GAUHATI HIGH COURT ISSUES ORDER ON MD. TAHER ALI AND ORS V/S THE STATE OF ASSAM AND ANR.

GUWAHATI, India, Dec. 30 -- Gauhati High Court issued the following order on Nov. 28:

1. Heard Mr. H.R.A. Choudhury, learned Senior Counsel for the appellants assisted by Mr. A. Mobaraque, learned counsel. Also heard Mr. R.R. Kaushik, learned Additional Public Prosecutor, Assam for the State respondent.

2. This is an appeal against the impugned judgment dated 12.02.2024 passed by the Sessions Judge, Baksa, Mushalpur in Sessions Case No.218/2018, convicting the appellants under Section 302/34 IPC and 304B/34 IPC. The learned Trial Court convicted the appellants on the ground that they had burnt the deceased by pouring kerosene on her and sentenced them to undergo rigorous imprisonment for life with a fine of Rs.2,000/- each, in default simple imprisonment for 6 months under Section 302/34. They were also sentenced to undergo rigorous imprisonment for 7 years with a fine of Rs.2,000/- each, in default simple imprisonment for 3 months under Section 304B/34 IPC. Both the sentences were to run concurrently.

3. The Prosecution case in brief is that an FIR dated 28.07.2016 was submitted by Prosecution Witness (PW) No.1, who was the father of the deceased to the Officer-in-Charge, Kaurbaha Patrol Post, stating that his daughter, who was married to the appellant no.1 Md. Taher Ali had been set on fire by pouring kerosene oil on her. The act of pouring kerosene on the informant's daughter had been done by the appellant no.1 (husband of deceased), appellant no.2 (father-in-law of the deceased) and appellant no.3 (mother-in-law of the deceased), which led to the deceased suffering 90% burns, that eventually led to her death. The victim was burnt at around 7:30 p.m on 27.07.2016 and died in the GMCH at around 3:50 a.m on 28.07.2016. In pursuant to the FIR dated 28.07.2016, Kaurbaha P.P. GDE No.395 dated 28.07.2016 was registered and thereafter Tamulpur P.S. Case No.226/2016 under Section 304(B)/34 IPC was registered.

4. After investigation of the case by the Investigating Officer (PW-10), charge-sheet was submitted against the appellant nos.1, 2 & 3, as the Investigating Officer found a prima facie case under Section 302/34 IPC and 304(B)/34 IPC against them. Appellant no.4 (brother-in-law of deceased) was discharged, as no evidence was found against him.

5. The learned Trial Court framed charges under Section 302/34 and 304B/34 IPC against the appellant nos.1 to 3, to which they all claimed to be "not guilty" and claimed to be tried. The learned Trial Court then examined 10 Prosecution Witnesses (PWs) and after examining the appellants under Section 313 Cr.P.C, it came to a finding that the appellants were guilty of having murdered the victim by burning her, after demands for dowry. Consequently, the appellants were convicted under Section 302/34 and 304(B)/34 IPC and sentenced accordingly.

6. The learned Senior Counsel for the appellants submits that the conviction of the appellants has been made solely on the basis of the alleged oral dying declaration made by the deceased to PW-1, PW6 to PW-9. However, the said dying declaration has not been made or recorded before any Magistrate or any Medical Officer, so that the same can be admissible in Court as evidence. He also submits that the evidence of PWs are not reliable, inasmuch as, there is discrepancy as to the place where the deceased was found by the PWs in the Gauhati Medical College & Hospital (GMCH). While PW-1 had stated that he had found his daughter inside the toilet of the GMCH, the evidence of PW-6 and PW-7 showed that the victim was not in the toilet of the GMCH, at the time when they first saw the victim. Further, while the evidence of PW-6 is to the effect that he had gone to the GMCH with PW-1 in a car, PW-7, who is the grandfather of the victim, had not made any mention of PW-6 as one of the persons, who had gone with him to the GMCH, to see the victim along with PW-1.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=bzPoyUlszYLCUcCpirIpqHXkSMADCSwtdyMl5eR5FJuEHfdMww%2FIX7g%2FY%2FFP46CE&caseno=Crl.A./76/2024&cCode=1&cino=GAHC010054462024&state_code=6&appFlag=)

Disclaimer: Curated by HT Syndication.