Jiban Das Vs. State of Tripura - Court Judgment

Excerpt:
s.c. das, j. 1. this criminal appeal, under section 374 of cr.p.c. is directed against the judgment and order of conviction and sentence, dated 11-09-2007, passed by learned additional sessions judge, west tripura, agartala, in case no.st.(wt/a) 128 of 2003. learned additional sessions judge, found the convict appellant guilty of committing offence, punishable under section 302 of i.p.c. and sentenced him to suffer imprisonment for life and hence this appeal. 2. charge framed against the appellant, jiban das for commission of offence punishable under section 302 of ipc runs thus: “charge i, shri s. pal, sessions judge, west tripura, agartala, do hereby charge you, shri jiban das as follows:- that, you on 28-01-2003 at about 13.00 hours at village manoharpur (rajeswari nagar) under.....

Judgment:

S.C. Das, J.

1. This criminal appeal, under Section 374 of Cr.P.C. is directed against the judgment and order of conviction and sentence, dated 11-09-2007, passed by learned Additional Sessions Judge, West Tripura, Agartala, in Case No.ST.(WT/A) 128 of 2003.

Learned Additional Sessions Judge, found the convict appellant guilty of committing offence, punishable under Section 302 of I.P.C. and sentenced him to suffer imprisonment for life and hence this appeal.

2. Charge framed against the appellant, Jiban Das for commission of offence punishable under Section 302 of IPC runs thus:

“CHARGE

I, Shri S. Pal, Sessions Judge, West Tripura, Agartala, do hereby charge you,

Shri Jiban Das

As follows:-

That, you on 28-01-2003 at about 13.00 hours at Village Manoharpur (Rajeswari Nagar) under Amtali Police Station commit murder by intentionally or knowingly causing the death of Shipra Deb (Das) by setting fire by pouring kerosene oil over her body and subsequently expired on 30-01-2003 at G.B. Hospital and that you thereby committed an offence punishable under Section 302 of the Indian Penal Code and within the cognizance of the Court of Sessions.

And I hereby direct that you be tried by this Court of Sessions on the said charge.

(S. Pal)

Sessions Judge

West Tripura, Agartala.”

3. Brief fact, necessary for disposal of the appeal, may be noticed thus:-

Marriage between the accused-appellant, Jiban Das and deceased Smt. Shipra Deb (Das) was solemnized on negotiation as per Hindu rites in the month of April, 1999 (on a day of 30th Baisakh of Bengali calendar month) and after marriage Shipra entered the material home holding the hand of her husband, the accused appellant, Jiban Das, at village Rajeswari Nagar, Manoharpur (Pandab Pur), under Amtali PS with high hope and aspiration, looking for a life full of mirth and merriment which though made a good start but after one and half/two years, run into rough weather since the appellant started physical and mental torture on Shipra after birth of their son. Shipra reported the development of the matrimonial home and the incident of torture and harassment to her brother, the informant, Rajesh Chandra Deb and parents and they brought the matter to the notice of village Pradhan. On 28-1-2003 at about 1.00 p.m. following some quarrel between the husband and wife, the accused Jiban Das poured kerosene oil on the body of his wife, Shipra and set her to fire with a match stick and as a result, she received 70% burn injury and she was shifted to GB hospital where she died on 30-1-2003 (the intervening night of 30-1-2002 and 31-1-2003).

It was the case of the prosecution that while under treatment at G.B. Hospital, on 30-1-2003, Shipra made a dying declaration which was recorded by the attending doctors and in her dying declaration she categorically stated that her husband i.e. the accused-appellant, Jiban Das set her to fire pouring kerosene oil following an argument on a trifling issue.

It was the further case of the prosecution that the accused subjected his wife to cruelty both mentally and physically and that the sisters of the accused, namely, Rupashi Das and Minati Bala Das also subjected her to cruelty and that Minati and Rupashi abetted Jiban Das to commit murder of Shipra.

