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2015 DIGILAW 964 (GAU)

Tapan Mahanta v. State of Assam

2015-08-05

P.K.SAIKIA, RUMI KUMARI PHUKAN

body2015
JUDGMENT AND ORDER Rumi Kumari Phukan, J. - This appeal has been preferred against the judgment and order 12.7.2011 passed by the learned Addl. Sessions Judge, FTC No.1 Kamrup at Guwahati in Sessions (K) No. 10(K)/2004 convicting the appellant under Section 302 IPC and sentencing him to suffer R.I. for life and to pay a fine of Rs.10,000/- and in default further simple imprisonment for one year. 2. Criminal law was set into motion on the basis of the FIR so lodged by the informant namely Tarun Ch. Deka. The daughter of the said informant Smt. Anjana Deka was married to the accused Tapan Deka prior to four years from filing of the FIR and out of the said wedlock a female child was born to them, aged about 3 years at the time of occurrence. But their relationship was not good enough and on 20.3.2003 there was a quarrel between the two due to some personal affairs and that day at about 2 PM the informant received a phone call that his daughter Anjana has received burn injury and she was admitted at Down Town Hospital. Accordingly, the informant rushed to the hospital and found his daughter there with serious burn injuries on her person. He lodged FIR on the next day morning. A case was registered accordingly and the investigation started. During the course of investigation the statement of the victim and witnesses as well as dying declaration were recorded by the I.O. In the meantime, the victim died in the hospital on 28.10.2003. After the death of the victim inquest was made as well as post-mortem examination was performed on the body of the deceased and just after conclusion of the investigation charge sheet was submitted against the accused person u/s 302 IPC. 3. The case being exclusively triable by the Court of Sessions, the learned C.J.M., Kamrup committed the case for trial to the Court of Sessions. Thereafter, the case was transferred to the Court of learned Addl. Sessions Judge, F.T.C. No. 2, Kamrup at Guwahati for trial. 4. Accordingly learned Sessions Judge upon hearing the learned counsels for the parties framed charge u/s 302 IPC against the accused person. The charge was read over and explained to the accused to which he pleaded not guilty. 5. In support of the charge the prosecution examined altogether 20 witnesses including Medical Officer and I.O etc. 4. Accordingly learned Sessions Judge upon hearing the learned counsels for the parties framed charge u/s 302 IPC against the accused person. The charge was read over and explained to the accused to which he pleaded not guilty. 5. In support of the charge the prosecution examined altogether 20 witnesses including Medical Officer and I.O etc. The plea of the defence is total denial and they have examined three witnesses in support of their case. 6. From the finding of the judgment and order it transpires that the original record having been lost, the same was reconstructed with the relevant papers found available. The learned trial court at the conclusion of the trial, held the accused guilty u/s 302 IPC and sentenced him as stated above. 7. We have heard Mr. A.K.Bhattacharyya, learned Senior Advocate and also Ms. S. Jahan, learned Addl.P.P. 8. The present appeal has been preferred challenging various infirmities in the prosecution case. The point of challenge would be discussed elaborately. On the other hand, the learned Addl.P.P. has assailed the argument of the learned counsel for the appellant. It is submitted that even there is no eye witness to the occurrence, but the circumstantial evidence relied upon the prosecution case is strong enough to sustain the conviction. Much deliberation has been made on aspect of admissibility of the dying declaration recorded by the different person and the authenticity thereof. Prior to proceeding to argument of both parties, let us go through the evidence on record. 9. Admittedly there is no eye witness in the case and the prosecution have relied upon the circumstantial evidence and the dying declaration. Upon perusal of the evidence on record, we find that there are different set of evidence, one part relates to the occurrence while the deceased appeared at first and another set of evidence to whom the deceased made her dying declaration Judicial Magistrate and the I.O. 10. Let us examine the evidence of PW 1, PW 2, PW 3, PW 7, PW 8, PW 9, PW 10, PW 14, PW 16 who were resided in the same building complex, wherein the accused and the deceased also used to stay. PW 1, Rashmi Rekha Barua in her evidence has stated that on the day of occurrence while they are sleeping hearing the commotion at night she and her husband went out to the lobby outside their flat. PW 1, Rashmi Rekha Barua in her evidence has stated that on the day of occurrence while they are sleeping hearing the commotion at night she and her husband went out to the lobby outside their flat. She heard crying of Mainu the daughter of the victim Anjana Deka as well as Anjana. PW 1 then knocked the door of the victim Anjana and thereafter the victim came out with flame on her body. The victim, Anjana asked PW 1 to cover her body with a blanket. Seeing Anjana in a flame, PW 1 out of fear called her next door neighbour Joya, PW 7 and then while PW 7 arrived, Anjana run to her house and fell down on the Divan of the drawing room and she had no cloth on her. The victim was taken to the Down Town Hospital by the persons gathered. The victim died about nine days after the occurrence. The PW 2 is purely hear say witness and she did not went to the place of occurrence. PW 3, Kandarpa Barua is the husband of PW 1 who has corroborated all the statement so given by his wife/PW 1 that they found Anjana lying in burn injury on the bed of neighbouring house. PW 7 Smti Jaya Ghosal, has testified that on the day of occurrence one Kandarpa Barua/PW 3 and his wife Rashmi Rekha Barua/PW 1 informed him about the incident. PW 7 went out and on that time the victim Anjana came with flame in her body and sat on a Divan in her drawing room. She wanted to tell something, but Tapan Mahanta, husband of the victim asked her not to say anything and pressed her mouth with his hand. Thereafter she was taken to the hospital by the neighbours. Another witness PW 8, Dr Rupali Das Saikia who also a friend of the victim arrived at the place of occurrence hearing hue and cry, went to the loby where she also saw Anjana in the apartment of nearby her flat. She suspected foul play. Anjana was taken to hospital by some neighbouring people. On being heard about the occurrence on next day,PW 9 went to the hospital and saw Anjana