Golaghatjudiciary.gov.in

IN THE COURT OF THE SESSIONS JUDGE AT GOLAGHAT.
Ref. :- Sessions Case No. 49/2013.
Dates of evidence . . 23.05.2013, 30.05.2013, Date of argument . . 07.11.2013, 20.11.2013.
Date of judgment and order . 28.11.2013.
For the accused person . Mr. J.K. Goswami, JUDGMENT AND ORDER :
The prosecution case, in brief, is that on 25.1.2013, at 3 P.M., accused Enus Ali killed his wife Smti. Munu Begum by setting ablaze after The O/C of Ghiladhari police station on receipt of the written ejahar Ext-1 from the informant Md. Tafiqul Ali, registered the case vide Ghiladhari P.S. Case No. 4/2013 u/s 498(A) of IPC and investigated into the case. During investigation, the injured Munu Begum succumbed to the injury. After completion of investigation, the police submitted the charge sheet u/s 498(A)/304(B) of IPC against the accused Enus Ali to face the trial.
As the case is exclusively triable by the Court of sessions, the learned Chief Judicial Magistrate, Golaghat committed the case to the Court of Sessions. Accordingly, the case came up before this Court for trial.
After hearing from both the sides and on perusal of the case record and documents, the prima facie materials for the offence u/s 498(A)/304(B)/302 of IPC are found against the accused Enus Ali to frame the charges. Accordingly, the accused Enus Ali has been charged u/s 498(A)/304(B)/302 of IPC and the contents of the charges are read over and explained to him to which he pleaded not guilty and claimed to be tried.
Prosecution adduced the evidence of 13 witnesses to prove the case, whereas, the accused person adduced none in his defence. The accused person has been examined u/s 313 of Cr.P.C. The plea of the accused is one of The points for determination in this case are - (i)“ Whether the accused person on 25.1.2013, at around 3 P.M., killed his wife Munu Begum by burning her ? (ii)Whether the accused person on 25.1.2013 and prior to the said date, subjected Munu Begum to cruelty in connection with demanding of dowry and caused her death by burning ?” (iii)Whether the accused person prior to the death of Munu Begum, subjected her with cruelty in order to compel her to DISCUSSIONS, DECISION AND REASONS
THEREOF :
Let me discuss the evidence on record to see as to whether the prosecution is able to prove the above points.
P.W.1 Md. Tafiqul Ali has deposed in evidence that the deceased Munu Begum was his niece. Her marriage was performed with the accused person prior to two years of the occurrence. At the time of occurrence, he (P.W.1) was at Ghiladhari market. He was informed over telephone by one Latiful Ali that Munu Begum was killed by burning by the accused person in his house. Then he rushed there and found Munu Begum in the state of unidentified condition due to the burnt injury. Injured Munu Begum has stated to him (P.W.1) that the accused had burnt her by pouring kerosene oil on her body. Thereafter, one 108 Ambulance arrived there and in the mean time Latiful Ali also arrived there. P.W.1 met the accused person in his house as he was remaining in a room of his house. The injured Munu Begum was removed to Golaghat Civil Hospital and from there to Jorhat Civil Hospital Munu Begum was brought from Jorhat Civil Hospital to her home and in the evening, Munu Begum succumbed to the injury in her home. P.W.1 lodged the ejahar. Ext-1 is the said ejahar, upon which Ext-1(1) is his signature. P.W.1 has further deposed in his evidence that accused Enus Ali had been quarreling with his wife Munu Begum in connection with dowry. The accused also touched the hot In cross examination, P.W.1 has stated that when he met Munu Begum, at that time, she was alive. He denied the suggestion put by the learned defence counsel that he had not stated before the Investigating Officer that accused burnt his wife by pouring kerosene oil on her body. This statement is confirmed by the Investigating Officer (P.W.10) during the cross examination.
P.W.2 Md. Abdul Aziz has deposed in evidence that the occurrence took place on 25.1.2013 at around 4 P.M. At that time, he was in his shop situated at Chokial Tini-ali, He heard hue and cry in the house of accused person. Then he rushed to the house of the accused person and found Munu Begum was sitting in the varandah of her house. On being asked, she has stated that the accused burnt her. In the mean time, one 108 Ambulance arrived there and she was taken to Golaghat Civil Hospital by the said Ambulance.
