Dipak Sarma vs State of Assam

P.G. Agarwal, J.—The Appellant before as stands convicted u/s 302, IPC, in connection with Sessions Case No. 47(S)/97 (GR. Case No. 494/97) of the Court of Sessions Judge, Sonitpur, Tezpur, for causing the death of his wife Manju Devi and he was sentenced to imprisonment for life and to pay a fine of Rs. 1,000/-, in default, to undergo further imprisonment for three months.

The prosecution case is that the accused Dipak Sarma is the husband of late Manju Devi and on 11.04.97 both of them were in the house and on that day at about 7 P.M. the incident of burn took place wherein Manju Devi sustained around 90% burn injury on her person and she was rushed to Hospital. The wife of the Appellant died at the Hospital. FIR was lodged by her brother alleging that the accused, who used to quarrel with the wife, caused the murder by pouring kerosene oil on the body of his wife and setting her on fire.

P.W. 4 is Dr. S.C. Das who held the autopsy over the dead body and found as follows:

A female dead body of average built aged about 22 years. Rigor mortis was present. Burn injuries both deep and superficial were soon on her person. Coverage of the dead body was approximately 90% due to burn injury.

Reeling of epidermis and dermis of skin with crust formation and blackening in colour. All other organs were found healthy. In my opinion, the death was due to shock as a result of the injuries sustained by burning. The injuries were antemortem in nature.

In my opinion, more than 30% burn injuries are sufficient to cause death.

In this case the death of the deceased as a result of the burn injury is not disputed. The question that comes for consideration is how the deceased sustained the burn injury.

It may be mentioned here that in this case, there is no eye-witness to the occurrence. The only other witness, who was present, is the Appellant and he has stated that while he was watching T.V., his wife went to kitchen to prepare tea. All on a sudden, his wife came running and shouting. He saw that her clothes were under flame. He tired to douse the fire. One of the neighbours Bezbaruah came to his flat and they somehow managed the fire and took the injured to Hospital. The husband also stated that in the process, he also sustained bum injury on hand and other parts of the body and he was hospitalised.

The learned trial Court convicted the accused Appellant for the following:

In view of my discussions made herein above I find that the prosecution has established the following incriminating evidence against the accused:

(i) Dying declaration of the deceased to her family members;

(ii) Presence of the accused in the house at the time of the incident;

(iii) Absence of any other person in the house at the relevant time;

(iv) Sustaining 90% burn injuries by the deceased although the accused had enough scope to douse the flame immediately;

(v) Absence of the accused in the hospital during the visit of his in laws;

(vi) Strained relation in between the accused and his wife; and

(vii) No evidence of accidental fire.

So far the dying declaration is concerned, we will revert to the same at a later stage. So far the ground Nos. (ii) and (iii) are concerned, we think these are not circumstances which go against the accused. The accused being the husband, was supposed to be in the house and for his presence at the place of occurrence at the relevant time, no adverse inference can be drawn and the learned trial Judge was not correct in mentioning circumstances No. (iii) as quoted above. As regards the 90% burn, the evidence on record shows that at the relevant time the deceased was wearing nylon gaun, which is most inflammable. So far the reason No. (vii) is concerned, there is no burden on the accused to lead evidence in a criminal trial to establish the accidental fire. As regards the absence of the accused in the Hospital, the prosecution witnesses hav| stated that the accused had sustained burn injury in the above incident. P.W. 3 Shri Bapu Damai, the brother of the deceased has stated: "I saw that the accused had also received bum injuries on his hand and the chest and he was lying on the ground with medicine on his wound." The informant P.W. 1 has also supported the statement of P.W. 3 by stating that the accused had also sustained bum injury on his hand and as such he was hospitalised. There were burn injuries on both the hands upto the force on the chest and also on the legs.

