Bhajan Das vs State Of Tripura

Arindam Lodh, J

[1] Heard Ms. R. Purkayastha, learned counsel appearing for the appellant. Also heard Mr. Sumit Debnath, learned Addl. P.P. appearing for the State-respondent.

[2] The accused-appellant was charged under Sections-498-A and 302 of IPC for the alleged offence of mental, physical torture and murder of his wife Smt. Putul Das on 29.04.2014 at about 15.30 hours at Singhamura by setting her on fire, by way of pouring kerosene oil on her person. After trial, the learned Addl. Sessions Judge, West Tripura, Agartala, has convicted the accused under Section-302 of IPC and sentenced him to suffer imprisonment for life by the judgment and order dated 25.05.2015 passed in connection with case No. ST (T-1) 89 of 2014.

[3] Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence, the accused has preferred this appeal before this Court, challenging the legality and validity of the said judgment. Prosecution succinctly, has stated that on 29.04.2014 a quarrel took place between the deceased and her husband accused Bhajan Das. The father of the victim-Putul Das had lodged a complaint on 01.05.2014 stating inter alia that about 17 years back her daughter Putul was given marriage with accused Bhajan Das. Since after marriage there were frequent quarrel between them. Her daughter used to tolerate all those tortures silently to lead a peaceful conjugal life. However, about 7 years back the father of the deceased brought his daughter along with the accused and their children to his house considering the financial stringency, the family was suffering and also gave them 3 gandas of land for their residential purpose.

[4] Even then, the accused-appellant used to torture brutally on his daughter under the influence of liquor and used to threaten his daughter to kill her. On 29.04.2014 at about 3.30pm he started to quarrel with his daughter and poured two ltrs. of kerosene oil on her person. His daughter sensing the danger went out of the house and ran away towards the house of his brother which was about 150 mtrs. away. His daughter then went to her aunt and requested to save her. At that time her aunt's house was cooking, sitting in the courtyard. The said accused appeared in the said house and set her on fire by taking a burning wood from the fiery earthen oven (Chula). His daughter started to burn infront of the wife (aunt) of his younger brother. The complainant reached the place of occurrence after hearing the hue and cry and then, the fire was put off by covering her with blanket (kantha). His daughter suffered 80% burn injury. In the complaint, he stated that the accused himself poured kerosene on the person of his daughter and it was seen by his two children, namely, Rinki Das (8 years old) and Pinki Das (11 years old).

[5] The officer-in-charge of Amtali police station registered a case and handed over the investigation to one woman Sub-Inspector, namely, Aparna Debnath for investigation and accordingly investigation had commenced. In-course of investigation, she went to the scene of occurrence; prepared the hand sketch map with separate index (Ext.9 to 10); prepared the inquest report over the dead body of deceased Putul Das; questioned the available witnesses and recorded the statements of the witnesses; arranged for postmortem examination; seized one plastic bottle containing some kerosene; some pieces of burn cloths (apparel of victim), old "khata" (blanket) by preparing a seizure list marked as (Ext.2/1).

[6] Completing the necessary investigation, the accused was charge sheeted and after committal he was tried by the learned Addl. Sessions Judge, West Tripura Agartala and thereafter, the case was committed to the learned Addl. Sessions Judge who put the accused on trial. Before the learned trial court, the main contention of the appellant appears to have been that the case of the prosecution had not been properly established. Since the entire prosecution case is bent upon the evidence of one child witness (PW-7), which is as contradictory according to the learned defence counsel. It was argued before the trial court that PW-7 being a child witness should not be believed and PW-8 who is also a child witness was not at all trustworthy.

[7] Before this Court, learned counsel appearing for the accused appellant argued that PW-7 stated in her examination-in-chief that they all were having lunch and her father came to the house and kicked her mother's dish, whereas in her cross examination she has stated that they were having lunch together which also included her father. The learned Addl. Sessions Judge after discussion of the factual and legal aspects of the case had rejected such pleas taken by the defence counsel and held that the appellant was guilty. The main argument advanced before us in this appeal on behalf of the appellant was that, the FIR was lodged after recording of dying declaration and that too after 2(two) days of the alleged occurrence of the crime without having any explanation for such delay.

[8] Drawing our attention to the inquest and postmortem report, learned counsel appearing for the accused-appellant had tried to persuade us that since the deceased had suffered above 80% of burn injury; it was not possible for her to make any statement before any of the officers. She further argued that on 29.04.2014 none of the relatives had disclosed about the involvement of the accused-appellant in regard to the alleged offence. She strenuously argued that dying declaration was recorded on the 3rd day of the incident i.e. 01.05.2014, while the incident occurred on 29.04.2014. She pointed out that in the dying declaration recorded by PW-9 (Takhirai Debbarma), it was stated that the accused lit the fire with a matchstick, whereas the eye witness stated that the accused set the victim on fire with a burning fire wood. Ms. Purkayastha, learned counsel for the accused-appellant further argued that with the burn injury of the lower lip upto cheek, it would not be possible for the victim to speak anything. According to her, the dying declaration was fabricated one since the investigating officer did not record the statement of the doctor and others after the alleged dying declaration.

[9] In regard to the consequence of delay to lodge the FIR learned counsel appearing for the accused-appellant had relied upon a decision of the Apex Court in State of Andhra Pradesh vs. M. Madhusudhan Rao, reported in (2008) 15 SCC 582 where it was held thus:

"30. Time and again, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained".

[10] On the other hand, Mr. Sumit Debnath, learned Addl. P.P. appearing for the State-respondent had opposed the submission of the learned counsel for the accused-appellant and submitted that testimony of the charged witness can be relied upon, if it appears to the Court that such testimony is credible and trustworthy. According to the learned Addl. P.P., the principal act about setting the victim on fire by the accused appellant has been proved; minor discrepancy should not be taken into consideration.

[11] Mr. Debnath, learned Addl. P.P. for the State-respondent next contended that both PWs-7 and 8 are the daughters of both the victim and the accused-appellant and were they brought to the childcare home, run by the Government, could not be said to be tutored by anyone. Learned Addl. P.P. has relied upon a series decisions of the Apex Court in Dattu Ramrao Sakhare and Others vs. State of Maharashtra, reported in (1997) 5 SCC 341, in Paras Yadav And Ors vs. State Of Bihar, reported in (1999) 2 SCC 126 and Atbir vs. Government of NCT of Delhi, reported in (2010) 9 SCC 1.

[12] Having regard to the aforesaid submission, we have travelled through the evidence of the witnesses relied upon by the prosecution, based on which the learned trial court declared conviction and sentenced for life imprisonment against the accused appellant.

[13] In course of trial, the prosecution had produced as many as 17 witnesses and introduced 11 documents including dying declaration (Exbt.5,5/1), TSFSL report (Exbt.6) and Postmortem report (Exbt.8).

