Gauhati High Court
Chandan Debnath vs State Of Assam & Anr on 9 April, 2015
Author: P. K. Saikia
Bench: P. K. Saikia, M. R. Pathak
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Crl. Appeal No. 199 of 2014
Sri Chandan Debnath
Son of Sri Lalit Debnath,
Maniram Dewan Colony
P.S. Mariani, Dist.--Jorhat
Assam.
....Appellant
-Versus-
The State of Assam
....Respondent
BEFORE
HON'BLE MR. JUSTICE P. K. SAIKIA
AND
HON'BLE MR. JUSTICE M. R. PATHAK
For the Appellant : Mr. A. Thakur, Advocate.
Mr. H. J. Medhi, Advocate.
For the Respondent : Ms. S. Jahan, Addl. P.P., Assam.
Date of hearing
& : 09.04.2015
Date of judgment
Crl. Appeal N o. 199 of 2014
2
JUDGMENT AND ORDER (ORAL)
(P. K. Saikia, J) This appeal is directed against the judgment and order dated 25.04.2014 passed by the learned Addl. Sessions Judge, Jorhat in Sessions Case No. 86(JJ)/2009 convicting Sri Chandan Debnath (herein after referred to as the accused person) of offence u/s 302 IPC and sentencing him to suffer imprisonment for life and also to pay a fine of Rs. 10,000/- (Rupees Ten Thousand) i/d R.I. for another 6 (six) months for the offence aforesaid.
2. Being aggrieved by and dissatisfied with the aforesaid judgment, the accused person has preferred this appeal citing several infirmities in the judgment under challenge.
3. We have heard Mr. A. Thakur, learned counsel assisted by Mr. H. J. Das, learned counsel for the appellant and also heard Ms. S. Jahan, learned Addl. P.P., for the State.
4. The case, projected by the prosecution in the FIR dated 24.09.2008 and in subsequent trial, in short, is that the accused person married one Monika Debnath (since deceased) about 8 (eight) years ago prior to the date of incident. Out of their wed-lock, 2 (two) daughters were born to them. However, sometime after the marriage, the relationship between the accused and the deceased started deteriorating.
5. Only few days before the incident in question, a party was arranged in the parental house of the deceased and on that occasion, the deceased and her husband along with family members were also invited. As the party was in progress, a quarrel took place between the accused and the deceased over some domestic matters and in that quarrel, the accused tried to kill his wife.
6. It has been submitted that on 24.09.2011 at about 1 a.m., there was a hullabaloo in the house of the accused person and on hearing such ruckus, coming from the house of the accused person, people nearby rushed to such place and found the wife of the accused lying on the floor of the kitchen with her body being Crl. Appeal N o. 199 of 2014 3 burnt by fire. The people, gathered there, also noticed the accused person sustaining burn injuries on both of his hands.
7. The victim was immediately taken to Jorhat Civil hospital but Doctors referred her to Dibrugarh Medical College & Hospital for better treatment. However, after being brought to Dibrugarh, the victim died same day at about 3 pm. In that connection, an FIR was lodged by one Raju Debnath, brother of the deceased, with O/C, Mariani PS on 24.09.2008. On receipt of the FIR, a case was registered vide Mariani P.S. Case No. 144/2008 u/s 498A/302 IPC and ordered one Sri Bhupen Tamuli, S.I. of police, to investigate the case.
8. Being so entrusted, Sri Tamuli, S.I. of police, visited the PO and examined the witnesses. It may be stated that after the death of the victim, the service of a Magistrate was requisitioned to conduct inquest on the dead body and in that connection, the Magistrate, who conducted the inquest, prepared a report which was proved as Ext. 5. In the course of investigation, I/O collected the post mortem examination report, did other needful and on the conclusion of investigation, he submitted charge sheet u/s 498A/302 IPC against the accused person and forwarded him to the Court to stand his trial.
9. The learned Magistrate before whom charge-sheet was so laid, committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. The learned Sessions Judge, Jorhat on receipt of the case, on commitment, transferred the case to the file of learned Addl. Sessions Judge, Jorhat for disposal in accordance with law. On receipt of the case on transfer, leanred Addl. Sessions Judge framed charges u/s 498A/302 IPC and charges, so framed, on being read over and explained to the accused person, he pleaded not guilty and claimed to be tried.
