Bharat Das v. State of Assam and Ors. — 1994 DIGILAW 207 (GAU)

N. G. Das, J.— This appeal is directed against the judgment dated 26.3.1990 passed by the learned Sessions Judge, Jorhat in Case No.98 (J-J)/89 convicting the appellant under section 302 of IPC and sentencing him thereunder to undergo imprisonment for life and to pay a fine of Rs.2,000/-, in default to undergo RI for a further period of one year. 2. We have heard Mr. TJ Mahanta, the learned counsel appearing on behalf of the appellant and Mr. A. Ahmed, the learned Public. Prosecutor on behalf of the State of Assam. 3. To appreciate the contentions canvassed at the Bar by learned counsel for the parties, the facts relevant for the purpose may succinctly be summarised as follows : Deceased Smti Balu Das who was married to the appellant was living with her husband in the house of her husband and out of the wed-lock two children were also born. But on 14.2.1989 at about 8 PM some neighbours rushed to the house of the appellant on hearing the cries raised by his wife, namely, the deceased and as they went to that house they found the appellant seated in his room while his wife was being burnt. The neighbours who rushed to the scene of occurrence at once tried to extinguish the fire from the body of the victim and she was removed to the Jorhat Civil Hospital where she succumbed to the injuries. On receipt of the information that their daughter, the deceased was suffering from burn injuries her parents, namely, Baparam Das and Smti Guno Das rushed to the Jorhat Civil Hospital and on seeing the bum injuries on-the person of their daughter in the hospital they asked how it happened. In reply Smti Balu Das, the victim, told it was the accused-appellant who after tying up her hands by rope poured kerosine oil and then set fire. In the meantime the Medical Officer who attended the patient sent report to the OC, Jorhat Police Station who on receipt of the information from the Medical Officer registered an unnatural death case being UD Case No. 15/1989'dated 15.2.89 and started investigation. 4. In course of investigation an inquest report was prepared in the Jorhat Civil Hospital and thereafter the Investigating Officer got the dead body examined by the doctor. It was stated in the inquest report that the death appeared to be suspicious. 4. In course of investigation an inquest report was prepared in the Jorhat Civil Hospital and thereafter the Investigating Officer got the dead body examined by the doctor. It was stated in the inquest report that the death appeared to be suspicious. The Medical Officer who conducted the autopsy on the dead body of the deceased found a number of bum-injuries and opined that the deceased b died on account of shock with dehydration as a result of the extensive burn injuries-sustained by her. 5. ASI who was making the investigation also recorded the statement of the father of the decreased who in his statement made an allegation that it was the accused-appellant who caused the death of his daughter by setting fire on her after pouring kerosine on the body. After a few days the father of the victim Baparam Das lodged an ejahar marked as Ext 2 alleging that he came to know from his daughter that it was the accused-appellant who set fire on her body after pouring kerosine on her body. On the basis of this written complaint OC, Jorhat PS registered a regular case against the accused-appellant under section 302 of IPC being Jorhat PS Case No. 121/89 and endorsed the case to the Sub-Inspector Shri A. Latif for investigation of the case. After completion of the investigation the OC submitted the charge-sheet for prosecution of the accused appellant under section 302 of IPC. 6. Learned Sessions Judge, Jorhat to whom the case was committed, framed a charge under section 302 of IPC against the accused-appellant for killing his wife by setting fire on her body. The charge was read over and explained to the accused-appellant who pleaded not guilty and claimed to be tried. 7. In order to bring home the charge, the prosecution examined 8 witnesses in all and also took the aid of documentary evidence, namely, FIR, Inquest Report seizure list, post mortem examination report etc. The accused led no evidence in support of his defence. However, his defence as would appear from the trend of cross-examination as well as the statement he gave at the time of examination under section 313 of CrPC is that he was innocent. The accused led no evidence in support of his defence. However, his defence as would appear from the trend of cross-examination as well as the statement he gave at the time of examination under section 313 of CrPC is that he was innocent. However, learned Sessions Judge after appreciation of the evidence on record placed reliance on the oral dying declaration that was made by the victim and arrived at the conclusion that it was the accused appellant who committed the murder of his wife by setting fire on her body after pouring kerosine on her body. Hence, this appeal. 8. Mr. TJ Mahanta, the learned counsel appearing on behalf of the appellant did not raise any sort of controversy as to the factum of the death of the victim who died on account of the burn injuries she sustained on her person. In view of the evidence on record, we too, feel that he has rightly conceded. Dr. Ranjit Kumar Baruah who conducted the autopsy on the body of the .deceased on 15.2.1989 deposed that after external examination of the dead body of the deceased Balu Das, he found that the whole body of the deceased except the right side of the face and part anterior aspect of both thighs were burnt. Hairs on the scalp were also burnt at places and there was superficial deep burnt on the body with several blisters. Back was totally burnt. In view of the injuries found on the person of the deceased the Doctor opined that all the injuries were ante-mortem in nature and that the case of the death was due to shock with dehydration as a result of the extensive burnt sustained by the deceased. 