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KONPAI HAZARIKA @ HEMANTA HAZARIKA V/S STATE OF ASSAM, decided on Monday, July 10, 2017.
[ In the High Court of Gauhati, Criminal Appeal (J) No. 49 of 2014. ] 10/07/2017
Judge(s) : HITESH KUMAR SARMA
Advocate(s) : S.K. Ghosh, Amicus Curiae. K. Sarma, Addl. P.P.
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    1. This is an appeal from jail preferred by accused/appellant Sri Konpai Hazarika @ Hemanta Hazarika who has been convicted by judgment and order dated 10-02-2014 passed by the learned Sessions Judge Dhemaji in Sessions Case No. 81(DH) 2012 under Section 306 IPC to suffer rigorous imprisonment for 5 years and to pay a fine of Rs. 2 000/- in default to suffer simple imprisonment for further period of 6 months.2. I have heard Mr. SK Ghosh learned Amicus Curiae appearing on behalf of accused-appellant and Mr. H Sarma learned Additional Public Prosecutor Assam.3. The deceased Tutumoni Chetia committed suicide by lighting herself after pouring kerosene on her body at about 4.00 p.m. on 01-12-2012 while none of her family members was present in the house. She was immediately taken to Dhemaji Civil Hospital where she died on 18-02-2012.4. The FIR about this occurrence was lodged by the mother of the deceased Smti. Bina Chutia vide Ext.1 alleging that deceased committed suicide due to harassment caused by the accused-appellant. On receipt of the FIR Silapathar Police Station registered a case being Silapathar Police Station Case No. 31 of 2012 under Section 306/511 IPC investigated into it collected evidence and finally submitted the charge-sheet against the accused-appellant under Section 306 of the IPC.5. The accused-appellant pleaded innocence to the charge framed against him under Section 306 of the IPC.6. The prosecution produced and examined 11 witnesses and the defence examined 1 witness.7. On scanning the evidence of the witnesses it is found that none of them witnessed the occurrence.8. The evidence of PW7 the Medical and Health Officer-1 Dhemaji Civil Hospital is that the deceased was brought to the hospital with flame burn injuries. She succumbed to the flame burn injuries sustained by her. This witness recorded the dying declaration of the deceased which is marked Ext.3 on 03-02-2012 in presence of witnesses.9. The investigating police officer examined as PW8 also deposed that in the meantime the mother (PW1) of the victim took Tutumoni (since deceased) to her house and on being referred by the Civil Hospital to the AMCH Dibrugarh. This witness recorded the statement of the victim in presence of the witnesses. This witness shifted the victim to the Dhemaji Civil Hospital with a request to record her dying declaration. Accordingly the Medical Officer recorded her dying declaration. This witness also recorded the statement of the victim vide Ext. 6 in presence of witnesses.10. PW5 and PW6 are the witnesses to the statement of the victim recorded by PW8 the investigating police officer. Both these witnesses have categorically stated in their evidence that PW8 recorded the statement of the victim in their presence vide Ext. 6 and that both of them heard the victim/deceased tell about the cause of her attempt to commit suicide to the police officer.11. Evidence of PW7 the medical officer makes it appear that he recorded the statement of the victim on 03-02-2012. In the dying declaration the deceased clearly stated that due to harassment by the accused-appellant in insisting that she enter into marriage with him she set herself on fire.12. PW 11 is another doctor who conducted the autopsy of the deceased. He exhibited the post mortem examination report as Ext. 8. In the post mortem examination report as well as in his evidence he is found to have opined that there was clear evidence of burn injury with scaling of tissues all over the body except the scalp. The cause of death as per the post mortem examination report was due to secondary infection resulting in sepsis and death. The burn injury recorded was 83%.13. From the above evidence of PW7 PW8 and PW11 it is found that the cause of death of the deceased was due to burn injury sustained by her.14. Now the question is whether the accused-appellant abetted the deceased in commission of suicide?15. The evidence of the informant examined as PW1 is that she is the mother of the victim. The accused-appellant is the husband of the elder sister of the victim. The victim/deceased was harassed by the husband of her elder sister i.e. the accused-appellant. PW2 is found to have stated in his evidence that the victim committed suicide on being abetted by the accused-appellant as he had been harassing her with a view to marry her. The accused-appellant used to visit the house of the informant.16. PW3 Smti Hirumoni Gohain who is another elder sister of the victim/deceased also deposed that on her failure to withstand the harassment