CAUSE TITLE:
Manish Kumar Das @ Raja V. The State Of Assam And Anr.
DATE OF ORDER:
16 February 2023
JUDGE(S):
Hon’ble Mr. Justice Michael Zothankhuma ane Hon’ble Mr. Justice Parthivjyoti Saikia
PARTIES:
Appellant: Manish Kumar Das @ Raja
Respondent: The State Of Assam And Anr.
SUBJECT:
The Hon’ble Guahati High Court (hereinafter referred to as ‘the Court’), upheld conviction of the appellant and sentenced him to imprisonment for life under section 302 IPC for settling his wife ablaze. The appellant was found guilty on the basis of the dying declaration of his deceased wife.
Accordingly, the appeal was dismissed.
IMPORTANT PROVISIONS:
Indian Penal Code, 1860
- Section 302 - Punishment for murder - Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.
- Section 304B - Punishment for dowry death - Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
Indian Evidence Act, 1872
Section 32 - Cases in which a statement of relevant fact by a person who is dead or cannot be found, etc ., is relevant. —Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases: -
- When it relates to cause of death;
- When made in course of business;
- When made against interest of maker;
- When it gives opinion as to public right or custom, or matters of general interest
Section 33 - Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated - Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable.
BRIEF FACTS:
- In the present case, the appellant husband set his wife, the deceased, on fire by pouring kerosene oil over her body. After the police investigation, a case was found made out against the appellant husband u/s 302 IPC and 304B IPC and a charge-sheet was filed. An examination was conducted under section 313 of CrPC, where 13 questions were asked from the appellant to which he denied to say anything.
- The Ld. Trial Court found the appellant guilty of his wife’s murder and convicted him under Section 302 IPC, vide the impugned Judgment & Order dated 22.07.2019.
- The present appeal was filed against the impugned judgement and order dated 22.07.2019 passed by the learned Sessions Judge, Goalpara in Sessions Case No. 289/2017.
- The learned Amicus Curiae in this case submitted that there was no eye witness at the scene of crime and that the statement of the daughter of the deceased, recorded u/s 164 Cr.P.C is inadmissible as she was not examined by the Trial Court.
QUESTIONS RAISED:
- Whether the Trial Court erred in convicting the appellant under section 302 IPC?
- Whether the dying declaration of the victim is admissible in the present case?
ARGUMENTS ADVANCED BY THE APPELLANT:
- The counsel for the appellant argued that there is no clear cut evidence that proves that the appellant is guilty of murdering his wife by setting her ablaze.
- It was further contended by the appellant that there are no eye witnesses who can vouch for the case made by the Investigating Officer (PW-12) against him.
- Furthermore, the testimony of his daughter and her statement taken under section 164 Cr.P.C is inadmissible in the Court as the Ld. Trial Court failed to examine her statement.
ARGUMENTS ADVANCED BY THE RESPONDENTS:
- The learned Addl. Public Prosecutor (APP), Ms. S. Jahan, agreed with the contentions put forth by the counsel for the appellant that the statement of the daughter of the deceased u/s 164 Cr.P.C cannot be accepted as she was not examined by the Ld. Trial Court.
- It was then argued by the Ld. APP that the dying declaration of the deceased dated 20.04.2011 was recorded by PW-7 Doctor Somser Ali which was witnessed by a nurse at the same hospital (PW-11). The declaration stated that the appellant set his wife ablaze by pouring kerosene oil over her body and murdered her.
- It was further contended by the respondents that the evidence presented by the Investigating Officer (PW-12) and by Doctor Dipak Kr. Sarma (PW-8), who conducted the post-mortem on the deceased on 21.04.2011, indicated that the cause of death of the deceased was burn injuries.
ANALYSIS BY THE COURT:
- The Ld. Court agreed with the contentions put forth by the Ld. Amicus Curiae that the statement recorded of the daughter of the deceased is inadmissible.
- It was further observed that the evidence of the IO (PW-12) is to the effect that he visited the Goalpara Civil Hospital, where he recorded the statement of the deceased. It was submitted by the IO that the dying declaration of the deceased was recorded by the Doctor (PW-7) on his request.
- The Court pointed out that Doctor (PW-8), who performed post-mortem on the deceased, said that a patient suffering from such an injury is able to talk for a certain period before death and thus, the deceased was in the capacity to give her dying declaration.
- On the basis of the above observations, the Ld. High Court upheld the impugned Judgement of the Trial Court and convicted the appellant accused for the offence of murder under section 302 IPC on the basis of the dying declaration of his wife.
CONCLUSION
The Ld. Court upheld the conviction of the appellant accused who was charged under section 302 IPC for the offence of murdering his wife by setting her ablaze. The Court sentenced him to imprisonment for life and a fine for Rs. 10,000.
Accordingly, the appeal was dismissed.
