Anil Das vs State Of Assam And Ors

Ajit Singh, C.J

This appeal has been filed by the informant Sri Anil Das challenging the judgement of the trial court acquitting the accused persons, namely,

Prafulla Das, Ashim Jyoti Hira and Moran Bora. The accused persons were charged for an offence under Section 302/34 of the Indian Penal Code

for committing murder of son Nitumoni Das of the informant.

According to the prosecution case, Nitumoni Das was a student of first year of threeyears’ degree course in Dimoria College. He used to

reside in a rented house. Prafulla Das was a friend of Nitumoni Das and he used to reside in a rented room belonging to Banshidhar Kakoti (PW-7).

Ashim Jyoti Hira and Moran Bora as other tenants of Banshidhar Kakoti resided in another room, whereas Pallav Jyoti Nath (PW-3) and Chandra

Gowala (PW-9) resided in yet an another room on rent. On 7/9/2009, at about 4:30 PM, Prafulla Das informed the appellant over telephone that

Nitumoni Das has suffered some burn injuries and he was taken to the Gauhati Medical Colleges and Hospital. On getting the news, the appellant

along with his wife and brother â€"Pradip Das (PW-2)-went to the hospital and found Nitumoni Das in a burnt condition. His whole body was

bandaged except his eyes. On being asked as to how he got to the burn injuries, Nitumoni Das stated before them that there was a quarrel between

him and Prafulla Das over the issue of a T-Shirt and Prafulla Das took him to his house in furtherance of a previously hatched plan and set fire on him

after dousing kerosene oil.

In the meantime, Jagadish Khataniar (PW-8), who was then working in theBhangagarh Police Station, as per verbal instructions of the Officer-in-

Charge of that Police Station, recorded the dying declaration Exhibit 13 of Nitumoni Das.

As the condition of Nitumoni Das further deteriorated, he was shifted to Dispur Hospital, but he breathed his last at about 11 PM on that day itself.

The appellant then lodged Exhibit-1 First Information Report before Khetri Police Out-Post on 8/9/2009. Sub-Inspector Phatik Saikia (PW-12) first

conducted inquest over the dead body and then referred it for post-mortem examination. He also visited the place of occurrence and drew sketch map

Exhibit- 16. He seized a bottle containing little kerosene oil and some burnt clothes vide Exhibit-3. He also seized some empty bottles of whiskey and

glasses vide Exhibit-5 and recorded the statements of witnesses. He then forwarded Pranjal Sharma (PW-4), Pallav Jyoti Nath, Chandra Gowala,

Pradip Das and the appellant for recording of their statements under Section 164 of the Code of Criminal Procedure. Nasim Akhtar (PW-14), Judicial

Magistrate, 1st Class, Guwahati, recorded the statements of Pranjal Sharma and Nityananda Talukdar (PW-15), another Judicial Magistrate, 1st Class,

Guwahati, recorded the statements of Pallav Jyoti Nath and Chandra Gowala. Judicial Magistrate, Guwahati Subhabrata Dutta (PW-16) recorded

statements of the appellant and Anil Das. Prafulla Das and Ashim Jyoti Hira were arrested whereas Moram Bora absconded.

Dr.Dipak Kumar Das (PW-6) conducted the post mortem examination on the deadbody of Nitumoni Das and found 90-95% burn injuries over his

body, with the smell of kerosene oil. According to the opinion of doctor, the death was caused due to shock resulting from anti-mortem flame burn

injuries. Phatik Saikia collected the post-mortem report and on completion of investigation, filed charge sheet exhibit-17 against all the accused

respondents for an offence under Section 302/34 of Indian Penal Code.

During trial, the respondents abjured their guilt and pleaded false implication. The trialcourt disbelieving the prosecution case as well as the dying

declarations made by Nitumoni Das, acquitted all the respondents as aforesaid.

The learned counsel on behalf of the appellant has submitted that the trial courtcommitted an error in not relying on the oral as well as the written

dying declaration made by Nitumoni Das and as such, the finding of acquittal is liable to be interfered with. The public prosecutor however, supported

the impugned judgement and submitted that it is not liable to be interfered with.

