Gautam Das vs State Of Tripura

S. Talapatra, J

[1] Heard Mr. A. Acharjee, learned counsel appearing for the appellant as well as Mr. S. Debnath, learned Addl. PP appearing for the state.

[2] This appeal under Section 374 (2) of the Cr.P.C. arises from the judgment and order dated 15.06.2016 and 17.06.2016 delivered in case No. ST 06(ST/S) of 2015 by the Sessions Judge, South Tripura, Belonia. By the said judgment dated 15.06.2016, the petitioner has been convicted under Section 302 of the IPC for committing murder of his wife, namely Sebika Das. Pursuant to that conviction, the petitioner has been sentenced to suffer rigorous imprisonment for life and to pay of fine of Rs.5000/- with default stipulation.

[3] The genesis of the prosecution case is rooted in the suo-moto complaint (Exbt-6) filed by one Jaistha Mohan Debbarma, a Sub Inspector of Police who was working under Manubazar Police Station on 25.02.2015. In his complaint, Jaistha Mohan Debbarma (PW-4) has stated that he had received information on 25.02.2015 at about 1650 hours from the In-charge, Kalachara Primary Health Centre (PHC) namely Dr. Sailendra Tripura (PW-15) that one woman namely Sebika Das (the victim) had been brought to PHC with severe burn injuries. Dr. Sailendra Tripura, according to the said complaint, had further informed the complainant that the smell of petrol or kerosene oil was coming out from the body of the victim. On query, the victim had stated that on a family dispute which was subsisting for a long time, her husband namely, Gautam Das (31) set fire on her body by pouring petrol like oil with intention to kill her in the noon of that day. Thus, she got severe injuries. The victim was shifted from Kalachara PHC to TSD Hospital in Udaipur in a critical state.

[4] Based on the said complaint dated 25.02.2015,ManubazarPScaseNo.2015MNB006 under Section 307/326 of the IPC was registered and taken up for investigation. On completion of investigation, the police filed the final report sending up the appellant to face the trial for committing offence punishable under Section 302 of the IPC as the victim died during her treatment on 13.02.2015 [as per the Post Mortem Examination report]. Since the case was exclusively triable by the court of Sessions, the police papers were committed to the court of the Sessions Judge, South Tripura, Belonia and in due course, the Sessions Judge [or the Trial Judge] framed the charge against the appellant under Section 302 of the IPC which he had denied, pleaded not guilty and claimed to be tried in accordance with law.

[5] In order to substantiate the charge, the prosecution adduced as many as 21 witnesses (PWs-1 to 21) and introduced 15 documentary evidence (Exbts-1 to 15) including the dying declaration (Exbt-9), injury report (Exbt-10), inquest report (Exbt-3) and post mortem examination report (Exbt-14). On recording the prosecution evidence, the trial judge had examined the appellant under Section 313 for having his response to the incriminating materials those surfaced in the evidence. The appellant had reiterated his plea of innocence and called the evidence concocted. Thereafter, as there was no evidence from the defence, the trial judge on appreciation of the evidence and in the light of the argument, returned the finding of conviction and the consequential order, which are challenged in this appeal.

[6] Mr. Acharjee, learned counsel appearing for the appellant has at the beginning submitted that the trial judge has failed to appreciate the evidence appropriately and inferred wrongly that the prosecution has been able to prove the dying declaration purportedly given by the victim (Sebika Das) to different persons including the Executive Magistrate. The trial judge has further erred by holding that the dying declaration given to PW-4 was the basis of the complaint. That apart, according to the trial judge, the dying declaration given to PWs 16 and 17 (Shri Baisnati Reang and Smt. Ira bati Reang respectively) are wholly reliable as those witnesses were working at Kalachara PHC. Even, the victim had given dying declaration before her parents as well as her brother.

[7] According to Mr. Acharjee at the time of occurrence none was present to witness the transaction. Thus, the basis of conviction is those multiple dying declarations. It should be noted that the law in respect of dying declaration has become almost crystallized. The trial judge shall ascertain first, the truthfulness of the dying declaration and if he is satisfied of the truthfulness of the dying declaration, he shall examine the integrity of the process of recording the dying declaration. It is the settled law that if the dying declaration does not suffer from any infirmity, the court must not look out for corroboration to act their upon. On the basis of such truthful dying declaration, the conviction can be returned. To say it differently, the dying declaration can alone form the basis of conviction without corroboration.

