*CONVICTION - DYING DECLARATION

IN THE COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE,  SECOND COURT

                                                DISTRICT:-BIRBHUM, SURI.

                        Sessions Case No.  150/2005                S.T. No. 4(2)06

                        Present:- Shri Harjinder Singh, Additional, Sessions Judge,1st Court-in-charge of the ld.

                        Additional District and Sessions Judge, 2nd Court, Suri.

                        Dated, Suri the 24th day of December, 2007

                        State v Debashis Lohar@ Kata Lohar and Smt. Chhaya Lohar

                        under Sections. 498A/302 149 IPC

                        Arising out of Labpur P.S. Case No. 55/2004  dated 18th of December, 2004

                        (GR No.303/2000 u/Secs.326/307/302/498A IPC)

                                                            J  U D G E M E N T

The Complainant Shib Sankar Lohar s/o Late Kanti Pada Lohar of village Kurumba under PS Labpur District: Birbhum on 18th day of December,2004 at about 13.45 hours lodged an FIR with Labpur PS  in respect of the incident that took place since after two years  of marriage of  his deceased daughter Tumpa Lohar with the accused Debashis Lohar @ Kata Lohar till 18th day of December, 2004 at her matrimonial house at Langalgram, JL No.44 Anchal No. II(a) under the same PS Labpur. The complainant in his FIR alleged at the time of the aforesaid marriage that took place according to Hindu Rites of Customs and at the time of marriage along with other gifts a sum of Rs.25,000/- was given in cash and two years after the marriage, a daughter was born to her, which daughter, at the time of incident was aged about 2 years. Since after the birth of the daughter, her husband and mother-in-law started subjecting her to physical and mental torture. The deceased narrated about such torture to the complainant on several occasions, but the complainant, but on every occasion the complainant used to send her back to the house of her in-laws after giving him advice. Some time back, when the nature of torture upon her had intensified, he along with a few elders from the village, took her daughter back to the house of the accused persons, and after a compromise returned after keeping his daughter in the house of the accused persons. A few days ago, when the deceased came to the house of the complainant during the Nabanna festival, and at that time, the deceased told her mother about the torture she was undergoing at her matrimonial house. After Nabanna, on 15-12-2004, she returned to the house of the accused persons. On 17-12-2004 her husband assaulted her in the evening and on 18-12-2004, her husband and her mother-in-law with the intention to murder Tumpa Lohar, poured kerosene oil on her daughter at about 03.00 hours and set her on fire, On receiving the information regarding the incident over telephone, the complainant went to the hospital and saw her daughter in burnt condition. In the hospital, the deceased told the complainant about the torture she underwent in the house of the accused persons. At the time of lodging FIR the deceased was fighting for her life. The complainant prayed for taking necessary action against the accused persons. On the basis of the aforesaid FIR, the Police started Labpur PS case No.55/2004 IPC against the accused persons. On 05-01-2005, Tumpa Lohar succumbed to her burn injuries. The I.O. after investigation, submitted a Charge sheet No.13/05 dated 15-03-2005 u/Secs,498A/326/307/302 IPC against the two accused persons.

            After commitment and transfer of this case to this Court, this Court on 11th day of November, 2005 framed a charge u/Secs.498A/302 IPC against both the accused persons who pleaded not guilty to the charge and claimed to be tried. The accused persons neither filed any W.S. as envisaged under Sec.233(2) of the Cr.P.C. nor adduced any evidence in support of their defence case.

                                                POINTS FOR DETERMINATION

1. Did the accused persons subject the deceased Tumpa Lohar to any physical and or mental

    torture over the demand of any dowry or to drive her to commit suicide?

2.Did the accused persons with the intention to murder Tumpa Lohar, burn her to death by

   pouring Kerosene Oil on her body and then setting her on fire?

3. Did the accused persons commit any offence u/Secs.498A/302 IPC or entitled to the bene-

    fit of doubt, if any?