10. During trial, prosecution has examined as many as 13 (thirteen) witnesses including the informant, the M/O as well as the I/O of the case. The statement of the accused person u/s 313 CrPC was also recorded. The accused plea was of total denial. He, however, submits that right from the moment one, he tried to save the Crl. Appeal N o. 199 of 2014 4 life of his wife by summoning all the resources at his disposal. However, on being required, he declined to adduce any evidence in his defence.
11. On conclusion of the trail, the learned Addl. Sessions Judge, Jorhat on hearing the arguments, advanced by learned counsel for the parties, found the accused guilty of offence u/s 302 IPC, convicted him there-under and sentenced him to punishment as aforesaid while acquitting him of offence u/s 498A IPC. It is that judgment which has been assailed in the present appeal.
12. Mr. Thakur, learned counsel for the appellant arduously submits that the judgment under challenge cannot be sustained since it was not rendered in accordance with the prescription of law, nor, was it rendered on the basis of evidence available on record. In that connection, it has been stated that the case in hand is in essence founded on dying declarations which the deceased reportedly made to Smt. Lakhi Debnath (PW 1), who is mother of the deceased and Sri Sujit Baruah (PW 3), who is brother- in- law of the deceased.
13. However, both the dying declarations cannot be acted upon since the dying declarations are found to be riddled with infirmities of extremely serious nature. In support of such contention, it has been stated that there is indisputable evidence on record to show that the deceased sustained 90-95% burn injury in the incident in question meaning thereby that the deceased could not have been in a position to make any statement in the nature of dying declaration after sustaining burn injuries which affected 95% of her body surface.
14. It has also been stated that the dying declarations, which the deceased reportedly made before PW 1 and PW 3 cannot be acted upon since such dying declarations are found to be enormously doubtful. In that context, it has been stated that other persons who met the victim even before PW 1 and PW 3 meeting the victim on the night aforesaid clearly state that when they met the victim she was not in sense. Such evidence only shows that the evidence of PW 1 and PW 3 on the point of deceased making statements in the nature of dying declaration before them is wholly unreliable.
Crl. Appeal N o. 199 of 2014 5
15. Moreover, the evidence of PW 3 cannot be acted upon, since, though, in his evidence, he stated that he heard the victim stating that the accused set her on fire, yet, such vital information was not divulge to the police during the course of investigation. Equally importantly, the statement, which he rendered before the Magistrate during investigation, is also found to be drastically different from the evidence on such a point he rendered before the Court during trial.
16. That apart, PW 3 was declared hostile meaning thereby party who called him as witness refused to place any reliance on the evidence of PW 3 which he made before the Court during trial since prosecution alleged that PW 3 did not stick to what he had stated before the I/O during investigation of the case under consideration. This only shows that when the prosecution has found it difficult to place any reliance on the testimony of PW 3, his evidence cannot be acted upon for any purpose whatsoever---argues learned counsel for the appellant.
17. According to learned counsel for the appellant, there are some circumstances which devastatingly demonstrate that the accused was no way involved with the incident in question. In support of such contention, it has been stated that soon after the incident, a Doctor was called to the house of the accused person to treat the victim. However, when such a Doctor could not provide her any treatment, the victim was immediately taken to various hospitals at Jorhat, and ultimately, she was taken to Dibrugarh for better treatment and all these were basically done by the accused and his family members.
18. Such conduct on the part of the accused person only serves to show that the charge leveled against the accused person was without any substance. The fact that the accused too sustained injuries on his hands for which he was to be treated in hospital for a couple of days as well as the fact that all the family members of the accused person had done everything possible to save the life of the victim doubly fortify the innocence of the accused person.
19. It has also been contended that FIR was lodged after the death of the wife of the accused meaning thereby that when the informant, who is the brother of the deceased, lodged the FIR, he must be in know of the fact that his sister rendered Crl. Appeal N o. 199 of 2014 6 before his mother and brother-in-law, a statement in the nature of dying declaration. However, the FIR did not disclose about the deceased making a statement in the nature of dying declaration. Such omission in the FIR, once again, goes a long way to show that the accused person was innocent. On all those counts, learned counsel for the appellant submits this Court to acquit the accused person of offence u/s 302 IPC on setting the judgment under challenge.
20. On the other hand, controverting the arguments, advanced by the learned counsel for the appellant, Ms. S. Jahan, learned Addl. P.P. submits that the evidence of PW 1 regarding her daughter's making a statement in the nature of dying declaration before her cannot be discarded as prayed for by learned counsel for the appellant. In that connection, she submits that the evidence, rendered by PW 1 on the point of dying declaration finds full support from the statement which PW 1 rendered before the Magistrate during investigation.