[8] Mr. Acharjee, learned counsel has taken us to the thick of evidence to contend that what has been stated in the dying declaration, even if, is believed to be truthful, it cannot be held that the charge under Section 302 of the IPC has been substantially according to the standard of proof. At best a charge under Section 304 Part II of the IPC is made out. Mr. Acharjee did not forget to state that his latter contention be considered, only if the basic argument that the charge has not been proved to the hilt is not accepted by us.

[9] Mr. Acharjee, learned counsel has, in order to buttress his submission, placed reliance on the decision of the apex court in Sayaji Hanmat Bankar vs. State of Maharashtra reported in AIR 2011 SC 3172 where it has been held that in a case where there is no pre-mediation either and having engaged in a quarrel, by pouring kerosene from a lamp, the fire was set on the victim and the victim had received serious burnt injuries which caused her death. Such case would clearly fall under exception 4 of Section 300 of the IPC since there was sudden fight. Such offence is punishable under Section 304 Part II of the IPC, but not under Section 302 of the IPC. Mr. Acharjee, learned counsel has also placed his reliance on a decision of this court in Babul Ghosh vs. State of Tripura reported in (2015) 1 TLR 212 where it has been held as under:

As relied by Mr. Datta, learned counsel for the appellant this court has for limited purpose considered the decision of Paparambaka Rosamma and Others v. State of A.P., SCC 695 where the apex court has held that the evidence of the person making the dying declaration is of paramount importance. In K. Ramachandra Reddy and Anr. V. The Public Prosecutor, (1976) 3 SCC 618 the Apex Court has held as under:

The accused pleaded innocence and averred that they had been falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext. P-2. The dying declaration is undoubtedly admissible under s. 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of has imagination. The Court must be satisfied that the deceased was in a fit slate of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicitly enunciated 37-833 Sup CI/76 by this Court in Khushal Rao v. State of Bombay, 1958 Crl. LJ 106 where the Court observed as follows:

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, & agreement with the opinion of the Full Bench of the Madras IB 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 tile 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, (S) that a dying declaration which has been recorded by Q 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 statement, by circumstances beyond his control. that the statement 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 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."

The above observations made by this Court were fully endorsed by a Bench of five Judges of this Court in Harbans Singh and Another v. State of Punjab(1962) Supp. (1) SCR 104 . In a recent decision of this Court in Tapinder Singh v. State of Punjab(1970) 2 SCC 113, relying upon the earlier decision referred to above. this Court observed as follows:

lt is true that a dying declaration is not a deposition in court and ii is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross-examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances."

In Lallubhai Devchand Shah and others v. State of Gujarat(1971) 3 SCC 767, this Court laid special stress on the fact that one of the important tests of the reliability of a dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind and observed as follows: [SCC (CRI) p. 18, para 9]

"The Court, therefore, blamed Dr. Pant for not questioning Trilok Singh with a view to test whether Trilok Singh was in a "fit state of mind" to make the statement. The "fit state of mind" referred to is in relation to the statement that the dying man was making. In other words, what the case suggests is that the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding."

In Bhupan v. State of Madhya Pradesh, AIR 2002 SC 820 it has been held that when the dying declaration stands contrary to the oral testimony of the other witness in any manner it will be unsafe to rely on such dying declaration. In Laxam v. State of Maharashtra, AIR 2002 SC 2973 the Constitutional Bench of the apex Court has overruled the Paparambaka Rosamma (supra) to enunciate that:

"3.The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, 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. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.

