PETITIONER: NAJJAM FARAGHI Vs. RESPONDENT: THE STATE OF WEST BENGAL DATE OF JUDGMENT: 18/11/1997 BENCH: M.M. PUNCHHI, M. SRINIVASAN ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
Srinivasan,J.
The appellant is challenging the concurrent judgments
of the courts below whereby he was convicted for an offence
under Section 102 I.P.C. and sentenced to suffer
imprisonment for life. he was also directed to pay a fine of
Rs. 5000/-.
2. On the night of 29.6.85 the appellant poured kerosene
oil over the head of his wife from behind and lit a
matchstick and set her on fire. She was admitted in the
hospital around 1.00 AM on 30.6.85. Her statement regarding
cause of her death was recorded on 1.7.85 by PW 18, sub
inspector of police marked as Ex. 6. Another statement
marked as Ex.5 was recorded on 11.7.85 by PW 12, a
magistrate, who was sent to the hospital under orders of the
High Court. In both the statements she had stated that her
husband came home in a drunk condition in the mid night of
29.6.85 and assaulted her severely. She was driven out of
the room but as her two children were sleeping inside she
went back to the room. Then he poured kerosene oil from
behind and set fire. Her parents were sent for and her
father took her to the hospital. Thus in both the statements
she had accused her husband of having set fire to her after
pouring kerosene. The courts below relied upon the two
statements and also the evidence of the post mortem examiner
to the effect that the burn injuries were such that they
lead to the conclusion that the death was homocidal. The
courts below have also referred to all the circumstances of
the case and rejected the defence that the wife of the
appellants committed suicide or that the offence should if
at all be considered to the one under Section 306 I.P.C. and
not 302 I.P.C.
3. Learned counsel for the appellants places reliance on
the following circumstances:-
(i) The case history noted in Ex. A by PW 9, a senior House
surgeon as soon as the deceased was admitted in the hospital
states that the deceased tried to burn herself after pouring
kerosene on her person in a suicidal attempt.
(ii) The father of the deceased (PW 1) wrote a letter on
30.6.85 to the police which has been treated as First
Information Report in which it is stated that he was
convinced that his son-in-low abetted his daughter in
committing suicide.
(iii) PW 7 has stated that the deceased was speaking
normally soon after the incident and she claimed to have set
fire on herself.
(iv) The two statements recorded by the Sub Inspector of
police and the Magistrate marked as Exb. 6 and 5
respectively cannot be considered as dying declaration and
given any weight as the deceased lived for twenty days and
more till 31.7.85.
(v) The Judicial Magistrate who recorded the statement in
Ex. 5 did not ascertain the mental condition of the deceased
and therefore her statement is not reliable in view of the
ruling in Kanchy Komuramma Versus State of Andhra Pradesh
1995 Supp. (4) S.C.C.118.
(vi) In the first instance the case was registered under
Section 306. When the charge was framed it was under Section
302 I.P.C. After examination of 9 witnesses, the Presiding
Officer of the Court framed an alternative charge under
Section 306 I.P.C. The accused moved the High Court against
the order framing an alternative charge in a revision but
the same was dismissed. Thus the prosecution was in a
confusion as to whether the appellant was guilty under
Section 302 I.P.C. or under 306 I.P.c.
4. All the aforesaid circumstances have been considered in
detail by both the courts and it has been found that there
is no substance in the contentions put forward by the
defence. A perusal of the record shows that the death could
not have been suicidal and it was nothing but homicidal. PW
10 the post mortem examiner has stated as follows:-
“Death in my opinion was due to
effect of ante-portem burns. Taking
into consideration the sites and
extent of areas involved in my
opinion the burn was homicidal in
nature.
Burn injury causing death may be
accidental, suicidal or homicidal.
I found the injuries causing the
death to be homicidal. The sites as
described on examination of dead
body were mostly on inaccessible
parts of the victim, the areas were
very extensive. So I hold the
opinion that the death was in
homicidal in nature.
Injury Nos.1,3,4,5,6,7 as mentioned
by me were on the back side part
inaccessible part on the body of
the subject. These injuries were
very extensive too. From these
injuries I hold the opinion the
death was homicidal in nature
caused by those injuries which were
burn injuries. On the front side of
the trunk of the body I did not
find any injuries. In regard to her
face I did not find injuries
exactly on the front side.
There is no injury observed by me
that could lead me to hold that it
was a suicidal death.”
Nothing could be elicited in the cross-examination to
discredit his aforesaid opinion. Both the courts have
accepted his evidence and come to the conclusion that the
case falls under Section 302 I.P.C. We do not find any
justification to take a different view.
5. The courts below have also referred to the circumstance
that the accused who was admittedly present at the scene of
occurrence did not make any attempt to put out the fire and
save his wife. His case that the did so and got burn
injuries in the process has been rightly negatived. The
evidence on record shows that he has made a clumsy attempt
to inflict some injuries on himself in order to make the
court believe that the attempted to put out the fire.
6. The history of the case recorded in the hospital in
Ex.A has not been proved to have been given by the deceased.
The courts below have rightly refused to attach any value
thereto.
7. The father of the deceased did not have the necessary
information at the time of FIR as his daughter was not in a
position to speak when she was taken by him to the hospital.
8. The evidence of PW 7 has also been considered in the
proper perspective by the courts below. There is nothing on
record to support the contention of the appellant that the
deceased was tutored by her parents to make statements
against her husband when she gave the dying declarations.
The courts below are right in rejecting that case.
9. There is no merit in the contention that the appellant
died long after making the dying declarations and therefore
those statements have no value. The contention overlooks the
express provision in Section 32 of the Evidence Act. The
second paragraph of sub-section (1) reads as follows:- “Such
statements are relevant whether the person who made them was
or was not, at the time when they were made, under
expectation of death, and whatever may be the nature of the
proceeding in which the cause of his death comes into
question” No doubt it has been pointed out that when a
person is expecting his death to take place shortly he would
not be indulging in falsehood. But that does not mean that
such a statement loses its value if the person lives for a
longer time then expected. The question has to be considered
in each case on the facts and circumstances established
therein. If there is nothing on record to show that the
statement could not have been true or if the other evidence
on record corroborates the contents of the statements, the
court can certainly accept the same and act upon it. In the
present case both courts have discussed the entire evidence
on record and found that two dying declarations contained in
Exs 5 and 6 are acceptable.
10. The records show that the mental condition of the
deceased was sufficiently good to give a statement to the
Magistrate.
11. The mere fact that the case was registered intially
under Section 306 I.P.C. and later after examination of 9
witnesses as alternative charge under the same Section was
framed will not vitiate the proceedings or the conclusions
of the courts below. There is not doubt that the charge
under Section 308 IPC has been proved beyond doubt.
12. We have perused the records. We find ourselves in
agreement with the judgments of the courts below. Hence the
appeal is dismissed.