother of the accused No.1 for treatment and his

name is Moin Uddin.

14. During his re-examination, the PW-1 has stated that his daughter Monuwara

died at Bongaigaon Civil Hospital and a Magistrate had held inquest on her dead

body in presence of witnesses. Ext-9 is the inquest report and Ext-9(1) was his

signature. During cross-examination, PW-1 has, however, stated that he had not put

the date below his signature and he was not able to read the contents of Ext-9

because it was written in English. The inquest report was not read over to him nor did

he know as to who had prepared the inquest report. PW-1 has also stated that he did

not mention the place/location where he had put his signature in the inquest report.

Page No.# 9/30

The Magistrate had asked him to give his signature in the inquest report at the office

of the Sub-Divisional Officer (SDO), Abhayapuri.

15. PW-2, Halima Begum is a neighbour of the informant and she knew the

accused person as well. PW-2 has deposed that in the evening hours of the day of

occurrence, when she had just started to have her dinner, she heard a commotion

outside and came out. Then she heard that a fire had broken out in the house of

Monuwara. She went to the house of the accused and saw that Monuwara was lying

in the courtyard and she had caught fire. Lots of people had gathered there.

Everybody had poured water on Monuwara's body. PW-2 has stated that she too

had poured water on the body of Monuwara. Monuwara was then taken to the

hospital and she died after about 14 days. Her statement was recorded before the

Magistrate at Abhayapuri. In her cross-examination, PW-2 has confirmed that when

she reached the house of the accused some 30/40 persons had gathered there and

she did not know how Monuwara had caught fire. This witness has stated that

Monuwara was cooking food using firewood. PW-2 has also stated that the accused

was a fisherman and at the time of the incident, he was fishing in some lake. The

accused had come running upon hearing the screams. When she reached the place

of occurrence she saw that the whole body of Monuwara had been burnt and she

was not able to speak. This witness has also stated that on the day of occurrence, she

had not seen Gulbahar (PW-1) in the house of the accused.

16. PW-3, Nazrul Haque has deposed that he and the accused used to go for

fishing together. He has stated that on the day of occurrence, at around 7.00 p.m., Page No.# 10/30

while he was fishing at Konaru Beel he had heard a commotion in the house of the

accused, whereupon he came there and saw Monuwara was lying in the courtyard

with burns all over. The people present there had poured water and doused the

flame. Later, he came to know that the accused had set Monuwara on fire. In his

cross-examination, PW-3 has stated that at the time of the occurrence he had seen

the accused fishing in the Konaru Beel.

17. PW-4, Hawajuddin Ali has also deposed in similar lines by saying that on the

day of the occurrence, he had gone to Konaru Beel to catch fish. At around 6.30

p.m. he had heard commotion coming from the house of the accused and

accordingly went there. Upon reaching there, he saw that Monuwara was lying in the

courtyard with burn injury. Later on, he came to know from the informant (PW-1) that

the accused had set Monuwara on fire. During his cross-examination, PW-4 has stated

that fishing was done in the Konaru Beel even during the night time and the accused

also catches fish there. He saw Monuwara lying unconscious in the courtyard but did

not see the accused in his house. This witness has also stated that he was not aware

about any quarrel between Monuwara and the accused. In his cross-examination,

this witness has also admitted that the PW-1 did not tell him that the accused had set

Monuwara on fire. According to PW-4, there was no electricity supply in the village.

18. The fifth witness in this case is Sahidul Islam. The PW-5 has deposed that the

daughter of the informant viz., Monuwara got married to the accused 2/3 years prior

to her death. After the marriage they started their conjugal life but a few days later

he came to know from Monuwara that her husband i.e. the accused used to beat Page No.# 11/30

her demanding dowry. But since the financial condition of PW-1 was not good, he

was unable to give anything to his daughter. At around 7.00 p.m. on the day of

occurrence, hearing commotion coming from the house of the informant and the

accused he first went to the house of the PW-1. There he came to know that

Monuwara was set ablaze after pouring kerosene on her as a result of which, she got

burnt. In the meantime, Monuwara was taken to the hospital in a push cart. He had

