Pankaj Nath vs The State Of Assam
2022 Latest Caselaw 4907 Gua

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GAHC010097302020




                         THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : CRL.A(J)/46/2020

         PANKAJ NATH
         S/O. SRI MOHENDRA NATH, R/O. GABHARU KOCHGAON, UNDER
         THELAMARA P.S., DIST. SONITPUR, ASSAM.



         VERSUS

         THE STATE OF ASSAM
         REP. BY PP, ASSAM.




                                  :: PRESENT ::
                     HON'BLE MR. JUSTICE SUMAN SHYAM
                   HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

   For the Appellant       :      Mr. R. Sarma,
                                  Amicus Curiae.
    For the Respondents :         Ms. B. Bhuyan,

Addl. Public Prosecutor, Assam.

Mr. J. Das, Advocate.

Mr. S. Barman, Advocate.

    Date of Hearing   :            01.12.2022.
     Date of Judgment :            13.12.2022.
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                           JUDGMENT AND ORDER (CAV)
(Parthivjyoti Saikia, J)

Heard Mr. R. Sarma, learned Amicus Curiae appearing for the appellant. Also heard Ms. B. Bhuyan, learned Senior Counsel/Addl. Public Prosecutor, Assam assisted by Mr. J. Das, learned counsel appearing for respondent no.1 as well as Mr. S. Barman, learned counsel representing respondent no.2.

2. Challenge in this appeal is to the judgment dated 16.06.2019 passed by the learned Additional Sessions Judge (FTC), Sonitpur at Tezpur in Sessions Case No.269/2015. By the impugned judgment, the trial court has convicted the appellant under Section 302 of the Indian Penal Code (IPC) and sentenced him to undergo rigorous imprisonment for life and also sentenced to pay fine of Rs.10,000/-, in default of payment of fine, he was sentenced to undergo rigorous imprisonment for a period of 2(two) months.

3. The prosecution case is that the appellant married Smti. Pampi Devi and after marriage, he had subjected her to cruelty for want of dowry. On 21.10.2014 at about 7 P.M., the appellant allegedly subjected his wife to cruelty and after pouring kerosene oil on her body, set her on fire. She sustained 90% burn injuries. Some neighbours took the victim to the Tezpur Medical College Hospital.

4. While she was in the Tezpur Medical College Hospital, she gave a statement before the Investigating Officer that on the day of occurrence while she was sleeping on the bed, the appellant being her husband, Page No.# 3/16

poured kerosene oil upon her and set her ablaze.

5. Thereafter, she was shifted to Guwahati Medical College and Hospital, where she had succumbed to her injuries.

6. The trial court framed the charges under Sections 304(B) and 302 of the Indian Penal Code.

7. During the trial, the prosecution side examined 8(eight) witnesses including the police investigating officer. The appellant did not adduce any evidence. Thereafter, on the basis of the evidence on record, the trial court arrived at the impugned finding.

8. We have given our anxious considerations to the submissions made by the learned counsel of both sides. We have carefully gone through the prosecution evidence.

9. The first witness to be examined is Pranjal Nath (PW-1). He is a neighbour of the appellant. He has stated in his evidence that on the day of occurrence at about 8.30. PM he had heard hulla in the house of the appellant and at that time, the appellant and his wife were in the midst of a quarrel. Pranjal Nath has further stated that the house of the appellant is situated in front of his house and he had seen that the deceased was trying to leave the house of the appellant and the appellant was objecting to that. The witness Pranjal Nath has admitted that he had stated before police that on the day of occurrence at about 7.30 P.M., the deceased caught fire on the road and the appellant and some other people were trying to put out the fire.

10. During cross-examination, Pranjal Nath has stated that at the Page No.# 4/16

relevant time of the occurrence, the appellant and the deceased were fighting with each other because the deceased wanted to leave his house. According to Pranjal Nath, the deceased had come out of her matrimonial house with a kerosene oil lamp in her hand. Pranjal Nath further disclosed that he had seen the deceased catching fire when she was on the road. Pranjal Nath has stated he along with Pankaj Nath and some other people doused the fire. Pranjal Nath has disclosed that on seeing the entire incident, his wife lost consciousness and therefore he got himself busy in taking her to the hospital and that is why, he had no knowledge about the subsequent events.

11. The second prosecution witness is Putul Nath (PW-2). He has stated in his evidence that on the day of occurrence at about 9 P.M. he had heard hulla in the village. He went out of his house and reached the house of the mother of the deceased where he saw that the deceased lady was lying with burn injuries on her person. Putul Nath has stated that he took the deceased to the hospital.

