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2005 DIGILAW 446 (CAL)

KARTICK DEBNATH v. STATE OF WEST BENGAL

2005-07-14

ARUN KUMAR, DEBIPRASAD SENGUPTA

body2005
DEBIPRASAD SENGUPTA, J. ( 1 ) THE present appeal is preferred against the judgment and order of conviction and sentence passed by the learned Additional sessions Judge, 4th Court, Burdwan in Sessions Case No. 18 of 1997 (Sessions trial No. 1 of 2000) thereby convicting the appellant under section 302 of the indian Penal Code and sentencing him to suffer imprisonment for life and a fine of Rs. 2,000/-, in default to suffer further R. I. for two months. ( 2 ) PROSECUTION case, in short, is that the informant Joydeb Mitra (P. W. I)having received an information over telephone from P. W. 2 Sohanlal Routh on 2. 12. 94 at about 1. 30 p. m. that one Kartick Debnath poured kerosene oil on his wife and set fire on her, rushed to the brick field, of which he is one of the partners and the accused is a worker. The informant after reaching the place of occurrence, i. e. the house of accused Kartick Debnath in the brick field, found the accused Kartick detained by the workers of the brick field and the victim bulbuli already brought to Kalna Hospital for treatment. The informant (P. W. 1)thereafter reported the incident to Kalna P. S. , on the basis of which FIR was registered. ( 3 ) AFTER the victim was taken to hospital her dying statement was recorded by the S. D. O. (P. W. 17) in presence of P. Ws. 11,14 and 16, i. e. staff nurses and dr. Pramatha Nath Dutta. Such dying declaration was marked as Exhibit - 4. ( 4 ) TO prove its case, prosecution examined as many as 19 witnesses and none was examined on behalf of the defence. Defence was a plea of innocence and false implication. ( 5 ) P. W. 1 is the informant and he corroborated his earlier statement made in the FIR. He deposed that after getting information over telephone from P. W. 2 he rushed to the place of occurrence and found that the accused Kartick was detained by the brick field workers and victim was sent to Kalna Hospital. He was informed over phpne by P. W. 2 that Kartick set fire on his wife. ( 6 ) P. W. 2 Sohanlal Routh stated in his evidence that very often the victim bulbuli used to complain before him about the torture by her husband. He was informed over phpne by P. W. 2 that Kartick set fire on his wife. ( 6 ) P. W. 2 Sohanlal Routh stated in his evidence that very often the victim bulbuli used to complain before him about the torture by her husband. On the date of incident there was quarrel between accused Kartick and his wife since morning. In the noon hearing a hue and cry he rushed to the place of occurrence, where other persons also assembled and saw the victim was burning and when he noticed that accused Kartick was trying to flee away, he along with others caught hold of accused Kartick and detained him. This witness thereafter reported the incident to P. W. 1 over telephone. After death of victim Bulbuli inquest was held by the police and he signed as a witness in the inquest report. P. W. 3 was next door neighbour of the victim. She heard that accused set fire on his wife after pouring kerosene oil. She further deposed that while accused kartick was fleeing away, he was detained by the villagers. P. W. 4 Malati Khara also corroborated P. Ws. 2 and 3 in vital aspect of their evidence. P. W. 6 stated in his evidence that accused Kartick used to quarrel with the victim very often. On hearing hue and cry this witness rushed to the house of accused with water and found victim Bulbuli almost burnt. Accused Kartick was found present there and when he tried to escape he was caught hold of by this witness and others. P. Ws. 7 and 8 are also post-occurrence witnesses. After hearing a hue and cry both of them rushed to the spot. P. W. 9 is the father of victim Bulbuli. He came to know that his daughter was killed by accused Kartick by setting fire on her body. He further deposed that during her lifetime, his daughter used to complain before him that she was subjected to torture by her husband kartick. ( 7 ) SO far as the dying declaration made by victim Bulbuli is concerned, we find that P. Ws. 11, 14 and 16 had direct knowledge about recording of dying declaration of the victim by P. W. 17 on 2. 12. 94 at about 3. ( 7 ) SO far as the dying declaration made by victim Bulbuli is concerned, we find that P. Ws. 11, 14 and 16 had direct knowledge about recording of dying declaration of the victim by P. W. 17 on 2. 12. 94 at about 3. 