4. Charges were framed against accused, Jiban Das, Minati Bala Das and Rupashi Das under Section 498(A) of IPC and accused Minati and Rupashi under Section 109 r/w Section 302 of IPC but the learned Additional Sessions Judge acquitted the accused persons from the charge framed under Section 498 (A) of IPC and also acquitted Minati and Rupashi from the charge under Section 109 r/w Section 302 of IPC.

5. Prosecution examined 15 witnesses and out of them PWs.1 and 5 are the brother and mother of deceased Shipra. PWs.2, 3, 4, 7 and 9 were all close neighbours of the accused appellant and they were all declared hostile by the prosecution. PW.6 was the Gao Pradhan of the accused. PWs.10 is the Medical Officer, who recorded the dying declaration in presence of PW.12. PW.15 is the autopsy surgeon and PW.14 is the I.O. of the case.

Learned Additional Sessions Judge relying on the dying declaration of the deceased recorded by PW.10 found accused-appellant guilty of committing offence punishable under Section 302 of IPC and sentenced him accordingly, as aforesaid.

6. We have heard learned counsel, Miss Rumela Guha for the appellant and learned Public Prosecutor, Mr. D. Sarkar for the State-respondent.

7. It has been submitted by learned counsel Miss Guha that the independent witnesses i.e. PWs.2, 3, 4, 7 and 9 stated nothing incriminating against the accused appellant. Only PWs.1 and 5 i.e. the brother and mother respectively of the deceased, who are interested witnesses, stated against the accused and they have not been supported by any other item of evidence. Their evidence, therefore, was liable to be scrutinized and the trial Court wrongly considered the evidence of those witnesses without any supporting evidence. She further submitted that 3 witnesses were named in the F.I.R. but those witnesses not examined by the prosecution and I.O. also did not examine them in course of investigation to unearth the truth. She also submitted that the ‘dying declaration (Ext.10) which is the trump card of the prosecution case also cannot be believed since the doctor recording the statement did not attach certificate that she was mentally and physically fit to make such a statement or that the statement was free from tutoring, prompting or imagination. The deceased, since died on the night following the recording of her statement was to be presumed that her condition was serious and since the doctor did not record the physical and mental condition of the deceased, the so called ‘dying declaration could not have been taken as a basis for conviction of the accused appellant. She also submitted that the name of the deceased was Shipra whereas doctor mentioned as one ‘Shilpa and that raises serious suspicion about the identity of the deceased. Miss Guha again submitted that the post mortem report shows injury only in frontal part of her body above knee joint, which suggests that she might have received the injury because of stove blast and the trial Court failed to consider that aspect of the evidence on record. Learned counsel, therefore, prayed for acquittal of the convict.

8. On the other hand, appearing on behalf of the State respondent, learned Public Prosecutor, Mr. Sarkar submitted that the dying declaration recorded by the medical officer may be accepted as the most reliable evidence, which is not shaken in any manner during cross-examination of those PWs.10 and 12. According to Mr. Sarkar, a dying declaration, if found acceptable by the Court, may be the basis for conviction without having corroboration by any other evidence. In the present case, the deceased made the statement to the doctors who are absolutely independent and have no hostility against the accused and therefore, there is no reason at all to disbelieve the dying declaration. According to Mr. Sarkar, PWs.2, 3, 4, 7 and 9 all are next door neighbours of the accused and they have gone back to the truth because of the influence of the accused being a close neighbour and, therefore, they cannot be termed as independent witnesses. PWs.1 and 5, being the brother and mother of the deceased, are the natural witnesses to whom a victim was supposed to speak the truth about the real incident occurred and she involved the accused, who was none but her husband and under such circumstances, learned Additional Sessions Judge rightly found the appellant guilty of committing offence punishable under Section 302 of IPC and the sentence does not deserve interference.

9. Considered the rival submissions of learned counsels of both sides and meticulously gone through the evidence and materials on record.

