THE GAUHATI HIGH COURT

(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram & Arunachal Pradesh)

Criminal Appeal No. 8 of 2009

1. Md. Azim Ali.

2. Md. Abdul Baten.

3. Md. Abdul Kalam.

All are sons of late Kadam Ali,

resident of Village-Rowarpur,

PS-Gouripur, Dist.-Dhubri (Assam).

……Appellants.

-Versus-

The State of Assam.

……Respondent.

Advocate(s) for the Appellants : Mr. M.H. Rajbarbhuiyan,

Mr. A. Mannaf, Mr. R. Islam.

Advocate(s) for the Respondent : P.P., Assam.

B E F O R E

THE HON’BLE MR. JUSTICE RANJAN GOGOI

THE HON’BLE MR. JUSTICE B.P. KATAKEY

Date of Hearing : 21.05.2010

Date of Judgment & Order : 08 .06.2010

JUDGMENT AND ORDER

[Katakey, J.]

This appeal is directed against the judgment of

conviction dated 06.12.2008 passed by the learned Sessions Judge

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at Dhubri, in Sessions Case No.117/2005, convicting the appellants

under Section 302/34 IPC and sentencing them to suffer rigorous

imprisonment for life and to pay a fine of Rs.10,000/- each, in

default to undergo simple imprisonment for 6(six) months each.

2. A first information report (FIR), (Ext.-11) was lodged by

Md. Abdul Khaleque (PW-3), the brother of the deceased, on

09.01.2005, in Gouripur Police Station, alleging that at around 7

A.M. on 08.01.2005, on receiving information that his sister Mustt.

Sabeda Bibi, married to Md. Abdul Kalam (Appellant No.3), was

hospitalized at Dhubri Civil Hospital for grievous burn injuries, he

went to the hospital, where she informed him that her husband’s

elder brother Md. Azim Ali (Appellant No.1) and the younger

brother Md. Baten Ali alias Md. Abdul Baten (Appellant No.2) on

08.01.2005 at about 3 A.M. entered her room and set her on fire by

pouring kerosene over her body and when she raised a commotion,

they ran away from the room and then immediately her husband

Md. Abdul Kalam (Appellant No.3) came running from another room

and tried to extinguish the fire and made arrangement for her

hospitalization, and further alleging that as her condition was

serious, she was referred for better medical treatment and

accordingly was taken to Cooch Bihar Govt. Medical Hospital, where

she died in the afternoon of 09.01.2005 due to the burn injuries.

Initially G.D. Entry No.386, dated 09.01.2005 and thereafter

Gouripur P.S. Case No.10/2005 under Section 448/307/326/302/34

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IPC was registered, on the basis of the said FIR. The investigating

agency during investigation recorded the statements of the persons

claimed to be acquainted with the facts, under Section 161 Cr.P.C.,

prepared the inquest report, send the dead body for post mortem

examination, prepared the sketch map (Ext.-13), seized certain

articles vide seizure list (Ext.-9) and got the statements of Md.

Baktar Ali Bepari (PW-1), Md. Abdul Kader (PW-2), Md. Abdul

Khaleque (PW-3), Md. Kader Ali (PW-6) and Md. Abdul Kuddus (PW-

7), recorded under Section 164 Cr.P.C. by the learned Magistrate.

On completion of the investigation the appellants were charge-

sheeted (Ext.-12) under Section 302/34 IPC. Since the offence was

exclusively triable by the Court of Sessions, the learned Chief

Judicial Magistrate, Dhubri on 03.08.2005 committed all the three

accused appellants for trial to the Sessions Court. The charge under

Section 302/34 IPC was thereafter framed by the learned Sessions

Judge vide order dated 15.12.2005 against all the appellants, which

when read over and explained, the appellants pleaded not guilty

and claimed to be tried. Hence the trial commenced in the Court of

the learned Sessions Judge at Dhubri.

