Point of Law : Mere use of the word “may” cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused or incompatible with the evidence available, is an entirely different matter.

JUDGMENT :

Suman Shyam, J.

Heard Mr. B.K. Mahajan assisted by Mr. N. Mahajan, learned counsel appearing for the appellants. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam, representing the State. None has appeared for the informant.

2. This appeal is directed against the judgment dated 11.07.2016 passed by the learned Additional Sessions Judge, Jorhat in connection with Sessions Case No.06/2013 convicting both the appellants under Section 302 of the Indian Penal Code and sentencing each of them to undergo rigorous imprisonment for life and also to pay fine of Rs.10,000/-each with default stipulation. The facts and circumstances of the case giving rise to filing of this appeal are briefly narrated herein below.

3. On 06.05.2012, Sri Dibya Kuli i.e. the brother of the victim had lodged an ejahar before the Officer-in-Charge of Natun Bazar Police Outpost informing him that his sister Pallavi Kuli got married to accused Sri Rajani Pegu about 1 ½ years ago as his second wife and since then, they have been living together in a conjugal life. Around 9.00 p.m. on 05.05.2012 his sister was killed by pouring kerosene on her and setting her on fire in the own residence. A prayer was, therefore, made to take necessary action in the matter.

4. On receipt of the ejahar dated 06.05.2012 a G.D. Entry was made and the same was forwarded to the Jengraimukh Police Station wherein Jengraimukh P.S. Case No.17/2012 was registered under Section 304(B) of the IPC. The matter was then taken up for investigation. Upon conclusion of investigation, the I.O. had submitted charge-sheet against the two accused persons viz., Ranjan Pegu alias Rajani Pegu and his first wife Smt. Jogomaya Pegu under Section 304(B) of the IPC. After committal of the case to the Court of learned Sessions Judge, Jorhat, charge was framed against both the accused persons under Section 302/34 of the IPC and the same was read over and explained to the accused persons. However, since both the accused had pleaded not guilty and claimed to be tried, the matter went up for trial.

5. The prosecution side had examined 17 witnesses including the doctor (PW-14) who had conducted the post-mortem examination and the Investigating Officer (I.O.) (PW-15) who had investigated the case. After completion of recording of evidence of the prosecution side the statement of the accused persons were recorded under Section 313 of the Cr.P.C. wherein they had denied all the incriminating circumstances put to them. Upon conclusion of trial the learned Additional Sessions Judge, Jorhat had convicted both the accused persons under Section 302 of the IPC primarily on the basis of the multiple oral dying declarations of the victim brought on record by as many as six prosecution witnesses i.e. PWs-1, 2, 3, 6, 10 & 11.

6. In the impugned judgment dated 11.07.2016, the learned trial court has held that the prosecution could not prove the contradiction in the evidence of PWs-1, 2, 3, 6, 10 and 11, who had brought the multiple oral dying declarations of the victim on record. The learned court below has further held that the explanation furnished by accused Ranjan Pegu in his statement recorded under Section 313 of the Cr.P.C. was not at all believable. Therefore, placing reliance on the six oral dying declarations brought on record by the prosecution side, the learned court below had convicted the accused persons and sentenced them, as aforesaid.

7. Referring to the findings and conclusions recorded in the impugned judgment dated 11.07.2016, Mr. Mahajan, learned counsel appearing for the appellants, has argued that there are material inconsistencies and/or contradictions in the statements made by PWs-1, 2, 3, 6, 10 and 11 as a result of which, the alleged dying declarations ought not to have been relied upon by the learned trial court. Mr. Mahajan further submits that the victim had evidently suffered 90% burn injuries and there is no evidence to show that she was in a fit state of mind either