                                                DECISION WITH REASONS

Points Nos.1 to 3:- All these three points are taken up together for adjudication for the sake of convenience, continuity and brevity in discussions. The prosecution in this case examined 14 witnesses and proved six documents as per the list of exhibits in support of their case. PW1 Shib Sankar Lohar is the complainant. This witness in his evidence stated that his daughter got married to the accused Debasis @ Kata  of village Nangalgram on the 27th day of Falgoon, 1407 B,S, according to Hindu rituals and that some 2 to 3 years thereafter Tumpa  gave birth to a female child. But hereafter,  for reasons best known to him, this witness started singing a new tune. According to him the deceased was treated well by her husband and her parents-in-law.  He proved the FIR as Ext.1, but as regards its contents, he stated, “I have mentioned the facts in the F.I.R. as I heard from the villagers. My daughter  did not speak (to) me about her affliction, but I heard it which she told to other neighborers of my village.” Therefore, this witness can not be believed when he in his cross-examination stated, “While my daughter was staying in the Hospital I told her that she would implicate such and such persons at the time of making statement before Police and doctor” as because, had he had any talk with her daughter he would not be hearing what her daughter told about the incident from the villagers. PW2 (Amna Lohar)  is the mother of the deceased who also sang the same tune as did her husband, But strangely enough, even the prosecution did not care to declare any of these two witnesses hostile though the prosecution case is entirely different from what these two witnesses stated in the Court.

PW3 Saraswati Lohar is a neighborer of the accused persons and she in examination-in-chief stated, “Debasis who set fire on her or it was an accidental fire, I cannot say.” But in her cross examination she admitted each and every suggestion the defence counsel gave her. She in her cross-examination stated, “It was winter. The deceased was searching for woolen garments of her child with the aid of Lampha and owing to reckless handling of the said Lampa, the appareels hanged on the rope had caught fire, wherefrom the fire spread all over the room of Tumpa,” as if she was present at the scene of occurrence or invited by the deceased by prior notice to come and witness an accidental fire that was about to occur, instead of sleeping  cozily in her own house during  the winter season. This version can not be believed as because in case the clothes on the rope got fire first, the deceased Tumpa who was aware of the fire and  standing below  the rope is supposed to be the first person to get out of the danger zone immediately. Under such circumstances, it is the persons who ware not aware and in sleeping condition would be exposed to the maximum danger and by the time they wake up or become alert, it may be too late for them to take any steps  to escape. Yet, we find that neither the husband or month-in-law or  father-in-law not even the two years old daughter of the deceased got burnt. Therefore, one person  (Tumpa Lohar) who was targeted by the accused got burnt and then die in the hospital. Flames affect things above them more than the things lying below or by its side and for this reason food on the hearth gets cooked while the cook sitting or standing by the side of the hearth while cooking such food remains unaffected. Besides, accidental fires normally break out only during the summer season and not during rainy season or during  a winter season. The prosecution was magnanimous enough and refrained from declaring any of the first three witnesses hostile, even though they butchered prosecution case. PW4 (Sikha Lohar), PW5 (Panchanan Lohar), PW6 (Sanjib Mondal) were tendered by the prosecution for their cross-examination and the Defence declined to cross-examine any of them. The evidence of PW7 (Smt. Shefali Roy) remaining incomplete and she having not been cross-examination deserves to be expunged and ignored.

            PW8 (Dr Moloy Kumar Mishra) while posted at Bolpur S.D. Hospital as M.O. conducted Post Mortem over the dead body of Tumpa Lohar on 05-01-2005 in connection with Bolpur P.S. U.D. Case No.2/05 dt. 05-01-2005 and he in his evidence stated, “During autopsy I noticed 80% deep burn injury. I have mentioned the details description of her injury on her limbs as I found. In my opinion the death was due to Cardio-respiratory failure following burns (80%) which was ante mortem in nature.” He proved the PM report (Ext.4) prepared by him.

            PW9 (Chhaya Lohar) the maternal aunt of the deceased,  was mercifully declared hostile by the prosecution and her evidence, that while searching clothes from the Aalna with a Lampha in her hand, she suddenly caught fire, deserves to be dismissed with the same contempt and  for the same reasons advanced earlier by this Court  for rejecting the evidence of PW3 (Saraswati Lohar) . Besides, perhaps, on account of imperfect tutoring, though toeing the defence line, this witness placed the  clothes from the rope to the Aalna. 

