Sajahan Sk vs State Of West Bengal

Manojit Mandal, J

This appeal is directed against the judgment and order of conviction and sentence dated 30.10.2014 and 31.10.2014 passed by the learned

Additional Sessions Judge, Bolpur, Birbhum in Sessions Trial No. 06 (April) 2014 arising out of Sessions Case No. 115 of 2013 convicting the appellant

under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.5,000/- (Rupees Five Thousand)

only.

In order to appreciate the rival contentions advanced by the parties and issues involved, it is necessary to set out the facts of the case which give

rise to the present criminal appeal:-

Marriage was solemnized between deceased Manowara and appellant as per Muslim Customs about 3 ½ years ago. Deceased Manowara died in

the hospital on 01.06.2012 while under treatment for burn injuries which she had sustained on 23.05.2012. Appellant is the husband of the said

deceased. Informant Anwar Sk (PW 1) and Saleha Biwi (PW 2) are the parents of the deceased. PW 3, PW 4, PW 7 and PW 8 are the neighbours

of the appellant. PW 5 is Sk Alenur who scribed the written complaint. PW 6 is the medical officer of Bolpur Sub-Divisional Hospital who attended

the deceased as indoor patient. PW 9 Maitreyee Ganguli is a member of West Bengal Executive Service who conducted inquest over the dead body

of deceased Manowara Biwi and proved the inquest report (Exbt.2) into evidence. PW 10 is the Investigating Officer. PW 11 is the Medical Officer,

Dr.Debasish Sarkar who conducted post mortem examination over the deadbody of the deceased. Dr. Krishna Kamal De has been examined in this

case as C.W. No. 1.

The prosecution case is that appellant and others did not supply meal to the deceased and used to torture her physically. Appellant demanded a sum

of Rs.5,000/-(Rupees Five Thousand) only for the purpose of constructing room. Deceased told PW 1 about such demand. The deceased used to

complain regarding torture and cruelty meted out towards her by the appellant and others before her parents.

On 23.05.2012, the parents of the deceased were informed that the deceased with burn injuries was admitted to Sian Sub-Divisional Hospital. On

receipt of the aforesaid information, the parents went there and found that the deceased had sustained extensive burn injuries. Deceased was

thereafter shifted to Burdwan Medical College and Hospital for better treatment. On 23.05.2012, it is alleged that the deceased disclosed before PW 1

and PW 2 that the appellant has poured kerosene oil on her and set her on fire with a match stick upon which the informant (PW 1) lodged a First

Information Report (for short the F.I.R.) (Exbt.1) before the Officer-in-Charge Labpur Police Station who registered the case for commission of

offences under Sections 498A and 307 of the Indian Penal Code (for short IPC) against the appellant and others.

On receipt of the aforesaid FIR, the case was registered. The investigation of the case was entrusted to the Inspector of Police (PW 10). PW 10

sent a message to the Burdwan Medical College and Hospital for recording dying declaration of the deceased, whereupon Dr. Krishna Kamal De,

Medical Officer of Burdwan Medical College and Hospital (CW 1) recorded the dying declaration of the deceased on 27.05.2012. The said dying

declaration was proved and exhibited as Exbt. I in the trial. Thereafter, the deceased while under treatment died on 01.06.2012 in the hospital. After

her death, an inquest was conducted by PW 9 and post mortem examination was conducted by PW 11. PW 10 completed the investigation and

thereafter, submitted charge-sheet against the appellant and others for commission of offence punishable under Section 498A and 302 of the IPC.

Charge under Section 302 of the IPC was framed against the appellant and others.

The present appellant and others denied the charge and claimed to be tried.

Prosecution examined 11 witnesses and marked several documents as exhibits. One witness was examined in this case as Court witness. In

conclusion of trial, the learned Trial Judge by judgment and order dated 30.10.2014 and 31.10.2014 convicted and sentenced the appellant as

aforesaid.

The learned Counsel appearing for the appellant submitted that learned Court below committed an error of fact and also of law in convicting the

appellant. It was submitted that there was no eyewitness to the occurrence and entire case rests only on circumstantial evidence and also on the

alleged dying declaration stated to have been made by the deceased. It was submitted that alleged dying declaration was not recorded in question

answer form. It was further submitted that C.W. No. 1 did not record the time when it was recorded or that the deceased was not in a fit state of

mind to make the statement. He very strenuously urged that the signature and/or the thumb impression of the deceased was not there in the said dying

declaration. He further urged that there is three days delay in lodging the First Information Report. So, the learned Lawyer for the appellant urged that

the prosecution case cannot be accepted as true.

The learned Counsel for the State, on the other hand, supported the order of conviction and sentence. He submitted that learned Court below was

correct and justified in relying upon the aforesaid dying declaration which was recorded by the Doctor (CW 1).