lying in the hospital with burn injuries on her body. She suspected foul play. Anjana was taken to hospital by some neighbouring people. On being heard about the occurrence on next day,PW 9 went to the hospital and saw Anjana lying in the hospital with burn injuries on her body. PW 10 has stated in his evidence that he was sleeping at the time of the incident, hearing hue and cry he came out from his house and he learnt from the neighbour that Anjana sustained burn injuries and she was taken to the hospital. He also went to the hospital where he saw the victim Anjana in the hospital in a serious condition with burnt injuries all over her body. Police seized some half-burnt hair and one burnt pillow in his presence and he put his signature in the seizure as witness. Evidence of PW 11 is like of other witnesses who visited hospital and talked with her. He is a signatory to inquest, Ext.2. Dr. Biswa Nath Sarma/PW 14, in his evidence stated that on the day of occurrence, he was sleeping at night. Hearing hue and cry at the top floor, he went there. Going there he found Anjana the wife of the accused with burn injuries in her body. He with the help of other people assembled there, laid the victim on a sofa inside her neighbour Jaya Ghosal's house. Anjana was shouting. People present there took Anjana to the Down Town Hospital in his vehicle. The accused also went with them. Pratap Das/PW 16 another resident of same building complex stated in his evidence that on the day of the incident he was informed by one Dr. B.N.Sarmah/PW 14 who was living near the flat of Tapan Mahanta accused, that Anjana had sustained burn injury. Thereafter he asked the accused to take Anjana to a doctor, than accused told him that she should be taken to doctor but doctor should be brought for treatment. With the help of the persons of locality the victim was taken to the Down Town Hospital. Anjana tried to say something but the accused Tapan did not allow her to speak by placing his hand on her mouth. Nothing can be elicited in his cross-examination. PW 4, Tarun Ch.Deka and PW 5 are the parents of the victim/PW 12, Sri Satya Brata Kalita is cousin brother of the victim. Anjana tried to say something but the accused Tapan did not allow her to speak by placing his hand on her mouth. Nothing can be elicited in his cross-examination. PW 4, Tarun Ch.Deka and PW 5 are the parents of the victim/PW 12, Sri Satya Brata Kalita is cousin brother of the victim. PW 6 Mousumi Dey is the Judicial Magistrate who testifies about the recording of dying declaration. Similarly, PW 17, Dr. Pranati Bala Das has testified to the effect that she issued a certificate as regards the mental state of the injured while at the time of recording dying declaration by Magistrate. PW 18 Dr. Nilakhi Hazarika has testified about the admission of the injured in the Down Town Hospital on the day of the occurrence. PW 19 Dr. Kanak Ch.Das conducted post mortem examination on the body of the deceased. PW 20, Susil Saikia, I.O was stated to have recorded the dying declaration. Parents of the victim. Both as PW 4 and PW 5 have given similar statement to the effect that on the day of occurrence i.e. 20.3.2003 on being informed by one Pratap Das, they came to know that Anjana has caught fire and said Pratap Das sent a vehicle for taking them to the hospital. Accordingly both of them came to the Down Town hospital and found their daughter Anjana lying with in burn injury on her whole body except leap. They also found the accused in the hospital in Room No. 518 whereas daughter was admitted in room No. 618 of the said hospital. On being asked Anjana reported that Tapan had quarrel with her and set fire after pouring kerosene oil. PW 4 lodged FIR, Ext.1 on 21.10.2003 and thereafter Anjana died on 28.10.2003. It has also been mentioned by both the witnesses that both the accused and deceased used to quarrel since earlier. PW 4 in his cross-examination has replied that he asked Anjana about the occurrence on the day of incident and lodged FIR on the following day. However he has not mentioned in the FIR about the fact that Anjana had told him that the accused Tapan set fire on her. However he has denied that Anjana was not in a position to speak on the day of occurrence. However he has not mentioned in the FIR about the fact that Anjana had told him that the accused Tapan set fire on her. However he has denied that Anjana was not in a position to speak on the day of occurrence. Further PW 5 has stated that on the day of occurrence the accused telephoned her at about 11-30 PM and asked her if Anjana had any physical ailment and she told the accused that she was not sick. Then the accused replied that there is no benefit to talk with her. On being asked by PW 5 to Anjana, Anjana told her that Tapan was quarrelling with the victim after attending the birth day party. Thereafter at about 1-30 AM they came to know about the burn injury by their daughter. She also stated about the fact that the deceased Anjana told her prior to two days of occurrence about such quarrel between them but she did not know the reason of quarrel. Both the witnesses has denied the suggestion of the defence side that Anjana never told them about such burn injury caused by the accused and the victim was not in a position to speak. 11. Having informed about the incident, I.O., Susil Saikia, PW 20 went to the Down Town hospital on 21.10.2003 where the victim was already admitted. He interrogated the victim woman while her parents were also present. He also visited the place of occurrence and drew up sketch map vide Ext.7 and seized some articles i.e. pieces of burnt cloth, a white plastic gallon with the open lid, a lid of black colour, a broken telephone set, a burnt red plastic tool, some burnt hair and burnt pillow by Ext.8. He visited the hospital again wherein the accused Tapan Mahanta was also undergoing treatment and arrested the accused. At that time, he saw bandage in the hands of the accused. On that day itself the Ejahar was received from the father of the victim and on being entrusted about the investigation he sought for permission of learned C.J.M. to record the dying declaration by Magistrate. In the meantime, he also recorded the dying declaration of the victim, Ext.3 and as allowed by the CJM, one Judicial Magistrate, Ist Class also recorded the dying declaration. Ext.4 is the dying declaration recorded by him. Ext.4(3) is his signature. In the meantime, he also recorded the dying declaration of the victim, Ext.3 and as allowed by the CJM, one Judicial Magistrate, Ist Class also recorded the dying declaration. Ext.4 is the dying declaration recorded by him. Ext.4(3) is his signature. On completion