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Wednesday, September 17, 2014

Dying Declaration - oral report mentioned at the time of admission in case sheet to duty doctor - that husband poured kerosin and lit fire orally amounts to dying declaration - to the Nurse is also amounts to dying declaration - absence of kerosin smell on the hairs of deceased in forensic test - makes no difference for coming to conclusion when Dying Declaration was corroborated by Evidence and further Surinder Kumar (Supra) is distinguishable for the simple reason that the dying declaration fully supports the prosecution version. - Apex court dismissed the appeal =CRIMINAL APPEAL NO.1503 OF 2007 TANUA RABIDAS .....APPELLANT VERSUS STATE OF ASSAM ....RESPONDENT = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41876

  Dying Declaration -  oral report mentioned at the time of admission in case sheet to duty doctor - that husband poured kerosin and lit fire orally amounts to dying declaration - to the Nurse is also amounts to dying declaration - absence of kerosin  smell on the hairs of deceased in forensic test - makes no difference for coming to conclusion when Dying Declaration was corroborated by Evidence and further Surinder  Kumar (Supra) is distinguishable for the simple reason that the dying  declaration fully supports the prosecution version. - Apex court dismissed the appeal =

Besides the oral dying declaration,  the  victim  also  made  a  dying
declaration before PW—6 Dr. Imnuksungba Langkumer who is working  at  Jorhat
Christian Hospital. This witness has deposed  that  on  04.12.1999,  he  had
examined the victim who was brought to the  hospital  in  burned  condition.
The witnesses has deposed that he had   enquired from the patient as to  how
she sustained burn injuries whereupon she reported that her  husband  poured
kerosene oil upon her and ignited it. While recording the case history,  PW-
6 Dr. Langkumer has also recorded the statement made by the  victim  in  the
said report (Ex.6). The evidence of PW-6 Dr. Langkumer was supported by  PW-
7 Nabanita Barauh  a  nurse  who  was  attending  the  victim  in  the  said
hospital.

9.    On the basis of evidence adduced from  the  side  of  the  prosecution
including the two dying declarations, the trial court  found  the  appellant
guilty of the offence punishable  under  section  302  IPC  and  accordingly
sentenced him to undergo life imprisonment and to  pay  fine  of  Rs.1,000/-
with default clause. The High Court on appeal filed  by  the  appellant  re-
appreciated the entire evidence and affirmed the  finding  recorded  by  the
trial court and dismissed the appeal.=

Mr.  Goswami  strenuously  argued  that  the  evidence  of  PW-6  Dr.
Langkumer cannot be believed because PW-6 did not inform  the  police  about
the dying declaration made by the deceased while  she  was  brought  to  the
hospital.

   We do not find any force  in  the  submission  made  by  Mr.  Goswami.
Indisputedly, PW-6 Dr. Langkumer and PW-7 Nabanita Barauh  came  in  contact
with the victim only when she was brought to  the  hospital  for  treatment.
There is nothing on record to show  that  the  victim  was  known  to  them.
Further, they are  not  related  to  the  victim  nor  they  are  interested
witnesses.

15.   In that view of the matter, the evidence of  PW-6  Dr.  Langkumer  and
PW-7 Nabanita Barauh is a very important piece of  evidence  and  the  trial
court has rightly held the appellant guilty of the offence punishable  under
section 302 IPC as also affirmed by the High Court.

16.   The decision relied on by Mr. Goswami in the case  of  Surinder  Kumar
(Supra) is distinguishable for the simple reason that the dying  declaration
fully supports the prosecution version.

17.   Moreover on careful scrutiny, the Sessions Court was  fully  satisfied
that the evidence of PW-6 Dr. Langkumer is true and there is no evidence  to
the contrary that any effort was made by anyone to induce  the  deceased  to
make the false statement. Further absence of smell of kerosene  oil  in  the
hair of the deceased sent for  chemical  examination  does  not  render  the
dying declaration doubtful and unbelievable as held by  this  Court  in  the
case of State of Rajasthan vs. Kishore – (1996) 8 SCC 217.

18.   After giving our anxious consideration in the matter, we do  not  find
any infirmity or perversity in the judgment  and  order  of  conviction  and
sentence passed the the trial court and affirmed by the High Court.