After hearing the learned counsel for the parties and perusing the records, we find thatthe finding of the trial court acquitting the respondents is

correct and as such not liable to be interfered with. According to the prosecution case, Nitumoni Das made two the dying declarations. Firstly, an oral

dying declaration before the appellant and his two uncles Pradip Das and Pranjal Sarmah and secondly, before Jagadish Khataniar, which was

reduced into writing. Both these dying declarations were admittedly made in the Guwahati Medical College and Hospital. The appellant-Anil Das-

deposed that when informed by Prafulla Das about the occurrence, he came to the hospital where Nitumoni Das made an oral dying declaration

before him that Prafulla Das and 2/3 others on one side, and Nitumoni Das on the other side, had a quarrel over the T-shirt and Prafulla Das poured

kerosene oil on him and set fire by means of a match stick. During his cross-examination, he admitted that he reached the hospital at about 6:45 PM

and he found the whole body of Nitumoni Das being covered with bandage except his face. According to him, Nitumoni Das was in a condition to

speak.

Pradip Das has deposed that on being informed by the appellant, he along with theappellant and wife of the appellant went to the hospital and

Nitumoni Das made the dying declaration in his presence and the police also recorded his statement. During his crossexamination, he admitted that

entire body of Nitumoni Das was covered by bandage except his eyes and the dying declaration recorded by the police was not read over to them. He

also admitted that the parents of Nitumoni Das, Pranjal Sharma, doctor and nurses were present while the said statement was read over. On the other

hand, Pranjal Sharma deposed that he reached that hospital at about 6 PM and when he enquired from Nitumoni Das as to how he got burnt, he told

him that Prafulla Das set fire on Nitumoni Das by pouring kerosene oil and then igniting by means of a matchbox for a T-shirt. He called the police,

doctor and nurses for recording the dying declaration of Nitumoni Das and police recorded his dying declaration in his presence where he put his

signature as witness.

The evidence of Pranjal Sharma is out and out false and fabricated. Neither theappellant nor Pradip Das deposed that Pranjal Sharma was present

with them when Nitumoni Das made the dying declaration. Besides, according to Pranjal Sharma, he called the police for recording the dying

declaration which is not supported by Jagadish Khataniar. Jagadish Khataniar has deposed that he recorded the dying declaration as per verbal

instruction of the officer-in-charge of the Bhangagarh Police Station and as such question of calling police by Pranjal Sharma does not arise. Again,

the statement of Pranjal Sharma that he put his signature on the dying declaration is also out and out false. In fact, in the written dying declaration the

names of Nitumoni Das, Tutumoni Gogoi and Pradip Das were mentioned without their signatures. Therefore, it can be easily said that Pranjal Sharma

was neither present at the time of recording the written dying declaration nor any dying declaration was ever made before him and as such, his

testimony is not trustworthy and reliable.

Again, the appellant and Pradip Das gave different versions regarding the dyingdeclaration in the court as well as in their statements made under

Section 164 of the Code of Criminal Procedure. The appellant in his statement under Section 164 of the Code of Criminal Procedure stated that

Nitumoni Das had disclosed before him, Pradip Das and Pranjal Sharma that Prafulla Das poured kerosene oil on him and set him on fire following a

quarrel over a Tshirt. But, during his testimony in the court, he deposed that Nitumoni Das told him that there was a quarrel between him, on one side,

and Prafulla Das and 2/3 other persons, on another side, when Prafulla Das poured kerosene oil on him and set fire with a match stick inside the room

of Prafulla Das. Both these versions are materially different in as much as the appellant did not state before magistrate during his statement made

under Section 164 of the Code of the Criminal Procedure that a quarrel took place between Nitumoni Das and 2/3 other persons when Prafulla Das

set fire on him by pouring kerosene oil inside his room.

Similarly, Pradip Das during his statement made under Section 164 of the Code ofCriminal Procedure stated that on coming to know about the

occurrence when he reached the hospital at about 7:30 PM, Nitumoni Das stated before him that his friend poured kerosene oil on him and set fire on

quarrel over a T-shirt in a rented house where he was a tenant. His version is also completely different from that made in the court. If he

accompanied the appellant, he could not have reached the hospital about 1½ hour late than the appellant as the appellant reached the hospital at

about 6 PM and it is the testimony of both Pradip Das and the appellant that both of them went together to the hospital. Again, the appellant had

deposed that Nitumoni Das made the dying declaration before all the three persons i.e. the appellant, Pradip Das and Pranjal Sharma at the same

time. So, the question of different versions of the dying declaration would not arise at all, that too, with striking dissimilarities.

