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2013 DIGILAW 381 (GAU)

Thaneswar Kalita v. State of Assam

2013-06-07

B.D.AGARWAL, INDIRA SHAH

body2013
JUDGMENT Indira Shah, J. 1. The judgment and order dated 9.6.2008, passed by the learned Session Judge, Dhemaji, in Sessions case No. 17(DH)2007 convicting the appellant under Section 302 of the Indian Penal Code and sentencing him thereby to undergo imprisonment for life with a fine of Rs. 1,000/- in default, further rigorous imprisonment of 3 (three) months has been challenged in this appeal. Herein, prosecution case, in brief, is that the deceased Ranjula Dutta was wife of the accused/appellant. The marriage between accused and the deceased was solemnized in the year 2005. 2. On 06.06.2006, at about 3.00 am while the deceased Ranjula Dutta was lying asleep on her bed, the accused/appellant dragged her from the bed poured kerosene oil and set her on fire. Hearing the hue and cry, the neighboured came to the house of the accused and the victim was shifted to Civil Hospital at Dhemaji. 3. Dimbeswar Dutta (PW 1) brother of the deceased lodged the FIR on the very date of occurrence i.e. on 06.06.2006. On the basis of the FIR, Dhemaji PS Case No. 142/2006 under Section 307 /326 IPC was registered. 4. Dr. Jamadogni Upadhaya (PW 7) recorded the dying declaration of the victim at 10.00 am on 06.06.2006. On the same day, the dying declaration of the deceased was also recorded by the Executive Magistrate (PW 12). In the dying declaration the victim alleged that the accused poured kerosene oil and ignited the fire. The victim succumbed to her injuries and on her death, post mortem examination, on her dead body, was performed by Dr. Khagen Doley (PW 11). On completion of the investigation police submitted the charge sheet under Section 302 IPC against the accused/appellant The accused pleaded not guilty to the charge framed against him under Section 302 IPC and claimed to be tried. 5. During the course of trial, 14 witnesses were examined by the prosecution. The accused in his statement recorded under Section 313 CrPC, denied the allegations leveled against him and pleaded that his is innocent According to him, the victim gave dying declaration on being tutored by her brother. He adduced evidence of 1 witness in his defence. 6. We have heard Mr. N.C. Das, learned Senior Advocate appearing on behalf of the. appellant as well as Ms. B. Bhuyan, learned Addl. PP, appearing for and on behalf of the State of Assam. 7. Mr. He adduced evidence of 1 witness in his defence. 6. We have heard Mr. N.C. Das, learned Senior Advocate appearing on behalf of the. appellant as well as Ms. B. Bhuyan, learned Addl. PP, appearing for and on behalf of the State of Assam. 7. Mr. Das, learned counsel for the appellant contended that instant case is that there are two written dying declarations as well as oral dying declarations by the victim before some of the prosecution witnesses. The victim immediately after the incident, on quarry by (PW 3), Sri Gopal Phukan, (PW 4), Photik Kalita, (PW 5), Nandeswar Konch and (PW 6), Lekhan Kalita stated that she attempted to commit suicide by setting herself on fire, whereas in presence of PW 7 (Dr. Upadhaya) and PW 12 (Sri Bipul Das) i.e. the Executive Magistrate, she alleged that it was accused-husband who set her on fire. The dying declaration before the Executive Magistrate was recorded in presence of family members of the victim. Therefore, the learned Trial Court wrongly accepted the dying declaration of the victim recorded by the doctor and the Executive Magistrate. 8. Per contra, learned Addl. PP has argued that even if dying declaration recorded by Executive Magistrate is not relied on, there is no reason to discard the dying declaration recorded by the doctor. 9. PW 1, Sri Dimbeswar Dutta, is the brother of the deceased. In his evidence, he stated that after the marriage; the victim was subjected to torture by the accused husband. The victim complained that she was beaten by the accused. He further, alleged that the accused sent her to her matrimonial home to bring money and her family members gave an amount of Rs. 3000/- to the accused, yet the accused harassed and tutored the victim. On 05.06.2006, she was set on fire by the accused. PW 1 came to know about the incident in the morning and went to the house of father of the accused. On the way, he saw the victim was carried on a pull cart towards hospital. Thereafter, PW 1 shifted the victim to Civil Hospital in a Maruti van. He brought the victim to the Police Station and therefrom, she was sent to Civil Hospital. According to him, the victim was able to speak at the relevant time. On the way, he saw the victim was carried on a pull cart towards hospital. Thereafter, PW 1 shifted the victim to Civil Hospital in a Maruti van. He brought the victim to the Police Station and therefrom, she was sent to Civil Hospital. According to him, the victim was able to speak at the relevant time. He further, deposed that the victim gave statement in the hospital that the accused poured kerosene oil and set her on fire. He noticed burnt injury on her body. She succumbed to her burnt injuries after 6 days, in the hospital. PW 1 lodged the FIR. 10. In cross examination, he stated that the victim was married to another person but she deserted the house of her 1st husband and came to her parental home. Thereafter, he was given in marriage to the accused. No child was born to her out of her wed-lock. He admitted while the statement of victim was recorded by the Executive Magistrate, he and his brother were present. 