JUDGMENT
P.G. Agarwal, J.
1. This appeal by the convict Putul Chutia is directed against the judgment and order dated 3.11.1998 passed by the learned Sessions Judge, Lakhimpur in Sessions Case No. 69(NL)/97, whereby the appellant was convicted under Section 302 IPC and sentenced to imprisonment for life and pay a fine of Rs. 500, in default to further imprisonment for one month. According to the prosecution case, the appellant Putual Chutia married Queen @ Saikia sometime in the year 1995 and thereafter they lived as husband and wife. They were working couple. The wife was serving in a Minor Irrigation Department and the husband was serving as a Clerk in a College. The couple was blessed with a son sometime in the month of July 1996 and within 2 1/2 months of the said birth of the child, the present incident took place leading to the death of a young good looking wife of the appellant.
2. The factual matrix as unfolded by the evidence on record shows that on 11h September, 1996 after taking their diner, the couple retired to their bedroom. They were living in a joint family and the father, mother and sister of the appellant were staving in other rooms. At night the other family members heard certain shouting coming out from the room of the appellant. They also heard the deceased shouting for help. The family members knocked at the door which was locked from inside. Thereafter, the door was opened by the accused and they saw the deceased in flames. She was removed to the nearby hospital at Boginodi where the Doctor showed his inability to treat the patient and considering the seriousness of the bum injury the deceased was removed to North Lakhimpur Civil Hospital. The father of the appellant lodged an information at the Police Station stating that his daughter-in-law has tried to commit suicide by pouring Kerosene on her body and set herself on fire. The family members of the deceased were informed and they rushed to the hospital. The young wife suffered pangs for about 24 hours and succumbed to her injuries on the night of 12.9.1996. The father of the deceased lodged written FIR on the next day of the incident stating inter alia, that her daughter has been burnt to death by her husband by pouring Kerosene oil and set her ablaze. In the FIR it was stated that the deceased made oral dying declaration before them that her husband Putul Chutia wrapped her body with Sari and tied her hands and legs and thereafter poured Kerosene oil and set fire on her body.
3. Police, after usual investigation submitted charge-sheet against the appellant husband. The trial court framed charges under Section 302 IPC. During trial prosecution examined, as many as 8 witnesses including the Doctor. The defence did not adduce any evidence. The defence plea is of complete denial. On conclusion of the trial the appellant was convicted and sentenced aforesaid. Hence the present appeal.
4. In the present case, the incident on the night of 11.9.1996 in the house of the appellant Putul Chutia, wherein his wife Queen Saikia @ Chutia sustained burn injuries is concerned there is overwhelming oral and medical evidence on record. PW4 Smt. Budheswari Chutia is the mother of the appellant and PW 3 and PW 5 are the two neighbours. They have also deposed about the incident and they saw burnt injuries on the person of the deceased. She was removed to hospital and she died on the next date, i.e. after 24 hours.
PW-8 Dr. Druna Kanta Gogoi who held the post mortem on the dead body found as follows:
“External appearance: The interior surface of the whole body from neck to the foot was burnt. On the posterior side, only the loin portion was burnt. Lower part of the forearm and hands were found burnt. In all surfaces on abdomens, enterior surface of the whole abdomen was burnt. Mouth Phyarynx and Oesophagues were congested. Stomach was found empty. In small intestine semidigested food material was present. Large intestine, foeceal matter was present.
On the organs of generation was also burnt. Internal organs not affected by burns.
More detail of the description of the injuries given :
(1) Enterior surface of the body from the below the chin was found burnt upto the foot.
(2) Only the posterior portion of the back was found burnt. On the lower portion of the forehead, with hands were found burnt. The remaining portion of the upper limbs were from burse.”
5. In the opinion of the Doctor the death was due to traumatic shock and dehydration caused by burns. There is no meaningful cross-examination to the medical evidence on record. Thus the death of the deceased as a result of the burn injuries is well established.