of the investigation he submitted charge-sheet against the accused person u/s 498(A)/302 IPC. 12. On being query made by the defence counsel, the I.O. has replied in his cross-examination that he has not mentioned the name of the doctor who gave the permission for recording the dying declaration of the deceased. No written permission was taken, only verbal permission was taken from the doctor but the name of the said doctor has not been mentioned in the case diary. The court also interrogated the I.O. He replied that on 21.10.03 he interrogated the victim u/s 161 Cr.P.C. while her parents, doctor and Nurses were also present. Further it has been replied that at page No.2 of the case diary there is mentioned about the interrogation of the victim. Page No.2 is a printed form of the case diary but pg. Nos. 8 and 9 of the case diary is not in printed form. Page 9 is a white paper and the statement of the victim was recorded not in a printed form nor the time of recording of the same has been mentioned. Ext.4 is dying declaration recorded on 25.10.03. There were five persons at the time of recording. It bears the signature of the Nurses but there is no signature of the doctor. Anjana was very much in a position to speak. Ext. 4 has been mentioned in the Page 35 of the case diary. In Page 7 and 8 the statement of the parents of the victim Anjana was recorded which is not in the printed form. He has denied the suggestion of defence side that both the statement of the victim were recorded later on showing to have been recorded on 21.10.2003 and 25.10.03. At the time of making statement by the victim before the Magistrate, he was outside the room. The I.O. has contradicted the statement of Tarun Deka, informant and his wife that they did not state before him that victim told them that the accused had set her on fire after pouring kerosene. Similarly PW 12, Satyabrata Kalita also did not stated in same before him. The I.O. has contradicted the statement of Tarun Deka, informant and his wife that they did not state before him that victim told them that the accused had set her on fire after pouring kerosene. Similarly PW 12, Satyabrata Kalita also did not stated in same before him. The said witness did not state before him that the victim had been beaten prior to setting her on fire. The I.O. categorically denied the suggestion of the defence side that the victim told him that she herself has set fire on her after pouring kerosene. The I.O. stated that while she was in hospital she was put in oxygen mask but she was in a position to speak with mask. Ext. 8 is the extract copy of the seizure list original of which was lost. 13. In support of the plea of denial the fact that the accused also sustained injury while trying to save her, the defence has examined two doctors, one Dr. T.K. Sarma of Down Town Hospital and Dr. Bhaskar Barkatoky who has testifies on the point that the accused was admitted in the said hospital 21.10.2003 for his burnt injury and there was 5% to 10 % superficial burnt in the right lower limb vide Ext.A body head ticket. But they speak nothing as to how such burn injury occurred. One Mr. D.M. Deka, DW 3 was examined, who went to the Down Town Hospital on being informed about the matter. He saw the victim Anjana with an oxygen mask and also found the accused Tapan Mahanta, admitted in the same hospital for burnt injury on the hands. Though he asked the victim as to what had happened but she could not give reply and Tapan Mahanta stated that his wife has set on fire herself and when he tried to save her he also sustained found burnt injury. He also found parents of the accused Tapan Mahanta and parent of the victim in the hospital. Contention raised by learned counsel for appellant. Initiating the argument, the learned Senior Counsel Mr. A.K. Bhattacharyya has strenuously challenged the prosecution case on the various points which according to him is very much destructive of the prosecution case and judgment of conviction is not sustainable on the basis of such evidence, where there is eye witness to the occurrence. Contention raised by learned counsel for appellant. Initiating the argument, the learned Senior Counsel Mr. A.K. Bhattacharyya has strenuously challenged the prosecution case on the various points which according to him is very much destructive of the prosecution case and judgment of conviction is not sustainable on the basis of such evidence, where there is eye witness to the occurrence. We can summarised various points of argument of the learned Senior counsel in following manner: # It has been assailed that the statement of the dying declaration of the victim was not furnished to the accused/appellant even as per direction of the Court dated 11.3.04 depriving the defence from such vital document. # The accused was not confronted with the dying declaration so made by the victim while examining him u/s 313 Cr.P.C., so the conviction is bad in law, without giving him proper opportunity to rebut the case. # The informant for the first time has disclosed about the dying declaration in evidence but his FIR is silent about the involvement of the accused, so the evidence given by the informant cannot be accepted. No credibility can be attached to such witness. # The trial Court has not appreciated the fact that the accused has also sustained injury in the incident for which he was even hospitalised which has been proved by way of defence evidence and also admitted by the prosecution witnesses. That apart that accused has explained as regards the occurrence as to how he sustained injury. # The evidence of PW 3 and PW 4 i.e. parents of the victim cannot be accepted about the fact that the victim told them about the burn injury caused by the accused, because I.O. has contradicted such statement that they made no such statement before the I.O. Such omission is a statutory contradiction raising doubt about the authenticity of the allegation. # The evidence of PW 14 is important as he has not supported the other prosecution witness that the victim did not state before him anything as to how the occurrence took place, on being asked by him, though she was in a conscious stage of mind. # The evidence of PW 17 Dr. # The evidence of PW 14 is important as he has not supported the other prosecution witness that the victim did not state before him anything as to how the occurrence took place, on being asked by him, though she was in a conscious stage of mind. # The evidence of PW 17 Dr. Pranati Bala Das who has given certificate, Ext.5, to the effect that the injured was in a conscious state of mind to give statement cannot be accepted as the said certificate was not enclosed with the dying