Having heard the learned Counsel appearing for the parties, I now proceed to analyse the entire evidence on record so as to ascertain whether the

conviction and sentence passed against the appellant would and could be upheld.

PW 1, father of the deceased is the de facto complaint. It is his evidence that marriage between his daughter and the appellant was solemnized

and his daughter, Manowara received the burn injuries. He was informed of the incident on the same day whereupon he immediately went to Sian

Hospital and found that the deceased was at there with extensive burn injuries. His daughter was shifted to Burdwan Medical College and Hospital.

PW 1, the informant and father of the deceased, stated that deceased told him that her husband set her on fire. PW 2 is the mother of the deceased.

PW 2 in her evidence stated that her daughter was admitted to hospital and she came to see her who told her that her husband set her ablaze after

pouring kerosene oil and her daughter cried for help. Both the PW 1 and PW 2 were subjected to extensive cross-examination but the aforesaid part

of the evidence pertaining to statement made by the deceased could not be dislodged in any manner in the course of cross examination. On scrutiny of

the evidence of PW 1 and PW 2, I find nothing to shake the credence of their evidence.

PW 3, PW 4, PW 7 and PW 8 did not support the case of the prosecution as such they were declared hostile by the prosecution.

PW 10 is the Investigating Officer. It is his evidence that on his prayer, statement of the deceased was recorded by Dr. Krishna Kamal De of

Burdwan Medical College and Hospital on 27.05.2012 and he collected the dying declaration of the victim. While under treatment in the hospital, the

deceased died on 01.06.2012. The doctor who recorded her dying declaration was examined in the trial as C.W. No. 1. He had stated in his deposition

that deceased was admitted in CBS female ward of Burdwan Medical College and Hospital (BMCH) on having suffered 90% burn injuries in lower

face and all other parts of the body. He also stated that he recorded the statement having found the patient was mentally alert but under cover of

analgesia (pain killer) while making the dying declaration (Exbt. I) which has been proved in the trial.

Post mortem was held by Dr. Debasish Sarkar (PW 11). On examination, he found the following injuries on the person of the deceased:-

“Infected ulcers due to burn injuries, over the anterior and posterior aspect of neck, chest, abdomen, both the upper limbs and lower limbs. The

ulcers showed presence of puss and slough with evidence of healing from the periphery and information of granulation tissues. No other injuries were

detected even after careful dissection of the body.â€​

Dr. Debasish Sarkar (PW 11) has opined that death was due to effect of burn injuries ante-mortem in nature. The said Doctor has proved the post

mortem report (Exbt. 3) into evidence. On consideration of the evidence of PW 11 and post mortem examination report (Exbt. 3), I hold that deceased

died due to effect of burn injuries which is ante-mortem in nature.

PW 6 is the Medical Officer of Bolpur Sub-Divisional Hospital who has deposed that he attended deceased Manowara Biwi as indoor patient of

the said hospital. He has further deposed that the said patient was referred to Burdwan Medical College and Hospital and she had 70% burn injury.

Exhibit I is the dying declaration recorded by CW 1 which makes it clear that the Doctor recording the dying declaration had recorded that patient was

mentally alert under the cover of analgesia at the time of recording of the dying declaration.

I have scrutinized contents of the dying declaration which was recorded by the doctor of the hospital where the deceased was treated for her burn

injuries. On going through the same, I find no infirmity in the said dying declaration as the said dying declaration vividly mentions manner in which the

deceased suffered burn injuries on pouring kerosene oil on her by the appellant and set her on fire. The appellant poured the kerosene oil on the

deceased and lit the fire. The said description given by the deceased in the dying declaration recorded by the doctor is clear, unambiguous and there is

no reason why I should not accept the said dying declaration as correct and prove version of the incident.

The objections raised by the learned Counsel appearing for the appellant which are of technical nature with regard to recording and admissibility of

the aforesaid dying declaration. I am, however, of the considered opinion that the said dying declaration recorded by the doctor (CW1) is also

corroborated by the oral dying declaration made before PW 1 and PW 2 and the said fact also finds corroboration from the statement of PW 1 and

PW 2.

In Kaliya v. State of Madhya Pradesh reported in (2013) 10 SCC 758 the Hon’ble Apex Court observed that:-

“The law on the issue can be summarized to the effect that law does not provide who can record a dying declaration nor is there any prescribed

form, format or procedure for the same. The person who record dying declaration must be satisfied that the maker is in a fit state of mind and is

capable of making such a statementâ€​.