12. The witness Putul Nath was declared hostile as he had resiled from his earlier statement made before police.

13. He was cross-examined by the prosecution counsel. He denied the fact that he had stated before police that the deceased told him that it was the appellant who poured kerosene oil upon her and set her on fire.

14. In his cross-examination by the defence counsel, the witness Putul Nath has stated that he did not know how the deceased caught fire and sustained the burn injuries.

15. He further stated that on seeing the deceased with burn injuries in Page No.# 5/16

the house of her mother, he took her to Tezpur Medical College Hospital, but he never talked to the deceased.

16. The third prosecution witness is Lakhan Ch. Nath (PW-3). He is the complainant as well as the grandfather of the deceased. This witness has stated that on 21.10.2014, at about 8.30 P.M., his son-in-law Dilip Nath (PW-6 as well as the father of the victim girl) informed him over telephone that the appellant had set his granddaughter on fire by pouring kerosene oil upon her. After getting the information, Lakhan Ch. Nath immediately rushed to the Tezpur Medical College Hospital. After meeting the deceased in the Hospital, Lakhan Ch. Nath went to the house of PW-6 who told him that the deceased was about to sleep, the appellant poured kerosene oil upon her body and set her on fire. After hearing that, Lakhan Ch. Nath again returned to the Hospital. According to Lakhan Ch. Nath, in his presence, as well as in the presence of the doctor (PW-7) and policeman (PW-8), the deceased told that at the relevant time of occurrence, she had a quarrel with the appellant and when she was trying to sleep on the bed, the appellant poured kerosene oil upon her and set her on fire.

Lakhan Ch. Nath further stated that after her marriage the deceased once came to his house and told him that the appellant was demanding dowry from her.

17. During cross-examination, Lakhan Ch. Nath has stated that the FIR was written as per his version. He has stated that when the PW-8 was recording the statement of the deceased in the hospital, he was present there but on that day he did not lodged any FIR. Lakhan Ch. Nath further Page No.# 6/16

stated while PW-8 was recording the statement of the deceased in the hospital, two doctors were present there.

18. The forth prosecution witness is Babul Nath (PW-4). He has stated in his evidence that on the day of occurrence at about 7 P.M. he had seen the deceased burning and she was running out from the house of the appellant. Babul Nath has stated that he tried to douse the fire with his own hands. He even asked her as to how she caught fire and she reportedly told him that the appellant poured kerosene upon her and set her ablaze. According to Babul Nath, he along with other persons took the deceased to the Tezpur Medical College Hospital.

19. During cross-examination, Babul Nath has stated that he met the deceased on the road at a distance of about one far-long from his house.

20. The fifth prosecution witness is Prema Nath (PW-5). He has stated in his evidence that Smti. Jharna, the mother of the deceased had telephonically informed him at night that her daughter got burn injuries and therefore asked him to come to Tezpur Medical College Hospital. Prema Nath further stated that because of medical problems, he could not come to Tezpur Medical College Hospital at that time. According to Prema Nath, he went to Tezpur Medical College Hospital next morning. He had seen the deceased in a burnt condition. The deceased then told this witness that she was burnt.

21. The witness Prema Nath was declared hostile as because he had also resiled from his earlier statement made before police.

22. During cross-examination by the prosecution counsel, he denied the Page No.# 7/16

suggestions only.

23. During cross-examination by the defence counsel, Prema Nath has stated that he has told police that it was Smti. Jharna, the mother of the deceased, who told him telephonically that the deceased got burn injuries and he was therefore asked to come to the Tezpur Medical College Hospital. He also admitted to have told police that because of his eye problems, that night he could not come to Tezpur Medical College Hospital. The witness Prema Nath has stated in his cross- examination that when he met the deceased at Tezpur Medical College Hospital, she was not in a position to talk.

24. The sixth prosecution witness is Dilip Nath (PW-6). He is the father of the deceased. He has stated in his evidence that on the day of occurrence, he along with his wife (not examined). Had gone to the house of the deceased to offer her some mati dali (black lentil soup). Dilip Nath further stated that on reaching the house of the deceased, he noticed that his daughter was quarrelling with the appellant and the appellant was drunk at that time. The deceased informed this witness that she gave Rs.200/- to the appellant to get some materials from the market but the appellant, spent the entire amount in the market without buying anything and returned home in a drunken state.

25. Dilip Nath has stated in his evidence that after hearing the aforesaid fact from his daughter (deceased), he went to the house of neighbour named Homeswar Nath (not examined) and informed him about the aforesaid facts and also requested him to interfere into the matter. According to Dilip Nath, while he was still in the house of Homeswar Nath, Page No.# 8/16

he heard hulla outside. Immediately he came out of the house of Homeswar Nath and found his daughter in a burnt condition.

