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2019 DIGILAW 611 (CAL)

Ketab Ali v. State of West Bengal

2019-05-21

JAY SENGUPTA, MD.MUMTAZ KHAN

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JUDGMENT : Jay Sengupta, J. 1. This appeal is directed against the judgment and order of conviction dated 06.09.2006 and sentence dated 07.09.2006 passed by the Learned Additional Sessions Judge, Fast Track Court, Dinhata, Cooch Behar in Session Trial 1/Nov/2005: Sessions Case No. 09/2005, thereby convicting the three appellants under Sections 302, 498A read with Section 34 of the Penal Code and sentencing each of them to suffer life imprisonment and to pay a fine of Rs. 10,000/-, in default to suffer simple imprisonment for one year for the offence under Sections 302 read with Section 34 of the Penal Code and to suffer rigorous imprisonment for three years and to pay a fine of Rs. 3000/-, in default to suffer simple imprisonment for three months for the offence under Section 498A read with Section 34 of the Penal Code, both the sentences having to run concurrently. 2. On 10.01.2004 at about 13:15 hours PW 1 lodged a First Information Report with the Dinhata Police Station under Section 498A of the Penal Code. Subsequently, Section 302 of the Penal Code was added as the victim passed away. PW 1 alleged that his daughter Esmatara got married to the appellant no. 1 Ketab Ali about three and half years ago. The appellant no. 2 Kachiran Bewa was the mother-in-law and the appellant no. 3 Rabbina Khatun was the sister-in-law of his daughter. The victim had given birth to a female child who was two years old. Despite receiving dowry, the accused demanded more dowry from PW 1 and used to torture the victim both mentally as well as physically after making false complaints against her. They did not provide her sufficient food. Unable to bear such torture, the victim returned to his house about a year ago. She was sent back to her in-law’s house only after a ‘salish’. A few days ago PW 1 came to know from others that his daughter was admitted in a hospital with burn injuries. Oxygen was being given to her. 3. Investigation commenced. PW 15, a Deputy Magistrate, recorded a dying declaration of the victim lady in the hospital on 10.01.2004 at about 14.30 hours. PW 10, a nurse was a witness to the dying declaration. Oxygen was being given to her. 3. Investigation commenced. PW 15, a Deputy Magistrate, recorded a dying declaration of the victim lady in the hospital on 10.01.2004 at about 14.30 hours. PW 10, a nurse was a witness to the dying declaration. In her said dying declaration, the victim stated that 12/13 days ago at about 14.00 hours, her mother-in-law, unmarried sister-in-law and husband quarrelled with her and the husband assaulted her severely with a bamboo pole in the room. Then her husband poured kerosene oil on her and set her on fire. Several neighbours assembled and put out the fire on her body. The accused did not try to admit her in a hospital. Then she lost her senses. The victim lady died on 10.01.2004. PW 17, a Deputy Magistrate conducted an inquest over the dead-body of the victim lady on 11.01.2004 at about 10.30 hours. He found that the whole body was burnt and swollen from the chin and the neck to the feet and the toe on both the front as well as the back portions, except the head. The victim suffered about 85% burn injuries and the same was caused by fire. According to the father of the victim lady, his daughter was tortured by her husband and in-laws since marriage. According to the witnesses to the inquest, the victim lady was tortured and thereafter burnt. PW 21, the Investigating Officer also conducted an inquest over the dead-body and found severe burns. The body was totally wrapped up with bandages. According to the inquest witnesses, the victim was burnt by her husband and other in-laws. PW 18, the post-mortem doctor held an autopsy on the dead-body of the victim on 12.01.2004 at about 13.30 hours. According to him, death was caused due to the effects of burn injuries, which were ante-mortem in nature. After completion of investigation, a charge-sheet was submitted against the appellants. On 27.10.2005, charges were framed against the appellants under Section 498A read with Section 34 of the Penal Code and under Section 302 read with Section 34 of the Penal Code. 4. During trial the prosecution examined as many as twenty one witnesses to establish its case. The defence, on the other hand, examined two witnesses. 5. From a perusal of the evidence on record it appears PW 1 was the father of the victim/deceased. 4. During trial the prosecution examined as many as twenty one witnesses to establish its case. The defence, on the other hand, examined two witnesses. 