met her on the way and asked as to how she had caught fire. Then Monuwara

replied that Sah Alom (accused) had set her on fire after pouring kerosene. This

witness has also stated that Monuwara was taken to the Bongaigaon Civil Hospital

and she died there after 13 days. Later, police seized an empty plastic drum (without

lid), match sticks and earthen lamp vide seizure-list Ext-2. He had put his signature in

the seizure-list and Ext-2(1) was his signature. This witness has also identified the plastic

drum (Mat. Ext-1), match box (Mat. Ext-2) and earthen lamp with wick (Mat. Ext-3) as

well as the pieces of burnt cloth (Mat. Ext-4). During his cross-examination, PW-5 has

stated that when he had gone to Gulbahar's (PW-1) house 2/3 persons were with

him. They were Mokbul Hussain, Motiur Rahman and Matleb Ali. They found PW-1 in his

house and were present there for about an hour. PW-5 has also stated that when

they went to the house of the accused along with the police PW-1 did not go there

with them.

19. PW-6, Ejaj Ali is a neighbour of the accused. He has also deposed that

Monuwara was married with the accused about 2 years prior to the incident. After

their marriage Monuwara and the accused had started leading their conjugal life. He

had heard about the quarrels that had taken place between the accused, his first Page No.# 12/30

wife and Monuwara. This witness has further stated that on the day of the

occurrence, at around 7.00 p.m., hearing commotion, when he came out, he had

seen light emanating from a fire in the house of the accused. He went to the house of

the accused and saw Monuwara in a burnt state, lying on the floor. Lots of people

had gathered there. According to PW-6, Monuwara was able to speak at that time

and on being asked she replied that the accused had set her on fire by pouring

kerosene. Going to the kitchen he saw four dishes with rice on it and also saw a

plastic can and a match box lying nearby. During his cross-examination, this witness

has stated that the accused and Monuwara used to quarrel over domestic issues and

sometimes the accused used to prevent both his wives from fighting amongst them.

In his cross-examination, this witness has also denied the suggestion that since they

had not given their consent to the marriage of Monuwara with the accused, hence,

they have mis-represented the accident to be a murder committed by the accused.

20. PW-7, Dr. D. N. Rahman was posted as the Medical & Health Officer at the

Bongaigaon Civil Hospital on 06.09.2012. The doctor has deposed that on that day at

about 4.00 p.m. he had performed post-mortem examination on the dead body of

Monuwara Khatun, a female aged around 27 years, who was identified by UBC/86

Susanta Sarkar, Md. Gulbahar Ali and Md. Habibur Rahman. According to PW-7, the

victim had suffered 80% burn injuries. The findings of the post-mortem report (Ext-3), as

proved by the PW-7, are as follows :-

"EXTERNAL APPEARANCE :

An average build female dead body of age around 27 years with burn injury with sough over body and charred hair not decomposed, rigor mortis Page No.# 13/30

present.

Burn injury over body (around 80%) with slough present.

CRAMIUM AND SPINAL CANAL :

1. Scalp, skull, vertebrae - Intact and congested.

2. Membrane - Intact and contested.

3. Brain and spinal cord - Intact and congested.

THORAX :

1. Walls, ribs and cartilages - Burn injury with slough seen over anterior and posterior aspect of chest.

2. Pleurae - Intact and contested.

3. Lariynx and trachea - Intact and contested.

Right lung - Intact and contested.

Left lung - Intact and contested.

Pericardium - Intact and contested.

Heart - Intact.

Vessels - Intact.

ABSOMEN :

1. Walls - Burn injury with slough present.

2. Peritoneum - Intact and contested.

3. Mouth, Pharix, Oesophagus - Intact and contested.

4. Stomach and its contents - Intact, no food material, erogions present in Gastric Mucosa.

5. Small intestine and its contents - Intact. Intestinal semi digested food materials.

Page No.# 14/30

6. Large intestine and its contents - Intact with faecal matter.

7. Lever - Intact and contested.

8. Spleen - Intact.

9. Kidneys - Intact.

10. Bladder - Intact.

11. Organs of generation - Burn injury with slough present over external genetelia. Internal organs - Intact.

MUSCLES, BONES AND JOINTS :

Injury, disease or deformity, fracture and dislocation - Nil.

MORE DETAILED DESCRIPTION OF INJURY OR DISEASE :

The percentage of 3rd & 4tj degree Dupuytren described -

Upper limbs - Right - 9%, Left - 9%.

