Omar Ali alias Umar Ali vs State of West Bengal

Joymalya Bagchi, J.—The appeal is directed against the judgment and order dated 16.09.1987 passed by the learned Additional Sessions Judge, 9th Court, at Alipore, South 24 Parganas in Sessions Trial No. 9(8)/86, convicting the appellant for commission of offence punishable under Section 304 Part-I of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years.

The prosecution case as alleged against the appellant is to the effect that the deceased was married to the appellant. The appellant suspected the deceased of having affair with his brother who was staying abroad. Relationship between them was strained for the last four months. On 11.2.84 at about 5-30/5-45 A.M. when the deceased was preparing bread on stove for the appellant latter poured kerosene oil on her back from a small lamp. Thereafter, the appellant took victim inside the room and set her on fire by throwing the burning stove on her. Initially, the victim was taken to the Calcutta Hospital and thereafter to S.S.K.M. Hospital by her father, P.W.6. Finally, the victim breathed her last on 26.2.84.

In the meantime, First Information Report being Ekbalpore Police Station Case No. 25 dated 11.2.84 was registered under Section 307 of the Indian Penal Code. However, upon death of the victim Section 302 of the I.P.C. was added and upon conclusion of investigation charge sheet was filed in the instant case against the appellant under Section 302 of the I.P.C. The case being a sessions triable one was committed to the Court of Sessions and transferred to the court of the learned Additional Sessions Judge, 9th Court, Alipore for trial and disposal. In the course of trial prosecution examined as many as sixteen witnesses. Defence of the appellant was innocence and false implication. It was the specific defence of the appellant that the victim had suffered accidental burn which would appear from her statement recorded in the treatment papers (Ext.7). In conclusion of trial, the trial court by judgment and order dated 16.9.87 convicted the appellant and sentenced him, as aforesaid.

Mr. Chakraborty, learned Amicus Curiae submitted that the victim had suffered accidental burn while preparing bread at her matrimonial home. Relationship between the appellant and the victim was strained over an illicit affair between the victim and the brother of the appellant. Accordingly, the appellant sought to be falsely implicated in the instant case. F.I.R. recorded in the hospital but not in the presence of any medical personnel. Evidence of the daughter P.W.2 and the other neighbours probabilise the case of accidental burn while the appellant was having bath at that time. It is further submitted P.W. 6, the father of the victim, has not corroborated the evidence of P.W.15 with regard to purported dying declaration (Ext.8). Accordingly, he prayed for acquittal of the appellant.

On the other hand, Mr. Gupta, learned advocate for the State submitted that Ext. 8 clearly shows that the victim was conscious and had stated that she was set on fire by the appellant. There is no reason to disbelieve the evidence of P.W. 15, Doctor, who recorded such dying declaration. P.W.2 stated that she was sleeping at the time of incident so that her evidence ought not to be given credence. There is no explanation as to why the appellant did not accompany the victim to the hospital. He accordingly prayed for dismissal of the appeal.

Prosecution case is that there is a dying declaration of the victim (Ext.8) recorded by P.W. 15, medical officer, who deposed that on 11.2.84 he was posted at S.S.K.M. hospital as Additional Senior Emergency Medical Officer and on that day at 7 a.m. had examined one Rashida, the victim. She was brought by Md. Suleman, (P.W.6), the father of the victim. She was conscious and able to talk. She made statement that she was burnt by her husband Omar Ali who poured kerosene on her person and set her on fire.

It is however pertinent to note that P.W. 13 is another doctor who treated the victim in the said hospital as indoor patient. She exhibited bed head tickets and other papers (Ext.7). From the Ext. 7 it appears that another dying declaration of the victim was recorded wherein it was stated that she got accidental burnt at 5-30 a.m.

Apart from the aforesaid dying declaration, it is the evidence of P.W.16, Investigating Officer that upon receipt of intimation, he had gone to the hospital and had recorded the statement of the victim which was treated as F.I.R in the instant case. In the said F.I.R the victim purportedly stated that the appellant poured kerosene oil on her person and set her on fire. It also pertinent to note it is, however, the evidence of P.W.1 who took the victim to Calcutta hospital that the victim stated that she suffered accidental burns while making bread for her husband.

It, therefore, appears that there are four purported dying declarations � two incriminating the appellant and the other two exonerating him of the charge. Faced with such a dichotomous situation, it is incumbent on the Court to examine the aforesaid dying declarations in the attending facts and circumstances of the case and come to the conclusion as to which of them are reliable and worthy of credence.

In order to embark on such exercise let me examine the evidence of various witnesses led by the prosecution.

P.W.1 is the neighbour of the appellant. She stated that Rashida was married to the appellant. Her house was 20/30 cubits from that of the appellant. On the date of the incident she went to the house of the appellant and found Rashida had got burnt. She found that other neighbours had also come to the place of occurrence. She took Rashida by Rickshaw and came to learn from her that she had suffered accidental burns. She took Rashida to Calcutta Hospital. Father of Rashida was unable to bear the expenses, he took her to PG. hospital. This witness was declared hostile.

