Marjina Bibi vs State Of Tripura

S. Talapatra, J

Heard Mr. Raju Datta, learned counsel appearing for the appellant and Mr. S. Ghosh, learned Additional PP appearing for the respondent-State.

The appellant was charged under Sections 448 and 302 of the IPC. After recording the evidence in the trial, the appellant was convicted and sentenced under Sections 302/448 of the IPC as according to the trial court, the evidence led by the prosecution stands to prove the charge beyond reasonable doubt. The appellant has been sentenced pursuant, to the said conviction, to suffer rigorous imprisonment for life and to pay a fine of Rs. 10,000/- with default stipulation. The appellant has been further sentenced to suffer 1 year rigorous imprisonment for committing offence punishable under Section 448 of the IPC.

The genesis of the prosecution is rooted in the complaint (Exhibit-7) filed by one Hiran Bibi (PW-12) revealing that on 29.07.2014 at about 7.00 pm Marjina Bibi, the appellant herein, had set fire on her minor daughter, namely, Rupanna Begam, the victim after pouring kerosene oil in her person on their dwelling hut. Marjina Bibi is the wife of her brother-in-law (PW-12). In the said incident her daughter sustained burn injuries and was transported to GBP hospital, Agartala. On the basis of the said complaint, initially a case under Section 326/307 IPC was registered by Kakraban PS being Kakraban PS case no. 120 of 2014. Later on, on death of the victim out of the said injury, the investigation was carried out for the offence punishable under Section 302 IPC as well. On completion of the investigation, the Investigating Officer filed the charge sheet on 17.12.2014 under sections 448/302 against the accused, the appellant herein and under sections 376(2)(i) of the IPC and section 6 of the POCSO Act against another accused, namely, Swapan Nama. Since the offence is exclusively triable by the court of Sessions, the police papers were committed to that court but, the Special Judge framed charge under Section 302/448 of the IPC and proceeded to try the appellant.

We have been persuaded to believe that separate charges were framed, against the other accused under section 376(2)(i) of the IPC and section 6 of the POCSO Act. It may be noted at this stage that both the accused persons denied their respective set of charges and raised the plea of innocence. On conclusion of the trial, the other accused, namely, Swapan Nama was acquitted from the charge under Section 376(2)(i) of the IPC and section 6 of the POCSO Act on benefit of doubt as the trial court did not find any material to convict him but, as stated, the appellant was convicted and sentenced.

In this circumstance, this court will only read and peruse the part of the evidence, relevant for conviction of the appellant only. Since the appellant denied the charge, the prosecution adduced as many as 23 witnesses (PW-1 to PW-23) and placed 18 documents in the evidence (Exhibit 1 to 18) including the dying declaration of the victim (Exhibit-18), Forensic report dated 18.09.2014 (Exhibit-11), Forensic report dated 29.08.2014 (Exhibit 4), Inquest report (Exhibit-5) and Post mortem report (Exhibit-10). After recording the evidence of the prosecution, the appellant was examined under Section 313 Cr.P.C. for purpose of having her response to the incriminating materials that surfaced in the evidence. During the said examination, the appellant re-iterated her innocence and stated that she has been falsely implicated in this case with ulterior motive.

Mr. Raju Datta, learned counsel appearing for the appellant has submitted that the trial Judge has read the contents of the dying declaration but, that content was not at all proved in accordance with law as the doctor who recorded the said dying declaration was not examined in the trial to prove that the victim was in a fit condition to make the dying declaration or that the victim had stated to him what is recorded in the purported Dying declaration (Exhibit 18). That apart, Mr. Datta, learned counsel has submitted that the parents of the victim (PW-11 and PW-12) have categorically stated that from the time when the victim was engulfed by fire till her death, she never came back to the consciousness. Mr. Datta, learned counsel has further submitted that PW-13 had corroborated the said statement of the parents (PW-11 and PW-12). That apart, Mr. Datta, learned counsel has referred to the statement of PW-7, who during the cross-examination has stated that on the way to hospital, on my asking, parents of Rupana told me that Rupana herself set fire on her. Even Mr. Datta, learned counsel for a limited purpose referred the testimony of PW-9 who has stated in her examination-in-chief that the victim sustained burn injuries from the stove but, she has also stated that she was not aware about the cause of death of the victim.