21. More importantly, PW 3 who was declared hostile also states in his evidence that he too heard his sister-in-law, the victim, saying that the accused had set her on fire. It is a settled law that the evidence of a witness who is declared hostile cannot be discarded in toto. Rather the evidence of hostile witness which is found truthful can still be relied on in ascertaining the guilt or otherwise of a person who is made an accused in a criminal case. In that connection, she relies on the decision of the Apex Court in the case of Shyam al Ghosh Vs State of W est Bengal, in (2012) 7 SCC 646 . The relevant part of the judgment is reproduced below:-
45. The mere fact that these two witnesses had turned hostile would not affect the case of the prosecution adversely.
45.1 Firstly, it is for the reason that the facts that these witnesses were to prove already stand fully proved by other prosecution witnesses and those witnesses have not turned hostile, instead they have fully supported the case of the prosecution. As per the version of the prosecution, PW23 was witness to the recovery of the Maruti Van along with PW24, PW25 and PW26. All those witnesses have proved the said recovery in accordance with law. They have clearly stated that it was upon the statement of Manik Das that the vehicle had been recovered. Other witnesses have proved that the said vehicle was used for carrying the gunny bags containing the mutilated parts of the dead body of the deceased.
Crl. Appeal N o. 199 of 2014 7 45.2 Secondly, PW13 is a witness who was at the railway station rickshaw stand along with other two witnesses namely PW9 and PW11 who have fully proved the fact as eye-witnesses to the loading of the gunny bags into the Maruti van.
45.3 Thirdly, even the version given by PW13 and PW23 partially supports the case of the prosecution, though in bits and pieces. For example, PW23 has stated that the driver of the Maruti Van was Manik Das and also that he had taken out the vehicle from the parking lot at about 9.30 p.m. on the day of the incident and had brought it back after mid-night. He also stated that this car was being driven by Manik Das. Similarly, PW13 also admitted that other rickshaws were standing at the stand. This was the place where PW9 and PW11 had seen the loading of the gunny bags into the Maruti Van. In other words, even the statements of witnesses PW13 and PW23, who had turned hostile, have partially supported the case of the prosecution. It is a settled principle of law that statement of a hostile witness can also be relied upon by the Court to the extent it supports the case of the prosecution. Reference in this regard can be made to the case of Govindaraju @ Govinda v. State by Sriramapuram P.S. & Anr. [(2012) 4 SCC 722].
22. She further submits that there is evidence in the form of testimony of PW 4 to show that on arriving at the PO, PW 4 too found the deceased in burning condition but when PW 4 enquired the victim, the later requested PW 4 to give her some water meaning thereby that she was in full sense even long after the incident in question. Such revelations support the prosecution claim that when PW 1 and PW 3 met the victim she was in full sense and was capable of giving account of the incident in which she got burnt.
23. Referring to the medical jurisprudence, learned Addl. P.P., submits that in a case where a person sustains 90-95% burn injury , even in such cases, the victim can still retain her sense in full to narrate as to how such person sustained burn injuries. Being so, in view of the evidence on record, it cannot be said that dying declaration which the deceased reportedly made to PW 1 and PW 3 cannot be acted upon.
24. She further submits that only for reason that the accused too sustained burn injuries in his hands in the incident in question, it cannot be said that the accused got burnt when he tried to save the victim. Rather all the attending facts and circumstances strongly suggest that the victim got burnt in an incident which was Crl. Appeal N o. 199 of 2014 8 cleverly designed by the accused person. She, therefore, urges this Court to dismiss the present appeal on affirming the judgment under challenge.
25. Before we proceed further, we find it necessary to have a look at the evidence rendered by Doctor who conducted autopsy on the body of the deceased. He is Dr. Subhrajit Deka and was examined as PW 11. On going through the evidence of Doctor, we have found that the deceased sustained burn injuries affecting 90-95% of her body surface. Such evidence has not been questioned by the accused person. The Executive Magistrate, who conducted an inquest on the body of the deceased in that connection, too prepared a report (Ext. 5) and such inquest report too makes such a position very clear.
26. Situation being such, let us consider the testimonies of witnesses on which the prosecution has placed enormous reliance, they being PW 1, PW 3 and PW 4. We have already found that the learned Trial Court had properly reproduced the evidence of those witnesses in the judgment under challenge. For ready reference, the relevant parts of the testimonies of those witnesses are re-reproduced herein below.
