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2018 DIGILAW 335 (GAU)

Anjan Tantubai v. State of Assam

2018-02-22

AJIT SINGH, MANOJIT BHUYAN

body2018
JUDGMENT & ORDER : Ajit Singh, J. The sole appellant Anjan Tantubai has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation. 2. The victim of the incident was Champa Tantubai, aged about 22 years. She was the wife of appellant. 3. Facts in short are these. Champa was married to appellant about 5 years prior to the date of incident and both of them lived together along with their minor son aged 4 years. The house of appellant was about k.m. away from a house in which his parents lived. On 30.08.2010 at about 9.30 p.m. when appellant returned home Champa questioned him for coming late. This led to a verbal altercation between them and in a fit of anger, appellant poured kerosene on Champa and thereafter set her on fire. The appellant then doused the fire and took Champa in his lap to his fathers house. There he informed his mother Minati Tantubai (PW-3) that Chmapa had accidentally caught fire while cooking in the kitchen. Immediately, thereafter, the appellant went to the house of Samiran Goala (PW-2) and requested him to call ambulance for taking Champa to hospital and when ambulance came the appellant took Champa to Silchar Medical College and Hospital for treatment. 4. On the next day, the news of the incident came to the knowledge of father-Shyamal Tantubai (PW-1) of Champa. He immediately went to the hospital where Champa disclosed to him that appellant had set fire on her after pouring kerosene. Shyamal Tantubai gave this information to the police at Udharband Police Station on 01.09.2010 which was recorded in the General Diary as Exhibit-6. On 02.09.2010, Shyamal Tantubai went to the house of appellants parents to enquire about the incident, but they denied having any knowledge about the same. Shyamal Tantubai then again went to the same police station and lodged the First Information Report Exhibit-1. The Station Officer Shyam Babu Singha (PW-9) of the Police Station went to the hospital and recorded the statement Exhibit 7 of Champa. He also made a prayer to the Executive Magistrate to record her dying declaration. On 03.09.2010, Dr. Dhrubajyoti Hazarika (PW-6), Deputy Magistrate, Cachar, recorded the dying declaration Exhibit-4 of Champa in presence of Dr.Rupali Brahmo (PW-8). The Station Officer Shyam Babu Singha (PW-9) of the Police Station went to the hospital and recorded the statement Exhibit 7 of Champa. He also made a prayer to the Executive Magistrate to record her dying declaration. On 03.09.2010, Dr. Dhrubajyoti Hazarika (PW-6), Deputy Magistrate, Cachar, recorded the dying declaration Exhibit-4 of Champa in presence of Dr.Rupali Brahmo (PW-8). Champa in her dying declaration Exhibit 4 stated that she had a quarrel with the appellant whereafter he poured kerosene and lighted her with the help of match-stick and then took her to his fathers house and finally to the hospital. Champa ultimately died on 10.09.2010. Dr.N.M. Pathak conducted the post mortem examination on the body of Champa. He in his post mortem examination report exhibit 3 confirmed that Champa died due to septicemia resulting from 90% burn injuries. The Station House Officer - Shyam Babu Singha arrested the appellant and after investigation filed charge sheet against him. 5. During the trial, appellant abjured his guilt. He explained that Champa got burnt while cooking and he took her to the hospital. She was completely unconscious for three days and he was all along with her in the hospital. But the trial court relying upon the evidence adduced by the prosecution, convicted and sentenced the appellant as aforesaid. 6. It is argued on behalf of the appellant that there is no eye witness to the incident and it is very likely that Champa got burnt while cooking. Appellant immediately tried to save her by taking her to the hospital and this aspect of the matter was ignored by the trial court. It has further been argued that the dying declaration cannot be the sole basis for conviction without any support from any other independent evidence and as such appellant deserves to be acquitted by giving him the benefit of doubt. Alternatively it has also been argued that even on accepting the prosecution case as it is ingredients of Section 302 are not attracted. In support of this submission, reliance is placed on the judgment of Supreme Court rendered in Kalu Ram Vs. State of Rajasthan, (2000) 10 SCC 324 . 7. According to the prosecution case, Champa made three dying declarations. In support of this submission, reliance is placed on the judgment of Supreme Court rendered in Kalu Ram Vs. State of Rajasthan, (2000) 10 SCC 324 . 