In cross examination, P.W.2 has stated that the police arrived at the place of occurrence after some time. He denied the suggestion put by the defence that he had not stated before the police that on being asked Munu Begum had stated to him that accused Enus Ali had burnt her. The Investigating Officer (P.W.10) has stated in cross examination that P.W.2 had not stated the P.W.3 Md. Abdul Rajak has deposed in evidence that on 25.1.2013, at around 4 P.M., while he was in the house of his younger brother, he was informed by one Tafiqul Ali over telephone that Munu begum was burnt. Then he rushed there and the inmates of the house of the accused told him that the injured had already been taken to Golaghat Civil Hospital. Then he (P.W. 3) went to the said hospital by riding on bicycle and met Munu Begum in the hospital. He was told by injured Munu Begum that prior to the occurrence, the accused used to make quarrel with her in connection with demanding of dowry. P.W.3 saw Munu Begum in the state of burning all over her body. On being asked, the injured stated to him that at first, the accused person made quarrel with her and then burnt her. P.W.3 has further stated that accused had burnt her by touching hot iron on her body in the last year. Then he got her medically examined and kept her in his house for 12 days and then she was taken to the house of the accused person. P.W.3 also stated in evidence that in connection with this incident in the instant case, he removed the injured Munu Begum to Jorhat Medical College & Hospital on seeing her critical condition and she was remained there as indoor patient for 11 days. Thereafter, he (P.W.3) brought her to his house and on the next day, at around 3 A.M., she succumbed to the injury. Police prepared the inquest over the dead body of the deceased. Ext-2 is the inquest report, upon which Ext-2(1) is his signature.
P.W.3 has been thoroughly cross examined by the defence, but nothing has been elicited from him which demolished his evidence as stated in From the evidence of P.W.3, it is found that he did not see the incident. On getting the information from Tafiqul Ali over telephone about the incident, he rushed to the house of Munu Begum and came to know about the P.W.4 Mustt. Momtaz Begum is the elder sister of the deceased Munu Begum. Accused Enus Ali is her brother-in-law being the younger brother of her husband. According to her evidence, on 25.1.2013, at around ¾ P.M., she went to the market for shopping. When Munu Begum was burnt, she arrived in the house. She saw when Munu Begum was in burning condition outside of the house. At that time, Munu Begum was shaking her hands and feet. Her wearing clothes were still burning. Then she (P.W.4) on seeing the said condition of Munu Begum, wrapped the body of Munu Begum by a cloth. Thereafter, she was taken to hospital by one 108 Ambulance. She could not say as to how Munu Begum was burnt. The family members of P.W.4 and the accused person are living under the same roof in different rooms.
P.W.5 Mustt. Mausumi Yashmin has deposed in evidence that P.W.4 Momtaz Begum is her elder sister who was married to the elder brother of the accused. The deceased Munu Begum was also her second elder sister, who was married by accused Enus Ali. On 25.1.2013, while she was in the house of P.W.4 Momtaz Begum, at that time a quarrel broke out between the accused and Munu Begum at around 2/3 P.M. Accused Enus Ali ensued the quarrel with Munu Begum demanding dowry and asked Munu Begum to bring money from her parental home. When Munu Begum did not comply the direction of the accused person, the accused burnt her. At the time of occurrence, she (P.W.5) was sleeping with the baby of Momtaz Begum and at that time Momtaz Begum went to the market to purchase fish. Munu Begum was shouting “burnt”, “burnt”. Then she (P.W.5) rushed there leaving behind the said baby. In the mean time, the injured Munu Begum went outside of the house. On being asked, Munu Begum told her that the accused Enus Ali asked her to bring money from her parental home, and when she refused, the accused burnt her. P.W.5 on seeing the fire, she became senseless. Except the head of Munu Begum, her whole body was burnt. On 6.2.2013, Munu Begum succumbed to the injury in her parental home.
In cross examination, P.W.5 has stated that on hearing hue and cry, she went outside. In the mean time, the fire had already been extinguished. Further, P.W.5 has denied the suggestion that she had not stated before the police that accused had made quarrel with Munu Begum for bringing dowry and then she was burnt. Police (P.W.10) confirmed that P.W.5 Mausumi Yashmin has not stated the said fact before him during cross examination.