"9. Smt. Lakhi Debnath (PW1), mother of the deceased, deposed that Monika Debnath gave birth to two daughters and after birth of her youngest daughter the accused started behaving cruelly towards the victim and he used to pick quarrel with her regularly. To her, on the night of occurrence mother of the accused came to her and asked to accompany her. When she asked where she was required to go then mother of the accused simply told that hou simply come and know what had happened.
As she arrived near the house of the accused Monika had been taken to Jorhat Civil Hospital and accordingly she also by another vehicle went to Jorhat Civil Hospital and found Monika there and at that time she was in a position to speak. On being asked Monika about the occurrence she replied to her that accused set her on fire. Thereafter, Monika was taken to Dibrugarh where she died on the same day.
She further stated that Monika told her during her life time that accused is "Bodmas" (meaning thereby not a good person). She also confirmed that she gave Exhibit. 1, statement before the learned Judcial Magistrate about the occurrence which she also proved by identifying her signature as Exbt. 1(1) and 1(2) thereon. She also stated that in her said statement she deposed that on one occasion the accused mixed poison in Crl. Appeal N o. 199 of 2014 9 meal to kill Monika and on another occasion again she was bout to be assaulted by the accused with broken bottle and also set her on fire.
10. PW3 Sri Sujit Bariah, testified that he knew both the deceased who was his sister-in-law and the accused Chandan Debanth. According to him, accused married Monika Debnath about ten years prior to her death and two daughters were born to them out of their wedlock and both of them initially led a happy conjugal life. To him prior to the occurrence he did not know about the relationship between the accused and the deceased. He stated that on 17th September a quarrel took place between the accused and the deceased but he did not witness the said quarrel. According to him, he visited Jorhat Civil Hospital to see Monika Debnath after she got burnt and he also met Monika Debnath in the Nursing Home as because she was taken to the Nursing Home from Jorhat Civil Hospital and Monika stated before him that accused had set her on fire. Later on, for better treatment Monika was taken to Assam Medical College & Hospital, Dibrugarh and she died at Assam Medical College & Hospital, Dibrugarh during morning hours. ...............
11. PW 4, Sri Sukanta Dey @ Tusu narrated during his evidence that he knew both the accused as well as the deceased who were his neighbours. He deposed that about one and half years ago at about 12.20 A.M. the occurrence took place and that he was sleeping at that time and hearing noses coming out from the house of the accused he immediately woke up and came out of his house by holding a dao and proceeded to the house of accused and on reaching there he found that front door of the house of the accused was locked. He and others broke open the gate and entered into the compound of the accused and saw the lights of the house were switched off. He flashed torchlight into the kitchen and saw Monika lying prostrate in the Kitchen with burn injuries and also noticed use of water in the floor of the kitchen. He also witnessed burns in both the hands of the accused outside the house where he was shouting and that Monika received burn injuries in the kitchen. Immediately, he took the motorcycle of the accused and called for a doctor and at that time Monika was in a position to speak. She asked for water. Her did not ask Monika as to how she received the burn injuries on her body. According to this witness at the house of accused, his parents, his elder brother and younger brother together with his uncle resided.
27. During cross-examination, he admitted to have stated before police that he witnessed both hands of accused being burnt and accused Chandan Debnath told him that he received burn injuries when he tried to save his wife. He came to know that accused had poured water in order to extinguish the fire. He further stated that accused, his father and his (accused) sister-in- law were also accompanying Monika when she was taken to Mariani Hospital and then to Jorhat Civil Hospital. He did not go to the hospital. He answered that he did not witness any quarrel between Monika and Chandan (accused). He also stated that Chandan had two daughters and that he witnessed parents of accused and other family members crying when he arrived at the Crl. Appeal N o. 199 of 2014 10 house of accused and all of them cried for help and requested to call for a doctor. He also discovered that at the time Chandan was not in a position to drive the motorcycle as because his two hands were severely burnt".
27. Other witnesses on whom the prosecutions has relied on who are PW 2, PW 5, PW 6, PW 7, PW 8 and PW 9. The testimonies of those witnesses are also reproduced by the Trial Court in the judgment under challenge. For ready reference the relevant part of the testimonies of those witnesses are also re-reproduced herein below:-
"8.