7. According to the prosecution case, Champa made three dying declarations. First, orally before her father Shyamal on 31.08.2010 when he went to meet her in the hospital, second, Exhibit -7 on 02.09.2010 before the Station House Officer -Shyam Babu Singha which was reduced into writing and third, Exhibit-4 before Dr. Dhrubajyoti Hazarika and Dr. Rupali Brohmo, which too was reduced into writing as per practice on request made by the police. 8. Though, Shyamal Tantubai has deposed that Champa told him that appellant burnt her by pouring kerosene, the same does not seem to be reliable in as much as had Champa told him about the same, he would have definitely mentioned about it to the police when he verbally narrated the incident at the Police Station. The verbal information of Shyamal Tantubai was recorded as Exhibit 6 in the General Diary Entry and there is no mention of Champa in Exhibit-6 disclosing that she was burnt by the appellant. This creates a serious doubt about Champa having made any oral dying declaration to Shyamal Tantubai. As such, the evidence of oral dying declaration is wholly unbelievable and cannot be relied upon. 9. However, Champas subsequent two dying declarations which were reduced into writing are believable. She in her dying declaration before Shyam Babu Singha stated that she had a quarrel with appellant and he then burnt her by pouring kerosene oil and lighting her with a match stick. It is her further statement that appellant then doused the fire, took her to his mothers house after which she was taken to the hospital. Her this statement Exhibit-7 recorded by Shyam Babu Singha is as follows:- "Now my age is 22 years. At about 9 p.m., on 30.08.2010, I had an altercation with my husband over his returning home late. Then my husband poured kerosene on me and set fire to me with a match stick. Thereafter, he took me to his fathers house after he had doused the fire. From there, he took me to medical College in an ambulance. Before this, I had no other quarrels with my husband except for some minor family disputes. Then my husband poured kerosene on me and set fire to me with a match stick. Thereafter, he took me to his fathers house after he had doused the fire. From there, he took me to medical College in an ambulance. Before this, I had no other quarrels with my husband except for some minor family disputes. Since one year of our marriage, my husband and I started living separately from his parents by raising our own house at a little distance." Again, in her subsequent statement Exhibit-4 recorded on the next day by Dr. Dhrubajyoti Hazarika, she stated as follows:- "I Champa Tantubai aged 22 years, wife of Anjan Tantubai of Maticherra Tea Estate, on 3/9/10 at 11.40 AM, on oath stating in front of Executive Magistrate Dr. Dhrubajyoti Hazarika of Silchar, Cachar and in front of Dr.Rupali Brahma, SMC Silchar, (Intern), Rubi Mahanta (ANM) and S.B.Sinha O/C Udharband P/S (as witness) declare that, on Tuesday night I had a quarrel with my husband Anjan Tantubai and subsequently my husband Anjan Tantubai poured kerosene on my body and lighted me with the help of match stick by my husband Anjan Tantubai-Then Anjan Tantubai took me to the house of my father-in-law and then called up ambulance and brought me to Silchar College." 10. Both the recorded dying declarations are consistent and almost exactly reflect the same facts and circumstances. Minati Tantubai and Samiran Goala have categorically deposed that appellant brought her to his mothers house in a burnt condition. Therefore, the statement of Champa is supported by cogent evidence. Besides, Dr. Dhrubajyoti Hazarika has deposed that he recorded the dying declaration of Champa and Dr. Rupali Brohmo issued the certificate regarding her mental fitness. Dr. Rupali Brohmo also testified that she examined Champa and then issued the certificate Exhibit-5. Both Dr. Dhrubajyoti Hazarika and Dr. Rupali Brohmo are independent witnesses and public servants and they had no occasion to lie on oath. Besides, no allegation of malice or ill-will while recording the dying declaration is also leveled against them by the appellant. Same is the case with the statement Exhibit-7 recorded by Shyam Babu Singha. So, their testimonies are not to be disbelieved and casually thrown away. Their evidence is not shaken during their cross-examinations either. 11. Besides, no allegation of malice or ill-will while recording the dying declaration is also leveled against them by the appellant. Same is the case with the statement Exhibit-7 recorded by Shyam Babu Singha. So, their testimonies are not to be disbelieved and casually thrown away. Their evidence is not shaken during their cross-examinations either. 