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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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