Anil Kanda vs State Of Assam And Anr

M. R. Pathak, J

This appeal from jail by the accused appellant Sri Anil Kanda, is against the judgment & order of conviction and sentence, dated 02.03.2017, passed by learned Sessions Judge, Tinsukia, in Sessions Case No. 37(T) of 2016, whereby he has been convicted under Section 302 of the IPC for committing murder of his wife Kunti Gowala and sentenced to undergo Rigorous Imprisonment for life with fine of Rs. 1,000/-, in default of payment of the same, Rigorous Imprisonment for 6 (six) months.

Heard Ms. Ankita Das, learned amicus curiae appearing for the accused appellant and Ms. Shamima Jahan, learned Additional Public Prosecutor, Assam, for the State respondent.

The case was set in motion when the informant Sri Somraj Gowala (PW.4) on 14.11.2015 submitted a written ejahar before the Officer-in-charge of Phillobari Police Station, District-Tinsukia, stating that, on the night of 13.11.2015 at around 09:00 PM, one Sri Anil Kanda, son of Sri Dukhia Kanda, serving in the Tea Estate of Sri Gautam Yadav of Gauripur Village, burnt his (informant's) daughter Smti. Kunti Gowala by pouring kerosene on her body and fled away from the place of occurrence by bolting the door from outside. Because of such fire on her she cried for help and after hearing it neighbours came to the place of occurrence and brought her out and because of the said fire incident, her body was badly burnt. On being informed, he came to the place of occurrence, took his daughter for medical treatment and she was admitted in the Assam Medical College & Hospital at Dibrugarh, where he came to know that his daughter was three months pregnant. As the accused appellant tried to burn and kill his daughter, the informant initially lodged the ejahar to take necessary action against the accused appellant and his said ejahar (Exhibit-3) was registered as G.D.Entry No. 251 dated 14.11.2015 at Phillobari Police Station and thereafter, it was registered as Phillobari Police Station Case No. 52/2015 under Sections 326/307 of the Indian penal Code against the accused appellant.

The Investigating Officer of the case, on receiving said information, visited the place of occurrence, recorded the statements of the witnesses under Section 161 of the Cr.P.C., who were acquainted with the facts of the case, seized the burnt piece of green coloured blouse of the victim and a quilt with burnt in the middle portion that was used by Sri Ajay Mura (PW.8), made seizure list (Exhibit-2) in presence of witnesses, namely, Sri Uttam Yadav (PW.2), Sri Rajesh Yadav (PwW.11) and Sri Suresh Yadav (PW.13), identified by said Sri Ajay Mura (PW.8), drawn the sketch map of the place of occurrence (Exhibit-4), sent a W.T. Message on 15.11.2015 to the in-charge of Borbari Police Out-Post through the Officer-in-Charge of Dibrugarh Police Station so as to make the necessary arrangement to record the dying declaration of the victim, who was undergoing treatment at Assam Medical & College Hospital, Dibrugarh. As the victim died on 18.11.2015 and the authorities of Borbari Police Out-Post forwarded the dead body of the victim Smti. Kunti Gowala for post-mortem examination, collected the said post-mortem examination report, arrested the accused appellant from Arunachal Pradesh on 30.11.2015, and on the death of the victim, by obtaining an order from the learned Magistrate, added Section 302 of the IPC and on completion of the investigation, finding prima facie evidence against the accused appellant regarding his involvement in the case, submitted the charge-sheet vide Charge-Sheet No. 39/2015 on 31.12.2015 against the accused appellant under Sections 326/307 IPC with added Section 302 IPC (Exhibit-5).

As the offence under Sections 307 and 302 IPC are exclusively triable by the Court of Sessions, the Court of the learned Judicial Magistrate First Class, Tinsukia, on 29.02.2016, committed the case to the Court of learned Sessions Judge, Tinsukia, wherein, it was registered and numbered as Sessions Case No. 37(T) of 2016. The learned Sessions Judge, Tinsukia, on 28.03.2016, framed the charge of Section 302 IPC against the accused for intentionally causing murder of his wife Smti. Kunti Gowala, and it was read over to him, to which the accused pleaded not guilty and claimed to be tried. Accordingly, the trial of the case proceeded.

