Crl.A. 135/2007 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI THE HON’BLE MR. JUSTICE C.R. SARMA (Ranjan Gogoi, J.) The appellant, who has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs .1,000/-, in default, to suffer rigorous imprisonment for six months more, has f iled this appeal challenging the judgment and order dated 6.6.2007 passed by the learned Sessions Judge, Nalbari in Sessions Case No. 76 of 2005. 2. The short case of the prosecution is that on 21.8.2004, P.W. 5, Shri Kuddus Ali, lodged a FIR in the Darangamela Police Outpost alleging that at about 7 P.M. of the previous night i.e. 20.8.2004, the accused appellant after trespassing into his house had set his daughter Kadbanu Begum on fire after pour ing kerosene on her. According to the first informant, his daughter was undergoi ng treatment at the Parkijuli Hosptial. On receipt of the aforesaid ejahar, an entry in the General Diary of the Outpost was made at 5 P.M. of 21.8.2004 ( GDE No.309) and the FIR was forwarded to the Tamulpur Police Station for registr ation of a case. On receipt of the aforesaid FIR at about 6.00 P.M. on 22.8.2000 4, Tamulpur P.S. Case No.70 of 2004 under Section 448/307 IPC was registered. Th e alleged victim having died on 10.9.2004, Section 302 PC was added to the list of offences involved in the aforesaid police case. 3. While the police had visited the place of occurrence and had pre pared the sketch map thereof immediately after the occurrence, after the victim died, inquest was held on the dead body which was also sent for postmortem exami nation. Statements of persons acquainted with the crime alleged were recorded. T hereafter, at the conclusion of the investigation, charge-sheet was submitted ag ainst the accused appellant under Section 448/302 IPC. The offence under Section 302 IPC being exclusively triable by the Court of Sessions, the learned Additio nal Chief Judicial Magistrate, Nalbari by order dated 7.12.2005 committed the ca se for trial to the Court of Sessions, Nalbari. In the Trial Court, charge under Section 448/302 IPC was framed against the accused appellant to which he pleade d not guilty. In the Trial Court, the prosecution examined (7) witnesses. One Co urt Witness was also examined. No evidence was led on behalf of the defence. How ever, the statement of the accused-appellant was recorded under Section 313 Cr.P .C. Thereafter, at the conclusion of the trial, the accused appellant has been c onvicted and sentenced, as aforesaid, giving rise to the present appeal. 4. Before proceeding any further, a brief resume of the evidence ad duced by the prosecution witnesses may be made. 5. P.W. 1, Ms. Premin Narzary, is the Staff Nurse attached to the P akrijuli Christian Hospital. P.W.1 was declared hostile as she did not support t he prosecution case. 6. P.W. 2, Rahabian Iswary, is an employee of the Parkijuli Mission Hospital. This witness had deposed that at about 8.30 P.M. of the particular da y, a woman was brought to the Hospital with 70% burn injuries. According to P.W. 2, it appeared that the name of the woman was Kadbanu Begum. P.W. 2 had deposed that the patient had stated before him in the Hospital that the accused appella nt had proposed to her and she having refused, kerosene oil was poured on her an d she was set on fire. According to P.W.2, the aforesaid statement was recorded by him in the presence of Dr.Prafulla Chandra Basumatary who had recorded the st atement in the hospital bed ticket (Ext.1). 7. P.W. 3, Must. Sakina Begum, is the mother of the deceased. In he r deposition she had stated that on coming to know of the incident and the fact that her daughter was taken to Parkijuli Christian Hospital, she went to the Hos pital. In the hospital, her daughter informed her that it is the accused appella nt who had poured kerosene on her and set her on fire. P.W.3 had deposed that th e deceased was in the hospital for about 16 days and, thereafter, she was taken home where she died after about 15 days. In cross-examination, P.W.3 had specifically stated that the dec eased was in a fit condition to talk. 8. P.W.4, Dr.Bhupesh Choudhury, had conducted the postmortem on the deceased on 10.9.2004 in the Barpeta Civil Hospital. The findings of the postmo rtem are as follows :- A female dead body, neither emanciated nor decomposed. Rigor mortis pres ent. Hair is singed, whole body is charred with blister somewhere except perineu m and axial. Face is swollen and distarded. Tongue protruded. In hand skin detac hed as gloves. Blister contains sensus fluid. In my opinion, the cause of death is due to neurogenic shock as a result of burn. Ext.2 is the post mortem report and Ext.2(1) is my signature and Ext.2(2 ) is the signature of the Jt. Director, Health Services, Barpeta. 