Asutosh Das and Others vs State of West Bengal

This appeal is against a judgment and order dated 5th May, 2008 and an order of sentence dated 6th May, 2008 passed by the Additional Sessions Judge, 2nd Court, Jalpaiguri in Sessions Trial No. 32 of 2003 arising out of Sessions Case No. 276 of 2000, whereby the appellants Asutosh Das and Jyotsna Das have been found guilty and convicted of offence punishable under Sections 498A /302 /34 of the Indian Penal Code and sentenced inter alia to suffer imprisonment for life for offence under Section 302 of the Indian Penal Code, in addition to fine of Rs. 5,000/- and rigorous imprisonment for 3 years in addition to fine of Rs. 5,000/- for offence punishable under Section 498A of the Indian Penal Code. It is the case of the prosecution that the deceased married the accused appellant No. 1 on 12th February, 1996. Ever since her marriage, the deceased was subjected by her husband being the appellant No. 1, her mother-in-law being the appellant No. 2 and others to physical torture because of her inability to meet their dowry demands. According to the prosecution, the physical torture on the deceased increased gradually and on the morning of 9th August, 1996, i.e. within 6 months of marriage, she was set on fire by her mother-in-law (appellant No. 2) and others including the appellant No. 1 being her husband.

The father of the deceased, Sasadhar Chanda lodged a complaint in writing with the Inspector-in-Charge, Kotwali Police Station stating that the deceased had got married to the appellant No. 1 on 12th February (28th day of Magh) in the year 1996. Since then, the deceased had been tortured by her in-laws for dowry. On 9th August, the victim was set on fire by the persons named in the said complaint in writing including the appellants herein.

Pursuant to the aforesaid FIR, Kotwali Police Station Case No. 307 of 1996 dated 9th August, 1996 was started inter alia against the appellants under Sections 498A /326 /307 of the Indian Penal Code read with Sections 3 and 4 of the Dowry Prohibition Act. After completion of investigation, the Police submitted charge-sheet against the appellant No. 1 being the husband of the deceased, the appellant No. 2, being the mother-in-law of the deceased and Santosh Das, being the father-in-law of the deceased. It appears that the father-in-law of the deceased, Santosh Das died before commencement of trial. The two appellants pleaded not guilty to the charges framed against them and faced trial. There were no eye-witnesses to the incident. The conviction is based on dying declarations made by the deceased, one recorded by the Investigating Officer in the presence of the attending doctor, T.K. Choudhury who deposed as prosecution witness No. 15 and another recorded by the then Executive Magistrate, Shri M.S. Kar in his own handwriting.

The prosecution examined fifteen witnesses. No witnesses were however examined on behalf of the defence. The appellants were, however examined under Section 313 of the Criminal Procedure Code.

Unfortunately, the father of the deceased being the de facto complainant, who deposed as PW 1, made a complete volte face and deposed that he did not know how his daughter, that is, the deceased, spent her matrimonial life. He stated that he had, lodged the written complaint under his own signature. In cross-examination, however, he denied having stated that his daughter had been tortured after marriage. His oral evidence is inconsistent with his written complaint. It is apparent that this witness had been influenced and/or won over. He even denied knowledge of whether his daughter was pregnant at the time of her death. The postmortem report shows that the deceased was pregnant. The Prosecution Witness No. 7, the mother of the deceased, had to be declared hostile. She deposed that her daughter died 8 years ago after being burnt at her matrimonial home. She, however, denied knowledge of whether the relationship of her deceased daughter with the accused appellants was cordial or bad. The Prosecution Witness No. 9, the younger sister of the deceased also denied knowledge of the quality of the marital life of the deceased.

Nothing much has emerged from the evidence of the Prosecution Witness Nos. 2, 3, 4, 5, 6, 8, 10, 11 and 12. The Prosecution Witness No. 2 deposed that the marital life of the appellant No. 1 was happy. He further deposed that he did not know of any incident prior to the death of the deceased and even asserted that he had not been examined by the Investigating Officer. This witness was declared hostile. The Prosecution Witness No. 3, a neighbour denied knowledge of the relationship between the appellant No. 1 and his deceased wife. The Prosecution Witness No. 4, only a signatory to the seizure list, deposed that he was not present when the incident took place. He deposed that he had gone to the house of Asutosh Das after arrival of the Police and on the request of the police. The Prosecution Witness No. 5, also a signatory to the seizure list, who identified his signature on the seizure list, deposed that he did not know the cause of death of the appellant No. 1''s wife. The Prosecution Witness No. 6, Santa Roy was only tendered for cross-examination but her cross-examination was declined.