Lower limb (both side) - Right - 18%, Left - 18%.

Face about 5%.

Chest and abdomen (Anterior) - 9%, Posterior - 12%.

Genetelia - 1%.

Total - 81%."

PW-7 has opined that the cause of death of the victim was due to septicemia and

hypovolumic shock due to mixed burn of about 81% which is ante-mortem in nature.

21. Dr. Dayananda Mahato was examined by the prosecution as PW-8. This

witness has deposed that on 24.08.2012, when he was posted at the Chalantapara

Mini PHC as Medical Officer, on that day Monuwara Khatun was brought before him

on police requisition. Upon examination he found that the condition of the patient Page No.# 15/30

was not good. He had noticed 80% burn injuries on the body of the victim and she

had stated before him, in presence of her father, that her husband had poured

kerosene on her body and burnt her. Ext-4 was the report prepared by him and Ext-

4(1) was his signature.

22. During his cross-examination, PW-8 has stated that the patient (Monuwara)

was not admitted in the hospital and it was also not mentioned in his report (Ext-4)

that he had examined the patient on being requisitioned by the police. It has also not

been mentioned in Ext-4 as to who had identified the patient. PW-8 has further stated

that the patient was not removed from the vehicle and he had examined the patient

in the vehicle but it is not mentioned in his report as to when he had examined the

patient. PW-8 has also admitted that below his signature in the report, the date is

shown as "28.09.2012"which was over-written on "28.09" and it was not his hand-

writing. PW-8 has, however, denied the suggestion made by the defence counsel to

the effect that whatever was stated in his advice slip was not the statement of the

victim but was mentioned on being influenced by the police and other interested

persons.

23. PW-9, Musa Sheikh is another co-villager of the accused and he has also

deposed that Monuwara got married to the accused about 2/3 years before the

occurrence. On the day of the occurrence, having heard a hue and cry in the house

of the accused at about 6.30 p.m. he went there and saw that Monuwara was lying

in the courtyard in a burnt condition. PW-1 was also present there. PW-2 had poured

water on Monuwara. Police came little later and took Monuwara to the hospital Page No.# 16/30

where she died 13 days later. This witness has also stated that when he went to the

house of the accused he found him standing there in the courtyard of his house.

24. In his cross-examination, PW-9 has, however, stated that he was in his house

when the incident took place and he had gone to the house of the accused alone

but not with the PW-1. He has stated that it was dark in the night of the incident and

there was no electricity in their village. He remained in the house of the accused till

the arrival of the police. Habibur had called the police. He had neither asked

anything to Monuwara nor did he hear Monuwara saying anything. Immediately after

the incident, Monuwara's brother took her to the hospital. According to PW-9, Konaru

Beel is a vast beel which is about 2 kilometres in breadth and the accused ekes out a

living by catching fish. PW-9 has also stated that he saw the accused present there

and he was crying. Since Monuwara's father did not give consent to the marriage of

his daughter with the accused, the marriage was not solemnised socially. This witness

has, however, denied of having heard anything about dowry demand or assault

made to Monuwara by the accused. Curiously enough, in his cross-examination PW-9

has stated that he and the PW-1 had come together.

25. PW-10, Smt. Roseleen Das was the Executive Magistrate, who had recorded

the dying declaration of the victim (Ext-5). PW-10 had proved her signature in the

dying declaration as Ext-5(1). In her evidence PW-10 has deposed that on 28.08.2012

she was serving as Circle Officer at Bongaigaon. On that day, the Deputy

Commissioner, Bongaigaon had asked her in writing to go to the Bongaigaon Civil

Hospital and record the dying declaration of a girl. Accordingly, she went to the Page No.# 17/30

hospital and a police officer showed her the girl. Two witnesses viz., Dildar Ali (CW-1)

and Jilhaque Ali (CW-2) were present there when the dying declaration was

recorded. According to PW-10, the entire body of the girl was burnt. The girl had said

that her name was Monuwara Khatun and thereafter she started noting down her

dying declaration (Ext-5). In her cross-examination, PW-10 has stated that in the top

portion of Ext-5 it has been mentioned that the statement was recorded under

Section 161 Cr.P.C. This witness has also admitted that Ext-5 does not bear the

signature of the victim nor does it mention as to where the dying declaration was

