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2020 Supreme(Gau) 158
GAUHATI HIGH COURT
Suman Shyam, Hitesh Kumar Sarma, JJ.
Mosstt. Samiran Bibi Dhubri - Appellant
Versus
State Of Assam - Respondent
CRL.A(J) 117/2018
Decided On : 17-02-2020
Sri Bhaskar Baruah, Amicus Curiae, for the Appellant; PP, Assam, for the Respondent
The importance of procedural safeguards for a dying declaration and the need to establish the mental fitness of the victim.
Headnote:
IPC - Murder - Section 302 - Summary: The court analyzed the dying declaration, the mental state of the victim, and the procedural safeguards required for a dying declaration. The court found inconsistencies in the dying declaration and the evidence presented, leading to doubt about the circumstances of the incident. The court held that the prosecution failed to prove the charge beyond reasonable doubt and acquitted the accused.
Fact of the Case:
The appellant was convicted under Section 302 of the IPC for setting her husband ablaze, resulting in his death. The prosecution's case was based on the dying declaration of the victim.
Finding of the Court:
The court found inconsistencies in the dying declaration and the evidence presented, leading to doubt about the circumstances of the incident. The court held that the prosecution failed to prove the charge beyond reasonable doubt and acquitted the accused.
Issues: The main issue was the reliability of the dying declaration and the mental state of the victim at the time of the incident.
Ratio Decidendi: The court emphasized the importance of procedural safeguards for a dying declaration and the need to establish the mental fitness of the victim. In the absence of proper procedural safeguards and doubts about the victim's mental state, the court held that the dying declaration could not be treated as impeccable evidence.
Final Decision: The court allowed the appeal, set aside the impugned judgment, and acquitted the accused. The court directed the immediate release of the accused unless her detention was required in connection with any other case.
JUDGMENT
Suman Shyam, J. - Heard Mr. Bhaskar Baruah, learned Amicus Curiae, appearing for the appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the respondent State.
2. The sole appellant in this case has been convicted under Section 302 of the Indian Penal Code (IPC) for committing murder of her husband Osir Ali and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 15,000/-, in default, to undergo rigorous imprisonment for another 6(six) months.
3. The prosecution case, as unfolded during the course of trial, is that on 24/05/2008, at about 2-45 a.m., the appellant/accused had set her husband Osir Ali ablaze by pouring kerosene oil upon him with the intent to kill him, as a result of which, the victim had sustained burn injuries on different parts of hi body resulting to his death. The victim was then rushed to the hospital where he died after two days.
4. On 24/05/2008, an ejahar was lodged before the Officer-in-Charge of Bogribari Police station by the informant/victim Osir Ali, based on which, Bogribari Police Station case No. 79/2008 was registered under Section 326/207 of the IPC . Subsequently, section 302 of the IPC was added after the victim had died in the hospital.
5. Sub-Inspector Bhogeswar Bora was entrusted with the job of carrying out investigation in connection with Bogribari P.S. Case No 79/2008.Accordingly, the I/O had recorded the statement of the witnesses, drew up sketch map and had also recorded the statement of the injured victim. However, it was another I.O. i.e. Sri Lakhi Kanta Nath (PW-9), who had submitted the charge sheet against the accused under Section 302 of the IPC. The accused has pleaded innocence. Hence, the matter went up for trial.
6. In order to bring home the charge brought against the accused, the prosecution side had examined as many as 9 (nine) witnesses. Sri Pronab Kumar Sarma, the Magistrate, who had recorded the dying declaration of the victim was examined as Court Witness (CW-1). After examination of the prosecution witnesses, the statement of the accused was recorded under Section 313 of the Cr.P.C. The defence side had also examined two witnesses, viz. DWs 1 and 2 who are the mother and the son, respectively, of the deceased.
7. As noticed above, the victim Osir Ali himself is the informant in this case. The ejahar was written by one Saiful Islam as per the version narrated by the deceased. Since the ejahar itself is capable of being treated as the first dying declaration of the victim, we deem it appropriate to reproduce the ejahar for ready reference.
'Sir,
Humble submission is that around 2.45 am today, on 24.5.08, when I was sleeping, the below mentioned accused person with an intention to kill me, set me on fire by pouring kerosene oil on my person thereby causing grievous burn injuries in various parts of my person. When I shouted, people came forward and my life was saved.
I, therefore, lodge this ejahar with a prayer for taking necessary action in this regard.
Yours faithfully, LTI of Osir Ali'
8. In the ejahar lodged on 24/05/2008, appellant was named as the accused. The ejahar was evidently written as per the version of the victim which was read over to him. What would, however, be significant to note herein that the scribe of the ejahar viz. Saiful Islam has not been examined as a witness by the prosecution side. On the contrary, the ejahar has been sought to be proved by the I.O. (PW-9) who was not even connected with the investigation of this case at the relevant point of time. Out of the remaining 8 (eight) witnesses examined by the prosecution side, as many as five witnesses viz. PWs- 2, 4, 5, 6 and 7 were declared as hostile witnesses.
9. PW-1 Dr. Tapas Mazumdar was the doctor on duty at the Dhubri at the Dhubri Civil Hospital on 26/05/2008 and he had conducted post mortem examination on the dead body of the victim. PW-1 had deposed that the victim had suffered 40% burn injuries ov
