Point of Law : oral dying declaration made the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination.

JUDGMENT :

Suman Shyam, J.

Heard Mr. H. Gupta, learned amicus curiae appearing for the appellant. We have also heard Ms. S. Jahan, learned Addl. P.P. Assam appearing on behalf of the State.

2. This appeal is directed against the judgment dated 30-04-2019 passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 35/2018 whereby, the sole appellant was convicted under Section 302 IPC for committing the murder of his wife Naina Patnaik and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 1,000/- with default stipulation.

3. The prosecution case, in a nutshell, is that on 20-10-2017, at around 04:00 p.m. the accused had poured kerosene upon his wife Naina and set her on fire with the intention to kill her. The victim had sustained 70% burn injury and after 6/7 days, she succumbed to her injuries while receiving treatment in the hospital. On 20-10-2017, Sri Satya Patnaik, i.e. the father of the victim had lodged an ejahar before the Officer-in-Charge (O/C), Chabua Police Station reporting the incident with a request to investigate the matter. In the said ejahar, it was mentioned that the accused had been torturing the victim in various ways after a few days of their marriage and at around 04:30 p.m. on 20-10-2017, following a quarrel between them, the accused had poured kerosene on the person of his wife Naina and set her ablaze. Having learnt about the incident, they immediately took Naina to Kharjan T.E. Hospital but the Doctor referred her to the Assam Medical College & Hospital, Dibrugarh as she had sustained grievous injuries. Naina was taken to the hospital in a critical condition.

4. On receipt of the ejahar dated 20-10-2017, Chabua P.S. Case No. 272/2017 was registered under Section 307 IPC and the matter was entrusted to S.I. Tapan Das for carrying out investigation. After 6/7 days of the occurrence, the victim succumbed to her burn injuries at the Assam Medical College & Hospital (AMCH), Dibrugarh, as a result of which, Section 302 IPC was added. After completing the investigation the Investigating Officer (I/O) had submitted charge-sheet against the accused. Based on the charge-sheet the learned trial court had framed charge under Section 302 IPC against the accused. The charge was read over and explained to him but since the accused had claimed innocence, the matter went for trial.

5. The prosecution case is basically based on the dying declarations of the victim. In order to bring home the charge, the prosecution has examined as many as 07 witnesses including the Doctor (PW-7), who had conducted the postmortem examination on the dead body and the I/O (PW-6), who had conducted the investigation. The prosecution has also heavily relied upon the oral dying declarations of the victim brought on record by the PWs-2 and 5, i.e. the parents of the victim as well as the dying declaration recorded by the I.O. i.e. PW-6 (Exhibit-4) so as to prove that it was none other than the accused who had set the victim ablaze with the intention to kill her. After recording the evidence of the prosecution witnesses the statement of the accused was recorded under Section 313 Cr.P.C. While denying all the incriminating circumstances put to him, the accused had also stated that he did not set his wife ablaze and also did not know how his wife had caught fire but when she screamed, he tried to save her. The defense side, however, did not adduce any evidence. On conclusion of trial and on evaluation of the evidence brought on record, the learned trial court had convicted the accused/ appellant under Section 302 IPC and sentenced him as aforesaid.

6. By referring to the materials available on record, Mr. Gupta, learned amicus-curiae has argued that the oral dying declarations were brought on record by the PWs-2 and 5 for the first time during recording of their evidence and hence, their testimonies on such count were not believable. Insofar as the dying declaration recorded by PW-6 is concerned, here also, submi