Gauhati High Court
Naresh Das vs The State Of Assam on 1 November, 2016
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM)
Criminal Appeal No. 185 of 2013
Appellant/Accused .... Naresh Das
Respondent .... The State of Assam
BEFORE HON'BLE THE CHIEF JUSTICE MR. AJIT SINGH HON'BLE MR. JUSTICE N CHAUDHRUY For the Appellant/Accused ... Mr.K Das, Learned counsel, For the Respondents ... Mr. M Phukan, Learned Additional Public Prosecutor, Assam Date of hearing &judgment... 1.11.2016 JUDGMENT AND ORDER (Ajit Singh, C.J.) The sole appellant Naresh Das has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation.
2. The victim of incident was Sima Das, aged 40 years. She was also wife of the appellant.
3. According to the prosecution case, Sima was married to appellant 20 years prior to the date of incident. Navadeep Das, aged 20 years (DW-1) and Bulti Das, aged 18 years (DW-2) are their son and daughter. And all of them lived together in one-room house of the appellant. The house was situated at Borhat Habi Gaon, District Sivsagar. The appellant, however, developed love relations with another girl. And to get rid of Sima, on 3.7.2007, at about 3.30 a.m., he set her ablaze after pouring kerosene. This he did in his house. Sima sustained almost hundred percent burn injuries. An effort was however made by Navadeep Das and Bulti Das to save Sima by taking her to a nearby pond. Later, Navadeep Das along with some local Page 1 of 6 residents first took her to Borhat Primary Health Centre for treatment. From there, she was taken to St. Luke's Hospital, Tinsukia for better treatment. At that point of time, Dr. Lalit Man Roy (PW-4) was posted as Medical Specialist in the Hospital. He, on examining the critical condition of Sima, honestly advised the persons, who brought her, that Hospital will not be able to treat her. But, on their request, she was admitted and provided treatment. Dr. Lalit Man Roy then also recorded her dying declaration exhibit-3. Sima in her dying declaration categorically named the appellant as a person, who had set fire on her after pouring kerosene. She also gave the reason why appellant had set fire on her. As expected, Sima died in the St. Luke's Hospital, Tinsukia on the same day at 3 p.m.
4. Since Sima died in the Hospital at Tinsukia, Navadeep made the ejahar around 4 p.m. at Tinsukia Police Station. In the ejahar, he stated that she had accidentally caught fire while preparing tea at home. He also mentioned that the doctor after administering first aid to Sima had referred her to Assam Medical College and Hospital, Dibrugarh whereupon she was rushed to Tinsukia Civil Hospital, but there the doctor declared her dead. The ejahar was registered as GDE No.125 dated 3.7.2007. Thereafter, Executive Magistrate Naban Al Azhar Ali (PW-10) made the inquest report exhibit 6 of the dead body. He prepared the inquest report on the basis of information given by Navadeep Das. At that time, the body was also kept in the Police vehicle.
5. On 4.7.2007, Dr. Sanat Kumar Dutta (PW-7) conducted the post mortem examination on the dead body. He in his post mortem examination report exhibit 5 has confirmed that Sima died due to hundred percent burn injuries.
6. Anup Bhowmik (PW-1) is co-villager of the appellant. He made the ejahar on 4.7.2007 at Police Station Borhat against the appellant. In the ejahar he alleged that Sima was burned to death by the Page 2 of 6 appellant after pouring kerosene and that she died on 3.7.2007 around 3 p.m. while undergoing treatment. Station Officer of Police Station, Suraj Kumar Hazarika (PW-11), acting upon the ejahar, initiated the investigation. He also called for the entire record regarding the death of Sima from the Tinsukia Police Station. He even seized the jerrycan with kerosene from the house of appellant exhibit 2 and arrested him under Section 302 of the Indian Penal Code.
7. During trial, the appellant abjured his guilt and pleaded false implication. In defence, he took the plea that Sima accidentally caught fire, while preparing tea in the morning and died due to burn injuries. In support, he examined Navadeep Das and Bulti Das as defence witnesses.
8. The trial court did not accept the defence of appellant and believing the prosecution case, particularly the dying declaration of Sima, convicted and sentenced him, as aforesaid.
9. It has been argued on behalf of the appellant that the trial court committed an illegality in relying upon the dying declaration of Sima as it was a concocted statement. Learned counsel has also argued that the trial court ought to have believed the defence of appellant that Sima had accidentally caught fire while preparing tea in the morning. The learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of the appellant.