3. During the course of the trial, the prosecution in order

to bring home the charges leveled against the appellants examined

11(eleven) witnesses, namely, Md. Baktar Ali Bepari (PW-1); Md.

Abdul Kader (PW-2); Md. Abdul Khaleque (PW-3), who lodged the

first information report, Md. Kader Ali (PW-6); Md. Abdul Kuddus

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(PW-7); who are brothers and testified about the dying declaration

made by the deceased; Dr. Ajit Kr. Phukan (PW-4), who was posted

at Dhubri Civil Hospital and initially treated the deceased for the

burn injuries; Sri Amalesh Sarkar (PW-5), the Asstt. Sub-Inspector

of Police of Katowali Police Station in Cooch Bihar district, West

Bengal, on 10.01.2005, who conducted the inquest over the dead

body of Sabeda Bibi in M.G.N. Hospital, Coochbihar and collected

the post mortem examination report; Md. Amzad Ali (PW-8), a

neighbourer of the deceased, who along with others arranged for

hospitalization of the deceased in Dhubri Civil Hospital; Mustt.

Manowara Begam (PW-9), daughter of the deceased; Sri Santosh

Kr. Mitra (PW-10), who was the Medical Officer posted at M.G.N.

Hospital, Cooch Bihar on 10.01.2005 and conducted the post

mortem examination on the body of the deceased and submitted

the report and Sri Biswajit Bose (PW-11), the investigating officer.

The witnesses were duly cross-examined by the appellants, whose

statements were also recorded under Section 313 Cr.P.C. The

defence, however, did not examine any witness.

4. The learned Sessions Judge upon appreciation of the

evidences on record convicted the appellants under Section 302/34

IPC, on the basis of the oral dying declaration allegedly made by

the deceased before PWs-1, 2, 3, 6 and 7, the brothers of the

deceased and rejecting the opinion of the doctor, namely, Dr. Ajit

Kr. Phukan (PW-4) about the inability of a person to speak because

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of 80% burn injuries received by her and sentenced them as

aforesaid. Hence the present appeal.

5. We have heard Mr. M.H. Rajbarbhuiyan, the learned

counsel for the appellants and Mr. Dhanesh Das, the learned Public

Prosecutor, Assam.

6. Referring to the deposition of the prosecution

witnesses, more particularly of PWs-1, 2, 3, 6 and 7, it has been

submitted by Mr. Rajbarbhuiyan, the learned counsel for the

appellants, that the witnesses are not consistent on what was said

by the deceased before them, as, while PW-3, who lodged the first

information report and PW-2 had stated that the appellant Nos.1

and 2, namely, Md. Azim Ali and Md. Abdul Baten set the deceased

on fire without implicating the appellant No.3, the husband of the

deceased, the PW-1, another brother of the deceased had deposed

that the deceased made the dying declaration implicating all the

three appellants including her husband. On the other hand,

according to PW-7, the deceased had told them that while the

appellant Nos.1 and 2 caught hold of her, one person from behind,

who was the appellant No.3, husband of the deceased, told them to

set her on fire, whom she could recognize by his voice. It has

further been submitted that the version of these witnesses recorded

under Section 164 Cr.P.C. are also not consistent and as such it

would not be safe to convict the appellants on the basis of such

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inconsistent version of the prosecution witnesses, without there

