TANUA RABIDASversusSTATE OF ASSAM

                       [2014] 8 S.C.R. 1142


A                       TANUA RABIDAS
                                V.
                       STATE OF ASSAM
               (Criminal Appeal No.1503 of 2007)
                      SEPTEMBER 4, 2014
B
     [M.Y. EQBAL AND PINAKI CHANDRA GHOSE, JJ.]

       Penal Code, 1860 - s. 302 - Conviction and sentence
  under, on basis of the dying declaration - Prosecution case
C that husband along with the co-accused present in the house,
  poured kerosene oil upon his wife and ignited her - Incident
  took place nine years after the marriage - Wife succumbed
  to the burn injuries in the hospital - On basis of the
  prosecution evidence and two dying declarations, conviction
D of the husband uls. 302 and imposition of life imprisonment,
  by courts below - Held: There is no infirmity or perversity in
  the order passed by the courts below - Statement of the doctor.
  and the nurse that the victim made a dying declaration that
  her husband poured kerosene oil on her and set her on fire
E fully corroborated by prosecution witnesses - Victim not
  known to the doctor and the nurse nor they were interested
  witnesses - Evidence of the doctor and the nurse was a very
  important piece of evidence and there was no evidence to the
  contrary that any effort was made by anyone to induce the
F deceased to make the false statement - Also, 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 - Evidence.

       Prosecution case was that the appellant-accused
G after nine years of marriage, along with co-accused
  present in the house, poured kerosene oil on his wife and
  set her on fire. The victim was taken to the hospital where
  she succumbed to the burn injuries. PW-1, brother of the

H                              1142
       TANUA RABIDAS v. STATE OF ASSAM                1143


victim, lodged an FIR. Investigation was carried out. PW      A
8 who had accompanied PW 1 to the hospital deposed
that deceased had made a dying declaration in their
presence stating that her husband had set her on fire.
The doctor who conducted autopsy deposed that death
was due to shock resulting from burn injuries. The victim     B
made a dying declaration before PW 6-doctor and PW 7-
nurse working in the hospital,_ that her husband poured
kerosene oil upon her and ignited it. On basis of the
evidence and the two dying declarations, the trial court
convicted the appellant for the offence punishable u/s.       c
302 IPC and imposed life imprisonment. The High Court
upheld the order. Hence, the instant appeal.
        ~

    Dism1ssing the appeal, the Court

     HELD: On going through the evidence it is found          D
that the statement of PW-6-doctor and PW-7-nurse 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. The submission
that the evidence of PW-6 cannot be believed because          E
PW-6 did not inform the police about the dying
declaration made by the deceased while she was
brought to the hospital, cannot be accepted.
lndisputedly, PW-6 and PW-7 came in contact with the
victim only when she was brought to the hospital for          F
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. In that
view of the matter, the evidence of PW-6 and PW-7 is a
very important piece of evidence and the trial court          G
rightly held the appellant guilty of the offence punishable
under section 302 IPC as also affirmed by the High Court.
Moreover on careful scrutiny, the Sessions Court was
fully satisfied that the evidence of PW-6 was true and
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    1144     SUPREME COURT REPORTS              [2014] 8 S.C.R.


A   there was 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. Thus, there is no infirmity or perversity in
8
    the judgment and order of conviction and sentence
    passed the trial court and affirmed by the High Court.
    [Para 12, 13, 14, 15, 17, 18] [1147-G, H; 1148-A-C; E-G]

         Surinder Kumar v State of Haryana (2011) 10 SCC 173-
C   distinguished.

        State of Rajasthan vs. Kishore 1996 (2) SCR
    1103:(1996) 8 sec 217-relied on.

                        Caes Law Reference :
D
       c2011) 10 sec 113          distinguished        Para 16
       1996 (2) SCR 1103          relied on            Para 17

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
E   No.1503 of 2007.

        From the Judgment and Order dated 20.03.2007 of the
    High Court of Guwahati in Criminal Appeal No. 118 of 2006.

          P.K. Goswami, Parthiv K. Goswami, A. Henry, Rajiv Mehta
F   for the Appellant.

        Avijit Roy (For Corporate Law Group) for the Respondent.

        The Judgment of the Court was delivered by
G       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
H
       TANUA RABIDAS v. STATE OF ASSAM                     1145
                [M.Y. EQBAL, J.]

the co-accused Sarbananda Das but held the appellant guilty         A
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              B
Criminal Appeal No.118 of 2006, affirmed tne 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
                                                                    c
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
                                                                    D
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    E
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.                                    F

     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-            G
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.
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    1146     SUPREME COURT REPORTS               [2014) 8 S.C.R.


A        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.

B        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.
c        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.
D
      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
E epidermal in severity.

       8. Besides the oral dying declaration, the victim also made
  a dying declaration before PW-6 Dr. lmnuksungba
  Langkumer who is working at Jorhat Christian Hospital. This
  witness has deposed that on 04.12.1999, he had examined the
F 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
G 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.

H
      TANUA RABIDAS v. STATE OF ASSAM                    1147
               [M.Y. EQBAL, J.]

     9. On the basis of evidence adduced from the side of the A
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 B
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 C
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 D
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.
                                                                   E
      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- F
 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 G
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
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    1148         SUPREME COURT REPORTS              [2014) 8 S.C.R.


A   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. lndisputedly, PW-6 Dr. Langku_mer and PW-7
    Nabanita Barauh came in contact with the victim only when she
B   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.

C        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.
D        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
E   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
F   the dying declaration doubtful and unbelievable as held by this
    Court in the case of State of Rajasthan vs. Kishore - (1996)
    a sec 211.
          18. After giving our anxious consideration in the matter, we
    do not find any infirmity or perversity in the judgment and order
G   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.

H   Nidhi Jain                                       Appeal dismissed.