The law laid down in Koli Chnilal Savji and Anr. v. State of Gujarat, (1999) 9 SCC 562 where the Apex Court has held that the ultimate test is whether the dying declaration so made can be held to be truthful one and voluntarily given. Before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question, has been held to be the correct proposition of law. Relying on Laxam (supra) Uttaranchal High Court in Nirmala Devi alias Ghunghera Devi v. State of Uttaranchal, 2005 Crl. LJ 625 has held that:

"The dying declaration should be of such nature as to inspire full confidence by the Court in its truthfulness and correctness. The Court however has to always be on guard to see that the statement of the deceased was not as a result of tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant."[Emphasis added]

[10] Further reliance has been placed on another decision of this court in Biswajit Paul vs. The State of Tripura reported in (2017) 2 TLR 652 where the aspects of preparation of the dying declaration has been dwelled upon. In Biswajit Paul (supra), it has been observed that:

"10. It may also be noted that the signature of the deceased was not even obtained nor was the signature of any nurse or doctor obtained as a witness to the DD even though he admitted that some nurses were present while he recorded it. No explanation was offered by the prosecution for not obtaining the signature or thumb impression of the deceased on the DD. He also admitted that he did not take the opinion of a doctor that the deceased was in a fit state of mind and health to give the statement. Though PW-13 subsequently volunteered to state that he verbally took permission from the nurse or a doctor, he admitted that he did not mention in his report that he had taken such permission; he did not even recollect the name of the doctor or nurse from whom he took the permission. He also admitted that he did not mention in his report containing the DD as to who identified the deceased. He also admitted that he did not mention in the DD that he put some questions to the deceased to test her ability to give any such declaration/statement. Under the circumstances, the possibility of recording of the statement of some other injured person by PW-13 cannot be ruled out. For all the omissions and discrepancies indicated above, we have no difficulty in holding that the two DDs are not acceptable and admissible in law to sustain the conviction. Moreover, in the DD made to PW-15, it was alleged by the deceased that her father-in-law came out of his room and took her child and the said Suchitra (PW-3) to his room i.e. before the appellant dragged her to the room from near the gate. However, as it will be noticed later, PW-3 in her statement never stated that she and the child of the deceased were taken by co-accused to his room; in fact, what she said is that she was present there at the PO and that after kerosene oil was poured upon the deceased, she out of fear hid herself beneath the cot, which is quite inconsistent with the statement of the deceased in the DDs. Thus, in our opinion, the prosecution has failed to establish that the deceased was in a fit state of mind at the time of making the statement and that the DDs were not the result of tutoring, prompting or imagination. Consequently, we have no reluctance in discarding the alleged statements recorded by PW-13 and PW 15 vide Ext.10 and Ext.11. On the contrary, the anxiety to plant evidence by the prosecution is discernible."

[11] A decision of the Andhra Pradesh High Court even though has been referred by Mr. Acharjee, learned counsel appearing for the

[12] Inder Pal vs. State of M.P. appellant, but we find that the said decision is contextualized in the perspective of unlawful demand which formed a part of the dying declaration in that case. That apart, the said decision is structured on the law as enunciated by the apex court in reported in (2001) 10 SCC 736. Mr. Acharjee, learned counsel has made an attempt to relate the opinion expressed by the Madhya Pradesh High Court in Kalu vs. State of M.P. reported in 2005 Cri LJ 4777 where on admissibility of the chemical examination report and appreciation of the evidence were in the centre of the opinion. However, the relevant part of the said report is reproduced as that restates the settled position of law:

Since the incriminating circumstances available in the Chemical Examiner's report (Ex.P/15) were not specifically put in the accused statement to the appellant and no opportunity was given to him to explain the same, the contents of the report (Ex. P/15) could not be relied upon as an incriminating circumstance against the appellants.

After the above detailed scanning of the prosecution evidence, we are of the view that the judgment of the learned trial court is based on conjectures and surmises as well as on inadmissible evidence. The record is also disclosing the fact that the learned Addl. Sessions Judge is not aware of the basic legal position about admissibility of extra-judicial confession as well as importance of accused's statement under Section 313, Cr.P.C.

[12] From the other side, Mr. Debnath learned Addl. PP has categorically stated that appreciation of evidence as made by the trial judge cannot be faulted with. There is no reason to disbelieve the multiple dying declarations which record the statement of the victim on different phases. Such statement is not mutually destructive or indicative of, that the statement was influenced or was not made in a conscious state of mind. Thus, Mr. Debnath learned Addl. PP has contended that the appeal deserves no interference at all.

