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2017 DIGILAW 112 (CAL)

Laxmi Majhi v. State of West Bengal

2017-01-24

SANJIB BANERJEE, SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Siddhartha Chattopadhyay, J. The appellant challenges the judgment and order dated 13.05.2008 passed by the Additional Sessions Judge, Fast Track, 3rd Court, Burdwan in Sessions Trial Case No. 03 of 2008. According to the appellant, judgment and order of conviction recorded by the learned Trial Court is erroneous on the ground that the said Court could not appreciate the evidence of the prosecution witnesses meticulously. There are multiple dying declarations which are suspicious, yet the learned Trial Court had convicted the appellant without appreciating the inconsistent dying declarations and settled position of law. 2. As against this, learned Counsel appearing on the behalf of the State submitted that the learned Trial Court considered all the materials placed before it and after analysing the evidence came to a correct conclusion, which does not require any interference. 3. In such circumstances, we have to revisit the prosecution story. According to the de facto complainant, the victim’s marriage was held on 5th Assar 1413 BS. After the said marriage, parents-in-law used to torture the victim. On 20.08.2007 on or about 9 O’clock in the morning, he got an information that the victim was admitted in Burdwan Hospital with burn injuries. Ultimately, the victim breathed her last. Ventilating this ill-episode the de facto complainant lodged the F.I.R. and set the law into motion. 4. The defence case as it appears to us from the trend of cross-examination and examination under Section 313 Cr.P.C. is her innocence and that she has been falsely implicated. 5. After lodging of the F.I.R., the investigating agency came into operation. In course of investigation the Investigating Officer collected the inquest report and post-mortem report, recorded the dying declaration, collected other dying declarations of the victim from the hospital authority, examined the available witnesses under Section 161 Cr.P.C., prepared a rough sketch map with index and submitted charge-sheet under Section 498-A/302/34 of I.P.C. 6. Pursuant to the filing of the charge-sheet and other material stabled before the learned Trial Court, the said Court framed the charges under the aforesaid sections. 7. P.W. 1, the father of the victim, who lodged the F.I.R., stated that while he met the victim in the Hospital, the victim disclosed that her parents-in-law set her on fire. The victim was admitted for four days and she died thereafter. 7. P.W. 1, the father of the victim, who lodged the F.I.R., stated that while he met the victim in the Hospital, the victim disclosed that her parents-in-law set her on fire. The victim was admitted for four days and she died thereafter. As per his instruction P.W. 2 scribed the F.I.R., which was read over and explained to him. He treated that he was also one of the signatories to the inquest reports prepared by the police as well as by the learned Executive Magistrate. In course of his cross-examination, he affirmed his statement by saying that after he got the information that the victim was admitted in the Hospital having serious burn injuries he met the victim when the victim disclosed to her how she sustained the burn by pointing a finger at her parents-in-law. Other parts of his cross-examination were in the form of denials. 8. P.W. 2 proved the F.I.R. which was written by him. He was also one of the signatories to the inquest reports. He also categorically stated that he came to know how the victim sustained her burn injuries from the victim herself. In course of his cross-examination, a suggestion was given to him that he told the police that he came to know from the victim that she caught fire due to a stove bursting. He negated such suggestion. 9. P.W. 3 could not say as to how the victim sustained burn injuries because he was not present at the time of occurrence. In course of his cross-examination, he stated that the victim told him that she was burnt by the fire from a stove, while she was cooking. He further stated that at the time when the victim made such statement, the doctor and other persons were also present. But such testimony is devoid of any merit since the victim’s statement that was recorded in the presence of the doctor and the attending nurse was otherwise. Ext. 6, which is the dying declaration of the victim recorded on 25.08.2007 at 6:30 pm, reveals that the victim stated that she went outside to urinate and at that time the parents-in-law hurled abuses at her and, thereafter, her parents-in-law set her on fire. She was also categorical in saying that her husband was not present then. Therefore, the evidence of P.W. 3 cannot be believed since the document (Ext. 5) speaks otherwise. 10. She was also categorical in saying that her husband was not present then. Therefore, the evidence of P.W. 3 cannot be believed since the document (Ext. 5) speaks otherwise. 10. The evidence of the P.W. 4 is insignificant. P.W. 5 in his evidence disclosed that the parents-in-law of the victim poured kerosene upon her and set her on fire thereafter. In course of his cross-examination, he reiterated such version. Other parts of his cross-examination were in the form of suggestions which he ruled out. 11. P.W. 6 disclosed a completely different story. He claimed that he went to the place of occurrence and the victim disclosed to him that she was burnt while she was cooking. He was declared hostile by the prosecution. His evidence cannot be believed on the ground that he is a neighbour of the accused. In our society sometimes the neighbours are reluctant to come to Court and even if they come they have a tendency to save their co-neighbours. 12. P.W. 8 is the doctor who treated the victim. The bed-head ticket was proved by him. In course of his cross-examination, he stated that he recorded the victim’s statement that she caught fire while she was cooking. But such evidence is not tenable on the ground that the said bed-head ticket, which is marked Ext. 4, speaks otherwise. At the bottom of the bed-head ticket, there is an endorsement “She was caught fire during cooking as stated by the patient party.” 