00 p. m. P. W. 11 was a staff nurse attached to Kalna S. D. Hospital and she deposed that after admission of victim Bulbuli in the hospital, the S. D. O. (P. W. 17) came to the hospital for recording dying declaration of the injured victim. At about 3. 00 p. m. , S. D. O. recorded the dying declaration in presence of this witness and one dipali Dutta, another staff nurse and Dr. Pramatha Nath Dutta were also present at the time of recording such dying declaration. This witness further deposed that the victim in her dying declaration stated that while she was cooking, her husband poured kerosene oil on her body under drunken condition. S. D. O. , Kalna after recording the dying declaration read over and explained the same to the victim in presence of this witness and other persons who were present there. This witness also put her signature in the said dying declaration. This witness also stated in her evidence that at the time of making dying declaration, the victim was speaking slowly. ( 8 ) P. W. 14 was also a staff nurse in the said hospital and she stated in her evidence that victim Bulbuli made a dying declaration in their presence, which was recorded by S. D. O. , Kalna. She also stated about the presence of P. W. 11 and P. W. 16 at the time of recording dying declaration. This witness also corroborated P. W. 11 as regards the statement made by the victim in her dying declaration. ( 9 ) P. W. 16 was M. O. Surgeon attached to Kalna S. D. Hospital in whose presence the dying declaration was recorded by S. D. O Kalna (P. W. 17 ). In his cross-examination, he stated that before giving verbal consent to the S. D. O. for recording dying declaration of the victim he examined the patient and found her fit for giving her statement. ( 10 ) P. W. 17 was S. D. O. , Kalna, who recorded the dying statement of the victim in presence of P. Ws. In his cross-examination, he stated that before giving verbal consent to the S. D. O. for recording dying declaration of the victim he examined the patient and found her fit for giving her statement. ( 10 ) P. W. 17 was S. D. O. , Kalna, who recorded the dying statement of the victim in presence of P. Ws. 11, 14 and 16. He deposed that at the time of recording the dying declaration the patient was speaking in a shrill voice and she was not in a position to speak in a vigorous manner. ( 11 ) P. W. 18 was the autopsy surgeon who held post-mortem over the dead-body of victim. He found 100% burn injuries on the entire body of the deceased and one blackish spot on trachea larynx. According to him, death was due to the effects of burn injuries. He further opined that a patient can speak even in a case of 100% burn injuries. ( 12 ) P. W. 19 was the investigating officer of the case. During investigation he visited the hospital and came to know that the patient made a dying declaration which was recorded by S. D. O. Kalna. ( 13 ) MR. Mahato learned Advocate appearing for the appellant submits that there is no evidence to show that the accused poured kerosene oil on the body of the victim and set fire on her. Mr. Mahato further submits that even assuming that the offence was committed by the appellant, such offence was committed, as it appears from the dying declaration itself, in a state of drunkenness and as such he should be exonerated from the charge in view of the provision of section 85 IPC. The aforesaid contention of the learned Advocate of the appellant cannot be accepted by us. It is evident from the abovestated fact scenario that there is no eye-witness to the occurrence, i. e. incident of pouring kerosene and setting fire by the appellant. It is in the evidence of the neighbouring witnesses that hearing a hue and cry they came to the house of the appellant Kartick and found victim Bulbuli in burnt condition. It is in their evidence that when the accused tried to escape he was caught hold of and was detained by the said witnesses. Victim was taken to hospital where he succumbed to her injuries after making a dying declaration. It is in their evidence that when the accused tried to escape he was caught hold of and was detained by the said witnesses. Victim was taken to hospital where he succumbed to her injuries after making a dying declaration. Nobody has claimed to have seen the incident of pouring kerosene oil and setting fire by the appellant. P. Ws. 2, 4, 6 and 7 stated in their evidence about the quarrel between the accused and the victim and also about the incident of burning of the victim. P. Ws. 1, 2, 3, 4, 6 and 9 stated in their evidence that they saw the accused present at the place of occurrence and when he tried to flee away he was caught hold of and was detained by them. As