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2018 DIGILAW 1604 (GAU)

Bijoy Nayak v. State of Assam

2018-11-12

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT : HITESH KUMAR SARMA, J. 1. This appeal is preferred from jail against the judgment and order dated 12.5.2016, passed by the learned Sessions Judge, Golaghat, in Sessions Case No. 81 of 2011, convicting the accused-appellant, under section 302 of the Penal Code, 1860, and sentencing him to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5,000, in default, further simple imprisonment for a period of one month. 2. I have heard Mr. I. Hussain, learned amicus curiae, appearing on behalf of accused-appellant and Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam. 3. The prosecution case, in brief, is that on 9.3.2011, the accused-appellant, Bijoy Nayak, confined his wife/deceased, Jayanti Nayak, inside his house, severely assaulted her and set fire on her person after pouring kerosene oil on her body. She was taken to Bokakhat Primary Health Centre immediately after the occurrence, and thereafter, shifted to KK Civil Hospital, Golaghat, where she succumbed to her bum injuries. 4. The informant/PW2, the father of the deceased, lodged the ejahar, in respect of the above occurrence, with the Kamargaon Police Station. On receipt of the FIR, Kamargaon Police registered a case, being Kamargaon Police Station Case No. 16/2011, under section 342/302 of the IPC, investigated into it, collected evidence and, after completion of investigation, laid the charge sheet against the accused-appellant, under section 342/302 of the IPC. In the midst of investigation, inquest and post mortem examination over the dead body of the deceased were done. Dying declaration of the deceased was recorded by the doctor of KK Civil Hospital, Golaghat. There was seizure of one 5 litres plastic gallon and a burnt match stick with a match box containing 13 sticks from the place of occurrence by the Investigating Police Officer. 5. After exhausting all required formalities, the learned Sessions Judge, Golathat framed a formal charge against the accused-appellant, under section 302 of the IPC. The accused-appellant pleaded innocence thereto and claimed to be tried. Therefore, the trial commenced. 6. In this case, prosecution examined 10 witnesses and the defence examined none. The accused-appellant, in his statement, recorded under section 313, Cr.PC, denied the accusation levelled against him. 7. After conclusion of the trial, learned Sessions Judge, Golaghat found the accused-appellant guilty under section 302 of the IPC and convicted and sentenced him accordingly, as indicated above. 8. 6. In this case, prosecution examined 10 witnesses and the defence examined none. The accused-appellant, in his statement, recorded under section 313, Cr.PC, denied the accusation levelled against him. 7. After conclusion of the trial, learned Sessions Judge, Golaghat found the accused-appellant guilty under section 302 of the IPC and convicted and sentenced him accordingly, as indicated above. 8. We have scanned the evidence of the prosecution witnesses. We have also perused the records of the learned trial court including the judgment appealed against. 9. Before we evaluate the evidence on record, let us see, from the evidence of the autopsy doctor, examined as PW3, the findings recorded by him in the post mortem examination report, Ext. 2. The Ext. 2 records as follows: “External appearance: A dead body of an adult female, medium height, swarthy with swarthy complexion with long black hair. Eyes closed and rigor mortis present. The skin of the whole body from below the neck is burnt with multiple black blister. There is deep bum in some parts of the body. Percentage of bum is about 80%. Cranium and spinal canal = all congested. Tharax = Wall = Superficial bum with areas of deep burn. Ribs and cartilage are normal. Heart = Right chamber contains blood and left chamber empty. Others = congested. Abdomen = Wall-Multiple blister due to bum. Stomach-congested and contains undigested food material. Small intestine-congested and contains semi-digested found. Large intestine-congested and contains faecal matter. Others-congested. Liver-congested, Spleen-congested, Kidneys-congested. Bladder-congested and contains small amount of wine. Organs of generation-healthy and uterus is normal in size. The dead body has got black skin blister and more than 80% bum all over the body except the head, neck and sole. The bum is ante mortem in nature. Rigor mortis present, so time since death is within 36 hours.” 10. It has been opined by the PW3, the autopsy doctor, that the death was due to shock as a result of the bum injuries sustained by the deceased. 11. The place of occurrence is the house of the accused-appellant. The residence of the informant (PW2) is opposite to the road leading to the house of the accused-appellant. The parents of the accused-appellant reside in the same house, but separately. 12. 11. The place of occurrence is the house of the accused-appellant. The residence of the informant (PW2) is opposite to the road leading to the house of the accused-appellant. The parents of the accused-appellant reside in the same house, but separately. 