C.R. Sarma, J.@mdashThis appeal is directed against the judgment and order dated 15.5.2003 passed by the learned Sessions Judge, Golaghat, in Sessions Case No. 71/2002 convicting the accused appellant u/s 302 of the Indian Penal Code (''the Code'') and sentencing the accused appellant, Md. Rongai alias Hasmat Ali to suffer rigorous imprisonment for life, and also pay a fine of Rs. 2,000, in default to undergo regorous imprisonment for another period of two months.
2. We have heard Mr. S.S.S. Rahman, learned Counsel, appearing for the accused appellant and Mr. K.C. Mahanta, learned Public Prosecutor, Assam, for the respondent.
3. The prosecution case reveals that an FIR (Ext. 1) dated 6.11.2000 was lodged by Md. Khalilur Rahman before the Officer-in-Charge of Dergaon Police Station alleging that the informant''s younger sister, Smt. Tagar Begum, who was given in marriage with Md. Hanifuddin @ Kandura about 7 years back was ill-treated by the family members of her husband by picking quarrel with her frequently and that on 5.11.2000, during the absence of her husband; Md. Rongai Ali, elder brother of her husband, and her Mother-in-law, Mustt. Sakhina Begum set her on fire by pouring kerosene, as a result of which she sustained injuries. The victim was taken to Golaghat Civil Hospital for her treatment, wherein she succumbed to her injuries on the next date.
4. On the basis of the FIR (Ext. 1) aforesaid, Golaghat Police Station Case No. 204/2000 under Sections 498A/307/326/34 of the Code was registered against the accused appellant and his mother Mustt. Sakhina Begum. Police launched investigation into the case and on completion of investigation, charge sheet was laid against the accused appellant and Mustt. Sakhina Begum for the offences u/s 302/34 of the Code. The case being one triable exclusively by the Court of Sessions, the learned Sessions Judge, Golaghat on 3.9.2002 framed charge against Md. Rongai Ali and Mustt. Sakhina Begum to which the accused appellant pleaded not guilty and claimed to be tried in accordance with law. In the trial, prosecution examined as many as 7 witnesses including the Medical Officers, who conducted the post-mortem examination on the dead body and recorded the dying declaration; and the investigating officer. The accused appellant was examined u/s 313 of the Criminal Procedure Code and he claimed to be innocent. The accused person examined 2 defence witnesses including the accused appellant himself.
5. At the close of the trial, considering the materials on record and having heard the learned Counsels for both the parties, the learned Sessions Judge by the impugned judgment and order recorded the conviction and the sentence as stated hereinabove against the accused appellant.
6. Mr. Rahman, Learned Counsel appearing for the accused appellant, taking us through the evidence of the witnesses, urged that as the deceased sustained burn injuries on her chest, the allegation of setting fire by the accused appellant cannot be believed and that the deceased might have committed suicide. He further contended that as there was no eye witness and all the prosecution witnesses being the relatives, the evidence of such witnesses cannot be believed to base the conviction. He further submitted that as the other accused i.e., the mother of the accused appellant was acquitted on benefit of doubt, the present accused appellant is also entitled to get the same benefit.
7. Refuting the said contentions of the Learned Counsel for the accused appellant, Mr. K.C. Mahanta, learned Public Prosecutor drawing our attention to the dying declaration (Ext. 3) made by the deceased and recorded by the Medical Officer (PW4) has submitted that the dying declaration, which was duly made by the deceased and recorded by the Medical Officer (PW4) did not suffer from any infirmities and as such the same was sufficient to base the conviction. He further submitted that Md. Khalilur Rahman (PW1) brother of the deceased victim, Musstt. Abida Khatun (PW2) sister of the deceased, in their evidence clearly stated that the deceased made the dying declaration in their presence. The dying declaration was recorded by the Medical Officer after ascertaining that the injured was in a fit state of mind to make the statement. He also submitted that considering the circumstances of the case it was not possible to have any eye witness, but the circumstantial evidence coupled with unimpeachable dying declaration, recorded by the Medical Officer, fully proved the prosecution case against the accused appellant and that there was no infirmity in the impugned judgment and order requiring interference. The learned Public Prosecutor further submitted that there is sufficient material on record to safely believe that the accused appellant set the deceased ablaze by pouring kerosene oil with an intention to murder her, for which the conviction and sentence awarded by the learned Sessions Judge cannot be faulted with and as such the appeal is liable to be dismissed.
8. The arguments put forward by the learned Counsels have been duly considered. To appreciate the evidence on record, it will be proper to have a brief resume of the evidence on record.
