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IN THE HIGH COURT OF CALCUTTA
Nadira Patherya and Asim Kumar Ray, JJ.
Allauddin Momin - Appellant
Versus
State of West Bengal - Respondent
C.R.A. No. 485 of 2011 with C.R.A.N. No. 613 of 2013
Decided On : 9-10-2013
CRIMINAL LAW - SECTION 498A IPC - SECTION 302 IPC - SECTION 306 IPC - CONVICTION SET ASIDE FOR SECTION 302 IPC - CONVICTED UNDER SECTION 498A IPC - SUICIDE OR HOMICIDE - DYING DECLARATION - BURDEN OF PROOF - SECTION 113B OF EVIDENCE ACT - CRUELTY - SUFFICIENT EVIDENCE TO PROVE CRUELTY - NO EVIDENCE TO PROVE SUICIDE RESULTED FROM PHYSICAL ASSAULT OR TORTURE.
Fact of the Case:
Appellant was convicted under Sections 498A/302 IPC for causing the death of his wife by setting her on fire. The victim had given three dying declarations, the first stating that she committed suicide, while the second and third stated that the appellant and his mother poured kerosene oil on her and set her on fire. The appellant claimed that the second and third dying declarations were tutored and that the victim committed suicide due to torture inflicted by him.
Finding of the Court:
The court found that the case under Section 498A IPC was proved against the appellant, as the evidence of torture inflicted on the victim by the appellant was corroborated by the victim in all her dying declarations. However, the court held that the death of the victim was suicidal and not homicidal, as the first dying declaration, which was made soon after the incident, stated that the victim committed suicide. The court also found that there was no evidence to show that suicide was the result of physical assault or torture, and therefore no punishment under Section 306 IPC could be given to the appellant.
Issues: 1. Whether the second and third dying declarations were tutored. 2. Whether the death of the victim was suicidal or homicidal. 3. Whether there was sufficient evidence to prove cruelty under Section 498A IPC. 4. Whether there was sufficient evidence to prove that suicide was the result of physical assault or torture.
Ratio Decidendi: 1. The court held that the second and third dying declarations were not tutored, as there was no evidence to suggest that the victim was tutored by her parents. 2. The court held that the death of the victim was suicidal, as the first dying declaration, which was made soon after the incident, stated that the victim committed suicide. 3. The court held that there was sufficient evidence to prove cruelty under Section 498A IPC, as the evidence of torture inflicted on the victim by the appellant was corroborated by the victim in all her dying declarations. 4. The court held that there was no evidence to show that suicide was the result of physical assault or torture, and therefore no punishment under Section 306 IPC could be given to the appellant.
Final Decision: The conviction and sentence under Section 302 IPC was set aside, and the conviction and sentence under Section 498A IPC was upheld.
Nadira Patherya, J.
This appeal has been filed against the judgment and order of conviction dated 28th July, 2011 and sentence dated 29th July, 2011 passed by the Additional Sessions Judge, 2nd Court, Suri, Birbhum in Sessions Trial No. 1 of March, 2011 arising out of Sessions Case No. 163 of 2010. By the said judgment and order of conviction and sentence the appellant was directed to suffer rigorous imprisonment for 3 years and pay a fine of Rs. 5,000/- in default to suffer further imprisonment for 6 months for the offence punishable under Sections 498A/302 IPC.
2. The case of the prosecution is that Hadisa Bibi (victim) was married to the appellant of village- Chhaptala for about five years. The appellant inflicted torture both mental and physical on her. On 18th December, 2008 at about 10.00/11.00 hours in the night a telephonic information was received by Nasiruddin Momin father of the victim that she had received burn injury and was admitted to Suri Sadar Hospital. Nasiruddin Mondal (PW 1) rushed to the hospital and found the victim in a precarious condition. He learnt from his daughter that kerosene oil had been poured over her and she was set on fire. The complaint was lodged by the father of the victim against the accused persons. On the basis of the said complaint Suri P.S. Case No. 285/08 dated 19th December, 2008 was initiated under Sections 498-A/326/307 IPC. The victim girl died on 21st December, 2008. Section 302 was added to the formal FIR. The said was followed by investigation. On completion of investigation charge sheet was filed under Sections 498-A/326/302 IPC. The case was committed for trial to the Court of Sessions Judge, Birbhum who transferred the case to the Additional Sessions Judge, 2nd Court, Suri, Birbhum. Charge under Sections 498-A/326/34 and under Sections 302/34 IPC was framed against the appellants. The same was read over and explained to the appellants who pleaded "not guilty" and claimed to be tried. In course of trial 20 witnesses were examined and none was examined on behalf of the defence. The appellant was examined under Section 313 CrPC. Documents were taken on record as exhibits and on consideration of the evidence the Court below passed the order of conviction and sentence. Hence this appeal.
3. Counsel for the appellant submits that the date of incident was 18th December, 2008 and the FIR was filed on 19th December, 2008 by the father PW 1. The victim died on 21st December, 2008. Three dying declarations were given by the victim two before the doctor. One on 18.12.2008 at 10.45 pm and the other on 19th December, 2008 after 24 hours at 8.15 pm and the third before the I.O. No statement was recorded by the Magistrate. The dying declarations are contradictory as in the first dying declaration it was recorded that the victim committed suicide while in the second it was recorded that the appellant and his mother poured kerosene oil on the victim and set her on fire, therefore the death is homicidal. The second dying declaration is not to be believed and cannot be relied on, as between the said two dying declarations the victim met her parents and the second dying declaration is the result of tutoring. At the time of conviction Section 306 IPC ought to have been considered. PW 2 is the mother and the victim was tutored by her. The torture inflicted on the victim girl by the appellant was not of such great magnitude to make her commit suicide.
4. Reliance is placed on (2007) 3 SCC (Cri) 94 para-10. Therefore ample ingredient existed for conviction under Section 306 IPC. AIR 1997 SC 3230 has been overruled and therefore cannot be made applicable to the instant case.
5. In opposing the said appeal counsel for the State submits that the case under Section 498-A has been proved by the father PW 1, brother PW 4 and mother PW 2 so also the victim. The first dying declaration was made to the doctor PW 14 at 10.45 pm. PW 8 and PW 13 were the persons who brought the victim girl to the Hospital
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