being any corroboration about the dying declaration made by the

deceased. The learned counsel further submits that it is evident

from the deposition of PW-4, Dr. Ajit Kr. Phukan, who initially

treated the deceased, as well as of Dr. Santosh Kr. Mitra (PW-10),

who conducted the post mortem examination, that the deceased

having received more than 80% burn injuries was not in a position

to speak and, therefore, the version of the prosecution witnesses

that the deceased made a dying declaration is not at all believable

and hence the learned Trial Court ought not to have accepted such

version of the prosecution witnesses relating to making of a dying

declaration. Mr. Rajbarbhuiyan further submits that PW-9, the

daughter of the deceased also stated in her evidence that the

deceased was not in the state to speak. Referring to the contents of

the FIR (Ext.-11) as well as the deposition of PWs-2 and 3, the

brothers of the deceased, and also of PW-9, the daughter of the

deceased, it has further been submitted by the learned counsel that

those witnesses have not implicated the appellant No.3, Md. Abdul

Kalam, the husband of the deceased, in any manner and as such he

ought not to have been convicted on the basis of the testimony of

PW-1, when his version is not consistent and has not been

corroborated by the other witnesses. The learned counsel,

therefore, submits that the conviction recorded against the

appellants needs to be set aside.

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7. Mr. Das, the learned Public Prosecutor, on the other

hand has submitted that it is evident from the deposition of PWs-1,

2, 3, 6 and 7, the brothers of the deceased, that an oral dying

declaration was made by the deceased in their presence implicating

all the appellants and their testimony cannot be discarded only on

the ground that the PWs-2 and 3 did not implicate the husband of

the deceased, namely, the appellant No.3, when PWs-1, 6 and 7

have categorically stated about making such dying declaration by

the deceased implicating the appellant No.3 also. According to Mr.

Das, making of a dying declaration and its contents, in fact, have

been corroborated by the FIR, which has been proved as Ext.-11.

The learned Public Prosecutor, therefore, submits that the

prosecution could bring home the charge against the appellants by

adducing cogent and reliable evidence relating to making of an oral

dying declaration by the deceased. It has further been submitted

that the general opinion of the doctor, namely, Dr. Ajit Kr. Phukan

(PW-4) and Dr. Santosh Kr. Mitra (PW-10) about a person’s inability

to speak, is not at all acceptable, in view of the clear evidence on

record that the deceased was in a position to speak and made the

oral dying declaration, even though she received 80% burn injuries.

Such opinion of the doctor, in view of such positive evidence on

record, cannot be accepted, submits the learned counsel. The

learned Public Prosecutor further submits that making of the oral

dying declaration by the deceased coupled with the conduct of the

accused appellants in not informing the family members of the

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victim, amply proves the culpability of the accused appellants and

hence the learned Trial Court has rightly convicted them under

Section 302/34 IPC, they having a common intention to kill the

deceased.

8. We have considered the submissions of the learned

counsel for the parties and also perused the evidences on record,

both oral and documentary, as well as the judgment of conviction

passed by the learned Trial Court.

9. The learned Sessions Judge, as noticed above, has

convicted the accused appellants on the basis of the dying

declaration allegedly made by the deceased before the PWs-1, 2, 3,

6 and 7, who are the brothers of the deceased. The learned

Sessions Judge has also rejected the opinion of the PW-4 and PW-

10, the doctors, who treated the deceased initially at Dhubri Civil

Hospital and conducted the autopsy, respectively, in view of the

positive evidence available on record about the capability of the

deceased to speak even after receipt of the burn injuries. To

appreciate as to whether the learned Sessions Judge has rightly

convicted the appellants under Section 302/34 IPC, we shall now

discuss the evidences of the witnesses in details.

10. Md. Baktar Ali Bepari (PW-1) in his evidence has stated

that on receiving the information relating to the hospitalization of

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his sister (deceased) in Dhubri Civil Hospital, he went there and

found her capable of speaking. He has further deposed that his

sister had told Md. Abdul Khaleque (PW-3), who arrived the hospital

one hour before him, that her husband Md. Abdul Kalam (appellant

No.3), Md. Azim Ali (appellant No.1) and Md. Abdul Baten

(appellant No.2) inflicted burn injuries on her body and accordingly

Md. Abdul Khaleque (PW-3) lodged the FIR with Gouripur Police

Station. According to this witness when he asked the deceased how

she received the burn injuries, she told him that Md. Abdul Kalam

(appellant No.3) and Md. Baten Ali alias Md. Abdul Baten alias Balin

(appellant No.2) inflicted the burn injuries on her person. This

witness during cross-examination has stated that his sister

(deceased) was taken to hospital by her husband and his relatives

including the appellant Nos.1 and 2. According to this witness both

the appellant No.3 i.e. the husband and the deceased maintained a

good relationship, though they did not have the normal relationship

with other family members. In his statement recorded under

Section 164 Cr.P.C., which has been proved as Ext.-1, he had,

however, stated that on being asked, his sister (deceased Sabeda

alias Jabeda Bibi) informed him that accused Azim Ali alias Md.