13. The statement of the patient party cannot be regarded as to the statement of the victim. It may be mentioned that victim’s husband had taken the victim to the Hospital. The husband of the victim was admittedly not at the spot at the time of occurrence. Therefore, he might have made such a statement to the concerned doctor. No reliance can be placed upon the evidence that came out from the cross-examination of this P.W. 8. 14. P.W. 9 is another doctor who had recorded the statement of the victim and that dying declaration has been marked Ext. 5. The said dying declaration claims that the parents-in-law set fire upon her person and at the relevant point of time her husband was not there. This bears the signature of the doctor himself and also the signature of the nursing staff. 5. The said dying declaration claims that the parents-in-law set fire upon her person and at the relevant point of time her husband was not there. This bears the signature of the doctor himself and also the signature of the nursing staff. Referring to this dying declaration, learned Counsel appearing on behalf of the appellant contended that how the patient put her signature on such document is a mystery because if the victim was seriously burnt, she could not have put her signature. On perusal of the post-mortem report, it appears that the doctor concerned clearly stated that there were multiple burn injuries except ‘the palm of left hand and dorsal aspect of the fingers of right hand.’ Therefore, it goes to show that the victim had the capacity to put her signature. It is perhaps needless to say that when a doctor recorded the statement, that would be little doubt that the victim was able to speak and was mentally alert. Mere certification is not required by the doctor and this legal position has been set at rest in connection with the decision reported in Laxman v. State of Maharashtra reported at (2002) 6 SCC 710 . Therefore, we find the dying declaration reliable and credible. 15. The evidence of the P.W. 10 is totally insignificant. P.W. 11 corroborated the testimony of the P.W. 9 (concerned doctor). This P.W. 12 was one of the signatories to the dying declaration. P.W. 13 stated that he had directed the P.W. 9 to record the dying declaration of the patient. P.W. 15 testified that he had prepared the inquest report. P.W. 16 has proved the formal F.I.R. P.W 17 brought the dead body of the victim to Burdwan Hospital for post-mortem. P.W. 18 was one of the signatories to the seizure list. P.W. 19 was another witness to the seizure. 16. P.W. 20 is the autopsy surgeon. He clearly opined that the death was caused due to the effect of burn injuries. He was not cross-examined by the defence. P.W. 21 is the Investigating Officer, who had examined the victim and recorded her statement. The said statement was treated as a dying declaration and it was marked Ext. 12. This statement of the victim is also in harmony with her former dying declaration recorded by the doctor on 25.08.2007. He was not cross-examined by the defence. P.W. 21 is the Investigating Officer, who had examined the victim and recorded her statement. The said statement was treated as a dying declaration and it was marked Ext. 12. This statement of the victim is also in harmony with her former dying declaration recorded by the doctor on 25.08.2007. After going through the cross-examination of the investigating officer, we do not find any infirmity or inconsistency. 17. At the time of argument, learned Counsel appearing on behalf of the appellant contended that there are multiple dying declarations and the first one which has been made at the time of admission, is to be believed. According to him, the other dying declarations cannot be believed because the contents of first dying declaration are otherwise. He added that in the first dying declaration there was on account of an accidental fire from the stove. According to him, the first dying declaration has to be believed because there was no chance of embellishment. He further added that the subsequent dying declarations are cooked up because there was a chance of the victim being tutored. In support of such contention, he has referred to a decision reported in (2016) 11 SCC Page 673 in (Raju Devade Vs. State of Maharashtra), wherein the Hon’ble Supreme Court has laid down the guidelines in the consideration of multiple dying declarations. According to us, what evidentiary value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. When there is more than one dying declaration genuinely recorded, they must be tested on the touchstone of consistency and probability. They must also be tested in the light of other evidence on record. In this regard we may safely rely on the decision reported in Sudhakar Vs. State of Maharashtra reported in (2012) 7 SCC 569 . 18. In this instant case, we are not inclined to consider the so-called first dying declaration because it is not a dying declaration at all. The information was furnished by the patient party and not the patient. 19. The other dying declarations are in conformity with each other. There is no consistency in these dying declarations. 20. The evidence of the prosecution witnesses is consistent with the dying declarations and unmistakably point to the guilt of the appellant. The information was furnished by the patient party and not the patient. 19. The other dying declarations are in conformity with each other. There is no consistency in these dying declarations. 20. The evidence of the prosecution witnesses is consistent with the dying declarations and unmistakably point to the guilt of the appellant. In such circumstances, we are unable to accept the contention of learned Counsel appearing on behalf of the appellant. Accordingly, we are in agreement with the finding of the learned Trial Court. The criminal appeal fails. The judgment and order of conviction passed by the learned Trial Court is hereby affirmed. The sentence does not call for any interference. 21. Let a copy of this judgment and the L.C.R. be sent to the learned Court below for information and taking necessary action in accordance with law. 22. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities. Siddhartha Chattopadhyay & Sanjib Banerjee, JJ. I Agree.