P.W.6 Md. Rabikul Ali has deposed in evidence that at the time of occurrence, he was enjoying T.V. in his house. He heard the shouting - “burnt”, “burnt”. Then he rushed to the place of incident and found Munu in her house. On being asked Munu Begum told him that the accused burnt her after pouring oil on her body. He saw burn injury all over the body of Munu Begum. Her face was also burnt. When he reached the place of incident, he found the 108 Ambulance was standing there. He enquired the injured about the cause of injury when she was brought near the Ambulance and in the state of getting her boarding in the Ambulance. Later on, she succumbed to the Md. Hafizul Ali has stated in evidence that he could not say as to how Munu Begum was caught by fire.
P.W.8 Md. Abdul Hamid has stated in evidence that he was present when police had prepared the inquest over the dead body of the deceased. Ext-2 is the inquest report, upon which Ext-2(2) is his signature. He came to know about the incident from the people that accused had burnt Munu P.W.9 Md. Amiruddin Ahmed has deposed in evidence that he heard about the incident on 6.2.2013 and not prior to the said date. He was present when police had prepared the inquest over the dead body of the deceased. Ext-2 is the inquest report, upon which Ext-2(3) is his signature.
P.W.10 S.I. of Police Sri Purna Jyoti Kalita has deposed in evidence that on 25.1.2013, while he was working as O/C at Ghiladhari police station, on that day, at around 8 P.M., he received an ejahar from Tofiqul Ali and accordingly, he registered the case vide Ghiladhari P.S. Case No. 4/2013 u/s 498(A) of IPC and endorsed ASI of police Sri Horendra Nath Gogoi to investigate into the case. Ext-1 is the ejahar, upon which Ext-1(2) is his signature. Ext-3 is the printed FIR form filled up by him, upon which Ext-3(1) is his signature. Ext-3(2) is the signature of the informant. He visited the place of incident, examined the witnesses and drew up the sketch map of the place of incident. Ext-4 is the sketch map of the place of incident, upon which Ext-4(1) is his signature. He examined the victim u/s 161 of Cr.P.C. at Golaghat Civil Hospital. Thereafter, she was referred to GMCH, Guwahati for treatment. After releasing from the hospital, the victim was taken to her parental home and he succumbed to the injury there. Ext-5 is the statement of the victim as recorded u/s 161 of Cr.P.C.,upon which Ext-5(1) is his signature. Ext-2 is the inquest report prepared by him, upon which Ext-2(4) is his signature. Ext-6 is the dead body forwarding challan, upon which Ext-6(1) is his signature. Accused Enus Ali was arrested on 25.1.2013 and forwarded him to the Eleka Magistrate, Golaghat on 26.1.2013. Ext-7 is the accused forwarding letter, upon which Ext- 7(1) is his signature. Ext-8 is the written petition submitted by him before the learned Chief Judicial Magistrate, Golaghat for adding Section 302 of IPC, upon which Ext-8(1) is his signature. During investigation, he collected the post mortem examination report of the deceased Munu Begum and after completion of investigation, he submitted the charge sheet u/s 498(A)/304(B) of IPC against the accused person. Ext-9 is the charge sheet, upon which Ext- In cross examination, P.W.10 has stated that he inspected the place of incident, but did not find any proof in connection with the occurrence. Thereafter, he prepared the sketch map of the place of incident. P.W.10 has admitted that he found the burn injury sustained by the accused on his left hand and said fact has been recorded in the Inspection Memo. He recorded the statement of the victim u/s 161 of Cr.P.C. in the hospital. At the time of recording her statement, no body had identified her. He denied the suggestion that Ext-5 is not the statement of the victim. He did not mention in the case diary that who gave police requisition for medical examination of the victim at P.W.11 Md. Latiful Ali has deposed in evidence that on 25.1.2013, at around 3 P.M., when he was proceeding to the shop, he heard hue and cry from the house of the accused person and then he rushed there and found Munu Begum was sitting in the varandah. On being asked, Munu Begum stated to him that the accused burnt her. Thereafter, he called one 108 Ambulance for shifting the injured to Golaghat Civil Hospital for treatment and from there, she was taken to Jorhat Civil Hospital. The Doctor has stated that she could not be cured. Then he brought her from Jorhat Civil Hospital to her parental home, where she succumbed to the injury.
