The admissibility and credibility of dying declarations and witness testimony are crucial in determining guilt in criminal cases.

JUDGMENT :

MICHAEL ZOTHANKHUMA, J.

1. Heard Ms. M. Barman, learned Amicus Curiae appearing for the appellant. Also heard Ms. S. Jahan, learned Additional Prosecutor, appearing for the State respondent.

2. This appeal has been preferred against the Judgment dated 11.01.2019, passed by the court of the learned Sessions Judge, Nagaon in Sessions Case No. 417(N)/2011, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 10,000/- in default rigorous imprisonment for 6 (six) months, on the ground that he had killed his wife by burning her with kerosene.

3. The prosecution case in brief is that the elder sister of the deceased, who is Prosecution Witness-1 (PW-1) filed an FIR dated 22.09.2011 before the Officer-In-Charge, Raha Police Station, stating that the husband of the deceased and the sister-in-law of the deceased had been torturing her deceased younger sister, demanding dowry. Thereafter, on 21.09.2011 at around 6:00 pm, the appellant poured kerosene over her deceased sister and set her on fire inside their house. She was immediately taken to Nagaon Civil Hospital by an ambulance. The deceased succumbed to her injuries while being shifted to Guwahati for better treatment. In pursuance to the FIR submitted by PW-1, Raha P.S. Case 148/2011 under Section 304(B) IPC was registered. After investigation of the case by the Investigating Officer (IO), charge-sheet was filed, as a primafaciecase had been found against the appellant under Sections 304(B) and 302 IPC. Charges were framed against the appellant under Sections 304(B) and 302 IPC, to which the appellant pleaded not guilty and claimed to be tried.

4. Thereafter, 11 (eleven) Prosecution Witnesses were examined by the learned Trial Court and after examining the appellant under Section 313 Cr.PC, the learned Trial Court found the appellant guilty of the offence under Section 302 IPC and convicted him under Section 302 IPC.

5. The learned Amicus Curiae submits that the learned Trial Court had convicted the appellant solely on the basis of the evidence given by PW-1 (elder sister of the deceased), PW-3 (another elder sister of the deceased) and PW-8, who was the sole eye-witness and minor daughter of the deceased and the appellant.

6. The learned Amicus Curiae submits that though the evidence of PW-8, who is the eye-witness, is to the effect that she had seen her appellant/father pouring kerosene over her mother and setting her on fire, the dying declaration made by the deceased and which was recorded by a Doctor (PW-10) of BP Civil Hospital, Nagaon, shows that the deceased had admitted to having set herself on fire. She accordingly submits that as the dying declaration of the deceased had exonerated the appellant, the appellant could not be said to be responsible for the death of the deceased.

7. The learned Amicus Curiae also submits that though the Doctor (PW-9), who had attended upon the deceased in Civil Hospital, Nagaon had stated that the deceased suffered about 98% burn injuries, the same would not have prevented the deceased from making a dying declaration, as even a person suffering from 100% burn injuries is able to give a dying declaration. In support of her submission that a person suffering 100% burn injuries can give a dying declaration, she has relied upon the judgment of the Supreme Court in Suresh vs. State of Madhya Pradesh, (1987) 2 SCC 32. The learned Amicus Curiae also submits that if a Court can convict an accused on the basis of a dying declaration, when it inspires the full confidence of the Court, there is no reason why the same principle should not be applied when a dying declaration exonerates an accused from the act of causing the death of a person. In support of her submission, the learned Amicus Curiae has relied upon the judgment of the Supreme Court in the case of Ramesh Kumar vs. State of Chattisgarh, (2001) 9 SCC 618.

8. The learned Amicus Curiae submits that