declaration, so prepared by the Magistrate/PW 6. # It is urged that the evidence of Medical Officer is relevant who has opined that there was no sign of kerosene on the person of the deceased which negates the allegations of the prosecution. # The dying declaration recorded by I.O. as well as Magistrate is also stated to be not maintainable in view of serious infirmities in their evidence. Referring about the dying declaration recorded by the Magistrate, it has been stated that the Magistrate has administered oath to the victim which is not permissible and bad in law. The victim with 75% burn injury, under oxygen mask cannot be in a position to give statement of dying declaration. # The evidence so recorded by the I.O. is challenged on the ground that the statement of victim is different than that of the statement recorded by the Magistrate. In the statement recorded by the I.O. on 25.10.2003, occurrence have been mentioned as previous night, so it is assailed that I.O. has fabricated false document for the interest of investigation. # The Ext.3 dying declaration by Magistrate is also challenged as to why photocopy has been accepted whereas as per order dated 11.4.2004, the Court directed to furnish copy of the same to the defence which indicated that there was original in the record. # Further attack on the dying declaration recorded by the I.O. is on the point that none of the witness signatory to the dying declaration speaks about the same. As such the dying declaration recorded by the I.O is not beyond doubt. # Thus vehement argument of the appellant side is that dying declaration being the basic evidence of prosecution, it should be free from all doubt, which is not made out by the prosecution. As such the dying declaration recorded by the I.O is not beyond doubt. # Thus vehement argument of the appellant side is that dying declaration being the basic evidence of prosecution, it should be free from all doubt, which is not made out by the prosecution. That apart there is no mention about such dying declaration in the FIR. It has been submitted that the criminal courts are not to act upon fiction but on facts which should be considered on the context of all the attending circumstances. # Further more it has been pointed out that dying declaration was not recorded by I.O in printed form which is violative of the provision of police manual regarding maintaining of case diary which has occasioned to doubt about the authenticity of the same. Thus the learned Senior Counsel, Mr. A.K. Bhattacharyya has concluded his argument with the submission that unlawful conviction upset the whole society and conviction should not be made in a casual manner which destroy the whole criminal justice system. Contention raised by prosecution side. The learned Addl.P.P. has resisted the submission of the defence side that prosecution case cannot be discarded for minor discrepancies here and there and the court should always be conscious while appreciating the evidence basing upon the circumstantial evidence where there is no eye witness to the occurrence. Various attending, incriminating circumstances against the accused as well as the conduct of accused are also relevant for the purpose of determining the offence charged. It is not that for every occurrence which happens within the four corner of a house that too between the spouses at odd hours of night there can be eye witness and in the given circumstances of the case, the prosecution is bound to rely upon the circumstantial evidence as well as dying declaration so made by the victim. Pointing towards the matters on record it is the submission of the prosecution that there are multiple dying declaration in the case and taking all statement into the account, complicity of the accused with the alleged crime is apparent. Pointing towards the matters on record it is the submission of the prosecution that there are multiple dying declaration in the case and taking all statement into the account, complicity of the accused with the alleged crime is apparent. Replying to the submission of the learned defence side on the point of FIR, it has been stated that it was given in a hurry while the deceased was in critical condition in the hospital .Perhaps the parents of the victim thought about the future of the victim and also, if she so survived. Similar is the reason that the said parents of the victim as well as her relative, PW 12 did not disclose the matter before the I.O. Regarding non submission of vital document like dying declaration of victim to the defence side was not agitated before the trial Court and there is nothing to support the contention of the learned defence counsel that it was not furnished. Again admittedly the case was reconstructed, so various original documents were lost and the appellant side did not raise such grievances of prejudice at the earliest opportunity i.e. before the trial Court. The submission that the accused also sustained injury in the incident is not a vital aspect to be considered because he had sustained only 5% to 10% injury that too in the hands only whereas the victim sustained 75% of the injury and she was in a critical condition in comparison to the accused. Every incriminating material including dying declaration was put forward to the accused while examining him u/s 313 Cr.P.C. but he failed to offer any satisfactory reply/explanation. It has been contended that mere non putting of such questions will not sufficient to discard the same unless prejudice is caused to defence side. No such prejudice is shown because appellant was fully aware of all allegations against him. It has urged that there is no serious infirmity, in the dying declaration as has been challenged by the defence side. There is no substance to the submission on the defence side that the deceased was not in a position to speak while the majority of the witness including attending Medical Officer has affirmed that the victim was in a position to give statement even under the oxygen mask. The attending doctor has issued certificate to the effect so credibility of dying declaration is not shaken. The attending doctor has issued certificate to the effect so credibility of dying declaration is not shaken. There is no requirement in law that such doctor's certificate should be annexed with the statement recorded by the I.O. Similarly it is not expected that the both the written dying declaration recorded by the Magistrate and the I.O. will be exactly same version word by word of the victim. The learned counsel for prosecution has relied upon a decision of the Hon'ble Apex Court in (2010)8 SCC 514 (Lakhan v. State of Maharashtra), wherein Apex Court approved the view that