In cross examination, P.W.11 has stated that the police examined him u/s 161 of Cr.P.C. in the hospital. He has admitted that he did not state the P.W.12 Sri Dilip Bora is the witness when the police prepared the inquest over the dead body of the deceased.
P.W.13 Dr. Mukul Sarmah on 6.2.2013, conducted the post mortem examination over the dead body of the deceased Munu Begum, aged about 22 years, female on police requisition in connection with Ghiladhari P.S. Case No. 4/13 on being brought and identified by constable-324 Sri Dilip Bora and relative of the deceased Md. Abdul Rajak and Md. Abdul Hamid and found Emaciated young lady of 22 years of age. Rigor mortis present.
No external wound or cut mark detected.
Extensive burn extending from the neck region to the middle of abdomen, chest and back. 30% burn on the chest.
Extensive burn present in the back extending from the neck region to back, more than 50% of burn injury. Altogether more All the findings are ante mortem in nature.
There was extensive burn both front and back of the body of the deceased, more than 80% burn injury.
After examination, the Doctor P.W.13 has opined that the cause of death of the deceased was due to shock and asphyxia as a result of extensive burn all over the body. Ext-10 is the post mortem examination report, upon which Ext-10(1) is his signature. Ext-10(2) is the signature of Dr. S.N. Hussain, the Superintendent of Kushal Konwar Civil Hospital, Golaghat. Ext-10(3) is the signature of Dr. S.G. Goswami, the Joint Director of Health Services, Golaghat which he knew their signatures.
From the aforesaid evidence on record, it is found that the occurrence took place on 25.1.2013 in the house of accused person. The victim was taken to Golaghat civil hospital by 108 ambulance and from there to Jorhat civil hospital and the injured was remaining at Jorhat civil hospital as indoor patient for 11 days as deposed by P.W.3 Abdul Rajak. The victim was brought to her parental home from Jorhat civil hospital and on the next day, the victim succumbed to the injury. P.W.13 Dr. Mukul Sarmah on 6.2.2013, performed the post mortem examination over the dead body of the victim and found Extensive burn extending from the neck region to the middle of abdomen, chest and back. 30% burn on the chest and extensive burn present in the back extending from the neck region to back, more than 50% of burn injury. Altogether more than 80% burn injury found on her body. According to the opinion of Doctor, P.W.13, the cause of death of the deceased was due to shock and asphyxia as a result of extensive burn all over the body. Ext-10 is the post mortem examination report. The medical evidence has not been challenged by the defence. The fact which has not been challenged by the defence, is presumed to be admitted. The medical evidence has been admitted by the defence. This is not a case of suicide. It is proved that the victim died of burn injury and the occurrence took place in the house of the accused person.
The deceased Munu Begum was the wife of the accused Enus Ali. The deceased was living in the house of accused person at the time of incident. P.W.1 Tafiqul Ali got the information about the incident from Latiful Ali over telephone. Said Latiful Ali has been examined asP.W.11. He has a shop situated at a distance of 100 miters from the house of the accused person. According to the evidence of P.W.11 Latiful Ali, on 25.1.2013, at 3 P.M., while he was proceeding towards his shop along the way, on hearing hue and cry, he rushed to the house of the accused person and found Munu Begum was sitting in the varandah of the house with burn injury. On being asked, she told him that the accused had burnt her when she refused to go to her parental home to bring the dowry. But P.W.11 did not state the said fact to the police. This is the vital contradiction. P.W.1 Tafiqul Ali and P.W.3 Abdul Rajak got the information about the incident from P.W.11 Latiful Ali over telephone. Then they rushed to the house of the accused person and found the victim in the state of unidentified condition due to her burn injury. The victim has stated to P.W.1 that the accused had burnt her by pouring kerosene oil on her body. But this part of statement has not been found in his previous statement as recorded u/s P.W.2 Abdul Aziz also did not state the said fact before the Investigating Officer (P.W.10) u/s 161 of Cr.P.C. P.W.3 Abdul Rajak after receiving the information from Tafiqul Ali (P.W.1) over telephone, rushed to the house of the accused person. He found the victim person in the hospital. On being asked, the victim has stated to him that at first, the accused made quarrel with her and then burnt her. This fact has not been challenged by the defence during the cross examination of the I.O. (P.W.10). According to the evidence of P.W.1 Tafiqul Ali, when he reached to the house of the accused person, he found the accused Enus Ali inside a room of his house. This part of evidence of P.W.1 has not been challenged by the defence during his cross examination. It is proved that the accused was present at the time of burning the victim in the house. P.W.6 Rabiqul Ali is the son of P.W.11 Latiful Ali. According to the evidence of P.W.6, when he reached in the house of the accused person on hearing hue and cry, at that time, the victim was brought near the 108 Ambulance and on being asked, the victim told him that she was burnt by the accused. This part of statement of P.W.6 has not been contradicted by the Investigating Officer (P.W.10) during his cross examination. At that moment his father Latiful Ali (P.W.11) was not present. P.W. 6 has specifically stated in examination in chief that he was told by the victim that her accused/husband Enus Ali burnt her by pouring kerosene oil on her body.
