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2019 DIGILAW 62 (CAL)

Anna Das Biswas v. State Of West Bengal

2019-01-14

JOYMALYA BAGCHI, RAVI KRISHAN KAPUR

body2019
JUDGMENT : JOYMALYA BAGCHI, J. 1. The appeal is directed against the judgment and order dated 30.06.2011 passed by the learned Judge Special Cum-Additional Sessions Judge, Cooch Behar in S.T. no. 4A(2) of 2003 arising out of Sessions Case No.128/2002 convicting the appellant for commission of offence punishable under Sections 498(A)/306 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for ten years and to pay a fine of Rs10,000/- in default to suffer imprisonment one year more for the offence punishable under Section 306 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years and to pay a fine of Rs.5,000/- in default to suffer further imprisonment for six months for the offence punishable under Section 498(A) of the Indian Penal Code, both the sentences run concurrently. 2. Prosecution case, as alleged, against the appellant and co-accused persons is to the effect that the victim was married to the appellant two years prior to the incident. After the marriage, she was subjected to mental and physical torture by the appellant and other in-laws over demands of dowry. On 22.03.98 at around 10 A.M. the appellant at the instigation of other in-laws poured kerosene oil on the body of the victim and set her on fire. She was shifted to Jalpaiguri Sadar Hospital. Over the incident, written complainant was lodged by P.W.1, father of the victim against the appellant and other in-laws, namely, Dinawari Biswas (mother-in-law), Smt. Sarani Biswas (sister-in-law) and Shantia Biswas (husband of the sister-in-law) being Haldiabari P.S. Case No.19.98 dated 23.03.98 under Section 498(A)/307/109 of the Indian Penal Code. In the hospital the dying declaration of the victim was recorded by P.W.12, Sub-divisional Officer. Victim died on 26.03.98. In conclusion of investigation, charge sheet was filed in the instant case under Sections 498(A)/304B/109 of the Indian Penal Code against the appellant and other in-laws. 3. The case was committed to the court of sessions and transferred to the court of learned Judge Special Cum-Additional Sessions Judge, Cooch Behar for trial and disposal. 4. Charge was framed under sections 498A/304B IPC. The accused persons pleaded not guilty and claimed to be tried. 5. In the course of trial, the prosecution examined 15 witnesses to establish its case and exhibited a number of documents. 6. The defence of the appellant and other accused persons was one of innocence and false implication. 4. Charge was framed under sections 498A/304B IPC. The accused persons pleaded not guilty and claimed to be tried. 5. In the course of trial, the prosecution examined 15 witnesses to establish its case and exhibited a number of documents. 6. The defence of the appellant and other accused persons was one of innocence and false implication. 7. In conclusion of trial, the trial court by the impugned judgment and order dated 30.06.11 convicted and sentenced the appellant, as aforesaid. By the selfsame judgment and order, the co-accused persons, namely, Dinawari Biswas (mother-in-law), Smt. Sarani Biswas (sister-in-law) and Shantia Biswas (husband of the sister-in-law) were acquitted of the charges levelled against them. 8. Mr. Sengupta, appearing for the appellant argued that there is no evidence that the appellant had abetted the suicide of the victim. Prosecution case as narrated in the first information report was given a complete go by in the purported dying declaration of the victim. There is no allegation of torture for or in connection with dowry in the dying declaration. Evidence on record does not satisfy the ingredients of the offence punishable under section 498A of the IPC. Original dying declaration was not produced in court. Doctor who gave the certificate of fitness of the victim has not been examined. Hence, the dying declaration ought not to have been relied upon. Accordingly, the appellant is liable to be acquitted. 9. Mr. Ahmed, learned counsel appearing on behalf of the State argued that the dying declaration of the victim was recorded by the Sub-divisional Officer, Jalpaiguri, Sadar. Photocopy of the dying declaration duly attested by the witness has been exhibited as secondary evidence since the original was untraceable. P.W.12 enquired with regard to the fitness of the victim from the treating doctor who endorsed his satisfaction in the dying declaration in her presence. Hence all the pre-requisites for recording dying declaration were duly satisfied. From the dying declaration it appears that the appellant had an illicit relation with one Laxmi and over such issue there was an altercation between him and the victim. He poured kerosene oil on the body of the victim and tried to set her on fire. Due to such instigation the victim set herself on fire. Other evidence on record corroborate the dying declaration in all material particulars. Hence, the appeal is liable to be dismissed. 10. He poured kerosene oil on the body of the victim and tried to set her on fire. Due to such instigation the victim set herself on fire. Other evidence on record corroborate the dying declaration in all material particulars. Hence, the appeal is liable to be dismissed. 10. Prosecution evidence in the instant case is based on the deposition of the relation of the victim being P.W.1 (father of the victim, an informant), P.W.2 (mother of the victim), & P.W.8 (uncle of the victim). 