generally most women do not accused their husband for sentimental and religious reason. Thus it has been contended that little variation in the statement in such a case is not fatal. Referring into the circumstances as to the effect that the victim did not immediately reported the matter to the witness and the informant has also not mentioned the same in the FIR about making of dying declaration perhaps persuaded by such sentiment. Referring to the evidence of PW 7, PW 16 who happens to appear at the place of occurrence immediately after the deceased came out in a flame from her house, it has been pointed out that though the deceased victim wanted to say something but accused pressed her mouth with his hands and asked her not to speak anything at that time is a significant incriminating aspect against the accused as to why he pressed her mouth. An adverse presumption can be drawn against him that by apprehending that the victim/wife may disclose the real fact the accused has shut her mouth. It has also been pointed out that the defence/appellant herein has failed to scatter the said evidence while in course of cross-examination and failed to explain the said circumstance while giving statement given u/s 313 Cr.P.C. The case laws cited by the learned counsel for the appellant side. 14. It has also been pointed out that the defence/appellant herein has failed to scatter the said evidence while in course of cross-examination and failed to explain the said circumstance while giving statement given u/s 313 Cr.P.C. The case laws cited by the learned counsel for the appellant side. 14. AIR 1958 SC 22 (1) Kushal Rao v. State of Bombay (D) Evidence Act, 1872 Section 32 Dying declaration-Value it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view of the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stand on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. (E) Evidence Act, 1872 Section 32 Dying declaration-Corroboration. (E) Evidence Act, 1872 Section 32 Dying declaration-Corroboration. In order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once; the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, but from the fact that the court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities. 3. Decision of the Gauhati High Court reported in AIR 1970 Crl.L.J. 1599 (Priyalal Barman v. The State) has been referred wherein it has been held that dying declaration is only a piece of untested evidence. It must like any other evidence satisfy the court that what is stated therein is the unalloyed truth and the whole truth and it is absolutely safe to act upon. 4. (1975) 3 SCC 815 (Ram Kumar Pandey v. State of Madhya Pradesh) wherein it has been held that serious infirmities in the FIR of important facts affecting the probabilities of the case held are relevant in judging the veracity of the prosecution case. Failure to mention persons alleged to the eye witness in the FIR held detrimental and failure to mention dying declaration is also fatal. 5. AIR 1981 SC 1578 (Mohar Singh and others v. State of Punjab) where in it has been held that dying declaration giving detail account of occurrence though made in serious condition not attested by the deceased wife or doctor at smacks concoction hence cannot be relied upon. 6. 5. AIR 1981 SC 1578 (Mohar Singh and others v. State of Punjab) where in it has been held that dying declaration giving detail account of occurrence though made in serious condition not attested by the deceased wife or doctor at smacks concoction hence cannot be relied upon. 6. (1983) 2 SCC 14 (State of Assam v. Mafizuddin Ahmed) wherein it has been held that if the truthfulness of dying declaration beyond doubt, conviction can be based solely upon it without requiring corroboration. 7. (1985) 4 SCC 476 (State (Delhi Administration) v. Laxman Kumar and others wherein it has been held that the statement of deceased which was recorded by the police after two hours instead of the doctor is doubtful because the doctor instead of endorsing the recorded statement merely attesting the same and also the said statement was not recorded in the question answer form and it was held such dying declaration is not acceptable. The case laws cited by the respondent side. 15. (2002) 8 SCC 83 (Rambai v. State of Chhattisgarh) wherein it has been held that physical state of or injuries on the declarant not by themselves determinative of mental fitness of the declarant to make the statement. Mental fitness can be ascertained from opinion of doctor or from testimony of witnesses who recorded the statement and surrounding circumstances. The doctor has given certificate that the victim suffering 85% burn injuries can give statement. 2. (2002) 6 SCC 710 (Laxman v. State of Maharashtra). (A) Wherein it has been held that Fitness of state of declarant's mind is to be assessed by the Court and mere absence of doctor's certificate as to the fitness of the declarant state of mind would not ipso facto render the dying declaration unacceptable. The evidentiary value of such a declaration would depend on the facts and circumstances of particular case. 3. (2003) 6 SCC 443 (P.V.Radhakrishna v. State of Karnataka) wherein it has also discussed about the requirement of medical certificate prior to recording dying declaration. It has been held that if the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make a dying declaration then such a dying declaration will not be invalid solely on the ground that his condition is not so certified by a doctor. It has been held that if the person recording the dying declaration is satisfied that the declarant is in a fit medical condition to make a dying declaration then such a dying declaration will not be invalid solely on the ground that his condition is not so certified by a doctor. Percentage of burns suffered whether determinative factor to affect the credibility of the dying declaration and the improbability of its recording, the Apex Court held that percentage of burns alone would not determine the probability or otherwise of making the dying declaration and the relevant factors required to be taken into consideration in this regard . 4. (2008) 16 SCC 705 (Samadhan Dhudaka Koli v. State of Maharashtra) wherein it has been held that dying declaration made before a Judicial Magistrate has a higher evidentiary value as a Judicial Magistrate is presumed to know how to record a dying declaration and also he is a neutral person. 5. (2010) 9 SCC 747 (Santosh Kumar Singh v. State through CBI) where in it has been held that in circumstantial evidence, the falsity of statement/defence plea taken by accused, adversely affect the defence. Apex court held that false plea is another link in the chain of circumstantial evidence. In case of the circumstantial evidence the onus to explain incriminating circumstances, facts within accused's special knowledge, lies on accused to prove those facts. 