9. PW1, Md. Khalilur Rahman, was the brother of the deceased. He stated that at about 7 p.m. he received an information that his sister had caught fire. He immediately rushed to his sister''s house, who was already shifted to Golaghat Civil Hospital. He reached the hospital by 9 p.m. to find that his sister was undergoing treatment for burn injuries. He found his elder sister Mustt. Abida Khatun (PW2) there in the hospital. This witness stated that on being asked his sister (deceased) told that Rongai i.e., the accused appellant had set her ablaze by pouring kerosene oil. Accordingly, this witness lodged the FIR, which he exhibited as Ext. No. 1. He stated that his sister succumbed to her injuries on the next morning at about 9 a.m. He further stated that his deceased sister used to tell him that she had been subjected to torture. This witness was duly cross-examined on behalf of the defence and nothing could be elicited to render his evidence disbelievable.
10. PW2, Mustt. Abeda Khatun, who was the sister of the deceased stated that on being informed by some persons about the occurrence, she went to her sister''s house and found that the injured was being taken in a vehicle to the hospital and she also accompanied her sister, who sustained injuries on her entire body. On being asked by this witness, her deceased sister told her that the accused Rongai and his mother had set fire on her after pouring kerosene oil on her body. She further stated that her deceased sister had made the dying declaration in presence of the doctor in the hospital. In her cross-examination, she denied the suggestion that her sister was not in a position to speak. This witness was duly cross-examined on behalf of the defence and her evidence remained unshaken.
11. Though PW1 and PW2 were relatives being brother and sister, there is nothing on record to find that they had any reason to falsely implicate the appellant. Rather, we find sufficient corroboration in the evidence of P Ws 1 and 2 to believe that the deceased had indicated that the accused appellant had set her on fire by pouring kerosene oil.
12. PW4, Shri Sanjit Phukan stated that while he was working as Medical and Health Officer in the Golaghat Civil Hospital, he examined Smt. Monowara Begum, who was admitted in the hospital with severe burn injuries. After offering preliminary treatment, she was admitted in the Surgical Ward. Exhibiting the dying declaration made by the deceased as Ext. 3, this witness stated, that he recorded the dying declaration made by the deceased. This witness put certain questions to the deceased before recording her statement and proper answers were given by the deceased. In his cross-examination, he stated that the injured was mentally conscious to make the statement. He denied the suggestion that the deceased was not in a position to give any statement. Ext. 3, i.e., the statement of the deceased recorded by the PW4 reveals that he recorded the statement in question and answer form and the deceased had clearly stated that when she was cooking rice in the evening she was set on fire by pouring kerosene by Mr. Rongai i.e. the accused appellant. The Ext. 3 further reveals that the Medical Officer recorded that the patient was mentally conscious at the time of the examination. Nothing could be revealed from the cross-examination of this witness to disbelieve his evidence.
13. PW5, a Staffnurse of the Hospital and PW6, a Dresser of the Golaghat Civil Hospital stated that they alongwith the PW4 had attended the injured and that the PW4, after putting certain questions, recorded the statement of the deceased, who stated that her "borjona" i.e., the appellant had set fire by pouring kerosene. PW5 and PW6 stated that they put their signatures on the dying declaration (Ext. 3) and they exhibited their signatures thereon as Ext. 3(2) and 3(3) respectively. The evidence of the Medical Officer, i.e., PW4, who recorded the dying declaration, that the deceased at the time of making the statement was in a fit and conscious state of mind to make such statement has been corroborated by the PWs. 5 and 6. The defence could not demolish their evidence regarding duly recording of dying declaration.
14. PW3, Dr. Pulin Ch. Phukan on 6.11.2000 conducted the post mortem examination on the dead body. According to the post mortem report the deceased who succumbed to her injuries on the same day (i.e., on 6.11.2000), sustained the following injuries.
1. Extensive burn injuries over the neck, chest, trunk, thigh and lower limbs extending from mouth to the knees more on front side than back with extensive into sub-cutaneous tissue with scarring and peeling of the skin.
2. Both upper limbs show burn sparing the fingers.
3. Hair and lower limbs below the knees have no burn injury.
Extensive deep burn over the chest and trunk as described with congestion of all the viscera resulting in shock and asphyxia.
All injuries are antemortem in nature.
15. This witness opined, that the death of the victim was due to asphyxia as a result of burn injuries sustained by the deceased. He proved the post mortem report as Ext. No. 2. He denied the suggestion, put to him in the cross-examination that, in view of the injuries sustained by the deceased, she was not possible to speak. This witness indicated that the deceased, with the injuries sustained by her, was in a position to speak.
16. The investigating Officer, who deposed as PW No. 7 stated, in his examination in chief, the steps taken by him during the course of investigation. He proved the FIR (Ext. 1), the seizure list (Ext. 4) by which he seized several burnt cloths, one half burnt cloths, some fire woods lying near a clay woven, one aluminium container, one kerosene bottle, one lamp and one half burnt mosquito net. He also exhibited the inquest report as Ext. 5 and the charge sheet submitted by him as Ext. 6. The I.O., was duly cross-examined on behalf of the defence and no contradiction could be proved to negate the evidence of the prosecution witnesses.