Following facts are not challenged/disputed by the defence:

(a) That marriage between the appellant, Jiban Das and the deceased Smt. Shipra Deb (Das) was solemnized in the month of April, 1999 (on a day of 30th Baisakh of Bengali calendar month) and after marriage they lived and cohabited as husband and wife in the matrimonial home i.e. in the house of the accused at Rajeswari Nagar, Manoharpur (Pandab Pur), P.S. Amtali, West Tripura and a male child was born out of their wedlock.

(b) On 28-1-2003 at about 1.00 p.m. Shipra received severe burn injuries and she was shifted to GB Hospital. She died in GB Hospital on 30-1-2003 at night (intervening night of 30-1-2003 and 31-1-2003). The cause of death was due to shock caused by burn injuries and the injuries were antemortem in nature.

10. The finding of acquittal from the charge under Section 498 (A) of IPC recorded by learned trial Judge has not been challenged by the State-respondent. So we need not enter into the evidence regarding the alleged exercise of cruelty on the deceased in the matrimonial home in details. However, let us now see the material part of the evidence on record to assess the finding of trial Court on the charge under Section 302 of IPC.

11. Before entering into evidence on record let us first see what the Supreme Court has observed in respect of appreciation of evidence in cases involving crime against women. In the case of Kundula Bala v. State (1993) 2 SCC 684 : 1993 GLJ 1635 the Apex Court held – The role of Courts under the circumstances assumes greater importance and it is expected that the Courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The Courts are expected to be sensitive in cases involving crime against women.

Alleged incident occurred on 21-3-2003 at about 1.00 p.m. in the matrimonial home of deceased. PW.1, younger brother of the deceased, lodged the FIR immediately after the occurrence, on receipt of information, with the Officer-in-Charge, Amtali Police Station at about 4.30 p.m. The F.I.R. which is proved as Ext.1 shows that the informant stated “today 28-1-2003 at about 1.00 p.m. got information that the husband of my elder sister with a view to kill her poured kerosene oil on her body and pressed her over a flaming stove and on her cry neighbours came and after breaking the door of the hut rescued my sister and took her to GB Hospital and my sister is fighting with death in the hospital bed”.

The above statement shows that the informant on receipt of information from some other person rushed to the Police Station and lodged the FIR.

In his deposition PW.1 stated, on 28-1-2003 at about 1.00 p.m. he was on way to his house and at that time, one Sudhangshu Das Gupta had informed him that the accused Jiban Das set fire on the body of her elder sister, Shipra, by pouring kerosene and she was shifted to GB Hospital in precarious condition. After getting the said information he rushed to GB Hospital and he found his sister with burn injuries and she was in a position to speak. His sister told him that her husband pressed her head on a flaming stove and set her to fire by pouring kerosene over her body. She also told him that the door of the hut was closed by accused Jiban. In G.B. Hospital he also met with Sankar Chakraborty and others, who brought his sister to hospital. They also told him the same facts which his sister narrated to him. He informed the incident to the police at Amtali PS and Darogababu reduced his statement to writing and he put his signature. He stated that he did not know why Jiban Das set fire to his sister.

In cross-examination he stated that he did not mention in the F.I.R. that when he went G.B. Hospital to see his sister, she told him that her husband Jiban set her to fire and that her head was pressed over a flaming stove. He also stated that he did not state in the F.I.R. that he met Sankar Chakraborty and others in G.B. Hospital and that Sudhangshu Das Gupta informed him that the accused set his sister to fire. Neither in exam-in-Chief nor in cross-examination it was clarified as to whether F.I.R. was lodged before his visiting the G.B. Hospital or after such visit. The language of the F.I.R. shows that before his visiting the G.B. Hospital he lodged the F.I.R. A chronological reading of the deposition of PW.1, however, gives a different impression that as if he lodged the F.I.R. after visiting hospital and if it was so, he would definitely mention in the F.I.R. that his sister told him about the occurrence. However, from the contents of the F.I.R. which was lodged immediately after the occurrence and before the death of the deceased and in the deposition of PW.1 we find the sum and substance that the deceased Shipra was set to fire by accused Jiban Das pouring kerosene oil on her body at about 12.30/1.00 p.m. on 28-1-2003.