recorded and at what point of time nor does it indicate as to under whose instruction

the dying declaration was recorded. Ext-5 does not also mention as to under which

doctor the victim Monuwara was undergoing treatment. PW-10 has also admitted

that the dying declaration was not recorded in presence of any doctor, nurse or

employee of the hospital and she did not obtain the signature of any person on Ext-5

nor did she ask the doctor as to whether the burn injury of Monuwara was

"septicaemia" or "toxaemia". She has also confirmed that Ext-5 does not mention as

to whether the patient was able to speak at the time of recording Ext-5 and there is

also no fitness certificate from the doctor. The case number and the GD Entry number

is also not mentioned in Ext-5 and there is no endorsement of the thumb impression of

the two witnesses. She has stated that the police had written the names and address

of the witnesses but the name of the police officer has not been mentioned in Ext-5.

26. PW-11, Sri Ramen Talukdar was posted at the Jogighopa Police Station on

24.08.2012. PW-11 has deposed that at about 7.15 p.m. on that day, a person called

Gulbahar Ali (PW-1) had informed the Officer-in-Charge of the Police Station over Page No.# 18/30

phone that his son-in-law Sah Alom had poured kerosene on his daughter Monuwara

Khatun (wife of Sah Alom) while she was cooking food and set her on fire. On

receiving the information, the O/C had made G.D. Entry No.769 dated 24.08.2012

(Ext-6) and thereafter, sent him to the place of occurrence. Taking along with him

the other staff of the Police Station, he immediately went to the place of occurrence

i.e. the house of the accused. On reaching there he heard that Monuwara had

already been taken to Chalantapara Hospital. Having found Gulbahar (PW-1)

present there he questioned him. After inspecting the place of occurrence and after

questioning other witnesses he had seized one liter while plastic drum with cork,

match box, earthen lamp and pieces of burnt saree from the place of occurrence

vide seizure-list Ext-2, drew sketch map Ext-7. PW-11 has further stated that he did not

find the accused in the house. Thereafter, he had visited Chalantapara Hospital and

upon finding the injured there, he had questioned her. He had found her entire body

was burnt. On being asked, the victim had told him that when she was in the kitchen,

her husband had poured kerosene on her and set her on fire. Since the condition of

the injured was not good he had made a request to the doctor to record her dying

declaration. Later on, the injured was referred to Bongaigaon Civil Hospital and the

Executive Magistrate had recorded her dying declaration. Monuwara Khatun had

died 7/8 days thereafter. The Executive Magistrate had held inquest on the dead

body. On 25.08.2012 PW-1 Gulbahar Ali had lodged a formal ejahar. The accused

was arrested and committed to the court. After collecting the post-mortem report

and on completion of investigation he had submitted charge-sheet (Ext-8) against

the accused.

Page No.# 19/30

27. During his cross-examination, PW-11 has admitted that he had not submitted

the extract of GDE No.769 along with the charge-sheet and Ext-6 is also a certified

copy wherein no date appears. The I.O. has admitted that correction fluid had been

applied in Ext-6 to rectify the word "Dodhhora". On 24.08.2012 he had made the

request for recording the dying declaration of the deceased but on the date of

recording his evidence he had not seen the copy of the requisition in the court.

During investigation he had collected copy of the dying declaration from the

Magistrate. The I.O. has also admitted during his cross-examination that the "G.D.

Entry" and the "Date" had been re-written by applying correction fluid in Ext-7 and

the figure "24"appearing below his signature appears to be over-written. He has

admitted that correction fluid had been applied on Ext-2 and Ext-4. The I.O. has also

stated that the victim Monuwara did not tell him as to under what source of light she

could recognise her husband. According to PW-11, Monuwara was facing difficulty

while speaking but she could tell him about the incident. The I.O. has also admitted

that he did not take Monuwara to Chalantapara Hospital or to the Bongaigaon Civil

Hospital and that he was not present at the Bongaigaon Civil Hospital at the time of

recording the dying declaration. The I.O. (PW-11) has also confirmed that he did not

identify Monuwara before the Executive Magistrate (PW-10) nor did he make any

requisition to the Magistrate to record the dying declaration. Further, the PW-11 has

also stated that he did not seize any cooking material such as fire-wood, oven,

utensils etc.

