Crl.A. 146/2012. Gauhati High Court
| Case Number | Crl.A. 146/2012 |
| Judgement Date | May 17, 2019 |
| Court | Gauhati High Court |
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM &
ARUNACHAL PRADESH)
CRIMINAL APPEAL 146/2012
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Shyamlendu Deb,
S/o. Late Nalini Mohan Deb,
R/o. Village – Sati Joymati Nagar, PS. Jalukbari, Kamrup, Assam.
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Chandra Shekhar Deb,
S/o. Late Nalini Mohan Deb,
R/o. Village – Sati Joymati Nagar,
PS. Jalukbari, Kamrup, Assam. .. Appellants
Versus
State of Assam .. Respondent
For the appellants :: Mr. N. Dutta, Sr. Advocate,
Mr. A.M. Bora, Sr. Advocate.
For the respondent :: Mr. M. Phukan, Addl. P.P., Assam,
P R E S E N T
HON’BLE MR JUSTICE UJJAL BHUYAN HON’BLE MR JUSTICE PARAN KUMAR PHUKAN
Dates of hearing : 14.03.17 & 28.03.2017 Date of judgment : 17.05.2017
JUDGEMENT AND ORDER (CAV)
( Ujjal Bhuyan, J .)
Heard Mr. N. Dutta, learned Senior counsel and Mr. A.M Bora, learned counsel for the appellants. Also heard Mr. M. Phukan, learned Additional Public Prosecutor, Assam.
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This appeal is directed against the judgment and order dated 22.06.2012
passed by the learned Sessions Judge, Kamrup, Guwahati in Sessions Case No.42(K) of 2008 convicting the appellants under Sections 302/ 34 IPC and sentencing them to undergo rigorous imprisonment (RI ) for life and to pay a fine of Rs.2,000 each, in default, to undergo RI for two months.
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Prosecution case may be briefly noted at the outset.
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PW25, Shri Dhirendra Nath Kalita, Sub-I nspector of Police, Maligaon
Police Outpost under Jalukbari Police Station received a telephonic information at about 10 pm of 20.03.2006 from one Mahendra Sharma (PW5) that an incident of burning of Shipra Dey, wife of Shyamalendu Deb, had taken place in their residence. PW25 made an entry in the General Diary being General Diary Entry No.402 dated 20.03.2006 and proceeded to the place of occurrence after making another General Diary Entry being No.403 of the same date. On reaching the place of occurrence, he found the victim and the husband Shyamalendu Deb with burn injuries on their persons. They were then shifted to Central Railway Hospital, Maligaon. While victim was admitted as an indoor patient, husband was released after preliminary treatment. Thereafter, PW25 left for Jalukbari Police Station at about 11.35 pm where officer-in-charge of the Police Station Rahul Amin informed him that he had received a First Information Report (FI R) relating to the said incident and entrusted him with the investigation of the case. The FI R was lodged by Tarun Dey, brother of the victim Sipra Dey, stating that on that day at about 9.30 pm, his sister was confined by her husband Shyamalendu Deb and his elder brother Chandra Shekhar Deb who thereafter poured kerosene oil on her and set her on fire causing severe burn injuries. Local people informed him whereafter he came to the place of occurrence. His sister also told him about the happenings. He therefore requested the police to investigate into the incident. I n the FI R, both husband and elder brother, namely, Shyamalendu Deb and Chandra Shekhar Deb, were named as accused persons. On the basis of the said FI R, Jalukbari Police Station Case No.147/ 2006 under Sections 326/ 307/ 34 of the I ndian Penal Code (I PC) was registered. I nitially, victim was admitted in the Central Railway Hospital, NF Railway, Maligaon. Thereafter, she was shifted to the Gauhati Medical College and Hospital (GMCH) where she expired on
25.03.2006. Following death of the victim, Section 302 I PC was added in the FI R. Police investigated the case and on completion of investigation, submitted charge-sheet against the husband and his elder brother, namely, Shyamalendu Deb and Chandra Shekhar Deb, under Sections 302/ 34 I PC. The case being exclusively triable by the Court of Sessions, it was committed to the Court of Sessions, Kamrup whereafter charges under Sections 302/ 34 I PC were framed against the accused-appellants to which they pleaded not guilty and claimed to be tried. I n the trial that followed, prosecution examined as many as 26
witnesses who were duly cross-examined. After closure of the prosecution evidence, accused persons were examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.PC). The defence plea was that of denial. However, defence did not adduce any evidence. After hearing the matter, learned Sessions Judge passed the judgment and order dated 22.06.2012 convicting and sentencing the accused-appellants as above.
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Hence, this appeal.
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Following conviction and sentence of the accused-appellants as above,
they were taken into custody. During the pendency of the appeal, they had filed an application for bail, which was registered as Criminal Misc. Case No.638/ 2012. By order dated 24.01.2013 passed in Criminal Misc. Case No.638/ 2012, the accused-appellants were granted bail.
