Firstly, eye witnesses P.Ws.
50 was proved by P.W. 7 and it was marked as Ext.
Further more, P.W. 4 and W. 6 made statements Exts.
Both the sentences shall run companycurrently.
47 dated 2.11.1978 at 7.15 p.m. The Town Sub Inspector Sri P. Khatoniar was immediately deputed to make local investigation on the spot.
He further stated that the Magistrate has recorded his statement.
Accused Muhim Barkataki was handed over to the Police by the witness Pradip Joyti Sarma, Assistant Sub Inspector of Police.
He then informed the facts of occurrence to the Officer incharge of the Police Station who recorded the same under G.D. Entry No.
The Judicial Magistrate Shri Dharyya Saikia recorded the statements of these two witnesses on 7.11.1978.
50 at 8.10 p.m. On 3rd November, 1978 at about 7 a.m. one Sri 1042 Montu Ch.
Of companyrse, P.W. 6 Kiran Saikia tried to companytradict his statement made before the Chief Judicial Magistrate.
One of the accused persons was caught hold of by local rija public while it was informed that Shri P.K. Khatoniar was investigating for local investigation after giving all entries in the diary.
It was also their evidence that the deceased Nagen Dey made a dying declaration at the place of occurrence implicating accused Muhim Barkataki and Dulu Dutta as his assailants.
271 of 1986 From the Judgment and Order dated 31.1.
Investigation was carried on by Shri Prafulla Kumar Khatoniar.
The learned Judges held that the evidence of P.W. 4 Arun Barua who deposed to the dying declaration was wholly unreliable as there was serious infirmity in his evidence as he disputed his statement made to the Police that the three persons used to drink liquor and play cards which fact as we have observed, is very material to cast a serious doubt on prosecution version itself.
Thereafter murder and arson cases have been registered against Muhim Barkataki and Dulu Dutta.
The shop was a Guliamal grocery shop where rice, Dahl, soap, mustered oil, kerosine oil, etc goods were sold and situate at Na Ali Road of Jorhat Town in front of M s Baruah Printers.
The companyviction and sentence passed against the accused persons was set aside and the appeal was allowed.
Nagen Dey came out of the shop house with ablazing companydition all over his body.
It is also evident from the evidence of P.W. 4 that he and Kiran Saikia who was in the shop of P.W. 4 both came together at the place of occurrence and they tried to put out the fire by throwing dust on the body of Nagen Dey who was on fire by tearing off his dress and Kiran Saikia put the clothing on the person of deceased Nagen Dey.
It also appeared that immediately after the enquiry and investigation into the incident the Town Sub Inspector Shri Khatoniar returned to the Police Station and informed that Muhim Barkataki and Dulu Dutta entered in the Guliamal shop of Nagen Dey which was in front of Barua Printers of Na Ali and poured kerosine oil kept in the shop for sale and set fire on it and as a result the Guliamal shop was burnt.
The High Court proceeded on the footing that entire evidence in the case was circumstantial as there was numbereye witness to the occurrence and the clinching circumstances in which the case according to the prosecution is proved are the circumstances relating to the dying declaration.
Dey, nephew of deceased Nagen Dey lodged Ejahar Ext.5 with Jorhat Police Station.
There is numberdispute that the shop of deceased Nagen Dey situated by the side of Na Ali Road was set on fire and fire was also set on the person of Nagen Dey by pouring kerosine.
Nagen Dey was the owner of the shop who also was set on fire.
The information of the incident was received over telephone message at 7.15 p.m. by the Officer Incharge of Jorhat Police Station who recorded an entry in the General Diary being G.D. Entry No.
It also appears from evidences of these three witnesses Arun Barua, Kiran Saikia and Pradip Joyti Sarma that the injured Nagen Dey was companyscious and was crying out due to burning pain.
It is also evident from the depositions of P.W. 4 and C.W. 1 that the accused Muhim Barkataki was caught hold red handed on the spot and he was detained there by the public while Dulu Dutta fled away from the place of occurrence.
436 read with Sec.
It was also recorded in the G.D. Entry that Muhim Barkataki who was caught hold of at the place by the local people has been sent to the police station.
436 read with Sec.
It is also in the evidences of P.W. 4 and C.W. 1 Pradip Joyti Sarma, Assistant Sub Inspector, Police that the deceased Nagen Dey made a dying declaration to the effect that the accused persons Muhim Barkataki and Dulu Dutta poured kerosine oil in his shop and sprinkled kerosine oil on his person and then set on fire.