Abdul Azim and Md. Baten Ali alias Md. Abdul Baten, the appellant

Nos.1 and 2 respectively, hold her while one person from behind

asked them to set her on fire and accordingly the said two persons,

namely, appellant Nos.1 and 2 set her on fire. In his statement

recorded under Section 164 Cr.P.C. this witness, had not implicated

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the appellant No.3, namely, Abdul Kalam, the husband of the

deceased.

11. PW-2 Md. Abdul Kader, another brother of the deceased

has deposed that on getting the information about the

hospitalization of the deceased, he went to Dhubri Civil Hospital and

saw his sister (deceased) with burn injuries all over her body. This

witness has further deposed that on being asked, his sister told him

that Md. Abdul Azim alias Azim Ali (appellant No.1) and Balin alias

Md. Abdul Baten (appellant No.2) had caused burn injuries on her

person by pouring kerosene and setting her on fire. She was also

found to be capable of speaking. This witness has further stated

that the deceased also told him that her husband was present at

home. During cross-examination this witness has further deposed

that the deceased had a peaceful life with her husband and lived

together and on the day of occurrence her husband was sleeping in

a separate room. In his statement recorded under Section 164

Cr.P.C. this witness, however, had stated that, he was told by the

deceased that while the appellant Nos.1 and 2 had pressed her

down, someone ordered from behind to set her on fire, where upon

she was set on fire by the appellant Nos.1 and 2. The person who

allegedly ordered to set the deceased on fire was, however, not

named.

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12. PW-3, Md. Abdul Khaleque, the first informant, another

brother of the deceased, in his evidence has also stated that he

went to Dhubri Civil Hospital on receiving the information relating

to the hospitalization of his sister (deceased) and when asked, she

told him that Md. Azim Ali and Balin alias Md. Abdul Baten,

(appellant Nos.1 and 2), caused the burn injuries by setting her on

fire while her husband (appellant No.3) was in another room and

accordingly he lodged the FIR. This witness also during cross-

examination has stated that the deceased and her husband

(appellant No.3) lived together peacefully and separately from

other brothers. This witness in his statement under Section 164

Cr.P.C. had, also stated that the deceased told him that while the

appellant Nos.1 and 2 pressed her down, she heard someone

asking them to set her on fire, without, however, naming the said

person.

13. PW-6 Md. Kader Ali, the step brother of the deceased,

also in his evidence has stated that he went to Dhubri Civil Hospital

on receiving the information about his sister’s hospitalization, where

on being asked the deceased told that while she was sleeping, cold

liquid was sprinkled over her body and found Md. Abdul Azim and

Balin alias Md. Abdul Baten (appellant Nos.1 and 2 respectively) in

her room and while one of them caught hold of her hand, the other

person set her on fire and when she raised alarm, they disappeared

therefrom. This witness has further stated that in the hospital Dr.

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Tapan Mazumder was present when the deceased made her

statement before him. This witness however, in his statement

recorded under Section 164 Cr.P.C. had stated that the deceased

told him that while the appellant Nos.1 and 2 were holding her,

another person from behind asked them to set her on fire, which

they accordingly did. In his said statement the third person had not

been named.

