DILDAR ALI and 2 ORS vs THE STATE OF ASSAM

Ajit Singh, C.J.

1.The appellants Dildar Ali, Haidar Ali and Diljan Bibi have been convicted under Section 302/34 of the Indian Penal Code and sentenced to

imprisonment for life and fine of Rs.5,000/- each, with default stipulation. They have, however, been acquitted of the charge under section 304-B of

the Indian Penal Code.

The victim of the incident was Anjuma Bibi, aged about 22 years. She was the wife of appellant Dildar Ali and the two appellants Haidar Ali and

Diljan Bibi were her in-laws being the parents of Dildar Ali.

According to the prosecution case, Anjuma was married to Dildar Ali about 9 years prior to the date of incident and both of them lived together

along with their minor child aged 8 years. Haider Ali and Diljan Bibi used to live separately from Dildar Ali in another house. On 23.04.2009 at about

11 a.m. Hakim Ali (PW-1) - the brother of Anjuma - got information that the appellants tried to kill Anjuma in the house by burning her after pouring

kerosene oil and she had been rushed to Dhubri Civil Hospital. He immediately went to the hospital where Anjuma disclosed him that appellants had

set fire on her after pouring kerosene. He then lodged the First Information Report (Ext-1) before Dhubri Sadar Police Station. Uncle Jahanuddin

Sheikh (PW-2) of Anjuma - who was also a police officer attached to the Dhubri Police - came to see her in the hospital where she again disclosed to

him that due to non-fulfillment of demand of dowry, Dildar Ali poured kerosene oil on her and the other two appellants set fire on her and thereafter,

the people of the village brought her to the hospital. Anjuma also stated before her father Tamajuddin (PW-3) that the appellants had set fire on her

after pouring kerosene, when he came to see her in the hospital.

The Station Officer â€" Hemkanta Pathak (PW-10) of the Police Station went to the hospital and got the dying declaration Exhibit 6 of Anjuma

recorded on the next day i.e. 24.04.2009 by Sadhan Kumar Sarkar (PW-13), Circle Officer of Dhubri in the presence of Jamuna Roy (PW-11), Staff

Nurse of Dhubri Civil Hospital. Anjuma in her dying declaration stated that after her marriage, the appellants used to scold and torture her. They did

not allow her to go out and used to confine her inside the house. On 20.04.2009 the appellants first assaulted her whereafter they poured kerosene by

holding her and then Dildar Ali set fire on her and went out. She also went out of the house.

Anjuma after receiving treatment for 14-15 days was discharged from hospital and brought to the house of Hakim Ali. But after 4/5 days her

condition deteriorated and then she was again shifted to the hospital where she breathed her last on 19.05.2009. Dr.Tofijur Rahman (PW-9)

conducted the post mortem examination on the body of Anjuma. He in his post mortem examination report exhibit 4 confirmed that Anjuma died due

to septicemia which was caused due to burn injuries or otherwise. The Station House Officer - Hemanta Pathak arrested the appellants and after

investigation filed charge sheet Exhibit-7 against them.

During trial, the appellants abjured their guilt and pleaded false implication. But the trial court relying upon the evidence adduced by the prosecution,

convicted and sentenced the appellants as aforesaid.

It is argued on behalf of the appellants that there is no eye witness to the incident and the dying declarations cannot be the sole basis for conviction

without any support from any other independent evidence. The learned Public Prosecutor, on the other hand, defended the conviction and sentence of

the appellants.

After hearing the learned counsel for the parties and perusing the records, we are of the view that the appeal deserves to be allowed by giving

benefit of doubt to the appellants. Since the trial court has already acquitted the appellants of the charge under Section 304-B of the Indian Penal

Code, we have restrained ourselves from discussing the evidence regarding demand of dowry and torture meted to Anjuma. We shall thus confine

ourselves to the point whether the dying declarations of Anjuma are trustworthy and reliable to warrant conviction of the appellants under Section

302/34 of the Indian Penal Code.

As seen above, Anjuma is alleged to have made three oral dying declarations to three different persons, namely, Hakim, Jahanuddin and Tamijuddin

at different point of time in the hospital where she was under treatment. She is also stated to have made one another dying declaration Exhibit -6,

which was recorded by the Circle Officer -Sadhan Kumar Sarkar.

We shall first examine the truthfulness of her oral dying declarations. Anjuma undisputedly sustained burn injuries. It is

the testimony of Hakim that when he came to know that she sustained burn injuries and was shifted to the hospital, he went to see her where she

made her first dying declaration on his asking. According to Hakim, Anjuma stated that due to non-fulfillment of the demand for money, Dildar

tortured her and finally poured kerosene oil on her body whereafter remaining appellants set fire on her. But Hakim, in the first information report, has

not stated that Anjuma told him that Dildar poured kerosene oil on her and the other two appellants set her ablaze. Had Anjuma really made such a

declaration, Hakim would have definitely mentioned about it in the first information report itself. But, instead of doing so, he alleged that all the

appellants had set fire on her by pouring kerosene oil. Besides, during investigation, he stated before police that Anjuma told him that all the appellants

after assaulting her discussed as to who would pour kerosene oil on her whereafter Dildar threw kerosene oil on her below the neck from a bucket.