28. CW-1, Sri Dildar Ali was examined as a court witness and he has deposed

before the Court that he had come to the Bongaigaon Civil Hospital since his son Page No.# 20/30

had met with an accident and was admitted there. On that day, about 1 ½ years

back, he had seen accused Sah Alom in the Bongaigaon Civil Hospital. Police had

shown him the wife of the accused in the hospital. CW-1 has stated that the

Magistrate took her statement and he had put his thumb impression therein.

However, during his cross-examination, CW-1 has stated that police had called him

and obtained his thumb impression on a paper. He did not know whether the wife of

the accused was able to speak or not nor did he see any Magistrate in the hospital or

for that matter any Magistrate writing anything.

29. CW-2, Dilhaque Ali is another court witness and a co-villager of the accused as

well as the complainant. CW-2 has deposed that Monuwara got married to the

accused and after their marriage, they led their conjugal life. The incident had

occurred about 1 ½ years back and on the date of occurrence, at about 6.00 p.m.,

along with Musa (PW-9), Hawajuddin (PW-4) and Sah Alom (accused) he had gone

to Konara Beel for fishing. There they received the information that Monuwara had

caught fire and was lying in the house. Monuwara was taken to the hospital and later

on she made her statement before the Magistrate. He had put his signature therein

as a witness. During his cross-examination CW-2 has stated that on the day of the

occurrence, upon hearing a hue and cry while they were in the beel catching fish,

they came to the village and found Monuwara lying in the courtyard in a burnt

condition. He had heard that fire had caught Monuwar while she was boiling rice.

CW-2 has also stated that accused Sah Alam also came running with them. Then they

put Monuwara on a "thela"(hand cart) and took her to the hospital. Monuwara's

body was burnt and she was not able to speak. Her tongue had also got burnt. He Page No.# 21/30

had stayed in the hospital for two days. The police had obtained his signature. He

had put his thumb impression but no woman took his signature.

30. CW-3, Habibur Rahman is the nephew of the informant. It appears from the

materials on record that he was serving as a Homeguard under the Jogighopa Police

Station at the time of the incident. From the evidence on record it further appears

that he is the one who had initially informed the police and it was on the basis of his

information, the police had reached the place of occurrence within minutes of the

incident. CW-3 has stated that following a quarrel between the accused and

Monuwara, the former had poured kerosene upon her and set her on fire. According

to CW-3, Monuwara was alive when she was taken to the hospital and she was also

able to speak. Monuwara herself was crying out that her husband Sah Alom had

poured kerosene on her and set her on fire. CW-3 is also a inquest witness and he had

proved his signature Ext-9(2) in the inquest report. During his cross-examination, CW-3

has admitted that the complainant Gulbahar was his uncle and Monuwara was his

cousin. At the time of the incident he was at the Jogighopa Police Station. He did not

see the incident. He had verbally informed the O/C of Jogighopa P.S. to come to the

house of his uncle and at around 7.30 p.m. the O/C Mr. Talukdar had made a G.D.

Entry and came to the place of occurrence with the police personnel. Mr. Talukdar

was the O/C of Jogighopa Police Station.

31. From the evidence available on record it appears that the prosecution side

had relied upon three different dying declarations of the victim viz., (1) the oral dying

declaration made before the PWs-1, 5 and 6, (2) the dying declaration recorded in Page No.# 22/30

Ext-4 by the doctor (PW-8) on duty in the Chalantapara Mini PHC and (3) the dying

declaration recorded by Executive Magistrate (PW-10) which is Ext-5. There is no

wrangle at the bar that the conviction of the accused person in this case is entirely

based on the aforesaid dying declarations and there is no other evidence available

so as to connect the accused to the occurrence.

32. In so far as the oral dying declaration made before the PWs-1, 5 and 6 is

concerned, we have noticed that in his deposition PW-1 has stated that on the day

of the incident, immediately after the occurrence he, accompanied by PWs-9 and 6,

had gone to the house of the accused and found his daughter lying there in a burnt

condition. According to the PW-1, the victim was in a condition to speak and she had

told him that the accused had poured kerosene on her and set her ablaze. However,

in the ejahar Ext-1 lodged by the informant on the following day of the incident, there

is no mention about the dying declaration. Moreover, PW-9 in his cross-examination

has stated that he had gone to the place of occurrence alone but not with the PW-1.

