Tripura High Court
Sri Raju Lal Das vs The State Of Tripura on 4 July, 2019
Equivalent citations: AIRONLINE 2019 TRI 73
Bench: S. Talapatra, Arindam Lodh
IN THE HIGH COURT OF TRIPURA
AGARTALA
CRL.A.(J) No.17 of 2015
Sri Raju Lal Das,
son of Sri Chandan Kumar Das,
resident of Siddhi Ashram, P.S. Amtali,
District- West Tripura
......... Appellant
-Versus-
The State of Tripura
......... Respondent
For the appellant : Mr. P. Majumder, Adv.
For the respondent : Mr. B. Choudhury, P.P.
Date of hearing : 21.02.2019
Date of delivery of : 04.07.2019
Judgment & Order
Whether fit for reporting : Yes No
√
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
THE HON'BLE MR. JUSTICE ARINDAM LODH
JUDGMENT & ORDER
[Talapatra, J]
The appellant questions the legality of the judgment and order dated 14.11.2014 delivered in S.T. 124 of 2010 by the Addl. Sessions Judge, No.2, West Tripura, Agartala by means of this appeal. The appellant was charged under Sections 302 and 436 of the IPC separately and after trial, he was convicted for committing offences punishable under Sections 436 and 302 of the IPC. As consequence of such conviction, the appellant has Page 2 of 39 been sentenced to suffer rigorous imprisonment for 7[seven] years and fine of Rs.5,000/- with default stipulation, under Section 436 of the IPC and to suffer rigorous imprisonment for life with default stipulation for commission of offence punishable under Section 302 of the IPC. It is to be noted that the sentences are directed to run concurrently.
[2] The prosecution against the appellant was launched on the basis of the written compliant [Exbt.1] filed by one Nitai Saha [PW-1] on 30.10.2009 revealing that on 30.10.2009 at about 8.15 pm while he was in his house he had noticed that his eastern side viti was ablaze. He rushed out of the room and found that the hut of one Raju Lal Das, who was the tenant of his younger brother, namely Indramohan Saha in the adjacent house. PW-1 at that moment saw Suchitra Das, wife of Raju Lal Das was groaning half-burnt outside that burnt room and muttering 'save me, my husband assaulted me and set fire on the person by pouring kerosene oil'. PW-1 along with others rescued that woman and made arrangement for sending her to the GBP hospital, Agartala. The said hut was fully gutted. The people from the neighbourhood had extinguished the fire. Raju Lal Das, the appellant who has been convicted by the said judgment dated 14.11.2014 was seen running away from that Page 3 of 39 place. PW-1 has made a categorical statement in the written complaint as follows:
‗May it be mentioned that Raju Lal Das always used to torture and assaulted his wife, Suchitra Das which was known to the people of the locality.' [3] Based on the said written complaint dated 30.10.2009, Amtali P.S. case No.97/2009 was registered initially under Sections 436/326 of the IPC. From the records, it appears that on death of Suchitra Das [the victim], the investigation was carried out also under Section 302 of the IPC with due information to the Magistrate. After completion of the investigation, the final police report was filed in the court of Sessions Judge which had in due course transferred the case to the court of the Addl. Sessions Judge, No.2, West Tripura, Agartala. After taking cognizance, the Addl. Sessions Judge framed the charge under Sections 436/302 of the IPC against the appellant separately. The appellant pleaded innocence, denied the charge and claimed for trial. [4] In order to substantiate the charges, the prosecution has adduced as many as 21 [twenty one] witnesses [PWs-1 to PWs- 21], whereas to rebut the evidence, the defence adduced 2[two] witnesses [DWs-1 & 2]. It may further be noted that the prosecution has introduced 9 [nine] documentary evidence [Exbts.1 to 9] including the postmortem report [Exbt.5] and the dying declaration [Exbt.6] of Suchitra Das [the deceased] in the evidence. After the prosecution evidence was recorded, the Page 4 of 39 appellant was examined under Sections 281/313 of the Cr.P.C. when he denied the incriminating evidence as false and repeated the plea of innocence. Thereafter, the trial court on appreciation of the evidence inclusive of the evidence led by the appellant returned the finding of conviction on observing that:
―27. It is proved beyond shadow of doubt that when the house of the accused was in flame amongst the neighbouring people the informant P.W.1, house owner P.W.2 , P.W.6 the scribe of the ejahar and P.W.20 Indrajit Nama being neighbour rushed to the house of the accused and found the Suchitra Das wife of the accused in a half burnt condition and in their presence Suchitra Das made dying declaration making the accused responsible for causing burnt incident on her person and in the hut by pouring kerosene oil. The defence took the plea that accidentally fire occurred from her gas oven and accused tried his best to save Suchitra and his children by extinguishing fire and due to that accused sustained some burnt injuries on his person but those suggestion given to the prosecution witnesses are denied by the witnesses. From the evidence of the D.Ws. 1 & 2 it reveals that Raju also sustained some burnt injury on his person. P.W.4 the hostile witness Prasenjit Bhattacharjee during his cross examination also supported that he had noticed that the accused got scald wound at his hand .But he was not taken by the fire service personnels rather evidence shows the accused escaped from the place of occurrence. Prosecution in this case did not prove the injury of the accused. The accused Rajulal also did not adduced any evidence regarding type of injury he received from the alleged incident. It shows that the burnt injury which the accused might have received was actually caused to him while he forcefully administered fire on his wife after pouring kerosene oil. And that is why defence in this case did not attempt to prove the type of injury received by the accused. In the totality of the prosecution evidence, it is proved beyond shadow of doubt that victim made dying declaration to the P.W. 1, 2, 6 & 20 making the accused responsible for causing burnt injury on her person by pouring kerosine oil on the body of her body and thereafter he left putting arson in the said hut locking the door. Evidence of medical officer P.W.9 also proved that the death of Suchitra took place due to septicemia and shock as a result of burnt injuries. I am satisfied that the prosecution in this case proved the circumstances which leads to only one hypotheses that it was the accused Raju Lal Das who put kerosene oil on his wife and put fire on her and also set his rented house in flame and intentionally caused severe burnt injury in order to commit murder of his wife. It is proved that except the accused no other person is responsible for the said incident. I am also satisfied that it is not a case of accident. Rather, it was an incident of intentional murder by fire. Thus, I find the accused Raju Lal Das guilty for the offence U/S 436 of I.P.C. for committing arson at his rented house and for the offence U/S 302 of I.P.C for intentionally causing the death of his wife Suchitra by intentionally Page 5 of 39 pouring kerosene oil on her person and then to put her in flame.