Kalicharan Paul vs State of Assam

Ajit Singh, C.J

The sole appellant Kalicharan Paul has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine

of Rs.10,000/- with default stipulation.

The victim of the incident was Jyosna Hazong. She was the wife of appellant.

According to the prosecution case, the appellant and Jyosna Hazong were married forabout one year prior to the date of incident. After their

marriage, they lived in the house of Sajala Hazong (PW-2)-the mother of Jyosna Hazong. On 31.03.2011 at about 4 p.m., an altercation took place

between the appellant and Jyosna Hazon whereupon the appellant poured kerosene oil on her and burnt her. However, the neighbours and Sajala

Hazong came to the house of Jyosna Hazong and Debi Dalu (PW-1) immediately took her to the Goalpara Civil Hospital in the rickshaw of Ratan

Saha (PW-4)-another neighbor. Jyosna Hazong was admitted in the hospital and Dr. Pradyut Kumar Debnath (PW-7) immediately attended her.

Sajala Hazong then lodged the First Information Report (Ext-4) at the Goalpara SadarPolice Station alleging inter-alia that the appellant had a

quarrel with Jyosna Hazong and then he inflicted several injuries on her person with a sharp weapon. Thereafter, the appellant set her ablaze by

pouring kerosene oil on her. Sajala Hazong also alleged that the appellant assaulted her too with hand blows when she tried to save her daughter and

also threatened to kill her with sharp weapon. Sub-Inspector â€" Arfan Khan (PW-8) immediately went to the hospital and on his asking Dr. Pradyut

Kumar Debnath recorded the oral dying declaration of Jyosna Hazong vide Exhibit 3.She stated in her dying declaration that at about 4 p.m., she had a

quarrel with the appellant whereafter and the appellant assaulted her. Finding no alternative, she went to the house of Kanak Saud, but the appellant

tried to assault her there too. Later on, she returned to her house and the appellant threw bricks on her. Thereafter, the appellant set her ablaze after

poured kerosene on her. As she was wearing a synthetic saree, the fire engulfed her too quickly and the appellant then tried to put out the

fire.Thereafter, the neighbours came hearing commotion and brought her to the hospital.

Jyosna Hazong ultimately died on 02.04.2011. Dr.Subodh Nath conducted the postmortem examination on the body of Jyosna Hazong. He in his

post mortem examination report exhibit 2 confirmed that she died due to shock resulting from 75% burn injuries. Arfan Khan after completing

investigation filed charge sheet against the appellant vide Exhibit-8.

During trial, appellant abjured his guilt. He explained that Jyosna Hazong burnt herself.But the trial court relying upon the evidence adduced by the

prosecution, convicted and sentenced the appellant as aforesaid.

It is argued on behalf of the appellant that there is no eye witness to the incident andit is very likely that Jyosna Hazong burnt herself and thus

committed suicide. 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 attributed. 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.

Upon hearing the learned counsel for the parties and perusing the records, we are ofthe view that the appeal deserves to be partly allowed.

Admittedly there is no eye witness. The testimony of Sajala Hazong is that the appellant set ablaze Jyosna Hazong after a quarrel. But, she admitted

during her cross-examination that she was outside the house at that time and also admitted that she did not witness the occurrence. Debi Dalu also

deposed that she did not see the occurrence and came to the house of Jyosna Hazong hearing about a quarrel and found Jyosna Hazong burning. She

then took her to the hospital. Surprisingly, this witness did not ask Jyosna Hazong as to how she got burnt. The rickshaw puller - Ratan Saha - also did

not ask her as to how she got ablaze although in his evidence he has categorically deposed that Jyosna Hazong was still in a condition to speak.

Kinaram Hazong (PW-3)brother-in-law of the appellant, who was in the hospital at the time when Jyosna Hazong was admitted, although deposed

that on his asking she told him that the appellant had burnt her, he admitted during his cross-examination that there was none when she made such an

oral dying declaration before him. Besides, Kinaram Hazong also did not categorically depose as to what exact words Jyosna Hazong said to him

during her dying declaration. Therefore, his evidence is also vague and bald and as such it is not safe to believe that Jyosna Hazong indeed made an

oral dying declaration before him.

However, it is the testimony of Dr. Pradyut Kumar Debnath that Jyosna Hazong made adying declaration before him which he reduced into writing

as follows:

“My name and address as mentioned above. Around 4 p.m. on 31.03.11 my husband Kalicharan Paul started beating me up and finding no way out

and out of fear I took shelter at the hosue of Sri Kanak saud. He even tried to beat me up with a lathi there itself. Then I came out of that place and

came to my house. Then he started throwing bricks at me. Thereafter, my husband set fire to me by pouring kerosene on me. Since I was clad in a

synthetic saree, fire engulfed me quickly. Then husband came to put out the fire. Hearing a commotion, the neighbors turned up and put out the fire

and brought me to the civil hospital and admitted there. Now, I am undergoing treatment.â€​

The dying declaration is too elaborate and vivid. Jyosna Hazong categorically deposedthat she had a quarrel with the appellant and the appellant

started beating her. She ran to the house of Kanak Saud to save herself. Urbashi Saud (PW-5) deposed that Jyosna Hazong came to her house after

quarreling with the appellant and she categorically deposed that the appellant was outside her house whereas Jyosna Hazong was in her verandah and

the appellant was shouting at her from outside the gate. Thus, it is clear that Jyosna Hazong made a true statement before Dr. Pradyut Kumar

Debnath. In her dying declaration, she also stated that the appellant then poured kerosene oil on her and set her ablaze. However, the fire caught her

too quickly as she was wearing a synthetic saree. But, the appellant tried to save her by dousing the fire. Hence, we have no hesitation but to hold that

Dr. Pradyut Kumar Debnath in fact recorded the dying declaration of Jyosna Hazong and she gave the true and clear picture of the occurrence. Had

she not made any dying declaration, she would not have categorically stated that the appellant had tried to save her by dousing the fire seeing the fire

engulfing her too quickly as she was wearing a synthetic saree. As such we are of the considered view that it is the appellant who is the sole

perpetrator of the crime.

Now, the question is under what offence, appellant is to be held guilty. It is JyosnaHazong’s own statement that she had a quarrel with the

appellant and so, he burnt her out of rage by pouring kerosene. At the same time, she also stated that he tried to save her by dousing the fire when the

fire engulfed her too quickly as she was wearing a synthetic saree. Not only this, Debi Dalu also admitted during her cross-examination that the

appellant went to the hospital. This would go to show that the conduct of appellant dousing the fire as well as going to hospital immediately cannot be

neglected from the totality of the circumstances. The same would clearly show that appellant did not have any intention to commit murder of Jyosna

Hazong, 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 too quickly for the synthetic saree she was wearing, 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 an error in holding appellant guilty under

Section 302 of the Indian Penal Code and punishing him under that provision of law.

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.Â

We, accordingly, modify the conviction and sentence of the trial court as indicatedherein above.

For these reasons, the appeal is partly allowed as indicated above and it is accordinglydisposed of.