[14] Arun Mallik (PW-1) is the complainant-father of the deceased Putul Das. He has deposed before the Court that since after marriage was solemnized about 17 years back, his deceased daughter was subjected to mental and physical torture by the accused-appellant. They used to reside near his house. On 29.04.2014 in the afternoon at about 3.00pm there was a quarrel between his daughter and her husband, the accused-appellant. He has stated that after hearing cry of his granddaughters he went to the house of his younger brother, namely, Lt. Uttam Mallik, which is located at a distance of 150 mtrs. from his house and on coming there he saw that his daughter Putul Das burning in flame in the house complex of his brother. He tried to extinguish the flame with khata (blanket). After extinguishing the fire his daughter was shifted to AGMC & GBP Hospital. In course of investigation police visited to the place of occurrence and seized one green colour plastic bottle with some kerosene, a portion of burn cloth of his deceased daughter and one burn khata. The I.O. took the signature on the seizure memo (Exbt.2), Anima Mallik, wife of his younger brother, late Uttam Mallik was also present there and put her signature in the seizure memo. The said witness has identified the seizure materials (Exbt. Mo.1 series).

[15] In his cross-examination, he has stated that he lodged the FIR against the accused-appellant after three days of the date of incident.

[16] Sri Balai Mallik (PW-2), the brother of the deceased has deposed that he was not at home at the time of incident. He came back to his house when his wife Mrs. Swapna Mallik had called him over phone to come immediately at home. He came to know from two daughters of his sister that their mother was set on fire after pouring kerosene by their father.

[17] In his cross-examination he has stated that when he came back to his house after getting phone call of his wife, at that time Pinki Das and Rinki Das, daughter of his sister did not state to him that accused Bhajan Das set fire on the body of their mother. However, clarifying these statements the said witness stated to the Court that the two daughters told him about the incident when he came back to his house from hospital.

[18] Jhunu Mallik (PW-3), the mother of the deceased has stated that hearing the cry of her granddaughters she went to the place of occurrence and saw her daughter burning in flame but she did not see the accused appellant at the place of occurrence. The deceased daughter was first shifted to the hospital. The said witness however stated that her daughter told her "in the hospital that her husband i.e. the accused-appellant set fire on her body". PW-3 further deposed that her granddaughters Pinki and Rinki also told her that the accused-appellant Bhajan Das poured kerosene oil on the body of their mother in their house. Thereafter, her daughter ran out from the house and went towards the house of her sister-in-law where she was set on fire.

[19] In cross, she denied the suggestion that Pinki and Rinki did not inform her that the accused-appellant poured kerosene on the body of her daughter.

[20] Anima Mallik (PW-4) has stated in her evidence that while she was cooking rice at about 3.30 pm in an earthen oven at their courtyard, she suddenly perceived that a burning fire wood from the oven was taken out by someone from behind and as soon as she looked back, she saw that Putul Das was burning at their courtyard.

[21] Swapna Mallik (PW-5) has stated in her evidence that the deceased Putul Das was her sister-in-law and on 29.04.2014 at about 3.00pm while they were having lunch with her mother-in-law, they heard Bhajan Das and her sister-in-law quarreled with each other and after a short interval they heard that her sister-in-law crying; saying "save save". On hearing her cry she came out there from their house and saw that her sister-in-law was running towards the house of Anima Mallik, aunt of her husband. She further stated that accused-appellant, Bhajan Das was also running behind her. She went to the house of Anima Mallik and saw that accused Bhajan Das to set fire in the body of Putul Das taking a burning fire wood from the earthen oven in the courtyard. They tried to extinguish the fire and informed her husband over phone about the incident. Her husband immediately came back to the home but by that time Putul Das was on the way of hospital and rushed towards the hospital with his auto and took the injured Putul Das in his auto nearby ONGC and thereafter she was taken to the GBP Hospital and after 10 days Putul Das succumbed to her injury in the hospital.

[22] In her cross, she denied the suggestion that she did not go to the place of occurrence hearing the crying of the victim or that she did not see Bhajan Das to run behind Putul Das towards the house of Anima Das. She also denied the suggestion put forth by the defence that she did not see the accused-appellant Bhajan Das to set fire on the person of Putul Das.

[23] Suparna Mallik (PW-6) stated in her evidence that her house was located at a short distance of the house of the accused. She deposed before the Court that on 29.04.2014 at around 3.00pm she heard hue and cry from the side of the house of Anima Mallik (PW-4) when she went to the house of Anima Mallik found that Putul Das was burning in flame and further noticed that two daughters of Putul Das were crying. On being asked the said two daughters of Putul stated to her that accused Bhajan Das set their mother on fire after pouring kerosene on her body. She further stated that the informant Arun Mallik, the PW1 (father of the victim) extinguished the fire with a "khata" and thereafter she was sent to GBP Hospital. However, being trust to her statement "I asked daughters of victim as to how she was set fire" is not found in the said statement. In her cross examination the said PW-6 deposed that victim Putul Das was conscious when she was taken to the hospital and able to speak but after 2/3 days she could not speak.

[24] Pinki Das, PW-7, is the most vital witness and happens to the eye witness of the entire episode. She is aged about 13 years at the time of her cross examination. She deposed that victim Putul Das was her mother and accused Bhajan Das was her father. On 29.04.2014 at around 3.00 pm her mother, sister and herself were taking their lunch at their home. At that time her father came to the house and kicked the dish in which she was taking her lunch. Her father then poured kerosene on the person of her mother and then her mother to save herself, ran away towards the house of her younger grandfather, late Uttam Mallik. Her father i.e. the accused appellant also ran towards her mother in the house of her said grandfather. She and her younger sister also followed them. She further stated that her father set fire on the body of their mother taking a burning fire wood from the earthen oven in the courtyard of her said grandfather causing flame on the body of her mother. Thereafter, she was taken to the GBP hospital where she was succumbed to her injury on 9th May, 2014. After the death of her mother she was brought to the court when she gave her statement before the learned Magistrate and she narrated the incident before the Magistrate. On identification of her signature which marked as Exbt.4 on the front page and on the reverse page as 4/1 and she identified the accused on dock.

[25] In her cross-examination she stated that she was reading in Class-VIII at Abhaynagar N.S. School. She further stated in reply to a question during cross examination that it was a fact that before the incident her father, sister, mother and myself were taking lunch together. She denied the suggestion that when they were taking the lunch her grandmother came to their house and at that time her father had a quarrel with her grandmother. The said witness had volunteered that when her father set fire on the body of her mother, she tried to save herself, embracing her father but her father pushed down her and fled away. She denied the suggestion that she went to the house of her grandfather after the incident. In reply to a question asked by the court she replied that at the time of deposition she was staying "childcare home at Abhayanagar."

