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2019 DIGILAW 45 (CAL)

Salman Sahani v. State of West Bengal

2019-01-10

RAJARSHI BHARADWAJ

body2019
JUDGMENT : RAJARSHI BHARADWAJ, J. 1. This appeal arose out of a judgment of conviction dated 15th February, 2016 and order of sentence dated 16th February, 2016 passed by the learned Additional District & Sessions Judge, 2nd Court, Arambagh in Session Trial No. 46 of 2016 arising out of Arambagh P.S. Case No. 729 of 2013 dated 10th November, 2013 convicting the accused/appellant under Section 306/498A of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years for the offence under Section 306 of the Indian Penal Code and to pay a fine of Rs. 5,000/-; in default to suffer rigorous imprisonment for three months and also sentencing him to suffer rigorous imprisonment for two years for the offence under Section 498A of the Indian Penal Code and to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for one month and both the sentences under Sections 306 and 498A of the Indian Penal Code were directed to run consecutively. 2. The prosecution case in brief is that one Swapan Dolui, father of the victim lodged a written complaint on 10th November, 2013 before the I.C., Arambagh Police Station alleging that his daughter Soma Sahani was married to the accused Salman Sahani as per Hindu rites and custom about 11 years ago. After marriage Soma resided in her matrimonial home. Initially she was treated well by her husband and in-laws but subsequently, she was subjected to physical and mental torture by the accused person over petty family matters. In her wedlock with the accused Soma gave birth to one daughter and two sons. The further allegation was that the accused used to put pressure upon Soma to bring money from her father. The complainant fulfilled the demand of the accused as far as possible but the accused used to put pressure upon Soma to bring money from her father. Since soma refused to ask her father for further money, the accused person increased torture upon her. The accused person used to come home every night in intoxicated condition and assault Soma. Ultimately, being unable to bear the torture of the accused person, Soma attempted to commit suicide on 9th November, 2013 at 9.30 p.m. by pouring kerosene oil on her body and set it on fire. 3. On the basis of the written complaint, a criminal case, being Arambagh P.S. Case no. Ultimately, being unable to bear the torture of the accused person, Soma attempted to commit suicide on 9th November, 2013 at 9.30 p.m. by pouring kerosene oil on her body and set it on fire. 3. On the basis of the written complaint, a criminal case, being Arambagh P.S. Case no. 729 of 2013 dated 10th November, 2013 under Section 498A of the Indian Penal Code was started against the accused. Thereafter, on 29th November, 2013 Soma expired in Arambagh S.D. Hospital. Investigation was started and after completion of investigation, charge sheet was submitted under Sections 498A/306 of the Indian Penal Code against the accused person. On 8th July, 2014 the learned Additional Chief Judicial Magistrate, Arambagh committed the case to the court of the learned Additional Sessions Judge, Arambagh, Hooghly and on 29th August, 2014 charges were framed under Sections 498A/306 of the Indian Penal Code against the accused and the content of the said charge was read over and explained to the accused/appellant, who pleaded not guilty and claimed to be tried. 4. It appears from the record that the Trial Court held that the accused Salman Sahani was found guilty for committing offence under Sections 306/498A of the Indian Penal Code and accordingly, he was convicted under Section 235(2) of the Code of Criminal Procedure. 5. Learned advocate for the appellant submitted that the learned Trial Judge held the appellant to be guilty on the basis of circumstantial evidence adduced by the witnesses through which no absolute findings regarding commission of offence could be established. The evidence of the prosecution witnesses, being P.W.1 and P.W.2, father and mother of the deceased respectively stated the death as a result of burning due to stove burst and accidental and the Autopsy Surgeon could not give a definite opinion as to whether the death was suicidal, homicidal or accidental. He further submitted that the prosecution could not bring forth any evidence to prove the involvement of the accused to aid or instigate commission of suicide or any wilful conduct actuating the woman to commit suicide. In support of his submission he relied on a decision of the Apex Court in the case of Gurcharan Singh vs- State of Punjab reported in, (2017) 1 SCC(Cri) 439. In support of his submission he relied on a decision of the Apex Court in the case of Gurcharan Singh vs- State of Punjab reported in, (2017) 1 SCC(Cri) 439. He further submitted that in the instant case, before death there was dying declaration of the victim recorded by the doctor on the next day of the incident in presence of one staff nurse and one Police Officer, but