26. The witness Dilip Nath has stated in his evidence that his daughter told him that the appellant had burnt her by pouring kerosene upon her.

27. In his cross-examination, Dilip Nath has admitted that he did not tell police that on the day of occurrence, he and his wife had gone to the house of the deceased to give her some mati dali and then he had noticed quarrel between the appellant and the deceased. Dilip Nath also admitted that he never told police anything about the deceased giving Rs.200/- to the appellant to buy articles from the market and his return from the market in a drunken state. Dilip Nath further admitted that he has stated those things for the first time only in the court.

28. Dilip Nath has stated in his cross-examination that he had seen his daughter in his own house only in a burnt condition. Dilip Nath has admitted in his cross-examination that he has seen his daughter in a burnt condition for the first time at the Tezpur Medical College Hospital.

29. The seventh prosecution witness is Dr. Jajnajyoti Laskar (PW-7). He has stated in his evidence that at about 12 midnight, one police officer of Thelamara P.S. had recorded the statement of the deceased in his presence. The PW-7 has stated that the deceased was saying that her husband had burnt her. PW-7 had put his signature in the said statement marked as Ext.2(1).

30. In his cross-examination, PW-7 has stated that he gave Ext.2(1) at 12.30 midnight on 22.10.2014.

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31. The eighth prosecution witness is the police investigating officer Sri Debananda Mahanta (PW-8). He has stated in his evidence that the officer-in-charge of the Police Station had received an FIR sent by Bihaguri O.P. on 21.10.2014 at 11 P.M. PW-8 has stated that he had accompanied the officer-in-charge to the place of occurrence and there was nobody in the house of the appellant at that time. PW-8 had stated that they came to know that the victim was taken to Tezpur Medical College Hospital. Accordingly, they arrived there and fount that the deceased was in the emergency room where doctors told them that she had sustained 90% burn injuries.

32. PW-8 has stated that he had recorded the dying declaration of the deceased in presence of doctor. PW-8 has quoted the deceased as saying to him that on the day of occurrence, the appellant returned home in a drunken state and on that issue, there was a quarrel with him. PW-8 further quoted the deceased as saying to him that when she had gone to bed after taking dinner, the appellant poured kerosene upon her and set her on fire. PW-8 has proved the dying declaration as Ext.2 and his signature thereon as Ext.2(2). PW-8 has stated that subsequently he had arrested the appellant. According to PW-8, the deceased succumbed to her injuries at GMCH and her post-mortem was also conducted there. PW-8 procured the post-mortem examination report and it is proved as Ext.4.

33. There is nothing relevant in the cross-examination portion of the evidence of PW-8.

34. In his examination under Section 313 CrPC, the appellant denied all Page No.# 10/16

the incriminating circumstances appearing against him in the prosecution evidence and has admitted that on the day of occurrence, he came home in a drunken state and therefore he was beaten up with a broom by the deceased. The appellant further stated that the deceased wanted to go to her father's house with the help of a kerosene lamp. The appellant has stated that the appellant had poured kerosene from the lamp on her body and set her afire. According to the appellant, he with his brother and PW-1 Pranjal Nath, tried to extinguish the fire on the body of the deceased had then she had ran away to the house of her father. The appellant had stated that he did not follow her to her father's house fearing that they might attack him. The appellant also disclosed that he also received some burn injuries while trying to save the deceased.

35. On the basis of the evidence on record, the trial court did not find the appellant guilty under Section 304(B) of the Indian Penal Code and he was acquitted accordingly. However, the trial court found the appellant guilty under Section 302 of the Indian Penal Code and convicted him accordingly.

36. The learned Amicus Curiae Mr. Sarma has submitted that the informant Lakhan Ch. Nath was present in the hospital when police recorded the dying declaration of the deceased and there is a possibility that Lakhan Ch. Nath might have put pressure upon her to implicate the appellant in this case. To that effect, Mr. Sarma has relied upon a decision of the Supreme Court delivered in Surinder Kumar vs. State of Punjab, reported in 2012 (12) SCC 120. In paragraph 20 of the said Page No.# 11/16

judgment the Supreme Court has held as under:

"20. It is also not obligatory that either an Executive Magistrate or a Judicial Magistrate should be present for recording a dying declaration. It is enough that there is evidence available to show that the dying declaration is voluntary and truthful. There could be occasions when persons from the family of the accused are present and in such a situation, the victim may be under some pressure while making a dying declaration. In such a case, the court has to carefully weigh the evidence and may need to take into consideration the surrounding facts to arrive at the correct factual position."

