Page 1 of 11 HIGH COURT OF TRIPURA AGARTALA Crl. A(J) 49 of 2015 Sri [ENTITY] son of [ENTITY] of village Chacharia, P.S. Sidhai, District: West Tripura. Appellant(s) Versus The [ENTITY] Respondent(s) For Appellant(s) : Mr. [ENTITY], Sr. Adv. Mr. [ENTITY], Adv. For Respondent(s) : Mr. [ENTITY], Addl. PP. Fit for reporting : YES HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] Judgment and Order (Oral) 25.04.2019 [ENTITY],J.
This appeal is directed against the judgment and order of conviction and sentence dated 08.09.2015 passed by the Sessions Judge, West Tripura, Agartala in connection with [CASE NUMBER] convicting the appellant and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Rs.5,000/- with default stipulation, for committing offence punishable under [SECTION] of [ACT].
2. Briefly stated, the prosecution case is that, based on a complaint lodged by one [ENTITY] on 03.03.2011, the Officer-in-charge, Lefunga P.S. had registered FIR No. 18/2011 under [SECTION] of the [ACT]. In the complaint, it was alleged that his daughter, [ENTITY] was married to [ENTITY], but, a few days after the marriage, her husband, father-in-law and mother-in-law started torturing her demanding a motor bike and cash money. Considering the welfare of his daughter he arranged purchase of a motor bike spending Rs.40,000/-. However, it could not bring peace to the family. One day, after being severely assaulted, his daughter was driven out and she started living with her husband in the rented house of one [ENTITY] at Bhati Fatikcherra and that period was peaceful. Thereafter, one day her father-in-law, [ENTITY] arrived at the rented house and ill-advised his son following which altercation and dispute was picked up. In that meanwhile, a daughter was also born to them.
3. After 21 days of the birth of the daughter, on 01.02.2011, at about 7 p.m. [ENTITY], i.e. the convict- appellant assaulted his wife and broke down her conch shell bangles. On the following night, at about 9.30 p.m. at the wake of stepping up of altercation, [ENTITY] poured kerosene on [ENTITY] and set her on fire. Hearing cries of [ENTITY] nearby people arrived and [ENTITY] was shifted to the GB Hospital in a serious condition.
4. On completion of investigation, the final police report was submitted under [SECTION] of [ACT] against the appellant. The Sessions court took cognizance of the offence, as stated above, and accordingly, framed charges under [SECTION] [ACT] against the appellant to which the accused- appellant pleaded not guilty and claimed to be tried.
5. To substantiate the charge, the prosecution had examined as many as 16 witnesses including the informant. Besides oral evidence, the prosecution relied on some documents and materials like the FIR form, ejahar, seizure list, hand sketch map with separate index of place of occurrence, hand sketch maps with index of place wherefrom one plastic bottle containing kerosene and one white colour printed nighty in burnt condition were recovered from the rented house, inquest report and post mortem report of the deceased. After examination of the PWs, the appellant was examined under [SECTION] [ACT] to which the appellant denied the evidence laid by the prosecution witnesses.
6. After hearing the arguments of both sides, the learned Sessions Judge, West Tripura, Agartala delivered the judgment dated 08.09.2015 convicting the appellant under [SECTION] of [ACT] and sentenced him to undergo RI for life with a fine of Rs.5,000/- and in default to suffer SI for three months. However, the learned court below acquitted the appellant from the charges framed under [SECTION] and [SECTION] of [ACT] being not proved.
7. Being aggrieved by and dis-satisfied with the impugned judgment and order of conviction and sentence by the learned Sessions Judge, Court No.2, West Tripura, Agartala the appellant has preferred the instant appeal.
8. Mr. [ENTITY], learned senior counsel assisted by Mr. [ENTITY], learned counsel appearing for the appellant has contended that the learned trial court has heavily relied upon the dying declaring (exhibit-3/1). The main challenge to the dying declaration, as advanced by the learned senior counsel is that at the time of recording of the said dying declaration the deceased was not in a condition to express anything in the form of dying declaration.
9. In support of his submission, Mr. [ENTITY], learned senior counsel has drawn our attention to the medicines applied to the deceased wife in course of her treatment which would be evident from the evidence of Dr. [ENTITY] (PW11), wherefrom it is revealed that the medicine No.1 was given as analgesic and for inducing sleep; medicine No.2 was for anti-vomiting and also for inducing sleep.
