Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 839 (CAL)

RANJIT AGARWAL v. STATE OF WEST BENGAL

2016-10-06

JOYMALYA BAGCHI

body2016
JUDGMENT : Joymalya Bagchi, J. 1. The appeal is directed against judgement and order dated 30.5.1986 passed by learned Sessions Judge, City Sessions Court, Calcutta in Sessions Case No.4 of 1986 (Sessions Trial No.1 of April, 1986) convicting the appellants for commission of offence punishable under Sections 306/34 of the Indian Penal Code and sentencing them to suffer rigorous imprisonment for five years. 2. The prosecution case, as alleged against the appellants, is to the effect that on 12.02.1984 Mangala Agarwal, the victim, was married to appellant no.1, Ranjit Agarwal and after marriage she started residing at her matrimonial home. She used to visit her parental home, which was not far off and complained to her relations that the appellants, i.e. her husband and mother-in-law used to torture her on account of inadequate dowry. From the wedlock Mangala gave birth to a male child on 30.12.1984 who expired on the following day. Thereafter she was taken to her parental home for nursing and solace. In the first week of February, 1985 the relations of Mangala including her mother Brij Lata Devi Agarwal were invited to attend a marriage ceremony of one of their relations at Benaras. Accordingly, Mangala was kept at her matrimonial home while her mother and other relations left for the marriage. On the fateful day i.e. on 17.2.1985 in the early morning at about 4.30 A.M. Mangala unable to bear the torture of the appellant poured kerosene on her body at her matrimonial home and burnt herself. The appellants were present but did not make any attempt to rescue her. Immediately thereafter she was removed to Calcutta Medical College and Hospital and admitted in the Emergency Department with 80% burn injury. During her admission she made a statement to the attending physician who reduced the same in writing implicity the appellants. Subsequently on the same day she made another statement before the police and on the following day she made a dying declaration before the learned Metropolitan Magistrate wherein she again reiterated that due to the torture meted out by the appellants she committed suicide. Upon the demise of Mangala police on the basis of her statement recorded on 17.2.1985 registered Bow Bazar P.S. Case No. 104 dated 19.2.1985 under Sections 306/34 of the Indian Penal Code against the appellants. 3. Upon the demise of Mangala police on the basis of her statement recorded on 17.2.1985 registered Bow Bazar P.S. Case No. 104 dated 19.2.1985 under Sections 306/34 of the Indian Penal Code against the appellants. 3. In conclusion of investigation charge sheet was filed under Sections 306/34 of the Indian Penal Code and the case was committed to the Court of Sessions. Learned Sessions Judge framed charge under Sections 306/34 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried. 4. In the course of trial, prosecution examined as many as 23 witnesses. The plea of the appellants was one of innocence and false implication. It was their specific defence that Mangala suffered from mental imbalance and was in depressed state due to the death of her child and committed suicide. To probabilize their defence, the defence examined one witness. In conclusion of trial the Trial Court by impugned judgement and order dated 30.5.1986 convicted and sentenced the appellants, as aforesaid. 5. Nobody appeared for the appellants. Ms. Anasuya Sinha was requested to appear as amicus curiae and assist the Court. 6. Ms. Sinha appearing as learned amicus curiae submitted that the prosecution case has been proved beyond reasonable doubt. There is nothing on record to show that the victim was fit and in a conscious state to make the dying declaration and no certificate of fitness was issued by medical person. She also submitted that the victim was suffering from mental depression due to death of the child and, accordingly, it cannot be said that the prosecution case of abetment for commission of suicide by the appellants has been proved beyond reasonable doubt. Evidence of DW1 also had not been considered by the trial Court in proper perspective. 7. On the other hand, Mr. Dutta, learned Advocate appearing for the State submitted that the dying declarations recorded in writing in the instant case clearly indicate that the victim died due to the torture meted out by the appellants. Dying declarations have been duly proved and, therefore, the conviction and sentence of the appellants does not call for interference. 8. The prosecution witnesses had sought to examine P.Ws. 3, 4 and 11 as relations of the victim. P.W. 3 is the mother of the victim. Dying declarations have been duly proved and, therefore, the conviction and sentence of the appellants does not call for interference. 