            PW10 (Deb Kumar Bhattacharyya) – an Executive Magistrate, then posted at Bolpur- conducted inquest over the dead body of Tumpa Lohar on 05-01-2005  at S.D. Hospital, Bolpur as per the orders of B.D.O. Bolpur and he proved the inquest report (Ext.6), prepared by him and signed by him. The most important aspect of the inquest report is that excluding her face, the entire body of the deceased was in  black and burnt condition, no mark of any burning could be detected over her face. She was having vermilion on her forehead and parting of the hair.  In other words, the deceased got burnt while in sleeping condition and not while in standing condition as the flames always move upwards and not downwards. This also explains as to why in the PM report Ext.4), the doctor did not  find any carbon particles in the Larynx and the Trachea as the deceased did not have any occasion to in hail flames containing black shoot. This piece of evidence completely rules out the victim getting burnt while in standing condition while searching for  her garments in the rope or in the Aalna, as had she been in standing condition,  the flames that always move upwards, would not have spared her face completely. PW 12(ASI Sumanta Kumar Dey) also conducted postmortem over the dead body of Tumpa Lohar and this police officer also recorded exactly similar findings in para  2 of his inquest report (Ext.2/1).

            With the close relatives of the deceased as well as the neighborers betraying her after her death, it would have been quite difficult to come across the real facts of this case, but for the fact that before dying, Tumpa Made a DYING DECLARATION. PW 14 (Dr Debabrata Das), who was then posted as Medical  Officer at S.D. Hospital and who treated the deceased  from 18-12-2004, i,e, from the date of her admission, till her death on 05-01-2005 on 24-12-2004 at about 1.00 P.M., recorded the DYING DECLARATION (EXT.5/3) of the deceased Tumpa Lohar, in presence of two staff Nurses and one of the relatives of the deceased. I am reproducing below the said dying declaration of the deceased as recorded by the doctor:-

            “Dying Declaration of Tumpa Lohar, w/o Debashish Lohar of Nargolgram, Tatinapara, P/S Labpur, District- Birbhum , taken under instruction of the Superintendent, Bolpur S.D. Hospital, in presence of staff nurse (1) Smt, Purnima Bannerjee and staff nurse (2) Smt. Shafali Roy and also, patient's maternal aunt Smt. Chhaya Rani Lohar.

Date of admission- 18-12-2004 at 7-30 A.M.

Dying declaration taken on 24-12-2004 at 1-00 P.M.

Patient was well conscious, oriented, at the time of giving  declaration.

According to the statement of the patient, she was married to Sri Debabish Lohar four years ago and the couple had a son two and half years after marriage. Since last few months, her husband used to stay in the house of Sri Rabi Bagdi of Kenda, a neighbouring village, and occasionally, he used to come to stay with her wife. At the night before the incident, the husband came stay in his own house and spent the night with her wife. In the morning of 18-12-2004, he poured Kerosene on the body of her wife and set fire. Her mother in law was standing there and her father in law, Kartick Lohar, tried to extinguish the fire. Her mother in law did not try to save her. Her father in law and the local boys brought her to hospital after extinguishing the fire.”

            The recording of Dying declaration is confirmed by PW 11( Purnima Bannerjee) – a Staff Nurse- who in her evidence stated, “One Tumpa Lohar was admitted in the female Surgical Ward who was a burnt patient, On that date that is on 24.12.2005 I had duty in the female Surgical Ward. On that date Dr, Debabrata Das recorded statement of the said Tumpa, Lohar in my presence and I signed on the statement. This is the said statement and this my signature on the said statement. The signature is marked as Ext.5/2.” I do not attach any importance to the mistake in the year mentioned in the date of recording as because, it may be on account of an error that creped in at the time of the P.O. who recorded the evidence or a genuine slip of  tongue. But, the document identified by her bears the date 24-12-2004 and not 24-12-2005. Both the Doctor and the Staff Nurse are government officials holding responsible positions and I do not see any reason why the evidence of such impartial witnesses who have nor enmity with any of the accused persons should be disbelieved.

            From the dying declaration it is clear that the the patient was well, conscious, oriented at the time of recording of the witness though a dying declaration even in the absence of any such certificate would be valid.

Hon’ble SC in Laxman, Appellant v. State of Maharashtra, AIR 2002 SC 2973 observed, “Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable.  A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite, in most cases, however, such statements are made orally before death ensues and is reduced to writing by some one like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of  magistrate is absolutely necessary although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate, there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was  fit to make the statement even without examination by the doctor, the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification from the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.                                     (Para 3).