6. (2010) 8 SCC 514 (Lakhan v. State of Madhya Pradesh) wherein the law regarding dying declaration summarised and discussed condition precedent for convicting the accused on the basis of dying declaration. It has been held that the declaration which was corroborated to great extent can be relied to award conviction. 7. (2013) 14 SCC 159 (State of Madhya Pradesh v. Dal Singh and others) wherein the Apex Court held that no reason to disbelieve the version of events provided by Magistrate and I.O., who had recorded the dying declarations. Both of them had found the deceased to be in a fit physical and mental condition to make a statement. 8. Un-reported case of Delhi High Court in a death reference No. 6/2013 (State v. Ram Singh and others) decided on 13.3.2014 it has been held that statement given under oxygen mask by burn victim can be acceptable. 16. Both of them had found the deceased to be in a fit physical and mental condition to make a statement. 8. Un-reported case of Delhi High Court in a death reference No. 6/2013 (State v. Ram Singh and others) decided on 13.3.2014 it has been held that statement given under oxygen mask by burn victim can be acceptable. 16. We have given our thoughtful consideration to the submission of both the parties and also gone through the case laws relied by the parties. We are also alive to the aspect that there is no eye witnesses in the present case and case is squarely based upon circumstantial evidence as well as dying declaration. Accordingly our consideration have to be given having regard to the attending facts and circumstances of the case and also credibility of the dying declaration so made by the deceased. Virtually in the present case there are three sets of dying declaration. The first set of dying declaration was made to the three witnesses i.e. parents as well as the distant relatives of the victim i.e. mainly PW 4, PW 5 and PW 12. Second dying declaration was recorded by the I.O./PW 20, on 25.10.2003 and on the next third dying declaration was recorded by the PW 6, Judicial Magistrate on 26.10.2003. Findings of this court 17. After careful scrutiny of the circumstantial evidence on record certain material facts emerges against the accused person and defence could offer no plausible explanation against the same. It is the evidence on record that neighbour heard hue and cry of the deceased and her minor child in the house of accused that too in such dead hours of night and everybody was sleeping at that time. When PW 1 called Anjana hearing her crying, victim came out with fire in her body. The defence plea that he does not know how the victim Anjana caught fire is hard to accept. As we found it is a case where there is no specific plea of the accused, except denial. Whereas the accused being the husband of the deceased should have the definite answer in the circumstance so appeared. Further even if it can be held that the deceased burnt herself by pouring kerosene oil then why she would come out by making hue and cry from her house is certainly a questionable aspect. 18. Whereas the accused being the husband of the deceased should have the definite answer in the circumstance so appeared. Further even if it can be held that the deceased burnt herself by pouring kerosene oil then why she would come out by making hue and cry from her house is certainly a questionable aspect. 18. The accused came out with the child in his lap in very neutral manner and refused to give the child to the neighbour person even after their requests and also refused to take his wife to the hospital in spite of requests by the neighbour rather he insisted the doctor should be called there. The said conduct of the accused is against the normal human behaviour in the given circumstances. Had there been a sudden fire to the victim or even if she burnt herself, it would be natural on the part of her husband to get overwhelmed by such incident and will make arrangement to take her to hospital for treatment. In the given case the accused made no such effort to take his wife to the hospital and remain standing with his child with no overt act to assist his wife. 19. Why the accused appellant wanted to cause delay for treatment of his wife in spite of the fact that his wife sustained serious burnt injury and the treatment also cannot be possible without being admitted in the hospital, is a serious question. It is only for effort of neighbouring people, the injured was admitted in the hospital and the accused played a neutral roll. 20. Another serious circumstances referred by the witnesses PW 7 and PW 16 that after the occurrence even though the deceased tried to say something, the accused did not allow her to say and pressed her mouth and stated that she need not to say anything at that time. The vital aspect cannot be shaken in the cross-examination and the status of those witnesses being neutral cannot be discarded. 21. The fact that the accused has averred in his explanation given under Section 313 Cr.P.C. that he was sleeping with his child and wife went to kitchen to take rice at such odd hours of night at 2 A.M, while all people slept is not a proper explanation. 21. The fact that the accused has averred in his explanation given under Section 313 Cr.P.C. that he was sleeping with his child and wife went to kitchen to take rice at such odd hours of night at 2 A.M, while all people slept is not a proper explanation. Moreover, his submission that he does not know what happened thereafter cannot be held to be a plausible explanation, while they are residing in the same house. 22. The evidence of the parents of the victim who are supposed to know about the internal relation with the spouse, has stated that there was a strain relation between the parties prior to the incident and the accused used to quarrel with her frequently. This is also reflected in the dying declaration so made by the victim to the PW 12 as well as the Magistrate and I.O. that the accused had dealt with fire due to such quarrel and bad temperament. 23. All the above circumstances cannot be refuted by the defence evidence though the defence took the burden of adducing evidence. It was their duty to lay proper evidence though not in the strict manner as of the prosecution to rebut the prosecution case, but they failed to prove anything by such defence evidence. 