.............................................................................................................................. ............................. The prosecution has examined the elder brother of the victim Sri R aju Debnath w ho is the inform ant of the case as PW 2. In his deposition he stated that the victim's marriage took place with the accused about seven years prior to her death and out of their marital wedlock the victim gave birth to two daughters. He testified that Monika Debnath alleged before him that the accused used to beat her. But he and family members persuade the victim to stay with the accused in the interest of her marital life. To him, on 24.09.08, during morning hours, he came to know that Monika Debnath had been taken to hospital as she got burnt. Accordingly, he lodged an FIR (Exhibit-2) at Mariani Police Station which he proved by identifying his signature as Exhibit 2(1) thereon. To him, Exbt.2 was prepared by one Mukib Zamal as per his statement and he put his signature thereon. He also stated that after the occurrence Monika Debnath was first taken to Jorhat Civil Hospital and thereafter taken to Dibrugarh where she died. Admittedly he had no direct knowledge about the circumstances under which the victim got burnt and he also did not accompany the victim to Dibrugarh".
"12. PW -5 Sm t. K ajal R ani Das during her evidence deposed that she knew both accused as well as deceased who were her neighbours. According to her, the occurrence took place several years ago during night. To her the couple had two daughters also. She deposed that on the day of occurrence she heard "Bachao-Bachao" at night and immediately she came out of her house and proceeded to the house of Monika. She witnessed Monika lying on the floor and parents of accused standing nearby and that two daughters of Monika were sleeping at that time. She saw Monika lying in a pool of water. Afterwards she came to know that Monika set fire on herself. To her, she was all along present when Monika was taken to Jorhat Civil Hospital, thereafter to Mission Hospital that she heard that Monika was taken to Assam Medical College & Hospital, Dibrugarh for better treatment. To her, she witnessed cordial relationship between the couple and further that she came to know that Monika died on her way to Assam Medical College & Hospital, Dibrugarh.
Crl. Appeal N o. 199 of 2014 11
30. During cross-examination, she divulged that at the time of extinguishing the fire the accused received burn injuries on his both hands fact and chest and the accused was present all along when Monika was shifted to Railway Hospital, then to Jorhat Civil Hospital and thereafter to Mission Hospital, that the vehicle was boarded by the family members of the accused; that Monika was not in a position to speak that Monika was taken Hospital, as there was no doctor and bed in the Mission Hospital as well as Jorhat Civil Hospital. As per version of this witness the two daughters of Monika are at present living with the accused. She replied to defence also that Monika got burnt severely and was not in a position to speak.
13. PW 6, Sm t. K eya Debnath disclosed that the accused was her brother- in-law; that deceased Monika was the wife of accused and they resided together with the accused and deceased. According to her, the occurrence took place about two years ago on 1/1.30 A.M. at night hours and she was sleeping at that time. Someone knocked the doors of her room and accordingly she came out and witnessed the body of Monika in burnt condition; that there was pool of water on the floor and Monika was unconscious at that time. The accused Chandan Debnath was present in his house. To her all of them resided in separate rooms but they had a common kitchen and her husband was also present at that time. She along with other family members took Monika to Mission Hospital; there-from to Jorhat Civil Hospital and thereafter to Aastha Hospital, Dibrugarh and lastly to Assam Medical College & Hospital, Dibrugarh where Monika succumbed to her injuries. She deposed that she was present along with Monika till her death. To her, on the night of occurrence Monika took meal along with her and she does not know how Monika received burn injuries. When she asked the accused about the matter then he reported to her that Monika set herself on fire by pouring kerosene oil on her body. She noticed body of Monika got severely burnt. She also stated that when she came out of her room she saw her father-in-law, mother-in-law and two brothers-in-law near the body of Monika; that she did not questioned anything to the other family members of the house about the incident and further that all the family members present there stated before her that Monika set herself on fire.
32. During cross-examination, this witness divulged that she witnessed burn injuries on the hands of the accused and he received those burn injuries when he tried to extinguish the fire. To her, the accused poured water over the body of Monika to extinguish the fire; she replied that she did not witness any quarrel between the couple; that Monika was unconscious when she was taken to Mission Hospital, there-from to Jorhat Civil Hospital, then to Aastha Hospital, DIbrugarh and lastly to Assam Medical College & Hospital, Dibrugarh; that on the next day morning Monika succumbed to her burn injuries and further that she was not in a position to speak.
