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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  

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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  

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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  

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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.  

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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  

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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  

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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  

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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  

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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.  

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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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