Besides, Pranjal Sharma has given a completely different version of the dyingdeclaration in the court. During his statement made under Section

164 of the Code of Criminal Procedure he stated that when he came to the hospital on being called by the appellant, he found the appellant and Pradip

Das. Nitumoni Das, on being asked, told him that Prafulla Das and some others were scuffling over a T-shirt in order to wear it whereupon Nitumoni

Das had said that he would burn it. Then Prafulla Das told him “you want to burn the sporting! Now I will burn you.†Saying so, he poured

kerosene oil on Nitumoni Das and set him ablaze. This version of Pranjal Sharma is apparently different from the versions of the appellant and Pradip

Das. A person with 90-95% burn injuries struggling with death cannot, by any means, be expected or believed to have made three different dying

declarations at the same time especially when all of them were together while making that dying declaration. Therefore, it is highly unbelievable that

Nitumoni Das made any oral dying declaration before them and it is highly unsafe to convict on the basis of such inconsistent versions of oral dying

declaration.

So far the written dying declaration is concerned the same was recorded by JagadishKhataniar, who was posted in Bhangagarh Police Station.

The same was recorded prior to lodging of the first information report and he admitted in his cross-examination that the officer-in-charge of the police

station verbally instructed him to record the same. But, the prosecution did not prove any General Diary Entry to show that he was so instructed. He

had no occasion to visit the hospital and record the dying declaration as no first information report was lodged in Bhangagarh Police Station and he

was not the investigating officer. He admitted that he did not find any doctor and only met two nurses in the hospital and though he wrote the names

of the witnesses, none agreed to put their signatures. This testimony is highly unbelievable. One name was that of Nitumoni Das shown as a nurse and

another was of Tutumoni Gogoi (PW-13), another nurse. But, Tutumoni Gogoi deposed that on the date of occurrence while she was on duty in

male surgical ward, one police personnel came and enquired her name as well as the name of Nitumoni Das. But, she did not know what he wrote

and she also did not sign on it. During her cross-examination, she deposed that she did not see any doctor with the police personnel and she neither

knew what statement the patient gave to him nor on what reference the police personnel came to the hospital. In the written dying declaration too,

there is no mention of the bed number, patient number etc. to connect the same to Nitumoni Das and the same is also not supported by any medical

certificate certifying that Nitumoni Das was fit to make dying declaration. The testimony of Jagadish Khataniar that the witnesses did not sign on the

dying declaration is further not believable as another witness Pradip Das being uncle of Nitumoni das, would have no occasion at all to deny. Again,

Pranjal Sharma’s claim that he signed that document is totally false as his name did not figure there at all as a witness and thus his testimony

trying to support the version of Jagadish Khataniar leaves an impression of foul play. Further, the investigating officer Phatik Saikia had also admitted

during his cross-examination that he did not visit the hospital and he visited the hospital on 18.09.2009 to collect the dying declaration and to enquire as

to whether any dying declaration was recorded. Had the dying declaration been recorded, Phatik Saikia would not have gone to the hospital to enquire

about recording of the same and he had not made the slightest whisper that either he or any other appropriate authority instructed Jagadish Khataniar

to record the dying declaration of Nitumoni Das. So, there is serious doubt regarding recording of the dying declaration of Nitumoni Das as well as its

veracity. Therefore, in our considered view the prosecution miserably failed to prove both the oral as well as written dying declaration beyond

reasonable doubt.

Pallav Jyoti Nath and Chandra Gowala were tenants of Banshidhar Kakoti. Theydeposed that they saw Nitumoni Das burning outside the room of

Prafulla Das. They did not make any whisper as to who set fire on him or how he got ablaze. Therefore, neither Prafulla Das nor the other two

accused were also expected to explain as to how Nitumoni Das got burnt. Prafulla Baishya (PW-5), Banshidhar Kakati, Niru Sharma (PW-10) and

Dwipen Chandra Das (PW-11) did not have any knowledge as to how Nitumoni Das got burnt and as such, we have no hesitation but to hold that the

trial court has rightly acquitted the respondents holding them not guilty of the charges and we concur with the finding of the trial court.Â

We find no merit in the appeal and accordingly, the appeal is dismissed.