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2003 DIGILAW 102 (GAU)

Kaya Bhumiz v. State of Assam

2003-03-11

P.P.NAOLEKAR, RANJAN GOGOI

body2003
JUDGMENT R. Gogoi, J. 1. This appeal has been filed challenging a judgment and order of conviction dated 7.4.98 passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 40(T) of 1995. By the aforementioned judgment and order, the accused Appellant before us has been convicted under Section 302 IPC and sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to undergo further Rigorous Imprisonment for a period of two years. 2. The case of the prosecution, in brief, is that at about 11.30 A.M. on 23.10.94, P.W. 1, Sital Bhumiz, lodged a FIR in the Philobari Out Post stating that at about 9 P.M. of the previous day i.e. 22.10.94 his elder brother, the accused Appellant had assaulted his father causing grievous injuries to him, as a result of which, the injured succumbed to his injuries. On the basis of the aforesaid FIR, an entry in the General Diary of the police outpost was made and the FIR was forwarded to the Doom Dooma Police Station which was received at the Police Station at about 1 P.M. of the same day. On the basis of the aforesaid FIR, Doom Dooma P.S. Case No. 293 of 1994 was registered. According to the prosecution, after the FIR was received at the Philobari Out Post, the in-charge of the Out Post, who was later entrusted with the investigation of the case, went to the place of occurrence and on reaching the same, found the dead body of Budhu Bhumiz in the house of the first informant. An inquest was held on the dead body and the same was forwarded for post mortem. In course of investigation, the accused Appellant was arrested and the statement of a large number of persons were recorded. A sketch map of the place of occurrence was also prepared by the Investigating Officer. At the conclusion of the investigation, police submitted charge sheet against the accused Appellant. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of the learned Sessions Judge, Tinsukia where a charge under Section 302 IPC was framed against the accused Appellant. At the conclusion of the investigation, police submitted charge sheet against the accused Appellant. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of the learned Sessions Judge, Tinsukia where a charge under Section 302 IPC was framed against the accused Appellant. As the accused Appellant claimed to be tried, as many as six witnesses were examined by the prosecution in course of the trial, at the conclusion of which, the learned Sessions Judge, Tinsukia convicted and sentenced the accused as aforesaid, giving rise to the present appeal. 3. We have heard Ms. S. Senapati, learned Amicus Curiae appointed by this Court and Mr. Z. Kamar, learned Public Prosecutor, Assam. 4. A scrutiny of the evidence, tendered by the witnesses examined by the prosecution in the course of the trial of the case against the accused Appellant, would go to show that there was no eye witness to the occurrence. P.W. 1 Sital Bhumiz and P.W. 4 Rakhal Karmakar have been examined by the prosecution in order to prove an alleged dying declaration made by the deceased. The evidence of said two witnesses along with the evidence tendered by the Doctor who had conducted the post mortem, therefore, constitute the core of the evidence adduced by the prosecution to bring home the charge against the accused Appellant. 5. P.W. 1, Sital Bhumiz, is the brother of the accused Appellant and a son of the deceased. According to this witness in the night of 22.10.94 i.e. the date of occurrence, he had gone to the house of his brother-in-law one Babu Lal to attend a shradh ceremony. P.W. 1 has deposed that on being informed about the incident, he returned at about 2 A.M. in the night and proceeded to the house of Gaonbura to whose house the deceased had fled after the incident. According to this witness, he was informed by his father that the accused Appellant had poured Kerosene oil on his body and had set him on fire. This witness has further deposed that when he had met his father first, he was alive and that he was told by his father that the accused Appellant had set him ablaze. This witness has further deposed that he could see burn injuries on the body of his father. P.W. 2 Dr. This witness has further deposed that when he had met his father first, he was alive and that he was told by his father that the accused Appellant had set him ablaze. This witness has further deposed that he could see burn injuries on the body of his father. P.W. 2 Dr. Homeswar Sarma who performed the post mortem on the body of the deceased has proved the post mortem report which has been exhibited as Exhibit-1 in the case. According to this witness, the following injuries were found on the body of the deceased at the time of post mortem: External Appearance: The deceased was of dark complexion, named, swollen legs, missing of scalp hairs. Bloodless tissues on dissection. Injuries: Burn injuries of 2nd and 3rd degree of left side of the head, face, neck, left side of the back, left upper limb, lower abdomen in front and upper thigh, right forearm and hand, front of neck and 1st degree burn of right leg with missing of epidermis. Other burnt areas