regards the second contention regarding exception under section 85 of the Indian Penal Code, we are of the view that voluntary drunkenness is no excuse for the commission of the crime. Under section 85 ipc, if a man is made drunk through ignorance or through any other means causing intoxication without the man's knowledge or against his Will, he can be exonerated from the charge of committing an offence. In the present case, there is nothing on record to show that the accused was compelled or forced to take liquor or that it was administered to him which caused his intoxication against his Will. In the facts and circumstances of the present case, the accused is not entitled to get the benefit of section 85 of the Indian Penal Code. ( 14 ) CHALLENGING the veracity of Exhibit-4 i. e. the dying declaration Mr. Mahato learned Advocate contended that the said document is otherwise surrounded by suspicion, because i) before recording such dying declaration no certificate was obtained from the doctor that the victim was in a fit state of mind to give such dying statement; ii) such dying statement was not recorded in the language of the victim, and iii) P. W. 15, who sent requisition to the S. D. O. for recording such dying declaration, was not empowered to make such requisition as he was not the investigating officer of the case. ( 15 ) AS we have already stated above, there is no eye-witness to the occurrence, i. e. incident of pouring kerosene oil and setting fire on the victim and the case of the prosecution is mainly based on the dying declaration (Exhibit-4 ). Thus, the question that emerges for consideration is whether the statement of the deceased, i. e. dying declaration is reliable and whether conviction of the appellant can be based on the said dying declaration. ( 16 ) THERE is no doubt that the mental fitness and capacity to make the statement of the victim at the time of making the dying declaration is a primary consideration in admission of a dying declaration. A dying declaration made soon after incident at the earliest opportunity or at the time of expected death, when the maker could not consult others or receive hints from others, deserves great weight. In the present case, dying declaration was recorded by P. W. 17, s. D. O. , Kama in presence of P. Ws. 11 and 14, who are the staff nurse of the hospital and also P. W. 16 Dr. Pramatha Nath Dutta, M. O. Surgeon attached to kama S. D. Hospital. P. Ws. 11 and 14 stated in their evidence that S. D. O. Kalna came to the hospital and at about 3 p. m. he recorded the statement of the victim in their presence. They further deposed that victim stated in her statement that while she was cooking, her husband poured kerosene oil on her body and set fire. They further deposed that after recording such statement, s. D. O. , Kalna read over and explained the same to the victim and thereafter he put his signature and seal. It was further deposed by the said witness that victim Bulbuli spoke slowly. P. W. 16 Dr. Pramatha Nath Dutta also corroborated p. Ws. 11 and 14 and stated that the dying declaration of the victim was recorded by the S. D. O. , Kalna in his presence. He further stated in his evidence that before giving verbal consent to the S. D. O. for recording dying declaration, he examined the patient and found her fit for giving statement. 11 and 14 and stated that the dying declaration of the victim was recorded by the S. D. O. , Kalna in his presence. He further stated in his evidence that before giving verbal consent to the S. D. O. for recording dying declaration, he examined the patient and found her fit for giving statement. P. W. 17 S. D. O. Kalna, who recorded the dying declaration, stated in his evidence that the patient was speaking in a low voice and she was not in a position to speak in a vigorous manner as she was suffering from acute pain, P. W. 18 the Autopsy surgeon opined that a patient can speak even in a case of 100% burn injuries. It is admitted position that before recording dying declaration no certificate in writing was obtained from the doctor regarding physical and mental fitness of the victim to make any such statement. But in our view, when it is clear from the evidence of two staff nurse and two doctors that the victim was in a position to speak and to make a statement, no doubt should be cast over the capacity to make such statement. It is now well-settled that a dying declaration cannot be discarded only on the ground of absence of any certificate from the doctor regarding physical and mental fitness of the patient. After considering the evidence and the