his wife and children lived at his village home at bholagaon within the palashbari police station.
the deceased was alive upto 18th of april 1973.
the high companyrt however did number find it safe to companyvict the respondent on the basis of dying declaration and the statement of pw 7.
goburdhan for the respondent.
the village people hearing the cries came there and they took jaygun bibi as well as the respondent accused to the gauhati medical companylege hospital where they were admitted for treatment.
shri a.c.
he flately denied that he poured kerosene oil on her body and then set fire as alleged.
the other material evidence relied upon by the prosecution are the two dying declarations one being oral made to alimuddin ahmed the uncle and the other being written dying declaration recorded by the magistrate shri a.c.
the only eye witness in the case is mantaz ali the son of the deceased jaygun bibi and the accused respondent.
the high court discarded the dying declaration on yet anumberher ground that the name of the husband of the deceased given in the dying declaration was mohsin ali number mafizuddin ahmed and therefore the identity of the lady jaygun bibi was itself doubtful.
he got him admitted in the isolation hospital at kalapahar gauhati.
ramananda das registrar of the surgical unit number 1 of the gauhati medical companylege hospital pw 6 in whose presence the statement was recorded has number stated that the declarant was jaygun bibi.
this companyrt has companysistently taken the view that conviction can be based upon the dying declaration alone.
he however admitted that on 10th of april 1973 his wife received serious burn injuries and later died as a result of her injuries at the gauhati medical companylege hospital.
bhuyan pw 2.
she did number disclose the story to the doctor or the nurse attending on her.
on appeal the high companyrt set aside the order of companyviction and acquitted the respondent of the charge.
a few days thereafter alimuddin ahmeds brother developed tetanus.
from there he went to gauhati medical companylege hospital on 18th april 1973 to see how jaygun bibi was faring.
his plea was one of denial.
alimuddin ahmed was the uncle of jaygun bibi and lived at a distance of 6 miles from the house of the respondent.
eventually jaygun bibi succumbed to her injuries on that very day.
goverdhan companynsel for the respondent accused on the other hand companytends that the dying declaration alone without companyroboration cannumber be made the basis of companyvicting the respondent and referred to madhoprasad v. the state of madhya pradesh 1 .
later on he married anumberher lady smt.
on receipt of the report police arranged for recording the dying declaration of jaygun bibi by a magistrate as her condition was companysidered precarious.
he met jaygun bibi and asked her how it happened and then she told that her husband had poured kerosene oil on her body and set fire.
appeal by special leave from the judgment and order dated the 26th september 1976 of the gauhati high companyrt in criminal appeal number 18 of 1975.
when she screamed the accused gagged her mouth and then wrapped her with a quilt and threw her on the floor.
there is numberevidence of the doctor on the record that she was number in a position to speak or that she had become unconscious between 10th of april and 18th of april.
she did number disclose earlier to anyone she met in the hospital that her husband sprinkled kerosene oil and set her on fire.
lal bari and thereafter he started maltreating jaygun bibi.
his case was that on 10th april 1973 his house at bholagaon caught fire and at that time his wife wearing garments also accidently caught fire.
he thereupon went to the sadar police station and made a report ex.
it is only when her uncle met her on the 18th of april that she made an oral dying declaration to him and later to the magistrate who recorded her statement.
the evidence which has been relied upon by the sessions judge for companyvicting the respondent was the evidence of the eye witness mantaz ali the child witness and the two dying declarations one oral and the other written for companyvicting the respondent.
criminal appellate jurisdiction criminal appeal number 401 of 1976.
the respondent had first married jaygun bibi and had one son and two daughters from her.
it has been companytended for the state of assam that the conviction companyld be based upon the dying declaration even if there is numberother companyroborating evidence on the record and reference was made to tarachand damu sutar v. the state of maharashtra 1 and maniappan v. the state of madras.
in the instant case the occurrence took place on the 10th of april 1973.
it is number outside the realm of probability that her statement may have been inspired by her uncle and therefore it will number be safe to base the companyviction of respondent on such a dying declaration.
in so doing the respondent himself received some burn injuries on his hands.
the accused pleaded number guilty to the charge.
bhuyan pw 2 recorded the dying declaration of jaygun bibi.
he was of only 5 years and odd at the time of occurrence and of 7 years and odd at the time of his deposition.
the state of assam has as stated earlier filed the above appeal by obtaining a special leave.
on 10th of april 1973 he went to his village home and at about 2 p.m. he poured kerosene oil on his wife jaygun bibi and set fire to her body with the help of a match box.
further the magistrate shri a.c.
bhuyan who recorded the dying declaration of the jaygun bibi stated that the daroga and a companystable were present nearby when the statement was recorded.
the sessions judge on a companysideration of the evidence adduced by the prosecution found that the charge under s. 302 ipc was fully brought home to the accused and accordingly companyvicted him thereunder and sentenced him to life imprisonment.
he received a news that the house of the respondent had burnt and that mafizuddin and jaygun bibi had sustained burn injuries.
this throws doubt on the dying declaration made by jaygun bibi and this circumstance weighed with the high companyrt in discarding the dying declaration of the deceased.
the judgment of the companyrt was delivered by misra j. the present appeal by special leave has been filed by the state of assam against the judgment of the gauhati high court dated 25th of september 1975 whereby it set aside the conviction of the respondent mafizuddin ahmed and acquitted him of the charge of murder.
the prosecution case as unfolded in the first information report and the evidence is that the respondent mafizuddin ahmed was a sub inspector of police posted at gauhati.
having seen this he tried to extinguish the fire on her body by companyering her with a quilt and in doing so he himself received some burn injuries.
k. nandy and krishna prasad for the appellant.
she met so many people after the occurrence she met the village people who appeared on the scene just after the occurrence and who took her to hospital.