11. PW 2, Sri Thaneswar Dutta is another brother of the deceased. Corroborating the evidence of PW 1, he has deposed in the same line. PW 3, Sri Golap Phukan, PW 4, Sri Photik Kalita, PW 5, Sri Nandeswar Konch, PW 6, Sri Lekhan Kalita are co-villagers of the accused. 12. PW 3, Sri Golap Phukan, came to the place of the occurrence on being informed about the incident. He deposed that he saw the victim with burnt injuries. On being asked, the victim told him that she had the desire to become a mother of a child and as her desire could not be fulfilled, she attempted to commit suicide by setting herself on fire. He further, started that the accused took the victim to hospital on a hand cart. He admitted in his cross-examination that no child was born to the victim after her marriage with the accused. PW 4 stated that he took the victim to the hospital on a pull cart. He further stated that the deceased told him that out of frustration of not having any child she attempted to commit suicide by setting herself on fire. He further, stated that he saw the deceased had purchased kerosene oil from a shop on the previous day of occurrence. He further stated that the deceased told him that out of frustration of not having any child she attempted to commit suicide by setting herself on fire. He further, stated that he saw the deceased had purchased kerosene oil from a shop on the previous day of occurrence. According to PW 5, on his quarry, the victim stated that she was not willing to survive and therefore she committed suicide by setting herself on fire. PW 6 stated that the victim stated before him that as she failed to give birth to any child she attempted to commit suicide. 13. PW 7, Dr. Jamadogni Upadhaya, who recorded the dying declaration of the victim at 10.00 AM on 06.06.2006, deposed that the victim was brought to Civil Hospital with 70% of burn injuries. She was conscious and was responding on commands. English rendering of dying declaration recorded by PW 7 is re-produced as under:-- (1) Patience own version. My husband always used to assault me. He told that he will kill me. He used to go away with another woman. Today morning he poured kerosene oil and ignited the fire, again extinguished the fire by pouring water. 14. The dying declaration recorded by PW 12, Executive Magistrate is re-produced as under:-- I, Smt. Ranjula Kalita, W/o. Shri Thaneswar Kalita of Saruajuha was married to Shri Thaneswar Kalita last year. I did not want to marry him but Sri Thaneswar Kalita forced me to marry him and took me with him. I came to know that this is his second marriage. I was pregnant after one month marriage to Shri Thaneswar Kalita. When Shri Kalita came to know he told me that he did not want a child and will marry another woman. He forced me to take tablet to abort the child. My husband Sri Thaneswar Kalita always speaks badly to me and ask me to go back to my parental place. Last Friday my husband asked me to bring a sum of Rs. 1,000/- from parental place. Due to menstruation I refused to go on that day but my husband forced me to go. I went to my parental place and brought Rs. 900/- from my elder brother after two days and gave it to my husband. That very day after taking Rs. 900/- my husband asked to go back to my parental place with bag and baggage. I went to my parental place and brought Rs. 900/- from my elder brother after two days and gave it to my husband. That very day after taking Rs. 900/- my husband asked to go back to my parental place with bag and baggage. I did not go. I was disturbed and did not take food. Yesterday I prepared meal and kept it for my husband. My husband came back in the evening and took dinner and went to sleep. Next day early in the morning my husband pulled me from my bed and poured kerosene on my body from a drum and burned it. Later, he poured water and brought one 'thela' and took me to Civil Hospital, Dhemaji. My father-in-law is a good person but my husband does not allow me to talk to him. 15. PW 8, Mohan Mahanta was the VDP President and when the incident was reported to him, he came to the house of the accused. He saw the victim with burn injuries and also enquired about the incident, the victim did not reply and she remained silent. Thereafter, he advised the accused's father to take the victim to hospital and left the place. During the cross examination he stated that he did not hear that the victim has committed suicide as she was not blessed with any child. 16. PW 9, Dibyadhar Baruah stated that he saw the victim was carried to hospital in an auto-rickshaw. Subsequently, he heard that she died in the hospital. 17. PW 10 Roman Kalita is a seizure witness. Police had seized some burn clothes in his presence. 18. PW11, Dr. Khagen Doley performed the post mortem examination of the deceased and found the whole body of the deceased got burned. There was 90% of burned injuries over the body surface. In his opinion, the cause of the death of the deceased was to MODS due to burn injuries. He was not cross-examined. 