Kamal Arjya vs State Of Assam And Anr

H.K. Sarma, J

This appeal, under Section 374(2) of the Cr.P.C., is preferred against the judgment and order, dated 06-07-2015, passed by learned Sessions Judge, Barpeta, in Sessions Case No. 222 of 2011, convicting the accused-appellant, under Section 302 of the IPC, and sentencing him to undergo Rigorous Imprisonment for life and to pay a fine of Rs.5,000/-, in default, to suffer Rigorous Imprisonment for three months.

The case for the prosecution, as unfolded during the trial, is that the deceased Dipali Malakar, the daughter of the informant Sri Subal Malakar (PW1), was married to the accused-appellant, Kamal Arjya. On 03-02-2009, she was caught hold of by accused Bimal Arjya and Shyamal Arjya and accused Kamal Arjya, poured kerosene on her body and set her on fire resulting, ultimately, in her death within 1½ years of her marriage. It has also been unfolded that while the deceased was alive and under medical treatment at hospital, the FIR was lodged on 04-02-2009. The victim died subsequently, on 14-02-2009.

On receipt of the FIR, Barpeta Police Station registered a case being Barpeta Police Station Case No. 87/2009, under Section 498(A)/34 of the IPC, investigated into it and, finally, on completion of investigation, laid charge-sheet against the accused-appellant and two other accused persons, namely, Bimal Arjya and Shyamal Arjya for commission of offences under Sections 498(A)/304(B)/34 of the IPC.

The learned trial Court, initially framed a formal charge against the accused-appellant and the co-accused under Sections 498(A)/304(B)/34 of the IPC, and subsequently, charge under Section 302 of the IPC was also framed against them.

In this case, prosecution examined as many as 9 witnesses and the defence examined none. In his statement, recorded under Section 313 Cr.P.C., the accused-appellant denied the accusation to be false and had also taken the plea of alibi. On completion of the trial, the learned trial Court convicted the accused-appellant under Section 302 of the IPC and sentenced him, as indicated above, and acquitted the remaining accused persons.

We have examined the record of the learned trial Court including the impugned judgment and order. Also heard arguments advanced by Mr. P.D. Nair, learned counsel appearing on behalf of accused-appellant and Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam.

PW1, Sri Subal Malakar, is the father of the victim. According to him, the victim was married to the accused-appellant about 3 years back (on the date of recording his evidence) and since after the marriage, the accused-appellant and his other two brothers, namely, Bimal Arjya and Shyamal Arjya, (who were also accused in this case), subjected her to physical and mental torture demanding dowry and such fact was brought to the notice of this witness by the victim whenever she visited her parental home. It has also come out from his evidence that while the victim was carrying 8 months' pregnancy, on 03-02-2009, at about 7.30 pm, the accused persons Bimal Arjya and Shyamal Arjya caught hold of the victim and the accused-appellant poured kerosene on her body and set her on fire. Hearing hue and cry, he went to the house of the accused persons, situated close to his house, and found that the accused persons Bimal Arjya and Shyamal Arjya caught hold of the victim and the accused-appellant poured kerosene on her and set her on fire and noticing his presence there, they fled away from the scene of occurrence. He tried to douse the fire which engulfed the victim with the help of his wearing clothes although, in the meantime, she was completely burnt. She was immediately shifted to Barpeta Civil Hospital and from there she was taken to Gauhati Medical College and Hospital (GMCH). She died after three days as a result of the burn injuries. He has categorically stated that while the victim was alive and was in a position to speak, her statement was recorded at hospital by a police officer in his presence and his daughter disclosed about the involvement of the accused persons, who set fire on her body after pouring kerosene. He has exhibited the FIR as Ext.1.

In his cross-examination, he has admitted that with regard to the allegation of physical and mental torture to his daughter by the accused-appellant and others, he did not lodge any FIR. He has further stated, in his cross-examination, that while the victim was undergoing treatment in GMCH, another brother of the accused-appellant, Sri Nilamoni Arjya (PW5) and himself brought the victim to the house of the accused-appellant and after keeping her there for one night, she was again taken to the GMCH and after three days, she died. He did not remember whether the victim died after 13 days of the incident. He has further admitted, in his cross-examination, that while the victim was undergoing treatment at GMCH, no Magistrate or Police went to the hospital and that the victim's statement was recorded by one doctor of GMCH. She was capable of speaking at the time of undergoing treatment at GMCH. He denied that the doctor and police did not record the statement of the victim while she was alive. It has also come out from his cross-examination that he did not state before the police, during investigation, that whenever his victim daughter came to his house, she reported to him that the accused persons meted out torture to her demanding dowry. Admittedly, he also did not state before the police that the victim's statement was recorded in the civil hospital by police wherein she had stated that the accused persons had set fire on her after pouring kerosene. He also did not state to the police that he rushed to the place of occurrence.