To prove the guilt of the accused, prosecution examined as many as 14 (fourteen) witnesses, including the Autopsy Doctor, who conducted the post-mortem examination of the deceased, the concerned Investigating Officer of the case as well as the informant and neighbours of the deceased, who were present in the place of occurrence at the relevant time. After completion of recording of evidence of the prosecution witnesses, the learned Trial Judge, on 09.01.2017, recorded the statement of the accused appellant under Section 313 Cr.P.C., and enquired whether the accused would adduce any evidence to which the accused appellant replied in negative and pleaded that he is innocent and has been falsely implicated in the case. However, the defence cross-examined all the prosecution witnesses.

Ms. Das, learned Amicus Curiae, has submitted that the conviction of the accused appellant is solely on the basis of oral dying declaration of the victim before some of the witnesses. She stated that though the victim survived for about 5 (five) days from 13.11.2015 upto 18.11.2015, the prosecution did not record any dying declaration of the victim through a Magistrate as required or any Doctor of the Hospital, wherein the victim was undergoing medical treatment for her burn injuries.

Ms. Das, learned Amicus Curiae, also placed before the Court that the post-mortem examination report of the deceased (Exhibit-1) reflects that excepting her head and neck, both hands and both feet, the other parts of the body had burn injuries, covering about 80 % of total body surface area and as such, while she was in the condition to speak, the prosecution should have recorded her dying declaration as prescribed and in not doing so, the accused appellant cannot be convicted under Section 302 IPC that too solely on the basis of the oral dying declaration of the victim before some of the prosecution witnesses.

She also stated that the informant (PW.4) in his ejahar (Exhibit-1), did not state anything about the victim's oral dying declaration made before some other prosecution witnesses. As such, she submitted that the impugned judgment of conviction and sentence, dated 02.03.2017, on the basis of such oral dying declaration of the victim, not being in conformity with the provisions of Section 32 of the Indian Evidence Act, is bad in law, and therefore, the prosecution failed to prove the guilt of the accused appellant beyond all reasonable doubt. As such, it was submitted that the accused appellant should be acquitted forthwith.

Ms. Das, learned Amicus Curiae, in support of her contention, placed reliance on the decision rendered by a Division Bench of this Court in the case of Samalendu Dev & Others Vs. State of Assam, reported in 2017(2) GLT 1112 and the decision rendered by the Apex Court in the case of State of U.P. Vs. Wasif Haider reported in (2019) 2 SCC 303.

On the other hand, Ms. Jahan, learned Addl. Public Prosecutor, Assam, submitted that the prosecution by adducing independent witnesses as well as the Investigating Officer of the case, proved the guilt of the accused beyond all reasonable doubt and therefore, the impugned judgement & order of conviction, does not call for any interference.

To consider the case in hand and the contention of both the parties, let us briefly examine the evidence of the prosecution witnesses.

PW.1, Dr. Saurab Jyoti Gogoi, is the Autopsy Doctor, who conducted the post-mortem examination of the deceased on 19.11.2015 in connection with Borbari Out-Post G.D.E. No. 551, dated 19.11.2015. In his examination-in-chief, said PW.1 stated that he found burn injuries, both epidermal and dermo-epidermal varying from 1st to 4th degree and those injuries were congested and where a line of redness was found present between burnt and healthy areas. He stated that the burn injuries were ante-mortem and covers approximately 80% of total body surface area of the deceased. He also stated that the deceased had burn injuries all over on her person excepting her head and neck, both hands and feet. The said PW.1 also stated that the death of the deceased was due to shock following the burn injuries which were ante-mortem in nature covering approximately 90 % of her total body surface area and that the time of death of the deceased is about 24 to 36 hours. He also proved the post-mortem examination report of the deceased (Exhibit-1) and his signature in it [Exhibit-1(1)]. The defence declined to cross-examine the said Autopsy Doctor (PW.1).