8. The prosecution witnesses had sought to examine P.Ws. 3, 4 and 11 as relations of the victim. P.W. 3 is the mother of the victim. She deposed that the marriage took place with Ranjit Agarwal on 12.2.1984 and at the time of marriage she spent about Rs.65,000/- to Rs.75,000/-. She further stated that her daughter came to her home and complained that the appellants tortured her due to inadequate dowry. She tried to console her daughter. Mangala gave birth to a male child on 30.12.1984 but the child expired on the very next day. She brought the daughter to her home to nurse her. In the first week of February, 1985 her daughter was sent back to her matrimonial home. On 10.2.1985 her daughter came and requested to take her to Benaras on account of marriage ceremony of her cousin but her mother-in-law did not allow her. On 11.2.1985 she went to Benaras to attend the marriage ceremony. On 17.2.1985 when she was in Benaras she received message from Sushila Agarwala that Mangala suffered severe burnt injuries and was admitted at Calcutta Medical College and Hospital. On receiving such message she left for Calcutta. On the next morning she came to Calcutta Medical College and Hospital to see her daughter. She met her daughter who was conscious and told her that the appellants had abused her in filthy language and tortured her and as a result of such torture she had set herself on fire. On 19.2.1985 Mangala died. 9. P.W.4 Ram Kr. Agarwal is the brother of the victim. He has corroborated the evidence of his mother P.W.3. 10. P.W.11 Atma Ram Agarwal is the father of the victim who deposed that P.W.3 is his second wife and Mangala was born out of his marriage with P.W.3. 11. The prosecution has also examined a number of independent witnesses to unfold its case. P.W. 5, Gita Agarwal is a co-tenant in the parental house of the victim. She deposed that Mangala was given in marriage to appellant no.1 in February, 1984. She stated that Mangala was ill-treated at her matrimonial home and was teased on account of inadequate dowry. The prosecution has also examined a number of independent witnesses to unfold its case. P.W. 5, Gita Agarwal is a co-tenant in the parental house of the victim. She deposed that Mangala was given in marriage to appellant no.1 in February, 1984. She stated that Mangala was ill-treated at her matrimonial home and was teased on account of inadequate dowry. On 17.2.1985 one Purna Ram told her that Mangala had burnt herself and was admitted at Calcutta Medical College and Hospital. She met Mangala on 17.2.1985 at Medical College and Hospital when Mangala told her that due to mental and physical torture meted out by the appellants on account of inadequate dowry she was compelled to commit suicide by burning herself with kerosene. 12. P.W.6 Monoj Kr. Mishra is also a co-tenant in the parental home of Mangala and has deposed that he was informed that Mangala had sustained burn injury from PW5. He told Bansidhar to inform PW3 and visited the victim at hospital. 13. P.W. 7 Sushila Agarwal is a neighbour of P.W. 3 and had gone to Benarasto attend marriage ceremony. She heard of the incident from her son-in-Law Banshi and informed P.W. 3 that Mangala had been admitted to Calcutta Medical College & Hospital with burn injuries. 14. P.W. 8 Banshidhar Singh is the son-in-law of P.W. 7 who deposed that hemade a trunk call to her to inform the incident. 15. P.W. 9 Biswajit Das is the friend of P.W. 4, the brother of Mangala. On 17.2.1985 at about 6.30-7.00 a.m. he received an information that Mangala had been admitted in the Calcutta Medical College & Hospital with burn injuries. He went to the hospital and found that Mangala was lying in bed with extensive burn injuries. He did not find anyone there. In the afternoon he again went to see Mangala, at that time Mangala informed him that she poured kerosene oil on her body and burnt herself being unable to bear the torture perpetrated by the appellant and mother-in-law. 16. P.W. 10 Parimal Dam is a tenant in the matrimonial home of Mangala. He deposed that Mangala was married to the appellant No. 1 and since marriage she was residing with her husband in her matrimonial home. On 17.2.1985 at about 3.30 to 4.00 a.m. he heard a row coming from upstairs flat occupied by appellant No. 1. 16. P.W. 10 Parimal Dam is a tenant in the matrimonial home of Mangala. He deposed that Mangala was married to the appellant No. 1 and since marriage she was residing with her husband in her matrimonial home. On 17.2.1985 at about 3.30 to 4.00 a.m. he heard a row coming from upstairs flat occupied by appellant No. 1. Appellant No. 2 told him that Mangala sustained severe burn injuries. He found that Mangala was lying and she was covered with a quilt. Within five minutes appellant No. 1 and Purna Ram took her to hospital. 