[13] For purpose of appreciating the rival contentions as noted above, it would be appropriate for us to carry out a brief survey of the evidence. There cannot be any amount of doubt for determining the appeal that the question which is pertinent is whether the death of victim was caused by the appellant with intention of causing death by pouring kerosene oil and setting the victim on fire. There are three parts, ingrained in the said question, viz (a) whether the death was caused by the appellant, (b) whether the appellant had intention to cause death and (c) whether the appellant poured kerosene oil and set the victim on fire.

[14] PW-1, Smt. Sumitra Das is the sister in law (brother's wife) of the victim. She has stated that though they are residing in a same house having the same courtyard but their messes are separate. On the day of occurrence, when she returned from NREGA work at about 1 pm, she registered cry of Swapna Das, the daughter of the appellant from her room. She was crying out that her mother was being burnt. The appellant has two daughters namely, Swapna and Rinku. After sometime, the fire brigade came to their house and the fire brigade personnel shifted Sebika (the victim) to Kalachara Hospital. Later on, Sebika was referred and transferred to Udaipur hospital and subsequently to Agartala Hospital. She died in Agartala Hospital. She stood witness to the seizure of one partly burnt wooden branch, a plastic bottle of petrol, piece of wearing apparel of the deceased by the seizure list. Her cross examination is not material at all.

[15] PW-2, Swapna Das is a witness of tender age inasmuch as on the day of recording her deposition in the trial, she was nine years of age, but the trial judge found her fit to testify. She has stated that her mother died of burning. She was not present at time as she was playing elsewhere. When she came back, she found her mother lying in the lunga situated nearby the tube-well behind their dwelling hut. The fire brigade personnel shifted her mother to the hospital. As she had deviated from her statement recorded under Section 161 of the CrPC., she was declared hostile and the prosecution was allowed to cross-examine her.

In the cross examination by defence she has stated that her father accompanied her mother in the fire brigade vehicle.

[16] PW-3, Surendra Das was also declared hostile for not supporting his statement as recorded under Section 161 of the CrPC.

[17] PW-4, Jaistha Mohan Debbarma is a vital witness not only for the reason that he had lodged the complaint, but for the reason that he was the first police officer who recorded the statement of the victim immediately after he received the information as regards the incidence which took place on 25.02.2015 and he appeared at the place of occurrence. He has testified as follows:

Accordingly, I visited the hospital and I enquired the matter and I also examined the victim lady and recorded her statement. This is the statement of deceased Sebika Das which I have recorded on my own hand writing. On identification the statement of Sebika Sas is marked as Exbt,5 as a whole. The victim stated that her husband namely, Goutam Das set her fire by pouring petrol like oil with intent to kill her in her house. As a result she got severe injury.

PW-4 has further stated in the trial that the victim was shifted to TDS hospital at Udaipur in alarming condition. Based on the statement of the victim (Exbt-5), he lodged the suo moto complaint to the Officer-in-Charge, Manubazar Police Station.

By the cross examination, no part of his statement could be dented.

[18] PW-5, Balendra Chakraborty informed the fire service at the request of the father of the appellant about the fire incident.

[19] PW-6, Shri Bidyasadhan Jamatia was working as the leading fireman at Manubazar Fire Station. He has vouched in the trial that on 25.02.2015, a contingent of the fire brigade personnel shifted one female to Kalachara PHC.

[20] PW-7, Malati Das is another sister-in-law of the appellant. She did not support the prosecution case, and consequently she was declared hostile. The prosecution was allowed to cross-examine her.

[21] PW-8, Maran Chandra Das is unfortunate father of the victim. He has narrated in the trial that he had given marriage of the victim with the appellant. The victim used to tell about the torture done by the appellant. Even he informed to the local panchayat but they did not pay any heed. He received information from the father of the appellant that his daughter was set fire. He was told not to go to Kalachara Hospital, but to wait in Santirbazar by the father of the appellant namely, Manindra Kr. Das. In the vehicle, which was carrying his daughter to Udaipur, he found Sebika's mother-in-law and father-in-law, but the appellant was not there. By the separate vehicle, PW-8 reached Udaipur hospital and thereafter Agartala hospital. He had made the following statement in the trial:

"Sebika told me that she was cooking at the kitchen after coming from NREGA job and at that time, Goutam (her husband) came and quarreled with her and also assaulted her, thereafter, by pouring oil like petrol/diesel Goutam set her fire on her person. My daughter remained in the hospital for about 16 days and thereafter, she succumbed."