[26] Rinki Das, PW-8, being one of the two daughters is another vital witness relating to the instant case. At the time of her deposition she was aged about 9 years. Before her examination the learned Court tested her intelligence also ascertained her capacity as child witness for adducing evidence and accordingly, a certificate was issued by the learned Judge considering her to be rational and competent to adduce evidence. PW-8 stated that at the time of her deposition before the Court she was residing at Abhyanagar Childcare Home due to death of her mother and she was residing there for one year since the year of death of her mother and she was continued her study staying in the childcare home. She further stated that her mother was set on fire by her father in the house of her one grandmother nearby their house. She stated that the name of her grandmother was not known to her. The said witness further stated that she saw that after setting fire on her mother, her father fled away.

[27] In her cross-examination PW-8 stated that prior to the accident all of them were taking lunch. She denied the suggestion that she did not see her mother to set on fire on her mother.

[28] Sri Takhirai Debbarma, PW-9, has stated that on 01.05.2014 he was posted as Deputy Collector and Magistrate in the office of the SDM, Sadar. On that date, SDM, Sadar passed on order asking him to record the dying declaration of Smt. Putul Das. Accordingly, he went to the GBP hospital and contacted the concerned doctor of the Unit namely, Dr. Shyam Sundar Saha who gave the certificate, recorded fitness of the patient for giving statement. Thereafter, he recorded the statement of victim Putul Das regarding her burning injuries. On being asked the victim stated to him that her husband used to come to house under intoxication and used to quarrel with her and on the date of incident her husband took her in the house of her uncle and after pouring kerosene he set fire on her body with a matchstick and as a result she sustained burn injury.

[29] PW-9 further stated that after recording her statement he took her right thumb impression at the bottom of her statement and thereafter he also put his certificate of recording the statement of the victim in the hospital on 01.05.2014 at about 4.15 pm. The said witness had identified the said dying declaration having his signature and certificate therein by Dr. Shyam Sundar Saha. On identification, the said dying declaration was marked as (Exbt.5) he identified his signature on the said dying declaration marked as (Exbt.5/1).

[30] In cross-examination PW-9 stated that he received the order from the SDM, Sadar on 01.05.2014 at about 1.00pm, police accompanied him at GBP Hospital. The witness volunteered that police did not enter inside the hospital with him. He further stated in his cross that SDM, Sadar issued an order to him on receipt of requisition by the police.

[31] The said witness further stated that he did not mentioned in the dying declaration the number of GD Entry or the police case number. He has stated that the victim was not in a position to put her signature due to burn injury on her hand. However, the said witness had volunteered that he found her thumb good enough for taking impression. He further stated in his cross-examination that the Medical Officer Dr. Shyam Sundar Saha, one staff (GDA) of the hospital at the time of taking statement of the victim was present. He did not obtain the signature of the staff (GDA) in the statement recorded by him. He denied the suggestion that victim Putul Das did not give the statement in presence of the medical officer and any staff of the hospital. He further denied the suggestion that he prepared the statement as per instruction of police of the case.

[32] Babul Ch. Biswas, PW-10 and Tamal Sarkar, PW-11, did not state any material facts in course of his examination and cross-examination were also declined.

[33] Sri Suman Kr. Chakraborty, PW-12 was the forensic expert and he stated that on 17.06.2014 he was posted as Deputy Director, SFSL, police sent him three numbers of sealed packet which marked as Exbts. A to C. Exbt.A was one red coloured partially burn cloth piece and four numbers of read yellow black multi coloured partially burn cloth pieces said to be wearing apparels of deceased. Exbt.B was one green coloured empty plastic bottle with kerosene like smell and Exbt.C contained with .005 gram of hair strands with some black coloured substance adhering on the packaging material said to be burnt skin and scalp hair of the victim. However, cross-examination was declined.

[34] Dr. Shyam Sundar Saha, PW-13 was posted as Medical Officer at Unit-I Surgery Department of AGMC & GBP Hospital, Agartala on 01.05.2014. The said witness has stated that on that day he was asked by the Deputy Collector and Magistrate for giving mental and physical fitness certificate of the patient namely Smt. Putul Das who was admitted in the FS-2 ward under Unit-II Surgery with her burn injuries. Accordingly, he cross-examined the patient and found her fit for giving her statement and a certificate was accordingly issued in support of the fitness of the said victim. He identified his signature along with the certificate Marked as (Exbt.5/2). At that relevant point of time in Unit-II he examined the patient, asked by the Deputy Collector and Magistrate, Sadar (PW-9) and after obtaining the certificate PW-9 recorded her statement.

[35] In his cross-examination PW-13 stated that at the time of recoding statement he was not present there and he has given the certificate as per verbal request by the DCM Sadar. He further stated in his cross-examination that he had no knowledge about the type of treatment applied to the patient.

[36] Sri Rakhal Mitra, PW-14, was posted as SI at Amtali P.S. on 01.05.2014 and on that date he received one written ejahar from PW-1. He filled up the prescribed FIR form in connection with the case and after registration of the case it was endorsed to one woman S.I., namely, Aparna Debnath for investigation. In her cross-examination the said witness has stated that she did not record the reason for delay for filing of the case by the informant.

[37] Dr. Pranab Chowdhury, PW-15 was posted as Assistant Professor in the Department of Forensic Medicine and Toxicology at AGMC & GBP Hospital. He has stated that on 09.05.2014 Dr. Dipankar Chakraborty Medical Officer of this department conducted postmortem over the body of Putul Das in connection with NCC P.S. GD. No. 406 dated 09.05.2014. He explained that at the time of deposition, Dr. Dipankar Chakraborty was committing his higher study in Wardha Maharastra. The said witness stated that he knew the handwriting of Dr. Chowdhury as he has worked with him for about two and half years. He further stated that on examination there was dermo epidermal burn injury present, head and neck 7% anterior trunk 16%, posterior trunk 16%, right upper limb 8%, left upper limb 8%, right lower limb 14% and left lower limb 14%, total 83% body surface area were involved. The said witness identified the signature from the body of the PM report which marked as (Exbt.8).

[38] In his cross-examination he stated that there were burn injuries from lower lip to chin. The anterior trunk means front part of chest and abdomen. Posterior trunk means back part of chest and up to pelvic. The said witness clarified that in case of septicemia there might not be fever.

[39] Sri Nirmal Majumder, PW-16 has stated that on 01.05.2014 when he was at Amtali police station in connection with his personal affairs, PW-1 requested him to write an ejahar on his behalf. Accordingly, he wrote the ejahar as per his dictation and thereafter, he read over the same to him and then PW-1 put his signature in the said ejahar admitting that the ejahar was written as per his dictation. He also put his signature in the ejahar giving necessary certificate that the ejahar was written as per his version and it was read over to him. The said witness identified the said ejahar and his signature thereon which were marked as Exbt.1/2.