From the other side, however, Mr. S. Ghosh, learned Additional PP in order to repel the submission of Mr. Datta, learned counsel has submitted that the dying declaration (Exhibit-18) was recorded by the doctor in presence of one staff nurse, namely, Manika Debbarma, who had signed on the dying declaration. Said Manika Debbarma has testified in the trial as PW-23. PW-23 has testified that "Dr. Debadatta Saha (who was not examined in the trial) recorded the dying declaration of Rupanna Begam in my presence. I worked with Dr. Debadatta Saha and as such I am conversant with his handwriting and signature. This is the dying declaration recorded by Dr. Debadutta Saha in his own handwriting which is marked as Exhibit-18 and his signature is marked as Exhibit 18/1 and my signature is marked as Exhibit 18/2" .

In cross-examination, she had however stated that in the dying declaration, it is not mentioned who had taken the right thumb impression over the statement of the victim. Even there is no description of the person who put the thumb impression on the dying declaration.

Mr. Ghosh, learned Additional PP has further submitted that PW-8 is a crucial witness. Even though PW-8 had been turned hostile by completely deviating from his previous statement recorded by the police under Section 161 Cr.P.C. but, on confrontation by the prosecution, he has denied that he made the following statement on 28.07.2014:-

"...after I returned to my house completing my business, my wife Apu bibi told me that about 1 ½ months ago, Rupna Begam, her aunt Marjina Bibi and her cousin Azad Ali were sleeping in a cot. In the dead of night when Rupna woke up due to natures call, she found Swapan Nama there in nude condition doing illicit work with Marjina and Rupna protested to it and told that she would inform the matter to her parents. Then Marjina requested her not to disclose the said fact to anybody and also compelled her to promise the same by touching Koran Sarif. Thereafter, Rupna did not inform the same to anybody. On the following day, in the dead of night, Swapan Nama came to the room of Marjina and at that time, Rupna and Azad Ali were sleeping. Marjina thereafter pressed the mouth of Rupna and Swapan Nama raped Rupna by removing her salowar and thereafter, Marjina told Rpna that if she divulged the relationship of Marjina with Swapan, she would also divulge the fact of such intercourse of Rupna and Swapan. Thereafter, Rupna did not tell anybody about the same. Rupna also further told to my wife that for last 8/10 days her menstruation was stopped and then I told my wife Apu Bibi that next day i.e. 29.07.2014 was a day of Eid so nothing could be done on that day. On 30.7.14 i.e. on the following day of Eid, I would take necessary steps. On 29.7.14 at about 7.30 pm I heard hue and cry in the house of my cousin Ershad Ali and going there found that Rupna was lying on the door of the hut of Ershad Ali in completely burnt condition. Mother of Rupna namely Hiran Bibi was telling that she had found Marjina Bibi coming out from their hut and Marjina had set fire on Rupna. I apprehend that Marjina had set fire on Rupna to elope the evidence".

The investigating officer corroborated that such statement was made to him. Thereafter, the same can be utilized as the evidence to affirm the finding of the trial court. Mr. Ghosh, learned Additional PP has further submitted that the observation made in the post-mortem examination report clearly shows that the death has been caused from shock due to burn injuries. As such, clear corroboration is available for all the witnesses in respect that the burn injuries caused on the day when the alleged occurrence had taken place and the victim herself has stated in her dying declaration that the appellant had put fire on her. Mr. Ghosh, learned Additional PP, therefore, persuades based on his own submission that there is no reason to interfere with the impugned judgment.

We have appreciated the records on evidence. In the complaint it was categorically stated by PW-12 (mother of the victim) that the appellant set fire on her daughter but, PW-12 did not support her statement in the complaint, on the contrary, she has stated that about 3 years ago, one day it was a day of celebration of Id and on that day in the evening, Rupna was cooking some foods in our kitchen on a stove. Thereafter, she got fire on her person from that stove and sustained severe burn injuries and became senseless. Then we brought her to District hospital, Tepania wherefrom she was taken to GBP hospital on the same night. On the same night, Rupna died at GBP hospital. Rupna did not regain her sense till her death. At the time of the death, Rupna was studying in Class-IX and her age at that time was approximately 15 years. [Emphasis added]

PW-12 did not support her own contention in the complaint that the appellant had set her daughter on fire.

PW-1, Arun Jamatia, is an witness of seizure of the school certificate which is not very material in this appeal.

PW-2, Amar Debnath is another witness of seizure of the said school certificate.