PW.2, Sri Uttam Yadav, brother of Gautam Yadav (PW.9) (the landlord in whose house, the incident occurred on the fateful night) in his evidence deposed that on the date of the incident, his brother Gautam Yadav came to home at about 09:00 PM and told him that the accused who was working in his garden, burnt his wife and then he went to the quarter where the accused used to reside and saw the victim Smti. Kunti Gowala in a neighbouring quarter of one Sri Ajay Mura (PW.8) and that he did not find the accused. He also deposed that the victim was in a position to speak. He deposed that on seeing her in burnt condition, when he asked her as to what had happened, she replied that on a petty matter, the accused appellant gave her four fist blows and then poured kerosene on her body and then burnt her. Said PW.2 also deposed that when the victim Kunti Gowala was making her statement to him, Sri Ajay Mura (PW.8) and brother said PW.2, Gautam Yadav (PW-9) alongwith him were present and thereafter, he informed Dipak Koiri (PW.3), who in turn, informed the matter to the mother of the victim. PW.2 further deposed that they brought the injured to Tinsukia in a van and from Tinsukia, the victim was shifted in an ambulance to the Assam Medical & College Hospital at Dibrugarh, where she died 2 to 3 days later. It was stated by said PW.2 that almost a week after the incident, the accused was apprehended from Arunachal Pradesh. He also proved the seizure list (Exhibit-2) regarding the seizure of the quilt and some burnt apparels.

During his cross-examination by the defence, said PW.2 stated that his house is about 100 meters away from the house of his brother Gautam Yadav (PW.9) and that he did not enter the house of Sri Ajay Mura (PW.8) where the victim Smti. Kunti Gowala was kept and he was standing outside the house of the said Sri Ajay Mura (PW.8).

PW.3, Sri Dipak Koiri, in his examination-in-chief, deposed that on 13.11.2015 he received the information about the incident at around 09:00 PM from Uttam Yadav (PW.2) and over phone, he contacted one Sri Papu Koiri at Rumai Gabharu Gaon and informed him that a lady of his village, married to a labour of their village, was burnt and he requested said Koiri as to whether he can locate her family members to intimate about the said incident and then, he went to the camp of Gautam Yadav (PW.9) which was about a kilometre away from his house. He too deposed that the victim was made to sit in an adjacent room near to her room and found Uttam Yadav (PW.2) asking and enquiring her as to how the incident occurred to which the victim replied that her husband had given fist blows to her at first and then poured kerosene on her and burnt her. Said PW.3 deposed that sister of the deceased and Papu Koiri reached the place of occurrence and then the victim was taken to the Assam Medical & College Hospital at Dibrugarh and that he accompanied them.

During his cross-examination by the defence, he stated that Uttam Yadav (PW.2) asked the victim from the doorstep of the place of occurrence and at that time, Ram Tapeswar Yadav, Gautam Yadav (PW-9), Santosh Yadav and he himself were present with some other persons.

PW.4, Somraj Gowala, informant of the case and father of the victim, deposed that at the time of incident, his daughter Smti. Kunti Gowala was in the house of the accused appellant as his wife and residing in the quarter of one Sri Gautam Yadav (PW.9). He also deposed that one Papu Koiri, Ward Member of their village, came to him at about 10:00 PM in the night and informed him that the accused appellant poured kerosene on his daughter and burnt her and after committing the crime, he fled away. He also deposed that another daughter, Jyoti Gowala and Papu Koiri went to Gauripur to see his daughter Smti. Kunti Gowala. He stated that he went to the Hospital two days after the incident to meet the victim Smti. Kunti Gowala and on being asked, she stated before him that her husband gave her fist blows and then tied her hands and feet and closed her eyes with cloth and then poured kerosene upon her and then burnt her and fled away. He stated that his daughter, Smti. Kunti Gowala died and he informed the same to the police. He also proved his ejahar (Exhibit-3).

During his cross-examination by the defence, he stated that the incident took place on 18th of the March of that year and he lodged the ejahar on the same date of the incident.

PW.5, Smt. Sibani Mura, wife of Sri Ajay Mura (PW.8) deposed that around 07:00 PM, on the date of the incident, on hearing sound, when woke up, they saw fire in the house of the accused Anil Kunda, who is their neighbour and on hearing sound, when she came out, she saw fire on the body of the deceased Smti. Kunti Gowala and seeing that, her husband Sri Ajay Mura (PW.8) came out with a quilt and covered the body of the deceased Smti. Kunti Gowala with the said quilt and at that moment of the incident, the accused was present in his house. After that, the landlord Gautam Yadav brought some haystacks and put it on the body of the victim to douse the fire and thereafter, the victim asked for a glass of water that was given to her by Sri Ajay Mura (PW-8), husband of said witness. Said PW.5 also deposed that when she asked the victim, she told her that it was her husband who set her body on fire and then absconded and at that time, when victim told her about the incident, said Sri Ajay Mura (PW.8), Gautam Yadav (PW.9), his wife Sabita Yadav (PW.6) and some others were present.