Likewise, PW-5 has also deposed that when they went to the house of the accused,

PW-1 did not go with them. We also find from the testimony of PW-2 that she had also

stated during her cross-examination that she did not see the PW-1 in the house of the

accused. There is sufficient evidence available on record to establish that the PW-2

was one of the few persons who had reached to the place of occurrence

immediately after the incident and had poured water on the victim. But, as noted

above, she did not see the PW-1 in the place of occurrence. Therefore, it is doubtful

as to whether the PW-1 had at all gone to the place of occurrence immediately after

the occurrence as claimed by him. If that be so, it is equally doubtful as to whether Page No.# 23/30

the victim had at all made any dying declaration in presence of the PW-1.

33. PW-5 has stated that on the day of the incident, upon hearing the commotion

he first went to the house of the PW-1 and there he came to know that victim

Monuwara was set ablaze by pouring kerosene upon her. In the meantime,

Monuwara was taken to the hospital in a push cart and he had met her on the way

and asked as to how she had caught fire. It was then that Monuwara had replied

that the accused had set her ablaze. According to the PW-5, three other persons

were with him at that time. However, none of the other witnesses had stated that

they had seen the victim speaking to the PW-5. PW-1 also did not say that PW-5 had

met the victim while she was being taken to the hospital in a push cart.

34. PW-6 has stated that accused Sah Alom and Monuwara used to quarrel over

domestic issues but he has admitted that he had not stated before the police what

he had said before the court today. According to PW-6, victim Monuwara was able

to speak and on being asked, she replied that the accused had set her on fire by

pouring kerosene. PWQ-2 and CW-2, however, have deposed that the victim was not

in a position to speak and her tongue had also burnt. Although there was a gathering

of a large number of persons in the place of occurrence, yet, none has seen the

victim speak to the PWS-1, 5 and 6. Even the PWs-1, 5 and 6 have also not

corroborated the fact that the victim had in fact spoken to them soon after the

incident.

35. From a minute scrutiny of the testimonies of PWS-1, 5 and 6, viewed in the light

of the F.I.R. (Ext-1), we find the claim of these witnesses of having heard the victim Page No.# 24/30

mention the name of the accused as the perpetrator of the crime and to have set

her ablaze by pouring kerosene is very doubtful and hence, does not inspire the

confidence of the court.

36. Ext-4 is the other dying declaration recorded by the doctor (PW-8). As per Ext-

4, the victim had told PW-8 in presence of her father (PW-1) that her husband had

poured kerosene on her body and burnt her. However, PW-1 i.e. the father of the

victim did not say so in his evidence nor did he mention in the ejahar that the victim

was taken to the Chalantapara Mini PHC. Moreover, there is no clarity as to on

whose request PW-8 had examined the victim and furnished his report Ext-4. As would

be apparent from the evidence of PW-8 there was tampering and over-writing in the

date mentioned below his signature in Ext-8. Ext-4 also did not record the statement

of the victim in her exact words nor did the doctor (PW-8) certify that the victim was in

a position to speak and was able to make oral dying declaration at that time.

Therefore, Ext-4 is not found to be a reliable piece of evidence for convicting the

accused.

37. In so far as the Ext-5 is concerned, the same was recorded by Executive

Magistrate (PW-10). The contents of Ext-5 is being extracted herein below for ready

reference :-

"My name and address are as mentioned above. I am 23 years old. I have been leading my conjugal life in my husband's house. I got married about 3 (three) years ago. I don't have any children till date. Few days ago I had a quarrel with my co-wife, i.e. the other wife of my husband as well as with my husband. My husband kept a dao and threatened me that he would either Page No.# 25/30

cut me or set me on fire. Around 6 pm on 24/8/12, while I was cooking food, my husband set fire to me after pouring kerosene over me. Later, hearing my cries, neighbours came and put off the fire by pouring water. Thereafter, my family members brought me to Bongaigaon Civil Hospital for treatment. That's all I have to say."

