Tripura High Court
Mubarak Sarkar vs The State Of Tripura on 24 March, 2021
Page 1 of 25
HIGH COURT OF TRIPURA
A_G_A_R_T_A_L_A
Crl. A(J). No. 03 of 2019
Mubarak Sarkar, S/o: Late Munaf Miah Sarkar of Samatal
Palli, Amarpur, P.S. Birganj, District: Gomati Tripura.
.....Appellant
-V E R S U S-
The State of Tripura, represented by the Secretary, Home
Department, Government of Tripura.
..... Respondent.
B_E_F_O_R_E
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR. JUSTICE ARINDAM LODH
For Appellant(s) : Mr. Raju Datta, Advocate.
For Respondent(s) : Mr. S. Debnath, Addl. P.P.
Date of hearing : 17.03.2021
Date of delivery of
judgment and order : 24.03.2021
Whether fit for reporting : YES
JUDGMENT & ORDER
[Arindam Lodh, J]
This appeal is directed against the judgment and order of
conviction and sentence dated 04.12.2018, passed by the learned Addl.
Sessions Judge, Gomati Judicial District, Udaipur, in case No. S.T.
08(GT/A) of 2016 (T-1), whereby and whereunder, the appellant has
been convicted and sentenced to suffer Rigorous Imprisonment [RI, for
short] for life along with fine of Rs.10,000/-[Rupees ten thousand] for
the offence committed under Section-302 of IPC and further to suffer
RI for 5 years for the offence committed under Section-455 of IPC
along with fine of Rs.5,000/-[Rupees five thousand] with default
stipulations.
[2] Briefly stated, one Habil Miah lodged a written complaint
to the Officer-in-charge of Birganj Police Station, inter alia, stating
that on 31.07.2015 at about 9.00 am when Hasina Begam was alone
and watching TV, suddenly, Mubarak Sarkar, the accused-appellant
herein, came out below the cot and gagged her mouth with his hands
and put kerosene oil on her person setting her ablaze. She was almost
completely burnt. Hearing hue and cry, her sister Dilwara Begam with
her husband Khalil Miah had rushed to the spot. They took the victim
to Amarpur Hospital wherefrom she was referred to Gomati Hospital
and on 31.07.2015 at about 4.30 pm she was again referred to GBP
Hospital. The victim was struggling with her life. The accused set
Hasina Begam on fire with the intention to kill her.
[3] Pursuant to this complaint, FIR No. 054 of 2015 was
registered under Sections-455/326/307 of IPC. Being endorsed, Sub-
inspector Bimalendu Saha started investigation. However, on
04.08.2015 the victim succumbed to her injuries and the Investigating
Officer [I.O., for short] made a prayer for adding Section-302 of IPC
which was allowed. Two dying declarations were recorded by two
doctors during the treatment of the victim- firstly, on 31.07.2015 at
about 2.30 pm at District Hospital, Gomati, by the Medical Officer, Dr.
Umakanta Acharjee (PW-18) and secondly, on the same day at about
8.05 pm at AGMC & GBP Hospital, by the Deputy Collector and
Magistrate, Agartala, namely, Takshiray Debbarma (PW-15) in
presence of Dr. Goutam Debbarma, who certified that the victim was
mentally fit to give statements.
[4] After completion of investigation, charge-sheet was
submitted against the accused-appellant under Sections-455/302 of
IPC. The case was committed to the Court of Learned Sessions Judge,
Udaipur, Gomati District and the same was transferred to the Court of
Learned Addl. Sessions Judge to conduct the trial. On receipt of the
record, charges were framed against the accused-appellant under
Sections-455/302 of IPC and the contents were read over, to which he
pleaded not guilty and claimed to be tried.
[5] To substantiate the charges, prosecution had examined as
many as 22 numbers of witnesses and at the closer of recording
evidences by the prosecution side, the accused-appellant was examined
under Section-313 of Cr. P.C. and when he was being noticed about all
the incriminating evidences and mitigating circumstances as surfaced
from the evidence and materials on record, he denied all the allegations
leveled against him as false. The accused-appellant also adduced
9(nine) witnesses in support of his defence case.
[6] Arguments advanced by the learned counsel appearing for
the parties were heard, and the learned Addl. Sessions Judge after
considering the prosecution and defence evidences returned a finding
of guilt against the accused and convicted & sentenced him as afore-
stated. This judgment and conviction has been assailed by the convict-
appellant by way of presenting the instant appeal before us.
[7] We have heard Mr. Raju Datta, learned counsel appearing
for the accused-appellant. Also heard Mr. S. Debnath, learned Addl.
P.P. appearing for the State-respondent.
[8] Mr. Datta, learned counsel appearing on behalf of the
accused-appellant would contend that there is no cogent evidence
about appellant's involvement in the crime in question. The reliability
of evidence let in by the prosecution has also been assailed in this
appeal apart from other contentions concerning the surrounding facts,
especially the evidences as elicited from the defence witnesses. Mr.
