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PETITIONER: NAJJAM FARAGHI

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT:       18/11/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Srinivasan,J.      The appellant  is challenging  the concurrent judgments of the  courts below whereby he was convicted for an offence under  Section   102  I.P.C.   and   sentenced   to   suffer imprisonment for life. he was also directed to pay a fine of Rs. 5000/-. 2.   On the  night of  29.6.85 the appellant poured kerosene oil over  the head  of  his  wife  from  behind  and  lit  a matchstick and  set her  on fire.  She was  admitted in  the hospital around  1.00 AM on 30.6.85. Her statement regarding cause of  her death  was recorded  on 1.7.85  by PW  18, sub inspector of  police marked  as  Ex.  6.  Another  statement marked  as  Ex.5  was  recorded  on  11.7.85  by  PW  12,  a magistrate, who was sent to the hospital under orders of the High Court.  In both  the statements she had stated that her husband came  home in  a drunk condition in the mid night of 29.6.85 and  assaulted her  severely. She  was driven out of the room  but as  her two  children were sleeping inside she went back  to the  room. Then  he poured  kerosene oil  from behind and  set fire.  Her parents  were sent  for  and  her father took her to the hospital. Thus in both the statements she had  accused her husband of having set fire to her after pouring kerosene.  The courts  below  relied  upon  the  two statements and also the evidence of the post mortem examiner to the  effect that  the burn  injuries were  such that they lead to  the conclusion  that the  death was  homocidal. The courts below  have also referred to all the circumstances of the case  and rejected  the defence  that the  wife  of  the appellants committed  suicide or  that the offence should if at all be considered to the one under Section 306 I.P.C. and not 302 I.P.C. 3.   Learned counsel  for the  appellants places reliance on the following circumstances:- (i)  The case history noted in Ex. A by PW 9, a senior House surgeon as soon as the deceased was admitted in the hospital states that the deceased tried to burn herself after pouring kerosene on her person in a suicidal attempt. (ii) The father  of the  deceased (PW  1) wrote  a letter on 30.6.85 to  the police  which  has  been  treated  as  First

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Information Report  in  which  it  is  stated  that  he  was convinced  that  his  son-in-low  abetted  his  daughter  in committing suicide. (iii) PW  7  has  stated  that  the  deceased  was  speaking normally soon after the incident and she claimed to have set fire on herself. (iv) The two  statements recorded  by the  Sub Inspector  of police  and   the  Magistrate   marked  as   Exb.  6  and  5 respectively cannot  be considered as dying  declaration and given any  weight as  the deceased lived for twenty days and more till 31.7.85. (v)  The Judicial  Magistrate who  recorded the statement in Ex. 5 did not ascertain the mental condition of the deceased and therefore  her statement  is not reliable in view of the ruling in  Kanchy Komuramma  Versus State  of Andhra Pradesh 1995 Supp. (4) S.C.C.118. (vi) In the  first instance  the case  was registered  under Section 306. When the charge was framed it was under Section 302 I.P.C.  After examination  of 9 witnesses, the Presiding Officer of  the Court  framed an  alternative  charge  under Section 306  I.P.C. The accused moved the High Court against the order  framing an  alternative charge  in a revision but the same  was dismissed.  Thus  the  prosecution  was  in  a confusion as  to whether  the  appellant  was  guilty  under Section 302 I.P.C. or under 306 I.P.c. 4.   All the aforesaid circumstances have been considered in detail by  both the  courts and it has been found that there is no  substance in  the  contentions  put  forward  by  the defence. A  perusal of the record shows that the death could not have  been suicidal and it was nothing but homicidal. PW 10 the post mortem examiner has stated as follows:-      "Death in  my opinion  was  due  to      effect of ante-portem burns. Taking      into consideration  the  sites  and      extent  of  areas  involved  in  my      opinion the  burn was  homicidal in      nature.      Burn injury  causing death  may  be      accidental, suicidal  or homicidal.      I found  the injuries  causing  the      death to be homicidal. The sites as      described on  examination  of  dead      body were  mostly  on  inaccessible      parts of the victim, the areas were      very   extensive.  So  I  hold  the      opinion  that   the  death  was  in      homicidal in nature.      Injury Nos.1,3,4,5,6,7 as mentioned      by me  were on  the back  side part      inaccessible part  on the  body  of      the subject.  These  injuries  were      very  extensive   too.  From  these      injuries I  hold  the  opinion  the      death  was   homicidal  in   nature      caused by those injuries which were      burn injuries. On the front side of      the trunk  of the  body I  did  not      find any injuries. In regard to her      face  I   did  not   find  injuries      exactly on the front side.      There is  no injury  observed by me      that could  lead me to hold that it      was a suicidal death." Nothing  could  be  elicited  in  the  cross-examination  to discredit  his  aforesaid  opinion.  Both  the  courts  have

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accepted his  evidence and  come to  the conclusion that the case falls  under Section  302 I.P.C.  We do  not  find  any justification to take a different view. 5.   The courts below have also referred to the circumstance that the  accused who was admittedly present at the scene of occurrence did  not make any attempt to put out the fire and save his  wife. His  case that  the  did  so  and  got  burn injuries in  the process  has been  rightly  negatived.  The evidence on  record shows  that he has made a clumsy attempt to inflict  some injuries  on himself  in order  to make the court believe that the attempted to put out the fire. 6.   The history  of the  case recorded  in the  hospital in Ex.A has not been proved to have been given by the deceased. The courts  below have  rightly refused  to attach any value thereto. 7.   The father  of the  deceased did not have the necessary information at  the time of FIR as his daughter was not in a position to speak when she was taken by him to the hospital. 8.   The evidence  of PW  7 has  also been considered in the proper perspective  by the courts below. There is nothing on record to  support the  contention of the appellant that the deceased was  tutored by  her  parents  to  make  statements against her  husband when  she gave  the dying declarations. The courts below are right in rejecting that case. 9.   There is  no merit in the contention that the appellant died long  after making the dying declarations and therefore those statements have no value. The contention overlooks the express provision  in Section  32 of  the Evidence  Act. The second paragraph of sub-section (1) reads as follows:- "Such statements are relevant whether the person who made them was or  was  not,  at  the  time  when  they  were  made,  under expectation of death, and whatever  may be the nature of the proceeding in  which the  cause  of  his  death  comes  into question" No  doubt it  has been  pointed out  that  when  a person is expecting his death to take place shortly he would not be  indulging in  falsehood. But that does not mean that such a  statement loses  its value if the person lives for a longer time then expected. The question has to be considered in each  case on  the facts  and  circumstances  established therein. If  there is  nothing on  record to  show that  the statement could  not have been true or if the other evidence on record   corroborates the contents of the statements, the court can  certainly accept the same and act upon it. In the present case  both courts have discussed the entire evidence on record and found that two dying declarations contained in Exs 5 and 6 are acceptable. 10.  The records  show that  the  mental  condition  of  the deceased was  sufficiently good  to give  a statement to the Magistrate. 11.  The mere  fact that  the case  was registered  intially under Section  306 I.P.C.  and later  after examination of 9 witnesses as  alternative charge  under the same Section was framed will  not vitiate  the proceedings or the conclusions of the  courts below.  There is  not doubt  that the  charge under Section 308 IPC has been proved beyond doubt. 12.  We have  perused the  records.  We  find  ourselves  in agreement with  the judgments of the courts below. Hence the appeal is dismissed.