9. P.W.5, Shri Kuddus Ali, is the first informant and the father of the deceased. According to this witness, on coming to know of the incident she had come to the house of his daughter. According to P.W.5, he was informed by hi s deceased daughter that it is the accused appellant who had set her on fire. 10. P.W. 6, Shri Khalilur Rahman, in his deposition had stated that he had visited the deceased in the Hospital on the day of the incident itself. A ccording to P.W.6, the deceased had told him that the accused appellant had offe red a proposal of marriage which she declined whereafter she was set on fire by the accused appellant. 11. P.W.7, Shri Naren Kalita, is the Police Constable who had stated that he had accompanied the police party to the Parkijuli Mission Hospital on b eing informed of the incident. According to P.W.7, in the presence of the In-cha rge of the Daranga Police Outpost, one Sankar Das (P.W.8), the deceased had made a statement that it is the accused appellant who had poured kerosene on her and set her on fire. P.W. 8, Shri Shankar Das, has corroborated the statement s made by P.W. 7. 12. The doctor who had treated the victim on her arrival in the Park ijuli Mission Hospital on 20.8.2004, one Dr. Prafulla Chandra Basumtary, was exa mined as C.W.1. In his deposition, this witness had stated that he had attended to the patient at about 8 P.M. on 20.8.2004 and found her to be suffering from 7 7% burn injuries. C.W.1 had deposed that the patient was in a conscious state an d, on being asked about the occurrence, she stated the details which were record ed in the Bed Ticket itself. The said part of the statement made by the deceased has been proved by C.W.1 as Ext.1(1) and his signature thereon as Ext. 1(4). Ac cording to C.W.1, the deceased had stated that while she was cooking in kitchen the accused appellant came and poured kerosene on her and set her on fire. The r eason for the said act of the accused as attributed by the deceased was her refu sal to the proposal of marriage made by the accused. 13. A reading of the evidence set out above will go to show that the re is a dying declaration which has been recorded by C.W.1 in the Hospital Bed T icket and the said statement has been proved as Ext.1(1) and his signature there on as Ext.1(4). According to C.W.1, who had recorded the aforesaid dying declara tion, the deceased was in a conscious state of mind, a fact which has been corro borated by P.W.2 in his evidence. That the deceased survived for nearly three we eks after the incident and was actually brought home where she eventually died h as also been proved by the prosecution. The above, in our considered view, woul d be ample testimony of the fact that the deceased was in a position to comprehe nd the situation and to make a statement before the doctor which was recorded as Ext.1(1). That apart, the evidence of the parents of the deceased, P.W.3 and 4, and the evidence of P.W.6 corroborate what has been recorded in the dying decla ration of the deceased by C.W.1. P.Ws.7 and 8 i.e. the Police Officers who had v isited the victim in the Purkijuli Mission Hospital had also corroborated what h as been recorded in the dying declaration. In such a situation we are left with no doubt that the statement of the deceased which was recorded by C.W.1 on the d ay of incident, is a true, correct and voluntary account of the circumstances su rrounding the death of the deceased. The evidence of C.W.1 as-well-as of P.W.2 t hat the deceased was conscious at the time when the statement was recorded and a lso the evidence of P.W.3 that the deceased survived for about three weeks, in o ur considered opinion, are sufficient to indicate that the deceased was in a fit condition to make the statement. We, therefore, are inclined to accept the dyin g declaration of the deceased. As in the said dying declaration the accused appe llant has been implicated without any element of doubt or ambiguity, we are of t he view that the conviction of the accused appellant recorded by the learned Tri al Court does not suffer from any infirmity. We, therefore, uphold the said conv iction recorded as well as the sentence imposed by the Trial Court and dismiss t he appeal filed by the accused-appellant.