Datta, finds fault in the two dying declarations, recorded by two
doctors. According to him, there are apparent contradictions being one
is hit by another one.
[9] Mr. Datta, learned counsel has heavily relied upon the
defence witnesses where they have stated that the accused-appellant
being a garbage cleaner working as DRW under Amarpur Nagar
Panchayet, on the date and time of the incident was all along with
other garbage cleaners and thus, had taken the plea of alibi.
[10] On the other hand, Mr. S. Debnath, learned Addl. P.P.
appearing for the State-respondent has strongly relied upon the
findings returned by the learned Addl. Sessions Judge in convicting the
accused-appellant. He submitted that the prosecution had been able to
prove the case beyond reasonable doubt. Mr. Debnath, learned Addl.
P.P. drawing our attention to the two dying declarations (Exbt.3 & 6)
tried to persuade this Court that the bone of contention of the deceased
is consistent in both the dying declarations that it was none but the
accused-appellant (Mubarak Sarkar) who set her ablaze.
[11] Relying upon the evidence of the prosecution witnesses,
the learned Addl. P.P. quite candidly submitted that immediately after
the incident the victim disclosed that it was the accused-appellant who
set her fire on her person pouring kerosene oil by lighting a
matchstick.
[12] Having heard the learned counsel appearing for the
parties, we have made a thorough survey of the evidence and materials
on record as surfaced from the prosecution as well as the defence
witnesses. We have also kept in mind the rival submissions of the
learned counsel appearing on behalf of the accused-appellant as well as
the State-respondent.
[13] At the outset, we should mention that as per prayer made
by the accused-appellant, this Court allowed the accused to bring the
Attendance Register maintained by the Amarpur Municipal Council
and this Attendance Register has been brought on record by DW-
Anjoy Ghosh and the said Attendance Register was marked as Exbt.A
wherein, signature of the accused-appellant was identified and marked
as Exbt. A/1.
[14] Now, coming to the evidences led by the prosecution
witnesses, PW-1, Habil Miah, deposed that the deceased Hasina
Begam was his sister-in-law (Wife's sister) who died out of burn
injuries. Mubarak Sarkar, the accused-appellant set her on fire. On the
fateful day of the incident, he went to the house of his father-in-law,
when he received information about the incident from the neighbours
of Hasina Begam. On the following morning, he went to Agartala GBP
hospital where Hasina Begam told him that she had applied for a loan
and Mubarak Sarkar stood as surety and for that purpose, he charged
Rs. 20,000/- from her. Later on, she asked Mubarak Sarkar to refund
the said amount, which he denied. On that issue, a dispute arose
between the deceased and the accused-appellant. She further told that
on the day of incident at about 12.00 hours she went inside her room,
started watching TV lying on the cot, before that the accused-appellant
hide himself below the cot and suddenly, he came out and started
scuffling with her. He tied her to the cot by means of saree and
thereafter, he doused kerosene oil upon her and set her on fire by
lighting a matchstick. PW-1 further stated that after his return from
GBP hospital, Agartala, he lodged a written complaint. He confirmed
the said complaint and his signature thereon, (Exbt. 1 & Exbt. 1/1)
respectively. He further deposed that Hasina Begam succumbed to her
injuries on the third day of the incident. She had two children who
were at school at the relevant point of time.
During his cross-examination, the defence had shown his
statements made in the written complaint where he stated that on
getting the information he went to the house of his father-in-law and
that he was informed by the local residents that Mubarak Sarkar had
set Hasina Begam on fire, was found absent. Likewise, some
statements which he made in his chief-examination were not found in
the FIR viz. that his visit to GBP hospital and the deceased Hasina
Begam told him that she applied for a loan and Mubarak Sarkar
demanded Rs. 20,000/- for that purpose and that Mubarak Sarkar was
asked to return the said amount and that while watching TV there was
scuffling with the accused-appellant when the deceased was tied with
the cot and thereafter, doused kerosene oil.
[15] PW-2 Dilwara Begum, is the sister of Hasina Begum, the
deceased. She deposed that at about 1200 hours on that fateful day she
went to the house of Hasina Begum to take bath. Suddenly, she heard
cries of her sister shouting "bachau bachau" (save save). She rushed to
the spot and found her sister in flames coming out from the room and
behind her accused-appellant also was coming out of the hut where
Hasina used to stay. At first, she poured water on her, and at the same
time she asked as to how it happened to her. Hasina Begum told that it
was Mubarak Sarkar who had set her on fire. She further stated that
there was dispute regarding refund of Rs. 20,000/- which was paid by
the deceased Hasina Begum to the accused for taking loan from the
bank. PW-2 further deposed that at the relevant point of time, some of
their neighbours, Amena Bibi, etc., had arrived at the spot and his
sister was shifted to the hospital, wherefrom she was referred to
Tepania District Hospital, Gomati and therefrom she was referred to
GBP Hospital, Agartala. She further deposed that Amena Bibi, Harun
Miah and she herself accompanied Hasina Begum to the GBP hospital
where Hasina Begum succumbed to her injuries on the third day of the
incident. She further deposed that as there was no water supply in her
house she used to take bath in her sister's house and while they were
coming to the hospital they took Harun Miah from a shop at Kathal
Bagan.