He has admitted in the cross examination that he did not lodge any complaint in the police station about the torture . The suggestions put to him denying the incidence of putting fire on his daughter has been squarely declined by PW-8.

[22] PW-9, Priyatosh Das who is the elder brother of the victim, has also corroborated that when they reached Santirbazar, he did not find the appellant accompanying the victim. They escorted the vehicle which was transporting the victim to the Udaipur hospital. At Udaipur hospital, when he asked the victim how she had sustained injuries then the victim told him that there was altercation with her husband Goutam and then being angered Goutam after pouring petrol or diesel like oil set her fire. He denied the suggestions in the course of cross-examination that the victim did not tell that her husband did set her on fire by pouring petrol or diesel like oil. [Underlined for emphasis]

[23] PW-10, Smt. Bijali Das is unfortunate mother of the victim. She has corroborated that they were informed that her daughter was set on fire. Her husband (PW-8) and son (PW-9) went to see her daughter, but she remained at home. After two days of the occurrence, she went to see her daughter at GBP hospital at Agartala. She has stated in the trial as follows:

"Being asked, my daughter told me that her husband set her fire by pouring diesel like oil with the help of burning wood."

She has denied in the cross examination that the victim was not in fit condition to talk about the incident.

[24] PW-11, Smt. Anjana Biswas, a witness from the neighbourhood, but as she did not support the case of the prosecution in the trial, she was declared hostile and the prosecution was allowed to cross-examine her when the previous statement was conditionally brought in the evidence. In the cross examination by the defence, she has stated that the victim was in a position to talk bluntly.

[25] PW-12, Shri Takshiroy Debbarma is the Executive Magistrate who recorded the dying declaration of the victim on requisition by the police on 26.02.2015. He has stated that before recording the dying declaration, he took the certificate of the attending medical officer of the GBP hospital. The attending medical officer opined that the patient was mentally fit for giving statement. Thereafter, he recorded the statement of Sebika Das (the victim). He has further stated that after recording that statement (Exbt-9), he took the right thumb impression (RTI) of the victim and he had also put his own certificate on the said declaration. He has categorically stated in the trial as under:

"Sebika Das told me that her husband used to consume alcohol in every day and used to quarrel with us everyday for which family disturbance was running and my husband made attempt to kill me by setting me fire after pouring kerosene oil. Accordingly, I recorded her statement."

He denied that the attending medical officer did not give any fitness certificate or he did not record the dying declaration.

[26] PW-13, Smt. Malin Das is a close relative of the victim. She has testified in the trial that the victim used to tell that she was being tortured by the appellant. She has denied the suggestion made contrary to what she had stated in the examination-in-chief.

[27] PW-14, Mihirlal Das guarded the dead body of the deceased for purpose of post mortem examination.

[28] PW-15, Dr. Sailendra Tripura was posted as the Medical Officer at Kalachara PHC on 25.02.2015 and he had examined the victim at 3.50 pm. But, he has stated that the victim was brought by her husband and she was admitted in the hospital and thereafter referred to the Gomati District Hospital. He has stated that he had submitted the injury report in connection with Manubazar PS case No.6/15 where he had mentioned that there were five number of burnt injuries on different parts of the body and the percentage of burn was 40%. He has admitted the said report (Exbt-10) in the evidence.

[29] PW-16, Smt. Baisnati Reang is one of the independent witnesses who has testified in the trial and stated that on 25.02.2015, she was posted as the staff nurse at Kalachara PHC and the victim was brought with burn injury. She had attended the victim with Dr. Sailendra Tripura. Thereafter, she has categorically stated that the victim told her that her husband set fire on her person. In the cross-examination, the said statement was vigorously confronted, but PW-16 did not deviate or accede to the suggestion.

[30] PW-17, another independent witness namely Irabati Reang who had attended the victim at Kalachara PHC with Dr. Saildenra Tripura on 25.02.2015. At that time, Sebika told her that her husband set fire on her person. During the cross-examination, she did not deviate from the said statement.