PW2, Uttam Arjya, deposed that at the time of the occurrence, while he was coming back from market, he saw gathering of people in front of the house of accused-appellant, Kamal Arjya and on his query, people in the gathering told him that the accused-appellant had set fire on the victim after pouring kerosene. Thereafter, he left the place of occurrence.

In his cross-examination, he admitted that he did not see the victim and he has no personal knowledge of the occurrence. The evidence of this witness appears to be hearsay evidence and cannot be acted upon.

It is the evidence of PW3, Barun Arjya that he heard from one Jiten Arjya (PW6) that the accused-appellant had set his wife on fire after pouring kerosene. Then, he proceeded to the place of occurrence and saw that the victim was lying in the courtyard of accused-appellant with burn injuries all over her body. According to his evidence, the victim told him that the accused-appellant had set fire on her. He has also deposed that she was carrying 7 months' pregnancy on the date of occurrence. This witness also deposed that one Lakhi Arjya, who resided adjacent to the house of the victim, also told him that the accused-appellant had set fire on his wife (victim) after pouring kerosene. He himself along with another brother of the accused-appellant, Nilamoni Arjya (PW5), had taken the victim to Barpeta Road Civil Hospital in a hand-push-cart. The evidence of this witness is not supported by the evidence of PW6, Jiten Arjya, as the PW6 did not state, in his evidence, that he had informed this witness (PW3) about the accused-appellant setting his wife on fire. On the other hand, one Lakhi Arjya, who also told him that the victim stated to her that the accused-appellant had set the victim on fire, is not found to have been produced and examined by the prosecution in this case raising doubt that had she been examined she would not have supported the prosecution version of the case. On the other hand, so far the evidence of PW3 that he heard about the occurrence from PW6, the Investigating Police Officer (PW9) stated in his evidence that no such statement was made by PW3 before him and the PW6 and the PW9 (Investigating Officer) also did not state in their evidence that he (PW3) was called to the place of occurrence by PW6 and, then, the alleged dying declaration was made by the victim before him accusing the accused-appellant. If the visiting of the place of occurrence by the PW3 at the instance and along with PW6 is belied, then naturally and logically making of any dying declaration before him by the victim has to be taken as not true.

The evidence of PW4 is completely hearsay and his evidence is not found at all implicating the accused-appellant.

PW5, Sri Nilamoni Arjya, is the brother of the accused-appellant. It has come out from his evidence that he, together with PW1 had taken the victim to hospital immediately after the occurrence. PW5 also deposed that the victim was taken to the Barpeta Civil Hospital and therefrom to GMCH for better treatment.

In his cross-examination, he is found to have stated that on their way to hospital, on being asked, the victim told this witness that she caught fire while she was cooking food in the kitchen.

PW6, Sri Jiten Arjya, deposed that after hearing hue and cry, he went to the house of the accused-appellant and found a gathering of people there. From the gathering, he came to know that the victim sustained burn injuries on her body and she was immediately shifted to hospital by police. This witness was declared hostile by the prosecution and was subjected to cross-examination. In his cross-examination by the prosecution, he deposed that he did not state before the police that on 03-02-2009, the accused-appellant poured kerosene on the person of his wife and set her on fire. He also denied that he deposed falsely.

In his cross-examination, he deposed that already 10/15 persons gathered at the place of occurrence and police went there. The victim was taken to hospital by PW5 in his own hand-push-cart. The prosecution did not receive support from the evidence of PW6 to implicate the accused-appellant with the commission of the alleged offence. On the other hand, as indicated above, during the discussions of the evidence of PW3, we have found that the PW6 has also belied the evidence of PW3.

PW7, Sri Bimal Roy, is one of the Investigating Police Officers. He was entrusted with the investigation at a later stage. He only arrested the accused-appellant and forwarded him to Court. He also submitted charge-sheet after finding prima facie materials against the accused-appellant and others, vide Ext. 2. However, this witness deposed, in his cross-examination, that he recorded the statement of PW6 stating further that the PW6 did not state before him that he had witnessed the occurrence and that he knew about any torture meted out to the victim by the accused-appellant and also that he heard from the deceased that the accused-appellant set her on fire inspite of the fact that in his examination-in-chief, this Investigating Police Officer deposed about making of statement by PW6 that it was the accused-appellant, who had poured kerosene on his wife and set her on fire. The evidence of this witness, in his examination-in-chief, in respect of the statement made to him by PW6 is completely demolished by the defence while it has come out from cross-examination that PW6 never claimed himself to have witnessed the occurrence and about the fact that he was told by the victim that the accused-appellant had set fire on her.

PW8, Dr. R. Chaliha is the Professor and Head of the Department of Forensic Medicine of GMCH. He deposed that one Dr. S.J. Gogoi, of Department of Forensic Medicine, GMCH performed the post mortem examination. As per the post mortem examination, following were the findings recorded:

"External App.:-

Colm.(1) to (3):- A Female dead body, average built, dark brown complexion and covered with surgical bandage all over the body except both hands and feet. Eyes and mouth closed. Rigor mortis partly present all over the body. Body cold on touch.