12. The evidence of PW2, Sri Deba Nayak (father of the victim) and PW6, Smt. Bobita Nayak, (mother of the victim) is that the deceased came running out of her matrimonial home with fire engulfing her and jumped into the pond, situated nearby, i.e., about 100 metre away, to extinguish the fire which caught her person. While jumping to the pond, she was raising alarm, seeking help, with the words “mother, father, help me”. Hearing the alarm of the deceased, her mother, PW6 and her father, PW2 came out. PW2 enquired from her as to how she was caught by fire, to which she replied that the accused-appellant had poured kerosene oil on her person and then lit her with a match stick. PW6 also supported PW2 while stating that the victim/deceased was caught by fire resulting in her death, due to bum, but PW6 did not state as to from which place the deceased came running with fire engulfing her. 13. The other witnesses, examined by the prosecution, except the official witnesses, are all heard saying that the cause of death of the deceased was due to catching of fire. There is no eye witness to the occurrence. The evidence of the Investigating Police Officer, examined as PW10, is that before he had taken up the investigation, the deceased was admitted in KK Civil Hospital, Golaghat, and he went there next day. On, seeing the condition of the deceased, he requested the Superintendent of the hospital to record the dying declaration of the deceased. The Superintendent of the said hospital deputed a doctor, examined as PW1, to record the dying declaration of the deceased, which he recorded, vide Ext. 1. The dying declaration, it translated into English, reads as follows: “Around 9 O'clock on 9.3.2010, when I was arranging clothes, my husband Bijoy Sahni poured Kerosene on my person from behind and set fire to me by burning a match stick. When I caught fire, I screamed and ran to the outside by opening the door and jumped into the pond. Then, my mother took me out. Then I was admitted into the Bokakhat Hospital.” 14. When I caught fire, I screamed and ran to the outside by opening the door and jumped into the pond. Then, my mother took me out. Then I was admitted into the Bokakhat Hospital.” 14. Before analysing the acceptability of this dying declaration, made before the doctor, let us see the law so far dying declaration is concerned. 15. Law relating to acceptability and reliability of a statement made by a person who is about to die, which is commonly known as dying declaration, has, by now, crystallised. A Constitution Bench of the Supreme Court in Laxman v. State of Maharashtra, (2002) 6 SCC 710 , has summed up the principles governing dying declaration as under: “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. 16. It is well settled that conviction can be recorded on the basis of dying declaration alone, if the genuineness of the declaration is believable. 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. 16. It is well settled that conviction can be recorded on the basis of dying declaration alone, if the genuineness of the declaration is believable. In this regard the Apex Court in Laxman (supra) observed as follows: “[N]ormally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look 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 in 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 reduced 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 is 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. 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.” 17. In Ramesh v. State of Haryana, (2017) 1 SCC 529 , hon'ble Supreme Court held that a dying declaration is an independent piece of evidence like any other evidence, neither extra strong nor weak and can be acted upon without corroboration, if it is found to be otherwise true and reliable. There is no hard-and-fast rule of universal application as to what percentage of bums suffered is a determinative factor to affect the credibility of the dying declaration and improbability of its recording. Much depends upon the nature of the bum, part of the body affected by the bum, impact of the bum on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of bums alone would not determine the probability or otherwise of making the dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement. Further, it has been emphasised by the Supreme Court that it is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a police officer, to a public servant or to a private person. It may be made before the doctor. Indeed, he would be the best person to opine about the fitness of the dying man to make the statement and to record the same where he finds that life is fast ebbing out of the dying man and there is no time to call the police or the Magistrate. Regarding recording of dying declaration by a Magistrate, Supreme Court has observed that Magistrate has no animus with the accused-person; he has no axe to grind against the persons named in the dying declaration and ordinarily should not be disbelieved by the court. In that case, victim was brought to the Hospital with 100% bum injuries. Regarding recording of dying declaration by a Magistrate, Supreme Court has observed that Magistrate has no animus with the accused-person; he has no axe to grind against the persons named in the dying declaration and ordinarily should not be disbelieved by the court. In that case, victim was brought to the Hospital with 100% bum injuries. Notwithstanding the same, doctor found her in a conscious state of mind and competent to give her statement whereafter Magistrate recorded the dying declaration when medical officer remained present. This dying declaration was accepted by the trial court, by the High Court and finally by the Supreme Court. 18. In the light of the law laid down by the hon'ble Supreme Court in Laxman (supra) and Ramesh (supra), let us look into the dying declaration (Ext. 1) and the other evidence on record. 19. The Investigating Police Officer deposed that on his seeing the condition of the deceased in the hospital, on the next day of the occurrence, he made a request to the Superintendent of the Hospital to get the dying declaration of the deceased recorded. There is no bar for the police officer to record a dying declaration. In spite of that, he requested the Superintendent for recording of dying declaration. Such evidence of the Investigating Police Officer shows his inclination to record a truthful and reliable dying declaration. 