17. The accused appellant examined himself as DW1. He stated that, while he was taking tea with Sahadut, Mujibur and the deceased''s son Samil, having heard the cry of the deceased, he rushed to rescue her and immediately sent her to the hospital for treatment.
18. Md. Muzibur Rahman deposed as DW2 stated that, while he was taking tea in the house of the accused appellant, they heard the cry of the deceased that she was caught by fire and accordingly they rushed to the deceased''s house and found that the door was closed from inside by putting a wooden chair removing which they entered the house and found that the deceased was caught by fire. He stated that they doused the fire and sent the deceased to the hospital.
19. The contention of the Learned Counsel for the accused appellant that the deceased could not have sustained injuries on her chest, had she been ablazed by the appellant has been negated by the medical evidence. The Medical evidence reveals that the deceased sustained extensive burn injuries on her body. The evidence on record indicates that the injury was caused by setting fire on the deceased after pouring kerosene oil. In such a situation, it is hardly believable that the victim would not have sustained injuries on chest; rather as revealed by the post mortem report, the deceased sustained injury on her limb, chest and trunk. This contention of the Learned Counsel is bereft of any substance. The other contention of the learned defence counsel, that the conviction cannot be sustained for want of eye witness is also without force in as much as there was the reliable dying declaration. In a catena of decisions it has been settled that the conviction can be based on the basis of dying declaration, if such dying declaration is found to be true and voluntary.
20. On a careful scrutiny of the evidence adduced by the prosecution, we find that there is sufficient material to believe that the deceased had made a dying declaration before the Medical officer, who treated her in the hospital and she succumbed to her injury on the next day. According to the Medical Officers (PW4 and PW3) the injury sustained by the deceased was serious in nature. PW3 clearly stated that there was extensive deep burn injury over the chest and trunk as described with congestion of all the viscera resulting in shock and asphyxia. The evidence on record leads to find that the deceased appellant died on the next date due to the burn injury sustained by her.
21. The evidence of PW1, PW2, PW4, PW5 and PW6, dearly indicate that the deceased had made the dying declaration stating that the accused appellant had caused the injuries by setting fire after pouring kerosene on her body. The DWs. 1 and 2 also supported the prosecution Version that the deceased sustained burn injuries on the alleged date of occurrence. The said evidence coupled with the evidence of PW4 leave no room to doubt that the deceased died due to the burn injuries sustained by her. According to DWs 1 and 2, the accused sustained burn injuries either herself or due to accident. Both DW1 and DW2 stated that at the time of occurrence they were taking tea alongwith one Sahadut and the son of the deceased. Both DW1 and DW2, as stated by them, returned after collecting thatches and the door of the house, where the occurrence took place, was dosed from inside by putting a chair but, the investing Officer failed to find any such chair alleged to be used for blocking the door of the house. That apart, the defence failed to examine the other two witnesses, i.e., Sahadut and the son of the deceased to corroborate their evidence. Therefore, for want of corroboration, the learned Sessions Judge, rightly declined to believe the story put forward by the defence.
22. In the case of
16. Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would 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 should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, 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 mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the 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 without there being the doctor''s opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.
23. The Maxims- "nemo moriturus praesumitur mentire - A man will not meet his Maker with a lie in his mouth" is applicable in this case. The principle governing the dying declaration has been laid down by the Apex Court in the case as
24. In the present case in hand, the Medical Officer (PW4), who recorded the dying declaration was careful enough to ascertain that the deceased was in a fit and conscious position to make the statement, for which as a test he put certain questions to her. The statement (Ext. 3) recorded by the said witness leads to believe without any doubt that the statement was made by the deceased in a conscious and fit state of mind. There is nothing on record to find that the deceased was tutored or that any body had misled her in doing so. As the deceased clearly stated that the accused appellant, who was a member of her family, had set fire on her by pouring kerosene oil, there is nothing to find that she had any difficulty or confusion in identifying the accused appellant. The other two independent witnesses, i.e., PW5 and PW6 corroborated the evidence of PW4 that the dying declaration was made by the deceased in their presence. They have exhibited their signatures on the dying declaration, i.e., Ext. No. 3(2) and 3(3) respectively.
25. The entire circumstances in recording the dying declaration inspire confidence to believe that the same was made voluntarily and that the deceased was in a fit and conscious state of mind to make such dying declaration.
26. The events leading the recording of dying declaration, make a complete chain of circumstances to believe that the accused appellant, with an intention to kill, had set fire on the deceased by pouring Kerosene oil on her body. The seizure of a bottle of kerosene by the investigating officer fortifies the prosecution case.
27. On overall consideration of the entire evidence, we find no infirmity in the impugned judgment and order passed by the learned Sessions Judge. The appeal accordingly stands dismissed.
28. Send down the case record.