From the evidence of P.W.4 Mustt. Momtaz Begum, who is the wife of the elder brother of the accused person, it is found that she tried to extinguish the fire that burning on the victim. P.W.4 did not disclose as to how her younger sister, i.e. the victim Munu Begum was caught by fire inspite of the fact that she was living under the same roof with the victim. P.W.4 Momtaz Begum did not sustain burn injury while she made attempt to extinguish the fire. On seeing the wearing clothes of her younger sister Munu Begum was still in flaming outside of the house and shaking her hands and feet, then P.W.4 extinguished the fire. The P.W.4 did not state that accused Enus Ali was trying to extinguish the fire from the body of the victim. In normal way, out of fearthe person raise screams when his wearing clothes caught by fire. But P.W.4 did not state anything that the victim was at that time screaming or not. The victim was living with the P.W.4 along with the accused/ husband under the same roof, in s room till the ending of the incident. How the victim was caught by the fire is not known to P.W.4, who is the elder sister of the victim and was living with her in the same roof. At the time of occurrence, P.W.4 was in the market. When she reached home, she saw that the wearing clothes of the victim were still burning and she extinguished the fire by wrapping the body of the victim with a cloth and still then the P.W.4 did not know how the victim was caught by the fire is found to be not believable.
P.W.5 Mausumi Yasmin, at the time of incident, was in the house of P.W.4Momtaz Begum and Momtaz Begum was in the market at the time of incident. On that day, at around 2/3 P.M., a quarrel broke out between the accused Enus Ali and his wife Munu Begum in connection with demanding of dowry. The accused asked the victim Munu Begum to bring the money from her parental home. When Munu Begum did not comply his direction, the accused burnt her. But P.W.5 Mausumi Yasmin did not state the said fact before the police (P.W.10). But from the evidence of P.W.5 Mausumi Yasmin, it is found that the victim sustained burn injury in the house of the accused person.
As I have already stated from the evidence of P.W.1 Tafiqul Ali that the accused person at the time of incident, was inside the room of his house. There is no eye witness to the occurrence who had set fire on the victim. But the victim Munu Begum made the statement before P.W.3 Abdul Rajak at Kushal Konwar Civil hospital, Golaghat and before P.W.6 Rabiqul Ali while she was boarded to the Ambulance that the accused had set fire on her. This part of evidence of P.W.3 and P.W.6 had not been challenged during the cross examination of the Investigating Officer (P.W.10). The evidence of P.W.1 Tafiqul Ali relating to the presence of the accused person inside the room of his house at the time of occurrence, has not been challenged by the defence.
There is no evidence that the accused was trying to extinguish fire inspite of the fact that he was in the house at the time of incident. He did not come forward from inside the room to help the victim. How and in what circumstances, the wearing cloth of the victim was caught fire was not known to the P.W.4 who was the inmate of the house of the victim. The circumstance relied upon the prosecution against the accused categorically demonstrate that it was the accused and accused alone could commit the said offence. The evidence of P.W.5 also supported the said fact.
