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2015 DIGILAW 407 (CAL)

Md. Nasir @ Dablu v. State of West Bengal

2015-05-07

INDRAJIT CHATTERJEE, NADIRA PATHERYA

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JUDGMENT : Nadira Patherya, J. 1. This appeal is directed against the judgment and order of conviction dated 28th February, 2006, passed by the Learned Additional District & Sessions Judge, Fast Track Court VII, Alipore, South 24 Parganas in Session Trial No.6(1) of 2005 arising out of Sessions Case No.47 (11) of 2004 under Sections 498A, 302 read with Section 34 of the Indian Penal Code. 2. The prosecution's case is as follows: One Sabina Bibi, the victim girl was married to the accused appellant no.1 in May, 2002. After the marriage, demand for money was made by the accused appellants from the victim girl several times. As this demand was not met, the accused appellants set light the victim girl by pouring kerosene oil over her body. This incident occurred at the matrimonial home of the victim girl and P.W.4 informed P.W.1 of the incident. The incident took place on 9th May, 2004 and the FIR was registered on 14th May, 2004, after the death of the victim girl on 13th May, 2004 at 8.00 a.m. at the National Medical College and Hospital. Three dying declarations were made by the victim girl. The first is before P.W.4, Md. Mustaque, who is the brother-in-law of the victim girl. The second dying declaration finds mention in the admission register at the time of admission on 9th May, 2004 and the third dying declaration has been recorded by P.W.2 (S.I) in the presence of P.W.3 (doctor). 3. On demise of the victim girl, an FIR was lodged and on receipt of such FIR, investigation initiated which culminated in two incidents namely, the arrest of the accused appellant no.1 on 14th May, 2004 and the accused appellant no.2 surrendered on 18th June, 2004. Charge-sheet is the next incident which occurred as a result of the investigation. Charges were framed and read over and explained to the accused appellants, to which the accused appellants pleaded not guilty and sought trial. 4. At the trial, as many as 22 prosecution witnesses were examined and no defence witness was examined. Documents were exhibited as a result of evidence both oral and documentary, the order of conviction was passed under Sections 498A and 302/34 of the Indian Penal Code. 5. It is from this order of conviction that this appeal has been preferred and the accused appellants seek to set aside the same. 6. Documents were exhibited as a result of evidence both oral and documentary, the order of conviction was passed under Sections 498A and 302/34 of the Indian Penal Code. 5. It is from this order of conviction that this appeal has been preferred and the accused appellants seek to set aside the same. 6. Counsel for the accused appellants submits that there are three dying declarations. The first dying declaration is oral before P.W.4 who is the brother-in-law of the victim girl. There was enmity between P.W.4 and the accused appellant no.1. Although, P.W.4 in his evidence has stated that he visited the place of occurrence but did not admit the victim girl to the hospital. The second dying declaration allegedly is at the time of admission being (exhibit-4), wherein household has been scored out and family substituted. The reason given is quarrel in the history. The name of the accused appellants and brother-in-law included. The name of the brother-in-law will find no mention in either oral dying declaration or in the third dying declaration being (Exhibit-1). In Exhibit-1, which is the third dying declaration, there is no mention that the victim girl was mentally and physically fit to make the statement. Her thumb impression was also not been taken. Therefore, the veracity of the document is in question. The third dying declaration, (Exhibit-1) was made on 12th May, 2004 and tutoring by P.W.4 cannot be ruled out. P.W.1 (mother), the de facto complainant, P.W.2 is the S.I., who recorded the third dying declaration (Exhibit-1). No requisition was made by the hospital on the P.W.2 to record the statement of the victim girl. P.W.3 is the doctor, who endorsed the dying declaration (Exhibit-1). No signature or thumb impression of the victim girl was taken. Out of nine questions put to her, only five questions were answered and the language in which it was written also raised a doubt with regard to the answers given by the victim girl. 7. P.W.4 is the post occurrence witness. P.W.5, P.W.6, P.W.7, P.W.8, P.W.9, P.W.17, P.W.18 and P.W.20 are neighbours or tenants, who have been declared hostile. P.W.10, is the Executive Magistrate who made the inquest. Therefore, P.W.10 and P.W.11 are formal witnesses. P.W.12 is the first doctor who is also formal. P.W.13 is also a formal witness while P.W.14 is the post mortem doctor, P.W.15 and P.W.16 are formal witnesses. P.W.10, is the Executive Magistrate who made the inquest. Therefore, P.W.10 and P.W.11 are formal witnesses. P.W.12 is the first doctor who is also formal. P.W.13 is also a formal witness while P.W.14 is the post mortem doctor, P.W.15 and P.W.16 are formal witnesses. P.W.19 recites the FIR so is a formal witness, P.W.21 and P.W.22 are the I.Os., who conducted the investigation. There has been no voluntary recording of the statement of the victim girl. There was no request put in with P.W.2 for recording any statement. P.W. 2 has categorically stated that he does not recognise the victim girl, while