The evidence of the Prosecution Witness No. 8 is also not of much relevance. He only stated that he had come to learn that his friend''s daughter had died in the hospital after setting fire on her body. He claimed ignorance of the marital relationship between the deceased and the appellants.

The Prosecution Witness No. 10 who had been posted as Inspector-in-Charge of the Kotwali Police Station on the date of the incident, deposed that he had received a written complaint from the father of the deceased being the Prosecution Witness No. 1 on the basis of which he had started Kotwali Police Station Case No. 307 of 1996 dated 9th August, 1996 and had endorsed the case to Sub-Inspector T. Sherpa for investigation. The Prosecution Witness No. 11, Dr. Tushar Kanti Chowdhury, Medical Officer of Sadar Hospital, Jalpaiguri denied any involvement with the case. The Prosecution Witness No. 12 only, identified dead body challan prepared by him and also the carbon copy of the Inquest Report prepared by the Executive Magistrate.

The important witnesses are the Prosecution Witness Nos. 13, 14 and 15. The Prosecution Witness No. 13, T. Sherpa, the Investigating Officer, deposed that the deceased had been admitted at the Sadar Hospital, Jalpaiguri under Doctor Choudhury with burn injuries. During investigation he visited the hospital, examined the victim and recorded her statement at the hospital. He identified the said statement of the deceased. He also identified the Dying Declaration recorded by the then Executive Magistrate, Sri M.S. Kar. In cross-examination, he maintained that he had recorded the statement of the deceased at the hospital. He however, stated that he had not mentioned the time of recording the statement. From the evidence it is apparent that the deceased put her left thumb impression at the bottom of the statement. The statement was, according to this deponent, taken at the hospital when her relatives were not present.

The Prosecution Witness No. 14, who was at the time of trial, Secretary to the Government of West Bengal, Khadi Village Industries, now posted at Calcutta, deposed that on 9th August, 1996 he was posted at Jalpaiguri as Deputy Magistrate. On that day, he recorded the Dying Declaration of the deceased at the female surgical ward of Jalpaiguri Sadar Hospital. He stated that he had recorded the Dying Declaration by order of the S.D.O. (Sadar), Jalpaiguri. He identified the Dying Declaration recorded by him in his own handwriting. The Dying Declaration did not have the signature of the deceased. This deponent deposed that the deceased was not in a condition to put her signature.

The Prosecution Witness No. 15, T.K. Choudhury, a Medical Officer posted at Jalpaiguri Hospital on 9th August, 1996 deposed that the Dying Declaration of the deceased had been taken by the Investigating Officer in his presence and he counter signed the same. He deposed that the patient was conscious and able to give her statement and he had given a fitness certificate to that effect. He identified the fitness certificate.

This doctor deposed that the patient had been admitted under his care with 98% burn. In reply to a question put by the Court, he deposed that a patient with 98% burn can remain conscious and capable of speaking. The patient who had been admitted at around 8.40 a.m., apparently became serious at about 10.45 p.m. and died at about 11.20 p.m. at night, after which her dead body was sent for post-mortem.

This doctor in cross-examination deposed that in the Bed Head Ticket (BHT) there was no mention of how the deceased sustained injury. The doctor had not taken the history of the injury. He however confirmed that the deceased was fully conscious to make a statement.

In answer to a question in cross-examination, this deponent also deposed that he had administered life saving drug including Decadron (sic) to the deceased. He however stated that a patient can remain conscious even after administration of Decadron drug. There would not be drowsiness.

The accused appellants, as observed above, were examined under Section 313 of the Criminal Procedure Code. They merely denied their guilt. Even though the accused appellant No. 1, asserted that the alleged statement of the deceased that her mother-in-law (appellant No. 2) had set her on fire, was false, he did not say anything about how the deceased caught fire. Significantly, the accused appellant No. 1 admitted that his wife had died as a result of burn injury suffered in their house. He did not deny his presence at the place of occurrence. He denied that his wife was pregnant, even though the postmortem showed she had been carrying for about 20 weeks.