9. But what Mr. Mahanta has quite emphatically argued before us is that the oral dying declaration on the basis of which learned Sessions Judge1 arrived at the conclusion that it was the accused appellant who committed the crime cannot be considered sufficient in view of the inherent infirmities in the oral dying declaration. It is submitted by Mr. Mahanta that although the oral dying declaration was made on the very date of the occurrence in the Jorhat Civil Hospital in presence of a number of witnesses, namely, nurses and others, those nurses and other witnesses were not examined by the prosecution for corroboration of the statement of PW 1. Mr. It is submitted by Mr. Mahanta that although the oral dying declaration was made on the very date of the occurrence in the Jorhat Civil Hospital in presence of a number of witnesses, namely, nurses and others, those nurses and other witnesses were not examined by the prosecution for corroboration of the statement of PW 1. Mr. Mahanta has quite strenuously argued that there was no reason why the Investigating Officer did not think it worth his while to record the statement of the nurses as it would be quite apparent from the evidence on record that some nurse was very much present beside the patient. But on careful scrutiny of the evidence on record we do not find that there is any evidence or even a casual suggestion to that effect that any nurse of the hospital was present at the time when the deceased made the oral dying declaration to her parents and others. So, the contention of Mr. Mahanta that there is a serious infirmity for non-examination of the nurse is not acceptable. 10. In this context the next contention urged by Mr. Mahanta is that a careful perusal of the evidence of PW 1 namely, the father of the deceased and that of the evidence of the mother of the deceased, namely PW 2 will show that what PW 1 stated was not perfectly corroborated by PW 2. We have, therefore, given our careful attention to the depositions of PW 1 and 2. But on perusal of the statements it is found that what PW 1 stated was substantially corroborated by PW 2. The relevant portion of the oral dying declaration that was made by the deceased to her father can be extracted as follows : "Father, what is there to see, your son-in-law poured kerosine on me and set fire." PW 2 who is the mother of the deceased deposed to the same effect, the verbatim of which are : "What is there- to see, son-in-law tied my hands and feet and set fire to." 11. So, if a careful comparison between the two statements made by these two Witnesses are made then it would be quite apparent that what PW 1 stated was substantially supported by PW 2. We are, therefore, unable to pursuade ourselves to agree with the submission of Mr. So, if a careful comparison between the two statements made by these two Witnesses are made then it would be quite apparent that what PW 1 stated was substantially supported by PW 2. We are, therefore, unable to pursuade ourselves to agree with the submission of Mr. Mahanta that the oral dying declaration was not corroborated by any other witnesses., 12. Mr.Ahmed, the learned Public Prosecutor has also submitted that other witnesses also supported this oral dying declaration. Those are PW 4, Smti Arona Bora and PW 5 Shri Bogai Bora. Examined as PW 4, Smti Arona Bora deposed in her deposition that on that fateful night at about 8 PM she was in her house and at that time she suddenly heard the cries. According to her she rushed to the house of accused-appellant with a lamp in her hand and as soon as she entered the house of the accused-appellant she found the latter seated in the room while his wife was standing against the wall. This witness was however declared hostile and with the permission of the Court the prosecution examined the witness in the nature of cross-examination. During examination in the nature of cross-examination it was put to the witness that she stated to the Investigating Officer that deceased told her that it was her husband who had poured oil on her and burnt her. The Investigating Officer, PW 7 in his deposition- also affirmed that witness Smti Arona Bora made a statement to him while he was recording her statement under section 161 of CrPC. The Investigating Officer was not cross-examined by the defence on this point. The defence did not even give a casual suggestion denying this fact. We therefore, see no reason why the evidence of this hostile witness should not be considered. 13. Similarly, PW 5 who turned hostile was also examined in the nature of cross examination by the prosecution with permission of the Court and during examination in the nature of cross examination, it was put to him that he stated to Investigating Officer that when he rushed to the house of the deceased the latter told him that it was her husband who had poured oil on her body and thereafter set fire. The witness-however denied to have made this statement to Investigating Officer. The witness-however denied to have made this statement to Investigating Officer. But the IO, PW 7 affirmed the said statement in his deposition and he was not at all cross examined on this point by the defence. We, therefore, see no reason why the evidence of this hostile witness should not also be taken into consideration. 