Being confronted with the cross-examination, PW-2
stated that she returned to her home from GBP Hospital on the next
day of her admission and since then, she was at her home during the
said period of four days and thereafter, Darogababu did not interrogate
her. She further stated that between her house and the house of Hasina
Begum there were 4 to 5 houses. During her journey to hospital she did
not ask anything to Hasina Begum and she talked with Hasina Begum
at Amarpur Hospital for the first time. She denied that she deposed
falsely against the accused-appellant.
On her re-examination by the prosecution, she deposed
that at the time of the incident when she found her sister flamed
outside the room and while she was pouring water on her, she asked
her how it had happened to her. On her query, Hasina Begum replied
that the accused-appellant set her on fire by pouring kerosene oil. On
her further cross-examination by the defence, she stated that she did
not state before the Magistrate or the I.O. that at the time when she
found her sister in flames outside the room, her deceased sister
disclosed that it was Mubarak Sarkar who set her on fire by pouring
kerosene oil.
[16] PW-3, Amena Bibi, was a neighbour of Hasina Begum.
She deposed that on the day of incident she reached her house hearing
hue and cry and saw Hasina Begum with burn injuries. Thereafter, she
along with Dilwara and Harun Miah, husband of the victim who was
lifted from Kathalbagan, shifted Hasina Begum to Amarpur hospital
and thereafter, to the District Hospital, Tepania, Udaipur, wherefrom
she was referred to GBP Hospital, Agartala. She deposed that during
shifting Hasina Begum to the hospital by a vehicle she asked Hasina
Begum about the incident when she told her that Mubarak Sarkar set
her on fire with regard to obtaining of a loan. In her cross-examination
she stated that Darogababu did not interrogate her in connection with
the case. She denied that the statements made in her chief-examination
were fabricated.
[17] PW-4, Shri Sukanta Debnath was also a neighbour. Both
Hasina Begum and Mubarak Sarkar were known to him. On the day of
incident he was at his home. He heard hue and cry from the house of
Hasina Begum. He rushed to the spot and saw Hasina Begum with
burn injuries. On being asked as to how it happened, Hasina replied
that Mubarak Sarkar had set her on fire. Thereafter, she was shifted to
Amarpur Hospital. The defence could not shake his evidence which he
made in his chief examination.
[18] PW-5 Maidar Ali, being a neighbour deposed that both
Hasina Begum and Mubarak Sarkar were known to him. On the day of
incident at about 1200 hours he heard hue and cry of many people
from the house of Hasina Begum. He rushed to the house and found
Hasina Begum with burn injuries and on being asked she told that
Mubarak Sarkar had set her on fire.
In his cross-examination he stated that he did not
accompany Hasina Begum on her way to hospital. He denied the
suggestion put forth by the defence that he did not rush to the place of
occurrence and found Hasina Begum with burn injuries and that
Hasina Begum told that Mubarak Sarkar had set her on fire.
[19] PW-6, Shri Bipanna Mani Jamatia was posted as staff
nurse in the Tepania District Hospital, Udaipur on 31.07.2015. He
deposed that during that time Dr. Umakanta Acharjee was posted
there. On that date, a Muslim female patient was admitted in the
District Hospital, Tepania being a referred patient from Amarpur Sub-
divisional Hospital with burn injuries on her body. Dr. Umakanta
Acharjee recorded the statement of the said patient in his presence,
wherein, she stated that Mubarak Sarkar had set her on fire by pouring
kerosene oil and set her on fire with a matchstick out of a dispute
relating to refund of Rs. 20,000/- to her. He put his signature on the
said statement recorded in his presence. He identified the dying
declaration which was recorded in a prescribed form (Exbt.3). He
further deposed that at the time of recording of the statement of the
patient, another staff nurse named as Smti. Padmini Jamatia was also
present there. During cross-examination, he stated that she did not
make any statement regarding the fact of returning of Rs.20,000/- and
that the accused-appellant slept with her. He further stated that he did
not state to the I.O. that at the time of recording the statement of the
victim, Smt. Padmini Jamatia, another staff nurse was also present. He
denied the suggestion put forth to him that he put his signature in the
said dying declaration form on subsequent time and that too being
asked by the doctor.
[20] PW-7, Shri Ajoy Ghosh deposed that the accused-
appellant Mubarak Sarkar was known to him being a staff of same
establishment. In his cross-examination he stated that one Attendance
Register was being maintained in their establishment wherein, the time
of arrival and departure of the staffs concerned were also mentioned.
[21] PW-8, Ramjan Miah is the scribe who wrote the ejahar.