        The dying declaration Ext.5/3 is brief and to the point and brevity as per Hon'ble SC in Jayaraj v State of Tamil Nadu, AIR 1976 SC 1519 inspires confidence. PW 14 (Dr Debabrata Das) in his cross examination revealed that he recorded the dying declaration only at the direction of the Superintendent of the Hospital and after recording the same recommended that another by a competent Executive Magistrate may be got recorded. This evidence makes it doubly sure that  the dying declaration recorded by the doctor is free from any taint or tutoring otherwise an interested witness would neither be reluctant nor suggest recording of the dying declaration afresh by an Executive Magistrate.

        It is a well established fact that a conviction can be recorded on the basis of dying declaration. Justice Eyer CB in R v Woodcock [(1789)]1 Leech 500  regarding dying declarations made a classic observation, “The general principle on which this species of evidence  is admitted is, that they are declarations made in extremity,  when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most powerful consideration to speak the truth, a situation so solemn and awful  is considered by law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.”  I would like to add that women in India, particularly the illiterate ones residing in the villages, are  generally deeply religious in nature and have faith in God. They would not like to meet their Creator with  falsehood planted on their mouth, therefore, it is unexpected that they would tell lies  falsely implicating an innocent person before leaving this world. If at all they choose to tell a lie – such a lie would certainly be told with a view to forgive a wrongdoer rather than falsely implicate an innocent person. Therefore, keeping in view the fact that the deceased in her dying declaration stated that the accused Debashis Lohar poured Kerosene oil on her and set her on fire, the offence u/Sec.302 IPC stands established against the accused Debashis Lohar @ Kata Lohar. But, so far as the role of the accused Chhaya Lohar is concerned, her role in the crime is not clear. May be she connived with her accused son or may be she stood nearby dumbfounded not knowing what to do. As such, she deserves the benefit of doubt. In view of the fact there is no evidence regarding torture, the offence u/Sec.498A fails against the accused persons. All the three points are decided accordingly ' Hence, it is

                                                            O R D E R E D

that the accused Debashis Lohar @ Kata Lohar is found guilty of having committed an offence u/Sec.302 IPC but stands acquitted from the offence u/Sec.498A of the IPC. Fix 02-01-2008 for examination of the convict u/Sec. 235(2) of the Cr.P.C. on the question of sentence. The accused Chhaya Lohar stands acquitted from the offences u/Secs.498A/302 IPC and stands discharged from her bail bonds.

                                                                                                (Harjinder Singh)

                                                                                    Additional District and Sessions Judge,

                                                                                        1st Court, Suri District: Birbhum

                                                                        Incharge of the Court of ld. Additional District and

                                                                                          Sessions Judge, 2nd Court, Suri.

02-01-2008 Examination of the convict Debasis Lohar alias Kata Lohar u/Sec.235(2) Cr.P.C. on the question of sentence:- The convict Debashis Lohar alias Kata Lohar is examined u/Sec.235(2) of the Cr.P.C. on the question of sentence. He submits that hi is aged about 26 years and has a daughter aged about 4 years in the house and prays for mercy.

        Keeping in view the heinous nature of the crime, there is no scope for giving the benefit of Probation of Offenders Act to the convict. From the dying declaration of the deceased, it appears that the murder was pre-planned and the convict who was staying in the house of Rabi Bagdi of Kenda came to his own house just a day before the date he committed murder. Yet keeping in view the fact that the convict is merely 26 years of age and has a daughter to support, this is a fit case in which the sentence for imprisonment for life should be awarded.

        Hence, it is,

                                                            O R D E R E D

that the convict Debashis Lohar @ Kata Lohar who was found guilty and convicted for the offence u/Sec.302 I.P.C. on 24.12.2007 is hereby sentenced to suffer R.I. for life for the offence u/Sec.302 I.P.C.  He is also directed to pay a fine of Rs.10,000/- for the said offence in default to suffer additional S.I. for 5 months. There shall be no set off of any portion of the sentence in view of the fact that life imprisonment means imprisonment for life. 

        Let a certified copy of this judgement be given free of cost to the convict at once. Request Copying Department accordingly. 

        Let a copy of this judgement be also sent to the D.M., Birbhum, Suri u/s.365 of the Cr.P.C. 

        The seized alamats, if any, shall be destroyed six months after expiry of the period of appeal.

                                                                                                ( Harjinder Singh )

                                                                                        Additional Sessions Judge,

                                                                                      1ST Court , Birbhum, Suri. 

                                                                                                   02.01.2008