In her cross-examination by the defence, she denied the suggestion that she did not state before the police that at the time of the occurrence, the accused appellant was present at his home.

PW.6, Sabita Yadav, wife of Gautam Yadav (PW.9), deposed that on the day of the incident, while she was watching TV in her house, her tenant PW.5 raised her cry and on hearing her cries, husband of PW.6 came out of their room with some haystacks and put the same on the body of the deceased as she was burning at that time. She also deposed that she followed her husband and found the victim Smti. Kunti Gowala lying on the courtyard with burnt injuries on her person and on being asked by Sri Ajay Mura (PW.8), she gave water on the mouth of the victim. The said PW.6 further deposed that on the date of the incident, the accused was in their tenanted premises along with his wife, the victim Smti. Kunti Gowala and that though they searched for the accused he was not found in the room and that later, Smti. Kunti Gowala was taken to the hospital.

During her cross-examination by the defence, she denied the suggestion that she did not state before the police that the accused appellant, Anil Kanda was at home at the time of the incident and that the victim had burn injuries on her body.

PW.7, Ramashray Yadav, deposed that on the date of the incident, at around 09:00 PM on hearing hue and cry in the camp house, he went there and came to know from the wife of the accused that she was set on fire by the accused, who fled away from that place. He also deposed that he noticed that the whole body of the deceased was on fire and she was crying for water. He further deposed that Sri Ajay Mura (PW.8) and Gautam Yadav (PW.9) were present when he reached the place of occurrence.

During his cross-examination, he denied the suggestion that the victim did not tell that she was set on fire by the accused appellant and that the accused did not fled away from the place of occurrence.

PW.8, Sri Ajay Mura, deposed that on the date of the incident, at around 09:00 PM, while he alongwith his wife Smti Shivani Mura (PW.5) was sleeping after taking their meal, he suddenly saw ablaze of fire and on coming out from the room, he saw that Smti. Kunti Gowala was burning and was shouting to save her life. Having seen her body on fire, he brought a quilt from the room and covered her body and asked his wife Smti Shivani Mura (PW.5) to call the owner of the house, Sri Gautam Yadav (PW.9) and then, they doused the fire with the help of haystacks. He also deposed that the victim was asking for water and they offered her water and on being asked, the victim Smti. Kunti Gowala stated that her husband set fire on her body after pouring kerosene and had fled away. He further deposed that the victim was taken to the Assam Medical College & Hospital (AMCH) at Dibrugarh and that PW.9 and another person accompanied her to the hospital, but after five days in hospital, she succumbed to her injuries.

During his cross-examination by the defence, the said witness stated that many people gathered at the place of occurrence out of which, he knew the owner of the house.

PW.9, Sri Gautam Yadav, in whose house, both the accused and the victim used to reside, deposed that on the date of the occurrence while he was enjoying T.V. with his wife, at that time, Smti Shivani Mura (PW.5) shouted from outside and told him that the accused set fire on his wife and asked him to come out an then he immediately went there and found that the victim was burning and with the help of haystacks, he could douse the fire from her body. He further deposed that the victim Smti. Kunti Gowala was shouting and asking for water and she told that it was her husband, who set fire on her body and fled away and then, the victim was shifted to Assam Medical & College Hospital at Dibrugarh where she succumbed to her injuries.

During his cross-examination by the defence, PW.9 denied the suggestion that the victim did not tell him that her husband had set fire on her body and fled away as she was not in a position to speak.

PW.10, Sri Bibash Yadav, deposed that when he returned to his house at around 09:00 PM from his duty, he heard cries from the house of the accused and when he went there he saw that the deceased Smti. Kunti Gowala was crying for water and one Gautam Yadav provided her water and the victim was in burnt condition. He further deposed that from the people gathered therein, he came to know that the victim was burnt by the accused. At this stage, PW.10 was declared hostile.