6. The prosecution case rests on circumstantial evidence and the dying declaration of the deceased; whereas the case of the appellant is that the deceased for the reasons best known to her committed suicide by pouring Kerosene oil on her dead body at dead of night and the husband tried to put out the fire but failed and in the process he sustained some burn injuries on his hands.
7. Admittedly, there is no written dying declaration although the evidence on record shows that the I.O. made a request to the Doctor at 8.00 PM on 12.9.1996 but surprisingly no dying declaration was recorded. PW 1 Sri Saruram Saikia and PW 2 Smt. Akonbala Saikia, the father and mother of the deceased, deposed that on arrival at the hospital they found their daughter in the bed and on enquiry she stated :
“I have been burnt by Putul and he has ruined me”, Sheasked for tea and PW 1 gave her tea. PW2. on the other hand, states that on being asked the deceased told : She was gagged, hands and feet were tied and she was assaulted by her husband, as she did not die her husband set fire on her body.”
8. Section 32 of the Evidence Act provides that a dying declaration may be in writing or verbal. The absence of a written dying declaration in the present case must be due to the indifferent and callous attitude of the police persons and the Doctors attending the patient in such burn injury cases. The learned counsel for the appellant has submitted that there is no evidence on record to show that the deceased was in a physical and mentally fit condition to make the dying declaration. The Doctor, who was attending the patient for more than 24 hours had not been examined. However, the nurse PW 6 Smt. Chandika Bora was on the night duty and was administering saline. She has stated that on the night of the occurrence itself she had asked the deceased as to how she received the burn injuries but the victim did not reply. She did not ask anything on the next day. The medical evidence on record shows that the deceased sustained severe burn injuries from feet upto the neck only. The upper portion was not affected in any manner. PWs 1 and 2 have deposed that the victim was in a position to talk and on being asked by her she was given tea etc. These two witnesses have not been cross-examined on this point and even no suggestion had been given to them that the deceased was not in a position to speak. This may be due to the reasons that the defence has come out with a plea that Queen Chutia had committed suicide as stated by her before PW 3, 4 and 5. PW 4 has stated that after the daughter-in-law came out from the room she enquired as to what has happened and the helpless wife claimed “I don’t know as to what has happened, I have killed myself by pouring Kerosene oil and set fire”. This witness have further stated that the victim herself came out walking from the room and boarded the car. Thus the trial court rightly held that the victim was in a position to make the statement. Learned counsel for the appellant has further submitted that the exact words allegedly spoken by the deceased are not before the Court as PWs 1 and 2 have given two different statements. The evidence on record shows that these two statements made on two different occasions before PWs 1 and 2. They have not quoted the single statements made in their presence. Although it is desirable that the exact words spoken by the deceased are reproduced but the requirement is not mandatory. The circumstances under which a statement is made and the persons who heard such statement can not be expected proper frame of mind to remember each and every words so that in case need arises or the victim does not survive, they may have to repeat the same before police or court. There is no discrepancy in both the statements as to the name of the assailant or the manner in which she was led to her death. Sometimes it is seen that the close relative of the victim have a tendency to add embroidery or exaggerate certain facts but that does not mean that the entire statement is false. Further we find that in the present case the witness has not tried to implicate or rope in the family members of the appellant by fabricating or concocting their names. This conduct of the two witnesses lends credence to their testimony as regards the dying declaration.
9. Section 32 of the Evidence Act applies to cases of homicide as well as suicide. The question that crops up for determination is whether this is a case of homicide as claimed by PWs 1 and 2, or whether it is a case of suicide as claimed by PW 4. It may be mentioned here that the accused has not come out with any specific plea (he was not required to do so) as to how his wife died. The question is which of the dying declaration – one made before PWs 1 and 2 and the other PW 4 are reliable and true.
10. The law regarding oral dying declaration has been laid down in 1992 (4) SCC 224 and in the case of Gulum Hussain and Anr. v. State of Delhi, reported in 2000 (7) SCC 254.