20. There is no evidence to show that the dying declaration made by the deceased was the result of either tutoring or prompting or a product of imagination. On the other hand, the evidence shows that the deceased sustained 80% bum injury. But, there is clear and unambiguous evidence brought out by the prosecution that the face and the neck of the deceased was not affected by the bum, meaning thereby, the deceased was in a fit state to speak. The dying declaration was recorded by PW3/doctor, who has no animus with the accused-appellant and has no axe to grind against the person named in the dying declaration. There is no certificate about the fitness of the deceased to make the statement. But, the dying declaration inspires confidence as there were other witnesses at the time of recording the same. The PW5, staff nurse of the hospital, deposed that the dying declaration, Ext. 1, was recorded in her presence and she was a witness to that vide Ext. 1(1). But, the dying declaration inspires confidence as there were other witnesses at the time of recording the same. The PW5, staff nurse of the hospital, deposed that the dying declaration, Ext. 1, was recorded in her presence and she was a witness to that vide Ext. 1(1). In spite of the legal position that witness to a dying declaration is not a legal requirement yet recording of the dying declaration in presence of PW5. That apart, the evidence of PW6 makes it clear that while enquired by her, the deceased told her that the accused-appellant had set fire on her after pouring kerosene on her body. This also appears to be the statement made by the deceased before her death and this can also be treated as an oral dying declaration. The contents of the oral dying declaration completely matched with the dying declaration in Ext. 1. This court is convinced that there is no reason to disbelieve the authenticity of the dying declaration. In view of the law laid down by the hon'ble Supreme Court in the decisions, referred to above, coupled with the evidence discussed, the dying declaration, Ext. 1, satisfies the requirement of a legally acceptable dying declaration. 21. In the instant case, the doctor, who recorded the dying declaration is more effective and reliable since he had chance of observing the victim, who made the dying declaration. In the instant case, the doctor (PW3) has categorically stated that she had recorded the statement of the deceased, which was, of course, not so fluent, but it was interpreted to him by another woman. It has been argued that the woman, who had interpreated the dying declaration of the deceased to the doctor, has not been examined in this case. But, when the doctor recorded the statement and, in the circumstances of the case, there is no reason to disbelieve the same, for, the deceased was in a fit state of mind to make the dying declaration is not in dispute in this case. There is no inconsistency in the dying declaration of the deceased and it is short and understandable. On the other hand, we have already accepted the dying declaration to be reliable and acceptable in our discussions in the foregoing paragraphs. 22. There is no inconsistency in the dying declaration of the deceased and it is short and understandable. On the other hand, we have already accepted the dying declaration to be reliable and acceptable in our discussions in the foregoing paragraphs. 22. The hon'ble Supreme Court in the case of Ranjit Singh v. State of Punjab, (2006) 13 SCC 130, the Apex Court held that as follows: “13. It is now well settled that conviction can be recorded on the basis of a dying declaration alone, if the same is wholly reliable, but in the event there exists any suspicion as regards correctness or otherwise of the said dying declaration, the courts in arriving at the judgment of conviction shall look for some corroborating evidence, it is also well known that in a case where inconsistencies in the dying declarations, in relation to the active role played by one or the other accused-persons, exist, the court shall lean more towards the first dying declaration than the second one.” 23. In the instant case, the dying declaration was recorded by a doctor, who is the best person to judge the capability of dying person to make her statement. In Ramesh (supra), the hon'ble Supreme Court has held that the declaration may be made to a Magistrate, to a police officer, to a public servant or a private person. It may be made before doctor. Indeed, he would be the best person to opine about the fitness of the dying man to make the statement and to record the same where he finds that life is fast ebbing out of the dying man and there is no time to call the police or the Magistrate. Therefore, the evidence of the doctor has to be given its due weightage. 24. Therefore, since the dying declaration, Ext. 1 satisfies the requirement laid down in the above decisions of the hon'ble Supreme Court, this court is of the view that the decision rendered by the learned trial court holding the accused-appellant guilty of commission of offence of murder of his wife under section 302 of the IPC appears to have been based on materials on record, particularly, the dying declaration. As such, no interference with the judgment rendered by the learned trial court is called for. 25. The appeal is, accordingly, dismissed. 26. Send down the LCR with a copy of this judgment and order. 27. As such, no interference with the judgment rendered by the learned trial court is called for. 25. The appeal is, accordingly, dismissed. 26. Send down the LCR with a copy of this judgment and order. 27. Also send a copy of the judgment to the Superintendent of Jail, Golaghat, for furnishing to the accused-appellant. 28. This court records its appreciation for the assistance rendered by learned amicus curiae, Mr. I. Hussain, learned amicus curiae be paid an amount of Rs.7,500, as remuneration.