5. From a perusal of the evidence on record it appears PW 1 was the father of the victim/deceased. He deposed about the torture meted out to the victim by the accused for more dowry and also because of the birth of a female child in the house. He lodged the First Information Report. The victim died later in the evening. In his cross-examination, he admitted that the victim spoke in the local language of Cooch Behar. The child was with the accused. PW 1 came to the hospital in the afternoon and found that the victim had suffered about 90% burn injuries on her body. But, she was able to speak. She made a verbal dying declaration to him implicating the appellant no. 1. But no one else was present at that time. He stated this fact to the scribe, but the latter did not write it down in the First Information Report. PW 2 was a neighbour of the appellant. The appellants used to stay together with the victim. He heard that the victim had accidentally caught fire. PW 2 was thereafter declared hostile. PW 3, another neighbour of the appellants, too turned hostile. He deposed about hearing the victim accidentally catching fire. PW 4 was the mother of the victim. She deposed about the torture inflicted by the accused upon the victim for dowry, the taking place of a ‘salish’ and the consequent return of the victim to the accused. She also stated about the assaults inflicted upon the victim. In the hospital the victim made a verbal dying declaration to her stating that the husband had assaulted her and that all the accused had set her on fire. In her cross, she stated that on the date of hospitalization, only the husband visited the victim. On the day of her visit, she did not see any oxygen pipe. She was not interrogated by the police. PW 5 was a neighbour of the de facto complainant. He deposed about hearing that the accused used to torture the victim for more dowry. In his cross, he could not remember whether he was examined by the police. It was recorded that his demeanour was very strange. PW 6 was a neighbour of the appellants. PW 5 was a neighbour of the de facto complainant. He deposed about hearing that the accused used to torture the victim for more dowry. In his cross, he could not remember whether he was examined by the police. It was recorded that his demeanour was very strange. PW 6 was a neighbour of the appellants. He was a post-occurrence witness and saw the victim burning. He doused the fire with a jute ‘bora’. He also saw an oven and some burnt ‘muri’. In his cross-examination, he stated about a verbal dying declaration made by the victim that she did not know how she caught fire. This witness was not declared hostile. PW 7, an Assistant Sub-Inspector of Police, stated that he had witnessed the inquest. He was a witness to the dying declaration given by the victim in the hospital. In his cross-examination, PW 7 stated that the dying declaration was delivered in Bengali language. He found no oxygen pipe in the room. PW 8 was a nurse working at the hospital. She was a witness to the inquest. PW 9 was the doctor who treated the victim from 31.12.2003 to 10.01.2004. The victim was referred on 28.12.2003. She had suffered 80% burn injuries on her body. In his cross-examination, he admitted that oxygen had to be given to the patient. He had described the condition of the patient as poor and the word ‘poor’ meant that the life was at stake. He did not venture to record a dying declaration. The victim was suffering from respiratory distress. PW 10 was a nurse. She was a witness to the dying declaration of the victim recorded by the Learned Magistrate. She also proved the signature of the doctor who indorsed about the normal mental condition of the victim as he was not available for examination due to his transfer. PW 11 had officiated the marriage between the couple. He deposed that there was a ‘salish’ held on two occasions as regards the disputes between the parties. In the cross-examination, he admitted that the victim used to speak in Cooch Behari language. PW 12 was a seizure list witness for the articles seized after the post-mortem examination of the dead-body. PW 13 was the police constable who carried the dead-body to the morgue. PW 14 was the scribe of the First Information Report. In the cross-examination, he admitted that the victim used to speak in Cooch Behari language. PW 12 was a seizure list witness for the articles seized after the post-mortem examination of the dead-body. PW 13 was the police constable who carried the dead-body to the morgue. PW 14 was the scribe of the First Information Report. He stated that he had written the First Information Report as per the direction of PW 1. PW 15 was a Deputy Magistrate who recorded the dying declaration of the victim. It was recorded in Bengali. He could nonetheless comprehend the dialect of Cooch Behar. PW 16 was a seizure list witness. PW 17 was a Deputy Magistrate who conducted the inquest over the dead-body. PW 18 was an anaesthetist and the post-mortem doctor in this case. He found several ante-mortem burn