[40] Smt. Aparna Debnath, PW-17 was posted as WSI at Amtali police station. She has stated that being endorsed; she examined the complainant Sri Arun Mallik (PW-1) on 01.05.2014 but did not record his statement as he corroborated the contents in the ejahar. On that date she also conducted search for the FIR named accused but she found absconding. Thereafter, she visited the GBP Hospital and examined the mother of the victim, namely, Jhunu Mallik (PW-3) and recorded her statement. On 02.05.2014 she visited the place of occurrence and prepared hand sketch map along with index which were marked as Exbt.9 & 10 respectively. She identified the seizure list marked as Exbt.2/1, she also examined Smti. Anima Mallik, Smti. Swapna Mallik, Kumari Pinki Das, Kumari Rinki Das, Smti. Suparna Mallik on 02.05.2014. On 05.05.2014 she made a prayer to the learned SDJM, Bishalgarh for recording the statement of witnesses Pinki Das u/S 164(5) of Cr. P.C. and accordingly, her statement was recorded. She further stated that on 01.05.2014 the dying declaration of the victim was recorded by Sri. Takhirai Debbarma, DCM, Sadar, as per request of NCC P.S. she further stated that she arranged for wide publication in the news paper to find out the absconding accused namely Bhajan Das. On 19.06.2014 she able to arrest the accused-appellant from Jogendranagar Katashewla under East Agartala P.S. Being satisfied she filed the charge-sheet against the accused appellant.

[41] In her cross-examination she has stated that she collected the dying declaration of the victim on 15.05.2014 as none of the witnesses stated to her that dying declaration was recorded. The said witness volunteered that she came to know about the recording of dying declaration from NCC P.S. She further stated that she did not record any statement of OC, NCC P.S., she did not cite him as witness. She further stated that she did not record the statement of Sri Takhirai Debbarma, DCM, Sadar and also did not record the statement of doctor Shyam Sundar Saha who gave certificate of fitness for recording the statement of the victim. She further stated in cross that she did not examine the medical officer who had treated the victim. She stated that she did not seize the bed head ticket in respect of the treatment of deceased.

[42] The said witness further volunteered that she had recorded the reason in her case diary and stated that she visited the GBP Hospital on 01.05.2014 at night and at that time medical officer did not allow her to record her statement as her condition was not good. She recorded in her case diary that at that time Putul Das was found unconscious and she was unable to give any statement. She again stated that she did not mention in her case diary from whom she got the information that the victim was unconscious. Further, she denied the suggestion that she did not examined Jhunu Mallik, the mother of the deceased on 01.05.2014. She denied the suggestion that Pinki Das and Rinki Das did not give any statement to her. She denied the suggestion that Pinki Das did not give her statement before the Magistrate as tutored by him.

[43] Learned Addl. Sessions Judge, West Tripura, Agartala on appraisal of oral and documentary evidence on record, convicted the accused-appellant and sentenced him under Section-302 of IPC for committing murder of Putul Das. If we reiterate the arguments canvassed by Riki Das, we find that she lead much emphasis to dislodge the credibility of the dying declaration recorded by PW-9. Also, the contraction in the statements of PW-7 that in course of her examination-in-chief, she stated that her father, mother and sister including herself were taking lunch, while in cross-examination she stated that her father came back and started quarrel with her mother and the accused-appellant poured kerosene on the person of her mother, whereas the prosecution case mainly rested upon the evidence of the PW-7, Pinki Das and the dying declaration.

[44] It is therefore, necessary to find out as to whether the evidence of PW-7 being a child witness as contradictory in nature assenting the credibility and trustworthiness of her evidence and the truthfulness of the dying declaration (Exbt.5). Further, it is also necessary to find out whether principal act of the accused appellant is supported substantial evidence. At the time of deposition on 28.03.2015, PW-7 Pinki Das was aged about 13 years and was studying as Class-VIII. The incident occurred on 29.04.2014 i.e. about a year back.

[45] At the outset, we have given our thoughtful consideration to the mental agility and intelligence of a child attaining the age of 12/13 years and according to us, the child of 12/13 years and studying in Class-VIII in the present days, appears to be matured enough. It is now well settled that a child witness if found competent to depose to the facts and reliable one, such evidence could be the basis of conviction. The credibility of a child witness under the age of 12 years has been consciously taken into consideration in the case of Nivrutti Pandurang Kokate and Others vs. State of Maharashtra, reported in (2008) 12 SCC 565, where the Apex Court has observed thus:

"6. We shall deal with the acceptability of child witness PW 13. There are certain other factors which also have relevance. The recovery of the weapon of the assault led to further investigation. PW 9 is shop keeper who sold the said weapon to the appellant No.3 on the date of incident. This was followed by another purchase by appellant No. 4 from PW 11 of 9 kgs. of salt. The trial Court and High Court noted that salt acts as a preservative. So far as evidence of PW 13 is concerned it goes to show that the deceased was sleeping alone in his hut and eating in his brother's house. There was an extremely estranged relationship of the deceased with his wife and it was known to the relatives. The recovery of the dead body from the pit in the agricultural land at a short distance also has relevance.

PW 13 has deposed that her mother of the deceased appellant No. 1 washed the blood of the father with a bucket of water and cloth. She poured it outside the house. The appellants spread shawl on tiles. They put the dead body on the shawl and put gunny bag on the dead body. They lifted it by holding the shawl. They carried the body to their field. They buried it in the pit. Thereafter they returned home. Appellant Nos. 2 & 3 went to their respective houses. The appellant No. 1 locked the house where the deceased was killed and she went to the hut to sleep. She went near her brother who had continued to sleep through the incident and slept. Her evidence is as concise and precise and as it is specific and vivid. It is neither embellished nor embroidered. It is the evidence of a child who has seen through the unusual and cruel incidence. She was a girl of tender age who saw the killing of her father by her mother and others.

The age of the witness during examination was taken to be about 12 years.

"6...... The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States (159 US 523). The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. [See Suryanarayana v. State of Karnataka (2001 (9) SCC 129)].

"5.... "A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."

The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.

