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2006 DIGILAW 401 (CAL)

SUKUMAR DATTA v. STATE OF WEST BENGAL

2006-07-07

AMIT TALUKDAR, DIPANKAR DATTA

body2006
DATTA, J. ( 1 ) FEELING aggrieved by his conviction under Section 302 of the indian Penal Code and consequent sentence of rigorous imprisonment for life and to pay a fine of Rs. 2. 000/-, in default to suffer further rigorous imprisonment for a period of 1 year ( as ordered by the learned Additional Sessions Judge, 2nd Court, Barasat, North 24 Parganas by his judgment dated 22. 7. 1997), the appellant has approached this Hon'ble Court thereagainst for setting aside his conviction and sentence. ( 2 ) A written complaint dated 28. 8. 1986 was lodged with the Officer-in-charge, Dum Dum Police Station by one Sri Dipak Rudra. It was alleged therein that the appellant had married Dipika, who happened to be the younger sister of the complainant, forcibly at the Kali Temple at Kalighat, Kolkata under compelling circumstances. However, the family of the complainant accepted the marriage. Sometime thereafter, the complainant carne to learn that Dipika was being tortured by her husband and other members of her in-laws house. In order to maintain peace, Dipika did not wish that her family members should interfere. Ultimately, the complainant learnt on 27. 8. 1986 that, on 26. 8. 1986, dipika was admitted to the R. G. Kar Hospital with burn injuries. It was further alleged therein that when the complainant along with his family members had visited R. G. Kar Hospital in the morning, she was lying in senseless condition. However, on their visit in the evening they found that Dipika had regained consciousness for a while and she said that on 26. 8. 1986 in the evening, her husband Sukumar (the appellant) assaulted her with a bamboo and after that poured 3 litres of kerosene oil on her, confined her in a room and set fire on her by throwing a lighted match stick from a distance. It was indicated in the complaint that Dipika suffered burn injury owing to this incident and that at present she is on death bed. ( 3 ) THE written complaint was treated as the First Information Report giving rise to Barrackpore G. R. : 3358/87 under Sections 326/307 of the Indian penal Code. ( 4 ) DIPIKA succumbed to her injuries on 28. 8. 1986 at about 9. ( 3 ) THE written complaint was treated as the First Information Report giving rise to Barrackpore G. R. : 3358/87 under Sections 326/307 of the Indian penal Code. ( 4 ) DIPIKA succumbed to her injuries on 28. 8. 1986 at about 9. 20 p. m. ( 5 ) INVESTIGATION followed ; charge sheet was filed, the case was committed to Sessions and ultimately charge was framed against the appellant on 21. 5. 1996. The appellant was charged with offences under Sections 302 and 498a of the Indian Penal Code. ( 6 ) IT appears that 12 witnesses deposed on behalf of the prosecution. The appellant, was examined by the learned Judge under Section 313 of the code of Criminal Procedure. He, however, did not produce any witness in defence. ( 7 ) THE prosecution version was that the appellant had initially assaulted Dipika with a bamboo and thereafter, had poured 3 litres of kerosene oil on her, kept her confined in a room and then set her on fire by throwing a lighted match stick from a distance. There was no eye witnesses to the incident. The charge under Section 302 of the Indian Penal Code was sought to be proved based on circumstantial evidence. Three prosecution witnesses viz. P. W. 1, P. W. 3 and P. W. 6 stated what they heard from Dipika one day prior to her death. Each of these witnesses corroborated the version of the other that dipika had stated in their presence, when they visited the hospital in the afternoon, that she was initially assaulted by the appellant, then kerosene had been poured on her by the appellant and ultimately she was set on fire by him. ( 8 ) THE appellant pleaded not guilty and denied the charges. However, the defence version, as appears from answers given by the appellant to his examination under Section 313 of the Code of Criminal Procedure, was that dipika was not his wife ; that she was his cook that he never tortured Dipika physically and mentally ; that he never injured her that Dipika had caught fire while she was cooking vegetables ; that she caught fire because the stove burst and that he also got burnt while he was attempting to save her. ( 9 ) UPON consideration of the materials on record and on appreciation of the evidence led in the trial, the learned Judge returned the finding that offence against the appellant under Section 498a of the Indian Penal Code was not proved and as such he was acquitted from the said charge. However, the learned Judge was of the opinion that the prosecution had been able to prove the charge under Section 302 of the Indian Penal Code against the appellant. Consequently he was convicted and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 2. 