Sri P. Khatoniar made enquiry and investigation locally at the spot, arrested accused Muhim Barkataki at the spot and returned to police station.
Eye witnesses P.W. 4 Arun Barua, P.W. 6 Kiran Saikia and W. 5 Prabin Barua came to the place of occurrence immediately on seeing the fire.
It is also evident from the G.D. Entry No.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
Pradip Jyoti Sarma, Assistant Sub Inspector of Police also came to the place of occurrence a few minutes later and he also witnessed the fire on the person of Nagen Dey as well as in the shop of Nagen Dey.
K. Nandy for the Appellant.
1043 Against this judgment and order of companyviction and sentence the accused person preferred an appeal being Criminal Appeal No.
164 of the Criminal Procedure Code stating about the dying declaration made by the deceased Nagen Dey implicating that Muhim Barkataki and Dulu Dutta had set fire on him.
It also appears that the witnesses P.W. 4 Arun Barua, W. 5 Prabin Barua, P.W. 6 Kiran Saikia and C.W.1 Pradip Joyti Sarma who was on duty on that Na Ali locality at that time arrived at the place of occurrence almost simultaneously and all of them found Nagen Dey out of his shop in a companyplete ablazing state all over his body.
1985 of the Gauhati High Court in Cr.
4 2 is his signature.
The witnesses Arun Barua, Prabin Barua and Kiron Saikia on seeing the fire rushed to the place of occurrance and put off the fire from the body of the Nagen Dey but Nagen Dey suffered extensive burnt injuries all over his body.
The Investigation Officer forwarded witnesses Arun Barua, and Kiran Saikia to the companyrt for recording their statements under Sec.
Injured Nagen Dey was immediately removed to Jorhat Civil Hospital for treatment, but he died at the hospital.
3 and 4 that the Judicial Magistrate Shri Dharyya Saikia P.W. 8 recorded the statements of Arun Barua P.W. 4 and Kiran Saikia P.W. 6 on 7.11.1978 under Sec.
Chief Judicial Magistrate at Jorhat, Shri Dharyya Saikia P.W. 8 .
66 of 1983 in the High Court of Gauhati.
34 I.P.C. as well as under Sec.
66 of 1983.
1044 This is proved by Investigation Officer P.W. 7 and marked as Ext.7 1 .
The Judgment of the Court was delivered by 1041 C. Ray, J. This appeal by special leave is against the judgment and order passed in Criminal Appeal No.
302 read with Sec.
A. No.
P.W. 4 Arun Barua also in his evidence clearly testifies to this dying declaration made by the deceased Nagen Dey.
66 of 1983 by the High Court of Gauhati acquiting both the accused respondents from the charges under Sec.
It is also evident from Exts.
K. Garg, Sunil K. Jain and Vijay Hansaria for the Respondents.
It was also the prosecution case that both the accused were found at the place of occurrence and public caught hold of the accused Muhim Barkataki red handed at the shop of occurrence whereas other accused Dulu Dutta fled away.
47 i.e., telephonic message received at the Jorhat Police Station at about 7.15 p.m. on the date of occurrence that the said two men set fire to the person of Nagen Dey, deceased as well as to his Guliamal shop which is in front of Baruah Printers after pouring kerosine oil.
So far as depositions of P.W. 4 and C.W. 1 are companysidered there is numbercross examination on this point.
Even if his statement is number taken into companysideration there is a clear statement of P.W. 4 Arun Barua before the Magistrate Ext.
3 and 4 under Sec.
This G.D. Entry No.
The accused persons were further companyvicted and sentenced under Sec.
164 of the Criminal Procedure Code.
Prosecution case is, further, that Nagen Dey made a dying declaration before the witnesses stating that the two accused persons namely Muhim Barkataki and Dulu Dutta set fire on his body after pouring kerosine oil.
The learned Judges therefore, held that the prosecution failed to prove beyond doubt the offences for which the appellants were charged.
34 of Indian Penal Code, 1860.
Of companyrse P.W. 6 Kiran Saikia tried to companytradict his statement made before the Police as well as before the Judicial Magistrate as to the dying declaration made by the deceased Nagen Dey.
34 of the Indian Penal Code and they were sentenced to suffer rigorous imprisonment for 5 years each.
4, 5, 6 and C.W. 1 undoubtedly arrived at the place of occurrence immediately on seeing the fire in the grocery shop of the deceased Nagen Dey at about 7 p.m. on 2.11.1978.
But in cross examination he companytradicted himself by saying that he was tutored by the police to say so before the Magistrate.