injuries on the dead-body. PW 19 was the medical officer who had certified about the mental alertness of the victim in the dying declaration recorded by PW 15. PW 20 was the Officer-in-Charge of the Police Station who recorded the formal First Information Report. PW 21 was the Investigating Officer of the case. He found 90% burns on the dead-body. He deposed that PW 4 was examined by him, but she did not tell about hearing any dying declaration from the victim. He was not present during recording of the dying declaration. The accused denied the allegations during his examination under Section 313 of the Code. The defence adduced two witnesses. Both of them claimed that they were the neighbours of the appellant and were post-occurrence witnesses. According to them, the victim did not implicate the appellants in her verbal dying declaration made before them. 6. Mr. Sekhar Kumar Basu, the Learned Senior Counsel appearing on behalf of the appellants submitted as follows. There was an inordinate delay in lodging the First Information Report. The dying declaration as described by PW 1 in Court was not mentioned in the First Information Report, which was lodged after the death of the victim. PW 2 was declared hostile. He was confronted with the statements recorded by the Investigating Officer, yet the Investigating Officer was not asked about the statements of PW 2 recorded by him nor were the said statements exhibited. Resultantly, the deposition of PW 2 remains a substantive evidence adduced against the prosecution. PW 2 was declared hostile. He was confronted with the statements recorded by the Investigating Officer, yet the Investigating Officer was not asked about the statements of PW 2 recorded by him nor were the said statements exhibited. Resultantly, the deposition of PW 2 remains a substantive evidence adduced against the prosecution. PW 4, the mother of Esmatara was an out and out unreliable witness. She introduced a dying declaration which was substantially different from the one spoken of by PW 1, her husband. PW 1 did not depose to the effect that his wife visited the hospital on several dates and stayed there. That she never visited the hospital was evident from the fact that she did not observe what her husband noticed with regard to treatment provided to her daughter at the hospital i.e., providing oxygen to her daughter in course of treatment. Such an important witness, as per her claim, was not interrogated by the Investigating Officer though it was suggested by the defence that she was indeed examined by the Investigating Officer. PW 5, as per the observation of the Learned Trial Judge, was lying in Court under oath. PW 6 spoke against the prosecution. He was not declared hostile. PW 6 emphatically deposed about the victim suffering accidental burn injuries, as stated by the victim herself. PW 6 along with DWs 1 and 2 took Esmatara to hospital. He further stated that the appellant no. 1 was not in the house when the incident took place. So far as the dying declaration was concerned, the evidence on record was of two kinds i.e., the evidence indicating that the victim sustained burn injuries while preparing food in the kitchen (vide PW 6, who was not declared hostile) and the evidence of PW 7, PW 10 and PW 15 (i.e., the ASI of the Dinhata Police Station at the relevant point of time, the staff nurse at the Dinhata SD Hospital and the Deputy Magistrate attached to the SDO Office, Dinhata, respectively) with regard to the dying declaration made by the victim on 10.01.2004. The conjoint effect of the evidence of these witnesses has to be assessed on the anvil of the testimony of PW 9 Dr. S. Roy, the medical officer attached to the Dinhata Sub-Divisional Hospital. The conjoint effect of the evidence of these witnesses has to be assessed on the anvil of the testimony of PW 9 Dr. S. Roy, the medical officer attached to the Dinhata Sub-Divisional Hospital. PW 9 examined and treated the victim from 31.01.2003 (the date of her admission in the hospital) till she breathed her last on 10.01.2004. The condition of the patient, during his treatment from the evening of 31.12.2003 to 10.01.2004 was mentioned as ‘poor’. He did not venture to record the dying declaration of this patient during that period under his treatment. As per PW 11, the victim used to speak in local dialect, i.e., Cooch Behari language. So far as PW 15, the Deputy Magistrate was concerned, he could comprehend local dialect of Cooch Behar partly. The statement of the victim was recorded in plain Bengali language, but whether she spoke in ‘Sadhu’ or ‘Chalit’ or any other form of Bengali was not mentioned in this document. PW 6 was amply corroborated by DW 1 and DW 2. In the cross-examination of these two witnesses, there is nothing to indicate that they cooked up a defence case to rebut the prosecution’s claim of homicidal death of the victim. Reliance was placed on Raja Ram vs. State of Rajasthan, 2005 SCC (Cri) 1050 on the point that if a prosecution witness was not declared hostile in spite of not supporting the prosecution case, his evidence will bind the prosecution if the same was relied upon by the defence. 