P.W.3 did not identify the victim girl, therefore, in the absence of identification it is not known whether the statement made was, in fact, made by the victim girl. There is no recording of the victim girl being mentally or physically fit. Not only the victim girl was not identified, even the place of occurrence was not identified. P.W.4 was not on talking terms with the accused appellant no.1 and his evidence is full of contradictions. Some of the persons named by P.W.4 have not been cited, therefore, an adverse presumption arises. P.W.4 was arrested and it is quite possible that he was suspected by the police. There is also possibility of tutoring by P.W.4 cannot also be ruled out. The evidence of P.W.16 is contradictory to that of P.W.1. The investigation made by the I.O. is defective and warrants acquittal of the accused appellants. 8. In the examination conducted under Section 313 of the Criminal Procedure Code the accused appellant no.1 has categorically stated that he was on work which is supported by the evidence of P.W.20. The oral dying declaration is very week and Court must be cautious in accepting such dying declaration. Evidence of P.W.4 is full of contradictions that enmity existed between the accused appellant no.1 and P.W.4 has surfaced in the evidence and therefore, the evidence of P.W.4 is belied by enmity. The second dying declaration, it is only while recording the history of the patient admitted, it has been recorded that the patient was burnt by her family members. This short history of the case cannot be relied on. The case of reaching the place of occurrence by P.W.4 after hearing a hue and cry is contradicted by the evidence of P.W.21. This short history of the case cannot be relied on. The case of reaching the place of occurrence by P.W.4 after hearing a hue and cry is contradicted by the evidence of P.W.21. In the third dying declaration (Exhibit-1), there is no mention by the P.W.3 of the mental and physical condition of the victim girl, the same ought not to be accepted. The statement made is also not before the Magistrate and the script in which the exhibit-1 was written so also the language raises a doubt and it is not known whether the victim girl had knowledge of Hindi or Bengali. Therefore, knowledge of language is not known. For all the said reasons, the Exhibit-1, cannot be relied on. It is also not known when the Exhibit-1, reached Rabindranagore Police Station. It is a duty casts on P.W.2 and P.W.3 to both mentioned the physical and mental condition of the victim girl. Each of the dying declarations are inconsistent with each other and the mental and physical condition of the victim girl was bad. She could not answer four simple questions. This shows that the five questions put to her would also not even answered by her. Reliance is placed on (2009) 1 SCC (Cri) 287, for the proposition that in case of inconsistency exists in the dying declaration the said cannot be relied on. Reliance is also placed on AIR 2013 SC 1890 , for the proposition that a dying declaration must be considered with care and scrutiny. 9. Alternatively, Section 304 part-II be also considered. Such argument is based on lack of intent and better treatment was given to the victim girl. Reliance is placed on (2013) 12 SCC 663 . Reliance is also placed on (2011) 2 SCC (Cri) 944 that a case of provocation. Reliance has placed on (2013) 3 SCC (Cri) 257 for the conflicting language which finds mention in the dying declaration. The mental condition of the victim girl was not fit and in the absence of such recording the order of conviction cannot stand as held in (2011)13 SCC 125 . 10. There has been delay in filing of the FIR, which is after four days of the incident. No explanation has been given for such delay and in view of the alibi taken that the accused appellant no.1 was working, the order of conviction be set aside. 11. 10. There has been delay in filing of the FIR, which is after four days of the incident. No explanation has been given for such delay and in view of the alibi taken that the accused appellant no.1 was working, the order of conviction be set aside. 11. Counsel on behalf of the State respondent submits that oral evidence of P.W.1, P.W.2 and P.W.3 be considered along with the dying declaration, (Exhibit- 1). From the admission register it will appear that it was the sister-in-law (nanad), who admitted the victim girl to the hospital. In the evidence of P.W.14, the P.M. doctor, burn injuries were mentioned even on the palm of the both hands. This along with Exhibit-1, is corroborated by the evidence of P.W.1, P.W.2 and P.W.3. The decision cited with regard to dying declaration will be applicable only in case inconsistency of the dying declarations, which is not so in the instant case. In the G.D. Entries made, time has been mentioned not only of leaving of the police station but also return to police station. The conduct of the accused appellant no.1 between 9th May, 2004 and 13th May, 2004 is of great importance. He did not admit the victim girl to the hospital. He did not visit the victim girl on any of the days mentioned above. No medicines were also provided by him. Although the alibi of work has been taken but the number of hours put in has not been specified. Reliance has been placed on (2014) 12 SCC 211 , for the proposition that even if no fitness certificate is issued but the fitness of the victim girl if proved through the evidence of doctor is sufficient to book the accused. For the proposition of acceptance of dying declaration, reliance is placed on (2012) 7 SCC 636 . For all the said reasons, therefore, the order of conviction be upheld and the appeal be dismissed. 