12. PW.5 the mother of the deceased in her deposition stated that accused Jiban Das set fire on the body of her daughter and later on her daughter died at G.B. Hospital. On receipt of information over telephone from her son she rushed to G.B. Hospital and found her daughter with burn injuries and her daughter told her that accused-Jiban Das set fire on her body. She further stated that her daughter used to tell her after some months of their marriage that accused-Jiban used to torture upon her physically and mentally. There is nothing in the cross-examination to discard this portion of evidence of the witness.

13. PW.6, the Gao Pradhan of the village of accused stated that brother of Shipra (informant Rajesh Deb) told him that accused Jiban Das used to torture his sister and requested him to mitigate the matter as Pradhan of the village. Accordingly, he asked both Shipra and Jiban about the matter and they told him that there was no dispute between them and that they were living peacefully. He subsequently heard that Shipra died due to burn injuries. He also stated that he did not know how Shipra was caught with fire but he knew the fact that she died in the hospital. There is nothing incriminating in the deposition of PW.6 against the accused but it is there that he was reported because of some disputes between the husband and wife which the husband and wife, however, did not agree before him.

14. PWs.2, 3, 4, 7 and 9 as already stated earlier were close neighbours of the accused and they all were declared hostile by the prosecution. After declaring them hostile, the attention of the Court was drawn to the previous statement recorded by I.O. under Section 161 of Cr.P.C. and that part of the statement were marked as exhibits. The attention of the witnesses were not specifically drawn to particular part of their statements recorded by I.O. after noting it down in the deposition sheet of the particular witnesses.

Section 145 of the Evidence Act prescribes that a witness may be cross-examined as to previous statement made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

The procedure as to how a witness is to be contradicted with his previous statement has well been laid down by the Apex Court in the case of Tahsildar Singh v. State of U.P., reported in AIR 1959 SC 1012: (1959 Cri LJ 1261) and the ratio of that decision still holds the field and must be followed by all concerned.

Division Bench of this Court in the case of Goutam Das and another v. State of Tripura and another, reported in 2008 (3) GLT 625 and also in the case of Md. Badaruddin Ahmed v. State of Assam, reported in 1989 (2) Cr LJ 1876 has categorically held that the particular part in the previous statement of the witness with which he has been contradicted should be referred to him and the response of the witness should be recorded.

Unfortunately, in this case, the procedure has not been followed and the Public Prosecutor, simply drawn the attention of the Court and marked the previous statement as exhibits and therefore, the evidence of PWs.2, 3, 4, 7 and 9 does not deserve any consideration.

15. Let us now see the dying declaration. Admittedly, Shipra was admitted in the hospital on 28-1-2003. She died on 30-1-2003 at night. PW.10, Dr.J.K. Debbarma, recorded the dying declaration of the deceased which is marked as Ext.10 read thus:

“DYING DECLARATION OF Smt. SHILPA DAS

W/o Sri JIBAN CHANDRA DAS

Shilpa Das

W/o Jiban Ch. Das,

Pandab Pur, Rajeswari Nagar,

Sekerkot.

Married for 3 years, one male child 2 year old.

On 28-1-2003 my husband had an argument with me regarding distribution of fish among family members. I replied in the affirmative, but he ….. to believe. He then kicked and abused me. After that he left for school. On returning he again picked up an argument with me and dragged me to the room, doused me with kerosene and set me on fire with a match stick. I was then brought to hospital. On the way I was forced to say that I incurred the injury due to ‘stove blast which is not a fact.

-Sd-

(Dr. Jayanta Kumar Deb Barma)

M.O. Gr. III of T.H.S.

G.B. Hospital.

Recorded in presence of:-

1. Dr. Saroj Kumar Debbarma.

M.O.G.B. Hospital.

2. Smt. Dipali Chakraborty,

S/N. G.B. Hospital,

At Ward FS.II G.B. Hospital,

On 30-1-2003 at 3.45 p.m.”