10. In the continuation sheet, there were entries of 04.03.2011, 06.03.2011 and 07.03.2011 and the patient expired on 07.03.2011 at 6.55 p.m. Emphatically, he submitted that there was no mention in the document that the patient was conscious on 04.03.2011, 06.03.2011 and 07.03.2011. Learned senior counsel had further pointed out that on all those three days, the general condition of the patient was reflected as poor.
11. In his attempt to demolish the statements of the victim in her dying declaration, Mr. [ENTITY], learned senior counsel has pointed out that the victim was suffering from 87% burn injuries and according to him, she was not in a state to give dying declaration. He further submitted that no signature or thumb impression was taken from the victim in the dying declaration. In the dying declaration, there was thumb impression of the father of the victim, [ENTITY] (PW3), and another [ENTITY] (PW10) who was the sister of the informant, [ENTITY]. Moreover, no certificate was obtained from the doctor about the state of health of the victim at the time of giving the dying declaration. It has been further argued before us that the time of recording the dying declaration was also not mentioned.
12. It was further argued that the [ENTITY] (PW9), who recorded the dying declaration, has admitted in cross-examination that she did not obtain the certificate of the attending physician and also did not obtain the signature of any nurse in the dying declaration.
13. On the basis of the said fatal aspects, learned senior counsel has strenuously argued that the dying declaration was not taken in accordance with the established principle of law and thus could not form the basis of recording conviction against the appellant, and as such, the judgment dated 08.09.2015 is liable to be set aside.
14. On the other hand, Mr. [ENTITY], learned Addl. PP had candidly submitted that there is no defect or material irregularity in recording the dying declaration and the objection as raised by the learned senior counsel on behalf of the appellant relates to some technical defects which should be ignored by this Court and the learned Sessions Judge had rightly held that it is the convict-appellant who murdered his wife.
15. In the above set of facts, we have carefully scrutinized the evidence of the prosecution witnesses, especially the evidence of the [ENTITY] (PW9), Smt. [ENTITY] (PW10) and Dr. [ENTITY] (PW11), the post mortem report (exhibit-3) as well as the dying declaration (exhibit 3/1).
16. PW9, the [ENTITY] while being posted at the SDM Office, Sadar, Agartala had recorded the dying declaration in pursuance of the order of the Sub-Divisional Magistrate. She has proved the contents of the dying declaration as well as her observation in the bottom of the said declaration that the condition of both the hands of the victim were found miserable, being totally burnt. So, she could not sign or put her thumb impression, but was capable to speak since she was in full sense, according to the attending physician. She deposed that she had collected the signature of the father of the victim (PW3) and PW10, Smt. [ENTITY], who was the aunt of the deceased patient. She identified her own signature in the dying declaration.
17. Here we find that the [ENTITY] (PW9) has given her explanation why the deceased could not put her signature or thumb impression in the dying declaration, but, she obtained the thumb impression of the father and aunt of the victim.
18. The dying declaration is reproduced herein below in extenso, for convenience:-
"(Our) marriage had taken place one year back. (We) got married at (our) own choice. (We) were residing in a rented house. I was in a state of ashouch (post-
delivery period having some restrictions). My baby was of 22 days. He had physically tortured (me) on its previous day without any reason. The next night, my husband doused me with kerosene and set me alight by igniting with match. The door of the room was opened as the people of the owner's family pushed it. At night around 8:30 -9:00 o'clock, suddenly my husband doused me with kerosene and set me afire."
19. PW10, Smt. [ENTITY], in her statement, in this regard, deposed that on the same date she went to the hospital in the afternoon and in her presence, "one madam recorded the statement of [ENTITY]. She stated that her husband [ENTITY] poured kerosene oil on her and thereafter set on fire. [ENTITY] had sustained severe burn injury. After her statement was recorded by the Madam my thumb impression was taken in it. My brother [ENTITY] was also present at that time." The said evidence of PW10 could not be demolished by the defence.