the learned Trial Judge failed to appreciate that the deceased as claimed by the doctor had said to be put on fire on the day of recording of dying declaration, which indicates to unconscious mind of the deceased putting a big question on the reliability of the dying declaration itself. He further submitted that the First Information Report was written by some one else other than the signatory, but there was no endorsement to that effect nor was the scribe examined. P.W.1 who was the F.I.R. maker did not support the F.I.R. in his evidence before the learned Trial Court. Learned advocate for the appellant submitted that the accused was sentenced to undergo two sentences consecutively. He cited a decision of a larger Bench of the Supreme Court in the case of O.M. Cherian @ Thankachan vs- State of Kerala & Ors. reported in, (2015) 2 SCC 501 , wherein it was laid down that there was no conflict with Section 31 of the Code of Criminal Procedure with earlier judgment of the Apex Court in the case of Mohd. Akhtar Hussain vs- Collector of Customs, (1988) 4 SCC 183 . It was held in paragraph 21 thereof that "Section 31 of Cr.P.C. leaves full discretion with the court to order sentences for two or more offences at one trial to run concurrently, having regard to the nature of offences and attendant aggravating or mitigating circumstances." Therefore, the prosecution has measurably failed to prove the case beyond reasonable doubt. Thus, learned advocate for the appellant prayed that the appeal may be allowed by setting aside the order of conviction and sentence passed by the learned Trial Judge. 6. Thus, learned advocate for the appellant prayed that the appeal may be allowed by setting aside the order of conviction and sentence passed by the learned Trial Judge. 6. On the other hand, learned advocate for the State relying on the decision of the Gujarat High Court in the case of Jayantibhai Lalubhai Patel vs- the State of Gujarat reported in, (1992) CriLJ 2377, submitted that the First Information Report was a public document and the Court can take judicial notice of the same. P.W.1, father of the deceased deposed in his chief that the written complaint was drafted as per his instruction and it was read over and explained to him. The First Information Report was lodged on 10th November, 2013 after four hours of the incident. She further submitted that the victim gave statement before the doctor, P.W.10 in presence of Nurse, P.W.5 and the Investigating Officer, P.W.11 and one Sub-Inspector, Biswajit Bhattacharjee but the presence of Investigating Officer and the endorsement of Biswajit Chatterjee, S.I. were not challenged at the time of exhibiting the documents. She further submitted that dying declaration was not challenged before the learned Trial Judge. If any document is not challenged at the time of taking evidence, the point will not be taken further. In support of her submission, she cited a judgment of the Apex Court in the case of Malay Kumar Ganguly vs- Dr. Sukumar Mukherjee & Ors. reported in, (2009) 9 SCC 221 , particularly paragraph 40 thereof. On the same point she also cited another judgment of the Apex Court in the case of Bipin Shantilal Panchal vs- State of Gujarat & Anr. reported in, (2001) SCC(Cri) 417. She further submitted that at the time of recording statement the victim was conscious and she was in a position to give statement. Since the Sub-Inspector Biswajit Bhattacharjee put his signature in dying declaration, his presence was not required as per the said judgment. She also argued that the prosecution proved his case that there was a burn injury and the defence was trying to establish that due to stove burst the victim died. Therefore, the onus upon the defence to prove the story of stove burst. In this connection, she cited a decision of the Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar vs- State of Gujarat reported in, (1964) CriLJ 472, particularly paragraphs 5, 7 and 9 thereof. Therefore, the onus upon the defence to prove the story of stove burst. In this connection, she cited a decision of the Supreme Court in the case of Dahyabhai Chhaganbhai Thakkar vs- State of Gujarat reported in, (1964) CriLJ 472, particularly paragraphs 5, 7 and 9 thereof. Lastly, she submitted that the victim was subjected to regular beating by her husband and regular torture by her husband instigated her to commit suicide and therefore, the prosecution has proved the charge under Section 306 of the Indian Penal Code. Thus, she prayed for dismissal of the appeal. 7. Heard learned advocates for the parties and perused the impugned judgment. 8. In the instant case the prosecution examined as many as eleven witnesses to prove the charge of cruelty. 