P.W.2 is the daughter of the couple and one of the most vital witnesses. She stated that at the time of occurrence she was in the house with her brother. She did not notice how the victim got burnt. After the victim got fire she started crying. Victim was also shouting while she was burning. At that time, her father, the appellant was in the tubewell for having bath. All the neighbours came to the place of occurrence. The victim was taken to the hospital. In cross-examination, she stated that her mother was making bread when she caught fire and her father tried to extinguish the fire.

P.W.3 is a tenant in the same house where the couple resided. She was sleeping and woke up hearing hue and cry and learnt that the victim had been burnt. She went to the place of occurrence and found Rashida was lying dead, then says, she saw by peeping through the covered verandah that Rashida was burnt and there were breads scattered around the place. She was declared hostile.

P.W.4, the son of the victim, was tendered for cross-examination.

P.W.5 is another tenant in the same house. He stated that the tubewell for taking bath in the house is 20/30 cubits away from the house.

P.W.6, Md. Suleman, father of the victim. He stated that Rashida was burnt on 11.2.84. He deposed that he met the victim at Calcutta Hospital and the victim was accompanied by a woman, as he was unable to bear the expenses he took the victim to P.G. Hospital. She died at P.G. Hospital in the night of 27.2.84. He signed on the inquest report. He stated that there were no bad relation between the victim and the appellant.

P.W.7 is another tenant in the house of the appellant. He stated that on the fateful day he woke up and while returning from tubewell he heard children were shouting that their mother was burning. The appellant was in the bath room and upon being told by him his wife was burning. The police seized some articles. He signed on the seizure list. He was declared hostile.

P.W.8 is another seizure witness who signed on the seizure list.

P.W.9 is the post-mortem doctor. He held post mortem examination on the dead body. He stated that death was due to infected ulcers sequel to burn injuries. P.W.10 is a Senior Scientific Officer at F.S.L., Calcutta. He proved his report (Ext.3). P.W. 11 held inquest over the dead body. He proved the inquest report (Ext.4). P.W. 12 prepared the rough sketch map (Ext.5) and on the basis of rough sketch map he prepared the plan with index (Ext.6).

P.W.13 is the indoor medical officer attached to S.S.K.M. Hospital. She proved the bed head tickets and other papers (Ext.7) containing the exonerative dying declaration of the victim.

P.W.14 is the photographer who took the photographs of the place of occurrence.

P.W.15 was posted at S.S.K.M. Hospital as Additional Senior Emergency Medical Officer at that material point of time. He treated the victim at the Emergency department and recorded statement of the victim implicating the appellant, as aforesaid (Ext.8).

P.W.16, is the investigating officer. He stated that he went to the hospital and recorded statement of the victim (Ext.9) and drew up formal F.I.R. (Ext.9/1). He seized articles from the place of occurrence (Ext.10). He made arrangements for taking photographs and prepared sketch map. He received dying declaration. He added Section 302 IPC to the F.I.R. and finally filed the charge-sheet.

From the aforesaid evidence on record, I find there is no direct evidence that the appellant had poured kerosene oil on the person of the victim and set her on fire. There is, however, evidence to that effect at the time when the victim caught fire she was making bread on the burning stove and the appellant was in the tubewell which was about 20/30 cubits away from the bed room. Such evidence is coming from the mouth of the daughter of the couple (P.W.2). This evidence of the daughter is corroborated by the neighbour, P.W.7. No doubt P.W. 7 has been declared hostile but such fact does mean his evidence in its entirety has to be thrown out. On the other hand, the portion of his evidence as to the appellant being in the tubewell which receives at the time of occurrence corroboration from the daughter of the couple, P.W.2 may safely be relied upon.

That apart, P.W. 1 who carried the victim to the Calcutta Hospital stated that the victim made oral declaration of having suffered accidental burns. All these pieces of evidence favour the case of accidental fire as narrated by the victim and recorded in the bed head ticket (Ext.7). In contrast, the incriminating dying declaration (Ext.8) does not ever find support from P.W.6, the father of the victim who admittedly was present at the time of making such declaration during her admission in the hospital. P.W.6 in his deposition, has not stated that the victim stated to the doctor she was set on fire by the appellant. He is absolutely silent on such score.

Accordingly, I find it difficult to rely on such incriminating dying declaration (Ext.8) which does not find corroboration from the attending circumstances and, on the other hand, is contradicted by another dying declaration Ext.7 which, in fact, is corroborated by the attending facts and circumstances of the case. Coming to the F.I.R. which was recorded by P.W. 16, I find that the same was not recorded in presence of any medical personnel and none of the medical personnel has said that the victim was conscious when the F.I.R. was recorded. It appears to be highly unnatural that the police officer would interrogate the victim in the hospital in absence of any medical personnel and in view of such fact, I am unwilling to rely on such statement recorded by the police officer which is treated as F.I.R. in the instant case.

For these reasons, I am of the opinion, that prosecution has failed to prove its case beyond reasonable doubt and the appellant is entitled to the benefit of doubt.

The conviction and sentence recorded against the appellant is, therefore, set aside.

The appeal is, thus, allowed.

The appellant shall be discharged from his bail bonds after expiry of six months in terms of Section 436A Cr.P.C. Let the lower court along with the copy of the judgment record be sent down immediately.

I record my appreciation for the able assistance rendered by Mr. Chakraborty as Amicus Curiae in disposing of the appeal.

Let photostat certified copy of this order be given to the parties, if applied for, on urgent basis upon compliance of all formalities.