24. The evidence of DW 1 and DW 2 have no bearence in the fact in issue. In the same manner the evidence of DW 3 is of no help to the defence side. During the whole trial there was no specific plea of the defence side except denial but by adducing evidence of DW 3, the defence tried to convert the plea that the victim Anjana set herself on fire and the accused got burn injury when he tried to save her. Moreover the evidence of DW 3 that the deceased was not in a position to talk lacks support of any other corroborative evidence and thus not totally helpful to the defence side. 25. While appreciating the evidence in a murder trial on the basis of circumstantial evidence has been discussed by the Apex Court in the case of Chunni Lal v. State of U.P. reported in (2010) 7 SCC 496 conduct of accused is a relevant fact for consideration. 25. While appreciating the evidence in a murder trial on the basis of circumstantial evidence has been discussed by the Apex Court in the case of Chunni Lal v. State of U.P. reported in (2010) 7 SCC 496 conduct of accused is a relevant fact for consideration. As has been mentioned above in the given case, the appellant totally failed to give any plausible explanation of the occurrence to which he bound to answer as the victim was none other than his wife residing in the same room. No other third person can explain such circumstances, except the accused himself. It can be held that because of strain relationship with his wife with such temperament, the accused has dealt with the offence of setting fire out of his anguish because of resistance of his wife as indicated in the dying declaration. It can also be noted that such type of marital relationship is difficult to express to other person unless some serious happens to the parties. 26. Turning to the credibility of the dying declaration as has been assailed by the appellant side, let us appreciate the first set of evidence to whom the dying declaration was made by the victim. According to the parents and cousin brother of the victim i.e. PW 4, PW 5 and PW 12 respectively, deceased discloses them that it was the accused person who pour kerosene upon her but their statement has been contradicted by the I.O. that no such statement was made before him so the same cannot be accepted. The PW 12 has asserted in his evidence that he was present while the I.O. recorded the statement of the victim while she reveals so and he was also a signatory to the dying declaration so made by the I.O. As such the evidence of I.O. that PW 12 did not state before him in like manner is of little consequence. The fact that the accused Tapan @ Lambu is the same person is evident from the LCR, as his name was shown as Tapan @ Lambu in the whole record. On the other hand there is another aspect that the PW 3, informant has not reveals the aspect of dying declaration in the FIR, may be because he has requested the I.O., to conduct investigation about the matter. On the other hand there is another aspect that the PW 3, informant has not reveals the aspect of dying declaration in the FIR, may be because he has requested the I.O., to conduct investigation about the matter. In such back drop the evidence of PW 3 and PW 4 in respect of dying declaration perhaps cannot be accepted. But we have another two set of dying declaration. 27. It is pleaded case of the prosecution that the victims survives for several days for which the I.O. made prayer before the CJM to record the dying declaration of the victim which was allowed and accordingly, learned JMFC, PW 6 recorded the dying declaration so made by the deceased after six days of the occurrence and there is no such serious infirmities in the dying declaration so recorded by the Magistrate. In the aforementioned case laws in (2008) 2 SCC 516 (Bikash & ors v. State of Maharashtra and in (2006) 10 SCC 759 (Rajendra & ors v. State of Maharashtra) the apex Court held that the evidentiary value of dying declaration recorded by a competent Magistrate having no animus and not being interested witness, reiterated, would stand on much higher footing. The defence also failed to demolish her evidence, to discredit her evidence. The fact that she has obtained a written certificate from the doctor prior to making such dying declaration has been proved by her own evidence as well as supporting evidence of PW 17. Both these evidence i.e. PW 6 and PW 17 has in clear terms as stated that the deceased was in a fit condition and conscious state of mind to give statement. Dying declaration so recorded by the PW 6, can be accepted without any hindrance. Merely because the Magistrate administered oath to the victim which she might have done bona fide but itself is not enough to render the dying declaration is inadmissible in evidence. In the said dying declaration the deceased has revealed that on the fateful night the accused returned home from birthday party in drunken condition and insisted her wife to sleep with him and as she declined to do so then he dragged her to the drawing room and beaten up and pour kerosene over her body and set fire to her. This portion of declaration got support from the seizure list so made by the I.O. because I.O. has seized the broken phone, burnt cloth etc. from inside the room and the articles were lying in a scattered way, which indicate there was quarrel at the time of occurrence. It can also be noted that victim made similar statement u/s 161 Cr.P.C. however the same was not exhibited by I.O. which however could have been proved as dying declaration. 28. Another dying declaration was recorded by the I.O. on 25.10.2015 i.e. one day prior to recording of the statements by the Magistrate. In the said dying declaration the deceased has stated in the following manner : On the last night the accused returned home from birthday party at 11-30 PM in drunken condition and the Anjana was sleeping separately then the accused dragged her to sleep with him and assault her and thereafter forcing her to sit on a stool by one hand and pour kerosene oil upon her by another hand. Though she tried to telephone, but she was tied up with a phonerecord. Hearing her hue and cry neighbouring people arrived and knocked the door then she ran towards the door and the accused came behind her. The defence has challenged the both this dying declaration Ext. 3 and Ext. 4 on the ground that the victim has given different version of the incident and the facts as disclosed before the I.O. that the deceased was dragged by the accused and hold her hands and there after poured kerosene oil and cannot be accepted. We are unable to accept the submission of the learned counsel for the appellant because nothing is absurd for a male person who was in a drunken condition to take such drastic action upon his wife who was a helpless lady. In this contest it may be observed her that while in