17. The most vital witnesses in the instant case are the medical & police witnesses and the Magistrate all of when claimed to have recorded the three dying declarations of the victim. 18. P.W. 15 Dr. Anup Mondal was a Doctor attached to the Calcutta Medical College& Hospital, Emergency department. On 17.2.1985 he was attached to Casualty Block and at about 5.05 a.m. one Mangala Awargal was brought to the Hospital by Purna Ram and he admitted her to the said hospital. At the time of admission he found extensive burn injuries (80%) over her body. Mongala was immediately admitted to Casualty Block, Top Floor. He ascertain the history of injury from the victim who told that she had burnt herself at about 4.45 A.M. following quarrel with her mother-in-law and husband. She was undergoing marital disharmony at her matrimonial home. He wrote the said statement and signed it during the examination of patient (Exhibit-8). 19. P.W. 20 Dr. Arup Kumar Ganai is another doctor who treated the patient at Calcutta Medical College & Hospital and issued death certificate (Exhibit 10). He deposed on 18.02.1985 at about 1 P.M. one Magistrate recorded the statement of Mangala in his presence. He identified the patient before the Magistrate. He deposed that on question being posed by the Magistrate as to whether the patient was mentally alert to give statement, he put certain questions to the patient and found she was capable to make statement. The Magistrate thereafter recorded the statement of the patient who put her LTI on the pages of the statement taken by Stuff Nurse, A. Chakraborti who was present. He also signed on the pages of the statement on the request of the recording Magistrate. He proved his signature (Exhibit 9). 20. P.W. 12 – Mrs. The Magistrate thereafter recorded the statement of the patient who put her LTI on the pages of the statement taken by Stuff Nurse, A. Chakraborti who was present. He also signed on the pages of the statement on the request of the recording Magistrate. He proved his signature (Exhibit 9). 20. P.W. 12 – Mrs. Menaka Raychowdhury, was a sister-in-charge attached to Calcutta Medical College & Hospital. On 28.02.85 she produced the bed-head tickets of Mangala Agarwal, which was seized by the police and she signed on the seizure list. She proved the seizure list marked as Exhibit 4 and the bed-head tickets marked as Exhibit -5. 21. P.W. 13 – Sri Anuja Ghosh is a stuff nurse attached to the casualty block, Calcutta Medical College & Hospital, she was present when the police officer (PW 21) recorded the statement of the victim. On 17.02.1985 the victim put her LTI on each page of the statement, she put her signatures on the statement marked as Exts. 6, 6/1 and 6/2. She also proved the LTI of Mangala in my presence marked Exhibits as 7, 7/1 and 7/2. 22. P.W. 17- Sri Subrata Kundu, is the post mortem doctor who conducted the post mortem examination of the dead body of the victim and found the following injuries:- “Injury:- 1. 1st decree burn injury seen over whole of face with singling of eye lashes, eye brows & scalp hair. Infected ulcer resulting from burn injury seen over following areas. 2. Over anterior surface of chest & abdomen including neck. 3. Over posterior surface of whole of trunk including neck upto gluteal region. 4. Over external genital organ including penireum with singeing of pubic hairs. 5. Over both the thighs on all surfaces & upper half of both legs on all surfaces. 6. Over both the upper extremities on all surfaces with singeing of axillery hairs excluding palmer surfaces of both hands. The injuries except injury no. 1 show formation of pus and slough over them No other injuries except those described could be detected on careful examination and desection with the help of hand lens.” 23. The witness opined as follows:- “In my opinion, death was due to the effects of septic absorption from infected ulcer resulting from burn injuries as noted above which are ante-mortem in nature. With such injuries as described above, the patient could make statement.” 24. The witness opined as follows:- “In my opinion, death was due to the effects of septic absorption from infected ulcer resulting from burn injuries as noted above which are ante-mortem in nature. With such injuries as described above, the patient could make statement.” 24. P.W. 16- Sri K.C. Das Gupta, is the Magistrate who recorded the dying declaration of the victim in the presence of P.W.20 Dr. Ganai and sister nurse. He proved the dying declaration marked as Exhibit 9 and also identified a photograph of the victim marked as Exhibit I/I. 25. P.W. 19 – Dr. Sowrendra Nath Ganguly, was the Deputy Superintendent, Calcutta Medical College & Hospital at the material point of time. 26. On 17.02.85 at about 6.40 AM he received a requisition from the Casualty Block, Top Floor, Unit-V for recording dying declaration of Mangala Debi Agarwal. Prior to that, he had informed O.C, Bow Bazar P.S. over phone to arrange for recording dying declaration of the patient. 