are partly healed and covered with medicine. Approximately 45% body surface burnt which was of dermo epidermal severity. Other organs of the body showed earlier decomposition. Death, in my opinion, was due to shock resulting from ante mortem burn associated with anemia. Time since death was 24/48 hours approximately. P.W. 3 is another neighbour who has deposed that on being informed by one Ashok Bhumiz, about the occurrence he came to the house of the deceased and found the deceased dead with burn injuries on his body. According to this witness, the accused Appellant was kept tied in the Courtyard by the people gathered. This witness had come to the place of occurrence at about 7/7.30 A.M. in the morning of the next day and therefore, his evidence would not be very material. P.W. 4 Rakhal Karmakar is the President of the VDP of the village. According to this witness, on coming to know of the occurrence, he came to the house of the deceased and the deceased told him that his son has set him on fire. P.W. 4 has further deposed that the deceased had told him that about 15 days prior to the occurrence, the deceased had rebuked the accused Appellant for drinking and that the act committed by the accused Appellant was on that count. P.W. 4 has further deposed that the deceased had told him that about 15 days prior to the occurrence, the deceased had rebuked the accused Appellant for drinking and that the act committed by the accused Appellant was on that count. P.W. 5 is the scribe who wrote the FIR, (Exhibit-6) and P.W. 6 is the Investigating 6. The evidence of prosecution witnesses, the core of which has been set out in the preceding paragraph would go to show that the only evidence against the accused Appellant is the alleged dying declaration made by the deceased, which the prosecution has sought to prove by examining P.Ws. 1 and 4. There is no doubt that a dying declaration can be oral and if there is unimpeachable evidence in proof of the dying declaration, the Court will not hesitate to accept the same. Further, it is not a rule of law that the dying declaration must invariably be corroborated by other evidence. The rule of corroboration, as in all cases, is a rule of prudence. 7. In the instant case, as pointed out by the learned Amicus Curiae, there are few unexplained features of the prosecution case. The incident is reported to have occurred at 9 P.M. on 22.10.94, yet P.W. 1 who was in shradh ceremony in his brother-in-law's house which was about 1/2 K.M. away from the place of occurrence, was informed about the occurrence much later and he came back to the place of occurrence only at about 2 A.M. The prosecution has also not examined the gaonbura to whose house the deceased is reported to have fled after the occurrence; nor has the prosecution explained when the deceased came back to his own house and the circumstances in which the deceased returned from the Gaonbura's house. The evidence of P.W. 4 that though he could see burn injuries on the body of the deceased, the bed of the deceased was not burnt is another loophole in the prosecution case as pointed out by the learned Amicus Curiae. The evidence of Doctor that he did not record in the post mortem report as to whether there was smell of kerosene on the body and the failure of investigating agency to make any seizure of kerosene are other lacunae in the prosecution case, as pointed out by the learned amicus curiae. 8. The evidence of Doctor that he did not record in the post mortem report as to whether there was smell of kerosene on the body and the failure of investigating agency to make any seizure of kerosene are other lacunae in the prosecution case, as pointed out by the learned amicus curiae. 8. We have considered the aforesaid aspects of the prosecution case and it is our considered view that though there are certain infirmities in the case of the prosecution as unfolded by the witnesses examined, the substratum of the prosecution version stands unaffected. The evidence of P.W. 1, the brother of the accused Appellant as well as the evidence of P.W. 4, a neighbour stands unimpeached in cross examination and there are no unnatural features in the testimony of the said witnesses which would justify any doubt on our part with regard to the said testimony. The aforesaid two witnesses have deposed in clear and unambiguous terms that the deceased prior to his death has clearly mentioned the name of the accused Appellant as responsible for his death. P.W. 4 has gone a step further and has deposed that the deceased had reported to him the reasons which had impelled the accused Appellant to indulge in the illegal acts. Having regard to the testimony of the above two witnesses, we are inclined to hold that the dying declaration made by the deceased stands fully proved and the said dying declaration also stands corroborated by the medical evidence on record. We therefore, have no doubt, whatsoever, with regard to the culpability of the accused Appellant. 9. For the aforesaid reasons, this appeal has to fail. It is accordingly dismissed. The judgment and order dated 7.4.98 passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 40(T) of 1995 and the conviction and sentence recorded by him stands affirmed. Appeal dismissed