000/-, in default to suffer further rigorous imprisonment for a period of 1 year. ( 10 ) IT is this judgment of the learned Judge which has been assailed before this Court. ( 11 ) MR. P. S. Bhattacharya, learned Counsel representing the appellant has strenuously urged before this Court that the Learned Judge has failed to appreciate the evidence and the materials on record in the proper perspective and has thus committed error of law in convicting the appellant. He invited the court's attention to various discrepancies in the depositions of the Prosecution witnesses and submitted on the basis thereof that the prosecution has miserably failed to prove the charge against the appellant. In particular, he submitted that it was almost impossible for a person who has suffered more than 90% burns to speak and as such, the version of the Prosecution Witnesses, viz P. W. 1 (brother of the victim), P. W. 3 (sister-in-law of the victim) and P. W. 6 (an acquaintance of the victim) ought not to have been relied upon by the learned Judge. He submitted that the P. W. 3 in the course of cross-examination had stated that Dipika had told her and other persons" that there was no stove burst". This version, however, was not corroborated by the other witnesses, namely P. W. 1 and P. W. 6 who allegedly were present when Dipika implicated the appellant. The testimony of the witnesses, thus, was unreliable. He further pointed out that while some of the Prosecution Witnesses had stated that 3 litres of kerosene oil was poured on Dipika, the P. W. 6 had stated that 5 litres of kerosene oil had been poured. The testimony of the witnesses, thus, was unreliable. He further pointed out that while some of the Prosecution Witnesses had stated that 3 litres of kerosene oil was poured on Dipika, the P. W. 6 had stated that 5 litres of kerosene oil had been poured. He also sought to prove the appellant's innocence by drawing attention of the Court to the discrepancy regarding the visit of some of the Prosecution Witnesses on 27. 8. 1986. While in the written complaint, the complainant who was the P. W. 1 had stated that they had visited the hospital in the evening when Dipika stated that the appellant had assaulted her, poured kerosene on her and set her on fire, while deposing before the learned Judge it was the categorical stand of all the Prosecution Witnesses that on 27. 8. 1986 they visited the hospital for the second time in the afternoon. He also urged that at the time of seizing the kerosene stove, signature of witnesses was not obtained and, as such, there was enough room for doubt as to whether the stove which was sent for laboratory test was the stove which actually burst as per version of the appellant. He concluded by submitting that the impugned judgment, on facts and in the circumstances, ought to be set aside and the appellant acquitted. ( 12 ) PER contra, it was submitted that the prosecution had been able to prove the charge under Section 302 of the Indian Penal Code against the appellant and consequently the learned Judge correctly convicted the appellant and sentenced him. ( 13 ) MR. Roy, Learned Counsel for the State submitted before this Court that the discrepancies sought to be pointed out on behalf of the appellant were minor discrepancies which might have resulted due to the efflux of time between the date of the incident and the dates on which the witnesses deposed (in this case it was 10 years ). In any event, the same did not affect the merits of the claim of the prosecution. He submitted that the laboratory test report being ext. 10 clearly indicated that the stove in question was found in working condition and no significant deformity or sign of bursting was noticed in it. This belied the plea of the appellant that Dipika caught fire owing to bursting of stove while preparing meal in the kitchen. Mr. He submitted that the laboratory test report being ext. 10 clearly indicated that the stove in question was found in working condition and no significant deformity or sign of bursting was noticed in it. This belied the plea of the appellant that Dipika caught fire owing to bursting of stove while preparing meal in the kitchen. Mr. Roy also drew the attention of the Court to Ext. 4 being the report of examination of the burnt synthetic saree which Dipika was wearing at the time of the incident wherein it was indicated that traces of mineral oil, although two small for identification, had been detected in the contents of each of the 3 packets marked A, B and C which were sent for examination. Incidentally, packets B and C contained portions of green, black and white printed synthetic saree. He also placed in great details the depositions of the prosecution witnesses and urged before the Court that the versions of p. W. 1, P. W. 3 and P. W. 6 who were all present when Dipika stated the fact of pouring of kerosene on her by the appellant and setting her on fire could not be demolished in cross-examination. Having regard to the chain of events, the only conclusion that could emanate was that the appellant had committed an offence under Section 302 of the Indian Penal Code, which finding was correctly returned by the learned Judge. The judgment impugned, he concluded, did not merit any interference and the same deserved to be affirmed by this Court. ( 14 ) THIS Court is in full agreement with the learned Judge that the offence against the appellant under Section 498a of the Indian Penal Code was not proved since it could not be established that the marriage between the appellant and Dipika was