20. PW11, Dr. [ENTITY], at the relevant point of time was posted as Tutor in the AGMC & GBP Hospital in the Department of Medicine and Toxicology. On 08.03.2011 he along with Dr. [ENTITY] conducted the post-mortem on the dead body of the victim, [ENTITY] ([ENTITY]). The doctor has stated that about 87% of the body surface area was affected by burn injury and the cause of death, in his opinion, was septicemia due to burn injury. He has stated that he gave a report in this regard, which was written by him and he identified the report bearing his signature which is marked as exhibit-3, 3/1.
21. In his cross-examination, he has categorically stated that on 03.03.2011 there was no blood-vomiting or decrease of sleep and, though, the patient was restless but conscious and irritable. Medicine was applied upon the victim for inducing sleep and some medicines were anti-vomitting.
22. After careful scrutiny of the dying declaration (exhibit- 3/1) it has become crystal clear that PW9, the [ENTITY] has categorically explained that she has given certificate to the effect that both the hands were found in miserable condition, being totally burnt and for that reason, she could not obtain signature of the victim in the said dying declaration. PW9 has further stated that the victim was in full sense, according to the attending physician, when she recorded the dying declaration of the victim. Further, she obtained the respective thumb impressions of the father and aunt of the victim on the dying declaration.
23. Here, we may gainfully refer the decision of the Apex Court in [PRECEDENT] wherein the Apex Court has held thus:
"2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot away with it because truth suffers some infirmity when projected through human processes.
Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why fake up? Because the court asks for manufacture to make truth look true? No, we must be realistic."
24. Very recently, in [PRECEDENT], decided on 29.03.2019 reported in [CASE NUMBER], a three-Judge Bench of the Apex Court has held:
"43. It is worth recalling that while it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that such proof should be perfect, and someone who is guilty cannot get away with impunity only because the truth may develop some infirmity when projected through human processes. The traditional dogmatic hyper- technical approach has to be replaced by a rational, realistic and genuine approach for administering justice in a criminal trial. Justice cannot be made sterile by exaggerate adherence to the Rule of proof, inasmuch as the benefit of doubt must always be reasonable and not fanciful. (See [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; Chaman and Anr. v. State of Uttarakhand, MANU/SC/0427/2016:
(2016) 12 SCC 76)."
25. Having regard to the principles enunciated in the judicial pronouncements discussed supra, in the case in hand also we find that the learned senior counsel appearing on behalf of the appellant has raised some technical objections in regard to the recording of statement in the form of dying declaration (Exhibit 3/1) by the [ENTITY] (PW9).
26. We have given our anxious consideration to the dying declaration and the conduct of the [ENTITY]. According to us, even if there is no certification from the attending doctor, the manner it was recorded by the [ENTITY] in the circumstances of the present case appears to be trustworthy, voluntary, unblemished and reliable being realistic.
27. It is now well-settled that dying declaration can form the sole basis for recording conviction, if it is found to be believable and bears credence, which will be gathered from the testimony of the person who records the said declaration. There is no thumb rule that dying declaration must be certified by doctors. It can be said to be only a rule of prudence. In our considered view, if the person who records the dying declaration is convinced with the fitness of the victim at the time of recording the declaration in question, then, there is no reason to doubt the reliability or credibility of the dying declaration.
28. In the case in hand, the [ENTITY] (PW9) who recorded the declaration in question was satisfied that the victim was in such state of condition that she was able to give statement with regard to the fact how she suffered burn injury and who was responsible to cause such injury. Further the said witness, PW9 was very specific in deposing that the attending doctor declared the victim medically fit to give statement. After thoughtful consideration to the testimony of PW9, according to us, it inspires full confidence to the mind of this Court.
29. Another important aspect to be borne in mind is that in our country, the [ENTITY]s or the Doctors are not adequately trained in such affairs. Keeping in mind the principle enunciated in [PRECEDENT] (supra) we are also of the considered view that the traditional dogmatic hyper-technical approach should be replaced by realistic and rational approach for administering justice in a criminal trial.
30. In the above conspectus, we find no reason to interfere with the judgment and order of conviction and sentence dated 08.09.2015 returned by the learned Sessions Judge, West Tripura, Agartala whereby and whereunder the appellant has been convicted under [SECTION] of the [ACT].
31. Accordingly, the present appeal filed by the appellant is dismissed.
Send back the LC records.
JUDGE JUDGE lodh