19. PW 13 & 14 are the Investigating Officers. PW13 submitted the charge sheet whereas PW 14 visited the Civil Hospital, Dhemaji and found the victim with burn injuries in the hospital. On his requisition Executive Magistrate (PW 12) recorded the dying declaration of the victim. He also recorded statement of the victim under Section 161 CrPC. 19. PW 13 & 14 are the Investigating Officers. PW13 submitted the charge sheet whereas PW 14 visited the Civil Hospital, Dhemaji and found the victim with burn injuries in the hospital. On his requisition Executive Magistrate (PW 12) recorded the dying declaration of the victim. He also recorded statement of the victim under Section 161 CrPC. He visited the place of occurrence, drew sketch map of the site, seized one gallon containing half litre of kerosene, some burned clothes from the place of occurrence and recorded statement of witnesses. As the victim succumbed her injuries while undergoing treatment, PW 13 submitted the charge sheet under Section 302 IPC against the accused. 20. There are two sets of dying declaration in this case, In dying declaration recorded by the doctor and the Executive Magistrate wherein the deceased alleged that the accused husband set her on fire. There was oral dying declaration before PW 3, PW 4, PW 5 and PW 6. The oral dying declaration made by the victim in presence of PW 3 to 6 is inconsistent with the dying declaration recorded by the doctor and the Executive Magistrate. The dying declaration recorded by the doctor and the Executive Magistrate, however, has been corroborated by PW 1 and PW 2. 21. So far as the position of law in regard to admissibility of dying declaration is concerned; the same is now well settled by the constitution bench judgment of Supreme Court in Laxman Vs. State of Maharashtra (2002) 6 SCC 610, wherein it was held that a dying declaration which does not contain certificate of the doctor cannot be rejected on that ground so long as the person recording the dying declaration was aware of the fact as of the condition of the declarant to make such dying declaration. If the person making such dying declaration is satisfied that the declarant is in a fit mental condition to make the dying declaration then such dying declaration shall not be invalid solely on the ground that the same is not certified by the doctor as to the condition of the declarant to make the dying declaration. 22. In the instant case, the mental condition of declarant is not in question Here, it is alleged that the declarant was tutored or prompted by her brothers to make dying declaration before the doctor or Executive Magistrate. 23. 22. In the instant case, the mental condition of declarant is not in question Here, it is alleged that the declarant was tutored or prompted by her brothers to make dying declaration before the doctor or Executive Magistrate. 23. In the case of Varikuppul Srinivas Vs. State of Andhra Pradesh : (2009) 3 SCC 415 , the Apex Court retreating the principles laid down in Paniben Vs. State of Gujrat (1992) 2 SCC 474 , summed as under:-- (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon with corroboration. (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (iii) This Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (iv) Whereas the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (x) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. 24. (x) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. 24. In the case of Laxman (supra), it was held that a dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and define. In the case of Gehani Vs. State of Maharashtra (1982) 1 SCC 700 , it was held that where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable. 25. In this case it transpires from the evidence of brothers of the deceased Dimbeswar Dutta (PW 1) and Thaneswar Dutta (PW 2) that they saw the victim while she was carried by the accused to hospital. They accompanied her to hospital and then brought her to police station and then again to the hospital. In the hospital the victim made dying declaration that the accused set her on fire. They have not specifically mentioned that the victim made any dying declaration to them. What transpires from evidence of PW 2 that dying declaration of the victim was recorded by the Executive Magistrate in their presence, 26. PW 4, Photik Kalita, PW 5, Nandeswar Konch, PW 6, Khan Kalita have deposed that hearing hue and cry, they came to the house of the accused and found the deceased at the door step of the accused's house with bum injuries. PW 5 stated that the victim was shouting for water. On being asked she told that she has no desire to live and she had attempted to end her life by setting fire on herself. PW 6 stated that in the same line and added that victim told her that she was not blessed with child so she attempted to put an end to her life. Thus, the oral dying declaration of victim before PW 4 and PW 5 was first in point of time. 27. PW 1 and PW 2 admitted that the victim had no child. Thus, the oral dying declaration of victim before PW 4 and PW 5 was first in point of time. 27. PW 1 and PW 2 admitted that the victim had no child. They have also admitted that the dying declaration of the deceased was recorded in their presence by the doctor and the Executive Magistrate. 