14. The position of law is that the testimony of the hostile witness if not shaken on material point in cross-examination cannot be brushed aside ( AIR 1979 SC 1433 , (1982) Crl LJ 173). In AIR 1976 SC 294 it has been observed that, if the Judge finds that in the process, the credit of the witness has not been completely shaken he may, after reading and considering the evidence of the witness, as a whole, with due caution and care accept, in the light of the other evidence on record, that part of his testimony which he finds to be creditworthy and act upon it. 15. So, what we would like to emphasize is that if the evidence of the hostile witness is not shaken then that evidence can also be taken in view for consideration. 16. The next contention urged by Mr. Mahanta is that the FIR was lodged after about 6/7 days and as such no reliance can be placed on this FIR. Mr. Ahmed, the learned Public Prosecutor in his reply has however contended that although the FIR has been lodged after 6 days the very FIR will show the reasons for delay. The FIR which was lodged by PW 1 shows that he was grief striken and that is why he could not lodge the FIR earlier. Apart from this, during our scrutiny of the entire case diary we find that when the UD Case was being investigated the statement of this PW 1 was also recorded. A translated copy of that statement has been placed before us by Mr. Mahanta and on perusal of that statement we find that on 15.2.89 this PW 1 unfolded the story of oral dying declaration. It was very clearly and unequivocally stated by him that when he asked his daughter how she caught fire, his daughter told him that it was his son-in-law Bharat Das who poured kerosine oil on her body and set fire on her. It was very clearly and unequivocally stated by him that when he asked his daughter how she caught fire, his daughter told him that it was his son-in-law Bharat Das who poured kerosine oil on her body and set fire on her. So, even though there was a delay in lodging the FIR we are unable to find any sort of infirmity. It was the bounden duty of the Investigating Officer to treat that a very statement which was virtually made to the Investigating Officer without any practicable loss of time as the FIR. We therefore, unable to agree with the submission of Mr. Mahanta that this infirmity shattered the very foundation of the prosecution case. 17. In course of his arguments Mr. Mahanta has quite strenuously argued that no finding of conviction under section 302 DPC can be based simply on an oral dying declaration. We are however, unable to agree with the submission of Mr. Mahanta as there are a catena of decisions of the Apex Court that if the oral dying declaration appears to be acceptable then there can be no reason for rejection of that oral dying declaration. If any authority is required on this point it may be found in the judgment rendered in the case of Vishram & others vs. State of Madhya Pradesh, reported in AIR 1993 SC 250 , where the contention of learned counsel for the appellant that PWs 1 to 5 are interested witnesses and on the basis of the oral dying declaration said to have been made to them by Kamal Kishore the deceased, the appellant cannot be convicted and that any rate it is highly unsafe to convict them without strong corroboration which is not there, was not accepted and the conviction was maintained. 18. Similarly, the Apex Court in the case of Munna Raja & another vs. State of Madhya Pradesh, reported in AIR 1976 SC 2199 held : "It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. Thus Court must not look out for corroboration unless it comes to the conclusion that the dying declaration suffered from any infirmity by reason of which it was necessary to look out for corroboration." 19. In the instant case as we have already stated above that this oral dying declaration was not only corroborated by PW 2 mother of the deceased but this oral dying declaration also finds support from the hostile witnesses, namely, PW 4 and 5. We have assigned our reasons why the evidence of these two witnesses is also acceptable. 20. Apart from this, it will also appear from the evidence of the PWs 4 and 5 that when they rushed to the scene of occurrence on hearing the cries they found the accused-appellant seated in the room and there was no endeavour on his part to extinguish the fire from the body of his wife. It cannot therefore be said that there was no circumstantial evidence going against the accused. These witnesses quite categorically stated that they found the accused appellant seated in the room and his wife was standing naked with burn injuries. This version of the witnesses was not challenged by the defence in any manner. Mr. Mahanta has however argued that accused-appellant also sustained some burn injuries on his hand and he was also hospitalised But to what extent he sustained injuries is not at all clear to us. There is no legal evidence in support of his contention that the accused appellant also sustained burn injuries in course of the occurrence. 21. Learned counsel for the appellant did not urge any other point before us. 22. So, in view of our findings made above we see no merit in this appeal which is accordingly dismissed. The accused appellant is on bail. So, he must surrender to serve out the period of the sentence. The period of detention already undergone during investigation, enquiry or trial shall however be set off. Send down the records.