7. Mr. Navanil De, the learned Advocate appearing on behalf of the State, submitted as follows. The prosecution case was based primarily on the dying declaration of the victim/deceased. The incident took place within 7 years of marriage of the couple. The parents tried their best to save the injured daughter. This might have caused some delay in lodging the First Information Report. The hospital authorities intimated the police. If the police did not take any action, the de facto complainant could not be blamed for the same. Nevertheless, the dying declaration was recorded by a Magistrate in presence of two witnesses. A doctor appended a certificate about the mental alertness of the patient. As such, the said recording ought to be believed. Furthermore, there is no reason for the victim to lie about the cause of her death. Nevertheless, the dying declaration was recorded by a Magistrate in presence of two witnesses. A doctor appended a certificate about the mental alertness of the patient. As such, the said recording ought to be believed. Furthermore, there is no reason for the victim to lie about the cause of her death. It is true that the victim had suffered severe injuries and her condition was poor. But she was being treated in a hospital and the drugs applied might have improved her health, at least so as to able to make a dying declaration. In view of the same, one has to render the evidence adduced by PW 6 and DWs 1 and 2 as untrustworthy. Moreover, they were close neighbours of the appellant. Besides, the appellants could not explain the circumstances properly about how the victim died in their house by sustaining such severe burn injuries. Although the appellant no. 1 was the principal accused, but according to the dying declaration, the other accused/appellants gave implicit consent to the commission of the crime by not trying to save the victim. 8. We heard the submissions of the Learned Advocates appearing on behalf of the parties and carefully perused the evidence and other materials on record in order to find out about the correctness and the legality of the judgment and order of conviction and sentence. Delay in lodging the First Information Report: 9. It appears from the admission ticket of the victim at the Sub Divisional Hospital, Dinhata, Cooch Behar that after she suffered burn injuries, she was admitted in the said hospital on 27.12.2003 at about 17.55 hours. In the first information itself, PW 1, the father of the victim and the de facto complainant of the case stated that it was only before a few days that he was informed by some others that his daughter was admitted in a hospital after suffering severe burns. Not intimating about such precarious condition of the victim by the appellants is itself a circumstance that would go against them. Be that as it may, the de facto complainant and his wife, after learning about the incident, became busy with the victim’s treatment in the hospital. This seems to have caused some delay in the lodging the First Information Report. Therefore, the purported delay in lodging of the First Information Report can be explained from the attending circumstances. Be that as it may, the de facto complainant and his wife, after learning about the incident, became busy with the victim’s treatment in the hospital. This seems to have caused some delay in the lodging the First Information Report. Therefore, the purported delay in lodging of the First Information Report can be explained from the attending circumstances. No adverse presumption can be drawn in respect of such delay. Non-mentioning of the dying declaration in the First Information Report: 10. It is quite clear from the records that the victim’s death took place after the lodging of the First Information Report. Otherwise, Section 302 would not be added subsequently in the First Information Report. While the First Information Report was lodged at 13.15 hours, a written dying declaration was recorded by the Learned Deputy Magistrate on the same day, but at 14.30 hours. So there is no question of this dying declaration finding a mention in the First Information Report. So far as the verbal dying declaration made by the victim to his father in the absence of anyone else is concerned, PW 1 clearly deposed that although he had mentioned about this to PW 14, the scribe of the First Information Report, yet the latter failed to incorporate the same in the said First Information Report. This is not much of an issue, especially as a more important dying declaration being Exhibit 15 was also recorded in this case. Neighbours PWs 2 and 3 turned hostile: 11. Although PW 2, a neighbour