'Dying Declaration Was Voluntary, Truthful': Gauhati High Court Upholds Conviction Of Man Found Guilty Of Setting Wife Ablaze

While dismissing the appeal challenging the conviction, the division bench of Justice Michael Zothankhuma and Justice Parthivjyoti Saikia held:

“The evidence adduced clearly show that the appellant had set the deceased on fire and that the deceased had died due to burn injuries suffered by her. On considering the dying declaration and the corroboration of the same by the evidence adduced by PW-7 and PW-11, besides the evidence of PW-2, PW-3, PW-10 and PW-12, we are of the view that the dying declaration was voluntary and truthful, so as to considered to be a dying declaration of the deceased. No evidence has been adduced, which is inconsistent with the drying declaration.”

The deceased was set on fire by the appellant after pouring kerosene oil on her. On the basis of the investigation, a case was found made out against the appellant under Sections 304B IPC and 302 IPC and charge-sheet was filed.

During his examination under section 313 of CrPC, 13 questions were put to the appellant to which he said he has nothing to say. The trial court found appellant guilty and convicted him under Section 302 IPC, vide the impugned Judgment & Order dated 22.07.2019.

The amicus curiae B. Sharma stated before the High Court that there was no eye witness to the incident and that the statement of the daughter of the deceased, recorded under Section 164 CrPC, cannot be admissible as evidence, as she was not examined by the trial court.

"This Court is also of the view that the same is inadmissible in evidence. The reason being that the said statement made by the daughter of the deceased was not exhibited by the person who recorded the statement and also due to the fact that the maker of the statement was not examined by the learned Trial Court," said the bench.

However, the court observed that the evidence of the Investigating Officer is to the effect that he proceeded to Goalpara Civil Hospital, where he interrogated and recorded the statement of the deceased. It also noted that the IO also stated that he submitted a prayer before a doctor for recording the dying declaration of the deceased, following which the doctor recorded the dying declaration.

"Subsequently, PW-12 also examined the other witnesses and visited the place of occurrence. He also states that the deceased died on the way to Gauhati Medical College & Hospital, for which the dead body was brought back to Goalpara Civil Hospital. An inquest was held by an Executive Magistrate and Post Mortem was done thereafter," the court noted.

It also noted that the doctor, who performed post-mortem, said that a patient having an injury of such a nature may talk for a certain period before death.

The court relied upon Mehiboobsab Abbasabi Nadaf v. State of Karnataka (2007) 13 SCC 112 in which the Supreme Court held that conviction can indisputably be based on a dying declaration. "However, before it can be acted upon, the same must be held to have been rendered voluntarily and truthfully. Consistency in the dying declaration is the relevant factor for placing full reliance thereupon," it said

The court observed that in view of the complete denial and silence on the part of the appellant with regard to the questions put to him under Section 313 CrPC,  an adverse inference can be drawn against him that he was guilty of the offence under Section 302 IPC, besides keeping in view the fact that the dying declaration of the deceased inspires the confidence of the court.

"We are also of the view that dying declaration of the deceased was correctly recorded by the PW-7 Dr. Somser Ali,” it added, while dismissing the appeal.

Case Title: Manish Kumar Das @Raja v. The State of Assam & Anr.

Citation: 2023 LiveLaw (Gau) 25

Coram: Justice Michael Zothankhuma and Justice Parthivjyoti Saikia

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