surrounding circumstances, if the Court is satisfied that the statement is true, such dying declaration, notwithstanding that there is no corroboration, can be the basis of conviction. ( 17 ) A dying declaration is admissible in evidence on the principle of necessity and it can form the basis of conviction if it is found to be reliable. Here reference may be made to the observation made by the Hon'ble Supreme Court in paragraph 18 in the case reported in 1993 (3) SCC 684 (Kundula Balasubramanyam vs. State of A. P.), which is as follows :"a dying declaration made by a person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment, such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. " ( 18 ) IN the present case the dying declaration of the victim was recorded by the S. D. O. , Kalna (P. W. 17) in presence of doctor (P. W. 16) and two staff nurses of the hospital (P. Ws. 11 and 14 ). From the evidence on record, we find that the victim was in fit state of mind to make the statement. Such dying declaration was recorded at the earliest opportunity. We do not find any reason to disbelieve such dying declaration simply on the ground of absence of any certificate in writing from the doctor regarding physical and mental fitness of the patient. ( 19 ) DYING declaration was recorded by P. W. 17 in Bengali language which was the mother tongue of the victim. Such statement was read over and explained to the victim by P. W. 17 in presence of P. Ws. 11,14 and 16 who were attached to the said hospital at the relevant time. Considering the entire evidence on record and the facts and circumstances in which such statement was recorded, we find such dying declaration to be trustworthy. ( 20 ) THE learned Advocate appearing for the State submits that there is no infirmity in dying declaration (Ext. 4), which was recorded by P. W. 17 S. D. O. , kalna in presence of P. Ws. 11, 14 and 16. Although no written certificate was obtained from the doctor before recording such statement, from the evidence on record it becomes clear that the victim was physically and mentally fit to make such statement. 4), which was recorded by P. W. 17 S. D. O. , kalna in presence of P. Ws. 11, 14 and 16. Although no written certificate was obtained from the doctor before recording such statement, from the evidence on record it becomes clear that the victim was physically and mentally fit to make such statement. Such statement was recorded by the S. D. O. at the earliest opportunity in presence of doctor and staff nurses. So, there is no reason to disbelieve such dying declaration. The learned Advocate with reference to the evidence of the neighbouring witnesses, submits that after hearing the hue and cry the said witnesses rushed to the spot and saw the victim with burn injuries. The accused was present at the place of occurrence and when he tried to escape, he was caught hold of by the said witness and was detained. According to the learned Advocate of the State the evidence of the neighbouring witnesses coupled with the dying declaration can very well form the basis of conviction and the appeal having no merit should be dismissed. ( 21 ) WE have heard the learned Advocates of the respective parties. We have also scrutinised the entire evidence on record. As we have already stated above that the dying declaration in the present case does not suffer from any infirmity, we are of the view that where the statement of a dying person passes the test of careful scrutiny applied by Court, the statement turns out to be a most reliable piece of evidence which needs no corroboration. It is also now well-settled by a catena of decisions that a dying declaration can form the basis of conviction if it is found to be reliable. In the facts and circumstances of the present case we find that the maker of the statement was in a fit state of mind and had voluntarily made the statement without being influenced by others and on strict scrutiny we find it reliable. ( 22 ) IN view of the discussion made above, we are of the view that there is no merit in the present appeal. The appeal accordingly fails and the same is dismissed. The judgement and order of conviction and sentence passed by Court below in Sessions Case No. 18 of 1997 (Sessions Trial No. 1 of 2000) is hereby affirmed. The appeal accordingly fails and the same is dismissed. The judgement and order of conviction and sentence passed by Court below in Sessions Case No. 18 of 1997 (Sessions Trial No. 1 of 2000) is hereby affirmed. The accused appellant is in jail custody and he will serve out the remainder of sentence. Appeal dismissed.