‖ [5] Mr. P. Majumder, learned counsel appearing for the appellant has categorically submitted that the trial judge at the time of passing the judgment did not consider the evidence led by the defence. That apart, the dying declaration as relied by the trial Judge cannot be treated as the dying declaration for purpose of placing reliance in order to convict the appellant. Mr. Majumder, learned counsel has further stated that none of the prosecution witnesses has witnessed that the appellant poured kerosene to set his wife ablaze. For example, PW-2 who has been relied by the trial Judge has in his cross-examination stated that before he reached to the place of occurrence, the Fire Brigade and police personnel had arrived there. Therefore, his making of any inquiry from the victim is grossly exaggerated and untrustworthy. Even in the further cross-examination, PW-2 has stated that he did not state to the police that on his inquiry the victim told him that her husband [the appellant] poured kerosene oil on her person to set her ablaze with intention to kill. Even PW- 6 [Kajal Kumar Saha], son of PW-2 has stated that he heard the victim telling that her husband poured kerosene oil to set her ablaze. Mr. Majumder, learned counsel thereafter made reference to the statement of PW-9 [the postmortem Doctor] where he has stated that he subscribed in the report that the deceased was set Page 6 of 39 on fire by her husband. The source of such information was the brother of the deceased. Even PW-10 [the Executive Magistrate] who recorded the dying declaration of the victim in hospital in his cross-examination has clearly admitted as under:
―I have not read over the contents of dying declaration of Suchitra. I did not cite any doctor or any nurse or any staff of GBP hospital on the dying declaration. I also did not obtain any thumb impression or signature of Suchitra on the dying declaration. It is not a fact that as Suchitra did not give any dying declaration to me for that reason id did not obtain her signature or thumb impression of the dying declaration.‖ Further, Mr. Majumder, learned counsel has submitted that even though PW-12, a fireman, reached before PW-2 but he did not state that he heard anything from the victim. On the contrary, he has stated that he heard from the local people that the appellant set fire to the hut and in the person of his wife. Even PW-17 [the father of the victim] has stated in the examination-in-chief that the appellant set fire on her pouring kerosene while she was asleep. He has claimed that he was so stated by the victim. He has further asserted that the victim ran away from the room closing the door from outside but in the cross-examination, he has categorically admitted as follows:
―I did not state to darogababu that Raju alone set fire on my daughter Suchitra but I stated that he along with her mother, father and brother set fire on Suchitra. I also did onto state to darogababu that accused Rajulal Ddas ran away from the room setting fire on Suchitra and close the door from outside.‖ Page 7 of 39 Finally, Mr. Majumder, learned counsel having referred to the dying declaration recorded by PW-10 [Exbt.6] has stated that no observation is available that the victim was in the state of making the dying declaration. Even no signature or thumb impression of the victim was obtained on the declaration. Mr. Majumder, learned counsel has further referred that PW-10 has categorically stated that the dying declaration which was recorded by him was not read out to the victim. According to Mr. Majumder, learned counsel, the said dying declaration [Exbt.6] cannot be relied. That apart, there is no cogent evidence to convict the appellant. In support of his contention raised in the course of hearing, Mr. Majumder, learned counsel has referred a series of decisions. In Laxman vs. State of Maharashtra, reported in AIR 2002 SC 2973, a larger Bench of the apex court having overruled the Paparambaka Rosamma vs. State of Andhra Pradesh, reported in (1999) 7 SCC 695 has observed as under:
―The juristic theory regarding acceptability of a dying declaration is that such declaration is 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 man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the Page 8 of 39 deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, 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 eyewitnesses 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 someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a 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 by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.‖ [Emphasis added] Having followed that principle, this court observed in Babul Ghosh vs. State of Tripura, reported in (2015) 1 TLR 212 that finally the dying declaration should of such nature as to inspire full confidence in the court in its truthfulness and correctness. The court, however, has to always be on guard to see that the statement of the deceased was not a result of tutoring or prompting or a product of imagination. The court shall further decide that the dying person was in a fit state of mind. Page 9 of 39
[6] Mr. Majumder, learned counsel has relied a decision of the apex court in Paniben (Smt.) vs. State of Gujarat, reported in (1992) 2 SCC 474, where the apex court had occasion to lay down the law relating to the dying declaration in the following terms:
―17. The situation in which a man is on death bed is so solemn and serene when he is dying the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in mis-carriage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. [Munnu Raja v. State of M.P., (1976) 3 SCC 104].
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. [State of U. P. v. Ram Sagar Yadav : AIR 1985 SS 416; Ramavati Devi v. State of Bihar : AIR 1983 SC 164].
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. [Ram Chandra Reddy v. Public Prosecutor:
AIR 1976 SC 1994].
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. Page 10 of 39
[Rasheed Beg v. State of Madhya Pradesh : (1974) 4 SCC 264].
