Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
BEFORE:
The Hon’ble Justice Aniruddha Bose
And
The Hon’ble Justice Asha Arora
C.R.A. 99 of 2011
Bhairab Chakraborty Anr.
Vs.
The State of West Bengal
Advocates for the appellants : Mr. Rabi Sankar Chattopadhyay,
Mr. Suman Sankar Chattopadhyay,
Mr. Santanu Maji,
Mr. Souvik Dutta,
Mr. Monojit Chatterjee,
Ms. Snigdha Saha,
Mr. Subhadip Banerjee
Advocates for the State : Mr. Subir Banerjee (Additional Public
Prosecutor)
Mrs. Kakali Chatterjee,
Mr. Pratick Bose
Heard on : 21.07.2016, 19.09.2016, 06.12.2016,
12.12.2016, 19.05.2017 and 16.06.2017
Judgement on : 30th June, 2017.
Aniruddha Bose, J. :
1.
Both the appellants in this appeal have been sentenced to suffer rigorous
imprisonment for life and directed to pay fine of Rs.5,000/- each on charge of
committing murder of one Lata Chakraborty on 8th October, 2007. In default
in paying fine, further imprisonment of six months have been directed.
Prosecution case is that on 8th October, 2007, at Shalboni forest kerosene oil
was poured on the victim upon being tied to a tree by a rope, and thereafter
she was ignited. In the written complaint made by the father of the victim on
9th October, 2007, the first appellant (Bhairab) has been referred to as her
husband. On the basis of this complaint, formal F.I.R. was registered on 9th
October 2007 at 11:55 hrs. There is some dispute as to whether the marriage
between the victim and the first appellant had actually been solemnized or
not. In the written complaint it has been recorded that the marriage had
taken place on 6th August, 2007 as per hindu rites and customs but
registration of the marriage was not effected, though the application for the
same was submitted before the Sub-Registrar, Suri. A copy of the application
under Section 8 of the Hindu Marriage Act, 1955 has been made Exhibit-“14”.
The prosecution version that Bhairab and Lata had been living together has
however been denied by the appellants in response to their examination under
Section 313 of the Code of Criminal Procedure, 1973.
2. It has been submitted on behalf of the prosecution that on the morning of
9th October 2007, Lalu Lohar (P.W.11), a resident of Shalboni had informed
the family of Lata that she had suffered burn injury. The P.W.1 (Mukti Kahar)
and P.W.2 (Archana Kahar) being the parents of the victim have deposed that
they went to the spot where the victim was found in charred (the witnesses
referred to her condition as half-burnt) state but conscious. Thereafter, she
was taken to the hospital and complaint was made to the Suri police station
on the same day that is 9th October, 2007. The father of the victim was the
complainant, P.W.1 and in his written complaint he named the appellants
Bhairab and Manju along with three other persons, Santu, Budo and Subir as
accused persons. The victim survived for nine days after suffering burn
injuries. The cause of her death, as it appears from the post-mortem report,
was due to the effects of burn injuries. The autopsy surgeon, Dr.Debashis
Som (P.W.15) has corroborated this in his evidence and also stated that injury
was ante-mortem in nature. The nature of injuries was extensive, as is
revealed from the post-mortem report. The autopsy surgeon’s deposition was
that during the period she was in hospital, she was capable of speaking
because her larynx and voice box area “were not caught with fire”.
3. The prosecution has altogether examined twenty witnesses in this case,
which was registered on the basis of the written complaint of P.W.1 as Suri
P.S Case No.168/2007. Initial case was started under Sections
498A/326/307 read with Section 120B of the Indian Penal Code, 1860.
Charges were framed against all the appellants under Sections 302/34 and
120B of the 1860 Code while the appellants were charged under Section 498A
of the Code as well. The Trial Court however, found that the prosecution had
failed to prove the charges against Santu, Buddhadeb and Subir and found
them not guilty of committing the offence they were charged with. The Trial
Court also found the appellants not guilty of offence under Section 498A of
I.P.C. Among the twenty witnesses examined, P.W.1 and P.W.2 were the
parents of the victim. Other witnesses of fact were Doli Kahar-P.W.3, Anarkali
Kahar-P.W.4, Balai Kahar-P.W.5, Renu Bagdi-P.W.7, Padma Lohar-P.W.8,
Mangli Murmu-P.W.9, Lakshmi Kahar-P.W.10, and Upen Kahar-P.W.14.