When she shouted for help and tried to save herself, Dildar lit a matchstick and threw towards her legs eventually setting her ablaze. The testimony of

Hakim made in the court is completely different from his earlier statement made before police. Besides, his statement before police was elaborate and

exhaustive describing each and every minute detail as to how the occurrence took place. But he did not testify in such an elaborate manner in the

court and omitted materially that too changing his earlier version to a considerable extent. It is thus clear that actually no declaration was made by

Anjuma before him and he, on his own imagination, concocted a story before the police.

Another dying declaration of Anjuma was made to Jahanuddin Sheikh in the hospital on his asking. According to Jahanuddin, Anjuma disclosed

that Dildar had poured kerosene oil on her body and remaining appellants set fire on her and thereafter the people of village brought her to the hospital.

But during investigation, Jahanuddin Sheikh stated before police that Anjuma told him that after confining her inside house, Haidar Ali and Diljan Bibi

instigated Dildar to pour kerosene oil on her and then Dildar lit a matchstick and ignited a piece of wood whereupon he set her ablaze by throwing the

piece of wood from a distance. His testimony in the court is thus completely different from his earlier statement made during investigation and has

material contradictions and omissions. Hence, the evidence of second oral dying declaration is also untrustworthy.

The third oral dying declaration was made by Anjuma to her father â€" Tamijuddin when he visited her in the same hospital. Tamijuddin has

deposed that Anjuma told him that due to non-fulfillment of demand for money, the appellants poured kerosene oil on her person and then set fire on

her. But, Tamijuddin stated before police that Anjuma told him that Dildar at first assaulted her with a stick and other two appellants detained her

inside the house and then Dildar poured kerosene oil on her and set her ablaze. The testimony of Tamijuddin is also completely different from his

earlier statement made during investigation and is also strikingly dissimilar from the versions of both Hakim and Jahanuddin as to the involvement of

the appellants in the crime. Therefore, the evidence of even the third dying declaration does not inspire confidence to be relied upon.

Moreover, Anjuma cannot be expected to state different versions separately at different point of time. The oral dying declarations thus made

before Hakim, Jahanuddin and Tamijuddin are discarded.

Now coming to the recorded dying declaration Exhibit-6 of Anjuma, Sadhan Kumar Sarkar has deposed that he recorded the same in the presence

of Jamuna Roy and Hemkanta Pathak. According to Sadhan Kumar Sarkar, Anjuma stated before him that the appellants at first assaulted her and

then poured kerosene oil on her by holding her, then Dildar set fire on her and went outside the house. Her statement Exhibit- 6 recorded by Sadhan

Kumar Sarkar is as follows:-

I, Smti. Anjuma Bibi solemnly affirm and declare that on 20.4.2009 I went to my husband’s house from my parent’s house and from that day

my husband, father-in-law and mother-in-law started to inflict tortures on me and also used to scold me. They did not allow me to go outside. They

confined me in my house. Yesterday, my father-in-law, mother-in- law and husband assaulted me, poured kerosene oil on me by holding me and my

husband set fire to my body and went out. I too went out of the house. My wearings caught fire. I could not say who brought me to the hospital. Upon

hearing and understanding the contents of this declaration I put my thumb impression on it in sound state of mind.

From the evidence of Sadhan Kumar Sarkar it is seen that Anjuma stated before him that Dildar set fire on her after all the appellants together

poured kerosene oil on her. This statement is quite contrary to what Hakim and Jahanuddin Sheikh had earlier deposed. According to their version,

Anjuma told them that Dildar poured kerosene oil and the other two appellants set fire on her. Tamijuddin went a step ahead and said that Anjuma told

him that all of them poured kerosene oil and set fire on her. Therefore, there is material contradiction as to who exactly set fire on her. Besides, it is

categorical admission of Sadhan Kumar Sarkar that he had put questions to Anjuma to which she answered and he recorded the same. But the

questions put by him are not mentioned in Exhibit-6 dying declaration. Further, he also admitted that Anjuma answered in Bengali and he knows

Bengali. However, we find that Exhibit-6 dying declaration was recorded not in Bengali-her mother tongue. As such, there is every possibility of

alteration of her statements to the disadvantage of the appellants. Jamuna Roy has also admitted during her cross-examination that the statement was

recorded in question answer format and she does not know the contents of Exhibit-6 dying declaration. She has deposed that she does not know as to

who wrote the dying declaration and she was called to put her signature only after the same was recorded. She has also admitted that she could not

say as to whether Anjuma had put her signature or thumb impression. It is thus clear that Jamuna did not see Anjuma making any statement and her

signature was obtained on a later stage. Hence, it is uncertain as to what Anjuma stated in her own language Bengali and what was reduced into

writing by Sadhan Kumar Sarkar in a different language by changing the question-answer format into a narrative one. This casts a serious doubt on

the veracity of the dying declaration Exhibit-6. Therefore, we are of the considered view that even this dying declaration is not reliable and cannot

form the basis for conviction of the appellants and the involvement of the appellants in the crime is highly doubtful and as such, they are entitled for the

privilege of the benefit of doubt.

We, accordingly, hold the appellants not guilty and acquit them of the charge under Section 302/34 of the Indian Penal Code. They are in jail since

more than 5 years and as such, they are directed to be released forthwith. The impugned judgment of the trial court is hereby set aside.

The appeal is allowed.