38. In Ext-5 CWs-1 and 2 have been shown as witnesses. However, as mentioned

herein above, none of the two witnesses had either seen or heard PW-10 record the

statement of the victim. The CW-2 has in fact stated that his signature was obtained

in a blank paper. There is no clarity as to who had requisitioned or authorised the PW-

10 to record the dying declaration of the victim. There is also no explanation as to

why the same was not recorded in presence of a doctor and/or the I.O. and after

ascertaining her fitness to record such statement. The circumstances under which

and the manner in which Ext-5 was recorded raises a genuine doubt as to the

bonafide of the exercise, more so in the backdrop of the allegation levelled by the

appellant that the dying declaration was managed by the Investigating Officer at

the behest of CW-3, who was an employee serving under the police department at

the relevant point of time. Besides the above, we find that the contents of Ext-5 is very

detailed and orderly and is also too accurate to be stated by a victim with 80% burn

injury having serious burn injury even on her tongue. There is, therefore, considerable

doubt as to the credibility of Ext-5 stated to have been recorded by the PW-10.

39. It will also be significant to note herein that it has come out from the evidence

of prosecution witness PW-2 that at the time of the occurrence the accused was

catching fish in the Konaru beel. The aforesaid evidence finds due corroboration from

the testimony of CW-2 who had also mentioned that the accused was catching fish Page No.# 26/30

along with himself and PWs-4 and 9 at the Konaru Beel and soon after receiving the

information about his wife catching fire, they returned home together. PW-3 has also

stated in his cross-examination he had seen the accused catching fish at the Konaru

beel at the time of the occurrence. PWs-2 and 3 have not been declared as a

hostile witness by the prosecution. If that be so, in view of the decision of the Supreme

Court rendered in the case of Raja Ram vs. State of Rajasthan reported in (2005) 5

SCC 272 the evidence of PWs-2 & 3 would be binding on the prosecution more

particularly, when relied upon by the defence side. Viewed from that angle, we find

that there is evidence on record to establish that the accused person was not in his

house when the incident took place. Therefore, the question of he setting the victim

on fire by pouring kerosene cannot arise.

40. It is also to be noted herein that from the testimony of PW-2 and other

prosecution witnesses it has come out that hearing commotion about the fire

incident, a large number of villagers had gathered in the place of occurrence and

doused the fire. But none of the persons present there have mentioned about smell of

kerosene emanating either from the body of the victim or her wearing apparels .

Even the I.O. had not sent the pieces of burnt cloth of the victim for FSL test so as to

trace out kerosene in her apparel. The kerosene gallon seized by the I.O. (Mat. Ext-1)

has also not been connected with the occurrence. Mere seizure of kerosene gallon,

in our view, would be of no moment in this case since it has come out from the

evidence lead by the prosecution side that there was no electricity in the village

where the accused and the victim lived in and the cooking used to be conducted

with the help of firewood. Under the circumstances, presence of a kerosene gallon in Page No.# 27/30

the kitchen has to be held to be a very normal affair.

41. PW-9 has stated that he has seen the accused crying after the occurrence.

Had the accused set the victim on fire then it would be utterly absurd to presume that

he would still be present in the place of occurrence to cry over the incident.

42. Law is settled that oral dying declaration is an important piece of evidence on

which conviction can be based on. However, what is to be borne in mind is that oral

dying declaration must be free from all infirmities and must appear to be natural,

voluntary and truthful. The Court must also try to look for corroboration of the version

stated in the oral dying declaration so as to satisfy itself that the same is free from any

embellishments or infirmity. In Arun Bhanudas Pawar vs. State of Maharashtra

reported in (2008) 11 SCC 232 the Supreme Court has observed that oral dying

declaration made by the deceased ought to be treated with care and caution since

the maker of the statement cannot be subjected to any cross-examination.

43. In State of Rajasthan Vs. Lichman & another reported in (2014) 12 SCC 670 the

Supreme Court has held that oral dying declaration can form the basis of conviction

if the deponent is found to be in a fit condition to make the declaration and if it is

found to be truthful. The courts must, as a matter of prudence, look for corroboration

of oral dying declaration.

44. In Waikhom Yaima Singh Vs. State of Manipur reported in (2012) 1 SCC (Cri)

788 the Hon'ble Supreme Court has emphasised that it would be the burden of the

prosecution to prove that the dying declaration was wholly reliable, voluntary and

truthful and that the maker thereof was in a fit medical condition to make it.