During his cross examination by the prosecution, PW.10 stated that it is not a fact that he did not state before the police that the deceased had spelt that she was burnt by the accused.

In the cross-examination by the defence, said PW.10 stated that when the deceased was crying for water Gautam Yadav (PW.9), Uttam Yadav (PW.2), Joshep Kharia (PW.12), Rajesh Yadav (PW.11), Dibakar Koiri (PW.3), Shivani Mura (PW.5), Sabita Yadav (PW.6), Rameshray Yadav (PW.7) and his father and he himself were present in the house of the accused.

PW.11, Sri Rajesh Yadav, is a seizure witness who proved the seizure list (Exhibit-2) and his signature therein. During his cross-examination by the defence, he stated that he could learn about the incident from one Gautam Yadav (PW.9).

PW.12, Sri Joshep Kharia, is another seizure witness and a hearsay witness to the incident. He deposed that on hearing about the incident from Gautam Yadav (PW.9), he went to the place of occurrence and saw that the deceased was crying for water and he advised PW.9 to shift the injured immediately to the hospital. Accordingly, the injured was admitted to the AMCH, Dibrugarh and on the next day, he came to know that the victim had died.

PW.13, Sri Suresh Prasad, is another seizure witness, who deposed that on the next day of the incident, police came to the house of Gautam Yadav (PW.9) wherein the accused and the deceased were residing. He proved the seizure list (Exhibit.2) and his signature therein.

During his cross-examination, said PW.13 stated that he put the signature in the seizure list (Exhibit.2) in the place of occurrence.

PW.14, Sri Padmeswar Borkotoky, is the Sub-Inspector of Police, who is the Investigating Officer in the case stated that upon receipt of the ejahar (Exhibit-3), the Officer-in-Charge of Phillobari Police Station registered Phillobari P.S. Case No. 52/2015 and he was entrusted with the investigate the case. He deposed that on receipt of information, he went to the place of occurrence i.e. the house of Gautam Yadav (PW.9) where the accused and the deceased used to reside. He also deposed that he had drawn the sketch map of the place of occurrence, Exhibit.4 with his signature in it. He further deposed that on 15.11.2015, he sent a W.T. Message to Borbari Police Out-Post requesting its in-charge to record the dying declaration of the victim and pursuant to the said information, the in-charge of Borbari Police Out-Post informed him to inform the family members about the critical condition of the victim in the hospital. He also stated that the in-charge of Borbari Police Out-Post, conducted the inquest as well as post-mortem report of the deceased. He deposed that he could arrest the accused on 30.11.2015 from Nagphan village in the Tirap District of Arunachal Pradesh and then forwarded the accused to the court.

Said I.O., PW.14 further deposed that the statement of one witness Bibash Yadav was recorded and that the said witness stated before him that the deceased intimated him that she was burnt by the accused. Though the said witness Bibash Yadav was not examined by the prosecution as its witness, but his statement under Section 161 Cr.P.C. (Exhibit-6) was placed before the Court.

During his cross-examination by the defence, PW.14 stated that he did not record the statement of the In-Charge of Borbari Police Out-Post, but stated that he instructed the In-Charge of Borbari Police Out-Post to record the dying declaration of the injured victim, but he could not state whether the victim was in a position to speak or not, but the In-Charge of Borbari Police Out-Post did not intimate him about the recording of dying declaration of the victim. He also stated that on receipt of the information on 14.11.2015 he went to the place of occurrence at 12:45 PM and found that the accused and the victim use to reside in the place of occurrence i.e., in the house of Gautam Yadav (PW.9) having some partition.

In his statement under Section 313 of the Cr.P.C., when the learned Trial Court specifically asked the accused that the witnesses namely Shivani Mura (PW.5), Sabita Yadav (PW.6), Rameshray Yadav (PW.7), Ajay Mura (PW.8) and Gautam Yadav (PW.9) explicitly stated that it is the accused Anil Kanda poured kerosene on the body of the victim and burnt her and for burnt injuries sustained by her in the said incident, the victim died, the accused simply answered the same to be false without clarifying his answer to those specific questions and also denied to lay any evidence from his side stating that he is innocent and he was falsely implicated in the case.