and torture by the accused-appellant the victim/deceased committed suicide. The accused-appellant was insisting upon the victim/deceased to marry him. PW5 and PW6 also deposed that the accused-appellant wanted to marry the victim/deceased and insisted therefor and on her failure to tolerate this she committed suicide. The evidence of PW3 PW5 and PW6 are corroborative.17. PW 9 is the Executive Magistrate who conducted inquest of the dead body of the deceased vide Ext. 2. He also noticed flame burn injuries on the person of the deceased. PW 2 is a witness to the inquest of the dead body of the deceased made vide Ext. 2. He also deposed that the victim succumbed to burn injury. His further evidence is that he had seen the accused visiting the house of the informant.18. PW10 is the ASI of police. His evidence is related to conduct of inquest of the victim/deceased only.19. So it appears from the above evidence on record that non-official witnesses have stated in one voice that the victim/deceased was subjected to torture by the accused-appellant in pressurising her to marry him but the fact remains that none of them were witnesses to the occurrence.20. There are two dying declarations of the victim/deceased in this case one in the form of statement recorded by the investigating police officer vide Ext.6 on 02-02-2012 i.e. the date of occurrence and the other is recorded by the Medical and Health Officer-1 Dhemaji Civil Hospital in the Dhemaji Civil Hospital on the request of the investigating police officer vide Ext.3. The victim died on 17-02-2012. The evidence of the doctor PW7 who recorded the dying declaration marked as Ext. 3 is that the victim was in a fit condition to speak on that day. The evidence on record makes it clear that the victim/deceased sustained burn injuries all over her body except her scalp. Therefore the evidence of PW7 that she was in fit state to make the statement is convincing and reliable as her mental faculty was working at the time and she was in a position to speak.21. This Court has meticulously examined the dying declaration of the victim/deceased recorded by PW7 the Medical and Health Officer and found that in her dying declaration the victim/deceased without any ambiguity stated that the accused-appellant wanted to marry her used to call her to his house and even when she did not come he used to send his wife to bring her to his house. The accused-appellant was pressurizing her to marry him. In the statement recorded by the investigating police officer vide Ext.6 also she appears to be consistent in her such statement.22. Now this Court is left with only the dying declarations of the victim/deceased in the absence of any eye witness to the occurrence.23. In Section 32 (1) of the Indian Evidence Act it is laid down that- Statement written or verbal of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstance of the case appears to the Court unreasonable are themselves relevant facts. The principle on which the dying declarations are admitted in evidence is indicated in legal maxim; “Nemo moriturus praesumitur mentire” i.e. a man will not meet his Maker with a lie in his mouth.24. Now it has to be seen whether the dying declaration made by the deceased is acceptable.25. A Constitution Bench of the Supreme Court in Laxman Vs. State of Maharashtra reported in (2002) 6 SCC 710 has summed up the principles governing dying declaration as under:- “3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity when the party is at the point of death and when every hope of this world is gone when every motive to falsehood is silenced and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court however has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant...”26. In Satish Chandra Vs. State of Madhya Pradesh reported in (2014) 6 SCC 723 Supreme Court while observing that “Simply because statement is not recorded in the form of question and answers is no reason to discard it once. It is otherwise found to be trustworthy and can be treated as dying declaration admissible under Section 32 of the Evidence Act. No doubt it is emphasised by this Court that recording of such a statement in the form of question and answer is more appropriate method which should generally be resorted to. However that would not mean that if such a statement otherwise meets all the requirements of Section 32 and is found to be worthy of credence it is to be rejected only on the ground that it was not recorded in the form of question and answers.”27. The Hon’ble Supreme Court in Ramesh Vs. State of Haryana reported in (2017) 1 SCC 529 held that “A dying declaration is an independent piece of evidence like any other piece of evidence neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard-and-fast rule of universal application as to whether percentage of burns suffered is a determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn