The admissibility of dying declarations without a certification of the victim's mental state and the reliance on circumstantial evidence in establishing guilt.

JUDGMENT :

(M. Zothankhuma, J.)

Heard Mr. B. Prasad, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor for the State.

2. This appeal has been preferred against the judgment & order dated 17.09.2014 passed by the learned Sessions Judge, Kamrup (M) in Sessions Case No. 38(K)/2013, by which the appellant has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for 6 (six) months.

3. The Prosecution case in brief is that an FIR dated 16.11.2012 was submitted at the Maligaon Police Outpost by the informant/ Prosecution Witness No. 2 (PW-2), who stated that her deceased sister married the appellant and started living with the appellant and her mother-in-law thereafter. The deceased suffered mental and physical torture due to dowry related demands and for which large amounts of money had been paid to the appellant. However, the deceased was set on fire by the appellant and his mother on 15.11.2012 at 9 p.m., which resulted in her death.

The appellant and his mother thereafter made an attempt to show that the burning of the deceased was an attempt to commit suicide by the deceased.

The deceased was admitted to the Gauhati Medical College Hospital (GMCH) by the appellant and thereafter the informant was informed of the same. On arrival at the hospital, severe burn injuries on the body of the deceased was noticed and she was still alive while being in unbearable pain. The FIR further states that the deceased thereafter informed them in a broken voice that she had been set ablaze by her husband and her mother-in-law after being tortured. The deceased thereafter succumbed to her injuries on 16.11.2012.

4. In pursuance to the FIR submitted by the informant (PW-2), Jalukbari P.S. Case No.808/2012 under Section 304(B) IPC was registered. After investigation was completed by the police, charge-sheet was submitted against the appellant only under Section 304(B) IPC. The learned Trial Court framed charge under Section 304(B) IPC against the appellant, to which the appellant pleaded not guilty and claimed to be tried.

5. During the trial proceedings, an additional charge under Section 302 IPC was framed against the appellant on 18.03.2013. 11 (eleven) prosecution witnesses were examined by the learned Trial Court. After the appellant was examined under Section 313 Cr.P.C., the learned Trial Court came to a finding that the death of the victim could not be called a dowry death. However, on the basis of the evidence adduced by the prosecution witnesses and the fact that the dying declaration had been recorded by a Doctor (PW-9) and witnessed by 3 other Doctors, two of them being PW-1 and PW-3, it came to a finding that the appellant had set ablaze the deceased, which resulted in her death. As such, the appellant was found guilty of the offence of murder of his wife under Section 300 IPC and accordingly convicted under Section 302 IPC. He was accordingly sentenced to undergo imprisonment for life with a fine of Rs. 5000/-, in default to undergo simple imprisonment for six months.

6. The learned Counsel for the appellant has made a challenge to the impugned judgment dated 17.09.2014 passed by the learned Trial Court on the following grounds. Firstly, the original dying declaration recorded by the doctors was not produced before the learned Trial Court, inasmuch as, PW-1 and PW-9 had stated in their evidence that the recorded dying declaration, which was exhibited as Exbt.-1, was a carbon copy. Secondly, the doctors had only stated that the deceased was conscious at the time of giving his dying declaration, but had not given any certificate/certification to the effect that the victim was in a fit mental condition to give a dying declaration. As such, the dying declaration was not admissible as evidence and could not have been made the basis for convicting the appellant. Thirdly, though ch