He deposed that on being satisfied with the contents of the ejahar,
Habil Miah put his signature. He identified his signature on the said
ejahar (Exbt. 1/2). In his cross-examination he stated that he did not
issue any certificate in respect of the fact that the contents of the
written complaint were read over to Habil Miah.
[22] PW-9, Smti. Sima Das (Saha) being a neighbour of
Hasina Begum had rushed to the spot and saw Hasina with burn
injuries. She was taken to hospital by some persons in a vehicle. On
the following day police came and seized the wearing apparels of the
victim by preparing seizure list. She put her signature in the said
seizure list marked as (Exbt.4) and the wearing apparels on being
identified and marked as (Exbt. MO/1 series). In her cross-
examination, she stated that she did not state to the I.O. that she heard
from the persons gathered at the place of occurrence that Mubarak
Sarkar had set Hasina on fire.
[23] PW-10, Shri Mithun Das was a witness to the seizure of
wearing apparels and the kerosene oil drum.
[24] PW-11, WASI Hemlata Debbarma, who prepared the
inquest report in presence of the witnesses.
[25] PW-12, Md. Muhar Ali is of no importance.
[26] PW-13, Md. Khalil Miah, being a neighbour of Hasina
Begum (deceased), deposed that on the day of incident at about
12/12.30 pm he along with his wife were taking bath at water tank
situated adjacent to the house of Hasina Bagum. They heard a cry
about fire incident. They rushed to the spot and found Hasina Begum
running engulfed with fire in her courtyard. He immediately poured
water on her through the bucket which he was having for bathing
purpose. Thereafter, many other persons reached there. PW-13 further
deposed that when he along with other persons were taking her to the
vehicle for shifting her to the hospital, at that time, on his enquiry as to
how the incident had happened, Hasina told that Mubarak Sarkar had
set her on fire. In his cross-examination, he stated that he was not
interrogated by the I.O. However, he denied all the suggestions put
forth by the defence that his statements in chief-examination were
fabricated.
[27] PW-14, Md. Abdul Hossain, being the driver of one
Maruti Alto being No. 639 has deposed that on 31.07.2015 he returned
to his home by his vehicle to take lunch at about 12/12.30 pm. At that
time, he heard hue and cry in the house of Harun Miah and went to the
spot and found that few persons were pouring water over Hasina
Begum who was lying with burn injuries. People was asking him to
bring his vehicle to take Hasina to the hospital and accordingly, he
brought his vehicle immediately and took Hasina Begum to Amarpur
Hospital, but, she was referred to Tepania District Hospital, Udaipur
and he himself took her to the Udaipur hospital wherefrom she was
again referred to GBP Hospital, Agartala and he himself took Hasina
to GBP Hospital, Agartala. PW-14 further deposed that while he was
shifting Hasina to Amarpur hospital, he picked up her husband Harun
Miah from Kathalbagan. At that time, in the vehicle, one sister of
Hasina was also present. En-route to Amarpur hospital, he heard,
Harun Miah asking to Hasina about the incident, when she told that
Maburak Sarkar had set her on fire.
[28] PW-15, Shri Takshiray Debbarma, was posted as DCM,
Sadar at Agartala on 31.07.2015. He deposed that on that day being
directed by Sub-Divisional Magistrate, Sadar, he went to the AGMC &
GBP Hospital, Agartala and recorded the dying declaration of a lady
who was suffered from burn injuries. PW-15 further deposed that one
doctor of the hospital, namely, Dr. Goutam Debbarma stated to him
that the victim was in a fit state of mind to make declaration.
Thereafter, he recorded her statement and read over to her. She put her
thumb impression and he also put his signature at the foot of the
recorded statement. PW-15 further stated that the name of the victim
was Hasina Begum. He identified his signature on the said declaration
(Exbt.6).
In his cross-examination, PW-15 stated that after
recording the dying declaration, he had taken it with him. He did not
inform the matter to the police. On the following day, he submitted the
recorded dying declaration in the SDM Office, Sadar. After recording
the dying declaration he did not inform the SDM, Sadar about the fact
of recording deposition. He further stated that at the time of recording
dying declaration, he had put questions to the victim and recorded her
answers to those questions. He had put many questions to her but
recorded the relevant answers only. The victim answered all questions
asked to her. He denied the suggestion put forth by the defence that he
put suggestive questions to the victim and recorded the answers as
sought for by him. He further denied that at the time of recording
dying declaration, the victim Hasina Begum was not in a fit state of
mind. In his re-examination, PW-15 deposed that he recorded the
dying declaration of the deceased on his own handwriting. He
identified the said dying declaration recorded by him which on
identification by the witnesses was marked as (Exbt.6/1).
[29] PW-16, Shri Ashok Das was present as escort of the dead
body of Hasina Begum.
[30] PW-17, Shri Sunil Kumar Das, who identified the FIR
form filled up by him before his signature. On identification, the same
was marked as (Exbt.8) as a whole. He deposed that he endorsed the
case for investigation to SI Sri Bimalendu Saha.