9. P.W.1, Swapan Dolui, the father of the victim as well as the complainant of this case stated that his daughter named Soma was married with Salman Sahani as per Hindu rites and custom and in the said marriage he gave Rs. 30,000/- in cash and two vory of gold ornaments. After marriage his daughter resided in her matrimonial home. His daughter and son in law used to live separately from his parents. She gave birth of two sons and one daughter. His daughter was not alive. She sustained burn injuries by burst of stove during cooking and she died in the hospital. He submitted a written complaint at Arambagh Police Station against his son-in-law Salman Sahani. He stated that he did not know the contents of the said written complaint. The written complaint was drafted as per his instruction and it was read over and explained to him. During cross-examination he stated that he did not know who drafted the written complaint. He signed the said in good faith and he did not know the contents of the written complaint. He signed the seizure list and inquest report as per direction of the Darogababu. He further stated that his daughter died due to accident. 10. P.W.2, Bharati Dolui, mother of the victim stated that her daughter was married with the accused. She identified the accused. She stated that after marriage her daughter Soma resided in her matrimonial home and the accused used to treat Soma properly. She further stated that Soma died due to bursting of stove while she was cooking. 10. P.W.2, Bharati Dolui, mother of the victim stated that her daughter was married with the accused. She identified the accused. She stated that after marriage her daughter Soma resided in her matrimonial home and the accused used to treat Soma properly. She further stated that Soma died due to bursting of stove while she was cooking. During cross- examination P.W.2 stated that she had no allegation against the accused. 11. P.W.3, Dipankar Das, neighbour of the complainant stated that he knew the complainant and his daughter Soma. He identified the accused as the husband of soma. He further stated that Soma used to reside in her matrimonial home after her marriage and she was treated well by her husband. He stated that Soma died due to bursting of stove in her matrimonial home. 12. P.W.4, Biswanath Roy, a resident of Arambagh stated that he knew the complainant and also knew Soma and the accused. He also stated that Soma was treated well by the accused. He stated that he heard that Soma had sustained burn injuries due to bursting of stove at the time of cooking. 13. P.W.5, Archana Kundu, who was a staff nurse of Arambagh S.D. hospital, stated that on 10th November, 2013 she was in the same post and on that date one patient named Soma was brought to the Arambagh S.D. hospital with burn injuries. She stated that Soma gave statement before the doctor in her presence and the same was recorded by the doctor. She identified the dying declaration of Soma recorded by doctor Subhasis Chatterjee. The dying declaration was marked as Ext.4. 14. P.W.6, Abhoy Pada Malik, next door neighbour of the accused stated that he did not know how the accused treated his wife because he remained outside his house the whole day in connection with his work. He also stated that Soma died due to burn injury, but he did not know how she got burnt. However, he stated that he used to often hear shouting from the house of the accused. He did not know whether Salman physically assaulted his wife. 15. P.W.7, Dr. Nirmalya Roy, Medical Officer of Arambagh S.D. hospital stated that on 29th November, 2013 he was posted as Superintendent, S.D. hospital, Arambagh and on that date he conducted post mortem of the dead body of Soma Sahani. He did not know whether Salman physically assaulted his wife. 15. P.W.7, Dr. Nirmalya Roy, Medical Officer of Arambagh S.D. hospital stated that on 29th November, 2013 he was posted as Superintendent, S.D. hospital, Arambagh and on that date he conducted post mortem of the dead body of Soma Sahani. The post mortem report was proved by the witness and marked as Ext.5. He stated that the deceased had 90% burn injury all over the body, except face, scalp and foot. He also stated that the death of Soma probably took place due to her burn injury to be confirmed after receiving the viscera report. During cross- examination P.W.7 stated that it was not possible for him to give final opinion regarding the cause of death. 16. P.W.8, Bhangi Sahani, father of the accused stated that his son (accused) and Soma used to live in the adjoining room. He also stated that the accused used to drink on occasions but the accused never assaulted his wife. He also stated that his daughter-in-law died due to bursting of stove. During cross-examination P.W.8 stated that police had seized a bottle of kerosene from his house and he signed as witness in the seizure list. P.W.8 also stated that his daughter-in-law died due to accidental bursting of stove. He also stated that the accused was not responsible for the death of Soma. 17. P.W.9, Sakal Sahani, mother of the accused stated that the accused treated his wife properly and she used to counsel her son not to quarrel with his wife. She also stated that her daughter-in-law died due to bursting of stove. During cross-examination P.W.9 stated that friction and quarrel used to take place some time due to want and poverty. 