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. [Kake Singh v. State of M. P. : AIR 1982 SC 1021]
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. [Ram Manorath v. State of U.P. : (1981) 2 SCC 654].
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. [State of Maharashtra v. Krishnamurthi Laxmipati Naidu, AIR 1981 SC 617].
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. [Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505]
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. [Nanahau Ram v. State of MP : AIR 1988 SC 912].
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. [State of U.P. v. Madan Mohan : AIR 1989 SC 1519].‖ [Emphasis added] [7] The law relating to the dying declaration has found place or been enunciated in the decisions as catalogued below:
[i] Gaffar Badshaha Pathan vs. State of Maharashtra, reported in (2004) 10 SCC 589;
[ii] Nallapati Sivaiah vs. Sub-Divisional Officer, Guntur, Andhra Pradesh, reported in (2007) 15 SCC 465;
[iii] Kantilal vs. State of Rajasthan, reported in (2009) 12 SCC 498 and Page 11 of 39 [iv] Kashi Vishwanath vs. State of Karnataka, reported in (2013) 7 SCC 162.
[8] In Gaffar Badshaha Pathan (supra), the apex court has observed with illustration in respect of obligation of the author of the statement made by the dying person. In Para-7 of the said report it has been observed that the only obligation of the author would be to show that the statement was recorded with bona fide intention and without any pressure having been exerted by him on the maker of the statement. This is not always an easy job for an author to enter into the mind of the maker. [9] In Nallapati Sivaiah (supra) it has been observed by the apex court that there is a historical and a literary basis for recognition of dying declaration as an exception to the hearsay rule. Some authorities suggest that the rule is not of Shakespearian origin. It is difficult to appreciate why dying declarations are admitted in evidence at a trial for murder, as a striking exception to the general rule against hearsay. For example, any sanction of oath in the case of living witness is thought to be balanced at least by the final conscience of the dying man. Nobody, it has been said, would wish to die with a lie on his lips. A dying declaration has got sanctity and a person giving the dying declaration will be the last to give untruth as he stands before his 'creator'. There is a legal maxim nemo Page 12 of 39 moriturus praesumitur mentire meaning, than a man will not meet his maker with a lie in his mouth.
It has been also observed in Nallapati Sivaiah (supra) as under:
―In passing upon admissibility of an alleged dying declaration, all attendant circumstances should be considered, including weapon which injured the victim, nature and extent of injuries, victim's physical condition, his conduct, and what was said to and by him. The Supreme Court has consistently taken the view that where a proper and sufficient predicate has been established for the admission of a statement under dying declaration, Hearsay exception is a mixed question of fact and law. Dying declaration can form the sole basis for conviction. But at the same time due care and caution must be exercised in considering weight to be given to dying declaration inasmuch as there could be any number of circumstances which may affect the truth. The Supreme Court in more than one decision has cautioned that the courts have always to be on guard to see that the dying declaration was not the result of either tutoring or prompting or a product of imagination. It is the duty of the courts to find that the deceased was in a fit state of mind to make the dying declaration. In order to satisfy itself that the deceased was in a fit mental condition to make the dying declaration, the courts have to look for the medical opinion.
The court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to the court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures.
It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be safely recorded on the basis of dying declaration provided the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. The Supreme Court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition - mentally and physically - to make such statement."
[Emphasis added] [10] The dying declaration must inspire confidence so as to make it safe to act upon. Whether it is safe to act upon a dying declaration depends upon not only the testimony of the person Page 13 of 39 recoding the dying declaration, even if a magistrate, but also on all the materials available on record and the circumstances including the medical evidence. The evidence and the materials available on the record must properly be weighed in each case to arrive at a proper conclusion. The court must satisfy itself that the person making the dying declaration was conscious and fit to make statement for which purposes, not only the evidence of the person recording the dying declaration but also the cumulative effect of the other evidence including the medical evidence and the circumstances must be taken into consideration. It is unsafe to record conviction on the basis of a dying declaration alone in cases where suspicion is raised, as regards the correctness of the dying declaration. In such cases, the court may have to look for some corroborative evidence by treating dying declaration only as a piece of evidence.
[11] In Kantilal (supra) the apex court has observed that one of the important tests of the credibility of dying declaration is that the person, who recorded it, must be satisfied that the deceased was in a fit state of mind. It has been further observed in Kantilal (supra) as under:
―In State (Delhi Administration) vs. Laxman Kumar : (1985) 4 SCC 476, this Court while dealing a case of bride burning on the basis of dying declaration, held as follow:
21.....A dying declaration enjoys almost a sacrosanct status as a piece of evidence as it comes from [the] mouth of a person who is about to die and at that stage of life he is not likely to make a false statement..... Page 14 of 39
** ** **
25......Ordinarily, a document as valuable as a dying declaration is supposed to be foolproof and is to incorporate the particulars which it is supposed to contain."
Further, it is held that : [Laxman (supra)] ‗28..... unless the dying declaration is in question and answer form it is very difficult to know to what extent the answers have been suggested by questions put. What is necessary is that the exact statement made by the deceased should be available to the court.' It is also said that if the doctor happened to be present at the time of recording of the dying declaration and he had heard the statement made by the deceased, he would ordinarily endorse that the statement had been made to his hearing and had been recorded in his presence. The endorsement as made is indicative of the position that a statement had been recorded and the same was being attested by the doctor.‖ [12] In Kashi Vishwanath (supra) the apex court has observed that since at the bottom of the dying declaration no endorsement was made and that the statement as recorded was not read over to the dying person, that fact itself creates doubt in the mind of a prudent person as to the truthfulness of the content of the dying declaration as the possibility of the deceased being influenced by somebody in making the declaration cannot be ruled out.