19.   For the aforesaid reasons, there is no merit in this appeal  which  is
dismissed accordingly.
2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41876
                                                                REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO.1503 OF 2007


TANUA RABIDAS                     .....APPELLANT
                                   VERSUS
STATE OF ASSAM                    ....RESPONDENT


                               J U D G M E N T

M. Y. Eqbal, J.

      The appellant was put on trial along with  co-accused  Sarbananda  Das
for offence under section 302/326/34 of the Indian  Penal  Code  (for  short
the  'IPC').  The  Additional  Sessions  Judge,  Jorhat  by  judgment  dated
30.03.2006 in Sessions Case No.27(J.J.) of 2005,  acquitted  the  co-accused
Sarbananda  Das but held the appellant guilty of offence under  section  302
IPC and sentenced him to undergo rigorous  imprisonment  for  life  and  pay
fine  of  Rs.1,000/-  with  default  clause.  Aggrieved  by  the  same,  the
appellant preferred  appeal  before  the  High  Court.  The  High  Court  by
impugned judgment and order  dated  20.03.2007  passed  in  Criminal  Appeal
No.118 of 2006, affirmed the conviction and sentence of  the  appellant  and
dismissed  the  said  appeal.      Aggrieved  by  the  same,  the  appellant
preferred this appeal by special leave.

2.    According to the prosecution, the appellant-accused Tanua Rabidas  was
working as an Assistant in the Social Welfare  Department.  He  was  married
with Meera Saikia Rabidas and both were living together and  had  no  issue.
On the day of their marriage anniversary, it was alleged that  the  accused-
appellant along with co-accused Sarbananda Das were present  in  the  house.
The appellant poured kerosene oil upon his wife and set  her  on  fire.  She
was immediately  removed  to  Mission  Hospital,  Jorhat  and  therefrom  to
Dibrugarh Medical  College  Hospital.  The  victim  succumbed  to  the  burn
injuries. The First Information Report (for short the 'FIR') was  lodged  at
Jorhat Police Station Case No.496/99 by PW-1 Atul Saikia the brother of  the
victim. After usual investigation, the  police  submitted  the  charge-sheet
against both the accused under sections 302/326/34  IPC  and  the  case  was
accordingly committed to the Sessions Court.

3.    The prosecution examined  as  many  as  seven  witnesses.   PW-1  Atul
Saikia the brother of the victim in his evidence stated that his sister  was
married with the  accused-appellant  nine  years  before  the  incident.  He
deposed that the accused-appellant had two wives prior to the marriage  with
his sister and he had deserted first wife before marrying  his  sister.  He,
on being informed about the incident went to the Hospital  and  was  advised
by the Doctor to take his sister to the Dibrugarh Medical  College  Hospital
for better treatment.

4.    PW-2 is the son of the accused-appellant from his first wife.  He  was
living with the couple but he deposed that after hearing a commotion he  saw
his step-mother near the gateway.

5.    PW-3 and PW-4 are the neighbourers of the victim.  After  hearing  the
commotion, they also saw the victim near the gateway. PW-8  had  accompanied
PW-1 to the hospital  and  deposed  that  the  deceased  had  made  a  dying
declaration in their presence stating that her husband had set her on  fire.


6.    Another person  present  at  the  time  of  the  occurrence  was  Mamu
Borbora, a maid servant. Her statement was recorded  under  section  164  of
the Code of Criminal Procedure but she could not be examined because of  her
absence and she was traceless.

7.    Dr. Rupak Kr. Gogoi, who conducted autopsy over the dead body  of  the
victim, was examined. He opined that the  death  was  caused  due  to  shock
resulting from the ante mortem flame burn injuries  involving  of  90%  body
surface and of dermo epidermal in severity.

8.    Besides the oral dying declaration,  the  victim  also  made  a  dying
declaration before PW—6 Dr. Imnuksungba Langkumer who is working  at  Jorhat
Christian Hospital. This witness has deposed  that  on  04.12.1999,  he  had
examined the victim who was brought to the  hospital  in  burned  condition.
The witnesses has deposed that he had   enquired from the patient as to  how
she sustained burn injuries whereupon she reported that her  husband  poured
kerosene oil upon her and ignited it. While recording the case history,  PW-
6 Dr. Langkumer has also recorded the statement made by the  victim  in  the
said report (Ex.6). The evidence of PW-6 Dr. Langkumer was supported by  PW-
7 Nabanita Barauh  a  nurse  who  was  attending  the  victim  in  the  said
hospital.