27. P.W. 21- Sri Borjeswar Bhattacharyya was the duty officer in charge of the Police Station, Calcutta. On 17.02.85 at about 7.40 AM, he received a telephonic call from the Deputy Superintendent, Calcutta Medical College & Hospital, requesting to record of dying declaration of the victim Mangala. He went to Calcutta Medical College & Hospital, Casualty Block and the victim give a dying declaration which reduced in writing in presence of stuff nurse Anuja Ghosh (P.W.13). He recorded the statement by his own hand and marked as Exhibit6/3. He visited the place of occurrence made search and seizure prepared seizure list and signed the same as Exhibit 11. He has also proved the material Exhibits which were seized at the place of occurrence, namely, plastic container, burnt quilt, burnt synthetic cloth, match box etc. 28. P.W. 22- Sri Moloy Mukherjee, is a Sub-Inspector of Police, Bow Bazar, Police Station. He received a requisition from O.C., Bow Bazar Police Station and made a prayer before the Chief Metropolitan Magistrate for recording dying declaration of the victim. Sri Dhanesh Chandra Dasgupta, Magistrate, 8th Court, (P.W. 16) was directed to record statement he and communicated it to him. On the same day at about 11.30 AM he accompanied Sri Dasgupta to Calcutta Medical College & Hospital for recording the dying declaration. 29. Sri Dhanesh Chandra Dasgupta, Magistrate, 8th Court, (P.W. 16) was directed to record statement he and communicated it to him. On the same day at about 11.30 AM he accompanied Sri Dasgupta to Calcutta Medical College & Hospital for recording the dying declaration. 29. P.W. 23- Sri Uddalak Roy was another Sub-Inspector of Police who was attached to Bow Bazar Police Station on 19.02.85. He received the Death Certificate of the victim of 243, Bow Bazar Street, Calcutta and on the statement was recorded by P.W. 21 (Exhibit 6/3), he filled up formal F.I.R. and started Bow Bazar P.S. Case No. 104 dated 19.02.85. On 19.2.85 at about 11.30 PM he visited the place of occurrence and arrested the appellants. On 20.02.85 he went to Calcutta Medical College & Hospital where he saw the dead body of the victim and identified the dead body of the victim. He identified the dead body of the victim to Constable Nayan Kar (P.W.14) who took the body for post mortem examination. He prepared a sketch map of the locale and made arrangements for taking photographs through P.W. I. He received the post mortem report and filed charge sheet. 30. D.W.I – Sri Puran Ram is the brother of appellant no. 2. He deposed that he was residing with the appellants at the matrimonial home of the victim of the material point of time. In the night of 16/17.02.1985 he had retired with bed and heard a commotion on the early morning of 17.2.1985 about 04.30 AM coming from the room of the appellants. He went up stairs and found that the victim was burning and the appellants came thereafter and with the help of quilt appellant no. 2 tried to extinguish the fire. The victim was taken by him with the help of appellant no. 1 to the hospital in a taxi. While they were going to the hospital the victim stated that she had received punishment of her own deeds. Victim was admitted the Calcutta Medical College & Hospital at 05.00AM. After admission she was taken upstairs. During his stay, Mahesh Agarwal and others came to the hospital. He did not see any police officer there. 3-4 days after the incident, police came to his residence and took his statement in writing. 31. From the aforesaid evidence-on-record it appears that the prosecution had relied on three dying declarations to prove its case. During his stay, Mahesh Agarwal and others came to the hospital. He did not see any police officer there. 3-4 days after the incident, police came to his residence and took his statement in writing. 31. From the aforesaid evidence-on-record it appears that the prosecution had relied on three dying declarations to prove its case. The first dying declaration was recorded by P.W. 15 (Ext. 8) at the time of admission of the victim at Calcutta Medical College & Hospital around 5 AM. Thereafter PW19 made a requisition to Bou Bazar P.S. for recording dying declaration and in response thereto P.W. 21 came to the Hospital and recorded the dying declaration of the victim on that day itself i.e. 17.02.1985. (Ext 613) P.W. 13 was the staff nurse who was present when PW21 recorded such statement. P.W. 22, another police officer attached to Bou Bazar P.S. made requisition for recording dying declaration before Chief Metropolitan Magistrate, Calcutta and upon his order P.W.16 recorded the third and the last dying declaration of the victim on18.02.1985 in presence of PW20, the doctor treating the victim. In addition to the aforesaid dying declarations which were reduced into writing there is reference to oral dying declarations made to P.W. 3, 5 & 9 who deposed that the victim narrated to them when they went to visit her at the hospital that she was forced to commit suicide due to the torture meted out to her by the appellants. 