[13] Mr. Majumder, learned counsel appearing for the appellant has contended that unless the overt act of the appellant or any act of the appellant is proved beyond reasonable doubt, the appellant cannot be convicted. This court in Debasish Saha vs. State of Tripura, reported in (2013) 2 TLR 1 had occasion to observe that a dying declaration must be dealt with caution for the reason that the maker of the statement cannot be Page 15 of 39 subjected to cross-examination. There is no rule of law or rule of prudence that a dying declaration cannot be accepted unless corroborated. Finally, Mr. Majumder, learned counsel has submitted that the trial Judge has presumed existence of certain facts without the required foundation.
[14] In M. Narsinga Rao vs. State of A.P., reported in (2001) 1 SCC 691, it has been observed as follows:
―15. The word proof need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word proved in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins vs. Powells Tillery Steam Coal Company, Ltd. :
(1911) 1 K.B. 988] observed like this:
‗Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion.'
16. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis-à-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.
17. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later.
Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled. Page 16 of 39
18. For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani vs. State of Maharashtra: (1998) 7 SCC 337]. A presumption can be drawn only from facts - and not from other presumptions-by a process of probable and logical reasoning.‖ [Emphasis added] [15] Mr. B. Choudhury, learned P.P appearing for the State has submitted that having made a cumulative assessment of the evidence any prudent person would come to inference that the prosecution has proved the charge beyond reasonable doubt. PWs-1,2,6 and 20 have categorically stated that the appellant has set her wife and the hut on ablaze by pouring kerosene oil. The medical evidence as has been introduced by PW-9 has clearly corroborated their testimonies. The objections raised in respect of the dying declaration are unsustainable inasmuch as the witnesses signed over the dying declaration have categorically stated that the victim was in a fit state of mind for making such statement. Mr. Choudhury, learned PP has further submitted that even though the several dying declarations are made by the victim but those are consistent. According to Mr. Choudhury, learned P.P, the attending circumstances and the dying declarations made by the victim demonstrate sans minor inconsistency that it is none but the appellant committed the offence punishable under Sections 302/336 of the IPC. Page 17 of 39 [16] In Mukesh and another vs. State [NCT of Delhi] & Ors. reported in (2017) 6 SCC 1, the apex court had occasion to observe as follows:
―406. When a dying declaration is recorded voluntarily, pursuant to a fitness report of a certified doctor, nothing much remains to be questioned unless, it is proved that the dying declaration was tainted with animosity and a result of tutoring. Especially, when there are multiple dying declarations minor variations does not affect the evidentiary value of other dying declarations whether recorded prior or subsequent thereto. In Ashabai and Anr. v. State of Maharashtra : (2013) 2 SCC 224, it was held as under:
‗15. ....As rightly observed [Ashabai Puna Tayade vs. State of Maharashtra, Criminal Appeal No.252 of 2005, decided on 11.04.2007 (Bom)] by the High Court, the law does not insist upon the corroboration of dying declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the Court is satisfied that the dying declaration is voluntary, not tainted by tutoring or animosity, and is not a product of the imagination of the declarant, in that event, there is no impediment in convicting the accused on the basis of such dying declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variation in the other.'
410. A dying declaration need not necessarily be by words or in writing. It can be by gesture or by nod. In Meesala Ramakrishan v. State of A.P. (1994) 4 SCC 182, this Court held as under:-
‗20. .....that dying declaration recorded on the basis of nods and gestures is not only admissible but possesses evidentiary value, the extent of which shall depend upon who recorded the statement, what is his educational attainment, what gestures and nods were made, what were the questions asked -- whether they were simple or complicated -- and how effective or understandable the nods and gestures were.' The same view was reiterated in B. Shashikala v. State of A.P. (2004) 13 SCC 249.‖ [17] Mr. Choudhury, learned PP has, therefore, submitted that the minor irregularities in recording the dying declaration for the substantive ends of justice be pushed aside by the court. Page 18 of 39 [18] For appreciating the rival contentions projected by the learned counsel for the parties, it would be apposite to make the meaningful survey of the evidence.
[19] PW-1, Nitai Saha who lodged the complaint has stated in the trial that the appellant was a tenant in the house of his brother, namely Indramohan Saha [PW-2]. The hut where the appellant was residing was adjacent to his house. PW-1 has further stated that on 30.10.2009 he filed the ejahar written by his nephew, Kajal Kumar Saha [PW-6]. After verifying the contents he signed the said ejahar [Exbt.1]. He has stated further that on 30.10.2009 at about 8.15 pm he heard hue and cry and came out and found that the tenanted house where the appellant was residing was on flame. He rushed to the place of occurrence and saw the appellant's wife Suchitra Das was lying outside the said hut having no wearing apparel on her body and her body was half burnt. She was groaning and muttering 'save me, save me'. PW-1, then, has stated that he heard that Suchitra was telling that her husband, Rajulal Das after pouring kerosene oil set her on fire and that, indicating to the burning hut, Suchitra also indicated [both by words and gesture] that fire was set by the appellant. She has also stated that her husband stated to him that the appellant used to assault her. Suchitra was shifted to GBP hospital in a precarious condition by aid of the Fire Brigade. Page 19 of 39 PW-1 has stated that along with the assembled people, he tried to extinguish the fire. He heard from the people that the appellant used to beat his wife, Suchitra. The rented premises of the brother gutted completely. He identified the appellant in the trial.
In the cross-examination, he has admitted that all properties of the appellant were gutted in that fire. He has also admitted that he did not state to the investigating officer that Suchitra informed him that the appellant after setting fire on her ran away from the house. He has denied to have filed a baseless complaint against the appellant or that the appellant tried to extinguish fire in order to save his children or that the appellant received burn injuries.