We find from the facts and circumstances of the case that the prosecution has alleged about the strained relationship between the accused and his wife. From the evidence on record, we find that this is a case of love marriage and the couple was blessed with a daughter aged about one year. At the time of incident the accused was present in the house. Except the brother and father no other witnesses came forward to depose about the strained relationship between the couple. As regards the dying declaration P.Ws. 1, 2 and 3, the brother, mother and father of the deceased have stated that they came to the Hospital where the deceased told that her husband Dipak poured kerosene oil orrher body and set her on fire. In this case, we find that the information was given at the Police Station itself after the incident and whom the Police did arrive at the Hospital, Manju the deceased was alive. The Investigating Police Officer (P.W. 5) has deposed that he found the deceased alive and on being questioned the deceased lady told him that she had received burn injuries accidentally while she attempted to ignite a kerosene stove. Unfortunately, the police officer was not careful enough in discharging his duties and the said dying declaration was not got recorded as required under the law. The fact that the police came to the Hospital when the deceased was alive, is admitted by P.W. 1 himself. P.W. 1 now claims that at the relevant time the deceased was not in a position to speak. In his statement u/s 161, Code of Criminal Procedure this witness did state "before police my sister stated that she accidentally came under the flame when she tried to ignite the stove." This contradiction has been proved as required. P.W. 2 the mother had also deposed about the interrogation of the deceased by police and she also resiled from the earlier statement like P.W. 1 on the above point. However, the P.W. 3, the brother of the deceased has stated and admitted: "My sister had stated before police that she came under fire due to bursting of kerosene stove".

Thus, we find that in this case, there are two dying declarations and both are contradictory to each other and both the declarations are oral declaration. The law regarding admissibility of dying declaration was succinctly laid down by the Apex Court in a re- cent case of Uka Ram Vs. State of Rajasthan, the Apex Court held:

The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man''s mind. The same feeling as that of a conscientious and virtuous man under oath-Neo Moriturus praesumuntur montiri. Such statements are admitted, upon consideration that their declarations made in extremity, when the maker is at the point of death and whom every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim "Nemo moriturus prae-Su-mitur mentire" i.e. a man will not meet his maker with a lie in this mouth. It has always to be kept in mind that though a dying declaration is entitled to great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the Court to insist that dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as rule requiring corroboration is not a rule of law but only a rule of prudence.

learned Counsel for the Appellant has submitted that in the instant case if the dying declarations are taken out for consideration, there is no evidence regarding involvement of the accused Appellant. In the case of Kans Raj Vs. State of Punjab and Others, the Apex Court reviewing the authorities as regards the law of dying declaration laid down the following propositions:

Section 32 is an exception of the rule of hearsay and makes admissible the statement of a person who dies, whether the death is a momicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death. In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the divorce nature and character of our people, has thought it necessary to widen the sphere of Section 32 to avoid injustice.

(2) The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3-4 months the statement maybe admissible u/s 32.

(3) The second part of Clause (1) of Section 32 is yet another exception to the rule that in criminal law the evidence of a person who was not being subjected to or given an opportunity of being cross-examined by the accused, would be valueless because the place of cross-examination is taken by the solemnity and sanctity of oath for the simple reason that a person on the verge of death is not likely to make a false statement unless there is strong evidence to show that the statement was secured either by prompting or tutoring.

(4) It may be important to note that Section 32 does not speak of homicide alone but includes suicide also, hence all the circumstances which maybe relevant to prove a case of homicide would be equally relevant to prove a case of suicide.

(5) Where the main evidence consists of statements and letters written by the deceased which are directly connected with or related to her death and which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of time alone in such cases would not make the statement irrelevant.

The first oral dying declaration did not implead the Appellant whereas in the second dying declaration the near relation of the deceased have impleaded the Appellant. The factum of the earlier dying declaration stands established and considering the fact that when both the dying declarations are contradictory to each other, it is always safe not to base conviction on such dying declarations unless there is any other supporting material or evidence on record. In the facts and circumstances of the case, we find that there is absolutely no supporting or corroborating material and as such the accused Appellant can not be convicted on the basis of presumption or surmises and admittedly by following the guidelines and principles of criminal law, the Appellant is entitled to the benefit of muggy doubt as to whether this is a case of accidental fire or murder. We have given our anxious consideration and we are of the view that no case for entering into the conviction is made out.

In the result, the appeal is allowed and the accused Appellant is acquitted and set at liberty forthwith. The order of conviction is set aside and the accused Appellant shall be released, if not wanted in any other case.