10. It is well settled that the dying declaration if found trustworthy by the court is sufficient to convict the accused. In the case at hand, since Sima had sustained extensive hundred percent burn injuries, the anxiety of the people attending her was somehow to save her life by ensuring immediate medical treatment. They including Navadeep Das, therefore, first took her to Borhat Primary Health Centre. But, sadly, medical facilities are inadequate in such Health Centre. She was, thus, rushed to St. Luke's Hospital, Tinsukia. As mentioned above, Dr. Lalit Page 3 of 6 Man Ray was Medical Specialist in the Hospital. He first advised the persons, who brought Sima that treatment of such critical patient will be futile. He, however, on their requests, admitted and provided treatment in the Hospital. Dr. Lalit Man Ray has testified that having regard to the least chances of survival of Sima, he recorded her dying declaration exhibit 3 in the format of question and answer and at that point of time, she was in a state to speak. In his cross examination, the doctor has also clarified that whenever such patient comes to the Hospital, dying declaration is recorded. Sima in her dying declaration categorically named appellant as a person, who had set fire on her, after pouring kerosene at 4 O'clock in the morning. She also admitted the presence of her children. She even gave the reason that appellant was having love affair with another girl and therefore he burned her. She also denied the suggestion of having made an attempt to commit suicide. The dying declaration exhibit 3 also bears the thumb impression of Sima. Dr. Lalit Man Ray is an independent witness. He had nothing against the appellant nor had any relation with Sima. He has categorically denied that dying declaration was subsequently prepared. Nothing has been brought out in his cross examination to show as to why he would concoct a dying declaration or would falsely implicate the appellant. We are, therefore, of the considered view that dying declaration is truthful and has rightly been relied upon by the trial court in convicting the appellant.
11. There is yet another reason to believe the dying declaration. The defence of appellant is that around 4 O'clock in the morning, Sima had accidentally caught fire, while preparing tea. It is to be noted that Sima was not a newly married woman at the time of incident. She was aged about 40 years and had married roughly more than 20 years prior to the date of incident. Her elder son Navadeep Das was aged 20 years and Bulti Das aged 18 years. She, therefore, had long experience of preparing tea for the family. In the fact situation of the case, it is difficult to believe that she would accidentally caught fire while preparing tea. Also neither the appellant nor Navadeep Das and Bulti Page 4 of 6 Das say for whom she was preparing tea and that too around 4 O'clock in the morning.
12. The defence of the appellant is also falsified from the fact that Sima had sustained almost hundred percent burn injuries and this could be possible only after kerosene was poured on her. In accidental burn injuries, while preparing tea, chances of getting hundred percent burned are virtually nil.
13. The dying declaration of Sima made against the appellant stands further corroborated by the evidence of witness Sahida Begum (PW-6). She is neighbour of the appellant. According to her evidence, on the date of incident, early in the morning, she heard Navadeep Das shouting "Joligol, Joligol!", "Marile, Marile!" (she has been set ablaze, She is being killed). She then saw Sima completely naked, going slowly from the pond towards her house and Navadeep Das and Bulti Das were near her.
14. There is yet another evidence in the form of oral dying declaration against the appellant. Deepa Sonar (PW-2) is Secretary of Borhat Surabhi Self-help Women's Group. Seema was also a member of the Group. Deepa Sonar has testified that on hearing about the incident, she went to the house of appellant where she saw Sima laid covered with a cloth. She also saw burn injuries particularly in the abdomen of Sima. This witness has further testified that when she went near Sima, the latter addressing to her, said "Deepa, see what has happened to me. My husband caused this to me." Deepa Sonar is an independent witness. Prior to the date of incident, she had not even met the appellant. She went to the appellant's house as a good will gesture on receiving information that Sima had caught fire. She has also stood firm in her cross examination. We find her evidence regarding oral dying declaration of Sima as fully reliable and truthful.
Page 5 of 615. Navadeep Das and Bulti Das have rightly been disbelieved by the trial court. The appellant being their father, they perhaps after losing their mother Sima thought not to lose him also and therefore, they developed an afterthought defence that she had accidentally caught fire while preparing tea. It is also to be noted that had Sima actually caught fire accidentally while preparing tea, she had no reason to allege against the appellant after living with him for more than 20 years.
16. For these reasons, we find no merit in the appeal. It is accordingly dismissed.
JUDGE CHIEF JUSTICE
skd
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