16. The above statement shows that PW.10 recorded the statement in presence of another doctor, Sri Saroj Kr. Debbarma and PW.12, Smt. Dipali Chakraborty (Saha) of the hospital. Dr. Saroj Kr. Debbarma was not examined by the prosecution. PWs.10 and 12 were cross-examined by the defence but nothing brought out from those witnesses to discredit their testimony in respect of the dying declaration of the deceased i.e. Ext.10. This dying declaration is supported by the oral evidence of PWs.1 and 5.

17. Learned counsel, Miss Guha, argued that PWs. 1 and 5 are interested witnesses and that no implicit reliance can be put on the evidence of those witnesses in absence of any other independent witnesses. This argument of learned counsel does not hold good since PWs.1 and 5, being the brother and mother, cannot be termed as interested witnesses in any manner and they may be termed as a relative witness. A relative witness cannot necessarily be termed as interested witness unless it is shown that the witness will directly or indirectly earn some benefit saying against the accused or that they had some animus with the accused and were keen to see him convicted somehow or otherwise.

The Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116: (1984 Cri LJ 1738) has held that “In view of the close relationship and affection any person related to the deceased would have, such a witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but have been unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and, therefore, the Court has to examine the evidence with great care and caution.”

In the case in hand marriage between the accused Jiban and Shipra was solemnized in the year 1999 and matrimonial relation between them ended within 4 (four) years of marriage. Both the brother and mother stated about the physical and mental torture but the trial Court did not believe the story. It is on record that even the Pradhan was reported by PW.1. F.I.R. narrating the fact that the deceased was set to fire by pouring kerosene, was lodged by P.W.1, immediately after the occurrence and before the death of the deceased. PW.5 stated that she was told about the occurrence by her daughter and that has not been shaken in cross-examination. So, on careful scrutiny of the evidence of PWs.1 and 5 in the facts and circumstances of the case, we find no reason to throw the evidence overboard in view of the proved dying declaration on record. The argument of learned counsel, Miss. Guha that PWs.1 and 5 are the interested witnesses and, therefore, does not deserve any consideration has no merit at all.

Matrimonial offences are generally committed within four walls of the matrimonial home. Naturally, members of matrimonial home and the relatives and neighbours thereof, cannot be expected to be a witness against the accused husband. In such cases where offences committed on the married women in the matrimonial home, and statement made by victim women to her relatives and kin assumes importance and Court requires to appreciate such evidence with utmost care and caution. It will be improper to discard such evidence at the threshold.

18. A dying declaration enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without corroboration.

Section 32(1) of the Evidence Act is an exception to the Rule of hearsay and makes admissible the statement of a person who dies, whether the death is a homicide or suicide provided that the statement relates to the cause of death, or exhibit circumstances leading to the death. The Evidence Act, in view of the peculiar condition of our society and the diverse nature and character of our belief has thought it necessary to widen the sphere of Section 32 to avoid injustice.

Section 32(1) of the Evidence Act provides that statements, written or verbal of relevant fact made by a person, who is dead, are themselves relevant fact when the statement is made by a person as to his cause of death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that persons death comes into question.

19. In the case in hand, Shipra received burn injuries on 28-1-2003 at about 1.00 p.m. Immediately, thereafter she was hospitalized. Her dying declaration was recorded by the medical officer on 30-1-2003 at 3.45 p.m. I.O. also thereafter examined her and recorded her statement. That statement recorded by I.O. has not been proved but the statement recorded by the most independent and reliable agency i.e. the doctor (PW.10) has been proved which is already reproduced above.

There is no animosity of the accused with the doctor. There is also nothing on record that the doctor was interested in any way with he victim lady or her parental family. His evidence has not been shaken at all, which is corroborated by PW.12, though, another doctor, whose name transpired in Ext.10 has not been examined. Since the doctor himself recorded the statement, there cannot be a question about the mental and physical fitness of the deceased in making such statement. The recording of statement by the doctor himself indicates that the deceased was mentally and physically well capable of making such statement. There is nothing on record that the deceased was tutored, prompted or advised or that it was simply her imagination.