18. P.W.10, Subhasis Chatterjee, Medical Officer of Arambagh S.D. hospital stated that on 10th November, 2013 he was posted as Senior Medical Officer and he recorded dying declaration of one Soma Dolui (Sahani) in presence of staff nurse Archana Kundu and Police Officer Biswajit Bhattacharya. At that time patient was conscious and he recorded dying declaration of the patient in the words of the patient Soma Sahani. He also stated that he recorded the dying declaration of Soma in his own handwriting and it bears his signature. At that time patient was conscious and he recorded dying declaration of the patient in the words of the patient Soma Sahani. He also stated that he recorded the dying declaration of Soma in his own handwriting and it bears his signature. During cross-examination P.W.10 stated that it was a fact that Ext.4 did not bear any endorsement to the effect that the dying declaration was read over and explained to the patient. 19. P.W.11, Debasish Chatterjee, Investigating Officer of this case stated that during investigation he visited the place of occurrence, examined available witnesses and recorded their statements under Section 161 of the Code of Criminal Procedure. He also seized some articles, prepared rough sketch map of place of occurrence and arrested the accused. He also stated that Soma gave statement before him and it was recorded in presence of doctor and staff nurse. He also stated that he collected the injury report and the post mortem report from the hospital and sent viscera of the deceased to FSL for opinion. He further stated that he seized one plastic bottle containing some kerosene, half-burnt saree of the deceased and one partly burnt shawl. He also stated that seizure list dated 10th November, 2013 and 29th November, 2013 were both prepared by him and bears his signature. During cross-examination P.W.11 stated that Ext.4 did not contain any note to the effect that dying declaration was recorded as per statement of the patient. 20. On perusal of the evidence on record it appears that it was the specific case of the prosecution that cruelty and harassment was made by the accused person/appellant upon the victim Soma, for which she had to commit suicide in her in-law's house after eleven years from the date of her marriage. It appears from the dying declaration that the doctor had first put some preliminary questions to the victim in order to ascertain her mental condition. The victim stated her name and the name of her husband correctly. Thereafter, the doctor recorded her statement, which she had stated that every night her husband used to drink and to beat her and sent her out from the home. On the date of the incident the accused did the same thing and thereafter, the victim took fire from the lamp and burnt her body. 21. Thereafter, the doctor recorded her statement, which she had stated that every night her husband used to drink and to beat her and sent her out from the home. On the date of the incident the accused did the same thing and thereafter, the victim took fire from the lamp and burnt her body. 21. It is evident that the victim was subjected to cruelty by her husband everyday. The term 'cruelty' has been defined as any wilful conduct, which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. In the instant case, the parents of the deceased as well as the independent witnesses deposed that Soma sustained burn injury by accidentally bursting of stove while she was cooking, but in their statements under Section 161 of the Code of Criminal Procedure they stated otherwise. Moreover, in her dying declaration the victim stated that she poured kerosene oil on her body from oil lamp and set herself on fire. The doctor in his evidence before the Court stated that the deceased was conscious and was in a position to give dying declaration. The staff nurse in whose presence the dying declaration was recorded, deposed before the Court that the dying declaration was recorded by the doctor in her presence. Therefore, the learned Trial Judge rightly convicted the accused person for the offence punishable under Sections 498A/306 of the Indian Penal Code. Hence, I uphold the conviction and sentence of the appellant under Sections 498A/306 of the Indian Penal Code. 22. It is submitted on behalf of the appellant that the accused/appellant is in jail for more than four years. In view of the decision of the Hon'ble Supreme Court in the case of O.M. Cherian @ Thankachan vs- State of Kerala & Ors. (supra), I direct that both the sentences imposed upon the appellant shall run concurrently. 23. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon them in terms of Section 428 of the Code of Criminal Procedure. 24. Accordingly, the appeal is dismissed. 25. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 26. 24. Accordingly, the appeal is dismissed. 25. Copy of the judgment along with Lower Court Records be sent down to the trial court at once for necessary compliance. 26. Urgent Photostat certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.