32. On the other hand, the defence has relied on D.W. 1 who stated that the victim made an exonerative statement to him while she was being taken to the Hospital and claimed that she was being punished for her own deeds. 33. The issue which falls for consideration is whether the dying declarations implicating the appellants are liable to be believed or the appellants are entitled to be acquitted in view of the evidence of D.W. 1. 34. I am of the opinion that reliance ought to be placed on the dying declarations which were recorded by independent official witnesses, namely, the doctors, attending officer at Calcutta Medical College & Hospital as well as the police personnel attached to Bou Bazar Police Station instead of the evidence of the interested and partisan family members i.e. P.W. 3 on the one hand and D.W. 1 on the other. 35. 35. On perusal of the dying declarations recorded by P.W. 15 (Ext. 8), P.W. 21 (Ext. 613) and P.W. 16 (Ext. 9), I find that the same are consistent with one another and categorically stated that due to the ill-treatment meted out to the victim by the appellants she was compelled to take her life. It has been argued that there is no certificate given by the medical personnel and hence, the dying declarations ought not to be believed. I am unable to accept such contention as the witnesses in unison being stated that the victim was conscious while she was in Hospital. The evidence of P.W. 20 who was present during recording of dying declaration by the Magistrate (PW16) clearly obviates any doubt in one’s mind as to the lack of competence or capacity on the part of the victim to make the dying declaration in the instant case. PW17, the PM doctor also deposed that the victim could make statement in spite of the injuries found on the victim. 36. It has also been argued that the dying declarations were procured upon the influence of the family members victim present at the Hospital. Such contention is also of little substance. First of the written dying declaration which is equally incriminating of appellants was recorded on 17.2.85 at 5 a.m. when the family members of the victim were not even informed of the incident for less be present at the hospital. The version of the victim as reduced into writing by P.W. 15 cannot therefore be said to have been embellished by any influence of her family members. 37. The other suggestion of the defence is to the effect that the victim committed suicide due to her depression owing to the premature death of her child. Such defence of the appellants is clearly rendered improbable in the face of the unequivocal and consistent. Dying declarations recorded in the instant case by dis-interested medical and official witnesses and clearly the ill-treatment meted out by the appellants upon the victim compelling her to take the extreme step of self destruction. It is also relevant to note that the version coming out from the victim in the aforesaid dying declarations is corroborated by the evidence of other prosecution witnesses including independent witness like PW5 who have spoken of ill-treatment meted out to the victim at her matrimonial home over inadequate dowry. It is also relevant to note that the version coming out from the victim in the aforesaid dying declarations is corroborated by the evidence of other prosecution witnesses including independent witness like PW5 who have spoken of ill-treatment meted out to the victim at her matrimonial home over inadequate dowry. Such independent corroboration of the consistent dying declaration bolster the prosecution case and clearly negates the defence suggestion that the commission of suicide by the victim was for loss of her child. 38. In view of the aforesaid reasons, I uphold the conviction and sentence of the appellants. 39. The bail bonds of appellants are cancelled and they are directed to surrender before the trial court forthwith to serve out their sentences in accordance with law. 40. Period of detention suffered by the appellants during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of 428 of the Code of Criminal Procedure. 41. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance and execution of the sentence. 42. The appeal stands dismissed. 43. I record my appreciation for the able assistance rendered by Ms. Sinha as amicus curiae in disposing of the appeal.