14. Witness Sri Lalit M ohan Debnath (PW 7), the father of the accused deposed that his son Chandan Debnath about 7/8 years ago married Monika Debnath (since deceased). The couple had two daughters out of their Crl. Appeal N o. 199 of 2014 12 wedlock. According to this witness on the day of occurrence he was present at his home. He has three sons out of whom two sons got married and all of them reside in the same house. To him the occurrence took place at about 1.30 A.M. At that time he head his son Chandan shouting that his wife Monika was engulfed by fire and he witnessed his son Chandan trying to extinguish the fire over the body of Monika by pouring water. During that time neighbouring people assembled at his house. Thereafter, Monika was at first taken to Mariani Railway Hospital, there-from to Jorhat Civil Hospital, then to Mission Hospital and ultimately she was taken to Aastha Hospital, Dibrugarh; that the doctors at Aastha Hospital, Dibrugarh referred Monika to Assam Medical College & Hospital, Dibrugarh where she succumbed to her burn injuries. To him, there was cordial relationship between the couple. He denied to have knowledge how Monika got burnt.
34. During cross-examination, he stated that both his sons including Chandan and Monika resided in the same house after their marriage and Monika never made any allegation to him that she was ill-treated by the accused. He also stated that the accused was all along present with Monika when she was taken to various hospitals for her treatment and Monika was not in a position to speak as she became senseless. He further stated that he saw Monika lying on the ground of their kitchen and also found the two hands of his son being severely burnt in that event. He disclosed that his son Chandan was treated by Doctor P.K. Choudhury, Railway Hospital; that after 5/6 days of taking medical treatment his son Chandan was arrested by police and further that Monika did not make any complain or allegation to her parents about any ill-treatment by his son Chandan Debnath.
15. PW 8 Sri Nantu Debnath disclosed that the accused is his nephew, be being the son of his elder brother. According to him on the date of occurrence which took place about two years back during night he was sleeping in his home and at that time hearing cries he came out of his room and proceeded towards the house of accused and there he saw accused Chandan Debnath trying to extinguish the fire over the body of Monika Debnath, his wife, by pouring water. At that time neighbouring people assembled and took Monika to Mariani Railway Hospital, there-from to Jorhat Civil Hospital, then to Mission Hospital and ultimately she was taken to Aastha Hospital, Dibrugarh, that the Doctors at Aastha Hospital, Dibrugarh referred Monika to Assam Medical College and Hospital, Dibrugarh where she succumbed to her burn injuries. He stated that there was cordial relationship between the couple and he has no knowledge under what circumstances fire caught hold of Monika. He also stated that he was present when Executive Magistrate held inquest over the body of Monika Debnath.
36. During cross examination, he replied that there was cordial relationship between the accused as well as deceased and the two daughters of the couple are residing with the accused. He also stated that when Monika was taken to various hospitals at that time she was senseless and was not in a position to speak Crl. Appeal N o. 199 of 2014 13
16. Sri Ujjal Ghosh(PW 9) during his evidence disclosed that he knew accused Chandan Debnath and on 24.09.2008 he was present when police came to the house of the accused and he gave his signature on the seizure list when was prepared by police; that police seized only empty kerosene gallon vide seizure list (Ext. 3) and further that he does not know how the incident occurred.
During cross examination, he stated that he does not know the contents of the seizure-list."
28. Before proceeding further, we need to remind ourselves as to the principles which governs a case based on dying declarations. In that context, one may look in to decision rendered by the Hon'ble Apex Court in the case of Paniben (Sm ti) Vs State of Gujarat reported in (1992) 2 SSC474 . The relevant part is reproduced below:-
"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 coroborated. 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. Mannu Raja v. State of M.P., [1976] 2 SCR 764.
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. State of M. P. v. Ram Sagar Yadav, AIR 1985 Sc 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 S.C. 1994.
Crl. Appeal N o. 199 of 2014 14
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. Rasheed Beg v. Sate of Madhya Pradesh, [1974] 4 S.C.C. 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 S.C. 1021)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. 1981 SCC (Crl.)531).
(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 and another v. State, AIR Sc912)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State U.P. v. Madan Mohan, AIr 1989 S.C. 1519) ".
29. A careful perusal of the evidence of PW 1, we find that the deceased reportedly told her that the accused set her on fire on the night in question. Her evidence finds support from the statement which she rendered before the Magistrate during investigation which was proved as Ext. 1. However, such evidence of PW 1, in our considered opinion, could not save the prosecution case from sinking since prosecution case is found suffering from several infirmities of extremely serious in nature.