Mr. Siladitya Sanyal, appearing on behalf of the appellants submitted that there was no cogent evidence on the basis of which the appellants could have been convicted of murder under Section 302 of the Indian Penal Code. Nor was mere any cogent evidence on the basis of which the charge under Section 498A could be sustained against the appellants.

Mr. Sanyal submitted that the de facto complainant being the father of the deceased (Prosecution Witness No. 1), only deposed that his daughter had died on 9th August, 1996 of burn injury which she had sustained at her matrimonial home. He deposed that he did not know how she spent her matrimonial life. He also denied having told the Police that his daughter had been tortured in her matrimonial home for failure to meet their dowry demands of her in-laws.

Mr. Sanyal argued that the mother of the deceased, who deposed that she had been to the hospital, had deposed that she found that her daughter had no sense. She also denied knowledge of the kind of matrimonial relationship her daughter had, with her husband.

Mr. Sanyal argued that there was no evidence at all, except for two purported Dying Declarations, which were not admissible at all, in law. One of me Dying Declarations, that is, the Dying Declaration purportedly recorded by the Deputy Magistrate, does not contain any certificate of the attending doctor, certifying that the deceased was in a fit state of mind to make the Dying Declaration. The said purported Dying Declaration was not recorded in the presence of any doctor. The other declaration was suspect, the same having been recorded by the Investigating Officer himself.

Mr. Sanyal strenuously argued that conviction under Article 302 cannot be based on purported Dying Declarations which are suspect. He submitted that admittedly the petitioner had suffered 98% burns. He argued that a person who had suffered 98% burns could not have been in a position to speak coherently and make a Dying Declaration.

Mr. Sanyal submitted that the judgment and order of conviction under appeal which was based on Dying Declarations, which were inadmissible in evidence, and the order of sentence were liable to be set aside by this Court.

Mr. Siladitya Sanyal cited the judgments of the Supreme Court in Shaikah Bakshu and Others Vs. State of Maharashtra, ; Kanti Lal Vs. State of Rajasthan, and Mohd. Islam v. State (NCT of Delhi) reported in (2010) 3 Supreme Court Cases (Cri) 673.

The judgment of the Supreme Court in Shaikh Bakshu and Others Vs. State of Maharashtra--> was rendered in the particular facts of that case. In Kanti Lal Vs. State of Rajasthan, the Supreme Court held:

"32. It is well settled that one of the important tests of the credibility of the Dying Declaration is that the person, who recorded it, must be satisfied that the deceased was in a fit state of mind. For placing implicit reliance on Dying Declaration, the court must be satisfied that the deceased was in a fit state of mind to narrate the correct facts of occurrence. If the capacity of the maker of the statement to narrate the facts is found to be impaired, such Dying Declaration should be rejected, as it is highly unsafe to place reliance on it. The Dying Declaration should be voluntary and should not be prompted and physical as ell as mental fitness of the maker is to be proved by the prosecution."

In Mohd. Islam (supra) the Supreme Court found that a Dying Declaration not containing any specific certification of the doctor that the deceased was in a fit state of mind and health to make a statement of that nature, could not form the basis of conviction. The judgment has, however, been rendered in the particular facts of the case, and is distinguishable.

In this case, there are two Dying Declarations on record, one recorded by the Executive Magistrate and the other by the Investigating Officer in the presence of the doctor treating the deceased, who gave evidence in Court that the deceased was conscious and in a position to make a Dying Declaration. It is well settled that a ''Dying Declaration'', which is the statement of the deceased prior to death, with regard to the cause of his/her death need not be in any particular form.

There can be no doubt that conviction can be based solely on a Dying Declaration. This proposition finds support from the judgment of the Supreme Court in Ramawati Devi Vs. State of Bihar, of course, for conviction to be based on only an uncorroborated Dying Declaration, the Court must satisfy itself that, what is stated in the Dying Declaration, is unalloyed truth and that it is absolutely safe to act upon it. The Court is obliged to satisfy itself that the Dying Declaration is of such a nature as to inspire confidence of its correctness. The court must carefully examine whether the deceased was in a fit state of mind and health to narrate distinctly and accurately what exactly had happened to him/her.