[46] In other words, even in the absence of oath the evidence of a child witness can be considered under Section-118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind that while assessing the evidence of a child witness, is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. However, there is no rule or practice that in every case the evidence of such witness to be corroborated before the conviction can be allowed but however, as a rule of prudence the Court always found it desirable to have the corroboration to such evidence from other dependable evidence on record. For purpose of reference the Apex Court observed in Dattu Ramrao Sakhare & Others v. State of Maharashtra, reported in (1997) 5 SCC 341, and has held thus:

"6. The learned trial judge recorded his reasons and found that Sarubai was a competent witness and her evidence is unblemished. The High Court also accepted the evidence of Sarubai as reliable one. We, therefore, do not see any reason to disagree with the observations of the learned courts below as regards the evidence of Sarubai We were taken through the judgments of the courts below as regards the evidence of Sarubai We were taken though the judgments of the courts below as well as the evidence of Sarubai. She had stated in her evidence that when she was grazing the cattle in the field at about 5.00 p.m, all the three appellants came in her land and started assaulting Appa(her father). A-1 and A-2 had axes in their hands while A-3 was having a sickle in her hand. On seeing a ghastly attack on her father she was very much scared, Appa then made a signal to her to go the abadi and inform the mother Ambubai (P.W.1). She then immediately proceeded towards abadi and on the way she saw Shanker (P.W.5) who was working in his field. After reaching home she found that her mother had not returned from the work and, therefore, left the message with Mukta, the aunt, about the assault on Appa and requested her to ask her mother Ambubai (P.W.1) to reach the field with a bullock cart. Sarubai (P.W.2) then returned to the place of incident. In the mean time Ambubai (P.W.1) who returned from the work got the message and requested Shivaji (P.W.4) to get the cart. Shivaji(P.W.4)then brought the cart of Maruti in which they reached at the place of incident. Sarubai(P.W.2) narrated the entire incident to Ambubai (P.W.1). Appa was then kept in the chart and was taken to the dispensary at Naldurg. Doctor on duty, however declared him dead. We have carefully examined the evidence of this witness and we find that it is totally unblemished. There is no challenge to her evidence that she was in the field at the time of incident. Her evidence finds corroboration from Shanker(P.W.5)who had stated that when he was in his field he heard commotion in the field of Appa and after going there he saw sarubai also in the field. Ambubai (P.W.1) in her evidence stated that her daughter sarubai (P.W.2) had gone to the field along with her father and she herself had gone to work in another field. When she returned home in the evening she got a message from Muktabai about the assault and to get a bullock cart in the field. Shivaji (P.W.4) has also stated on oath that when he received a message from Ambubai to get a cart he got the same from Maruti and thereafter he and Ambubai went to the field. Sarubai (P.W.2) then narrated the incident to her mother. Appa was then taken to the dispensary at Naldurg in the bullock cart where he was declared dead by the Medical officer. From the evidence of these witnesses it is clear that all these movements took place in a very short span of time because they reached the dispensary at Naldurg which is at a distance of 15 kms., from Khudawadi at about 9.30 p.m. or 10.00 P.m. We, therefore, see no hesitation in confirming the findings of the courts below that Sarubai was present in the field along with her father at the time of incident".

[47] In the light of this settled principle, we may proceed to consider the evidence of Pinki Das (PW-7). We have taken note of that in course of her cross-examination. The learned trial judge in his judgment clearly stated that he tested PW-7 about her intelligence capacity to understand all the questions and giving rational answers. On careful scrutiny of the statement of PW-7 in course of trial, it is found that she was very much categorical to the principal act of the accused-appellant. In the case in hand, the principal act of the accused-appellant was that at the time of taking lunch a quarrel was cropped up between Putul Das, mother of PW-7 and the accused-appellant, the father of PW-7. Out of that quarrel the accused-appellant had poured kerosene on the person on her mother. She further stated that to save her life her mother ran towards the house of her younger grandfather i.e. the house of late Uttam Mallik. Her father also was following her mother when she along with her younger sister, PW-8 also following their parents. Her mother entered into the house of said late Uttam Mallik, her father also entered and simultaneously they also had entered into the house. She without any ambiguity has stated that she saw her father to setting her mother on fire by taking a burned fire wood from the earthen oven from the courtyard. Anima Mallik, PW-4 was cooking rice at that earthen oven at that time. She volunteered to say that at one point of time her mother tried to save herself embracing her father, but, her father pushed her down and fled away. She specifically denied the suggestion made by the defence that her mother herself put kerosene on her body. Only discrepancy which is pointed out by the learned counsel appearing for the appellant is that in her cross-examination PW-7 has stated that when they were taking lunch the accused-appellant also was taking lunch with them, and in her examination-in-chief she has stated that she herself, her younger sister Rinki and her mother were taking lunch and at that time their father came to the house and kicked the dish of her mother. While, in cross-examination she has stated that their father was also taking lunch along with them.

[48] Having given our conscious thought to the said statement, in our opinion, it is a mere discrepancy and not tantamount to any contradiction. Hence, we repel the submission of learned counsel for the accused-appellant that on the basis of such statement the entire statement of PW-7 has to be discarded. According to us, the principal act of pouring kerosene on the body of the deceased and taking out of a piece of fire wood from the earthen oven of Anima Mallik and setting her on fire, is well established. We have noticed that learned judge prior to her examination had tested her intelligence and gave a certificate stating that the said witness had answered all the questions properly and the learned Judge considered her to be rational and competent to adduce witness. So, we have no hesitation to take note of the statements made by PW-8. In her examination-in-chief she has stated that her mother died as she was set on fire by her father in the house of her one grandmother which is situated nearby their house. She has specifically stated that she saw that after setting fire on her mother, the accused-appellant fled away. She denied the suggestion that she did not see her father to set on fire on her mother. So the statement of PW-7 about the principal act of the accused-appellant is substantially corroborated by the evidence of PW-8. PW-8, the younger daughter of both the deceased and the accused-appellant came to the witness box as PW-8 (Rinki Das). At the time of deposition before the trial court she was aged about 9 years.

[49] Now, if we carefully and meticulously scrutinized the statement of PWs-1, 2, 3, 4 and 5 and it surfaced that the relevant fact in issue is whether there was quarrel between Putul Das and the accused-appellant, whether kerosene was poured on the person of Putul Das, whether she to save her life entered into the house of Anima Mallik (PW-4), whether the accused-appellant took away a piece of fire wood from the earthen oven of Anima Mallik and set his wife on fire by that piece of fire wood, whether PWs-1 and 3 being parents had arrived at the place of occurrence, whether PWs-7 & 8 told to PW-6 that accused-appellant set their mother on fire after pouring kerosene on her body and whether the accused-appellant had fled away from the place of occurrence.

[50] PW-7 has categorically stated that there was quarrel between her mother and father. This statement of PW-7 in regard to the fact of quarrel is substantially corroborated by PW-1, PW-3 and PW-5 when they have stated that while they were taking lunch they heard accused-appellant and the deceased Putul Das were quarrelled with each other. PW-5 has also stated that after a short interval they heard crying of deceased Putul Das "save save". Lastly, we have perused the statements of PW-7 recorded under Section-164(5) of Cr.P.C. The statements recorded under Section-164(5) of Cr. P.C. is not substantive piece and it is used for the purpose of contradiction and corroboration. Learned counsel for the appellant has failed to highlight any such material which contradicts the statements of PW-7 in her deposition before the Court. The statements that the appellant after returning back to home started quarrelling with her mother-victim, poured kerosene upon her, set her on fire in the house of late Uttam Mallik are corroborative to each other. In absence of any sort of apparent embellishment or improvement, we have no reason to throw out the statements of PW-7 the cumulative effect of which makes her statement inspiring and trustworthy to this Court.