PW-3, Dr. Sabyasachi Nath is the forensic expert from Forensic Science Laboratory, Tripura. He has stated that 18 exhibits were examined by the SFSL on asking by the police. On examination of the exhibits, it was reported that no seminal stain/ spermatozoa of human origin could be detected in the exhibits marked as E-10, E-19 and E-21 but, the blood stain of human origin was found and marked in Exhibit E -10. As the appellant is not charged of committing rape, this report is of no relevance so far the charge framed against the appellant.

PW-4, Taruntapan Paul, is the Headmaster of Totamura High School where the victim was studying and from him the school certificate (Exhibit-3) was seized.

PW-5, Sri Suman Kumar Chakraborty, is another forensic scientist who has stated that the residues of inflammable oil was found in Exhibits E-1 and E-2 (the wearing apparels). Exhibit E-7 is a plastic drum of kerosene oil. From the report it surfaced that no common organochloro, organo phosphorous and carbonate group of pesticide was found in the body of the deceased.

PW-6, Sri Saddam Hossen is the uncle of the victim. He has stated nothing relevant for the present case.

PW-7, Sri Lokesh Sarkar, did not state anything in the examination-in-chief but, in the cross-examination he has stated that the parents of the victim told him that their daughter herself has set fire on her.

PW-8, Sri Abul Kalam, turned hostile and his statement has been exhaustively reproduced here-in-before.

PW-9, Smt. Apu Bibi has only stated that the victim had sustained injuries from a stove and that information she has gathered from someone else.

PW-10, Sri Uttam Sen, a Group-D staff of Kakraban PHC was witness to the seizure vide the seizure list dated 04.08.2014 (Exhibit-6).

PW-11, Sri Ershad Ali, is the father of the victim. He has stated that on getting the information that his daughter got burn injuries, he rushed to his house and thereafter he took his daughter to the District hospital, Tepania and therefrom to GBP hospital, Agartala. He has categorically stated that I have no grievance against any person concerning her death. I know both Swapan Nama and Marjina Bibi. Both Marjina Bibi and Swapan Nama are present today in the court. The witness identify both the accused persons in the dock. I have no grievance against Swapan Nama and Marjina Bibi regarding death of Rupna but in his cross-examination, he has also stated that till her death, Rupna did not regain her sense in the hospital.

PW-12, Smt. Hiran Bibi, is the mother of the victim. Her statement has already been extracted substantially and no cross-examination was carried out even though her statement stands contrary to the statement she made in the complaint.

PW-13, Md. Abdul Haque has stated nothing as a witness from the neighbourhood except that she could not talk to him and as when she was recovered from the engulfing fire she was not in a position to talk to. Being witness to the procedure, he had signed the inquest report prepared by the investigating officer.

PW-14, Smt. Kamala Bibi, did not state much but, she has stated that she rushed to the house of Rupna after hearing of hue and cry from their house.

PW-15, Smt. Puspa Laxmi Jamatia is the staff nurse who was present in the Kakraban PHC when the blood samples were collected by Dr. Susmita Paul. The said blood samples were seized and she stood as a seizure witness.

PW-16, Smt. Sakuntala Debbarma is the recording officer who recorded the oral ejahar, got the signature of the complainant thereon and registered the case as stated before.

PW-17, Smt. Hemlata Debbarma is the seizure witness of the wearing materials of the victim, blood and vaginal swab. She has admitted her signature on the said seizure lists (Exhibits 8 and 9).

PW-18, Dr. Jayanta Sankar Chakraborty had led the team who carried out the post mortem examination over the dead body of Rupna Begam at GBP hospital morgue. He has stated in the examination-in-chief that the extent of burn injuries was 95%. All the internal organs of the dead body was found congested. There was a tear at 3 o'clock position of the hymen which is suggestive of commission of sexual intercourse. The cause of death according to him was shock due to burn injuries. He had prepared his report on the basis of the notes he prepared during the post-mortem examination. In the trial, he has identified the report (Exhibit- 10). There was no cross-examination of PW-18.

PW-19, Sri Samir Kanti Das, was posted as Sub-Inspector of police at New Capital Complex PS. On that day Dr. Debadatta Saha of GBP hospital gave a requisition for post mortem examination of dead body of one Rupana Begum. PW-19 had carried out the inquest procedure and prepared the report (Exhibit- 5). He had signed the said report. He denied that Ershad Ali (PW-11) did not tell him that Marjina Begam had set fire on Rupana after pouring kerosene oil.