[20] PW-2, Indromohan Saha has also corroborated PW-1. At the time of the fire incident he was at his shop at Badharghat. Within 15 minutes, he reached to the place of occurrence and found the appellant's wife, Suchitra 'sitting in the courtyard' being half burnt and almost in the naked state. When he had inquired, she told him that her husband after pouring kerosene oil on her body set her ablaze intending to kill her. In presence of the persons assembled there she had also narrated her plight. The rented house was completely gutted. Suchitra was taken to Page 20 of 39 the GBP hospital. He has categorically stated that Raju used to beat his wife, Suchitra Das, everyday mercilessly.
In the cross-examination, he has stated that he saw the burn injuries below the abdomen of Suchitra. Before he reached to his residence, the police and the Fire Brigade reached the place of occurrence. He denied all the suggestions made contrary to what he had stated in the examination-in-chief. He has denied the suggestion that since the appellant did not pay him the compensation for damage of his properties, he had lodged the complaint. But in the cross-examination which was carried on 24.07.2007 on recall, PW-2 has admitted that he did not state to the police that 'on my inquiry Suchitra told me that her husband Rajulal Das after pouring kerosene oil on her body set fire intending to kill her'. However, he has given an explanation that he did not make such statement as he was not asked so and he has admitted thereafter that such statement made by him for the first time in the trial.
[21] PW-3, Ajoy Bhattcharjee, a witness from the neighbourhood has stated that the appellant was a tenant of PW-
2. On seeing the fire, he rushed to the place of occurrence and saw the people engaged in extinguishing the fire. He noticed Raju's wife with half burnt condition. He identified the appellant in the trial.
Page 21 of 39[22] PW-4, Prasenjit Bhattacharjee, another witness from the neighbourhod on hearing the outcry, rushed to the place of occurrence and found the people engaged to extinguish the fire. Since he denied to have any further knowledge as regards the occurrence he was declared hostile and cross-examined by the prosecution.
[23] PW-5, Dipak Kr. Dey has stated that he as well reached the place of occurrence in response to the outcry and tried to extinguish the fire by pouring water along with other people. He saw the appellant's wife in half burnt condition lying in the courtyard. Her condition was serious. He was also declared hostile and was cross-examined by the prosecution. [24] PW-6, Kajal Kr. Saha wrote the ejahar [Exbt.1]. He had identified his writing. According to him, the appellant's wife sustained 50% burn injuries on her body. She was screaming for help. Thereafter, he made the following statement in the trial:
―I heard her telling that her husband after pouring kerosene oil on her set her ablaze. She was rushed to the GBP hospital by Fire Service vehicle for treatment. Due to the fire the rented house of Rajulal was completely gutted down.‖ He has also stated in the trial that as per the dictation of his uncle [PW-1] he wrote the ejahar. He was also witness to the seizure of one haricane and some portions of sari, burnt coal from the rented house of Rajulal Das.Page 22 of 39
In the cross-examination, he has admitted that he did not see the occurrence but he denied the suggestions contrary to what he had stated in the examination-in-chief. [25] PW-7, Biplab Baishya is a professional photographer who took the photographs of the burnt house. He has stated in the trial that he had handed over the negative and the print of the negatives [Exbt.MO.2 series] to the investigating officer. He was not cross -examined.
[26] PW-8, Partha Deb is one of the independent witnesses who reached the place of occurrence even before PW-2. He has stated in the trial as follows:
―I also noticed one lady lying in the courtyard with half burnt condition. She was screaming. By this time Fire Brigade vehicle reached from Agartala. In the said vehicle the injured lady was shifted to GBP hospital for treatment. After extinguishing the fire we returned to our Fire Service station.‖ In the cross-examination, he did not deviate from those statements.
[27] PW-9, Dr. Pranab Choudhury carried out the postmortem examination on the body of the victim on 05.11.2009. According to him, he found the following ante mortem burn injuries on the persons of the victim:
―Infected epidermal and dermoepidermal burn injury with the evidence of yellowish formation present over head and neck 5% right upper limb, 9% left upper limb, 9% and anterior trump 18% posterior trump 18%, right lower limb 18%, left lower 18% and perineum 1%. Total 96% body surface area were involved. There was signing of scull hair eye brows, eye lashes were present. All the burn injuries Page 23 of 39 were ante-mortem flame burn injury and age of injury is 4 to 6 days at the time of death. There is evidence of venesection present on the right side medial aspect of leg of lower part.‖ In the report, he has subscribed his opinion that the death occurs due to septicemia and shock as a result of burn injuries. He had identified the report [Exbt.5] with his signature. He had further stated that the deceased was set fire by her husband-which was stated before him by the brother of the deceased. Such observation cannot have any evidentiary value, whatsoever, as that observation is hit by the hearsay rule.
In the cross-examination, he did not deviate from his statement made in the examination-in-chief.
[28] PW-10, Soumitra Chakma, was the Dy. Collector in office of the SDM, Sadar. On direction, he recorded the dying declaration of the victim. He has stated in his deposition in the trial that he recorded the dying declaration of Suchitra Das as per her version. The contents of declaration were read over to Suchitra by him. He identified his signature on the declaration [Exbt.6].
In the cross-examination, he has admitted that he did not record in the declaration where the said declaration was recorded. Even he did not mention in the dying declaration about his consultation with any doctor. But he has denied that he did Page 24 of 39 not ascertain the physical and mental condition of the victim. He has further admitted that though he has recorded the declaration in English but he did not talk to the victim in English. He has denied the suggestion that he did not read over the content of dying declaration to the victim. He has admitted that he did not obtain the signature or thumb impression on the dying declaration.