[31] PW-18, Tapan Banik is the driver of the maruti vehicle by which the victim was shifted from Kalachara hospital to Udaipur hospital on 25.02.2015.

[32] PW-19, Sumitra Debbarma, an ASI of Police from East Agartala Police Station has testified that she prepared the surathal report (Exbt-2) in presence of witnesses.

[33] PW-20, Haradhan Bose, investigated the case which was registered based on suo moto complaint filed by PW-4. He has narrated briefly how he had conducted the investigation, prepared the hand sketch map (Exbt-12), seized the material (Exbt- MO(I) series) recorded the statements of the witnesses. He made requisition for recording the dying declaration of the victim. He had collected the inquest (surathal) report and the post mortem examination report. He has given the vivid description of steps taken by him on various important dates. He also received the report from the State Forensic Laboratory Science which was, however, not admitted in the evidence. In respect of the statement the victim as recorded by him, the defence seriously contested that part, but PW-20 maintained that the victim did tell him that she sustained burn injury due to pouring of petrol like oil by her husband upon her and for setting fire by him.

[34] PW-21, Sanjib Sharma, is an SI of Police from Manubazar Police Station. He had collected the dying declaration from Takshirai Debbarma the Executive Magistrate (PW-12) on 27.03.2015 and submitted the same to the investigating officer (PW-20) who in turn seized the same from him by preparing the seizure list (Exbt-18). It is apparent that the most important document is the dying declaration (Exbt-9) recorded by PW-12. The dying declaration as translated by the High Court translation department is as follows:

"My husband would come everyday in intoxicated state. For this reason quarrellings took place between me and my husband everyday. At this unrest was there in the family. As a result my husband had tried to kill me by setting fire on me through pouring kerosene."

[35] Even in the injury report (Exbt-10), Dr. Sailendra Tripura (PW-15) had recorded as follows:

"Alleged homicidal burning by her husband on 25.02.2015 at around 3.00 pm at her home as stated by the victim. Severe burning sensation over the back and frontal aspect of chest and hands. "

[36] We have keenly appreciated the injury report and the post mortem examination report (Exbt-14). If collated, there would remain no ounce of doubt that the death was homicidal in nature and caused by the septicemia from the burn injury. We have also noticed that all the documents as admitted in the evidence was supplied to the appellant under Section 207 of the CrPC and those were made known and admitted in his presence in the trial. Their references were also made quite categorically and as such, no prejudice was caused to the appellant. On scrutiny of the records of evidence, we do not have any doubt in our mind that being irked by sudden quarrel with the victim, the appellant put fire on her person after pouring inflammable thing on her person. The statement made by the victim to PW-4 (Exbt-5) and to PW-8, 9, 10, 16 & 17 are so consistent that their correctness and veracity cannot be questioned.

[37] That apart, the statement recorded by PW-12 (Exbt-9) is accepted by this court as we do not find any infirmity in the process of recording the said statement.

[38] That apart, even PW-15, Dr. Sailendra Tripura fond the appellant in the hospital.

Therefore, we can safely observe that the act is done without pre-mediation and on the heat of passion upon a sudden quarrel and it appears that the element of undue advantage is absent. Hence, Exception 4 of Section 300 to the IPC would apply (see Sayaji Hanmat Baukar V. State of Maharashtra, reported in AIR 2011 SC 3172). Therefore, the conviction under Section 302 of the IPC is liable to be set aside and accordingly it is set aside.

[39] There cannot be any amount of doubt that by the culpable act of the appellant, the victim has suffered the painful death. But, intention to cause death has not been established beyond reasonable doubt. Thus, without framing charge and in exercise of power conferred by Section 222(2) of the CrPC, the appellant is convicted under Section 304 Part II of the IPC. He did know that such act might cause death.

Pursuant to the said conviction under Section 304 Part II of the IPC, we sentence the appellant to suffer rigorous imprisonment for 10(ten) years and fine of Rs.5000/- and in default of payment of fine, he shall suffer additional simple imprisonment of 3(three) months. We further direct that the detention that has been suffered by the appellant in the pre-trial and the trial stage be set off from the substantive sentence of imprisonment.

In the result, the appeal stands partly allowed.

Send down the LCRs forthwith.