INJURIES:-

Burn injuries present all over the body except- (1) both hands and (ii) both feet.

Burn injuries are both epidermal and dermo-epidermal (1st to 4th degree)

Burnt areas are covered with slough mucons material, gramlation tissues found at the burnt area, greenish mucos material present. Burn injuries were antermortem covers approximately 90 to 95% of total body surface area.

More detailed description of injury or disease:- Nil

OPINION:- In my opinion death was due to septicaemic shock as a result of burn injuries described.

Burnt injuries were ante mortem and covers approximately 90 to 95% of total body surface area. Appx.

Time since death is 24 to 36 hours.

Ext.3 is the PM report and Ext.3(1) is the signature of Dr. S.J. Gogoi. I am familiar with the signature of Dr. S.J. Gogoi."

This witness has not been subjected to cross-examination by the defence.

PW9, Ashish Sen, is another Investigating Police Officer, who had mostly investigated this case and recorded statements of most of the witnesses and of some of the accused persons. He has belied the evidence of PW2 that he was told by the people in the gathering that the accused-appellant had set fire on his wife. This witness has deposed, in his cross-examination, that PW2, Uttam Arjya, did not state before him that while he was returning from the market to his house, he saw a gathering of people in front of the house of the accused-appellant and the people in the gathering told him that the accused-appellant had set his wife on fire. He has also denied that PW3 stated before him that he heard from PW6 about the accused-appellant setting his wife on fire. It has also come out from the evidence of this witness that he did not meet the victim while she was undergoing treatment in the hospital and even did not record her statement. He also did not seize any article in connection with the case.

So far the evidence of PW2 to PW9 are concerned, we have narrated their evidence above and together with such narration also stated the contradictions brought in their evidence as well as their reliability.

The evidence of PW1 has not been specifically discussed yet. Now, we will specifically take up the evidence of PW1. As stated by PW1, in his evidence, the victim was his daughter and his house is close to the house of the accused-appellant and he rushed to the place of occurrence immediately while his daughter was still engulfed by fire. But he himself has stated, in his cross-examination, that he did not state before the police that he had rushed to the place of occurrence and as such, the fact that he had rushed to the place of occurrence while the victim was still on fire, appears to be an improvement in his evidence before the Court. He has also stated in his examination-in-chief itself that the police had recorded the statement of the victim in the hospital in his presence and his daughter implicated the accused-appellant of setting fire on her. From his such evidence, it appears that he has claimed the victim to have made a dying declaration before the police but the Investigating Police Officers, PW9 made it clear, in his evidence, that he did not meet the victim during investigation. Another Investigating Police Officer, PW7, has also not led any evidence that police had recorded dying declaration of the victim. If it is so, there is no dying declaration made before police. PW1 also deposed that the victim had made a statement recorded by the doctor at Barpeta Civil Hospital and another statement recorded by the doctor at GMCH while she was under treatment. But, evidently, there is no such dying declarations brought on record by the prosecution or any of the doctors allegedly recording such statements is examined to throw light on the fact of the victim making any dying declaration. Therefore, the evidence of PW1, on these counts, fails to withstand the test of credibility.

The learned trial Court did not believe the evidence of PW5, one of the brothers of the accused-appellant. But, from the admitted evidence of PW1 it appears that he was accompanied by PW5 (Nilamoni Arjya) to the hospital and even this PW5 had carried the victim in his hand-push-cart and half way to the hospital, the victim was shifted to an 108 ambulance. They also accompanied the victim in the 108 ambulance. The evidence of PW5 also shows that when asked, the victim told him that she had caught fire while cooking food. Such evidence of PW5 remained intact the same being not impeached. There is, therefore, no reason to disbelieve his evidence. If his evidence is believed, then, the victim caught fire while cooking and it was not the accused-appellant, who had set her on fire, as alleged. On the other hand, the evidence of the prosecution witnesses, as discussed and pointed out above, are contradictory to such an extent that relying on their evidence to hold the accused-appellant guilty of commission of the alleged offence will be completely unsafe. We have already found that there is no dying declaration as alleged by the informant (PW1); rather, oral dying declaration said to have been made before PW5 by the victim appears to be reliable. The oral dying declaration made by the victim before PW5 is found absolving the accused-appellant.

In view of the discussions above and findings recorded during the discussions, in the considered view of this Court, the prosecution has not been able to bring home the charge against the accused-appellant for the offence punishable under Section 302 of the IPC, and as such, he deserves to be acquitted on benefit of doubt.

We note here that the accused-appellant and other co-accused have already been acquitted by the learned trial Court in respect of the charges under Section 498(A) and 304(B) of the IPC in the absence of any material to substantiate such charges.

In view of above, the appeal is allowed. The judgment passed by the learned trial Court and impugned in this appeal is set aside.

Issue release order immediately.

Send down the LCR along with a copy of this judgment.