P.W.1, P.W.2 and P.W.10 were relatives of the victim. P.W.3, P.W.4, P.W.5
and P.W.14 were co-villagers of the victim, the village being known as
Kariddhya. P.W.7, P.W.8, P.W.9, P.W.11 were residents of Shalboni village,
where the victim was found in charred condition. Of these witnesses of fact
P.W.4, P.W.5, P.W.7, P.W.8 were declared hostile. P.W.17, P.W.18 and P.W.20
were police witnesses, the last among them being the investigating officer.
4. There is no eye witness to the incident and the prosecution case is built
on circumstantial evidence. The fact that the victim was found at Shalboni
has been proved by P.W.9 and P.W.11, apart from P.W.1, P.W.2, P.W.3 and
P.W.5. In his deposition the P.W.11 stated:-
“I reside at Shalboni village. Nearly 2 ½ years
back one lady, who was caught with fire told me
that her parents house is at Kariddhya,
Bouripara and she requested me to inform the
incident to her parents. I had communicated the
incident to them and thereafter the victim’sparents and others came there.”
His deposition when linked with deposition of P.W.1, in which the
latter stated that he was informed by Lalu of Shalboni that the victim Lata
was suffering from burn injuries and on such information, he went to the
place of occurence found Lata there establishes this fact. There is also
sufficient evidence to the effect that the appellant no.1 had married Lata.
Certain doubts have been raised by the appellants on legality of the
marriage, but adequate evidence is there that the appellant no.1 had
relationship with the victim.
5. The judgement of the Trial Court is primarily founded on dying
declarations of the victim. In this case three of the witnesses of fact, being the
P.W.1, P.W.2 and P.W.14 have stated in their depositions that when they
reached the location at Shalboni, each of them found the victim conscious and
she had named the accused persons as perpetrators of the crime. P.W.1
stated:-
“On being asked she disclosed that the accds. Bhairab,
Santu and Manju and 2 others assaulted her in the last
night and thereafter she was tied by a rope with a tree.
Thereafter, Manju poured k.oil over her body and
Bhairabfiried. We took her to hospital. Concerned
doctor told us that she was in critical stage. At that timeBhairab was not present on the spot or in hospital.”
Similarly, P.W.2, being the mother of the victim stated:-
“In one morning I came to know that she was caught
with fire. It was in the month Aswain. After getting the
news we went to the spot. I found her in half burned
condition. She was full of sense. On being asked she
stated that the accused persons insisted her for putting
her signature in a blank paper as the accused Bhairab
has already married with another lady. She did not
agree to put her signature in the said blank paper.
Thereafter she was tied up with a tree after being
assaulted. The accused person Manju poured k.oil and
the accd. Bhairab set fire upon her. Thereafter the
accused persons fled away, she cried for help and
somehow managed to escape. Thereafter one person of
Shalboni village had informed us about this incident.”
P.W.14, a co-villagers in his deposition stated:-
“On being asked Lata told us that in the previous night
the accused persons took her to a jungle and insisted
her to put signature in a blank paper and to leave
Bhairab but Lata did not agree to sign. Thereafter shetied up with a tree by the accused Santu, Budo and
Subir and the accused Manju poured k.oil over her body
and accused Bhairab set fire.”
6. The investigating Officer Ashalata Goswami, being the P.W.20 also has
recorded a statement of the victim in the same line on 9th October 2007. This
statement has been marked ‘Exhibit-11’. In this exhibit, the statement of Lata
has been, inter alia, recorded that the husband of the victim on the preceding
night had taken her to Shalboni village. There she found her sister-in-law
Manju, as also local residents Santu, Budo and Sudhir. The statement, in
Bengali, further records that the victim stated that they assaulted her to
compel her to leave Bhairab. When she refused, she was grappled by them
while Manju poured kerosene oil on her and her husband ignited her with a
matchstick. After that, all of them fled. According to the recording of P.W.20,
for about ten days, the victim said, she was being pressurised to break her
relationship with Bhairab as the latter had remarried. As it appears from this
exhibit, the victim is stated to have said the entire story to the doctor, but
according to her the doctor did not properly listen to her.