[29] PW-11, Shibaprasad Sur, having received an information on 05.11.2009 from Dr. Animesh Das went to GBP hospital after recording his exit in the station diary. He found the dead body of the victim. He had carried out the inquest over the dead body in presence of witnesses. He had identified the report [Exbt.7]. He has further stated that the supplementary case diary [SCD] that he prepared has been tagged with the original record. [30] PW-12, Chittarnjan Sarkar is another Fireman who reached the place of occurrence immediately after receipt of the information. He has also stated as follows:
―He also found a partially burnt female body in an unconscious condition lying in the court of the house. Thereafter, the person was shifted to GBP hospital by our another vehicle. We heard from the local people that the owner of the house namely Rajulal Das set fire to his house and also set fire with the person of his wife.‖ In the cross-examination, he did not deviate from what he has stated in the examination-in-chief. Page 25 of 39 [31] PW-13, Sanjoy Laskar, a Sub Inspector of police at Amtali Police station received the written ejahar from PW-1 and recorded the information as the FIR being Amtali P.S. case No.97 of 2009 dated 30.10.2009 under Sections 436/326 of the IPC. He had identified the FIR. He was not cross-examined. [32] PW-14, Uma Rani Karmakar is a relative of the victim. She has stated in the trial that at the time of recording the statement of the victim she was present in the GBP hospital. Suchitra gave her statement in her presence to the Magistrate about how she had sustained the injuries. In their presence Suchitra told the Magistrate that her husband set fire on her by pouring kerosene oil and also set the hut on fire. After recording the statement, the Magistrate asked her to put signature on the paper where the statement was recorded. She had identified her signature.
In the cross-examination, she could not give the name of the Magistrate but she stood by her statement that she was present at the time of recording the statement. She was categorically suggested that the physical condition of Suchitra was such that she was not able to speak a single word. The suggestion was denied.Page 26 of 39
[33] PW-15, Maya Rani Ghosh is another relative of the victim. She visited Suchitra in the hospital. She has made the following statement in the trial:
‗Being asked Suchitra told me that on the last night her husband quarreled with her and set fire by pouring kerosene oil and also set fire the hut.' In the cross-examination, she had denied the suggestion made contrary thereto.
[34] PW-16, Jhantu Das was declared hostile as he had deviated from the statement recorded under Section 161 of the Cr.P.C. He was cross-examined but he stood by his statement contrary to the previous statement.
[35] PW-17, Ranjit Kumar Ghosh is the unfortunate father of the victim. He has stated that 'following the information, myself along with my wife and others rushed to the GBP hospital and found my daughter, Suchitra lying on the bed, sustained severe burn injuries on her body. At that time, my daughter, Suchitra told me that her husband set fire on her pouring kerosene when she was sleeping at home. She also stated that at the time of incident when she woke up her husband, Rajulal Das ran away from the room closing the door from outside. During her stay in matrimonial home my daughter, Suchitra used to come to my house and on several occasions she told me that her husband Page 27 of 39 Ranjulal used to assault her physically in a drunken condition.' He identified the appellant in the dock.
In the cross-examination, he has admitted that he did not state to the investigating officer that Raju had set fire on her daughter, Suchitra. But he has stated that he along with her mother, father and brother set fire on Suchitra. Even he has admitted that he did not state to the investigating officer that the appellant ran away from the room setting fire on Suchitra and closed the door from outside. But he has denied the suggestions, made contrary to what he had stated in the examination-in-chief. [36] PW-18, Rajesh Ghosh is the younger brother of the victim. After having the information that her sister was admitted in the GBP hospital with burn injuries, he along with his parents rushed to the hospital and found the victim lying in the bed sustaining burn injuries on her body. The victim told his father [PW-17] in their presence that the appellant set fire on her pouring kerosene oil. His sister died on 05.11.2009 owing to the burn injuries in the hospital. He has further stated that the appellant used to assault his sister. His sister lodged the complaint in Amtali police station in the year 2002. He is also the witness to the inquest procedure and in acknowledgment thereof, he had signed the inquest report.Page 28 of 39
In the cross-examination, he has admitted by stating as follows:
―I did not state to darogababu that my sister Suchitra told my father in our presence that Raju set fire on her body pouring kerosene oil, but stated that I came to know from her that accused set fire on Suchitra by pouring kerosene oil.‖ He had denied the suggestion contrary to what he had stated in the examination-in-chief or in respect of state of unconsciousness of the victim when they visited her. [37] PW-19, Abhijit Ghosh is the relative of the victim. He did not state anything of material importance except his being the witness of the inquest procedure and signing the inquest report [Exbt.7] in acknowledgment of his presence.
In the cross-examination he has stated that he cannot say what was written in the inquest report [Exbt.7]. [38] PW-20, Indrajit Nama is an independent witness from the locality and he has categorically stated that the wife of Rajulal Das [the appellant] was shouting that her husband set fire on her after pouring kerosene on her person. He has further submitted that she was subjected to torture earlier for which she filed the case against her husband but the source of her statement is at variance from the other people and not direct. He was the witness to the seizure of haricane of kerosene and some burnt ash. He had identified his signature on the seizure list Page 29 of 39 [Exbt.4]. He has denied the suggestion that he did not hear from the victim that the appellant poured kerosene oil and set her ablaze.