PW-20, Dr. Subhankar Nath is another forensic expert from SFSL. He has stated that he received 3 packets containing sample of vaginal swab of the victim, blood sample of Swapan Nama and dry sample of saliva of Swapan Nama for biological examination. After the examination, he observed (1) no genetic profile generated in the vaginal swab of deceased Rupana Begam, which means there was no male fraction detected in the said vaginal swab and (2) complete genetic profile generated in dry blood sample of Swapan Nama but, for that reason I could not compare the DNA profile of the accused with any such male fraction in the vaginal swab of the victim and, for that reason the saliva was also not examined further. These are not very material for the present appeal.

PW-21, Sri Dipak Bhattacharjee was the Officer-in-Charge [In-charge] of the Kakraban police station and he had received the ejahar of Hiranbala Debi. Accordingly, he has entered the complaint in the FIR form. The case was thereafter endorsed to him for investigation. He also identified the seizure list by which the kerosene container was seized. He had examined few witnesses and seized various materials related to the transaction of the crime and before that he had prepared the site map (Exhibit-16) with all installation particulars but, he did not examine Ershad Ali (PW-12) at the first instance. But for delayed recording, he could not explain the reason. He has confirmed the statement that he had recorded the statement of one Abul Kalam (PW-8). That part of the statement is reproduced before has been identified and confirmed by him.

PW-22, Sri Samir Barman, a Constable of police on instruction of the Reserve Inspector, carried the dead body to the morgue. The inquest was carried out by one Executive Magistrate, namely, Elimia Reang in presence of S.I. Samir Kanti Das according to PW-22.

PW-23, Smt. Manika Debbarma is a staff nurse who was present at the time of recording the dying declaration. She has identified the signature of Dr. Debadutta Saha who was not produced in the trial.

We have perused the documents including the dying declaration (Exhibit-18) but, the contents were not proved by the prosecution inasmuch as the doctor who recorded the statement and gave the certificate of fitness was not examined to prove the contents of the dying declaration. That apart, what Mr. Datta, learned counsel has submitted cannot be brushed aside so conveniently, inasmuch as PW-11, PW-12 and PW-13 have categorically stated that from the time of occurrence till death, the victim was in an unconscious state. The Apex Court in Rangaiah vs. State of Karnataka reported in (2008) 16 SCC 737 has observed that while the doctor giving the certificate of fitness is not examined, such dying declaration in the usual course will not be relied. The relevant passages may be reproduced from the said report:-

"4. In Mohan Lal & ors. vs. State of Haryana [(2007) 9 SCC 151], it was held:

"10. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Smt. Paniben v. State of Gujarat (1992) 2 SCC 474: (SCC pp. 480-81, paras 18-19)

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [See Munnu Raja v. State of M.P. (1976) 3 SCC 104]

(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [See State of U.P. v. Ram Sagar Yadav (1985) 1 SCC 552 and Ramawati Devi v. State of Bihar (1983) 1 SCC 211]

(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. [See K.Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618]

(iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974) 4 SCC 264]

(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. [See Kake Singh v. State of M.P.(1981 Supp. SCC 25)]

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [See Ram Manorath v. State of U.P. (1981) 2 SCC 654]

(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. [See State of Maharashtra v.Krishnamurthi Laxmipati Naidu (1980 Supp. SCC 455)]

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. [See Surajdeo Oza. v. State of Bihar (1980 Supp. SCC 769)].

(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram. v. State of M.P. (1988 Supp. SCC 152)].

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan (1989) 3 SCC 390].

(xi) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. [See Mohanlal Gangaram Gehani v. State of Maharashtra (1982) 1 SCC 700]"

It has been observed by the Apex Court in the said report Rangaiah(supra) that normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye witnesses said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail but, in this case we are having a contrary situation where the eye witnesses have stated that the victim was never in the state of consciousness or in other words 'fit' for making the dying declaration. This court cannot rely the said dying declaration merely on the basis of the identification of the signature of the Recording Doctor (PW-13). If the dying declaration is taken out and the other testimonies, as highlighted during the course of appreciation, are read together, it has to be invariably held that the prosecution has failed to establish the charge beyond reasonable doubt.

As a result, the benefit should go to the appellant. Hence, the impugned judgment and order of conviction and sentence stand set aside and quashed. Hence, the appellant is acquitted from the charge under Sections 448/302 of the IPC. The appellant shall be released forthwith, if she is not wanted in any other case.

In the result, the appeal stands allowed. Send down the LCRs forthwith.