[31] PW-18, Dr. Umakanta Acharjee, deposed that on
31.07.2015 he was posted as Medical Officer at District Hospital of
Gomati at Tepania, Udaipur. On that day, at about 2.30 pm he received
all information from one staff nurse of that hospital for the purpose of
recording dying declaration of one patient, namely, Hasina Begum.
Accordingly, he went to the Female Surgical Ward, where the patient
Hasina Begum was admitted. He found the patient with 90% burn
injuries. For the purpose of ascertaining whether she was alert, well
oriented to time, place and person, he asked few questions to her as
follows:
"1. Where are you at present?
She replied that she was in Hospital.
2. Whether it was day or night?
She replied it was day time.
3. What was the time?
She replied about 2.00 to 2.30 pm."
[32] After being satisfied, he recorded the statement of the
victim where she disclosed that when she entered into the room, the
accused-appellant caught hold of her, pressing her mouth with cloth
and set her on fire after pouring kerosene oil on her body. He further
deposed that he obtained the left thumb impression of the patient at the
foot of the printed form for recording dying declaration which was
filled up by him. He identified his signature on the said dying
declaration (Exbt.3/1) and the signature thereon(Exbt.3/2). He also
identified the LTI of the victim which was marked as (Exbt.3/3). The
doctor further deposed that at the time of recording the dying
declaration, one staff nurse, namely, Smti. Padmini Jamatia was also
present. During his cross-examination, the witness voluntarily stated
that when the victim reached to the hospital, he found her with 90%
burn injuries and referred her to GBP Hospital, Agartala and as he was
present there, he was requested to record the dying declaration and
accordingly, he did it.
[33] PW-19, Dr. Goutam Debbarma, who was posted as
Medical Officer at AGMC & GBP Hospital, Agartala on 31.07.2015,
was asked to give a certificate as to the medical fitness of one patient,
namely, Hasina Begum for the purpose of recording of her dying
declaration. Accordingly, he examined the patient Hasina Begum and
gave the certificate that she was mentally fit to give statement.
Thereafter, her dying declaration was recorded. He identified the
certificate bearing his signature which was marked as (Exbt.9) as a
whole.
[34] PW-20, Smti. Padmini Jamatia, who was a staff nurse of
Gomati District Hospital, Tepania was on duty on 31.07.2015. She
deposed that on that day Dr. Umakanta Acharjee of that hospital
recorded the statement of Hasina Begum in her presence. She further
deposed that Hasina Begum stated that on the day of incident Mubarak
Sarkar came to her house, pressed her mouth with cloth and set her on
fire after pouring kerosene oil on her. She further deposed that Hasina
Begum stated that there was an issue regarding payment of Rs.
20,000/- to her.
[35] PW-21, Dr. Jayanta Sankar Chakraborty, was posted as
Medical Officer in the department of Forensic Medicine and
Toxicology. On 03.08.2015 when he conducted postmortem
examination over the dead body of Hasina Begum. He deposed that
about 97% of the body surface area affected by that burn.
[36] PW-22 is S.I. Bimalendu Saha, who investigated the case.
[37] In the instant case, the accused-appellant had adduced
defence witnesses. The accused-appellant himself adduced as DW-1.
He deposed that on 31.07.2015 he went to his office at Nagar
Panchayet, Amarpur, which runs from 7 am to 2 pm. He along with
many other persons, namely, Ramesh Das, Titu Malik, Nikhil
Debnath, Usha Ranjan Das, Soboja Begum, Monora Begum and
Sukanta Das went to different parts of the Amarpur town to collect
garbage. Finishing their job at around 2 pm they returned to the Office
and put their respective signatures in the Attendance Register.
Thereafter, to receive a fresh cheque book he went to Tripura State
Cooperative Bank, Amarpur Branch and there he received the same
putting his signature in the relevant register. At around 3.30 pm he
returned to his home. When he was taking bath and getting ready to
take his lunch, he was informed by his wife that Hasina Bibi
committed suicide.
In his cross-examination, he stated that he had no
information of suicide and also that Hasina Begum was hospitalized.
He admitted that Hasina Begum was his adjacent neighbour. He
further stated that he was falsely implicated in this case.
[38] DW-2, Ramesh Das, who deposed that on 31.07.2021 he
was all along with the accused-appellant and other garbage cleaners
who were working under Amarpur Nagar Panchayet.
[39] DW-3, Sri Nikhil Debnath also deposed in the same tune
as that of DW-2.
[40] DWs.4, 5, 6, 7 and 8 deposed in the same tune that the
accused-appellant was all along with them while they were discharging
their duties within the geographical area of the Amarpur Nagar
Panchayet as garbage cleaners and after completing their jobs they all
put their signatures in the Attendance Register maintained by Nagar
Panchayet.