[39] PW-21, Himadri Sarkar, a Sub-Inspector police stationed at Amtali PS at the relevant point of time investigated the case and stated how after receiving the information that a fire is broken out in the rented house of the appellant, he proceeded to the place of occurrence on direction of the officer-in-charge. He has categorically stated as follows:
―Accordingly, I went to the place of incident and found wife of Rajulal Das sustained burn injury on her person and she was shouting that her husband set fire on her body. Fire Service vehicle also came and by their vehicle I shifted the injured [Suchitra Das] to GB hospital.‖ Thereafter, he gave a brief narrative how he conducted the investigation. He has stated in the trial that he found the appellant in his parent's house at a distance of half kilometer from his rented house. He found the appellant with burn injuries on his hand and he was shifted to GBP hospital. He had sent the requisition for recording dying declaration of the victim by the Executive Magistrate and accordingly, the victim's dying declaration was recorded by PW-10. He has stated that having found a strong prima-facie case after collecting the postmortem examination report, he submitted the chargehseet against the appellant. He has admitted in the cross-examination that he did Page 30 of 39 not record the statement of the victim on 30.10.2009 but he had recorded her statement on 31.10.2010. He has admitted that he did not file any sou moto complaint as he was busy in shifting the victim to the hospital. The patient, according to him, was found in conscious condition and after obtaining the permission of the concerned medical officer orally, he recorded the statement of the victim under Section 161 of the Cr.P.C. [even though PW-21 has stated that he recorded such statement but it was not brought on the evidence] but he has again stated in the trial that the said statement was available in the case diary to deny the suggestion that the victim was not found in the conscious condition. He has confirmed that PW-1 told him that he heard from the victim that her husband Rajulal Das after pouring kerosene oil set her on fire but she did not state to him that the incident occurred after locking the hut.
[40] After recording the evidence led by the prosecution, when the appellant in his examination under Section 313 of the Cr.P.C. had stated that he would adduce the evidence. In the trial 2[two] defence witnesses namely, Gouranga Das [DW-1] and Manik Saha [DW-2] were testified.
[41] DW-1, Gouranga Das has stated that he had reached to the place of occurrence having the information of the fire incident. According to him, the appellant was also along with him Page 31 of 39 and the appellant ran to his house ahead of him. On reaching his house, according to DW-1, he noticed that the appellant was trying to put off fire on the body of his wife in the lawn. His wife was wearing a sari of silk. The appellant sustained burn injuries on his person while trying to put off fire on his wife. She became senseless in the meantime. Fire Service vehicle came on the spot and shifted his wife to the hospital. After about 10 minutes the police vehicle came on the spot and took Rajulal Das along with them.
In the cross-examination, he denied the suggestion advanced by the prosecution. He denied the fact that the victim was shouting that her husband had set her on fire. [42] DW-2, Manik Saha has stated that he saw the appellant trying to extinguish the fire in his house and as a result, he had sustained the injury on his person. The appellant's wife was found in the senseless condition. He has denied the suggestion that she was tutored by the appellant. In this regard, Exbt.2, which is the part of the statement recorded under Section 161 of the Cr.P.C. by the investigating officer, demonstrates that PW-4 who was declared hostile had stated to the investigating officer that the victim was shouting aloud in a half burnt state in the courtyard stating that her husband [the appellant] poured kerosene on her body and set her on fire. Exbt.3 bears the Page 32 of 39 similar statement of PW-5 who was also declared hostile. The dying declaration [Exbt.6] being one of the important documents may be reproduced in its full text:
―Dying declaration of Suchitra Das (27 years), wife of Rajulal Das of Siddhi Ashram, P.S. Amtali under Section 32 IEA Smt. Suchitra Das (27 years), wife of Rajulal Das of Siddhi Ashram, P.S. Amtali declare that her husband Sri Rajulal Das thrown kerosene oil on the body and set fire on 30/10.2009 at 8 pm as a result burnt maximum portion of the body.
It is also declare that her husband use to ask to bring money from her parents and got marriage 9(nine) years back.
The above mentioned declaration has been made by Smt. Das in presence of below noted witnesses in GB hospital. Witness:
1. Uma Karmakar [40 years] wife of Subhas Karmakar of Badharghat Matripally, P.S. Amtali
2. Maya Ghosh [40 years] wife of Pradip Ghosh of Uttar Badharghat, P.S. West Khotowali.‖ Even in the previous statement of PW-16 [Exbt.7], it is located that the victim was screaming aloud and saying 'take me to doctor. My husband set my body on fire by pouring kerosene.
Today in the evening my husband assaulted and tortured me. He threatened me that he would burn me with fire.' [43] Having verified the evidence very closely this court is confronted with the array of the evidence placed by the prosecution in the trial. Before the evidence is meaningfully appreciated, some preliminary observations may be made.
[i] The prosecution case is based on oral testimonies of PWs-1,2,6,10,14,15,17 and 20.
Page 33 of 39[ii] That apart, the recorded dying declaration [Exbt.6] has been given the paramount importance in coming to inference that the appellant had in order to kill his wife poured kerosene on her person and set her on fire.
[iii] The defence has failed to establish that those witnesses had any enmity with the appellant to frame him falsely with the death of his wife, and [iv] PW-21, the investigating officer, has made a categorical statement that when he went to the place of occurrence, she found the victim with burn injuries she was shouting that her husband set fire on her body. He has also asserted that he had arrested the appellant from his parent's house with burn injuries in his hand. But the witnesses as named above have not stated that any of them saw the appellant in the place of occurrence at any point of time.