of the appellant, turned hostile, he did admit that the appellant stayed together with the victim. The contention of the appellants that since the Investigating Officer was not confronted with the evidence of PW 2, the challenge to his evidence was not complete and as such, such depositions would help the defence is also not of much significance as PWs 2 and 3 only gave out hearsay accounts that the victim had accidentally caught fire. PW 6 not declared hostile and the testimonies of DWs 1 and 2 : 12. PW 6 was a neighbour of the appellant. Accordingly to him, he saw the victim burning, he doused the fire with a jute ‘bora’ and he also saw an oven and some burnt ‘muri’ there. PW 6 not declared hostile and the testimonies of DWs 1 and 2 : 12. PW 6 was a neighbour of the appellant. Accordingly to him, he saw the victim burning, he doused the fire with a jute ‘bora’ and he also saw an oven and some burnt ‘muri’ there. In his cross-examination, he stated that immediately after the incident the victim told her that she did not know how she caught fire. Quite significantly, this witness was not declared hostile. DW 1, a neighbour of the appellant, deposed that he saw PW 6 taking out the victim and upon asking, the victim said that she caught fire while cooking ‘muri’. DW 2, on the other hand, repeated PW 6’s version that the victim said she did not know how she caught fire. First, there is a clear contradiction between the testimonies of PW 6 and DW 2 on one hand and the DW 1 on the other. Although the three were supposed to have been there with the victim immediately after the occurrence for quite sometime, these witnesses gave out different versions of what the victim stated to them as have been referred to above. Secondly, although PW 6 claimed that he was an immediate neighbour of the appellant, in his cross-examination DW 1 stated that PW 6’s house was after about three bighas of land from the house of the appellant. DW 1 also admitted that his own house was intervened by two bighas of land with the house of the appellant. Therefore, the claims of PW 6 and DW 1 that they came rushing after they heard the victim’s screams are themselves suspect. It is difficult to disbelieve a dying declaration recorded by a Magistrate in the presence of a doctor and independent witnesses by relying on the evidence of such neighbours of the appellant who gave out inconsistent accounts of what the victim stated to them. Dying declaration before the Deputy Magistrate: 13. The victim made a dying declaration which was recorded by PW 15, a Deputy Magistrate in presence of independent witnesses PW 7 and PW 10. PW 19, doctor appended a certificate about the mental alertness of the patient. The issue of Cooch Behari dialect was clearly explained by relevant witnesses. Dying declaration before the Deputy Magistrate: 13. The victim made a dying declaration which was recorded by PW 15, a Deputy Magistrate in presence of independent witnesses PW 7 and PW 10. PW 19, doctor appended a certificate about the mental alertness of the patient. The issue of Cooch Behari dialect was clearly explained by relevant witnesses. PW 15 was quite aware of the Cooch Behari dialect and there is no clinching evidence to show that the victim did not speak Bengali. No cogent reason has been cited to probablise a theory that the victim might lie about the cause of her death. Although contrary versions were presented by PW 6 and DWs 1 and 2, who were the neighbours of the appellant, the same were found to be inconsistent. We do not find any reason to disbelieve the dying declaration made by the victim before the Deputy Magistrate. Medical evidence: 14. PW 9 who had treated the victim from 31.12.2003 to 10.01.2004 did find the condition of the victim to be poor. But, he gave no evidence to suggest that the victim could not have made a dying declaration at any other point when he was not present. As in several other cases of severe burns, the victim remained hospitalized and was given treatment. But she finally succumbed to the said burn injuries. PW 18 was the post-mortem doctor in this case. He found several ante-mortem burn injuries on the dead-body. Thus, the medical evidence adduced in this case supports the prosecution case in good measure. Evidence on Section 498A, Penal Code: 15. As regards the offence under Section 498A read with Section 34 of the Penal Code, PWs 1 and 2 clearly deposed about the torture inflicted on the victim by the appellants both for dowry as well as for the birth of a female child. It was of such a magnitude that the victim had to return home. It was only after a ‘salish’ that she was sent back to her matrimonial home. The roles played the appellants in the victim’s murder: 16. In her dying declaration before the Deputy Magistrate, the victim clearly stated that the three appellants had quarrelled with her and thereafter the husband assaulted her severely