In the case of Ashok Kumar v. State of Rajasthan, reported in 1990 GLJ 2276: (1991) 1 SCC 166: (1990 Cri LJ 2276), the Apex Court has held social ostracism is needed to curtail increasing malady of bride burning. In that reported case statement of victim, recorded by the doctor was disbelieved and the accused was acquitted. On appeal High Court re-appreciated the evidence and convicted the accused. In the appeal filed by the accused the Supreme Court observed in Paras 9 and 12 thus:

“9. Investigation was criticized and it was submitted that no one from locality having been produced nor the nurse or compounder, who took down injury report on dictation of Dr. Temani, having been examined nor any incriminating material having been found at site, it created a doubt if everything proceeded fairly and in accordance with law. Argument as a matter of law that defective investigation should go to discredit prosecution cannot be disputed but on facts it is not available. The High Court was aware of it and, in our opinion rightly, did not discard prosecution evidence due to remissness of Investigating Officer on ratio laid down by this Court in Chandrakant v. State of Maharashtra: (1974 Cri LJ 309). We are further of the opinion that the finding of the High Court that the Investigating Officer due to remissness failed to preserve the site is correct but it does not in any manner weaken the prosecution case. Nor any adverse inference could be drawn due to non-production of nurse or compounder when the investigating report was written on dictation of Dr. Temani.

12. Before parting with this case we consider it necessary to record that the Judge was uncharitable in discarding the testimony of Dr. Patrisia and doubting her truthfulness principally because she was a woman forgetting that she was a doctor of 14 years standing and there was no reason for her to make the endorsement on the injury report other than stated that it was on request of Dr. Temani. We do not wish to comment further but we express our deep dissatisfaction on the manner in which the Judge criticized the two doctors. For the reasons stated above we are of the opinion that the High Court did not commit any error in allowing the appeal and recording the conviction under Section 378 read with Section 386(1)(a) of the Indian Penal Code.”

20. The case at hand has some special feature. Here the dying declaration was recorded by a doctor in the presence of another doctor and nurse who are most independent in nature. None of parental family member of the deceased was present. The statement seems to be spontaneous and voluntary. It was a statement made by the wife against her husband. She did not implicate anybody else even her sisters-in-laws. She simply stated that her husband had an argument in the morning on the issue and that she was kicked and abused and thereafter, her husband left for his school and on return from school again he picked up argument and dragged her inside the room and doused kerosene on her and set her to fire. Unless it was an absolute truth, she would not make such statement against the accused with whom she was sharing bed and who was her life partner to involve him falsely, just before her death. She died on the same day during night. The statement recorded by PW.10, therefore, inspires all confidence. The mother and brother of the deceased were not present when the statement was recorded. So, under such circumstances, the argument of learned defence counsel that since no certificate was attached with Ext.10 the dying declaration should be discarded, has no merit at all.

21. The law with regard to the appreciation of dying declaration is well settled. Before a conviction can be made on a dying declaration the Court must be fully satisfied that the declaration is reliable in the sense that it was actually made by the deceased when fully possessed of the power to understand the implication of his/her statement and the same was made without any exterior influence or ulterior motive. It has further to be proved that the dying declaration reflects a true version.

22. The Supreme Court in the case of Rambihari Yadav v. State of Bihar, reported in (1998) 4 SCC 517: (1998) Cri LJ 2515) has held that though dying declaration is indirect evidence being a species of hearsay, yet it is an exception to the rule against admissibility of hearsay evidence. Indeed, it is substantive evidence and like any other substantive evidence requires no corroboration for forming basis of conviction of an accused. But then the question as to how much weight can be attached to a dying declaration is a question of fact and has to be determined on the facts of each case.

In the case of G.S. Walia v. State of Punjab and others, reported in (1998) 5 SCC 150: (1998 Cri LJ 2524), a case where the deceased involved his brothers and nephew in the commission of the murder was relied by the Court as the accused persons failed to advance any cogent explanation in their statements under Section 313 of Cr.P.C. The Apex Court has held thus – “as pointed out earlier Balwanth Singhs statement could not be recorded earlier because he was not in a fit condition to make a statement. Moreover, this case was not a case where the victim was trying to involve persons with whom he was on inimical terms. Two of the accused were his brothers, one was his nephew and two others were closely related to him. Therefore, there was no reason for Balwanth Singh o involve any of them falsely. The accused did not like the deceased going away to Canada but the deceased had no grievance whatsoever against the accused. It was not even stated by the accused in their statements under Section 313 of Cr.P.C. that the deceased had any reason to falsely involve them. Under these circumstances the delay in recording his complaint which was later on treated as his dying declaration is of no consequence.”

In the case of Bahulal and others v. State of Madhya Pradesh, reported in (2003) 12 SCC 490: (AIR 2004 SC 846) the Supreme Court has held thus – “A person who is facing imminent death, with even a shadow of continuing in this world practically non-existent, every motive of falsehood is obliterated. The mind gets altered by most powerful ethical reasons to speak only the truth. Great solemnity and sanctity is attached to the words of a dying person because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person. The maxim is “a man will not meet his maker with a lie in his mouth” (nemo moriturus praesumitur mentiri). The general principle on which the species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced and mind induced by the most powerful consideration to speak the truth; situation so solemn that law considers the same as creating an obligation equal to that which is imposed by a positive oath administered in a Court of justice.”

23. Referring to Exbt.10, the dying declaration, learned counsel, Miss Guha has submitted that the dying declaration so far recorded by the doctor was of one Shilpa Deb and not of the deceased Shipra Deb (Das) and so, at the very outset, it should be presumed that Exbt.10 might be of somebody else than the deceased Shipra Deb (Das).

We have meticulously gone through the Exbt.10, as already reproduced in this judgment, which shows, that the name of the deceased has been written as Shilpa Das, w/o Sri Jiban Ch. Das. The doctor in his evidence clearly stated that it was of Shipa Das, w/o Sri Jiban Ch. Das. It might happen that while writing the name, the doctor has written Shilpa in place of Shipra and that seems to be a pen mistake and we find no reason at all to attach much importance on such mistake since it is an undisputed fact that wife of the accused Jiban received burn injury and she was admitted in hospital. The dying declaration was referred to the accused at the time of examination under Section 313 of Cr.P.C. and he stated nothing that it was of somebody else than his wife Shipra. Under such circumstances, we find nothing but to hold that the dying declaration was of Shipra Deb (Das), wife of the accused and none else.

24. The incriminating evidence of dying declaration was referred to the accused in course of his examination under Section 313 of Cr.P.C. in question numbers 19, 20, 22 and 23 to which the accused simply stated that the matter was not known to him and that the evidence was false. The accused did not come up with a definite case to draw a doubt on the prosecution story specially the dying declaration. He being a husband of the deceased was supposed to narrate the truth adducing the evidence to show contrary to what has been alleged by the prosecution and in the absence of any such facts and circumstances the accused cannot get out of the network of the cogent dying declaration involving him in the crime.

Normally in criminal cases the burden of proof is on the prosecution to prove the ingredients of offence. But in a case where the accused is found shrouded with suspicion and enmeshed in any incriminatory network of facts, it becomes his duty to explain circumstances yielding to an adverse inference against him and if he omits to do so or fails in creating a dent in the prosecution story, his omission assumes a sinister significance.

25. Learned counsel Miss Guha has further argued that all the injuries were above knee joint and in the front portion of the body which suggests that due to the blast of the stove injury might have occurred. She has also submitted that the Bed Head Tickets of the deceased has not been produced to show as to what treatment was rendered and what injuries were found by the doctor on the body of the deceased.