[41] DW-9, Shri Tarun Ch. Saha appeared before the Court on
behalf of the Executive Officer, Amarpur Nagar Panchayet who was
authorized to depose on behalf of Shri Suresh Jamatia. He deposed that
the attendance register reflects that Ramesh Das, Titu Mali, Nikhil
Debnath, Monour Begam and Saboja Begum were present in the office
on 31.07.2015 and on 01.08.2015 and have put their respective
signatures in the register. He further deposed that "it is fact that the
garbage cleaner of our establishment perform their cleaning works
inside the office complex, as well as in other parts of Nagar Panchayet
area. But the particular place concerned does not find reflection in any
paper."
He stated in his cross-examination that he had no personal
information with regard to the work done by different garbage cleaners
on 31.07.2015. He further stated in his cross-examination that
Amarpur Nagar Panchayet consists of 11 wards and it is spread over a
geographical area of about 7 to 8 km.
[42] Being directed by this Court, Sri. Anjoy Gohsh appeared
before the witness box along with the Attendance Register of Amarpur
Nagar Panchayet as DW. During his evidence, he produced the
Attendance Register certified by the Executive Officer of Amarpur
Nagar Panchayet dated 01.01.2015. He deposed that all the garbage
cleaners put their signatures in front of him and the signatures were
known to him. He identified the signatures of Mubarak Sarkar which
was marked as (Exbt. A/1), the Attendance Register marked as
(Exbt.A).
In his cross-examination, he stated that the duty of
Mubarak Sarkar was not confined to the office, but, in the field too,
and house of Mubarak Sarkar is about one and half km from the Nagar
Panchayet office which requires 20-minute walk from the Amarpur
Nagar Panchayet office. The said DW could not say at what location
Mubarak Sarkar had performed his duties on 31.07.2015. He further
stated that at about 4.30/4.45 pm he heard about the incident of the
burning of Hasina Begum.
[43] DW, Anjoy Ghosh further stated in his cross-examination
that "it is a fact that before or after putting signature, if a person
leaves the office and does something else beyond his allotted duty
outside the complex of the office, it is not possible for us to say that".
He further stated that he "he could not say whether Mubarak Sarkar
committed the offence before or after putting his signature in the
attendance register."
[44] To appreciate the entire evidence brought on record, at the
very threshold we would like to peruse the two dying declarations as
made by the victim. On close reading of the two dying declarations, we
find commonality in the material part of the declarations that Mubarak
Sarkar had slept with her and set her ablaze by pouring kerosene oil
kept in her room. In the first dying declaration (Exbt.3) recorded by
Dr. Umakanta Acharjee, at Tepania District Hospital, Udaipur, he
declared that on the date of incident in the morning, the accused-
appellant had kept himself concealed under the cot and at around 12
O'clock at noon he entered into the room and set her on fire by way of
pouring kerosene oil by closing her mouth with cloth.
[45] In the second dying declaration recorded by Dr. Goutam
Debbarma, it transpires that the victim declared that in absence of her
husband, the accused-appellant wanted to develop physical
relationship with her and there was an altercation between them and
thereafter, suddenly, he poured kerosene oil kept in her room in a drum
and set her on fire and lit her using matchstick. We found that Dr.
Umakanta Acharjee in his evidence clearly stated that he found the
victim was mentally fit and oriented to make declaration.
[46] PWs-6 and 20, the two staff nurse also supported the
statement of the victim as well as Dr. Umakanta Acharjee. They
identified the left thumb impression of Hasina Begum and also the
signature in the prescribed format as witness in the second dying
declaration. Dr. Gautam Debbarma declared the victim is mentally fit
to give statement. Thereafter, the DCM, Sri Takshiray Debbarma
recorded the statement in his own handwriting and certified the same
that he recorded the statement of the victim on 31.07.2015 at 8.05pm
at the female ward No.1 (Burn Unit of AGMC & GBP Hospital).
Appearing before the witness box, Dr. Gautam Debbarma confirmed
the dying declaration and the mental fitness of the patient to give dying
declaration.
[47] Furthermore, before recording the dying declaration, Dr.
Umakanta Acharjee (PW-18) had put questions to ascertain the mental
alertness and orientation of the victim Hasina Begum. We find no
infirmity in the material part of the dying declaration that it was none
but Mubarak Sarkar who set ablazed the victim Hasina Begum by
pouring kerosene oil and is admissible in evidence under Section 32(1)
of the Evidence Act. The two dying declarations, albeit, spoke about
two different facts and all the facts declared by the victim are found to
be related to the cause of death and such statements cannot in any way
be termed as contradictory.
[48] Apart from the said two dying declarations, we found the
statements of PW-2, the sister of the victim who rushed to the spot and
poured water on her and when she made inquiry as to how the incident
had happened, the victim told that out of a dispute of returning Rs.20,
000/- Mubarak Sarkar set her on fire by pouring kerosene oil. PW-2 in
her deposition mentioned the name of Amena Bibi who arrived at the
spot immediately after the occurrence. The said Amena Bibi and
Harun Miah supported the statement of PW-2 that on being inquired,
the victim told that Mubarak Sarkar set her on fire by pouring kerosene
oil. Similarly, PWs-3, 4, 5, 6 and 13 corroborated the versions of the
victim made before Amena Bibi (PW-3) and Harun Miah (PW-14).