The aforesaid fact is supported by the evidence of P.W.3 and P.W.6. When P.W.6 Rabiqul Ali met the victim when she was brought to board in 108 Ambulance, on being asked, the victim told him that the accused poured kerosene oil on her and set her on fire. The occurrence took place on 25.1.2013 and the victim succumbed to the injury on 6.2.2013. P.W.3 Abdul Rajak is the father of the victim. A dying person would always look for her nearest and dearest person whom she can trust to say some thing in confidence before or at the moment of death. This was exactly done so by the deceased in the instant case. The victim told her father Abdul Rajak (P.W.3) that at first, the accused made quarrel with her and later burnt her. This statement told by the victim to her father (P.W.3) while she was undergoing medical treatment at Golaghat Civil Hospital. P.W.3, first in point of time, met the victim in the hospital after the incident. Both of the aforesaid oral dying declarations of the victim was come out not in the result of tutoring, prompting or imagination and the deceased had opportunity to observe and identify the accused person and that the deceased was in a fit and conscious state to make dying declaration. The victim made last dying declaration before the ASI of police Sri Harendra Nath Gogoi at Kushal Konwar Civil Hospital, Golaghat. The said police officer recorded the statement of the victim in the forms of Section 161 of Cr.P.C. the victim has stated before the police u/s 161 of Cr.P.C. that on 25.1.2013, the accused repeatedly asked her to bring money from her parental house and when she refused, the accused poured kerosene oil on her and set her on fire. Ext-5 is the said statement of the victim u/s 161 of Cr.P.C. and Ext-5(1) is the signature of ASI of police Sri Harendra Nath Gogoi as proved by the Investigating Officer (P.W.10). Ext-5 has also supported the case of the prosecution.
The Investigating Officer found burn injury on the left hand of the accused person at the time of his arrest. This fact has been mentioned in the Inspection Memo prepared by the police at the time of arrest of the accused person. The burn injury sustained by the accused/husband in the incident, has not been explained. The case of the accused person is not that his wife died of suicidal death and he sustained burn injury when he tried to extinguish the fire.
Under the aforesaid discussions and reason thereof, I find that the prosecution is able to prove the case that on 25.1.2013, the accused made the quarrel with his wife (victim) to bring money from her parental home and when she refused, the accused poured kerosene oil on her body with an intention to kill her and set her on fire and she succumbed to the burn injury on 6.2.2103. The very mode of the committing the offence shows that the accused intended to cause the death of his wife Munu Begum and accordingly, he poured kerosene oil on her body and set her on fire. When the death was intentional act of the accused, section 300 of IPC is well attracted and accused is accordingly, punishable u/s 302 of IPC. I find accused Enus Ali is guilty u/s 302 of IPC and convict him accordingly.
No sufficient evidence found for proving the ingredients of offence u/s 304(B)/498(A) of IPC against the accused person. Therefore, I acquit the accused Enus Ali of the charges u/s 304(B)/498(A) of IPC.
Before passing the sentence, I have heard the accused person on the point of sentence u/s 235(2) of Cr.P.C. The accused pleaded not guilty and prays for utmost leniency. He also stated that he has his two years minor son.
I have considered that aspect. But it must not be ignored that the act of the accused extinguished the life of victim at her prime age. The catastrophy brought to the family of the deceased can not be totally ignored while considering the victimology aspect. Though all the murders are cruel, the mode and manner of the commission of the crime can not be termed as too heinous. The act of the accused does not fall in the category of gravest of grave offence and rarest of rare cases. The extreme penalty of death is not warranted in this case. I find that the punishment for imprisonment for life would meet Accordingly, I convict the accused Md. Enus Ali u/s 302 of IPC and sentenced him to suffer imprisonment for life and to pay a fine of Rs.5,000/- (Rupees five thousand)only, and in default of payment of fine, he shall undergo further rigorous imprisonment of one year. A copy of the judgment and order be given to the accused person The judgment and order is pronounced and delivered in the open Court today in presence of the accused person and learned counsels of both the Given under my hand and seal of the Court on this the 28th day APPENDIX :
P.W.10 - Sri Purna Jyoti Kalita, I.O.
Ext-4 - Sketch map of the place of occurrence. Ext-5 - Statement of the victim u/s 161 of Cr.P.C.
Ext-6 - Dead body forwarding challan.
Ext-8 - Written petition of the I.O.
Ext-10 - Post mortem examination report.

Source: http://golaghatjudiciary.gov.in/jmnt/2013/nov/dj/SC4913.pdf