14. PW-7 Md. Abdul Kuddus, another brother of the

deceased, who was also in the hospital, has stated that the

deceased told that while Md. Azim Ali (appellant No.1) and Balin

alias Md. Abdul Baten (appellant No.2) was holding her, one person

from behind, whom she could recognize by the voice as her

husband Md. Abdul Kalam, appellant No.3, asked them to set her

on fire and accordingly they set her on fire. This witness during

cross-examination, however, has stated that he did not inform

either the doctor or the police personnel present about making such

oral dying declaration and both his sister and her husband lived

together peacefully. There is, however, not much contradiction with

the version of this witness recorded under Section 164 Cr.P.C.

except, in such statement while he did not name the third person

who told the appellant Nos.1 and 2 to set the deceased on fire, in

his evidence before the Court he named the third person as the

appellant No.3, the husband of the deceased.

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15. PW-9 Mustt. Manowara Begam is the daughter of the

deceased, who deposed that on the day of incident, she was

present in the house and her father was sleeping in another room.

This witness has further stated that her uncles, namely, the

appellant Nos.1 and 2 were also in the house, when the occurrence

took place. During cross-examination this witness has stated that

all her brothers and sisters were sleeping with their mother in the

room and while her mother tried to extinguish the fire, her father

also tried to extinguish the fire on the person of her mother. She

has further deposed that her father and the uncles took her mother

to the hospital and she was unable to talk at that time. She has

further stated that her mother had good relation with her father

and they were living separately from other accused persons.

16. PW-8 Md. Amzad Ali was a neighbourer, whose

evidence is not of much importance, as he did not speak anything

about any dying declaration made by the deceased. This witness

has only stated that he along with others removed the deceased to

the hospital and subsequently he came to know that she died in

Cooch Bihar. PW-8 is a witness to the seizure memo being Ext.-9,

by which some ashes and remnants of paddy straw and small

pieces of the burnt saree were seized by the police on 10.01.2005.

17. PW-11 Sri Biswajit Bose was the Investigating Officer,

who investigated Gouripur P.S. Case No.10/2005 and also proved

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the seizure memo (Ext.-9), the first information report (Ext.-11),

the charge-sheet (Ext.-12) and the sketch map (Ext.-13).

18. PW-5 Sri Amalesh Sarkar was the ASI of Police attached

to Katowali Police Station in Cooch Bihar District, West Bengal, who

conducted the inquest over the dead body of Jabeda @ Sabeda Bibi

and send the body for post mortem examination. This witness has

proved the supplementary case diary maintained by him as Exts.-4

and 5 as well as the carbon copy of the inquest report (Ext.-6).

19. Dr. Ajit Kr. Phukan (PW-4), who initially treated the

deceased in Dhubri Civil Hospital, in his evidence has stated that on

08.01.2005 he treated the deceased and found 80% burn injuries

on her person. According to this witness, considering her condition,

though she was referred to Guwahati Medical College and Hospital,

her relatives took her to Cooch Bihar. During cross-examination this

witness has stated that the person receiving more than 40% burn

injuries cannot speak and the person with 80% burn injuries suffers

septisemia forthwith and in such cases there is no question of

recording any statement of such person by any Magistrate, police or

doctor. According to this witness, the deceased did not tell anything

before him.

20. PW-10, Dr. P.K. Choudhury, who conducted the autopsy

over the dead body of Jabeda alias Sabeda Bibi on 10.01.2005,

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while proving such report as Ext.-10, has deposed that the

deceased received 100% burn injuries and in his opinion death was

due to complications arising out of burn injuries, which are ante

mortem in nature. This witness has further stated that with 100%

burn injuries a patient becomes unable to speak. PW-10 found the

following burn injuries on the body of the deceased:-

“Partial & full thickness burn all over the body from

head to upper part of foot (mostly anterior surface)

with typical smell of similar burn & chars & also redness

of the floor of the burn. Few blisters also noted. Skin of

some portion of burnt area peeled off.”