[51] PW-5 has categorically stated that on haring her cry she came out from their house and saw that her sister-in-law was running towards the house of Animal Mallik, the aunt of her husband and the accused-appellant also running behind her and she went to the house of Anima Mallik. So the next episode is what the PW-7 has stated that her mother to save herself runs towards the house of the younger grandfather namely, late Uttam Mallik and her father also run towards the house of her grandfather, have substantially been proved and this statement of PW-7 is corroborated by PWs-5 & 8.

[52] Next episode is as to what happen in the house of Anima Mallik, the wife of late Uttam Mallik. PW-7 has stated that she saw her father took away the piece of fire wood from the earthen oven of Anima Mallik (PW-4) and set her mother on fire. Corroborating her evidence on this episode, PW-5 Swapna Mallik has stated that when she went to the house of Anima Mallik she saw that the accused-appellant to set fire on the body of Putul Das taking burning fire wood from the earthen oven in the courtyard.

[53] PW-1 being the father had tried to extinguish the fire with a khata. PW-5 also participated in such attempt for extinguish flame and from causing damage to the body of deceased Putul Das. Thereafter, the deceased Putul Das was taken to the hospital. PW-5 Swapna Mallik has informed her husband, Balai Mallik over phone about the incident and has asked him to immediately come back to the home.

[54] PW-2 during deposition has stated that he came back home after receipt of information about the incident from his wife PW-5 (Swapna Mallik). In his cross-examination he told to the Court that Pinki Das and Rinki Das (PWs-7 & 8 respectively) told him that their father set her mother on fire.

[55] PW-6, Swapna Mallik has stated that on hearing cry, she went to the house of Anima Mallik (PW-4) and found that Putul Das was burning in flame and noticed that daughter of Putul Das was crying and on being asked she replied that accused-appellant Bhajan Das set her mother on fire after pouring kerosene on her body.

[56] PW-7 has made the statement just immediately after the incident and it is admissible in evidence in terms of Section-6 of the Evidence Act, applying the principle of resgestae. As such, the entire episode relating to the principal act of the accused-appellant that he entered into a quarrel with his wife Putul Das, poured kerosene on her person, entering into the house of Anima Mallik (PW-4), have been substantially proved beyond reasonable doubt and set the deceased Putul Das on fire by taking a piece of fire wood from the earthen oven of from the courtyard of Anima Mallik, have substantially proved by the evidence of PW-7, while corroborated by PWs-1, 2, 3, 4, 5 & 6. As such, we have no hesitation to find the statement of PW-7 as credible, trustworthy and inspiring confidence of this Court about the commission of offence committed by the accused-appellant i.e. the crime of murder of his wife Putul Das.

[57] Now the question remains about the genuineness and truthfulness of the dying declaration. Before adverting to the circumstances under which the dying declaration was made by the victim and recorded by PW-9, the Deputy Collector and Magistrate, we may have look in regard to verify the authenticity and evidentiary value of the dying declaration.

[58] At this juncture we may have a re-look to the evidence of PW-3 Jhunu Mallik, the mother of the victim. She has stated in her evidence that they immediately shifted the victim in the GBP Hospital. Initially she was taken in a vehicle of someone up to ONGC and thereafter her son Balai Mallik (PW-2) took her to GBP hospital in his auto from ONGC and then she has stated that her daughter told her in the hospital that her husband i.e. the accused-appellant Bhajan Das set fire on her body.

[59] PW-2 Balai Mallik also stated in his evidence that after coming back to home, he came to know that Putul Das was shifted to Hapaniya Hospital when her elder brother Jitendra Mallik told him over phone to come to ONGC with his auto and accordingly, he took his sister to his auto and shifted her to AGMC & GB hospital.

[60] So, the version of PW-3 that the victim was taken to the GBP hospital from ONGC by Balai Mallik through his auto, has been proved. As this version of PW-3 has been proved, we are of the opinion that the victim Putul Das at first instance told to PW-3, her mother that her husband Bhajan Das set her on fire.

[61] Now, we have given our thoughtful consideration what emanates from the record of dying declaration considering the submission of the learned counsel appearing for the accused-appellant that the dying declaration cannot at all be relied upon considering the extent of injury caused to the victim.

[62] At first, we may profitably refer the case of the Apex Court in Ram Nath Madhoprasad and Ors. vs State Of Madhya Pradesh, reported in AIR 1953 SC 420 and according to us the observation made in this case by the Apex Court have a great bearing upon the value to be placed upon the dying declaration; "It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered........."

[63] We have therefore, to examine the legal position that whether it is settled law that dying declaration by the deceased can, in no circumstances, be the basis of conviction. The learned trial Judge has strongly relied upon the statement made by the victim in her dying declaration recorded by PW-9, while convicting the accused-appellant under Section 302 of IPC.

[64] In the context of the case, we may have a substantial assistance from the general discussion made by the Apex Court in the case of Khushal Rao v. The State of Bombay, reported in AIR 1958 SC 22; MANU/SC/0107/1957 wherein, it was observed thus:

"14........This Court examined for itself, the dying declarations and the other evidence bearing upon the truth and reliability of the dying declarations, and after an elaborate discussion of all that evidence, came to the conclusion that the dying declarations did not contain "a truthful version of what actually happened". Thus after a very careful and cautious examination of the facts of the case, connected with the recording of the dying declaration, and of the other evidence in the case and of the fact that it was a dark night without any lights available at the place of occurrence, this Court distinctly came to the conclusion that the dying declaration was not true and could not be relied upon to base, upon that alone, the conviction of the appellants. It is, thus' clear that the observations quoted above, of this Court, are in the nature of obiter dicta. But as it was insisted that those observations were binding upon the courts in India and upon us, we have to examine them with the care and caution they rightly deserve.

