Faraghi Vs. The State of West Bengal  INSC 821 (18 November 1997)
PUNCHHI, M. SRINIVASAN
appellant is challenging the concurrent judgments of the courts below whereby
he was convicted for an offence under Section 102 I.P.C. and sentenced to
suffer imprisonment for life. he was also directed to pay a fine of Rs. 5000/-.
the night of 29.6.85 the appellant poured kerosene oil over the head of his
wife from behind and lit a matchstick and set her on fire. She was admitted in
the hospital around 1.00
AM on 30.6.85. Her
statement regarding cause of her death was recorded on 1.7.85 by PW 18, sub
inspector of police marked as Ex. 6. Another statement marked as Ex.5 was
recorded on 11.7.85 by PW 12, a magistrate, who was sent to the hospital under
orders of the High Court. In both the statements she had stated that her
husband came home in a drunk condition in the mid night of 29.6.85 and
assaulted her severely. She was driven out of the room but as her two children
were sleeping inside she went back to the room. Then he poured kerosene oil
from behind and set fire. Her parents were sent for and her father took her to
the hospital. Thus in both the statements she had accused her husband of having
set fire to her after pouring kerosene. The courts below relied upon the two
statements and also the evidence of the post mortem examiner to the effect that
the burn injuries were such that they lead to the conclusion that the death was
homocidal. The courts below have also referred to all the circumstances of the
case and rejected the defence that the wife of the appellants committed suicide
or that the offence should if at all be considered to the one under Section 306
I.P.C. and not 302 I.P.C.
Learned counsel for the appellants places reliance on the following
circumstances:- (i) The case history noted in Ex. A by PW 9, a senior House
surgeon as soon as the deceased was admitted in the hospital states that the
deceased tried to burn herself after pouring kerosene on her person in a
The father of the deceased (PW 1) wrote a letter on 30.6.85 to the police which
has been treated as First Information Report in which it is stated that he was
convinced that his son-in-low abetted his daughter in committing suicide.
PW 7 has stated that the deceased was speaking normally soon after the incident
and she claimed to have set fire on herself.
The two statements recorded by the Sub Inspector of police and the Magistrate
marked as Exb. 6 and 5 respectively cannot be considered as dying declaration
and given any weight as the deceased lived for twenty days and more till
The Judicial Magistrate who recorded the statement in Ex. 5 did not ascertain
the mental condition of the deceased and therefore her statement is not
reliable in view of the ruling in Kanchy Komuramma Versus State of Andhra
Pradesh 1995 Supp. (4) S.C.C.118.
In the first instance the case was registered under Section 306. When the
charge was framed it was under Section 302 I.P.C. After examination of 9
witnesses, the Presiding Officer of the Court framed an alternative charge
under Section 306 I.P.C. The accused moved the High Court against the order
framing an alternative charge in a revision but the same was dismissed. Thus
the prosecution was in a confusion as to whether the appellant was guilty under
Section 302 I.P.C. or under 306 I.P.C.
the aforesaid circumstances have been considered in detail by both the courts
and it has been found that there is no substance in the contentions put forward
by the defence. A perusal of the record shows that the death could not have
been suicidal and it was nothing but homicidal. PW 10 the post mortem examiner
has stated as follows:- "Death in my opinion was due to effect of ante-portem
burns. Taking into consideration the sites and extent of areas involved in my
opinion the burn was homicidal in nature.
injury causing death may be accidental, suicidal or homicidal.
found the injuries causing the death to be homicidal. The sites as described on
examination of dead body were mostly on inaccessible parts of the victim, the
areas were very extensive. So I hold the opinion that the death was in
homicidal in nature.
Nos.1,3,4,5,6,7 as mentioned by me were on the back side part inaccessible part
on the body of the subject. These injuries were very extensive too. From these
injuries I hold the opinion the death was homicidal in nature caused by those
injuries which were burn injuries. On the front side of the trunk of the body I
did not find any injuries. In regard to her face I did not find injuries
exactly on the front side.
is no injury observed by me that could lead me to hold that it was a suicidal
death." Nothing could be elicited in the cross-examination to discredit
his aforesaid opinion. Both the courts have accepted his evidence and come to
the conclusion that the case falls under Section 302 I.P.C. We do not find any
justification to take a different view.
courts below have also referred to the circumstance that the accused who was
admittedly present at the scene of occurrence did not make any attempt to put
out the fire and save his wife. His case that the did so and got burn injuries
in the process has been rightly negatived. The evidence on record shows that he
has made a clumsy attempt to inflict some injuries on himself in order to make
the court believe that the attempted to put out the fire.
history of the case recorded in the hospital in Ex.A has not been proved to
have been given by the deceased.
courts below have rightly refused to attach any value thereto.
father of the deceased did not have the necessary information at the time of
FIR as his daughter was not in a position to speak when she was taken by him to
evidence of PW 7 has also been considered in the proper perspective by the
courts below. There is nothing on record to support the contention of the
appellant that the deceased was tutored by her parents to make statements
against her husband when she gave the dying declarations.
courts below are right in rejecting that case.
There is no merit in the contention that the appellant died long after making
the dying declarations and therefore those statements have no value. The
contention overlooks the express provision in Section 32 of the Evidence Act.
The second paragraph of sub-section (1) reads as follows:- "Such
statements are relevant whether the person who made them was or was not, at the
time when they were made, under expectation of death, and whatever may be the
nature of the proceeding in which the cause of his death comes into
question" No doubt it has been pointed out that when a person is expecting
his death to take place shortly he would not be indulging in falsehood. But that
does not mean that such a statement loses its value if the person lives for a
longer time then expected. The question has to be considered in each case on
the facts and circumstances established therein. If there is nothing on record
to show that the statement could not have been true or if the other evidence on
record corroborates the contents of the statements, the court can certainly
accept the same and act upon it. In the present case both courts have discussed
the entire evidence on record and found that two dying declarations contained
in Exs 5 and 6 are acceptable.
The records show that the mental condition of the deceased was sufficiently
good to give a statement to the Magistrate.
The mere fact that the case was registered intially under Section 306 I.P.C.
and later after examination of 9 witnesses as alternative charge under the same
Section was framed will not vitiate the proceedings or the conclusions of the
courts below. There is not doubt that the charge under Section 308 IPC has been
proved beyond doubt.
have perused the records. We find ourselves in agreement with the judgments of
the courts below. Hence the appeal is dismissed.