28. In the case of Surinder Kumar Vs. State of Haryana 2012 Cri. L.J. 1043, it was held that 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 the deceased was not as a result of either tutoring or prompting or a product of imagination. Once the Court is satisfied that the declaration is true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 29. Similarly, in the case of K.K. Vs. Public Prosecutor: (1976) 3 SCC 614, it was held that the Court has to scrutinize that in case of multiple dying declaration, each of dying declaration has to be considered independently on it sown merit so as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the Court to consider each one of them in its Court perspective and satisfy itself which one of them reflect true state of affairs. In case of Sher Singh Vs. State of Punjab (2008) 4 SCC 265 , while dealing with the case involving two dying declarations, it was observed that the first dying declaration could not be relied upon as it was not free and voluntary and the second statement was more probable and natural and mere contradiction with the first will not be fatal to the prosecution. 30. In the case of Shudkar Vs. State of Madhya Pradesh (2012) 7 SCC 569 the facts of that case were quite similar. 30. In the case of Shudkar Vs. State of Madhya Pradesh (2012) 7 SCC 569 the facts of that case were quite similar. In the aforesaid case also there was multiple dying declarations, the deceased was burned by pouring kerosene and brought to hospital by the accused and the family members. It was also observed that the accused had admitted that the deceased was his wife and they were living together and she caught fire. It was expected of him to explain to the Court as to how she had caught the fire. Strangely, he did not state the story of his wife catching fire in his statement under Section 313 CrPC. It was held that first crying declaration made in presence of accused was due to fear that she might not be admitted in hospital. The dying declaration was due to duress that she would be admitted in the hospital only is she states the statement in favour of the accused. The second dying declaration, which was against the accused, was accepted. 31. Here, in this case, it appears from the sketch map prepared by the investigating officer that the bedroom of the accused and the victim were separate. The incident took place in the bedroom of the victim. The jerkin containing kerosene oil was seized from the bedroom of the accused. To go to the kitchen from the bedroom of the victim one has to cross the bedroom of the accused. Admittedly, the accused and the victim were inside the house, the occurrence took place at 3.00 AM. 32. The accused has not explained why and how the victim caught the fire. PW 2 Gulap Phukan's house is situated at a half-kilometer distance from the house of the accused. He deposed that he heard that the wife of the accused died due to burn injuries. Thereafter, he went to the house of accused and found that victim was able to speak. It appears from his evidence that, till he arrived at the place of occurrence, no attempt was made by the accused to shift the victim to the hospital. PW 5 Nandeswar Konch found the victim at the doorsteps of the accused's house lying injured PW 5 also saw the victim lying injured at the doorsteps of the accused. The victim was shouting for water. He arrived at the place of occurrence at 04.30 AM. PW 5 Nandeswar Konch found the victim at the doorsteps of the accused's house lying injured PW 5 also saw the victim lying injured at the doorsteps of the accused. The victim was shouting for water. He arrived at the place of occurrence at 04.30 AM. Similarly, PW 6, came to the place of occurrence, this Court 04.30 AM he also saw the victim lying injured at the doorsteps of the house of the accused. Till the arrival of the aforesaid witnesses, the accused had not removed the victim to any hospital although she was alive. When PW 8 asked the victim why she did so, she remained silent. PW 8, was the VDP President and in his cross examination he stated that that he did not hear the victim set herself on fire as she was not blessed with child. The doctor who recorded the dying declaration of the victim specifically denied the suggestion given by the defence that the dying declaration was recorded in presence of PW 1 and PW 2. He also denied that the victim was tutored by PW 1 and 2. According to the victim, the victim was conscious and capable of speaking. PW 7 being independent witness there are nothing to disbelieve his evidence. 33. Thus, in our considered view, the dying declaration recorded by the doctor and the Executive Magistrate are authentic and voluntary. These dying declarations can be safely relied upon and can be made the basis for conviction of the accused. In result, we find no error in appreciation evidence and law recorded by trial Court the judgment passed by trial Court is thus upheld and appeal is dismissed. Send down the LCRs along with a copy of the judgment and order to the Court below forthwith. Appeal dismissed.