These statements of the prosecution witnesses being related to the
cause of death as well as shocking revelations of the entire transaction
of the fact in issue are relevant under Section 32 of the Evidence Act
and thus, admissible in evidence.
[49] These statements regarding the facts and circumstances of
the case that Mubarak Sarkar had set the deceased on fire, may be
treated as the evidence of res gestae and falls within the purview of
Section-6 of the Evidence Act and therefore, is admissible in evidence.
More so, we find force in the submission of Mr. Debnath, learned
Addl. P.P. appearing for the State-respondent that many of the
prosecution witnesses had seen the accused Mubarak Sarkar coming
out of the room of Hasina Begum, the deceased herein, and this
statement attracts the theory of "last seen together". The circumstance
as to how Hasina was set on fire was within the "special knowledge"
of the appellant and for that matter, he was under obligation to explain
the said circumstance.
[50] We have given our thoughtful consideration to the
submission of the learned counsel appearing for the parties that a
person having suffered with 100% burn injuries would not be in a
position to give dying declaration but, this submission has not
influenced us in any manner for the reason that there is no universally
accepted rule that a person suffers with 100% burn injuries would not
be in a position to give dying declaration. It depends on the facts and
circumstances of a particular case and the nature of the dying
declarations and other various parameters manifest in the dying
declaration itself.
[51] In the case of Jagbir Singh vs. State(NCT of Delhi),
reported in (2019) 8 SCC 779, the Apex Court re-iterates the law relating
to dying declaration [see P.792 & 793, paras-20 and 21] thus:
"20. A Dying declaration is relevant evidence as declared
by Section 32 of the Indian Evidence Act, 1872. A distinction exists,
however, between English Law and Indian Law in regard to dying
declaration. We may, in this regard, note the declaration of
the law contained in Kishan Lal v. State of Rajasthan1(SCC p.316,
para-18):
"18. Now we proceed to examine the principle of evaluation of any
dying declaration. There is a distinction between the evaluation of
a dying declaration under the English law and that under the
Indian law. Under the English law, credence and the relevancy of a
dying declaration is only when a person making such a statement
is in a hopeless condition and expecting an imminent death. So
under the English law, for its admissibility, the declarant should
have been in actual danger of death at the time when they are
made, and that he should have had a full apprehension of this
danger and the death should have ensued. Under the Indian law
the dying declaration is relevant whether the person who makes it
was or was not under expectation of death at the time of
declaration. Dying declaration is admissible not only in the case of
homicide but also in civil suits. Under the English law, the
admissibility rests on the principle that a sense of impending death
produces in a man's mind the same feeling as that of a
conscientious and virtuous man under oath. The general principle
on which this species of evidence are admitted is that they are
declarations made in extremity, when the party is at the point of
death, and when every hope of this world is gone, when every
motive to falsehood is silenced and the mind is induced by the most
powerful considerations to speak only the truth. If evidence in a
case reveals that the declarant has reached this state while making
a declaration then within the sphere of the Indian law, while
testing the credibility of such dying declaration weightage can be
given. Of course depending on other relevant facts and
circumstances of the case."
(Emphasis supplied)
21. But when a declaration is made, either oral or in writing, by a
person whose death is imminent, the principle attributed to
Mathew Arnold that "truth sits upon the lips of a dying man" and
no man will go to meet his maker with falsehood in his mouth will
come into play. The principles relating to dying declaration are no
longer res integra and it would be apposite that we refer to the
decision of this Court in Paniben (Smt) v. State of Gujarat3
wherein the concepts are summed up as follows (SCC pp. 480-81,
para-18:
"(i) There is neither rule of law nor of prudence that dying
declaration cannot be acted upon without corroboration.(Munna
Raja v. State of M. P.).
(ii) If the Court is satisfied that the dying declaration is true and
voluntary it can base conviction on it, without corroboration.
(State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552: 1985 SCC
(Cri) 127: AIR 1985 SC 416]; Ramawati Devi v. State of
Bihar [(1983) 1 SCC 211: 1983 SCC (Cri) 169 : AIR 1983 SC 164]
).
(iii) This Court has to scrutinise the dying declaration carefully
and must ensure that the declaration is not the result of tutoring,
prompting or imagination. The deceased had opportunity to
observe and identify the assailants and was in a fit state to make
the declaration. (K. Ramachandra Reddy v. Public
Prosecutor [(1976) 3 SCC 618: 1976 SCC (Cri) 473: AIR 1976 SC
1994] ).