11. In the case of Prakash and Anr. v. State of MP 1992 (4) SCC 225, the Apex Court had the occasion to consider the evidentiary value of oral dying declaration and the Apex Court held :
“It is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that It was unlikely that he could make any dying declaration. In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the fist opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants: In the instance case there is no occasion to hold that the deceased was not in a position to identify the assailants because it is nobody’s case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration. Such a finding is not perverse requiring the Supreme Court’s interference.”
12. Learned counsel for the appellant has further submitted that in the instant case there are two sets of dying declaration – one made before the father and the other before the mother of the deceased. As stated above, the substance of both the dying declaration is same and there is no discrepancy. Learned Public Prosecutor has submitted that in case one of the dying declaration is thrown out conviction can be based on the remaining dying declaration provided it stands corroborated. In support of the submission learned Public Prosecutor has placed reliance on the decision of the Apex Court in the case of Gulam Hussain and Anr. v. State of Delhi, 2000 (7) SCC 254. In the present case, we find that the informant father of the deceased has mentioned about the making of the dying declaration in the FIR itself. On the other hand, the statement of the mother Smt. Akonbala was recorded under Section 164 CrPC before the Magistrate, wherein she had stated about the making of the dying declaration by her daughter implicating the accused husband. The dying declaration also stands corroborated by substantial evidence. The learned Public Prosecutrix has submitted that besides the oral and dying declaration there are other circumstantial evidence which corroborates the dying declaration leading to the only conclusion that it was accused and accused alone, who has committed this ghastly crime.
13. As stated above, the room in which the alleged incident of burn took place was the bed room which was shared by the appellant husband of the deceased. Thus, the accused was the only person besides the 2 1/2 months old suckling baby who was with the deceased at the relevant time, Even the mother PW 4 has stated that the room was locked from inside and the room was opened by the accused on being asked by the witnesses. The deceased was sleeping in her cotton garments but at the relevant time a nylon sari was tied on her waste which caused extensive burn Injuries on the body of the deceased as disclosed by the medical evidence on record. The million dollar question is whether the young wife who has just given birth to a male child will try to commit suicide while sleeping beside the husband after tying sari and pouring Kerosene oil without the slightest knowledge of the husband ? According to the learned Public Prosecutor it is a cock and bull story and can not be relied on at all. On the other hand, the prosecution version is well supported by the evidence on record. It is stated that the accused tied hands and feet of the deceased from behind and gagged her mouth. Thereafter, tied a Sari on her waste and poured Kerosene oils and thereafter set her on fire. The inmates of the house were woken by the shouts of help made by the deceased. Exercising his right of silence the accused had kept mum and has not come out with any explanation. However, the inmates have nowhere stated that the appellant raised alarm or even opened the door of the house. Although in the FIR it has been stated that the rope by which the hands were tied were cut subsequently. The investigating police officer in his wisdom did not examine the witness who had made the above statement. The Inquest Report however supports the prosecution case. In Ext. 11 it is stated that it was found that her two hands and two legs were wrapped with bandage. If the deceased had poured Kerosene oil on herself and set herself on fire, there was no scope of tying up her hands or legs. The extensive injuries on the two hands and legs which necessitate bandage was due to wrapping or tying up the said portion which could not have been done by the deceased herself. This circumstance alone was sufficient to show that it is not the deceased but the accused who poured Kerosene oil after tying hands and legs of his beloved wife and gave her permanent relief from life. Apparently, the burnt nylon sari was seized from the bed room of the appellant along with the other garments having smell of Kerosene present.
14. Having considered the entire evidence on record along with the
dying declaration supported and corroborated by the circumstantial
evidence on record, we are in complete agreement with the view taken
by the learned Trial Court that it was the appellant and appellant
Putual Chutia alone, who kiled his wife by setting her on fire after
pouring Kerosene oil on her body. Hence the conviction and sentence
of the appellant needs no interference. The appeal stands dismissed.