part of the body affected by the burn impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement... It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate to a police officer to a public servant or to a private person. It may be made before the doctor; Indeed he would be the best person to opine about the fitness of the dying man to make the statement and to record the statement where he found that life was fast ebbing out of the dying man and there was no time to call the police or the Magistrate. In such a situation the doctor would be justified rather duty bound to record the dying declaration of the dying man.”28. In the present case the victim committed suicide as stated above. Section 32 of the Indian Evidence Act as held by the Hon’ble Supreme Court in the case of Kans Raj v. State of Punjub reported in 2000 Crl.L.J. 2993 (3001) held that Section- 32 of the Evidence Act does not speak of homicide alone but includes suicide also and all circumstances which may be relevant to prove a case of suicide.29. The dying declaration of the victim made vide Ext.3 before the Medical Officer makes it clear that even when she went to market with one of her elder sisters the accused-appellant too had come to the market and insisted upon her to come to his house. The victim then informed her two elder sisters over phone who rushed to the market and seeing them the accused/appellant fled away. She returned back home. She was disturbed. She did not want to marry the accused-appellant. She thought of her mother and her brother. Then all of a sudden she poured kerosene on her body and lighted without even knowing as to how she had done the same.30. Such evidence of the victim/deceased is believable. There is no reason not to rely upon this dying declaration. That apart vide Ext.6 also the victim made another statement to the investigating police officer with the same facts in presence of witnesses i.e. PW5 and PW6. Both PW5 and PW6 deposed that the victim narrated to the investigating officer about the reason of her attempt to commit suicide. Both of them corroborated the evidence of PW8 in this regard.31. There is absolutely no evidence suggesting even remotely that the dying declarations are the result of tutoring or product of imagination. The victim/deceased was also in a fit state of mind to make the statements. Therefore the decision in Laxman (supra) is applicable in this case.32. On the other hand in Ramesh (supra) it is observed that the doctor is the best person to opine about the fitness of a dying person to make the statement. In the instant case PW7 the doctor not only recorded the dying declaration vide Ext.3 but also opined that she was in a fit state to make the statement.33. In the above backdrop there is nothing to disbelieve the prosecution story; rather it appears to be most reliable in view of not only the dying declaration but also from the evidence of PW1 PW4 PW5 and PW6 to the effect that the victim was harassed by the accused-appellant in pressuring her to marry him and thereby creating circumstances which compelled her to commit suicide.34. Therefore the order of conviction recorded by the learned trial Court holding the accused-appellant guilty of commission of offence under Section 306 of the IPC does not call for any interference.35. In respect of substantive punishment the accused-appellant has been sentenced to rigorous imprisonment for 5 years and to pay a fine of Rs. 2 000/- in default simple imprisonment for 6 months with a further order to set off the period of detention the accused-appellant had already spent in jail. The accused-appellant has been in jail for more than 3 years and 4 months since the date of the judgment of the learned trial Court. He was in custody during the investigation and trial also which is ordered to be set off by the learned trial Court.36. The accused-appellant has three minor children and he has responsibility to bring them up. Considering the facts and circumstances of the case including the fact that the accused-appellant has three children apart from his wife to maintain in the considered view of this Court the substantive sentence of the accused-appellant if reduced to the period of sentence already undergone will meet the ends of justice.37. Accordingly the substantive sentence imposed upon the accused-appellant is reduced to the period already undergone. In respect of the punishment of fine and the default clause this Court retains the same.38. In view of above the appeal is partly allowed.39. Send down the LCR to the Court below with a copy of this judgment and order immediately.40. Also send a copy of this judgment to Superintendent of District Jail Kokrajhar for furnishing the same to the accused-appellant.41. This Court records its appreciation for the assistance rendered by learned Amicus Curiae. Learned Amicus Curiae be paid an amount of Rs. 7 000/- as remuneration.