7. Learned Counsel for the appellants has emphasised on the bedhead ticket
(part of exhibit 7) as also the deposition of Dr. D.K. Mukhopadhaya (P.W.16) to
counter the statements of four witnesses constituting dying declarations. The
P.W.16 had treated the victim in the burn unit of Suri Sadar Hospital. In his
deposition he stated that the patient had told him that it was suicidal burn
due to quarrel between herself and the accused Bhairab and that quarrel was
due to his second marriage. He has referred to Exhibit-“7/1” as the statement
recorded by him. This recordal is effected in the Bed Head Ticket, a
document, which appears to be part of treatment records, captioned “Daily
Clinical Notes”. The heading of this note is “on admission”, and it records:-
“suicidal burn following a quarrel her
husband (Bhairab Chakrabory) for his
second marriage”
The same document records that requisition had been sent for taking dying
declaration. But in that note, specifically referring to suicidal burn there is
no disclosure of the source of information.
8. From the evidence available, it transpires that there was an element of
reluctance on the part of the medical and administrative authorities to have
the dying declaration recorded by a civil official. Dr. D. K. Mukhopadhaya
(P.W.16) has stated in his examination-in-chief:-
“I have informed the Superintendent of Suri
Sadar Hospital for recording the statement of
the victim. Instantly he has referred to the
then S.D.O. for recording the statement of the
victim. A reminder was also given to the
S.D.O. by the Superintendent at myinstance.”
9. Ashalata Goswami, P.W.20 being the I.O also wanted a Magistrate to
record the dying declaration. This fact appears from her deposition:-
“On 9/10/2007 just after taking charge of
investigation I submitted a petition to S.D.O.
Suri Sadar for appointing a Magistrate to
record the dying declaration of burnt patient
Lata Kahar @ Chakraborty admitted to Suri
Sadar Hospital. This is the requisition made
by me to the SDO Suri for appointment of a
Magistrate for recording dying declaration.
This the xerox copy attested by
Superintendent Suri Sadar Hospital, marked
as Ext. 9.
S.D.O. Suri endorsed my application to
Superintendent Suri Sadar Hospital asking
him to request Bed in-charge of the patient to
take dying declaration.
Dr. D.K. Mukherjee, Bed in-charge wrote to
Superintendent Suri Sadar Hospital
requesting him to inform S.D.O. for sending
one Deputy Magistrate for taking dyingdeclaration. This is the Xerox attested copy as
Exhibit 10.”
10. The Trial Judge, however, rejected the defence of the appellants that it was
a case of suicide on the ground that none of the witnesses except P.W.16 had
supported the defence version that it was a case of suicidal burn. The
witnesses who had turned hostile also did not refer to suicide as the cause of
death of the victim. Of the four witnesses who deposed on dying declaration,
P.W.1 and P.W.2 were relatives, P.W.20 was a police witness and P.W.14 was
a co-villager and their statements in their depositions referring of recordal of
statement of the victim corroborate. In the case of Gopal Vs. State of
Madhya Pradesh [(2009) 12 SCC 600], it has been held:-
“Law relating to appreciation of evidence in
the form of more than one dying declaration is
well settled. Accordingly, it is not the plurality
of the dying declarations but the reliability
thereof that adds weight to the prosecution
case. If a dying declaration is found to be
voluntary, reliable and made in fit mental
condition, it can be relied upon without any
corroboration. The statement should be
consistent throughout. If the deceased had
several opportunities of making such dyingdeclarations, that is to say, if there are more
than one dying declaration they should be
consistent. (See:Kundula Bala Subrahman-
yam v. State of A.P.1 [(1993) 2 SCC 684].