A Dying Declaration is accepted as evidence sufficient for conviction on the principle "nemo moriturus praesumitur mentire" i.e., a man will not meet his Maker with a he in his mourn. In other words when a man is dying, he is not likely to lie.

Once the court is satisfied that the deceased was fit enough to make a valid declaration and the declaration made was true and voluntary it can undoubtedly base its conviction on such Dying Declaration, without any further corroboration.

The Court is required to scrutinize a Dying Declaration carefully to ensure that the declaration is not the result of tutoring, prompting or imagination and the deceased was in a fit mental and physical state to make a Dying Declaration. Where a Dying Declaration is suspicious, or suffers from any infirmity, it cannot form the basis of a conviction without corroborative evidence. In this case there was no one to tutor the deceased. We also find no reason why a newly married bride should, without cause, falsely implicate her husband and mother-in-law.

Mr. Ranabir Roychoudhury, appearing on behalf of the prosecution, led by the learned Public Prosecutor has cited the judgment of the Supreme Court in Koli Chunilal Savji and Another Vs. State of Gujarat, where the Supreme Court held that the requirements of the presence of a doctor and certification that the deceased had been conscious, in senses and in a fit condition to make a statement were rules of prudence, and the ultimate test was whether the Dying Declaration could be held to be a truthful one and voluntarily given.

Laxman Vs. State of Maharashtra, where a Five Judge Bench overruled the judgment of the Supreme Court in Paparambaka Rosamma and Others Vs. State of Andhra Pradesh, and affirmed Koli Chunilal Savji & Anr. v. State of Gujarat (supra).

In this case, a very senior Government officer of the rank of Secretary to the Government of West Bengal, deposed that he had, as Deputy Magistrate, recorded the Dying Declaration. He stated that he personally took down the Dying Declaration. He found that the patient was in a condition to give a Dying Declaration. Another Dying Declaration was taken by the Investigating Officer in the presence of the attending doctor, T.K. Choudhury, who had been treating the deceased. Dr. T.K. Choudhury in his evidence clearly stated that the Dying Declaration had been recorded by the Investigating Officer in his presence. He further deposed that the patient was conscious to make a statement. She was admitted in the morning, but her condition deteriorated after 10:45 p.m. and she died after 11 p.m. at the night.

We find no reason why a responsible officer of the Government of West Bengal of the rank of Secretary to the Government of West Bengal or the doctor treating the deceased should falsely implicate the appellants by giving imaginary evidence in Court. There could possibly be no enmity between the doctor and/or the Secretary to the Government of West Bengal and the accused appellants.

Moreover, a Dying Declaration does not, in our view, become suspect only on the ground that it has been recorded by the Investigating Officer. It is just that it would be prudent to carefully scrutinize such Dying Declaration as also the supporting evidence considering that the Investigating Officer might have an interest in the success of the investigation.

In this case, the Dying Declaration recorded by the Investigating Officer is substantiated by the Dying Declaration recorded by the Magistrate in his own handwriting as well as the evidence of the doctor in whose presence the Dying Declaration was recorded.

As observed by the learned Sessions Court, the concerned Deputy Magistrate certified that he had taken down the Dying Declaration in his own handwriting and he explained that the signature of the deceased could not be taken as she was not in a position to put her signature.

The Dying Declaration recorded by the Magistrate may not have been accompanied by a doctor''s certificate. In Sher Singh and Another Vs. State of Punjab, the Supreme Court held that even though certificate of the doctor certifying that the deceased was fit to give a Dying Declaration was absent, a Dying Declaration could be relied upon when the Magistrate who recorded the Dying Declaration, had certified fitness of the declarant.

The attending doctor T.K. Choudhury, Prosecution Witness No. 15, in whose presence the deceased made another Dying Declaration, which was recorded by the Investigating Officer, also deposed that the patient was conscious, and in a position to make a statement, as observed above. He stated that he had issued a fitness certificate and he proved the certificate issued by him. He also stated that the left thumb impression of the patient had been obtained in his presence.

In our view, the learned Sessions Court rightly convicted the appellants on the basis of the Dying Declaration. In our view, the judgment and/or order of conviction does not call for any interference from this Court. The appellant No. 2 and the appellant No. 1 acted in collusion. The appeal is dismissed and the judgment and order under appeal and the order of sentence are confirmed.

Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously, subject to compliance with the requisite formalities.