37. We have carefully gone through the prosecution evidence and also considered the submission of the learned counsels.

38. The case of the prosecution is that on the day of occurrence, the appellant had returned home in a drunken state and therefore he had a quarrel with the deceased. After sometime, the deceased, after having dinner, went to bed and then the appellant set her on fire after pouring kerosene upon her.

39. The fact that the appellant had returned home in a drunken state and he had a quarrel with the deceased is already admitted by the appellant.

40. In this case, PW-1 Pranjal Nath and PW-4 Babul Nath are the most material witnesses. Therefore, let us examine their evidences.

41. Pranjal Nath has stated in his evidence that he had heard the appellant and the deceased quarrelling in their house. Pranjal Nath has claimed that the deceased was trying to leave her matrimonial home and the appellant was preventing her. He has stated further that from his house, just across the road, he had noticed that at about 7.30 P.M., the Page No.# 12/16

deceased caught fire while she was on the road and therefore, he along with the appellant and others rushed to the deceased to save her. Pranjal Nath further stated that the deceased was coming out from her matrimonial house with a kerosene lamp in her hand and she caught fire after reaching the road.

42. The witness Babul Nath has stated that on the relevant day at about 7 P.M., he had seen the deceased coming out from the house of the appellant while she was still burning. According to Babul Nath, he tried to douse the fire with his hands. Babul Nath was told by the deceased at that time the appellant had poured kerosene upon her and set her on fire. There is no cross-examination on those facts.

43. After scrupulous perusal of the evidences of Pranjal Nath and Babul Nath, we find that the evidence of Babul Nath weighs heavily in favour of the prosecution. This fact is corroborated by the dying declaration made by the deceased.

44. There is no denial that the deceased died because of burn injuries. The question is as to whether the appellant had caused the death of the deceased.

45. Here, at this stage, we would rely upon a judgment of the Supreme Court delivered in P.V. Radhakrishna v. State of Karnataka, (2003) 6 SCC 443, having a similar factual matrix as of the present case. In paragraph 12, the court has held as under:

"12. 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 Page No.# 13/16

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 the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. 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 as indicated in Paniben v. State of Gujarat [(1992) 2 SCC 474 : 1992 SCC (Cri) 403 : AIR 1992 SC 1817] :

(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764] )

(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416] and Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164] .)

(iii) The 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 an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] .)

(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )

(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State Page No.# 14/16

of M.P. [1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021] )

(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P. [(1981) 2 SCC 654 : 1981 SCC (Cri) 581] )

(vii) Merely because a dying declaration does not [Added by official Corrigendum No. F.3/Ed. B.J./107/2003 dated 28-10-03] contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455 : 1981 SCC (Cri) 364 : AIR 1981 SC 617] .)

(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505] .)

(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912] )

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519] .)

(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700 : 1982 SCC (Cri) 334 : AIR 1982 SC 839] .)"

46. Reverting to the case in hand, on the point raised by the learned Amicus Curiae, we have decided to disagree. If after careful scrutiny of the prosecution evidence, the court is satisfied that the dying declaration is true and free from any effort to induce the deceased to make a false Page No.# 15/16

statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration. In the instant case, there is nothing in the evidence to show that the dying declaration made by the deceased was the resultant product of imagination, tutoring or prompting the said dying declaration has been made voluntarily. Therefore, it is trustworthy and reliable.

47. We have carefully weighed the evidence in the light of the surrounding facts. The witness Babul Nath has stated in his evidence that the deceased told him that the appellant poured kerosene upon her body before setting her on fire and this fact has not been challenged by the appellant during cross-examination. PW-8 i.e. the Investigating Officer has recorded the dying declaration of the deceased and it is proved as Ext.2. There is no cross-examination on this point. The aforesaid facts lend credence to the dying declaration made by the deceased. Therefore, we have decided to accept the dying declaration. Thus, the offence under Section 302 of the Indian Penal Code is proved beyond all reasonable doubt against the appellant.

48. Under the aforesaid premised reasons, we are of the opinion that the learned trial court has correctly appreciated the prosecution evidence and arrived at a correct finding. We do not find any reasons to interfere into the impugned judgment.

49. Therefore, we find the appeal to be devoid of merit and the appeal stands dismissed accordingly.

50. Before parting with the record, we record our appreciation for the Page No.# 16/16

learned Amicus Curiae for assisting this Court. Registry is directed to pay the remuneration allowed by the rules to the learned Amicus Curiae.

Send back the LCR.

                                     JUDGE               JUDGE




Comparing Assistant