The Legislature in its wisdom has enacted in s. 32(1) of the Evidence Act that "When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question", such a statement written or verbal made by a person who is dead (omitting the unnecessary words) is itself a relevant fact. This provision has been made by the Legislature, advisedly, as a matter of sheer necessity -by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by cross-examination, is not admissible. The purpose of cross-examination is to test the veracity of the statements made by a witness. In the view of the Legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies; and secondly, the test of cross- examination would not be available. In such a case, the necessity of oath also has been dispensed with for the same reasons. Thus, a statement made by a dying person as to the cause of death has been accorded by the Legislature a special sanctity which should, on first principles, be respected unless there are clear circum- stances brought out in the evidence to show that the person making the statement was not in expectation of death, not that that circumstance would affect the admissibility of the statement, but only its weight. It may also be shown by evidence that a dying declaration is not reliable because it was not made at the earliest opportunity, and, thus, there was a reasonable ground to believe its having been put into the mouth of the dying man, when his power of resistance against telling a falsehood was ebbing away; or because the statement has not been properly recorded, for example, the statement bad been recorded as a result of prompting by some interested parties or was in answer to leading questions put by the recording officer, or, by the person purporting to reproduce that statement. These may be some of the circum- stances which can be said to detract from the value of a dying declaration. But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is Dot fit to be acted upon, and made the basis of a conviction. No decision of this Court, apart from the decision already noticed, has been pointed out to us as an authority for the proposition that a dying declaration, in order to be acted upon by a court, must be corroborated by independent evidence. On the other hand, the different High Courts in India (including Burma) have taken conflicting views as to the value of a dying declaration in part or in its entirety, without any independent corroboration. For example, a Division Bench of the Bombay High Court, presided over by Sir John Beaumont C.J., has laid down in the case of Emperor v. Akbarali Karimbhai (I), that a statement which is covered by s. 32(1) of the Evidence Act is relevant evidence and has to be judged on the same principles as other evidence, bearing in mind that such a declaration was not made on oath and was not subject to cross-examination, and is, therefore, a weaker type ,of evidence than that given by a witness on oath. Therefore, if a part of a dying declaration is deliberately false, it will not be safe to act upon the other part of the declaration without very definite corroboration, That Bench also ruled that it is not correct to postulate that because some part of the dying declaration is false, the whole declaration must necessarily be disregarded. The Bombay High Court, thus, did not agree with the observations of the Calcutta High Court in the case of Emperor v. Premananda Dutt (1) to the effect that it is not permissible to accept a dying declaration in part and to reject the other part and that a dying declaration stood on a widely different footing from the testimony of a witness given in court. On the other hand, we have the decision of the Rangoon High Court, reported in the case of the King v. Maung Po Thi (2). In that case, the positive evidence led on behalf of the prosecution was found to have been tampered with and unreliable. The Court set aside the order of acquittal passed by the trial judge, and recorded an order of conviction for murder, practically on the dying declaration of the victim of the crime. The Court observed that there was. No such rule of prudence as had been invoked in aid of the accused by the trial judge who had observed that an accusation by a dying man, without corroboration from an independent source, could not be the sole basis for conviction. The learned Judges of the High Court further observed that in order to found on a dying declaration alone, a judgment of conviction of an accused person, the Court must be fully satisfied that the dying declaration has the impress of truth on it, after examining all the circumstances in which the dying person made his statement ex-parte and without the accused having the opportunity of cross-examining him. If, on such an examination, the Court was satisfied that the dying declaration was the true version of the occurrence, conviction could be based solely upon it.

In the High Court of Madras, there was a difference of judicial opinion, as expressed in certain unreported cases, which resulted in a reference to a Full Bench. Sir Lionel Leach C. J. presiding over the Full Bench (In re, Guruswami Tevar (1) ), delivered the unanimous opinion of the Court after examining the decisions of that High Court and of other High Courts in India. His conclusions are expressed in the penultimate paragraph of his judgment, thus:-

" In my judgment it is not possible to lay down any hard and fast rule when a dying declaration should be accepted, beyond saying that each case must be decided in the light of the other facts and the surrounding circumstances, but if the Court, after taking everything into consideration, is convinced that the statement is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense. The Court must, of course, be fully convinced of the truth of the statement and, naturally, it could not be fully convinced if there were anything in the other evidence or in the surrounding circumstances to raise suspicion as to its credibility."

To the same effect are the decisions of the Patna High Court in the case of Mohamad Arif v. Emperor (2), and of the Nagpur. High Court in Gulabrao Krishnajee Maratha v. King Emperor(3). I.L.R. [1945] Nag. 613; A.I.R. 1945 Nag. 153.

The Judicial Committee of the Privy Council had to consider, in the case of Chandrasekera alias Alisandiri v. The King(4), the question whether mere signs made by the victim of a murderous attack which had resulted in the cutting of the throat, thus, disabling her from speaking out, could come within the meaning of s. 32 of the Ceylon Evidence Ordinance, which was analogous to S. 32(1) of the Indian Evidence Act. The Pi-ivy Council affirmed the decision of the Supreme Court of Ceylon, and made the following observations in the course of their judgment, which would suggest that a dying declaration, if found reliable by a jury, may, by itself, sustain a conviction:

"...... Apart from the evidence proceeding from the deceased woman, the other evidence was not sufficient to warrant a conviction, but at the same time that other evidence was not merely consistent with the deceased's statement but pointed in the same direction.' It was.% case in which, if the deceased's statement was received, and was believed, as it evidently was by the jury, to be clear and unmistakable in its effect, then a conviction was abundantly justified and, indeed, inevitable."

In 'Phipson on Evidence', 9th ed., p. 335, the author has discussed the question Whether, a dying declaration without other evidence in corroboration, could be sufficient for a conviction, and has made the following observations which are pertinent to this case :

"...... The deceased then signed a statement implicating the prisoner, but which was not elicited by question and answer, and died on March 20. It was objected that being begun in that form, it was inadmissible:-Held (1) the questions and answers as to his state of mind were no part of the dying declaration; (2) that even if they were, they only affected its weight, not its admissibility; and (3) that the declaration was sufficient, without other evidence, for conviction (R. v. Fitzpatrick (1910) 46 Ir. L.T.R. 173, C.C.R)."

Sometimes, attempts have been made to equate a dying declaration with the evidence of an accomplice or the evidence furnished by a confession as against the maker, if it is retracted, and as against others, even though not retracted. But, in our opinion, it is not right in principle to do so. Though under S. 133 of the Evidence Act, it is not illegal to convict a person on the uncorroborated testimony of an accomplice, illustration (b) to S. 114 of the Act lays down as a rule of prudence based on experience, that an accomplice is unworthy of credit unless his evidence is corroborated in material particulars and this has now been accepted as a rule of law. The same cannot be said of a dying declaration because a dying declaration may not, unlike a confession, or the testimony of an approver, come from a tainted source. If a dying declaration has been made by a person whose antecedents are as doubtful as in the other cases, that may be a ground for looking upon it with suspicion, but generally speaking, the maker of a dying declaration cannot be tarnished with the same brush as the maker of a confession or an approver.

On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made ; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions -and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human, memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the. circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the state- ment, by circumstances beyond his control; that the state-ment has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it-; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.

Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the, death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the court, after examining the dying declaration in all its aspects, and testing its veracity has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the -necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the re- ported cases, but from the fact that the court, in a given case, has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from such other infirmities as may be disclosed in evidence in that case".

[65] Again it would be apposite to refer a decision of the Apex Court in Paniben vs. State of Gujrat, reported in (1992) 2 SCC 474, were it was observed thus:

"16. This is a case where the basis of conviction of the accused is the three dying declarations. The principle on which dying declarations are admitted in evidence is indicated in legal maxim.

"nemo moriturus proesumitur mentiri-a man will not meet his Maker with a lie in his mouth".