11. It is the plea of the appellant that there was no thumb impression of Champa on her dying declaration Exhibit-4 and as such the same cannot be relied on. But, there is enough medical evidence that she sustained 90% burn injuries on her body and Dr. Dhrubajyoti Hazarika has specifically deposed that he could not collect her thumb impression as her thumb was burnt and hence, this plea is completely ruled out. 12. To thwart the credibility of both the dying declarations, appellant had taken a plea that Champa was unconscious for three days after the occurrence and he was all along with her. We find this plea also to be not sustainable. Appellant has not proved his presence in hospital throughout those three days as claimed and not a single witness has deposed that he saw appellant with Champa in the hospital. Not a single witness has also deposed that she was unconscious for three days and rather it is the evidence of Sri Shyam Babu Singha, Dr. Dhrubajyoti Hazarika and Dr. Rupali Brahmo that they had recorded her statements Exhibits - 4 and 7 on 02.09.2010 and 03.09.2010 respectively. There is thus ample evidence to show that she was conscious and was in her senses and was capable of giving statements. Therefore, we are of the considered view that both the dying declarations are reliable and can form the basis for conviction of appellant. 13. Besides, appellant advanced false and misleading explanation to the effect that Champa got burnt while cooking, which is an additional circumstance against him. As such, we are of the considered view that appellant alone was the perpetrator of crime. 14. Now, the question is under what offence, appellant is to be held guilty. It is Champas own statement that she had a quarrel with appellant and so, he burnt her out of rage by pouring kerosene. As such, we are of the considered view that appellant alone was the perpetrator of crime. 14. Now, the question is under what offence, appellant is to be held guilty. It is Champas own statement that she had a quarrel with appellant and so, he burnt her out of rage by pouring kerosene. Champa in her statement given to the police Exhibit-7 has stated that she rebuked appellant as he came home late for which they quarreled but earlier she had no quarrels with appellant except for some minor family disputes. At the same time, she also stated that he carried her to his mothers house, after dousing the fire and thereafter, he took her to the hospital, too. There is evidence that the house of mother of the appellant is situated about k.m. away and appellant carried her such a distance to save her. Not only this, he arranged for an ambulance and took her to hospital, too. Although, Champa in her subsequent dying declaration Exhibit-4 made before Dr. Dhrubajyoti Hazarika omitted to say that appellant doused the fire, but this minor discrepancy should be ignored and her dying declaration made before Shyam Babu Singha may be given preference as it is the golden rule of criminal jurisprudence that when there are more than one version to the prosecution case, then the version which is favourable to the accused should be adopted. The conduct of appellant dousing the fire and taking Champa to his mothers house in his lap as well as taking her to hospital by arranging an ambulance, cannot be ignored from the totality of the circumstances. The same would clearly show that appellant did not have any intention to commit murder of Champa, though he had knowledge that the act committed by him could have caused her death. He did not think that the incident would be blown up so disproportionately going out of his control and when he saw her burning, he doused the fire and tried to save her, but it was too late. Thus, we are of the considered view that the trial court committed error in holding appellant guilty under Section 302 of the Indian Penal Code and punishing him under that provision of law. 15. In Kalu Ram Vs. Thus, we are of the considered view that the trial court committed error in holding appellant guilty under Section 302 of the Indian Penal Code and punishing him under that provision of law. 15. In Kalu Ram Vs. State of Rajasthan (supra), when appellant poured kerosene on his wife and gave her a match stick to burn herself out of rage upon a quarrel and on her failure to lit the match stick, lit it himself and burnt her, Supreme Court held that appellant was guilty for committing an offence under Section 304-II of the Indian Penal Code, as there was evidence that he doused the fire by pouring water and tried to save her. The learned counsel for the appellant has also submitted that the appellant is liable to be held guilty under Section 304-II and not under Section 302 of the Indian Penal Code. From facts and circumstances of the instant case, we hold appellant guilty under Section 304-II of the Indian Penal Code and alter the conviction accordingly. We impose a sentence of rigorous imprisonment of 7 (seven) years on him keeping quantum of fine intact as awarded by the trial court. We, accordingly, modify the conviction and sentence of the trial court as indicated herein above. 16. The appeal is partly allowed as indicated above.