anger and drunken, a person is always overwhelmed with force to do extra ordinary work, which in general condition, he may not adhered to. The people in such situation is unable to gauge the consequence of his conduct and can inflict serious injury to person which has been done by the accused appellant in this case being annoyed with the denial of his wife to share his bed, the accused has gone to extreme level, resulting ultimate death of his wife. 29. The people in such situation is unable to gauge the consequence of his conduct and can inflict serious injury to person which has been done by the accused appellant in this case being annoyed with the denial of his wife to share his bed, the accused has gone to extreme level, resulting ultimate death of his wife. 29. I.O. has revealed that he has obtained verbal permission of the attending doctor prior to taking of the dying declaration but he has not obtained any written certificate from the doctor as has been pronounced by the Apex Court that: "obtaining of doctor certificate is not a condition precedent to record dying declaration where as the person recording the confession is very much confident on the facts that the deceased was in a fit condition to speak" The said facts also got support from so many witnesses, as mentioned above. 30. Further the statement of deceased recorded by the I.O. also supported by other facts and circumstances while the I.O. went to the house of the deceased for investigation in presence of PWs, he has found his house of the deceased in utterly disorder condition in which they have found broken telephone, burnt cloth, burnt pillow cover, plastic tool etc. and the same were seized by the I.O. in presence of witnesses as indicated above. We have also found that the statement of accused given u/s 313 Cr.P.C. is false. He has stated that he had used one gunny bag to douse the fire but no such gunny bag was recovered from the place of occurrence by the I.O. His further submission that the deceased/his wife fell unconscious immediately after the occurrence is totally false because all the neighbouring witnesses appeared after the occurrence has categorically stated that victim was conscious and she asked for water and also asked to cover her body and she also tried to disclose something which the accused did not allow. For the falsity of plea taken by the accused appellant hostile inference can be drawn against him. Again, as we found from evidence, that hearing hue and cry of victim and her child, PW 1 went to her house knocked the door and then Anjana came out running. For the falsity of plea taken by the accused appellant hostile inference can be drawn against him. Again, as we found from evidence, that hearing hue and cry of victim and her child, PW 1 went to her house knocked the door and then Anjana came out running. If PW 1 did not appear in the house of victim, she would have died instentously, out of fire and it would be easy in the part of accused to say that Anjana committed suicide or died accidentally. On appreciation of the matters on record, facts and circumstances of the case, we found that the case laws relied by the appellant is not applicable in the given situation of the case. 31. We also can't resist our temptation to cite herein, lucid observation of Hon'ble Supreme Court on dying declaration reported in AIR 2012 SC 3265 as below: (3) The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, 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. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, 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 eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. 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 definite. In most cases, however, such statements are made orally before death ensues and is reduces to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." 32. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise." 32. In view of legal proposition and facts and circumstances in the given case, we find nothing to raise doubt about the credibility of dying declaration made before the Magistrate as well as the I.O. There is absolutely nothing to infer that both this witnesses has conducted in unfair matter. On the other hand the fact that the I.O. has recorded the statement in a white paper instead of printed form which may be an irregularity as per police manual, but no other illegality or unfairness of the I.O. made out and in absence of which, we are not inclined to reject the dying declaration recorded by I/O. As pronounced by the Apex Court in the above mentioned case dying declaration, can be accepted in evidence if given voluntarily by the victim person while in a fit position of mind irrespective of extent of burnt injury. The credibility which has not shaken otherwise, it can be very well be accepted as a basis of conviction. Now in the instant case the prosecution has been able to prove the two sets of dying declaration so recorded by the I.O. and Magistrate inspires confidence in the mind of the court that it was none other than the accused person who is the perpetrator of the crime. 33. We have given a thoughtful consideration to the submission of learned counsel for the appellant that criminal court are not to act upon fiction but on facts as has been urged during the course of argument. Of course the criminal court is to decide the case within the parameter laid down by the law and in that pretext, apart from direct evidence, law has recognised the circumstantial evidence to arrive at the guilt of the accused, when there is no direct eye witness to the occurrence. While dealing with a bride burning case, the court is generally has to deal with the circumstantial evidence and the present case is not an exceptional to the above proposition. While dealing with a bride burning case, the court is generally has to deal with the circumstantial evidence and the present case is not an exceptional to the above proposition. But after having regard to the facts and circumstances as discussed above we are of the opinion that the charge u/s 302 IPC is established against the accused on the circumstantial evidence as well as dying declaration so made by the deceased and the findings of the court below cannot be interfered into who has also appreciated each and every aspect in proper perspective of law. 34. In view of the above, the appeal is dismissed and the impugned judgment and order dated 12.7.2011 passed in Sessions 10 (K)/2004 is hereby upheld. Accused is directed to surrender before the Trial Court within one month to serve out the sentences so imposed by the learned trial Court. 35. Send back the LCR forthwith along with a copy of judgment.