However, if some inconsistencies are noticed
between one dying declaration and the other,
the court has to examine the nature of the
inconsistencies, namely, whether they are
material or not. While scrutinizing the contents
of various dying declaration, in such a
situation, the court has to examine the same
in the light of the various surrounding facts
and circumstances.”
11. The other judgement on which the appellants have relied upon is Nanhar
V. State of Haryana [(2010) 11 SCC 423]. In this judgement, it has been
held:-
“In our considered opinion, the dying
declaration should be such, which should
immensely strike to be genuine and stating
true story of its maker. It should be free from
all doubts and on going through it, an
impression has to be registered immediatelyin mind that it is genuine, true and not tainted
with doubts. It should not be the result of
tutoring…”
In the case of Nanhar (supra), the dying declaration was not
believed.
12. Learned counsel for the appellants has sought to persuade us to believe
the evidence P.W.16, particularly since he has not been declared hostile and
there was no enmity between the doctor and the victim or her family. Further
the dying declaration implicating the two appellants were not mentioned in
the written complaint. It is also pointed out on behalf of the appellants that
evidence of P.W. 20 on dying declaration should be disbelieved because being
the Investigating Officer, she was interested in conviction of the appellants.
Moreover, there was no witness in the recorded statement. So far as other
witnesses of fact are concerned who have deposed on dying declarations of the
victim, appellants’ case is that P.W. 1 and P.W. 2 were close relatives of the
victims and P.W. 14 was a co-villager.
13. We, however, are not inclined to reject the statements of P.W.1, and P.W.2
and P.W.14, all of whom have given a uniform narrative of the victim’s
statement on the aspect of being set on fire by the appellants. When
contradicted in cross-examination, they stuck to their evidence in
examination-in-chief. The deposition of P.W.20 also broadly corroborates
what these three witnesses have stated. While we accept that doctor’s
deposition ought to be valued high on the yardstick of creditworthiness, but
the noting in the bed-head ticket does not inspire our confidence. The
recording in the noting does not reflect that it was a statement of the victim.
In his examination, he had stated that it was the victim’s statement he had
recorded. In exhibit “11”, however, such recordal is not there. The failure on
the part of hospital authorities to arrange for an official for recording dying
declaration creates doubt over the intention of the hospital authority. The fact
that the victim was staying with the first appellant in our opinion has been
proved. The motive for the crime appears to be “second marriage” of the first
appellant. There is sufficient evidence that at the material point of time the
appellant no.1 was living with the victim. The appellants have failed to come
up with a plausible reason as to how the victim suffered her burn injuries.
There was no reporting of the incident by the appellants and in particular the
first appellant, either to police or family members of the victim. Thus, while
we accept the proposition that plurality of dying declarations ought not to be
the determinant factor for its acceptance, we are unable to reject the evidence
of P.W.1, P.W.2, P.W.14 and P.W.20. In the event it was only evidence of P.W.
20 on dying declaration, it might not have been sufficient to find the
appellants guilty. But there is a chain of witnesses who have deposed on this
factor. Merely because it was not made part of the written complaint,
evidence from the witness box on dying declarations cannot be ignored or
negated.
14. We, however, refrain from coming to a specific finding on accepting the
evidence of the aforesaid four witnesses and in sustaining the finding of guilt
and judgment of conviction because of improper examination of the accused
persons under Section 313 of the 1973 Code. We find the circumstances
relating to dying declarations emanating from the evidence of any of the four
aforesaid prosecution witnesses were not put to the appellants. The
judgement of the Trial Court being based on dying declarations made by the
aforesaid four witnesses, this failure in our opinion has caused prejudice to
the appellants. For this reason, we set aside the judgment under appeal and
direct the Trial Court to recommence the trial from the stage of examination of
the accused/appellants under Section 313 of the 1973 Code and dispose of
the matter in accordance with law on priority basis within four months from
the date of communication of this judgment.
15. Let a copy of the judgement be forthwith sent to the Trial Court along with
the records.
16. Urgent Photostat certified copy of this order, if applied for, be given to the
parties on priority basis on compliance of all formalities.
I agree
(Asha Arora, J.) (Aniruddha Bose, J.)