Page No.# 28/30

45. Coming to the facts of this case, as noticed above, we find that there are

serious lacunae in recording Ext-5 to such an extent that it is doubtful as to whether

the PW-10 had at all recorded the statement of the victim Monuwara. In so far as the

PW-8 is concerned, there also, we find that there are serious lapses raising a question

mark as to the credibility of Ext-4. PW-1 has also not supported the version of PW-8.

That apart, no other witness has deposed before the court that the victim had in fact

made oral dying declaration before the PW-8 in the Chalantapara Mini PHC.

46. In so far as the evidence of PWs-1, 5 and 6 is concerned, for the reasons stated

here-in before, their testimonies are found to be full of material contradiction.

Moreover, in the FIR lodged by the PW-1 there is no whisper of dying declaration of

the victim. Hence, the version of the PWs 1,5 and 6 in so far as the dying declaration is

concerned, is found to be wholly untrustworthy.

47. In the above context it will be pertinent to note herein that the victim had

evidently received treatment in the Bongaigaon Civil Hospital for about 13 days

before she succumbed to her burn injuries. However, during her stay at the hospital

no other person had ever seen or heard the victim speaking. On the contrary, from

the testimonies of PWs-2 and 3 it has come out that the victim was not in a position to

speak after the incident. There is also no explanation as to why the dying declaration

could not be recorded by the PW-10 in presence of a doctor or any other hospital

staff. There is an element of mystery surrounding the circumstances under which EXT-

5 was recorded. Under the circumstances, in the absence of a doctor's certificate

establishing the fact that the victim was fit to make a dying declaration, we are of Page No.# 29/30

the view that it would be highly unsafe to convict the accused solely based on dying

declaration, particularly when there is cogent evidence on record to show that the

accused was not present in the place of occurence when the incident took place.

48. The learned trial court has also observed that the accused had failed to

discharge his burden under section 106 of the Evidence Act. However, it is settled law

that burden under section 106 of the Evidence Act would be cast upon the accused

only if the prosecution succeeds in prima facie establishing the charge by leading

cogent evidence. Having regard to the evidence brought on record, we are of the

opinion that the prosecution has failed to prove that the accused was at the place

of occurrence when the incident took place. On the contrary, the evidence on

record shows that at the time of the incident the accused was not present in his

house but was catching fish in the Konaru beel. In that view of the matter, there was

no burden upon the accused under section 106 of the Evidence Act to offer any

explanation in this case as to the circumstances under which the occurrence took

place.

49. We may also mention herein that the co-wife of the accused Musstt. Johura

Begum and one Musstt. Afruja Begum had apparently stated before the police that

they had heard the victim say that she was set ablaze by pouring kerosene on her

person. Noticing that those two witnesses were not examined as witnesses, this court

had, by order dated 21.01.2020, directed the learned trial court to record additional

evidence in the form of testimony of those two witnesses. Accordingly, evidence of

Musstt. Johura Begum and Musstt. Afruja Begum were recorded by the court as CWs-

Page No.# 30/30

4 and 5 and the records were transmitted back to this court. A perusal of the

testimonies of CWs 4 and 5 goes to show that these two witnesses also did not support

the prosecution case. However, since their evidence is found to be in total

contradiction to their statements made before the police, we do not find their

evidence to be reliable at all and hold that their evidence is liable to be discarded.

50. For the reasons stated herein above, we are of the view that the prosecution

has failed to prove the charge under Section 302 IPC brought against the accused

beyond reasonable doubt. On the contrary, there is genuine doubt in this case as

regards the circumstances under which the victim had caught fire. The possibility that

the victim might have accidentally caught fire while working in the kitchen cannot be

altogether ruled out.

51. In view of the foregoing discussions, the impugned judgment and order dated

22.03.2018 is found to be unsustainable in the eye of law. The same is accordingly set

aside. The appellant stands acquitted.

We are informed that the accused/appellant is presently in the custody. We,

therefore, direct that the appellant be forthwith released from custody if his custodial

detention is not found to be necessary in connection with any other proceeding.

Send back the LCR.

                               JUDGE                               JUDGE



Comparing Assistant