The Constitutional Bench of the Hon’ble Apex Court reported in Laksman Versus State of Maharastra, 2002 AIR SCW 3479 has pronounced

that:-

“Normally the court in order to satisfy whether the deceased was in fit mental condition to make dying declaration, look up to the medical

opinion……………………….

A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by sign or otherwise will suffice

provided the indication is positive and definite. In most cases, however, such dying statements are made orally before the death ensures and is reduced

to writing by someone like Magistrate or a Doctor or a police officer……………

There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a

Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement

necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying

declaration must be satisfied that the deceased was in a fit state of mindâ€​. (emphasis supplied)

Six decades ago, the Apex Court had settled the issue in 1958 AIR SCR 552 (Kushal Rao v. State of Bombay )that conviction may be recorded

solely on a dying declaration provided it is reliable. It held:-“special sanctity which the legislature attaches to such declaration must be respected

unless such declaration can be shown not to have been made in expectation of death or to be otherwise unreliable and any evidence adduced for this

purpose can only detract from its value but not affect its admissibility.

Although a dying declaration has to be very closely scrutinized, and tested as any other piece of evidence, once the court comes to conclusion in any

particular case, that it is true, no question of corroboration arises. A dying declaration cannot be placed in the same category as the evidence of an

accomplice or a confession.â€​

When I apply the aforesaid principles to the facts of the present case I am of the considered opinion that the learned Lower Court was totally

justified and also right in relying upon the dying declaration recorded by the doctor (CW- 1) and statements of the deceased made to PW 1 and PW

The technical objections which were raised by the counsel for the appellant, one regarding the recording of the dying declaration in question answer

form, I thing that this is a rule of prudence and not the ultimate test as to whether or not the said dying declaration was truthful or voluntary.

The doctor who recorded the dying declaration was examined as a witness and he had in his deposition categorically stated that the deceased

while making the aforesaid statement was in a fit mental condition to make such a statement. The aforesaid position makes it therefore clear that the

aforesaid dying declaration could be relied upon as the same was truthfully recorded and the said statement gave a vivid account of the manner in

which the incident had taken place.

There was another objection raised by the counsel appearing for the appellant regarding the admissibility of the aforesaid recorded dying

declaration contending inter alia that the signature or the thumb impression of the deceased was not taken on the said dying declaration. The said

objection according to me also is without any basis. The deceased had suffered about 90 per cent burn injuries. Inquest Report (Exbt. 2) also makes it

clear that the palm of the deceased was in burnt condition. In such a situation, it may not be possible to take her signature or LTI on the dying

declaration. There is also no reason why a dying declaration which is otherwise found to be true, voluntary and correct should be rejected only

because the person who recorded the dying declaration did not or could not take the signature or the Left Thumb Impression of the deceased on the

dying declaration. Once it is found that the dying declaration is true and made voluntarily and as also trustworthy, there is no reason why the same

should not be believed and relied upon. In this case, the said dying declaration is corroborated by the oral dying declaration made by the deceased

before PW 1 and PW 2 which is also corroborated by the medical evidence and the facts contained in the FIR.

There is no evidence on record nor any suggestion given on behalf of the defence in this case that Court Witness No. 1, Medical Officer, acted in

motivated or over-zealous manner to the extent that he would falsely implicate an innocent person in the murder of his wife. Thus, the argument of the

learned Counsel for the appellant is unacceptable.

Learned Counsel appearing for the appellant has further urged that while the incident is said to have taken place on 23.05.2012, the FIR was

registered on 26.05.2012 and there was thus a delay of three days in lodging the FIR. He further submitted that the said three days’ delay has not

been explained properly. So, the prosecution case is fatal. I failed to accept such contention of the learned Advocate appearing for the appellant. It is

in evidence that the deceased was carried to Sian Sub-Divisional Hospital and from there, she was shifted to Burdwan Medical College and Hospital

for better treatment. The relatives were under shock sometime and were mainly concerned with the treatment. Anxiety of the relatives to get the

injured examined by the doctor and provide her with medical aid was first and foremost importance. It could not be expected from them that they

would rush to the Police Station for making first information report before medical aid to the injured. In such situation, I think that if then FIR is

delayed for a considerable period, such delay is not fatal.

Therefore, taking an overall view of all the facts and circumstances of the case and the evidence on record, I find no ground to interfere with the

order of conviction and sentence recorded by the learned trial court holding the appellant guilty of the offence under Section 302 of the IPC. The

present appeal, therefore, deserves to be dismissed which I hereby do. The order of conviction and sentence recorded against the appellant is

therefore upheld.

The Lower Court Record along with copy of the judgment be sent to the learned Trial Court below at once for information and taking necessary

action.

Urgent Photostat certified copy of the order, if applied for, be given to the parties on priority basis on their usual undertaking.

I agree.