Per contra, learned Public Prosecutor has submitted that there was no stove in the picture. Had there been any stove blast occurred, it would have been seized by I.O. I.O. has seized the kerosene container with small amount of kerosene. No witness also stated that they found any stove in blast condition of the accused and under such circumstances the story which the defence tried to put forward cannot be relied.

We have considered the submissions of learned counsels of both sides. Bed Head Ticket has not been seized or produced. Since the deceased had died, the production of Bed Head Ticket had no relevance at all as the burn injuries found/appeared on the body of the deceased had been mentioned in the PM report clearly. The injury does not suggest that deceased received it due to stove blast. No splinter was found on her body. No witness stated that they found the blast stove in the house of the accused when the deceased was shifted to hospital. The accused also stated nothing in his examination under Section 313 of Cr.P.C. to that effect. Under the circumstances, argument advanced by learned counsel, Miss Guha has no merit for consideration.

The autopsy surgeon stated that burn injuries were present all on the body up to knee joint from above. Total extending an area of 70% of body surface except exilla, back, neck, buttock and both leg and feet. If the stove was blast, in that case the deceased might have some injuries with the blast splinters of the stove but there was no such injury. Further, if a person is put to fire by pouring kerosene oil, it is not necessarily that burn injury will be caused in a particular part of the body. The incident occurred within a moment and the injury was caused to the person of the prosecution which according to the deceased was because of her setting to fire by the accused. The argument, therefore, has no substance at all.

26. Learned counsel, Miss Guha also argued that the witnesses, who were named in the F.I.R. have not been examined and that the I.O. did not try to unearth the truth diverting investigation in all possible manner. Learned Public Prosecutor submitted that there were lot of defects in the investigation and in the prosecution of the case but those defects could not go to favour the defence in the facts and circumstances of the case.

On going through the case record we have no doubt that it was a case of poor investigation and prosecution. The trial Court also has failed to take an active part in the trial of the case. The learned Additional Sessions Judges, West Tripura, Agartala acted like a silent spectator. It was the duty of the trial Judge to see and to find out all the material aspects of the evidence of the case. A trial Judge cannot be mere spectator but to control criminal proceeding by actively participating therein to find out the truth which unfortunately is not present in the case. However, we find no reason at all to interfere in the finding of conviction and sentence recorded by the learned trial Judge.

27. It is true that in the F.I.R. informant mentioned the name of 3 (three) witnesses but I.O. did not examine them. They were also not listed as witnesses. It was definitely a serious defect in the investigation of the case. Defence also failed to show that the defence was prejudiced in any manner for non-examination of those witnesses. There is nothing in the F.I.R. as to how those witnesses were material and informant also in his deposition stated nothing. Though it was appropriate for the I.O. to examine and list those witnesses and the prosecution to advance a clarification about non-examination of those witnesses, in absence of the defence to show that non-examination has prejudiced the accused in any manner, we are reluctant to attach any importance on such non-examination of the witnesses. It is not necessary that all the people, whose name transpired during examination, have to be examined and other wise, prosecution case should be disbelieved. In the present case, the incident occurred in the matrimonial home where the accused and the deceased were only present and the deceased by making dying declaration involved only her husband, the accused and under such circumstances, defects in the investigation and prosecution has nothing to do in the facts and circumstances of the case.

In the case of Karnel Singh v. State, reported in 1995 Cr LJ 4173 the Supreme Court has held that in the cases of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting the accused person solely on account of the defect; to do so would tantamount to playing in the hands of the Investigating Officer, if the investigation is designedly defective.

28. Learned Additional Sessions Judge, West Tripura, Agartala, has sentenced the appellant only to life imprisonment but did not impose any sentence of fine which is mandatory as per the provisions prescribed in Section 302 of IPC. The State respondents also did not prefer any counter appeal praying for imposition of fine in addition to sentence of imprisonment and, therefore, we refrain ourselves from imposing any sentence of fine further.

29. The appeal stands dismissed.

30. Send back the LC records along with a copy of this judgment.

Appeal dismissed.