2013 Supreme(Gau) 67
IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari and P.K. Musahary, JJ.
Bolin Bora
Vs.
State of Assam
Crl. Appeal No. 205 of 2007
Decided On: 04.02.2013
Advocate Appeared:
For Appellant/Petitioner/Plaintiff:Mr. A.K. Bhattacharjee, Sr. Advocate
For Respondents/Defendant: Mr. K.A. Mazumdar, Addl. PP
Headnote:
Indian Penal Code, 1860 - Sections 498A and 304B – Criminal Procedure Code, 1973 - Section 313 - Criminal Trial – Demand of dowry - Dying declaration - Offence of Cruelty and Dowry death – Appeal against conviction – Deceased was wife of accused who used to live with deceased at the residential quarter of his father, Indrajit Bora, situated at Police Reserve – Accused demanded a sum of Rs. 50,000/- from Pompis parents and as Pompis parents, being poor, could not meet the demand, which had been so raised by accused poured kerosene on Pompi and set her on fire With the burn injuries, so sustained by Pompi, she was carried by accused Bolin Bora to Health Line Hospital - She was, then, shifted to, and treated Hospital – Held, When more than one dying declaration are found to have been made, Court cannot rely on dying declarations, which go in favour of the prosecution, and ignore the ones, which may be in favour of the defence. Without assigning any reason as to why a dying declaration has been accepted as a statement made by deceased, whose cause of death is in question, no reliance can be placed by Court on a dying declaration of a deceased, which goes in favour of prosecution, by ignoring other dying declarations, which may go in favour of defence - It clear that though we have set aside conviction and sentence of accused-appellant - Appeal allowed
Iqbal Ahmed Ansari, J.
1. Aggrieved by the judgment and order, dated 31.08.2007, passed, in Sessions Case No. 170 of 2005, by the learned Additional Sessions Judge, FTC, Dibrugarh, convicting him under Sections 498A and 304B IPC and sentencing him to suffer, for his conviction under Section 498A IPC, rigorous imprisonment for two years and pay fine of rupees one thousand and, in default of payment of fine, suffer rigorous imprisonment for a further period of two months and also sentencing him to suffer, for his conviction under Section 304B IPC, imprisonment for life, with direction that both the sentences shall run together, the accused, Bolin Bora, has, as a convicted person, preferred this appeal. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:
(i) Deceased, Pompi Bora, was wife of accused Bolin Bora, who used to live with Pompi Bora (since deceased) at the residential quarter of his father, Indrajit Bora, situated at Police Reserve, Dibrugarh. Accused, Bolin Bora, demanded a sum of Rs. 50,000/- from Pompi's parents and as Pompi's parents, being poor, could not meet the demand, which had been so raised by accused Bolin Bora, accused Bolin Bora, on 28.10.2004, at about 2 pm, poured kerosene on Pompi and set her on fire. With the burn injuries, so sustained by Pompi, she was carried by accused Bolin Bora to Health Line Hospital, Dibrugarh. She was, then, shifted to, and treated at, Astha Hospital, Dibrugarh. At a latter stage, Pompi was moved to, and treated at, Assam Medical College and Hospital, Dibrugarh (in short, AMCH). While Pompi was under treatment at Health Line Hospital, Dibrugarh, an information, in writing, was given to the Officer-in-Charge, Dibrugarh Police Station, by the Manager, Health Line Hospital, Dibrugarh, that Pompi had been admitted, on 28.10.2004, with burn injury and that the management of the hospital had been informed that the burn was caused, because of bursting of a stove.
(ii) On receiving the information, so given by the management of Health Line Hospital, Dibrugarh, a direction was given by Officer-in-Charge, Dibrugarh Police Station, to Sub-Inspector of Police, Jogendra Nath Saikia, to make enquiry, whereupon Sub Inspector of Police, Jogendra Nath Saikia (hereinafter referred to as the Investigating Officer), having made enquiry and also having recorded the statement of injured Pompi, lodged a written information (Ext.2) with the Officer-in-Charge, Dibrugarh Police Station, to the effect, inter alia, that Pompi had been subjected by accused Bolin Bora to cruelty, both physically and mentally, for one reason or another since the time of her marriage with the accused and, at last, on 28.10.2004, at around 2 pm, he had set fire to her body in a pre-planned manner with intention to kill her.
(iii) Treating the information, which had been so lodged by the Investigating Officer, S.I. Jogendra Nath Saikia, as the First Information Report (in short, 'FIR'), Dibrugarh Police Station Case No. 566/2004, under Sections 498A/307/109/34 IPC, was registered against accused Bolin Bora and his parents. During (In) the course of investigation, Pompi's statement was recorded not only by the Investigating Officer, but also by the doctor and an Executive Magistrate. While remaining under treatment, at AMCH, Dibrugarh, Pompi succumbed to the burn injuries on 16.12.2004. Inquest was, then, held over her dead body and inquest report (Ext.4) was prepared. On completion of investigation, a charge-sheet (Ext. 3) was lodged, under Sections 498A/304B/109/34 IPC, against accused Bolin Bora and both his parents, Indrajit Bora and Minu Bora.
2. At the trial, when charges, under Sections 498A and 304B read with Section 34 IPC, were framed against the three accused, namely, Bolin Bora, Indrajit Bora and Minu Bora, they all pleaded not guilty thereto.
3. In support of their case, prosecution examined altogether 12 (twelve) witnesses including the Investigating Officer. The three a