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2015 DIGILAW 158 (CAL)

Kenaram Mondal v. State of West Bengal

2015-02-23

INDRAJIT CHATTERJEE, SUBHRO KAMAL MUKHERJEE

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Judgment :- Indrajit Chatterjee, J. In this appeal under Section 374 of the Code of Criminal Procedure, 1973, the accused convict (hereinafter called as the appellant) has challenged the judgment dated 27.11.2014 and order of conviction passed on 28.11.2014 by the Ld. Additional Sessions Judge, Haldia, within the District of Purba Medinipur in connection with ST No. 06(05) of 2012 arising out of Nandigram, P.S case No. 253 of 2011 dated 21.11.2011, under Sections 498A, 323, 324, 326, 307 and 302 of the Indian Penal Code (hereinafter called as the said Code). The prosecution case which went for the trial can be stated in brief thus that on 21.11.2011 at about 14.20 hours, one Sovana Mondal, daughter of the present appellant came to the said police station and lodged a written complaint to the effect that the present appellant, who used to assault the victim, Anita Mondal, the wife of the convict from time to time without any reasonable cause under the influence of liquor had killed her mother at about 11.30 p.m. on 20.11.2011 by setting the victim (Anita Mondal) on fire. Sovana Mondal has been the daughter of the accused and the victim. The two daughters of the victim, namely, Santana and Suprana, woke up and sustained burn injuries while trying to save their mother. The elder brother-in-law of the de facto complainant took her and two other victims at first to Reyapara Primary Hospital for treatment, but considering the injuries of the victims, the two victims i.e. Anita and Suparna were referred to the District Hospital of Purba Mednipur at Tamluk. The case ended in charge sheet under Sections 498A, 323, 324, 326, 307 and 302 of the said Code against the appellant. It is also the prosecution case that the victim made two dying declarations before the two doctors implicating the present appellant as the person, who set her on fire. The I.O. of this case collected the injury report, bed head tickets of the victim and some other articles. It is also the prosecution case that the victim made two dying declarations before the two doctors implicating the present appellant as the person, who set her on fire. The I.O. of this case collected the injury report, bed head tickets of the victim and some other articles. The appellant was tried in respect of charge punishable under Section 498 A and 302 of the said Code and on examining 17 prosecution witnesses the Court found the appellant to be guilty in respect of both the offences and he was sentenced to suffer simple imprisonment for 3 (three) years for the offence punishable under Section 498A of the Code and further sentenced to fine of Rs.1,000/-; in default, to suffer further simple imprisonment for one month. The appellant was also sentenced to life imprisonment and he was further sentenced to pay a fine of Rs.2,000/-; in default, to suffer simple imprisonment for two months for the offence punishable under Section 302 of the said Code. As against this order of conviction the present appeal has been preferred. Heard the ld. Advocate appearing on behalf of the appellant. We have gone through the judgment passed by the Learned Trial Court meticulously. It appears from the judgment that the Trial Court relied on the two dying declarations of the victim firstly recorded by Dr. Mom Bhattacharya (PW-3) of Reyapara Rural Hospital on 21.11.2011 and the second dying declaration was recorded by Dr. Aloke Kumar Shee (PW-13) of Purba Medinipur District Hospital. It appears from these two dying declarations that the victim stated categorically before the first attending doctor that on that date (20.11.2011) her husband came after drinking liquor and was quarreling since the morning and on that night at about 9 pm the present appellant, the husband of the victim, put kerosene oil on the body of the victim and set her on fire with the help of a lamp. It is also clear from the statement of Debasish Mondal (PW 3), that is, the brother of the appellant that he took Anita, that is, his sister-in-law to the rural hospital along with the two other victims, namely, Santana and Suparna, on that night. It is also clear from the statement of Debasish Mondal (PW 3), that is, the brother of the appellant that he took Anita, that is, his sister-in-law to the rural hospital along with the two other victims, namely, Santana and Suparna, on that night. It is also apparent from his evidence that on that night the appellant was very much there in the house along with the victim and naturally under Section 106 of the Evidence Act the appellant was bound to disclose as to how his wife and his two daughters sustained burn injuries. It is within the special knowledge which he ought to have disclosed and naturally at first presumption would be drawn against him. Dr. Mom Bhattacharyay categorically stated before the Learned Trial Court that the victim was fit enough to give her dying declaration. This mental fitness of the victim has been supported by PW-7 Kabita Singha, one nursing staff and PW-8 Smt. Anjali Samaddar (Das), another nursing staff both of the said rural hospital. It is apparent from the judgment that when the first dying declaration was recorded the daughter of Anita Mondal and one Police Officer were present before the doctor. Regarding the second dying declaration there is specific note in the judgment that Dr. Aloke Kumar Shee (PW-13) stated in his cross-examination that the patient stated before him in dying declaration that about 11 at night an altercation took place between her and her husband. After that her husband consumed liquor and thereafter set her on fire after pouring kerosene. Thus, there is the only discrepancy regarding time and that too only of two hours in between the two dying declarations recorded by PW-5 and PW-13 respectively. According to this Court when the patient’s condition was serious and that she suffered 70% burn injury such time gap is not fatal for the prosecution. The point was rightly discussed by the Learned Trial Court. This court concurs with the said finding. It is true that before the Learned Trial Court the children of the victim and the appellant did not come forward to depose. This is very natural. Having lost their mother in that incident, naturally they were not interested to depose against their father. This court concurs with the said finding. It is true that before the Learned Trial Court the children of the victim and the appellant did not come forward to depose. This is very natural. Having lost their mother in that incident, naturally they were not interested to depose against their father. This Court is not unmindful of the fact that the children of the victim, Santana and Suparna, received burn injuries and the treatment sheet of Santana was marked as Exbt.4/1 from where it is clear that the victim received 10% burn injury and further that it was caused by the father of that child, that is, the present appellant. The evidence of PW-5 Dr. Mom Bhattacharya is clear to convince this Court that Suparna Mondal received serious injury and for which she was referred to the Tamluk District Hospital for better treatment. However, no treatment sheet of the Suparna Mondal came before the Learned Trial Court. Be that as it may, such infirmity cannot take away the air from the sail of the prosecution boat. Regarding the value of the dying declaration the Apex Court held in (K. Ramachandra Reddy & Anr. Vs. The Public Prosecutor) as reported in AIR 1976 SC 1994 that once the Court has been satisfied that the dying declaration has been true and voluntary, it could be sufficient to base the conviction even without further corroboration. The similar view was expressed in two other decisions of the Apex Court as reported in AIR 1985 Page 416 (State of U.P vs. Ram Sagar Yadav) and AIR 1983 SC 164 (Ramawati Devi vs. State of Bihar). The admissibility of a dying declaration is based on the doctrine of necessity. In many cases the victim is the only eye witness to a crime on him/her and in such situations exclusion of the dying declaration, on hearsay principle, would tend to defeat the ends of justice. It is said that a man cannot go to meet his maker with a false statement in his or her mouth. Thus, banking upon the dying declarations as made by the victim to the two doctors in her full consciousness, this Court is not inclined to admit the appeal. Thus, this appeal is dismissed summarily under Section 384 of the Code.