11. P.W.1, Jharia Das deposed the victim was married to the appellant two years prior to the incident. The incident occurred in 1998. The appellant had an illicit relation with another girl. Victim was physically assaulted by the appellant when she raised protest over such issue. Appellant also demanded money from the victim. As he was unable to meet such demands, victim was assaulted by the appellant and other in-laws. On the date of occurrence one Rabin Saha, a neighbour from the matrimonial home of the victim informed him that the victim suffered burn injury. Rabin Saha admitted the victim at Jalpaiguir District Hospital. On getting information, P.W. 1 rushed to his daughter. His daughter was in her senses and was talking. She stated that her husband poured kerosene oil on her body and set her on fire. She died at hospital after 4/5 days. He lodged complaint at Haldibari P.S. He put his LTI on the complaint. 12. In cross-examination, he stated that six months prior to the occurrence his daughter had given birth to a child. Unfortunately, the baby died after her birth. His daughter used to lament the loss of her baby. 13. P.W.2, Kanan Das is the mother of the victim and has corroborated the version of P.W.1. 14. In cross-examination, she stated that she had not been interrogated by the investigating agency. 15. P.W.8, Ramesh Roy, relation of the victim who has corroborated the evidence of the aforesaid witnesses. 16. P.W.3, Tamjuddin & P.W.4, Dhiren Roy are the neighbours of P.W.1. Both of them deposed that victim was set on fire at her matrimonial home by her husband and other accused persons. 17. P.W.5, Rabindra Nath Saha & P.W.6, Gautam Dutta have been declared hostile. 18. P.W.5 deposed that on the date of occurrence at 11 A.M./12 noon he heard a hue and cry. Both of them deposed that victim was set on fire at her matrimonial home by her husband and other accused persons. 17. P.W.5, Rabindra Nath Saha & P.W.6, Gautam Dutta have been declared hostile. 18. P.W.5 deposed that on the date of occurrence at 11 A.M./12 noon he heard a hue and cry. He came out from the house and found the victim was lying in front of a public well and her wearing apparels were being changed by local people. She had severe burn injuries on her person. She was taken to Haldibari hospital and thereafter shifted to Jalpaiguri hospital. She told him to inform her parents. Accordingly, he informed her father (P.W.1). 19. P.W 6 claimed that the victim had suffered burn injuries at her matrimonial home. 20. P.W. 7, Goutam Saha was a witness to seizure of burnt cloths from the house of the appellant. He signed on the seizure list. He deposed that the victim had suffered burn injuries at her matrimonial home. 21. P.W 12 was the sub-divisional officer of Jalpaiguri Sadar at the time of the incident. Upon receipt of requisition she came to the hospital and recorded dying declaration of the victim (Ext. 6). Prior to recording the dying declaration, she asked the attending doctor whether the victim was physically and mentally fit and conscious to make statement. Doctor replied in the affirmative and appended a note in the dying declaration. Thereafter, she proceeded to record the dying declaration. She took the LTI of the patient on the declaration. She proved the carbon copy of the original document duly attested by her as the original was untraceable. The said document was admitted as secondary evidence in terms of section 65 of the Evidence Act. 22. P.W 13 was the autopsy doctor. He proved the post mortem report and deposed that the victim had died due to shock and hemorrhage as a result of burn injury, ante mortem in nature. 23. P.W 14 was the scribe of the FIR lodged by P.W 1 and P.W 15 held inquest over the dead body of the victim after her death on 26.3.1998. He proved the inquest report (Ext 9). P.Ws 9, 10 and 11 are the investigating officers in the instant case. 24. 23. P.W 14 was the scribe of the FIR lodged by P.W 1 and P.W 15 held inquest over the dead body of the victim after her death on 26.3.1998. He proved the inquest report (Ext 9). P.Ws 9, 10 and 11 are the investigating officers in the instant case. 24. From the evidence on record, I find it has been proved beyond reasonable doubt that the victim was married to the appellant and had suffered burn injuries at her matrimonial home on 22.3.1998. While P.Ws 1, 2, 3, 4 and 8 claimed that the victim had told them in the hospital that she had been set on fire by the appellant and other inlaws, in the written dying declaration (Ext. 6) recorded by P.W 12 she stated that there was an altercation between herself and the appellant over the issue of illicit relation between the appellant and one lady, namely Lakhsmi. In the course of altercation the appellant had doused her in kerosene oil and tried to set her on fire. At that time, she herself set her on fire. In the face of the written dying declaration recorded by a responsible public servant, that is, sub-divisional officer, the trial judge did not rely on the oral dying declaration of the victim as narrated by her relations, namely, P.Ws 1, 2, & 8 and other witnesses, P.W 3 and 4. Such analysis of evidence on the part of the trial judge, in my considered opinion, is just and reasonable and does not call for interference. 25. However, learned counsel for the appellant has seriously criticised the written dying declaration on a number of scores. It is argued that the original document was not produced in court and a carbon copy was illegally admitted into evidence. The said copy was attested on 25.3.1998 although the dying declaration had been recorded three days ago on 22.3.1998. It is also submitted that the doctor who treated the patient and endorsed the certificate has not been examined. 26. I have given anxious consideration to the aforesaid objections raised on behalf of the appellant. Objection with regard to admissibility of the attested photocopy of the dying declaration is of little substance. It has come on record that the original dying declaration kept in the office of the sub-divisional officer, Jalpaiguri was not traceable in the said office. 