21. Section 32 of the Indian Evidence Act provides that the

statements, written or verbal, of relevant facts made by a person

who is dead, or who cannot be found, or who has become incapable

of giving evidence, or whose attendance cannot be procured

without an amount of delay or expense which, under the

circumstances of the case, appears to the Court unreasonable, are

themselves relevant facts, when it relates to cause of death, or is

made in course of business, or against interest of maker, or gives

opinion as to public right or custom, or matters of general interest,

or relates to existence of relationship, or is made in will or deed

relating to family affairs, or in document relating to transaction

mentioned in section 13(a), or is made by several persons, and

expresses feelings relevant to matter in question. Section 32 is an

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exception to the general rule against admissibility of hearsay, as it

is the general rule that all oral evidence must be direct. Clause (1)

of Section 32, therefore, makes relevant what is generally called as

dying declaration. A dying declaration, if found reliable, can form

the basis of conviction. It is a piece of evidence, stands on the

same footing as any other piece of evidence adduced in a

proceeding. The acceptability of the dying declaration has to be

judged and appreciated in the light of the circumstances of each

case and it has to be weighed by reference to the principles

governing the weighing of other evidence. Since a dying declaration

is not made on oath and the maker of the dying declaration cannot

be subjected to cross-examination, the courts are to be on guard

while testing its reliability. The court has also the obligation to

closely scrutinize all the relevant attendant circumstances while

testing its reliability, truthfulness as well as the voluntariness. It is

not always necessary that the Court for the purpose of recording

conviction on the basis of the dying declaration has to look for

corroboration. Looking for corroboration is a rule of prudence only

and if there is some doubt in the mind of the Court, it may look for

corroboration before recording the conviction. However, if the Court

finds certain infirmities in such dying declaration, which renders the

dying declaration so infirm as to prick the conscience of the Court,

it may refuse to accept the same as the basis for conviction.

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22. Since the maker of the dying declaration cannot be

subjected to cross-examination by the accused, the Court insist

that the dying declaration should be of such a nature as to inspire

full confidence of the Court relating to its truthfulness as well as

correctness. The Court has always to be on guard to see that the

statement of the deceased was not as a result of either tutoring,

prompting or a product of imagination. Before accepting the dying

declaration and based conviction on that the Court must come to a

finding that the deceased was in a fit physical and mental condition

to make such declaration. It is always not necessary that the

physical and mental state of mind of the deceased to make the

declaration has to be certified by the doctor. Where there are

evidences relating to the making of dying declaration by the

deceased and about his/her fit and conscious state of mind to make

such declaration, the medical opinion would not prevail, as looking

for the medical opinion is a matter of prudence only.

23. The Apex Court in Paniben Vs. State of Gujarat

reported in (1992)2 SCC 474, has summarized the law relating to

the dying declaration, in paragraph 18, after taking note of its

earlier pronouncements, as under:-

“18. Though a dying declaration is entitled to great weight, it is

worthwhile to note that the accused has no power of cross-

examination. Such a power is essential for eliciting the truth as an

obligation of oath could be. This is the reason the Court also insists

that the dying declaration should be of such a nature as to inspire full

confidence of the Court in its correctness. The Court has to be on

guard that the statement of deceased was not as a result of either

tutoring, prompting or a product of imagination. The Court must be

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further satisfied that the deceased was in a fit state of mind after a

clear opportunity to observe and identify the assailants. Once the

Court is satisfied that the declaration was true and voluntary,

undoubtedly, it can base its conviction without any further

corroboration. It cannot be laid down as an absolute rule of law that

the dying declaration cannot form the sole basis of conviction unless it

is corroborated. The rule requiring corroboration is merely a rule of

prudence. This Court has laid down in several judgments the

principles governing dying declaration, which could be summed up as

under:

(i) There is neither rule of law nor of prudence that dying

declaration cannot be acted upon without corroboration. (Munnu Raja

v. State of M.P.)