9.    On the basis of evidence adduced from  the  side  of  the  prosecution
including the two dying declarations, the trial court  found  the  appellant
guilty of the offence punishable  under  section  302  IPC  and  accordingly
sentenced him to undergo life imprisonment and to  pay  fine  of  Rs.1,000/-
with default clause. The High Court on appeal filed  by  the  appellant  re-
appreciated the entire evidence and affirmed the  finding  recorded  by  the
trial court and dismissed the appeal.

10.   Mr. P.K. Goswami, learned Senior Counsel appearing for the  appellant,
assailed the impugned judgment and order of the High Court on  two  grounds.
He firstly contends that no reliance  can  be  placed  upon  Ex.6  i.e.  the
report prepared by Dr. Langkumer inasmuch as allegedly it was an oral  dying
declaration and that it was highly doubtful whether  the  victim  was  in  a
position to speak when she was admitted in Jorhat Mission Hospital with  90%
burn injuries. He put reliance on the decision of this Court in the case  of
Surinder Kumar vs. State of Haryana – (2011) 10 SCC 173.  He  contends  that
there was no smell of kerosene  oil  from  the  body  of  the  victim  which
falsifies the entire case of the prosecution.

11.   On the other hand,  learned  counsel  appearing  for  the  respondent-
State,  submits  that  the  prosecution  has  proved  the  case  beyond  all
reasonable doubt. The evidence of PW-6  and  PW-7  i.e.  Dr.  Langkumer  and
Nabanita Barauh a nurse in the Jorhat Mission Hospital,    have  been  fully
corroborated by PW-1 and PW-8.

12.   We have gone through the evidence and we find that  the  statement  of
PW-6 Dr. Langkumer and PW-7 Nabanita Baruah that the  victim  made  a  dying
declaration that her husband poured kerosene oil on her and set her on  fire
has been fully corroborated by PW-1 and PW-8.

13.    Mr.  Goswami  strenuously  argued  that  the  evidence  of  PW-6  Dr.
Langkumer cannot be believed because PW-6 did not inform  the  police  about
the dying declaration made by the deceased while  she  was  brought  to  the
hospital.

14.   We do not find any force  in  the  submission  made  by  Mr.  Goswami.
Indisputedly, PW-6 Dr. Langkumer and PW-7 Nabanita Barauh  came  in  contact
with the victim only when she was brought to  the  hospital  for  treatment.
There is nothing on record to show  that  the  victim  was  known  to  them.
Further, they are  not  related  to  the  victim  nor  they  are  interested
witnesses.

15.   In that view of the matter, the evidence of  PW-6  Dr.  Langkumer  and
PW-7 Nabanita Barauh is a very important piece of  evidence  and  the  trial
court has rightly held the appellant guilty of the offence punishable  under
section 302 IPC as also affirmed by the High Court.

16.   The decision relied on by Mr. Goswami in the case  of  Surinder  Kumar
(Supra) is distinguishable for the simple reason that the dying  declaration
fully supports the prosecution version.

17.   Moreover on careful scrutiny, the Sessions Court was  fully  satisfied
that the evidence of PW-6 Dr. Langkumer is true and there is no evidence  to
the contrary that any effort was made by anyone to induce  the  deceased  to
make the false statement. Further absence of smell of kerosene  oil  in  the
hair of the deceased sent for  chemical  examination  does  not  render  the
dying declaration doubtful and unbelievable as held by  this  Court  in  the
case of State of Rajasthan vs. Kishore – (1996) 8 SCC 217.

18.   After giving our anxious consideration in the matter, we do  not  find
any infirmity or perversity in the judgment  and  order  of  conviction  and
sentence passed the the trial court and affirmed by the High Court.

19.   For the aforesaid reasons, there is no merit in this appeal  which  is
dismissed accordingly.


                                                     .....................J.
                                                               [M. Y. Eqbal]



                                                     .....................J.
                                                      [Pinaki Chandra Ghose]
New Delhi;
September 04, 2014









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