26. I have given anxious consideration to the aforesaid objections raised on behalf of the appellant. Objection with regard to admissibility of the attested photocopy of the dying declaration is of little substance. It has come on record that the original dying declaration kept in the office of the sub-divisional officer, Jalpaiguri was not traceable in the said office. Hence, the attested photocopy of the dying declaration was produced in court and correctly treated as secondary evidence in terms section 65 of the Evidence Act. It has also been argued that the attestation of the photocopy was belatedly made on 25.3.1998 although the dying declaration was recorded on 22.3.1998. I have gone through the evidence of P.W 1 in extenso. No challenge has been thrown to the presence of P.W 12 at the hospital on 22.3.1998 when she recorded the dying declaration. After recording the dying declaration, a photocopy of the said document was prepared in her office and the same was duly attested by her which is dated 25.3.1998. P.W. 12 handed over the attested photocopy of the dying declaration to. I.O. and the original was kept on record. At the time of trial (which was held in 2010, after about 12 years) the original document was untraceable and hence, the duly attested photocopy was accepted as secondary evidence. The procedure adopted by P.W 12 is neither unnatural nor opposed to normal human conduct. Attestation of the photocopy of the dying declaration after two days does not impinge on the reliability and authenticity of the document which was recorded by P.W 12 in the course of discharge of official duties at the hospital on 22.3.1998. Finally, it has been argued that the attending doctor who gave certificate of fitness has not been examined. Failure to examine the attending doctor in the facts of the instant case does not affect its credibility. P.W 12 in her deposition categorically stated she had enquired of the attending doctor with regard to the consciousness and the mental fitness of the victim prior to recording her statement. The attending doctor gave his affirmation and duly made an endorsement in the presence of the said witness. Hence, the endorsement of the treating doctor which was made in the presence of P.W 12 has been duly proved by her. The attending doctor gave his affirmation and duly made an endorsement in the presence of the said witness. Hence, the endorsement of the treating doctor which was made in the presence of P.W 12 has been duly proved by her. In these circumstances, I am of the opinion prosecution has been able to prove that the written dying declaration was duly recorded by the sub-divisional officer, P.W 12 after the certificate of fitness with regard to the consciousness and the capacity of the victim to make such statement was duly endorsed by the treating doctor in her presence. All the formalities and requisites for recording a valid dying declaration are satisfied. Perusal of the dying declaration also gives an impression that the victim had narrated the incident in an honest and bona fide manner. She did not make all her in laws responsible for her misfortune. She admitted that she had herself set her on fire and not her husband. The manner in which the dying declaration (Ext 6) was recorded in the instant case and its tenor inspires confidence that it is an honest and truthful rendition of the incident resulting in death of the victim. There was a quarrel between the couple over an illicit relation between the appellant and another lady. In the course of quarrel the appellant tried to set her on fire by dousing her in kerosene oil. Due to such conduct on the part of the appellant, the victim instigated to self immolate herself. Evidence has also come on record that over such issue the appellant had subjecting the victim to mental and physical torture. The aforesaid factual backdrop clearly shows the intention of the appellant to incite the victim to kill herself. 27. I am unwilling to accept the suggestion made on the part of the appellant that the victim may have committed suicide as she was depressed due to the untimely death of her child in the light of the clear and unequivocal motive disclosed by the her in the dying declaration. I find no substance in such submission advanced by the appellant. In these circumstances, I am of the considered opinion that the appellant had subjected the victim to mental and physical torture over an illicit relationship between himself and another lady. He tried to kill her and under such extreme circumstances the victim was induced to commit suicide. I find no substance in such submission advanced by the appellant. In these circumstances, I am of the considered opinion that the appellant had subjected the victim to mental and physical torture over an illicit relationship between himself and another lady. He tried to kill her and under such extreme circumstances the victim was induced to commit suicide. Hence, I am inclined to uphold the conviction recorded against the appellant on the aforesaid counts. 28. Coming to the issue of sentence, while upholding the sentence imposed on the appellant for the charge under section 498A IPC, I modify the maximum sentence imposed on the appellant for the charge under section 306 IPC and direct that he shall suffer rigorous imprisonment for eight years and to pay a fine of Rs.10,000/- in default to suffer imprisonment for further term of one year for committing offence under section 306 IPC. 29. With the aforesaid modification as to sentence, the appeal is disposed of. 30. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure. 31. Copy of the judgment along with L.C.R. be sent down to the trial court at once. 32. Urgent Photostat Certified copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities. I agree.