(ii) If the Court is satisfied that the dying declaration is true and

voluntary it can base conviction on it, without corroboration. (State of

U.P. v. Ram Sagar Yadav, Ramawati Devi v. State of Bihar)

(iii) This Court has to scrutinize the dying declaration carefully and

must ensure that the declaration is not the result of tutoring, prompting

or imagination. The deceased had opportunity to observe and identify

the assailants and was in a fit state to make the declaration. (K.

Ramachandra Reddy v. Public Prosecutor)

(iv) Where dying declaration is suspicious it should not be acted

upon without corroborative evidence. (Rasheed Beg v. State of M.P.)

(v) Where the deceased was unconscious and could never make

any dying declaration the evidence with regard to it is to be rejected.

(Kake Singh v. State of M.P.)

(vi) A dying declaration which suffers from infirmity cannot form

the basis of conviction. (Ram Manorath v. State of U.P.)

(vii) Merely because a dying declaration does not contain the details

as to the occurrence, it is not to be rejected. (State of Maharashtra v.

Krishnamurti Laxmipati Naidu)

(viii) Equally, merely because it is a brief statement, it is not be

discarded. On the contrary, the shortness of the statement itself

guarantees truth. (Surajdeo Oza v. State of Bihar)

(ix) Normally the court in order to satisfy whether deceased was in

a fit mental condition to make the dying declaration look up to the

medical opinion. But where the eye witness has said that the deceased

was in a fit and conscious state to make this dying declaration, the

medical opinion cannot prevail. (Nanahau Ram v. State of M.P.)

(x) Where the prosecution version differs from the version as

given in the dying declaration, the said declaration cannot be acted

upon. (State of U.P. v. Madan Mohan)”

In Sukanti Moharana Vs. State of Orissa [(2009)9

SCC 163], the Apex Court has restated the aforesaid law relating to

dying declaration.

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24. In the case in hand, as discussed above, the conviction

has been based on the dying declaration made by the deceased in

presence of PWs-1, 2, 3, 6 and 7, who are the brothers of the

deceased. According to PWs-1, 2, 3, 6 and 7, their sister was fit and

in conscious state of mind to make the declaration, even after

receipt of the burn injuries, which according to PW-4, the doctor,

who treated her initially, was 80%. According to PW-4, the

deceased received 80% burn injuries on her person and a person

receiving more than 40% burn injuries, according to him, cannot

speak and the person with 80% burn injuries suffers septisemia

forthwith and in such cases there is no question of recording any

statement of such person. According to PW-10, the doctor, who

conducted the autopsy, the deceased received 100% burn injuries.

Neither PW-4 nor PW-10, however, did make any statement

relating to the inability of the deceased to make the declaration,

because of the burn injuries received by her. In any case, the

opinion of the PWs-4 and 10 being of general nature, the Court may

not accept such opinion, when there are positive evidences on

record, i.e. the evidence of PWs-1, 2, 3, 6 and 7, that the deceased

was in a fit and conscious state of mind to make the declaration,

even after receipt of severe burn injuries. Moreover, whether the

deceased was in a physical and mental state of mind to make the

declaration, because of the burn injuries, does not depend on the

percentage of the burn injuries he/she has suffered, but it depends

on the organs affected by such burn injuries.

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25. PW-9, the daughter of the deceased though has stated

in her evidence that the deceased was unable to talk, such

statement relates to the point of time when the deceased was in

her house and before taking to the hospital. PW-9 has not stated

anything about the condition of the deceased after she was taken to

the hospital as admittedly she did not accompany the deceased to

the hospital. The positive evidence of PWs-1, 2, 3, 6 and 7 about

the fit and conscious state of mind of the deceased to make the

declaration, which version could not be disclosed by the defence

during cross-examination, would therefore prevail upon the general

medical opinion of PWs-4 and 10. Such version of the prosecution

witnesses relating to physical and mental state of mind of the

deceased to make the declaration being reliable and trustworthy,

has to be accepted.