12. Having considered the submissions of the parties, 22 prosecution witnesses were examined only. Out of them P.W.4 is the post occurrence witness. P.W.5, P.W.6, P.W.7, P.W.8, P.W.9, P.W.17, P.W.18 and P.W.20 have been declared hostile. P.W.10, P.W.11, P.W.12, P.W.13, P.W.15, P.W.16 and P.W.19 are formal witnesses. P.W.21 and P.W.22 are the I.Os. P.W.14 is the P.M. doctor. The witnesses of relevance are P.W.1, P.W.2, P.W.3 and P.W.14. Out of them P.W.4 is the post occurrence witness. P.W.5, P.W.6, P.W.7, P.W.8, P.W.9, P.W.17, P.W.18 and P.W.20 have been declared hostile. P.W.10, P.W.11, P.W.12, P.W.13, P.W.15, P.W.16 and P.W.19 are formal witnesses. P.W.21 and P.W.22 are the I.Os. P.W.14 is the P.M. doctor. The witnesses of relevance are P.W.1, P.W.2, P.W.3 and P.W.14. P.W.1 is the (mother), de facto complainant, who through evidence has proved the case of demand of money. It is because of this the victim girl was assaulted from time to time and P.W.1 has categorically stated that the accused appellant no.1 killed the victim girl by pouring kerosene oil and thereafter burnt her. P.W.2, S.I. recorded the third dying declaration (Exhibit-1), but prior thereto there are two other dying declarations and the one that is of importance is that recorded in (Exhibit-4), the admission register. There was also an oral dying declaration made to P.W.4. Even if such oral dying declaration considered to be weak and be considered cautiously, the same may be ignored but the recording in the admission register which is (Exhibit-4), cannot be ignored and what finds mention is set out herein below:- "8. Short history of the case as stated by the patient or by the party (if the patient is not liable to give the statement)- According to the patient she was burnt by her family members by kerosene all over the body following quarrel in Home. 50% burnt. 9. Examination Report including nature of injury, age of injury and cause by: AFE 50% to 60% burns all over the body, arm, back, neck seriously burnt patient conscious". 13. That the patient was conscious has been recorded in Exhibit-4. That she suffered burnt seriously of degree 50% to 60% also finds mention in the admission register. That she was burnt by kerosene also finds mention. Therefore, this is a statement made by the patient when she was conscious on 9th May, 2004 at 7.00 p.m. This dying declaration is corroborated by the dying declaration, being Exhibit-1 and although the script of dying declaration no.3, being (Exhibit-1) is in Bengali but the questions put to her are in Hindi. It must be mentioned that the third dying declaration (Exhibit-1) was made on 12th May, 2004 at 10.25 p.m. and the cause of injury has been maintained by the victim girl. 14. It must be mentioned that the third dying declaration (Exhibit-1) was made on 12th May, 2004 at 10.25 p.m. and the cause of injury has been maintained by the victim girl. 14. Much has been made by counsel for the accused appellants with regard to non-mention of mental and physical fitness of the victim girl, but the mental state of the victim girl finds mention in the evidence of P.W.3 who has categorically stated that he examined the patient and found that she was capable of making statement. Therefore, the mental fitness of the victim girl cannot be doubted, more so, in view of Exhibit 4, admission register. The noting in the admission register was made on 9th May, 2004 at 7.00 p.m. and it is specifically mentioned that the patient was conscious. In her consciousness, the victim girl informed of burning by kerosene oil all over her body by the family members. This is corroborated by the dying declaration (Exhibit-1). Counsel for the accused appellants also seeks to stress on the omission of the brother-in-law in the dying declaration (Exhibit 1). But this does not wipe out the presence of the family members namely, the mother-in-law and husband. The P.W.2 came to the hospital on the basis of an admission medical certificate received by the police station from National Medical College and Hospital regarding the admission of a burn injury case. On 12th May, 2004 at 22.10 hours a G.D. entry was made being no.1060 wherein it was recorded S.I. A. M. Saha and S.Chakraborty left for round. Entry no.1064 was made on the same date at 23.44 hours wherein it was recorded that during inquiry a visit was made to the National Medical College Hospital wherein the sister-in-charge of OCTS was contacted and on her identification the statement of the victim girl was recorded in the presence of P.W.3. It has specifically been stated that the thumb impression of the victim could not be taken as the fingers of both the hands were in burnt condition. Therefore, the reason for non-taking of LTI will be evident from (Exhibit 2/1) and also post mortem report so also the evidence of P.M. doctor, P.W.14. It has specifically been stated that the thumb impression of the victim could not be taken as the fingers of both the hands were in burnt condition. Therefore, the reason for non-taking of LTI will be evident from (Exhibit 2/1) and also post mortem report so also the evidence of P.M. doctor, P.W.14. The plea of non-identification of place of occurrence and the victim girl also cannot be sustained as the P.O. has been identified by P.W.4 when he says that he ran to the house of Nasir where he saw the victim girl burning. Identification of the victim girl is evident from (Exhibit 2/1), being G.D. entry 1064 dated 12th May, 2004 at 23.45 hours. 