ALLAUDDIN MOMIN @ MIA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal has been filed against the judgment and order of conviction dated 28th July, 2011 and sentence dated 29th July, 2011 passed by the Additional Sessions Judge, 2nd Court, Suri, Birbhum in Sessions Trial No. 1 of March, 2011 arising out of Sessions Case No. 163 of 2010. By the said judgment and order of conviction and sentence the appellant was directed to suffer rigorous imprisonment for 3 years and pay a fine of Rs. 5,000/- in default to suffer further imprisonment for 6 months for the offence punishable under Sections 498A/302 IPC.

(2.) The case of the prosecution is that Hadisa Bibi (victim) was married to the appellant of village- Chhaptala for about five years. The appellant inflicted torture both mental and physical on her. On 18th December, 2008 at about 10.00/11.00 hours in the night a telephonic information was received by Nasiruddin Momin father of the victim that she had received burn injury and was admitted to Suri Sadar Hospital. Nasiruddin Mondal (PW 1) rushed to the hospital and found the victim in a precarious condition. He learnt from his daughter that kerosene oil had been poured over her and she was set on fire. The complaint was lodged by the father of the victim against the accused persons. On the basis of the said complaint Suri P.S. Case No. 285/08 dated 19th December, 2008 was initiated under Sections 498A/326/307 IPC. The victim girl died on 21st December, 2008. Section 302 was added to the formal FIR. The said was followed by investigation. On completion of investigation charge sheet was filed under Sections 498A/326/302 IPC. The case was committed for trial to the Court of Sessions Judge, Birbhum who transferred the case to the Additional Sessions Judge, 2nd Court, Suri, Birbhum. Charge under Sections 498A/326/34 and under Sections 302/34 IPC was framed against the appellants. The same was read over and explained to the appellants who pleaded "not guilty" and claimed to be tried. In course of trial 20 witnesses were examined and none was examined on behalf of the defence. The appellant was examined under Section 313 CrPC. Documents were taken on record as exhibits and on consideration of the evidence the Court below passed the order of conviction and sentence. Hence this appeal.

(3.) Counsel for the appellant submits that the date of incident was 18th December, 2008 and the FIR was filed on 19th December, 2008 by the father PW 1. The victim died on 21st December, 2008. Three dying declarations were given by the victim two before the doctor. One on 18.12.2008 at 10.45 pm and the other on 19th December, 2008 after 24 hours at 8.15 pm and the third before the I.O. No statement was recorded by the Magistrate. The dying declarations are contradictory as in the first dying declaration it was recorded that the victim committed suicide while in the second it was recorded that the appellant and his mother poured kerosene oil on the victim and set her on fire, therefore the death is homicidal. The second dying declaration is not to be believed and cannot be relied on, as between the said two dying declarations the victim met her parents and the second dying declaration is the result of tutoring. At the time of conviction Section 306 IPC ought to have been considered. PW 2 is the mother and the victim was tutored by her. The torture inflicted on the victim girl by the appellant was not of such great magnitude to make her commit suicide.