26. We shall now proceed to scrutinize the evidences of

prosecution witnesses relating to the culpability of the accused

appellants to the alleged commission of crime. According to PW-1,

the deceased in her dying declaration implicated her husband

(appellant No.3) as well as Md. Baten Ali alias Md. Abdul Baten

(appellant No.2). PW-2, however, in his deposition has stated that

his sister (deceased) only implicated Md. Azim Ali (appellant No.1)

and Md. Baten Ali alias Md. Abdul Baten (appellant No.2). PW-3, the

first informant has supported the version of PW-2 to the effect that

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the deceased in her declaration had implicated the appellant Nos.1

and 2 only. PW-6 has also supported the version of PW-3 by stating

that it was the appellant Nos.1 and 2, who set the deceased on fire

after sprinkling some liquid over her body. PW-7, however, in his

deposition has stated that the deceased made the declaration to the

effect that while the appellant Nos.1 and 2 was holding her, one

person from behind, whom she could recognize by his voice as

appellant No.3, asked them to set her on fire and accordingly they

set her on fire.

27. The statement of all these 5(five) witnesses, namely,

PWs-1, 2, 3, 6 and 7 were recorded under Section 164 Cr.P.C.,

wherein they had stated about making of a dying declaration by the

deceased to the effect that it was the appellant Nos.1 and 2, who

caught hold of her and as per instruction of someone from behind

set her on fire, without however naming such person. It appears

that the PW-7 tried to improve his statement in the Court by

implicating the appellant No.3, the husband of the deceased though

in his first statement recorded under Section 164 Cr.P.C., the

appellant No.3 was not implicated. All the witnesses, however,

spoke about the involvement of the appellant Nos.1 and 2. They are

consistent in respect of the culpability of the appellant Nos.1 and 2

about the commission of the offence alleged. Implicating the

appellant No.3 to the commission of crime by the PW-7 in his

evidence before the Court, though he was not implicated in the

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statement under Section 164 Cr.P.C. would not make the version of

the witnesses relating to the making of dying declaration and its

contents relating to the culpability of appellant Nos.1 and 2,

doubtful. As noticed above, each of these witnesses have

corroborated each other relating to the involvement of the appellant

Nos.1 and 2, which has also been corroborated by the FIR. Hence

the learned Trial Court, in our considered opinion has rightly

convicted and sentenced the appellant Nos.1 and 2 under Section

302/34 IPC.

28. Relating to the culpability of appellant No.3, the

husband of the deceased, there are, however, some doubts. As

discussed above, PWs-1, 2, 3, 6 and 7 in their earlier statement

recorded on oath i.e. the statement recorded under Section 164

Cr.P.C., had not named the appellant No.3. These witnesses except

PW-7, in their deposition before the Court have also not implicated

the appellant No.3. According to PWs-1, 2 and 3, only the appellant

Nos.1 and 2 were the perpetrators of the crime. PW-6 though has

corroborated such version, he has, however, stated that another

person from behind asked the appellant Nos.1 and 2 to set the

deceased on fire, without however naming the third person. PW-7,

however, has tried to improve his version by naming the third

person to be the appellant No.3. Such version of PW-7 has not been

corroborated by any other evidence and even by his own initial

statement on oath recorded under Section 164 Cr.P.C. That apart

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all the prosecution witnesses including the PW-9, the daughter of

the deceased, deposed that both the husband (appellant No.3) and

the wife (deceased) had maintained a very good relation. PW-9,

who was with the deceased, has also stated in her evidence that

the appellant No.3 was in another room when the occurrence took

place.

29. That being the position, the involvement of the

appellant No.3 in the commission of crime could not be proved by

the prosecution beyond all reasonable doubt and hence the

appellant No.3 is entitled to the benefit of doubt. The conviction of

the appellant No.3 under Section 302/34 IPC, therefore, is set

aside. He is set at liberty, if not wanted in any other case.

30. The appeal is accordingly allowed in part, as indicated

above.

JUDGE JUDGE

Roy