[44] The defence adduced 2[two] witnesses to establish that the appellant was not at home at the relevant time of occurrence. He ran fast after getting the information of fire and tried to put off the fire on his wife. The victim was senseless being burnt. These statements are designed to advance the plea of alibi and that the victim was not in a state of speaking out anything. So the statement of the witnesses who stated that they heard the victim telling that the appellant poured kerosene oil on her person and set her ablaze is not believed. Mr. Majumder, learned counsel appearing for the appellant, having referred to law on the Page 34 of 39 dying declaration, has stated that at the time of recording the dying declaration the Executive Magistrate [PW-10] did not ascertain whether the victim was in a fit state of mind to make the declaration when she was in the brink of death. According to him, the victim was caught by the fire, by means of an accident and the appellant when tried to extinguish the fire received burns on his person, but the prosecution has deliberately suppressed that part. However, PW-21 [the investigating officer] has categorically admitted that he found the appellant with burn injuries on his hand while the appellant was arrested from his parent's house at a distance of half kilometer from the place of occurrence. According to Mr. Majumder, learned counsel, the injuries on the person of the appellant shows that in order to extinguish the fire on the person of the victim he had received those injuries. PW-1 who is a close door neighbour of the appellant as the appellant was a tenant in a hut of PW-1's brother, Indramohan Saha [PW-2] and he had disclosed in the written ejahar [Exbt.1] on the very day of the occurrence at 9.45 pm whereas the occurrence took place at 8.15 pm that the victim was loudly screaming that her husband [the appellant] assaulted her and set fire on her body by pouring kerosene oil. The police had seized one haricane and a piece of coal from the place of occurrence along with burn pieces of sari which was in the wearing of the victim. Even PW-2 has stated that on his query Page 35 of 39 the victim had stated that her husband [the appellant] after pouring kerosene oil on her body set her ablaze intending to kill her. The persons who were gathered at the place of occurrence without any delay had in unison supported the versions of PWs-1 & 2. However, PWs-4 & 16 made a turnaround by not supporting the prosecution case, but it appears that in the statement recorded by the investigating officer they had also stated the similar thing. Further, when PW-21 visited the place of occurrence, he had also heard the victim's screaming by stating that the appellant had set her ablaze by dousing kerosene oil on her person. On requisition of PW-21, PW-10 had recorded the dying declaration in presence of witnesses. Even though in the dying declaration signature or thumb impression of the victim was not taken nor a certificate from the doctor in respect of the fit mental statement of the victim has been attached on the dying declaration, for that the dying declaration cannot be relied, was pleaded by the defence.
[45] To rely a dying declaration, the apex court in Laxman (supra) has cautioned that the court should be on guard to see that the statement of the deceased did not emanate as a result of either tutoring or prompting or as a product of imagination. The court must further decide that the deceased was in a fit state of mind and he or she had opportunity to observe and identify Page 36 of 39 the assailant. No doubt a few witnesses including DWs have stated in the trial that the victim was in an unconscious state. Thus, they intended to imply that the victim was not in a fit state to make such declaration. But in Laxman (supra) the apex court has made a meaningful assertion that the certification by the doctor is essentially a rule of caution and therefore, the voluntary and truthful nature of the declaration can be established otherwise. In Paniben (supra) the similar view was expressed and enunciated that the court must be further satisfied that the deceased was in a fit state of mind and the maker had a clear scope to observe and identify the assailant. The court has to be satisfied that the declaration was true, voluntary and undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. In Nallapati Sivaiah (supra) the apex court has enunciated the law stating that the court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to the court, which on assessment of the circumstances and the evidence on record will come to a conclusion about the truth. The version may be verbal or by sign or by gesture. The court has to believe that the dying declaration was made consciously and voluntarily and that was made in a fit condition. In this regard, it is to be stated Page 37 of 39 that PW-10 has denied in his cross-examination that he did not ascertain the physical and mental condition of the victim even though he had not attached the certificate from the doctor. The testimonies of DWs have laid bare Achilles Heel when in order to establish alibi, it has been put forward that the appellant was away from home and after having the information of the fire incident he rushed home ahead of DW-1 and tried to extinguish fire on the person of his wife and in that order he received the burn injuries. DW-1 has further stated that the appellant was arrested from the place of occurrence. But PW-21, the arresting police officer has categorically asserted that the appellant was arrested from his parent's house, half kilometer away from the place of occurrence. Thus, it can be safely inferred that DWs were not truthful while making their statements in the trial. Thus, the defence case having been proved untrustworthy has enhanced the trustworthiness of the prosecution case. If it is seen sequentially then immediately after occurrence what the victim had uttered cannot be anything, but truth. The people who heard her saying that the appellant poured kerosene and set her ablaze after assaulting her are the natural witnesses in that place of occurrence being the neighbours of the appellant. Thus, PWs-1 & 2 have stated the truth and proved their credence in this regard and what they heard from the victim are liable to be treated as the dying declaration made voluntarily without being Page 38 of 39 prompted or tutored. The said declaration was virtually repeated when PW-10 recorded the dying declaration formally. As there is no certificate by a doctor in respect of the mental state of the victim for that reason the dying declaration cannot be discarded while recording of the statement by PW-10 has been supported by PWs-14 & 15 who had put their signature on the dying declaration being asked by PW-10. Thus, this court would like to rely on the said dying declaration [Exbt.6]. Burn injuries received by the appellant can speak the story contrary to what has been stated by DW-1. It appears that the appellant was present in the place of occurrence when the offence was committed. He received the injury in the said incident and left the place within a moment and did never come back till he was arrested from his parent's house. Thus, the said injuries even if had been proved would have destroyed the defence case but that circumstance has further consolidated the prosecution's case. True it is that nobody had seen the appellant to put fire on the hut or on the person of the victim. But the victim was half burnt and was in a state of consciousness and she made the statement how the hut was gutted by fire or how she had received the burn injuries to the extent of 50%. As stated earlier, none of the witnesses was imputed with animosity with the appellant. As such, what they have deposed in the trial are free from any bias or drive to punish the appellant without any basis. Most of the witnesses are Page 39 of 39 independent witnesses. They appeared in the place of occurrence as neighbour or as the Fire Service officials or as the police officer. Hence, this court is persuaded to believe that those witnesses as catalogued above have stated the truth and truth alone. Insignificant discrepancy cannot be relied to pull down the solidity of evidence.
[46] Having observed thus, this court is of the view that the finding of the conviction as returned by the trial Judge does not suffer from any infirmity.
In the result, the appeal stands dismissed.
The appellant shall serve out the sentence.
Send down the LCRs forthwith.
JUDGE JUDGE Sujay