The situation in which a man is on death bed is so solemn and serene when he is dying the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in mis-carriage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence."

[66] We may refer to a decision of Ramawati Devi vs. State of Bihar, reported in AIR (1983) SC 164; MANU/SC/0135/1983 where the Apex Court has held thus:

"7. In our opinion neither of these two decisions relied on by the appellant is of any assistance in the facts and circumstances of this case. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under Section-32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case."

[67] In the case of Atbir vs. Government of NCT of Delhi, reported in (2010) 9 SCC 1, the Apex Court has dealt with the admissibility and reliability of the dying declaration after taking into account various decisions of the Apex Court in the manner as follows:

In Paras Yadav and Ors. vs. State of Bihar, (1999) 2 SCC 126, this Court held that lapse on the part of the Investigation Officer in not bringing the Magistrate to record the statement of the deceased should not be taken in favour of the accused. This Court further held that a statement of the deceased recorded by a police officer in a routine manner as a complaint and not as a dying declaration can also be treated as dying declaration after the death of the injured and relied upon if the evidence of the prosecution witnesses clearly establishes that the deceased was conscious and was in a fit state of health to make the statement."

[68] In the light of the above analysis and observations as outlined herein above on the question of legality and the propriety of dying declaration made or recorded under various circumstances, let us examine the dying declaration. We may meticulously peruse the dying declaration (Exbt.5). It is surfaced that before recording the statement of the doctor as given fitness certificate in the manner as follows:

"This is to certify that Smt. Putul Das, 25 years, wife of Bhajan Das, Singhamura, ONGC, P.S. Amtali, District: West Tripura, admitted now in FS-II ward, under Unit-II surgery is mentally and physically fit to give her statement regarding her burn injuries."

[69] The said certificate was signed by Dr. Shyam Sundar Saha (PW-13). Thereafter, the victim has made the following statement:

"Very often my husband used to come home in drunken state and used to quarrel with me. On the day of occurrence he took me to our neibouring uncle's house and set me on fire with lighting match stick after dousing me with kerosene. My body got burnt due to this."

[70] The recording Magistrate (PW-9) has taken her right thumb impression, thereafter the Magistrate Sri. Takhirai Debbarma PW-9 has given certificate stating inter alia that the declaration as given by the patient namely, Smt. Putul Das on 01.05.2014 at about 4.15 pm at AGMC & GBP hospital and the same is recorded by him. PW-9 in his cross-examination has volunteered that he found the thumb of the victim was good enough for taking impression.

[71] The learned counsel appearing for the accused-appellant found contradiction in regard to the evidence of eye witness and the statement of the victim in regard to the fact that the eye-witness to the incident have stated that the appellant set the victim on fire by taking a fire wood from the earthen oven wherein the victim has stated that her body was ablazed by a match stick which leads the dying declaration as untrustworthy.

[72] We find no substance in the said submission of the learned counsel for the accused-appellant that the victim was in a state of horror and it was not possible for her to give adequate attention about the source of fire. The principal act that the accused appellant had doused kerosene upon her and set her ablaze would have primacy over the source of light. This Court is not oblivious about her state of health when she was making her dying declaration when her body was burned above 83% and lip to chin was affected due to the said burn injury. The fact of pouring kerosene oil over the body and setting her ablaze by the appellant has substantially proved by the other corroborated evidence adduced by the eye witnesses of the case. As such, we are unable to give any weightage to the submission of the learned counsel that due to such discrepancy in the statement of the source of light, her entire declaration has to be discarded.

[73] Learned counsel appearing for the appellant has tried to create a cloud in the mind of this Court by contending that, since the lip upto the chin of the face of the deceased were affected, it was not possible for her to make any statement before any of the officers.

[74] We do not find any substance to the submission of the learned counsel appearing for the accused-appellant for the reason that the doctor at the time of recording of dying declaration certified that the victim was in a fit state of health to make statement. We have noticed that no question was put to the doctor or he was not asked to clarify in his cross-examination as to whether a person with burn injury on his/her, lip upto chin was/is capable to speak and to make any statement before any officers. In absence of such clarification we find no merit in this submission of the learned counsel appearing for the accused-appellant.

[75] Most remarkable point is that even before making dying declaration at the hospital the victim has made a statement to her mother just after the incident which would be evident from the deposition of Jhunu Mallik (PW-3). We reiterate that PW-3 has stated in her evidence that her daughter told her in the hospital that her husband, Bhajan Das, the accused-appellant herein, set fire on her body.

[76] According to us, the said statement is relevant and admissible in evidence as res gestae under Section-6 of the Evidence Act being made immediately after the incident, though, in the hospital, in absence of any attempt put forth by the defence to dislodge the statement of PW-3. As such, mere discrepancy that the victim stated in her dying declaration that the accused-appellant lit the fire by matchstick would have no consequence when the victim has categorically stated that it was her husband set her on fire, corroborated by the oral testimony of PW-3 which statements are further fortified by other corroborative evidence of eye-witness, particularly, the testimony of PW7. It is well settled that when the relevant fact in issue are proved, mere discrepancy should not be given any undue advantage at the cost of rendering justice.

[77] Another striking feature in the instant case is the conduct of the accused-appellant just after the incident. Just after the incident, the appellant had fled away from the place of occurrence. The incident occurred on 29.04.2014 and no complain was lodged against the appellant till 01.05.2014. As such, there was no reason for the appellant to flee away. After registration of FIR, the I.O. (PW-17) had conducted search for him. Being unable to arrest, the I.O. had arranged for wide publication through newspaper to find out the absconding accused but, only on 19.06.2014 i.e. after one and half months he had succeeded to arrest the appellant. Absconscion for such long duration when his wife was burned to death leaving behind two minor children is a pointer to the guilt of the appellant in the incriminating circumstances of the case in hand.

[78] In our view, failure to explain reason for absconscion after occurrence favours prosecution. Act of abscondence is a relevant piece of evidence and it can be held as a determining link which admits no other reasonable hypothesis than that of the guilt of the accused-appellant.

[79] In regard to the delay of lodging complaint to the police, we are of the opinion that in the circumstance of the case the delay of two days in lodging the FIR was natural and it cannot be said to be abnormal. The parents as well as other members of the family were busy in the treatment and anxious about the state of health of the victim, as such, we find no substance to the submission of the learned counsel appearing for the appellant that the statements made in the complaint are an improved version of the maker of the FIR.

[81] In the result, we find no reason to interfere with the judgment and order passed by the learned Addl. Sessions Judge, convicting and sentencing the accused appellant to suffer life imprisonment. Consequently, we find ample justification to affirm and upheld the judgment and order dated 25.05.2015 passed in ST (T-1) 89 of 2014 by the Addl. Sessions Judge, West Tripura (Fast Track Court), Agartala, Court No. 5. Accordingly, the instant appeal preferred by the accused-appellant, stands dismissed.