15. It will not be out of place to mention that the dying declaration (Exhibit 1) was recorded on 12th May, 2004 at 10.25 p.m. There has been no cross-examination with regard to non-identification of the victim girl. Therefore, without any objection, the same stands admitted. As regards the place of occurrence, the defence did not cross-examine P.W.4 on the said subject and therefore, place of occurrence also stands identified. The appellants' counsel has sought to raise a plea of defective investigation by P.W.21, (I.O). But the defect is not so serious so as to cause grave prejudice to the appellants and to warrant acquittal. The language issue sought to be raised is of no consequence, as the questions to the victim girl were put in Hindi but all that has been done is that the questions were written in Bengali script. Therefore, it cannot be said that the questions put were not understood by the victim girl as it was in the language which she spoke. This will be more evident from the answers given by her to five out of nine questions put to her. The five questions to which answers were given all relevant and the balance remaining unanswered for reasons which are not surfaced in the evidence. Various reasons can be given but to give them at this stage would not be correct. This will be more evident from the answers given by her to five out of nine questions put to her. The five questions to which answers were given all relevant and the balance remaining unanswered for reasons which are not surfaced in the evidence. Various reasons can be given but to give them at this stage would not be correct. The fact remains that five out of nine questions were answered and four remained unanswered and while considering the five questions answered, the said answers on death of the victim girl amounts to dying declaration which finds corroboration from the history of the case set out in the admission register, that is the first document in point of time of her admission to the hospital by her sister-in-law (nanad). Therefore, the language issue sought to be raised is of no assistance to the accused appellants. The non-certificate of mental or physical fitness in view of the substantive evidence of P.W.3 and in view of the reported decision in (2014) 12 SCC 211 . Therefore, in view of the aforesaid decision relied on by counsel for the accused appellants with regard to language issue namely, (2013) 3 SCC (Cri) 257 will not apply in the facts of the instant case. The cases relied on by counsel for the accused appellants vis-a-vis dying declaration is also of no assistance and each of the decision cited there was inconsistency between the several dying declarations. Such is not the case here, therefore, each of the decision is distinguishable on facts. 16. Counsel for the accused appellants as a last resort sought to take assistance of Section 304 Part II on the ground of lack of intent on the part of the accused appellants to cause the death of the victim girl. It has been submitted that if better treatment was given to her then she could have survived. But the question needs to be answered is better treatment by whom and the answer would be that better treatment would have to be provided by the accused appellant no.1 as he was her husband and his family members admitted her to the hospital. Therefore, it was the accused appellant no.1 who was to purchase the medicines but there is no evidence to show that the husband visited the victim between 9th May, 2004 and 13th May, 2004. Therefore, it was the accused appellant no.1 who was to purchase the medicines but there is no evidence to show that the husband visited the victim between 9th May, 2004 and 13th May, 2004. Therefore, the desperate plea taken by counsel for the accused appellants is rejected. In fact, the accused appellant no.1 has taken the alibi of having gone to work but the number of hours put in at his work place has not been specified. No persons from his work place has been brought to adduce evidence on behalf of the defence. The date of incident was 9th May, 2004 and the victim girl succumbed to her injuries on 13th May, 2004 at 8.00 a.m. The FIR was filed by the victim's mother on 14th May, 2004 at 8.45 hours. Therefore, there is no delay in filing of FIR. Burn injuries also finds mention in the post mortem report which has been substantiated by the evidence of P.M. doctor. In the post mortem report it has been categorically stated that pouring kerosene oil by the husband and mother-in-law is as per the patient party. Victim girl was admitted to the hospital by Anwara Bibi, sister-in-law (nanad). Therefore, the patient party would be the family members of the accused appellants. 17. In view of the aforesaid, therefore, this appeal warrants no interference and is accordingly dismissed. 18. Criminal Section is directed to supply urgent photostat certified copies of this judgment to the parties, if applied for, upon compliance of all necessary formalities and to transmit the Lower Court Records along with a copy of this judgment to the Trial Court, being the Additional District & Sessions Judge, Fast Track Court VII, Alipore, South 24-Parganas, forthwith for information and for necessary action. 19. Articles seized, if any, be destroyed after the period of appeal is over. Indrajit Chatterjee, J. : I agree.