with a bamboo pole. Then the husband poured kerosene oil on the victim and set her on fire. When she started screaming, the neighbours assembled. In her dying declaration before the Deputy Magistrate, the victim clearly stated that the three appellants had quarrelled with her and thereafter the husband assaulted her severely with a bamboo pole. Then the husband poured kerosene oil on the victim and set her on fire. When she started screaming, the neighbours assembled. But the present appellants did not even try to admit the victim in hospital. Thereafter, the victim lost her senses. Here, the prime allegations were levelled against the appellant no. 1/husband. It appears that the two other appellants only quarrelled with her. Besides, the appellants did not even try to take the victim to a hospital. But, there is no evidence that an earlier removal to the hospital might have given her a better chance to recover. This dying declaration does not clearly implicate the appellant nos. 2 and 3 in the commission of the offence of murder. The said dying declaration finds support in the verbal dying declaration purportedly made to PW 1 only implicating the appellant no. 1, although the same did not find a mention in the First Information Report. We are not inclined to place reliance on PW 4’s account of another verbal dying declaration made to her implicating all the appellants as, among other things, she was not examined by the Investigating Officer and her evidence was not consistent with that of her husband PW 1, especially about what went on while the victim was admitted in the hospital. 17. The dying declaration made by the victim lady before a Learned Deputy Magistrate in presence of independent witnesses and having a doctor’s certificate appended about her mental alertness, the supportive medical evidence and the evidence of the post-occurrence witnesses like the victim’s parents unerringly point towards the guilt of the appellant no. 1 for the offence of murder. On the other hand, as the said dying declaration did not clearly implicate the appellant nos. 2 and 3, they are entitled to a benefit of doubt. With regard to the offence under Sections 498A, 34 of the Penal Code, there is sufficient evidence to convict all the appellants. 18. As regards the appellant no. 3, the sister-in-law of the victim lady, we had sought a report from the Learned Trial Court about the age of the victim girl as on the date of occurrence. With regard to the offence under Sections 498A, 34 of the Penal Code, there is sufficient evidence to convict all the appellants. 18. As regards the appellant no. 3, the sister-in-law of the victim lady, we had sought a report from the Learned Trial Court about the age of the victim girl as on the date of occurrence. According to the report submitted by the Learned Trial Court, it was held that the appellant no. 3 was a juvenile on the date of occurrence. We accept the conclusion arrived at by the learned Court on the issue of juvenility of the appellant no. 3 Rabbina Khatun. As such, the appellant no. 3 could not have been tried along with the other appellants. Presently, an order to keep the said appellant in a juvenile home also cannot be passed against her as she has attained majority. 19. In view of the decision of the Hon’ble Apex Court in the case of Upendra Kumar vs. State of Bihar, (2005) 3 SCC 592 , we retain the conviction as against the appellant no. 3 Rabbina Khatun under Section 498A read with Section 34 of the Penal Code, but set aside the sentence imposed upon her. We set aside her conviction and sentence under Section 302 read with Section 34 of the Penal Code. Accordingly, her appeal is allowed to this extent. In respect of the appellant no. 2 Kachiran Bewa, we set aside the conviction and sentence imposed on her under Section 302 read with Section 34 of the Penal Code, but retain the conviction and sentence imposed under Section 498A read with Section 34 of the Penal Code. For her, the appeal is partly allowed. If on bail, she shall surrender before the Learned Trial Court to suffer the rest of the sentence, if the same has not been suffered yet. As regards the appellant no. 1, his appeal is dismissed, the conviction and sentence under Section 498A read with Section 34 of the Penal Code are upheld and the conviction awarded for the offence of murder is altered to one under Section 302 of the Penal Code simpliciter while the sentence imposed on him for the offence of murder is retained. 20. The appeal is disposed of with the above observations. 21. 20. The appeal is disposed of with the above observations. 21. A copy of the judgment along with the Lower Court records shall be sent down to the learned Trial Court forthwith by a Special Messenger for information and necessary action. 22. Urgent photostat certified copies of this judgment may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities.