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2021 Supreme(Gau) 486
IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Suman Shyam, Robin Phukan, JJ.
Md Sah Alom @ Md Sah Alom Ali, S/O Late Dhane Ali – Petitioner
Versus
The State of Assam Represented By PP, And Anr. – Respondents
Crl.A./199 of 2018
Decided On : 08-10-2021
Advocate Appeared:
For the Petitioner: Mr H R A Choudhury
For the Respondent: Ms. B Bhuyan (Addl.PP)
Point of Law: 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.
Headnote:
Criminal Procedure Code, 1973 - Section 161, 313 - Indian Penal Code, 1860 - section 143/498(A)/307/326 and 302 – Indian Evidence Act, 1872 - Section 106 – Unlawful assembly – Offence of Murder – Attempt to Murder - Power to examine accused - Whether trial court was justified in convicting appellant based on dying declarations, it would be necessary for us to evaluate evidence available on record - Whether patient was able to speak at time of recording and there is also no fitness certificate from doctor - Whether wife of accused was able to speak or not nor did he see any Magistrate in hospital or for that matter any Magistrate writing anything - Whether victim had at all made any dying declaration in presence –
Finding of the Court:
Based on evidence brought on record and by placing heavy reliance on dying declaration of victim, learned trial court had convicted appellant under section 302 of IPC and sentenced him as aforesaid - Since incident had taken place in matrimonial house of victim, it was incumbent upon accused to offer plausible explanation as to how victim had caught fire, which accused had failed to offer - On such count, it was also held that accused person had failed to discharge his burden cast under section 106 of Evidence Act - Accused had failed to discharge his burden under section 106 of Evidence Act - It is settled law that burden under section 106 of Evidence Act would be cast upon accused only if prosecution succeeds in prima facie establishing charge by leading cogent evidence - Having regard to evidence brought on record, we are of opinion that prosecution has failed to prove that accused was at place of occurrence when incident took place - Evidence on record shows that at time of incident accused was not present in his house but was catching fish - In that view of matter, there was no burden upon accused under section 106 of Evidence Act to offer any explanation in this case as to circumstances under which the occurrence took place –
Result: Appeal allowed
JUDGMENT :
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 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.
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