From the sketch map, Exhibit-4, drawn by PW.14, the Investigating Officer of the case, we have noticed that the left hand side of the place of occurrence is the house of Ajay Mura (PW.8) and the right hand side is the house of Gautam Yadav (PW.9) and the house of accused Anil Kanda is in between the houses of PWs. 8 and 9 and his house was adjacent to the houses of both the said two witnesses, sharing a common wall. We have seen that PW.2, PW.3, PW.5, PW.6, PW.7, PW.8, PW.9, and PW.10 all are independent witnesses, no way related, either, to the accused or, to the deceased. In their statements made before the learned Trial Court, all of them stated that the victim told them that the accused had poured kerosene on her body and set fire on her. From the evidences of all these independent witnesses, it is also revealed that such statement was made by the victim in presence of all of them. PW.10 though declared hostile, but in his cross-examination by the prosecution, he had clearly stated that "it is not a fact that I did not state before the police that the deceased had spelt that she was burnt by the accused".

We have considered Samalendu Dev (supra) as well as Wasif Haider (supra) cited by Amicus Curie Ms. Das regarding dying declaration of victim. We have also noticed that PW.5, immediate neighbour of the accused, in her evidence deposed that at the time of the incident, the accused appellant was in his house. Similarly, PW.6, the other neighbour of the accused, in her evidence stated that on the date of occurrence, the accused was in the tenanted premises alongwith his wife Smti. Kunti Gowala and all these evidences of prosecution witnesses remained intact and could not be demolished by the defence.

From the depositions of PWs. 2, 3, 5, 6, 7, 8 and 9, we have seen the resemblance of their evidences and also about the continuity in their description of the incident, like the witness Ajay Mura (PW.8) saw the blaze of fire coming out from the room of the accused till the victim was taken to the hospital for treatment. We have also found continuity in the evidences of the independent witnesses regarding the oral dying declaration made by the victim Smti. Kunti Gowala that accused Anil Kanda, had poured kerosene on her body and burnt her. The evidence of PW.1, the Autopsy Doctor as well as the Post-mortem report of the deceased (Exhibit-1), clearly reveals that the deceased died due to burn injuries, though the dying declaration of the deceased victim was not recorded by any Magistrate or by any doctor and any other attending staff while she was in Assam Medical & College Hospital at Dibrugarh for treatment or by the Investigating Officer of the case. It is a fact that in his ejahar, informant PW.4 did not mention in this regard, but for that lacuna, the case of the prosecution would not be fatal as all the independent witnesses PWs 2, 3, 5, 6, 7, 8 and 9 supported the case of the prosecution, witnessing the dying declaration of the victim and by adducing evidence, whereas PW.10 the hostile witness also stated that he too heard the oral dying declaration of the victim regarding setting of fire on her person by the accused Anil Kanda. Further PW.5 and PW.6 in their evidence clearly stated about the presence of the accused in his house at the time of occurrence and thereafter, fled away from the place of occurrence/incident. It is also to be noticed that the accused was arrested from Arunachal Pradesh, after 17 days which is far away from the place of occurrence.

From all these evidences led by the prosecution, we are of the view that that prosecution could prove the guilt of the accused beyond all reasonable doubt. For the reasons above, we are of the opinion that the impugned judgment of conviction and sentence dated 02.03.2017, passed by the learned Sessions Judge, Tinsukia, in Sessions Case No. 37(T) of 2016 do not call for any interference.

Accordingly, this appeal stands rejected.

We appreciate the assistance rendered by the learned Amicus Curie Ms. Ankita Das as well as by Ms. Shamima Jahan, learned Additional Public Prosecutor, Assam, in adjudicating this matter. The Gauhati High Court Legal Services Authority, Guwahati is directed to pay a sum of Rs. 7,500/- to Ms. Ankita Das, learned Amicus Curie towards her remuneration.

Registry to return the LCR to the Court of learned Sessions Judge, Tinsukia, along with a copy of this judgment. The Registry shall also forward a copy of this judgment to the Superintendent, District Jail, Tinsukia, forthwith, for onward communication to the accused Anil Kanda.