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Mr. N. Dutta, learned Senior counsel and Mr. A.M. Bora, learned counsel
for the appellants, have made a scathing attack on the judgment of conviction. It was submitted that though there were as many as 4 dying declarations, learned Sessions Judge accepted the dying declaration made on 24.03.2006, i.e., on the previous day of death of the deceased. This dying declaration (Ext.2) was a lengthy declaration comprising of three pages giving minute details about the relationship between the husband and wife and various instances of torture inflicted by the husband on the wife resulting in filing of case by the latter. Such a dying declaration was not at all possible for a victim suffering from 90% burn injuries. The said declaration was recorded by a staff of the Magistrate who was not examined. Besides, there was no certification by the Doctor about the mental fitness of the declarant to make the statement. Therefore, learned Court below had erred in placing reliance on the said dying declaration which in any case was contradictory to the earlier dying declarations. The evidence of PW20 Saurav Deb, son of the deceased, clearly demolished the prosecution case. He also stated that his previous statement recorded under Section 164 Cr.PC was a tutored one, at the instance of his maternal uncle. Besides the above, learned counsel for the appellants have highlighted various material contradictions in the testimony of the prosecution witnesses and contended that learned Court below had completely overlooked all such inconsistencies and contradictions and erroneously convicted the appellants. Such conviction cannot be sustained in law
and is liable to be set aside. Mr. Dutta also submitted that in the evidence-inchief of PW7 Shri Madhu Nath Mukherjee, the word ‘not’ appearing in the statement “when I met her at GMCH, I found that she was injured badly but she was ‘not’ in a position to speak” was struck off without any initial which materially altered the meaning of the statement. I n support of their submissions, reliance has been placed on the following decisions:-
(1980) 1 SCC 240 = Rabi Chandra Pradhan Vs. State of Orissa , (1993) Supp (3) SCC 343 = Gobind Narain Vs. State of Rajasthan , 1998 (3) GLT 234 = UP State Sugar Corporation Ltd Vs. Mahalchand
Motilal Kothari ,
(1999) 7 SCC 695 = Paparambaka Rosamma Vs. State of AP,
(2002) 7 SCC 56 = Ramilaben Hansmukhbhai Khristi Vs. State of Gujarat , (2003) 8 SCC 745 = Narmada Devi Gupta Vs. Birendra Kumar Jaiswal ,
(2005) 10 SCC 259 = Mannulal Sahu Vs. State of MP ,
(2007) 13 SCC 112 = Mehiboobsab Abbasabi Nadaf Vs. State of Karnataka , (2008) 5 SCC 468 = Amol Singh Vs. State of MP,
(2009) 12 SCC 600 = Gopal Vs. State of MP,
2010 (5) GLT 657 = Anup Malla Vs. State of Tripura,
(2011) 13 SCC 125 = Waikham Yaima Singh Vs. State of Manipur
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On the other hand, Mr. Phukan, learned Additional Public Prosecutor,
vehemently argued in favour of the judgment under appeal contending that there is no error or infirmity in the conviction of the accused-appellants and therefore no interference is called for. The Ext.2 dying declaration of the victim was trustworthy and reliable and was rightly acted upon by the Court. I t was corroborated by other evidence on record. The evidence on record clearly points to the involvement of the accused-appellants in the murder of the victim. No other view is possible. Since accused-appellant No.1 was present in the house when the incident had occurred, it was his duty to have explained the circumstances leading to the fatal burn injury of the deceased. Failure to explain the circumstances may invite adverse inference and this is what has happened in
the instant case. He, therefore, seeks dismissal of the appeal. I n support of his submissions, learned Additional Public Prosecutor has placed reliance on the following decisions:-
(1974) 3 SCC 368 = Kishan Narain Vs. State of Maharashtra ,
(1975) 3 SCC 241 = Godhu Vs. State of Rajasthan ,
(1992) 2 SCC 474 = Smt. Paniben Vs. State of Gujarat ,
(2002) 7 SCC 639 = State of Karnataka Vs. M.N. Ramdas ,
(2006) 10 SCC 681 = Trimukh Maroti Kirkan Vs. State of Maharashtra ,
(2016) 4 SCC 583 = Gulzari Lal Vs. State of Haryana.
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Submissions made by learned counsel for the parties have received the
due consideration of the Court. Also perused the record and the decisions cited at the Bar.
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At the outset, it would be apposite to briefly refer to the evidence of the
relevant prosecution witnesses.
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PW1 is Smt. Pratima Das, a neighbour. She stated that on 20.03.2006 at
about 9.30 pm, she heard a hue and cry in the residence of the accused Shyamalendu. She rushed there and saw the victim being engulfed by fire and she was running towards the house. She came to the house of the accused and found the victim sitting in the bathroom and the people who had gathered there were pouring water on her. According to PW1, victim told the people who had gathered there that elder brother of the accused Shyamalendu Deb, i.e., accused No.2, had put fire on her. PW1 stated that she had been staying in the locality for the last 5 years and during this period, she saw the victim being subjected to torture for demand of dowry. Victim was a school teacher...
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