30. In order to ascertain the veracity of the evidence of PW 1, we find it necessary to have a look at the evidence of PW 5, PW 6, PW 7 and PW 8. On a careful perusal of the evidence of these witnesses, it is found that they had met the deceased even before PW 1 and PW 3 met her. The testimonies of PW 5, PW 6, PW 7 and PW 8 reveal that when they met her soon after the incident, the victim was Crl. Appeal N o. 199 of 2014 15 not in a position to speak. More importantly, PW 6, PW 7 and PW 8 even went to the extent of saying that when they met the victim she was not in sense.
31. It may be noticed here that though in his evidence, PW 4 stated that when he met the deceased for the first time after the incident, she requested her to give her some water, yet, in his cross examination, he clarified that when he met her after the incident, the victim was not in a position to speak. Therefore, the evidence of PW 4 too shows that victim almost "slipped to swoon" soon after the incident in question and it only suggests very strongly that when PW 1 and PW 3 met her after the incident, the victim was not in her sense.
32. We have found that PW 6, PW 7 and PW 8 who claim that the victim lost her consciousness soon after the incident aforesaid are the relatives of the accused person but their evidence cannot be disbelieved only for their being relatives of the accused since their evidence that victim lost her consciousness soon after the incident aforesaid finds full support from the testimonies, rendered by PW 4 and PW 5 who are found to be independent and neutral witnesses.
33. Therefore, when the evidence of those witnesses are considered in juxtaposition with the evidence rendered by PW 1, it becomes more than apparent that the evidence of PW 1 on the point of deceased rendering a statement in the nature of dying declaration before her before the death of the victim cannot be accepted without a good deal of suspicion. The fact that the deceased sustained 90- 95% burn injuries and the fact she met her death within hours of her sustaining injuries make it abundantly clear that deceased lost her consciousness soon after the incident under scrutiny.
34. We have also found that the prosecution has placed huge reliance on the testimony of PW 3. However, we have found that his testimony cannot be relied on since he did not divulge to the I/O during investigation that he heard the deceased making a statement in the nature of dying declaration, since his statement before the Magistrate during investigation found to be drastically different from the evidence which he rendered before the Court during trail and since he was declared hostile by the prosecution.
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35. We have found that there is evidence on record to show that a Doctor was called to the house of the victim soon after the incident. There is also evidence on record to show that the victim was immediately taken to Railway Hospital wherefrom she was taken to Missions Hospital, Joraht. Since Mission Hospital could not render necessary treatment to the victim, the later was taken to Jorhat Civil Hospital. There is also evidence on record to show that Jorhat Civil Hopital could not provide her necessary treatment for which she was referred to Assam Medical College and Hospital, Dibrugarh.
36. The evidence on record further shows that the deceased was first admitted to Aastha Hospital, Dibrugarh. Since Aastha Hospital Dibrugarh too could not give her required treatment, she was then taken to Assam Medical College & Hospital. These revelations coupled with some other facts including the fact that the accused and his family did everything possible to save the life of the victim and the fact that the accused too sustained burn injuries in his hands in the incident in question again evince the innocence of the accused person.
37. We have also found that PW 1, mother of the accused and PW 3, brother-in- law of the deceased, met the deceased even before her taking to hospital at Dibrugarh. We have also found that the deceased reportedly told those 2 (two) persons that the accused had set her on fire. It is not in dispute that the FIR was lodged after the death of the deceased. But the FIR did not disclose that the deceased told PW 1 and PW 3 that her husband set her on fire.
38. Such omission in the FIR, in our firm opinion, only serves to show that the claim of PW 1 and PW 3 that before her death, the victim told them that the accused had set her on fire on the night aforementioned is without any element of truth. Such revelation further fortifies the innocence of the accused person.
39. In view of what we have discussed herein before and what have emerged there-from, we are of the opinion that the prosecution could not make out the charge u/s 302 IPC against the accused person beyond all reasonable doubt and as such, learned Trial Court was not right in convicting the accused person of offence u/s 302 IPC and sentencing him to punishment as aforesaid.
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40. Resultantly, the appeal is allowed on setting aside the judgment under challenge and the accused is acquitted of offence u/s 302 IPC.
41. The accused person is ordered to be released forthwith, if he is not required in connection with any other case.
42. Return the LCR forthwith.
JUDGE JUDGE
Rupam
Crl. Appeal N o. 199 of 2014