(iv) Where dying declaration is suspicious it should not be acted
upon without corroborative evidence. (Rasheed Beg v. State of
M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )
(v) Where the deceased was unconscious and could never make
any dying declaration the evidence with regard to it is to be
rejected. (Kake Singh v. State of M.P. [1981 Supp SCC 25: 1981
SCC (Cri) 645: AIR 1982 SC 1021]
(vi) A dying declaration which suffers from infirmity cannot form
the basis of conviction. (Ram Manorath v. State of U.P. [(1981) 2
SCC 654: 1981 SCC (Cri) 581])
(vii) Merely because a dying declaration does not contain the
details as to the occurrence, it is not to be rejected. (State of
Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC
455: 1981 SCC (Cri) 364: AIR 1981 SC 617])
(viii) Equally, merely because it is a brief statement, it is not be
discarded. On the contrary, the shortness of the statement itself
guarantees truth. Surajdeo Oza v. State of Bihar[1980 Supp SCC
769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505] )
(ix) Normally the court in order to satisfy whether deceased was in
a fit mental condition to make the dying declaration look up to the
medical opinion. But where the eye witness has said that the
deceased was in a fit and conscious state to make this dying
declaration, the medical opinion cannot prevail. (Nanahau Ram v.
State of M.P. [1988 Supp SCC 152: 1988 SCC (Cri) 342: AIR 1988
SC 912])
(x) Where the prosecution version differs from the version as given
in the dying declaration, the said declaration cannot be acted
upon. (State of U.P. v. Madan Mohan."
[52] The plea of alibi as raised by the defence, does not in any
way appear to be appealing to us. It is crystal clear from the evidence
of DW Sri Anjoy Ghosh and DW-9 Sri Tarun Ch. Saha that the
geological area of Amarpur Nagar Panchayet comprises 7 to 8 km and
there were 11 wards. The garbage cleaners are spread over the entire
area. The accused deposing as DW-1 himself stated that he and other
garbage cleaners went to different parts of Amarpur town to collect
garbage. The garbage cleaners start their work from 7 am to 2 pm.
After completion of cleaning works, they returned to their office and
put their signatures in the Attendance Register. DW-9 and Sri Anjoy
Ghosh are very categorical to their statements that there was no
mechanism to identify the location of each of the workers undertaken
by a particular garbage cleaner. Based on such proven facts, we are
unable to accept the plea of alibi as raised by the accused-appellant
since it was not impossible for him to visit the house of Hasina during
his working hours. In other words, the accused has failed to impress us
in regard to this probable circumstance by way of adducing cogent
evidence that when the occurrence took place he was at such a distance
place from the scene of crime wherefrom it was extremely improbable
for him to commit the crime. Explaining the law regarding the plea of
alibi and burden of proof thereof, a Division Bench of this Court, to
which I was a member, in the case of Suman Nama vs. State of
Tripura [Crl. A(J) No. 33 of 2015] decided on 03.05.2019 stated thus:
"Latin word "alibi" means elsewhere and that word is used
for convenience when an accused takes recourse to a defence line
that when the occurrence took place he was so far away from the
place of occurrence that it is extremely improbable that he would
have participated in the crime. It is basic law that in a criminal
case, in which the accused is alleged to have inflicted physical
injury to another person, the burden is on the prosecution to prove
that the accused was present at the scene and has participated in
the crime. The burden would not be lessened by the mere fact that
the accused has adopted the defence of alibi. The plea of the
accused in such cases need be considered only when the burden
has been discharged by the prosecution satisfactorily."
Explaining further,
"When presence of the accused at the scene of occurrence is
established satisfactorily by the prosecution through reliable
evidence, normally the court would be slow to believe any
counternarrative to the effect that he was elsewhere when the
occurrence happened. But if the evidence adduced by the accused
is of such a quality and of such a standard that the court may
entertain some reasonable doubt regarding his presence at the
scene when the occurrence took place, the accused would, no
doubt, be entitled to the benefit of reasonable doubt. For that
purpose, it would be a sound proposition that in such
circumstances, the burden on the accused is rather heavy. It
follows, therefore, that strict proof is required for establishing the
plea of alibi."
[53] According to us, the evidence in regard to involvement of
accused-appellant in the crime is so galore and overwhelming that it
turns the accused's plea of alibi a total lie. The prosecution witnesses
have been able to substantiate the charges framed against the accused-
appellant beyond reasonable doubt that he committed murder of the
deceased Hasina Begum by pouring kerosene oil. The scientific
examiner has confirmed that the drum along with the liquid seized by
the I.O. were a drum containing kerosene oil. So, this circumstance
also supports the prosecution case.
[54] On overall assessment of the evidence and materials on
record, there is no scope to record a different finding than that of the
finding as returned by the learned Addl. Sessions Judge, Gomati
Judicial District, Udaipur, in convicting and sentencing the accused-
appellant (Mubarak Sarkar) as set forth in his judgment and order
dated 04.12.2018, in connection with the case No. S.T. 08(GT/A) of
2016 (T-1).
[55] In the result, the appeal preferred by the convict-appellant
stands dismissed. The judgment and order passed by the learned trial
Court are affirmed. The appellant is to suffer the remaining period of
sentence.
Send down the LCRs.
JUDGE CHIEF JUSTICE
A.Ghosh