a valid marriage in the eye of law. ( 15 ) HOWEVER, this Court has heard learned Counsel for the parties at length on the question of conviction and sentence and has considered the materials available on record. ( 16 ) THIS Court has noted that when Dipika was brought to R. G. Kar hospital for admission, she had stated before the Emergency Medical Officer-in-Charge that while she was preparing meal wearing synthetic cloth she suddenly caught fire due to burst of stove. ( 16 ) THIS Court has noted that when Dipika was brought to R. G. Kar hospital for admission, she had stated before the Emergency Medical Officer-in-Charge that while she was preparing meal wearing synthetic cloth she suddenly caught fire due to burst of stove. The said Medical Officer deposed that when Dipika was brought to the hospital," there was 100% burn injury in her person". He had also stated that" it is not correct to say that a patient cannot speak if the injury by burn exceeds 90%". When attention of the learned counsel for the appellant was drawn to this portion of the evidence given by the said Medical Officer to repel his submission that a person having more than 90% burn injury cannot speak, he reiterated his submission before Court that no one having more than 90% burn injury could speak. Faced with the observation of the Court that that would render the so called dying declaration of Dipika before the Medical Officer untrustworthy, he submitted that both the alleged statements of Dipika, i. e. the one before the Medical Officer on 26. 8. 1986 and the other in presence of her relations on 27. 8. 1986 should be discarded and in such event, the only fact that would remain is that Dipika died of an accidental injury. This Court is also in full agreement with the learned judge that Dipika at the time of admission in Hospital at the material time was under the full control of the appellant and his near relations and the possibility of she being influenced to make such statement could not be ruled out. It is also to be noted that P. W. 1 stated in his cross-examination that his other sister's husband went to the doctor to record the dying declaration of Dipika but the doctor had refused to record it on the ground that the statement of dipika to the effect that she sustained burn injury due to bursting of stove had already been recorded, in view of this uncontroverted evidence, the statement of Dipika before the Medical Officer, allegedly made at the time of admission, cannot outweigh the declaration made by her on 27. 8. 1986. ( 17 ) SINCE there was no eye witness to the incident, the prosecution sought to prove its case based on circumstantial evidence. 8. 1986. ( 17 ) SINCE there was no eye witness to the incident, the prosecution sought to prove its case based on circumstantial evidence. It is on record that the appellant intended to use Dipika in an illicit way for personal gains, which she refused. This infuriated the appellant. It is also on record that a day prior to her death, Dipika had conveyed to her brother, sister-in-law and an acquaintance, that the appellant had assaulted her and then poured kerosene oil on her person and set her on fire to kill her. While being cross-examined, these witnesses reiterated what they had stated while being examined in chief. Although there are certain discrepancies in the version of the witnesses as pointed out by the learned Counsel for the appellant, but in the view of this court such discrepancies are minor and inconsequential. Efflux of time, as contended by Mr. Ray, could be a reason for the discrepancy. In any event, it is settled law that discrepancies which do not go to the root of the matter and shake the basic version of the witness cannot be given undue importance, more so when the all important "probability factor" echoes in favour of the version of the witness ( AIR 1983 SC 753 ). From the materials on record this court is convinced that the circumstances unhesitatingly point towards the guilt of the appellant, particularly, regard being had to the fact that the plea of bursting of stove as raised by the appellant falls through in view of the laboratory test report to the effect that the stove in question was found in working condition and no significant deformity or sign of bursting was noticed in it. This report appears to have been admitted in evidence and marked an Exhibit without any objection from the side of the defence. Over and above these, the result of examination of the saree, which Dipika was wearing did indicate traces of mineral oil, which substantiates the prosecution version of pouring of kerosene oil on her person by the appellant. ( 18 ) THIS Court is of the considered view that the judgment under appeal is based on legal evidence and does not suffer from any perversity. ( 19 ) IN the result, this Court finds no reason to interfere with the judgment of the learned Judge which accordingly stands affirmed. ( 18 ) THIS Court is of the considered view that the judgment under appeal is based on legal evidence and does not suffer from any perversity. ( 19 ) IN the result, this Court finds no reason to interfere with the judgment of the learned Judge which accordingly stands affirmed. Consequently, the appeal stands dismissed.